My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Coroners and Justice Bill, have consented to place their prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Before the House begins Third Reading of the Coroners and Justice Bill, it may also be helpful for me to say a few words about Third Reading amendments. The House has agreed a procedure for addressing amendments which, in the view of the Public Bill Office, fall outside the guidance in the Companion and the rules set out by the Procedure Committee. In line with that procedure, the Public Bill Office yesterday advised the usual channels that three amendments on the Marshalled List for Third Reading today fall outside that guidance. These are Amendment 23 in the name of the noble Lord, Lord Laird, and Amendments 27 and 28 in the name of the noble Baroness, Lady Miller of Chilthorne Domer. On the basis of the Public Bill Office’s advice, the usual channels have agreed to recommend to the House that these amendments should not be moved.
My Lords, I am extremely surprised to hear that news, because it was the clear will of the House to deal with the issue of inquests. It voted, it came to a conclusion, and Schedule 1 is merely consequential upon and cleans up that decision. The House voted substantively and I am surprised to hear that the Public Bill Office would think that it was reasonable to keep in the Bill a schedule that is not part of anything substantial, now that the main clauses have been removed.
My Lords, I thank the noble Baroness for her statement. Obviously, under the circumstances I shall withdraw my amendment and take the issue up in a different way.
My Lords, I am grateful to both noble Lords. I should say to the noble Baroness that there is clear guidance. The Public Bill Office has said that her amendments fall outside that guidance. There is a clear procedure which has been followed. It is, therefore, up to the House to decide.
May I have discussions on the issue before we reach that stage in the Bill? We are not deciding it this second.
My Lords, the amendment will be called in the usual way. I believe that it is the will of the House that the amendment should not be dealt with, but if the noble Baroness wishes to have further discussions with the Public Bill Office, that is entirely up to her.
Clause 1 : Duty to investigate certain deaths
1: Clause 1, page 2, line 21, leave out subsections (8) and (9)
My Lords, Amendments 1, 3 and 7 concern those coroners’ investigations that take more than 12 months to complete. They respond to an amendment which was tabled at Report stage by the noble Baroness, Lady Miller, and which the House agreed, on a Division, should be added to the Bill. The relevant provision now appears at subsections (8) and (9) of Clause 1, which Amendment 1 would omit. The other government amendments would have substantially the same effect as that passed by the House at Report.
Government Amendment 3 places a duty on a senior coroner to notify the Chief Coroner of any investigation that has not been completed within 12 months of when he or she is made aware that the person has died. There will also be a duty to notify the Chief Coroner when such an investigation is finally completed or discontinued. This is a slight change to the noble Baroness’s amendment which would have required senior coroners to provide the Chief Coroner with details of investigations that are likely to take longer than 12 months to complete. I hope that the House will agree that the revised formulation is less open to subjective interpretation.
We also considered whether Amendment 3 should require a senior coroner to notify the Chief Coroner of the date when an investigation of more than 12 months is suspended, as well as the date it is completed or discontinued. On reflection we decided against this. This is because a suspended investigation is ongoing until a coroner is in a position to make a decision on whether or not to resume it. In either eventuality, the amendment already requires the coroner to notify the Chief Coroner if more than 12 months have elapsed since he or she was made aware that the death occurred.
In addition, Amendment 3 places a duty on the Chief Coroner to keep and maintain a register of the deaths which are reported to him or her under this provision. We considered whether the Chief Coroner’s register should be updated and publicly available on an ongoing basis—for example, as soon as the 12-month time limit has been reached in a particular case—but we concluded that this would be problematic for both resource and personal-privacy reasons. On personal privacy, while some families may have no objection to their loved ones’ names being displayed in such a way, others may well find it an unwelcome intrusion into their private grief. There is a risk that journalists or others may believe that it gives them licence to approach families directly to seek their views and opinions on matters relating to the death but entirely unrelated to a delayed investigation.
Government Amendment 7 stipulates that the annual report, which the Chief Coroner must submit to the Lord Chancellor under Clause 35, must include a summary for the previous year of the number of investigations that have taken more than 12 months, the reasons and any action taken. Families and others whom the coroner has determined are interested persons in a case will be aware of any reason for delay as they will be provided, under paragraph 21 of the charter for bereaved families published alongside the Bill, with three-monthly explanations of the progress or otherwise of their case. This is the most appropriate way for coroners to be accountable to interested persons for the length of their investigations, and is the most proportionate use of resources to deliver the policy behind the noble Baroness’s amendment. I hope that the House will accept the government amendment in lieu of the amendment passed on Report. I beg to move.
My Lords, I warmly thank the Minister and his department for their thoughtful and helpful response in bringing forward the amendment. There will be many grateful families. Keeping an eye on timing is so important, and, as the Minister said, so is spelling out reasons for any delay. This is a tremendous step forward and I am extremely pleased that we will see it in the Bill.
My Lords, I, too, thank the Government for the amendment. We took this point very seriously. The Bill as a whole, and this particular amendment, have helped considerably with the problem of delays. This was an important point.
Amendment 1 agreed.
Clause 14 : Investigation in Scotland
2: Clause 14, page 7, line 35, leave out subsection (6)
My Lords, government Amendments 2, 4, 12 and 31 bring us back to the important issue of investigations into the deaths of service personnel who die serving their country. We tabled the amendments following the House’s agreement to a similar amendment tabled on Report by the noble Baroness, Lady Fookes. That amendment provided for a deputy chief coroner to be responsible for monitoring investigations into the deaths of service personnel, and for the training of coroners who conduct these investigations.
The amendments reflect—and I suggest enhance—the noble Baroness’s amendment tabled on Report. Whereas the noble Baroness’s amendment would have made a deputy chief coroner responsible for service personnel investigations, the amendments confer those duties instead on the Chief Coroner. This refinement to the noble Baroness’s amendment will further strengthen the provision while retaining the spirit and motivation of her proposal. In the reformed coroner system it will be the Chief Coroner who is responsible for setting standards and training coroners to investigate particular types of deaths. It is therefore fitting for the Chief Coroner to have responsibility for training coroners who carry out service personnel investigations, and for monitoring those investigations. I hope that the noble Baroness and the House will be content with the amendment. I beg to move.
My Lords, on behalf of my noble friend Lady Fookes I thank the Government for accepting the principle of having a national figure who can monitor military inquests. I congratulate my noble friend, who unfortunately is unable to be here today, on driving the issue in Committee and on Report. We are pleased to note that government Amendment 4 covers inquests into the deaths of service personnel who are killed on active service and in training. I thank the Minister for tabling the amendment.
My Lords, as probably the only services representative in the House, I thank the Minister for the amendment, and the noble Baroness, Lady Fookes, for fighting the cause, which has given immense pleasure to the services fraternity.
My Lords, the Liberal Democrats supported the noble Baroness, Lady Fookes, in her campaign. We are very glad that the Minister has come to a very sensible conclusion.
Amendment 2 agreed.
Amendments 3 and 4
3: After Clause 17, insert the following new Clause—
“Investigations lasting more than a year
(1) A senior coroner who is conducting an investigation under this Part into a person’s death that has not been completed or discontinued within a year—
(a) must notify the Chief Coroner of that fact;(b) must notify the Chief Coroner of the date on which the investigation is completed or discontinued.(2) In subsection (1) “within a year” means within the period of 12 months beginning with the day on which the coroner was made aware that the person’s body was within the coroner’s area.
(3) The Chief Coroner must keep a register of notifications given under subsection (1).”
4: After Clause 17, insert the following new Clause—
“Monitoring of and training for investigations into deaths of service personnel
(1) The Chief Coroner must—
(a) monitor investigations under this Part into service deaths;(b) secure that coroners conducting such investigations are suitably trained to do so.(2) In this section “service death” means the death of a person who at the time of the death was subject to service law by virtue of section 367 of the Armed Forces Act 2006 (c. 52) and was engaged in—
(a) active service,(b) activities carried on in preparation for, or directly in support of, active service, or(c) training carried out in order to improve or maintain the effectiveness of those engaged in active service.”
Amendments 3 and 4 agreed.
5: After Clause 27, insert the following new Clause—
“Amendment of Treasure Act 1996
After section 8 of the Treasure Act 1996 (c. 24) (duty of finder to notify coroner) insert—
“8A Duty to notify coroner of possession of certain objects
(1) A person who—
(a) has possession of an object, and(b) believes or has reasonable grounds for believing—(i) that the object is treasure, and(ii) that notification in respect of the object has not been given under section 8(1) of this Act,must notify the Coroner for Treasure before the end of the notice period.
(2) The notice period is fourteen days beginning with—
(a) the day after he obtains possession of the object; or(b) if later, the day on which he first believes or has reason to believe—(i) that the object is treasure; and(ii) that notification in respect of the object has not been given under section 8(1) or subsection (1) of this section.(3) Any person who fails to comply with subsection (1) is guilty of an offence if—
(a) notification in respect of the object has not been given under section 8(1) or subsection (1) of this section; and(b) there has been no investigation in relation to the object.(4) Any person guilty of an offence under this section is liable on summary conviction to—
(a) imprisonment for a term not exceeding the relevant maximum;(b) a fine of an amount not exceeding level 5 on the standard scale; or(c) both.(5) In proceedings for an offence under this section, it is a defence for the defendant to show he had, and has continued to have, a reasonable excuse for failing to notify the Coroner for Treasure.
(6) If the office of Coroner for Treasure is vacant, notification under subsection (1) must be given to the Chief Coroner.
(7) This section does not apply to a person to whom section 8 of this Act applies.
(8) In this section “investigation” means an investigation under section 26 of the Coroners and Justice Act 2009.””
My Lords, I wish to speak to the amendments in my name in this group but I shall withdraw them, as the Government have tabled Amendment 6. Those members of the All-Party Archaeology Group who were involved in the work on this amendment would like to thank the Minister and his team for the assiduous work they have done to close what we believe is a loophole in the section on metal detecting and treasure. We believe that Amendment 6 meets very clearly the areas which we have raised. As it has been dealt with, we will not have to speak at any great length. I beg to move.
My Lords, I, too, welcome the amendments tabled by the Government and echo what the noble Lord, Lord Redesdale, has said about the very helpful collaborative process, not least the impressive degree of collaboration between the Minister's department and the Department for Culture, Media and Sport.
We may have a handful of minor reservations about the amendments which the Government have brought forward. I regret that auction houses are not to be brought within the scope of new Section 8A. I regret that they have judged that it was not appropriate to use the formulation of the noble Lord, Lord Redesdale, in referring to a person coming into possession rather than having property in an object because that would have had the effect of widening the scope of the measure also to include bailees, for example people to whom an object had been consigned for valuation or repair. Given that the purpose of these amendments was to ensure that, where an object should have been identified as potential treasure in the past but had not been and had got into the marketplace, it could then be restored back into the treasure process. I would have thought that we would want to spread the net widely, but that is perhaps a quibble.
I very much welcome the presumption that objects will have been found after 24 September 1997, the date on which the Act came into effect in England and Wales. I also welcome the extension of the scope of the measure to Northern Ireland. However, I am sorry that the Government did not feel able to accept the thrust of other amendments which we tabled on Report, particularly that there should be a duty on those trading in antiquities to produce documented provenance. That is an issue to which we can return in a different context on a future occasion. Meanwhile, I very much welcome the movement made by the Government in these extremely constructive and helpful amendments which they have tabled and which will greatly improve the legislative position.
My Lords, I, too, thank the Government for their very sympathetic response to these amendments, which were originally tabled by the noble Lords, Lord Redesdale and Lord Howarth of Newport. This represents a very satisfactory outcome. On behalf of the All-Party Archaeology Group, I would like to say how much we appreciate the care given by the Government to the consideration of these amendments.
However, I echo the point already made by the noble Lord, Lord Howarth of Newport, that the change in the wording of new Section 8A from,
“has possession of an object”,
in Amendment 5 to,
“acquires property in an object”,
in Amendment 6, seems to let the auction houses off the hook. I am not quite clear what their duties will be in such an instance. Perhaps the Minister could say a word about that or, if it is too complex a matter to deal with now, he could write to us later.
The same question applies to eBay. A lot of the problems have arisen from sales on eBay, and I am not entirely clear now on its status or responsibilities in these affairs. eBay is not the vendor, as I understand it, and probably does not have property in the object. I am not even certain whether eBay would have had possession of the object in the original amendment. I realise that may be going into detail that is too difficult to deal with on the present occasion but, as the noble Lord, Lord Howarth of Newport, has indicated, this area remains grey. Auction houses are not at present required to indicate where they got an object from; they are not even, as I understand it, always obliged to indicate who the vendor is. These are matters that must be dealt with on a subsequent occasion.
For the moment, we thank the Government very warmly for responding to these amendments in so constructive a manner, which is a significant step forward. I am happy to support the government amendment.
My Lords, I am very grateful to the three noble Lords who have spoken, not just for the thanks they have given to the Government for fulfilling our undertaking on Report, but for the way in which they have brought pressure on various departments of the Government to move these matters forward. It has been a model of the way in which those who want to achieve progress in their expert field decide to do so. I dare say—I get it from the gentle caveats that I have heard in the general praise—that they will be attempting to move forward in due course. Whether I am standing at this Dispatch Box when they eventually do so is a different matter.
Amendment 6 introduces a duty on acquirers of objects that may be treasure to report them to the Coroner for Treasure. The duty will apply to all those who, after the duty comes into force, acquire an object that they believe might be treasure. This might be as a gift or a bequest or through a sale. The acquirer will have a duty to report the item to the Coroner for Treasure. We are satisfied that there is a need to ensure that the system to protect cultural objects is not undermined. Acquirers will be granted a reward, as the finder would have been if he or she had reported the find. We believe that we will be able to balance the rights of acquirers with the important purpose of the treasure system of preserving the nation’s cultural heritage.
We will of course continue to carry out educational activities, telling people about the duty on finders and the new duty on acquirers, but we hope that this new duty, with criminal sanctions attached, will deter that small minority of people who sought to exploit the loophole. As with the duty on finders to report an object, the maximum period for prosecution will be three years.
Amendments 33, 34 and 35 allow the Secretary of State to designate persons to whom reports of treasure finds or acquisitions can be made instead of the Coroner for Treasure. We will need to consult in relation to this, but it is hoped that we will be able to designate finds liaison officers as designated officers to whom reports may be made. Such officers will then inform the Coroner for Treasure of the report.
Taking all these amendments into account, we now have a comprehensive package of reforms to the treasure investigation system. The Coroner for Treasure will form the centre of the new system, and finders and acquirers can be sure that objects that may be treasure will be investigated thoroughly. We believe that these improvements to the system will also show the public that the cultural heritage of this country matters to us. I repeat how grateful we are for the contributions of the three noble Lords who spoke today.
As to the use of the word “property”, I have a form of words here, but I think it would be better if I wrote to the noble Lords about that matter.
I am conscious that I did not give time for the Opposition to speak. I do not know if they wanted to. Before I invite the noble Lord, Lord Redesdale, to withdraw his amendment it is perhaps fitting that on the day when we come to this agreement about the future, the Metro, which I know is widely read by Members of this House, has an article headlined:
“Seven steps to finding £1m in gold”.
It tells the story of:
“An amateur treasure hunter using his metal detector for the first time”,
“discovered a £1 million Iron Age hoard just seven paces from where he parked his car”.
This was not in England or Wales but in Scotland, but it is good news for him and perhaps good news for the House.
My Lords, I would like to say a few words about the use of the word “property” with regard to auction houses. I warmly support what the noble Lord, Lord Renfrew, said about the duty of auction houses to investigate the provenance of what they are selling. This relates not only to the Bill but to the question of looted property which the House considered a few months ago. This is a matter of great importance, and I hope that it will come back to the House at some later stage.
My Lords, I certainly agree that it is a matter of great importance, but it would be better on this occasion if I wrote to all those who have taken part in this debate.
My Lords, I thank the Minister for that response. I, too, noticed the article in the Metro this morning. Anyone can go to the British Museum and see the great Staffordshire hoard. I say that only because it was looted from Northumbria, and I very much hope that it will be repatriated to that great county and not stay in Staffordshire. Although I know that museums in Staffordshire are fighting to get hold of it, it is ours and we want it back. On that basis, I beg leave to withdraw the amendment.
Amendment 5 withdrawn.
6: After Clause 29, insert the following new Clause—
“Duty to notify Coroner for Treasure etc of acquisition of certain objects
(1) After section 8 of the Treasure Act 1996 (c. 24) there is inserted—
“8A Duty to notify coroner of acquisition of certain objects
(1) A person who—
(a) acquires property in an object, and(b) believes or has reasonable grounds for believing—(i) that the object is treasure, and(ii) that notification in respect of the object has not been given under section 8(1) or this subsection,must notify the Coroner for Treasure before the end of the notice period.(2) The notice period is fourteen days beginning with—
(a) the day after the person acquires property in the object; or(b) if later, the day on which the person first believes or has reason to believe—(i) that the object is treasure; and(ii) that notification in respect of the object has not been given under section 8(1) or subsection (1) of this section.(3) Any person who fails to comply with subsection (1) is guilty of an offence if—
(a) notification in respect of the object has not been given under section 8(1) or subsection (1) of this section; and(b) there has been no investigation in relation to the object.(4) Any person guilty of an offence under this section is liable on summary conviction to—
(a) imprisonment for a term not exceeding 51 weeks;(b) a fine of an amount not exceeding level 5 on the standard scale; or(c) both.(5) In proceedings for an offence under this section, it is a defence for the defendant to show that he had, and has continued to have, a reasonable excuse for failing to notify the Coroner for Treasure.
(6) If the office of Coroner for Treasure is vacant, notification under subsection (1) must be given to an Assistant Coroner for Treasure.
(7) In determining for the purposes of this section whether a person has acquired property in an object, section 4 is to be disregarded.
(8) For the purposes of an investigation in relation to an object in respect of which notification has been given under subsection (1), the object is to be presumed, in the absence of evidence to the contrary, to have been found in England and Wales after the commencement of section 4.
(9) This section has effect subject to section 8B.
(10) In this section “investigation” means an investigation under section 26 of the Coroners and Justice Act 2009.
(11) In its application to Northern Ireland this section has effect as if—
(a) in subsection (1), for “Coroner for Treasure” there were substituted “coroner for the district in which the object is located”; (b) in subsection (3)(b), for “investigation” there were substituted “inquest”;(c) in subsection (4)(a), for “51 weeks” there were substituted “three months”;(d) in subsection (5), for “Coroner for Treasure” there were substituted “coroner”;(e) in subsection (6), for the words from “Coroner for Treasure” to “Assistant Coroner for Treasure” there were substituted “coroner for a district is vacant, the person acting as coroner for that district is the coroner for the purposes of subsection (1)”;(f) in subsection (8), for “investigation” there were substituted “inquest” and for “England and Wales” there were substituted “Northern Ireland”;(g) in subsection (10), for ““investigation” means an investigation under section 26 of the Coroners and Justice Act 2009” there were substituted ““inquest” means an inquest held under section 7”.”(2) In section 10 of that Act (rewards), in subsection (5) (persons to whom reward may be paid), at the end insert—
“(d) any person who gave notice under section 8A in respect of the treasure.”(3) In relation to an offence under section 8A of that Act (inserted by subsection (1) above) committed before the commencement of section 280(2) of the Criminal Justice Act 2003 (c. 44), a reference in the inserted section to 51 weeks is to be read as a reference to three months.”
Amendment 6 agreed.
Clause 35 : Reports and advice to the Lord Chancellor from the Chief Coroner
7: Clause 35, page 17, line 19, at end insert—
“( ) the number and length of—(i) investigations in respect of which notification was given under subsection (1)(a) or (b) of section (Investigations lasting more than a year), and(ii) investigations that were not concluded or discontinued by the end of the year and in respect of which notification was given under subsection (1)(a) of that section in a previous year,as well as the reasons for the length of those investigations and the measures taken with a view to keeping them from being unnecessarily lengthy;”
Amendment 7 agreed.
8: Clause 35, page 17, line 21, at end insert—
“( ) the matters recorded under paragraph 3A of Schedule 5;”
My Lords, we return to the powers in paragraph 3 of Schedule 5 for a coroner conducting an investigation to enter and search land or premises and seize any items or inspect or take copies of any documents.
On Report, the noble and learned Baroness, Lady Butler-Sloss, spoke very eloquently of her concerns and those of the Coroners’ Society about the workability of these powers. In essence, she was concerned that the scope of the powers was insufficient as, in the time it would take to obtain written authorisation from the Chief Coroner, valuable evidence might be lost, which could affect many coroner investigations. She therefore tabled amendments to Schedule 5 on Report to remove the requirement for Chief Coroner authority and to enable coroners to authorise the police and other specified persons to enter and search premises on their behalf.
With the Minister, my honourable friend Bridget Prentice, I have subsequently had a very useful meeting with the noble and learned Baroness and the Coroners’ Society. I am pleased that, as a result of that meeting, we have been able to agree a way forward.
First, these government amendments remove the requirement for authorisation from the Chief Coroner, or from a senior coroner nominated by the Chief Coroner to give authorisation, to be in writing, which will enable authorisation to be sought and given over the telephone. Secondly, they add a requirement for the person giving authorisation to make a record of why they agreed the authorisation. Finally, they add a requirement for the Chief Coroner’s annual report to include a summary of the reasons given for authorisations granted in the calendar year to which the report relates. This will help to ensure public transparency for the use of these powers. I beg to move.
First, I thank the Minister for seeing a representative of the Coroners’ Society and myself, and, as far as they go, for the government amendments. Taking out the words “in writing” is a help. But the senior coroners remain very concerned that they are trained to be coroners and they do not have the power to search or to seize. That is slightly odd because, on the assumption, which may be brave of me, that the Times is accurate, a few days ago, the Times stated:
“Councils and other bodies had access to asset recovery powers before but only with the authorisation and involvement of the police. Now they will be able to act independently of any police force or law enforcement agency”.
Apparently, such groups as the Gangmasters Licensing Authority, councils, Counter Fraud and Security Management Service, the Gambling Commission, the Rural Payments Agency, the Vehicle and Operator Services Agency, Transport for London and Royal Mail, among others, will be able to search premises and seize, none of them probably being either lawyers or trained to do this, whereas coroners who are trained will not have those powers.
However, the coroners recognise that this is as far as the Government would go. They remain concerned and I want it on the record that they are concerned, and they will look to see what problems arise from time to time through the failure to get their approval, which will not now have to be in writing, in time. I thank the noble Lord for the amendment as far as it goes, but he needs to know that the coroners retain considerable concerns.
Amendment 8 agreed.
9: Clause 35, page 17, line 22, leave out “Schedule 5” and insert “that Schedule”
Amendment 9 agreed.
Clause 43 : Treasure regulations
Amendments 10 and 11 not moved.
Clause 47 : Interpretation: general
12: Clause 47, page 25, line 35, at end insert—
““active service” means service in—
(a) an action or operation against an enemy (within the meaning given by section 374 of the Armed Forces Act 2006 (c. 52)),(b) an operation outside the British Islands for the protection of life or property, or(c) the military occupation of a foreign country or territory;”
Amendment 12 agreed.
13: After Clause 49, insert the following new Clause—
“Public funding for advocacy at certain inquests
(1) Schedule 2 to the Access to Justice Act 1999 (c. 22) (Community Legal Service: excluded cases) is amended as follows.
(2) In paragraph 2, at the end insert “, and
(5) proceedings at an inquest under Part 1 of the Coroners and Justice Act 2009 to which sub-paragraph (1), (2) or (3) of paragraph 4 applies.”
(3) After paragraph 3 there is inserted—
“4 (1) This sub-paragraph applies to an inquest into the death of a person who at the time of the death—
(a) was detained at a custodial institution or in a custody area at a court or police station,(b) was detained at a removal centre or short-term holding centre,(c) was being transferred or held in pursuance of prison escort arrangements or immigration escort arrangements,(d) was detained in secure accommodation,(e) was a detained patient, or(f) was in service custody.(2) This sub-paragraph applies to an inquest into the death of a person that occurred in the course of the person’s arrest by a constable or otherwise in the course of the execution or purported execution of any functions by a constable.
(3) This sub-paragraph applies to an inquest into the death of a person who at the time of the death was subject to service law by virtue of section 367 or 369(2)(a) of the Armed Forces Act 2006 and was engaged in active service.
(4) Paragraph 2(5) does not authorise the funding of the provision of services to anyone who is not an interested person within section 46(2)(a) of the Coroners and Justice Act 2009.
(5) In this paragraph—
“active service” means service in—
(a) an action or operation against an enemy (within the meaning given by section 374 of the Armed Forces Act 2006),(b) an operation outside the British Islands for the protection of life or property, or(c) the military occupation of a foreign country or territory;“custodial institution” means a prison, a young offender institution, a secure training centre or a remand centre;
“detained patient” means a person who is detained in any premises under Part 2 or 3 or section 135(3B) or 136(4) of the Mental Health Act 1983;
“immigration escort arrangements” means arrangements made under section 156 of the Immigration and Asylum Act 1999;
“prison escort arrangements” means arrangements made under section 80 of the Criminal Justice Act 1991 or under section 102 or 118 of the Criminal Justice and Public Order Act 1994;
“removal centre” and “short-term holding facility” have the meaning given by section 147 of the Immigration and Asylum Act 1999;
“secure accommodation” means accommodation, not consisting of or forming part of a custodial institution, provided for the purpose of restricting the liberty of persons under the age of 18.”
My Lords, these amendments would extend the scope of the community legal service in England and Wales to cover advocacy at inquests into deaths of military service personnel who die on active service. They would also put the Legal Services Commission’s ability to fund inquests into deaths in state custody and inquests into deaths that occurred in the course of a police action or arrest on a statutory footing. The amendments cover only advocacy because legal advice and assistance under the legal help scheme is already available.
Currently, legal aid for advocacy at inquests into the deaths of military personnel on active service is outside the ordinary scope of civil legal aid, but it is nevertheless available under the exceptional funding procedure and is granted, sadly, on a regular basis. The current procedure requires that applications are considered by the Legal Services Commission and Ministers before they can be granted.
The amendments would bring these inquests within the ordinary scope of civil legal aid for the first time. The practical effect of the amendments will be to simplify and speed up the application process as Ministers will not need to approve individual applications before funding can be granted. Funding for inquests into deaths in custody and inquests into deaths that occurred in the course of a police action or arrest is already in scope, but the amendments put that on a statutory footing.
This change is intended to provide funding for a legal representative for a family or families, but not separate representatives unless there is a conflict of interest. Funding for advocacy and legal help at these inquests will continue to be subject to financial means tests and contributions towards legal aid costs. Presently, the financial eligibility limits and contributions towards costs can be waived and it is our intention to amend the relevant secondary legislation to ensure that the Legal Services Commission continues to have the power to waive the means test and contributions where that is appropriate.
I know that some noble Lords, including the noble Lord, Lord Thomas of Gresford, have called for this funding to be provided without being subject to means limits. It is a general principle of the legal aid scheme that those who can afford to pay for their legal expenses should be expected to do so. Indeed, means-free legal aid is provided only in very narrow circumstances, such as for those detained under mental health legislation or for parents engaged in child protection cases and at risk of losing their children. In domestic violence cases where people are seeking protection from harm, the eligibility limits can be waived. I do not consider that means-free funding is appropriate for these inquests, but it is right that financial eligibility limits and contributions should be waived where appropriate.
All legal aid funding is subject to the funding criteria set out in the funding code created under Section 8 of the Access to Justice Act 1999. The current funding code criteria do not apply to inquests, which are instead considered against the exceptional funding criteria. We therefore need to introduce a new section into the funding code to ensure that applications for representation at these inquests can be considered properly against relevant criteria, as they are now. We will consult with key stakeholders on this in the coming weeks. The change to the funding code will require the affirmative approval of both Houses and therefore will be considered further by Parliament in due course.
Before I move the government amendment, I thank the noble Lord, Lord Thomas of Gresford, for his efforts on this matter. I think he will say that he has not achieved all that he set out to do, but he has achieved quite a lot. I beg to move.
Amendment 14 (to Amendment 13)
14: After Clause 49, line 8, at end insert “at the discretion of the coroner”
My Lords, I am grateful to the Minister for the amendment he promised on Report and for what is included in it. However, he will remember that at that stage he also undertook to hold a meeting with the noble Lord, Lord Thomas of Gresford, which I would have attended but unfortunately it was not offered. Having heard about all the meetings that the Minister has had since Report, I can only presume that there was no time to fit this one in. Had there been a meeting, I would have used it to suggest my amendment rather than perforce have to put it forward in the House. I would have liked to have discussed it with the Minister before the government amendment was tabled.
I remind the House that the purpose of this Bill as set out in the Explanatory Notes is to establish more effective, transparent and responsible justice and coroners’ services for victims, witnesses, bereaved families and the wider public. In March 2008 in another place, the right honourable Harriet Harman said:
“We need to give bereaved relatives at inquests a real sense of fairness and support … it is important to improve the Coroner Service so that bereaved relatives can get answers to their questions”.—[Official Report, Commons, 20/3/08; col. 1088.]
On an earlier occasion she said:
“If bereaved relatives, with no legal representation, turn up on the steps of a coroner’s court and find that the Ministry of Defence and the Army”,
or the Ministry of Justice and the Prison Service,
“have a great battery of solicitors and QCs, they cannot help but feel that the position is unfair”.—[Official Report, Commons, 13/3/08; col. 420.]
During Second Reading in another place, the right honourable Jack Straw said:
“Successive governments have resisted the notion that legal aid should be made available. There are exceptions to that—I have been party to agreeing to them … but there are some complexities. We must also consider the overall issue of cost, in the context that the legal aid budget for England and Wales is now the same amount that we spend on prisons … but I understand the concern that has been well expressed by Members in all parts of the House”.—[Official Report, Commons, 26/1/09; col. 27.]
At present, only a few families are awarded funding for representation by the Legal Services Commission, and then only following a lengthy, complicated, intrusive and time-consuming application process. Therefore I am particularly glad that the Minister has said that the process is to be simplified. In addition, the exceptional funding may be awarded if the inquest requires the participation of the deceased’s parents or if the state’s obligation to investigate the death has not been fulfilled through other processes, including police investigations and internal inquiries. But as the Minister indicated, very few applications have been granted. Of the 69 applications in 2007-08, only 12 were agreed; and of the 104 applications in 2006-07, only 16.
My amendment to the Minister’s amendment takes that exceptional funding a stage further and suggests that, because they know the circumstances of each inquest, coroners should be required to decide and recommend whether every family listed in the Minister’s amendment should be entitled to state-funded legal representation. Such decisions would be based on, for example, the level of representation the state will have at the inquest, and the likelihood of the inquest containing issues that are so complex that the bereaved family is likely to be at a disadvantage. I had hoped to be able to expand on this but I am advised that that is not possible at Third Reading or in the context of the Access to Justice Act 1999, cited in the Minister’s amendment, so a fuller amendment may be tabled in the other place.
An inquest is an extremely traumatic time for the bereaved family, particularly when the death of a loved one occurs while in the hands of the state and, as is all too often the case, years rather months have elapsed since the death. I admit that I am more familiar with such occurrences in the military or in prisons than in police custody, but on more than one occasion in this House I have referred to the paucity of information made available to families before inquests, leading to their having false expectations of what they may learn there.
Improving that situation is of course outside the scope of the Bill. However, put at its starkest, what is at stake here is trust in the Government’s word. Either it means that they intend to provide effective, transparent and responsible justice for bereaved families whose loved ones have died at the hands of the state—which, in equity, should include parity of legal representation with that provided by and for the state—or it does not, in which case they should amend or withdraw the described purpose of the Bill. Of all the cases for means-testing being dropped, this is one, because we are talking about deaths in which the state is the principal stakeholder. I beg to move.
My Lords, I am grateful to the Minister for acknowledging the efforts made from these Benches to obtain a right to legal aid at inquests. However, the Minister should acknowledge that hand in hand, marching side by side, has been the noble Lord, Lord Ramsbotham, who has been extremely effective in putting forward submissions similar to ours.
As the Minister pointed out, the amendment does not go as far as we would like. At Second Reading I said I would have liked to have had legal aid as a matter of right in every inquest where the state is represented—not in the categories set out here, but where there is representation for other parties seeking to diminish the liability of the organ of the state involved. However, I am grateful to the Minister for the distance the Government have moved.
I am concerned about the change in wording between what he said to us, both in discussion and in Committee, to the effect that, although as a matter of principle the legal aid would have to be means-tested, he was,
“mindful that it would be appropriate to waive that, save in exceptional circumstances”.
When I received a letter from the Minister dated 3 November, the wording had altered slightly but possibly significantly. He wrote:
“This funding will be means tested, but the Legal Services Commission will have the power to waive the means test limits where appropriate”.
That was the wording that the Minister used today—not that it will be waived “save in exceptional circumstances”, but that it will be waived “where appropriate”. I should be glad if the Minister would explore which wording we are to rely on.
It may be helpful to your Lordships if I give an illustration of what I mean. A lady called Moyra Stockill died tragically in Middlesbrough police station on 10 December 2003, having been a patient at St Luke’s Hospital, where she had been committed under the Mental Health Act. She had suffered a mental illness due to bereavement after the deaths of her husband and a younger sister and she had developed a habit of putting things into her mouth. One problem in the hospital was that she pushed paper tissue into her mouth, which had to be extracted by means of tweezers and a suction pump. When, allegedly, she became violent towards staff in the hospital, the nurse decided to call the police. However, a male nurse pretended to be a policeman and spoke to her as though he were a policeman before the police arrived. Anyway, she was taken to Middlesbrough police station, where there was a failure of communication; there is a dispute between the police and the hospital over what happened. She was put in a cell with a toilet, where she stuffed toilet paper down her throat and died. Nobody knew about it.
That was in 2003. The inquest was supposed to take place on 19 October 2009—six years later. Throughout that period, her daughter, who is a single parent with very little income, was subjected to the stress of the constant delay due to the considerations of the CPS and so on about what was going on. She applied to the Legal Services Commission for funding and the waiving of the eligibility requirements in accordance with the procedures that have pertained until now. Eventually, on 18 March this year, it was decided that she could have legal aid to support advocacy at the hearing but that she would have to meet the costs of £4,000 that she had incurred up to that date. Her only income was an inheritance from her mother who had died. She was in the position of having to pay £4,000 from the inheritance of a mother who, by one means or another, had died in the circumstances that I have mentioned.
At the inquest, there were 12 legal representatives, including six counsel representing police officers, the care trust, the medical professionals and so on—all paid for by us, the taxpayers. It is the taxpayer who pays for the state to be represented, while this poor lady is faced, I believe, with a £4,000 payment. If ever there were circumstances where someone should have had full legal aid to cover the costs of the proceedings, these were they.
I come back to the wording used by the Minister, who said in debate that,
“it would be appropriate to waive”,
a means test,
“save in exceptional circumstances”.—[Official Report, 21/10/09; col. 748-49.]
That was changed, possibly under pressure from the Legal Services Commission, to the means test being waived “where appropriate”. I look forward to hearing what the Minister has to say about that.
I am pleased to hear that there will be a new section of the funding code, which will be brought in by order after consultation with the parties. What all these families have found to be so difficult in applying for exceptional legal aid in the circumstances that have pertained until now is filling out the forms and getting over all the applications and representations that have to be made. If there is to be a new section of the funding code, I hope that it will simplify all these procedures, and make it easy for a family to make the application for legal aid and to set out all the circumstances of the case.
I have every sympathy with the amendment moved by the noble Lord, Lord Ramsbotham, who points out that decisions like this would be helped by a direction or order of the coroner who has read the papers, and who knows precisely what issues are involved as well as how the other parties to the inquest will be represented.
I know that there is a lot of cavilling in that, but it is an important issue. In particular, I am sure that the Minister will tell me whether the means test will be waived, save in exceptional circumstances, as a matter of course.
My Lords, I have a brief question in support of the amendment of the noble Lord, Lord Ramsbotham, to give discretion to the coroner. As I understand it, the position is that in human rights terms we are looking at Article 2 of the convention on the right to life and the need for procedural fairness, and at Article 6, essentially the due process clause. It is clear that the principle of equality of arms, a principle well known under the convention and in common law, applies here. We are amending a schedule to what is described as an “access to justice” statute, and access to justice involves equality of arms. Is it not to be said strongly in favour of the noble Lord’s amendment that it would give the coroner the necessary discretion to allow them, in the circumstances of the case, to decide how the principle of equality of arms would apply when dealing with access to justice to ensure that there was not the kind of gross imbalance that my noble friend has just described? Without that discretion, how will the principle apply to the government scheme as amended today?
My Lords, I thank the Government for bringing forward their amendment. We accept that there should be equality of arms between public bodies and the families of individuals who have died while in custody of the state. It has long been seen as an iniquitous situation that government departments have been able to draw on public funds for their legal support while families have not, and we think that the Government have done the right thing.
While we have considerable sympathy for the amendment of the noble Lord, Lord Ramsbotham, however, sadly we have to point out, in view of the constraints on the budget, particularly that of the Ministry of Justice, that there are considerable cost implications in his amendment and we would therefore find it difficult to support it at this late stage of the Bill. No doubt he will find other ways of raising this subject in future and will keep up the pressure on the Government, but because of those cost implications I regret that we are unable to support him at this stage.
I thank noble Lords who have spoken, particularly the noble Lord, Lord Ramsbotham. I am duly corrected; I should of course have praised him too for the part that he has played in moving the Government as far as they have gone.
I am afraid, however, that I cannot accept his amendment on behalf of the Government. As I understand it, his intention is that legal aid should be available in the cases that we are talking about at the discretion of the coroner. I cannot accept that for the following reasons. The decision will be made against the relevant criteria, which will reflect the position now, when legal aid for representation at inquests is considered under the exceptional funding procedure. The current guidance states that one of the matters to be considered is:
“Any views, concerning the necessity of representation, expressed by the coroner, although these are not determinative”.
We intend to replicate that in the new arrangements.
As I understand it, there are currently no situations in civil cases where legal aid is granted before a hearing by judicial office holders, and we see no reason to give greater power in this regard to coroners than to the wider judiciary. Apart from anything else, different coroners may well take different views on the value of representation and, for example, on financial eligibility issues.
I know that the current secretary of the Coroners’ Society, for example, would be against the noble Lord’s amendment. He has said:
“I never support or influence legal aid applications. The means test is factual and the merits test is a matter for the decision maker and fundholder … Further in inquisitorial proceedings it is still important to be seen to be impartial. Though Circuit and District Judges deal with legal aid they are unlikely to also hear the case”.
A past secretary of the Coroners’ Society has said:
“I don’t think the Coroners’ Society has an agreed position, in that it has never been formally debated. Individual coroners will have their own view … In the past, it has sometimes been suggested that coroners should ‘support’ the legal aid application submitted by properly interested persons in Art 2 cases but I have always been uncomfortable with this in that what may be a ‘simple’ case to one coroner may be complex to a less experienced one and so any letter in support will be very subjective”.
The suggestion of the noble Lord, Lord Ramsbotham, goes much further, potentially leaving coroners exposed to a further area for judicial review. We are looking for as clear, fair and consistent a system as possible, with applications being considered against published criteria. The noble Lord’s amendment would not achieve that aim. If I were being pernickety, I would say that his drafting might not achieve his apparent objective. Adding,
“at the discretion of the coroner”,
would involve a new stage of requiring the coroner’s view and would be likely to restrict the availability of legal aid to cases where the coroner asked for it. However, that wording would not make the coroner’s decision determinative, as it would still be subject to the criteria in the funding code. I therefore invite the noble Lord to withdraw his amendment today. I have no doubt that he will have other ways of trying to bring it forward on a later occasion.
I hope that the noble Lord, Lord Thomas, will be relieved to hear that I stand by what I said on Report, but we will consult on that when we consult on the regulation. I hope that in my response to the noble Lord, Lord Ramsbotham, I dealt with the matter raised by the noble Lord, Lord Lester.
I am grateful to the Minister and the noble Lord, Lord Thomas of Gresford, for their kind words. I listened with great care to what was said. I have been advised that if I were to propose a vote in this House at this time, it would preclude the opportunity for the other House to discuss this matter when the Bill returned to them. I think that it is a matter of sufficient seriousness for me not to hamper that process. Therefore, conscious that the amendment which I have proposed is not as long or as full as I would have liked and that there is an intention to table it in the other House, I beg leave to withdraw it.
Amendment 14 (to Amendment 13) withdrawn.
Amendment 13 agreed.
15: After Clause 68, insert the following new Clause—
“Slavery, servitude and forced or compulsory labour
(1) A person (D) commits an offence if—
(a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or(b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour.(2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour).
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both.(4) In this section—
“Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950;
“the relevant period” means—
(a) in relation to England and Wales, 12 months;(b) in relation to Northern Ireland, 6 months.”
My Lords, at Report stage I accepted in principle the case made powerfully by the noble Baroness, Lady Young of Hornsey, and others that there should be a bespoke criminal offence to tackle modern-day slavery and forced labour. Further points have been made to the Minister and me in correspondence, to which I intend to speak at some length.
These government amendments, and in particular the new clause to be inserted by Amendment 15, will create a new offence of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour. The offence will be anchored in Article 4 of the European Convention on Human Rights. The terms “holds another person in slavery or servitude” and “requires another person to perform forced or compulsory labour” would be defined in accordance with the prohibitions in Article 4, including the exceptions that that article contains.
This follows the precedent set by the offence of trafficking people for exploitation in Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which includes behaviour contrary to Article 4 as one form of prohibited exploitation. We believe that this meets the need that has been identified and provides a consistent and coherent approach.
There are exceptions under Article 4 which will also automatically be exceptions in the offence. Work done in the course of lawful detention or military service covering emergencies or life-threatening situations and work or service which forms part of normal civic obligations will be exempt. The new offence will attract a maximum penalty of 14 years’ imprisonment to reflect its seriousness.
The behaviour that the new offence prohibits is holding another person in slavery or servitude or requiring another person to perform forced or compulsory labour where the offender either knew or ought to have known that the person was being held or required to perform labour in such circumstances. Broadly speaking, the offence will require proof of a relationship of coercion between the defendant and the worker, and the circumstances will need to be such that the defendant knew that the arrangement was oppressive and not truly voluntary or had deliberately turned a blind eye to that fact. Precisely what constitutes slavery, servitude and forced or compulsory labour will be determined by the courts using existing case law on Article 4 of the European Convention on Human Rights and Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as it develops. In the vast majority of cases, we do not anticipate any difficulty for the courts in deciding whether the behaviour that they are asked to consider amounts to prohibitive behaviour under the new offence. In addition, we anticipate that sentencing guidelines will include a range of factors which will provide an indication of the relative seriousness of the prohibited behaviour. We would expect these to draw on the types of indicators in the International Labour Organisation’s conventions.
The CPS routinely issues legal guidance on offences to prosecutors which is freely available on the internet. It already publishes guidance on the trafficking-for-exploitation offence in Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. One of the ways in which that offence can be committed is where the purpose of the trafficking is exploitation, contrary to Article 4. The guidance refers prosecutors to the case of Siliadin v France, July 2005, stating:
“The evidence showed the applicant, an alien who arrived in France at the age of sixteen, had worked for several years for the respondents carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 am to 10 pm, without receiving any remuneration. She was obliged to follow instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased. The Court unanimously held that there has been a violation of Article 4 of the Convention”.
We anticipate that separate guidance will be issued in relation to the new offence, drawing on the same case law. We also expect that the police will arrange appropriate training for officers. We will work with stakeholders, the public and employers among them, to raise awareness of the new offence.
The noble Baroness asked when the offences will come into force. We intend that it should be as soon as practicable, but we need time to make the necessary arrangements for training and raising awareness. I cannot realistically promise that the offence will be in force in six months’ time, but I hope that it will. There is much to be done in the interim, and a range of organisations will need to be involved. I assure the noble Baroness that we will do our best; we will not be dragging our heels. I beg to move.
I thank the Government for introducing this amendment, which corrects a historical anomaly, whereby we have not in this country made slavery and forced labour a criminal offence. I am glad also that the Minister took the time to address each of my points around guidelines and training et cetera. I take the point about not being able to guarantee the commencement of the offence, but I hope, as the Minister stated clearly, that we will be moving to get the training guidelines off the ground as quickly as possible so that we can get the offence on the books.
I think that this is admirable. The Minister’s speech is very important and when it is read its importance will be still more appreciated. The amendment fulfils the positive obligation on the United Kingdom under the convention. The reference to ILO standards and other matters is also most welcome, and I congratulate the Government and the noble Baroness, Lady Young, who was the original architect.
As one who supported my noble friend’s original amendment, I thank the Government warmly for this, and for remaining in contact during the coming period of consultation with the organisations that put time into this debate. I make only one comment. Under existing legislation there have been very low rates of conviction. I hope that the new offence will to some extent make up for that, in conjunction with Article 4 and the asylum and immigration Act 2004.
My Lords, I congratulate the noble Baroness, Lady Young, on pursuing this so successfully, and I thank the Government for listening to her arguments.
My Lords, on the point made by the noble Earl, Lord Sandwich, about prosecution rates, I hope that he picked up in my speech the positive commitment to training in enforcement and raising awareness. I hope that that will mean either a good rate of prosecution or, even better, a greatly diminished occurrence of the offence.
I thank the noble Baroness for her pursuit of this point, along with the organisations and the other noble Lords who supported her. I thank noble Lords for the time that they took with the Bill team. I think that I can speak on behalf of all noble Lords involved in thanking the Bill team for the time that they took in developing this response and, for a non-lawyer, the particularly elegant response that they produced.
Amendment 15 agreed.
16: After Clause 70, insert the following new Clause—
“Abolition of blasphemy in Northern Ireland
The offences of blasphemy and blasphemous libel under the common law of Northern Ireland are abolished.”
I should make it clear that I move this amendment not with any intention of dividing the House or, probably, of disagreeing with the Government’s position. The reason for bringing it back at Third Reading is that when we debated this on 28 October—together with our decision to abolish the common-law offences of sedition and seditious, defamatory and obscene libel in England, Wales and Northern Ireland—I then raised a question about the other common-law offence emanating from the Star Chamber, namely blasphemous libel, and pressed for that to be abolished, too, in Northern Ireland. It is a reserved matter and, therefore, one that can be dealt with only by the Westminster Parliament. The Minister kindly concluded the debate by offering to relay to the Minister of State at the Northern Ireland Office the points that I and other speakers had made. I am grateful to the Minister for having written to me on 3 November and for having met with me and his officials. It would be helpful to have him on the record with his response.
I shall make a couple of points. I perfectly understand that devolution and the devolution settlement is extremely important and that, when criminal law is transferred to Northern Ireland, it will be for the Northern Ireland Assembly, subject to the general law regulating the Assembly, to debate the issue of blasphemy. The reason why it remains my belief that at this stage it would be preferable to abolish blasphemy on this side of the Irish Sea and in Northern Ireland relates to my own experience in a case in which I must declare a professional interest. I acted for the Family Planning Association for Northern Ireland against the Department of Health, seeking guidance to be given to doctors, nurses and women and girls about the lawful termination of pregnancies in common law. The Northern Ireland Court of Appeal, in a unanimous judgment, required the Government to give that guidance. After a couple of years the guidance was given, but the Northern Ireland Assembly, having received this order of the Court of Appeal and the guidance of the Government, descended into a long political wrangle, seeking to frustrate the decision of the Court of Appeal and of the Northern Ireland Department of Health.
It would be regrettable, when we do not have the benefit of a Court of Appeal Northern Ireland judgment or a decision of the Northern Ireland Government, were anything similar to happen here. It would be regrettable because, south of the border in the Irish Republic, there has been a complete shambles over blasphemy whereby, owing to de Valera’s 1937 constitution, the present Government of the republic have reintroduced the offence of blasphemy by statute this summer in a most curious way, after their own supreme court decided that it was unenforceable and there to protect only the Church of England.
I have two final points. First, Northern Ireland already has a very strong law on incitement to religious hatred, going back to 1987. Secondly, our rights as citizens of the United Kingdom of Great Britain and Northern Ireland should not vary on fundamentals according to which part of the territory we are in. That I believe to be a profoundly important conservative and unionist principle—that we do not wish to see the rights of citizens of the UK dependent on where we happen to be at any particular time. Here there are rights about freedom of religion and free speech. It would be most unfortunate if that were not to continue.
I am heartened by a paragraph in the letter to me from the noble Lord, Lord Bach, in which he talks about enabling,
“a future change in the law at the appropriate time”.
I seek an assurance that the Government intend, with all deliberate speed, to secure this change in Northern Ireland, taking account of any local debates and discussions. I beg to move.
My Lords, at the last stage I made it clear that the view from these Benches was that this was a matter that should be left to the Northern Ireland Assembly to deal with in due course. Despite listening to the blandishments of the noble Lord, Lord Lester, that remains our view, and I do not think that I can add anything further to the debate.
My Lords, I want to make a few observations on this matter. I have noted that the noble Lord, Lord Lester, said that he does not intend to divide the House on this issue. However, I would like to make a few brief remarks. In my opinion, the amendment has a secularising agenda. Before the blasphemy law was repealed in England, the Government held a consultation with the Church of England. I am aware of no such consultation being held with the churches in Northern Ireland in relation to the amendment by the noble Lord, Lord Lester.
I am sure that noble Lords are aware that Christianity plays a more prominent role in Northern Ireland society than in the rest of the United Kingdom. Research carried out by the relief agency Tearfund and published on the BBC News website in April 2007 found that 45 per cent of people in Northern Ireland are regular churchgoers. That compares with 15 per cent in other regions of the United Kingdom. A survey of young people in 2007, carried out by the CBBC programme “Newsround”, found that 95 per cent of young people in Northern Ireland believed in God, and that 65 per cent of Northern Ireland children prayed most days.
Abolishing the offence of blasphemy does not demonstrate neutrality; rather, it contributes to a wider campaign of imposing a secular ideology, which would actually be hostile to religion. There is no neutral ground here. Every society has some cherished beliefs that it protects in law. The amendment would remove the offence of blasphemy from law at the same time as the Government are increasingly adopting hate-speech laws which are, in a sense, a form of replacement.
Christianity has profoundly influenced society in Britain and Ireland. Over the centuries, the Christian worldview has given us individual liberty and parliamentary democracy. Christians have been to the forefront of humanitarian endeavours; we need only call on such names as Wilberforce, Shaftesbury and Josephine Butler. I am not aware of a single political party or church denomination in Northern Ireland calling for the offence of blasphemy to be overturned, and certainly none of the major churches—or indeed the minor ones—have been consulted on this. I quite agree with those who say that the best place for this issue, and the best arbiter on it, would be the Northern Ireland Assembly. It is in place, it has 108 Members, and it otherwise crosses all the straddles of political opinion in Northern Ireland.
My Lords, perhaps I might make a short observation on the amendment by the noble Lord, Lord Lester. He said that he wanted the rights of citizens throughout the United Kingdom to be uniform, wherever in the United Kingdom they happened to be. However, he will surely acknowledge that since Scottish devolution the rights of people north and south of the border have, at times, varied quite considerably. There are the rights of drinkers and of foxhunters, to name but two. They may coincide temporarily, but after the next election they may once again vary. Perhaps the noble Lord will take that on board.
My Lords, first I declare that I am a Member of the Northern Ireland Assembly, and noble Lords will surely be aware that, since its establishment, considerable progress has been made in achieving a stable and peaceful society there. Currently, a Bill on policing and justice is being considered by all the parties in Northern Ireland, and when there is public confidence there is the likelihood of that being devolved to the Northern Ireland Assembly. Therefore, I firmly believe that this issue should be considered by all 108 Members of the Assembly, who will then have the opportunity to consult with all of their constituents and, obviously, come to make a well-informed decision on this. I therefore oppose the amendment.
My Lords, the noble Lord, Lord Lester, tabled similar amendments to these on Report to bring about the abolition of blasphemy and blasphemous libel in Northern Ireland. Members of the House understood, of course, the concern that he raised about what appears to be the law, even if there is no record of either of those offences ever having been prosecuted in Northern Ireland. At the same time, a number of noble Lords shared the Government’s view that these are matters better left to be considered by the Northern Ireland Assembly when it assumes responsibility for the criminal law. On the last occasion, the noble Lord, Lord Browne of Belmont, who has spoken again today, spoke of the particular sensitivity around religious issues in Northern Ireland, and of how it was important for the people of Northern Ireland to have their say. The noble Lord, Lord Henley, agreed from the Opposition Front Bench that the offences were arcane and redundant, but felt that the matter should be left for the devolved Administration—a view that he has expressed again today.
I recall that the right reverend Prelate, the Bishop of Winchester, had similar reservations about this Parliament legislating for Northern Ireland on a matter of this kind. He has been good enough to communicate to me, first, that he is surprised that this matter has returned to the House today and, secondly, that he thinks this matter should be dealt with in Northern Ireland. As the right reverend Prelate rightly said, the arguments that were powerfully adduced by the minority when the abolition of blasphemy and blasphemous libel in England and Wales was debated, during the passage of the Criminal Justice and Immigration Bill, are held with a great deal more force on all sides of the community in Northern Ireland than, perhaps, they are on this side of the water.
I undertook to convey to the Minister of State for the Northern Ireland Office the views that the noble Lord, Lord Lester, and other noble Lords expressed in the previous debate. I have done so, and the Minister’s strong view is that the right forum for consideration of this sensitive issue is the Northern Ireland Assembly, once it has assumed responsibility for justice. Given the strength of feeling on this matter, however, he has undertaken to ensure that the matter is fully researched, by drawing on the helpful analysis of the noble Lord, Lord Lester, and that advice on it is prepared so that a devolved justice Minister would have immediate access to it. In dealing with this issue, those in Northern Ireland will also need to pay close attention, as they obviously will, to the right to freedom of expression and the right to freedom of conscience, thought and religion enshrined in the ECHR.
I hope that that will give the noble Lord, Lord Lester, some reassurance that even if we differ from him on how the matter should be progressed—and indeed we do—we are taking it seriously and laying the foundations for a future change in the law. I am grateful to all of those who have spoken in this short debate, and I now invite the noble Lord to withdraw his amendment.
I am very grateful to everyone who has spoken, including the Minister, who has now put on record his important statement. My noble friend Lord Alderdice apologises for the fact that he cannot be here today, and the noble and right reverend Lord, Lord Eames, who was another supporter of the amendment, was also unable to speak.
In answer, quickly, to some of the points made by the noble Lord, Lord Morrow, first, a Select Committee of this House looked into all of these questions and examined closely, on the basis of evidence, the situation in Northern Ireland. There was very full consultation when that happened; I am not sure whether he would be aware of that. The Northern Ireland law was expressly referred to in the course of it. Secondly, this is not about any hostility to religion. On the contrary, the problem is that one person’s religion is another person’s blasphemy. The vice in the common law on blasphemy, which has never been used in Northern Ireland, is that it immediately leads to demands by, for example, Muslims that it be extended to their religion—something which has, extraordinarily, been done in the Republic. Thirdly, it is there to protect Christianity, which is regarded as divisive by non-Christians.
Concerning the point made by the noble Lord, Lord Monson, I was referring to the fact that the Convention rights are written into the Scotland Act, the Wales Act and the Northern Ireland Act in order to ensure that those basic rights do not vary from place to place. That is what I had in mind before, but there are of course variations in the pattern of legislation, provided that it is subject to those basic rights.
Finally, the Government of the Republic of Ireland decided not to have a referendum on this question for the very reason that the kind of arguments that one has heard would have been aired in the Republic. This is, if I may respectfully say so, largely hot air, given that blasphemy at common law has never operated in Northern Ireland.
I very much hope, as I am sure that the Government do, that this problem will at last be put to sleep in Northern Ireland as it has been here, and not left as it is in the Republic. Having said all that, I beg leave to withdraw the amendment.
Amendment 16 withdrawn.
17: After Clause 79, insert the following new Clause—
(1) The Secretary of State must review the operation of this Chapter and prepare a report of that review.
(2) The Secretary of State must lay a copy of the report before Parliament before the end of the period of 2 years beginning with the day on which section 74 comes into force.”
My Lords, the amendment makes provision for a statutory review of investigation anonymity orders within two years of the commencement of Chapter 1 of Part 3 of the Bill. The amendment has the same effect as a similar one tabled by the noble Lord, Lord Henley, on Report, which I accepted in principle. The amendment is self-explanatory, and I therefore beg to move.
My Lords, I am grateful to the Minister for moving the amendment. We look forward to the review in a couple of years’ time, which will help us to keep an eye on developments. Scrutiny is right on this occasion.
Amendment 17 agreed.
18: After Clause 149, insert the following new Clause—
Damages-based agreements relating to employment matters
(1) The Courts and Legal Services Act 1990 (c. 41) is amended as follows.
(2) After section 58A insert—
“58AA Damages-based agreements relating to employment matters
(1) A damages-based agreement which relates to an employment matter and satisfies the conditions in subsection (4) is not unenforceable by reason only of its being a damages-based agreement.
(2) But a damages-based agreement which relates to an employment matter and does not satisfy those conditions is unenforceable.
(3) For the purposes of this section—
(a) 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—(i) 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 (ii) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained;(b) a damages-based agreement relates to an employment matter if the matter in relation to which the services are provided is a matter that is, or could become, the subject of proceedings before an employment tribunal.(4) The agreement—
(a) must be in writing;(b) must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner;(c) must comply with such other requirements as to its terms and conditions as are prescribed; and(d) must be made only after the person providing services under the agreement has provided prescribed information.(5) Regulations under subsection (4) are to be made by the Lord Chancellor and may make different provision in relation to different descriptions of agreements.
(6) Before making regulations under subsection (4) 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.(7) In this section—
“payment” includes a transfer of assets and any other transfer of money’s worth (and the reference in subsection (4)(b) to a payment above a prescribed amount, or above an amount calculated in a prescribed manner, is to be construed accordingly).
“claims management services” has the same meaning as in Part 2 of the Compensation Act 2006 (see section 4(2) of that Act).
(8) Nothing in this section applies to an agreement entered into before the coming into force of the first regulations made under subsection (4).”
(3) In section 120(4) (regulations and orders) after “58(4),” insert “58AA”.”
My Lords, these amendments provide for the statutory regulation of damages-based agreements relating to employment matters. Previous amendments on damages-based agreements were tabled for Report stage. However, as the House will recall, I withdrew those amendments in light of the concerns raised by some noble Lords, including the noble and learned Lord, Lord Woolf, and of course the noble Lords, Lord Hunt of Wirral and Lord Thomas of Gresford, about the wide scope of those amendments. I undertook to bring back at Third Reading revised amendments, which would be narrower in scope and limited to the regulation of damages-based agreements in respect of employment tribunal claims. These amendments achieve that objective.
It may be helpful if I briefly explain how these agreements work. Damages-based agreements allow for the representative to claim a percentage of any damages awarded to the claimant. In contrast, of course, conditional fee agreements, which are typically used in court proceedings, allow for an “uplift”, or success fee, on top of the representative’s normal fee. Unlike conditional fee agreements, damages-based agreements are not permitted in court proceedings and the amendments do not change this. They are, however, commonly used by some solicitors and some claims managers in proceedings before the employment tribunal.
Recently published research into claimants’ experience of employment tribunals, by Professor Moorhead of Cardiff University, shows the worrying absence of specific consumer protection in respect of this type of agreement, particularly in relation to information about costs and charges, and the potential availability of other forms of representation. The Government believe that damages-based agreements, like conditional fee agreements, require specific statutory regulation to ensure that claimants have the protection they require. They do not currently have that specific statutory regulation.
While these amendments set out the broad regulatory framework, the details of the regulatory requirements will be set out in regulations to be made under the new statutory provision. These regulations will be subject to the affirmative resolution procedure.
We published a consultation paper on the regulatory requirements, seeking the views of the judiciary, the Law Society, the Bar Council and others. The consultation closed at the end of September and we published a summary of the responses on 27 October 2009. While some questioned the need for statutory regulation, others highlighted the need for, and welcomed the introduction of, more specific statutory requirements in the interests of protecting consumers in employment tribunals. It is envisaged that the first regulations could include, among other things, a requirement for representatives to provide claimants with clear and transparent information on all likely costs and expenses, and to provide claimants with information about other sources of funding to which they may be entitled and which may allow them to keep all of their damages.
These amendments are necessary now to ensure consumer protection for claimants in employment tribunals. I emphasise that the amendments only seek to regulate damages-based agreements in respect of employment matters to ensure that these claimants are protected from the outset. These amendments do not extend beyond employment matters that may go to the employment tribunal. In particular, any potential extension of damages-based agreements to civil litigation would require further consideration by us at a later date. As the House knows, this is being looked at by Sir Rupert Jackson in his review of civil litigation costs, which is due to report by the end of December. We all await that report with interest and will consider carefully any recommendations for further legislation in this area. I beg to move.
My Lords, I declare a professional interest, as I have been involved in litigation in an employment context—by which I mean equal pay, which I take to be included in what is meant by “employment”—where there has been real abuse because of the absence of regulation in this area. I do not want to go into embarrassing details to illustrate the precise nature of the abuse, but I am certainly aware that trade unions have been concerned that, for example, women are induced to enter into relationships with lawyers whereby a cut is obtained out of the damages that may be claimed for, say, an equal pay case, without the woman being properly informed. They are told by the solicitor that they cannot settle a case without the solicitor’s consent, in a situation where the solicitor will have a stake in the outcome. On the basis of my own experience, I am convinced that it is important that there are safeguards for the consumer in this context.
I say nothing about the previous debates on procedures and whether this is or is not rushed. All I can say is that there is a mischief, which the amendment seeks to tackle.
My Lords, I declare my interests recorded in the Register of Members’ Interests; in particular, being a partner in the national commercial law firm Beachcroft LLP. The Minister has reintroduced this group of amendments. I suppose that he is hoping that this will be the third time lucky. He has had to withdraw his amendments at the last minute both in Committee and on Report after finding that they were not really in accordance with what he sought to do. I am not sure that to have the first proper debate on such an important amendment at Third Reading is the right way to legislate.
The Minister was at pains to stress in his speech that the Government had consulted over the summer. However, that was because they had tried to introduce amendments in Committee before the summer without bothering to consult anyone very much beforehand. Having spoken to a number of organisations that have been consulted, I believe that, in their view, these revised amendments will probably cause significant difficulties without properly addressing the problems that the Government have acknowledged exist, and which the noble Lord, Lord Lester, has just outlined.
Well, we have been here before. If we look back at what has happened to the conditional fee agreements, as we were reminded in the previous debate, that regime said that the agreements would continue to be unenforceable unless they complied with regulations. I presume that they were similar to the regulations now proposed for damages-based agreements, although we have not seen them. I am not sure whether the Minister has seen any draft regulations. It would be very helpful if he could acquaint us with their substance, if not yet their detail. With CFAs there has been an enormous amount of satellite litigation, which has certainly not been in the public interest. The cases demonstrated that there were certain fundamental flaws in CFAs. Is the Minister satisfied that those fundamental flaws will not exist as far as DBAs are concerned?
DBAs have been available for many years in non-contentious work. As the Minister explained, they are not permitted in court-based litigation here. We all know the problems that they have caused in the United States. They are, of course, available here for tribunal cases. The argument is that they are, in some ways, particularly suitable for employment and tax cases because it is very rare for the losing side to be liable for the other side’s costs. Above all, I ask the Minister whether he is satisfied that this move on his part is in the public interest.
He has now tried to limit DBAs in the way that is expressed in Amendment 18. In many ways, this is all now based on some rather limited research to which he referred a few moments ago. That limited research, he feels, enables him to make regulations which ensure that DBAs are unenforceable unless they comply with regulations which are to be made, and might cover—I presume—such things as the percentage of damages that can be taken by the lawyer; exactly what costs are included in the percentage; the contractual terms; and the advice that must have been given before the agreement is entered into. I am guessing, because I have not seen the regulations. The Minister may well have seen some draft regulations.
The amendments propose to make agreements which do not comply with such regulations unenforceable. I suppose that would mean that consumers who wish to challenge will have to take legal action to establish whether their agreements comply with regulations. I am not sure that consumers will be aware of whether their agreement complies or not. I also do not think they will be queueing up to litigate further. If they do, there will a similar round of expensive satellite litigation. Surely that cannot be in the public interest.
It is anyway inappropriate for the Government to move in this direction, particularly when some of the people we are talking about are not regulated to the same level as solicitors. I immediately declare an interest: I was asked by my firm to give a report to the Law Society on the future regulation of solicitors. I pointed out that there are various areas where others have started to creep in—as we see extensively from TV adverts—to undertake work that is very similar to that of solicitors, but is not regulated in the same way. I hope that the Minister agrees that there should be a level playing field, and that the public interest demands that everyone is regulated to the same level. The Solicitors Regulation Authority has made clear that it has power to deal with concerns about solicitors, and it should be allowed to do so. If it is felt that the powers of regulators of those who are not solicitors are insufficient, the approach should apply only to them.
Finally, the Minister has referred to the much-respected review of costs by Lord Justice Jackson, which is now under way. The Minister knows that I expressed the strong view that we should await that report before we start going down this particular road. The Minister has made clear that he does not think he can wait. I hope that, when he responds, he will take into our account our dismay at the way in which the amendment has been produced and the way he is explaining why it is so necessary. We need a little more detail than we have so far had.
My Lords, having been a solicitor for some five years and a member of the Bar for too many years, I declare an interest to that effect. I have deep in my bowels a distaste for any litigation in which the lawyer has an interest. I have to weigh that distaste against access to justice and all the arguments that we had about that when the Access to Justice Act went through. As the noble Lord, Lord Hunt, said a moment ago, the blessing of the Government on conditional fee agreements has led to satellite litigation, which is a considerable burden that a litigant has to bear in addition to all the pressures and difficulties of the case itself.
This proposal was introduced at a very late stage of the Bill, so there has been no opportunity for full discussion. I have had the benefit of a discussion with the noble and learned Lord, Lord Woolf, on the third edition of the clause that is now being put forward. I will not speak for him, but as a result of that discussion I do not propose to oppose this clause today. However, the Government must be very careful in drawing up any regulations that they propose to impose, and the matter should be monitored very closely to try to get away from the lay client—who is at the receiving end of it all—the threat of even more legal proceedings.
My Lords, I thank the noble Lords who have spoken in this debate, all with a great degree of expertise, perhaps none more so than the noble Lord, Lord Hunt of Wirral, whose chairmanship I served under when we looked at the draft Legal Services Bill. I know that his recent report for the Law Society has been very widely welcomed, by both the society and others interested in that field. It is because I disagree with him so strongly that I have to praise him most strongly at the start of what I have to say.
The noble Lord asked whether it is in the public interest to legislate now. The answer is an emphatic yes from the Government. If I look for reasons, I rely to some extent on the speech of the noble Lord, Lord Lester, and the kind of cases that he has referred to today. In that sense, it cannot wait in this limited field of employment law, where there clearly has been abuse. Extremely unusually for the solicitors’ profession, I am afraid that recent research concluded:
“Many solicitors failed in their professional obligation to inform and advise claimants of alternative methods of funding”.
I am sure that the Law Society and its many thousands of members will want to put that right at the earliest opportunity.
On the question of public interest, we are adamant that we need to legislate, and legislate quickly. I take the point that this is the first time that this has been properly debated in this House. We withdrew in Committee because the Delegated Powers Committee made some powerful points to us, which we of course took on board in the normal way. On Report I had a Hobson’s choice. There were concerns from the noble and learned Lord, Lord Woolf, and others about this matter. We thought it best to take it away and try to narrow the scope of these clauses to satisfy him. I had the opportunity of speaking to the noble and learned Lord only yesterday. That is what we have done. It is not entirely satisfactory; I agree with the noble Lord about that.
We will draw up regulations in the light of our consultation and take note of any points raised today. We will consult with all the key stakeholders over the details of our regulations. A consultation will begin shortly after the Bill gains Royal Assent. I remind the House that I have said it is envisaged that the first regulations could include, among other things, a requirement for representatives to provide claimants with clear and transparent information on all likely costs and expenses and on other sources of funding to which they may be entitled and which may allow them to keep all of their damages. However, I say to the noble Lord that I have not seen the draft regulations.
By passing this legislation we are establishing a more level playing field in this area. CFAs are regulated statutorily; damages-based agreements are not. We think it is right that they should be on the same level. Why cannot this await the Jackson report? As the House will know, Sir Rupert published a preliminary report in May this year, which recognised that the unregulated use of damages-based agreements at employment tribunals, where they are most commonly used, is open to abuse. That is supported by the findings of research. Sir Rupert is considering the use of these agreements as a method of funding litigation before the courts and we await with interest any recommendations his report might include on this issue. In the mean time, we believe that the absence of specific statutory regulation of damages-based agreements in employment matters poses a real risk to vulnerable claimants. Therefore, there is a strong case for proceeding quickly to regulate this class of agreement in proceedings before employment tribunals. That is why we have brought forward these amendments today.
Amendment 18 agreed.
Clause 154 : Relevant offences
19: Clause 154, page 101, line 17, at end insert—
“( ) it is a heinous offence, and”
My Lords, I am very grateful to the Minister and his advisers for having met me yesterday to discuss my amendment in the context of the amendments that the Government have tabled.
Noble Lords will recall that on Report on 29 October, the House decided, by 74 votes to 56, to reject the attempt of the noble Lord, Lord Borrie, to remove Part 7 from the Bill. In the course of the debate, the noble Lord, Lord Tunnicliffe, acknowledged that in its original form the scheme in Part 7 would apply to,
“offenders who exploit information about any offence, regardless of the seriousness of that offence”.—[Official Report, 29/10/09; col. 1295.]
Nothing in the Explanatory Notes to the Bill explained how that could possibly be compatible with the rights and freedoms protected by the European Convention on Human Rights. No doubt because the Government came to realise that the scheme was grossly over-inclusive, the noble Lord, Lord Tunnicliffe, also explained:
“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”.—[Official Report, 29/10/09; col. 1293.]
The adjective “heinous” is not a technical term of art. It is a word whose ordinary meaning is given in the Oxford English Dictionary as,
“odious; highly criminal; infamous; chiefly of offences and offenders”.
Like many other adjectives, such as “reasonable”, or “proportionate”, it involves questions of fact and degree involving the exercise of judgment.
The noble Lord further explained:
“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”.—[Official Report, 29/10/09; col. 1295.]
He added that the scheme would then cover,
“only offences at the most grave end of the spectrum such as murder, manslaughter or rape”.—[Official Report, 29/10/09; col. 1296.]
Offences at the grave end of the spectrum are what might conveniently be described—in the noble Lord’s words—as heinous offences; not just serious, but grave.
Unfortunately, the Government's new amendment does not achieve the Minister's stated aim of confining the scheme to profiting from “accounts of heinous crimes”. Offences triable only on indictment in the Crown Court are serious, which is why they cannot be tried in magistrates' courts, but not all indictable offences triable only in Crown Courts can properly be described as “heinous” offences, or as being at the most grave end of the spectrum. They are all serious but are not all heinous or grave. For example, the various types of homicide involving murder and manslaughter are undoubtedly serious offences triable on indictment in the Crown Court, but they range widely in their character depending on the circumstances of the particular offence. The offence of murder, which can be tried only on indictment and carries a mandatory life sentence, covers a broad range of situations from mercy killings, or the killing of an abusive partner by a victim of domestic violence, to terrorist atrocities and mass murders.
In other words, the scheme, as it would stand with the government amendments moved today, remains overinclusive in that those at risk of having the proceeds of their works forfeited to the state, and the chilling effect on freedom of expression, would remain. A former criminal who wishes to write a book, collaborate in the making of a play or film, or discuss his or her crime with a journalist or publisher to receive a fee, will not know from the language written into Part 7 whether he or she may be liable to pay the penalty of confiscation merely by knowing that discussion of indictable-only offences creates a risk. That is why, to achieve the Government's stated aim, and no more, it is necessary to limit the scheme's application to those who exploit material about heinous indictable offences.
Some might argue that the test of heinousness is too vague to be applied by the courts. There are several answers to this objection. In the first place, the Government consider that the courts will be capable of interpreting and applying the vague criteria already contained in the Bill. The test of whether an offence is heinous is just as capable of being applied by the court having regard to the particular circumstances of the offence as is that of deciding the social value of a work. What is heinous and at the grave end of the spectrum involves a judgment about matters of fact and degree, which the courts are perfectly capable of making.
Secondly, senior courts in the common law world, notably in India and the United States, already use the test of whether a crime is heinous for the purpose of deciding whether it merits the death penalty. It has been used by the Supreme Court of India in deciding which categories of murder could attract the death penalty. In the case of Bachan Singh, the Supreme Court noted:
“While considering the question of sentence to be imposed for the offence of murder under Section 302, Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence”.
Similarly, the Supreme Court of the United States, when interpreting the Eighth Amendment's prohibition against cruel and unusual punishment, has repeatedly decided that, under the precept of justice, punishment is to be graduated and proportioned to the crime, and that capital punishment must be limited to those offenders who commit,
“a narrow category of the most serious crimes”,
and whose extreme culpability makes them,
“the most deserving of execution”.
The case of Roper v Symonds, cited by Justice Kennedy in Kennedy v Louisiana in 2008, illustrates that. The American federal courts do that in accordance with the well-known principle of proportionality. That shows that the criterion is capable of being interpreted and applied in context by our judiciary.
Similarly, the European Court of Human Rights and our own courts and tribunals have to carry out a similar process when deciding whether a given example of ill-treatment is sufficiently severe to amount to inhuman or degrading treatment in terms of Article 3 of the European convention. The confiscation of proceeds under this scheme undoubtedly involves the infliction of a penalty or fine for exercising the right to free expression. The proceeds are not to be paid to victims or their families. They are to be confiscated and paid to the state, like any other fine or penalty.
In fact, the order involves the infliction of a double penalty: first, the penalty of a custodial sentence; and then the penalty, as a convicted criminal or previous criminal, of having the proceeds not of the crime but of exercising the right to freedom of expression confiscated by the state. The defendant has already been sentenced and punished for the offence. He or she is to be further punished for writing about it in an article or book, or making a film or a play, deemed by the court to have insufficient value to be in the public interest.
The JCHR report in which I was involved expressed concern about the lack of certainty in the scheme. Unfortunately, in my view, and that of others, it did not take sufficient care on this occasion. I remain concerned about the lack of certainty in drawing a distinction between offences triable only on indictment and other offences. I have tried my best but I have been unable to discover any comprehensive list of offences which are triable only on indictment—indeed, I have asked the Minister’s department about that. I am sure that the Minister will provide a list in his reply, although I am not sure that such a list exists. I cannot tell, therefore, which offences are covered. However, my greater concern is with the fact that the Government’s use of this category is overinclusive by not being restricted, as the Minister wished, to heinous or grave offences.
The Government accept, as they must, that to deprive a criminal or former criminal of profiting from an account of his crime interferes with the right to free expression and the right to property. The Government also accept, as they must, that the interference must be no more than is necessary to conform to proportionality. My amendment seeks to give effect to that principle by ensuring that the forfeiture scheme will apply only to heinous offences at the most grave end of the spectrum of indictable offences.
Like the Mikado, I hope the Government and the House, will appreciate that, “my object all sublime”, is to,
“let the punishment fit the crime, the punishment fit the crime”.
If my amendment is agreed to, it will be much more likely that Part 7 will pass muster if its compatibility with the convention rights is challenged in British courts or before the European Court of Human Rights. I beg to move.
My Lords, I shall not hide the fact that I would prefer that the Government had withdrawn the whole of Part 7, because it is neither worth while nor will be of much value. It will have a number of serious disadvantages. However, we debated those a week ago. On behalf of noble Lords from various parts of the House who supported withdrawing Part 7 altogether, I say that we had the voices but the Government had the votes. All those who spoke, apart from an uncertain voice from the main opposition party, were against Part 7. However, we move on.
The noble Lord, Lord Lester of Herne Hill, is more constructive than me. He has sought, alongside the Government’s move to reduce further the scope of Part 7—to use “heinous” to separate those more serious crimes, where perhaps there is justification for Part 7, from the rest. He has given a number of reasons why “heinous” could be included, despite its apparent vagueness. It features in the Oxford English Dictionary, but I have looked at the law dictionaries and they do not mention it—probably because it does not appear in our statutes. None the less, it has a reasonably clear meaning, as the noble Lord indicated. It is a more worthwhile attempt, and it goes further than that of the Government. The Government have already made two moves to reduce the scope of Part 7, and maybe they will explain further why those moves were sufficient.
The main objection to “heinous” in this context is its vagueness. However, I am much impressed, not only by what the noble Lord, Lord Lester, said about the Supreme Court of India and the Supreme Court of the United States in the use of “heinous” to separate, for example, crimes justifying the death penalty from other crimes; I am also impressed by the noble Lord’s indication that, in so far as there is an uncertainty about the word, by Jove, there are plenty of uncertainties in this part of the Bill. If you study the list of things that the court is to take into account in determining whether an order should be made under Part 7 proceedings, you will see phrases such as the “social value” of the literature or taking into account the “extent to which” the victim or his family will be offended. There are so many vague, uncertain and subjective items for the court to consider. If it is to consider the difference between a heinous crime and a less than heinous crime, that is a relatively straightforward matter which a judge would find a good deal easier to determine than the social, cultural or literary value of a book written by an offender.
I appreciate that vagueness remains, but I also appreciate the value and constructiveness of the attempt of the noble Lord, Lord Lester, to address this point when the Government have, thus far, singularly failed to do so in their attempt to define and distinguish between indictable and non-indictable offences and so on, thereby reducing the scope of the Bill.
My Lords, as the noble Lord, Lord Borrie, made clear, the House debated this matter a week ago and came to a firm conclusion. For that reason, Part 7 will remain in the Bill, but the Government are making their attempt to tighten it up a little, as is the noble Lord, Lord Lester of Herne Hill.
I look forward to hearing from the Government on their Amendments 20 to 22, which are about the restriction to indictable offences only. We do not disagree with the Government’s attempt to tighten this up. However, we do not think that it will make much difference. Far more important was the Government’s statement last week that they would restrict these matters to offences,
“at the most grave end of the spectrum”.
Those words were quoted by the noble Lord, Lord Lester. Merely leaving out “indictable offence” and inserting,
“offence which, if committed by an adult, is triable only on indictment”,
does not add much to the words,
“most grave end of the spectrum”.—[Official Report, 29/10/09; col. 1296.]
We are happy that other safeguards will limit the use of this provision; for example, the fact that one needs the permission of the Attorney-General. We trust that the Government will not use powers of this sort frivolously.
In light of those safeguards, I will comment briefly on the amendment of the noble Lord, Lord Lester. He suggests a restriction to “heinous” offences. There is some confusion in the House about the pronunciation of the word. The noble Lord, Lord Borrie, pointed out that he could not find it in his legal works, but found it in the Oxford English Dictionary. Perhaps if we could decide how to pronounce it, we would have made a step in the right direction. I note the noble Lord’s point that not all indictable offences are heinous. However, I imagine that the Minister will say that the Attorney-General will make the call in due course.
We are grateful to the noble Lord, Lord Lester, for pointing out that the word has been defined by the Supreme Court of India, and in the United States. I was grateful for the note that he sent me on the matter. Again, I do not think that it would add much in the light of other government assurances that were given last week. I am not unsympathetic to what the noble Lord is doing, but I am not sure that we would support him if he pressed the matter to a Division, because I do not think that his amendment adds much. We will listen very carefully to what the Government say, but we dealt with this matter last week.
My Lords, having disagreed with the noble Lord, Lord Lester, on an amendment a while ago, I was completely convinced by his cogent argument in favour of this amendment and would gladly support him were he to decide to divide the House—assuming that the Government do not accept it.
The use of “heinous” has been criticised by the noble Lords, Lord Borrie and Lord Henley. As a lay man, I find no difficulty with it. It derives from the French word “haine”, which gives the clue to its pronunciation. It means “hateful”, and 80 to 90 per cent of the population would broadly agree on what crimes are the most hateful.
My Lords, one can see from the structure of this very unsatisfactory part of the Bill that an application has to be made by an enforcement authority with the consent of the Attorney-General. My noble friend’s amendment sets a threshold for the application, which would not be considered either by the enforcement authority or by the Attorney-General unless it concerned a hateful crime. It is not too difficult to interpret that expression. Clause 157 sets out what the court has to consider in determining applications. These are not just the matters set out in subsection (3)—which, as many noble Lords have said, are very indistinct and open to the discretion of the judge who hears the application. Under subsection (2)(b), the court,
“may take account of such other matters as it considers relevant”.
The judge has complete discretion when considering whether to make an order, and may consider matters apart from those listed in the Bill. Any criticism that the term used by my noble friend is vague pales into insignificance when one has regard to the scheme that the Government have introduced.
My Lords, the noble Lord, Lord Lester, has proposed an amendment that would limit the scope of the criminal memoirs scheme to memoirs about heinous offences. This is intended to be in addition to government amendments to restrict the scheme to offences that are triable only on indictment. Given the concerns raised in the House about the potential breadth of the scheme, I understand why the noble Lord should seek to limit it in this way. The House will recall that the original scheme would have applied to offenders who exploited material about any offence. On Report, the House agreed amendments to limit the scheme to offences that were triable on indictment or triable either way.
The government amendments in this group go a good deal further by limiting the scheme to memoirs about the most serious offences, namely those that are triable only on indictment. This is a significant move. Indictable-only offences make up a very small proportion of criminal cases dealt with by the courts, and no more than 2 per cent of all convictions in 2007. Indictable-only offences include very serious crimes such as murder, rape and manslaughter. Offenders who profit from exploiting material about these offences are likely to be the subject of cases that cause the greatest concern to surviving victims or bereaved families.
As a result of our amendments, the scheme will no longer cover offenders who exploit material about offences that are triable either way. Our amendments have the considerable advantage that there can be no doubt which offences will be covered by the scheme. Limiting the scheme to memoirs about indictable-only offences that are heinous lacks that advantage. “Heinous” is undefined in the amendment and is not known in our law. If it were adopted, it would be far from clear what crimes the scheme would cover. It is extremely undesirable—we would say wrong—to introduce this considerable and unnecessary uncertainty to the scheme. Limiting the scheme to indictable-only offences draws the scheme sufficiently narrowly—no further narrowing is needed. Indictable-only offences are, by definition, the most serious crimes in our law. It is clear which offences are included in the group and which are not.
A final, crucial point is that Clause 157 already requires the court to consider the seriousness of the offence to which the memoirs relate when deciding whether to impose an order. The court will automatically have regard to the fact that, for example, the memoirs relate to a particularly brutal crime, or to a crime that is not particularly serious in the overall spectrum.
The noble Lord, Lord Lester, raised a series of points that I will not respond to individually. I believe that almost every point he raised was covered by my speech on Report. I learned a long time ago that giving the same explanation twice is full of hazard.
My Lords, as the Minister will not reply to the specific point, I ask: is he saying that he accepts that the reference to serious crimes covers only grave or heinous crimes? On Report, I asked whether the intention was,
“to deter people by depriving them of the profits from publishing material considered by the Government to be undesirable and of no value”.
The noble Lord replied:
“There is a sense of chilling in what we are doing, for the most heinous crimes and within the context of the Act”.—[Official Report, 29/10/09; col. 1293.]
Is he saying today that he accepts that the reference to serious crimes in the Bill should be interpreted by the court and by the Attorney-General as concerned only with the gravest of indictable-only offices, the most heinous, or not?
My Lords, I shall not go beyond what I said on Report. As the noble Lord, Lord Henley, has pointed out, the Attorney-General will have a general responsibility as regards public interest and will have regard to the debates that we have had in this House so far.
For a few seconds I thought that my noble friend Lord Borrie was going to agree with me, which would have been an exciting relief. He made the case that the word was not defined. I refer back to what I said on Report on proportionality. We used some very careful words about proportionality being at the centre of how this part of the Bill would be interpreted. I hope that the noble Lord, Lord Lester, will agree that the government amendments substantially address his concerns and that he will withdraw his amendment.
My Lords, I am very grateful to everyone who has spoken and to the Minister for his reply. I am not grateful to the Minister for not replying to my specific points, which I have discussed with him and his advisers in private. That is not appropriate and I am sorry about that.
In terms of the principle of legal certainty, when what is at stake is free speech and property it is not satisfactory for a Minister to say to the House that the judge can read the debates. That is not good enough. The law should be clear, with proper criteria. The Minister indicated last time, and has not changed his position today, that the scheme is intended to apply only to heinous crimes at the grave end of the spectrum. That is not what the Bill says; it is what my amendment seeks to achieve. I wish to test the opinion of the House.
5 November 2009
Division on Amendment 19.
Amendment 19 disagreed.View Details
Amendments 20 to 22
20: Clause 154, page 101, line 19, leave out “indictable offence” and insert “offence which, if committed by an adult, is triable only on indictment”
21: Clause 154, page 101, line 21, leave out from first “triable” to end and insert “only on indictment,”
22: Clause 154, page 101, line 23, leave out from “is” to end of line 25 and insert “triable only on indictment,”
Amendments 20 to 22 agreed.
Clause 176 : Extent
Amendment 23 not moved.
24: Clause 176, page 122, line 4, at end insert—
“( ) section (Slavery, servitude and forced or compulsory labour);”
Amendment 24 agreed.
Amendment 25 not moved.
Clause 177 : Commencement
26: Clause 177, page 122, line 41, at end insert—
“( ) section (Damages-based agreements relating to employment matters);”
Amendment 26 agreed
Schedule 1 : Duty or power to suspend or resume investigations
27: Schedule 1, page 127, line 30, leave out paragraph 3
My Lords, I appreciate what the Leader of the House said just after Question Time. For clarity, I wish to make a few points on the amendment. First—
My Lords, I think the Leader of the House made the position perfectly clear at Question Time. Much as I appreciate the courteous way in which the noble Baroness is addressing these matters, I am not sure that it is entirely in order for her to continue to pursue this without the leave of the House. I do not think the leave of the House has been sought or given. Certainly, I would take great exception to a ruling by the usual channels being countered in this way. I do not think it is entirely appropriate. It is quite wrong and, so far as I am concerned, it stretches the bounds of the usual working relationships. We try to agree things in good order in this House, and that is the tradition within which I intend to live, and I know that view is shared by noble Lords opposite and, traditionally, by noble Lords on the Liberal Democrat Benches. I would courteously invite the noble Baroness to withdraw from this current debate and perhaps not to move her amendments. I think that to go against that the noble Baroness will need to seek the leave of the House.
My Lords, it needs to be made clear that my noble friend was endeavouring to make it clear that she was not going to move her amendment, but she felt it right, in the circumstances, to make a personal statement and put something on the record. She was making it clear that she was not going to move the amendment. In the spirit of the way the House works, it seems to me that that is in order.
My Lords, with the leave of the House, if I could just complete the statement, I would like to make one point of clarification for the convenience of the Government.
My Lords, I am becoming increasingly confused about the procedure the House is now adopting. I am aware of an agreement by the usual channels about the way in which Third Reading amendments may be discussed, or may not be on the advice of the usual channels when the Public Bill Office has indicated that they have been debated on previous occasions. As I understand it, if one starts to make a statement, one is, in fact, moving an amendment. If the noble Baroness wishes to move the amendment, she must seek the permission of the House to do so and is acting against the advice of her own Chief Whip.
My Lords, I am most grateful to the noble Baroness, Lady Anelay, for her support in this matter. It is only right that the leave of the House be sought if the noble Baroness wishes to pursue this issue.
My Lords, forgive my absence from the Chamber for the beginning of this very short debate on this amendment. As I indicated earlier, this is a matter for the House. I saw my noble friend at the Dispatch Box earlier making the point that this had been agreed by the usual channels. That is the usual procedure by which we work in this House. It makes for a good working relationship throughout the House and enables us to get through our legislation, as we usually do. I recognise that I said earlier that the noble Baroness should seek the advice of the Public Bill Office again. In retrospect, I may have been wrong to suggest that because I think that, when an agreement has been made by the usual channels, it is beholden upon us as a House to respect that advice or put it to the House by a vote. It is especially beholden upon Front Benchers in this House to follow the advice that has been agreed by the usual channels.
My Lords, had my noble friend been allowed to continue, we would now be on the next amendment. I do not understand why the Government Front Bench and the Opposition Front Bench—I am highly suspicious about it, quite frankly—are wanting to, as it were, filibuster because I understood that the Government wanted to get on with the business of the House. They could have done that. If my noble friend wishes to, perhaps she should test the opinion of the House.
My Lords, I shall clarify for the House that this is not a matter of filibustering, but of the procedure of the House. It is important that procedures in this House are followed correctly, otherwise no business will be got through.
My Lords, I think the Front Benches have brought this on themselves because we have been trying to get this business through. I sat through long meetings when the noble Lord, Lord Williams of Elvel, was pushing this idea through the Procedure Committee. I warned then that if we allowed rules and regulations to interfere with genuine discussion, we would find ourselves in more trouble and wasting more time than if we simply used a bit of common sense about allowing Members to make a point. I think I have been borne out by what has happened here.
My Lords, if the noble Baroness speaks to the amendment, she may not then withdraw it. I must call for it to be moved.
Amendments 27 and 28 not moved.
Schedule 5 : Powers of coroners
Amendments 29 and 30
29: Schedule 5, page 140, line 3, leave out “in writing”
30: Schedule 5, page 140, line 31, at end insert—
“3A (1) The person by whom an authorisation under paragraph 3(1) is given must make a record—
(a) setting out the reasons for the suspicion referred to in paragraph 3(2)(a);(b) specifying which of the conditions in paragraph 3(3) is met.(2) Where the authorisation is given by a senior coroner nominated under paragraph 3(1)(b), that coroner must give the record made under this paragraph to the Chief Coroner.
(3) The Chief Coroner must retain a record made this paragraph until the Chief Coroner has given to the Lord Chancellor the report under section 35 for the calendar year in which the authorisation in question was given.”
Amendments 29 and 30 agreed.
Schedule 8 : Chief Coroner and Deputy Chief Coroners
31: Schedule 8, page 147, line 18, leave out sub-paragraph (2)
Amendment 31 agreed.
Schedule 21 : Minor and consequential amendments
32: Schedule 21, page 213, line 14, at end insert—
“After section 33 insert—
“33A Short certificate of death
(1) Any person shall—
(a) on furnishing the prescribed particulars, and(b) on payment of such fee as may be specified in regulations made by the Minister by statutory instrument,be entitled to obtain from the Registrar General, a superintendent registrar or a registrar a short certificate of the death of any person.(2) Any such certificate shall be in the prescribed form and shall be compiled in the prescribed manner from the records and registers in the custody of the Registrar General, or from the registers in the custody of the superintendent registrar or registrar, as the case may be, and shall contain such particulars as may be prescribed.
(3) A statutory instrument containing regulations under subsection (1)(b) of this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.””
My Lords, this amendment was tabled in response to one tabled by the noble Lord, Lord Thomas, on Report. This issue has been of particular interest to the noble Baroness, Lady Finlay.
The amendment inserts a new clause into the Births and Deaths Registration Act 1953 that will enable the Registrar-General, with the approval of the Minister, in regulations made under that Act, to prescribe a short form of death certificate that will omit the cause of death. The provision of a short death certificate will allow the relatives of the bereaved to provide evidence of a death in circumstances in which the cause of death does not need to be disclosed. This may be because an agency such as a bank or utility company requires only confirmation of the fact of death.
I understand that, due to the possibly sensitive nature of the cause of death—for example, suicide or drug abuse—a relative may not wish to disclose the cause to a third party unless there is a genuine need to do so. It is important that the current full death certificate will remain available because there are circumstances in which the cause of death is required to be disclosed: for example, to insurance companies. The provision of the short death certificate will add to, rather than replace, the current death certificate that contains the cause of death.
I should add that the amendment also provides for the fee for a short death certificate to be specified in regulations made by the responsible Minister. Such regulations will be subject to the negative procedure. This change to the original version of our amendment responds to points made in the 13th report of the Delegated Powers and Regulatory Reform Committee, which was published this morning. I understand that the chairman of the committee is content that the amendment as now drafted meets the point made by the committee in its report. I beg to move.
My Lords, I thank the Minister and the Government for the amendment. Many organisations have pressed for this change, which protects people from having to disclose the most intimate details of the cause of death of a relative to people who really should not know, and I am very grateful that this step has been taken.
Amendment 32 agreed.
Amendments 33 to 35
33: Schedule 21, page 217, line 11, at end insert—
“(6) This section has effect subject to section 8B.”
34: Schedule 21, page 217, leave out lines 12 to 24
35: Schedule 21, page 217, line 34, at end insert—
“After section 8A (inserted by section (Duty to notify Coroner for Treasure etc of acquisition of certain objects) of this Act) there is inserted—
“8B Notice under section 8 or 8A to designated officer
(1) A requirement under section 8 or 8A to give a notification to the Coroner for Treasure (or an Assistant Coroner for Treasure) may, if the relevant place falls within an area for which there is a designated officer, be complied with by giving the notification to that officer.
(2) A designated officer must notify the Coroner for Treasure of all notifications given under subsection (1).
(3) If the office of Coroner for Treasure is vacant, notification under subsection (2) must be given to an Assistant Coroner for Treasure.
(4) In this section—
“designated officer” means an officer designated by an order made by statutory instrument by the Secretary of State;
“the relevant place” means—
(a) in relation to a requirement under section 8, the place where the object in question was found;(b) in relation to a requirement under section 8A, the place where the treasure in question is located.(5) A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In its application to Northern Ireland this section has effect as if—
(a) in subsection (1), for “the Coroner for Treasure (or an Assistant Coroner for Treasure)” there were substituted “a coroner”;(b) in subsection (2), for “Coroner for Treasure” there were substituted “coroner for the district in which the relevant place falls”;(c) in subsection (3), for the words from “Coroner for Treasure” to “Assistant Coroner for Treasure” there were substituted “coroner for a district is vacant, the person acting as coroner for that district is the coroner for the purposes of subsection (2)”.8C Offences under section 8 or 8A: period for bringing proceedings
(1) Proceedings for an offence under section 8 or 8A may be brought within the period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge; but no such proceedings may be brought by virtue of this subsection more than three years after the commission of the offence.
(2) For the purposes of subsection (1)—
(a) a certificate signed by or on behalf of the prosecutor and stating the date on which the evidence referred to in that subsection came to the prosecutor’s knowledge shall be conclusive evidence to that effect; and(b) a certificate to that effect and purporting to be so signed shall be deemed to be so signed unless the contrary is proved.”
Amendments 33 to 35 agreed.
Amendment 36 not moved.
Schedule 22 : Transitional, transitory and saving provisions
37: Schedule 22, page 240, line 44, at end insert—
“Slavery, servitude and forced or compulsory labour13A In the definition of “the relevant period” in section (Slavery, servitude and forced or compulsory labour)(4), as it extends to England and Wales, the reference to 12 months is to be read as a reference to 6 months in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003.”
Amendment 37 agreed.
Schedule 23 : Repeals
38: Schedule 23, page 250, line 29, at end insert—
“In Schedule 2, in paragraph 2, the “and” following paragraph (3).”
“In Schedule 2, in paragraph 2, the “and” following paragraph (3).”
Amendment 38 agreed.
Amendments 39 to 41 not moved.
42: In the Title, line 6, after “aid” insert “and about payments for legal services provided in connection with employment matters”
Amendment 42 agreed.
Bill passed with amendments and sent to the Commons.