Coroners and Justice Bill

Commons Reasons and Amendments

16:50:00

Motion A

Moved by

Lord Bach
That this House do not insist on its Amendments 1, 2 and 216 to which the Commons have disagreed, but do propose Amendment 1B in lieu—

1B: Page 115, line 29, leave out sub-paragraph (1) and insert-
 “(1) “Subject to sub-paragraph (2), a senior coroner must suspend an investigation under this Part of this Act into a person's death if-
 (a) the Lord Chancellor requests the coroner to do so on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12) that is being or is to be held,(b) a senior judge has been appointed under that Act as chairman of the inquiry, and(c) the Lord Chief Justice has indicated approval to the Lord Chancellor, for the purposes of this paragraph, of the appointment of that judge.In paragraph (b) “senior judge” means a judge of the High Court or the Court of Appeal or a Justice of the Supreme Court.”

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach)
My Lords, I beg to move that this House do not insist on its Amendments 1, 2 and 216 to which the Commons have disagreed and do agree Amendment 1B in lieu. The House will be aware that on Monday the other place accepted the Government’s Motion to disagree with these Lords amendments without a Division. In making the case for Motion A, I can do no better than quote from what the shadow Secretary of State for Justice, Dominic Grieve, said in the other place:

“there is an acknowledgement that to allow intercept evidence would be very difficult at this stage. My party is on the record on countless occasions as wishing to see intercept evidence available in criminal trials and at inquests … We subscribed to the Chilcot process so that it could be reviewed, and the Chilcot process is not yet complete. Therefore I acknowledge that to ride a coach and horses through that would be unsatisfactory, even though it is an end that I would wish to see, properly arrived at”.—[Official Report, Commons, 9/11/09; col. 60.]

My noble friends Lady Ramsay, Lord Robertson, Lord Harris of Haringey and Lord Foulkes made much the same point during our debate on 21 October, as did the right honourable Michael Howard, one of the members of the advisory group of privy counsellors, during the debate two days ago in another place. I hope that, given this wise counsel from a number of eminent sources, the House will not insist on its amendments.

I should add that my right honourable friend the Home Secretary has asked the intercept as evidence team—that is the team that is hoping to implement Chilcot—and the advisory group of privy counsellors, which includes my noble and learned friend Lord Archer of Sandwell, the right honourable Michael Howard MP and the right honourable Alan Beith MP, to look at the issue of coroners’ inquests in the light of their emerging findings. I hope that may provide some comfort to the noble Baroness, Lady Miller, and the supporters of her amendments.

Turning to the proposed amendment in lieu, it would further amend paragraph 3 of Schedule 1, which deals with the suspension of a coroner’s investigation pending the outcome of an inquiry under the Inquiries Act. On Report, the House agreed amendments, the effect of which is that the duty on a coroner to suspend an investigation pending the outcome of an inquiry would bite only if the inquiry is chaired by a senior judge. Where a coroner’s investigation is so suspended, the terms of reference of the inquiry must, as an irreducible minimum, include the matters to be determined by a coroner at an inquest. We find those matters set out in Clause 5. This amendment would add another crucial condition; namely, that the Lord Chief Justice has approved the appointment of the senior judge who is to chair the inquiry.

In another place, the shadow Secretary of State for Justice pressed the Government to provide for more judicial control over this whole process. This amendment does just that. The duty on a coroner to suspend an investigation pending the outcome of an inquiry would come into play only if the inquiry was to be headed by a High Court, or more senior, judge, and the Lord Chief Justice had approved the appointment for the purposes of paragraph 3. Noble Lords who were present at the time will remember that this is just the sort of judicial lock which Lord Kingsland asked the Government to put into effect many months ago. Let me be clear about what this means. The Lord Chief Justice is being asked in practice to approve the displacement of a coroner’s investigation by an inquiry. If he does not give his approval, no inquiry will be established.

It may assist the House if I explain how we envisage the process operating. It is worth emphasising that the point at which any question of establishing an inquiry arises is likely to be some way into a coroner’s investigation. In cases in which Article 2 is engaged, there is likely to be an investigation by a statutory organisation such as the Independent Police Complaints Commission. The coroner would proceed with planning for the inquest only once he or she was in receipt of the report from the IPCC and any criminal proceedings had been ruled out. At that point, the coroner would review all the evidence with which he or she had been provided, which might include gists of intercept or other sensitive material, and would consider whether an Article 2-compliant inquest with a jury could be held.

To assist this, the coroner would very likely hold a pre-inquest hearing to get the views of all interested persons. If the coroner’s conclusion was that the inquest could not go ahead because material that was central to the inquiry could not be disclosed, the organisation from which the material originated would inform the appropriate Secretary of State. That Secretary of State would then inform the Lord Chancellor who, in consultation with the Chief Coroner, would need to be satisfied that every effort had been made for the inquest to take place. Where the Lord Chancellor was satisfied that an Article 2-compliant inquest could not take place, he would write to the Lord Chief Justice to seek his approval of the appointment of a senior judge to chair the inquiry.

The Lord Chancellor’s letter could outline the reasons why the coroner’s investigation needs to be suspended and why conducting the investigation into the death in question by way of an inquiry set up under the Inquiries Act 2005 is more appropriate. It could also request the approval of the Lord Chief Justice of the appointment of a senior judge to chair that inquiry, and cite any other matters that may be relevant. This could be followed up if necessary by a meeting between the Lord Chancellor, the Secretary of State and the Lord Chief Justice to discuss the matter. We would expect the Lord Chief Justice to take into account what steps had been taken to enable an inquest to proceed and to consider whether other steps could be taken. The Lord Chief Justice may suggest that these are considered before he decides whether to agree to a judge being appointed to chair the inquiry.

Thereafter, the Lord Chief Justice would consider the request and, if he gave approval to the appointment of a senior judge, he could then suggest a particular person to chair the inquiry. I should add that if it is considered appropriate for a judge of the Supreme Court to chair the inquiry, the Lord Chief Justice would consult the president of the Supreme Court before giving his approval. It would then fall to the Secretary of State establishing the inquiry formally to appoint the nominated judge. At the same time, the Lord Chancellor would request the coroner to suspend the investigation if the Lord Chancellor was satisfied that the inquiry’s terms of reference established the matters that an inquest would otherwise have established, as per Clause 5.

Finally, the decision to establish the inquiry and the identity of the senior judge who will chair the inquiry will be announced by way of a Written Ministerial Statement by the Secretary of State responsible for establishing the inquiry. It would then be open to any interested party to seek a judicial review of the decision to establish the inquiry.

I am sorry to have gone on for so long, but these matters greatly concerned this House a few weeks ago, and I hope that my explanation has gone some way to showing that we have taken on board the points that were raised. I hope in the light of this explanation that the House will be reassured that these measures provide an improved balance between the respective roles of the Executive and the judiciary in the very rare circumstances in which these complex issues are likely to arise. As I said, they deliver the judicial lock that the late Lord Kingsland sought all those months ago when he spoke at Second Reading. I commend the amendment to the House, and I beg to move.

17:00:00

Amendment to the Motion

Moved by Baroness Miller of Chilthorne Domer

A1: Leave out “Amendment 1B” and insert “Amendments 1C and 1D”.

1C: Page 115, line 28, leave out paragraph 3

1D: Page 117, line 14, leave out paragraph 8

Baroness Miller of Chilthorne Domer: My Lords, I beg to move Motion A1 as an amendment to Motion A, to leave out Amendment 1B and insert Amendments 1C and 1D. Our motion would have the effect of removing that part of Schedule 1 that empowers the Lord Chancellor to suspend an inquest.

We sent this Bill to the other place having inserted into it the ability for intercept evidence, with precautions as regards national security, to be made available to an inquest when needed. Last Monday the other place held an excellent debate which has given this House a clear steer on the two deep concerns that are shared on all sides: first, whether intercept evidence should be made available; and secondly, if such evidence is to continue to be unavailable, whether the Government should have a power under the Inquiries Act to substitute an inquiry for an inquest.

I shall address the first concern, the question of whether intercept evidence should be admissible. The honourable Dominic Grieve summed up the feelings of most MPs when he said,

“that to allow intercept evidence would be very difficult at this stage”.—[Official Report, Commons, 9/11/09; col. 60.]

He was absolutely right to identify the anxiety we in this House feel about the Government’s approach to these issues which was manifested in the vote we called for on intercept evidence. I am grateful to the honourable Dominic Grieve for identifying so clearly the problem we had with it. I am also grateful to the honourable Andrew Dismore for retabling in the other place the amendment we brought forward at earlier stages. It is the amendment we are now debating, and I believe that it allows us to consider the heart of the issue.

I thank the Minister for spelling out the detail of how an inquiry would work and for giving us a number of reasons why the Government feel that the route of an inquiry is the right one to take. He has not mentioned today that unless we change the law, in the Government’s opinion certain inquests cannot be held. However, on Monday the honourable Frank Dobson was concerned and puzzled that in the de Menezes case, where some of the evidence was clearly related to national security, the existing law worked well. He went on to say that:

“We should bear in mind that we were told by Ministers that there was no chance of an inquest in the de Menezes case unless we change the law—but we did not change the law, there was an inquest, and it was carried out quite satisfactorily”.—[Official Report, Commons, 9/11/09; col. 64.]

The question now before the House is whether it is reasonable in such sensitive cases to give the Government the right to order an inquiry under the Inquiries Act instead of holding an inquest. As I thought the Minister would in moving the government amendment, he prayed in aid the fact that at the Committee stage Lord Kingsland tabled some probing amendments to see if the inquiries route could be made more acceptable. But the Minister has forgotten how he concluded that he was uneasy about using the Inquiries Act for this purpose because its procedures are initiated by an executive act of the Secretary of State and the investigation flows from that act. By contrast, coroners are centuries-old, well established public figures who are independent of the Executive. As a matter of principle, one would wish that all inquests were conducted through the coronial system.

I appreciate the Lord Chancellor’s remark that the Government have been up hill and down dale on this matter, and we sympathise with that because it is not an easy issue. But the one case over which he and these Benches have tussled is not a reason for blowing a hole through the entire inquest system. The honourable Bob Marshall-Andrews said in the other place:

“The problem that this draconian measure seeks to remedy either does not exist or is so infinitesimally small that it would be a grotesque misuse of the House’s power to hand to the Executive such a very large extension to their powers”.—[Official Report, Commons, 9/11/09; col. 69.]

I know that the Lord Chancellor said, in effect, “Trust me. There is no reason not to trust me”. However, if this provision was introduced on to the statute books, we would have to trust not only him but as yet untried and unknown Lord Chancellors. If a less trustworthy one started to misuse the power, he would certainly not take it away from himself. Further, the Lord Chancellor said that it would be used only in exceptional circumstances, but the Government would judge what circumstances were exceptional and they would have the power to decide whether to substitute an inquiry for an inquest.

The Lord Chancellor said that he and the Home Secretary will bring forward a protocol to set out the circumstances in which such an inquiry would take place, but such a protocol could have been before us for discussion months ago if it was considered useful. It could have been in the Bill if the Government had felt it was so valuable.

Once the concept that the Government can order an inquiry instead of an inquest has been established and has gained a statutory footing, we will have taken a big step down a road where the public will lose all trust that we have maintained adequate defences against state impunity. The Lord Chancellor has underestimated the deep distrust and suspicion that is aroused when the Government try to circumvent the centuries-old, trusted system of inquests, with its independent coroners and juries, which is essential for society. This House is the guardian of long-term good over short-term expediency. I beg to move Motion A1.

Lord Henley
My Lords, I will in due course speak to Motion A1. I start by addressing Motion A because, without doing so, I cannot address Motion A1. I thank the Minister for his detailed explanation and for the assurances that he gave the House. I wish to put a few questions and seek a few further assurances, although he gave a number of them in his opening speech.

I am grateful to the Minister for quoting my honourable friend in another place, particularly when he referred to the difficulty of introducing intercept evidence at this stage. However, to be fair to my honourable friend, I ought to complete the quotation. The Minister quoted him as saying that our party is,

“on the record on countless occasions as wishing to see intercept evidence available in criminal trials and at inquests”.

The Minister then stopped. However, it is worth quoting the extra sentence that my honourable friend added, in which he made it quite clear:

“That is desirable and it is a shift that needs to take place”.—[Official Report, Commons, 9/11/09; col. 60.]
 

Having said that, we feel that we have taken the matter as far as we can in this Bill. I have no doubt that in future there will be further opportunities, in both this House and another, to consider the benefits of allowing intercept evidence to be heard in courts, including coronial courts. However, it is not necessarily a matter that we need to discuss further at this stage.

Moving on to what my honourable friend Mr Grieve and my late noble friend Lord Kingsland referred to as the “judicial lock”—my late noble friend made these points many months ago—the Minister has made an effort to meet this with Amendment 1B, which we are asked to agree in Motion A. As the Minister explained, the key addition is new paragraph (c), which provides that the Lord Chief Justice must indicate his approval to the Lord Chancellor of the appointment of a senior judge to chair an inquiry. In deciding whether to accept the amendment, we have to ask ourselves whether that is enough.

If one were marking an exam paper, one would have to say that the noble Lord could have done slightly better, but we are grateful for what we have. We have asked for the route to be one of formal application and, in talks with the Lord Chancellor, the Government have given us the impression that it is too late in the passage of the Bill to insert that the Lord Chancellor must make an application to court for an inquest to be suspended and an inquiry to be established. That route was proposed some time ago, and I cannot see why the Government could not accept it. In fact, I wonder whether, if it was really something that they found attractive, they could not even now do something about it—but that possibly is too late. I leave that thought with the Minister.

I turn to the amendment that the Minister has presented, on which I have a number of questions. First, what precisely in the amendment that he proposes does “indicated approval” mean? Clearly, there is no formal application in the sense of having judicial procedure through the courts. Would the exchanges between the Lord Chancellor and the Lord Chief Justice be a matter for public record? I am encouraged by the apparent improvement in the language from Section 10 of the Inquiries Act 2005, which states that, when a figure is appointed to an inquiry, the Minister must merely consult the Lord Chief Justice. In the current amendment, we must have his approval. That suggests to me that the Lord Chief Justice must agree with the reasons given by the Minister for needing an inquiry. In asking the Minister to confirm that, can I ask him also to explain carefully the wording of the new paragraph? If the Lord Chief Justice does not approve “that judge” whose name has been put to him, what happens then? Is the Minister saying that another judge will be nominated for approval? If the Lord Chief Justice refuses to give his approval for any judge, because he felt that the case presented to him by the Lord Chancellor was not suitable to be heard at an inquiry, what would happen then?

In the Commons, the Lord Chancellor said that,

“it goes without saying that I have to ask the Lord Chief Justice from time to time to nominate a judge; if he or she were to decide that no judge were to be nominated that would be the end of the matter”.—[Official Report, Commons, 9/11/09; col. 57.]

I believe that that is an ambiguous statement. It is the end of what matter? Does it mean that the Lord Chancellor would stop asking for an inquiry, as he would not have the approval of the Lord Chief Justice for a judge to be nominated, and accept that he had not made his case, or does it mean that he would simply ignore the Lord Chief Justice and push through an inquiry without an approved judge? I would welcome a clear statement on the record that, if the Lord Chief Justice does not approve a judge to chair an inquiry, there will not be an inquiry.

I expect that the effect of the proposed mechanism is that the Minister, as I think he made clear in his opening statement, will be obliged to make a statement explaining what is going on and, in the words of my honourable friend in another place, explain to the House why an inquest was impossible, answer the hostile questioning of the House and allow Members of the House to express a view. We would expect nothing less than that—a chance for Parliament to be able to debate the matter. I think that the Minister was talking merely of a Written Statement, but I should be grateful for what he has to say.

The last question that I wished to put to the Minister was on seeking confirmation that a judicial review would be available. However, since he has made it quite clear that it will be available, that is an assurance that I need not ask from the Minister.

Having asked for those assurances, perhaps I may say that although it might be putting it too strongly to say that we endorse Motion A—it is an imperfect situation—we will not oppose its passage at this stage. The Government could have done better as they have been offered a great deal of advice. For us, to oppose it at this stage or to support it would not be the right way forward.

I have some difficulty with the noble Baroness’s amendment moved in her Motion A1 because it would remove the inquiry route altogether. However, as she has accepted that the intercept route has stalled for the moment—at least, I presume she has accepted that—to remove it would put us back at square one. Obviously, I have some sympathy with her objections, but we have to take the pragmatic approach at this stage, as so often happens in this House, that half a loaf is better than no loaf at all. Therefore, we on these Benches will neither support nor oppose Motion A, but nor will we be able to support Motion A1.

17:15:00

Lord Pannick
My Lords, this is a much more difficult issue than the Minister suggests. An inquiry before a judge, however eminent he or she may be, is simply unlikely to command the same public confidence as a hearing before a jury, especially when the hearing is determining the cause of death of someone who died at the hands of state officials. The Minister rightly emphasised that we are dealing with a very small category of cases, but they will inevitably be precisely those cases where public concern about the death is at its most acute and where the exclusion of a jury will prevent the inquest from performing its basic function of providing a process by which the bereaved family and the public can be fully reassured that an investigation has identified the cause of death.

It may well be, as the noble Lord, Lord Henley, said, that we in this House have taken the matter as far as we can. For my part, I ask the Minister to give assurances on two matters. First, will the judge who is appointed under the inquiry have the power to appoint other independent persons who have security clearance to sit with him or her in hearing this matter? Secondly, will the Minister assure the House that the report of the inquiry produced by the judge will be published in all cases in full subject only to the exclusion of any security information as approved by the judge?

Baroness Butler-Sloss
My Lords, I was not intending to speak, but the noble Lord, Lord Pannick, spoke about his hope that the Minister would give an assurance that if a judge sat in an inquiry he would have others to sit with him. I happened to sit on an inquiry of a totally different sort through 1987 and 1988, and I gained the most enormous help from three very talented assessors. I have looked with some dismay and concern at a number of important inquiries where distinguished judges or other people have been asked to sit alone. There is a huge amount of advantage in what the noble Lord, Lord Pannick, said about having others to assist the judge trying. They would not be the decision-makers: they would be the advisers. In my case, they were called assessors. That would help a great deal and would mitigate the problem, referred to by the noble Lord, Lord Pannick, about the absence of a jury meaning that it might not have the same degree of credibility. In those cases, the judge could be assisted by those who would advise, but who certainly would not make the decision.

Lord Mackay of Clashfern
I support the points made by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss. It is not clear to me what exactly is supposed to happen if the Lord Chief Justice does not agree to appoint a judge. I assume that that is a necessary step in the setting up of the inquiry. Therefore, if he declines to do so, there will not be one. I assume—I hope this is correct—that the Government consulted the Lord Chief Justice when they put forward this proposal, so that he knows about it and is willing to undertake this extremely important judgment at the stage when it is supposed to be made. As the noble Lord, Lord Pannick, said, that is an important matter.

Lord Bach
My Lords, I am very grateful to all noble Lords who have spoken, particularly to the noble Baroness, Lady Miller, for moving her amendment. The amendments seek to strike out paragraphs 3 and 8 of Schedule 1, thereby removing the duty on a coroner to suspend an investigation following a request to do so from the Lord Chancellor in circumstances where an inquiry has been established into the circumstances of the same death. It remains our view that it is entirely appropriate that when an inquiry is established into the circumstances of a death, the coroner’s investigation should be suspended and resumed only if the coroner considers that there are sufficient grounds to do so. To do otherwise would, in our view, be a waste of public money as both sets of proceedings would in essence be considering the same issues. It could lead to confusion and inconsistency as well as possibly causing added intrusion into the private grief of the family for no discernable benefit. Those problems would be amplified only if the two separate investigations came to different conclusions, particularly if they heard different evidence from different witnesses. The added grief that this would cause to the bereaved family for no good reason is surely not something that we should want.

Moreover, in those exceptional cases where an inquiry had been established in order to protect highly sensitive information, such as intercept material, from public disclosure, it could well be the case that any coroner’s investigation that proceeded in parallel with an inquiry would not have access to the full facts and would not therefore be Article 2 compliant. It is questionable whether any coroner would want to proceed with an investigation in those circumstances. We consider that a coroner’s investigation should be suspended pending the outcome of an inquiry and it should be a matter for the coroner to decide if there is sufficient reason to resume the investigation at the conclusion of the inquiry.

Given the concerns expressed by noble Lords about delays in complex cases, if not in inquests generally, we would have thought that that in itself was sufficient reason not to have two similar types of investigation into the same case. For any Members of your Lordships' House who may be tempted to vote for Amendments 1C and 1D, perhaps I may remind them that the effect of these amendments would be, as the noble Lord, Lord Henley, pointed out, to strike out the judicial lock in the process of establishing an inquiry, which I described earlier. If Amendments 1C and 1D were carried it would still be open to a Minister to establish an inquiry to investigate the circumstances of a death, but the important safeguard in government Amendment 1B would not be there because that part of the Bill would be omitted. So I invite the noble Baroness to withdraw her amendment. If she does not, I invite the House to vote against it.

I will respond to the noble Lord, Lord Pannick, and to those who spoke and agreed with him on the questions that he asked, and will also answer the questions of the noble Lord, Lord Henley, who asked what was meant by “indicating approval” and whether it would be on the public record. I will come to that in a moment.

The noble Lord mentioned a judge. Amendment 1B(b) refers to “a senior judge” who has been appointed under the Inquiries Act as chairman of the inquiry. The Lord Chancellor cannot simply go through a list of judges until the Lord Chief Justice is content to approve one of them. The Lord Chief Justice is being asked to approve the displacement of a coroner’s investigation by an inquiry in the most rare of circumstances. I hope that my next sentence will answer some points asked by other noble Lords. If the Lord Chief Justice does not give his approval to the suspension of the coroner’s investigation, no inquiry will be established. I could not be clearer than that.

The noble Lord, Lord Henley, asked whether the exchanges between the Lord Chancellor and the Lord Chief Justice would be made public. I do not think that he will be surprised by my answer, which is that they will not. They will be summarised in the Written Ministerial Statement that the appropriate Secretary of State will be required to make when announcing an inquiry. There could be an Oral Statement if there were major public concerns about the death that was the subject of the inquiry. We know that noble Lords and honourable Members in another place are quite able to ask Questions and get Statements if they so require.

The noble Lord, Lord Pannick, asked whether the judge who is to chair any inquiry will have powers to appoint other panel members. I do not wish to appear disrespectful—the noble Lord will know Section 4 of the Inquiries Act 2005 much better than I do. When an inquiry panel is appointed:

“Each member … is to be appointed by the Minister by an instrument in writing … The instrument appointing the chairman must state that the inquiry is to be held under this Act … Before appointing a member to the inquiry panel (otherwise than as chairman) the Minister must consult the person he has appointed, or proposes to appoint, as chairman”.
 

The senior judge would be consulted before that appointment was made.

The noble Lord’s second question, which was also asked by other noble Lords, was whether the report of an inquiry would be published in full, subject to the exclusion of security information as approved by the judge. The answer is that it will—only security matters will not be disclosed. This will be a matter of agreement between the Minister and the inquiry chairman. I hope that that goes some way to satisfying noble Lords who are interested in these matters.

I have said what I want to say. In due course I will move my amendment.

Lord Mackay of Clashfern
My Lords, has the Lord Chief Justice been consulted on the terms of the amendment, and has he accepted the responsibility that it would impose upon him if it is passed?

Lord Bach
My Lords, I must be very careful what I say about conversations that have taken place. The Lord Chancellor and the Lord Chief Justice spoke on the matter this morning, and I have no reason to think that anything that I have said would be disapproved of by either party.

17:30:00

Baroness Miller of Chilthorne Domer
My Lords, that last reply is surprising if this has been in the Government’s mind for some time and has been consulted on only this morning. I am grateful to the noble and learned Lord, Lord Mackay of Clashfern, for raising the issue.

This debate dwelt on process, rather than principle. I can understand why that is the case, because if the Government win the day on this, process will be important. The experiences of the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Pannick, are important. They asked extremely pertinent questions.

I return for a moment to what the Minister said. He talked about whether it would be helpful for a bereaved family in their private grief to go through more than one process. What matters to a bereaved family listening to an inquest is that they know the truth and that lessons are learnt for society. I know this from personal experience and because I have talked to bereaved families. When the inquiry process happens, however good the judge is, if there is loss of confidence by that family and by society, the Government will have taken a historically regrettable step. I recognise that we will not get much further with this argument today, so I ask the House to agree to my amendment.

Division 1
11/11/2009 17:31:00
Division on Motion A1
Ayes: 70
Noes: 175
Motion A1 disagreed.

Motion A agreed.

17:44:00

Motion B

Moved by

Lord Bach
That this House do not insist on its Amendment 55 to which the Commons have disagreed.

Lord Bach
My Lords, the Government remain firmly of the view that the sexual infidelity exclusion in the new partial defence of loss of control, contained in Clause 45(6)(c), should remain part of that clause. The other place endorsed that view by a majority of 154. That is a significant majority against a Lords amendment. I note and, indeed, greatly welcome the fact that the Liberal Democrats abstained on that vote in another place.

On Report in this House, it was suggested that the exclusion of sexual infidelity as a cause of loss of self-control was both illogical and undesirable. We beg to differ. Far from being illogical, the Government’s position is based on recognition of the history of the partial defence of provocation—a history that has led to a commonly held belief that this is a defence that can be exploited by men who kill their wives out of sexual jealousy and revenge over infidelity.

We have been clear through every stage of the Bill: as a matter of policy we do not believe that in this day and age loss of control based on anger should normally justify reducing murder to manslaughter. No one is disputing the fact that people lose their temper and kill; we are simply saying that that should not generally constitute grounds for a partial defence to murder. This is one of the reasons why we are abolishing the partial defence of provocation and replacing it with a partial defence of loss of control, which, among other things, significantly narrows the circumstances in which a defendant will be able to plead a partial defence when they kill in anger.

The Government have also been consistently clear that we do not believe that, in this day and age, sexual infidelity on the part of the victim should ever, in and of itself, constitute grounds for making out a partial defence of loss of control. Of course, we do not dispute the fact that people lose their temper and kill in response to sexual infidelity on the part of the victim, but we are arguing that this should never be a reason to justify reducing a murder charge to manslaughter and we want to put that matter beyond doubt.

We are not alone in this view. No fewer than 55 organisations and individuals, including academics, practitioners, members of the public and victims of domestic abuse, have, since this House voted to remove the sexual infidelity exclusion from the Bill, taken the time to write to the Government asking for the provision that was previously in the Bill to be reinstated. Among these are the Women’s National Commission, an umbrella body representing more than 550 partner organisations, many of which work directly with women who have experienced violence, Rape Crisis England and Wales, Amnesty International UK, the Centre for Action on Rape and Abuse, Justice for Women, Assist and many others. They all ask for the government provision to be reinstated in the Bill. But it is the words of a member of the public that I wish to draw to the House’s attention. The lady stated in her letter:

“No-one condones infidelity; it is a terrible thing to do to someone. However, to suggest that the murder of the guilty party should be condoned is nothing short of barbaric. Usually it is men who plead this excuse but the type of man who would kill his partner is generally so controlling that he will have a history of jealousy and violence, potentially driving the woman away from him. To therefore suggest that she would be responsible for her own killing is as absurd as it is inhuman. It is not a plea that should be permitted in a supposedly civilised society”.
 

It has been suggested that the issue should be left to the jury to decide. However, those noble Lords who advocate such an approach are implicitly arguing that there are situations where a defendant should be able to successfully make out a partial defence based on sexual infidelity, in and of itself, on the part of the victim. We simply do not agree. As a matter of policy we believe that men and women who kill their partners because of unfaithfulness should be convicted of murder and we want this to be enshrined in statute.

It seems to the Government, based on the debates in this House, that there is a range of views on whether sexual infidelity should ever constitute grounds for reducing murder to manslaughter. This serves only to strengthen our view that, in order to put this matter beyond any doubt, it is important to set it out in the Bill. I urge the House not to insist on its amendment. I beg to move.

Amendment to the Motion

Moved by

Lord Thomas of Gresford
B1: As an amendment to Motion B, at end insert “, but do propose Amendment 55B in lieu—

55B: Page 29, line 19, leave out paragraph (c) and insert—
 “(c) where D acted principally out of a desire to punish V for any act, whether by V or by any other person, which D perceived at the time to amount to sexual infidelity, or where D acted principally out of sexual jealousy or envy, the circumstances shall not constitute “circumstances of an extremely grave character” for the purposes of subsection (4)(a).””

Lord Thomas of Gresford
My Lords, the noble Lord, Lord Bach, referred to the history of provocation. It was a defence in common law that started to be developed at the beginning of the 18th century as an act of mercy by a jury who, having considered all the circumstances, permitted a defendant who would otherwise have swung on the gallows for murder to be convicted of manslaughter. In 1957, when the death penalty was still in place, provocation was defined in statute in these terms:

“Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man”.
 

Case law developed the concept that the reasonable man with whom the defendant is to be compared should be taken to be of the same age and sex as the defendant and should share any particular peculiarities from which he suffers—for example, his stature, colour, ethnicity and so on.

Since the death penalty was replaced by the mandatory life sentence, the practical effect of the defence today is in sentencing. If a man or woman is found to have committed murder, the jury may reduce what would otherwise be a verdict of murder to manslaughter by reason of provocation. That makes it possible for the judge to sentence the defendant in his discretion to anything from life imprisonment to an absolute discharge. Indeed, I once prosecuted in a case where a woman who had killed her husband by driving a hammer through his head when he was asleep received an absolute discharge by reason of the way in which she had been treated by her husband shortly before she killed him 25 years before the body was found. However, life imprisonment is not an unusual or uncommon sentence.

Provocation raises many difficulties. In one appeal from Hong Kong, I represented a defendant who killed a young woman who had taunted him. The defendant had suffered brain damage as a child and therefore the question arose whether he should be compared for what he did with a reasonable man in full possession of his faculties or with a person who had suffered brain damage. The Privy Council held that that comparison should not be made but the Court of Appeal in England and Wales, which normally follows the Privy Council, disagreed and refused to follow that decision.

Therefore, the law, which was always unsatisfactory, became even more so, to the point that in 2005 the Law Lords sat, unusually, in a panel of nine in the Privy Council on an appeal from Jersey in the case of Holley. They attempted to bring some rationality into this area. The noble and learned Lord, Lord Nicholls of Birkenhead, giving the judgment of the majority, concluded:

“I should not like to leave this case without registering my strong agreement with both the majority and minority that the law of homicide needs comprehensive and fundamental reform. It is a patchwork of rules which makes coherent direction of juries unnecessarily difficult and reflects no credit on our legal system. Judges are bound to apply the law as it is, but that does not prevent one from reminding the world at large and the legislature in particular, that there is a real risk that the present law, containing as it does so many difficulties in its application, may cause injustice in individual cases, even where it is faithfully and correctly communicated to a jury. I do not propose to dilate upon the alternatives, a unified offence of unlawful killing or permitting the jury to return a verdict of murder with mitigating circumstances, allied with the abolition of the mandatory death penalty. They do exist, however, and the adoption of one or other would simplify the law, removing the need for the extended discussion of the minutiae of provocation and the differences of opinion among judges. The latter I genuinely regret, but as the law stands I must join the dissent”.
 

Provocation is a mess. The Law Commission, led by Professor Jeremy Horder, reported in November 2006. In its report, Murder, Manslaughter and Infanticide, following extensive consultation with a wide range of bodies, the commission said that,

“partial defences remain misleading, out-of-date, unfit for purpose, or all of these”.

The Government have not followed its recommendations for wholesale reform of the law relating to homicide into a three-tier system. By this Bill, they have simply tinkered with the existing unsatisfactory law. They seek to introduce changes to the existing partial defences of diminished responsibility and provocation. They have totally undermined the coherence of the Law Commission’s proposals in a way that can only bring further chaos and difficulty in this field.

The Law Commission never considered, let alone recommended in its report, that the jury should be barred, on a defence of provocation, from considering any circumstances arising on the facts of the case, but Ministers floated the entirely novel idea of excluding sexual infidelity as an ingredient of provocation. In a memorandum submitted at the Committee stage of this Bill in the Commons, Professor Horder, the law commissioner, who was appointed to look at the whole law of murder, commented on this sexual fidelity clause. The memorandum states:

“One of the difficulties about being ‘absolutist’ in this area is that one prevents the jury hearing rare, meritorious cases ... Can the jury not be left to filter out unmeritorious cases by deciding for itself in a loss of self-control case simply whether 42(4) and 41(1)(c) are satisfied?”.
 

That is the provision that we took out on Report. The memorandum continues:

“Even if that 42(6)(c) is left in, on the face of it, the wording is, with respect, bizarre. In what circumstances can a thing ‘said’ in itself ‘constitute’ sexual infidelity, and is that what is really being aimed at?”.
 

Professor Horder continued:

“I am sure that I will not be the only person to remark that the focus on sexual ‘infidelity’ is curious; even, paradoxically, old-fashioned. Does it cover unmarried relationships where there is no duty, in law, of fidelity? More seriously, is what is really being got at here sexual jealousy and envy, not ‘infidelity’? If so, why not say so?”.
 

That was the swingeing criticism of the expert in this field on the effect of the clause. It is “bizarre”; your Lordships are being invited to put back into the Bill something that is bizarre.

In this House, the noble and learned Lord, Lord Lloyd of Berwick, supported by us, introduced a new clause and substitution for all the Government’s clauses in question. His amendment was drafted by Professor John Spencer of the Faculty of Law at Cambridge University, who is an outstanding specialist in criminal law, as I am sure all lawyers would agree. The purpose of the amendment was to abolish provocation altogether but to permit a jury, if it thought fit and subject to safeguards, to add a rider to its verdict of guilty of murder a statement of mitigating circumstances, which would permit the judge to pass a sentence other than the mandatory life sentence. In other words, the amendment adopted one of the suggestions made by the noble and learned Lord, Lord Nicholls of Birkenhead, in the case that I quoted. That was defeated.

An hour later, the noble and learned Lord, Lord Lloyd, again supported by us, called a Division to exclude all these tinkering changes with the law of provocation. The final amendment, moved by me, was to remove the bizarre subsection. When that provision went back to the House of Commons, the Minister, the honourable Claire Ward, made the most basic error of reversing the burden of proof. That is fundamental, but she suggested that it lay on the defendant. She argued for this principle: whether the House believes that when a person commits sexual infidelity they in some sense bring upon their own death at the hands of their partner, husband or wife.

18:00:00

That sentiment is echoed in a letter circulated today by the right honourable Harriet Harman, who says:

“The defence [of provocation] is profoundly objectionable”.

I agree that it is profoundly objectionable, but not for the reasons that she gives. She says:

“It blames the victim for their own death. It allows the defendant to shirk responsibility for their own actions and, most importantly, it institutionalises the culture of excuses”.

That is just nonsensical rhetoric in an area of law of great sensitivity that must be very carefully drafted. I note that Vera Baird, QC, the Solicitor-General, who knows her way around the Old Bailey as a skilled criminal practitioner, has taken no part in this debate at any stage.

Ms Harman adds to her letter, which some of your Lordships will have seen, that it contaminates the issue around lesser offences if for the more serious offence of murder you can use this excuse to reduce the charge. This ignores the most basic point, which any student would know and would grasp in their first year: that provocation is a partial defence only to the charge of murder, for the reasons that I have given, to enable the defendant to escape the gallows if the jury thinks fit in all the circumstances. Neither the Government nor Justice for Women, which gave evidence to the Commons Committee, can produce a single instance of a jury in modern times making a finding of provocation in favour of a male defendant who has killed his wife or partner simply by reason of her infidelity.

In Humes, a case in 2002, the defendant had stabbed his wife repeatedly in front of their four children, who were aged 14 to seven, and there were no other witnesses. It is reasonable to assume that the prosecutor took the view that it was in the public interest to accept that plea to the lesser offence, rather than to call the children and during the trial to relive the experience of seeing the death of their mother. That was no doubt a rather compassionate view. The judge who sentenced the defendant to seven years, Sir William Gage, headed the recent working party on sentencing, of which I was briefly a member, and on whose report the sentencing provisions in this Bill are based. The Attorney-General appealed that sentence to the Court of Appeal as being too lenient, but the Court of Appeal upheld the trial judge. That is the only case that Justice for Women can cite where there was a killing by reason of pure infidelity. And I, after, I regret to say, some 50 years in the criminal courts, cannot recollect a single case in which a jury accepted that a male defendant could rely on the partial defence of provocation based simply on his wife or partner being unfaithful.

There was a case two weeks ago, called Sinclair, in which the jury brought in a verdict of manslaughter but on the grounds of diminished responsibility. In other words, the jury found that the defendant was suffering from a recognised mental condition which had seriously diminished his responsibility for what he did. It was not the defence of provocation. But the proponents of this subsection seem to have forgotten that provocation is a defence open also to the woman who kills her husband or partner. Professor Horder points to a hypothetical example. Suppose a woman kills her husband because he has secretly impregnated her three daughters by an earlier marriage, or her sister, or maybe even her mother. Under the Government’s proposals, she would be guilty of murder and would be subject to a mandatory life sentence no matter how great the insult and the breach of trust to her had been by that.

I would also suggest a situation in which a woman killed her husband who had imported his mistress into the matrimonial bed and treated his wife as a servant. She could argue provocation on the basis of being treated as a skivvy by her husband, but she would not be able to rely on the insult of the sex going on beside her every night. And what about the woman who suffers neglect or violence at the hands of her husband over a period of years but who finally takes up the hammer or the meat knife when she sees him having sex with her best friend? That is the last trigger. She sees him being unfaithful, but she has had a terrible life up to that point. Must the jury ignore the most proximate insult, the cause of her attack—namely, her seeing sexual infidelity in her husband—and simply consider provocation on the basis of the treatment of her over a period of years leading up to that point? How do you expect the jury to disentangle one set of circumstances from another?

Murder cases throw up an infinite variety of factual situations. I prosecuted a case in which a young man threw a bird bath through the bedroom window, jumped in, slaughtered his former girlfriend and her lover, mutilated them and then, at trial, argued diminished responsibility. He was unsuccessful, so he went to the Court of Appeal and said that the judge should have said it was provocation. We then had a second trial, and again the jury found murder in those circumstances, as you would rightly expect. Supposing a husband kills his wife and her lover on learning of her infidelity? Under this clause, he could argue provocation in respect of the lover, who is in no way being unfaithful to him, but not in respect of his wife. There are all sorts of difficulties about this bizarre subsection.

The Government have argued that their proposal would send a message to the country at large that women are not the property of men. That no doubt is why Professor Horder thought it so curiously old-fashioned. Is it really to be supposed that a man who held that belief and killed his wife would find sympathy with a jury of 12 citizens today? It is fanciful to suppose that a defendant in those circumstances could find 12 people who agreed with him that women were his property.

Domestic violence is a daily issue in all the newspapers, of which no juror can be unaware. A jury is, in practice, a balanced cross-section of a local community. It is much more balanced than Parliament in its composition, whether by gender, ethnic diversity, social class or indeed intellectual and emotional abilities. It is the experience of all of us who practise in the courts that the jury reflects contemporary values, because it is such a cross-section of the community.

Miss Claire Ward in another place said that the Government are determined to ensure that the law keeps pace with the times, but that is exactly what a jury does—it keeps pace with the times and reflects the current values of the people. One therefore has to wonder why this Government have constantly demonstrated their unwillingness to trust such an essentially democratic institution.

I have wearied your Lordships long enough with my attack on this—

Noble Lords
Hear, hear.

Lord Thomas of Gresford
May I get to the amendment, in which we try to make at least some sense? It ties the issue of sexual infidelity to a specific part of the trigger provisions; namely, that the circumstances should be of an extremely grave character. It concentrates not on the thought processes of the jury but on the actions, intentions or reasons for action of the defendant. The jury can decide whether the defendant was acting principally out of a desire to punish his or her partner by reason of what he perceived to be sexual infidelity.

The focus of the amendment is on the defendant’s state of mind—his mens rea—which is familiar territory for the jury. If the issue is raised, the jury, using its broad experience and knowledge of the world, can and should determine it. I beg to move.

Lord Henley
My Lords, I have some sympathy with what the noble Lord, Lord Thomas of Gresford, said, in particular, what he had to say about the Law Commission and provocation, but I sense the feeling throughout the House that this is possibly not the time and place for quite such a lengthy debate on these matters when we are considering Commons reasons.

I shall briefly set out our position. The Minister said that in another place the Government won the Division by a majority of 154. I think he would accept that anyone who listened to that debate or has read it since will agree that the Government comprehensively lost the argument, even if they won the vote on that occasion. It is therefore tempting to send a matter such as this back again, but it is quite clear that the Government have fixed themselves firmly on their misunderstanding of the argument and will stay there for the duration. To send it back would simply rehearse all the same arguments, waste yet more time and do nothing to change their minds. I believe that any further vote on this matter would be futile and I can assure the Minister that we will be abstaining on the amendment to the Motion if the noble Lord, Lord Thomas, presses it.

Baroness Gould of Potternewton
My Lords, I rise to oppose the amendment and ask for the reintroduction of the original clause. The noble Lord, Lord Thomas of Gresford, should offer an apology to my right honourable and learned friend Vera Baird, with whom I have had long conversations about the subject, and who fully and absolutely supports the Government's position. An apology is in order, because his remarks will now be printed in Hansard.

I do not have and cannot give examples of what has happened in court; I cannot cite cases. I can cite the views of many hundreds of women who feel absolutely outraged that this House deleted the clause in the first place. The Women’s National Commission, of which I am chair, and which, as my noble friend said, represents 550 very varied women’s organisations, large and small, around the country, was inundated with queries as to how that could possibly happen. No one believed that it could. As a consequence, I was asked as chair whether I would write to the Secretary of State for Justice expressing the concerns of those many women, which I did. I was delighted—as I am sure they were as well—to see it back. I hope that it stays in the Bill.

The Women’s National Commission has long known from our work with the violence against women sector the devastating effect of domestic homicide on families and communities. In the UK, two women a week die at the hands of their partners. That level is clearly unacceptable, but until violence against women is eradicated, we must ensure that justice is served on those men who commit such crimes.

As has been said, the law of provocation has a long history. The killing of a wife or girlfriend by a partner because of an actual or suspected infidelity—she may never have done anything, but he thinks that she has—has often been used in the past to reduce murder to manslaughter. The law should be clear that it is no longer acceptable in the 21st century—not the 18th century, the 21st century—that anyone owns anyone. The penalty for infidelity—which in itself is not a crime—should not be one of killing by anyone. Those partners who believe it right to kill should always go on trial for murder. In this instance, our concern is that men who kill women should not be able to plead the traditional argument that she was unfaithful, or that she might have been unfaithful, to support a plea of loss of self-control.

The noble Lord, Lord Thomas of Gresford, cited the Humes case of 2002. The point about the Humes case was that the judge accepted the manslaughter provocation. It did not go a jury, and yet we have heard an awful lot about how the clause is unnecessary because juries would understand in this modern age. That case did not go to a jury; the judge took the decision. Therefore, the argument in respect of juries collapses. I find it extraordinary that those arguments have been put.

It is vital that the Bill is amended once more to reintroduce the clause and to return it to the Commons. Without the clause, the Coroners and Justice Bill will allow men who perpetrate violence against women to operate with impunity. It is vital that we protect women and children by supporting the clause. Infidelity alone cannot and should not provide a defence for murder.

18:15:00

Lord Elystan-Morgan
My Lords, I have not spoken in any of the earlier debates on this matter and, indeed, have been more than happy to listen to the advice and experience of those in an excellent position to treat the subject, but I respectfully believe—late though the hour is in relation to these debates—that there is a fundamental misconception that goes to the very heart, core and kernel of the issue.

The misconception is this. The case put forward by the Government in the House of Commons was that the public saw the provision as enabling a person who detected infidelity in a partner or wife to kill that partner. That has never been the law. That is the misconception. I appreciate that that can easily be misconceived, because the fact of infidelity, along with dozens of other situations, can prove a trigger to a core conclusion by a jury that there has been a loss of self-control of such magnitude as would justify a verdict of manslaughter rather than murder.

The Government have themselves misconceived the situation. I ask the House to indulge in this simple test. Clause 45(4), which covers one situation that can trigger a defence of provocation, states:

“This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which—
 

(a) constituted circumstances of an extremely grave character, or
 

(b) caused D to have a justifiable sense of being seriously wronged”.
 

The Bill itself provides for a situation where mere words could be a provocation that a jury would have to adjudicate on.

It would be a misconception to say that surely it is wrong that there should be justification for killing a man or woman on account of what that man or woman has said—mere words. If we were to say that, we would be falling into exactly the same misconception as is at the very root of the Government’s attitude in this matter. It is not the fact of infidelity that justifies the taking of a life; it is the situation—it is a matter not for the defence to prove but for the prosecution to expunge—where the jury cannot expunge the fact that there could have been a loss of self-control of such magnitude as to reduce the case from murder to manslaughter.

In that context, bearing in mind that the law of provocation is some 300 years old, as the noble Lord, Lord Thomas of Gresford, reminded us, that it was codified in Section 3 of the Homicide Act 1957 and that it has never made any reference to infidelity or any other specific condition, it has allowed the law to have as broad as perimeter as necessary, bearing in mind the myriad situations that could be relevant to this issue. In those circumstances, what one has to look at is not the trigger condition—I appreciate that there is a trigger provision in Clause 45—but what the jury has to decide, which is whether what has happened has so unhinged, disintegrated or destroyed the control of the defendant as to render his act less than murder, but rather manslaughter.

The very fact that the public have a misconception about this matter does not justify this measure. I believe that the Government have looked upon it very sincerely and have come to the wrong conclusion because they have asked the wrong question. If this matter is not dealt with now, in the creative way that this House suggested, it could prove to the disadvantage of women. I have profound respect, as has the House, for the noble Baroness, Lady Gould of Potternewton, and I appreciate the strong, sincere feelings that are abroad on this matter, but it does not help the situation to pander to those misconceptions, to use legislation to fuel them and to do so in such a way as to do a disservice to the administration of justice.

Lord Pannick
My Lords, can the Minister reassure me on one matter? I entirely understand the Government’s arguments if the defendant lost self-control as a result of infidelity, but supposing the defendant lost self-control not just because of sexual infidelity but because of the other grave circumstances surrounding the sexual infidelity. Suppose, for example, in a very grave case, the sexual infidelity involved the couple’s own children. Would it then be open to the defendant to rely upon those circumstances in order to seek to persuade the jury that the offence of murder should be reduced to manslaughter?

Lord Bach
My Lords, I am grateful to noble Lords who have spoken, not least the noble Lord, Lord Thomas of Gresford; although I have to say to him that in his learned speech I was waiting for him to put his amendment, and I waited a long time. He seemed to be opposing root and branch the Government’s amendment, which we are seeking to get back into the Bill, quite understandably given his attitude to it on Report. Then, almost as an afterthought, which did not fit in logically with his opposition to the government amendment, he spoke in a very few minutes, without going into any detail, to his amendment, which in many ways seemed to speak against the principle of opposing any legislation that talked about sexual jealousy or sexual infidelity. With the greatest respect to him, I thought that there was a mismatch between his overall opposition to what we are trying to bring back and the amendment that we are debating.

If I may say so, I take his amendment rather more seriously than perhaps he does. I shall argue against it on the grounds that it is, if I may use the expression, a damn good try to sort this out but, when compared to our original clause, it is not quite as good. I shall try to explain why. I do not want to take up too much of the House’s time, as I know that there are other matters that noble Lords are keen to get on to, but I feel obliged to do this. I shall do it in as short a time as I can. In the course of that, I hope I shall answer the proper question asked by the noble Lord, Lord Pannick.

We cannot accept the amendment before the House, which was tabled by the noble Lord, Lord Thomas, because it risks ruling out cases where we want defendants to be able to make out the defence and it opens up a loophole that could be abused in the very cases that we are trying to put beyond doubt. We think his amendment is both too narrow and too wide. Take the example of the case mentioned by the noble Lord, Lord Pannick, in which a woman discovers her husband sexually abusing their young daughter. This is the sort of case that both Houses quite rightly sought reassurance about when scrutinising the government clauses. The Liberal Democrat amendment risks excluding such a case. I shall try to explain why.

The effect of the amendment is that the defence cannot apply if the defendant acts principally out of a desire to punish the victim for any act, where that act is perceived to amount to sexual infidelity. In this scenario, the defendant may well perceive that the act—the abuse of the child by the father—amounts to sexual infidelity, although this is unlikely of course to be her reason for killing. However, the way that the exclusion is formulated in the amendment means that, once an act is perceived to be infidelity, killing principally in order to punish that act, whatever the motive for killing or whatever else the act may be perceived as, will be excluded. So the mother horrified at the abuse of her child, who may well kill out of a desire to punish her partner for abusing their child, but who also feels hurt by the fact that the father sought sexual gratification elsewhere, would put herself outside the defence on account of the perception of infidelity. That is not something that we would want to happen. By contrast, our approach was extremely carefully tailored after long consideration so as to allow the partial defence to still operate in this situation. Sexual infidelity is involved in this situation, and our clauses require that aspect to be disregarded—that is the word we use—but the defence can still stand or fall on the basis of the other aspects of the situation, namely the fact of the child abuse.

The answer to the noble Lord, Lord Pannick, is that the sexual infidelity motive cannot be recognised, but if there are other motives or reasons that constitute circumstances of an extremely grave character under Clause 45(4) and cause the defendant to have a justifiable sense of being seriously wronged, that would allow the defence to be used.

Our conclusion, therefore, is that this amendment quite inadvertently, and with the best of intentions, captures cases where we think—and both Houses have sought reassurance from us on this point—the defence ought to apply. Of course it is not the noble Lord’s intention that his amendment should do that but, regrettably, it is the effect. In that case, we think the amendment is too narrow.

The Government are also concerned that this amendment covers only those circumstances where the defendant kills to punish the victim for an act of sexual activity or whose motive is otherwise sexual jealousy or envy. Having a list of motives risks creating loopholes where killers can argue that their motive was something else not on the list; for example: fury, shock, embarrassment or betrayal. They are not mentioned in the amendment, so the man or woman who kills having walked in on their partner having an affair could argue that they lost their self-control and killed out of something other than a desire to punish. Focusing on motive inevitably creates these potential gaps. That is why our amendment, which we seek to put back into the Bill, focuses directly on the thing that has triggered the defendant to lose their self-control and to kill. If that thing is sexual infidelity, that fact must be disregarded. Sexual infidelity cannot be relied on as the reason for claiming the partial defence, however the defendant’s motive may be described.

I have taken the amendment seriously. It deserves serious consideration, and I know that it was planned with the best of intentions, but I invite noble Lords to take on board our concerns. Given the debate and particularly what my noble friend Lady Gould said, I hope that the noble Lord, Lord Thomas, will not press his amendment to a vote this evening, as in our view it might well make the position even worse.

We have had another substantial debate on this matter tonight, and it is now up to the noble Lord to decide what to do with his amendment.

18:30:00

Lord Thomas of Gresford
My Lords, I am most grateful to the Minister. In my view, the amendment is wider than the Government’s proposal, not narrower. One only has to state the proposition which the Minister advanced—that a person could rely on a defence of provocation because he was embarrassed by sexual infidelity—to see what nonsense that is. Of course there is the question of punishing someone and of jealousy and envy. We have widened the amendment in that regard, so I do not accept the Minister’s criticism that our amendment is narrow, although I accept his compliments for the purpose behind it.

I have the greatest respect for the noble Baroness, Lady Gould. I also have the greatest respect and admiration for Vera Baird. I did not misrepresent her point of view; I just wished that she had taken part in the debate in the House of Commons so that one could grapple with real legal argument as opposed to what I quoted from the right honourable Harriet Harman—the contrast to which I was referring. The numerous organisations which the noble Baroness, Lady Gould, represents comprise people who will be on juries—and there are more women than men on most juries these days—and who will put forward the up-to-date position as the public see it. I refuse to have my argument diverted into a suggestion that I am defending husbands against wives.

Baroness Gould of Potternewton
My Lords, I apologise to the noble Lord; I should have intervened a moment or two earlier. Many of the women I represent are lawyers. Some are judges and some are academics. They are not people who might happen to sit on a jury; they have a very strong opinion, based on their expertise and their knowledge, that what the Government are doing is right.

Lord Thomas of Gresford
My Lords, in that case I hope they will read the record of this debate and what I have said because, if provocation remains as a defence, it is a defence for women who may have killed their partners or husbands, rather than the other way around. That is the important point that I hope my speech has got across. I see that the noble Baroness accepts that that is the thrust of what I have been saying.

This is a very serious issue. It is quite wrong that a bizarre subsection, as the Law Commission put it, should be part of our legislation. As the noble Lord, Lord Elystan-Morgan, said—I am grateful to him for his support—there are huge misconceptions about this. If this goes through, judges up and down the country will have the greatest practical difficulty sorting what juries can and cannot consider as provocation. I just wish that this Government, instead of tinkering about at the edges, had had the guts to reform the law on homicide completely, as the Law Lords, the Law Commission and noble Lords have requested. I may not be successful this evening. Nevertheless, I ask your Lordships to agree to the amendment in my name.

Division 2
11/11/2009 18:35:00
Division on Motion B1
Ayes: 63
Noes: 157
Motion B1 disagreed.

Motion B agreed.

18:46:00

Motion C

Moved by Lord Bach

That this House do not insist on its Amendments 59, 119, 121, 236 and 239 to which the Commons have disagreed.

Lord Bach: My Lords, we return once again to the offences of inciting hatred on grounds of sexual orientation and, in particular, to the question of whether these offences need to be accompanied by a so-called “freedom of expression” saving. The key point for your Lordships’ House is whether, in the light of the clear and unambiguous views of the elected Chamber on many occasions, it is right for this House to insist on these amendments. Members of the other place have said emphatically that a freedom of expression saving is not required. They have now done this not once, not twice, not thrice, but four times.

At the Report stage of the Criminal Justice and Immigration Bill, on 9 January 2008, the other place voted by a majority of 169 to reject the freedom of expression saving. On 6 May 2008, during consideration of this House’s amendments to the Criminal Justice and Immigration Bill, the other place rejected the saving by a majority of 202. During the Report stage proceedings on this Bill, the other place voted a third time, by a majority of 154, in favour of the repeal of the saving. And on Monday last, the other place rejected Lords Amendment 59 by a majority of no less than 197. Set against the majorities the Government can normally command in the Commons, these are substantial defeats for the freedom of expression saving.

Of course, as a revising Chamber, it is perfectly legitimate for this House to ask the other place to think again. What is, I would argue, of questionable legitimacy is to ask the elected House to think again, and again, and again, and again. There must come a point where this House, with all its great virtues and its importance, gives way to the House that has been elected by the people of this country. The Government would argue that this is the time when, with reluctance, that is what this House should do, the House of Commons having voted so substantially for opposing the freedom of expression saving.

This House has made its position clear. We recognise the strongly held views of those who argue that Section 29JA of the Public Order Act should remain on the statute book. I reiterate our view that this provision is simply not needed, given the exceptionally high threshold for the offence, capturing as it does only threatening words and behaviour intended to stir up or incite hatred. Our submission is not simply that the saving is not necessary but that it is positively harmful as it could sow doubts about the scope of the offence and seek to legitimise the use of threatening words or behaviour which are intended to incite hatred on the grounds of sexual orientation. Those who use such words or behaviour and intend to incite hatred on the grounds of sexual orientation should not have a so-called freedom of expression saving to shield them.

A very high threshold for the offence provides sufficient protection for freedom of speech. If that were not the case, the Joint Committee on Human Rights and the Equality and Human Rights Commission would no doubt have been the first to point that out. Both bodies gave careful consideration to the offence and each concluded that freedom of speech is sufficiently protected without any need for Section 29JA.

Noble Lords will also recall that the offence may only be prosecuted with the consent of my noble and learned friend the Attorney-General. As public authorities, both the Crown Prosecution Service and the Attorney-General are bound by the Human Rights Act and must therefore act compatibly with the European Convention on Human Rights on freedom of expression.

I know that other noble Lords will wish to speak in this debate, so I shall be short. Our submission is that the time has now come for this House to recognise and respect the will, expressed four times by large majorities, of the democratically elected Chamber, and not seek to insist on its amendments. I beg to move.

Amendment to the Motion

Moved by

Lord Waddington
C1: As an amendment to Motion C, leave out “not”.

Lord Waddington
My Lords, on Monday, in the other place, the Minister said that it was the settled will of the elected House that the free speech safeguard be removed from the statute book. But what sort of settled will is it when not a single Labour Member supported the Government’s case? Indeed, almost the only person on the Labour Benches throughout the debate was the honourable David Taylor who, in spite of the Government having refused to allow a free vote on this matter of conscience, stuck to his guns and voted for free speech.

The issue remains as it was in July: there is no dispute over whether there should be a new offence of stirring up hatred on the grounds of sexual orientation; and no one says that this safeguard weakens the offence or alters the threshold for the offence. The question is: what conceivable benefit will accrue from the repeal of a safeguard for free speech which parallels that in the religious hatred offence—and repealing it without even waiting to see whether, in practice, it interferes in any way with proper enforcement of the law?

The Government say that the words are unnecessary. But they are certainly useful in that, following the precedent set by the religious hatred offence, they provide clear guidance on the statute as regards what is lawful. Their value was well illustrated by the noble Lord, Lord Dear, in July, when he pointed out how the free speech clause was helping the police to resist the pressure put on them to follow up complaints made by people wishing to suppress any criticism of homosexual behaviour. After the noble Lord’s speech, I expected that the Government would go away and think seriously about how this problem might be dealt with; how there might be no repetition of the obvious abuses which have occurred; and how the police might be discouraged from following up trivial complaints. But the Government have done nothing. In our last debate, the CPS guidance was exposed as not only hopelessly defective but calculated to cause mischief. The Government have not yet got down to issuing proper guidance themselves. They have done nothing while abuses have continued.

One other respect in which the Government have clearly failed in their duty is that, after months and months, we are still waiting for them to address the obvious point that, if we are to finish up with a free- speech clause in the religious hatred offence but no such clause here, we are simply asking for trouble. On Monday, the Minister in the other place said that the Government did not approve of the free speech clause in the religious hatred offence. However, they have not lifted a finger to remove it. The question remains: what regard would the police be likely to pay to the right of Christians and others to comment on sexual behaviour if Parliament went out of its way today to say that free speech is important when it comes to comment on religious matters but is of no importance when it comes to comment on matters of sex? We would be giving the clearest signal to the police that they should interfere to prevent any criticism of homosexual behaviour.

On Monday, speaking from the Labour Benches in the Commons, the honourable David Taylor said:

“I thought that free speech, civil liberties and human rights were exactly the sorts of things that we were supposed to be in favour of”.—[Official Report, Commons, 9/11/09; col. 109.]
 

They are not only the sorts of things Labour supporters are supposed to favour; they are the sorts of things at the core of our democracy, in which we all believe. I trust that we will make that very plain tonight. I beg to move.

Baroness Turner of Camden
My Lords, I oppose the amendment. As the Minister said, this is the fourth time that we have discussed this issue. In July, the noble Lord, Lord Waddington, was successful in gaining the support of a majority of your Lordships. It is before us again tonight because the Government, I am glad to say, oppose it, and this opposition has been supported in the other place.

As I recall, a majority of your Lordships supported the noble Lord, Lord Waddington, on 9 July, believing that the amendment safeguarded the right to freedom of speech. An argument on these lines has been advanced by the noble Lord, Lord Dear, in an article in The House Magazine. In support, the noble Lord quotes Lord Justice Sedley in a judgment in 1999. The judge then ruled:

“Free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative—provided it does not tend to provoke violence”.
 

The qualification “provided it does not tend to provoke violence” is very important.

Those who spoke in support of the amendment last time emphasised that they were not homophobic and did not condone homophobic violence. I, of course, accept that those assurances were given in good faith. We know that there are countries where fundamentalist religions are powerful and it is quite usual there for clerics to advise their followers to attack homosexual people, often in the most gruesome and horrific way. Frequently death awaits those whose sexual orientation becomes known and is disapproved of. We, of course, have established a more humane and tolerant society, of which we are all proud. I am pleased with the way in which, over the years, we have established equal rights so that it is now unlawful to discriminate against people on grounds of their sexual orientation, and we now have provision for civil partnerships.

But that is the law—culture is sometimes different. Sadly, much of our society is quite violent, and there has recently been a growth in violence directed at gay and lesbian people. Some of the worst cases get reported; others are not. Quite a lot of bullying goes on, particularly in schools. There is also bullying by gangs on some of our streets. No doubt the individual who sought to remonstrate with someone who was shouting obscenities at him, believing him to be gay, thought that he was exercising his right of free speech, but he was immediately surrounded, beaten up badly and later died in hospital. The police are treating that as a homophobic crime. No one supporting the amendment would support such activity, but words matter, and that is particularly the case when they appear in legislation. They help to change how people look at the world around them.

Some groups, whether for cultural or religious reasons, simply do not like gay or lesbian people or what they do. They want to be able to say so—yes—but that does not include the right to bully, harass or threaten. The wording of the amendment opens the door to people who want to feel that they have a right to question relationships that are perfectly legal and do not harm anyone, and they can then go on to make threats with impunity. On the last occasion when we had a debate on this matter in this House, I said that we did not want a society in which gay and lesbian people were afraid to go out at night for fear of an attack. There has been an increase in the number and violence of homophobic attacks. We must ensure that this is not one of the unlooked-for results of legislation passed in your Lordships' House. I urge noble Lords to support the Government’s position on this and oppose the amendment.

19:00:00

Baroness Butler-Sloss
My Lords, the amendment, which I support, does not in my view encourage anything with which the noble Baroness, Lady Turner, is concerned. It is not designed to have, nor will it have, the effect that she is understandably worried about. If I may respectfully say so, she has got this wrong.

I have had more letters and e-mails this week than I have had on all previous occasions when this matter has come before this House. I should like the Government to appreciate that there is an equal strength of feeling in this House, which is not whipped in the same way—certainly not with regard to Cross-Benchers—as there was in the other place, if not greater. There is a great strength of feeling among a minority of society and we ought not to ignore that either. As I have expressed on every occasion, I do not support what the minority says, but I support their right to say it, because there is and should be freedom of speech.

The real worry is that the lack of an amendment of the kind moved by the noble Lord, Lord Waddington, would give the message that he has described. It is not the message to the Crown Prosecution Service, because it is unlikely that it will prosecute. The message is at the beginning of the investigation; it is what the police think that they have to do. As the noble Lord, Lord Dear, said, and I hope will say again, the police want some protection from being told that they have to act because something has been said that people do not like—they have been sometimes bullied and got at by members of the public. I do not think that the fears are important here. What matters is freedom of speech, which is what we should be supporting tonight.

Lord Dear
My Lords, in speaking in support of the noble Lord, Lord Waddington, I make a number of points in fairly quick time. Your Lordships addressed this issue in great depth and detail on 9 July this year, when the debate continued for over two hours. I do not believe that we need take that amount of time today. The facts and issues have not changed.

This has nothing to do with homophobia; the law is, rightly, rigorous enough already. It has everything to do with freedom of speech within the law, a principle that I was happy and proud to uphold in my earlier professional career in the police service. I reflect that upholding that principle of free speech sometimes called for a very delicate judgment, protecting the majority from the minority and almost simultaneously protecting the minority from the majority. I shall return to that police dilemma in a moment.

Surprisingly, I do not recall anyone in our July debate reminding us of the well known, often hackneyed words of Voltaire:

“I disapprove of what you say, but I will defend to the death your right to say it”.
 

That principle has been a cornerstone of English law for centuries and, until recently, there has been little cause to defend that principle. So long as the words were not intended to cause violence or gross insult, or likely to do so, they were tolerated. Noble Lords have it in their power tonight to protect that principle.

I must say, as the noble Lord, Lord Waddington, has already said, that it seems to me nonsense that, while there is a free speech clause in the legislation dealing with religious hatred, it is now sought to exclude a similar clause in the homophobic hatred offence. Is it, perhaps, that the Government have bowed to lobby groups that are more vociferous in the one category than in the other?

When I spoke in the debate in July, I highlighted the position and plight of the police and the prosecuting authorities. I shall do so again. Before the introduction of the Waddington amendment in 2008, the police and the prosecuting authorities were in an almost impossible position. There had never been any question that behaviour would be tolerated if it was offensive, aggressive, threatening or demeaning. The police would, and should, uphold the law to curb behaviour of that kind. The current law is robust and adequate on this point. But the police regularly received complaints from homosexual groups that exception was taken to remarks that homosexuality was deplored on religious grounds. The police were forced to act. They operated against a background of Home Office guidance notes on how to handle hate crime under the Public Order Act 1986, to which the issue of sexual orientation was added by the criminal justice Act 2008.

The so-called guidance notes in fact required rigid adherence. Any complaint of hate crime, whoever made it, even if it was made by a bystander, had to be formally recorded and fully investigated in the ensuing procedure. No exercise of discretion was countenanced. The prosecuting authorities were bound to go through the whole rigmarole of interview, arrest, fingerprinting, taking DNA samples, police bail and so on, even though it was clear to all concerned that there was little likelihood of a prosecution or even a conviction. As I commented in July, what a waste of time and resources and what a terrible burden on the person caught up in the process. The tactics were sometimes all too obvious: a tactical complaint from a pressure group; the inevitable police response; and the chilling effect on those who might later be tempted to speak up in public in a similar way—all in all, a very successful way of dissuading and limiting free speech.

I reported in the debate in July that the police support the Waddington amendment and I reassert that today. The Association of Chief Police Officers has carefully distanced itself from the issue; it has not declared a position either publicly or, as far as I know, privately. But individual chief officers, members of ACPO, and junior officers who face this problem in the streets have told me privately, in numbers, very clearly, that they support the amendment proposed, which will allow them to use a discretion and common sense that is often denied them in contemporary society and allow them to deal with these situations with that light touch that so many of us, and them, want to see. They resent the straitjacket that had been imposed on them.

While Parliament debates the pros and cons, patent injustices continue. Speaking in the other place on Monday this week, when the Waddington amendment was removed from the Bill, the Minister, Claire Ward, said in her introductory remarks:

“The House is not attacking free speech. It is clear that people retain their right to freedom of speech. The clause is unnecessary because the threshold of the offence is already set incredibly high … We believe that we have got the balance right”.—[Official Report, Commons, 9/11/09; col. 101.]
 

I very much doubt whether Mrs Pauline Howe would agree with that. Mrs Howe’s experience is by no means the only example that I could cite. Mrs Howe was not a shrill, loud-mouthed demonstrator, shrieking abuse in the streets. She did not carry a placard in public with abusive or insulting words written on it. Mrs Howe is an eminently respectable, highly principled, late-middle-aged, middle-class lady married to a clergyman. She lives in Norwich. In July this year, she wrote a letter to Norfolk County Council. She complained against the holding of a Gay Pride march in Norwich.

The letter, which I have seen, was well constructed and forthright, but it was by no means inflammatory. However, the council officials in their wisdom saw fit to pass it to the police. In September, she was visited and interviewed in her own home by not one but two police officers from Norfolk Constabulary. She was interviewed for writing a letter, not for demonstrating in public. I have spoken to Mrs Howe at length on the telephone and she has authorised me to quote from a letter that she wrote to me. She said:

“I must say, the police officers were professional and polite … nevertheless, the visit frightened me. Why was I made to feel like a criminal when all I had done was to express an opinion? It was an intimidating experience. For 67 years I have been a law-abiding citizen. I know some people don’t like my beliefs. That’s fine, it’s a free country. But surely I have the right to express my beliefs, particularly to a government body, without fear of a visit from police. This is Britain isn’t it?”.
 

Well, Mrs Howe, this is Britain in 2009 and I dare bet that George Orwell on this particular point would have been hard pressed to envisage such a state of affairs when he was writing his celebrated novel in the 1940s.

The noble Baroness, Lady Turner of Camden, has already referred to the case that I referred to in July—that of Redmond-Bate and the DPP in 1999. She quoted at some speed from it. I want to take noble Lords rather more slowly over those same words, because they bear heavily on what we are looking at tonight. I quoted that judgment at length before and I will not do that tonight—I will not explore the same ground—but the case still provides the best and surest signpost to us in our deliberations.

In that case, allowing the appeal of a woman who was described as a fundamentalist Christian and who had been arrested for addressing a crowd from the steps of Wakefield Cathedral, Lord Justice Sedley in the Queen’s Bench Divisional Court defined free speech, saying in his judgment:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.
 

He concluded that,

“our world has seen too many examples of state control of unofficial ideas”.

It has indeed. I urge noble Lords, keeping the Mrs Howes of this world in the forefront of their minds, to insist in the Britain of 2009 on the inclusion of the free speech clause in the Bill.

19:15:00

Lord Smith of Finsbury
My Lords, I rise to plead with your Lordships’ House to reject the amendment and agree with the House of Commons. I do so because it is important for us to recognise the signal that legislation sometimes sends to the world outside. The problem is that we are faced with a clash of competing profound values. No one could possibly argue against the principle of free speech and the need of this House and this Parliament to uphold free speech.

I happen to be gay. I happen also to be a Christian. I like to believe that I am robust enough to be able to be criticised and have offensive things sometimes said to me because of my sexual orientation and sometimes to be abused because of my sexual orientation. Many other lesbians and gay men face the same sort of offence and difficulty week in, week out. The freedom of people to express criticism is something that I defend to the hilt.

However, we also know that the level of violence against lesbians and gay men because of their sexual orientation is increasing. Very recently, we had the case of someone who was first shouted at, then abused and then assaulted in the heart of our capital city; he subsequently died. The attack happened because of his sexual orientation. We can support the expression of intolerance, but the problem comes when intolerance spills over into physical violence.

I am not suggesting that anyone who says that we should protect free speech in relation to this amendment would conceivably condone activity of that kind, but the problem is—

Lord Vinson
Is that point not already covered under existing law quite clearly and therefore what the noble Lord is saying has no bearing on what we are discussing tonight?

Lord Smith of Finsbury
I am afraid that it does. The point that I was about to make is that legislation, in the signals that it sends to the world outside, can have an impact on behaviour way beyond the actual meaning of the words in the legislation. There is already a huge amount of anxiety and fear among the gay community about the increasing level of attacks. If the signal that the House sends is that it is all right to be intolerant, I fear that we will end up seeing more violence and more attacks and more difficulty for people simply because of their sexual orientation. That is why I feel so passionately. If this House stands up for free speech, as it so often has to, on this particular matter, it is at risk of sending the wrong signal to the wrong people outside.

Lord Mackay of Clashfern
My Lords, first, the only reason that the House of Commons has given for rejecting the amendment agreed by your Lordships is that it is unnecessary. Secondly, it has been said a great many times that the House of Commons has voted on this from time to time, but there is one important omission from that little category; namely, the time when it became part of a statute. The House of Commons at that stage must have agreed to it because it is on the statute book. It is not a question of still being an amendment proposed by the noble Lord, Lord Waddington. Unless and until an Act of Parliament is passed to change it, it is on the statute book by agreement of the Lords Spiritual and Temporal. I know that the Government said when they accepted the amendment as part of the statute that they would return to this matter, but that is aside from the point that they allowed it on to the statute book at that time.

As far as I am concerned, the main thrust of the clause that is in the Bill and remains in the Bill is against any kind of violence against those with a sexual orientation that is in question. The provision is very strong against that. Nothing in the amendment proposed by the noble Lord, Lord Waddington, detracts from that in the slightest. Over the years, this House has had the responsibility of maintaining the freedoms that have been hard won in our country. I believe that we should not flinch from doing that just because they happen to be attacked more than once, twice, three or four times.

Indeed, when the Minister in the House of Commons was summing up just before the vote was taken, she said:

“It is important that we make it clear to the public and to those who have strong religious and moral views that we are in no way fettering their freedom of speech”.—[Official Report, Commons, 9/11/09; col. 122.]
 

I invite your Lordships to support the amendment proposed by the noble Lord, Lord Waddington, which does just that.

The Lord Bishop of Winchester
My Lords, I shall say very little because virtually everything I wished to say has been said by the noble Lords, Lord Waddington and Lord Dear, and by the noble and learned Lord, Lord Mackay. Having read Monday’s debate in the other place, as others have said, the case seemed to be asserted but not made. I believe that this element of what, as the noble and learned Lord, Lord Mackay, rightly said, is the law, is necessary. It does not affect the very high threshold, but it makes clear that this element of the law we are talking about keeping is permissible. It protects individuals and society from the chilling and dumbing effect on free speech and debate that the noble Lord, Lord Dear, particularly, in the past, in writing and this evening, has clearly expressed.

I want to take issue with the noble Baroness, Lady Turner, and the noble Lord, Lord Smith. I want to say to the noble Baroness that words do matter, but, as the noble Lord, Lord Waddington, intimated but did not go into detail about, the absence of words matters too. If these words are not on the statute book, it will be harder for the police to be assisted in the ways in which the noble Lord, Lord Dear, has expressed. They need to be assisted to work in a way that uses their intelligence, common sense and judgment, and thus do not waste time investigating people who have not done anything to deserve being investigated, long before the Attorney-General comes into the picture.

I say to the noble Lord, Lord Smith, that signals matter, and they do. I share with him a horror of the fact that people are attacked, beaten up and killed because others believe them to be homosexual or because they are homosexual. That is manifestly wrong and wicked. But, as the noble Lord said, many others live increasingly in anxiety and fear. There is a very strong sense across quite a wide swathe not only of Christian opinion but of other opinion that the rights of those who hold the kind of views that this law would defend are seen as second-class. That is even there in the language of the noble Lord, Lord Smith. He said that it will be taken that it is all right to be intolerant. That is a particular kind of judgment on those who take the view that this amendment in defence of a piece of law seeks to sustain.

Notwithstanding an unargued assumption of the Government that they must carry on in this way, it is most important that people of all sorts can be assured that, whether they are on street corners, in mosques, churches or synagogues, or be they journalists, academics, comedians or whatever, they are free to express views with which others may strongly disagree and which question the currently dominant political orthodoxy in these matters.

Baroness Paisley of St George's
My Lords, with regard to Mrs Howe, whose name was mentioned, she and her husband are personal friends of mine and I want to support all that my noble friend Lord Dear said on Mrs Howe’s behalf. I have no hard feelings against anyone because of their sexual orientation or any orientation, whether it is religious, political, ethnic or anything else, but I do not think that it has been mentioned tonight that people taking part in gay pride marches can offend those who do not agree with them, even though they do not say a word. I never go to see the gay pride marches, but as a born-again Bible-believing Christian, I have been offended when people have carried placards and shouted out that Jesus Christ is a fag. That has offended not only me; it has offended thousands of Christians. It has offended even people who are not practising Christians to think that others have been offended in this manner. I believe in free speech for all and it would be totally wrong to support the Government tonight. I support the noble Lord, Lord Waddington, 100 per cent.

Baroness Falkner of Margravine
Let me start by making it clear that on these Benches, as with issues of conscience—we consider this Motion to be an issue of conscience—we have a free vote. My remarks, from the position on which I stand, are mine and mine alone, and I accept responsibility for that. However, I speak as a Liberal. In a democracy, free speech is a fundamental prerequisite that allows for all people, but particularly for minorities, however off the wall their views might be, to find expression of those views. The Minister told us that where incitement is concerned we need his clause. If it is incitement, statute exists to cover those crimes.

Those minorities who have views on the basis of prejudice or, as the noble Lord, Lord Smith, said, ignorance or—I speak from a certain perspective with which the House is familiar—from a religious perspective, where those views do not impinge on the rights of others, they should be given expression in a tolerant and just society. It is for the rest of us in this kind of society to help those who hold entrenched religious views to cast their objections to our behaviour in respect of the values that prevail today. Therefore, it is our duty—I speak as a Muslim—to help others from among our ranks who for religious reasons do not go along with certain freedoms and to work with them so that they can see that our values might, in another instance, protect their values.

I shall comment briefly on the chilling effect that these kinds of clauses have. To paraphrase the noble Lord, Lord Smith, he implied that legislation has a totemic effect on society whereby lessons are drawn from it without it having had to be applied. It also has the reverse effect; namely, that the existence of something in a statute makes one think and think again. That is an impingement on a person’s freedom. So when we make law, we have to be extremely careful not to bring about unintentional effects. The number of plays that are withdrawn, exhibitions cancelled, writers threatened or academics unable to publish are too numerous for me to mention, but I know full well that this chilling effect exists.

Finally, speaking as a member of multiple minorities—of a religions minority, an ethnic minority and, in this House, a gender minority—I say that we look to the law for protection probably more than most others. We look to the law for protection, but not at the cost of impinging on the freedoms of all.

19:30:00

Lord Clarke of Hampstead
My Lords, I do not intend at this hour to repeat what I said in previous debates. I support the amendment of the noble Lord, Lord Waddington. I thought that we had done sufficient, in the education of the other end of the building, to see that this would not come back. I will not go into the highways and byways, but will deal with two things. The first is the question of signals. If this House were to reject an amendment that calls for freedom of speech in our nation, that signal will be misrepresented and used against politicians of all parties for a long time.

Secondly, today is an appropriate day for this debate. We have seen a magnificent service in Westminster Abbey, following the tremendous display of support for our Armed Forces and veterans on Remembrance Sunday. On Saturday evening, I and others were privileged to hear a Member of this House, the most reverend Primate the Archbishop of Canterbury, deliver his homily to the gathered ranks in the Albert Hall. We heard him use the word “freedom”. The freedom that he referred to was also the freedom that those gallant people who were represented at the weekend fought for over many generations. It is the same freedom that Her Majesty the Queen honoured when she showed her support for civilians and servicemen who have been through dreadful times. The word that keeps coming through is “freedom”. In my book, the basic freedom that should always be included is freedom of speech. I support the amendment.

Lord Henley
My Lords, I intervene briefly, first to make it clear, as the late Lord Kingsland did in Committee, that on these Benches this is a matter for a free vote. It will be entirely up to each Member on these Benches to decide how to vote. I shall support my noble friend in due course.

Secondly, I will pick up the point made by the Minister about this matter being debated four times, and sent back to us four times by another place. This was very well dealt with by my noble and learned friend Lord Mackay of Clashfern. My late friend Lord Kingsland made the same point in June or July when he said that the Government chose not to oppose the decision taken in your Lordships’ House last year to support,

“my noble friend Lord Waddington’s amendment, which subsequently became Section 29JA of the Public Order Act 1986”.

My late friend continued:

“It is, in my view, an abuse of parliamentary procedure to bring this matter back to Parliament without any evidence that Parliament had made bad law, especially when the same Government are in power. Indeed, the Government say, in terms, that Section 29JA is not bad law. Their case is that it is unnecessary law because the definition of the offence of incitement implies, in terms, the contents of my noble friend Lord Waddington’s amendment … In these circumstances, it cannot be good constitutional practice for a Government to compel Parliament, the law-maker”—
 

and this is what they are doing—

“to spend further time on this matter. Indeed, I would describe it as abuse of legislative procedure”.—[Official Report, 9/7/09; col. 812.]

With that and with the speeches that we have heard this evening, we should invite the Minister to comment and then invite the House to come to a decision on the issue.

Lord Bach
My Lords, I thank all noble Lords who have spoken in the debate on both sides of the issue—starting with the noble Lord, Lord Waddington. I will deal with a couple of preliminaries. I was interested that the noble Lord reaffirmed that, in this House at least, his party is on a free vote. That was not the case in the Commons the other day. The honourable Mr Dominic Grieve said:

“We on the Opposition Front Bench will vote to support Lord Waddington’s amendment”.—[Official Report, Commons, 9/11/09; col. 109.]
 

If that is not a Whip, I do not know what is, but I am delighted that there is not one today—but perhaps noble Lords would tell me what it is.

Lord Henley
My Lords, I fail to see the relevance of the noble Lord’s point. We are talking about what goes on in this House. I made it clear that we on these Benches have a free vote. Will he confirm that the same is true on his Benches?

Lord Bach
My Lords, I will not. This is government policy and we expect Members on our Benches to support the Government—I make no bones about it. It is not we who are ambiguous about this, but the noble Lord’s party. In the Commons, their Front Bench spokesman said that their Front Bench would vote to support the amendment of the noble Lord, Lord Waddington. That did not sound to me like a free vote, but a hint to those behind him and a message to those sitting on the Front Bench with him. Is it a free vote or not? I recall that the last time that we debated this, in Committee, there was a so-called free vote—the noble Lord used the same expression.

Baroness Trumpington
My Lords, I wonder whether I would be right in saying that 99 per cent of the Members in this Chamber have already made up their minds which way they are going to vote. Will the Minister cut the cackle and let us get on with it?

Noble Lords
Hear hear.

Lord Bach
My Lords, there is no answer to that. I will cut the cackle, but it will be interesting to see whether there will be a repeat of what happened last time there was a “free vote”, when about 109 out of 111 of the party opposite voted in one Lobby and their Whips were seen in the Lobby during the vote. We will see tonight whether that changes.

My second point is that the noble Lord, Lord Waddington, talked about the settled will of the other place. He made the point that one government Back-Bencher got up to support the Government the other day. I will tell him what the settled will of the other place is.

Lord Waddington
My Lords, no member of the Labour Party supported the Government. The only member of the Labour Party who spoke, spoke in favour of my amendment.

Lord Bach
My Lords, the honourable Claire Ward, a member of the Labour Party in the House of Commons, spoke very well on that occasion. The noble Lord says there is no settled will of the other place. The settled will was expressed in the majorities of 169, 202, 154 and 197. That seems to me to represent conclusively the settled will of the other place. It is perhaps time, on this issue, that this House realises that it not the elected House.

The noble and learned Baroness, Lady Butler-Sloss, made the point that there is great strength of feeling in this House. Of course there is—I accept that and respect it, even though I disagree with many noble Lords. The noble and learned Baroness contrasted that with the strength of feeling in the other place. There is great strength of feeling on this issue in both places. The difference is that the other place is the elected place—this House is not elected. I am sorry to repeat the proposition, but it is normal and constitutionally proper, when the other place has voted on as many occasions as it has with such huge majorities on an issue such as this, to support the views of the elected Chamber.

The issue is not really freedom of expression. No-one here is against freedom of expression. I have already tried to point out that freedom of expression is preserved by this legislation, first, by the fact that the Attorney-General has to approve of all prosecutions and she is bound to follow the European Convention on Human Rights. Secondly, two very distinguished groups—the Joint Committee on Human Rights and the Equality and Human Rights Commission—have looked at this matter carefully and concluded that there are no freedom-of-expression issues.

If you are to have freedom-of-expression clauses in the Bill, why not have them in every Bill? Why do you not always have a freedom-of-expression clause?

Lord Tebbit
The Minister is on an important point. Perhaps he can give us a guarantee that the Government will not seek to remove the similar provision concerning religious discrimination.

Lord Bach
My Lords, I cannot give guarantees about any future Government. That provision was passed by a majority of one vote in the House of Commons and became the law. Of course I understand that completely. However, the noble Lord may hope that his party will come to power in a few months; if that is to be the case, how can I possibly give any guarantee as to what it may or may not do? This is not at all about freedom of expression. We all agree that there should be maximum freedom of expression.

I turn to the case of Mrs Howe. I understand the comments that have been made about her and that she is a personal friend of the noble Baroness, Lady Paisley. However, given that the case has been also raised by the noble Lord, Lord Dear, I should tell the House what this middle-class lady said in her letter to Norwich City Council. She referred to homosexuals as “sodomites” and blamed, “their perverted sexual practice” for sexually transmitting diseases and for the “downfall of every Empire”. She is, of course, absolutely entitled to make those remarks. The chief executive of Stonewall himself said that the police response had been disproportionate, so the very suggestion that she would somehow fall foul of this legislation, if there were no freedom-of-expression clause in it, is absolute nonsense. Whatever view you take of what she did, it was hardly threatening, nor was it intended to stir up hatred on the grounds of sexual orientation. This lady was entitled to make her remarks; she did so, and the police have been criticised. What has it got to do with this particular issue?

Lord Stoddart of Swindon
The noble Lord said that the police have been criticised. That is not the real point. This lady wrote a private letter to her local authority and it should have been kept confidential. The police would not have been involved unless that local authority—perhaps by breaking the Data Protection Act—had passed on the letter to the police. Have we reached a stage in this country where a council tax payer cannot write to their local authority criticising something without that private letter being passed onto the police? That is the real point.

19:45:00

Lord Bach
The noble Lord makes a fair point.

Lord Brooke of Alverthorpe
Perhaps I may intervene. I did not speak earlier, because we wanted to get through the debate quickly. I live in Brighton where you have complete freedom.

Lord Stoddart of Swindon
My Lords, you cannot have an intervention on an intervention. I should like the Minister to be allowed to answer my intervention.

Lord Bach
I think that I already have done that. The noble Lord made a fair point. The point that I am trying to make is that this lady would not fall foul of this legislation, whether or not there was a freedom-of-expression clause.

Lord Brooke of Alverthorpe
My Lords, I come from a city where there is freedom. You can write to the local newspaper, criticise gay pride, raise issues on the radio and in phone-ins, and no action is taken by the police. Will the Minister clarify the position as regards ACPO, given that we are provided with much evidence, based on confidential discussions with police officers who are not named and which we have no way of checking?

Lord Bach
I am grateful. I was just about to move on to ACPO and what the noble Lord, Lord Dear, told us. He said in July:

“However, my recent discussions privately with senior ACPO figures, including those most closely involved with issues of this nature, reveal two facts critical to our debate today: first, not only has ACPO not declared an official stance but it has not given an unofficial view in any quarter; secondly, it would much prefer to see the defeat of Clause 61 and the continuation of the Waddington amendment”.—[Official Report, 9/7/09; col. 803.]
 

Stephen Otter, the ACPO lead on race and diversity, was so concerned about that statement that he wrote to the Government before we contacted him on the issue. He wanted to clarify that ACPO,

“would not enter into this debate on either side”.

He clearly believed that the views of his organisation had been misrepresented. He said that,

“individual chief officers … may or may not have expressed a variety of view … but it is vital these conversations are not taken as representing the view of ACPO in its role of representing the police forces of England and Wales”.
 

Consequently, it is simply wrong to suggest that ACPO is for, or indeed against, the retention of Section 29JA of the Public Order Act. I am entitled to ask from this Dispatch Box why we heard, not just in Committee but tonight, the view that stated, “Hush, hush; secret, secret; police officers are for the Waddington amendment”. It seems to me that the noble Lord, Lord Dear, is trying to have it both ways. He is trying to say that ACPO does not have an official policy on this, but I have spoken—

Lord Dear
In another place and, I suspect, in another age, I would be sending my seconds round to the Minister at this point—but I resist that temptation. Perhaps I may read from my speaking notes accurately for a second time. I said:

“The Association of Chief Police Officers (ACPO) has carefully distanced itself from the issue. It has not declared a position either publicly, or so far as I know, privately. But individual Chief Officers (members of ACPO), and junior officers who face this problem in the streets, have told me privately, very clearly, that they support the amendment”,
 

because it gives them discretion, and so on. Perhaps I may say that I am probably better placed than most noble Lords in this House to take a straw poll of the opinion at ACPO level, unofficially and on the streets. I stand by what I said.

Lord Bach
I hope that I have answered my noble friend; he knows ACPO’s position.

I repeat that these offences relate only to threatening words and behaviour intended to stir up hatred. They were introduced because of the fact that gay men were often subject to attacks of this kind. That is why the legislation was introduced. Those uttering such words or exhibiting such behaviour should not have the cloak of so-called freedom of expression saving to protect them.

This is a moment of truth. Do we really mean it when we say that gay men and lesbian women should be treated as equal, and that we should do all we can to avoid them being discriminated against, threatened and having violence used against them? Or do we think that it does not really matter? Although very distinguished speeches have been made on behalf of the noble Lord, Lord Waddington, not least his own, the claim that he and those who support him make, that this is an issue of freedom of speech, is untrue: it is not about freedom of speech at all. Freedom of speech is guaranteed. People in this country should not be arrested under this section because they have behaved or spoken in the same way, for example, as the lady who was mentioned. We are talking about an extremely serious criminal offence with a very high threshold. Not only is the freedom of expression clause unnecessary but it has the danger that it may lead some of those who attempt to commit this offence to rely on the cloak that it offers. So those who really believe what they say about equality as far as sexual orientation is concerned should support the Government tonight.

Lord Waddington
I am bound to say that I have been rather surprised by the Minister’s reply. At no time has he sought to address the issue before the House tonight. There is no doubt that there have been abuses in the sense of inappropriate action by the police. My amendment is an attempt to prevent those abuses continuing. The Government have not said one word as to how they propose to deal with this difficulty with which we are faced today. Therefore, one can only describe the Minister’s reply as failing completely to meet the object of such a reply; that is, to answer the points made in the debate.

I know that the House wishes to come to a quick conclusion over this matter. I shall say no more except thank all those who have taken part.

Division 3
11/11/2009 19:53:00
Division on Motion C1
Ayes: 179
Noes: 135
Motion C1 agreed.

20:06:00

Motion D

Moved by

Lord Tunnicliffe
That this House do not insist on its Amendment 66 to which the Commons have disagreed and do agree with the Commons in their Amendment 66A in lieu thereof.

The Commons disagree to Lords Amendment No. 66, but propose Amendment 66A in lieu-
 66A: Page 63, line 35, at end insert-
 “Detention of persons under section 41 of the Terrorism Act 2000(1) Section 36 of the Terrorism Act 2006 (c. 11) (review of terrorism legislation) is amended in accordance with subsections (2) and (3).
 (2) After subsection (2) insert-
 “(2A) A review under subsection (2) may, in particular, consider whether-
 (a) the requirements imposed by or under Part 1 or 2, or paragraph 37, of Schedule 8 to the Terrorism Act 2000 (detention of suspected terrorists), and(b) the requirements imposed by any relevant code of practice under section 66 of the Police and Criminal Evidence Act 1984 or Article 65 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)),have been complied with in relation to persons detained under section 41 of the Terrorism Act 2000 pursuant to a warrant of further detention issued under Part 3 of Schedule 8 to that Act.”
 (3) In subsection (3) for “That person” substitute “The person appointed under subsection (1)”.
 (4) Section 51 of the Police Reform Act 2002 (c. 30) (independent custody visitors for places of detention) is amended in accordance with subsections (5) to (7).
 (5) After subsection (1) insert-
 “(1A) Every police authority must ensure-
 (a) that the arrangements made by it require independent custody visitors to prepare and submit to it a report of any visit made under the arrangements to a suspected terrorist detainee, and(b) that a copy of any report submitted under paragraph (a) is given to the person appointed under section 36(1) of the Terrorism Act 2006 (independent reviewer of terrorism legislation).”(6) In subsection (3), after paragraph (b) insert-
 “(ba) in relation to suspected terrorist detainees, to listen to the audio recordings and view the video recordings (with or without sound) of interviews with those detainees which have taken place during their detention there and which were conducted by a constable;”. (7) After that subsection insert-
 “(3A) The arrangements may include provision for access to the whole or part of an audio or video recording of an interview of the kind mentioned in subsection (3)(ba) to be denied to independent custody visitors if-
 (a) it appears to an officer of or above the rank of inspector that there are grounds for denying access at the time it is requested;(b) the grounds are grounds specified for the purposes of paragraph (a) in the arrangements; and(c) the procedural requirements imposed by the arrangements in relation to a denial of access to such recordings are complied with.(3B) Grounds are not to be specified in any arrangements for the purposes of subsection (3A)(a) unless they are grounds for the time being set out for the purposes of this subsection in the code of practice issued by the Secretary of State under subsection (6).”
 (8) For subsection (10) substitute-
 “(10) In this section-
 “detainee”, in relation to arrangements made under this section, means a person detained in a police station in the police area of the police authority;“suspected terrorist detainee” means a detainee detained under section 41 of the Terrorism Act 2000.””

Lord Tunnicliffe
My Lords, Amendment 66 seeks to establish an independent commissioner for terrorist suspects. As my noble friend Lord Brett indicated in Committee, we are concerned that the establishment of such a commissioner would have a detrimental effect on the efficient and effective conduct of terrorist investigations. Such investigations are fast-moving and having to accommodate a commissioner would cause delays to extension hearings and could be used by suspects to hamper investigations.

The period between the arrest and charging of a terrorist suspect is one of considerable pressure. It is possible that suspects could use the role of commissioner to manipulate and control the time available for an investigation by requesting private interviews or by insisting on the commissioner’s presence in police interviews. It is also possible that suspects could be detained at different locations throughout the country—for example, in Manchester, Bristol and London. The length of time that could elapse before a commissioner was able to visit all detainees would be unacceptable. These concerns are shared by the police, the CPS and, in Scotland, the Crown Office and Procurator Fiscal Service.

I note the concern of the noble and learned Lord, Lord Lloyd, about the need for further balanced scrutiny of the pre-charge detention process for terrorist suspects. However, this process is already rigorous. At present, those arrested can be detained for 48 hours, after which the police or CPS must apply to a judicial authority for a warrant for further detention—a WFD. This judicial authority is to be a designated district judge when the person has been detained for less than 14 days and a High Court judge thereafter. Applications for WFDs are for a maximum period of seven days at a time. If a period of longer than seven days is required, up to a maximum of 28 days, further applications by the police or prosecutor must be made before the expiration of each seven-day period.

Each application for a WFD requires detailed preparation. Preparing it is time-consuming and places significant pressure on the police and prosecutors to meet the required deadlines. The application for a WFD must include detailed grounds that set out relevant considerations, including details of interviews, forensic examination and any financial investigation. All applications to extend the detention period beyond 14 days need to be considered and made by the CPS. If the CPS considers that there are no grounds for making the application, it will not be made. When granting a warrant for further detention, the judge must be satisfied that the further detention is necessary to obtain relevant evidence by questioning the suspect or otherwise, or to preserve relevant evidence, or pending the result of an examination or analysis of any relevant evidence, and that the investigation is being conducted diligently and expeditiously.

In April this year, Her Majesty’s Crown Prosecution Service Inspectorate reported on the CPS’s counterterrorism division. As part of the report it examined 12 cases from a sample where there had been pre-charge detention. In all cases the inspectorate was satisfied that there was evidence on the file that pre-charge detention had been properly monitored and reviewed.

While it is clearly regrettable that the other place did not have the opportunity to debate the amendment on Monday of this week, it is none the less clear from the vote that the other place shares our concerns, given that it voted by a majority of 223 to disagree with the Lords amendment. The other place has, however, offered an amendment in lieu, which I commend to this House. That amendment provides for enhanced independent scrutiny and further guarantee of the treatment of terrorist detainees.

The amendment in lieu proposes two changes to bolster the existing arrangements. First, it seeks to give statutory force to the independent reviewer of terrorism legislation’s ability to review and report on the treatment of persons detained under a warrant of further detention under the Terrorism Act 2000—that is, broadly speaking, persons detained beyond 48 hours from the time of their arrest. The reviewer may dedicate a specific section of his annual report to the treatment of terrorist suspects detained for these extended periods. The report may cover whether Parts 1 and 2 of Schedule 8 to the Terrorism Act 2000 are compliant with the PACE codes of practice, which deal with the treatment of detained persons and the review of their detention by the police. In order to reinforce this legislative change, the Home Secretary will write to the noble Lord, Lord Carlile, making it clear that he is able to visit any detention facility where terrorist suspects are held and observe police interviews in real time or view or listen to interview tapes. He may also attend any extension hearing that he chooses, but he would not have a role in the actual hearing other than as observer.

Secondly, the amendment in lieu will extend the role of independent custody visitors under Section 51 of the Police Reform Act 2002. Independent custody visitors will be allowed to view or listen to recordings of any police interviews with the suspect. They will also be required to provide a report on their findings to the relevant police authority, which will pass this on to the independent reviewer. Custody visitors will be required to attend specialist training prior to starting their extended duties and will need to be appropriately security-cleared. Amendments will be made to the national code of practice for custody visitors to reflect this and the increase in their responsibility.

I believe that the approach set out in the Government’s amendment and in the letter to be sent to the noble Lord, Lord Carlile, will provide the additional protection for terrorist suspects that provided the motivation behind Amendment 66, while not having a detrimental effect on terrorism investigations. I beg to move.

20:15:00

Baroness Neville-Jones
My Lords, I find it disappointing that the Government’s objection to the notion of having a special commissioner for terrorist suspects is based on the idea that it would somehow obstruct speedy or fair process. This idea is part of UK experience; it has been in operation in Northern Ireland. Why is it considered wholly unsuitable to be deployed in current circumstances? I find this very difficult to understand.

It is a great pity that the Government are not prepared to accept that the reassurance that such a process and such an individual would provide is suitable to our current circumstances. After all, we may have to live with this for a long time. When we debated the proposal, your Lordships’ House was not convinced that extending the role of independent custody visitors or that of the statutory reviewer of terrorism legislation, the noble Lord, Lord Carlile, was a sufficient step. I do not at all suggest that these people do not do a very important job—they most certainly do—but it is a great pity that the Government have taken the stance that they have.

We need to enlighten ourselves on certain issues regarding how the system that the Government are proposing will operate. The proposal does not satisfy the point that is constantly made by the Joint Committee on Human Rights, which is that the current arrangements for judicial authorisation of extended pre-charge detention do not satisfy the requirements of either habeas corpus or Article 5 of the European Convention on Human Rights. I do not believe that the Government’s ideas will meet those requirements.

However, in the spirit of wanting to know how this might operate, I ask the following probing questions. The first relates to the role of the statutory reviewer of terrorism legislation. If the noble Lord, Lord Carlile, has always had—as appears to be the case—the power to review the operation of Section 41 of the Terrorism Act 2000 and the related codes, can the Minister confirm whether he has attended any detention hearings so far and whether he has reported on them? If he has not done so, why is that the case and why did not the Government ask him so to do?

Secondly, I am sure that the Minister will agree that the noble Lord already has a significant amount of work to do in relation to the operation of other parts of terrorism legislation. It would be helpful to know whether discussion has taken place with him about how much extra time looking at the whole position of the detention of terrorist suspects will involve.

Thirdly, it would be helpful to know how it is intended that the noble Lord will go about his work. Is it the intention that he will visit the majority of terrorist suspects? Will his office be given any additional support for this task? Will he be able to feed in to detention hearings, or will this be only an ex post facto task? That is an important point. Is this going to be a living part of the procedure or is it simply going to be a case of reviewing in order to comment on, and possibly find fault with, what has previously happened? That relates very much to the findings of the Joint Committee on Human Rights.

My second set of questions is about the role of independent custody visitors, who have been put forward as important people in this scenario. First, will police authorities be required to prioritise terrorist suspects for visits by independent custody visitors? Will this actually happen?

Secondly, will there be additional training and guidance for custody visitors in preparation for this task? These are not things that custody visitors normally do. Related to this, is it the intention that there will be a specialised cadre of custody visitors? I come back to the specialist nature of the task. This is why it seems to us that an independent commissioner would be so much better.

Thirdly, what are the grounds for denying independent custody visitors access to records of interviews? I am absolutely prepared to believe that there would be legitimate grounds, but it would be helpful to know how those are defined by the Government, because the amendment does not specify what these grounds are now or might be in the future. Without some specificity, it is obviously possible to restrict the role of custody visitors so that they could not report fully on the detention of terrorist suspects. That is an important point in practical terms.

Related to that is my fourth point. Can the Minister confirm that in cases where the independent custody visitor had concerns after having heard records of interviews and/or having spoken to the suspects, he would then be able to communicate them to the judge before a detention hearing? This comes back to whether this is an academic, ex post facto activity or whether it is intended to apply safeguards within the procedure as a living procedure. That is very important and it will be a requirement if this is to be a real safeguard.

Fifthly, how will the Government act on the visits and reports of independent custody visitors? Even now, some of the recommendations of the noble Lord, Lord Carlile, are ignored. Therefore, what hope will custody visitors have of being able to influence the operation of Section 41 and the related codes of practice?

I worry that the Government’s proposals will neither achieve comprehensive monitoring of the detention of terrorist suspects nor improve the procedures of detention hearings. Therefore, the Minister’s response to my points will be very important as regards how effective and acceptable the Government’s ideas are as an alternative to what we think should be the case. I very much look forward to the Minister’s explanation of how the proposals will work in practice. I should add that, should the Conservative Party enter office, we will want to revisit this topic.

Lord Pannick
My Lords, I share the regrets and concerns expressed by the noble Baroness, Lady Neville-Jones. Of course, the purpose of the new clause agreed to by this House is to ensure that, where the police apply for an extension of the period of detention for a terrorist suspect, the judge has information that may assist him or her in understanding any weaknesses in the police case for an extension of custody. That is a vital matter.

I thank the Minister for the steps taken by the Government to address these concerns to some extent, as approved by this House. However, I seek two assurances from the Minister; I know that they are matters that also cause concern to the noble and learned Lord, Lord Lloyd of Berwick.

First, can the noble Lord confirm that, because the independent custody visitors are positively vetted, it is not the intention of proposed new subsection (3A) to deny them access to the audio or video recording simply because it contains information whose publication would be damaging to national security? Can the Minister assure the House that subsection (3A) is simply intended to cover a much more specific and much narrower set of circumstances—that is, where the recordings would disclose an ongoing police operation that it would be damaging to reveal at that time?

The second matter on which I seek an assurance has been mentioned by the noble Baroness. It concerns the vital matter of communication of information from the independent custody visitor to the judge. Can the Minister assure the House that a procedure will be devised to ensure that, after the independent custody visitor has seen and heard the recordings, he will be able to communicate his views to the judge, who will decide on whether there should be an extension of custody?

Lord Tunnicliffe
My Lords, perhaps I may first address the concerns of the noble Lord, Lord Pannick, who explained rather better than I can from my notes the basis of his first point. Proposed new subsection (3A) is meant to relate to the narrow point of operational police matters. Because the ICVs will be appropriately cleared, they will normally be able to listen to recordings and so on.

The second, and I think key, point was made by the noble Baroness. It concerns whether this is other than an ex post facto exercise. It is not and it would be wrong of me to try to use words that gave comfort in that direction. We believe that the process will be powerful in monitoring whether the procedure has been carried out properly. Earlier, I gave the noble Baroness various assurances about the inspectorate looking at how this is done. I was asked whether the ICVs would have any input into the observations of the noble Lord, Lord Carlile. I do not think that this will be a simply academic process. I believe that the fact that the views of responsible persons will be looked at carefully by the noble Lord, Lord Carlile, will have an effect on maintaining standards.

One of the most telling points made by the noble Baroness—I can see why it was quite attractive—concerned the Northern Ireland experience. The independent commission worked well in Northern Ireland because it was a small jurisdiction with one place where subjects were held and with high levels of co-operation between the police and the commission. On the mainland, however, a significant number of terrorist suspects have been arrested and held in police stations throughout the country, including in London, Devon, Manchester, Kent, Heathrow, Norfolk, Nottingham, Surrey, Buckinghamshire and the West Midlands. With so many forces potentially involved, it would be harder to maintain levels of co-operation and communication. Ultimately, the commission in Northern Ireland was no longer deemed necessary because of the significant overlap with the work of other bodies charged with inspecting and investigating pre-charge detention conditions—for example, the work carried out by the noble Lord, Lord Carlile, lay visitors and the HMIC. In fact, I believe that the commission was abandoned in 2005.

I turn to the other points raised by the noble Baroness. There will be a specialist coroner. He will receive specialist training and will of course be appropriately security-cleared. On the JCHR, we are sensitive to the Joint Committee’s views, but the Government take the view that the process is rigorous, for the reasons that I set out earlier.

With regard to the extent to which the noble Lord, Lord Carlile, will be involved in this work and the amount of time that he will have to spend on it, it is unlikely that he will attend more than the odd extension hearing, because he has no role in the process. As I said, his role is ex post facto; none the less, it is a powerful role. He is likely to limit his detention centre visits to the most serious investigations.

The noble Lord, Lord Carlile, has been consulted about the amendment. He already has a statutory role in relation to the operation of the Terrorism Act 2000, which includes reporting annually on the operation of pre-charge detention. Although he has tended not to get involved in individual cases, his role does not preclude him from doing so. Indeed, he has reported on the individual cases of those involved in Operation Pathway.

I hope that, with those explanations, the House will be able to support the Motion.

Motion D agreed.