Criminal Justice and Immigration Bill
3:09 pm

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

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

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

Photo of Baroness Butler-Sloss

Baroness Butler-Sloss (Crossbench)

moved Amendment No. 117:

After Clause 108, insert the following new Clause—

"Court's power of direction: child welfare

(1) Where a person aged under 18 comes before the court, in circumstances in which a question may arise with respect to the welfare of that person, the court may direct the appropriate authority to undertake an investigation of the circumstances of that person.

(2) If the court decides to direct an investigation, the provisions of section 37 (sections 2 to 6) of the Children Act 1989 (c. 41) shall apply.

(3) Pending the investigation by the local authority concerned, the case of the person before the court shall be adjourned.

(4) Upon receiving the information from the local authority concerned, the court shall decide whether to hear the case or dismiss the summons or adjourn the case generally."

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Baroness Butler-Sloss (Crossbench)

I shall speak also to Amendment No. 118. These two alternative amendments are intended to apply to children under the age of 14. It may be better from a drafting point of view for the amendment to specify the age of under 18 and indicate in guidance that it is intended to apply to those under 14.

Last week, the noble Lord, Lord Thomas of Gresford, when speaking to an earlier amendment, quite rightly corrected me for saying that some children are bad. I had incorrectly put what I had intended to say, which is, of course, that I do not consider that children are born bad, but that some become consistent offenders and therefore need to be dealt with on that basis.

The amendments, however, are intended to address the younger child, under 14, whose offending is not yet very serious. He may be a first offender, or offender in relation to quite trivial offences, who may be seen also as a victim. As has been said several times during the Committee stage, children who offend often need help. The group of children that I have in mind needs help much more than a criminal finding of guilt followed by the appropriate disposal within the criminal justice system in the youth court. These children may well have dysfunctional families, or parents with mental health problems; they may be in a family affected by domestic violence, drink, drugs or parental separation, the latter often having an adverse effect on a child. They may have suffered bullying at school or some form of abuse. Such children may have escaped the attention of social workers, despite being children who, under the Children Act 1989, are undoubtedly in need. Formal or informal intervention by a social worker or other agency such as YOTS, without going through the full youth court criminal process and finding of guilt, may be the moment of diversion from any future offending. It may be the help needed to get the child and, possibly, the family back on to a reasonable course.

Section 37 of the Children Act is used by judges and magistrates in family cases in private law proceedings to investigate the family background of a child where it becomes clear that the child will need help beyond the ordinary. To provide this power to the youth court would give it discretion to decide whether the child's alleged offence, not yet proved, might need to be dealt with in the criminal court by a plea of guilty or a trial, or might be adjourned before the plea is taken for a social worker to report on the family background and the child. This step could be taken only if the court was given relevant information about the child at the beginning of the hearing before the trial. It is not intended to require a local authority to do more than is required of it in the family court by the making of a Section 37 order. After receiving the report, the magistrates could either try the case or dismiss it on the basis of a formal intervention by social services such as an application to the family proceedings court for a care order, or of an informal intervention by social workers or possibly by YOTS to help the family, or it could adjourn to see how the child progressed without going through the court procedure.

The purpose of this is to divert the child from offending without their having a finding of guilt and going through the criminal process. I beg to move.

3:15 pm
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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

We support the amendment moved by the noble and learned Baroness. However, in her Second Reading speech, she talked of transferring the proceedings from the magistrates' court to the family court. There is no machinery in her amendments that would permit that to happen. Perhaps she could explain whether that is required or whether existing provisions would enable that to happen.

The purpose behind the proposed new clauses is simply that of trying to avoid imprisoning young children. We have in previous debates pointed out how much out of step we are in that regard with the rest of the nearby jurisdictions in Europe. It is right that the local authority should be involved, as local authorities have a duty towards children. There should be an investigation by the local authority, particularly in relation to children under the age of 14, to which Amendment No. 118 refers. The court should take an informed decision that is in the best interests of the child and is understood to be in the best interests of the child.

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Baroness Howe of Idlicote (Crossbench)

I warmly support the intentions behind these proposals, although I do not know whether they meet all the legal requirements to deliver what the noble and learned Baroness, Lady Butler-Sloss, proposes. It has been argued forcefully that this period is one in which children's behaviour can be changed. A great deal of flexibility is needed, but it is possible to deter young people with the appropriate action from further wrongdoing and offending.

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Lord Campbell of Alloway (Conservative)

I support the intention of the amendments, but why is there a difference between the two? Which of them does the noble and learned Baroness prefer? Does she prefer the age of 14 or of 18? Why does she create a divergence in that regard?

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

I am sure that the noble and learned Baroness will answer the noble Lord in due course. I am sure, too, that the Committee is grateful to her for bringing forward these important matters, which in one sense could encapsulate the debate that noble Lords have had right from the beginning of these debates, which seems an awful long time ago, when we first discussed these important matters with regard to the youth justice system.

The Government sympathise with the underlying aim of the amendments. I understand why she has tabled the two amendments, so that we might consider more specifically the particular needs of the younger age group, which is why I suspect that she allowed us to have two options in this debate—to anticipate her answer to the noble Lord, Lord Campbell of Alloway. Although the Government have reservations about the particular amendments in terms of what has gone before, the noble and learned Baroness will know of the work being done across government on the development of a youth crime action plan. I am very hopeful that that action plan can reflect a number of the important points being raised by noble Lords, especially in the way in which young people should be dealt with in the youth justice system.

As the noble Baroness has already said, in effect, her amendments replicate for criminal courts the power under Section 37 of the Children Act 1989 for a court dealing with family proceedings to direct the relevant local authority to undertake an investigation of a child's welfare needs. The results of that investigation must be reported to the family court and include any proposals by the local authority for future action in relation to the child. The Government's difficulty is that we do not consider such a power to be appropriate for the criminal courts. We see the primary purpose of the criminal court to deal with the offender for the offences that they have committed. We had extensive debate on the purpose of sentencing in Clause 9 of this Bill. Certainly, we consider the welfare needs of the child as important. That is why the courts are required to have regard to the welfare of the child under new Section 142A(3)(b) inserted by Clause 9. We do not believe, however, that they should override the courts' duty in respect of administering justice.

The noble Baroness's amendments would provide a power for the court to direct a local authority to undertake an investigation of the child's welfare needs over a period of up to eight weeks. As she said, the criminal proceedings would be adjourned pending its completion. I understand why the noble Baroness is proposing that, but she needs to take into account the practical impact of adding to the court hearing process and potentially undermining the considerable efforts that are being expended on speeding up that process. It is generally accepted that young offenders should be dealt with as quickly as possible, and we have seen a reduction from 142 days to under 71 days in the average time for young offenders to have their cases heard before a court. We would not wish to see that set back.

A power under Section 9 of the Children and Young Persons Act 1969 places a duty on local authorities to investigate a child's circumstances where they have been notified that they are appearing before a court. In addition, Section 9 provides for the court to request that the local authority undertakes such an investigation and makes it the duty of a local authority to comply with such a request. I understand that that power is rarely used. That might be taken to reflect acceptance by the criminal courts that youth offending teams now serve as a primary means by which information is provided about young people appearing before the court. As we discussed last week, the information is provided by the court by way of a pre-sentence report.

Under the Crime and Disorder Act 1998, the youth offending team has the responsibility to prepare reports on young offenders, assess their needs and make recommendations to the court on appropriate interventions. There is a serious discussion to be had about the standard of pre-sentence reports. The noble Lord, Lord Thomas of Gresford, took me to task last week when I read a passage from the inspection of youth offending teams. I pointed out that those inspections had raised some problems as well as generally commending the work of youth offending teams. I did so in order to illustrate that there is a proper process of inspection and, following that, efforts to improve the whole process of pre-sentence reports and the work of youth offending teams.

I also suspect that behind the noble Baroness's amendment is a concern about whether one of the impacts of the role of youth offending teams has been the distancing of some children's services from young people drawn into the youth justice system. That point was made by a number of noble Lords last week. I do not agree with some of the suggestions that, in some ways, local authorities are cost shifting. However, I accept that more can always be done to ensure that local authorities, particularly children's services, are as focused on the needs of this group of young people as they are on their general responsibilities.

I emphasise that I am sympathetic to the general tenor of the noble Baroness's remarks. She spoke eloquently about the troubled background of many of these young people and about the positive impact of early intervention. I mentioned that this whole matter is under review. The Children's Plan announced by the Government in December includes the development of the youth crime action plan. This action plan is looking at what happens in other jurisdictions both in the British Isles and in other countries—picking up points that noble Lords made about international comparisons—to see how those systems work and whether they have elements from which we can learn. As part of this work we are considering whether under-15s should be treated differently from the older age group.

I acknowledge the very eloquent way in which the noble Baroness put forward her views but I invite her to withdraw her amendments on the basis that the Government are taking forward this work. I also invite the noble Baroness to discuss this further with the Government.

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Baroness Butler-Sloss (Crossbench)

I thank the Minister and am grateful to him for listening to what I have been saying. However, I am not alone in saying this. I am very interested in the idea that under-15s might be dealt with slightly differently. That seems to me well worth exploring. I say to the noble Lord, Lord Thomas of Gresford, that I felt the transfer to the family proceedings court was a step too far, and since Section 37 is also a step too far, I took the view that it would be unwise to include it. To apply Section 37 to the youth court would be extremely easy from a legislative point of view but it is difficult for the Government to accept that this should happen. The trouble is that the Government talk about dealing with the offender and then go through the mantra, "But, of course, we consider welfare". I should like offending and welfare to be considered as equally important rather than putting offending before welfare. The particular point about which I am concerned is not to criminalise a young child of 10, 14 or 15 whose bad background, unhappy circumstances or whatever has created the atmosphere in which the child offended. That child should not necessarily have to plead guilty, have a finding of guilt and therefore become part of the criminal justice system.

At Second Reading I said that I hoped very much that we could put in something, before the child ever got to the youth court, so that he could be diverted from it if a group of people, chaired preferably by a magistrate or judge, thought that he needed help rather than going to the youth court. If that were possible, Section 37 would not be needed. However, it would be a very useful back-up for magistrates, who would not use it all that often but would certainly use it more than Section 9 of the Children and Young Persons Act, which to my knowledge has never been used. That is why I thought that Section 37 might be a more sensible approach.

I am sad that the Government do not think that this would be a useful tool; a lot of youth court magistrates think that it would be. As regards the question asked by the noble Lord, Lord Campbell of Alloway, I would prefer to see clearly in the legislation "under 14" or "under 15". But aware as I am that it is often preferable from the point of view of drafting legislation to be in line with the rest of the magistrates' courts, "under 18" might be a preferable way of putting it, as the Minister appreciated.

Purely and simply, I was trailing my coat with the hope that I would get the Minister to be attracted to one if not the other. I am comforted by some of what he said; I am sad that my suggestion has not found favour but, in the circumstances, with the hope of discussing a bit further—

3:30 pm
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The Earl of Onslow (Conservative)

Before the noble and learned Baroness takes the plunge of withdrawing the amendment, I should say that I heard the noble Lord, Lord Hunt, talking about cross-government discussions. Presumably when those discussions are going on, a need for some form of legislation will appear, so you will have the criminal justice youth offender Bill number 17,423. Why could it not have been done in time for this Bill? It is not a new problem; it is a very old problem that has been talked about for a long time. It is a great pity that it was not got together before the Bill. The Bill has had all these muddles going through it, and it is perhaps not a good example of how to do legislation. When will the government consultation be finished?

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

I have received a lot of advice in the past few weeks on government and legislation. As I have said, I am sure that there are always lessons to be learnt about how to improve the legislative process. The noble Earl is such an experienced Member of your Lordships' House that he knows that I cannot answer his question. I think that the development of this plan across government gives us a real opportunity to produce an integrated approach, which I hope would meet a number of the concerns expressed by the noble and learned Baroness. I repeat my invitation to her that we would very much welcome an opportunity for discussions with her on these matters.

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Baroness Butler-Sloss (Crossbench)

I say to the noble Earl, Lord Onslow, that if I got what I wanted I would not mind if it was Bill number 17,423; it would be well worth while. I very gratefully accept the opportunity for further discussions with the Ministry of Justice. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 118 and 119 not moved.]

Clauses 109 and 110 agreed to.

Clause 111 [Compensation for miscarriages of justice]:

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

moved Amendment No. 120:

Clause 111, page 77, line 37, leave out "2" and insert "6"

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

In this group of amendments, we move on to the question of miscarriages of justice and compensation for miscarriages of justice currently available under the previous Act. That Act permits an independent assessor to assess what the damages or compensation should be. For many years, the noble Lord, Lord Brennan, with all his enormous experience of damages litigation, has been the independent assessor. A miscarriage of justice is a wrong inflicted by the state for which the state is directly liable, for which it has accepted responsibility and for which it has an obligation under international law to provide compensation. That is in Article 14.6 of the United Nations International Covenant on Civil and Political Rights.

It so happens that when I was a pupil barrister far too many years ago, in the very first murder case that I was ever involved in, I was asked by my pupil master to make an application to take a case out of the list, which I did. Fifteen years later, by which time I was a Queen's Counsel, I represented that defendant on his appeal. It was sent back to the Court of Appeal because of something very unfortunate that had been discovered. The forensic scientific evidence had been cooked up by a scientist from the Midlands. A whole series of appeals followed my appeal as a result of what he had done. I remember vividly talking to the governor at Leeds prison, who told me that my client would have been released many years before if only he had admitted what he had done. However, he had not admitted it: he had been a nuisance; he had been on the roof throwing slates; and he had protested for the whole of that time. Although in those days a life sentence meant that on average a person served 12 years, 15 years had gone by and he was completely innocent.

In the Bill, the Government are proposing to limit the rights to compensation granted to people such as that former client of mine by imposing a number of restrictions: he should have only two years from the date of the successful appeal to bring an application for compensation, no matter what sort of state he is in; the amount of compensation should be limited to £500,000—I have to tell your Lordships that where a person has been held in custody for very lengthy periods, generally speaking the compensation is considerably in excess of that—and his claim for loss of earnings should be limited to 1.5 times the median annual gross earnings of people throughout the country. Therefore, in this clause the state is seeking to impose an artificial limit on its own liability.

In order to justify that, when the Bill was put forward the Ministry of Justice said in its press release that the intention was to,

"bring compensation for those wrongly convicted into line with that paid to victims of crime".

It refers to victims of crime because compensation for victims of crime has now been limited to a maximum of £500,000, regardless of the circumstances. But of course there is absolutely no parity between a person who is a victim of crime caused by a criminal who could—at least, in theory—be sued in the civil courts and a person who is subjected to miscarriages of justice caused by agents of the state. There is no reason at all to equate the two. To suggest that there is some sort of rational connection between the level of compensation paid to a victim of crime and that paid to someone who is subject to a miscarriage of justice is, in my submission, quite wrong; it is an entirely different situation. Therefore, the amendments in this group seek to remove the artificial limits on the amount of compensation that the independent assessor can award.

Your Lordships are aware of the cases of Angela Cannings and Sally Clark, which demonstrate that full financial compensation is not in itself enough to enable people to rebuild their lives after having been wrongfully convicted and possibly having suffered an extremely long period of imprisonment. Those who are wrongfully convicted frequently suffer severe psychiatric injury in the form of irreversible personality damage or post-traumatic stress disorder. They suffer loss of their home and other assets, serious damage to family relationships, loss of income while in prison and often permanent incapacity to earn.

We submit that these limitations on compensation for victims of miscarriage of justice are now being imposed for a purely financial reason—in order to limit the amount of money that the Government have to pay. To give the Committee some idea of how many people are involved, I should say that I think that last year some 35 cases were sent by the Criminal Cases Review Commission to the Court of Appeal, 70 per cent of which were allowed. We are talking about 20 to 30 people a year where it is established that there has been, for one reason or another, a serious miscarriage of justice. A person in that position should be put as nearly as possible in the position in which he or she would have been had there been no injustice. That is the principle that we seek, through these amendments, to uphold. I beg to move.

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

I thank the noble Lord, Lord Thomas, for the way in which he has introduced the debate. The changes were foreshadowed in a Written Statement made by my right honourable friend the then Home Secretary in April 2006 and formed part of wider changes and reforms to the system for compensation paid for miscarriages of justice. As my right honourable friend then said, the purpose of those reforms was,

"to modernise and simplify the system, and to bring about a better balance with the treatment of victims of crime".—[Hansard, Commons, 19/4/06; col. 15WS.]

I shall go through each amendment one by one, because they deal with some specific and separate matters. Amendment No. 120 would extend from two years to six years the proposed time limit for making a claim for compensation in relation to a miscarriage of justice. Currently, compensation applications can be made many years after a conviction has been reversed as there is no time limit. That means that important documents may not be available, thus making it very difficult to make proper and fair decisions about whether, beyond reasonable doubt, there has been a miscarriage of justice, as the law requires. Clause 111(3), therefore, introduces a time limit for making an application for compensation, of two years from the reversing of the conviction or a pardon being granted. I should stress that the time limit applies from the date that the conviction is quashed or the date of acquittal at retrial and not the actual date of conviction. Two years is also the time limit for making an application for criminal injuries compensation.

Clearly, there may be exceptional circumstances which could delay an application. In exceptional circumstances, therefore, the clause provides that an application made outside the two-year limit may be regarded as having been made in time. Exceptional circumstances in this context might include the physical or mental incapacity of the applicant. While every application would be considered on its own facts, we do not expect mere ignorance of the existence of the compensation scheme to be regarded as an exceptional circumstance. Therefore, we think that the two-year time limit, with the possibility of an extension in exceptional circumstances, is entirely reasonable. The application form is fairly straightforward. It has a maximum of 10 pages. In normal circumstances, there is no reason why it could not be completed within the two-year period.

On Amendment No. 121, I know that the noble Lord, Lord Thomas, is concerned about the proposed £500,000 limit. He is right to say that there is no limit on the amount of compensation payable for a miscarriage of justice at the moment. He is also right to say that in recent years a number of awards have exceeded £1 million. The highest ever award was more than £2 million. I know that the noble Lord says that there is no logic in making comparisons between the amounts payable for miscarriage of justice and the amounts paid for compensation of victims of violent crime. The Government do not agree. Compensation for victims of violent crime is currently capped at £500,000, no matter what the severity of the injury or its long-term nature. That scheme is probably one of the most generous in the world, in any case.

It is not unreasonable to say that there should be a limit for miscarriages of justice. I know that the noble Lord says that a miscarriage of justice is always the fault of the state and therefore full reparation should be made. Of course, in some cases, miscarriages of justice occur because of mistakes, or even misconduct, by the prosecuting authorities. It is interesting that the Criminal Cases Review Commission commented in its annual report that some of the themes which led to a miscarriage of justice in past years were becoming less common. For instance, the commission says that, for its cases decided last year, only one was dominated by non-disclosure and none involved forced confessions post-dating the introduction of the Police and Criminal Evidence Act 1984. Convictions may be quashed where no fault could be attached to the prosecuting authorities—perhaps where the defence failed to adduce evidence or a witness lied.

I have, of course, noted the comments of the Joint Committee on Human Rights in its report, and its recommendation that we should not have a cap. We do not agree, which is why we have proposed the cap on compensation for miscarriages of justice at £500,000. However, having listened to the noble Lord, Lord Thomas—and while we are not ready to remove the cap completely—I can tell him that we propose to introduce an amendment on Report to increase the maximum compensation payable, where the person has been in prison for more than 10 years, to £1 million. I hope that that goes some way to meeting the particular issue that the noble Lord raised and that, on that basis, he would be prepared to withdraw his amendment.

3:45 pm
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Baroness Butler-Sloss (Crossbench)

On the first of the three amendments in this group, which I support, it crossed my mind that if the Government stay firm on the period of two years it might be that one should look at proposed new subsection (2A) in Clause 111(3) and see whether it is appropriate to have the phrase, "exceptional circumstances which justify". Certainly, as a lawyer, the phrase "exceptional circumstances" means exactly what it says: circumstances which should be very rare.

The psychiatric disability of someone who has been in prison for more than 10 years, has had that corroding element of knowing that he or she is innocent and is then released, may mean that they go to ground. They may not be capable of making the application until they get into the hands of a psychotherapist. It may be that if this came up on a number of occasions, the circumstances could not be said to be "exceptional". There is nothing really all that unusual about having a psychiatric problem if you have been unjustly imprisoned for more than 10 years. Would the Government consider saying something such as, "if the Secretary of State considers it appropriate", rather than "exceptional circumstances"?

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Lord Baker of Dorking (Conservative)

I have considerable sympathy with the amendments of the noble Lord. It fell to me, when I was Home Secretary, to set up the royal commission that recommended the creation of the commission that investigates miscarriages of justice. It is much better for that commission to operate than for the Home Secretary to examine the cases, which it fell to me to do. When that Bill was passing through, the commission did not recommend that there should be any limitation on the compensation for victims of a miscarriage of justice. I agree entirely with the noble Lord, Lord Thomas, that there is a fundamental difference between the compensation available to victims of crime and victims of a miscarriage of justice.

Yes, victims of crime should have compensation. Many of them receive relatively small awards; some are more substantial, such as for a broken leg or something of that sort. However, if someone has suffered a miscarriage of justice and has had to remain in prison for 12 or 15 years—I had to release several people who had remained in prison for substantially over 10 years including one who was accused of a gruesome murder but was absolutely innocent—his life is utterly destroyed. Your Lordships might ask what should be the compensation for that. It should certainly not be half a million.

The Government clearly half accept the case. The Minister said that he will table amendments on Report to raise the level for victims of miscarriage from half a million to a million, so they recognise there is a fundamental difference. The argument that has been used in the past—that they are comparable—is now out of the window. The Minister now recognises that there is a fundamental difference and that if someone has been in prison for a long time, there should be a level.

Why should there be a level? This is a Treasury provision—it does not stem from the Minister's department. This is the Treasury wanting to cap, but what are they going to cap? Half a dozen cases a year? When this amendment comes back for £1 million, I think there should be no limit. The decision about compensation should be left to the discretion of the court. Only the courts can decide. When you have destroyed someone's life and he has no way of working or going back to a normal life, it should be for the court to decide the compensation, not the Treasury.

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Lord Elystan-Morgan (Crossbench)

I applaud the principle that underlies these three amendments. I suspect that it finds an echo in the heart of the Minister. I welcome the fact that there is to be some relaxation of the rigour of what otherwise would be an extremely unjust limitation. Nevertheless, the Government are not standing on any ground of principle that can in any way justify their actions. The argument is purely fiscal. They are saving money at the cost of injustice. That is not too harsh a way of putting it.

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Lord Elystan-Morgan (Crossbench)

That may very well be so, but the noble Lord would accept that it does not really matter whether it is thousands of pounds or millions of pounds—the cost, the price and the value of justice are entirely different.

The principle of compensation in our law has always been on the basis of restitutio in integrum—restitution in full. A person should be compensated in full by the perpetrator of the unlawful act. In this case, the Government are not responsible for an unlawful act but for an act that is flawed in law, which is not a casuistic distinction. Authority with all its powers, sovereignty and resources has made a mistake. Therefore the moral obligation is exactly the same as where a deliberate tort is committed. If a person was badly injured, was owed a couple of million pounds of compensation and was able to sue the perpetrator of that act—assume that he was worth powder and shot—there would be no cap on that. Why should there be in this situation? The argument put forward by the Minister about documentation and the two-year period cannot stand for a moment. If any situation on this earth is well documented—and those documents will be there for examination in tens and probably hundreds of years—this is such a situation. There will be a full transcript of what happened at the court hearing; there will be a full transcript of exactly what happened at the Court of Appeal hearing. All the necessary documents will be there. Therefore, I cannot imagine why there should be an argument to reduce the period to two years. It is purely a cheese-paring economy that is not worthy of the Government. I have great sympathy with the Minister who has had to seek to justify this situation, but I still congratulate him on having, to some extent, ameliorated what would otherwise have been an extremely unworthy situation.

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The Bishop of Chester (Bishop)

I strongly support the amendments, especially the second one. To put any formal limit on the time when application may be made for compensation is flawed in itself, but six years would be better than two. As the noble Lord, Lord Elystan-Morgan, said so eloquently, there is no moral equivalence between the state stepping in to offer some recompense for a wrong committed by someone else and the state itself being in one sense or another the perpetrator of the wrong. The noble Lord also referred to an important difference, which is that in the case of someone injured by another party, there is always the possibility of recourse to the civil courts if there is either an insurance policy or some wealth that can be attached. In other circumstances, there is at least the possibility of the courts giving whatever compensation they think is just in the circumstances.

It is wrong for the state to set a limit, even of £1 million. Imagine someone who had had a professional career who had been in prison for 15 years. Today, for someone rebuilding their career, even £1 million seems a modest amount. There is no moral equivalence between those different cases. That has been implicitly admitted by the Minister in his offer to come back on Report with a limit of £1 million. How much better it would be to leave the matter for the courts to take a proper, principled and moral view of the situation as cases arise and to do away with this rather shoddy proposal that the state should, as it were, insure itself against its own moral mistakes.

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Lord Clinton-Davis (Labour)

I cannot improve on the arguments that have just been adduced, or those of the noble Lord, Lord Elystan-Morgan, but it is important that someone from this side should also adopt the argument. I have not heard that yet. I hope that my noble friend will think again about this and come back to the House on Report.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

I am most grateful for the support that my amendments have received from around the House, and especially for the most powerful support of the noble Lord, Lord Baker of Dorking, who, as he told us, introduced the scheme in the first place.

It is quite wrong to equate this type of compensation with compensation for criminal injuries. When a person is a victim of crime, they are surrounded by agencies to assist them. It could be the police; it could be social workers. A person who has suffered in some way will be told about the scheme and what to do. When someone broke into an outhouse at my home and stole some tools belonging to builders who were working at my home, I was offered counselling. I do not think that I particularly needed counselling at that time, but I am trying to make the point that a victim of crime is surrounded by agencies of the state who will tell them how to gain compensation. That is not the case for a person whose life has been crushed by a miscarriage of justice of this sort.

The only reason put forward by the Government for putting a time limit on the making of applications was that the documents might be lost. As noble Lords, especially the noble Lord, Lord Elystan-Morgan, have pointed out, that is ridiculous. The Court of Appeal will have all its documents for all time. Its judgment will be there for all time. There can be no question of the reasons for the decision of the court being lost, and it is not really for the independent assessor to go behind the judgment of the Court of Appeal and the documents brought before it to say, "It did not take into account this document, which was discovered many years ago". The Court of Appeal decision is final. That gives rise to the right to claim compensation, so I completely reject the suggestion that you can justify a time limit because documents will be lost, as I reject the suggestion that two years should be a limit because that is the limit for criminal injuries compensation.

The second amendment deals with the fact that the limit of £500,000 is being introduced because that is the limit for criminal injuries. I was once a member of the Criminal Injuries Compensation Board, and when the tariff scheme was introduced in 1992 along with the move from the ordinary position that pertained up to that time—there was to be no limit, and criminal injuries compensation was to be equated with civil damages, although it was not this Government who did it—I resigned because it seemed to be grossly unfair to the victims of crime. However, we are talking not about victims of crime but about victims of agencies of the state. Whether something has gone wrong in the investigation process—the police have beaten a statement out of someone—or whether a witness called by the prosecution has lied, it is still agencies of the state that have caused things to go wrong. I gave your Lordships an example of the forensic scientist from the Midlands who caused such havoc in the 1970s and 1980s.

I am most grateful to the noble and learned Baroness, Lady Butler-Sloss, for her very helpful suggestion that "exceptional" should at the very least be removed from the following new subsection (2A). However, that does not go far enough. I see no reason why the state should impose artificial limits on its own liabilities. It is the victims who have suffered the most who will be the losers as a result; and it is not the people who have suffered a little, but those who have received the greatest blow to their self-esteem, to their health, to their future and their career who will suffer if you put in limitations of the sort that the Government propose at this time.

With the benefit of the support that your Lordships have given me from all around the Committee, I shall return to this on Report. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 121 to 122ZA not moved.]

Clause 111 agreed to.

Clause 112 agreed to.

4:00 pm
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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

moved Amendment No. 122A:

After Clause 112, insert the following new Clause—

"Withdrawal of warrants

After section 11 of the Magistrates' Courts Act 1980 (c. 43) insert—

"11A Non-appearance of accused: withdrawal of warrants

(1) Where a magistrates' court has proceeded in the absence of the accused and the court has imposed a fine following conviction, any warrant to enforce the fine or other financial penalty may be suspended or withdrawn and the matter returned to the court which convicted the offender.

(2) The Secretary of State shall make regulations enabling—

(a) a court,(b) Her Majesty's Court service, or(c) any person employed to enforce a warrant against a convicted person,

to suspend or withdraw the warrant and return the matter to the court which convicted the offender.

(3) Regulations made under subsection (2) shall specify the steps to be taken in a case where following conviction it is discovered that the offender is a vulnerable person.

(4) In subsection (3), "vulnerable person" means a person who could not reasonably be expected to act on his own behalf including, but not limited, to—

(a) children under 18 years of age;(b) the elderly;(c) persons with a disability;(d) the seriously ill;(e) the recently bereaved;(f) single parents;(g) pregnant women;(h) unemployed persons;(i) persons who have obvious difficulty in understanding, speaking or reading English.""

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

The noble Lord, Lord Lucas, is not in his place today and he has asked me, as my name is attached to Amendment No. 122A, to explain to your Lordships what it is about. The amendment deals with the position in which a warrant to enforce a fine imposed by a magistrates' court has been issued. It proposes that the magistrates' court should have the power to withdraw or suspend that warrant. Proposed subsection (2) suggests that:

"The Secretary of State shall make regulations",

giving a court or the Courts Service, which would have the responsibility of enforcing the warrant, or indeed the bailiff who is seeking to enforce the warrant, the power,

"to suspend or withdraw the warrant and return the matter to the court".

The noble Lord, Lord Lucas, is particularly concerned—as is the Zacchaeus 2000 Trust, on whose behalf Reverend Paul Nicholson speaks with such fervour on this subject—about a vulnerable person, as referred to in proposed subsections (3) and (4).

Amendments Nos. 137A and 142A, which are grouped with it, also deal—

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Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I believe that those amendments have been degrouped.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

In that case, I beg to move.

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Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I am grateful to the noble Lord, Lord Thomas of Gresford, for moving the amendment in the name of the noble Lord, Lord Lucas. The reply I have is somewhat lengthy and I shall try to cut it down, but it is important that the Committee understands why this proposed new clause is not acceptable to the Government.

The proposed new clause in Amendment No. 122A seeks to address issues which were raised in an amendment in another place. Of course, the Government understand the concerns on this matter. We have to make allowances for the fact that some people, because they are vulnerable, do not respond when they ought to notifications from the court. That does not mean that the courts ought to permit those convicted in their absence to simply ignore the sentence imposed on them. But, if someone is identified as vulnerable, the courts should have the power to look again at the fine or financial penalty. We do not accept this proposed new clause because that power already exists and is used by the courts.

As the noble Lord said, the proposed new clause looks to provide an opportunity to suspend or halt the enforcement of fines against vulnerable people who are convicted in their absence by suspending or withdrawing any warrant issued against the offender. It would allow certain persons to be given the power under regulations to suspend or withdraw a warrant to enforce a fine or other financial penalty.

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Lord Clinton-Davis (Labour)

I am rather troubled by the phrase "vulnerable person". Is that defined in any other statute?

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Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)

As I understand it, it is not defined in statute. It is defined in guidance of various kinds. We, too, are troubled by that expression in this context, and I shall say a little more on that shortly. Subsection (4) of the proposed new clause attempts to define a vulnerable person for the purposes of this power.

Let me explain to the Committee the long process which would have to be gone through before a person sentenced to a fine in their absence ever got to the stage of having a bailiff at the door attempting to seize assets to pay a fine. It would involve many different opportunities for the offender to make it known that he or she found it difficult or impossible to pay the fine. The offender would have numerous opportunities to contact the court and to explain the circumstances.

Following any charge or final notice, depending on the offence which has been committed, the offender will receive a summons informing him when his case is due to be heard, together with a request to provide means information. If a person is summoned to attend but does not, he may be tried in his absence. That decision is made by the court, but it must have regard to the principle that a defendant is entitled to a fair trial, which must include a fair opportunity for the accused to be present and/or to be legally represented. The principle that the defendant should have a fair opportunity to be present does not amount to an unlimited opportunity or a defendant could indefinitely postpone the proceedings. There can be no veto on the court hearing a case in the absence of an accused. So trials in absence should and do happen, and the offender may be fined.

Where the offender did not respond to a summons and did not produce any means information, a fine or other financial penalty can be imposed, whether it is a compensation order, costs or victims surcharge. It may have to be imposed in the absence of any information about the offender's particular circumstances. Since March 2006, the fines collection scheme provided for by the Courts Act 2003 applies and a collection order will normally be made where a fine is imposed. The offender will receive a copy, along with a notice of financial penalty. This will explain how to pay and offers the offender an opportunity to make contact with the court to ask for time to pay if they cannot afford to pay the fine as ordered. But if the offender fails to pay and makes no contact, what happens then? The fines officer will issue a final demand, a further steps notice, saying that unless payment is made, enforcement action will start without further notice. This further steps notice again provides the offender with an opportunity to engage with the court and ask for time to pay. The notice also explains the consequences of further default and outlines the sanctions which the court can impose.

If the offender still fails to respond, after approximately three weeks the fines officer will decide which enforcement sanction to deploy once a check has been made to ensure that the offender has neither made payment nor contacted the court to explain why they have failed to do so. While the ultimate sanction for fine default is imprisonment, this, I think the Committee will be pleased to hear, is a rarely used sanction. Of course it is used, but not often these days. However, the fines officer and the court have at their disposal a number of enforcement sanctions which they will consider and/or try before getting to this stage.

Let me move on to explain the enforcement process for a fine so that I can demonstrate the varied opportunities which offenders have to make contact with the court. The first sanction usually applied on default is either a deductions from benefit order for those offenders who are on benefits, or, in the case of employed offenders, consideration will be given to an attachment to earnings order. The court will only be able to make these orders if it holds the relevant information about the offender. If either order fails or cannot be used, the fines officer will issue yet another notice, another further steps notice, seeking payment. This notice asks the offender to make contact with the court and warns that failure to do so will lead to further enforcement action, including registration of the fine, clamping of the offender's vehicle or—and here we come to the distress warrant—to seize the offender's goods. If the offender again fails to respond to the notice, the fines officer will order the appropriate sanction. At this point the offender would have been contacted by the court on at least three occasions, if not more, and this does not include in practice the numerous text messages and telephone reminders that many courts now provide.

Let us suppose that if the court does issue a distress warrant after all these steps have been taken, what can be done to stop the enforcement process because unbeknown to the court, the offender is a vulnerable person? The distress warrant will be passed to contractors currently providing bailiff services to execute on behalf of the court. The bailiff will leave a notice of attendance to remove goods at the premises. This will allow a further seven days in which to make payment. If that does not happen, the bailiff will attempt to execute the warrant at the offender's last known address. But if it is clear to the bailiff that the offender appears to be vulnerable, what is to be done? The situation is dealt with by the National Standards for Enforcement Agents which provide guidance intended to build on existing good practice and raise the levels of professionalism across the enforcement sector. The standards, which are guidance rather than law, provide that in respect of vulnerable people who are identical to those identified in new Clause 122A as drafted, agents must use their discretion on how to proceed and that they have,

"a duty to contact the creditor and report the circumstances where there is potential cause for concern".

I hope that the Committee agrees that this is entirely right. Not all those listed in the new clause would be automatically considered to be vulnerable because it will depend on the circumstances; they may not necessarily be so. Others may be vulnerable for reasons not listed in the proposed new clause. Here I come back to the words of my noble friend Lord Clinton-Davis by saying that this demonstrates to us the dangers of setting out such a list in the Bill.

4:15 pm
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Lord Clinton-Davis (Labour)

The exception referred to in the amendment, "but not limited to", is, by and large, less persuasive than the ones that have been mentioned specifically. Does my noble friend agree?

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Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I agree with my noble friend.

It is important to point out that the guidelines, in Chapter 6.31, state:

"The contractor shall not take any action to levy distress without prior reference to court if the defaulter"—

and it then goes on to provide a list of who may be considered vulnerable. It continues:

"The Department also reserves the right to withdraw enforcement action where there is evidence that the defaulter is vulnerable".

These are the terms, conditions and specifications in the contracts between Her Majesty's Courts Service and the private enforcement companies which execute distress warrants on behalf of the department. In other words, the contractors are obliged to comply with these requirements.

If the bailiff considers the person to be vulnerable, or if the bailiff does not think so but the offender considers himself or herself to be vulnerable, what can be done? The short answer is that the matter needs to be brought back to the court so that its attention can be grasped and, if the court considers it appropriate, the distress warrant can be withdrawn. Under the powers contained in Section 142 of the Magistrates' Courts Act, subsection (1) provides that,

"a magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender",

if it appears to the court to be in the interests of justice to do so. Subsection (2) is also relevant. It states that where a person is convicted by a magistrates' court,

"and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may ... so direct".

In the other place, the honourable Member for Enfield Southgate, who sits on the Opposition Benches and is a practising solicitor in criminal law—the noble Lord, Lord Campbell of Alloway, and I had the pleasure of serving with him on a Select Committee a year or so ago—spoke of his experiences as a youth court solicitor. He said:

"I know that in such situations there are ways to get the warrant withdrawn and to ensure that true account is taken of the young person's means. That often means that the fine remitted to a level that can be paid.".—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 23/11/07; col. 491.]

Our case is that, one way or another, distress warrants can be and are withdrawn. However, I must emphasise that the court's power to withdraw a warrant is discretionary.

The criminal courts have to pass sentence on those who are guilty. The sentences include fines, which must be adequately enforced otherwise the public may lose confidence in our system. Of course, the enforcement of fines must be done with regard to those who may be vulnerable, and such people must have adequate opportunities to alert the court to their circumstances and the court to take account of them. We are satisfied that such opportunities exist and that procedures are in place to deal with those who are vulnerable.

I do not apologise to the Committee for having gone on at some length. The noble Lord, Lord Thomas, has raised an important point with the amendment. I hope I have put the Government's case that this new clause is not necessary because what it seeks can and does happen.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

I am most grateful to the Minister for his lengthy exposition of the Government's position. I am sure the noble Lord, Lord Lucas, will read it with considerable interest and decide how far he wishes to pursue this matter. Listening to the noble Lord, I have the feeling that he has never had the experience of a bailiff knocking on his door. I recall my noble friend—or kinswoman or other half, as the noble Lord, Lord Acton, wishes—Lady Walmsley contested a congestion charge. She went through the procedure of making an application to the adjudicator. While she did that, there was a knock on the door. It was the bailiffs—one of the contracted companies to which the Minister referred—who could not be persuaded to go away for a considerable of time. Following the adjudicator's decision, she then applied to the divisional court and obtained leave to appeal. Following that, the bailiffs turned up again. They said they could not do anything; they had the warrant in their hands, which had come from the Northampton County Court, and what was she going to do about it. Again they were persuaded to go away and the matter was adjourned until the noble Baroness appeared in person in the divisional court and won her appeal.

I have put that personal experience before the Minister because he has come out with a great deal of detail about what they are supposed to do, but what in fact happened with these contracted companies is a world apart from that. I could go on at some length on this matter. I am not suggesting that my noble friend, kinswoman or other half is a vulnerable person, but a vulnerable person in that position—children under the age of 18 years, persons with a disability, the seriously ill, the recently bereaved—

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Lord Campbell of Alloway (Conservative)

I am in a bit of a muddle about how this operates in practice. Presumably the magistrates have to know before the chap goes to serve the warrant whether it ought to be withdrawn or suspended on the basis of the person being vulnerable, so that somehow or other one has to go to subsection (4) before one comes to subsection (1) and the court has to decide. The court is the only person who can decide whether the person is vulnerable. Then we come to the definition clause referring to "vulnerability". I am distressed to see that it includes the elderly, which would include most of your Lordships, with the qualification that they could not be reasonably expected to act on their own behalf—which I would not say applied to many of your Lordships.

Then there is another problem: pregnant mothers. This is all very difficult; you have somehow to discover at what time the mother was pregnant and whether that affects her ability to act on her own behalf. And why should unemployed persons be unable to act on their own behalf just because they are unemployed? The whole set-up, involving the person concerned having to be brought back to court, is very difficult. As I understand the Minister, that is what would happen in any event. The court decides, under extant procedure, on the basis of any reason; not just these reasons—there is no exclusion clause. What is the necessity to codify this situation, which is really a matter of common sense from the magistrates on the facts of each case?

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

I am most grateful to the noble Lord for his intervention. I would point out that the premise for the new clause is that the magistrates' court is proceeded in the absence of the accused, so it does not know who it is dealing with. The point of contact comes when the very large person from the contracted company, to whom the Minister referred, is knocking on the door. The point of the suggested provision is that that person should have the discretion, looking at the individual who comes to the door and against whom the warrant is issued, to decide, "Is this a person who is vulnerable?"—in the sense that they cannot be reasonably expected to act on his or her own behalf. If they come to that conclusion, we suggest that, at that point, they should be able to refer the matter back to the court and say, "Well, you've never seen this person. They weren't before you when you imposed that fine. Now, I've actually met the person in question and I think they are vulnerable and therefore you should rethink your position". That is what the provision is all about: it is a safeguard which we suggest should be in the Bill.

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Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)

The noble Lord is correct. We are talking about someone who has never appeared before the court and has not responded in any way to the various methods—through which I am afraid I have gone at some length—to try to contact them. There may be bad reasons for their not having got in touch with the court; there may be valid reasons. Our answer to the proposal that the provision be put in law, which the amendment would do, is that the guidance to which I referred states that the bailiff or "the contractor"—the noble Lord, Lord Thomas, described him as a very large person; I do not think that that is a requirement for the job—

"shall not take any action to levy distress without prior reference to the court if the defaulter"—

it then lists a whole series of possibilities, including being in hospital or a nursing home, or being heavily pregnant; there are others. They are the terms and conditions and specifications in the existing contracts. They should not be broken and the contractor must take some notice of the person who answers the door. If the person falls into one of the listed categories, the contractor is obliged to go back to the court. That is better than putting it in legislation, which is not necessary because it happens now.

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The Bishop of Winchester (Bishop)

There seemed to be a level of unreality in what the Minister said—the noble Lord, Lord Thomas of Gresford, was almost too polite to make the point. The Minister in his description of the gentlemen and ladies of the contracted organisations was speaking as if they were ideally placed to make delicate decisions about the needs of the person whom they faced on the doorstep. My experience of working with people who have suffered the attentions of bailiffs—I admit that it is small—is that that is not the kind of people they are, regardless of whether nice organisations exist to limit their activity. The amendment has been proposed in part because, notwithstanding all the professional arrangements, the reputation of bailiffs is very poor. Their wretched reputation for rough treatment of all kinds of people with whom they have to do is only too well known.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

I am grateful to the right reverend Prelate for that intervention, because it made the point that I was seeking to make. If the contractor's man, large or small, who appears at the door does not follow the guidelines, there is a breach of contract, but those are the contractual arrangements between the contractors and the court. It is of no help to the person who is being oppressed by this large or small individual to know that the contract may at some subsequent date be withheld from that contractor's organisation. The bailiff should be trained to know that they have a statutory duty under this Bill to look at the person with whom they are concerned and to determine whether they could be described as vulnerable, and therefore that the matter should be referred back to the court for its determination. The duty would introduce a feeling of humanity in that individual, whose profession, as the right reverend Prelate correctly said, does not enjoy the highest reputation among the people of this country who are subjected to distress warrants. I shall discuss with the noble Lord, Lord Lucas, what to do with the amendment but, for the moment, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 113 [Possession of extreme pornographic images]:

4:30 pm
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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

moved Amendment No. 122B:

Clause 113, page 79, line 38, leave out "appears" and insert "is of such a nature that it must reasonably be assumed"

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

Before I introduce the amendments which the Government seek to introduce to the clauses on extreme pornography, I shall explain in a little more detail why we seek to legislate in such a sensitive area. The issue of pornography is one that raises concerns on many levels. The clauses in this Bill are not about the debate on the rights and wrongs of pornography as a whole but have arisen as a result of concerns about the wider availability of extreme or violent pornography, particularly with the growth of the internet, although the same material is also found in large quantities by law enforcement in other forms such as on DVD. The clauses in the Bill do not make any distinction on how such material is possessed.

I stress that we are not trying to change the position on what types of material we should accept as permissible in our society. That is set by the Obscene Publications Act, and provisions on indecent photographs of children. But we need to ensure that the existing standards are effective in the circumstances of the society in which we live. The material that we seek to make it illegal to possess is material which we believe, after consultation with the police and the Crown Prosecution Service, would normally be subject to prosecution under the Obscene Publications Act were it to be published or distributed. However, it is simply a fact that the controls in that Act, which seek to tackle the supply of such material, are more easily evaded by the use of modern technology, which also makes the material easier to produce.

Many noble Lords will be aware that some violent pornographic material has been linked to particularly horrific crimes. While I am sure that there will continue to be much debate on how direct or causal the links are between violent pornographic material and crime, a recent rapid evidence assessment study, published jointly by the Ministry of Justice and the Department of Health, indicates that such material may have harmful effects on some people, in particular those with a history of sexual and other aggression. It is also worth bearing in mind that there are other experts in the field who share our concerns about this material.

I suspect that many noble Lords will have strong views on classification decisions made by the British Board of Film Classification, but it is worth while noting that in its own guidelines for R18 classifications, which is reserved for sexually explicit material—the only sort of material that the clauses cover—they refuse to classify material which encourages an interest in sexually abusive activity. That is one of the reasons why the police have to continue to fight the supply of obscene and illegal videos and DVDs.

In view of the difficulties in tackling the supply of extreme material, we therefore seek to tackle the demand side for some of most extreme forms of this material by making its possession illegal. We are focusing only on a subset of such material because we recognise the fact that there are particular human rights concerns with a possession offence. The clauses themselves contain more detailed descriptions than the Obscene Publications Act, because we recognise that the new offence can impact on individuals in their private life, rather than on persons typically producing this material on a commercial basis. This will ensure people are aware of what material is illegal to possess before they go about seeking to acquire it.

In light of this, I wish to introduce amendments to Clause 113, Amendments Nos. 122B, 123A, 123B, 125A and 125B, and to Clause 114, Amendments Nos. 131A and 132A, in respect of the definition of the definition of extreme pornographic material. They have been drawn up in the light of the concerns raised in Committee in another place and are intended to fulfil the undertaking which was given by my honourable friend Maria Eagle during that debate to consider whether the threshold of the offence and the drafting of the definition of an extreme image should be further clarified.

As I said, we recognise that this offence has implications for personal freedoms. It is not, and never has been, our intention to capture material that would not already be subject to prosecution under the Obscene Publications Act 1959 if it were published in this country. We wish to put beyond doubt in bringing forward these amendments that the type of imagery found in popular, mainstream films, which were discussed during earlier stages of the Bill, would not be covered by this offence.

Concerns were voiced in another place that the definition of "pornography" relied on the viewer having a clear understanding of the producer's intent with regard to the creation of the material in question. This, it was argued, would have created considerable difficulties for a viewer or a jury in those circumstances where it was not evident that material had been made for pornographic purposes. Thus, in Amendment No. 122B to Clause 113, we have sought to clarify that the question of whether or not material is pornographic is a matter on which a jury can simply take a view by reference to the nature of the material before them. It is not a question of the intentions of those who produced it.

Amendments Nos. 123B and 125A are consequential on Amendment No. 122B. Amendment No. 123A is intended to clarify that the relevant context when judging whether an image is pornographic is the context in which the defendant holds the image. Amendment No. 125B introduces the most significant changes. We have introduced an additional element to the offence which relates to the obscene character of the material in question. An "extreme image" must now not only be included in the list of extreme acts set out in Clause 113(6) but must be,

"grossly offensive, disgusting or otherwise of an obscene character".

That change is intended to clarify the alignment between this offence and the Obscene Publications Act. It is not our intention to criminalise material that it would be legal to publish. While we have not sought to import the language of or build directly on the Obscene Publications Act—essentially because it is constructed around the concept of publication, not possession, and covers a much broader range of material—we have sought to create symmetry between the two.

The,

"grossly offensive, disgusting or otherwise of an obscene character",

test is drawn from the ordinary dictionary definition of "obscene". When taken in conjunction with the existing elements of the offence, it will ensure that this offence catches only material that would be caught by the Obscene Publications Act were it to be published in this country.

In addition, we have proposed changes that we believe sharpen the definition of what was the second element of the offence; namely, the listed extreme acts. We have removed all occurrences of the words "appears to", which was a particular concern raised in another place, and indeed by the noble Baroness, Lady Miller, and the noble Lord, Lord Wallace.

We have provided that the acts depicted must be "explicit and realistic". The consequence is that only graphic and convincing scenes will be caught. The offence is thus not limited to photographs and film of real criminal offences which, as my honourable friend explained in another place, would make the offence unworkable and of limited effect.

The noble Baroness, Lady Miller, and the noble Lord, Lord Wallace, have tabled what may appear to be a similar set of amendments and I acknowledge their efforts in this regard. However, because of the way that the amendments have been drafted, we are concerned that they would make it necessary for the prosecution to prove that the events being depicted had actually taken place—that a person's life had actually been taken or that a life-threatening injury had been inflicted; in short, that a very serious crime had taken place. That would place an insurmountable burden on the prosecution, particularly when much material is produced abroad. We have also slightly restructured this part of the offence so that the persons and animals depicted must be such that a reasonable person looking at the image would think they were real. As I have mentioned, in respect of acts the requirement is that they be "explicit and realistic" rather than actually real. This change flows from our broader restructuring of the offence and does not represent a change in policy.

In Clause 114, Amendments Nos. 131A and 131B apply the slight change to the definition of pornography introduced in Clause 113 to the context of extracted images in Clause 114. The effect is that whether or not an image is an "extracted image," and thus should not benefit from the exclusion for films classified by the British Board of Film Classification, turns on whether the extract is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. As with the definition of pornography in Clause 113, this is intended to be an objective question for the magistrate or jury, not a question of the intentions of the person who did the extracting.

I hope noble Lords will accept these amendments, which I believe go a long way to address the concerns that have been raised. I beg to move.

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Baroness Miller of Chilthorne Domer (Spokesperson in the Lords, Home Affairs; Liberal Democrat)

I have some 11 amendments grouped with this government amendment. I am grateful to the Minister for explaining the Government's purpose and for his letter of 29 February which further expanded how the Government seek better to define their intention in this clause. Our difficulty with the clause is that this material is seen on the internet by someone in the privacy of their own home and is produced abroad so it cannot be caught by the Obscene Publications Act, as the Minister said. Therefore, the first person to judge whether the material falls within the scope of this Bill is the person viewing it. That is a very difficult position for the Government to put an individual in.

While I find myself in a difficult position defending people who want to watch violent pornography as I find that very distasteful, nevertheless I believe that, in taking a step in this direction, the Government are effectively becoming the "thought police". Has somebody a bad thought behind what they are doing? The Minister referred to the context in which the material is viewed. If I watch a violently sexual scene while chopping onions to make chilli con carne, is that context all right? Does that make it a bit less titillating as I am crying due to the onions and so am unable to concentrate on the film? Would that be viewed in a different light from somebody watching this sort of material in the privacy of their own bedroom? What exactly does the Minister mean by context?

The Joint Committee on Human Rights put it very clearly. It said:

"This means that individuals seeking to regulate their conduct in accordance with the criminal law cannot be certain that they will not be committing a criminal offence by having certain images in their possession".

The Government have brought forward helpful amendments which meet the arguments about "appears to" and result in a much better definition. However, I do not see that any of the amendments they have brought forward so far deals with the point made by the Joint Committee on Human Rights.

I have a series of questions for the Minister. He referred to the need for this measure given increased internet usage, but how much study have the Government undertaken of the problem of such viewed violence leading to crime to justify their concluding that this is the right legislative step to take? Is the problem due to internet viewing or is the increased amount of sex and violence in late night television films more of an issue? The Minister referred to the rapid evidence assessment. My understanding is that that assessment was made overseas. I would like to know how much of the UK context is relevant to what we have before us today.

Then there is question of where this law allows for a multiplicity of statuses for the same material. For instance, a particular act may be deemed illegal to own as a depiction, but if it is passed by the British Board of Film Classification and the need for protection of public morals suddenly disappears, the material is deemed legal. If someone then extracts an image or a short film passed by the British Board of Film Classification, and they just extract one episode, for example, of a violent rape, and play it over and over again, does that fall within the Bill? We ought to have evidence on that sort of use of material. Is it as harmful as something that was made on the internet without being passed by any board of film censors?

There are a great number of issues with the clause. There is the human rights issue of how private people can expect to be. I am sure like other noble Lords, I have had a vast number of letters on this subject, some from self-confessed users of pornography who are very frank about it. I have to believe them when there is no evidence to the contrary—which there certainly is not—that they view this sort of thing and never have any reason to think that they would in any way start to commit violent acts against other members of the public. We may not like it, but it is something that they do in the privacy of their own home. What entitles us as a legislature to pass something that is an invasion into their thoughts?

What really worries me about it is that we are asking these people to judge whether what they are seeing is going to fall within the remit of the Bill, before it ever gets to a jury. If they think that it does not, because they perhaps do not find it particularly exciting, and then for some reason their use is discovered, the police arrive and they are subsequently prosecuted, that will not sound like much of a defence. Is there something else that the Government can do to improve this clause? I suggest that this clause has been fairly rapidly arrived at, and it might be better to have something that is somewhat more substantial and over which more time has been taken. Perhaps a Joint Committee of both Houses could take evidence and look at the issue of violence and connection to crime, looking at substantial evidence from the UK, to see whether we can arrive at something that is somewhat more satisfactory.

4:45 pm
Photo of Lord Faulkner of Worcester

Lord Faulkner of Worcester (Labour)

Like the noble Baroness, I, too, have received a large number of letters and e-mails on this clause, some of which are frankly quite disturbing, some of which are quite amusing and some of which are very serious. My favourite came from someone whose e-mail address included "affordable-leather", which I thought was a reference to sofas and armchairs, but when I went to the website it turned out to be something very different indeed.

The most important point that has been made to me in those representations has come from Liberty, which summed up its argument as follows:

"The fact that many people find pornography morally offensive, damaging or worthless is not a good reason in itself to outlaw possession. Extreme caution should be exercised when new criminal laws are imposed with the intention of imposing a subjective opinion of what is morally acceptable".

I think that the Minister is conscious of that point, and the amendments that he has come forward with make this clause a great deal better than it was at the beginning of our debate.

Like the noble Baroness, I am concerned that we are intruding into people's privacy and that we are potentially making illegal activities that I suspect no one in this House would find interesting or in any way stimulating but which, for some people, represent an important part of their lives. For example, I have had an e-mail from Dr Tuppy Owens of the Outsiders Trust, who works with disabled people. He says:

"I work with disabled people, helping them find partners, through the Outsiders Trust. Disabled people have a hard enough time enjoying more conventional sexual lives, but fetishistic sex can be even more out of reach, both because of the prejudice they face in society generally, and because of often limited access to appropriate venues. Because of this, disabled people often need to rely on the internet and films for their satisfaction and mental and physical well-being. These proposals will therefore have a disproportionate impact on many people with a physical disability, by adding yet another barrier".

I hope that, when my noble friend comes to reply to the debate, he will answer that point.

Perhaps he could also answer one other point that has been put to me. As a new offence is being created, what will be the position of people who have already downloaded material on to their computers which up until now has not been illegal but henceforth will be? Will the possession of that material be regarded as a criminal offence and, if so, what advice does he have for people to get rid of it?

Photo of Baroness Falkner of Margravine

Baroness Falkner of Margravine (Spokesperson in the Lords, Home Affairs; Liberal Democrat)

I, too, wish to speak to this group of amendments and, in doing so, I should like to make a couple of general points. The first concerns the attempt to regulate material which is becoming increasingly difficult to regulate because, as the Minister told us, most of it originates abroad. I did quite a lot of work on another area of extremism and the analogy comes to mind of similar issues concerning material of another nature which the Government also describe as extremist—that relating to terrorism, which is also mainly produced abroad.

When we debated "glorification of terrorism" and all such phrases, I cautioned about introducing legislation which is too broadly drafted and very wide in scope and which encompasses, as my noble friend Lady Miller said, some element of thought crime. I do so here for many of the same reasons. We know from the case of the young woman who wrote a poem that the courts do not like convictions concerning thought crime, and I suggest that, if this provision becomes law, it will encounter similar problems further down the road when it comes to regulating very ambiguous and broadly defined and drafted clauses.

Moving specifically to some of the terms, I welcome the removal of the ambiguity created by the words "appears" and "appears to" throughout this clause. However, I believe that, although there has been a genuine effort to remove the subjective element of these terms, the Government are still muddled as to how to approach the problem of the dissemination of extreme pornography, which is why they have introduced the new and, as I see it, much more subjective standard in Amendment No. 125B. That would insert a new subsection stating that an "extreme image" is one which is,

"grossly offensive, disgusting or otherwise of an obscene character".

The problem here lies in defining what is offensive and disgusting, which is naturally subjective. It is dangerous to attempt to comment in criminal law on where the boundaries of taste lie. As I understand it, pornography covers a wide range of acts of different levels of what might be described as extreme acts of a sexual nature. For legislation to attempt to draw subjective parameters is, at worst, unworkable and may criminalise people who would not otherwise have seen those acts as disgusting, particularly if they had filmed themselves committing the acts as consenting adults and were viewing them themselves. I suggest that in those conditions they would probably not find them offensive or disgusting.

Moreover, the definition of pornography will be left to the jury. The Minister is aware, as are many other Members of the Committee, that there is a debate in the country about values, about diversity and about religion and religious faith. The debate on diversity and the erosion of social cohesion is important, and one that the Government recognise as important—hence, the plethora of speeches by the Prime Minister and by other Ministers and initiatives concerned with integration, religion and extremism of the other kind. While they recognise that the values in Britain are changing due to diversity, and that religious belief is becoming a more potent source of conflict, the Government are seeking to bring in legislation which is highly subjective and then they are leaving the test to be decided by juries, who could deliver very different outcomes in cases with similar content depending on the part of the country where they take place. The onus on the jury to define pornography will place good people in an invidious position on matters that are so sensitive that, if the law has to enter here at all, it should be law that is capable of being clearly understood and demarcated. These clauses will not achieve that purpose.

Photo of The Bishop of Chester

The Bishop of Chester (Bishop)

I want to offer some general support to the Government for what they are attempting to do with these clauses. To bring pressure to bear in our society on the extraordinary explosion of what we might generally call pornographic images seems to me to be laudable and right. I share the view of those who have already spoken in this debate that to address the issues as set out here seems to beg as many questions they answer. This relates to the whole Bill and it seems to me that whenever there is a criminal justice Bill before Parliament all manner of things get added in, things which need rather careful discussion and joined-up thinking on how they relate one to another.

I notice that the Government have withdrawn certain proposals about prostitution, which is right. That whole area requires profound consideration about what should and should not be legal in our society. Personally, I would welcome the thought that for a man to solicit sex from a woman or to pay for it ought, prima facie, to be a criminal offence. However, it is surrounded by so many questions that only through the most detailed and careful consideration can good law be made.

I happen to think the same about blasphemy, to which we shall come, I believe, on Wednesday. I support what is being proposed, but I think it interrelates with other issues in our society and it is not really suitable to be put in. I would welcome a thorough look at the whole issue of what pornography is and its impact on our society. Clause 113(3), as amended by Amendment No. 122B, would state:

"An image is 'pornographic' if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal".

You can see that when you go into many newsagents in our society and look not just at the top shelf but at almost any shelf these days. Many of the soft porn films seem to have been produced precisely for that purpose.

The last thing we want to do is to produce an aura where everyone is a potential criminal. In one sense, we are and we need to acknowledge that, but that produces very negative reactions in the population. One can instance all sorts of ways in which that is the case. This whole area needs very careful examination not least in terms of whether there is any link between what is published and broadcast and crime. There are definitely imitative patterns of behaviour. There are the awful tragedies of the suicides in south Wales at the moment which is an illustration of how images can be created, as it were, and behaviour follows those images and is repeated. Sexual arousal is simply part and parcel of the whole of the creative world. When one looks at David Attenborough's series "Life on Earth", one sees that much of the depiction of the way in which the creative world operates is tied in with the reality of sexual arousal—let us be honest about it. If we are going to produce laws in this sort of area, they must carefully define what they are attempting to criminalise.

The clauses also seem to move between issues of violence and issues of pornography and sexual arousal. I know that they can often be linked, but I tend to think that they are often rather different. I think, from my own perspective, of the Christian faith, which has a violent image right at its heart: that of somebody being nailed to a cross. There are ways in which you could find portrayals of central features of the Christian faith covered by these clauses. Some people find them offensive; indeed, in one sense they are. There is such a deep subjectivity here that these things need careful consideration.

While I applaud the Government's attempt to get to grips with this issue, I share a feeling that things are not right. My brief experience in your Lordships' House tells me that this number of amendments linked together usually means that the legislation is in difficulty.

5:00 pm
Photo of Lord Henley

Lord Henley (Shadow Minister, Justice; Conservative)

I intervene early and apologise for trying to pre-empt the right reverend Prelate. He made some valuable points; first, the general point that this issue needs a lot of further thought. As I think he put it, whenever we see a criminal justice Bill we see a hotchpotch of things added by the Government, some of which need considerably greater thought—a classic example of something that this House is good at. Bearing in mind that the Government are anxious to save a bit of time on this Bill, when the Minister comes to respond he might want to take the amendment away, give it some further thought—possibly send it to a Select Committee, or whatever—and bring it back having done so.

More generally, following on from what both the Liberal Democrat spokesmen had to say about the Bill, there is a difficult point about definitions and subjectivity and objectivity. We are all agreed on certain things. For example, we probably all take what I might describe as the Mrs Patrick Campbell view of these things: we do not mind what appears, so long as it does not frighten the horses. Our problem is that we cannot quite define what does frighten the horses. That is what we must identify in the amendment, and why the Government's wording is being amended from,

"it appears to have been produced solely or principally for the purpose of sexual arousal",

to,

"is of such a nature that it must reasonably be assumed"

to. That is why the Liberal Democrats are rightly suggesting that "appears to have" is changed to something more precise, such as "has". It is a question of defining what exactly is frightening the horses, by which I mean creating some public mischief rather than just being something that might offend me or the Liberal Democrats—or even the Government.

This is obviously a difficult issue. I notice the Minister looking hard at his papers and wondering about it. No doubt he will respond in due course. I go back to my original point of whether he might want to take the amendment away and bring it back on some other occasion after we have had some further thought about it and about how properly to define the mischief we are trying to address.

Photo of Lord Maclennan of Rogart

Lord Maclennan of Rogart (Spokesperson In the Lords (With Special Responsibility for Civil Service Reform); Liberal Democrat)

I understand fully why the Government should be exercised about the matters addressed in this part of the Bill, but I wholly agree with what the right reverend Prelate said about the anxiety that the Government have not come up with the right answers. The problems of definition in this area are immensely difficult to resolve. What I find missing from this part of the Bill is the consideration, which ultimately made acceptable the Obscene Publications Act, that the judgment of expert witnesses about whether the works being considered were of literary merit would be capable of being led in a case about something that might otherwise be regarded by some as open-and-shut pornography.

The definition of an image in Clause 113(3) that the Government's amendment seeks to amend is not capable of improvement by the amendment the Government have advanced. It suggests that it would be appropriate to cut out any image that induced sexual arousal. Hardly any great classical play does not have such a moment. If one looks at renaissance painting or sculpture, there is hardly an artist of merit who has not employed an image for that purpose. The definition is far too sweeping, and if one is considering the dangers, the threat or the unattractiveness of filmed material reproduced by electronic means, is one really to take the view that because an image in a film might have that effect, indeed, might be intended to have that effect, the whole work should be regarded as being of such a nature that the possessor of it should be criminally responsible?

I also think that the Government have not succeeded in improving the language in respect to what is extreme. The issue of whether something is grossly offensive is treated as though it were objectively definable. The fact that something is grossly offensive to one person does not necessarily reflect the general view. It might be thought that the film that recently won an Oscar in Los Angeles, "No Country for Old Men", was grossly offensive and, indeed, extreme, not only because of the continuing threats in it but because there were acts that threatened a person's life. I cannot imagine one of Shakespeare's tragedies that does not involve an act threatening a person's life that, in itself, might be regarded as grossly offensive if taken out as an image. Lady Macbeth's famous speech when she is seeking to stir herself up seems to me to have been deliberately, explicitly sexual and designed to evoke a response from the audience.

Secondly, in the definition of an extreme image here we have, under subsection 6(b), a definition that would certainly have led to "Last Tango in Paris" being regarded as a film that it was a criminal offence to possess. The fact that Marlon Brando was engaged in the activity would apparently not be any defence, were the provision to be enacted.

Images fall under the definition in subsection 6(d) where a person performs an act of intercourse with an animal. How many images of "Leda and the Swan" would fall foul of that—images that are regarded as great expressions of human artistic endeavour? A remarkable example springs to my mind in the Kunsthistorisches Museum in Vienna. I doubt whether anyone would deny for a minute that it was intended to have a sexual purpose and a sexual response—or that it was a remarkably realistic image.

The provision is just badly thought out. The whole thing needs to be taken back and worked on again. We will be legislating in haste if we allow this to pass; and we could regret it very much at leisure.

Photo of Baroness Howe of Idlicote

Baroness Howe of Idlicote (Crossbench)

I join other noble Lords in their concern that this part is still in the Bill. It is quite clear from the contributions that have been made just how widely that view is held. As someone who comes, not many years ago, from the background of the Broadcasting Standards Commission, the sort of late-night viewing that we were looking at and having to give some sort of judgment on whether it was going too far, seems mild—to put it mildly—in comparison with the sort of things that, as another noble Lord said, we see late at night regularly on practically every channel.

One urges the Minister and the Government to think again. As another noble Lord said, a Joint Committee—a pre-legislative committee of both Houses might be the best way—should look at the implications of what has happened in the past few years. We are having to do that as a result of the Broadcasting Act 2003, which is clearly outdated in a number of respects. It did not take account of just how far the internet was likely to be involved in almost every aspect of our daily lives. It certainly worries me that anyone slotting into the internet, Google or any of these places can almost inadvertently come upon the sort of images that they might feel could result in a charge being made against them. That is an appalling thought, not least because of how easily and quickly these things pop up. Liberty makes that point very clear in its briefing to us. That reinforces my clear belief that a much more detailed study needs to be done.

We appreciate why the Government have tabled their amendments—they have seen the concern and have tried to remedy it—but they certainly do not satisfy me. More problems arise from the particular words that have been used. I therefore join other noble Lords in asking the Government to think again. This is too vital an area for us to allow it to be simply an add-on—yet another thing. My noble friend Lord Ramsbotham describes the Bill as a yet-another-thing Bill, which has some justification.

When we at the Broadcasting Standards Commission judged whether something was in bad taste, we certainly looked at the context of what was being said. That was all-important; was it a classical work—a work that justified the images that were being used? That must remain a test of what you are looking at, although perhaps not many of us would be able to apply that to some of the things that we see inadvertently in today's world.

In the longer term, we need to look at the possible effect that violent and pornographic images can have on the nation generally, not only on the damaged personalities who have been referred to. I shall give a little example of something that worries me. When I was a very mature student at the LSE, I was assigned to do a little participant observation research. One group of new students in the university, who were studying something like English, were exposed to quite violent, sexual images very early on and all the way through their course. The other group, which was being taught the same course, did the normal course. The moment at which a quite explicit violent and sexual scene was put before these students was interesting, although I do not imagine, because it was quite some time ago, that it was anything like the sort of scenes that we see today on television. It was immediately apparent how horrified the group which had not been exposed to any of these images before had become. That should worry us quite a lot in today's world. I therefore very much support the call for a rethink of all these clauses.

5:15 pm
Photo of Lord Wallace of Tankerness

Lord Wallace of Tankerness (Liberal Democrat)

I share the concerns, which have been expressed by many noble Lords and noble Baronesses about the clauses as they are presented to us at the moment, even with the amendments that I acknowledge have been tabled to try to address a number of concerns that were expressed in another place and by the Joint Committee on Human Rights on this particular issue.

There is still a degree of uncertainty about what the criminal law will be. If we are indeed about to create a statutory offence with the potential for a serious term of imprisonment, we really need something that stands up to scrutiny much more than the terms of the clause. In his final remarks, the noble Lord, Lord Henley, said something about trying to determine what the mischief is. I tried to think who the potential victims of this crime are. Is it those who participate, because if actual events are being filmed, clearly a crime of serious assault will have been committed in any event? If it is simulated and if people are engaged in a consensual activity, it is stretching things a long way to suggest that people who are engaged in that kind of consensual activity, albeit in an activity that may be abhorrent to most if not all of us here, should be criminalised for that.

It is quite clear that in the case of child pornography, a child is incapable of giving consent. Therefore, it is only right that that is totally beyond the pale and is criminalised. We should tread very warily before we engage in criminalising something that is consensual. It would be very odd if a couple engaged in a consensual act which in itself would not be criminal but, if it was photographed, the possession of the photographs could be criminal. That seems to be going too far. On those who are perhaps viewing this material, again I have difficulty in accepting that that might be the case.

In introducing his amendments, the Minister made the point about how the Government are trying to bring the definitions more closely in line with the Obscene Publications Act. I note that Section 1(1) of the Act provides:

"For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it".

It has already been said in this debate that the type of people who are liable to see this are probably those who seek it out. It is very difficult to perceive, therefore, if one is trying to import the Obscene Publications Act, the type of people who are liable to see it and whether they would be victims of the crime intended to be created by this clause.

On whether the wider society could be the victims, my noble friend Lady Miller of Chilthorne Domer has indicated her concerns about the reference to the rapid evidence assessment referred to by the Minister. But it is equally the case that in the Government's consultation document on these proposals, both in the executive summary and on page 10, they acknowledge the question:

"In the absence of conclusive research results as to its possible negative effects, do you think that there is some pornographic material which is so degrading, violent or aberrant that it should not be tolerated"?

In their consultation document, the Government accept that the case is not made and that there has not been conclusive research to the effect that it has a negative effect on wider society.

Before we create this, we are entitled to ask who the victims are. As yet, I do not think that that question has been answered. Just because we may find the type of material abhorrent, that is very often the time when we should stop and pause. It is very easy to talk about defending liberties and freedom of expression when people are making comments about things that we most readily agree with. But, as the European Court of Human Rights said in the case of Müller v Switzerland,

"it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population".

We should hesitate before we go down this road. I agree with Members of the Committee who have said that there will be other ways to address our concerns; perhaps a Joint Committee of both Houses could look at the evidence, or we could tackle more and engage more with the internet service providers. In the long run, that may be a more effective way of curbing this activity rather than trying to create an offence, which many Members of the Committee have said has many weaknesses in it.

Photo of Baroness Howarth of Breckland

Baroness Howarth of Breckland (Crossbench)

I had not intended to speak in this debate. The government amendments may be flawed, but other Members of the Committee have more expertise than me on that. I want to put the perspective of different experience. I am the deputy chair of the Faithfull foundation, which deals with sexual and child offenders. I also worked for 10 years on the Independent Committee for the Supervision of Standards of Telephone Information Services, which regulates pornography on telephones. I was one of the people responsible for ensuring that we have an opt-in rather than an opt-out service, so that children cannot look at that kind of pornography. Therefore, I have some background to and understanding of the research and information in relation to pornography. I was very struck by the comments made by the noble Baroness, Lady Howe of Idlicote, who described the experiment of people seeing a great deal of pornography and their shock at it being eroded, as against those who come to it fresh and feeling quite disturbed.

Much of our work is with men who have telephoned the Stop It Now helpline through the Lucy Faithfull Foundation. These men have either watched adult pornography or have attempted to access child pornography. I should mention to my noble friend Lady Howe and perhaps to the Government for their information that it is quite difficult to get on to one of these sites. If one has to have the unpleasant experience of watching this material as part of one's job, one cannot get to it by accident; a determined effort has to be made. This means that someone has to be mentally and emotionally attuned to wanting to see this material. The men who have come to us report that they became increasingly disturbed by the material they viewed, indicating that there is a progression here. Some people can see this material and maintain their stability, but not many. It erodes disgust and distaste, allowing someone to move on to the next stage. A person may start by looking at adult pornography, progress on to child pornography, and then begin to exhibit difficult behaviour that results in wanting to go beyond visual images and get in touch with real children.

It may be that the Government need to look at this again, but like the right reverend Prelate the Bishop of Chester, we must not try to avoid the fact that there is a problem here. The research can be looked at in a number of ways, and I certainly looked at the methodology of some of the original research. I was left feeling uneasy with its conclusion that pornography does not have the effect that experience clearly shows me every day in men who come to the Stop It Now programme saying, "I want to stop this now. Can you help me, because I can see where I am going?". I am not commenting on whether it would be right or wrong to accept the amendment, but I plead that we do not shut the door on having a provision to deal with what is a very real problem in our society.

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

We have had an interesting debate more like that held at Second Reading rather than on the detail of the amendment before us, and it is none the worse for that. I know that noble Lords would love to see a Select Committee set up to consider this issue in greater detail, and I shall come on to that in a moment. First, however, I want to say to noble Lords that this clause has had substantial consideration. It was consulted on widely through the consultation held on the case for a new offence in 2005, which was followed by publication of a summary of the responses to that consultation and then the Government's conclusions in 2006. In addition, when the Bill was considered in the other place, the Public Bill Committee took evidence from a number of witnesses. There was also considerable discussion in Committee. Indeed, the reason I am bringing forward a number of amendments today is because they reflect the discussions held in the other place, which shows that parliamentary scrutiny is indeed working.

I understand that noble Lords would like to see more consideration of this matter. I do not know whether it would help but, if between Committee and Report noble Lords would like me to arrange a meeting to go through this issue in detail, I would be happy to do so. I am sure that they would then be able to access as much information as I can produce in advance of further discussion on Report. In response to the noble Lord, Lord Henley, I should say that the Conservative Party welcomed the consultation on this matter, and indeed the submissions made by Mr Tim Loughton and the right honourable Mrs Theresa May supported the Government's determination to address abuse of the internet in order to gain access to extreme images of violence and pornography.

I understand the balance that must be struck between freedom of choice, individual freedom and the "thought police" on the one hand, and the potential ill effects of pornography, particularly some of the most appalling pornography we are discussing here, on the other. I do not think anyone would claim that it is easy to get the balance right, or that we will have unanimity of opinion. However, I stress that this is not a debate about the rights and wrongs of pornography in the round but about the wide availability of extreme or violent pornography, particularly with the growth of the internet, which because it is often produced in other countries is not covered by the current legislation. That is the reason we are here today and debating what I accept is a very difficult matter.

I say to the noble Lord, Lord Wallace, that the material we are seeking to make it illegal to possess, after consultation with the police and the Crown Prosecution Service, is that which would normally be subject to prosecution under the Obscene Publications Act were it to be published or distributed. The controls in that Act are more easily evaded by the use of modern technology, which, as I said earlier, also makes the material easy to produce.

I stress that this is not targeting sexual arousal or pornography per se; it is but one of the elements contained in the Bill and is subject to the changes that will be made as a result of the government amendments. The elements of the test, in a sense, are that it must be an extreme pornographic image which is grossly offensive, disgusting or otherwise of an obscene character. An image would only fall under this provision if it portrays in an explicit and realistic way any of the following: an act which threatens a person's life; an act which results, or is likely to result, in serious injury to a person's anus, breast or genitals; an act which involves sexual interference with a human corpse; or a person performing an act of intercourse or oral sex with an animal, whether dead or alive.

Of course there will be debate about whether this captures precisely what we want to capture and whether it will cause difficulties in interpretation. I understand that. All I seek to illustrate is that we are talking about some of the most extreme pornography there can be.

On the question of evidence, I was very interested in the comments of the noble Baronesses, Lady Howarth and Lady Howe. The noble Baroness, Lady Howe, referred to the evidence of violence on television, which has been ongoing for more than 40 years. I have referred to the key findings of the rapid evidence assessment research—I know noble Lords have read it—which supported the existence of some harmful effects from extreme pornography on some who access it: the increased risk of developing pro-rape attitudes, beliefs and behaviours and committing sexual offences. Although the research assessment said that this was also true of some pornography which did not meet the extreme pornography threshold, it showed that the effects of extreme pornography were more serious.

Men who were predisposed to aggression or have a history of sexual or other aggression were more susceptible to the influence of extreme pornographic material. This was corroborated by a number of different studies using different methods and different samples. It is true that the REA found no formal research studies of these effects on those who participate in making extreme pornography, but the noble Baroness, Lady Howarth, was surely right when she, essentially, reported on her organisation's experience with individual men; it seems plain common sense that this awful stuff must have a negative, adverse impact on some of the people viewing it.

The freedom of individuals to view these materials in the privacy of their own homes is a difficult issue—and this legislation will involve a restriction—but our defence is that the material that we intend to target is at the extreme end of the spectrum and which we believe most people would find abhorrent. Of course there will be debates on this and I accept that this is a restriction, but the Government believe that it is an acceptable restriction.

The noble Baroness asked about the context in which it is viewed. If she is watching one of these images but is creating a dish chopping onions, in what context is it? The context means "that in which the image sits". In other words, is it a brief viewing within a film or is it a part of a series of pornographic images? It is not in the context of chopping onions but in the context of the clip and the film. I suspect the noble Baroness knew that really.

On the exclusion of material made by consenting adults—

5:30 pm
Photo of Lord Henley

Lord Henley (Shadow Minister, Justice; Conservative)

The noble Lord mentioned earlier "what most people find abhorrent". Are the Government aiming for something that will cover what most people find abhorrent or something which will create a public mischief, a point on which I touched but which the noble Lord, Lord Wallace of Tankerness, put better? That is very different from what most people find abhorrent.

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

Undoubtedly the aim is what most people find abhorrent.

On the difficult question of material made by consenting adults which the noble Lord, Lord Wallace, raised, it is often very difficult to tell from an image whether or not consent has been given. Images can be circulated far beyond those who participated in the act. Broadly, most of these images will have been made in another country and the immediate concern of the Government is on those who possess those images. That is why the Bill is drafted in the way that it is, bearing also in mind that production will be covered by existing legislation.

I understand the points raised by noble Lords about the clarity of the law. The amendments that I have brought forward seek to respond to the points raised by Members in another place and to give greater clarity. Of course information will be made available to members of the public when this is brought into fruition. We have tried to make the clause as clear as possible.

As regards the concern of my noble friend Lord Faulkner in relation to disabled people, we have no evidence that disabled people are more likely to access extreme violent pornography than anything else. I have been talking about the very extreme end and not pornography in general.

On the question of those who are now outside the law who will be covered by being in possession if this was enacted, the position is that those who continue to possess material which would fall under the scope of this offence after the legislation is brought into force will be committing an offence. Again, rather as in answer to the last point, we will want to make sure that information is made available about the offence and the circumstances in which it operates.

I have offered to arrange meetings between Committee and Report to discuss this further. The Government remain convinced that we need to tackle these elements of extreme violent pornography. Noble Lords may have points to make about the way the amendment is drafted, but I hope they will not dissuade the Government from pursuing this course.

Photo of Lord Thomas of Gresford

Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

It may very well be right that the Government should tackle this problem, but this debate indicates that the way they are trying to tackle it is unclear, as are their aims: are they trying to ban people from possessing simply material that causes sexual arousal, or, as my noble friend Lord Wallace said, material that incites a public mischief?

I am taken back to the Oz trial back in 1971—that may be before the Minister's time. The indictment in that case is interesting. The editors were charged with:

"Conspiring to produce a magazine containing diverse lewd, indecent and sexually perverted articles, cartoons, drawings and illustrations with intent thereby to debauch and corrupt the morals of children and young persons within the Realm and to arouse and implant in their minds lustful and perverted desires".

Geoffrey Robertson, now Queen's Counsel, a colleague of the noble Baroness, Lady Kennedy, and later to write the leading legal textbook on obscenity, said in an article in Cherwell,

"They don't write laws like that any more".

He added, "Nor should they". He went on to quote from an Arts Council report of 1969 where it had quoted with approval the evidence of Dr Anthony Storr, a well known and leading psychiatrist of the day, who said that when people use the terms "depraved" and "corrupted",

"they are very often referring to the idea that persons could, by reading literature, for instance, be encouraged to engage in sexual perversions which they have never thought of. In my view, disturbances of sexuality of this kind have their origin in early childhood and are the result of the family environment to which the individual was exposed during his first five or six years".

As the Minister said just now, recent research seems to confirm the views that were expressed nearly 40 years ago. If the offence—not of producing and distributing material of this sort but of simply possessing it, never mind whether you are looking at it—is to be punishable by three years' imprisonment, it is necessary to know precisely what the limits, boundaries and purpose of that offence are to be. The clause may have been drafted after consultation, as the Minister said, but it is clearly held all around this House to be unsatisfactory. It should be looked at again and withdrawn from the Bill.

Photo of The Bishop of Chester

The Bishop of Chester (Bishop)

To use what most people would find offensive as a central criterion is too subjective. We live in a society where we have a diverse range of tastes; there are lots of things I do not like at all but which are legal in this society. It is interesting that certain noble Lords got a great number of letters and e-mails on certain topics. I got none, and I wonder why; no doubt it was assumed by those concerned that I was a hopeless case. "What most people find offensive" cannot be the right principle to operate on; it is too much the law of the crowd.

I am with the noble Baroness, Lady Howarth, here: if a clear link is established between pornography as we would generally describe it and child sex abuse, that is something we should seriously consider, even if that puts restrictions on other individuals. That is an objective criterion. If there is a criterion of "the common good", something about society on which we agree just for the good of society, that is also more objective. But to legislate on the basis that this is what most people do not like is a recipe for transient and bad law.

5:45 pm
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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

I accept that the expression is very vague, but there are three elements to the test that has to be passed. The government amendments I have brought today seek to clarify the position some more; it is not just a vague test consisting of what most people think, although I would certainly pray in aid what I think public opinion would be in this regard. The amendments are a genuine, relevant attempt to deal with the specific issues that were raised in the other place about whether the test was too vague and to give greater clarification.

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Baroness Miller of Chilthorne Domer (Spokesperson in the Lords, Home Affairs; Liberal Democrat)

The problem that noble Lords have wrestled with, as have I, of whether there is a link between the possession of the material and a crime then being committed—or being more likely to be committed—or whether it is just that there is distaste for this material is something that the Minister still has not really nailed. That is what I would like to understand.

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

I have already prayed in aid the rapid assessment. I have also said that since most of this awful stuff is produced in other countries, it is difficult for the Government alone to deal with the producers. That is another reason why, in addition to the impact it might have on those who possess it, it makes good sense to deal with the whole issue through possession; in many cases it is not possible to deal with the actual producers.

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Baroness Miller of Chilthorne Domer (Spokesperson in the Lords, Home Affairs; Liberal Democrat)

It would be useful, certainly for me and perhaps for other noble Lords, when we meet the Minister between Committee and Report, to hear a little bit more about what other countries—such as other European countries, the United States and Australia—are doing about this. I do not expect him to address that now, but what laws have they brought in to deal with this problem?

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

I am happy to do that. I reassure the noble Baroness that the Government seek to work very closely with other nations to deal with this problem, and I am happy to report to her in detail on where we have got to with that.

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Lord Elystan-Morgan (Crossbench)

I have no doubt that the Government are to be praised and applauded for their efforts regarding this. It is a real problem of considerable magnitude. However, I very much doubt, with the greatest respect, whether the test, in so far as it is going to turn on the question of what the public in general feel is abhorrent, can be sustained.

There is nothing inherently wrong in setting a benchmark in law that is based upon the attitude of an ordinary, decent person. In the definition of dishonesty, judges day in and day out will tell their juries that the test of dishonesty is the test of what ordinary, decent people regard as the line where something ceases to be honest. That is a test that works. The difficulty with abhorrence is that whereas most people would be able to agree absolutely where that line is in relation to honesty or dishonesty, people might have hundreds or thousands of different views about what exactly is abhorrent. To my mind the use of that word carries echoes of the Lady Chatterley trial, which must have been 50 years ago, and Mervyn Griffith-Jones, learned counsel for the Crown, exhorting the jury to consider whether that was the sort of disgraceful book they would allow their servants to read.

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Lord Elystan-Morgan (Crossbench)

Their wives and servants. I am not deriding the Government at all; they have a difficult situation here and they have grasped the nettle. It would probably be better to concentrate upon the causal link between the possession of such material and the dangers that they envisage.

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Baroness Kennedy of The Shaws (Labour)

Reference has been made to the fact that my own chambers do quite a deal of work in the pornographic field—I do not get very much of it myself, and I cannot express any regret about that. However, because John Mortimer's practice passed to certain people in my chambers, a lot of work concerned with pornography comes to us. It is interesting that, precisely for the reasons that we have just heard expressed by the noble Lord on the Cross Benches, juries on the whole have great difficulty in dealing with what is likely to deprave and corrupt, and one sees shifts, depending on what is happening in society. Twenty years ago, there was a great deal more horror about pornography that was homosexual in nature. Nowadays, juries are much more accepting of that, but much less accepting of violence towards women. The way in which these shifts take place is very interesting.

I have always argued that extreme pornography of this kind has to be accessed on the internet using credit cards. Why have the Government not thought of it as a course to dealing with it? They could approach credit card companies and say, "It is your responsibility to put a block on these sites, and when someone seeks to use their credit card for this extreme pornography, they cannot do it". Why are we not seeking to address it that way rather than introducing the problem of finding a criterion that does not fall foul of the problems raised in this debate? I would be interested to hear from the Minister whether efforts have been made to go down that route.

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

I thank my noble friend for that. The Government are working, and will continue to work, with industry, be it the mobile device or internet industry, or the credit card companies. The advice that I have received is that we are in a much stronger position in discussing, for instance, with the credit card companies restricting payment methods if the material is illegal to possess.

On Question, amendment agreed to.

[Amendment No. 123 not moved.]

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

moved Amendments Nos. 123A to 123B:

Clause 113, page 80, line 1, after "Where" insert "(as found in the person's possession)"

Clause 113, page 80, line 2, leave out "appears to have been so produced" and insert "is of such a nature as is mentioned in subsection (3)"

On Question, amendments agreed to.

[Amendments Nos. 124 and 125 not moved.]

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

moved Amendment No. 125A:

Clause 113, page 80, line 9, leave out from beginning to "produced" and insert "having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been"

On Question, amendment agreed to.

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

moved Amendment No. 125B:

Clause 113, page 80, line 14, leave out subsection (6) and insert—

"(5A) An "extreme image" is an image which—

(a) falls within subsection (6), and(b) is grossly offensive, disgusting or otherwise of an obscene character.

(6) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—

(a) an act which threatens a person's life,(b) an act which results, or is likely to result, in serious injury to a person's anus, breast or genitals,(c) an act which involves sexual interference with a human corpse, or(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive),and a reasonable person looking at the image would think that any such person or animal was real."

On Question, amendment agreed to.

[Amendments Nos. 126 to 130 not moved.]

Clause 113, as amended, agreed to.

Clause 114 [Exclusion of classified films etc.]:

[Amendment No. 131 not moved.]

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

moved Amendments Nos. 131A to 131B:

Clause 114, page 80, line 41, leave out "appears that the image was" and insert "is of such a nature that it must reasonably be assumed to have been"

Clause 114, page 80, line 44, leave out "appears to have been extracted as" and insert "is of such a nature as is"

On Question, amendments agreed to.

[Amendment No. 132 not moved.]

Clause 114, as amended, agreed to.

Clause 115 [Defence]:

[Amendments Nos. 133 and 134 not moved.]

Clause 115 agreed to.

Clauses 116 and 117 agreed to.

Schedule 23 agreed to.

Clause 118 [Indecent photographs of children]:

[Amendment No. 134ZA not moved.]

Clause 118 agreed to.

Photo of Lord Henley

Lord Henley (Shadow Minister, Justice; Conservative)

moved Amendment No. 134ZB:

After Clause 118, insert the following new Clause—

"Failure to comply with notice to disclose

(1) In the Regulation of Investigatory Powers Act 2000 (c. 23) in section 53(5A) after paragraph (a) insert—

"(aa) where subsection 5C applies, five years; and".

(2) In the Regulation of Investigatory Powers Act 2000 (c. 23) after section 53(5B) insert—

"(5C) This section applies where—

(a) the offender has been previously convicted of an offence relating to an indecent photograph of a child, or(b) where an indecent photograph of a child has been found in his possession, or(c) where the court is satisfied that it is more likely than not that the protected information may contain an indecent photograph of a child.

(5D) In subsection 5C, "indecent photograph of a child" has the same definition as in sections 1 and 7 of the Protection of Children Act 1978 (c. 37) and includes a reference to a pseudo-photograph of a child."

(3) In Schedule 3 of the Sexual Offences Act 2003 (c. 42) after paragraph 35 insert—

"36 An offence under section 53 of the Regulation of Investigatory Powers Act 2000 (c. 23) where subsection 5C applies.""

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Lord Henley (Shadow Minister, Justice; Conservative)

The amendment is designed to deal with a failure to comply with the notice to disclose and would introduce a new clause after Clause 118. It would raise the penalty for failing to provide the key to the police when requested. The drafting follows the logic used in terrorism offences. I have selected "five years" in proposed subsection (1), because it is the same period as applies in terrorism offences. It would also seem to be in line with the guideline produced by the Sentencing Guidelines Council.

The raised penalty would apply in one of three circumstances: first, where the offender had been previously convicted of an offence under Section 1 of the Protection of Children Act 1978, Section 160 of the Criminal Justice Act 1988 or Sections 48 to 50 of the Sexual Offences Act 2003. It would apply, secondly, where the offender's computer or other media being examined at the same time contained an indecent image of a child and, thirdly, where the court was satisfied on the civil standard that the protected data were likely to include an indecent photograph of a child. This would cover situations where the police could prove that the offender was likely to be involved in child pornography; for example, through search engine terms, e-mails and intelligence.

I understand that a Court of Appeal decision, R v Porter in 2006, deals with the meaning of "possession". It states that where an image has been deleted and can be recovered only forensically, and not by the user, it cannot be said that a person is in possession of the image. To an extent, this is common sense, although it caused some problems for the Crown Prosecution Service. The solution is not to charge with possession, but to charge with making an indecent photograph of a child, as now happens. I have kept "possession" in proposed new subsection (5C)(b) of Section 53 of the Regulation of Investigatory Powers Act 2000 because it makes life easier. However, if the circumstances of Porter were repeated, the higher penalty would still apply since a court would conclude that, since the person concerned had accessed indecent images of children already, it would be likely that protected data would also include indecent images.

The third part of the amendment would alter Schedule 3 to the Sexual Offences Act 2003. It would mean that if someone were convicted for not disclosing the key, they would be subject to the notification requirements. I beg to move.

6:00 pm
Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I understand the objective behind the proposed new clause in Amendment No. 134ZB, and there is a more than a modicum of sympathy for it on these Benches. It is designed to increase the maximum penalty for an offence under Section 53 of the Regulation of Investigatory Powers Act 2000—that is, failing to comply with a requirement to disclose protected information or the key to it. The increase in the maximum penalty would apply in the circumstances set out in a new subsection (5C) of Section 53 of RIPA, including when the offender has a previous conviction for possession of an indecent image of a child.

Use by criminals of information technology, such as encryption tools, to conceal evidence of their unlawful conduct to evade detection or prosecution did not materialise as rapidly as was expected back in 2000, when we looked at this issue before, but it is beginning to happen now. That is why the Government concluded that the provisions of Part 3 of RIPA, including Section 53, should be implemented. That happened on 1 October last year, following the affirmative resolution of both Houses approving a code of practice relating to the exercise of the powers and duties in Part 3. That code of practice was published in draft for consultation in 2006; the same consultation also invited comments on amendments to Section 53 along similar lines to this new clause. Only some respondents addressed that issue; most focused on the detail of the code of practice. There was both support for amending Section 53 and responses urging the Government to implement the provisions first and consider any evidence for amending them in the light of experience.

The Government remain very sympathetic to what this amendment seeks to achieve, but we want to assess how the provisions operate in practice. That process is taking place as the first disclosure notices are prepared and served, and the first offences for refusing to comply with a notice are being prosecuted. However, before any prosecution is secured for the existing penalties there will be complex issues to address in court around the presentation of evidence and the explanation of how encryption technologies work in practice.

The Government will consider amending RIPA very much along the lines of this proposed new clause if there is evidence that the two-year penalty is not effective in cases involving, or believed to involve, indecent images of children. We are very much where the noble Lord seeks to take us, but we ought to see what happens in practice so that we have a better feel and understanding for the effect of the original legislation before we proceed any further. We want to see how the law operates before taking that further step. If the noble Lord agrees to withdraw his amendment, we entirely agree to keep the matter under review, because there is not a great deal between us on the matter.

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Lord Henley (Shadow Minister, Justice; Conservative)

I thank the Minister for that sympathetic reply. I also thank him on behalf of my honourable friend, Sir Paul Beresford, who raised this issue in another place. It was discussed there and then he took it up with the Minister's colleague in the Home Office, Vernon Coaker. We shall want to look very carefully at what the Minister has said before considering whether to come back with this amendment. But it sounded pretty sympathetic to me, and in the light of what the Minister has said it is possible that not only will we not need to bring it back on Report—we might even have discussions about it beforehand. The Minister might want to include my honourable friend Sir Paul in those discussions between now and Report.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

Of course, we shall try to assist in the course of discussions. These issues can be properly discussed.

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Lord Henley (Shadow Minister, Justice; Conservative)

Bearing that in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 119 to 122 agreed to.

Schedule 24 agreed to.

Clause 123 [Amendment to offence of loitering etc. for purposes of prostitution]:

Photo of Baroness Miller of Chilthorne Domer

Baroness Miller of Chilthorne Domer (Spokesperson in the Lords, Home Affairs; Liberal Democrat)

moved Amendment No. 134A:

Clause 123, page 85, line 31, after ""person" insert "aged 18 or over"

Photo of Baroness Miller of Chilthorne Domer

Baroness Miller of Chilthorne Domer (Spokesperson in the Lords, Home Affairs; Liberal Democrat)

I shall speak extremely briefly to this because I hope that we shall hear from the noble Lord, Lord Faulkner of Worcester, and the Government, both of whom have been working very hard on this. We had agreement all around the House about why we did not want these clauses on prostitution to be in the Bill and why we thought that a big rethink was desirable. I am glad that the Government have agreed to take this away and come back with it in a very different form. So that others who feel as strongly as I do may speak, I beg to move.

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Lord Faulkner of Worcester (Labour)

It would be very churlish of me not to express my deep thanks to the Government for doing exactly what I asked them to do at Second Reading and at successive meetings with Ministers from the Ministry of Justice and the Home Office. I particularly thank my noble friend Lord Hunt of Kings Heath, but his colleagues in the other place, who listened very carefully to what we had to say, also deserve our thanks. We were opposed to the inclusion of these clauses, except for the provision of the relation to the common prostitute, which we welcomed in the original Bill. I imagine that when there is a substantive review of the law on prostitution in the next Session, we shall see that phrase removed. I would also have wanted a debate on the definition of a brothel, which was the subject of my Amendment No. 136, but I shall not be moving that because of the Government's decision to withdraw the three clauses.

I thank, too, my three noble friends from other Benches, the noble Baronesses, Lady Howe of Idlicote, Lady Stern and Lady Miller of Chilthorne Domer, who put their names to the amendments that I tabled and to the proposal that these clauses should not stand part of the Bill. It is very good when the Government listen to reasoned argument and a very strong submission from outside this Chamber, and I thank them for that.

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Lord Judd (Labour)

As someone who very strongly wished to support the amendment moved by the noble Baroness, Lady Miller of Chilthorne Domer, I join the chorus of appreciation. My noble friend and the Government have yet again demonstrated that they do listen and that when there is profound anxiety they try to respond. That is altogether wholesome and I put my good will towards the Government on record.

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Lord Henley (Shadow Minister, Justice; Conservative)

As we understand it, the Government are removing Clauses 123 to 125, which deal not with prostitution at large but with one aspect of prostitution—street offences—which in short terms we could refer to as, for example, the four or five drug addicts who were killed in Ipswich but not the wider issue of prostitution as a whole. Do I take it, therefore, that the Government will come back to that wider issue later when they have a report from the tripartite ministerial group that went to Sweden the other day? In my day, one Minister normally went abroad to look at these things; now, we understand, one Minister has to be escorted by another Minister and they need another Minister as a chaperone to go with them.

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Lord Henley (Shadow Minister, Justice; Conservative)

Oh, it was cross-departmental work. It seems a very extraordinary way of dealing with things. However, that is on the wider question of prostitution. No doubt the Government will be able to respond to that issue in due course.

We are grateful to the Government for withdrawing these three clauses. The noble Lord, Lord Judd, for whom I have a great deal of respect, says that they are withdrawing them because they have listened to him and taken notice of what he said. I wonder whether the Government could respond by confessing that they have withdrawn them because, as with so much of this Bill, they are running short of time and have withdrawn this and other aspects to get it on the statute book earlier than they originally hoped. I do not know why the Minister is smiling at me. However, I would be grateful to the Government for some comment on that point and on the more general point of what they propose to do about the wider issue of prostitution and not only the simple issue of street offences.

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Lord Ramsbotham (Crossbench)

I suspect that other noble Lords have, like me, received a large number of documents, comments and letters from people all around the country about this particular part of the Bill. One document, which I suspect others have not had, is a remarkable brief from a very brave young woman called Laura Seebohm. She is working on a programme in Newcastle upon Tyne with women involved in prostitution. Not only is it an immensely humane and brave document, it contains an enormous amount of wise advice about what these people need to help them break out of the situation they find themselves in—which does not include imprisonment for breach and such matters. I hope that the Minister will allow me to pass this document to him so that he can make use of it with his colleagues in conducting the examination which, I hope, will accompany the withdrawal of these clauses.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

As my noble friend Lord Hunt of Kings Heath announced last week, we have somewhat reluctantly agreed to withdraw Clauses 123 to 125 and Schedule 25 in order to facilitate the speedy passage of the Bill, to ensure that the Bill is in good order and because everyone recognises that we need to work to a timetable if we are to ensure good order in the prison estate. The removal of these clauses in no way indicates a lack of commitment from the Government to tackle issues relating to prostitution head on. I do not think that there is a will in the Committee to avoid the issues: the issue at heart here is to ensure that we deal with these things in a sensible, timely, proportionate and, having listened to what the noble Lord, Lord Ramsbotham, said, well-informed way. We remain fully committed to legislating to remove the stigmatising and outdated term "common prostitute" from the statute books and to reframe the offence of loitering and soliciting. We also remain committed to providing a new court disposal to help those convicted of loitering or soliciting to break the cycle of offending and to develop routes out of prostitution. There is a degree of consensus that that is a highly desirable policy objective.

The noble Lord, Lord Henley, referred to the visit last year of my honourable friend Vernon Coaker and others to Sweden. He said he thought that it was unusual for two or even three Ministers to go abroad to investigate issues such as prostitution. However, I read Alan Clark's diaries and learnt from those that it was not uncommon for Ministers when the Conservative Party was in Government.

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Lord Henley (Shadow Minister, Justice; Conservative)

I have a great deal of respect for the Minister and I, too, found Alan Clark's diaries extraordinarily amusing, but are they the principal source of his knowledge about how we behaved when we were in Government between 1979 and 1997?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I do not know about that, but they were a jolly entertaining source and a damn good read. Anyway, Alan Clark informs us in some of his diaries that it was not uncommon for more than one Minister to go abroad. The important work that Vernon Coaker and others are undertaking is to review the policy area. The Government recognise that there is considerable support for us to do more to tackle demand and its impact on trafficking. That review is scheduled to last approximately six months. All Governments undertake reviews and look again at policies, and it is sensible from time to time to do so.

We will look to reintroduce the legislative changes in Clauses 123 to 125, along with any others that are necessary following the review into tackling demand, as soon as parliamentary time allows. In the mean time, we will continue to encourage services and schemes that seek to divert individuals away from the criminal justice system and into routes out of prostitution. Government Amendments Nos. 178ZA, 178AA, 180ZA, 180E and 180Fare consequential amendments relating to the withdrawal of Clauses 123 to 125.

I thank the noble Baroness, Lady Miller, for raising the issue. We certainly recognise its importance, as she does in her amendment. I thank the noble Lord, Lord Judd, and others who contributed to the debate on the background to this issue and assisted us in reaching a position that enabled us to bring forward these amendments. We have had some further discussions with the police. They are concerned about some of the amendments that have been tabled and their potential impact on our ability to safeguard young people. That is important and we need to listen carefully to those views and representations.

We must be careful not to be seen in any way to be condoning prostitution involving under-18s. For that reason, we need to reflect further on this particular proposal, whose aims we share and with which we have some sympathy. Many noble Lords should be congratulated at this point in this series of discussions and debates. I am grateful to all those who have contributed and who have been supportive. I trust that the noble Baroness will withdraw her amendment, understanding as she does the position that we have reached.

6:15 pm
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Baroness Miller of Chilthorne Domer (Spokesperson in the Lords, Home Affairs; Liberal Democrat)

I thank the Minister for those statements. In withdrawing my amendment, I say again that when the Government bring back this legislation they should look at the example from New Zealand which we certainly heard a lot about. Three Ministers may have visited Sweden but none visited New Zealand to see whether decriminalisation was effective. That gap does the Government discredit in looking at this issue. I hope that the intervening time will allow the Government to draw from those examples if not to visit New Zealand, which I hope a Minister will bother to do.

I completely agree with the Minister's comments about under-18s. However, I did not hear him mention the important issue of brothels. We will not press our amendment, but the Minister and his department made a commitment to redefine "brothel". There are some serious issues around trafficked women but, at the same time, women who are running brothels responsibly say that two or three individuals can work safely together, not on the streets but with decent health provision and in safety. That is an important issue and the Government have to address it.

On 9 January 2007, the Home Office confirmed that no consultation had taken place although an announcement was to be made. This legislation has been introduced and then withdrawn so I hope that the Government will take the time to think not only about addressing street offences, but what they are going to do. In the mean time, brothel owners are being prosecuted, so this difficult situation is continuing.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

In my haste to bring this discussion to a conclusion, I omitted to say a word or two about brothels. To clarify that, I understand the argument made by the noble Baroness and we did indeed make those observations. It remains part of a co-ordinated strategy. That is why we want to consult further before any legislative changes are brought forward. We believe it would be wrong to pre-empt the demand review by consulting on the change to the definition of "brothel" now but we shall come back to the issue once the review is completed. I believe that makes for a more coherent approach that is plainer to all.

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Baroness Miller of Chilthorne Domer (Spokesperson in the Lords, Home Affairs; Liberal Democrat)

I thank the Minister very much for that clarification. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135 not moved.]

Clause 123 negatived.

Clause 124 negatived.

Schedule 25 negatived.

Clause 125 negatived.

[Amendment No. 136 not moved.]

[Amendment No. 136A had been withdrawn from the Marshalled List.]

Clause 126 agreed to.

Schedule 26 [Hatred on the grounds of sexual orientation]:

Photo of Lord Thomas of Gresford

Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

moved Amendment No. 136B:

Schedule 26, page 268, line 38, at end insert—

"( ) After subsection (1) insert—

"(1A) "Threatening" in subsection (1) extends to words, behaviour or written material which asserts or implies an association between sexual orientation and a propensity to commit child sex offences under Part 1 of the Sexual Offences Act 2003.""

Photo of Lord Thomas of Gresford

Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

We move to the offence of hatred on the grounds of sexual orientation. Our amendment seeks to define the word "threatening" in subsection (1) of the proposed offence. "Threatening" appears in the original Act in relation to religious hatred but "threatening" here in relation to sexual orientation should be extended, so that there can be no doubt about it,

"to words, behaviour or written material which asserts or implies an association between sexual orientation and a propensity to commit child sex offences under Part 1 of the Sexual Offences Act 2003".

What is the purpose of this amendment? We are concerned about the suggestion very frequently made by the British National Party and others that homosexuality and paedophilia are directly connected and that a person who is homosexual has a propensity to be a paedophile. As your Lordships are aware, there is no evidence whatever to that effect. Accordingly, we wish to extend the protection that is given by this schedule to avoid that imputation whether it is express—that is, whether it is asserted—or implied because a homosexual who hears someone saying that he is a paedophile may be in considerable danger. Those around him may decide that he should be attacked. I need not go into too much detail about the ways in which homosexual people have been attacked to the point of being beaten to death. We must avoid adding fuel to that fire by suggesting that a person is a paedophile simply because of his sexual orientation. The law should protect a person in that position. I beg to move.

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Lord Waddington (Conservative)

While it is very easy to understand why the noble Lord, Lord Thomas of Gresford, was moved to put down this amendment, it must be wrong to state in a statute that any and every reference to the possibility of there being a connection between sexual orientation and a propensity to commit child sex offences must be treated as a threat when in the particular circumstances it obviously may be nothing of the sort. Imagine a scenario of four people, perhaps academics, talking among themselves about the nature of paedophilia. One—let us assume entirely misguidedly— says there is evidence that paedophilia is more likely to be found among homosexuals. It is absurd to say that although the proposition was put forward in the most moderate terms and the proposal was based on an honest belief, the words must be treated as a threat when clearly they were nothing of the sort. In other words, it must be bad law to have a definition of a threat that covers things which clearly are not threats.

Of course, I recognise that the offence requires intent but that is beside the point. We are talking here about the definition of threatening words or behaviour. We must not make bad law and wrongly define as a threat something that may be nothing of the sort. So I hope that we will not spend very long on this amendment, although I well understand the reason why it was put down and the very real mischief to which the noble Lord, Lord Thomas, referred.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

The noble Lord is right to say there may be circumstances where an association between homosexuality and paedophilia is made that do not amount to a threat, as we would think of it. However, it can very easily be a threat, as I am sure the noble Lord understands and accepts. The protection from prosecution on the basis to which the noble Lord referred is that the consent of the Attorney-General is required to a prosecution. Clearly, the innocent discussion to which he referred would not form the basis for a prosecution to which the noble and learned Baroness the Attorney-General—whom I am pleased to see in her place—would respond.

There is a problem to be dealt with because, as the noble Lord rightly says, the association between homosexuality and paedophilia may not be a threat in itself but it can be. It is for the Attorney-General to decide on the facts of a case whether it should be the subject of a prosecution.

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Lord Monson (Crossbench)

I, too, sympathise with the purpose of the amendment of the noble Lord, Lord Thomas. However, is it not the case that as many boys as girls are victims of paedophiles, if not more so, and yet the overwhelming majority of those who perpetrate paedophile crimes are men? Does this not suggest that there is a tendency among paedophiles towards homosexuality, compared with the proportion in the population as a whole? Perhaps the noble Lord would like to comment on that.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

On the contrary, I am not suggesting that there is any association at all. However, the charge that they are paedophiles is frequently made to incite violence against homosexual people. This amendment would guard against using that association as a threat.

6:30 pm
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Baroness Butler-Sloss (Crossbench)

My understanding, having done some reading on this, is that boys are as much at risk as girls, but there is nothing to show that those who offend, who are largely men, are men who incline towards homosexuality. People who have had heterosexual relations are also paedophiles.

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The Bishop of Chester (Bishop)

I entirely share the intention of the mover of the amendment, but the question is whether and why one should single out this form of threat and put it in the Bill. Once you start to do that, you lose the whole basis on which the legislation has been framed, which is to allow context. Words which in one context can be non-threatening in another context can be very threatening. It seems to me that the law is precisely framed as proposed to allow the court to judge context. Once you start to spell out context, you get into the sort of difficulties that are being alluded to.

There is an interesting parallel here, because the law as proposed is modelled on the offence of incitement to religious hatred. Because of well-publicised cases of the abuse of children by clergy—I am glad to say not mainly clergy of my denomination or of this country—and because of that association in the news, clergy not uncommonly get that sort of abuse hurled at them. I have known it myself. Simply because of wearing a dog collar, someone makes that sort of allegation. I find that very distasteful, but I would not want that to be used as the basis of a criminal prosecution. It seems to me that that is going too far, and I would not want that to happen. Because these offences by their nature are so contextual, it seems to me that once you start to spell out the context, you wrap the thing up in an inappropriate way.

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Lord Mayhew of Twysden (Conservative)

I listened with care to the response of the noble Lord, Lord Thomas, to the point at the heart of my noble friend Lord Waddington's amendment; namely, that we must not legislate to declare a threat something that in some circumstances cannot be a threat. To that, the noble Lord, Lord Thomas, responded that the safeguard lies in the requirement for the consent of the Attorney-General to a prosecution.

I am very hesitant indeed about placing on the Attorney-General the function of a jury in deciding whether in a particular scenario a threat is a threat. My understanding of the function of the Attorney-General, when given the discretion of the character that we are talking about, is whether a prosecution would be in the public interest, not to undertake the function of a jury in deciding whether a fact or a component of a complaint of a charge is present. I speak with some hesitation about this, having just heard the noble Lord, Lord Thomas. That would be my anxiety.

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Earl Ferrers (Conservative)

A number of noble Lords have said that they quite understand what the noble Lord, Lord Thomas, is getting at. I am afraid that what the noble Lord, Lord Thomas, has suggested is rather alarming. He has said that there may be many cases where people will make remarks like this one and they need not be threatening, but that there are some cases when they might be threatening and therefore that it would be a good thing to have this clause in the Bill. I find it frightening because you will end up with people being too frightened to say anything. It is not a question of an argument going up to the noble and learned Baroness the Attorney-General; it is a question of a person being frightened and alarmed at the prospect of possibly going to court and possibly going to jail for saying something in a perfectly innocent way. I think that we are getting ourselves into far too much of a straitjacket by trying to determine the whole way through life what people must say and what people must not say and what they can and cannot do. To accept the amendment would be a retrograde step.

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

In a sense, this is a prelude to our next debate. I have some sympathy with the noble Lord, Lord Thomas, in raising this matter, where allegations have been made by organisations and papers suggesting that homosexuals must all be paedophiles and therefore should be treated as criminals. The noble Lord is right to raise that as a matter of concern and to understand that for the gay community that can be very divisive and can generate fear and hostility. Where I do not agree with him is on the necessity for his amendment, for the reasons that the noble Lord, Lord Waddington, suggested.

The question is whether the Bill is capable of catching the circumstances raised by the noble Lord, Lord Thomas, if an allegation is made in a threatening way. We do not think that we should expand the offence automatically to cover all suggestions that homosexuals are paedophiles, even if those suggestions are made in a way that would not otherwise be threatening. That would be a small but significant extra incursion into free speech. We have determined that the right place to draw the line in this case is for the offence to catch only material that is really threatening in the ordinary sense of the word. If we extend the offence specifically to cover allegations of a propensity for child sexual abuse, what about other allegations that might be made against homosexuals? What about allegations, for instance, that all gay people have AIDS and intend to infect everyone else, which has been the subject of some material in the past?

If we specify, it leads to the old problem of criminalising one specific aspect of homophobic hatred. There is also the danger that perpetrators will simply shift their line of attack to some other suggestion that is threatening and will stir up hatred. The noble Lord raises a matter of very real concern, but I rest my case in the wording of the Bill under which, when an allegation is considered to be threatening and with intent to stir up hatred on the grounds of sexual orientation, it would already be caught.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

Do I understand the Minister clearly to be saying that if the association were made by a person between homosexuality and paedophilia that amounted to a threat in the context, that would be caught by the provision as drafted?

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

Yes, because it rests in terms of whether what is said can be judged to be threatening and with an intention to stir up hatred.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Waddington (Conservative)

moved Amendment No. 137:

Schedule 26, page 269, line 19, at end insert—

"13A After section 29J (protection of freedom of expression), insert—

"29JA Protection of freedom of expression (sexual orientation)

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion of, criticism of or expressions of antipathy towards, conduct relating to a particular sexual orientation, or urging persons of a particular sexual orientation to refrain from or modify conduct related to that orientation.""

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Lord Waddington (Conservative)

I ought to start by saying that some of us may doubt whether there is any need for Clause 126 at all. I say that because the Public Order Act as it stands outlaws threatening abusive or insulting words or behaviour likely to cause harassment, alarm or distress with higher penalties when the crime is aggravated by hostility towards the victim because of his sexual orientation. The prosecution of a Mr Harry Hammond—many noble Lords will know the case—shows the law's potency. I remind the Committee that he was prosecuted to conviction for displaying a placard bearing the following words, "Stop homosexuality, stop lesbianism. Jesus is Lord". In the light of that conviction, one wonders what statements or conduct will be caught by this clause that are not caught already.

I remind the Committee that where the Public Order Act does not bite because no one who is likely to be caused harassment, alarm or distress is present, prosecutions can be brought under the Serious Crime Act 2007, which replaces the old law on incitement with a new law against,

"the encouragement or assistance of crime".

Surely the encouragement of violence against gays is an offence now and we need no new law to say so.

I am sure we all agree on one thing: there is no place in a civilised society for hatred towards gay people. However, surely there is also a wide measure of agreement that, if we are to have this new offence, punishable, I remind the Committee, with up to seven years' imprisonment, we must ensure that it does not catch people who, honestly believing in the tenets of their religion, be it Christianity, Judaism, Islam, Sikhism or Baha'i, express, for example, the view that, while a homosexual inclination is not wrong, homosexual practice—like, for that matter, adultery or heterosexual sex outside marriage—is.

To put it in another way, Clause 126 makes it an offence to use threatening words or behaviour within intent to stir up hatred, but we must ensure that the police do not construe criticism as threats or confuse strong criticism of a person's conduct with the commission of an offence. That is the purpose of the amendment and there are two very good reasons why the Committee should support it. First, the Government seem to be saying that there is no need for a free speech clause because the clause requires both threats and proof of intent. However, the religious hatred offence, created as recently as 2006, also requires threats and, in addition, requires intent, and Parliament still insisted on a free speech clause. Of course, religion is—at least, to some extent—a matter of choice, whereas sexual orientation is not, but while sexual orientation does not involve choice, sexual behaviour obviously does.

The second reason is that even Stonewall, the body that seems to have persuaded the Government to insert Clause 126 in the Bill, can see the case for some words about free speech being added to it. I say that because Ben Summerskill told the Public Bill Committee on 16 October last year:

"We would have no objections to any indication in the Bill that there was a mindfulness of the importance of free speech".—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 16/10/07; col. 80.]

It seems to me that the real difficulty about the Government's position is that there is nothing in recent history to show that the police are very good at distinguishing between legitimate comment and language calculated or intended to stir up hatred. Some would say that they did not show themselves very good at spotting the difference between stirring up hatred and legitimate comment in the case of Mr Hammond, to which I have already made reference. They certainly did not do so in the case of the right reverend Prelate the Bishop of Chester. I am sorry to embarrass the right reverend Prelate by mentioning the matter but I think that it is very important for others that what happened should not be forgotten. The right reverend Prelate had commented to his local paper on research showing that some homosexuals reoriented to heterosexuality and, as a result, found himself the subject of investigation by the Cheshire police. He was never questioned by the police but that there was a police investigation is beyond doubt, and it was sufficiently serious to involve discussions with the Crown Prosecution Service. We know that because the Cheshire constabulary issued a statement in these terms:

"The Crown Prosecution Service has been consulted with at length, and Cheshire Police are satisfied that no criminal offences have been committed, as current public order legislation does not provide specific offences based on sexuality".

That seems remarkably like saying that the police thought that if this proposed offence had been on the statute book, the right reverend Prelate could have been for the high jump. I do not see how you could read those words of the Cheshire police in any other way.

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The Bishop of Chester (Bishop)

To ensure that the record is accurate, the noble Lord is right to say that there was no contact whatever between me and the police, which was interesting at the time. However, partly supporting his point, the police seemed to assume that the newspaper report was accurate without making any attempt whatever to check with me whether it was. Therefore, I assure the noble Lord that at the time I did not feel particularly liable for the high jump because I believed that any offence was caused by the reporter. However, I think that the police should at least have checked whether the report was accurate before engaging in media activity.

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Lord Waddington (Conservative)

I am very glad that the right reverend Prelate took the opportunity to make that absolutely plain, but of course it does not affect the point that I am making. The fact is that the police quite wrongly wasted their time, as well as other people's, carrying out some sort of investigation into the words, which perhaps they had read in a local paper. They took it so seriously that they issued a public statement saying that they had investigated the matter and that they had wasted police time having discussions with the Crown Prosecution Service.

That same lack of sense by the police was shown in the case of Mr and Mrs Roberts of Fleetwood, who were subjected to police interrogation after doing no more than complain about their council's gay rights policy. The police certainly did not show themselves very expert at recognising the difference between fair comment and stirring up hatred when they questioned Lynette Burrows after she had said on the radio that homosexual men might not be the right people to bring up children.

I could go on and on but the point is that all this has happened under the present law. When Christians and others have already been subjected to questioning and investigation by the police for expressing their views, it is surely very difficult to argue that there is no risk at all of this new provision, if left unamended, being misused. Having been so ready to conclude that words are likely to cause harassment under the present law, the police, without help of the kind afforded by my amendment, may well be all too ready to conclude that he who criticises fiercely must have intended to stir up hatred.

I respectfully suggest to your Lordships that we would be wise to pay regard to the churches' submission to the Public Bill Committee's hearing on the Bill. I should like to quote one passage from it:

"There should be the maximum possible clarity about what is forbidden and what is permitted. Christians engaged in teaching or preaching and those seeking to act in accord with Christian convictions in their daily lives need to be assured that the expression of strong opinions on marriage or sexuality will not be illegal".

In plain words, it should be clear in the Bill who will be caught by its provisions and that a Christian expressing strong views will not be caught. A promise that guidance will be provided for the police, the courts and the prosecution cannot possibly be an adequate substitute for clarity in the law itself.

I have to say in parenthesis that the Liberal Amendment No. 137ZZA does not begin to address the problem with which we are confronted. The problem is not that the Attorney-General may not recognise his responsibilities; the problem is that unless something is done people will be interrogated and locked up long before the matter can reach the Attorney-General. We need clear words in the Bill so that police officers do not interrogate people like the Roberts and do not arrest people such as the fellow who appeared on "One Man and His Dog" and then made facetious remarks at a country fair. We need clear, plain words in the Bill and not guidance after the mischief has been done.

I have already said that the religious hatred provision contains a provision to safeguard free speech, to make it plain that criticism—even robust criticism—does not constitute a threat. If a similar provision to the religious hatred provision is not inserted in this clause, there is the obvious danger that a police officer will notice the difference between the two provisions and conclude that, when it comes to considering words used about sexual behaviour, the right to free speech is something that he does not have to consider although, if it were a case of religious hatred, he would have to consider free speech.

I cannot see why the Government resisted this amendment in the Commons, cross-party as it is and similar to, but narrower, milder and not as far reaching, as the provisions in the Racial and Religious Hatred Act 2006. It is surely not good enough to say that it is not necessary. If this amendment will do no harm and will give a clear signal to the police that they must pay due regard to the legitimate exercise of free speech and religious liberty, that will surely be a good thing. I beg to move.

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Lord Clarke of Hampstead (Labour)

I apologise for jumping up but sitting around here all day waiting for this moment has put me a little on edge. Like many other Members of the Committee, I have received a good deal of correspondence on the subject of this clause—a clause that I and others seek to amend. I shall quote one sentence from one of the letters that I have received. The writer, a gentleman from York, said:

"I am writing to express my great concern about the need to protect freedom of expression".

I share his concern.

The concept of bringing in laws that forbid the precious right of free speech in our society is in itself a frightening prospect. In a nation such as ours, with proud traditions of freedom, even contemplating the suppression of opinions is frightening to all who genuinely want to be able to speak out against that which they think is wrong, harmful and potentially dangerous—they fear they will be treated as criminals. It is indeed frightening. Is this what our Government want? The amendment is clear in its intent to ensure that nothing in this part shall prohibit discussion of, or restrict criticism of or expressions of antipathy towards, other people's conduct or their lifestyle.

I have received a number of detailed legal opinions from various sources. As a lay person I found them most interesting. However, my support for the amendment comes from my very strong feeling that to prevent the discussion of subjects that cause very real concern for many individuals and groups is wrong. No matter how many legal opinions you get, I believe that what is being suggested is wrong. This amendment will give protection to those who hold the view that certain activities are wrong so they may express their views in an open and honest way.

The Government have said that a free-speech clause is unnecessary. They say that the wording of the offence already strikes the right balance between preventing incitement to hatred and protecting free speech. If that is so, why not underline the need for balance by introducing and including a free-speech clause? From what I have read, the Government do not object, in principle, to such a clause. It has been argued by the Government that there is a high threshold set for the offence which covers only threatening words or behaviour which are intended to stir up hatred on the grounds of sexual orientation. It is also necessary to obtain the Attorney-General's consent before any prosecution may proceed.

I believe that it is most necessary for a free-speech clause to be included for a number of reasons. My view is that criminal law should be clear in explaining what is and what is not an offence. If this Bill is enacted without a clause that protects freedom of expression, religious believers will be uncertain about what they can say as well as uncertain about what they can discuss or debate on the subject of homosexual practices in their teachings. I fully understand what Clause 126 means: it will be an offence of incitement to hatred on the grounds of sexual orientation and it appears to be the same wording as the offence of incitement to religious hatred in the Racial and Religious Act 2006. In the case of a religious hatred offence, if I understand it correctly, a specific clause protects the principle of free speech which the noble Lord, Lord Waddington, has just mentioned.

This issue should not be left to ministerial guidelines. Guidelines are not the same as clear definition in law. At Second Reading a number of illustrations were given by noble Lords and we have heard some repeated by the noble Lord, Lord Waddington—a whole list of examples can be found in the debate at Second Reading. There is quite a lot of evidence that the public, the police and, on occasions, some courts failed to take sufficient account of the protection of freedom of expression in cases that involve criticism of the practice of homosexuality. I hope that my noble friend will tell me whether my understanding of the difference that there appears to be between the Act I have mentioned and the Bill is correct. I urge the Committee to give wholehearted support to the amendment and to demonstrate to the Government that we seek to protect the very precious principle of free speech.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

I have an adjacent amendment to this one. Of course, we support the principle of free speech and we try, in Amendment No. 137ZZA, to put it in an appropriate way in the context of the offence that is suggested or promoted by Schedule 26. The offence is not one of criticising people because of their sexual orientation, or of criticising people for their conduct relating to their sexual orientation. The offence is using threatening words and behaviour with the intent of stirring up hatred on the grounds of sexual orientation. That is the burden of this offence. It is not generally saying that you cannot express your views about gay people or what they do.

Suppose there were a British National Party meeting and a speaker were to address that meeting saying, "These gays have it coming to them if they insist on committing sodomy with each other". It is conceivable that the free-speech amendment put forward by the noble Lord, Lord Waddington, particularly its latter part, would prevent that being a criminal offence, even though it was threatening and used with intent to stir up hatred on the grounds of sexual orientation. Why do I say that? Because it refers to conduct; it refers to sodomy as opposed to being a homosexual. That is the problem with the way in which this exception is drafted. It is about conduct rather than about sexual orientation itself.

Taking on board the criticisms of the noble and learned Lord, Lord Mayhew, on the previous amendment, we impress on the Committee that, when a person uses threatening words and behaviour with intent to stir up hatred on the grounds of sexual orientation, it would be better and more appropriate for the Attorney-General to consider whether it is in the public interest—having regard to Article 10 of the European Convention on Human Rights and the right to freedom of expression—that a prosecution should be brought at that point. That is why I support the second amendment.

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The Bishop of Winchester (Bishop)

Speaking as one whose name is on the amendment—I am glad it is there, and grateful for the speeches of the noble Lords, Lord Waddington and Lord Clarke—and responding immediately to the noble Lord, Lord Thomas of Gresford, it seems that his illustration was not helpful to his case. If someone says in a BNP meeting that people "have it coming to them", it does not take a lawyer to suggest that that is clear example of threat. That is different from the kinds of things explicitly in the amendment.

The noble Lord, Lord Waddington, referred, although rather generally, to the memorandum of the Public Bill Committee from the Department for Christian Responsibility and Citizenship of the Catholic Bishops' Conference of England and Wales, and the Mission and Public Affairs Council of the Church of England—the churches that he mentioned. The amendment's form of words, both in the other place and this place, is explicit in the last paragraph of that memorandum. It is particularly there, as the noble Lord, Lord Waddington, made clear, to safeguard the rights of expression of those who judge that they should speak and write with no intention of stirring up hatred, whether out of an orthodox Christian or other faith context. I have vivid memories of a number of times recently when the noble Lord, Lord Tebbit, who is not in his place, has made it clear that although he was saying the same kinds of things in recent months in this House, he was doing so, as I think he put it to me on one occasion, not as "a paid-up member of the right reverend Prelates' faith, though perhaps as a fellow traveller".

This is not simply a question of discussion in a religious context, or by religiously motivated people. As the noble Lord, Lord Waddington, made quite clear, there is a whole range of people in this society whose freedom to talk, discuss and offer views runs the risk of being chilled unless some such amendment as this is in the Bill. I recognise that the Joint Committee on Human Rights, on page 19 of its report, believes that there is already appropriate protection for freedom of speech in the Bill. However, the points raised by the noble Lord, Lord Waddington, in particular, note that the view of the Joint Committee on Human Rights, and the Government in another place and at Second Reading in this House, is not well sustained.

It is important that the amendment—this form of words—should be tested. It must be there if we are to recognise the considerable weight of opinion in the country, generally as well as in the churches, not rabidly or threateningly put, or with any intention to raise hatred, but simply because many are of the view, as the noble Lord stated, that full sexual activity is for life-long marriage of two people of opposite genders. That is an extremely important point of view from whatever perspective it is put. It should not be chilled into silence by the possibility—which is not just a fantasy, but for which there is a great deal of evidence—that there have been points when, long before the question gets to prosecution, there has been investigation.

I notice that the noble Lord, Lord Tebbit, is now in his place. It is very nice to see him. I hope that he does not feel that I have misrepresented what he has said in recent weeks in what I said a moment ago.

My sense is that the amendment needs to be there. Lastly, with the noble Lord, Lord Waddington, I note that a number of people, of whom Ben Summerskill is one and who speak from the point of view from which he speaks, have also expressed concern that without a provision like this in the Bill there will be a chilling effect on precisely the sort of straightforward, open discussion of these issues which, as I have understood it, people like him want to engage in. I respect Ben Summerskill and others for making that point.

There is a good reason for the amendment, which arises out of a strong sense that this point needed to be made by the Roman Catholic and Anglican Churches in this country. I am glad that the matter is here under the leadership of the noble Lord, Lord Waddington.

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Baroness Turner of Camden (Labour)

I hope that the Government will not feel disposed to accept the amendment. I support the Bill as it stands because there is, regrettably, a great deal of homophobia. I have received a number of letters, as I am sure all Members of the Committee have, about this section of the Bill. I received a letter from a woman yesterday in which she described how her son had been shadowed and eventually kicked to death. Everybody concerned, including the police, agreed that it was because of his sexual orientation. That is clearly unacceptable. It is unacceptable that people should be put in fear of their lives because of their sexual orientation.

I do not support the wording of the amendment. The last sentence in particular—

"urging persons of a particular sexual orientation to refrain from or modify conduct related to that orientation"—

seems to run against the established law in this country, which allows people to have civil partnerships. It is their right by law to have civil partnerships, but under the wording of the amendment it would be perfectly all right to urge them—perhaps even threaten them—that they should not participate in one.

You cannot describe this situation in terms of the provisions on religious hatred. We are in a different environment here. We are not talking about a belief, but a state in which people have a certain sexual orientation whether they want it or not: that is what they are like. That is why they ought to have protection and be able to live their lives in accordance with what the law has laid down and made arrangements for.

I understand what has been said about freedom of speech. If I were to choose between the two amendments, I would prefer that of the noble Lord, Lord Thomas of Gresford, which seems very reasonable. This one, however, I do not accept at all. It contains a threat, particularly in the last sentence, which the Government should not be prepared to accept. The Bill as it stands should be supported because it attempts to deal with a genuine problem and give protection to those who deserve it. They do not deserve to be harassed and threatened. I therefore hope that the Government will not be prepared to accept the amendment.

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Earl Ferrers (Conservative)

I am fascinated to hear the argument of the noble Baroness, Lady Turner, and admire the way in which she puts it, so clearly and carefully, on something she obviously feels very strongly about. I would like to agree with her but unfortunately do not find that I can.

When the noble Lord, Lord Thomas of Gresford, said that my noble friend Lord Waddington's amendment would mean that somebody giving such-and-such an observation would be not guilty, I can only tell him that my concern is that people who are making certain observations which they are entirely entitled to make will find themselves guilty. I worry about freedom of speech. Of course we understand about people who are homosexuals and are that way inclined, but that should not prevent a priest or, indeed, a right reverend Prelate getting up and saying that the belief of his church is that that practice is wrong. A lot of people may think it is right and natural, but it is reasonable for a church to say that it is not right.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

Would the noble Earl accept that the priest concerned is not likely to be using threatening words and behaviour with intent to stir up hatred against a person on the grounds of his sexual orientation, unless he was using hell fire or something?

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Earl Ferrers (Conservative)

I need only ask: what about the right reverend Prelate the Bishop of Chester? As far as I know, he was making a perfectly reasonable observation, but his speech was gone over by the police, who then got hold of the Crown Prosecution Service which decided that they should announce that there was no harm done. That is a bad state of affairs. First, it is bad that the police should spend their time doing that, and secondly, it creates an aura of fear of what you say. I do not think that that is right and proper. We have gone a long way down the path of trying to make people who have thought one way think another way. We are almost in the position of having reverse discrimination, where if somebody says something it is an offence, even though he has always been used to saying it. I am fearful about that.

My noble friend Lord Waddington referred to the late Harry Hammond, a disabled pensioner who was dragged to the ground by a mob and assaulted. What had he done? He had displayed a banner calling upon people to stop their immorality. People have held banners for ages saying, "The wages of sin is death", and I do not see that there is anything particularly wrong about that. Somebody got hold of him and pulled his banner, and he fell to the ground. He then suffered an attack from which he subsequently died. But Mr Hammond was the one arrested by the police, and he was convicted as a criminal by the local magistrates before he died while attempting to uphold what he felt was Bible morality. The fact is that he was attacked by homosexuals for his protest against homosexuality. He was arrested and fined, and his attackers were not even questioned. That is what I refer to as reverse discrimination. We have seen it all over the place. I do not think it is a good thing that we should put people so much in fear of what they say that they dare not say it. That is what happens in a police state, and I fear that we are going down that road. I agree with the amendment tabled by my noble friend Lord Waddington. People ought to be able to say what they think; churches ought to be able to say what they think, even if one does not like it. This amendment would help that come about.

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Lord Dear (Crossbench)

I find myself following the noble Earl, Lord Ferrers, and agreeing with every word he said. I shall not attempt to go over the same ground. I support the amendment. When the Lord, Lord Waddington, was taking his rather large stick and belabouring the constabulary in various parts of the country, a number of noble Lords looked at me, making eye contact, almost urging me on. I therefore stand to address that one point if nothing else.

The noble Lord, Lord Waddington, was a little harsh on the police who are between a rock and a hard place because the current law is confusing. I have some sympathy with forces that have a complaint made to them as to what they should do in the current state of affairs. Were they to turn their backs on the complaint, they could almost guarantee that Stonewall and others would immediately complain about them. They therefore have little recourse but to investigate the facts and put them to the Crown Prosecution Service, which makes the decision. The decision is with the CPS and would remain with it.

Having tried to put that part of what the noble Lord, Lord Waddington, suggested to the Committee into context, I agree with everything that has been said about the need for clarification on this issue. Noble Lords will have shared my experience of a post bag full of letters from well meaning, honest, decent people who are fearful of being prosecuted if they simply express an opinion. One may or may not agree with the opinion, but they want to be able to express an opinion on this issue. I make no comment about where I stand on that, other than to say that I recognise the need for freedom of expression. It is for that reason, and that reason alone, that roundly I support the amendment tabled by the noble Lord, Lord Waddington.

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Baroness O'Cathain (Conservative)

On this issue, I agree with Peter Tatchell. Over the years, I have not always agreed with him, but on the creation of a homophobic hatred offence, he is right. He has concluded that the introduction of such an offence is unnecessary and a danger to free speech. I also note that Matthew Parris and Iain Dale, both prominent homosexual journalists, have also declared themselves opposed to this offence. In fact, when the Government announced they were bringing forward Clause 126, they found themselves being criticised in the media by almost everyone from the Christian Institute, to Liberty, and to the comedian Rowan Atkinson. There is very little support for this, but we are where we are. The Government have pressed ahead, so we have to find a way of making it less bad.

The Government have an almost perfect record of completely ignoring protests from the people they are supposed to represent. Whatever the Government want, the Government get, whether or not it is a manifesto commitment. I therefore support amendment tabled by the noble Lord, Lord Waddington. It is an eminently sensible attempt to make sure that this legislation does not add to the climate of fear that already exists around the controversial subject of homosexuality.

Noble Lords will know from their postbags that there is already a great deal of concern among the general public—Christians in particular—about the freedom to speak out, however moderately, on sexual ethics. Given the number of high-profile complaints to the police, some of which were mentioned by my noble friend Lord Waddington, it is easy to see why. Noble Lords might not agree with the churchman who says that all sex outside marriage is a sin, but do we want an environment in which he feels afraid to express his point of view? Some noble Lords may want to live in that kind of a society; I do not.

A lawyer recently told me of the case of a street preacher who was preaching the Gospel in the streets of one of our major cities. He was not preaching about homosexuality per se, but he read out a Bible passage which listed various sins, including homosexuality. A complaint was made to the police, who duly turned up. The preacher spent the next hour in the back of a police van answering questions about the Bible passage. The police eventually let him go and turned their attention to the complainant, who they finally concluded was just a trouble-maker. Some will say, "All's well that ends well", but the fact is that those policemen, no doubt reluctantly, deprived the preacher of an hour of his valuable time for no good reason. It should have been immediately obvious that the reading from the Bible was not a criminal matter, but the politically correct climate in which the police now operate meant that they felt obliged to take that silly complainant seriously. The amendment before us would make clear to the police that expressing an opinion on homosexuality is a matter of freedom of speech. If the words used really are threatening, existing public order legislation will apply and the police can intervene, but disagreement should not be a crime.

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Baroness Butler-Sloss (Crossbench)

I support the amendment tabled by the noble Lord, Lord Waddington. It is clear from what the noble Baroness, Lady Turner, said that there are terrible cases that need to be dealt with. She gave the example of a young man who was killed because of his sexual orientation. The amendment would not in any way affect the proper way of dealing with such a terrible case, but I am affected by the view expressed by the noble Lord, Lord Waddington, about the chill factor. I just wanted to add this: the chill factor applies not only to Christians; it applies to Jews and Muslims and, I think, to Sikhs. The Muslim and the Jewish populations in this country have been much quieter about it than the Christians, but they will also be subject to the chill factor if the freedom of expression is not included by way of the amendment.

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Baroness Howarth of Breckland (Crossbench)

I speak as a Christian, but, far from the chill factor, I realise that in another era I would probably have been burnt at the stake, because I hold very different views.

I absolutely agree with the noble Lord, Lord Waddington, that freedom of speech is extremely important. Voltaire said, "I may disagree fundamentally with what you are going to say, but I will fight to the death to ensure that you are able to say it". The real worry that I have with the amendment moved by the noble Lord is the flip side of its wording. I believe that it gives freedom to those who are homophobic to use it in a homophobic way. That is why I support the government amendment and what the noble Baroness, Lady Turner, said.

I worked for many years in Childline. One of the major problems that children brought to us was bullying and, in particular, homophobic bullying. Those children experienced extraordinary things being said to them in the playground, whether they were gay or not. Very often, that was allowed by teachers because they found it difficult to know how to manage or stop homophobic bullying. We have discussed that in the House before. Many of your Lordships have agreed that homophobic bullying, whether the child is homophobic or not, is unacceptable, because of what that does to children. When they grow up, they believe that it is all right to use that sort of language.

I, too, have received correspondence from the mother whose child was kicked to death. In my time, I have met with other people who have received severe beatings because they were homosexual. My great worry is that the wording of the amendment moved by the noble Lord, Lord Waddington, would give licence to that, because it would appear in the Bill. If there were some other wording that did not include the issue of behaviour, I could support the noble Lord in saying that we all have a right to freedom of speech. As I said, I may disagree fundamentally with that point of view, but I believe that those who have a different religious perspective and point of view have a right to put it. With that, I shall be supporting the Government's position.

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Lord Stoddart of Swindon (Independent Labour)

I support the amendment moved by the noble Lord, Lord Waddington; indeed, I am a signatory to it. I do not intend to say very much, because most of what I would have said has already been said.

On 27 February, the noble Lord, Lord Hunt, said that he was short of time and that he wanted the Bill through by 8 May, I think it was. I asked him whether, if he was short of time, he would drop Clause 126. There would then have been no need for the amendment or this discussion tonight. As the noble Lord seemed happy that people should ask him further questions about what clauses should be dropped, I wrote to him and asked him whether he would either drop Clause 126 or agree to an amendment. I have not had a reply yet, and I am taking that to mean that he is still considering it. I sincerely hope that he will. Perhaps he will indicate what he intends to do when he winds up the debate.

I cannot understand, especially in the light of people's views, which have been expressed to all of us in many letters, why the Government will not agree to accept the amendment or some other amendment that safeguards freedom of speech, which is absolutely vital to our democracy. Without freedom of speech, we have no democracy. The more legislation of this sort you produce, the more concerned and confused people will be as to what they can say. I simply do not understand why the Government do not accept that. The Minister's reply to the debate on Second Reading was totally unsatisfactory. It did not properly explain—to me, anyway—why there should be a difference between racial and religious incitement and incitement on sexual orientation, in that two of them have the safeguard for free speech, but he will not accept a safeguard for the third, which we are discussing at present.

I want to make another point to the Government. This is the third set of clauses of this sort that we have. Where will it stop? Never, apparently, because all sorts of special pleading is going on. Indeed, on 28 February, the noble Lord, Lord Morris of Manchester, asked a Question for Written Answer about making the incitement of hatred on grounds of disability a criminal offence. So it has already started. What was the reply? Although the Government rejected the idea for the present, they added that they would,

"continue to consider this carefully".—[Hansard, 28/2/08; col. WA 131.]

Ominous words indeed. Exactly where is that special pleading going to stop?

People over the age of 65 are considered to be aged and decrepit. They cannot speak and should be sent back home, instead of talking in this House. The fact is that the aged are under attack. They are being told that they are no longer of any use to society, so they will not get operations under the health service. The latest that we have heard is that a lady of 59—by no means aged, but obviously some people thought that she was—was refused an operation. People are now beginning to attack old people because they are affecting the economy. They are drawing too much on the economy. Let us get rid of them at a certain age.

Exactly where are we going to stop with writing special cases into law about people against whom incitement should not be made? The answer is that we should all be equal before the law, and the law should be constructed in a way that incitement to hatred is an offence not against certain people but against everyone. I wish that the Government would understand that because, if they do not, and the decline of the right to free speech carries on, we are on the road to fascism. They really ought to know that.

My final point is that the clause refers not to homosexuality but to sexual orientation. It is quite possible that certain groups would want to incite hatred against heterosexuals. I am fed up with hearing people who dare simply to say something that might be a little derogatory, or perhaps to make a joke, about homosexuality, being described as homophobes. That is insulting and could in some contexts lead to violence. Another thing that we see regularly—I do not know whether it is an annual event—is the gay pride parade, which I and many others consider to be triumphalist and could be used to incite hatred against other sexualities. People may think that that is far-fetched, but these days nothing is far-fetched. This is why this House in particular must be careful to uphold our freedoms, particularly the freedom of speech, because, as I said at the beginning, once we lose that, we are lost for ever.

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Lord Monson (Crossbench)

Roughly 42 years ago, the Wolfenden recommendations came before your Lordships' House, well before the House of Commons dared to consider them. As so often, this House gave a lead to the other place. I was strongly in favour of the proposals, and was one of those who voted in favour for the first time. The result was 94 votes to 49. Bernard Levin, in his column the next day, said, "Hoorah for their Lordships".

Our action seems wholly uncontroversial—indeed, perhaps slightly on the timid side today—but, at that time, a great many people, particularly north of the border but also in England and Wales, regarded it as definitely radical and provocative. We were called all sorts of rude names, which of course one shrugged off. However, there were more moderate opponents, who tended to argue along these lines: "Yes, the Wolfenden proposals are all very well, but they are the thin end of the wedge. The pendulum is bound to swing too far in the other direction. Mark my words, before many years are out, they"—the more militant homosexuals and not, of course, the ordinary discreet sort—"will demand not merely toleration for their sexual activities—no problem about that—but positive respect, even admiration, for them". To which I replied, "Oh, come on. Nonsense. You're being alarmist". With hindsight, I have to say that I was wrong and they were right.

The danger is not that people will go to prison for criticising certain homosexual behaviour—for the simple reason that no British jury would ever convict, even if the Attorney-General authorised a prosecution—but that, as the noble Lord, Lord Waddington, the noble Earl, Lord Ferrers, and the noble Baroness, Lady O'Cathain, pointed out, the police, in their anxiety to carry out the wishes of their politically correct superiors, will harass people. For that reason, it is vital that we support the amendment.

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Baroness Whitaker (Labour)

Many speakers have mentioned freedom. Some have also mentioned equality. One of the problems is that quite a large number of people in this country do not live in freedom and equality but go about their business in fear and intimidation. That is why I have difficulty with the amendment of the noble Lord, Lord Waddington, because it seems to me that it would preserve the freedom of hate speech and bears little relation to what happens when people are waylaid, insulted, threatened and sometimes killed. That is why we cannot have this amendment; it would simply alter the balance of equality against those who are most vulnerable.

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The Bishop of Chester (Bishop)

I pretty much agreed with what the noble Lord, Lord Waddington, said when he introduced this debate, although I am not entirely convinced that the amendment would be helpful. I entirely agree with the noble Lord, Lord Stoddart, about the importance of freedom of speech, but in any society free speech must be responsible speech, too; responsibility must be given an equal weighting.

The difficulty with the amendment is that, given the way in which the offence is construed, it really should not be necessary. Requiring proof that there is intent to threaten is a pretty high threshold. There is the additional requirement that the Attorney-General gives consent, which is pretty much a back-stop provision, as we understand it. If we also have to have this in the Bill, we are at least in theory justifying permitting in certain circumstances speech that intends to threaten, because of the additional amendment that we have passed. This may have been a structural flaw in the Religious Offences Bill, which also had these two provisions, which seemed to be in a certain amount of tension.

I do rather agree with the question of where we stop if we go on from here. It has been said, for example, that there is no reference here to transsexuals or to age or whatever. That may be for another day. I hope that we can stop here. Given the state of the law elsewhere in this area, I understand why this offence has been introduced.

My other problem with the amendment in the name of the noble Lord, Lord Waddington—I do not have this problem at all with the amendment in the name of the noble Lord, Lord Thomas—is that anyone reading it would regard it as free speech about homosexuality. From a Christian perspective, we want the freedom to speak about marriage and the Christian understanding of marriage as the proper context for sexual relationships. We do not want a privileged part of the law that is seen to allow criticism of homosexual activity, as from a Christian perspective one would be equally critical of heterosexual activity outside marriage. The amendment's focus on sexual orientation will be read as particular permission of the freedom to criticise homosexual behaviour. From a Christian perspective, this freedom should be even-handed across different sexual orientations.

Although there might be a case for further elucidation in the Bill—the amendment of the noble Lord, Lord Thomas, attempts to provide that, although leaving this to the Attorney-General may not be very satisfactory—if we take words for what they mean, the intent to stir up hatred is a pretty high bar, and with guidance issued to the police to clarify the offence, it should be enough in our society. My fear is that precisely by putting this sort of amendment into law, we almost draw attention again to the homosexual issue. That would have the quite unintentional effect of signalling out a group of people identified by their sexual orientation as different. That is the mistake. That is what leads to the bullying and the violence, which is a real problem, as the noble Baroness, Lady Howarth, said. It is because that is such a real problem that the amendment, although it means well and although I agree with the proposer and the way in which he introduced it, has a certain danger in it. If we are to have anything, I would prefer something along the lines of the amendment proposed by the noble Lord, Lord Thomas.

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The Bishop of Winchester (Bishop)

I respect and appreciate the points that my friend the right reverend Prelate is making. I particularly respect his emphasis on marriage. However, if he reads lines 28 to 32 on page 268, which are the significant element, and the amendment, he will see that both speak very clearly about a particular sexual orientation, and that both are entirely patent of the kinds of things about which he is speaking. Moreover, both the Bill and the Government's amending of it are drawn even-handedly, and so is this amendment. I think that the noble Lord has raised a hare which really need not be raised in this regard if he looks carefully at the form of words.

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The Bishop of Chester (Bishop)

I would say only that I believe this demonstration of freedom of speech is exactly what your Lordships expect.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs; Liberal Democrat)

In response to the noble Lord, Lord Stoddart of Swindon, putting this in its context, we are concerned with an amendment to the Public Order Act 1986. Using threatening words and behaviour is an offence, per se. But it has been determined that we have particular problems in our society which need to be addressed. For example, it is a more serious offence to use threatening words and behaviour with intent to stir up hatred on the grounds of race. Similarly, it has been recognised that there are problems of religious bigotry towards various religions, so it is thought to be right to have a more serious offence than the basic offence of a person using threatening words and behaviour with intent to stir up hatred against someone because of their religion.

Now we come to a third category. No one in this Chamber can deny that homophobia exists and is a serious problem. If they do deny that, they can talk to me about professional experiences of murder cases where that has been the only reason why people have been killed. Homophobia exists and the purpose of this provision—just as with race and with religion—is to make it a more serious offence, which is punishable by a more serious penalty because of that intent to stir up hatred on the grounds of—

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Lord Stoddart of Swindon (Independent Labour)

No one is suggesting—I am certainly not—that there is no homophobia, if we can use that term. There certainly is and we all deplore it. The problem is that we are proceeding to make it difficult to make any criticism of any minority. Even atheists sometimes, with respect to the right reverend Prelates, are under attack. When I spoke I instanced the Written Question by the noble Lord, Lord Morris of Manchester. Where do we stop in making specific arrangements for various minorities?

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Lord Dearing (Other)

In this Committee, there has been a reasoned, cool discussion of a very difficult issue. I hope that the Government will listen to and reflect carefully on what has been said and that we will not have a Division. I go a long way towards the amendment of the noble Lord, Lord Waddington, but not all the way, because it goes a little too far. None of us wants any incitement to hatred of homophobia, nor do we want any bullying or discrimination. But, at the same time, we want the right for reasoned discussion and disagreement about these things. There will be a way to find this balance. When I looked at the noble Lord's amendment, I agreed happily with him that nothing should stand in the way of discussion or reasoned disagreement, but on antipathy I drew back because that is getting too near to incitement. I hope that the Government have listened carefully to what has been said and will reflect on it to see if they can move somewhere near the point put forward by the noble Lord, Lord Waddington.

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Lady Saltoun of Abernethy (Crossbench)

I, too, support the amendment proposed by the noble Lord, Lord Waddington. It worries me that nowhere in this schedule does the proposed new crime appear to involve a clear intention to offend, to threaten or to incite hatred. I am not at all sure that any of the amendments we have discussed today have addressed that.

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Lord Lyell of Markyate (Conservative)

I have listened carefully to this debate. If there is a Division, I shall support the amendment of my noble friend Lord Waddington. I understand the noble Lord, Lord Dearing, and the reason why he was cautious. If we have to express a view in a vote, my view will be that there is a real problem with the Bill without an amendment that is at least very close to that of my noble friend Lord Waddington.

I listened most carefully to the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Turner of Camden, and I entirely share their view that I do not wish to see gays bullied. I am very proud of the fact that my cousin was the late Sir Peter Pears, and he and Benjamin Britten had to suffer a great deal of bullying during their lifetime, which was entirely wrong. There is a very real danger that the balance has gone the other way. My noble friend Lord Waddington has got extremely close to getting it right, even if he has not got it absolutely right. It is very important that the Government listen. I am sure that the Minister listens, but I hope that the whole Government will listen very carefully. If for some reason the Committee does not agree this amendment, I hope that the Government will none the less come back with a significant change that improves the position.

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Baroness Howe of Idlicote (Crossbench)

I shall speak briefly, because I have been quite riveted by the exchanges on this issue. I have absolutely no doubt that freedom of expression on this issue needs to be available. However, I am not happy with the wording of the amendment of the noble Lord, Lord Waddington. I agree with every word that my noble friend Lord Dearing has said. I hope very much that the Minister will go away and think again of a suitable amendment.

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Lord Kingsland (Shadow Minister, Justice; Conservative)

If it comes to it, as I suspect that it will, the Opposition will have a free vote on this matter. Speaking personally, in the interests of free speech I shall support the amendment of my noble friend Lord Waddington.

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

I thank the noble Lord, Lord Kingsland, for ever for his pithy wind-up speech. I agree with the noble Lord, Lord Dearing. This has been a very good discussion in the best traditions of your Lordships' House. Whatever views we bring to this debate, it has been an extremely important and useful rehearsal of a number of important issues which your Lordships have discussed in a number of Bills over the past few years. Freedom of speech is critical to all of us. We would not be here in your Lordships' House if that were not so. In responding in a reasoned way, as the noble Lord, Lord Dearing, has suggested, let me say that many of the fears and concerns that have been expressed by Members of the Committee are unfounded.

First, I want to say why we have brought forward this proposal in the first place. The Government have seen evidence, and the committee in the other place took oral evidence, that gay people are a target for threatening words and behaviour which stir up hatred. Noble Lords will have seen some of the evidence presented. As we have heard, it shows extreme political parties trying to whip up hatred against the gay community by associating homosexuality with child abuse or with the spread of disease. Recent BNP campaign literature distributed to voters in north Wales featured photographs of child murder victims and claimed that a majority vote by mainstream parties to equalise the age of consent indicated that MPs were trying to legalise child sex step by step.

Violently homophobic lyrics in some reggae and rap songs urge the torture and murder of lesbians and gay men. Stonewall has commented that while some artists and their record producers have said that the songs in question will not be performed in the future, other artists have refused to make such a commitment, and no legal action as yet been taken to prevent the sale or distribution of such material in Britain. The lyrics in some of these reggae and rap songs suggest taking a "bazooka" to kill gay men, hang lesbians with a "long piece of rope", and:

"If a man comes near me then his skin must peel. Burn up him bad like an old tyre wheel".

From what the noble Lord, Lord Waddington, said earlier, I am sure that he does not disagree that these are serious matters.

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Lord Monson (Crossbench)

The lyrics quoted by the Minister are terrible, of course, but is it not already a criminal offence to call on people to murder lesbians, gays or anybody else?

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

As the noble Lord, Lord Thomas, suggested, there is a particular concern about how such lyrics or other material might be used to stir up hatred against a group of persons, and that is significant to the legislative changes set out in the Bill.

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Lord Tebbit (Conservative)

I do not think the Minister has quite answered the point put to him. Those examples are quite clearly criminal. Why were they not prosecuted? The law would allow for their prosecution today. Why do the Government not get on with it?

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

With respect, it is not for the Government to prosecute because those matters are best left to the DPP. It is not for a Minister to intervene.

I understand the concerns as to whether this proposed change in legislation might have an impact on freedom of expression. This has been thought about very carefully. It was thoroughly debated as the Bill passed through the other place and it was agreed that no additional safeguard was necessary for freedom of expression. The Government are of the view that words or behaviour which are threatening or intended to stir up hatred can never be justified by the need for freedom of speech and that is why we think we have the balance right.

The recommendations of the Joint Committee on Human Rights have frequently been quoted in debates on the Bill in your Lordships' House, so on this occasion I will quote back to noble Lords what that committee has said about this. It welcomes the new offence as a measure that enhances human rights. It also welcomes the fact that the offences are narrowly defined,

"so as to apply only to threatening words or behaviour intended to incite hatred".

Surely that is the relevant point. The committee took the view that this provides an appropriate degree of protection for freedom of speech. The Equality and Human Rights Commission also supports the new provisions, saying that they strike the right balance,

"between the need to protect freedom of expression and the need to protect especially minority groups from hatred ... We consider that the narrow wording of the offence and the high threshold test strike the right balance between those two desires".

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Earl Ferrers (Conservative)

The noble Lord says that the Government have got the balance right, but does he think that it is right that a person like Mr Hammond, who was not doing anything other than holding up a placard, should be taken to court and convicted, whereas the people who actually pulled him down and kicked him, eventually causing his death, were not even interrogated, let alone taken to court? That is not fair.

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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

I am not going to be drawn into a commentary on an individual case. The noble Earl knows that he would never have done that as a Minister and equally he knows that I will not. The two bodies I have quoted have said that the threshold is very high. As we have seen in terms of the definition of hatred, a person who uses threatening words or behaviour or displays any written material which is threatening is guilty of an offence if he intends thereby to stir up hatred on the grounds of sexual orientation. That is where these bodies argue that the balance is right.

The noble Lord, Lord Stoddart, referred to other groups, making what I suppose may be called the slippery slope argument. The Government have said that we will look at other groups if there is evidence that hatred is being stirred up against them as opposed to individuals. That must remain the position and I do not apologise for it. If there is evidence that a particular group is being threatened or hatred against it is being stirred up in the way described as the problem at the moment, it must be right for any Government to consider the matter.

I understand the concerns about the impact which this offence might have on freedom of expression. Noble Lords have referred to previous debates and provisions in regard to the offence of religious hatred, and we took that as our starting point. The religious hatred offence covers words or behaviour that are threatening and intended to stir up hatred. That is what the new proposed offence also covers. It is true that the religious hatred offence contains a clause about freedom of expression similar to the one now proposed in this amendment. We did not duplicate that. The freedom of expression safeguard was added by Parliament during the passage of the religious hatred offence, but the Government said at the time that we did not think a safeguard was necessary and we do not think that such a safeguard is necessary in relation to this proposal.

I know that there is concern about whether these offences would have what has been described as a "chilling" effect on debate, particularly for those individuals and organisations who believe that homosexual behaviour should be discouraged. That concern is quite understandable, and the examples cited by noble Lords in voicing their concern that it would no longer be possible to express those views seem to come within this category. But I do not see how the offence as set out in the Bill could have such a chilling effect on debate, on reasonable expressions of dislike, on comedians telling jokes, or on the preaching of religious doctrine concerning homosexuality. None of these would be caught by the offences unless they were also threatening and intended to stir up hatred.

A number of comments were made about the practice of the police and, by implication, the Crown Prosecution Service. I am doubtful whether, frankly, the proposed amendment would clarify matters for the police. It could be argued that it would provide less certainty than is contained in the Government's provisions. One has to trust the police to distinguish between which cases are appropriate to investigate and which are not. The fact that the Crown Prosecution Service will always assess a case and will bring a prosecution only if there is a reasonable prospect of conviction and if it would be in the public interest is an important safeguard. Most importantly with this offence, as with the offences of inciting racial or religious hatred, the Attorney-General must consent to any prosecution.

Noble Lords seem to suggest that the provision of guidance would not be sufficient. However, my conclusion from the debate is that guidance is exactly what is required. I hesitate to debate with the noble Lord, Lord Dear—to whom, as a Birmingham resident, I pay great tribute for his excellent stewardship and leadership of our local police force—but there is no reason at all why sensible guidance, with the safeguards of the role of the Crown Prosecution Service and the Attorney-General's final decision, will not provide the kinds of safeguards that are required. When it comes down to it, none of the actions to which noble Lords have spoken would be covered by the offences unless they were threatening and intended to stir up hatred.

The noble Lord, Lord Stoddart, asked me whether I would be prepared to withdraw these clauses. I have written to him; I agreed the letter on Friday and I am sorry that it has not reached him. However, ultimately, we believe that these provisions are sensible. They were debated well in the other place and we have had a good and well tempered debate here. I know that the noble Lord, Lord Waddington, will have to consider carefully what action he intends to take but we consider that the Bill as currently drafted meets the concerns that he has expressed.

8:00 pm
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Lord Waddington (Conservative)

I thank all noble Lords and noble Baronesses who have contributed to the debate. Clearly there is a great deal of support for there being some kind of free speech provision in the Bill and noble Lords will recognise that there has been no proper attempt to justify there being a free speech provision in the religious hatred offence but no free speech provision here.

The Minister said that the matter could be dealt with by guidance. However, I would point out, very gently, that guidance has been in existence for some time now—I have it in my file—and a fat lot of good it has done. There has been a great deal of guidance from the Home Office about the nature of hate crime, and the net result has been the succession of scandals to which we have referred in the course of the debate.

I am not saying that the wording of the amendment cannot be improved. I understand the concerns about the wording which have been expressed by the noble Baroness, Lady Howarth of Breckland, by the right reverend Prelate the Bishop of Chester and by others. I hope that the Minister will go away and consider what has been said and perhaps the Government will come forward with their own formula. For the moment, I am going to accept the advice given to me by the noble Lord, Lord Dearing. I think the right course is to seek leave to withdraw the amendment, but I am doing so in the hope that the Government will come to their senses. I do not honestly think that the points we have made today have been met in any way by the Minister. I am sure that he will recognise from what I have said that unless the Government act to try to meet the points made I will return to the matter on Report. With those words, I beg leave to withdraw—

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Earl Ferrers (Conservative)

Before my noble friend takes that auspicious step, he said he was sure that the Minister would consider this to see whether he would improve on it. That is not what the Minister said. He said, "We think the Bill is right as it is". Before my noble friend withdraws the amendment, he ought to get an undertaking from the Minister that he will consider what has been said with a view to seeing whether the Bill can be improved.

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Lord Waddington (Conservative)

I was not being as optimistic as my noble friend. I am merely saying that I hope that the Minister, who at the moment may not be minded to consider this matter, will see sense. He now has a little time before the Report stage to go over what has been said in the course of the debate. He has not answered any of the points made and I shall certainly return to the matter on Report. With those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 137ZZA not moved.]

Schedule 26 agreed to.

Clause 127 agreed to.

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Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I beg to move that the House do now resume. In doing so, perhaps I may suggest that the Committee stage begins again not before 9.05 pm.

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

House resumed.