Criminal Justice and Immigration Bill

Delegated Legislation – in the House of Commons at 7:01 pm on 7th May 2008.

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Lords Message considered.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Under the order of the House of 6 May, any message from the Lords relating to the Criminal Justice and Immigration Bill may be considered forthwith without any Question put.

I have to acquaint the House that a message has been brought from the Lords as follows. The Lords insist on certain amendments to the Criminal Justice and Immigration Bill to which the Commons have disagreed for which insistence they assign their Reasons; they do not insist on the remaining amendments to which the Commons have disagreed; they agree to the amendments which the Commons have proposed to the words restored to the Bill; they agree to the consequential amendment which the Commons have proposed; they agree to the amendments which the Commons have proposed in lieu of certain of their amendments; and they agree to the amendments which the Commons have proposed to certain of their amendments.

Lords reasons: 9B, 301B and 327B.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice 8:20 pm, 7th May 2008

I beg to move, That this House
does not insist on its disagreement with the Lords in their amendments Nos. 9, 301 and 327.

We had a full debate yesterday on the question of suspended sentence orders, and there was some discussion between the main parties and the Liberal Democrats on this matter. Obviously, I regret the fact that the other place has voted in the way that it has, but there is clearly a big disagreement between the two Houses.

I am firmly of the view that the impact of the clause was positive, but a number of points have been made by Mr. Garnier and David Howarth, and also by such august bodies as the Magistrates Association, and what they have said, coupled with the reflection we have had from the Lords, means that we will not press this issue to a Division this evening.

Members know that we are addressing key issues in relation to the prison officers' right-to-strike provisions, which expire under the joint industrial relations procedural arrangement tomorrow—8 May. I have always had the intention of getting this Bill to Royal Assent by 8 May, and I feel that if we press this issue this evening we will severely complicate those matters. Therefore, I propose that we do not insist on the disagreement with the Lords, and I hope that the hon. and learned Member for Harborough, for whom I have had great regard during the passage of the Bill, and the hon. Member for Cambridge, will accept that with the good grace that I know they have within them.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am delighted that the Government have accepted the advice of the other place. I know it is not always easy for a Government with a majority in this House to accept such advice on all occasions, but the other place can proudly claim to have exercised its constitutional role properly on this occasion, by inviting a Government to take advice. They have clearly listened to the advice of the other place. I claim no credit for any part in the Government's decision making; we have all had to do what we have had to do. It happens that the House of Lords' advice coincides with the remarks that I have been making, but that is a coincidence.

I thank the right hon. Gentleman, the Secretary of State and the Under-Secretary of State for Justice, Maria Eagle, for the constructive view that they have taken on this proposal, and I invite the House, including my right hon. and hon. Friends, to accept the concession that the Government have made this evening in the face of the advice of the other place. I ask us all to allow clause 10 to be deleted from the Bill.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

Earlier in the day, I had the intense embarrassment of hearing the remarks I made on this matter yesterday cited with approval by not only the Liberal Democrat spokesman in the Lords but the Minister there.

I should reiterate what I was saying yesterday just for one purpose. Clause 10 was trying to deal with a problem that exists not just in respect of summary offences in the magistrates court, but in the Crown court—perhaps to an even greater degree—and in the magistrates court in respect of offences that are triable either way. The Government need to think about a holistic solution to the problem, not just a solution to one particular part of it, because by trying to resolve the problem in parts they threatened to cause a certain amount of confusion in the courts.

Another problem was raised in the Lords, where a fair point was made by Lady Butler-Sloss. The Government's solution was to say, "Perhaps we will implement this clause and then unimplement it." However, that would mean excessive change for the magistrates courts, in particular, to be able to follow. There has been too much change in the criminal law, one way or the other, for that ever to have been a plausible way out. I thank the Government for their concession on this matter, but I hope that they will keep thinking about how to resolve the problem, which they have rightly identified, in a more comprehensive way.

Question put and agreed to.

Lords reason: No. 285B.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I beg to move, That this House
does not insist on its disagreement with the Lords in their amendment No. 285.

I am pleased that at least we will have an offence of inciting hatred on the grounds of sexual orientation on the statute book. That is very positive, and everybody in the House should be pleased about it, as I am. It is a necessary provision.

The other place has insisted on its amendment, and I can advise the House that the Government will not resist it. We had a full debate yesterday, when there was a frank exchange of views. Perhaps not as much consensus emerged at the end as we might have hoped, although the vote was quite large—there was a 202 majority. We remain of the view that the amendment is undesirable and unnecessary; it does not add anything to the law as it would stand without its inclusion. However, as the Minister of State, Ministry of Justice, my right hon. Friend Mr. Hanson, has explained, there is an urgent need for the Bill to receive Royal Assent.

I say to the House that between now and commencement we will prepare guidance—we had an extensive debate yesterday about guidance and its importance—explaining the operation of the new offences, taking into account the views and concerns expressed across this House and in the other place. Of course there will be an opportunity—doubtless there will be frequent opportunities—to revisit the issue in due course if it is the will of this House or the other House to do so. On that basis, I would like to propose that we do not disagree with the Lords in their said amendment.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I congratulate the Government or, at least, this part of the Government, on having some connection with rationality; I congratulate them collectively and as individual Ministers on the part that they have played in brokering this sensible solution. I know that it is not easy for Ministers to have to accept alterations to legislation that they have so carefully thought about over many months, but the facts of life have returned to haunt them. I do not wish to crow about that for a moment. It is worth pointing out that of those who supported Lord Waddington—to whom considerable praise is owed—13 took the Labour Whip and two were bishops.

I hope that every party will now coalesce around this solution and that those who are concerned about issues of detail will suppress those concerns for the greater good of the legislation as a whole so that the provision that is most central to this extraordinary Bill—the right to strike of prison officers—can be put on the statute book as quickly as possible. My hon. Friend Nick Herbert is at the Prison Officers Association annual conference, and I know that the Secretary of State will be there tomorrow, to read the speech that my hon. Friend has made and to make his own.

I congratulate the Government on their magnanimous approach to this aspect of the Bill and also those of my hon. Friends who have supported Lord Waddington so doughtily in the stance that he has taken— [ Interruption. ] I hear a squeak, probably from the Liberal Democrats, suggesting that this is a free vote. It is a free vote, but we are making public law, and I would hope that all of us could sensibly agree that the position at which we have arrived, while not wholly satisfactory to everybody, is sensible and one that the rational elements among us can agree is the right way forward. I thank the Minister for her remarks and hope that we can now move forward.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice 8:30 pm, 7th May 2008

I regret the announcement that the Minister has felt constrained to make. I accept that the Government do not want to take this route, but feel forced to do so by the political and industrial relations conditions, but the House should not let this Lords amendment through without some form of protest.

The Waddington amendment remains unacceptable to me for all the reasons that I gave yesterday. It claims that there is doubt about a statutory provision about which there is no doubt. The new offence of stirring up homophobic hatred is clear. It can be committed only by threats or with intent. There is no doubt about its content. To put into the statute a section that says

"for the avoidance of doubt" implies doubt where there is none and, by its very existence, throws into doubt the rest of the section.

The second point is one that I return to without any regret. The Waddington amendment relies on a vague phrase—"of itself"—that is without clear meaning. It assumes that words can be spoken outside their context. We were told yesterday that the problem was that the police believe that words by themselves can be threats. That is nonsense. It is a bad argument that because someone else believes in nonsense, it should be put into a statutory section. If ever a problem would better be dealt with by guidance than by statute, this is it.

I stick to the third point that I made yesterday, which is my most serious point. The part of the Waddington amendment about urging people to change their sexual behaviour is inherently dangerous, because it is about not only words but action—action in a context that means it might well amount to threats. The exemption might be interpreted as creating a loophole, and not only that: in the longer term, people of ill will will be tempted to use the phrase as a euphemism—a code—for behaviour that is inherently threatening in its context and intention.

Photo of John Bercow John Bercow Conservative, Buckingham

I entirely agree with the hon. Gentleman's assertion that the Waddington amendment is both superfluous and undesirable. The Government are conceding this point for entirely understandable, tactical reasons, but that does not affect the issue of principle. Does the hon. Gentleman agree that there is some significance in the fact that the most vociferous supporters of the Waddington amendment are people who have consistently opposed the creation of the offence of homophobic hate crime?

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I fully agree. Anyone who was standing at the Bar in the Lords today, as I was, will fully accept that point and agree with the hon. Gentleman. If there was ever a circumstance in which people's words were different from their meaning, it was in the other place this afternoon.

I accept that there is a problem that has to be dealt with. It is the problem of the misinterpretation by the police of existing law, which has led to some ludicrous investigations. It should be said that those investigations took place under the Public Order Acts, which use completely different words—they talk about "threatening, abusive or insulting" language rather than threats alone, which are the words of the proposed offence.

Nevertheless, there might be a problem. The question is about the right way to deal with that problem. The Government offered a way to do that today through the use of statutory guidance—a proposal, as I said yesterday, with a good deal of merit. It was rejected by the House of Lords when they accepted the Waddington amendment. It is a sensible way of approaching the question.

In addition, a proposal was put forward yesterday by the Liberal Democrats and, in a different way, by the Conservatives, to add some procedural protection under which the Attorney-General or the prosecution authorities, whoever they might be in the future, would have to have special regard to freedom of expression or, in the case of the Conservative proposal, to quite a few other human rights, too, before deciding to bring a prosecution. As I said yesterday, that is an important protection. It is not merely meaningless words, and it provides at least some hope of judicial review in some circumstances.

Our view is that the right way to deal with the problem of the absurd investigations would be a combination of the Government's proposals on guidance and one of the procedural protections proposed by my party and the Conservative party. I deeply regret the fact that the Government have not chosen to go down that route. They had the opportunity to accept that route tonight, at this late stage. They chose not to, because of the lateness of the hour and the political circumstances in which they find themselves. I should remind the Government that they decided to add to the Bill the provisions about industrial relations in the prison system. They could have chosen a different way to do things. The Bill is full of far too many clauses on different issues that have been in the process of being dealt with for far too long. In terms of good legislative practice, it is near to being a disaster. On the offence that we are discussing, my party believes that tonight the Government have caved in to forces to which they should never contemplate caving in.

Photo of Evan Harris Evan Harris Shadow Minister, Innovation, Universities and Skills

I should like to support my hon. Friend's amendment (a), which he wishes to pursue, and to identify and discuss the three reasons the Government find themselves in an unsatisfactory position. Two of their problems are self-inflicted, but one is a genuine problem that we discussed yesterday.

The first self-inflicted problem relates to the timetable that they set themselves with regard to the prison officers issue, which has already been discussed. There were alternative ways of going about the matter. It is unfortunate that the Government are accepting a good offence being made worse because of the timetable. The second problem concerns their failure to win the vote in the House of Lords. If Members read the Hansard of both occasions, they will see that the argument was won, but the vote was not.

The first time that the amendment tabled by Lord Waddington and his colleagues saw the light of day, the Government insisted on the House of Lords sitting late into the night, but regrettably they could muster only 57 people when the vote came. They lost by 81 votes to 57. The turnout was better tonight; I understand that the vote was 178 to 168, and that a significant number of Government Members were there. That is laudable, but as Mr. Garnier said, 13 Government Members still voted for the amendment. I am pleased to say that the Liberal Democrats in the other place were far more cohesive. I understand that none of them voted for the amendment. Given the numbers, the matter was in the Government's hands; they could have prevented us from being in this position, and it is regrettable that they failed.

The issue of significance is the widespread concern, which I and other colleagues yesterday accepted exists, about the misapplication by the police of existing offences that threaten freedom of expression. The Under-Secretary of State for Justice, Maria Eagle kindly offered to meet us to discuss whether guidance could be provided, not just on the new offence that we are discussing—I was pleased to hear her say that she still intends to produce guidance on that offence—but on sections 4A and 5 of the Public Order Act 1986, which have caused widespread concern.

It is acceptable and understandable for Members of this House to express concern about whether freedom of speech is unreasonably threatened by legislation, but as my hon. Friend David Howarth set out, the offence of hatred on the ground of sexual orientation is very narrow. There is no doubt about the offence; the only doubt is introduced by Lords amendment No. 285. It will create more problems than it seeks to solve. The lesson is that although we must be vigilant about free speech, we must go about things in a more deliberative way.

I ask the Government to consider thinking more deeply about freedom of expression and whether there could be a review of where we are now, so that we can ensure that the police, the prosecutors and the public know what they can do, and so that concerns are not expressed, as they were yesterday, about whether strongly held views that are offensive will be subject to the criminal law. I hope that the Government will recognise that the problem may come back again, unless there is clarity on that point; this is the second time that they have found themselves in difficulty on the issue.

I make one final point. We Liberal Democrats are keen to preserve freedom of expression, as can be seen in our amendment (a). I recognise that there is support among Conservative Members for freedom of expression. However, I note that more than 50 Conservative Members voted last night to maintain our blasphemy laws. That is inconsistent of them. I regret the fact that we are in this position, and I will certainly vote in protest at the fact that we have not had the opportunity to register that regret.

Question put, That this House does not insist on its disagreement with the Lords in their amendment:—

The House divided: Ayes 324, Noes 46.

Division number 174 Delegated Legislation — Criminal Justice and Immigration Bill

Aye: 323 MPs

No: 45 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Abstained: 1 MP

Abstaineds: A-Z by last name

Question accordingly agreed to.