My Lords, far be it for me to do anything as improper as to criticise or cast aspersions upon the proceedings of another place. But had I emerged from Mars and was not aware of the doctrine that the Commons could do no wrong, I might find it somewhat surprising that one part of the legislature rejected without debate an amendment passed in this House, having been moved by a Lord of Appeal in Ordinary and supported on all sides of the House by experienced and learned persons, without giving any reasons. But, of course, within the conventions of the House, that Martian would be entirely wrong because the Commons can do no wrong.
Turning to the substance of the matter and the points made by the noble and learned Lord the Attorney-General, who is, I believe, called Lord Goldsmith rather than Lord Goodhart, as he knows, I have sympathy with part of his points. I agree that one cannot always require criminal proceedings partly because some of the offences in question may be committed abroad and are not triable in this country and partly because what is considered here is general unlawful conduct rather than a particular crime. However, I am perturbed that a judge trying such a matter can come to the conclusion that someone is guilty of very serious crimes, and do so upon the civil burden of proof. The noble and learned Lord the Attorney-General told us that the judge would, in accordance with the rules, take the matter seriously and would require the balance of probabilities to be well pressed down. However, that is not the same as saying that he should be satisfied beyond reasonable doubt. I do not see why the judge trying the matter should not be required to be satisfied beyond reasonable doubt that the person in question had been guilty of unlawful conduct. I suggest that it would go some way to meet the noble and learned Lord's concern if the Government, even at this late stage, accepted that the judge in question had to decide the matter of unlawful conduct on the basis of its being beyond reasonable doubt.
I accept, of course, that that is not a matter which is before the House at the moment. The noble and learned Lord may accept the suggestion of the noble and learned Lord, Lord Lloyd of Berwick, that the matter should not be pressed at the moment. Or, if the House decides to reject the Commons reasons and send the measure back, I urge the Government to consider, when it goes back to the Commons, whether they could not go some way towards meeting the noble and learned Lord's concern by saying that the burden of proof of deciding whether there had been unlawful conduct should be that of beyond reasonable doubt.