Report stage in the Lords
- Speaker
Lord Bassam of BrightonLabour- Quote
- moved Amendment No. 51:
- Time
- 20:36
- Source
- View in Hansard ↗
- Speaker
Lord HenleyConservative- Quote
- My Lords, I thank the noble Lord, Lord Bassam, for introducing these amendments and explaining them to a packed House at twenty to nine on 25 April. I emphasise the date because as the noble Lord made clear, the Government only put down these amendments to the Bill on Monday, 23 April, and it was only yesterday, on 24 April, that a letter from the Minister was sent to my noble friend explaining what the amendments are about. At the same time, the Delegated Powers and Regulatory Reform Committee has managed to have a look at these powers, and I am grateful to the noble Lord for referring to that. I should like to quote from the committee’s 8th report, and in doing so to extend my thanks to the members for their extraordinary assiduity in managing to look at these amendments within such a short timescale. I hope that in future the Government, and particularly the Home Office, can manage to give us slightly longer. Before I quote from the report, I ought to say that while we will not oppose these amendments now, in the light of what I am about to read from the 8th report, we think it would be more appropriate if the Government withdrew them now and possibly brought them back at Third Reading. If they are not prepared to do that, we certainly wish to reserve our right to come back to them at that stage. Quite frankly, amendments of this sort put down on a Monday, seen by the Delegated Powers and Regulatory Reform Committee on a Tuesday and sent with a covering letter to us, which are then debated on a Wednesday evening are not quite satisfactory. However, if the Government wish to go ahead at this stage, we will not oppose them. But they might think seriously about withdrawing the amendments at this stage in the light of what the Delegated Powers and Regulatory Reform Committee has had to say. Paragraph 4 of the 8th report states that: “While acknowledging that the power”— the power the Government grant themselves in Amendment No. 51— “could be used to remove offences as well, the Home Office does not explain why the Secretary of State should have the power, after the enactment of the bill, to impose by order criminal liability for conduct which Parliament has decided should not be an offence. The Committee is particularly concerned that the subsequent removal of an offence listed in Schedule 3 could, by virtue of Clause 53, expose a person to criminal penalties far in excess of those which normally apply to offences created by subordinate legislation. For example, the power to create new offences by order under the Legislative and Regulatory Reform Act 2006 is limited to offences carrying a maximum penalty of not more than two years’ imprisonment”. In paragraph 5, the committee goes on to draw the attention of the House to the implications of the power conferred by the proposed new subsection (5A) in so far as it enables the Secretary of State to remove an offence from Schedule 3. It ends by saying—and I think this should always be emphasised— “the House may wish to invite the Government to reconsider the scope of the new power”. We will want to look at this in greater detail, and with a slightly longer timescale. I hope the Government might consider that as well. As I made quite clear, if they wish to press ahead with this, we reserve our right to come back to it at Third Reading.
- Time
- 20:36
- Source
- View in Hansard ↗
- Speaker
Lord DholakiaLiberal Democrat- Quote
- My Lords, I support what has just been said about the report of the Delegated Powers Committee. My concern is that when the noble Lord, Lord Bassam, gave us the information from this report, he must have missed out a vital sentence. At the end of the conclusion, the committee says that, “the House may wish to invite the Government to reconsider the scope of the new power”. There is something very serious in relation to Clause 51, and there are implications with regard to Clause 44. My advice is precisely the same as that of the noble Lord, Lord Henley: the Government should take this back, look at it and come back at Third Reading or before so that we know what they have in mind, on the basis of which we can decide whether we want to take any further action. For now, it would not be right to discuss further the contents of this report or the Government’s response. I see that, although the Government produced a supplementary memorandum, which was considered by the committee, there is no further development other than the recommendations contained in paragraph 5.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
Lord Thomas of GresfordLiberal Democrat- Quote
- My Lords, I support everything that my noble friend has said. I take this first opportunity to defend my family name, which the noble Lord, Lord Henley, referred to in the previous debate. I suspect that he was thinking of the case of Stephen William George Collins, reported in 1972, when a young man, who had stripped naked, was at a bedroom window and was beckoned in by a young lady who believed him to be her boyfriend. Over what happened then I draw a veil. I note from the judgment of the much lamented Lord Edmund-Davies—this because the noble Lord, Lord Henley, referred to socks—that he said about the young man that, having seen the girl in bed, “he descended the ladder and stripped off all his clothes, with the exception of his socks, because apparently he took the view that if the girl’s mother entered the bedroom it would be easier to effect a rapid escape if he had his socks on than if he was in his bare feet”. The judgment went on: “That is a matter about which we are not called on to express any view, and would in any event find ourselves unable to express one”. Clearly the memory of the noble Lord, Lord Henley, of his legal training is very good, but, like me, he cannot remember the name of any case.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Lord Bassam of BrightonLabour
- Quote
- My Lords, I have some advice to give on this particular case. It is of such import to our debates that it clearly should be considered fully and properly by the Delegated Powers and Regulatory Reform Committee, which, while it produces excellent reports, would find its proceedings enlivened more than somewhat if it were to consider this case’s implications. Anyway, I ought to deal with what is front of me. I have listened carefully to what the noble Lord, Lord Henley, has said, and he makes a fair point; amendments were tabled late. It is also fair to say that the Delegated Powers and Regulatory Reform Committee did a first-rate job in considering the implications of those amendments, given the timeframe in which it had to work and the constraints that it would have worked under. In fairness to your Lordships, it would be right for me to commit to taking away Amendments Nos. 51 and 126 and not pressing them this evening, so that proper and full consideration can be given. We can then consider those matters at Third Reading—I am advised that we will be able to do so, and I am happy to do that. That said, we should move the other amendments in this group. However, the noble Lord made a good case. I am willing to be as helpful as I can to the House—it is only proper that I should be—and that will enable us to agree and disagree more amicably on these matters in a way that is of service to all.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Lord HenleyConservative
- Quote
- My Lords, before the Minister sits down, perhaps I may thank the noble Lord, Lord Thomas, for clearing his family name and for correcting me on R v Collins 1972. I had not even realised that it was a House of Lords case, but, as he put it, it is one of the very few cases that I can remember—sadly, I could not remember its correct name. I thank also the Minister for agreeing not to press ahead with Amendments Nos. 51 and 126, but to go ahead with the others. On that basis, I am perfectly satisfied. It is a reasonable way forward and it will probably make life easier for all of us in due course.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Lord Bassam of BrightonLabour
- Quote
- My Lords, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Schedule 3 [Listed offences]:
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Lord Bassam of BrightonLabour
- Quote
- moved Amendments Nos. 52 to 58:
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
Baroness Scotland of AsthalLabour- Quote
- moved Amendment No. 59:
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Lord HenleyConservative
- Quote
- My Lords, we have one amendment in this group, Amendment No. 63, to which we will come in due course. It is another probing amendment. We are grateful to the Minister for her letter of 24 April, which explained how the defences would work. I am a little concerned about how it might affect, for example, whistleblowers or a police sting operation, but the Minister will no doubt touch on that when she responds. Our Amendment No. 63, which would leave out Clause 46, is a probing amendment. In Committee, we questioned whether the defence in Clause 46 would cover the whistleblower—for example, a civil servant who encourages a journalist to publish confidential information. I suggest that the disclosure could quite reasonably be made on the grounds of conscience or a perceived threat to public safety. The Minister stated in her earlier, undated letter that were such a person as a civil servant—let us call them C—to be prosecuted under the so-called belief offences, C could argue to the jury that what he did was reasonable. I do not see therefore why in such a case the prosecution would, seeing the possibility of a defence under the offences in Clauses 40 and 41, prosecute under any other offence than Clause 39. Therefore the reasonable defence, where it is expected, could be used unmeritoriously and would simply be sidestepped. I would be grateful to the Minister for a response to that point.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Baroness Scotland of AsthalLabour
- Quote
- My Lords, I can confirm what I set out in the letter as being the correct position. We believe that it would be better to provide one defence to all the offences included in Part 2. Amendments Nos. 59 to 61 would remove the crime prevention or prevention or limitation of harm defence in Clause 45 and extend the application of the defence of reasonableness in Clause 46 to all the offences under Part 2. That makes it a great deal clearer. We also believe that it would be sensible, given this proposed extension, to put in the Bill some factors that the court could consider when determining whether an act was reasonable. That is the effect of Amendment No. 62. This is a non-exhaustive list consisting of the purpose for which a person claims to have been acting, any authority by which a person claims to have been acting and the seriousness of the offence that he believed or intended would be committed. For these reasons, we resist Amendment No. 63. As we discussed in relation to previous amendments, the reasonableness defence was proposed by the Law Commission as a limit on the potential liability for the belief offences. I believe that it is necessary in that regard to proceed as we now propose. I remember that, when this amendment was discussed in Committee, the noble Baroness, Lady Anelay, queried whether the reasonableness defence would cover a whistleblower—a point that has been repeated by the noble Lord, Lord Henley—and gave the example of a civil servant who encourages a journalist. In my letter, I sought to respond to that, following that conversation. As the noble Lord said, I explained that a whistleblower could seek to rely on this defence, but whether the jury accepts that argument is another matter; it is a matter for the jury to judge whether it is reasonable. Both the Home Office and the Law Commission recognised that unmeritorious defendants will seek to rely on this defence. We believe that government Amendment No. 62, which gives examples of factors that can be considered in determining reasonableness, will help to guard against this, and so I hope that noble Lords will support it. We believe that juries will see through unmeritorious arguments. Indeed, in the example given, the fact that a civil servant is bound by the Official Secrets Act would no doubt be borne in mind by the jury when determining whether he had acted reasonably. Nevertheless, it could be that a jury, considering all the facts, would accept this defence. Of course, the defence would not exempt the civil servant from liability under the Official Secrets Act. I hope that that has explained why we have made these changes. Our debates have been very helpful in that regard. We were worried whether people would take adventitious advantage of the reasonableness defence, but we think that this will be a simpler and easier way and agree with the general import of what was said in that regard. I thank all those who participated in the debates, because it has enabled us to make some quite productive changes. I hope that, on that basis, your Lordships will accept government Amendments Nos. 59 to 62. On Question, amendment agreed to. Clause 46 [Defence of acting reasonably]:
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Baroness Scotland of AsthalLabour
- Quote
- moved Amendments Nos. 60 to 62:
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Baroness Scotland of AsthalLabour
- Quote
- moved Amendment No. 64:
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Baroness Scotland of AsthalLabour
- Quote
- moved Amendment No. 65:
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Lord HenleyConservative
- Quote
- moved Amendment No. 66:
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
- Baroness Scotland of AsthalLabour
- Quote
- My Lords, I am grateful to the noble Lord for indicating that he is content with my letter. Once again—I look to noble Lords opposite for assistance—I am very conscious that the full content of my letter has not been read into the record. I wonder how we should best do this. I am very happy to read into the record as rapidly as I can the basis of the arguments that we put forward in the letter because that might help clarify the position. On the other hand, I do not want to weary the House. I am very much in your Lordships’ hands.
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
- Lord HenleyConservative
- Quote
- My Lords, the noble Baroness may remember the offer that she made some months ago to give either a short or a long answer on the whole question of intercept. On this occasion we prefer the short answer, but she might deposit the letter in the Library, if necessary.
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
- Baroness Scotland of AsthalLabour
- Quote
- My Lords, the noble Lord, Lord Henley, asked whether, if the court thought that a defendant would be better tried under Clause 40, the prosecution would need to apply to change the indictment. Our view is that whether—I am trying to shorten my response. One of the problems with trying to shorten it is that you end up thinking about making it longer. I shall start again. In Committee, the noble Lord, Lord Henley, asked whether, if all the offences D believed would be committed would be triable only summarily, it would be better to try the Clause 41 offence summarily also. I explained that this offence is aimed at those who assist in the commission of serious crimes although it is correct that it is not limited to such offenders. In addition, we do not believe that this offence will be easy to prove. Nevertheless, its inclusion is important to prevent D avoiding liability under Clause 40 by saying that he did not believe that the offence chosen by the prosecution would be committed, but that he believed that another offence, or one of many offences, would be committed. Due to the complex nature of this offence, we do not expect that it will be used in relation to summary offences only. I hope that that has helped to clarify the position. I shall place in the Library a full copy of the letter that I wrote to noble Lords opposite in the hope that it will better clarify the position. However, if further elucidation appears to be necessary at Third Reading, I shall be very happy to provide it in the interim. The prosecution, of course, would need to apply to change the indictment. However, the noble Lord opposite will know that.
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
- Lord HenleyConservative
- Quote
- My Lords, I thank the noble Baroness. If there are any further doubts, we might ask her to give the long answer at Third Reading, but I do not anticipate that that will be the case. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 51 [Persons who may be perpetrators or encouragers etc.]:
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
- Lord Bassam of BrightonLabour
- Quote
- moved Amendment No. 67:
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
- Lord Bassam of BrightonLabour
- Quote
- moved Amendment No. 68:
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
- Lord Bassam of BrightonLabour
- Quote
- moved Amendments Nos. 69 to 72:
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
- Baroness Scotland of AsthalLabour
- Quote
- moved Amendment No. 73:
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
- Baroness Scotland of AsthalLabour
- Quote
- moved Amendment No. 74:
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
- Baroness Scotland of AsthalLabour
- Quote
- moved Amendment No. 76:
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
- Lord Bassam of BrightonLabour
- Quote
- moved Amendment No. 77:
- Time
- 21:00
- Source
- View in Hansard ↗
- Speaker
Baroness Anelay of St JohnsConservative- Quote
- My Lords, I begin by making it clear that I support the amendments. The Minister very properly said that officials are looking to see whether other additions need to be made. In terms of parliamentary procedure, we are at an early stage in the Bill—not many Bills start in this House—so I appreciate that some proper technical amendments may need to be made. However, at this stage do the Government hope to do some more tidying up on this aspect at Third Reading or is it anticipated that that will drift into another place?
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Lord Bassam of BrightonLabour
- Quote
- My Lords, given that the Bill is a Lords starter, we will try to maximise the tidying-up exercise in this House. That said, as I am sure the noble Baroness will appreciate, some things may well have to be picked up at a later stage, although I am probably about to receive a note that tells me that I am wrong. In fact, I understand that it is unlikely that the major tidying-up will be done at Third Reading. However, if we can do it, we will and, if not, it will have to be done in another place. On Question, amendment agreed to.
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Lord Bassam of BrightonLabour
- Quote
- moved Amendments Nos. 78 to 88:
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Baroness Scotland of AsthalLabour
- Quote
- moved Amendment No. 89:
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Lord Bassam of BrightonLabour
- Quote
- moved Amendments Nos. 90 to 93:
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Lord Bassam of BrightonLabour
- Quote
- My Lords, I beg to move that consideration on Report be now adjourned. Moved accordingly, and, on Question, Motion agreed to.
- Time
- 21:15
- Source
- View in Hansard ↗