Mr.
George Howarth: The hon. Gentleman has answered his own
question. The reason why those who hold office under the Crown are
presumably included is that they often have to authorise the sort of
activities that the hon. Gentleman is referring
to.
David
Howarth: That is precisely right. However, what I am
asking now—we are discussing clause 57—is would it not be
better to not have the blanket immunity that the clause is offering,
but to rely rather more, or exclusively, on the specific authorisations
that exist under section 7? We might be in a situation where time has
moved on. There used to be idea that no one referred to the Secret
Intelligence Service; we pretended that it did not exist. At that time,
we used to pass statutes that gave blanket immunity to those who held
office under the Crown as a kind of euphemism for the Secret
Intelligence Service.
We have grown
up since then. We now have specific legal provision for the Secret
Intelligence Service, including section 7. Should we modernise that
provision by leaving out the blanket immunity and relying instead on
the more recent
arrangements?
Maria
Eagle: As the hon. Member for Cambridge has explained,
amendment 187 would remove proposed new subsection (16) of section 1A
of the Criminal Law Act 1977 inserted by clause 57. The proposed new
subsection is a re-enactment of an existing provision, as he spotted.
It was inserted by the Criminal Justice (Terrorism and Conspiracy) Act
1998 into the earlier enactment. The purpose of the provision is not,
as some might fear, to give all civil servants or, indeed, anyone else
carte blanche to break the law. It is more in line
with what he said. He hit on an important point about the breadth of the
exemption under the provision, with which I have some
sympathy. I
shall say something about such matters, but first I want briefly to
explain what we want to do with the clause. It corrects a small anomaly
in the law of England and Wales in relation to conspiracies to commit
criminal offences within other parts of the United Kingdom. At present,
there is no offence of conspiring in England and Wales to commit an
offence in Scotland or Northern Ireland, whereas it is an offence to
conspire to commit an offence in England and Wales or outside the
United Kingdom. Clause 57 will amend section 1A(2) of the 1977 Act by
replacing “the United Kingdom” with “England and
Wales”, which is
correct. The
clause will widen the scope of the first condition under section 1A(2)
of the 1997 Act, which applies only to agreements by two or more people
to pursue a course of conduct that would involve one or more of them in
an act or the happening of an event intended to take place outside the
United Kingdom. It will ensure that the condition is satisfied when the
act or event is intended to take place outside England and Wales, thus
including acts in Scotland or Northern
Ireland. The
clause will have the practical effect of ensuring that conspiracies in
England and Wales to commit a crime within the UK can be prosecuted in
the most appropriate jurisdiction, for example, where most of the
evidence relating to the conspiracy is to be found and where
investigatory resources are focused. However, I have some sympathy with
the argument of the hon. Gentleman. The exemption from the law in such
matters raises complex and sensitive issues. There has been a change
throughout the years in the way in which it is expressed, so there is
the matter of how it should properly be expressed in the context of the
current
provision. We
need something that deals with the matter. We are planning a wider
review of the laws on conspiracy and attempts, which the Law Commission
is working on and will be reporting on later this year. We need to look
at whether the existing provision remains the right one or whether
things have moved on since Parliament enacted it. A different
formulation might be preferable. We have not reached a final conclusion
on that yet because the Law Commission is still on the work that we
asked it to do. We believe that the task goes beyond the narrow remit
that we have given ourselves under the clause to correct the anomaly
that we have
spotted. I
suggest to the hon. Gentleman that the future work on such matters that
the Law Commission is conducting will provide a better context within
which to deal with that very issue in the wider range of its
appearances on another occasion. However, we cannot leave out a
provision in respect of the security services from the clause, which is
why it is so drafted.
Mr.
Garnier: I am not asking the question aggressively. I just
want to be clear. As proposed new section 1A(16) is drafted, it gives
the Foreign Secretary immunity from prosecution if he arranges for a
member of MI6 to assassinate someone overseas and gives the Home
Secretary immunity if he or she conspires with a police officer or an
officer of special branch to kill someone here. Have I misunderstood
the breadth of the
immunity?
Maria
Eagle: There is no doubt that the old way of expressing
things is probably unacceptably wide in the current context. That is
basically the point that the hon. Member for Cambridge was making by
tabling his amendment. I said that I have a lot of sympathy with what
he said, but because the Law Commission is working on the wider point
in respect of conspiracies generally, we are not yet in a position to
be clear about the best way to deal with such matters. The clause
cannot proceed on to the statute book without some immunity. We
understand the argument, and we want such a measure in place now, but
we want the Law Commission, during its work, to look at it in a much
wider sense. It will report later this year on how best we should
handle the
matter. 9
pm
David
Howarth: I am interested in what the Minister is saying.
Will the Law Commission’s work cover precisely the point that I
have been making about the Secret Intelligence Service and the future
service? If so, I should be happy to let the matter
drop.
Maria
Eagle: I am getting some strange signals—it is
getting late, Mr. Gale. My understanding is that it is
covering the whole range. It might help if I wrote to the hon.
Gentleman, when we have all had time to clear our heads tomorrow
morning, with a specific answer to that question. My understanding is
that the work that is being done is wide enough to enable the Law
Commission to deal with this. We are not in a position to deal with it
today with the Bill, but we do not want to let this anomaly go ahead,
which is why we are using the existing wording. I have accepted and do
accept that it may be too wide and that it is something we may need to
return to as soon as we have a settled view on the modern language we
should be using in respect of all this. I hope that satisfies the hon.
Gentleman.
David
Howarth: On that basis, I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
57 ordered to stand part of the
Bill.
Clause
58Hatred
against persons on grounds of sexual
orientation Question
proposed, That the clause stand part of the
Bill.
The
Chairman: With this it will be convenient to discuss new
clause 36— Guidance on offences involving hatred on grounds of
sexual
orientation— ‘(1)
The Secretary of State must issue guidance explaining the operation of
the offences under Part 3A of the Public Order Act 1986 (c. 64) that
involve hatred on the grounds of sexual
orientation. (2) When
considering whether to consent to a prosecution for an offence falling
within subsection (1), the Attorney General must have particular regard
to— (a) guidance issued
under subsection (1), and (b)
the importance of the rights to freedom of expression, freedom of
thought, conscience and religion, respect for private and family life
and freedom of assembly and association provided by the European
Convention on Human
Rights.’.
Mr.
Garnier: I shall be very brief. I do not want to talk
about the substantive law that is revealed by that section of the
Public Order Act which the clause seeks to delete. I just want to
complain about the way in which this has been introduced. Despite the
fact that when published, when discussed on Second Reading and when
debated in Committee, the Criminal Justice and Immigration Bill 2008
made no mention of a crime of hatred against persons on grounds of
sexual orientation, it was drawn into the Bill on Report. We spent
about an hour and a half dealing with matters that had not been in the
Bill in Committee, one of which was this provision and another was the
extension of the banning of strikes by the Prison Officers Association.
They came in and they took up half of the available day for the Report
stage.
Nevertheless,
we dealt with the new offence of hatred against persons on grounds of
sexual orientation as best we could on that occasion. When the Bill
went to the other place it was amended to include what I loosely call
the Lord Waddington clause, which made express provision for free
expression and so on. As I said a moment ago, I am not going to discuss
the merits or demerits of the new law itself, but in order to get the
Criminal Justice and Immigration Bill through and to achieve Royal
Assent by a particular time to allow the Prison Officers Association
strike ban provision to come through, the Government entered into a
deal. They entered into a deal with our party and with other parties
too. One part of that deal to prevent them from being embarrassed in
relation to the ban on prison officers’ strikes was to accept
the Lord Waddington clause.
As it
happens, I do not think that this provision has yet come into force
under the Public Order Act 1986. I do, however, think it is pretty
shoddy of a Government to put into this Christmas tree, plum duff,
compendium Bill, this clause to undo a deal which they entered into to
save their own skin last year. We should look with some scepticism upon
clause 58, not because I have any views about whether it is a good or a
bad thing to have a new law criminalising hatred against persons on the
grounds of sexual orientation, but because I think the Government are
being underhand and intellectually dishonest. For that reason, we
should delete clause 58 from the
Bill.
David
Howarth: I have a slightly different recollection of the
end of the Criminal Justice and Immigration Bill. The outline that the
hon. and learned Gentleman gave was in essence correct but he left out
a number of points. One is that there was ping-pong between the Lords
and the Commons, and the Lords inserted what was known at the time as
the Waddington amendment—now section 29JA under the Criminal
Justice and Immigration Act 2008—late on in the process. The
Government, along with the Liberal Democrats and other hon. Members,
initially resisted that provision on the grounds that it was wrong and
dangerous to have a blanket exemption. The way in which that
clause—now section—was drafted, especially as it refers
to urging people to change their sexual behaviour, was in danger of
crossing the line between saying and doing things.
I had a
further concern that it would be possible for a code to develop where
people whose intention was to be threatening would develop an
intimidatory language
that technically stayed within the words of the
clause. I had and still have doubts about the wisdom of inserting a
clause that
says “for
the avoidance of
doubt” when
there was not much doubt about what the law itself was in terms of
intention and threat.
As the hon.
and learned Gentleman said, the time pressure was largely created by
the Government because of the situation in the prisons, and eventually
they gave way on the Waddington amendment. My memory of it is that that
was unwilling, to say the least, and that from what Ministers said and
from the way that they acted at the time, I had no doubt that at some
appropriate time Ministers would invite Parliament to revisit that
issue, and I am glad that they have, so I am fully in support of clause
58. The
only thing that I would add is something that I was trying to achieve
at the time, which I thought might even achieve some sort of all-party
agreement, perhaps not in the Lords but at least in the Commons, which
is that statutory guidance could be issued to the Attorney-General on
how prosecutions under this provision should proceed. That should be
done to give comfort to the many people who in many cases have wrongly
been given the impression that there will be a large number of
unreasonable prosecutions under this legislation. There were some
examples of ludicrous behaviour by certain police officers, not under
this legislation, but through legislation that is much easier to
prosecute under, such as that relating to general public order. I put
forward a serious of proposals for that guidance, and I would have put
forward new clause 36 at the end of the ping-pong had I thought about
it more. The new clause that I put forward at the end was never
selected. At the end of the ping-pong I urged the Government to adopt
it as a Government new clause, as that would have meant that it got
through.
Mr.
Garnier: I cannot remember whether the hon. Gentleman was
on the Committee of the Criminal Justice and Immigration Bill. On
Report, I tabled a slightly different new clause to his new clause 36,
with a view to persuading the Government that questions to do with the
European convention and so on should be uppermost in the minds of
prosecuting authorities before a prosecution is brought. That was not
acceptable to the Government; they wanted to keep the offence simple. I
have some sympathy with new clause 36 as a matter of principle, but if
the Government are going to behave as they are doing with clause 58, I
do not see much chance of new clause 36 being any more attractive to
them than my attempt was.
David
Howarth: Again, that is not my recollection of what
happened. My recollection is that the Government were sympathetic to
the notion of guidance but that the time scale was short and it was
difficult to reach agreement on how it should have been framed. The
hon. and learned Gentleman is correct; he put forward a number of
useful and attractive amendments and suggestions, and in new clause 36
I have, in effect, adopted a very broad aspect of what he suggested.
The version of new clause 36 that I proposed, which was not selected at
the end of the ping-pong on the Criminal Justice and Immigration Bill,
was about the importance of the
rights of freedom of expression and speech. However, it did not
incorporate a number of other important aspects of human rights
legislation, as the Conservative party amendments did.
I thought
that the Conservative party contribution to the debate was useful in
pointing out that freedom of religious expression is protected by human
rights legislation, not just in terms of freedom of expression but
through other aspects of that legislation as well. That, and the
comments from the hon. and learned Gentleman, explains why subsection
(2)(b) is the way it is, and not the way it was at the end of debates
on the Criminal Justice and Immigration Bill.
The object of
the exercise is to provide reassurance to citizens who
believe—for the most part wrongly, in my view—that their
religious freedom is interfered with in an unacceptable way by the
legislation that we passed in that Bill, which I strongly supported. We
can offer that reassurance without undermining the force of the
legislation in any way. I urge the Government to consider new clause 36
as a supplement to clause 58. I make it clear that I will ask for a
vote on new clause 36 only if clause 58 stands part of the
Bill.
9.15
pm
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