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Lord Williams of Mostyn: The Law Commission has dealt with the issue and reported in 1998. The Solicitor General in another place welcomed its report in principle. It set out the following criteria for consent provisions for the prosecution of offences: where prosecution might violate a convention right; where it might involve national security or some other international element; and where there might otherwise be a high risk that the right of private prosecution would be abused and the institution of proceedings would cause irreparable harm.
The amendment is not desirable, but I hope that the noble Lord, Lord Monson, is comforted that in the case of ill-founded, malicious or vexatious prosecutions, Section 6(2) of the Prosecution of Offenders Act 1985 gives the Director of Public Prosecutions the power to take over and discontinue a private prosecution. As the Crown Prosecution Service is directed by the DPP, he would be able to give guidelines about when charges should be brought, if he thought it appropriate. I hope that that is of assistance to the noble Lord.
Lord Monson: I am grateful to the Minister for that reply. I was not thinking of private prosecutions or of malicious or vexatious ones. I was thinking of legitimate prosecutions in cases in which technically an offence had been committed but when in practice it would be unfair or unreasonable to prosecute. However, if the Minister assures me--I think that he probably has done, but I must read his comments in Hansard--that in practice the effect of the amendment will be carried, I am content to withdraw it. I shall have to study the Minister's comments, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3, as amended, agreed to.
Clause 4 [Meaning of "position of trust"]:
Baroness Young moved Amendment No. 20:
- Page 3, line 34, leave out ("four") and insert ("five").
The noble Baroness said: This amendment was linked to Amendment No. 17. Clearly, now that Amendment No. 17 has been carried, I should have thought that "four" must include "five" because we have passed the other condition. I do not believe that there is a need for me to add anything further to the argument. I beg to move Amendment No. 20 and I hope that the Government will accept it.
Baroness Blatch: During the dinner break I was promised a piece of paper which would tell me how the Government viewed this group of amendments. I have not received it. Therefore--
Lord Bach: Before the Deputy Chairman entered the Chamber I spoke to the noble Baroness to explain which amendments the Government found acceptable and which they did not; that is, which amendments were consequential on Amendment No. 17 and which were not. I am very sorry that that was not put in writing. I believed that it would be more useful if I explained the situation orally, and that is what I did.
Baroness Blatch: If the noble Lord will forgive me, we were preparing for the next amendment. The Deputy Chairman was about to walk through the door. The noble Lord was indicating across his paper and saying this, that and the other. I did not take it all in. I should like to know which amendments the noble Lord considers to be consequential and which he does not.
Lord Bach: Perhaps I may help the noble Baroness. The Committee has passed Amendment No. 17. However, I am advised that Amendment No. 20 is not consequential on Amendment No. 17. It raises the number "four" to "five". So far as concerns the other amendments in the group, Amendments Nos. 21 and 22 stand on their own. Amendment No. 30 would be one possible fifth condition if Amendment No. 20 were passed. Amendment No. 31 would be another completely different fifth condition if Amendment No. 20 were passed. Amendment No. 34 would be yet another fifth condition if Amendment No. 20 were passed, and Amendments Nos. 35 and 36 would in themselves both be fifth conditions if Amendment No. 20 were passed. Therefore, we argue that the amendments are not consequential. In fact, the latter amendments are alternatives. It is right that Amendment No. 44 in the group is consequential on Amendment No. 20.
Baroness Blatch: I am not sure that I follow that. I understood the noble Lord to say that Amendment No. 17 stands alone and that Amendment No. 20 is not consequential on Amendment No. 17. Nevertheless, Amendment No. 20 is the paver for the ones that follow. Amendments Nos. 21 and 22 stand alone.
However, Amendment No. 20 is linked and therefore must be a consequential amendment for Amendments Nos. 30, 31, 34, 35, 36 and 40.
Lord Bach: Forgive me; I have not explained myself fully. Amendments Nos. 30, 31 and the other amendments that I mentioned are all quite separate from each other. They represent different alternative fifth conditions. They are not linked. They are all different conditions. In effect, they stand one against the other unless it is intended that they should be fifth, sixth, seventh and eighth conditions. Therefore, although they cannot even be voted on unless Amendment No. 20 is successful, if they are voted on, they will all be different, one from the other.
Lord Renton: Perhaps I may ask the noble Lord how it is that they are grouped together. As I understand it, the matter of grouping is one on which the Government must make a decision and on which they must agree.
Lord Bach: That is not right. In the end, the groupings are down to those who table the amendments. However, because amendments are grouped, it does not follow that one amendment in a group is consequential on or follows from another.
Earl Russell: I understand that Amendment No. 20 can pave one, but only one, fifth condition. Therefore, were we to vote on Amendment No. 20 and to carry it, we would pave a fifth condition. However, we would need to know which of the possible amendments listed as the fifth condition was the one that we were paving. Were the amendment to have been worded "fifth", "sixth", "seventh" or "eighth" condition, it could have paved the way for them all. However, only one condition can be fifth; at least, that is my understanding. I hope that I have interpreted the Minister and the Bill correctly.
Lord Northbourne: That was not what we were assured by the Public Bill Office.
Baroness Blatch: That was not what we were advised by the Public Bill Office; nor was it a courtesy offered to us by the Minister when we voted on Amendment No. 17. I believe that many noble Lords left this Chamber believing that they had voted for these amendments. They will learn to their horror that they had not.
Before I decide what to do about Amendment No. 20, will the noble and learned Lord answer the question that I posed in relation to Amendments Nos. 21 and 22? I explained that I believed it to be important that protection should be offered to a young person who was normally resident at a home but who was farmed out to a bungalow, such as one referred to in the Bryn Alyn case, or somewhere else and who was not technically in that particular institution at a given time. It would be helpful to have from the noble and learned Lord an answer to my interpretation of what I believed my amendment meant.
Lord Williams of Mostyn: We are going back a long way in our debate, but I am happy to do it. The noble Baroness's concern is not well founded. A young person may be resident in an institution, even if he is temporarily elsewhere. Plenty of precedent exists for such a situation; for example, in immigration or benefit law.
Baroness Blatch: The wording on the face of the Bill as it stands is that protection applies only if the person in question is resident. Is the noble and learned Lord saying that someone who is normally resident but at a particular time has either absconded or is in a place other than the institution would receive protection under this particular clause in this particular Bill?
Lord Williams of Mostyn: If I am resident at my home, I remain resident at my home, even if at the weekend I stay in a hostel or a hotel elsewhere. I am resident at my home. Therefore, a person may well be resident in an institution even if temporarily he is somewhere else.
Baroness Blatch: Perhaps I may use an analogy. In an insurance claim one can be compensated for the loss of a piece of equipment or jewellery if it is under lock and key in a residence. However, if the item is lost when one is travelling en route, some insurance companies will not meet a claim for compensation simply because at the time of the incident the item was not where it should have been. For the purposes of Pepper v. Hart it is important that I get this absolutely right. Is the noble and learned Lord saying that my concern is unfounded?Is he saying that if someone has absconded and an offence takes place or someone is somewhere else other than the place where he is normally resident, he is still protected under this particular provision which says "is resident in"? If the person has absconded, he could be resident, albeit temporarily, somewhere else.
9 p.m.
Lord Williams of Mostyn: I cannot make it plainer. The noble Baroness is confusing two concepts. She uses the description "in a home". That is not what the Bill says. "Resident in a home" is a legal concept and residence in a home continues even when the individual is not physically in the home.
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