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Lord Peyton of Yeovil: My Lords, I rather wondered why the Attorney-General was on the Front Bench and whether it suggested that the noble and learned Lord, Lord Falconer, was not capable of making these points. As the Attorney-General continued, however, I understood that he was trying to tell us what should have been said in another place about why they would not accept your Lordships' amendment.
I am left wondering on a point not so much of law but of good mannerswhich do not always carry the day in another place. I wonder why those in the other place should have included as a reason for not accepting your Lordships' amendment the statement,
I very much hope that the Attorney-General will be able to explain. He has already explained the legal reasons for not wishing to accept your Lordships' amendment. However, if those in another place had to reject it, I think that they might have done so in slightly less rude and abrasive terms. Perhaps the Attorney-General will apply his mind to that.
Lord Lloyd of Berwick: My Lords, I follow very much what has just been said by the noble Lord, Lord Peyton. I am not so well versed in the procedure of this House as other noble Lords, certainly not with the procedure that should be followed when this House is considering amendments passed by this House but disagreed to by the other place. In the Companion, at paragraph 6.153, I read that the Commons are required to give their reasons for disagreeing with a Lords amendment. That does not surprise me in the least. I have spent my life in the law, and it is elementary that all courts, high or low, are required to give reasons for their decisions, simply so that the parties can know where they are. That duty to give reasons is part of what we understand by "a fair trial".
As has been said on many occasions, the reasons given must be proper reasons. They must be adequate and, above all, they must be intelligible. That applies not only to courts required to give reasons; it applies also to Ministers who are required to give reasons and, indeed, to all who are required either by law or by custom to give reasons for their decisions. I assume that it applies equally to the Commons when they are giving their reasons for disagreeing with our amendments.
So one looks to see what the reasons are for disagreeing with Amendments Nos. 110 and 113. But what does one find? It is said that to make "exceptions"which are the exceptions covered by the two amendmentswould be "inappropriate". That is a word that is always being used in many different contexts. It seems to me a word of very little meaning. However, whatever it means, it certainly does not import a reason for disagreeing with the Lords amendments. It is a conclusion; it is not a reason. It means, "We do not like the Lords amendments and we therefore propose to disagree with them". If one is permitted to quote Latin in this Houseone is not allowed under the Woolf reforms to quote Latin in the law courts any moreI would remind noble Lords what was said, in Roman times, by Juvenal: Sic pro ratione voluntas; let my will stand in place of reasoned judgment. That appears to be the line being taken.
We are often told that this House performs a valuable function as a revising Chamber, and I believe that to be true. It is all the more important, as has also been emphasised, that we should perform that function as scrupulously as we can when we are faced every year with a new flood of criminal legislation. I cannot remember whether at the last count that amounted to 10 new criminal justice Acts in as many years. I may be out of date; there may be more.
As it happens, I am strongly in favour of the Proceeds of Crime Bill. I have made that clear from the very start. However, Part 5 contains something entirely new; that is, provisions which in my opinion are capable of causing grave injustice as well as provisions which are clearly incompatible with the Human Rights Act. It was to eradicate those injustices that I drafted and moved Amendments Nos. 110 and 113. I am afraid that I explained my reasons in four speeches in your Lordships' House, each of which was probably much too long. In the course of the Third Reading debate your Lordships ultimately decided by a majority of 149 to 132 that those reasons were sound. They have now been disagreed to by the Commons without any reasons being given, save only one reason which is wholly unintelligible. I find that profoundly unsatisfactory and not the way in which one would have thought that communication should be conducted between the two Houses.
I suggest that the proper course now is for this House to send back Amendments Nos. 110 and 113 with a request that they be reconsidered, or perhaps I should say considered for the first time, and, if rejected, or if disagreed to, that proper intelligible reasons be given which we can then consider. We cannot consider the reasons today because they are not available. We can guess what they may bewe have heard the Attorney-General on three or four occasions so we may guess thembut the reasons we want to be given are the Commons reasons.
It may be said that I ought to have put down my thoughts in the form of a Motion. I do not know whether or not I should have done so. I am afraid that I only saw the Motion late last night but the circumstances in any event are peculiar because the noble and learned Lord's Motion is itself clearly defective. It asks us not to insist on an amendment to which the Commons have disagreed for certain reasons. However, when one examines the matter, those reasons are not provided. For those reasons I shall vote against the Motion.
Viscount Bledisloe: 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
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.
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