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Lord Bassam of Brighton: I shall first answer the noble Lord, Lord Lamont. The provisional arrest has been there since 1870. What we seek to do in the Bill is already in the 1989 legislation. I cannot quite remember what he was doing at that stage, as my memory is not absolute on such matters—perhaps he was First Secretary to the Treasury—but he was part
of the government who put that important legislation through. At that stage, he clearly would have supported it, believing it to be proper and important.The test that was applied then is exactly the same as is intended to be applied now. The judgment will have to be made by the judge as it appears to him—that is the expression used in the 1989 Act—based on sufficient evidence and information to justify the issue of the warrant. There must be sufficient evidence and information to justify the issue of the warrant. That is how the provision is intended to operate.
The noble Lord, Lord Hodgson, wanted to move from what he described as a subjective assessment to a more objective test. The Committee heard from the noble Lord, Lord Goodhart, that "reason to believe" is, in effect, that larger element of objectivity that the noble Lord, Lord Hodgson, was after. I have argued that Amendment No. 149, with which the noble Lord, Lord Goodhart, had some concerns and doubts, is in effect exactly the same and falls within exactly the same range of argumentation as Amendment No. 43.
I appreciate that Members of the Committee will not be entirely satisfied. The noble Lord, Lord Wedderburn, is of course right to argue that we should have protection for civil liberties. We feel that we have struck the right balance. The current legislation has worked extremely well. I have not had a chorus of complaints that it is faulty or defective in terms of how it operates. We simply seek to replicate it in this legislation, and make sure that it works well and effectively for the public's protection from people committing a range of very serious offences. In the main, that is where the measures will apply.
Lord Wedderburn of Charlton: I appreciate that some provisions may have been there since 1989, or 1899 for all I know, but that does not justify them if they are based on a fallacy. Is the Minister making a Pepper v Hart statement that having a "reason to believe" means having "reasonable grounds" to believe? That is a very serious matter. Do we have ministerial assurance that "reason to believe" has the same meaning as "reasonable grounds" to believe? He has already supported the noble Lord, Lord Goodhart, with whom I disagree on the point. They do not mean the same thing. If the Minister is saying that they do, we had better have a ministerial statement to that effect. We shall then know how to interpret the Bill, and it will have to be amended on Report.
Lord Bassam of Brighton: I shall not fall into the trap of making such a ministerial statement. That would not be right. I have made the argument and acknowledged the importance of the issue raised by the noble Lord, Lord Hodgson. Obviously there is a dispute in the Committee as to what is right. The noble Lord, Lord Goodhart, effectively supported the Government's position. I think that we have got the balance right. I made it clear that there had to be sufficient evidence and information and an element of
objectivity—a reason based on fact—to ensure that a warrant could be justified in the circumstances. That is our case.
Lord Wedderburn of Charlton: I am sorry, but that really will not do. If I promise not to quote the Minister when I am instructed in relevant action, so that we do not have a Pepper v Hart statement, can I first quote what he just said? I believe that he said—we shall see it in Hansard; I apologise if I am wrong—that a "reason to believe" means a reason founded on fact. That does not include a reason founded on falsity. The Minister is saying that "reason to believe" in this clause does not include reasons based on something that is not a fact—something that is wrong. The reason is based on "reasonable grounds". If it is based on fact, it is not just any old reason but a special sort of reason.
I promised not to quote my noble friend when I was instructed on the matter, but I cannot give any assurance to him that some other counsel may not do so. I am not trying to get him on the hop in some ill-judged assurance, I promise. I am asking him to give us an assurance that he will consider the simple proposition that having a "reason to believe" is, in ordinary English, not the same as having "reasonable grounds" to believe. If he says that they are the same, we had better come back to the matter to see whether the words should not be adjusted. That is a reasonable proposition to put to him, and he has not addressed the point so far, except in so far as he says that in this special case a reason means a reason based on fact.
Lord Bassam of Brighton: As ever, the noble Lord has vigorously pursued the point in his forensic way. I am not trying to flatter him; I do not need to. He makes a very good case based on his argumentation. I have set out our position very clearly. No reasonable judge would want to make a decision based on falsity, which was the proposition towards which the noble Lord tempted me. Obviously they have to base decisions on there being sufficient evidence and information to issue the warrant. That is how the provision has worked in the past, and it is how we envisage it working in future.
Lord Hodgson of Astley Abbotts: As the Minister pointed out, I began by saying that we were trying to move a subjective test to an objective test on "reason to believe" and "reasonable grounds for believing". I was disappointed that the noble Lord, Lord Goodhart, as an eminent jurist, shot my argument full of holes, and was then relieved to be supported by the noble Lords, Lord Wedderburn and Lord Lamont.
The Minister gave the game away when he inserted "shortly". Later, when he talked about "reason", he kept inserting "good". I did not pull him up at the time, but readers of Hansard will see that he kept saying "good reason". He was always trying to shift the ground ever so slightly with such words, and that is not good enough.
We simply cannot have a situation where, on half the Bill, we pray in aid the 1870 Act and the 1989 Act as holy writ, while, on the rest of the Bill, we say that that they are absolute rubbish, hopeless and that we should get rid of them.
Lord Bassam of Brighton: That is almost to suggest that no piece of legislation is beyond improvement. Of course what we are trying to do—what the Committee is trying to do—is improve the quality of the legislation. I cannot take that point.
Lord Hodgson of Astley Abbotts: On Amendment No. 149, the Minister said that we were bringing forward concepts from 1870 and wording from 1989. That was in respect of Part 2 and the provisions were therefore not capable of being improved. However, in respect of Clause 5, in Part 1, the whole history of the activity is to be swept away in favour of a completely new circumstance. We need to come back to that and, frankly, we shall do so on Report. In the Committee, there is no confidence that "reason to believe" gives sufficient safety for the important matter of a provisional arrest.
We will want to seek either a change in the Bill, or a statement of the sort that the noble Lord, Lord Wedderburn, invited the Minister to make. I quite understand that he did not want to make it on the wing this afternoon, but he will have a few weeks—perhaps even a few months—to consider whether he can make it, in which case we will no doubt feel reassured. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hodgson of Astley Abbotts moved Amendment No. 44:
- Page 4, line 4, leave out "or will be"
The noble Lord said: This is the second barrel in the gun. We are in Clause 5 on the provisional arrest again, and debating the "will be" issue. We have been through a number of the arguments on the previous group of amendments and, without rehashing them all, it seems reckless to say that someone may take a subjective decision about a future warrant, possibly hypothetical, and on that basis arrest a British citizen. We need some explanation from the Minister as to why the provision is appropriate. At the same time, we need an example of circumstances in which it would be of invaluable and proper assistance to the authorities. It is hard for me to think of circumstances in which, were our amendment accepted, a criminal could evade justice.
The summary of our position is that an arrest can now take place without a warrant, with the arresting officer having "reason to believe" that a warrant will be issued. Someone does not have to be shown the warrant unless he asks for it. He can be held for 48 hours—two days—before he appears in front of a judge. Several times at Second Reading and in Committee, the Minister has said, "We are talking about a balance. We are balancing the rights of the citizen and the need to make sure that the guilty do not go unpunished". In the circumstances where we are talking about a provisional—
7.15 p.m.
Lord Lamont of Lerwick: My noble friend keeps talking about a balance, but I do not see any balance in the Bill. Can my noble friend name one thing that the Bill does to strengthen the rights of the accused?
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