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The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I respectfully agree with the noble and learned Lord, Lord Donaldson of Lymington. In doing so, however, I wish to tell the noble Lords, Lord Campbell and Lord Thomas of Gresford, that I understand the concerns that they have expressed. Both in Committee and at Report, we discussed at great length why the new Clause 5 offence had been crafted in this way. The mischief that we seek to address is the very situation when it is not known which of the participants committed the offence. We crafted this offence to right a wrong that has been incapable of being addressed for some time.
I respectfully adopt the analysis of the noble and learned Lord, Lord Donaldson. Although I empathise with the sentiments expressed by both the other noble Lords, I cannot agree with them. To insist that the basis of the conviction must be known would defeat one of the main purposes of the offence. It would render prosecution and conviction impossible and would not enable us to crack the "which of you did it?" cases—the very ones involving such closed groups that we are determined to crack. Indeed, we believe that we have a duty to the victim to close this gap as far as possible.
I am sure that I need not remind noble Lords that we began by trying to create a package of measures to help us deal with the very same "which of you did it?"
problem. We are dealing with a small group of people who must have committed manslaughter or murder, but there is insufficient evidence to confirm which one committed the act that caused the death. Sadly, in many of these cases, a young child has died and the family choose, for their own reasons, to remain silent or blame each other. That is not acceptable.We had a very long debate about this matter on Report. I remind your Lordships that all the arguments are set out very fully in cols. 1048 onwards of the Official Report for 9 March. This amendment, although well intentioned, does nothing other than wreck new Clause 5. If this amendment were passed, Clause 5 would fall. I hear what the noble Baroness, Lady Anelay, says about accepting the need for the provision, but if one accepts the need for Clause 5 one cannot support the amendment. The amendment would be fatal to Clause 5, which would fall.
Lord Campbell of Alloway: My Lords, I thank all noble Lords who have spoken in this debate. So far as the Minister is concerned, this is not the first occasion on which it has been said that the clause was crafted—not drafted—so the amendment is not acceptable, as if the crafting involved the cutting of a fine jewel with minimal fault and was a sort of apogee of artistry. This Bill is not like that. We accept its general intent but the drafting—not the crafting—has already suffered a series of government and opposition amendments, including amendments to the Long Title.
This amendment is said to have been put forward on the Floor of the House as a wrecking amendment, but it is no such thing. It may render it a little more difficult to achieve what could well be an unjust objective. There is a presumption of innocence. Even the householders have a presumption of innocence. The Crown still has to prove its case even if it does not have to say which case it wants to prove. This is a totally one-off, novel situation.
In answer to the noble and learned Lord, Lord Donaldson of Lymington, I cannot remember winning any case in which I appeared before him. I always had to go to Lord Denning in the Court of Appeal, and lost on only one occasion. I understand his analysis, but I have never been very comfortable with it.
We remain friends of course, but we simply do not agree on legal analysis and never have done. So nothing which should emanate from the eminence of the Cross Benches on this occasion from the noble and learned Lord surprises me. However, when he stuck on the interpretation of the two alternatives, the noble and learned Lord totally missed the essential point of my argument, which was that there were three bases for conviction. That was seized on by the noble Lord, Lord Thomas of Gresford. I am grateful to him because I have not sought, and I never do, the support of anybody for this amendment. I am very heartened that he should have seen the fundamental problem for the judge, which has been totally ignored by the noble and learned Lord.
This is not a time for further argument; it is certainly no occasion for that. However, there is no assurance that the accused shall know the case he has to meet; there is no assurance that he shall know of what he is being convicted. In my book, that is contrary to the fundamental principles of natural justice and I wish to take the opinion of the House—win, lose or draw—because I believe that that is the right way to go about it.
12.02 pm
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 145.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Biffen, L.
Brougham and Vaux, L.
Campbell of Alloway, L. [Teller]
Carrington, L.
Cope of Berkeley, L.
Eden of Winton, L.
Feldman, L.
Geddes, L.
Gilmour of Craigmillar, L.
Hayhoe, L.
Hylton, L.
Jopling, L.
Laird, L.
Lang of Monkton, L.
Mowbray and Stourton, L.
Northesk, E.
Palmer, L.
Park of Monmouth, B.
Pilkington of Oxenford, L.
Plumb, L.
Powell of Bayswater, L.
Renton, L.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Sharples, B.
Shaw of Northstead, L.
Stoddart of Swindon, L.
Thatcher, B.
Waddington, L.
Wade of Chorlton, L.
Windlesham, L.
Wolfson, L.
Acton, L.
Addington, L.
Ahmed, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Ashton of Upholland, B.
Avebury, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Boothroyd, B.
Boston of Faversham, L.
Bradshaw, L.
Bridges, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chan, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
Dahrendorf, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dixon, L.
Donaldson of Lymington, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Ezra, L.
Falconer of Thoroton, L. (Lord Chancellor)
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Goodhart, L.
Goudie, B.
Greaves, L.
Greenway, L.
Grocott, L. [Teller]
Hamwee, B.
Harris of Richmond, B.
Harrison, L.
Haskel, L.
Hayman, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hooson, L.
Howarth of Breckland, B.
Howe of Idlicote, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
King of West Bromwich, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Lipsey, L.
Listowel, E.
Livsey of Talgarth, L.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mar and Kellie, E.
Marsh, L.
Masham of Ilton, B.
Massey of Darwen, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Mitchell, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Nicol, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
Patel of Blackburn, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Razzall, L.
Redesdale, L.
Rendell of Babergh, B.
Richard, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sharman, L.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Stone of Blackheath, L.
Strabolgi, L.
Strange, B.
Symons of Vernham Dean, B.
Temple-Morris, L.
Tenby, V.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tomlinson, L.
Tordoff, L.
Triesman, L.
Turner of Camden, B.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williamson of Horton, L.
Wilson of Tillyorn, L.
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
12.12 p.m.
Lord Monson moved Amendment No. 2:
- Page 3, line 24, leave out paragraph (b).
The noble Lord said: My Lords, when at Report stage we debated subsection (3) of Clause 4 as it then was, and subsection (4) of Clause 5 as it now is, I moved an amendment that would have slightly improved the grammar of the eccentrically worded paragraph (b), to make it at least a little more comprehensible to those who will have to interpret it in the future. However, it became evident in the course of that debate that the confusing paragraph (b) is not necessary, and that therefore by far the better course would be to delete it all together.
In the course of the Report stage debate, the Minister confirmed my tentative interpretation of the Explanatory Notes; namely, that unless the under-16s are the parents of the child, those under 16 at the time of the offence will be totally, unconditionally exempt from prosecution whatever the circumstances. In other words, even if the under-16s are physically strong enough and mentally tough enough to intervene to try to stop the crime, they will be under no legal obligation to do so and accordingly could never be prosecuted.
I suppose that it could be argued that paragraph (b) provides some sort of philosophical justification for paragraph (a), but it is not normal to pad out Acts of Parliament with philosophical explanations; otherwise the statute book would be three times as bloated as it already is. Those sorts of explanations are the job of the Minister in charge of the Bill, assuming the Bill is a government one, at Second Reading and as and when necessary at subsequent stages of the Bill, together of course with the aid of the Explanatory Notes accompanying the Bill.
Having said that, within the past three minutes, literally, I have received a letter from the Minister which seems to refute some of what I have to say. She argues that paragraph (b) is necessary, and no doubt she will come to that when she replies. She argues that despite the apparent wording of paragraph (a), there might be circumstances in which someone could be prosecuted once they are 16 for something that they did not do when they were not yet 16. That is not the way that I look at paragraph (a). However, I am not a lawyer and she is; she obviously has the upper hand here.
Anyhow, if the provision is indeed necessary to prevent an unjust prosecution then perhaps it had better stay in, although I should hope that the other place would tidy up the wording and the grammar to make it easier to understand and less confusing. However, if it is not necessary, it is surely in the public interest to remove anything that is redundant and possibly confusing. I beg to move.
12.15 p.m.
Lord Renton: My Lords, Clause 5, as I said at an earlier stage of the Bill, is unacceptably drafted. I do not like this method at all. I think that the way in which it is being used will cause confusion. Amendment No. 2 helps to simplify the drafting a little. I hope that the Government will regard it with sympathy.
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