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Lord Marlesford: My Lords, does the Minister recognise that the more information comes out about the Army’s Bowman radio system, the more unsatisfactory it looks? Not only is there the basic problem of the infantry sets being too heavy for them to carry with their other equipment, but there is more and more evidence that the software is not working.

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Will the noble Lord now put someone into the Ministry of Defence who is in total charge of Bowman, reporting directly to him to get the right results from this vital bit of equipment?

Lord Drayson: My Lords, I understand the noble Lord’s concern. I do not accept the picture that he paints of the Bowman system, which has appropriate management that reports to me as the Minister responsible for the equipment. The issues to which he refers relate to the complexity of fielding the Bowman system and the fact that it needs to be continually upgraded in the future. Much as we are used to loading computer systems with the latest software—version 2, version 3, version 4—this will be the future of communications systems in our Armed Forces. It is part of the development of modern technology.

The Countess of Mar: My Lords, the noble Baroness’s Question asked whether Her Majesty’s Armed Forces have all the equipment that they need to minimise casualties. As many of the casualties are suffering from PTSD, what preparation do Her Majesty’s Armed Forces have to protect them from the consequences of what they see and feel in the field of battle?

Lord Drayson: My Lords, I assure the noble Countess that, alongside the investment that we put into force protection equipment—physical assets such as body armour and so forth—we invest equally in medical care. Some of the innovations that we have used, such as technologies to control heavy blood loss, have made a real difference to outcomes and survival rates. Mental health is also very important. We have learnt that the key to that is giving soldiers the opportunity to decompress together after deployment on operations. This is something that they now do regularly in Cyprus and on other bases, and we have found that this has worked effectively.

Iraq: Death Penalty

3.22 pm

Lord Faulkner of Worcester asked Her Majesty’s Government:

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Lord Triesman): My Lords, Amnesty International’s report on the increasing use of the death penalty in Iraq is of the most serious concern. The British Government are firmly against the use of the death penalty in any circumstances and in all cases. Since the Iraqi Government reintroduced the death penalty in 2004, the United Kingdom, together with the European Union, has repeatedly raised our policy of opposition to the death penalty at the highest level, including with the Iraqi president and prime minister.



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Lord Faulkner of Worcester: My Lords, I warmly welcome my noble friend’s reaffirmation of the Government’s opposition to the use of the death penalty in all circumstances and his endorsement of Amnesty International’s report. Does he agree that the report’s most damaging findings, apart from the fact that Iraq is now executing more people than any other country, with the exception of China, Iran and Pakistan, are that many confessions are being secured under torture, that the accused are not being given access to defence lawyers, and that a lot of people are being made to confess on television and are then identified in court by witnesses who have seen them do that? Are we not entitled, as one of the guarantors of the Iraqi regime, to ensure that a rather better standard of criminal justice operates there? I hope that my noble friend will reiterate and reinforce the points that he has made to the Iraqis.

Lord Triesman: My Lords, the points that I have made are being reiterated regularly and frequently. Perhaps I may say that my noble friend’s figure is a per capita figure rather than an absolute figure. When we discover cases of abuse in detention, we raise them immediately with the Iraqi authorities. We urge them to act to bring those responsible to account and to prevent such abuses from recurring. In our view, there is no evidence that access to defence counsel is being systematically denied, but that is a matter that we would always investigate and draw to their attention. We are also providing practical support to local and national authorities to build their capacity to ensure that minimum human rights standards are always met.

Lord Wallace of Saltaire: My Lords, can we have an honest assessment of just how much influence the British Government any longer have over the Iraqi Government? I am not quite clear of our status and links now that we have withdrawn from three of the four provinces for which we were previously responsible. Yesterday, I noted from the report by the Secretary of State for Defence that we have resumed patrolling in the Gulf. However, the Iraqi Government appear to listen mainly to the US Administration, who as we know are actively in favour of capital punishment. I recall a senior member of the Bush Administration saying that they were in favour of more capital punishment. Do the Iraqi Government listen to us on these or other matters?

Lord Triesman: My Lords, the Iraqi Government most certainly listen to us, but they do not always agree. Even if I thought that they were not listening as attentively as I or this House would wish, I would be determined to continue to make the points that I have described. Capital punishment, torture and abuse are unacceptable, as are convictions secured by torture and abuse. We will continue making that point.

Earl Attlee: My Lords, given the situation described by the noble Lord, Lord Faulkner, why do we continue to provide military support to the Government of Iraq?



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Lord Triesman: My Lords, the answer to that is plain in a wider context. We are trying to secure a peaceful and stable outcome in Iraq, whatever the difficulties that there are. In a country that was ruled by an absolute dictator who, over the years of his power, managed through his own state apparatus to butcher what is thought to be in the order of 400,000 people, there are bound to be grave difficulties. That is the nature of the job that has been undertaken.

Lord Foulkes of Cumnock: My Lords, will my noble friend elaborate on the point about per capita figures? Will he confirm that the absolute numbers in China, Pakistan, Russia, Iran and the United States are higher than those in Iraq? Sometimes some people—not my noble friend Lord Faulkner—raise the question of Iraq for reasons other than concern about capital punishment.

Lord Triesman: My Lords, I have sometimes detected that. Perhaps I may make the point about the figures completely clear. Footnote (2) of the Amnesty International report states:

on that per capita basis—

The absolute figures in the countries with which comparisons have been made are very much higher.

The Lord Bishop of Chelmsford: My Lords, I am sure that we all welcome the clarity of the Minister’s response. Does he accept that, in a culture in which human life is treated with such contempt and there are such extraordinary levels of loss of life, this is deeply corrupting to the whole of Iraq’s political culture? It is like a disease that spreads. Does he also accept that it is rather easier to dismantle human values than to reconstruct them?

Lord Triesman: My Lords, it is hard to create and sustain human values in the way that we would wish. However, I say to the right reverend Prelate that, if you look over the savage history of that country, you will see that respect for human values and lives was not its foremost characteristic. It is not surprising that we are still struggling with the legacy of that and with some of the things that have happened in the most recent past.

Lord Howell of Guildford: My Lords, although I agree fully with the concerns of the Minister and indeed of the noble Lord, Lord Faulkner, is there not at least a positive sign in that the Iraqi Government have said that the reinstatement of the death penalty, which they introduced themselves, is only temporary during the present hideous security situation, with slaughter on all sides? Ought we not to draw some encouragement from that? Further, does the Minister agree that we should concentrate entirely on ensuring that trials are not rushed, biased or coloured by any kind of rough justice, but are fair and uphold proper due process?



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Lord Triesman: My Lords, I strongly agree with the tenor of those questions. That is why we are putting resources into the training of the judiciary and of senior lawyers involved in cases of this kind. There are real reasons why we should be optimistic that the period during which the death penalty is being used to this extent is passing, not least the fact that the president of Iraq is himself opposed to the use of the death penalty. The prime minister of Iraq takes a different view, but powerful forces are pulling in the direction of ending the death penalty.

Human Tissue and Embryos Bill: Joint Committee

3.30 pm

The Lord President of the Council (Baroness Amos): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on any draft Human Tissue and Embryos Bill presented to both Houses by a Minister of the Crown and that the Committee should report on any draft Bill by 25 July.—(Baroness Amos.)

On Question, Motion agreed to; and a message was sent to the Commons.

Serious Crime Bill [HL]

3.31 pm

Report received.

Clause 1 [Serious crime prevention orders]:

Lord Dholakia moved Amendment No. 1:

The noble Lord said: My Lords, we had a lengthy discussion on these amendments in Committee. We said then that we would listen to the Minister’s arguments and come back on Report. Needless to say, we are still concerned about serious crime prevention orders, which are probably the most contentious proposal in the legislation. We have been assisted in our amendments by Liberty, which objects in principle to the imposition of serious crime prevention orders on people who have not been convicted of any crime. We doubt seriously whether they will work in practice and consider them to be an unacceptable legal shortcut that goes against basic British values like the presumption of innocence and the right to a fair trial. We seek to address some of the most unjust and dangerous aspects of this proposal.

At this point, I want to say how delighted I am that the noble and learned Lord, Lord Lloyd of Berwick, has joined us with his Amendment No. 36A, which is grouped with our Amendments Nos. 1 and 2. Further, this morning I received the relevant report of the Joint Committee on Human Rights, and I may use some of its observations. The Minister will have an opportunity to comment on what the committee had to say.



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Amendments Nos. 1 and 2 clarify that in serious crime prevention order applications, the criminal standard of proof will apply when establishing whether the conduct justifying the orders took place. They would not affect the standard of proof applied when a court determines whether an order would protect the public. What is our argument? It is a key principle of the English legal system that more rigorous standards are applied to criminal trials than to civil proceedings. A civilised and democratic state can justify using greater force to punish an individual and restrict their rights only if it has been established beyond reasonable doubt and on the basis of reliable evidence that the individual has committed an offence deserving of such punishment. The Government have insisted that these orders are not punitive but preventative, and that civil rather than criminal fair trial standards are therefore appropriate.

Neither Liberty nor those of us on these Benches are convinced. The orders would impose severe restrictions on individual rights and freedoms, including a restriction on with whom a person can communicate and where they can live, work or travel. They would enable criminal sanctions to follow from doing something that was not itself a crime, and would attach the stigma of serious criminality to their recipients. It is difficult to see how such severe restrictions on an individual’s freedom of movement could be characterised as anything but punitive. No amount of dressing up of the language will convince us otherwise.

For that reason, the amendments would make it clear in the Bill that the criminal standard of proof applies and requires the criminal rules of evidence to be adhered to. We believe that the appropriate standard of proof to apply in establishing whether the conduct justifying the orders has occurred should be the criminal test of “beyond reasonable doubt”, rather than the classic lower civil test of “on the balance of probability”. The Government and the courts appear to agree with this. I quote the noble Baroness, Lady Scotland, when she indicated at Second Reading that in practice the courts are likely to use the version of the civil standard that is similar to the criminal standard:

She did not suggest that this was a concern for the Government. The only difference between us and the Government on this point, therefore, seems to be whether this should be stated in the Bill or left to judicial discretion. We see no reason why Parliament should not make the applicable standard clear in the Bill and thereby increase legal certainty.

I now come to the report of the Joint Committee on Human Rights, published this morning. The committee makes two major observations and they are very useful points which support the amendments we have put forward. It says:



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It goes on to say:

This issue will not go away. There is still time before Third Reading to resolve it, and I look forward to the Minister’s response. I beg to move.

Lord Lloyd of Berwick: My Lords, in Committee, the noble and learned Lord, Lord Mayhew, who I am glad to see is in his place, described the amendment as being of great importance, and he was surely right. It is important because a person should not be subject to the prohibitions and restrictions on their personal freedom which are set out in Clause 5, unless the case against them is established on a criminal standard of proof.

I listened very carefully to the Minister’s reply in Committee and I have read it in Hansard. She made two main points; first, that in civil cases, the more serious the allegation, the higher the standard of proof. As a general statement, that is true. She said that the civil standard would suffice here because it can come very close to the criminal standard—so close as to be virtually identical. But, with great respect, that argument will not do. This very point was decided unanimously by the House of Lords in the case of McCann. It concerned an ASBO. The House of Lords did not say that in an ASBO case the standard of proof came very close to the criminal standard of proof or was virtually identical to it; the House of Lords said that it was the criminal standard of proof. That is the purpose of the amendment.

The Minister invited me to read again the McCann case lest I had misunderstood it. I have done so, but I repeat what the noble and learned Lord, Lord Hope, said in the case at page 825, 2003 1 Appeal Cases:

The noble and learned Lord, Lord Steyn, said at page 812 of that report that magistrates,

That could hardly be clearer. Although the Minister’s arguments are often very plausible, she cannot plausibly argue that the standard of proof should be less in serious crime cases than in ASBOs, nor surely can she argue that we should depart from the law

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so recently laid down unanimously by this House in McCann. I suggest with diffidence that it is sometimes helpful in legislation to call a spade a spade. If the standard of proof is going to be the criminal standard, as it should be, let us call it just that.

The Minister’s second argument in Committee was that there are two separate stages under Clause 1. At stage 1, the court must be satisfied that the person is involved in crime; at stage 2, the court must have reasonable grounds for making the order. She is right: there are two separate stages. As she pointed out, stage 2 involves a question of judgment and it does not make sense, when one is concerned with a question of judgment, to talk about a standard of proof, whether civil or criminal. I agree. However, the amendment does not touch on stage 2; it touches only on stage 1. It is all the more important that, at stage 1, the criminal standard of proof should be applied because of the extraordinary width of the definition of being involved in serious crime contained in Clause 2(1)(c). I have never seen anything like that provision in a criminal or quasi-criminal statute. I am very doubtful whether it would pass the test of legal certainty. But no amendment to Clause 2(1)(c) is proposed, so I say no more about it. On the question now before the House, I submit that the case made out for the criminal standard of proof is overwhelming.

3.45 pm

Baroness Anelay of St Johns: My Lords, the report of the Select Committee on the Constitution set out clearly the challenge that faces the House today in our scrutiny of Part 1. It said:

That is what has guided us on these Benches in how we have approached our consideration of Part 1. In these amendments we reach the core of the objections of the noble Lord, Lord Dholakia, to Part 1.

I have always made it clear that it is vital that the Government—any Government, indeed—should protect the British public from those who do everything they can to encourage serious organised crime, profit from it and yet ensure that their own hands do not appear dirty in public. They keep in the background but profit from it by millions and billions of pounds and cause destruction to people’s lives. We know that it is difficult to take measures to protect the public from people like that, but we also know that we must try to do so. However, the methods that we adopt must be proportionate and effective—the two go together—without undermining our own system of law and justice.


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