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The first is what might be described, in the light of some comments already made, as the elephant in the room—I refer to the intention to abolish the common law offences of blasphemy and blasphemous libel, which was announced by the Government in a debate on an amendment at Report stage in the other place. It would not be appropriate to enter into substantive arguments now but it would be strange if no mention of it were made from this Bench. The noble Lord, Lord Henley, referred to statements made by the Church of England’s Archbishops. On his recent visit to Durham, the most reverend Primate the Archbishop of Canterbury said that the Church of England would not resist this measure, given the awkward and not very workable legacy of the law. This will have come as no surprise to those who heard the debate on the Racial and Religious Hatred Bill in November 2005. The former Bishop of Oxford, now happily among us again as the noble and right reverend Lord, Lord Harries of Pentregarth, indicated in answer to the proposal of the noble Lord, Lord Avebury, that the church’s opposition to abolition rested on issues of timing rather than principle. I say today that we welcome the consultation that the Government are undertaking before introducing their amendment, to which the Minister referred in his opening, supportive remarks about the Church of England. The Church of England itself is consulting other churches and religious bodies, and we hope the outcome of those consultations will be revealed shortly.

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Before moving on, I would like to correct a common misapprehension about the law of blasphemy. It is often said that it protects only the tenets of the Church of England, but that statement is based on a faulty reading of case law. The judgment of the Administrative Court in the Jerry Springer case on 5 December 2007 usefully confirmed that the factual basis of the offence includes,

“contemptuous, reviling, scurrilous and/or ludicrous material relating to God, Christ [or] the bible”.

The law therefore protects the basic tenets and scripture of the Christian religion. I mention that because it means that response to the proposal for abolition is not a matter for the Church of England alone but for Christian denominations and groups more generally, although of course, as I have already indicated to your Lordships, we are playing a central part in all those discussions at the moment. Incidentally, I assure the Cross-Benchers—in particular, in this centenary Week of Prayer for Christian Unity—that the Christian churches together hope to speak on this matter with one voice.

My second topic also relates, as I said, to an amendment put forward by the Government. I refer to the creation of a new offence of incitement to hatred on the ground of sexual orientation, which is contained in Clause 126 and Schedule 26. I want, first, to enter a caveat about the principle of legislating to protect particular groups, not because I believe that they do not deserve protection—they do—but simply because we already have a battery of public order provisions which apply to everyone. Sections 4A and 5 of the Public Order Act 1986 prohibit words, behaviour or displays of written material intended to cause harassment, alarm or distress, or which are heard or seen by a person likely to be caused harassment, alarm or distress. We must of course hold to the principle that it is wrong to threaten or stir up hatred against anyone on any ground.

That said, we on these Benches recognise that members of sexual minority groups may indeed be subject to all kinds of threatening and hate-filled behaviour based on irrational prejudice. The report of the Select Committee on religious offences pointed out that incitement has often been criminalised,

“as a reaction to the perception that a novel social mischief has arisen or that an existing mischief has become particularly damaging to society”.

Whether that is now the case may be debated. Paradoxically, the demand for such a law may reflect society’s increasing intolerance of hostility to sexual minorities but, by that token, it may be less necessary than it once was.

If there is to be a new offence, it raises some of the dilemmas with which we became familiar in the debates over religious hatred. The churches are concerned that the offence should clearly exclude from its scope the expression of traditional Christian teaching about human sexuality, marriage and the family, and consequent criticism of particular forms of behaviour or lifestyle. Frankly, freedom to advance those convictions is part of life in a free society, and it should be distinguished

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from freedom to threaten or stir up hatred against people with whose behaviour and lifestyle Christians and others may disagree.

The Church of England and the Roman Catholic Church made a joint submission to the Public Bill Committee in the other place, expressing support for the new offence, on the condition that it clearly distinguished between incitement and controversial statements of opinion. They thought that this condition would probably be satisfied by the requirement of intention to stir up hatred, coupled with the restriction of the offence to threatening, rather than abusive or insulting behaviour. They raised the question of whether there should also be a provision to protect freedom of expression, similar to that introduced by the noble Lord, Lord Lester of Herne Hill, into the Racial and Religious Hatred Bill. As noble Lords know, such an amendment was moved and defeated in the other place.

I very much hope that the discussion on this proposal will continue as we reflect on the balance—and it is a delicate balance—between protection of the vulnerable and freedom of expression, and ask ourselves whether this measure has got that balance right.

4.26 pm

Baroness Kennedy of The Shaws: My Lords, I find myself returning to a theme that I have addressed a number of times in this House: the rule of law and what it means in contemporary society. The law is sometimes misunderstood by those who govern us; they often forget that the law is the bedrock of our nation. It tells us who we are and what our values are. It has a huge impact on our lives. I am afraid that, too often, Governments—and I mean that in the plural—see the law as an instrument to be used to secure seemingly sensible outcomes, when in fact the law is a fabric, where one thread pulled can cause unravelling well beyond what was anticipated by Ministers. Sometimes, short-term populist gains blind those who govern us to the long-term consequences of tinkering with well established legal principles.

I share the concerns of other noble Lords. I am concerned about the youth justice proposals, about the expansion of prison places without consideration of the Corston recommendations, and about the abandonment of due process in the violent offender orders. In relation to self-defence, the law that we have is perfectly adequate, and I am interested to see that we are replacing an objective test of what an accused believed was necessary, and moving to a subjective test. The very argument for the importance of introducing objectivity was the reason for changing our test in relation to rape. We decided that a subjective test of what an accused in a rape case believed was not a good test, and we should make it objective, using as our allegory what was done in relation to self-defence.

There are many myths about the criminal justice system. There is the myth that large numbers of criminals are getting away with it when, in fact, the vast majority of people arrested plead guilty or are found guilty. There is the myth that judges are soft touches who rarely send people to jail, which has never been my

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experience. Only last week we were presented with the new myth that murderers are getting bail, which is, again, far from the truth. Then we have the myth that people get off on appeal because of a technicality. I regret that the Government have drawn on that myth in introducing Clause 42. Appeals are rarely successful. The majority of criminal appeals are filtered out; they go in front of a single judge as a paper exercise, then in front of a court as an application for leave to appeal. Legal aid is often withdrawn from appeals that are hopeless. When an appeal goes in front of the court and eventually succeeds, that is invariably for a very good reason. Winning an appeal is hard. The judge says, “Lady Kennedy, the jury saw your client, it heard his story, and the verdict would have been no different if it had known about the matters of which you complain”. The test applied by the Court of Appeal is: was the verdict rendered unsafe?

We must remember that in a just system of law, things matter beyond the individual case. The criminal appeal process exists not only to ensure that the innocent are not punished but to uphold the rule of law. The function of criminal appeals is not just to see that in a given case the right result is obtained, but to ensure that the law, rules of evidence and procedure are respected and applied. Anything else would act as an incitement to undermine procedure. It would give a green light to police officers, for example, to take shortcuts. It sends out powerful messages to those who act on behalf of the state as to how to conduct themselves. In extreme and unusual circumstances the Court of Appeal will quash convictions that are tainted by grave breaches of the law or serious failures to apply the rules, irrespective of the factual guilt or innocence of the accused.

I emphasise that it is rare when that is done, but when it is done it is because of the belief we share that a criminal conviction is acceptable only if it carries moral authority. A decision reached in defiance of the basic rules that society prescribes for criminal investigations and for trials does not carry moral authority. If convictions can be upheld where the authorities have flouted fundamental tenets, the self-restraint that the authorities are expected to show in keeping to them will be undermined. It will send a signal that breaking or bending the rules can pay. Those who enforce the law should obey the law and not benefit from breaches or irregularities.

Few in this House would argue with the noble and learned Lord, Lord Bingham, who, in the case of Randall, said that,

“it is not every departure from good practice which renders a trial unfair ... But the right to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable, that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty”.

The concern that I and many of us involved in the law have is that we are changing the basis on which our Court of Appeal functions. We are interfering with the rule of law.

Clause 105 is, again, about interfering with important principles within our system. It will extend the powers for non-legally qualified persons to act as prosecutors

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in the magistrates’ courts. We are allowing efficiency gains, which are all to the good in most circumstances, but which should never outweigh fair trials. To allow the prosecution of a case in the magistrates’ court by unqualified staff, where there might be a loss of liberty or a conviction for dishonesty affecting someone’s life fundamentally, would, we must agree, be quite wrong. I hope that the Government will look again at some of those changes.

Law is the glue that holds together the constituent parts of our society, and it is a civilising force. As soon as we forget that, we run serious risks. Law is what makes the centre hold—to refer to my favourite poet, Yeats. It is the mortar that fills the gaps between people and communities. A just system of law is the invisible substance which sustains social well-being, social and moral consensus, and mutuality of interest and trust. It is built around principles. The principles of the rule of law should not be subject to change without great care. If we interfere with those principles which underpin law, fritter them away and pick them out of the crannies of our political and social architecture, restoration becomes impossible. Therefore, I will be asking the Government to think again about a number of the changes in the Bill, which again are interfering with those well established principles which we should hold dear.

4.35 pm

Lord Mayhew of Twysden: My Lords, I follow the noble Baroness, Lady Kennedy, with admiration and complete agreement. There has already emerged in this debate more of a theme than can be detected in the Bill. That theme is, in fact, that the Bill has no theme. I call to mind those old ironmonger shops in the country, which used to be crammed and cluttered with an astonishing collection of items; so prolific were they that they were frequently suspended from hooks on the ceiling, nails in the walls or even less usual projections. Where they were to be found and why they were to be found there would be apparent only to the proprietor, and not always to him.

This Bill puts me nostalgically in mind of those shops, whose chaotic arrangements seem now to have made them almost extinct. In the Bill, dangling from the same hook—it is labelled Part 7, “Criminal law”—we find provisions relating respectively to the protection of nuclear facilities, loitering for the purposes of prostitution, hatred on the ground of sexual orientation and imprisonment for unlawfully obtaining personal data. Part 11, on “Policing”, provides a nail which is shared between provisions for “Police misconduct and performance procedures” and provisions for securing that police authorities may themselves be inspected.

Lest we were to doubt whether this has anything to do with criminal justice, the Long Title, which takes up 11 and a half lines in inventory itself, assures us that it does. Right at the end of the Bill—as it were, at the very back of the shop—lodged behind the provision for special immigration status, we find provisions which even this heroic draftsman has been obliged to label “Miscellaneous”. From making it unlawful once again

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for prison officers to strike, which is an example of the law taking away what the law has given, in this instance very recently, these proceed unblushingly to the consequences of persistent sales of tobacco to persons under 18.

This is almost beyond parody, but there is more. Now the entirety of Parts 4 and 5 are to be withdrawn, for reasons which have been given to us by the noble Lord, Lord Hunt of Kings Heath, only this afternoon. I am afraid that they are being withdrawn for being unfit for purpose. This is a fundamental defect affecting the management of the Bill as a whole. This is not a proper way to legislate. It is certainly not an efficient one. Draft legislation ought to have a comprehensive theme and not depart from it. Efficient scrutiny in Parliament and outside depends on this principle being fulfilled. Without it, the legislation is unlikely to impinge fairly on those who it may affect.

The Government cannot plead that they have not had enough opportunity to legislate for such matters; they have taken advantage of at least 35 previous opportunities. Nor can they claim in mitigation that each of these provisions received ample debate in the other place, however late in the day they were hung upon the Bill. As your Lordships now well know, Ministers took pains to use their majority to whip their supporters into denying debate to the elected other place, so that important provisions have never been debated at all. No more than 30 minutes was allowed for the Third Reading of a Bill which now, as we have heard, extends to 202 clauses and 18 schedules when it had begun with not much less than half that.

Once again, it falls to this unelected Chamber to redress the balance, which I hope we shall. That will be for the remaining stages but, meanwhile, we encounter straightaway how this kind of legislative abuse impinges on Second Reading contributions: they have to jump about from item to unconnected item and can easily become more detailed than is appropriate for Second Reading.

Bearing my own warning in mind, I turn first to Clause 10, as have other noble Lords, which will remove from magistrates’ courts the power to pass suspended sentence orders for summary-only offences. It is to be noted that Crown Courts will also be affected where such cases come up to them for sentence. In my view, the suspended sentence is a thoroughly admirable device. It marks the gravity of the offence while, at the same time, allowing the offender the chance, by his reformed behaviour, of avoiding going to prison and saving the taxpayer the expense of keeping him there as well. He has not got away with it because, if he reoffends, he can be made to serve the remainder of his term, with more for the latest offence.

Now it is said by the Government that courts are using that option inappropriately, by preferring it to the non-custodial community sentences that the offence would otherwise attract. Therefore, the suspended sentence for summary-only offences is to be removed from them, even though it was only given to them by this Government in 2003.

The Magistrates’ Association states that this argument is misconceived. For a suspended sentence to be available, the facts of the offence must have crossed what is

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called the custody threshold, so the choice for the court would not necessarily have included a community sentence. If it can no longer suspend a custody sentence, it may be driven to impose an immediate sentence of custody. Supporting the Magistrates' Association, the Police Federation estimates that a further 1,000 prison places may be necessitated. Is that what the Government want?

The Sentencing Guidelines Council is available to correct any perceived mistaken approach. After all, we are dealing with a magistracy that is more comprehensively trained than ever before in its history. I hope that the Government will think again about that.

I turn next to Clause 31, which removes the requirement that, before the Secretary of State may decide whether to recall a prisoner serving a life sentence or indeterminate sentence for public protection, he must, except in an emergency, obtain a Parole Board recommendation. I am not aware of any objective ground for dissatisfaction with the performance of the independent Parole Board in this context. I agree with what Liberty says—that Parliament should not agree to give Ministers this and similar unencumbered powers to deal with the sentences of individual offenders in individual cases. It is unsafe and it risks arbitrary decisions.

That proposal seems to emanate from ministerial irritation, evidenced elsewhere in the Bill, at recent decisions by those who hold independent responsibilities in the criminal justice system. I fear that it stems from the desire on Ministers’ part to acquire unencumbered control for themselves—or more of it. That must be stoutly resisted.

I am led, therefore, at once to the more complex provisions in Part 3, limiting the power of the Court of Appeal to overturn a conviction—noble Lords have already focused on that, and I am very glad of it—if it considers the conviction unsafe. That is in Clause 42. That stems from ministerial irritation with the decision of the Court of Appeal in a case already referred to, Mullen in 2000.

The Court of Appeal has for years had jurisdiction to overturn a conviction on the single ground that it is unsafe. I acknowledge that, at first sight, there is some attraction in legislating to provide that a conviction is “not unsafe” if the court thinks that there is,

“no reasonable doubt about the appellant’s guilt”,

but in also providing that the court is not required to “dismiss the appeal” if it thinks that it would,

“seriously undermine the proper administration of justice”,

to allow the conviction to stand. However, I think that closer examination establishes that it is itself unsafe for Parliament to presume to instruct the Court of Appeal as to what is unsafe and what is not.

We will need to look very closely at that clause, which the Government amended in Committee. It is essential to recognise three things. The first is that the state’s misconduct, for example, in securing the rendition of the appellant to this country, can have been irredeemably heinous. In Mullen’s case, the words were,

“so unworthy or shameful, that it was an affront to the public conscience to allow the prosecution to proceed”.

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We cannot claim to be honourable upholders of the rule of the law if we permit ourselves, by law, to profit from the product of such behaviour, which fortunately is rare indeed, but might not remain so if this possible sanction were removed. That would be a slope positively glacial in its slipperiness.

Secondly, we should remember that it is important to recognise that the Court of Appeal has shown that an appeal will succeed only on proof of the gravest wrongdoing or procedural mistake, such as would have led the court in the first instance, had it known about it, to stay the proceedings. The court can, and often will, order a retrial when it overturns a conviction on the grounds that it is unsafe. Lastly, contrary to the impression given by the Government, we should remember that the facts in the case of Mullen stand alone. In reality, there is no problem.

One has to stick to time, otherwise I would have liked to examine many more items that hang incongruously on their hooks and which need rigorous scrutiny in Committee. They include the provision on self-defence, which disarmingly states that it is only intended to clarify the common law, but which will create difficulties all its own. They certainly include the provision to authorise non-legal CPS staff to conduct serious trials in Her Majesty’s courts.

However, the Government have produced a Bill that contains many good things, among many that are not. As a whole, these items resemble the ill assorted contents of a badly cluttered shop. If we are to improve that shop, we are going to have to spend a lot of time in it and that I look forward to.

4.46 pm

Baroness Miller of Chilthorne Domer: My Lords, the noble and learned Lord, Lord Mayhew of Twysden, tempts me to extol the virtues of ironmonger shops which, sadly, hardly exist in this country now. I would have to turn to France where you can find in one shop everything from a chestnut roaster to grout. However, as he correctly said, time is limited, so I will resist that temptation.

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