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The defence that we are proposing does not amend the law in the wider area that was set out in the House of Lords case of R v Brown—a decision that the European Court of Human Rights found not to be an infringement of Convention rights. However, the defence is constructed so that, if the law on that point should change in the future, the defence would not move it. I hope that this defence will give reassurance to those who participate in legal and consensual acts of which they wish to keep a photographic record. I beg to move.

The Earl of Onslow: My Lords, when members of the Joint Committee on Human Rights were told that the Minister was going to move this amendment, we all said, “Yippee” or words to that effect, so I would like to thank the Minister for going as far as he has. There is a question of moving millimetres rather than metres, but one must be thankful for small mercies; on behalf of the Joint Committee, I would like to say, “Thank you for the millimetres”.

Lord Wallace of Tankerness: My Lords, I raised these matters in Committee and at Report and I also want to express appreciation for the amendment introduced by the Minister, which addresses the issue of someone having a record of his or her participation in a consensual act. The noble Earl, Lord Onslow, is right that it is millimetres rather than metres. As I understand it, a person may have a photograph and although he himself is not present in the photograph, he could lead witnesses to establish that the act was consensual. But that defence will not be open to him. I regret that that is an issue that will come up in a court case and show again the fundamental misgivings that many of us have about these clauses as a whole. Nevertheless, it is only appropriate to acknowledge where a step in the right direction has been made and I am grateful to the Minister for that.

Lord McIntosh of Haringey: My Lords, it would be discourteous for me not to join in. I rather liked the word “chinkette” used by the noble Earl, Lord Onslow. This is something rather than nothing and we are modestly grateful.

Lord Hunt of Kings Heath: My Lords, I am overwhelmed by the modest gratitude of the House.

On Question, amendment agreed to.

Clause 65 [Penalties etc. for possession of extreme pornographic images]:

[Amendment No. 15 not moved.]



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Lord Hunt of Kings Heath moved Amendment No. 16:

On Question, amendment agreed to.

Clause 77 [Data protection: additional offences]:

Baroness Miller of Chilthorne Domer moved Amendment No. 17:

The noble Baroness said: My Lords, this is a small, consequential amendment to define the extent of the amendment that we won on Report on data protection. I beg to move.

Lord Hunt of Kings Heath: My Lords, for the reason suggested by the noble Baroness, the Government will not oppose the amendment. We will have to see what the other place thinks about it.

On Question, amendment agreed to.

Clause 98 [Qualifying offenders]:

Lord West of Spithead moved Amendment No. 18:

(i) a custodial sentence of at least 12 months was imposed for the offence, or(ii) a hospital order was made in respect of it (with or without a restriction order),”

The noble Lord said: My Lords, the House will be well aware from the previous debates on this provision that interim violent offender orders are intended, and I believe are needed, to provide the public with immediate protection from an individual who is considered to pose a risk of serious violent harm while a decision on the main violent offender order is being taken.

To address the concerns raised by the noble and learned Lord, Lord Lloyd of Berwick, I made a commitment on Report to bring forward amendments so that an interim order could be made only in the absence of the individual in respect of whom the order has been applied for, if the court is satisfied that the individual has been given reasonable notice of the application and the court hearing date. Such a requirement would ensure that the individual could attend the hearing or make representations on that day if he or she chose to do so. Amendment No. 20 fulfils that commitment.

The other amendments in the group are minor, technical amendments, which seek to ensure that all individuals who are given a custodial sentence or hospital order on conviction for one or more of the specified qualifying offences are eligible for a violent offender order. The amendments also ensure that hospital orders, restriction orders and supervision orders made by the courts under all relevant legislation are included in the definition of these terms. I commend the amendments to the House. I beg to move.

On Question, amendment agreed to.



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Lord Hunt of Kings Heath moved Amendment No. 19:

(i) a sentence of imprisonment or other detention for at least 12 months was imposed for the offence, or(ii) an order equivalent to that mentioned in subsection (3)(a) was made in respect of it,”

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendment No. 20:

(a) any application under section 99 for a violent offender order,(b) any application under section 103 for an interim violent offender order, and(c) any application under section 102 for the variation, discharge or renewal of a violent offender order, or for the variation or discharge of an interim violent offender order.(a) the application, and (b) the time and place of the hearing,a reasonable time before the hearing.(a) the person to whom the application mentioned in subsection (1)(a) or (b) relates, or(b) the person in respect of whom the order mentioned in subsection (1)(c) has been made,as the case may be.”

On Question, amendment agreed to.

Clause 115 [Interpretation of Part 7]:

Lord Hunt of Kings Heath moved Amendments Nos. 21 to 25:

“(a) a sentence of imprisonment, any other sentence or order mentioned in section 76(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (as in force at any time after the passing of this Act) or any corresponding sentence or order imposed or made under any earlier enactment, or”(a) an order under section 37 of the Mental Health Act 1983 (c. 20) or section 60 of the Mental Health Act 1959 (c. 72), or(b) any other order providing for the admission of a person to hospital following a finding of the kind mentioned in section 98(2)(b) or (c) of this Act;”(a) a supervision order within the meaning of Schedule 1A to the Criminal Procedure (Insanity) Act 1964 (c. 84), or

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(b) a supervision and treatment order within the meaning of Schedule 2 to that Act;”

On Question, amendments agreed to.

Clause 117 [Offence of causing nuisance or disturbance on NHS premises]:

Lord Bassam of Brighton moved Amendment No. 26:

(a) any hospital vested in, or managed by, a relevant English NHS body,(b) any building or other structure, or vehicle, associated with the hospital and situated on hospital grounds (whether or not vested in, or managed by, a relevant English NHS body), and(c) the hospital grounds,”

The noble Lord said: My Lords, I can be brief. These amendments fulfil an undertaking that I gave to the noble Baroness, Lady Finlay, whom I do not see in her place, on Report on 23 April.

The amendments adapt the provisions in Clauses 117 to 119 so that the new offence of causing nuisance or disturbance to National Health Service staff on hospital premises, and the associated power of removal, will apply in Wales. The amendments provide for Welsh Ministers to issue the guidance under Clause 119 as regards the exercise of the powers of removal in Wales and to commence the provisions in so far as they apply to NHS premises in Wales. I hope that the amendments will meet with the approval of the noble Baroness and with that of the whole House. I beg to move.

5.45 pm

Lord Thomas of Gresford: My Lords, I am grateful to the Minister for bringing forward these amendments. I am sure that I speak for the noble Baroness, Lady Finlay. I am pleased to have pointed out to the noble Lord that the Government had overlooked the fact that the Welsh Assembly could not make criminal offences. I am sure that the message will get to Wales in time for tomorrow that, at Third Reading, after the Bill had gone all the way through the other place and come here, they finally remembered that Wales exists.

Lord Elystan-Morgan: My Lords, Clause 117 is a very progressive and well justified measure. It is perfectly true, of course, that the more serious offences—we know that many such offences are committed on NHS premises and against NHS personnel—can be dealt with quite adequately under the Offences Against the Person Act 1861. The beauty of Clause 117 is that one can intervene at a much earlier stage to prevent what might be a very serious fracas developing. I welcome, as does the noble Lord, Lord Thomas of Gresford, the fact that this measure has now been extended to Wales.



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Whether this is NHS legislation that borders on the criminal or criminal legislation that borders on the NHS is a somewhat moot jurisprudential point. It does not really matter. Massive executive responsibilities in relation to the NHS have been with Wales ever since the devolution process of 1964 began. They were devolved, after 1998, to make this matter the prerogative of the Welsh Assembly in relation to executive decisions. Now we have Part 3 of the Government of Wales Act 2006, in Schedule 5 to which NHS functions belong to an area where the Welsh Assembly could initiate a procedure that would enable an Order in Council to grant it a swathe of authority and jurisdiction. As yet, it has not done so. In a perfect world, I would love to have seen the Welsh Assembly take this initiative, provided of course that the provisions came into force no later than the provisions in this Act. There is no earthly reason why NHS personnel in Wales, vulnerable as they are, should not have the same protection as NHS personnel have in every other part of the United Kingdom.

I make a slightly technical, constitutional point here. During the passage of the 2006 measure through this House, an undertaking was given which, I think, was the equivalent of an undertaking given in the context of Scotland: that there would be a convention whereby this House, although of the parent Parliament, would have absolute sovereign authority to intervene in any matter relating to Scotland, Northern Ireland and Wales, but would not do so in regard to any function that either had been transferred or was intended to be transferred. Therefore, in future, I very much hope that the initiatives will come from the Welsh Assembly Government themselves. I think there are three matters in the pipeline now, one already having been passed by this House. Under Part 3, I understand there are about 20 more on the shopping list, and they take quite some time to be heard. I very much hope that the Welsh Assembly will, in so far as it is practicable, take those initiatives. I trust that this House will be loyal—I am certain that it will be—to that undertaking that it will intervene in such matters only at the request of the Welsh Assembly.

Baroness Finlay of Llandaff: My Lords, I would like to have on the record my sincere thanks to the Ministers in the Wales Office, to the First Minister in the Assembly and to Ministers in the Assembly for having entered into a long and, at times, complicated dialogue to ensure that we reached this point. These amendments, tabled by the Government, are extremely important because they ensure that the Assembly will have parity with the powers that will exist in England. They also have the sophistication to allow the powers to be triggered at the decision of the Ministers in the Assembly. I am also grateful to officials who, behind the scenes, have worked with me and enabled the dialogue to take place.

Lord Bassam of Brighton: My Lords, I thank noble Lords who have contributed to the debates and in particular the noble Baroness, Lady Finlay, because she has played a sterling role in this exercise. I also assure the noble Lord, Lord Thomas of Gresford, that no Labour Government could ever forget Wales—it is always at the forefront of our mind and our thinking.



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We responded very positively to suggestions put to us. Our earlier thinking was that the Welsh Assembly would come forward later with this, but we are more than happy to ensure that these provisions are active and will be actively pursued in England and Wales. I am also grateful to the noble Lord, Lord Elystan-Morgan, for his kind contribution. I thought that what he said was absolutely right: that these things are initiated close to where the power in Wales really lies. That is a very important principle, particularly in a devolutionary settlement. I am grateful for the support we have had on these amendments.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 27 to 31:

(a) a National Health Service trust (see section 18 of the National Health Service (Wales) Act 2006 (c. 42)), all or most of whose hospitals, establishments and facilities are situated in Wales, or(b) a Local Health Board (see section 11 of that Act),”(a) any hospital vested in, or managed by, a relevant Welsh NHS body,(b) any building or other structure, or vehicle, associated with the hospital and situated on hospital grounds (whether or not vested in, or managed by, a relevant Welsh NHS body), and(c) the hospital grounds.”

On Question, amendments agreed to.

Clause 118 [Power to remove person causing nuisance or disturbance]:

Lord Bassam of Brighton moved Amendments Nos. 32 and 33:

(a) in relation to English NHS premises, means an English NHS staff member, and(b) in relation to Welsh NHS premises, means a Welsh NHS staff member,(a) in relation to English NHS premises, means any English NHS staff member authorised by a relevant English NHS body to exercise the powers which are conferred by this section on an authorised officer in respect of English NHS premises, and(b) in relation to Welsh NHS premises, means any Welsh NHS staff member authorised by a relevant Welsh NHS body to exercise the powers which are conferred by this section on an authorised officer in respect of Welsh NHS premises,

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On Question, amendments agreed to.


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