Previous Section Back to Table of Contents Lords Hansard Home Page

I have had a chance to look at that letter. In it, the assistant commissioner draws attention to the four conditions in Section 8 of the Police and Criminal Evidence Act, at least one of which must be satisfied, he correctly states, before a warrant will be issued. He draws attention to Section 8(3)(c) and says that that condition was not satisfied. So the police, he says, did not apply for a warrant and, indeed, could not have applied for one. But he seems to have overlooked the other condition in Section 8(3)—there are three other conditions. In particular, he seems to have overlooked Section 8(3)(b), which provides that the test is whether,

That shows that Section 8(3) and, indeed, other provisions in the Act draw a clear distinction between access to the premises and access to the papers on the premises.

No one has suggested that the Speaker could have granted access to Mr Green’s papers. Only Mr Green could do that. So the reason that the assistant commissioner gives for not applying for a warrant is simply not correct. The police could have done so under Section 8(3)(b) and they should have done. If the material was, in addition, confidential, as, no doubt, much of it was, it would have been “excluded material” as defined by the Act and the police should have applied not to a magistrate but to either a High Court judge or a circuit judge, under Section 9 and Schedule 1 to the Act. That seems to be the only point on police powers in this connection. It is a short point and I am bound to say that it seems fairly straightforward. Of course, it applies equally to anyone seeking to search any of your Lordships’ offices.

I now turn to the gracious Speech. In recent years, we have become accustomed to massive new criminal justice Bills every year. Every new Secretary of State seems to leave his or her mark on the statute book. In the five years since 2003, we have had five new criminal justice Acts, a total of 910 sections and 104 schedules. Heaven knows how many new offences have been created or to what purpose. No other country has suffered anything like this deluge of criminal legislation. Whether we are any the better for it, I gravely doubt. It is therefore an enormous relief that this year there is nothing except a modest-looking Bill dealing with victims and witnesses.

There is another, more particular, reason for rejoicing. Back in May, we were promised a new Bill reforming the law of murder and, in particular, the so-called partial defences of provocation and diminished responsibility. That now seems to have been dropped. I am very glad that it has been and I shall explain why. The Government’s record so far in this area is a classic example of how not to carry out law reform. In 2002, the Government asked the Law Commission to consider the partial defences to a charge of murder. They said that the issue had become urgent. In 2004, the Law Commission complied but added that it was simply not sensible to review the partial defences, reducing murder to manslaughter, without reviewing the law of

9 Dec 2008 : Column 287

murder as a whole. The Home Secretary of the day saw the sense of that—indeed, it would seem to be self-evident—so the Law Commission was asked to review the law of murder as a whole.

I think that everyone agrees that the overriding difficulty in creating a rational framework for the law of murder is the mandatory life sentence. That is so whether you are against the mandatory life sentence, as I strongly am, or in favour. I shall give one example. How can you have a rational framework when the mercy killer who has committed murder is given the same sentence as the terrorist? Yet, when the Law Commission was asked to do the job, which it had asked to do, it was asked to assume that the mandatory sentence for murder would continue in effect. If I had been the chairman of the Law Commission at that time, I should like to think that I would have said, “This is a waste of time; it cannot be done. We must consider not only the offence but also the sentences for the offence”. However, the Law Commission found an extremely ingenious solution to the problem that it had been given. It recommended two degrees of murder, one of which was to carry a life sentence and the other not. It published its report in November 2006.

What did the Government do? They thought about it for a year and a half. Then, in July 2008, they published a consultation paper, in the introduction of which they said:

“Given the breadth of the recommendations, we have decided to look first at those which we think touch on the areas of most pressing concern”.

Those areas were of course the partial defences that I have already mentioned and two other peripheral matters. Instead of grappling with the central recommendations of the Law Commission report, the Government have—I am sorry to use this word—funked it. They have confined the consultation to these partial defences, on which they had consulted the Law Commission as long ago as 2002, a task which the Law Commission had already said could not properly be undertaken in isolation, a view that the Home Secretary in 2004 appears to have accepted. This is not the way to legislate.

What do the Government now propose? In a scathing attack on the fresh proposals, Professor Spencer of Cambridge University describes the proposals on provocation as incoherent and unjust and adds that they do not even achieve their intended objective. At the same time, the homicide review advisory group, a distinguished body of experts from various fields, points out that, as a result of recent decisions of the House of Lords and the Court of Appeal, the existing law of provocation is now clear and workable. In other words, the pressure for reform in that area has gone. It concludes that the Government would be unwise to introduce a revised concept of provocation to replace what is now well understood, except in the context of the complete revision of the law of murder. I say amen to that. I even dare to hope that the Government have already accepted that advice and that that is why we do not have such proposals before us this year. We do not need a further review by civil servants—

9 Dec 2008 : Column 288

Lord Thomas of Gresford: My Lords, as I understand it, the Government have published proposals to bring the partial defences into being in the Bill. The Minister can tell me whether I am wrong.

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, perhaps the noble and learned Lord will forgive me if I answer that question. I do not want him to be under any misapprehension. Of course, the Bill is not yet published, but, as of today, it is proposed, as the noble Lord, Lord Thomas of Gresford, has said, to include some reform of the partial defences in that Bill.

Lord Lloyd of Berwick: My Lords, to me the big question is whether there is anything before us that will deal with the central recommendations of the Law Commission report on the basic law of murder. Nothing of that kind is to be put before us. I hope that what is to be put before us on the partial defences to the law of murder will not be proceeded with, as we do not need further reviews on the partial defences. We need a review of the whole law of murder, including the partial defences, prepared for us not by civil servants in the Home Office or in the Ministry of Justice, but by an independent commission—call it what you like—such as the homicide review advisory group, which would prepare a workable framework for the law of murder as a whole. It may be that that group is planning to do exactly that and, if so, it will be a job well done. Above all, we need legislation in which the public can have some confidence.

4.18 pm

Baroness Goudie: My Lords, there is much to welcome in the content of the legislative programme of this parliamentary Session on which we are embarking. We will be examining in detail the various Bills and draft Bills over the coming weeks and months. I greatly welcome the comment made by the noble Lord, Lord West of Spithead, on the borders Bill and the ratification in the next few weeks of the European convention on human trafficking. I hope that the Foreign Secretary, David Miliband, will take the lead in Europe to ensure that other countries sign and ratify that important convention. I hope that he will, with the Secretary of State in the Obama Administration, Senator Hillary Clinton, lead the campaign to eradicate this despicable trade.

The trade is not just of women for sex but of young boys and of men and women of many ages. It now comes second: there is defence and arms, then human trafficking, then drugs. I have repeated many times in this House that is possible to use a person more than once, while drugs are used only once and arms are used only once for a much worse thing. Under pressure from Hillary Clinton and Melanne Verveer, who was head of Hillary Clinton’s office when she was in the White House and is a co-founder of Vital Voices, the Clinton Administration passed the first legislation on human trafficking, which was the first part of lobbying the world on human trafficking. They have continued to do that, so I hope that the new American Administration and our Government will lead the world on this.

9 Dec 2008 : Column 289

The content of legislation is vital and does not always receive adequate scrutiny in both Houses. There is much to be said for a manageable rather than an overfilled programme but, important as content is, we must not forget that the style of legislation is no less important. Too much legislation is too complex and too difficult to understand. That is often the case in relation to a single Act. It is all the more so when there is a series of Acts on the same topic, when the legislation becomes a morass of amendments and amendments to amendments. We should have two key objectives: simplicity and comprehensibility.

I very much support the invaluable work of the Law Commission, not only the strength of its research but the clarity of its recommendations. I am delighted that two of the draft Bills will implement Law Commission recommendations, one in the sphere of criminal law and the other in the sphere of civil law. Bribery is a cancer that strikes at the heart of society. We need a more effective response. A modern scheme of bribery offences, as recommended by the Law Commission, will be invaluable in combating bribery at home and abroad. The civil law reform Bill will also modernise and simplify the law on a variety of topics.

One area that cries out for simplification is immigration law. There are now 10 or more separate pieces of legislation, which go back almost 40 years. This area cries out not only for the consolidation into one Act of all existing legislation, but also for simplification and transparency and for the use of plain English wherever possible to avoid technical jargon. However, other Bills will amend existing legislation. I have especially in mind the coroners and justice Bill. We must ensure that changes are made in a way that does not make legislation more difficult to access and understand.

We must also remember that the public include those who do voluntary work in the political parties. Legislation must not make it difficult for them to know how to function efficiently, so I shall be keeping an eye on how weexpress our legislation and asking questions about whether it is in sufficiently plain English, whether provisions can be simplified and so forth.

That does not mean that I shall be ignoring content—far from it. I put down at this stage two markers: I am not persuaded of the wisdom of the provision in the policing and crime Bill for direct election to police authorities and I am concerned about the draft communications Bill. None the less, the legislative programme as a whole will make a further important contribution to a fair society.

4.24 pm

The Lord Bishop of Portsmouth: My Lords, I intend to focus on two groups of people who come into this country for very different reasons: immigrants and those who have been trafficked. It is in our treatment of people from beyond our borders that we reveal our deepest beliefs about who we are as a nation and what kind of home we are creating in this land.

The gracious Speech tells us that in the borders, immigration and citizens Bill, border controls will be strengthened, on which the Minister elaborated earlier. There is nothing to be said in favour of ineffective border controls, but we must ask why and how control

9 Dec 2008 : Column 290

is being exercised. Although it is welcome that the Government are seeking to pursue a coherent and effective strategy on immigration, we need to be realistic about the extent to which control is possible. Our membership of the European Community limits the extent to which we can unilaterally determine migration flows, which makes comparison with the Australian system misleading. Furthermore, in the long term, we depend on immigration to supply people where we have a shortage of training, skills and labour, whatever short-term fluctuations may occur.

The notion of balanced migration, which is being pressed on the Government, although I hope will never become government policy, is questionable in practice. If we cannot regulate emigration, how can we administer a pattern of flows that guarantees the maintenance of an appropriate balance of skills? Balanced migration may also be misconceived in principle. Account must be taken of the social and economic costs and benefits of immigration, but why should we conclude that a static population is optimal, whether set at 65 million or 70 million? The danger is that such an ideal plays on fear of “strangers” and reduces the value of people to their short-term economic contribution. It may also fail to do justice to the needs of asylum-seekers, as distinct from economic migrants.

To narrow the right to stay to our minimum obligations under international refugee conventions and our opportunity for short-term economic enrichment would be to close our eyes to migrations that result from violent displacement and acute suffering, and sometimes stem from our own economic and foreign policies. We should not forget that the burden of accepting refugees is commonly borne on a large scale by societies much poorer than our own. Let us indeed have workable border controls, but let us also set the criteria of entry realistically, justly and generously.

We are sometimes told that newcomers to the United Kingdom must “earn” the right to stay. It is reasonable to encourage responsible citizenship, but we must look carefully at the expectations and obligations which are imposed. If we demand exemplary behaviour and attitudes, require higher levels of English-language capability and civic involvement, exact extra payment for local services and show them the door when they become unemployed, how does that square with our expectations of those citizens who are born here? There should be a balance between acceptance and demand that helps immigrants to feel welcome, to put down roots and to enrich the communities in which they settle, not just financially but socially and culturally.

I turn to those who enter under duress as a result of deception and intimidation, whether for economic or for sexual exploitation. The Government are to be congratulated on developing their action plan for tackling human trafficking and for signing up to the Council of Europe Convention on Action against Trafficking. The churches are active in providing safe housing and support for the victims of sex trafficking. It is also important that the demand for sexual services should be challenged, as it appears that a high proportion of off-street prostitutes are foreign nationals who have been trafficked.

9 Dec 2008 : Column 291

The Government propose to criminalise payment for sex where the person paid is controlled for gain. Like many measures in the field of prostitution, this is a worthy intention but one that gives rise to problems of enforcement. I do not accept the argument that it is wrong in principle to penalise in law payment for sex, but I wonder whether the law can discriminate between tolerable and intolerable transactions as finely as this proposal suggests. Can it be proved either that the person paid is being controlled or that the client has knowingly or culpably taken advantage of a victim of trafficking? It is reported that a similar law in Finland has been singularly ineffective, and many are pressing for the adoption of the Swedish law that applies to all payments regardless of the circumstances. As a person of Nordic extraction—a descendant of the Vikings; that friendly group which shared its culture with these islands centuries ago—I shall follow this inter-Scandinavian argument with interest, but we owe it to the victims of trafficking to do all that we can to protect and relieve them, and we must try to get the details of legislation right.

Today is the 400th anniversary of the birth of John Milton, who was really the founder of the Quaker movement—a religious group that values silence and action: a tradition in both respects that has continued to embarrass the more historical churches, bishops included. Ardent social reformer that he was, he could still see the value of restraint, as these words in “Paradise Regained” tell us:

“Zeal and Duty are not slow;“But on Occasion’s forelock watchful wait”.

We on these Benches hold that all people are equal in dignity, that migrants bring both their needs and their gifts to their new home, and that the vulnerable deserve protection. I hope that the legislative programme before us will not undermine those principles but will implement them wisely and effectively.

4.32 pm

Lord Mackay of Clashfern: My Lords, I agree with what the noble and learned Lord, Lord Lloyd of Berwick, said about the possibility of amending the law on murder, particularly partial defences. I also agree very strongly with the views of the noble Baroness, Lady Goudie, and the right reverend Prelate the Bishop of Portsmouth about the human trafficking legislation and the likelihood that the Government will lead a movement to have the convention made law throughout the European Union. I also agree very strongly with the view expressed by the noble Baroness, Lady Goudie, about the excellence of the reforms that the Law Commission produced. Where legislation can be guided by these reforms, it will be all the better for it.

The gracious Speech refers to the Government carrying forward the work of constitutional renewal, on which they have already produced a draft Bill. The Bill has been considered by a Joint Committee, which reported on 22 July 2008. Before I comment on this further, I wish to mention the effect of the Constitutional Reform Act. There is an interesting comparison to be made between constitutional renewal on the one hand and constitutional reform on the other. I am not exactly

9 Dec 2008 : Column 292

sure what the correct analysis is. The Act takes the Law Lords out of this House and sets them up, from 1 October, as justices of the Supreme Court.

There has been, and will continue to be, a considerable increase in the cost of the administration of justice in this country. I venture to suggest that the additional cost will not affect the quality of the justice that we have been accustomed to receive from the Law Lords and which has given the House of Lords a name and reputation of the highest standing the world over. The same quality will now be delivered by the Supreme Court of the United Kingdom as one among many supreme courts all over the world.

This increased cost, without any likelihood of a change in the quality of the justice and judgments produced, has been allocated to be borne by the courts of the United Kingdom as a whole. In effect, it has led to substantial increases of cost in the lower courts; for example, the cost of presenting a claim on behalf of a local authority to take a child into its care. Some commentators appear to take the view that this has led to a substantial reduction in such claims on behalf of local authorities, which preceded the publication of the details of the woeful case of Baby P in Haringey. Increasing costs in this way for no particular increase in the standard of justice can have detrimental effects on parts of the justice system.

In a time of financial stringency, such increase in costs, without any significant increase in the quality of the justice administered, may be difficult to justify. The reason given for this is the desire to promote the separation of powers, which was a part of our constitution that hitherto has not been put into effect with the kind of rigour we have had in the past year or two. I have to point out, however, that the rigour extends only to the judges in the House of Lords. There may be quite a case for considering the application of this principle to the House of Commons and the Executive, and for considering whether it is right that Parliament, with the job of monitoring the work of the Executive, should have such a high proportion of members of the Executive in its membership.

I should like to turn to the effect of the draft constitutional renewal Bill on the situation with regard to the Attorney-General, a position that is a vital part of our constitution. It is fundamental that it should be fulfilled by a distinguished lawyer who is a Member of one of the Houses of Parliament and is directly accountable to Parliament in the House to which he or she belongs and by a committee or otherwise to the other House.

It is vital that the Attorney-General is a member of the Government; namely, that her position in the Government is that of a senior member who is not a member of the Cabinet. It is right that the Attorney-General attends Cabinet only in so far as is necessary to give legal advice. It is important that the Attorney-General’s position is not as a member of the Cabinet to underline the fact that the Attorney-General’s decisions are his or her own, with the members of the Cabinet having no responsibility whatever for them. The proposal in the draft Bill to strip the Attorney-General of the power to make decisions in individual criminal cases is thoroughly objectionable. It does not apply where

9 Dec 2008 : Column 293

national security issues are raised. If the Attorney-General can properly take part in deciding cases in which national security issues are involved, how is the disqualification justifiable in other cases?

The Joint Committee heard evidence on these issues. The noble and learned Lord, Lord Falconer of Thoroton, the former Lord Chancellor and Solicitor-General, said that the public perception was that the Attorney-General was part of “the gang”, making it necessary for the Attorney-General to be a totally independent figure. I would hesitate to use that description for the members of the Government, but the noble and learned Lord used it and, by that time, he was not a member of the Government, but he had been.

I do not know where this perception comes from. Obviously I move in different circles from that of the noble and learned Lord, but I have never heard anyone describe the Government as a “gang” in the sense in which he used the expression; that is, to denigrate the personal integrity of the Attorney-General. In my view, this approach casts aspersions on all members of the Government. The right honourable Geoff Hoon has stated that he alone will decide whether the proposal for a third runway at Heathrow can go ahead. That is an extremely important decision which is committed to him as a member of the Government. I believe that the public of this country accept the view that when people are elected and take public office, they do not proceed in a partisan way but make decisions that are in the best interests of all our citizens. I see no reason on earth why the Attorney-General should not be subject to the benefit of the same point of view. If this Bill comes back at all—it does not look as if it will during this Session—I hope that it will have a very different appreciation of the position of the Attorney-General.

Next Section Back to Table of Contents Lords Hansard Home Page