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Clause 61 sees a return to our debates last Session on the new offence of incitement to hatred on grounds of sexual orientation and, in particular, to the question of whether it is necessary to include a provision purporting to protect freedom of expression. The House will recall that the consideration of the need for such a provision had to be abruptly brought to a close because of the need to secure early Royal Assent for the Criminal Justice and Immigration Bill, but we made it clear at the time that the Government would return to this issue.

The offence of inciting hatred on grounds of sexual orientation has a very high threshold. The offence will be made out only where a person uses threatening words or behaviour with the intention of inciting hatred. There are no circumstances in which the right to freedom of speech should justify such behaviour. The additional provision inserted “for the avoidance

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of doubt” is unnecessary and could serve to cause confusion about the ambit of the offence. In our view it should be removed.

The provisions in Part 3 deal with witness anonymity orders. They also mark a return to familiar territory which we considered last Session. During the passage of the emergency Criminal Evidence (Witness Anonymity) Bill, we acknowledged that there needed to be a further and fuller opportunity to consider the detail of the statutory scheme to protect the anonymity of vulnerable witnesses, while safeguarding a defendant’s right to a fair trial. Chapter 2 of this part re-enacts, with only minor modifications, the provisions of that 2008 Act. That Act has now been in operation for some nine months, and all the indications are that it is working well, including the arrangements for the appointment of special counsel where one is needed.

Chapter 1 of Part 3 seeks to augment the provisions in respect of witness anonymity at trial with provision for investigation anonymity orders. The purpose of this new order is to encourage witnesses to come forward with information to the police, by providing additional reassurance that their identity will be protected. I, of course, freely acknowledge that the investigation anonymity order is innovative. How useful a tool it will prove to be for the police remains to be seen. That is why we have, at least initially, limited the availability of these orders to witnesses to gang-related homicides, but it is incumbent on the Government to explore all possible means to rid our inner cities of the scourge of gun and knife-fuelled gang violence. These orders will be experimental, but an experiment which the police service tells us is worth trying.

Part 4 establishes the Sentencing Council for England and Wales. In doing so, the Bill will implement the unanimous and majority recommendations of the Sentencing Commission Working Group, chaired by Lord Justice Gage. In bringing together the functions of the existing Sentencing Advisory Panel and the Sentencing Guidelines Council, the Bill will streamline the process of producing sentencing guidelines. However, we believe that the council will be more than the sum of the two bodies it replaces. The council will have new duties to monitor the effect of its guidelines and to assess the resource impact of the guidelines and of the Government’s policy and legislative proposals.

At its core, the recommendations of the Gage report and, in turn, the provisions of the Bill, seek to ensure greater transparency, greater consistency, and greater predictability in sentencing. Greater transparency is needed so that there is clarity and openness through guidelines as to how offenders might expect to be sentenced. Greater consistency will ensure a more even application of sentencing guidelines, allowing for appropriate judicial discretion. Greater predictability will enable Government and Parliament to foresee, with a reasonable degree of accuracy, the total impact on prison and probation resources of sentencing practice, guidelines and proposed legislative changes, and to plan accordingly.

Let me be clear on what these provisions are not about. They are not about tying individual sentencing decisions to the availability of prison places. Nor are they about forcing judges and magistrates to operate

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in an inflexible US-style sentencing grid system, where there is no room for discretion to take account of the circumstances of a particular offence or a particular offender. Nor are these provisions about dictating to the sentencing council the format of its guidelines. The Bill ensures flexibility in the way guidelines are framed, to allow for the entire range of offences that the council may consider. We are also receptive to the argument that Clause 107 of the Bill can be improved by providing more discretion with regard to the components of the guidelines, and accordingly we are actively considering what further changes to make to this clause.

Part 7 introduces a new civil scheme, which will enable the courts to order a convicted criminal who has received a payment or other benefit from writing or speaking about his crimes, to pay the money back. The central premise behind these provisions is that it is wrong for criminals to benefit from their crimes, whether directly from the initial criminal act, or subsequently by exploiting the notoriety they have gained. It is distressing enough for victims to have to suffer the experience and consequences of the crime itself; that suffering should not be further compounded by the knowledge that the criminal is cashing in on the pain and hurt they have caused.

I come now to Part 8, which deals with data protection. The provisions in this part are designed to strengthen the protection of personal data by building on the audit, inspection and enforcement powers already available to the Information Commissioner. All organisations hold and use data. In the public sector, personal data are used to expand opportunities for the most disadvantaged, to protect the law-abiding majority and to deliver improved public services. While realising these benefits, government departments and agencies also need to be fully alert to the risks of personal data either deliberately or inadvertently falling into the wrong hands. All data controllers have a duty to take action to mitigate such risks, but as a regulator the Information Commissioner needs appropriate powers to ensure compliance with the data protection principles.

Clause 156 will put on a statutory basis the system of “spot check” assessments that are currently undertaken on government departments by the Information Commissioner. Assessment notices are designed to raise awareness of and compliance with the data protection principles. They are designed to help raise standards; they are not an enforcement tool in themselves. While these provisions have been welcomed, including by your Lordships’ Constitution Committee, two issues have been raised; namely, the scope of the assessment notice regime and the absence of an enforcement mechanism. On both these issues we continue to listen to the arguments.

I assure the House that we are not unsympathetic to the arguments that have been put forward. I make a couple of observations. On the scope of the assessment notice regime, there is already a power to apply the regime to private and third sector organisations exercising functions of a public nature. I accept there is not a neat dividing line between the public, private and third sectors and that we need to promote compliance with data protection principles across all sectors. The question for the House is whether that existing power goes far

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enough, or whether certain parts of the private sector should be subject to assessment notices—perhaps those that process particularly sensitive information or very high volumes of data.

On enforcement for non-compliance, it is important to put on record that the Information Commissioner already has a number of separate enforcement tools available to him, including issuing an information or enforcement notice or applying for a search warrant under Schedule 9 to the Data Protection Act. But I acknowledge the argument that a failure by a data controller to comply with an assessment notice should have direct consequences. All regulatory systems need to be proportionate and targeted. I look forward to debating whether Part 8 of the Bill as drafted gets the balance right.

Before closing, I give notice of one further amendment that I intend to table for Committee stage. This links back to my previous comment on Part 8 that any regulatory regime needs to be proportionate and targeted. The House will be aware that the Courts and Legal Services Act 1990 regulates certain types of no-win no-fee arrangements, but not others. Conditional fee agreements, which allow for a “success” fee to be added to a representative’s normal fee, are subject to regulation, but the same protection is not afforded to vulnerable claimants when it comes to damages-based agreements. These agreements, which are particularly prevalent in employment tribunal proceedings, allow the representative to take a percentage of any damages awarded as their fee for bringing a case. We intend to bring forward an order-making power to control how these agreements operate. Among other things, it would be possible under the power, which will be subject to the affirmative procedure, to place a cap on the percentage that can be deducted from damages. We will consult on the detail of the order as the Bill makes its way through the House. The continued absence of controls on this type of agreement is not in the public interest. We need to plug this regulatory gap as quickly as possible to provide protection to vulnerable claimants.

I have no doubt that there are a number of issues covered by the Bill that will be robustly debated. I welcome that. However, I hope that, throughout the scrutiny process, we will not lose sight of the needs of those who have suffered as a result of crime, and also witnesses and, of course, bereaved families. They deserve the best possible service from criminal justice agencies, coroners and their staff. I commend the Bill to the House.

3.30 pm

Lord Kingsland: My Lords, the Minister described this Bill to your Lordships’ House as “wide-ranging”. We take the view that it could be broken up into several Bills and that it would probably, as a consequence, get better scrutiny. I prefer to call this Bill a miscellany or even a farrago, redolent of Mr Churchill’s famous pudding.

However, I want to start off on a positive note. The Minister announced that the Government have had second thoughts about the position of the treasure coroner and have decided to restore it. That was the position when the draft Bill was considered. I say

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on behalf of the Opposition that we welcome that move, as, I am sure, do many Members of your Lordships’ House.

The first part of the Bill is devoted to the coroners’ service. Broadly speaking, we support what the Government have done. However, in some respects, we think that they have not gone far enough, particularly in relation to financial arrangements, by which I am referring not to the total amount of money to be devoted to the coroners’ service but to the way in which it is to be distributed. The coroners’ courts are not to be part of the Courts Service and therefore will not get its support. The Chief Coroner has no budget. Therefore, everything depends on the postcode lottery. I should like to take this matter further in the time that I have available in this Second Reading debate; but I know that the noble Lord, Lord Ramsbotham, is lying in wait for the Minister further down the speaking list; in due course, the Minister will get a much fuller and more competent analysis of this problem than I am able to give this afternoon.

Briefly, I also draw the Minister’s attention to a letter issued by the Marchioness Action Group on 23 April. It says a number of things, but I think that I can encapsulate its sense of direction in a few sentences. It says:

“The new Bill does not incorporate lessons learnt after the Marchioness, Shipman and Alderhay. It has retained the ‘old’ Coroners System with only a few ‘minor’ amendments to existing laws. We therefore question the validity of the new bill to achieve a duty of care to the bereaved”.

Without addressing myself to the content of that statement, I feel that it needs a response from the Minister. The Minister well knows of the bona fides of this action group and the appalling experiences that its members have undergone. This issue of a duty of care to the bereaved—even if, at the end of the day, the Government do not feel that it is something that they can put on the face of the Bill—needs a powerful answer. I hope that the Minister will attempt to give such an answer at the end of the debate. He may feel that something fuller is more appropriate at a later stage of the Bill.

Another matter to which I must direct my attention under Part 1 is the Government’s decision, last Friday, to withdraw Clauses 11 and 12. This decision was announced in a press release by the right honourable gentleman, Jack Straw.

Lord Bach: My Lords, it was given in a Written Ministerial Statement to this House before the press release; it was given in a Written Ministerial Statement to the other House, which was sitting on Friday. I want to make that clear. It was not done by way of press release alone.

Lord Kingsland: My Lords, I am most grateful to the Minister. I was not about to make a constitutional point about the inappropriateness of making such an announcement; I was simply using the press release to explain to your Lordships’ House—for those noble Lords who have not read it—what the right honourable gentleman, Mr Straw, said. He stated that,

As I understand it from what the Minister said, he will come forward with amendments in relation to this matter in Committee. However, I should like for a few minutes to point out to him one or two of the potential pitfalls of the Inquiries Act, if it is the Government’s intention to use it for the purposes that Mr Straw announced.

First, in what circumstances can such an inquiry be convened? Here we should look at Section 1(1), which states:

“A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that—

This is a very wide-ranging discretion that has been given to the Minister. Will the noble Lord bring forward in Committee or on Report a clause constraining the Minister’s discretion to an appropriate level in relation to the task that the Secretary of State for Justice seeks the Inquiries Act to perform?

It is clear that a High Court judge can be appointed to be chairman of an inquiry, but the Secretary of State, under Section 3, has discretion as to whether to add other members. I presume that one consideration might be whether certain lay members should sit with the High Court judge in lieu, in a sense, of a jury.

The section that most worries me, however, is Section 5, which states in subsection (1):

“In the instrument under section 4 appointing the chairman, or by a notice given to him within a reasonable time afterwards, the Minister must ... before that date... set out the terms of reference of the inquiry”.

That is a very reasonable requirement. However, Section 5(3) goes on to say:

“The Minister may at any time after setting out the terms of reference under this section amend them if he considers that the public interest so requires”.

Subsection (4) states:

“Before setting out or amending the terms of reference the Minister must consult the person he proposes to appoint, or has appointed, as chairman”.

One can envisage a situation in which a High Court judge has been appointed and has accepted the terms of reference; then, at some stage during the inquiry, the Minister suddenly issues an alternative term of reference. There is, indeed, an obligation to consult the judge; but the judge lacks the power to veto the Minister’s decision to alter the terms of inquiry.

I could go on about the details; but I hope and trust that your Lordships will have heard enough to know that it will simply not be enough for the Government to say, “We will use the Inquiries Act as a substitute for Clauses 11 and 12”. Your Lordships’ House needs a great deal more than that.

I will deal with other parts of the Bill as swiftly as I can, because I know that there is a large number of speakers. Clauses 45 and 46 seek to abolish the common

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law defence of provocation. That was one of the matters considered by a wide-ranging Law Commission report on murder, published in 2006. Frankly, to refer back to what I said at the beginning of my speech, I would far prefer that matter to have been dealt with in the context of a wider reform of the law of murder; and, as a matter of detail, I simply do not understand why, in the Government’s search to raise the hurdle for a plea of provocation, sexual infidelity is singled out as an issue that would not be accepted as a provoking factor.

There are important provisions on encouraging or assisting suicide. As your Lordships’ House would accept, they are entirely a matter of conscience. I await with interest the debate on that issue, to which I shall listen and perhaps participate in.

Clauses 54 to 58 deal with prohibited images of children. We entirely accept the necessity for these clauses in the Bill.

Clause 61 concerns hatred against a person on grounds of sexual orientation. I am sure that most of your Lordships are aware that the clause seeks to reverse the decision of your Lordships’ House in the debate and vote last spring when your Lordships approved the amendment moved by my noble friend Lord Waddington—now Section 29JA of the Public Order Act 1986. I voted for my noble friend’s amendment at the time and I intend to do so again.

However, let me add one point. The Minister said that the Government stated at the time that they intended to bring back this matter at a later stage. I do not remember exactly what the Minister said at the appropriate moment; but surely the correct constitutional approach for the Government to have taken would have been to reverse, in another place, the amendment moved by my noble friend Lord Waddington and to have come back to your Lordships’ House in the usual way. The Government chose not to do that. Therefore, I do not think it constitutionally proper for the Government to raise the issue at the first opportunity after those events took place. Your Lordships are entitled to conclude that the Government had reached the decision that the amendment moved by my noble friend Lord Waddington was acceptable. That should, in my submission, be taken into account by your Lordships when we make up our minds how to deal with the issue which will undoubtedly be before us again as we consider the Bill.

The clauses on anonymity of witnesses broadly reflect the emergency legislation, which we previously supported. I just make two observations. First, I am sorry not to see in the Bill an initiative that received particular support from the noble Lord, Lord Thomas of Gresford, involving a statutory procedure that would give power to the judge to appoint special counsel to look into an application by the prosecution for the anonymity of certain witnesses. I know that there is a common law power for a judge to refer the matter to the Attorney-General; but it is used rarely, the procedure with respect to it is unclear and, when it is used, it has proved time-consuming. Frankly, I do not understand why the Government are not prepared to put this matter on the face of the Bill.

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My second observation is the inescapable fact that our hands are tied down tightly by the case of Davis, which itself flows from the jurisprudence of the European Court of Human Rights. Where the credibility of a witness is the decisive issue in a case, it will simply not be appropriate or, ultimately, useful to use the anonymity provisions, however tempting they are in the context of matters such as gang warfare.

As the Minister will have seen from studying the proceedings in another place, the Opposition have grave reservations about the terms of reference for the new Sentencing Council for England and Wales. I know that there is a saving clause referring to the “interests of justice”; but what worries me about all this is that judges are increasingly seen—if I may put it bluntly—as civil servants. They are not seen as independent under the throne, as they ought to be viewed constitutionally. The constraining of their discretion in the Bill is at least one and possibly two steps too far. I know that the Minister will say that a very distinguished—and indeed he is very distinguished—Lord Justice of Appeal, Lord Gage, reached certain conclusions in his report. However, his report makes it clear that he expects a number of other things to happen before the approach that the Government take in the Bill is adopted.

We were very pleased that the Government decided to withdraw those parts of the Bill that dealt with information sharing. We broadly support what remains on this matter, although we would like to see specific provisions in place to address situations where information is carelessly lost.

There are other matters of importance in the Bill to which I have not had time to refer. I am delighted to say that my noble friend Lord Henley will be winding up on behalf of the Opposition and I have no doubt that he will cover any gaps that I have left.

3.47 pm

Lord Thomas of Gresford: So here we are again, my Lords. A sensible reform of the criminal law would be to take a single topic, to carry out research and, after full consultation, to deal with that topic comprehensively but concisely in a single Bill which would pass through Parliament after proper debate and scrutiny by both Houses. It appears from what the Minister has said this afternoon that this will happen on the issue of assisted dying but not on the law of murder—which one would have thought had much wider implications for the public of this country. It does not happen, of course. I called the last criminal justice Bill, last year, a ragbag. This Bill, to adopt the word of the noble Lord, Lord Kingsland, is a miscellany of no fewer than 15 discrete and complex topics that have been thrown together. Important issues were crowded out in the other place, and at this stage it is quite impossible for me to cover even a majority of the issues that arise. I am, however, supported by my noble friends on these Benches, who will themselves deal with discrete matters.

It is a constitutional scandal that the Government's proposals for the reform of the law of murder to which I referred a moment ago—regarded as deeply flawed and unworkable by all those who have practical experience of the criminal law: judges, barristers, solicitors

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and academics as well—were never reached on the Floor of the House of Commons. Two days were allocated there for Report and Third Reading, and on the first of those days government last-minute business ensured that debate did not start until 6 pm in the evening, so that the proposals about murder were never debated on the Floor of the House.

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