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Lord Bach: My Lords, this amendment makes a minor technical change to Clause 9 by clarifying that the reference to "that section" at the end of new Section 54(1)(aa), which is inserted by Clause 9(1) of the Bill, actually means Section 54A. In doing so, it corrects a minor error in the drafting of the current print of the Bill. I emphasise that this amendment does not in any way alter the policy on which the House is in broad agreement; it merely ensures that the drafting is correct. I beg to move.
5: Clause 38, page 40, line 25, leave out from "reference" to "is" in line 26 and insert "in this Act to imprisonment for a term not exceeding 12 months (including any such reference inserted in any other Act)"
Lord Bach: My Lords, Amendments 5 and 6 are minor technical amendments which make sure that the transitional provision in Clause 38 works for offences created both in the Bill itself and by amendments made by the Bill to other Acts, in particular PPERA. The effect is to ensure that any offence committed before Section 154(1) of the Criminal Justice Act 2003 came into force-which increased the maximum term of imprisonment that could be handed down by magistrates' courts from six months to 12 months-should remain subject to the six months' maximum. I beg to move.
Lord Bach: I am so sorry, my Lords; it is my fault. This group includes Amendments 5 and 6, both of which I hope I have spoken to. Perhaps I may now speak to Amendments 7 to 11 and then invite the noble Lord to speak. I am grateful to him for the way in which he has dealt with this.
I turn to Amendments 7 to 11. I am delighted to see the noble Lord, Lord Marlesford, in his place. These amendments take forward the substance of an amendment successfully moved on Report by the noble Lord, Lord Marlesford, which required that the commission obtain a warrant from a magistrate before entering premises to inspect documents. In addition, it ensures that the amendment is workable in practice by making clear the matters on which a magistrate would have to be satisfied before granting a warrant. We have also taken this opportunity to clarify the scope of the entry power.
Government Amendment 6 seeks to amend paragraph 2(2) of new Schedule 19B, which sets out the commission's powers of entry and inspection in relation to regulated individuals and organisations listed in paragraph 2(1). This supervisory power allows the commission to enter premises, at reasonable times, to inspect documents relating to the income and expenditure of those to whom the power applies. This is not a power for use in connection with investigations; rather, it is for use where the commission needs access to the financial and related documentation of political parties and other regulated entities in connection with its regulatory role.
The effect of our amendment is to place a requirement on the Electoral Commission to obtain a warrant from a magistrate before it can enter the premises of a supervised individual or organisation to inspect documents relating to their income and expenditure. A warrant will not be issued automatically. Before a justice of the peace may issue an inspection warrant in relation to premises occupied by any organisation or individual listed in paragraph 2(1), he or she must be satisfied, following information provided on oath by the commission, of three things: first, that there are reasonable grounds for believing that on those premises there are documents relating to the income and expenditure of the organisation or individual; secondly, that the commission needs to inspect the documents for the purposes of carrying out functions of the commission other than investigatory functions; and, thirdly, that permission to inspect the documents on the premises has been requested by the commission and has been unreasonably refused.
An inspection warrant will be valid for one month from the date of issue and will authorise a member of staff of the commission to enter the premises specified in the warrant to inspect documents relating to their income and expenditure. The person executing the warrant will be required to produce the warrant and documentary evidence that they are a member of the commission staff.
The amendment also retains the existing safeguards on the use of this power. So the power must be exercised at reasonable times and cannot be used to enter premises and inspect documents in connection with an investigation by the commission of a suspected offence or contravention. Additionally, the power is confined to financial and related documents. In practice, the power generally underpins the commission's ability to visit parties co-operatively to verify information provided by them, such as claims for policy development grants.
Amendments 8 to 11 are consequential amendments to Amendment 7. I hope noble Lords, particularly the noble Lord, Lord Marlesford, will be content with this amendment, which takes forward the principles of his amendment on Report. I beg to move Amendment 5.
Lord Marlesford: My Lords, I am most grateful to the Minister and to the Government for the way in which they have carried forward the intention behind
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Lord Tyler: My Lords, I ought to declare an indirect interest in that my wife is not only a magistrate but currently chairman of the Bench and therefore has a very considerable interest in what is laid down as the responsibilities of justices of the peace.
Schedule 1, dealing with the investigatory powers of the commission which is now substantially improved by these amendments, has to be seen in the context of the full discussion on the Bill. Before I turn to the amendments, I want to put on the record, as it is probably the final opportunity to do so, our gratitude on these Benches to the Minister and his team for the exemplary management of the Bill and for the very considerable trouble which they have taken to consult us at all stages, not just on this issue but on all issues, inside and outside this Chamber and throughout the Grand Committee proceedings. In particular, I thank the Minister for the assurances that he was able to give us on Report on 17 June. I will not go into any detail as that would be inappropriate but, in col. 1101 of the Official Report, he made some very helpful suggestions about ways in which further considerations could be given to eligible expenditure.
We are coming to the end of a very interesting and useful exercise but I detect, on many sides of the House and perhaps also from the Minister, a recognition of something of a damp squib in the Bill. It is certainly not fulfilling the hopes of a thorough clean-up with a full implementation of the Hayden Phillips agreement. The Minister has been quite frank that that was never on the cards as far as the Government were concerned. We are certainly not taking big money out of politics. The Minister and Labour colleagues in the other place may share my disappointment that it would appear that Mr Straw will ask them to restore the rights of tax exiles and tax millionaires, who live abroad and who do not pay UK taxes, to fund Conservative candidates-a curious situation. Therefore, the context of Schedule 1, which is now before us, is still unsatisfactory. This is unfinished business, and I hope that we will see more substantial change in due course because, if the context is not appropriate, the sanctions and the enforcement procedures with which this group of amendments is concerned are clearly of only secondary value.
The inspection warrants and the process that the Minister has now set out are a considerable improvement. I pay tribute to the noble Lord, Lord Marlesford, for his amendment, which we supported successfully, but we are all indebted not just to him but to the Minister for responding so effectively. I am sure that justices of the peace will be much more encouraged by the clarity with which this issue is now approached. The seriousness of the potential offences is better dealt with in the way that it is now set out. I believe that the solution that the Minister has come up with is more accessible, more intelligible, much tidier and comes together in
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Lord Bates: My Lords, I thank the Minister for the amendments he has brought forward and, in doing so, pay tribute to my noble friend Lord Marlesford for bringing forward these important checks and balances on the potential for an overzealous application of the powers of investigation granted to the commission under the Bill.
As this will be my final opportunity to speak on the Bill, I also extend to the Ministers my thanks and the thanks of my noble friend Lord Henley for their courtesy in the way that they have dealt with us. We also thank the members of the Bill team for engaging in correspondence with us in a timely and thoughtful way. We appreciate that.
Lord Bach: My Lords, I thank the noble Lords, Lord Tyler and Lord Bates, for what they have just said. This has been an interesting Bill-there were moments of great interest-which may not yet be finally resolved, as the noble Lord, Lord Tyler, hinted. However, in its own modest way, the Bill advances the cause of making our way of doing politics that little bit better. No greater claims have been made for it. I thank the noble Lord, Lord Bates, very much on behalf of the members the Bill team. In my opinion, having experienced a few Bills, they have been quite outstanding. In addition, I also thank noble Lords from the Back Benches and the Cross Benches who have taken part in the Bill. During the Committee stage, I was sometimes surprised, and sometimes just a little concerned, to see so many noble Lords in the Moses Room at the start of an afternoon session, but everyone contributed very helpfully to the Bill and, in all but one regard, I think it leaves this place in a better form than it came in, which is the test for us.
"(2) A justice of the peace may issue an inspection warrant in relation to premises occupied by any such organisation or individual if satisfied, on information on oath given by or on behalf of the Commission, that-
(a) there are reasonable grounds for believing that on those premises there are documents relating to the income and expenditure of the organisation or individual,
(b) the Commission need to inspect the documents for the purposes of carrying out functions of the Commission other than investigatory functions, and
(c) permission to inspect the documents on the premises has been requested by the Commission and has been unreasonably refused.
(a) at any reasonable time to enter the premises specified in the warrant, and
(b) having entered the premises, to inspect any documents within sub-paragraph (2)(a).
(a) the warrant, and
(b) documentary evidence that the person is a member of the Commission's staff,
for inspection by the occupier of the premises that are specified in the warrant or by anyone acting on the occupier's behalf.
(8) In this paragraph "investigatory functions" means functions of investigating suspected offences under this Act or suspected contraventions of restrictions or requirements imposed by or by virtue of this Act.
(a) a reference to a justice of the peace is to be read as a reference to a justice of the peace or a sheriff;
(b) a reference to information on oath is to be read as a reference to evidence on oath."
Lord Pearson of Rannoch: My Lords, to save time, I have agreed not to table an amendment but to speak for two minutes on the Question that the Bill do now pass. I had thought of tabling at Third Reading an amendment to Clause 5 of the PPER Act to require the Electoral Commission to report on elections within a set period of time; say, four months. That seems generally sensible, but it would have specifically ensured that the commission reported in a timely fashion on the problem of badly folded ballot papers, which resulted in the UK Independence Party losing many thousands of votes in the European elections on 4 June. I propose instead to report that I have since spoken to the commission's chief executive, who has
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Finally, I know that it may now be against our modern bureaucratic school rules, but I, too, would like to place on the record my gratitude to the noble Lord, Lord Bach, and to his team, for his endless clarity, patience and courtesy throughout the progress of the Bill. How he managed it while also taking through the Coroners and Justice Bill and answering a good share of Oral Questions, I simply do not know.
Bill Main Page
Copy of the Bill
7th Report from the Delegated Powers Committee
8th Report from the Joint Committee on Human Rights
16th Report from the Joint Committee on Human Rights
Lord Waddington: Before I come to Clause 61, there are one or two general points I should make. The issue is not whether there should be protection for gays against those minded to stir up hatred against them or whether there should be a new offence of stirring up hatred on the grounds of sexual orientation. Last year, the House decided that there should be such an offence, and there was no disagreement about the matter. The issues today are, first, whether there should be a provision to protect free speech, similar to that in the offence of stirring up religious hatred, and, secondly, a quasi-constitutional point about whether it is right that the Government should be using this Bill to repeal a provision they put on the statute book less than a year ago.
As a result of the Government's actions, we are in an interesting position. When I spoke a year ago, my job was to satisfy the House that we should attach to the new offence a provision safeguarding free speech. Now the boot is on the other foot, and it is for the Government to try to show what conceivable public benefit will flow from the repeal of that provision. It is up to the Government to show why there is this urgency to scrap the free speech safeguard without waiting to see whether in practice it causes prosecutors or anyone else the slightest difficulty.
I find it impossible to understand the Government's position. Do they say that the words they seek to repeal have no effect and are unnecessary? If so, the words are doing no harm either, and by putting Clause 61 in the Bill, the Government are just wasting our time. Or are they saying that the words would cause mischief? If so, they had better tell us how. As the words are clear enough, and by no stretch of the imagination can
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even when such discussion or criticism is not threatening or intended to stir up hatred? Surely that is what the police are going to assume, for if the free speech clause is unacceptable to the Government, what possible reason can there be for that opposition, other than that the Government feel that discussion or criticism of sexual conduct is of itself threatening and likely to stir up hatred and had better be stopped?
After that, the Government have a plain duty to tell us why it is right to have a free speech safeguard in the religious hatred offence but no free speech safeguard here. Some have argued that there is a greater need for protecting freedom of expression in the religious hatred offence than in this offence, but how on earth can that be right when none of the cases of the police overstepping the mark has occurred in the area of religion and all have occurred in the area of sex? There can be no substance in that argument.
Some have gone on to argue that this offence is more like that of race hatred than the offence of religious hatred. Religion, they say, is a matter of choice, but sexual orientation, like race, is wished on one. Many Muslims who talk of punishment for apostasy would deny that religion is a matter of choice, but even if it were, the assertion would get us precisely nowhere. What possible relevance does the alleged immutability of sexual orientation have to the question of whether the discussion of sexual behaviour should be allowed under the law or banned on pain of seven years' imprisonment? The answer, of course, is none.
Rowan Atkinson told us of his worry that, without the safeguard, people would be unsure of what they were allowed to say and fearful of expressing a viewpoint on many matters. He helps us to remember that not only the churches and religious believers fear that revoking the safeguard will be taken as a signal that criticising homosexual behaviour could be a criminal offence. You do not have to be religious to be interested in, and wish to debate freely, whether children from stable heterosexual family backgrounds do better than others, and the merits and demerits of gay adoption.
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