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In Amendment 106, especially, and Amendment 107A, I have endeavoured, in a rather pathetic way, to find some way of writing something into the Bill, not very satisfactorily, that might deal with this. Obviously, the Minister will wish to explain whether he is willing to accept that or something very similar to it. It is important that we know that. It is also important to know whether there is any Strasbourg case that Ministers can point to in this debate that supports their belief that this satisfies either legal certainty or proportionality in the context we are talking about. I know of no basis in Strasbourg case law that could possibly support a view that these provisions as they stand are convention- compliant. I very much hope that the Minister will be able to enlighten us because the legal advice he will have received about why it is compatible will surely have pointed to whether there are any Strasbourg cases-I bet there are not-and I reserve the right, if I may, having heard that, to reply to him later in the debate. I hope that when the Official Opposition come to decide what to do they will join those of us who want to get legislation passed that is fit for purpose
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Baroness Rendell of Babergh: My Lords, I rise to support these amendments. I believe I am the only professional writer-that is, one who lives solely by her writing-to have spoken during the course of the Bill, and therefore what I have to say may be of some help.
At Second Reading, my noble friend Lord Borrie cited memoirs by Ian Brady, Mary Bell and Dennis Nilsen-he mentioned him again this morning-and went on to speak of the prison diaries of a former Member of Parliament and of a fellow Member of your Lordships' House. The noble Baroness, Lady Stern, spoke of Silver Threads by John Williams and John Hoskison's Inside: One Man's Experience of Prison. Perhaps, though, the most famous and distinguished example of a criminal whose memoirs, novels and plays can be said to stem entirely from his experience of crime and imprisonment is the French author Jean Genet, who has already been mentioned by my noble friend Lord Soley.
Genet, who was born in 1910, was a social outcast who, as a novelist, transformed erotic and even obscene subjects into what has been called a poetic vision of the world. He began his life of crime as a child. His mother abandoned him to the care of the assistance publique. He lived in state institutions and spent five years in the notorious reform school at Mettray. There he lived through the degrading experiences that were later described in his novel, Miracle of the Rose, in which he pondered the meaning of imprisonment.
After deserting from the Foreign Legion, he wandered around Europe, to be charged in various countries with vagrancy, theft, and homosexuality, which was then a crime. Here it may be apposite to say that Genet's obscene or pornographic work is never gratuitous or designed to excite or titillate. Much of it explores man's solitude and the meaning of shame and abjection.
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More time was spent in prison, but in 1939 he began to write, and the outstanding nature of his work attracted the attention of Sartre, de Beauvoir and Gide. Under French law, automatic life imprisonment ensued after 10 convictions and, when Genet was convicted of burglary for the 10th time, Gide, Sartre and Cocteau, among others, successfully petitioned the President of the Republic for his reprieve and release.
Genet subsequently wrote a poem that praised criminals' values and in which a prison cell becomes a centre for dreams and meditations. His autobiography, The Thief's Journal, followed. This, about his youth and what he called a forbidden universe, is a prime example of the kind of memoirs that we are talking about here-a convicted criminal profiting from the publication of a record of his experiences.
My noble friend Lord Borrie pointed out at Second Reading that the publication of a criminal's memoirs may in some cases have beneficial outcomes in the rehabilitation of the offender. He cites the learning of
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In 1966, Genet largely gave up writing and spent his time giving lectures and supporting various radical causes. Concern for the victims of criminals is a theme that runs through this Bill, although the victims are not to recover compensation. To return to my own theme, those who suffered from Genet's crimes were mostly the people from whom he stole. I do not know whether any of them believed that his large output of distinguished literary work compensated them, but I do not see how anyone could be injured by the work itself. I can, however, see the damage that may be caused by censorship.
If kleptomania exists, it looks as though Genet suffered from it-some pathological condition that impelled him to steal. For a story is told that he was so addicted to theft that he stole diamonds from his hostess while at a literary party. Such a condition may well be true of many compulsive thieves whose early lives were as tragic as Genet's. This is a matter only for speculation, as is the possibility that what Genet wrote may have been restrained if, as the noble Baroness, Lady Stern, has put it, he had come under the dampening effect of measures such as these.
Baroness Stern: My Lords, I, too, have added my name to the amendment. I should like to say how grateful I am to all those involved in trying to deal with this part of the Bill who have taken it so seriously, and to outside organisations, such as English PEN and the Howard League for Penal Reform, which have worked hard to set out and explain to the wider world why this is such a flawed proposal.
We had a fair amount of time between Committee and Report, so I had a chance to try to get a little nearer to the bottom of how this very large piece of law, which in theory covers hundreds of thousands of people-all those with a conviction for an indictable offence and with a vast range of artistic expression-came into anyone's mind. Why did the Government want to put this into the Bill? I am aware that there were consultations here and in Scotland, but it is clear that very small numbers responded. Most people who work in offender rehabilitation have never heard of these consultations, although presumably that was their fault because they would have been on a website somewhere.
I thank the noble Lord, Lord Bach, for his reply to my Written Question during the recess. He told me that there were 24 responses to the consultation, including two from victims' organisations, not including Victim Support, and one from a relative of a crime victim. I got a clue about from where this might have come from reading the equivalent Scottish documentation and I thank the Minister for the information about Scotland included in his letter of 14 October to those who had spoken in Committee. The Scottish material talks about preventing "defamation of murder victims". I began to see that a sensible germ of an idea was at the basis of all this. It is clear that defamation of
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In his letter of 14 October, if I understand him correctly, the Minister says, as consolation, that the scheme does not prevent publication of any material. It prevents only the author keeping the money earned by it. The letter suggests that the books I mentioned by ex-prisoners give valuable insights into imprisonment and prison reform and that they could still be published, but that the authors would not be able to keep the money they made. From a Government who are committed to offender rehabilitation, this approach is absurd.
The noble Baroness, Lady Rendell, is one of the most well known writers in the world. She has explained the importance of writing for rehabilitation better than many of us could. Writing, painting and making films are all better activities for society than violence, robbery and theft. We should welcome such rehabilitation and not take away the lawfully earned money of the rehabilitated.
Lord Ramsbotham: I should declare an interest as president of the Arts Alliance and former chairman of the Koestler Trust. Has the Minister or any Minister from the Ministry of Justice been across the river to the South Bank to see this year's Koestler exhibition of art by offenders, an exhibition curated by six women offenders on release from Downview prison? It is a quite outstanding display which demonstrates the value of the arts in the rehabilitation of offenders. The arts do not necessarily contribute to the prevention of reoffending as such but, by encouraging and developing the self-esteem of the person engaged in the activity, they encourage them to become involved in the education, training and work education that may lead to their being able to live a law-abiding and useful life. They therefore have a very pertinent part to play in encouraging the development of offenders.
I strongly support these amendments because all the members of the Arts Alliance-which consists of more than 500 voluntary organisations involved in all aspects of the arts and in bringing the arts to offenders, whether in prisons, psychiatric hospitals or probation areas-are extremely alarmed about the implications of this legislation. The impact has not been properly thought through. As the small print of the Bill reveals, it could have an impact on organisations that are involved in the delivery of arts to offenders-which is part of protecting the public. My strong recommendation, therefore, is that this whole part of the Bill should be withdrawn and rethought because it really is a sledgehammer to crack a small nut. I believe that the nut can be cracked in a much more effective way.
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Baroness McIntosh of Hudnall: I apologise for not having contributed to the debate in Committee and therefore coming to the argument very late. To begin, may I say how strongly I agree with what has just been said by the noble Lord, Lord Ramsbotham, and other speakers thus far, including my noble friend Lord Soley? I do not pretend to have even a fragment of the expertise of the noble Lord, Lord Lester, in the matter of the human rights implications of the proposal, so I neither can nor should address it, but what I would like the Minister to explain is this. In what way will the legislation address the harm that it seeks to redress? Perhaps I have misunderstood it, but the legislation addresses only those circumstances in which prisoners or ex-offenders are paid for the work they produce. It seems possible, at least in principle, that someone could publish work that has the capacity to offend or distress victims or their families and not be paid for it, but the distress and harm would be exactly as if the writer had been paid. I cannot see how the linking of distress and harm to victims and their families-which is something we certainly should be concerned about-with payment in any way seriously allows the mitigation of that harm to be achieved.
This proposed legislation falls at the first hurdle that must be the test of any legislation, which is that it does what it sets out to do. When the Minister comes to reply, could he address that issue?
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his lengthy letter of 14 October, which sets out in greater detail the Government's thinking on this issue. However, having read it and listened to the powerful comments and questions put by Members of your Lordships' House today, I think that the Government should take away and rethink the set of clauses dealing with this issue.
The point made by the noble Lord, Lord Soley, is powerful because the question of the trigger is the essential one, but it is far from clear in the Bill. Perhaps I may cite the Minister's letter where he talks about seeking the consent of the Attorney-General, who will weigh up matters of public interest. Although the Government have now tabled an amendment to address the issue of public distaste, the Attorney-General will nevertheless have to weigh up something when a case is put before her. The Minister then goes on to talk about how the court will have,
Lengthy arguments will arise in court where offenders will no doubt have great difficulty representing themselves-we have not touched on this issue-but what it comes down to is the chilling effect spoken about by many noble Lords.
The Minister's letter does not give any sound examples of what drove the Government to introduce this provision. The noble Baroness, Lady Stern, asked why that is so, but none of the examples quoted in the four pages of the Minister's letter really answers the question. The Minister will recall that he quoted the case of Nick Leeson. That, as the noble Lord mentioned, is clearly a victimless crime for the purposes of this Bill. If that case informed some of the thinking behind these
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The noble Baroness, Lady Rendell of Babergh, made a powerful point. There is no doubt that, as I mentioned, there will be a chilling effect, even when this is never going to come to court because the books or works of art will never be produced. That is something that we need to worry about.
This is not adequately drafted. No doubt there are other approaches and solutions that would not have this effect. We are unhappy with the way that these clauses are drafted.
The book Cries Unheard, which was one of the major reasons why the Government moved down this road, was written by someone else. The Government do not address at all the issue of books written by someone else, and although I gather Mary Bell received a payment for it-we have never seen any evidence of that, but she may have received a payment-this would not prevent someone else writing about a crime. This catches only the person who has written themselves about their crime, which leaves a bit of a gap if the Government are trying to prevent the victims from suffering more.
For all the reasons that we have heard today, we shall be supporting these amendments.
Lord Henley: My Lords, I hesitate to interpose myself between the Government Front Bench and their Back Benches or, for that matter, noble Lords from the rest of the House, who do not seem to like what the Government are attempting to do.
I shall briefly set out the Opposition's point. We accept that people who have committed awful crimes should not be allowed to profit from that crime by selling their story, so there is some merit in what the Government propose. We also note, and this is relevant in this House, that it is a matter that was promised in their manifesto at the last election. The Minister nods.
Having said that, it is also important to remember the point made by the noble Lord, Lord Lester, that Part 7 was hardly discussed in another place. It is unfortunate, when a new crime-and this is a new crime-or a new procedure is being added to the statute book, if these matters are not properly discussed in another place as well as in this House. I hope that the Minister can comment on that. It is obviously rather late in the day for that to be rectified, but procedures are such that the Government should ensure that these matters are properly discussed.
In some respects we are slightly more supportive of the Government. We note that nothing in these provisions actually prevents publication. We do not think that there is an infringement of free speech. In fact, free speech is not the issue; we are talking about paid speech. I dare say that the noble Lord, Lord Lester, will correct me if I am wrong on this, but there is no human right to be paid for saying or writing what you wish.
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The clauses in the Bill allow an application to be made for profits or benefits to be confiscated. A court may hear an application for an order-
Lord Lester of Herne Hill: I think the noble Lord was asking me to respond, in a way. The answer is that it is not just the right to communicate with the public; any impediment-for example, a tax on free speech, newsprint or costs-or any other burden upon free speech implicates Article 10. That is accepted in the Explanatory Notes. I think the Government will accept that there is an issue under Article 10 of the convention, as well as on the right to property.
Lord Henley: It is my own fault for offering an opening to the noble Lord, and I will try to restrain myself from doing that in future. I think the Minister will accept that it is still possible to publish; there is just the impediment that he referred to that the individual cannot be paid for it. He might remember what Dr Johnson said about people not writing for money, which has some bearing on that. If he does not know the quotation, I think the great doctor said, "No one but a blockhead ever wrote but for money". I can have that corrected if I have got it slightly wrong.
A court may hear an application for an order only if it has been authorised by the Attorney-General. We have voiced doubts at times about the Government's proposals, but we accept that checks, balances and safeguards are built into the process. It is not simply a grabbing exercise but what we trust could be a carefully targeted system that would deny offenders convicted of some of the worst crimes the opportunity to profit from their misdeeds.
Having said that, we await assurances from the Government on a number of points. Clearly there are people who have reformed or are reforming and who make a positive virtue out of their past offences. An ex-convict who draws on his experiences to make critiques of penal policy, or who writes about their experiences as a warning to others, should not, under any reading of these clauses, be swooped on by the enforcement authorities. When determining the application, the court will be mindful of such requirements in Clause 151(3). We have asked the Minister to confirm that. We think that these orders should be applicable only in the case of the most serious offences. Again, we would like to have some confirmation to that effect.
The noble Lord, Lord Lester, has proposed Amendments 106A and 107A, which would put in the Bill a direct reference to the convention rights. No doubt the noble Lord might intervene again, but while he has made a good point, in our view it is an unnecessary one; as I understand it, the courts have to make their decisions in the light of the convention in all cases. His amendments are therefore unnecessary.
It is clear to the Government that there is significant opposition to the clauses in the Bill. However, we have endorsed the principle behind them, and we look now for assurances from the Government to the House that they have struck the right balance between protecting the right to free speech and the rights of victims and
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Lord Tunnicliffe: My Lords, I thank the noble Lord, Lord Henley, for the only support I got in the whole debate. I thank all noble Lords for this extensive debate on this interesting area.
We have not changed our view that it is wrong for a criminal to cash in by exploiting the story of his or her crime, especially in cases where the offence has already inflicted immense suffering on victims and their families. We felt so strongly on this point of principle that we included a commitment to legislate in this area in the Labour Party's 2005 election manifesto.
Earlier this month I wrote to the noble Baroness, Lady Miller, giving details about those offenders who had prompted public debate after receiving payment for material about their crimes. There are several more, including the Ian Huntleys of this world, who have reportedly written material that has not yet been published. I do not intend to go over each case cited in my letter, but one thing is clear: offenders will continue to benefit in the future from publishing material about their crimes if we do not take this opportunity to do something about it.
My noble friend Lord Borrie has argued that the scheme is not worth while because it will rarely be used. It is, of course, hard to predict precisely how many cases there will be each year. We suggested a figure of two a year in the impact assessment published alongside the Bill; this was on the basis of past cases that have caused concern. However, in some years there could be a greater or smaller number. Even if the scheme is rarely used, it does not mean that we should turn a blind eye to this problem. The fact that the scheme may be used in only a small number of cases is no reason for saying that people who cash in on their crimes should be outside the reach of the courts.
My noble friend also cited the existence of the prison rules and existing legislation on confiscation as a reason for not introducing these provisions. I recognise that the prison rules provide some degree of protection, but history shows that they cannot fully address the problem. Crucially, prison rules bite only when an offender is in prison. As to the Proceeds of Crime Act 2002, this was not designed with criminal memoirs in mind and its potential application to such cases is doubtful. Even if the Act could be utilised, confiscation orders are imposed at the time a person is convicted, whereas criminal memoirs are often published months or years after the conviction.
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