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I turn now to some of the other criticisms that have been levelled at our scheme in recent weeks. I know that the noble Baroness, Lady Miller, and some organisations think the scheme will have a "chilling effect" on the right to freedom of speech and might damage an offender's prospects of rehabilitation. Let me be clear that the scheme does not prevent anyone from writing or publishing anything. If offenders want to write and publish material to develop their skills, they can continue to do so. Indeed, we recognise that the natural outflow of expression in print can greatly
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Lord Lester of Herne Hill: As I understand the Minister, it is the intention that these provisions should have a chilling effect by deterring the Ian Huntleys, for the reasons that Dr Johnson gave. Are they not to deter people by depriving them of the profits from publishing material considered by the Government to be undesirable and of no value?
Lord Tunnicliffe: There is a sense of chilling in what we are doing, for the most heinous crimes and within the context of the Act, which, as I shall go on to explain, will take account of all proper issues, particularly proportionality and the narrowing of the crime.
Baroness Stern: While the Minister is still on this part of his speech, could he address the point made by the noble Baroness, Lady McIntosh? As I understand it, the Government are of the view that what the victim of a serious crime minds, if something is written about it, is not that it is written about and that is published and many people read it but that the person gets money for it. I understand that it is the Government's view that once that money is taken away, the victim no longer suffers from the hurt and distress of having it published. Have I understood that right?
Lord Tunnicliffe: I was going to come to that point-but, to answer it now, we believe that the publication can cause offence to victims and friends, but we think that it would be a step too far-and I am sure that noble Lords would descend on us like a ton of bricks-simply to ban publication. We believe that what is particularly offensive to victims, and to families and friends of those victims, is that the criminal is able to profit from his crime by subsequent publication. We have looked to all sorts of things to make this reasonable and fair, but we see the act of profit as particularly and excessively offensive. We believe that we could not possibly address the simple act of publication, because it would go too far the other way. I am sure that all noble Lords in this House would say that it would, and that it would interfere with freedom of speech.
When an application for an order is made, the court will have a wide discretion in deciding whether to make an order and setting the amount that the offender has to repay. It will consider a number of factors before deciding whether to impose an order and, if so, the amount. These include whether details about the offence are central or integral to the publication as a whole; the social, cultural or educational value of the publication; the extent to which the material is in the public interest; and the degree to which the publication causes offence to victims and their families.
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Baroness Miller of Chilthorne Domer: I am sorry to interrupt the Minister again but this is a very important point. What sort of criteria will the judge have to decide on the educational value, for example? We have
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Lord Tunnicliffe: It will be for the courts to decide how to use these clauses. We believe that the courts are quite capable of doing so. It is for the judgment of the House whether it thinks that courts are that capable, but we think that they are and that not only the criteria in the Bill but also the general duties of courts under the Human Rights Act will lead them to sensible decisions in any case that comes in front of them.
I am aware of Amendments 106A and 107A, tabled by the noble Lord, Lord Lester, which seek to amend the factors that a court has to consider before imposing an order. The amendments have the effect of explicitly requiring the courts to have regard to the right to freedom of expression and peaceful enjoyment of property and the extent to which the imposition of an order is a proportionate interference with those rights. We have considered his proposals carefully, but we do not believe that it is right to amend the scheme in that way. We have already set out clearly in the Explanatory Notes our firm view that the scheme complies with the convention rights.
As noble Lords will know, any interference with the right to freedom of expression is justified under the convention if it is in accordance with law, in pursuance of a legitimate aim-in this case the protection of the rights of others and the protection of morals-and necessary in democratic society-the latter term referring to there being a pressing social need for the interference-and that the means employed are proportionate to the legitimate aims being pursued. Interference with the right to peaceful enjoyment of property is justified under the convention when the interference is in the public interest, subject to conditions provided by law, and is proportionate to the aim pursued.
The detailed reasons why any interference with convention rights that may result from the operation of the scheme is fully justified and therefore compatible with the convention are set out in the Explanatory Notes. Any order made applying the scheme set out in the Bill will accordingly be consistent with the convention. Indeed, the Joint Committee on Human Rights in its report on the Bill did not raise any general concerns regarding the scheme. It simply raised one detailed point about Clause 151(3)(f), which is addressed in Amendment 106A, to which I will turn shortly.
Noble Lords will also recall that under Section 6 of the Human Rights Act the courts are already required to act compatibly with convention rights and will therefore need to do so when applying this new scheme. The courts will not impose an order if to do so would in fact be an unjustifiable interference with the right to freedom of expression or the right to peaceful enjoyment of property. The amendments requiring the courts to consider the convention rights are therefore unnecessary. It is also-
Lord Lester of Herne Hill: I will not interrupt again, but since the noble Lord is dealing with-
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Lord Bach: I must remind noble Lords that this applies not only to Report; it applies to interruptions of speeches in any event:
"A member of the House who is speaking may be interrupted with a brief question for clarification".
That is what the noble Lord is entitled to do, but lengthy or frequent interruptions may not be made, even with the consent of the Member speaking. Of course, the noble Lord should ask his question if it is for clarification, but if it is any more than that, such as a debate, this is not the appropriate time for it.
Lord Lester of Herne Hill: I am grateful to be reminded of what I know already. I have not yet asked my question, but the Minister was explaining why my amendments are unnecessary and why the convention rights are secure. I rose because I asked before for case law of any kind on which the Government rely to show that these provisions, in this context, are compatible with the legal certainty and proportionality-not general case law, but specific case law. Does the Minister have those, please?
Lord Tunnicliffe: There is no case law. I believe that that is true for much of the Human Rights Act. That does not mean that courts do not take account of that Act all the time. I am proud to represent a Government that brought in the Human Rights Act and that that Act is impacting on the behaviour of courts and how they set about their business.
It is also important to bear in mind that, when deciding whether to impose an order, the courts will naturally balance the various factors that they have to consider in reaching their decision. The need for such a balancing exercise is plain from the clauses, which provide a list of factors to be considered, some of which are likely to tend towards an order being made and others that are not. The court will also be free to take into account any other factors that it considers to be relevant when carrying out that exercise.
I now turn to the government amendments. In Committee, the noble Baroness, Lady Stern, asked me to clarify whether the scheme would truly apply to offenders who exploit information about any offence, regardless of the seriousness of that offence. I can confirm that that is indeed the effect of the current clauses. However, we have been reflecting on this issue over the summer and government Amendments 101, 102, 103 and 112 should help to allay concerns about the breadth of the scheme.
Those amendments will narrow the scope of the scheme so that it applies only to offenders who exploit material about serious offences, namely those offences that can be tried on indictment-that is indictable-only offences and offences that are triable either way. It is, after all, people profiting from accounts about serious offences, not low-level summary offences, who are most likely to be of concern. To provide additional reassurance to the House and after extensive consultations, we intend to bring forward amendments at Third Reading to further limit the ambit of the scheme to indictable-only offences. Limiting the scheme to those who exploit material about offences that are triable only on indictment will be a major move on our part.
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Noble Lords may also recall that the Joint Committee on Human Rights was concerned about the reference to the "general public" in Clause 151(3)(f). It was suggested that it would be difficult for a court to measure the extent to which the general public was offended by a publication when weighing up whether to impose an exploitation proceeds order. I know that that view is shared by other noble Lords, as it was raised during the debate in Committee on 21 July. On reflection, we think that that is a valid point. Government Amendment 107 therefore deletes the reference to the "general public" from Clause 151.
Importantly, however, the reference to the extent to which the victim or family of the victim are offended by a publication will remain. It would be much easier for the court to measure the degree to which victims or family members were affected than it would be to gauge the strength of public feeling.
I hope that I have answered the points made by the noble Lord, Lord Borrie. He brings forward what I called in my previous life the de minimis dilemma. Yes, this provision will relate to only a small number of cases. Nevertheless, our judgment is that those cases are important. The noble Lord, Lord Soley, talked about the case for flexibility. It is quite clear that the court can consider all factors and will reasonably do so. The impact on rehabilitation, the impact on victims and the victim's views are all things that the court should consider, but the key issue about flexibility is addressed by the move that we have made to indictable-only offences. Non-lawyers in the House may not know what that means. Offences that are triable either way include sexual assault, burglary, causing death by careless driving, fraud, membership of a proscribed terrorist organisation and drugs offences. When we bring forward our amendments at Third Reading, none of those offences will be included in the Bill.
The noble Lord, Lord Lester, made his case about the Human Rights Act. I thank him for the time that he spent discussing that with us and I am sorry that we have not come to a common understanding. The noble Baroness, Lady Rendell, made a brilliant speech about a French novelist, whom I have never heard of. I cannot possibly judge whether heinous crimes were committed by that novelist or not, but the contribution that she described would be considered by the courts if a parallel situation were to exist. The noble Baroness, Lady Stern, suggested that hundreds of thousands of people would be impacted. Our view in the impact statement was two per year. I hope that I answered the point made by the noble Baroness, Lady McIntosh.
The noble Baroness, Lady Miller, quoted from the letter that I wrote, particularly the Leeson part. She claimed that his was a victimless crime. That would no longer be included under the Third Reading amendments that we intend to introduce.
The noble Lord, Lord Henley, started to make a speech in support of us and I hope that as an individual
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1 pm
I hope that we will get support for this provision, the bipartisan nature of which goes back to before the previous election. Michael Howard, the then leader of the Tory party, said:
"We don't think criminals should benefit from their crimes-society should draw a clear distinction between right and wrong".
Later in the same discussion, he said:
"What I want to see is a presumption against criminals benefiting from their crimes in this way".
As I set out in my letter to the noble Baroness, Lady Miller, there was cross-party support in the other place. I am afraid that I cannot be responsible for its conventions. During Committee in the other place in March 2009, Shadow Justice Minister Henry Bellingham stated,
"We have supported the Government's policy of including part 7 on criminal memoirs in the Bill and have taken the view for some time that people who commit heinous crimes should not benefit financially from them after their release or, as in some cases, while they are in prison".
Despite some misgivings about the finer detail of the Bill, the Liberal Democrat Home Affairs spokesman, David Howarth, stated:
"Like the hon. Gentleman, I have no objection to the general principle-indeed, I support it-that people should not benefit from their own wrong. Civil remedies in this area are more difficult to obtain",
- "as some academic commentators would have us believe".-[Official Report, Commons, Coroners and Justice Bill Committee, 10/3/09; col. 680.].
I hope that I have touched upon all of the points. Finally, I again remind the House that the provisions in this part of the Bill stem from a commitment in the Labour Party's 2005 election manifesto. The relevant passage reads,
- "we will develop new proposals to ensure that criminals are not able to profit from publishing books about their crimes".
I hope that in the light of all I have said, the House will accept the need for these provisions, as modified by the Government amendments, and I invite my noble friend Lord Borrie and the noble Lord, Lord Lester, to withdraw their amendments. If they will not, I invite the House to vote against them.
Lord Borrie: My Lords, first, I thank the Minister for a very comprehensive response to the debate. He will have noticed, as I did, that apart from the fairly modest and partial support of the noble Lord, Lord Henley, every single person who spoke in the debate was critical of and generally against Part 7 of the Bill. In my view, having listened to the debate, Part 7 is an example of gesture politics. It is a gesture in the direction of victims of crime, for whom we must all have sympathy because the state of anguish and offence that they may feel when an offender profits from a book or article written by him is a serious matter.
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However, it is no more than a gesture, because under these proposals the victim is not to receive a single penny of any proceeds that the Government will obtain under the new action that will be permitted. The Government admit that the new powers are to be used only rarely. Almost every time that the Minister has referred to these matters in detail, whether privately yesterday or today in this House, he has emphasised how very unusual it would be and in how few cases the proceedings suggested by Part 7 will result in proceeds being recovered.
The proceedings which are described in Part 7 are hedged around with restrictions and qualifications, and to some extent that is welcome because it allows for the literary value of publications, and for the general public interest to be observed. However, as the noble Lord, Lord Lester of Herne Hill, has clearly pointed out-and in this House, he has a particular knowledge of this field-the uncertainty of application of these proceedings is too vague, and not proportionate to the mischief that is said to be involved. That is because of the vagueness that, almost inevitably, has to appear in the legislation.
To say that the Government are attracted to it may be an exaggeration, but they are still resolute in their desire to have Part 7 on the statute book. The Government are not willing to modify it on the lines helpfully proposed by the noble Lord, Lord Lester of Herne Hill, despite their inability, which has been confirmed today, to show that there would be any European case law for the compliance of this part of the Bill, and the things that can take place under it, with the European Convention on Human Rights.
It is impossible to summarise the breadth, width and thoughtfulness that went into so many of the speeches that we have heard today, but in one way and another they all say to the Government, "You haven't got it right, even if there is some basis for this sort of legislation. You should withdraw it". They are unwilling to withdraw it, and I feel that I have to divide the House on this matter. It is not my custom to do that while sitting on the Government Benches, which I have been on for at least as long as the noble Lords on the Front Bench. On this occasion, however, I feel that this has hardly anything to do with party politics but is a matter of principle. I feel that I should ask to divide the House unless, perhaps, the Minister does that the other way around.
1.07 pm
Addington, L.
Astor, V.
Best, L.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Bradshaw, L.
Burnett, L.
Chidgey, L.
Chorley, L.
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Cotter, L.
Dholakia, L.
D'Souza, B.
Evans of Temple Guiting, L.
Falkland, V.
Falkner of Margravine, B.
Garden of Frognal, B.
Goodhart, L.
Greengross, B.
Hamwee, B.
Harris of Richmond, B.
Howe of Idlicote, B.
Hylton, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L. [Teller]
Lester of Herne Hill, L.
Lewis of Newnham, L.
Listowel, E.
Mackie of Benshie, L.
McNally, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Neuberger, B.
Newton of Braintree, L.
Northover, B.
Norton of Louth, L.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L. [Teller]
Saltoun of Abernethy, Ly.
Sandwich, E.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Adams of Craigielea, B.
Ahmed, L.
Anderson of Swansea, L.
Archer of Sandwell, L.
Bach, L.
Bernstein of Craigweil, L.
Bhattacharyya, L.
Bilston, L.
Boyd of Duncansby, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Colville of Culross, V.
Corbett of Castle Vale, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Denham, L.
Desai, L.
Donoughue, L.
Dubs, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Gale, B.
Gavron, L.
Giddens, L.
Graham of Edmonton, L.
Grocott, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hoyle, L.
Hughes of Woodside, L.
Jay of Paddington, B.
Judd, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Lea of Crondall, L.
Lipsey, L.
McDonagh, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Masham of Ilton, B.
Mawson, L.
Maxton, L.
Mitchell, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Manchester, L.
O'Neill of Clackmannan, L.
Prosser, B.
Ramsay of Cartvale, B.
Richard, L.
Ripon and Leeds, Bp.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Simon, V.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tunnicliffe, L. [Teller]
Turner of Camden, B.
Warwick of Undercliffe, B.
Wilkins, B.
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Clause 145 : Qualifying offenders
Clause 146 : Qualifying offenders: service offences
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