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I look forward to hearing from the Government on their Amendments 20 to 22, which are about the restriction to indictable offences only. We do not disagree with the Government's attempt to tighten this up. However, we do not think that it will make much difference. Far more important was the Government's statement last week that they would restrict these matters to offences,

Those words were quoted by the noble Lord, Lord Lester. Merely leaving out "indictable offence" and inserting,

does not add much to the words,

We are happy that other safeguards will limit the use of this provision; for example, the fact that one needs the permission of the Attorney-General. We trust that the Government will not use powers of this sort frivolously.

In light of those safeguards, I will comment briefly on the amendment of the noble Lord, Lord Lester. He suggests a restriction to "heinous" offences. There is some confusion in the House about the pronunciation of the word. The noble Lord, Lord Borrie, pointed out that he could not find it in his legal works, but found it in the Oxford English Dictionary. Perhaps if we could decide how to pronounce it, we would have made a step in the right direction. I note the noble Lord's point that not all indictable offences are heinous. However, I imagine that the Minister will say that the Attorney-General will make the call in due course.

We are grateful to the noble Lord, Lord Lester, for pointing out that the word has been defined by the Supreme Court of India, and in the United States. I was grateful for the note that he sent me on the matter. Again, I do not think that it would add much in the light of other government assurances that were given last week. I am not unsympathetic to what the noble

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Lord is doing, but I am not sure that we would support him if he pressed the matter to a Division, because I do not think that his amendment adds much. We will listen very carefully to what the Government say, but we dealt with this matter last week.

Lord Monson: My Lords, having disagreed with the noble Lord, Lord Lester, on an amendment a while ago, I was completely convinced by his cogent argument in favour of this amendment and would gladly support him were he to decide to divide the House-assuming that the Government do not accept it.

The use of "heinous" has been criticised by the noble Lords, Lord Borrie and Lord Henley. As a lay man, I find no difficulty with it. It derives from the French word "haine", which gives the clue to its pronunciation. It means "hateful", and 80 to 90 per cent of the population would broadly agree on what crimes are the most hateful.

Lord Thomas of Gresford: My Lords, one can see from the structure of this very unsatisfactory part of the Bill that an application has to be made by an enforcement authority with the consent of the Attorney-General. My noble friend's amendment sets a threshold for the application, which would not be considered either by the enforcement authority or by the Attorney-General unless it concerned a hateful crime. It is not too difficult to interpret that expression. Clause 157 sets out what the court has to consider in determining applications. These are not just the matters set out in subsection (3)-which, as many noble Lords have said, are very indistinct and open to the discretion of the judge who hears the application. Under subsection (2)(b), the court,

The judge has complete discretion when considering whether to make an order, and may consider matters apart from those listed in the Bill. Any criticism that the term used by my noble friend is vague pales into insignificance when one has regard to the scheme that the Government have introduced.

1.45 pm

Lord Tunnicliffe: My Lords, the noble Lord, Lord Lester, has proposed an amendment that would limit the scope of the criminal memoirs scheme to memoirs about heinous offences. This is intended to be in addition to government amendments to restrict the scheme to offences that are triable only on indictment. Given the concerns raised in the House about the potential breadth of the scheme, I understand why the noble Lord should seek to limit it in this way. The House will recall that the original scheme would have applied to offenders who exploited material about any offence. On Report, the House agreed amendments to limit the scheme to offences that were triable on indictment or triable either way.

The government amendments in this group go a good deal further by limiting the scheme to memoirs about the most serious offences, namely those that are triable only on indictment. This is a significant move. Indictable-only offences make up a very small proportion of criminal cases dealt with by the courts, and no more than 2 per cent of all convictions in 2007.

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Indictable-only offences include very serious crimes such as murder, rape and manslaughter. Offenders who profit from exploiting material about these offences are likely to be the subject of cases that cause the greatest concern to surviving victims or bereaved families.

As a result of our amendments, the scheme will no longer cover offenders who exploit material about offences that are triable either way. Our amendments have the considerable advantage that there can be no doubt which offences will be covered by the scheme. Limiting the scheme to memoirs about indictable-only offences that are heinous lacks that advantage. "Heinous" is undefined in the amendment and is not known in our law. If it were adopted, it would be far from clear what crimes the scheme would cover. It is extremely undesirable-we would say wrong-to introduce this considerable and unnecessary uncertainty to the scheme. Limiting the scheme to indictable-only offences draws the scheme sufficiently narrowly-no further narrowing is needed. Indictable-only offences are, by definition, the most serious crimes in our law. It is clear which offences are included in the group and which are not.

A final, crucial point is that Clause 157 already requires the court to consider the seriousness of the offence to which the memoirs relate when deciding whether to impose an order. The court will automatically have regard to the fact that, for example, the memoirs relate to a particularly brutal crime, or to a crime that is not particularly serious in the overall spectrum.

The noble Lord, Lord Lester, raised a series of points that I will not respond to individually. I believe that almost every point he raised was covered by my speech on Report. I learned a long time ago that giving the same explanation twice is full of hazard.

Lord Lester of Herne Hill: My Lords, as the Minister will not reply to the specific point, I ask: is he saying that he accepts that the reference to serious crimes covers only grave or heinous crimes? On Report, I asked whether the intention was,

The noble Lord replied:

"There is a sense of chilling in what we are doing, for the most heinous crimes and within the context of the Act".-[Official Report, 29/10/09; col. 1293.]

Is he saying today that he accepts that the reference to serious crimes in the Bill should be interpreted by the court and by the Attorney-General as concerned only with the gravest of indictable-only offices, the most heinous, or not?

Lord Tunnicliffe: My Lords, I shall not go beyond what I said on Report. As the noble Lord, Lord Henley, has pointed out, the Attorney-General will have a general responsibility as regards public interest and will have regard to the debates that we have had in this House so far.

For a few seconds I thought that my noble friend Lord Borrie was going to agree with me, which would have been an exciting relief. He made the case that the word was not defined. I refer back to what I said on

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Report on proportionality. We used some very careful words about proportionality being at the centre of how this part of the Bill would be interpreted. I hope that the noble Lord, Lord Lester, will agree that the government amendments substantially address his concerns and that he will withdraw his amendment.

Lord Lester of Herne Hill: My Lords, I am very grateful to everyone who has spoken and to the Minister for his reply. I am not grateful to the Minister for not replying to my specific points, which I have discussed with him and his advisers in private. That is not appropriate and I am sorry about that.

In terms of the principle of legal certainty, when what is at stake is free speech and property it is not satisfactory for a Minister to say to the House that the judge can read the debates. That is not good enough. The law should be clear, with proper criteria. The Minister indicated last time, and has not changed his position today, that the scheme is intended to apply only to heinous crimes at the grave end of the spectrum. That is not what the Bill says; it is what my amendment seeks to achieve. I wish to test the opinion of the House.

1.52 pm

Division on Amendment 19.

Contents 59; Not-Contents 107.

Amendment 19 disagreed.


Division No. 1


CONTENTS

Addington, L.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Bradshaw, L.
Burnett, L.
Carlile of Berriew, L.
Chorley, L.
Clement-Jones, L.
Cotter, L.
Craigavon, V.
Dholakia, L.
D'Souza, B.
Dykes, L.
Erroll, E.
Falkland, V.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Hooson, L.
Howe of Idlicote, B.
Jones of Cheltenham, L.
Kerr of Kinlochard, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L. [Teller]
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Listowel, E.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Monson, L.
Neuberger, B.
Newby, L.
Nicholson of Winterbourne, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L. [Teller]
St. John of Bletso, L.
Sandwich, E.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Smith of Kelvin, L.
Stern, B.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.


5 Nov 2009 : Column 420


NOT CONTENTS

Acton, L.
Ahmed, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bhattacharyya, L.
Bilimoria, L.
Billingham, B.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Christopher, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Oldham, L. [Teller]
Desai, L.
Drayson, L.
Dubs, L.
Dundee, E.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Fowler, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Grenfell, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Joffe, L.
Judd, L.
Lea of Crondall, L.
Lipsey, L.
Low of Dalston, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
McKenzie of Luton, L.
Mallalieu, B.
Masham of Ilton, B.
Massey of Darwen, B.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Yardley, B.
Murphy, B.
Myners, L.
Norton of Louth, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Puttnam, L.
Quin, B.
Rea, L.
Renton of Mount Harry, L.
Richard, L.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Sewel, L.
Simon, V.
Skelmersdale, L.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Trefgarne, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Young of Norwood Green, L.

Amendments 20 to 22

Moved by Lord Bach

20: Clause 154, page 101, line 19, leave out "indictable offence" and insert "offence which, if committed by an adult, is triable only on indictment"

21: Clause 154, page 101, line 21, leave out from first "triable" to end and insert "only on indictment,"

22: Clause 154, page 101, line 23, leave out from "is" to end of line 25 and insert "triable only on indictment,"

Amendments 20 to 22 agreed.

Clause 176 : Extent

Amendment 23 not moved.



5 Nov 2009 : Column 421

Amendment 24

Moved by Lord Bach

24: Clause 176, page 122, line 4, at end insert-

"( ) section (Slavery, servitude and forced or compulsory labour);"

Amendment 24 agreed.

Amendment 25 not moved.

Clause 177 : Commencement

Amendment 26

Moved by Lord Bach

26: Clause 177, page 122, line 41, at end insert-

"( ) section (Damages-based agreements relating to employment matters);"

Amendment 26 agreed

2 pm

Schedule 1 : Duty or power to suspend or resume investigations

Amendment 27

Tabled by Baroness Miller of Chilthorne Domer

27: Schedule 1, page 127, line 30, leave out paragraph 3

Baroness Miller of Chilthorne Domer: My Lords, I appreciate what the Leader of the House said just after Question Time. For clarity, I wish to make a few points on the amendment. First-

Lord Bassam of Brighton: My Lords, I think the Leader of the House made the position perfectly clear at Question Time. Much as I appreciate the courteous way in which the noble Baroness is addressing these matters, I am not sure that it is entirely in order for her to continue to pursue this without the leave of the House. I do not think the leave of the House has been sought or given. Certainly, I would take great exception to a ruling by the usual channels being countered in this way. I do not think it is entirely appropriate. It is quite wrong and, so far as I am concerned, it stretches the bounds of the usual working relationships. We try to agree things in good order in this House, and that is the tradition within which I intend to live, and I know that view is shared by noble Lords opposite and, traditionally, by noble Lords on the Liberal Democrat Benches. I would courteously invite the noble Baroness to withdraw from this current debate and perhaps not to move her amendments. I think that to go against that the noble Baroness will need to seek the leave of the House.

Lord Shutt of Greetland: My Lords, it needs to be made clear that my noble friend was endeavouring to make it clear that she was not going to move her amendment, but she felt it right, in the circumstances,

5 Nov 2009 : Column 422

to make a personal statement and put something on the record. She was making it clear that she was not going to move the amendment. In the spirit of the way the House works, it seems to me that that is in order.

Baroness Miller of Chilthorne Domer: My Lords, with the leave of the House, if I could just complete the statement, I would like to make one point of clarification for the convenience of the Government.

Baroness Anelay of St Johns: My Lords, I am becoming increasingly confused about the procedure the House is now adopting. I am aware of an agreement by the usual channels about the way in which Third Reading amendments may be discussed, or may not be on the advice of the usual channels when the Public Bill Office has indicated that they have been debated on previous occasions. As I understand it, if one starts to make a statement, one is, in fact, moving an amendment. If the noble Baroness wishes to move the amendment, she must seek the permission of the House to do so and is acting against the advice of her own Chief Whip.

Lord Bassam of Brighton: My Lords, I am most grateful to the noble Baroness, Lady Anelay, for her support in this matter. It is only right that the leave of the House be sought if the noble Baroness wishes to pursue this issue.

Baroness Royall of Blaisdon: My Lords, forgive my absence from the Chamber for the beginning of this very short debate on this amendment. As I indicated earlier, this is a matter for the House. I saw my noble friend at the Dispatch Box earlier making the point that this had been agreed by the usual channels. That is the usual procedure by which we work in this House. It makes for a good working relationship throughout the House and enables us to get through our legislation, as we usually do. I recognise that I said earlier that the noble Baroness should seek the advice of the Public Bill Office again. In retrospect, I may have been wrong to suggest that because I think that, when an agreement has been made by the usual channels, it is beholden upon us as a House to respect that advice or put it to the House by a vote. It is especially beholden upon Front Benchers in this House to follow the advice that has been agreed by the usual channels.

Lord Shutt of Greetland: My Lords, had my noble friend been allowed to continue, we would now be on the next amendment. I do not understand why the Government Front Bench and the Opposition Front Bench-I am highly suspicious about it, quite frankly-are wanting to, as it were, filibuster because I understood that the Government wanted to get on with the business of the House. They could have done that. If my noble friend wishes to, perhaps she should test the opinion of the House.

Baroness Royall of Blaisdon: My Lords, I shall clarify for the House that this is not a matter of filibustering, but of the procedure of the House. It is important that procedures in this House are followed correctly, otherwise no business will be got through.



5 Nov 2009 : Column 423

Lord McNally: My Lords, I think the Front Benches have brought this on themselves because we have been trying to get this business through. I sat through long meetings when the noble Lord, Lord Williams of Elvel, was pushing this idea through the Procedure Committee. I warned then that if we allowed rules and regulations to interfere with genuine discussion, we would find ourselves in more trouble and wasting more time than if we simply used a bit of common sense about allowing Members to make a point. I think I have been borne out by what has happened here.

The Deputy Speaker (Lord Colwyn): My Lords, if the noble Baroness speaks to the amendment, she may not then withdraw it. I must call for it to be moved.

Amendments 27 and 28 not moved.

Schedule 5 : Powers of coroners

Amendments 29 and 30

Moved by Lord Tunnicliffe

29: Schedule 5, page 140, line 3, leave out "in writing"

30: Schedule 5, page 140, line 31, at end insert-

"3A (1) The person by whom an authorisation under paragraph 3(1) is given must make a record-

(a) setting out the reasons for the suspicion referred to in paragraph 3(2)(a);

(b) specifying which of the conditions in paragraph 3(3) is met.

(2) Where the authorisation is given by a senior coroner nominated under paragraph 3(1)(b), that coroner must give the record made under this paragraph to the Chief Coroner.

(3) The Chief Coroner must retain a record made this paragraph until the Chief Coroner has given to the Lord Chancellor the report under section 35 for the calendar year in which the authorisation in question was given."

Amendments 29 and 30 agreed.

Schedule 8 : Chief Coroner and Deputy Chief Coroners

Amendment 31

Moved by Lord Tunnicliffe

31: Schedule 8, page 147, line 18, leave out sub-paragraph (2)

Amendment 31 agreed.

Schedule 21 : Minor and consequential amendments

Amendment 32

Moved by Lord Tunnicliffe


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