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House of Lords

Monday, 10 December 2012.

2.30 pm

Prayers—read by the Lord Bishop of Bristol.

Cycling: Infrastructure


2.37 pm

Asked By Lord Berkeley

To ask Her Majesty’s Government what proportion of the Highways Agency’s budget is allocated to infrastructure for cycling.

Earl Attlee: My Lords, the Highways Agency works with cycling organisations to provide parallel routes, safe access and crossing points to the strategic route network. These schemes are funded within the agency’s portfolio of small improvement schemes, on which the expenditure is approximately £50 million each year across the portfolio. Provision for cyclists is also a consideration of the agency’s major schemes. The specific investment relating to cyclists is therefore difficult to disaggregate.

Lord Berkeley: I am grateful to the Minister for that Answer and I congratulate the Government and TfL on the investment they have recently announced for cycling infrastructure. However, does he agree that possibly there is a need to go further? There is a poll in the Timestoday, coincidentally, which shows that 25% of the respondents think that segregated cycle lanes would make people cycle more. It also shows that only 2% of journeys in this country are by cycle compared with a figure of about 25% to 35% in Belgium, Holland and Denmark. Does he agree that it is time to look at reallocating space on the roads for cycles and providing much greater investment alongside that?

Earl Attlee: My Lords, the views of respondents to any survey are obviously important. We should not disregard them. We should take account of them. Segregation has its benefits because you will be able to reduce the number of accidents far more effectively. However, there is the issue of economic use of the road space and the business case if you want such a scheme. In London, these are matters for Transport for London.

Lord Taverne: My Lords, does the Minister accept that the bicycle is the most efficient machine ever invented for converting energy into motion and that the bicycle could be accurately described as a green car that can run on tap water and tea cakes and has a built-in gym? Does he therefore agree that it makes sense to base policy for private urban transport on the motto, “Two wheels good; four wheels bad”?

Earl Attlee: My Lords, I agree with my noble friend. One of the most important aspects of the use of the bicycle is the health benefits. That is why the Government support cycling and why the previous Government did exactly the same thing.

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Baroness King of Bow: My Lords, we are all aware of the dangers of cycling, especially if you live in Tower Hamlets where, on Friday, the 14th cyclist to die in London this year was pronounced dead on Commercial Road. I want to ask the Minister about another danger facing cyclists. I refer to the high levels of exhaust fumes and particulates that they inhale. Can the Minister hazard a guess as to whether, say, a half-hour commute on a bicycle in rush-hour traffic is the equivalent of one cigarette a day or 20 cigarettes a day? If he is not sure—because I am not—would he be willing to write to me with the latest research evidence and government guidance so that cyclists can be assured that their healthy lifestyle is not, in fact, a fast track to lung cancer?

Earl Attlee: My Lords, the noble Baroness will be aware that the previous Mayor of London introduced a lower emissions zone for London to tackle the level of emissions. I accept that they are too high, but everyone is working to reduce the levels.

Lord Quirk: “Two legs good” is by all means better than “Two wheels good”. Can we not have some guarantee of the safety of pedestrians on the pavement as well as of course support for the need to protect cyclists?

Earl Attlee: My Lords, although the Government support cycling, we do so only where it is legal. It is important that cyclists do not ride their cycles on the footpath. Enforcement is an operational matter for the police.

Lord Hughes of Woodside: My Lords, although we must do everything possible to encourage the safety of cyclists, does the Minister agree that cyclists themselves can do much to help their own safety? For example, in the evening, when it is dark, one hardly sees the bicycle light flashing. Furthermore, cyclists seem to wear the darkest of clothes, which makes them almost invisible. Should not something be done to educate them, first, to have decent lights and, secondly, to wear fluorescent jackets so that they can be easily seen?

Earl Attlee: My Lords, the Highway Code advises cyclists to wear appropriate high-visibility clothing all the time and make sure that their lights work. The noble Lord is right. Cyclists can do a lot to make themselves less vulnerable.

Baroness Gardner of Parkes: My Lords, is the Minister aware that, in London, a great many of the fatal accidents occur when people are dragged under as large vehicles turn left, particularly cement vehicles and waste disposal vehicles carrying skips? The front wheel hits a person, but it is the back wheel that kills them. If a bar was put along the side to prevent the bicycle being dragged under the vehicle it would save many lives. Is there any thought of the Government encouraging that?

Earl Attlee: My Lords, there are already regulations in place that require side guards to be fitted to the majority of heavy goods vehicles. However, construction vehicles are exempt. The European Union is looking at the regulation of side guards and will probably reduce the number of exemptions.

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Lord Davies of Oldham: My Lords, following on from the previous question, is the Minister not concerned that the accident rate for cyclists is increasing alarmingly, especially in London? Cyclists have a particular problem in coping with large roundabouts where there are no regulated lanes. Several of the deaths have occurred at such roundabouts. Why do the Government not take up the programme that the Times has launched, “Cities fit for cycling”, in which it says that in order to get dedicated cycle lanes and improve our safety record we need £100 million a year spent on cycling?

Earl Attlee: My Lords, I assure the noble Lord that we are paying close attention to the Times campaign for the very reasons that the noble Lord points out. This is of course a Question about the Highways Agency, which has a range of local network management schemes to make improvements where cycle routes cross the strategic route network or there are segregation problems.

Baroness McIntosh of Hudnall: My Lords, given that most people driving on the roads probably took their tests quite a long time ago—I have to say that I certainly did—is the noble Earl confident that the current methods of testing young drivers take sufficient account of the dangers to cyclists that drivers represent, particularly in view of the fact that no matter how much investment is made in cycling routes, cyclists will have to share the road with drivers for at least some of the time?

Earl Attlee: The noble Baroness makes an extremely important point. I can assure her that the Driving Standards Agency adjusts the test to make sure that it properly reflects the needs of cyclists. In addition, I should point out to your Lordships the need regularly to read the Highway Code because its contents change, particularly in respect of road markings relating to cyclists.

United States Budget: Economic Impact


2.45 pm

Asked By Lord Roberts of Conwy

To ask Her Majesty’s Government what assessment they have made of the effect on the United Kingdom economy of the outcomes of the “fiscal cliff” discussions in the United States of America.

Lord Newby: My Lords, the Office for Budget Responsibility, which is responsible for producing independent economic and fiscal forecasts for the UK economy, based its forecasts last week on the assumption that fiscal policy will be tightened in the US by between 1% and 2% of US GDP. This, in turn, assumes that the US Congress will reach a budget settlement by the end of the year and that the fiscal cliff will be avoided.

Lord Roberts of Conwy: Is my noble friend aware, as I am sure he is, that many believe that unless the end-year fiscal crisis in the US is averted, involving as it does some hundreds of billions of dollars’ worth of tax rises and spending, there is a risk that the US could return to recession, and the prospects for our exporters

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to the United States could be very gloomy indeed? Such prospects are already gloomy in the eurozone and other countries where lower growth is anticipated. Is there a specific remedy for that situation, should it develop?

Lord Newby: My Lords, I agree with the noble Lord that the US economy is extremely important to our exporters. Last year, we exported £80 billion of goods and services to the US, which amounted to 16% of our total exports. However, perhaps I have watched too many episodes of “The West Wing” but I suspect that a deal on the US budget will be done in time, albeit at the last minute.

Lord Bilimoria: My Lords, it is estimated that if the US falls off its fiscal cliff, its GDP will fall significantly. Will the Minister admit that, following the Chancellor saying in the Autumn Statement that deficit reduction will now take three years longer, we in this country have already fallen off our own fiscal cliff?

Lord Newby: No, my Lords, the situation is quite the opposite. The fact that the Government took decisive action in 2010 to effect a fiscal consolidation over a number of years—and then flexed that, given the severe headwinds that we faced from the eurozone—means that we are not faced with a fiscal cliff and we are now looking to a period of growth next year that will be higher than that anticipated in, for example, the eurozone.

Lord Davies of Oldham: My Lords, it is all right for the Minister to wish the Americans well, but why do the Government not emulate them? Is he unaware of the fact that the American economy has been growing at 2%, while we are teetering on the edge of our own cliff towards a third recession?

Lord Newby: My Lords, I agree with President Obama on this.

Noble Lords: Oh!

Lord Newby: Earlier this year, in relation to the US and UK economies, he said that,

“our objectives are common, which is we want to make sure that we have … governments that are lean, that are effective, that are efficient, that are providing opportunity to our people, that are properly paid for so that we’re not leaving it to the next generation”.

Baroness Kramer: I ask the Minister not to emulate the US fiscal cliff and to go for certainty in British fiscal and economic policy. However, does he not agree that British exporters should be careful not to overreact to either the fiscal cliff or the eurozone crisis? In the Autumn Statement, there was more than £1.5 billion in additional government support for exports; should not businesses both small and large be seizing those opportunities—and seizing them now?

Lord Newby: I absolutely agree. The challenge now is for exporters to continue exporting in markets where they already do that. For example, our exports to the US this year have increased by 4% and are therefore still exploiting existing markets. However, in addition,

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the key is getting more companies exporting to the newer markets. That is why the increases in exports to China, Brazil and India over the past two years have been so significant.

Lord Soley: The Minister referred to the decisive action in 2010. Surely what the Government were doing at that time was talking us into a deeper recession than the one we were already going into. Secondly, does he not recognise that without growth we will not get out of the problems we are in? Historically, cutting deficits does not really work unless you have high growth as well. We do not have that and it does not look as though we will get it under the current policies.

Lord Newby: My Lords, if the Government had not adopted a credible fiscal policy in 2010, it is almost certain that interest rates in the UK would now be significantly higher than they are, as they are in much of the eurozone. Bear in mind that every 1% increase in interest rates means £12 billion extra in mortgage payments. This would have been have been a huge gamble that would almost certainly have failed had we not taken decisive action in 2010.

Lord Forsyth of Drumlean: My Lords, is the lesson that we need to learn from both sides of the Atlantic not that if Governments live beyond their means and raise the tax burden too high, growth disappears—a lesson that my noble friend Lord Lawson taught us in the 1980s and which we need to relearn?

Lord Newby: My Lords, the key challenge for Governments, either in this country or on the other side of the pond, is to ensure that there is a credible fiscal framework and a competitive economy so that businesses can invest. That is what the Government have been seeking to achieve.

Lord Tomlinson: My Lords, if the economy is doing as well as the noble Lord suggests, does he regard the threats from the rating agencies as being a vote of confidence?

Lord Newby: My Lords, the rating agencies, as we all know, have an unblemished record in dealing with businesses and countries. For those countries that have seen their credit rating reduced, including the US, there has been virtually no impact on their ability to borrow.

Baroness O'Cathain: My Lords, can we not realise that trade is a two-way thing? It is import substitution and exports. We should encourage more import substitution in all our purchasing in this country. It is never mentioned and there is no reason why some of the wonderful British goods that are exported to earn foreign currencies should not be bought by people here, thereby reducing our imports.

Lord Newby: My Lords, I absolutely agree with my noble friend, and it is very important that we do all we can to support new initiatives, such as the one being led by my noble friend Lord Alliance to reinvigorate the textile industry in the north-west, where there now

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appears to be the prospect—if we get it right—of creating almost 250,000 jobs in textile manufacturing for the first time in a generation.

Armed Forces: Medical Services


2.52 pm

Asked by Lord Trefgarne

To ask Her Majesty’s Government what are the respective numerical strengths of the medical services of the Royal Navy, Army and the Royal Air Force, and what proportion of those personnel are reservists.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever): My Lords, I am sure the whole House will wish to join me in offering sincere condolences to the family and friends of Captain Walter Barrie, 1st Battalion The Royal Regiment of Scotland, who was killed on operations in Afghanistan recently. My thoughts are also with the wounded, and I pay tribute to the courage and fortitude in which they face their rehabilitation.

On the Question, in April this year the numerical strength of the naval medical service was 1,650, of whom 60—just under 4%—were reservists. The strength of the army medical service was 8,040, of which 2,840—35%—were reservists, and the strength of the Royal Air Force medical service was 2,120, of which 190—9%—were reservists. Members of all three medical services, regular and reserve, are making extraordinary contributions to our medical capability in Afghanistan, and I pay tribute to them.

Lord Trefgarne: My Lords, I am grateful to my noble friend for that helpful reply. If it is the policy—which I believe it is, and I support it—to increase the use of reservists in the medical services of our three Armed Forces, it is important that we have a good supply of experienced and trained medical personnel, particularly from the National Health Service. Is the Minister satisfied that the National Health Service, which itself is pressed in many areas, will be able to supply the number of personnel that will be required in future years, and that no unnecessary restrictions will be placed in their way?

Lord Astor of Hever: My Lords, I agree with my noble friend that we will need a good supply of reservists in future. NHS employees are free to join the reserves without any interference from their employer. If they come from a trust that does not have reserve-friendly HR policies—and these trusts are very rare—they can still join the reserves, but in the worst case they may have to take leave to train. We recognise, as did the previous Government, that my noble friend highlights a serious problem. The issue is being addressed by the reserves consultation document. We are consulting as widely as possible to ensure that we have the right relationship with employers and reservists to sustain these changes in future. We need to understand what difficulties employers face in releasing their staff and to do our best to mitigate them.

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Lord Rosser: My Lords, we, too, offer our sincere condolences to the family and friends of Captain Walter Barrie. His death is another all-too-frequent reminder of the enormous sacrifices still being made by members of our Armed Forces in the service of our country.

The report of the public inquiry into the death of Iraqi civilian Baha Mousa found that military guidance on key ethical questions was not provided to regimental medical officers at the time. Is the Minister now satisfied that if there were to be an increase in the proportion of medical personnel who were reservists, appropriate guidance would always be given to them prior to deployment, and that they would be as able as regular medical officers to resist any pressures to prioritise their obligations or loyalties to the military over their ethical duties to patients? Further, will the medical services available to members of the Reserve Forces post-deployment be the same as the medical services available to members of the Regular Forces post-deployment?

Lord Astor of Hever: My Lords, in answer to the noble Lord’s first question, I am pretty certain that I can give him that assurance. Like a number of noble Lords, I have been to Afghanistan and seen the hospital at Camp Bastion. I talked to a number of reservists. They work to an incredibly high standard. The NHS is very grateful for what its personnel pick up there and are able to take back to their respective trusts.

Lord Ribeiro: My Lords, will the Minister explain to the House how the expertise of the Defence Medical Services in Afghanistan, many of whom are reservists, can be maintained and used to the benefit of the NHS when the drawdown occurs in 2014?

Lord Astor of Hever: My noble friend asks a very important question. I know that he was out in Afghanistan last year and saw the very good work that our regular and reservist medics do there. They have saved a lot of lives. There are two possible answers to my noble friend’s question: first, sharing experience through teaching in training in trauma centres and, secondly, clinical placements with coalition partners in areas of conflict.

Lord Palmer of Childs Hill: My Lords, from these Benches I express condolences at the losses referred to by the Minister. What work are the Government doing to examine the common features of the forces’ medical services so that we may stretch resources further by removing unnecessary duplication, perhaps in areas such as procurement or training?

Lord Astor of Hever: My Lords, several initiatives are under way to remove duplication by the single services’ medical services. The first, scheduled to be delivered on 1 April next year, is the new defence primary healthcare project. The current Royal Navy, Army and Air Force primary healthcare systems will start to combine to form defence primary healthcare under the command of a two-star medical officer. The aim is to develop and create an organisation made up of Royal Navy, Army, Royal Air Force and civilian medical personnel working jointly to benefit all the patients they serve, to safeguard the quality of

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healthcare for military personnel, their dependents and entitled civilians, and to maximise the forces’ generation capabilities.

Lord West of Spithead: My Lords, I agree with the Minister about the huge pride we have in our medical forces across the board. Not only are they at the cutting edge of skills to look after people who, very sadly, have suffered major injuries, but they have also shown immense bravery. Indeed, two women who are probably about half my height have managed to win Military Crosses in the past three years in looking after people for whom they were responsible. We should feel a huge debt of gratitude and pride in them all for that. We also have an amazing centre of skill at Birmingham and at Headley Court in terms of people recovering. Will the Minister tell us what will happen if Scotland separates? Bearing in mind the complexity of how this works, it will be extremely difficult. How will that work out?

Lord Astor of Hever: My Lords, I agree with the noble Lord in the first part of his question. I have seen a number of these reservists and regulars several times in the hospital at Camp Bastion. I am in awe of what they do and the lives they save—it is amazing work. In answer to the noble Lord’s second question, we do not envisage that this is going to happen.

Banking: Regulation


3.01 pm

Asked By Lord Barnett

To ask Her Majesty’s Government what action they propose with regard to the regulation of the banking industry.

Lord Newby: My Lords, Her Majesty’s Government have committed to fundamental reform of financial regulation in the United Kingdom through the Financial Services Bill, which received its Third Reading in the House last week. Further regulation of the banking industry will be contained in the Banking Reform Bill, which is currently the subject of pre-legislative scrutiny by the Parliamentary Commission on Banking Standards.

Lord Barnett: Has the noble Lord seen what was said by the present Governor of the Bank of England last week that this can be dealt with without even bothering with regulation? First he criticised the banks for hiding £60 billion of debts and then he went on to suggest that banks should increase their capital reserves immediately. Does the Minister agree with that, or does he agree with the banks that say that if they increase the capital reserves they cannot also lend as the Chancellor has suggested? Which one of those does the Minister agree with?

Lord Newby: My Lords, the fact that the governor can make statements at the moment that are aspirations and have no direct impact shows why the new regulatory architecture, particularly the Financial Policy Committee, which is a new body designed specifically to look at these things, is so important. I am sure that they are reflecting on his views and will be opining on them very shortly.

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Lord Sharkey: My Lords, regulation will surely provide for penalties for those who break the rules. However, when it comes to the massive mis-selling of pensions, endowments or PPI policies, the FSA has confirmed that in the past five years not one single bank employee has had disciplinary action taken against them. Does the Minister believe that that is right, and can he reopen the issue with the FSA?

Lord Newby: My Lords, one of the general problems that we are grappling with is that bankers seem to think that they live in a different world to the rest of us and that they should be able to avoid not just censure but charges if they have done something that is criminally wrong. That is why in the recent Financial Services Bill we introduced new provisions to deal with people who have manipulated the LIBOR rates so that, when the whole episode is fully looked into, if criminal action is necessary, it will for the first time be able to be taken against people who have cheated the system.

Lord Peston: My Lords, bearing in mind the global nature of the whole financial services sector, and certainly of the banking sector, in the Government’s opinion does any central bank or other financial regulator, acting on its own, have any chance of success? Must not the future basis of regulatory policy be one of international co-operation between the regulators and the central banks?

Lord Newby: Yes, my Lords, I completely agree. One of the things that the banking crisis has demonstrated is that the banks understand the international situation better than Governments understand it. One of the things that we have been trying to do, both through the EU and internationally, is to close that gap. No doubt the noble Lord has seen the article in the FT today by Paul Tucker from the Bank of England and Martin Gruenberg, the chair of the Federal Deposit Insurance Corporation in the States, which looks specifically at how you deal with resolving problems concerning the largest systemically important banks in the world.

Lord Lawson of Blaby: My Lords, while the noble Lord, Lord Peston, is undoubtedly correct that international co-operation is desirable, will the Minister give an undertaking that we shall not hold back on what needs to be done simply because international co-operation may not be forthcoming or, even if it is, it may not be adequate?

Lord Newby: My Lords, I absolutely agree. That is why we have been in the forefront of bringing forward plans under which banking problems can be resolved and why, under the Banking Reform Bill, we are looking at having a ring-fence around retail banks so that we do not have the problems that we have had in the past. This will go ahead, whatever happens internationally. I hope very much that there will be international action, but action that is based very much on the British model and with British leadership.

Lord McFall of Alcluith: My Lords, Glass-Steagall, which governed the global prudential system, was more than 30 pages, Basel II increased that tenfold to 350 pages and Basel III is now 600 pages. Does this not tell us that the system is governed by complexity

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and opacity and that the desire to game it increases? Is there not a case for simplifying the system and having leverage play a greater role in the regulatory framework? The need for structural change, irrespective of what is happening elsewhere in the world, is urgent in the UK and we should get on with it.

Lord Newby: Yes, my Lords, I agree. Basel is indeed that number of pages, while I think that the Dodd-Frank Act in the States is more than 2,000 pages and is so complicated that there are real questions about whether the institutions will ever be able to implement it. Getting back to what I was saying about banking reform here, one of the key reasons for having a ring-fence is to have a simpler structure under which the retail bank is segregated from the more complicated and casino elements of the system. We think that that will bring benefits for consumers as well as bringing greater stability to the system as a whole.

Lord Pearson of Rannoch: My Lords, are the Government aware of the previous Government’s Written Answer of 21 July 2009 to the effect that the overall supervision of our entire financial industry, including our banking industry, had already been handed over to Brussels, leaving the Government here with only day-to-day control? Does it therefore really matter much what the Government come up with here?

Lord Newby: My Lords, I am afraid that I was not aware of that comment by the previous Administration and I do not recognise it as a reflection of the way that we run our banking system.

Business of the House

Motion on Standing Orders

3.08 pm

Moved By Lord Strathclyde

That Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Tuesday 11 December to enable the Police (Complaints and Conduct) Bill to be taken through its remaining stages on that day; and that Standing Order 46 be dispensed with on Tuesday 18 December to enable the Small Charitable Donations Bill to be taken through its remaining stages on that day.

Motion agreed.

Partnerships (Prosecution) (Scotland) Bill [HL]

Second Reading

3.08 pm

Moved By Lord Wallace of Tankerness

That the Bill be read a second time.

The Advocate-General for Scotland (Lord Wallace of Tankerness): A Second Reading Committee considered the Bill in the Moses Room on Tuesday 4 December. I therefore beg to move this Motion formally.

Bill read a second time and committed to a Special Public Bill Committee.

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Crime and Courts Bill [HL]

Crime and Courts Bill

Report (3rd Day)

3.09 pm

Clause 23 : Enabling the making, and use, of films and other recordings of proceedings

Amendment 113

Moved by Baroness Kennedy of The Shaws

113: Clause 23, page 22, line 3, after “that” insert “in appellate proceedings”

Baroness Kennedy of The Shaws: My Lords, this amendment stands in my name and that of the noble Lord, Lord Lester of Herne Hill. It seeks to limit the televising of court proceedings to the Court of Appeal and the Supreme Court. Your Lordships may recall that I expressed my view at Second Reading that cameras in the courts are a total folly except in very limited circumstances. I have no problem with filming proceedings in the Supreme Court or the Court of Appeal, where matters of law, principles of human rights or constitutional issues of long-term significance are debated and judged. However, it is a serious mistake to introduce cameras into criminal courts; this whole issue should be approached with caution. We are being persuaded that this is a very circumscribed use of cameras and the rationale is that it will bring transparency to, and increase confidence in, the justice system. I believe it will ultimately have the very opposite effect.

There has been lobbying for years to get cameras into courts. It should be recognised that television companies are not really interested in filming in the Court of Appeal or the Supreme Court. They want to get into the criminal courts or the libel courts—the places where the dramatic stuff of life is dealt with. They want rape, blood and gore. They want weeping victims, lying witnesses and unrepentant villains in the dock. They want to get into the courts where the salacious and the violent are dealt with in detail. They insist that they are interested only in transparency, when I am afraid that their real interest is voyeurism. In the same way that sex, drugs and rock and roll sell newspapers, they pull in viewing figures for television, too.

Court television in America made the man who introduced it a billionaire in no time, and lawyers and senior judges there would say that it drove down standards in the courts and decreased public confidence. The public in the end see edited snapshots of proceedings and think they have watched a trial; then they are vitriolic about how stupid the jury has been or how utterly stupid the judge has been.

An experiment was conducted in Scotland 20 years ago of filming a whole trial. Because Scotland is the one place in the United Kingdom where there is no law forbidding cameras, that was possible without any change in the law. The plan was abandoned when the senior legal profession in the whole of our nation saw the product and realised that there were very serious problems about fairness and enormous risks to justice. I would like our senior judiciary and politicians to go back to that footage and see why it is not a good idea.

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This Bill does not ostensibly open the door of the courts to wholesale filming immediately. It is saying that cameras should be let into the higher courts and other courts, such as the criminal courts, for the giving of judgments and the passing of sentences. The public deserve, it is said, to know why a man got 10 years and not more; the public should see the judge passing sentences on criminals; people can cheer from their living rooms as crooks get their comeuppance; and they can knit like the tricoteuse at the guillotine as the judge says, “Take her down”.

However, the reality is actually damaging for justice. The Minister will no doubt say that there will never be filming of witnesses or jurors in cases, but I assure the House that while the intention now may be to stick to judges’ sentencing remarks, that is not the endgame sought by television programme-makers. We often talk of slippery slopes in this House but this one is a sheer drop. As soon as sentencing is covered on television, there will be complaints that the public did not get to see the defendant’s face when he heard his fate or that the remarks made little sense without hearing what the prosecution and defence lawyers had said in argument beforehand. So it will go on, with further and further encroachments sought.

3.15 pm

The question is asked: would it not be good for the public to hear and see a judge sentencing? I do not think that will satisfy anything. The sentencing remarks will be edited so that a snippet will be used as a headline on the news and the judge showing compassion will still be vilified by sections of the press, however good his reasoning. Some judges may even be tempted to avoid doing their bold but fair thing in looking, for example, at alternatives to prison when they see that camera at the back of the court. I also fear that some judges who miss the drama of the advocates’ arena will play up to the cameras in unhappy ways. Does any noble Lord in this Chamber remember Judge Pickles?

We should be concerned about the powers that we are delegating by virtue of this clause. The Joint Committee on Human Rights said in its report, by way of warning,

“the Delegated Powers Committee points out in its Report on the Bill, there is nothing on the face of the Bill to prevent the order-making power from being exercised in future to authorise the filming and broadcasting of witnesses, parties, crime victims, jurors or defendants. Indeed, granting such a wide authority”,

to the Lord Chancellor and the Lord Chief Justice to act together should be considered with caution. That authority, the report says,

“appears to be the Government’s intention: in its memorandum to the Delegated Powers Committee it suggested that if clause 23 is enacted, Parliament will have approved the principle of filming and broadcasting court proceedings. This led the Delegated Powers Committee to recommend that the affirmative procedure should apply to orders under clause 23(1), so that Parliament has an opportunity to apply a higher degree of scrutiny to an order setting out the extent to which filming and broadcasting should be permitted”.

We should be very mindful of the fact that our judges increasingly come under pressure to be more modern and to do the modern thing. Often, in pursuit of modernisation, we give away things that have worked sensibly and for a good reason.

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The Government have asserted that the right to respect for private life in Article 8 of the European Convention on Human Rights would not be engaged because court proceedings are public. However, the Joint Committee on Human Rights report argued that this was,

“too simplistic given the range of very well established restrictions on reporting court proceedings, ranging from hearings in private through to anonymity orders, where the justification rests, in part at least, on the protection of aspects of a person’s private life. Indeed, one of the most important questions for Parliament about these provisions is whether relaxing the current restrictions on filming and broadcasting court proceedings which are anyway public is a justifiable interference with the right to respect for private life of those individuals involved in the proceedings”.

In the United States, they have discovered that no amount of explanation appeases the concerns of witnesses due to come before the courts. Because they know it will be televised, there is greater reluctance to participate in proceedings.

It is quite wrong that the television filming of court should be further expanded without it coming back before this House for proper consideration. I know that judges might argue that they can carefully fashion what they say and explain the reason for giving a particular sentence in a criminal case, but I am afraid that very often they will be made to sound ridiculous by the way their comments will be edited. Judges have also not realised that they will become much more visible. Currently, our judges can go about their business without fear for their safety; it is one of the great things about our system. They can shop in Waitrose, go to the garden centre at weekends or play golf and no one knows them from Adam or Eve. Their lives will become very different and much less secure once their faces can be played and replayed over and over again on new technology. I would like research to be done on the potential impact of these changes before we go down this road. For this reason, we should not today allow further use of cameras in courts beyond our appellate jurisdiction. I beg to move.

Lord Lester of Herne Hill: My Lords, I am not a criminal lawyer and have none of the experience that the noble Baroness, Lady Kennedy of The Shaws, has, but I sat as a criminal judge—grotesque though that may seem—in the days when I was a recorder. I cannot claim much greater experience than that, but I support the amendment as a member of the Joint Committee on Human Rights.

As the noble Baroness, Lady Kennedy, has said, this amendment was drafted by the committee so it is a JCHR amendment, and our report deals with our reasons in detail. In paragraph 60, our conclusion says:

“We do not see the justification for the width of the order-making power in clause 23(1) of the Bill, which, as it stands, authorises the filming and broadcasting of witnesses, parties, crime victims, jurors and defendants in court proceedings. We urge a much more cautious approach. Before any extension of this power we recommend that the Government conduct a much more comprehensive public consultation, carry out a more detailed impact assessment in the light of that consultation and conduct a review of the operation of the power after an elapse of years. In the meantime, we recommend that the Bill be amended to confine the scope of the power to the filming and broadcasting of judges and advocates in appellate proceedings, as the Government currently intends”.

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I am also cautiously conservative on this issue because I do not believe that criminal trials are best conducted in televised goldfish bowl.

Lord Pannick: My Lords, I do not share the concerns expressed by the two previous speakers. The broadcasting of court proceedings will enhance public understanding of our justice system, which in general works efficiently and fairly. There is also the possibility that allowing in the cameras may illuminate those areas of the law that are much in need of reform, a result that I would have thought law reformers as distinguished as the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill, would welcome.

So what if broadcasters focus on sensational cases? That is what print journalists do and we do not exclude them from the courtroom. Amendment 113 would confine broadcasting to appellate proceedings but, if the Lord Chief Justice thinks it appropriate, why not allow the broadcasting of a judicial review application that raises issues of importance? Such applications normally involve no witness evidence and often raise issues of law of considerable constitutional importance. Of course there should be no broadcasting of the evidence of witnesses, and jurors’ faces should not be shown, but I cannot understand why there should be no possibility of the broadcasting of the judge’s sentencing remarks at the end of a criminal trial. There are many cases where, at the end of the criminal trial, the judge is speaking not only to the defendant or other persons in court but is seeking to communicate to the public at large. The judge should be assisted to do so.

The noble Baroness, Lady Kennedy of The Shaws, made what I respectfully submit was a quite extraordinary suggestion that judges need to be protected because their words may be misrepresented. She also suggested that judges need anonymity in the community at large. I doubt very much whether there are many judges—or, indeed, many noble Lords—who think that our judges need or deserve such protection.

In any event, Amendment 113 is entirely unnecessary because your Lordships will see that Clause 23 will not come into effect without the agreement of the Lord Chief Justice, who no doubt will carefully consider the details of any scheme to allow broadcasting of court proceedings. For the same reason, Amendments 113ZA and 113ZB in this group are also unnecessary in seeking to impose conditions on the broadcasting of court proceedings. I am content to proceed on the basis set out in Clause 23, that the broadcasting provision would come into force only,

“with the concurrence of the Lord Chief Justice”.

It would be far better to let him—or possibly, after next October, her—decide on the detail of the broadcasting scheme.

For the same reason, Amendment 120B, requiring a resolution from both Houses, is unnecessary. The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill—for both of whom I have the highest regard—are the 21st century equivalents of the 18th century Scottish judge Lord Eskgrove. When a court reporter wrote down the terms of one of his judgments being delivered in court, Lord Eskgrove complained:

“The fellow takes down my very words”.

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Lord Lester of Herne Hill: Would the noble Lord address the points raised by the Joint Committee on Human Rights, rather than referring to me as an 18th century gentleman?

Lord Pannick: My Lords, I have made such points as I think may assist the House in answer to the arguments brought forward in this debate and the arguments presented by the Joint Committee.

Baroness Butler-Sloss: My Lords, I apologise for arriving late at this part of the debate. I did not propose to speak and hold no strong views about this amendment, but I have to rise just to deal with a point made by the noble Lord, Lord Pannick. He said that judges neither need nor deserve any protection. That is true in general, but I think he has overlooked the fact that certain judges get death threats. There are groups of judges, of which I happen to be one, who during their time as a judge received a number of death threats. In my case they came both from people who could recognise me because they had appeared before me in court and from those, such as Fathers 4 Justice, who not only made death threats against me but, I must tell your Lordships, also threatened to kidnap my dog, which I thought was much more serious than the death threat against me. More serious than the threats that either I or the family court judges receive are those made against judges in terrorist trials. They absolutely need and deserve protection, so I take issue with the noble Lord, Lord Pannick.

Lord Pannick: I entirely agree that judges deserve all the protection necessary in those circumstances. However, the press and broadcasters are perfectly entitled to publish photographs of the judge who has heard the terrorist trial or any other sensational case. This amendment would have no impact in that respect.

Baroness Kennedy of The Shaws: Does the noble Lord accept that there is something different about the moving camera? There is a famous book by Christopher Isherwood, Goodbye to Berlin, in which the first line is: “I am a camera”. The reason why he starts that way is because he is saying: “I am providing you with a subjective view from my eyes—my edited account of what was happening in the 1930s during the rise of Hitler in Berlin”. He was pointing up the fact that the camera is very subjective. Does the noble Lord agree with that?

Lord Pannick: Of course there are differences, but no difference that could possibly justify these amendments. Noble Lords will know that the proceedings of our Supreme Court are broadcast virtually every day that the court sits. None of us has any knowledge of that; it has caused no adverse effects and I cannot understand the noble Baroness’s concerns.

Baroness Kennedy of The Shaws: My Lords—

Earl Attlee: My Lords, we need to be a little careful about adhering to the rules of Report.

Lord Mackay of Clashfern: My Lords, the noble Baroness has referred to something that happened about 20 years ago in relation to experiments in Scotland.

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As she said, judges there were able to make arrangements for televising trials without any change in the statute law because there was no statute restricting that possibility. A considerable number of cases were televised under that arrangement. The television authorities put together a programme because, interested though they were in Scotland, it was nothing in comparison with the interest they had in proceedings in England, for reasons which perhaps an 18th-century Scottish judge might have speculated about. Anyway, that was the fact.

3.30 pm

It was arranged that senior members of the judiciary here and the legal profession—particularly those who had practised considerably in the criminal courts, as the noble Baroness has—should view this compilation of the results of the television trials to pave the way for similar arrangements in England. I was present on at least one of those occasions: I think there was more than one when they were shown. I regret to say that the result on the senior members of the legal profession was such that, until now, the experiment has not been taken any further. That was 20 years ago. I am not sure whether the noble Lord, Lord Pannick, was one of the viewers of that particular programme, but if he was not then it might be quite useful for him and some others who are presently concerned with the matter to see it now.

I am perfectly prepared to agree that the Lord Chief Justice should have control of this matter. I suggest that whenever this comes before the Lord Chief Justice, it might be useful were there an opportunity available to see the results of the Scottish trial of 20 years ago so that the difficulties—and there are some—might be considered in the formulation of the requirement. One thing that may be important is a question of some control of the editing. As your Lordships know, there is considerable control of the editing of the programmes in Parliament, and there may need to be something of that kind. It does not require too much imagination to suppose that the editing of sentencing remarks, the way that they are set out and their completeness, could make some difference to the balance with which an observer might view the situation. There is a great deal of detail that requires to be looked at. As I said, this information from 20 years ago—it is not as far back as the 18th century but is still of some relevance—should be available to those considering this matter further.

Baroness Hamwee: My Lords, it is very rare indeed that I do not wholly agree with the noble Baroness. As for my noble friend, Lord Lester, I do not even stop to assess whether I agree with him because I know that I should. However, as the noble and learned Lord has just mentioned, we in Parliament are used to our proceedings being recorded—we barely notice the cameras now—and edited. I am constantly taken aback by the number of people who watch the Parliament channel and our proceedings at great length—they must be terrible insomniacs, but they do. It may be that they prefer to watch and listen to a large chunk of a particular matter rather than have the proceedings edited by that very respectable and useful programme, “Today in Parliament”, or the print media. I support giving that opportunity with regard to the courts.

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I recently attended a sentencing. I was there accompanying somebody who was concerned with the case. Waiting for my friend afterwards, I listened to the quite considerable number of print journalists there, writing up their stories. They had been handed a copy of the judge’s sentencing remarks but barely referred to the copy. They checked one or two comments with each other instead of bothering to go back to what they had been given, and I could hear how they were editing the remarks to make a sensational story.

I am very happy to rely on the Lord Chief Justice and the judges in particular cases where, as I understand it, the ability to make particular restrictions will still continue. Of course, editing—being a camera—is subjective. I have agonised about this quite a lot and I spoke rather in the other direction at the previous stage, but I have come down to believing that this quite cautious move is the right one. Judges are less tempted than politicians to make off-the-cuff remarks about major moves forward. I am therefore very happy that the Lord Chief Justice is so much involved.

Lord Beecham: My Lords, I understand the points made by my noble friend and by the noble Lord, Lord Lester. This is an innovation in English court procedures and we should approach it with a degree of caution. The case for opening up the judicial system to more public information and understanding is well made, and to that extent I concur with the remarks of the noble Lord, Lord Pannick. I was less happy with the second part of his speech, which addressed the amendments in my name. I endorse what the noble Baroness, Lady Hamwee, has just said about discretion on the part of the trial judge to decide whether or not to permit broadcasting. That ought to be a significant safeguard, but it is not quite good enough to rely just on the Lord Chief Justice. I say “just”; although one has every confidence in the holders of that office, this is, as I say, a new departure and there is a wider interest to be considered. The amendments in my name and that of my noble friend Lord Rosser try to establish the principles both in relation to any decision to extend court broadcasting and regarding the matters to be considered when a court gives a direction, precisely to meet some of the objections and difficulties envisaged by my noble friend Lady Kennedy and the noble Lord, Lord Lester.

Amendment 120B requires any statutory instrument to be subject to the affirmative resolution procedure. I am in slight difficulty here because, when these matters were raised in Committee, the noble Baroness, Lady Northover, said that the government amendments would make the provisions under what was then Clause 22 and is now Clause 23 subject to the affirmative procedure, as recommended by the Delegated Powers and Regulatory Reform Committee. She also referred to what was then Clause 29, which again required amendments to primary legislation to be subject to the affirmative procedure. I may have missed them but I cannot actually see those references in the Bill. They may be disguised under some form of words that does not immediately disclose their presence, but I would be grateful if the noble Lord, Lord Ahmad, could confirm that the affirmative procedure would apply so that it would not simply be a matter of a decision by the

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Lord Chief Justice but, if there were to be significant changes, particularly to extend the range of matters that could be broadcast, then the affirmative procedure would apply. If that were the case, we would certainly be content to support the Bill in its present form. Perhaps, with the assistance of the Box, he may be able to help me and, more importantly, your Lordships, to come to a conclusion about whether the Government’s intentions are currently reflected in the Bill.

Lord Ahmad of Wimbledon: My Lords, it is always interesting to examine such issues. I have listened to the speeches and the arguments, although I was not in your Lordships’ House when the arguments were put forward for the televising of Parliament. I listened, as I always do, to the noble Baroness, Lady Kennedy, who spoke about words being put into people’s mouths and perhaps being interpreted differently. I suppose that every now and again parliamentarians, and politicians in particular, suffer that consequence, which is well understood.

This has been a wide-ranging debate. As we have seen, again there is strong opinion on both sides of the argument. As the noble Baroness, Lady Kennedy, said, her amendment would limit court proceedings to appellate proceedings and, in effect, would require the Government to return to Parliament before broadening court broadcasting to other types of court proceedings, such as those in the Crown Court. I am also aware, as my noble friend Lord Lester of Herne Hill pointed out, that this amendment was specifically recommended by the Joint Committee on Human Rights in its report of the Bill. I would, of course, like to thank the Joint Committee for its report. I am also glad to read that the committee agrees with the Government’s objective of making justice as apparent and as publicly accessible as possible.

We have heard about 18th century judges, although I am minded not to travel back in history to that extent. However, in 1924, the Lord Chief Justice, Viscount Hewart, said:

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

I believe that sentiment underlies the Government’s view.

The noble Baroness, Lady Kennedy, talked about caution. The Government recognise that as regards court broadcasting. It is our view that any order made under Clause 23 will require, as has been mentioned by various noble Lords, the agreement of the Lord Chief Justice. But that is just one lock. It will also require the approval of the Lord Chancellor and will be subject to scrutiny by both Houses of Parliament under the affirmative procedure. Therefore, court broadcasting will be introduced in a safe and proportionate manner. That is akin to putting not one or two locks on the door but to putting three locks. It will take three people to open that door.

However, we can go one step further. We believe that this triple lock, combined with existing reporting restrictions and the additional provision to allow judges to stop the filming and broadcasting of court proceedings to ensure the fairness of proceedings and to prevent any undue prejudice, will ensure that the interests of victims and witnesses, who are most important, as well

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as jurors, defendants and other parties, are fully protected. I hope that this will address the concerns of not only the noble Baroness but also the noble Lord, Lord Beecham, in relation to the court’s requirement to consider when to allow or to prevent broadcasting.

When the noble Baroness, Lady Kennedy, mentioned that moving cameras changed people’s actions, they certainly changed my action. As she mentioned it, I looked towards the camera and the camera moved. There is some credence and fact behind that statement.

The Government announced plans in September of last year to allow the broadcasting of judgments and advocates’ arguments in cases before the Court of Appeal and, over a longer period, to allow broadcasting from the Crown Court but to limit this to the judge’s sentencing remarks after conclusion of the trial. We believe that this will help to increase the public’s understanding of sentencing, with low risk to the proper administration of justice. Let me assure your Lordships’ House that we have no plans to extend court broadcasting beyond these two sets of circumstances. We believe that, once Parliament has approved the principle of broadcasting selected court proceedings, the details safely can be set out in secondary legislation. I would remind the House that the Delegated Powers and Regulatory Reform Committee did not take issue with this approach as long as the secondary legislation was subject to the affirmative procedure, which it now is. This means that the Lord Chancellor may make an order only under this clause which has been approved by both Houses. That being the case—I refer in particular to the comments made by the noble Lord, Lord Beecham —Amendment 120B is not needed as that ground is covered already by Clause 30(4)(f). As with all primary legislation, these provisions will be subject to post-legislative review three to five years after Royal Assent.

3.45 pm

The other amendments tabled by the noble Lord, Lord Beecham, reflect the vital principles of protection for victims and witnesses and the proper administration of justice. I am happy to reiterate the Government’s commitment to these principles. Furthermore, I believe that the draft order which noble Lords have now seen demonstrates how these principles are intended to be upheld. This order would allow filming in the Court of Appeal of submissions of legal representatives, exchanges in open court between a legal representative and the court and the court giving judgment only. Filming of any other individuals or parts of proceedings would remain prohibited by the Criminal Justice Act 1925. The order also provides that the court may suspend or stop filming or prevent broadcast where that would be necessary in the interests of justice.

The noble Baroness, Lady Kennedy, and the noble and learned Baroness, Lady Butler-Sloss, talked about judges’ security and the noble and learned Baroness, Lady Butler-Sloss, mentioned her concern for her dog. Parliamentarians, politicians and judges are in the public eye, and people have to face challenges and dangers in public life, but I assure the House that the Government will happily look at security in the impact assessment that will be published before the first order is brought forward.

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I hope that this addresses the key principles and concerns, which the Government recognise, that are outlined in the amendments tabled by the noble Baroness, Lady Kennedy, and the noble Lord, Lord Beecham. An extension to allow filming of sentencing remarks in the Crown Court would require a further order, subject to the triple lock procedure that I outlined earlier.

Given the concerns that have been voiced, the Government are happy to publish a detailed impact assessment alongside the first order made under this clause and will continue to engage with victim support groups, members of the judiciary and other interested parties. Any order made under this clause is subject to the triple lock. Several noble Lords mentioned the important role of the Lord Chief Justice. The Lord Chancellor also has a role, and both Houses of Parliament must approve the order under the affirmative procedure. I reiterate that, in any case, a judge may impose reporting restrictions and prevent, suspend or stop filming to prevent broadcast, where necessary. I hope these four locks and these assurances will address the concerns of the noble Baroness, Lady Kennedy, and the noble Lord, Lord Beecham. I hope the noble Baroness will withdraw her amendment.

Baroness Kennedy of The Shaws: I thank the Minister for his response. I am not sure that there could be enough locks to satisfy my concerns. Superficially, this can be very attractive, and it can be discussed in the context of transparency and accountability, but they can be veneers for something much riskier. The camera is not the same as the human eye. The noble Baroness, Lady Hamwee, described watching as reporters for the print media took no notice of the written transcript of the judge’s sentencing remarks but filleted out the bits that they knew would be sensational. I can assure her that those who edit television programmes will follow exactly that process.

The camera cannot capture all that is happening as the human eye can. Currently, television reporters, like press reporters, go into the court and listen then come out and report. Having been in court and watched what happened, the reporter becomes the witness, just like the print journalist. The human eye is different from the camera. The camera cannot pick up tension, smell fear or catch those minute twitches of the lips or the eyelid that often tell you so much. Worst of all, the person behind the camera is editing as he goes. The editor back at the station edits further and the news programme will snip out the choice bits of footage for the headlines. I really warn everyone in this House that new technology will then mean that it will be played and replayed over and over and over again. I am afraid it will not stop with sentencing remarks. It will continue with erosions and demands being made and the judiciary feeling under pressure to comply to not be seen as old-fashioned, 18th century gentlemen.

It is easy for people who do not practise in a criminal court to underestimate the power and the effect of this on our justice system. I regret that there is not enough support in this House for my amendment and I therefore feel obliged to withdraw it, but I do so giving a warning about the serious implications of taking cameras into criminal courts and what it will do to our justice system.

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Amendment 113 withdrawn.

Amendments 113ZA and 113ZB not moved.

Amendment 113A

Moved by Lord Pannick

113A: After Clause 23, insert the following new Clause—

“Abolition of scandalising the judiciary as form of contempt of court

(1) Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law of England and Wales.

(2) That abolition does not prevent proceedings for contempt of court being brought against a person for conduct that immediately before that abolition would have constituted both scandalising the judiciary and some other form of contempt of court.”

Lord Pannick: My Lords, this amendment seeks to abolish the crime of scandalising the judiciary in England and Wales. I am delighted that the Minister has added his name to this amendment. The amendment is also signed by the noble Lord, Lord Lester of Herne Hill, who has played a leading role in arguing for reform of this area of the law. The amendment is also in the names of the noble and learned Lord, Lord Carswell—a former Lord Chief Justice of Northern Ireland—and the noble Lord, Lord Bew.

I can explain the reasons for this amendment very briefly. It is no longer necessary to maintain as part of our law of contempt of court a criminal offence of insulting judges by statements or publications out of court. The judiciary has no need for such protection. As the noble and learned Lord, Lord Carswell, explained in Committee, the wise judge—and he, if I may say so, was a very wise judge—normally ignores insults out of court. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made a similar point in a case he decided, as he may recollect. Judges, of course, are as entitled as anyone else to bring proceedings for libel, and some have done so.

The law of scandalising the judiciary could have been left in the moribund state in which it has rested for many years. However, the Attorney-General for Northern Ireland unwisely chose earlier this year to seek to breathe life into it by bringing a prosecution, later dropped, against Peter Hain MP for some critical comments he had made in his autobiography concerning a Northern Ireland judge. That prosecution had two main consequences. First, it substantially increased the sales of Mr Hain’s book and, secondly, it led to this amendment.

When we debated this subject in Committee on 2 July, the Minister gave a cautious welcome to the amendment but said, very properly, that the Government wished to consult on the matter. As a result of the debate in this House, the Law Commission expedited the publication of a consultation paper on 10 August in which it proposed that the offence of scandalising the judiciary should indeed be abolished.

I emphasise that the amendment will not affect other aspects of the law of contempt of court and in particular the powers of the judge to deal with any disruptions during court proceedings. I also emphasise that the amendment is not designed to encourage criticism of the judiciary. Much of the criticism to

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which judges are subjected is ill informed and unsubstantiated. However, even where criticism is unjustified, it should not be a criminal offence.

The amendment will not affect the law in Northern Ireland or Scotland, in the latter of which the offence is known as “murmuring judges”. I understand that in Northern Ireland more consultation is required. It is ironic that the impetus for this amendment came from the Peter Hain case in Northern Ireland, and now the anachronistic law that led to that case is to be abolished in England and Wales but not in Northern Ireland. I hope that the Minister can give us an indication of when consultations with Northern Ireland will be completed and a decision reached.

Meanwhile, I am delighted by the historic decision which I hope that this House will take tonight to approve an amendment abolishing the offence of scandalising the judiciary in England and Wales. As Justice Albie Sachs said on this subject in a judgment in the Constitutional Court of South Africa in 2001, respect for the courts will be all the stronger,

“to the degree that it is earned, rather than to the extent that it is commanded”.

I beg to move.

Lord Lester of Herne Hill: My Lords—

The Minister of State, Ministry of Justice (Lord McNally): My Lords, I wonder if my noble friend will give way. I want to intervene now because what I am going to say will help the shape of the debate. I realise that my noble friend and a number of noble and learned Lords may wish to contribute. I in no way want to cut short or pre-empt that debate, but I hope that my comments will establish the context for them to comment on what the Government intend to do.

As the noble Lord, Lord Pannick, told us, we considered a similar amendment to this in Committee in July. I said that the Government were sympathetic to the concerns raised about the offence of scandalising the judiciary but we wished to consider the issue further and to consult others. In particular, before moving to reform or abolish this offence, we wished to consider whether such a step could result in a gap in the law or have an unwanted side-effect.

As the noble Lord, Lord Pannick, told us, in this we had the benefit of the work of the Law Commission, which was and is currently reviewing the law on contempt of court. As the noble Lord said, it kindly brought forward the element of its review considering scandalising the court and published a paper for public consultation in August. The commission considered three options in its consultation paper—to retain, abolish or replace the offence—and it has concluded that the offence should be abolished without replacement. Its analysis was in-depth, examining the human rights aspects and considering the arguments for and against the various options.

The consultation closed in October, and the commission published a summary of responses last month and a summary of its conclusions yesterday. I was pleased to see that several noble Lords responded with their views, and that members of the judiciary and other legal professions were also well represented. Of 46 responses, some from organisations, 32 were in

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favour of abolition. The remainder expressed a variety of views, most favouring a replacement offence, but I note that only two favoured retaining the offence in England and Wales, at least for now.

We have also noted other views, such as those expressed by noble Lords in Committee, and have concluded that it is right that this offence should be abolished. We therefore support the amendment. However, we also noted the Law Commission’s observation in its paper that:

“It may be necessary to clarify that the abolition of this offence does not affect liability for behaviour in court or conduct that may prejudice or impede particular proceedings”.

We support that view that abuse of a judge in the face of the court, or behaviour that otherwise interferes with particular proceedings, should remain a contempt. The new clause includes a provision that will ensure such behaviour will remain subject to proceedings for contempt of court.

In contrast to the amendment we debated in Committee, which extended to Northern Ireland, this amendment applies to England and Wales only, as the noble Lord, Lord Pannick, explained. In July, I said that we would be consulting the devolved Administrations; noble Lords must remember the criminal law is a devolved matter in both Northern Ireland and Scotland. Scandalising the judiciary is also a common law offence in Northern Ireland. As I have said, we consulted with the Minister of Justice, David Ford, who has confirmed that he does not wish the Westminster Parliament to legislate on behalf of the Northern Ireland Assembly on this offence. Similarly, the Scottish Government have also confirmed that they do not wish us to legislate on their similar common law offence of murmuring judges. Given that this is a devolved matter in both jurisdictions and under the terms of the Sewel Convention, we wish to respect the wishes of the Scottish Government and Northern Ireland Assembly in this matter.

I am grateful to my noble friend Lord Lester and the noble Lord, Lord Pannick, for bringing this matter before the House. The Government are happy to support this amendment, and through it the abolition in England and Wales of the offence of scandalising the judiciary. I hope that my intervention at the start of the debate does not prevent other noble Lords and noble and learned Lords from making observations on where we are and where we are going.

4 pm

Lord Lester of Herne Hill: My Lords, I declare a former professional interest in that I acted for the Northern Ireland Human Rights Commission in the aborted contempt proceedings in relation to Peter Hain and his publisher. I am extremely grateful to the Attorney General for Northern Ireland for his entirely misguided decision to move for committal because, but for that, I would not be standing here in support of the amendment. We owe everything to the Attorney General because it was that which caused me to contact the Law Commission and the Government, and to discuss the matter with my friend, the noble Lord, Lord Pannick, in the first place.

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It is important that the Government have decided to do what we have just heard from the Minister, and that is most welcome. However, I pay tribute to the previous Government, and I see the noble Lord, Lord Bach, in his place when I say this. He will remember that the other antique and archaic speech crimes of sedition, seditious libel, defamatory libel, obscene libel and blasphemous libel were all abolished by the previous Government and Parliament for similar reasons connected with free speech.

So far as blasphemy was concerned, for the reasons given by the Minister, it was decided that, although we could abolish that offence in Britain, we could not do so in Northern Ireland. We left it to Northern Ireland to do so itself, and we thought that it would be easy to do there because Northern Ireland already had a law on incitement to religious hatred that was rather stricter than what we have in this part of the kingdom. However, nothing has happened on that issue in Northern Ireland because there is institutional paralysis about doing anything of the kind. I know that this matter has concerned the Northern Ireland Human Rights Commission, and exactly the same problem arises now. Even though the amendment springs from a problem that arose in Northern Ireland, I am doubtful as to whether the Northern Ireland Government will agree to bring their common law into line with what we are doing in England and Wales. However, given that two other supporters of the amendment know far more about Northern Ireland than I would ever know, I shall not say more about that matter.

I should like to make one other point. Although abolishing this crime in this country will make very little difference because the law is entirely obsolete, it will make a difference in the rest of the common law world. All the textbooks, including that of the noble Lord, Lord Borrie, say the same thing, which is that, although this is an outmoded and archaic offence, there remain many parts of the common law world where it is enforced. The most notorious example occurred in Singapore last year, where Mr Alan Shadrake, who wrote a book criticising the Singapore judiciary’s attitude towards the death penalty, was committed for contempt, sentenced to prison, fined and told to pay legal costs. This gentleman, who is about my age and a distinguished senior writer, was condemned in that way, with the Singapore Court of Appeal applying its view on our case law and this offence. By abolishing the offence today we do not really change much in this part of the world because, apart from what happened in Northern Ireland, it is simply never invoked anymore. However, it will send an important message across the common law world. That is another reason why I am so delighted that the Government have decided to take this course.

Lord Carswell: My Lords, I support this amendment. I spoke briefly in Committee and I intend to be brief again today, particularly in view of the way in which the House has so far received the amendment and what the Minister has said.

Since that debate in Committee, the Law Commission has published this admirable consultation paper, which contains a full and helpful discussion of the issues, the principles and the possible solutions. My view, which

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was very direct and brief in Committee, remains unchanged. The special sanction for judges remains unnecessary. My reasons remain the same. Judges have to be hardy enough to shrug off criticism, even if it is intemperate or abusive, which has happened; even if it is unfair and ill-informed, which has certainly happened; and even if it is downright deliberately misleading, the same applies.

I speak from some knowledge. I have been scandalised on several occasions in the course of criminal trials at which I was the presiding judge without a jury. It was intemperate, certainly ill-informed and extremely offensive. I was deeply offended and hurt, but I certainly did not consider attempting to ask anyone to invoke the special procedure of scandalising the court. If anyone had suggested it, I would have firmly discouraged him at that time, which is a good many years ago now.

After I read the Law Commission consultation paper, I considered quite seriously whether there was room for the possibility of a new and more specific offence, penalising possibly deliberate and malicious targeting of a judge by making untrue and scandalous allegations into something of a campaign. I am persuaded, however, that it is better not to introduce any such offence into the law but simply to leave it at abolishing the offence of scandalising.

My reasons are three. First, special protection of judges immediately invites criticism from those who are all too ready to give vent to it. Secondly, if a judge had to give evidence in such proceedings, it would create a further and better opportunity for intrusive cross-examination and create a field day for publicity for critics of the judiciary. Thirdly, as I have said before, judges have to put up with these things; they have to be robust, firm and, on occasions, hard-skinned enough.

The Law Commission, in my view, was right in its provisional conclusions and I hope that when the report has been considered, the responses will confirm that. I would certainly support the amendment that the offence should simply be abolished.

Finally, as noble Lords have said, this of course does not apply in Northern Ireland. The authorities there will form their own view and take their own course. I cannot and do not in any way speak for them, nor have they consulted me about such provisions. I have to say, and I hope that they will take this into account, that I cannot see any reason why judges in Northern Ireland should have any different protection from judges in England and Wales against scandalising. I think the same considerations apply, and having been a judge there for 20 years, I would certainly not wish to see any differentiation.

Lord Beecham: My Lords, I echo the remarks made by the Minister and by other noble Lords. We are entirely supportive of the amendment, and glad that the Government have agreed to take matters forward in the way that the noble Lord indicated.

Lord McNally: My Lords, I will clarify a point raised by the noble Lord, Lord Pannick. The Justice Committee in Northern Ireland recently agreed to proceed with an amendment to its Criminal Justice Bill that would see this offence repealed. I am sure that

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the words uttered by the noble and learned Lord, Lord Carswell, about his own experience will carry great weight. However, this is a devolved matter for Northern Ireland.

Lord Pannick: I am grateful to all noble Lords who spoke.

Amendment 113A agreed.

Amendment 113AA

Moved by Baroness Linklater of Butterstone

113AA: After Clause 23, insert the following new Clause—

“Eligibility for assistance

(1) An accused person in criminal proceedings is eligible for assistance by virtue of this section if the courts considers that the quality of that person’s participation in and understanding of court proceedings or of the evidence given by that person is likely to be diminished by reason of any circumstances falling within subsection (2).

(2) The circumstances falling within this subsection are that the accused person—

(a) suffers from mental disorder within the meaning of the Mental Health Act 1983, or

(b) otherwise has a significant impairment of intelligence and social functioning.

(3) Where the court determines that the accused person is eligible for assistance by virtue of this section, the court may then give a direction under this section providing for—

(a) assistance of the accused in preparing for court proceedings and in instructing the accused person’s legal representative to be provided by a person approved by the court for the purposes of this section (“an intermediary”),

(b) assistance of the accused person in understanding and participating in court proceedings to be provided by the intermediary, and

(c) the examination of the accused person to be conducted through the intermediary.

(4) The Secretary of State may, by regulations, make provision about the recruitment, accreditation, training and appraisal of intermediaries approved by courts under this section.”

Baroness Linklater of Butterstone: My Lords, the amendment will ensure that, where necessary, vulnerable defendants are provided with the appropriate support to enable effective participation in court proceedings and in preparing for their trial. The aim is that such defendants should be entitled by statute to the same support as vulnerable witnesses, and thus to an equally fair trial. A briefing paper, Fair Access to Justice?, for front-line staff in the criminal justice system and the NHS, explains how those who appear in court as a victim or witness are entitled to extra support or special measures to help them understand and cope with the process. At present, vulnerable defendants do not have the same entitlement and get that support only at the discretion of the court, despite the fact that high numbers are vulnerable. The amendment would restore a balance and ensure even-handedness in court proceedings for any vulnerable person, whether they are a victim or a defendant. The special measures are intended to reduce the stress of the court appearance for the vulnerable individual or witness so that he or she can give the best evidence. Hitherto, these measures applied only to vulnerable witnesses and specifically not to defendants.

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Support is provided for witnesses by qualified intermediaries who are registered, accredited and trained to help vulnerable and other witnesses in court proceedings after the most stringent selection, quality assurance, regulation and monitoring procedures. The aim is to facilitate vulnerable witnesses with two-way communication in court between them and other participants so that their communication is as complete, accurate and coherent as possible. However, while the arrangements are available to witnesses, they are specifically not available for defendants except at the discretion of the court, and even then the intermediaries appointed to support them do not have to be either registered or regulated, and are paid different fees. It is possible to have an unregistered intermediary assisting a defendant while a witness in the same trial has a fully registered one who is paid more than his counterpart who represents the defendant. This is an entirely unfair and unjust arrangement that favours a witness over a defendant, irrespective of the guilt or innocence of the vulnerable parties.

The current reality is that a high number of defendants going through the courts need particular support to help them cope and understand what is going on. If they do not have this help, it can affect their ability to participate in court proceedings and compromise their right to a fair trial. There is some help for vulnerable defendants giving oral evidence only, but they are not helped during trial proceedings to participate effectively, instruct counsel or prepare for a trial.

4.15 pm

More than 60% of children who offend have communication difficulties, 5% of adults have learning difficulties and high numbers have mental health problems. Clearly their ability to communicate is significantly compromised, especially in the context of a courtroom. Many have difficulty expressing themselves, understanding certain words and in verbal comprehension. In fact, one study showed that more than one-fifth did not understand what was happening to them, what was going on, or even why they were in court at all or what they had done wrong. Generally those with a low IQ and learning difficulties are likely not to understand certain words during their arrest and trial, and may find it harder to remember things, and be more suggestible or answer questions with what they think the lawyer wants to hear.

The answer would seem to be that vulnerable witnesses and vulnerable defendants should be treated even-handedly. Both should have properly registered intermediaries to help prepare them according to their need. Whoever is to be responsible for making appropriate arrangements should be clarified or decided, specifying the particular roles of those involved in the court proceedings. Special measures and adjustments according to personal need and to give guidance to the judiciary and staff should be part of the new liaison and diversion services.

Finally, the use of these measures and other reasonable adjustments should be monitored, reviewed and reported for the national liaison and diversion development network and an integral part of the forthcoming policy. Indeed, there should be one register of intermediaries

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for all vulnerable people in the criminal justice system, subject to all the same standards. Procedures for all liaison and diversion services in the criminal justice system should provide the courts with all relevant information regarding impairment and support needs, including when an appropriate adult has been called to a vulnerable adult or 17-year old at a police station.

This seems an obvious anomaly; it risks leading to serious injustice, which is quite unacceptable. The model exists for help for witnesses thus disabled, so the solution would appear to be simply to apply it to defendants with similar disabilities for justice to be done. Discrimination is hard enough at the best of times when you are disabled. At the worst of times, for the courts to be found to be inadvertently discriminating against a defendant because of his or her disability—and who is innocent until proved guilty—through a failure to understand the nature of the disability, is clearly unacceptable. Mercifully, it would appear relatively easy to put right. I urge the Minister, at this late stage in the Bill, to ensure that the necessary changes are made to the current situation so that justice can indeed be done and be seen to be done. I beg to move.

Lord Beecham: My Lords, I hope the Minister can give a positive reply to the noble Baroness. She has made a powerful case in connection with a particularly vulnerable group for whom existing services are perhaps not adequate. I do not know whether the Minister will be inclined to accept the amendment at this stage or whether he will at least be prepared to take it back for consideration before—or rather at—Third Reading. I think that that would satisfy the noble Baroness and most Members of Your Lordships’ House and I hope he feels able to take that course.

Lord Woolf: I also urge the Minister to do what has just been urged by the noble Lord, Lord Beecham. It is the judge’s most important duty to ensure the fairness of the trial. However, the problem identified by the noble Baroness, Lady Linklater, is one that the judge simply cannot tackle himself. There needs to be hands-on assistance of the sort she indicates. Therefore, for the same reason, I ask the Minister to give careful consideration to this.

Lord McNally: My Lords, as the noble and learned Lord, Lord Woolf, has just told us, it is the duty of the courts to ensure that defendants receive a fair trial. It therefore may be necessary to make particular efforts in the case of defendants whose understanding is limited. To some extent it will fall to the defendant’s legal adviser, or to the judge, to help meet the needs of these vulnerable defendants. From time to time courts have asserted the right to grant such defendants the assistance of an intermediary.

Statutory provision has in fact already been made in Section 104 of the Coroners and Justice Act 2009 for certain vulnerable defendants to be eligible for assistance from an intermediary when giving evidence. A defendant would benefit from this provision where their ability to participate effectively in the proceedings as a witness is compromised by a significant impairment of intelligence and social functioning; or where they are suffering from a mental disorder within the meaning of the Mental Health Act 1983.

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The Government made a decision to defer implementation of Section 104 until full consideration could be given to the practical arrangements and resource implications. Although there are no immediate plans to implement these provisions, we are continuing to monitor the situation and the resource implications of doing so. However, as I said earlier, judges have on occasion granted the use of an intermediary to assist vulnerable defendants to ensure a fair trial. In fact, guidance on the process for appointing intermediaries for defendants was issued nationally to all courts last year.

Furthermore, Part 3.30 of the Consolidated Criminal Practice Direction also provides guidance on a range of other types of support that a court may wish to offer, including that at the beginning of the proceedings the court should ensure that what is to take place has been explained to a vulnerable defendant in terms they can understand. Secondly, a trial should be conducted according to a timetable which takes full account of a vulnerable defendant’s ability to concentrate. Frequent and regular breaks will often be appropriate.

I have listened to what my noble friend said and to the interventions of the noble and learned Lord, Lord Woolf, and of the noble Lord, Lord Beecham. I do not want to raise expectations as I am not sure whether I can get clearance to take this forward at Third Reading. However, I assure my noble friend that, as I have said, we are continuing to monitor the situation and are looking at the practical arrangements and resource implications of bringing in Section 104. I certainly agree to take this measure away. If I cannot bring it back at Third Reading, I will write to the noble and learned Lord, the noble Lord and my noble friend to explain why I cannot do so and what we are doing to keep this matter under review. I hope that, with those assurances, my noble friend will agree to withdraw her amendment.

Baroness Linklater of Butterstone: My Lords, I am heartily grateful to the noble and learned Lord and the noble Lord who have supported what I had to say. That support, coming from two such distinguished sources, means a very great deal to me. I hope that the Government will also pay heed to it.

I heard what my noble friend the Minister said. It is moderately cold comfort. There is none the less the possibility of further recognition of what remains quite a major injustice that is built into our system. In the mean time, I beg leave to withdraw the amendment.

Amendment 113AA withdrawn.

Amendment 113B had been retabled as Amendment 108ZA.

Amendment 113C

Moved by Lord McNally

113C: Before Clause 24, insert the following new Clause—


Use of force in self-defence at place of residence

(1) Section 76 of the Criminal Justice and Immigration Act 2008 (use of reasonable force for purposes of self-defence etc) is amended as follows.

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(2) Before subsection (6) (force not regarded as reasonable if it was disproportionate) insert—

“(5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.”

(3) In subsection (6) at the beginning insert “In a case other than a householder case,”.

(4) After subsection (8) insert—

“(8A) For the purposes of this section “a householder case” is a case where—

(a) the defence concerned is the common law defence of self-defence,

(b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),

(c) D is not a trespasser at the time the force is used, and

(d) at that time D believed V to be in, or entering, the building or part as a trespasser.

(8B) Where—

(a) a part of a building is a dwelling where D dwells,

(b) another part of the building is a place of work for D or another person who dwells in the first part, and

(c) that other part is internally accessible from the first part,

that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is a dwelling.

(8C) Where—

(a) a part of a building is forces accommodation that is living or sleeping accommodation for D,

(b) another part of the building is a place of work for D or another person for whom the first part is living or sleeping accommodation, and

(c) that other part is internally accessible from the first part,

that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is forces accommodation.

(8D) Subsections (4) and (5) apply for the purposes of subsection (8A)(d) as they apply for the purposes of subsection (3).

(8E) The fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser for the purposes of subsection (8A).

(8F) In subsections (8A) to (8C)—

“building” includes a vehicle or vessel, and

“forces accommodation” means service living accommodation for the purposes of Part 3 of the Armed Forces Act 2006 by virtue of section 96(1)(a) or (b) of that Act.”

(5) In subsection (9) (section intended to be clarificatory) after “This section” insert “, except so far as making different provision for householder cases,”.

(6) An amendment made by this section does not apply in respect of force used before the amendment comes into force.”

Lord McNally: My Lords, I was going to say that these were technical amendments, but I am advised that they are not.

It would be terrifying to be confronted by a burglar in your own home. Mercifully, it does not occur very often, but when such a situation arises most people would say that the law should be on the side of the householder. After all, they are the ones who may have been woken up in the dead of night, made to fear for their safety or the safety of their loved ones and compelled to use force to protect themselves in traumatic

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circumstances. If householders end up being arrested, prosecuted or convicted after injuring a burglar, this can give rise to a public perception that the criminal justice system does not support the real victims in all of this. These amendments are designed to shift the balance of the law further in favour of householders to ensure that they are treated first and foremost as the victims of crime.

The current law, as clarified in Section 76 of the Criminal Justice and Immigration Act 2008, already says that people can protect themselves or others, prevent crime or protect property using force that was reasonable in the circumstances as they believed them to be. However, it also says that the use of force which was disproportionate in the circumstances will never be reasonable. This means that a householder who has acted honestly and instinctively to protect himself or his loved ones from an intruder could end up being prosecuted if his actions are deemed to have been disproportionate when viewed in the cold light of day. The Government feel strongly that householders, acting in extreme circumstances to protect themselves or others, cannot be expected to weigh up exactly how much force is necessary to repel an intruder. There may be a fine line between actions that are proportionate in the circumstances and those which might be regarded as disproportionate. The Government think householders should be given the benefit of any doubt and that Section 76 of the 2008 Act should be amended accordingly. As long as householders have done only what they believed was reasonable in the circumstances, it should not matter if those actions were disproportionate when viewed with the benefit of hindsight.

I am aware of criticisms that these changes will amount to a vigilantes’ charter; the Government do not accept that argument. All we are saying is that if householders act in fear for their safety or the safety of others and in the heat of the moment use force which is reasonable in the circumstances but seems disproportionate when viewed in the cold light of day, they should not be treated as criminals. Force which was completely over the top—grossly disproportionate, in other words— will still not be permitted.

This is not about saying that it is open season on any intruder. It is rather saying that the law will look benevolently upon any householder who, faced in his own home with the terror of someone he believes to be a trespasser, acts in a way that is reasonable in the circumstances as he believed them to be, even if the force used was disproportionate.

Noble Lords will note that the amendments are limited to householders defending themselves or others from intruders in their dwellings. The Government believe that attacks by intruders in the home cause the greatest public concern. Our home is our haven and refuge—a place where we have every right to feel safe. That is why the Government believe that householders deserve special protection. However, the provision also extends to shopkeepers who live and work in the same premises and Armed Forces personnel who may live and work in buildings such as barracks for a period of time.

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We recognise that there are a range of other circumstances in which people might be required to use force—for example, to defend themselves from attack on the street, to intervene to stop crimes being committed or to protect their property. The new provision does not extend to those situations, but the current law on the use of reasonable force will continue to apply in those circumstances.

I recognise that some noble Lords might have a feeling of déjà vu as we debate these measures. We are returning to an area of the law that has been debated twice in recent years. While previous Bills clarified important aspects of the law on the use of force, the current proposals would make material changes to strengthen the rights of householders when defending themselves or others from intruders. Critics have said the changes are unnecessary because the current law provides adequate protection and householders who have defended themselves from burglars are hardly ever prosecuted. Clearly the Government take a very different view. Each case is different. Although the Crown Prosecution Service decided not to prosecute householders involved in recent cases, such as those in Leicestershire and Manchester, there might be occasions in the future where law-abiding householders benefit from these important provisions. I beg to move.

4.30 pm

Lord Beecham: My Lords, burglary is a serious crime—

Lord Woolf: My Lords—

Lord McNally: Does the noble Lord not want to speak at the end?

Lord Beecham: No, I want to speak now if that is all right. Thank you. Burglary is a serious crime and a particularly distressing one. The forced invasion of one’s home adds a further dimension to the effect on its occupiers. I suspect several Members of the House will have shared my experience, at least in part. My home—which, incidentally, was built by the father of the noble and learned Lord, Lord Woolf, to whom I apologise for anticipating in this debate, for reasons that I shall give later—has been burgled and my office has also been burgled once. Fortunately, little damage was done; even more fortunately, no one was present at the time. Where the householder or other occupant is present, the impact of the crime transcends distress and, too often, becomes traumatic.

I say at once that we welcome the extension of the present law to non-residential premises, such as those of shopkeepers, to which the Minister has referred. However, in relation to domestic premises, while absolutely affirming the right of residents to defend themselves and their property, we have doubts about the Government’s proposals. The amendments have been spatchcocked into the Bill at virtually the last minute, almost, it would seem, as an initiation rite performed by the new Lord Chancellor. Unlike the proposals on community sentencing, we have not had the opportunity of a general debate under the recommittal procedure. I propose therefore to treat the debate on these amendments as, in effect, a Second Reading debate, which is why I sought to speak now rather than later.

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Burglary is an offence against the person as well as against property, because a break-in destroys the victim’s peace of mind by violating the safe haven of their home. The householder is not in a position to exercise calm, cool judgment. The householder is entitled to use reasonable force to get rid of the burglar; and, in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later:

“You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear”.

These are not my words—although I concur with them—but the words of the Lord Chief Justice, the noble and learned Lord, Lord Judge, commenting on the recent case of two men jailed after raiding a remote cottage, when they were blasted with a shotgun. What is significant is that his words reflect the present state of the law. Although the victims in that case were questioned by police, their Member of Parliament, Alan Duncan MP—not, I think, generally known as a bleeding-heart liberal—said:

“The police did a very good job and investigated as thoroughly as they had to when a firearm is involved”.

The first question is what the government proposal adds to the present state of the law, as enshrined by the Labour Government’s Criminal Justice and Immigration Act 2008 and the present Government’s clarification, embodied in Section 148 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, passed only a few months ago. In my submission, it adds only confusion. It purports to allow the use of disproportionate force but not grossly disproportionate force. Can the Minister define, or even better exemplify, the difference between the two, especially bearing in mind the words of the Lord Chief Justice? What difference, if any, in his view would the amendment’s wording have had, for example, on the case of Tony Martin, who shot dead a burglar? What does the Minister make of the statement by Michael Wolkind QC, who represented Tony Martin? He said:

“The law already recognises that people react in a certain way in the heat of the moment”,

and argued that the law does not need changing.

The second element that the proposal might add to the Bill is, paradoxically and obviously unintentionally, a heightened risk to home owners. A study in Texas has demonstrated that the notorious “stand your ground” law, promoted by the US gun lobby and enacted in several US states, has led to more injuries and deaths being inflicted on householders and others by criminals, rather than fewer. Anyone who watched the recent TV programme on “stand your ground” would surely hesitate before opening the door to similar unintended consequences here, even allowing for the radically different gun culture that is such a blemish on American society.

There are other questions to be asked. Have the Government consulted the judiciary or the police on the proposed changes? If so, what responses have they received? If they have not consulted them, why not? Have they conducted an impact analysis? Your Lordships might think that a particularly fitting term in this instance for an assessment of the consequences of legislation. What is the evidence that the present state

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of the law, as defined by the noble and learned Lord, Lord Judge, is inadequate? The Minister has circulated what purports to be a fact sheet. Your Lordships might think that that document contains precious few facts and no evidence on which to base the Government’s proposals.

My right honourable friend Sadiq Khan sought information by means of Parliamentary Question on the number of home owners arrested or charged after defending their property against burglars since 1994. The answer was:

“The information on arrests is not collected centrally … It is not possible to match the arrests data to any subsequent outcomes”.—[Official Report, Commons, 22/10/12; col. 641W.]

The Guardian recently reported, after a review by the CPS, that there were all of seven cases—I repeat, seven cases—between 1990 and 2005 in which a householder was prosecuted. In other words, there is simply no evidence to suggest that the problem the Government purport to be addressing is significant in terms of numbers, whereas it is clear that neither the police nor the courts are going to fall over themselves to prosecute householders who react in the way described by the Lord Chief Justice.

Is the Minister suggesting that where serious injury or death is inflicted on a burglar—or even someone such as the man featured in a recent BBC radio programme who was thought to be a burglar but was apparently just a confused man trying unsuccessfully to enter what he thought was his own home—the police should not investigate the situation in a proper manner, not least in the interests of those whom they interview? I wait to see not only what answers to these and other questions emerge from this debate but what transpires when this Bill goes to the House of Commons.

I have no doubt that the Lord Chancellor will seek to portray himself as the champion of the victims. It is a pretty hollow claim on the part of a Government who are both alienating and cutting the police force; undermining community policing; presiding over the reduction of community support officers, who provide invaluable back-up to front-line policing; and savagely slashing or altogether removing compensation for the victims of crime by their changes to the criminal injuries compensation scheme. Those changes, I might add, were forced through the House of Commons by the process of mugging several Conservative members of the relevant committee, including John Redwood MP, a senior former Minister, and substituting placemen in the form of Parliamentary Private Secretaries—not much consideration for victims of crime in that context.

I repeat that we are at one with the intention to protect the householder and punish the burglar. We remain to be convinced that the Government’s proposals are sound in law and safe, from the perspective of the very people they are supposed to protect.

Lord Pannick: Before the noble Lord sits down, in the light of his very powerful speech, is he going to invite his Benches to enter the Lobbies to oppose this amendment?

Lord Beecham: My Lords, I am treating this as a Second Reading debate, which we could and should have had some time ago, to allow the Government the

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opportunity to make their case—which, it seems to me, the Minister has failed to do today—either here or in the other place, but we will not be voting on these proposals today.

Lord Woolf: My Lords, I should disclose that I presided over the case of Tony Martin on appeal. I oppose this amendment because I regard it as a very bad example of where statutory interference with the common law is wholly unnecessary. Unfortunately, like the noble Lord, Lord Beecham, my home has been burgled so I am not totally objective on these matters and know the concern that they can cause.

The position here is that nearly every word the Minister used in moving this amendment is the sort of remark that judges up and down the country would make to a jury when dealing with those very few cases in which a householder is prosecuted. I could hear myself making precisely those remarks in those days of longer and longer ago: such as saying that the person whose house was broken into, or who was attacked by a burglar, cannot be expected to draw a fine line between what is permissible and what is not. He has to be judged in the circumstances in which the alleged offence was committed. The great advantage of that situation was that the jury of men and women with their own experiences could set the standard and decide what was reasonable or what was not. Certainly, based on my experience, they always exercised that task in a way that was sympathetic to the defendant whose home was interfered with.

The problem and disadvantage caused by introducing an amendment of this sort is that you will always try to put into language the appropriate circumstances where you think a particular result is desired. However, there will be circumstances that are very similar to those circumstances, but where the language used does not apply. You cannot anticipate all the circumstances. One inevitable difficulty with this sort of amendment is that there will be amendment after amendment to the law, making it more and more complex and difficult to apply. Yet, as the quotation from the present Lord Chief Justice makes clear, a statement of the sort he indicates will achieve justice in the particular case.

I can understand why it is thought to be a good thing to do everything possible to defend victims of a particularly nasty crime from unintended consequences. However it is not desirable when the law itself is satisfactory and changing the long-standing law that upholds the spirit of the common law is sought by reducing it to the kind of language we have here.

Baroness Kennedy of The Shaws: My Lords, I, too, oppose this amendment and echo everything said by the noble and learned Lord, Lord Woolf. The whole nature of self-defence in the common law is very clear. Day in, day out, juries up and down the country judge using that set of criteria; which is that when you are fearful for your own safety or that of your family, when you feel a threat and act in response to the fear of a threat, no one expects you to measure the nature of your response to a nicety. No one for a minute expects you to be measured in the cold light of

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day and not take account of the heat of the moment that faces you when defending yourself. That is a measure in the courts on self-defence anyway, but it becomes even more heightened when dealing with the terror that we all know—and probably most of us have experienced—when we find that we have been burgled.

So this is about reaching for changes in the law for rather unsatisfactory purposes. A Dutch auction is now going on between the political parties about who can be tougher on law and order and this is about seeking to appeal to a fear in the public that is already met by law. That really is the poorest kind of legislative endeavour and is not worthy of the Benches on the other side.

4.45 pm

I want to reiterate something else: the Government’s amendment permitting the use of disproportionate force by householders is actually a rare example of a provision in a Bill that is incompatible with the European Convention on Human Rights. It is in breach of the United Kingdom’s obligation under Articles 2 and 8 to ensure that its criminal law provides adequate protection for the rights to life and physical integrity. Those apply to all of us in society. I am sure that there are those on the government Benches who would cheer on any way of challenging the European Convention on Human Rights but that cannot be true of the Liberal Democrats who make up the coalition. I really want them to be mindful that this is disrespecting our commitments under the European Convention.

For those on my own Benches, I say with some pride that when the Labour Government sought to change the law in 2008—for I suspect equally unhelpful reasons—it was pointed out that they would run into difficulties with the European Convention on Human Rights. I am happy to say that they demurred. There is a letter in the public domain dated 31 January 2008 from the Lord Chancellor and Secretary of State for Justice at the time, the right honourable Jack Straw, to Nick Herbert, Conservative Member of Parliament. Mr Straw referred to the report of the then Joint Committee on Human Rights and pointed out that he—and the Labour Party—agreed with the committee’s analysis that for criminal law to permit the use of disproportionate force would provide for it to do something that was incompatible with Articles 2, 3 and 8 of the European Convention on Human Rights, which require the use of force to be proportionate. That was the position of principle of Labour at that time. I am sure that it will continue to be the position of Labour now—at least, I hope so.

I say to those on the other Benches: there is no need for the law to be changed on this. Our common law gives us the answer to these challenges to home owners, who deserve to be protected—absolutely—and should not be put in fear of being prosecuted. The law as it stands is absolutely adequate. I am afraid that this is politicking, not legislating.

Lord Lloyd of Berwick: My Lords, I entirely agree with the noble Lord, Lord Beecham, the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Kennedy of The Shaws. I remember well when

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the Criminal Justice and Immigration Act 2008 was going through this House that I was much concerned by Section 76. I have always thought that the piecemeal amendment of the common law by legislation was a mistake unless such amendment was preceded by a report from, in the old days, the Criminal Law Revision Committee or, nowadays, the Law Commission. I suggest that there are two grave disadvantages in the sort of piecemeal amendment we are now asked to perform. First, it deprives the development in the common law of the flexibility that the common law provides as circumstances change. Once you put it in statute it is in statute, and if it is to be changed at all it has to be changed by statute. Secondly, it may often be initiated as the result of a particular campaign—this may be an example of that—without regard to the wider context.

I did not in fact oppose Section 76 when it went through the House because it at least did not in any way seek to change the law on self-defence. That is made amply clear by Section 9 itself. Section 76 was in some ways an odd provision because it refers both in subsection (1) to the test being one of reasonableness and in subsection (6) to the test being one of disproportion—although those two things might be thought to be opposite sides of exactly the same coin. That will not be so from now on because of the addition of the word “grossly” before the word “disproportionate”. For that reason Section 9, which made it clear that the common law was not going to be changed, has now itself been amended to show that, in this respect, the common law is being changed. We are thus now doing exactly what I feared would be the result if we stratified the law as we did in 2008.

What is being done is defended on the basis that it is very difficult for the householder, in the agony of the moment, to make a nice judgment as to what is reasonable or is not. That has always been the law, as my noble and learned friend Lord Woolf has made clear. Speaking from my own experience, I have always stressed that very point. In that respect, this will not change the law but it will, in fact, change the law in the way that I have described. Just as judges have got used to directing juries in accordance with Section 76, they will now have to change tack, which they should not be required to do.

Lord Pannick: My Lords, the Minister said that householders should not be subjected to criminal liability because of the use of force which may appear disproportionate in the cold light of day, and that the amendment is designed to redress the balance. It is very important to identify precisely what the balance is at the moment and, as the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Kennedy of The Shaws, have said, the law is very clear on this subject. The official specimen directions to a jury—what judges up and down the land actually tell jurors on this subject—are contained in the Crown Court Bench book which says:

“When considering whether the defendant’s conduct was reasonable do bear in mind that the person who is defending himself cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary; and in this regard, the more serious the attack (or threatened

10 Dec 2012 : Column 888

attack) upon him, the more difficult his situation will be. If, in your judgment, the defendant was or may have been in a situation in which he found it necessary to defend himself and he did no more than what he honestly and instinctively thought was necessary to defend himself, that would be very strong evidence that the amount of force used by him was reasonable”.

This provides all the protection that the householder needs or, indeed, deserves. The Minister did not refer to any cases of unjust convictions, or even unjust prosecutions that should not have been brought. The highest that the Minister put it in his opening remarks is that such cases “might conceivably” occur in the future. This is surely the weakest basis for proposing law reform that your Lordships will have heard for some time. Furthermore, I agree with the noble Baroness, Lady Kennedy of The Shaws, that these amendments are inconsistent with our obligations under Article 2 of the European Convention on Human Rights to protect the right to life. It is one thing to allow the householder to use proportionate force and to assess that on the basis of what they honestly and reasonably understand the facts to be at the time they act in circumstances of shock and distress. It surely is a very different matter for Parliament to authorise the use of disproportionate force.

With great respect, I cannot understand why the Opposition Front Bench is not opposing this amendment in the Division Lobby today, despite the noble Lord, Lord Beecham, eloquently explaining that the amendment would cause confusion and nothing positive. It is all very well to treat this as a Second Reading debate but it is the only opportunity that this House will have to oppose the amendment. I hope that the Opposition will reconsider their position. I am sure that many noble Lords would join them in the Lobby if a Division were called.

This amendment is unnecessary, unprincipled and inconsistent with our international obligations. I hope that the Government will think again.

Lord Morris of Aberavon: My Lords, I am sorry that I missed the beginning of the debate: I was engaged on other business. I support everything that has been said against this amendment. It is unnecessary and confusing, and will be inflexible. My experience is much more limited: I was a criminal practitioner who had to sum up in these kinds of cases on dozens of occasions.

On those occasions, I always would quote—I am grateful to the noble Lord, Lord Pannick, for giving us an account of the current sentencing preferred remarks by the Sentencing Council—a namesake, who is no relation although I knew him. Lord Morris of Borth-y-Gest used to say that in the heat of a moment, one cannot judge to a nicety the appropriate amount of force that is reasonable. That phrase used to be quoted in the sentencing remarks and was referred to by my noble friend Lady Kennedy.

In summing up, will the Minister enlighten us as to the form of words that would be used by a judge to sum up a situation where he is saying that a disproportionate amount of force can be used? I should like to know what those words will be. That would clarify the situation beyond peradventure. I fear that the Lord Chancellor is making up the law on the hoof and will rue the day if this becomes part of our law.

10 Dec 2012 : Column 889

Baroness Butler-Sloss: My Lords, I, too, have been burgled and I have absolutely no sympathy with burglars, but this amendment goes too far. I am very concerned about proposed new subsection (5A), under subsection (2) of Amendment 113C, as regards using the words “grossly disproportionate”. As the noble and learned Lord, Lord Morris of Aberavon, has just asked, how on earth would one advise a jury—I am glad to say that I was not a criminal lawyer but I did a little crime—that you can be disproportionate but not “grossly disproportionate”?

I share the view of the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Pannick, that it is contrary to the European Convention on Human Rights. I believe it is a matter that would end up in Strasbourg if we were not extremely careful. The Government—I can see for the best of intentions—are just going too far.

My recollection about the Martin case, which I read only in the press, is that he was shot in the back, which would be “grossly disproportionate”. Obviously, one could see why he did not get the existing protection that the Lord Chief Justice has given and that is in the standard advice to juries, as the noble Lord, Lord Pannick, read out. We do not need to go further. To go further will cause real trouble.

Lord Goodhart: My Lords, I regret that I cannot support this new clause. I agree entirely with what the noble and learned Lords, Lord Woolf and Lord Lloyd of Berwick, and a number of other practising lawyers have said. I regard this matter as very unsatisfactory. I have not practised as a barrister in recent years but I practised in the past and this proposal is unsatisfactory.

5 pm

Lord Martin of Springburn: My Lords, I speak as a layman who has represented communities in which the whole family cannot go out for a night’s entertainment because someone has to stay in for fear of being burgled. Like many noble Lords, I know what it is like to be burgled. You feel terrible when your home has been broken into. What worries me about the provision in this amendment is that in some historical cases firearms have been used. If this amendment is passed, many people who do not want their house to be broken into again will take precautions. In the countryside, people have firearms certificates for vermin and for recreational shooting, and I know that there are some firearms certificates in the city I represented because I had to sign certificates to say that the holder was a good, decent person. With this amendment, some people will want the same protection as someone living in the countryside and will apply for a firearms certificate just in case. That is a worry. There is a big difference between someone living on a small farm having a firearm and someone living in a tenement where it is much more dangerous.

I know from my experience in another place that Ministers, some of them the holders of the highest offices in the land, indulge in sound bites. They say to the press, “People are entitled to protect their homes”.

10 Dec 2012 : Column 890

Of course they are entitled to protect their homes, but we cannot have a situation where we give a licence to someone who will decide that he is going to take a shot at a burglar and will say that it was proportionate or that he did not think about it at the time.

Part of this amendment relates to Armed Forces accommodation—barrack rooms. We are talking not about shotguns but about far more lethal firearms. A soldier could say, “I was defending myself, and that’s why I shot this intruder”. I speak as a layman. I have no experience of standing in a court and putting a case or of listening to a case, as some noble Lords have, but I think this amendment is bad news.

Lord McNally: My Lords, this has been a very thoughtful debate, and people of great experience have put their views forward. I shall try again to explain where the Lord Chancellor is coming from and to reassure noble Lords on some of the points that have been made.

In bringing forward this amendment, the Lord Chancellor wants to clarify the situation and reassure the general public. Although the last contribution from the noble Lord, Lord Martin, was not in support of my proposal, it made the point that we are trying to deal with ordinary people dealing with situations in their lives. I understand lawyers making their points, but it is important that we see this from the public’s point of view. Although some recent cases have not led to prosecution and conviction, as I said, there may be cases in future which will benefit from the additional protection and clarification we are providing. Let me be very clear again, following on from what the noble Lord, Lord Martin, said, that this is not a vigilantes’ charter. In this country, there are still extremely strict rules about the possession and storage of guns which would still apply.

This is an attempt to recognise that people confronted by burglars, and acting in fear for their safety in the heat of the moment, cannot be expected to weigh up exactly how much force might be required. In these extreme circumstances, we think they should have greater legal protection. It is certainly not a licence to kill, whatever the circumstances. People will still be prosecuted if the use of force was unreasonable in the circumstances. The use of grossly disproportionate force will never be reasonable.

It will be for the courts to determine in each case what is disproportionate or grossly disproportionate. We want to make clear though that householders, who cannot always be expected to be thinking clearly if they are confronted by an intruder, will not be treated as criminals if they use a level of force which in the circumstances as they believed them to be is reasonable but turns out to have been disproportionate. We are clear that it is not open season for vicious attacks on anyone, even an intruder.

Let us also be clear, if somebody has been killed or seriously injured, an arrest may be necessary for the police to investigate thoroughly. A revised code of arrest for the police—PACE Code G—came into force on 12 November 2012 with new guidance on the circumstances in which an arrest may be necessary. The guidance also encourages the police to consider

10 Dec 2012 : Column 891

whether voluntary attendance at an interview might be a practicable alternative to a formal arrest. The changes we are making to the law will complement the improvements made to PACE Code G.

We are not changing the fundamental premise that a person can only use force that was reasonable in the circumstances as they believed them to be. The law on the use of force in other circumstances, for example, to defend oneself on the street, to prevent crime or to protect property will remain unchanged. We are trying to rebalance the law so that householders will not be thought of as criminals but, as I said at the beginning, quite properly as victims.

I am assured that we believe that the amendment is compatible with the ECHR and that we have recently published a memorandum in support of that view which I will put in the Library of the House.

Listening very carefully, I again pray in aid although I am not saying he is in support of this particular amendment, the Lord Chief Justice, who caught the mood behind the amendment at his press conference in September. He was reported as saying that,

“I am not talking about individual cases, but I know of cases, and I do read the newspapers occasionally”,


“it looks as though the householder is the criminal”.

He then pointed out the circumstance of a householder facing a burglar.

“You are probably very cross and you are probably very frightened—a mixture of both—and your judgment of precisely what you should or should not do in the circumstances cannot, as another predecessor of mine (Lord Lane) said, you cannot measure it in a jeweller’s scale”.

The realisation that in such terrifying circumstances you cannot measure it in a jeweller’s scale led the Lord Chancellor to conclude that it would be better to clarify the law in a way which he believes will be more reassuring to the householder and give better guidance to the court.

Lord Pannick: Before the Minister sits down, have the Government consulted the Lord Chief Justice and the judiciary on this matter and, if so, what has been their response to the amendment?

Lord McNally: The amendment is a government amendment, and the Government stand by the amendment.

5.10 pm

Division on Amendment 113C

Contents 206; Not-Contents 54 [See col. 902 for an explanation of mistake in voting figures.].

Amendment 113C agreed.

Division No.  1


Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Armstrong of Ilminster, L.

Arran, E.

Ashcroft, L.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Baker of Dorking, L.

Ballyedmond, L.

10 Dec 2012 : Column 892

Bates, L.

Bell, L.

Berridge, B.

Bilimoria, L.

Blencathra, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brookeborough, V.

Brougham and Vaux, L.

Browning, B.

Buscombe, B.

Butler of Brockwell, L.

Byford, B.

Caithness, E.

Campbell of Alloway, L.

Cathcart, E.

Cavendish of Furness, L.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Craigavon, V.

Crathorne, L.

Crickhowell, L.

De Mauley, L.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Elton, L.

Empey, L.

Falkner of Margravine, B.

Fearn, L.

Feldman, L.

Forsyth of Drumlean, L.

Framlingham, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glentoran, L.

Goodlad, L.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hanham, B.

Henley, L.

Heyhoe Flint, B.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Hooper, B.

Howe, E.

Howe of Aberavon, L.

Howell of Guildford, L.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

James of Blackheath, L.

Jenkin of Roding, L.

Jolly, B.

Jones of Birmingham, L.

Jones of Cheltenham, L.

Knight of Collingtree, B.

Kramer, B.

Lamont of Lerwick, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Liverpool, E.

Loomba, L.

Lothian, M.

Lucas, L.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Mar, C.

Marks of Henley-on-Thames, L.

Marland, L.

Marlesford, L.

Masham of Ilton, B.

Mawhinney, L.

Mayhew of Twysden, L.

Miller of Chilthorne Domer, B.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Naseby, L.

Neville-Jones, B.

Newby, L. [Teller]

Noakes, B.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

O'Neill of Bengarve, B.

Oppenheim-Barnes, B.

Palmer of Childs Hill, L.

Palumbo, L.

Patel, L.

Patten, L.

Perry of Southwark, B.

Plumb, L.

Popat, L.

Rana, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Rennard, L.

Ribeiro, L.

Risby, L.

Roberts of Conwy, L.

Roberts of Llandudno, L.

Rogan, L.

Roper, L.

Ryder of Wensum, L.

Saltoun of Abernethy, Ly.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Sharkey, L.

Sharp of Guildford, B.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Sheppard of Didgemere, L.

Shipley, L.

Shutt of Greetland, L.

Skelmersdale, L.

Slim, V.

Smith of Clifton, L.

Steel of Aikwood, L.

10 Dec 2012 : Column 893

Stephen, L.

Stevens of Ludgate, L.

Stewartby, L.

Stirrup, L.

Stoddart of Swindon, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Strasburger, L.

Strathclyde, L.

Sutherland of Houndwood, L.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Teverson, L.

Thomas of Swynnerton, L.

Thomas of Winchester, B.

Tope, L.

Trefgarne, L.

Trimble, L.

True, L.

Trumpington, B.

Tugendhat, L.

Tyler, L.

Tyler of Enfield, B.

Ullswater, V.

Verma, B.

Waddington, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Walpole, L.

Warsi, B.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Williamson of Horton, L.

Willis of Knaresborough, L.

Wilson of Tillyorn, L.

Younger of Leckie, V.


Adebowale, L.

Avebury, L.

Best, L.

Billingham, B.

Blackstone, B.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Butler-Sloss, B. [Teller]

Coussins, B.

Dear, L.

Desai, L.

Elder, L.

Elystan-Morgan, L.

Exeter, Bp.

Falkland, V.

Faulkner of Worcester, L.

Finlay of Llandaff, B.

Freyberg, L.

Goldsmith, L.

Goodhart, L.

Gordon of Strathblane, L.

Harries of Pentregarth, L.

Hayman, B.

Hylton, L.

Jay of Ewelme, L.

Kennedy of The Shaws, B.

Kerr of Kinlochard, L.

Kinnock, L.

Lloyd of Berwick, L. [Teller]

Low of Dalston, L.

McIntosh of Hudnall, B.

Mackenzie of Framwellgate, L.

Maclennan of Rogart, L.

Martin of Springburn, L.

Meacher, B.

Morgan, L.

Morris of Aberavon, L.

Pannick, L.

Paul, L.

Ramsbotham, L.

Redesdale, L.

Rowe-Beddoe, L.

Rowlands, L.

Scott of Foscote, L.

Simon, V.

Singh of Wimbledon, L.

Stern, B.

Taverne, L.

Temple-Morris, L.

Tomlinson, L.

Warnock, B.

Wigley, L.

Williams of Elvel, L.

Woolf, L.

Woolmer of Leeds, L.

5.26 pm

Amendment 113CA not moved.

Amendment 113D

Moved by Lord Avebury

113D: After Clause 24, insert the following new Clause—

“Immigration appeals: asylum and humanitarian protection

(1) The Nationality, Immigration and Asylum Act 2002 is amended as follows.

(2) In section 83(1)(b) omit the words “Kingdom” to the end.”

Lord Avebury: My Lords, the new clause proposed by the first amendment in this group would remove the restriction whereby an appeal against the refusal of asylum can be brought only where the person has been granted leave to enter or remain for more than 12 months. Noble Lords will be aware that unaccompanied children who are refused asylum are granted humanitarian

10 Dec 2012 : Column 894

protection or discretionary leave for periods of three years or until they reach the age of 17, whichever is the shorter, on the basis that they cannot be sent back to their country of origin. Bearing in mind that the UKBA takes months and sometimes years to decide whether to grant humanitarian protection in lieu of asylum, the child might arrive at the age of 15 or even earlier, might be refused asylum at the age of 16 and might still have to apply for discretionary leave to remain for a period that would make the total more than 12 months before appealing against the refusal.

I take it that there are very few refusals of the extension of discretionary leave, as almost all unaccompanied asylum-seeking children will have had no contact with family in their country of origin and therefore will still be ineligible for return when they reach the age of 17. The effect of the provision in the 2002 Act is to delay the permanent settlement of these children in the UK, making it harder for them to access the whole range of public services, including further and higher education, so that their economic and social potential is less than it would be if and ultimately when they become permanent residents of this country.

My noble kinsman said on 4 July 2012, in col. 710, that it was an “unfortunate consequence” of the otherwise very sensible 12-month restriction. He gave an assurance that the policy as it affects children would be reviewed. I was looking forward to hearing the outcome of that review at this stage of the Bill. It seemed to me that the Bill could only confirm the unfortunate consequences, as my noble kinsman called them, and that the Government would explain how they would eliminate them. Instead, my noble friend Lord Taylor told me in a letter of 20 November:

“We have considered this matter very carefully and have concluded that no change in current practice is appropriate”.

He stated, quite inaccurately, as I see it, that the,

“amendment would undermine the intention of the existing appeals framework, namely, to prevent multiple appeals that result in significant cost to the taxpayer”.

Those who are recognised as refugees will not need any second appeal, but the children and trafficked persons in question will get no appeal at all until they face removal—something that, had their case been decided correctly at the outset, they would never have faced. My noble friend says that the young persons affected by Clause 83(1),

“are on the cusp of adulthood, and … the detrimental impact of any delay in an appeal right arising is less severe than it would be for children of a younger age”.

I think the opposite is true, because younger children tend to accept the situations they face as a result of adult decisions, but as they approach maturity they can recognise deliberate unfairness inflicted on them by authority. I would like to know whether my noble friend sought the advice of experts such as the Children’s Society before he expressed that opinion or whether it was ex cathedra.

Does his review cover trafficked persons, who are granted leave for one year following a determination through the national referral mechanism set up by the Government to identify and support victims of trafficking in the UK? That process was established in pursuance of the Government’s obligation to identify victims

10 Dec 2012 : Column 895

under the Council of Europe Convention on Action against Human Trafficking. Article 14 of the convention provides that a victim of trafficking shall be granted a residence permit, which will be without prejudice to the right to seek and enjoy asylum. That seems to imply that the 12-month residence permit granted to trafficked persons would not debar them from submitting an asylum claim. I look forward to hearing from the Minister how this can be squared with Section 83(1).

I turn to the second of the new clauses. The purpose is to remove the statutory presumption that a country other than a person’s country of nationality is a safe country to which a person seeking asylum can be removed simply because the Secretary of State asserts that it is a safe country. A safe country is one where the person will not be persecuted and from which he or she will not be refouled in contravention of the refugee convention or the European Convention on Human Rights.

Section 94 of the Nationality, Immigration and Asylum Act 2002 establishes a scheme whereby persons seeking asylum may be precluded from a right of appeal against the refusal of asylum unless and until they have left the UK, including where this may mean returning to their home country or to a third country that the Secretary of State asserts to be safe. Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 limits what the asylum seeker can argue on a judicial review about the safety of the third country.

Section 94(8) creates a statutory presumption that, when the Secretary of State asserts that a country other than the person’s home country is safe, it is presumed that in that country the asylum seeker will not face persecution for a refugee convention reason and will not face being returned to a country in which he or she does face persecution for a refugee convention reason. The statutory presumption seeks to oust the jurisdiction of a court to consider the correctness of the Secretary of State’s opinion as to the safety of such a country.

The provisions of Schedule 3, which the new clause proposes to delete, require a court dealing with a judicial review relating to a removal to make presumptions of safety. For example, paragraph 3(2) states:

“A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place … where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion”.

In the case of NS, the claimant asylum-seeker had sought judicial review of his third country return to Greece. Whereas the Administrative Court in England and Wales had been concerned as to the conditions in Greece, it considered itself bound by previous authority to uphold the UK Border Agency decision to return NS to Greece. The Court of Appeal referred the matter to the Court of Justice of the European Union. That Court concluded, in the context of European Union arrangements for safe third country returns within the European Union, under what are often referred to as the Dublin Regulations, that,

“to require a conclusive presumption of compliance with fundamental rights … could be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the

10 Dec 2012 : Column 896

European Union and its Member States. That would be the case, inter alia, with regard to a provision which laid down that certain States are ‘safe countries’ with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary”.

The presumptions in Section 94(8) and the paragraphs of Schedule 3 seek to be such provisions, and accordingly ought to be removed.

Greece is not the only safe country where these presumptions may be unfounded. Section 94 allows the Secretary of State to list not only countries that are safe, but countries that are safe for a given description of persons. Thus a number of African countries are designated as safe for men, so that women threatened with return to those countries still have an in-country right of appeal. However, lesbian, gay, bisexual and transsexual people, who suffer relentless cultural, social and even legal pressures and persecution in more or less the same list plus Jamaica, have no such right.

In the case of HJ (Iran) and HT (Cameroon), which was dealt with in the Supreme Court in 2010, the noble and learned Lord, Lord Hope, spoke about the,

“rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa”.

It was lucky for HT that he did not come from one of the countries designated as safe such as Malawi where, as the noble and learned Lord, Lord Hope, pointed out, two gay men who celebrated their engagement had recently been sentenced to 14 years in prison. If those men had sought asylum in the UK, their claim would have been treated as unfounded and they would have had no right of appeal. Curiously enough, two lesbians in the same circumstances would have had a right of appeal, since Malawi is treated as a safe country for men only in Section 94.