Mr. Carmichael: I endorse the right hon. Gentleman's comments about desuetude in common law, which is the real consequence of offences of this sort. When speaking of the penalties to be imposed in relation to this offence, I may have indicated to the Committee that that was the only difference. On reflection, I do not think that that is correct. Subsection (4) states:
''Proceedings for an offence under this section shall not be instituted without the consent of the Director.''
Presumably that is a difference between the proposed statutory offence and the common-law offence. It is another hurdle that a prosecutor may find himself falling on if, per incuriam, he forgot to obtain the consent of the DPP or, as I think is usually the case, if it were not to be shown on the face of the indictment that the consent had been obtained. That is another
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instance of how we are replacing a sensible, straightforward, available, common-law offence with one that puts extra hurdles in the way of the prosecutor, and attracts a lesser sentence.
Mr. Spellar: I shall be brief, because a number of the issues were dealt with when we discussed the amendment. I point out to the Committee that it is not unprecedented to put matters previously covered by common law into statute. I mentioned intimidating a juror, which was the subject of the Criminal Justice (Northern Ireland) Order 1996—not, therefore, a decision taken by this Government. The hon. Gentleman may deplore such general practice, but he should not argue that it is unprecedented, or that there is no good reason for Governments to take such action.
Mr. Carmichael: Has the Minister had the opportunity to consider the record of the proceedings of the 1996 legislation? Did the Labour party agree to it or oppose it?
Mr. Spellar: It may well have supported it, which might indicate a broad body of opinion, from which the hon. Gentleman may wish to exempt himself. We are highlighting the seriousness of such an offence, and prescribing penalties that are well over twice the normal tariff applied by the courts, so I commend the clause to the Committee.
Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 11, Noes 6.
Division No. 5]
Barnes, Mr. Harry
Clarke, Mr. Tony
Coaker, Mr. Vernon
Harris, Mr. Tom
Hepburn, Mr. Stephen
McGrady, Mr. Eddie
Palmer, Dr. Nick
Spellar, Mr. John
Carmichael, Mr. Alistair
Grieve, Mr. Dominic
Hunter, Mr. Andrew
Swayne, Mr. Desmond
Swire, Mr. Hugo
Trimble, Mr. David
Question accordingly agreed to.
Clause 6 ordered to stand part of the Bill.
Guidance for criminal justice organisations on human rights standards
Mr. Grieve: I beg to move amendment No. 58, in
clause 7, page 4, line 30, leave out 'international'.
The clause provides for guidance for criminal justice organisations on human rights standards. I want to make it clear that I have nothing against providing such advice to such organisations. It is clear, from reading the clause, that the Human Rights Act 1998 has a particular role to play. However, it is bizarre that subsection (1) provides that when the Attorney-General for Northern Ireland issues the guidelines, the organisations' functions should be
''in a manner consistent with international human rights standards relevant to the criminal justice system.''
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I have simply no idea what such standards may be. They are infinitely flexible, they may change, and they are not subject to any legislation passed by this Parliament: they are meaningless. The human rights standards that this Parliament has chosen to apply, before the incorporation of the Human Rights Act, could be referred to by reference to the human rights convention, to which we are a signatory, and must now be derived from the Act. I would hope that the Human Rights Act is seen to be compatible with nebulous international human rights standards. However, the insertion of the word ''international'' is meaningless. It is gobbledegook. That gobbledegook is emphasised in subsection (2), which states:
''In the exercise of its functions, such an organisation shall have regard to any guidance for the time being in operation under this section; but this does not affect the operation, in relation to any such organisation, of section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act in a way incompatible with a Convention right).''
So there we have it. Under the subsection, an international human rights standard would have to be disregarded if it was not compatible with section 6 of the Human Rights Act 1998, which is part of our law.
I do not know why the word ''international'' has been used, but I hope never to see it in a document of this sort again, because it is appalling drafting. I have no idea where it came from. I suspect that the right hon. Member for Upper Bann will say that this is the incorporation of yet another nebulous concept into a piece of legislation as a result of some sideline agreement between the Government and the SDLP or some other party to previous political discussions. I do not know, but whatever its origin, it should not be included in the clause.
The Minister will have to provide me with persuasive justification for the use of the word ''international''. I do not believe that he can, and I certainly intend to press for its deletion.
Mr. Spellar: There is always a danger that any mention of the word ''international'', possibly slightly less so than the word ''European'', is likely to excite the Opposition's interest. The hon. Gentleman will know that Governments of all parties have signed up to several international conventions that are mandatory and binding. We were bound by the European convention on human rights long before we introduced the Human Rights Act. We were, in fact, bound by 16 such standards listed by the criminal justice review research report, of which the European convention on human rights was but one. We signed up to several binding treaties, and to non-binding, declaratory and even advisory treaties. Signing up to such treaties has been ongoing practice to which Governments of all parties have subscribed.
The balance that the hon. Gentleman said was necessary is provided by the guidance issued by the Attorney-General described in other parts of the clause, which we will no doubt deal with in our debates on other amendments or on clause stand part. It does so precisely to avoid doubt and provide clarity for the courts.
We could have talked about human rights standards in general, but that could have created far
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more ambiguity and led to organisations and individuals claiming a wide body of opinion to support their position. The word ''international'' is used to make it clear that the document should consider non-domestic human rights standards and provide the mechanism by which they are provided to the courts. In many ways, despite the possible knee-jerk reaction to certain words, that answers the hon. Gentleman's argument.
Mr. Carmichael: I hope that the Minister will accept that I have, as a Liberal, stronger internationalist credentials than some hon. Members with whom I must share the Opposition Benches. However, I have some sympathy for the arguments advanced by the hon. Member for Beaconsfield, whether or not they are knee-jerk reactions. If the intention is to issue guidance on various international treaties, conventions and whatever else to which we are party, surely we should declare it. The elegant way of doing so would be to insert a schedule that listed them. That schedule could, perhaps, be updated from time to time by statutory instrument, which is the Government's chosen way of amending primary legislation these days. That would be better than endlessly using the phrase ''international human rights standards'', as the hon. Gentleman said. If the Government's intentions are what the Minister says they are, why does he not seek for them to be reflected in the Bill?
Mr. Trimble: I support the hon. Gentleman's comments, which were apposite. The phrase
''international human rights standards relevant to the criminal justice system''
is far too vague. The problem is not only with the word ''international'' but with the whole phrase.
The Minister referred to the existence of a number of treaties, some of which may be binding on the United Kingdom. However, other things are hawked around as though they were international human rights standards. The phrase ''international human rights standards'' is too broad and does not necessarily relate only to those treaties to which the United Kingdom is party and which are binding on us. Other agreements exist, some of which do not involve the United Kingdom and may not even be treaties in the proper sense, but are referred to by human rights ''activists'' as though they were international human rights standards. We cannot expect all those involved in the administration of the legal system to have a detailed knowledge of everything to which reference is made, some of which may be spurious and some of which may be, as the hon. Member for Beaconsfield said, nebulous.
Mr. Spellar: Does the right hon. Gentleman accept that, given how the clause is drafted, the mechanism by which guidance comes to the courts is via the Attorney-General? That deals precisely with the point that he rightly raises. Although one would not expect the courts at all levels to be fully conversant with the validity or standing of various treaties, the filter mechanism helps to provide for consistent guidance.
Mr. Trimble: I was about to develop some thoughts along not dissimilar lines. I understand the distaste for writing in such provisions—the clause is a page and a half, but one's instinctive reaction is to regard it
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largely as a waste of paper. However, if it were applied sensibly, it could perhaps be used to avert confusion in the system. One way to use the provisions sensibly would be take up the excellent suggestion that the hon. Member for Orkney and Shetland made, to include reference to the specific instruments concerned, because of the uncertainty about the phrase ''international human rights standards''.
As I said, a lot of things are hawked around as though they represent human rights standards, when in fact they do not. It is easy for people to make mistakes in that context. If I may dare say so, it might even be possible for Attorneys-General to make mistakes, too. We do not want to open the door to allowing an Attorney-General inadvertently to recommend people through guidance to abide by a standard, convention or agreement to which the United Kingdom is not party and by which we do not wish to be bound. Providing for a simple schedule listing the documents to which the clause is intended to refer would therefore be a sensible safeguard. That is a good suggestion on which the Minister will, I hope, reflect, bearing it in mind that some people go around trying to foist on the system things that are not international human rights standards as though they were.