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Lord Henley: I said earlier that I expected proper answers from the Government in response to the points that I and others put. On this occasion I shall have to do something similar and I shall have to read carefully what the noble Lord has had to say about this because I am not sure I understood what he said and I still find subsection (6), as he put it, pretty opaque. No doubt the noble and learned Lord, Lord Lloyd, will want to look carefully at what the noble Lord, Lord Williams of Mostyn, has said, and he might wish, along with myself, to pursue this matter in correspondence. At this stage of the evening I do not think I can pursue the matter further, but, as I have said, I shall look carefully at what the noble Lord has had to say. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 33 not moved.]

12.45 a.m.

Lord Thomas of Gresford moved Amendment No. 34.


Page 8, line 34, leave out ("Subject to subsection (6) below,").

The noble Lord said: The amendments that I speak to are Amendments Nos. 34, 37, 40 and 43. They refer to the removal of the safeguard of the consent of the Attorney-General. This was a provision which puzzled Mr. Alun Michael in another place. It certainly puzzled the Select Committee on Delegated Powers and Deregulation. The reason for this puzzlement was that it was not explained until four o'clock in the morning of what is now yesterday, when Mr. Michael was fully briefed upon the subject.

The suggestion here appears to be that despite all the talk of the safeguard of the Attorney-General's consent, there should be categories of cases for which the Secretary of State may, by order, remove that protection. Mr Michael was saying that the type of cases could be paedophile cases or child abuse cases and so on.

I would resist this matter for a number of reasons. The first is that it is completely unprecedented for there to be a power within a Bill which requires the consent of the Attorney-General to prosecute and for there to be a power for that consent to be removed by the Secretary of State, by order, in this way. There are many provisions throughout the criminal law where the consent of the Attorney-General is required, and that is the end of the matter. The matters are thought to be sufficiently serious to require that safeguard for defendants.

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When one turns to the merits of the proposals one observes that this is a complicated question as to whether a prosecution should be brought at all. I do not propose at this time to go through all the arguments that have been set out in previous debates concerning the type of decision that has to be taken but just to look at the provision itself.

Conditions have to be fulfilled. Those conditions are set out in subsections (2), (3), (4) and (5) of the proposed new section. The matters that have to be examined are the nature of an offence in a foreign country, and that decision has to be decided in the Crown Court by a judge alone. It is a question of law which will require evidence of foreign law. I cannot imagine that conspiracy charges, which have to be tried on indictment under the Criminal Law Act 1977, will be brought all that frequently. If there are 50 or more in a year I would be extremely surprised.

I would have thought that when one is using this extension of extra-territorial criminality, which really is what this clause amounts to, careful scrutiny by the Law Officer is required. He is the person who is charged with making an independent decision, unaffected by partisan considerations. He is charged with a heavy responsibility and a duty to look coolly and impartially, no doubt consulting with colleagues, but considering the public interest in its broadest sense. For every conspiracy prosecution brought on indictment, it is my view, strongly held, that impartial consideration by the Attorney-General will be necessary in cases under this section. I beg to move.

Lord Henley: I rise to offer my support to the noble Lord, Lord Thomas, for his amendment, Amendment No. 34. As the noble Lord will be aware, I have also supported him in Amendment No. 37 and I should have put my name to his amendment, Amendment No. 34, just as I imagine, looking at the other amendments in this group, he should probably have put his name to Amendment No. 40 and, when we come to Amendment No. 43, possibly it should have been the noble Lord rather than his noble friend Lord Holme who put his name to that. The point is that all of us are in agreement about these four amendments.

I touched on this point in my opening remarks at Second Reading when I referred to the report from the Select Committee on Delegated Powers and Deregulation. It is important that all governments take particular notice of reports from that committee. It made its concerns forcefully in the report that appeared some time this morning. Unfortunately, I have not yet had the time to read what Mr. Alun Michael said in another place at 4 a.m.--I received my copy of Hansard for that part of the proceedings only at about 11.30 a.m. or 12 o'clock and I have not been able to study it in detail.

However, when that Select Committee makes various recommendations in such a report, I believe that it behoves a Minister when he introduces a Bill to make some response to that report. It was with some regret that I noticed that in the 39 minutes that the Minister devoted to introducing this Bill, he did not touch on that

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point. Indeed, I noticed that the noble Lord, Lord Dubs, did not touch on it either when he wound up the debate. That is to be regretted.

Since then, the matter has been touched on to some extent in Amendment No. 11 which was moved by the noble Lord, Lord Avebury. The noble Lord, Lord Williams, had to deal with Amendment No. 11 and that took an hour and a half. The amendment took a considerable amount of time. The noble Lord said--perhaps I may paraphrase him or even quote him--that hackles had been roused. I believe that hackles have been roused quite rightly because I think that when that Select Committee makes recommendations it is right that Ministers respond to them, and particularly when introducing legislation. I believe that I have the support of all my noble friends on the Front Bench in saying that, once we had established the Select Committee on Delegated Powers and Deregulation, we always did that when we were in government. The House has grown to expect that Ministers will respond to such reports. Therefore, I hope that the Minister will do so on this occasion, in responding to this amendment from the noble Lord, Lord Thomas of Gresford. There may or may not be a point here; I do not know whether the Select Committee got it right, but we certainly always followed its recommendations. I think that on this occasion it is right that the noble Lord should give an absolutely clear answer to the points that it raised--an answer which all of us can study in due course and, I hope, an answer with which all of us will be satisfied when the noble Lord has finished.

The Chairman of Committees (Lord Boston of Faversham): As Amendments Nos. 37 and 43 are also being spoken to, I should point out to the Committee that if Amendment No. 37 is agreed to, I cannot call Amendments Nos. 38 or 39 and that if Amendment No. 43 is agreed to, I cannot call Amendments Nos. 44 or 45.

Lord Mayhew of Twysden: I am grateful for what my noble friend has just said about the Select Committee. I speak as a member of it but, of course, for only myself tonight. The present Government have been just as scrupulous in heeding, concurring with, and implementing the recommendations of the committee as were their predecessors. Therefore, perhaps one might have felt a tiny bit ruffled that the committee's recommendations were not mentioned earlier today. However, there is now an opportunity to put that right. I have advanced my own arguments as to why these provisions are offensive. I have heard the intention that has led them to be put into the Bill but, unfortunately, the Bill goes much wider, as drafted, than those narrower and acceptable intentions.

Lord Williams of Mostyn: I am grateful for this opportunity. I did touch on this matter when I dealt with the great clutch of amendments moved by the noble Lord, Lord Avebury, because a number of noble Lords, particularly the noble Lord, Lord Elton, had concerns about it.

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I am sorry if I did not deal with the recommendations of the Select Committee. I cannot remember when it was today that I received them but it was certainly rather late. However, when I looked at subsection (6), it struck me as being rather strange. I was troubled as to whether or not Mr. Hardy, who wrote to The Times, might not have had a point. In fact, before I read his letter, I specifically made inquiries as to why this was needed. The answer was plain and to me at least, satisfactory. It is not a basis for the Secretary of State overriding a refusal of consent in a particular case. I do not believe that any Attorney would tolerate that if it were a particular case. An Attorney would have to resign or persuade the Secretary of State to change his view. I am most grateful to see the support coming from the noble and learned Lord, Lord Mayhew.

It arises because we already have legislation relating to, for example, sex tourism carried out in Thailand. We went through a good deal of discussion about that when we passed the legislation. To launch proceedings in those circumstances, the Attorney's consent is not required. I can see the sense of that because there are not likely to be the public interest sensitivities which were identified by so many noble Lords when we talked about conspiracy generally and in particular in the context of political dissent.

Therefore, one would have the anomalous situation where, if one were looking at conspiracy in the context of this legislation when it becomes law, one would need the Attorney's consent whereas, if there were prosecutions under the sex tourism legislation for exactly the same activities, the Attorney's consent would not be needed. Therefore, this is simply put into the Bill to give the Secretary of State the opportunity to take out any particular class of case. It may not be limited to sex tourism. There may be others which, in due time, may be thought appropriate; for example, revenue, drug trafficking and money laundering offences. The power will never be used to deal with the category of political offence which is where the true sensitivity and public interest starts.

That, therefore, is the thinking behind this. I repeat that I was surprised when I looked at it because I was afraid that the Executive might try to interfere with the Attorney and not have learnt the lessons of the previous Attorney in the Campbell case. That is not the position at all. I hope that I have given an explanation which satisfies Members of the Committee. I have repeated some things I said before because of what the noble Lord said and, of course, because of what the Select Committee said about the necessity to have an explanation. That is the explanation. There is nothing sinister about it at all. It is simply a way of making the present laws work hand-in-hand in a sensible, coherent way with what the new laws will be if this Bill is passed by your Lordships and another place.


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