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Baroness Symons of Vernham Dean: My Lords, there was an interrogative by intonation but I am not quite sure of the question asked by the noble Viscount, Lord Waverley. I do not believe that the Government's espousal of free trade runs to the drug trade and I think that the noble Viscount knows that.

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3.8 p.m.

Lord Astor of Hever asked Her Majesty's Government:

    What representations they have made concerning the illegal detention of opposition politicians in Zimbabwe.

Baroness Symons of Vernham Dean: My Lords, the Foreign Secretary issued a statement at the arrest of Morgan Tsvangirai and other MDC MPs and activists. We also contributed to an EU statement on 3rd June and another on 6th June expressing our concern at the arrest and making it clear that we regard this as further evidence of the Mugabe regime's repressive and intimidating measures against the opposition. Zimbabwe's ruling party should be talking to its opposition, not jailing it.

Lord Astor of Hever: My Lords, I am grateful to the Minister for that response. Images of Morgan Tsvangirai shackled in leg irons and evidence of widespread torture are stark reminders of the escalating brutality against opposition politicians in detention. Have Her Majesty's Government offered support for the establishment of an African Court of Justice to be discussed at the African Union Summit next month?

Pending the establishment of such a court, what co-operation has been forthcoming from African Union members on using existing mechanisms of the UN and other international institutions to arraign Mugabe for flagrant abuse of human rights?

Baroness Symons of Vernham Dean: My Lords, I agree with the noble Lord, Lord Astor of Hever. I think that the images of Morgan Tsvangirai shackled in court were both shocking and—perhaps I may say—disgusting. The noble Lord raises the question of the African Court of Justice. One of the real problems, as I am sure the whole House understands, is that every time the British Government make a statement about what is happening in Zimbabwe, the Mugabe regime turns it around to make it into a bilateral row between two countries. It gives them the opportunity to move away from the rightfully aimed hostility of the international community and to say that somehow it is a residue of colonial rule. We are therefore very careful in what we say about African institutions, which we believe are very much for the African nations themselves to sort out.

The noble Lord referred to what is happening at the United Nations. When I answered the noble Lord's Question on 3rd June, the noble Baroness, Lady Park, asked me what had happened at the UN Commission on Human Rights. I am sure your Lordships will recall that when we tried to table a resolution at the 59th session, it fell because of a no-action motion proposed by South Africa on behalf of the African group. We have to tread very carefully over these issues. We are quite clear about what we think is happening, but we

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do not want this to become a bilateral dispute. It must be dealt with internationally and attract international support.

Lord Acton: My Lords, have the Government been in touch directly with South Africa on this matter?

Baroness Symons of Vernham Dean: My Lords, I understand that this matter was discussed with President Mbeki at the G8 meeting. He said that his understanding was that ZANU-PF and the MDC were engaged in a process of dialogue, which was fully supported by the ANC. He said that he was quite certain that an agreement on the way forward would be reached in the near future. I hope that he is right, but I believe the indications of what has happened in the past week or so must make us quite downbeat about our assessment of that.

Lord Avebury: My Lords, will the Minister join me in welcoming the report that Mugabe has indicated to President Mbeki that he is prepared to step down? Will she also agree that it would be unacceptable for him to hand over to Emerson Mnangagwa and that the whole of the present ZANU-PF regime must take responsibility for the appalling situation in which Zimbabwe now finds itself? In view of the unprecedented joint rebuke by the Secretary-General of the United Nations and Mr Colin Powell, the US Secretary of State, will the Minister further agree that it is time for the international community as a whole, and SADC in particular, to recognise that there needs to be a re-run of the elections in order to get rid of the existing brutal and repressive regime?

Baroness Symons of Vernham Dean: My Lords, if it were true that Mr Mugabe had said what the noble Lord, Lord Avebury, reports him as saying, and if he really did it, it would be greatly welcomed. Like the noble Lord, Lord Avebury, I hope that any leader subsequently chosen for Zimbabwe would be chosen by a fair and free election, properly monitored.

Baroness Sharples: My Lords, following the threats made by President Mugabe against our High Commissioner, will the Minister indicate what is the present situation of the High Commission?

Baroness Symons of Vernham Dean: My Lords, the noble Baroness will know that as part of his campaign of trying to turn this into a bilateral row, rather than addressing the real issue of starving his people and his complete abuse of human rights, Mr Mugabe said that the British High Commission was behind the stay-away last week and has threatened our High Commissioner with being kicked out of Zimbabwe. I can assure all your Lordships that the British Government and the British High Commission had no role whatever in funding or in any way organising the stay-away protest that took place between 2nd and 6th June. The British Government and British High Commission do not and will not support any illegal

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activity. Knowing our High Commissioners as I do, I am sure that Sir Brian Donnelly and his staff remain in very good heart.

Lord Hughes of Woodside: My Lords, my noble friend is right to be very careful about what she says. Is she aware that it is extremely difficult to read the situation from this distance? We are repeatedly told about discussions between the MDC and the government concerning a proper constitutional settlement, yet recently the MDC has publicly said that under no circumstances will it have any truck with Mr Mugabe or, following the noble Lord, Lord Astor, with any of the ZANU-PF regime, and the general strike called last week was to bring down the government. In view of the vastly deteriorating situation, is there not a case for all sides, both in this House and in Zimbabwe, to have a care as to what they say and to try to institute further discussions in the hope that the tragedy will not deepen any further?

Baroness Symons of Vernham Dean: My Lords, that is very wise advice from my noble friend, especially in view of the possibility of inflaming an already very dangerous situation in Zimbabwe. I am sure that your Lordships will be mindful of the fact that Morgan Tsvangirai and a number of his colleagues are already in prison; that Morgan Tsvangirai is in the middle of one treason trial; that he may stand charged with another set of treason accusations; and that he may have to face yet a further trial, if he survives the first. I would commend to all your Lordships the words of my right honourable friend the Foreign Secretary, when he said:

    "Zimbabwe's most urgent need now is the resumption of inter-party dialogue to address the country's rapidly worsening political, economic and humanitarian crisis".

Real, constructive engagement is needed. Whatever our doubts, scepticism or fears, that is what we must support.

Business of the House: Debates, 3rd July

3.16 p.m.

The Lord President of the Council (Lord Williams of Mostyn): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That leave be given to advance the Second Reading of the Taxation (Information) Bill and the Motion standing in the name of the Lord McIntosh of Haringey from 4th July to 3rd July next.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

Road Traffic (Amendment) Bill [HL]

3.17 p.m.

Read a third time, and passed, and sent to the Commons.

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Sexual Offences Bill [HL]

3.18 p.m.

Read a third time.

Clause 1 [Rape]:

The Minister of State, Home Office (Baroness Scotland of Asthal) moved Amendment No. 1:

    Page 1, leave out lines 9 to 17 and insert—

"( ) A does not reasonably believe that B consents.
( ) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."

The noble Baroness said: My Lords, I know that the Committee spent about a day and a half debating this group of amendments. I hope that noble Lords will find that the new proposed amendments will meet the concerns that have been raised during the passage of the Bill about the way in which the test of reasonableness in relation to consent has been drafted, and how it will work in practice.

Objections were raised about basing the test on what a "reasonable person" would have thought or how a "reasonable person" would have acted in the circumstances. Our test was criticised on the basis that it was not clear what characteristics should be assumed by the jury in seeking to take on the role of a "reasonable person".

To satisfy those concerns, the revised version of the reasonableness test moves away from the concept of the "reasonable person" and requires the prosecution to prove that the defendant did not have a reasonable belief in consent. The test is supported by an explanation of the type of criteria to be used to determine whether the defendant's belief in consent was reasonable in relation to the alleged offence. The jury is directed to have regard to all the circumstances at the time, including any steps that the defendant may have taken to establish that the complainant consented to the sexual activity.

Although we recognise that not every sexual act has to be preceded by specific actions on the part of the defendant, especially where the defendant and complainant are in a well established, consensual sexual relationship, it is still imperative that the defendant must be certain that his partner consents to the sexual activity at the time in question. Doubt is most likely to arise in those cases where the defendant and the complainant are not in a well established relationship and where it would be reasonable to expect the defendant to take steps to ensure consent. Our reasonableness test does not require the defendant to have taken any specific steps but makes it clear that where such steps have been taken they must be taken into account by the jury in deciding whether the defendant's claimed belief in consent was reasonable. Some might argue that that goes without saying, but we believe that it is important to send a clear message to everyone that sexual acts with another person must be mutually agreed and that we all have an individual responsibility to ensure that that is the case.

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We believe that the new version of the reasonableness test addresses the concerns previously expressed by several noble Lords and sets the standard that we believe to be right and justified. I hope that I can rely upon the support of the House in those matters.

I turn now to the amendments that have been tabled in relation to the rebuttable presumptions in Clause 76. There has already been a considerable amount of discussion in the House about the justification for the rebuttable and conclusive presumptions now set out in Clauses 76 and 77 of the new print of the Bill. It is not my intention to rehearse all of the arguments that have already been put forward in detail. I know that the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Noakes, spent some time on that detail.

In support of Clause 76, I must repeat that we believe there to be great value in making clear in statute the circumstances in which consent is unlikely to be present and in which the jury should be entitled to presume, either rebuttably—or, in the case of clause 77, conclusively—that the sexual activity complained of was non-consensual. However, one criticism that has been levelled against the rebuttable presumption provisions is that they unfairly placed a persuasive burden on the defendant in relation to his belief in consent, and that the clause was muddled and difficult for juries to understand because of the way in which the burden of proof shifted between the prosecution and the defence.

In order to alleviate those concerns, I am tabling government Amendments Nos. 86, 87, 88 and 89. They amend the provisions relating to rebuttable presumptions in Clause 76 so that they place an evidential, rather than a persuasive, burden on the defendant. The way in which the rebuttable presumptions will now work is that, where the prosecution is able to prove that the defendant did a relevant act, as defined in Clause 78, that the circumstances described in subsection (2) existed and that the defendant knew that those circumstances existed, the complainant will be presumed not to have consented to the relevant act and the defendant will also be presumed not to have reasonably believed that the complainant consented.

In order for those presumptions not to apply, the defendant will need to satisfy the judge from the evidence that there is a real issue about consent that is worth putting to the jury. The evidence relied on may be, for example, evidence that the defendant himself gives in the witness box, or evidence given on his behalf by a defence witness, or evidence given by the complainant during cross-examination. If the judge is satisfied that there is sufficient evidence to justify putting the issue of consent to the jury, then the issues will have to be proved by the prosecution in the normal way.

If the judge does not think the evidence relied on by the defendant meets this threshold, he will direct the jury to find the defendant guilty, assuming the jury is sure that the defendant did the relevant act, that the

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circumstances in subsection (2) applied and that the defendant knew that. I hope that the House will agree that the revised provisions in Clause 76, in which all noble Lords have had a hand, will be easier to understand and that they effectively address the concerns that have been raised

I understand that the noble Lord, Lord Campbell of Alloway, tabled Amendment No. 91, which seeks to remove Clause 76, in order to raise concerns about the way in which the reformulated clause empowers the judge to decide whether a defendant has produced sufficient evidence to raise an issue about consent for the issue to merit consideration by the jury. I would like the House to consider that similar evidential burdens exist across the statute book—for example, at Section 53 of the Regulation of Investigatory Powers Act 2000 and Sections 12(4), 39(5)(a), 54, 57, 58, 77 and 103 of the Terrorism Act 2000. I understand the concerns of the noble Lord, Lord Campbell of Alloway, but I also know that he is familiar from his long practice at the Bar with the judicious and well-founded way in which our judges address the issue. I hope that he will share my confidence in the judiciary and feel that, if there is an issue that should be left to the jury, the judges of our country can be relied on to make sure that they are so left.

A non-statutory example of an evidential burden is to be found in relation to the law on provocation. Unless the judge finds that there is sufficient evidence that the defendant was provoked to lose his self-control, he will withdraw the defence of provocation from the jury. As far as I am aware, evidential burdens work well and have not been the subject of criticism in those circumstances, and I see no reason why adopting an evidential burden in relation to the presumptions in Clause 76 should be unwelcome or problematic.

As Amendments Nos. 2, 4, 6 and 8, tabled by the noble Lord, Lord Campbell of Alloway, are purely consequential—to remove references to Clause 76 elsewhere in the Bill if Clause 76 were to be struck out—I do not feel that I need to make a formal response to them. The noble Lord has also proposed, by way of Amendment No. 94, that Clause 78 should be struck from the Bill. That would not be a purely consequential amendment that would follow on if Clause 76 were to be struck out, as Clause 78 also defines relevant acts for the purposes of Clause 77 and is therefore integral to the functioning of Clause 77. For those reasons, I must oppose any suggestion that Clauses 76 or 78 should be struck from the Bill.

I turn to the conclusive presumptions in Clause 77. I am tabling government Amendments Nos. 92 and 93 in response to the concerns raised by the noble Lord, Lord Carlile, during Committee stage. Subsections (1) and (2) of Clause 77 provide that where the only evidence adduced by the defendant in relation to consent is based on something said or done by a third party, it will be conclusively presumed that the defendant acted unreasonably. The noble Lord, Lord Carlile, suggested that it would be unfair to impose a conclusive presumption in relation to the reasonableness test where the defendant was a person

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with a mental disorder or learning disability who could not be expected to understand that a third party was deceiving him as to the truth.

On reflection, we believe that the noble Lord is right, and our amendments remove that provision from Clause 77. Where the defendant bases his belief in consent solely on evidence from a third party, the jury will now be required to consider, in the normal way, whether such a belief was reasonable in all the circumstances of the case. There are now only two circumstances, set out in Clause 77, in which it shall be conclusively presumed that consent was not present—namely, where the defendant deceived the complainant about the nature or purpose of the sexual act or where he deceived the complainant as to his identity by impersonating someone known personally to the complainant. The conclusive presumptions are based on existing statute and case law and we are satisfied that it is right that the new legislation should reflect that position.

For the reasons I have given, I regret that I cannot accept any of the amendments that have been tabled. I hope that the House will support the government amendments. I beg to move.

3.30 p.m.

Lord Campbell of Alloway: My Lords, as the burden of the debate seems to be my amendment, I wonder whether it is convenient for me to deal with it now or whether the House would prefer that I let the Front Benches go first.

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