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When the Law Society proposed that these amendments should be tabled in Committee, I doubt that it expected that it would unearth such a hornets' nest when it proposed to change the wording in Clauses 5 and 74 from a subjective to a more objective test. If I may paraphrase the subsection, Clause 5 states that,
We are trying to provide greater protection to our citizens. The Law Society of Scotland believes that "reasonable grounds for believing" carries more weight than "reason to believe". This case was argued by the noble Lord, Lord Wedderburn, who I am very pleased to see in his place, and by my noble friend Lord Lamont. One may have "reason to believe", but this may not be confirmed by any facts of evidence whereas having "reasonable grounds for believing" implies that one's belief is motivated by information that one finds compelling. I am not a lawyer, but I find that argument convincing.
A stronger more objective test is obviously preferable when we are talking about a case of "provisional arrest". I have some concern with this clause in the first place: if the constable were to be challenged along the lines of, "What reason did you have to believe that a warrant had been issued?", what would he reply? Would he have to provide concrete evidence or could he say that he suspected that a warrant might have been issued? We do not want anyone to be arrested for the purposes of extradition unfairly, wrongly or because of the mistaken belief of a constable.
I now turn to the "semantic issue" itself. We feel that "reasonable grounds for believing" is a stronger test than "reason to believe". I shall quote my noble friend, Lord Lamont, since I believe he put the matter most succinctly. He said:
However, the noble Lord, Lord Bassam, was adamant that there was no substantial difference between "reason to believe" and "reasonable grounds for believing". However, he was subsequently challenged by the noble Lord, Lord Wedderburn, who suggested that his words could be used as a Pepper v Hart statement with potentially disastrous implicationswhat one might think of as a field day for the lawyers. This is an area where we must get the drafting right. We cannot simply say that two different formulations of words mean the same thing. We must think how this could be interpreted in the courts at a later date because what we are trying to produce today is workable legislation not a legal minefield.
I would also like to point out that in trying to justify his point, the noble Lord, Lord Bassam, spoke about having "good reason to believe" that a warrant "will shortly be issued". The words "good" and "shortly" are not part of this Bill. They bring implications and suggestions that the more simple straightforward language of the Bill does not contain. We must be careful to look at the words we see before us in the Bill otherwise the danger is the sort of complications and wordy wrangling that we experienced when we debated this point in Committee. I beg to move.
The Earl of Mar and Kellie: My Lords, as was so excellently trailed by the noble Viscount, not only does my noble friend agree, so do the rest of us. I am pleased to support the amendments, which were inspired by the Law Society of Scotland.
Amendment No. 37 would bring the Bill into line with Section 14 of the Criminal Procedure (Scotland) Act 1995. Amendment No. 191 is slightly different: it calls for objectivity to be required of the judge when a warrant is prepared for issue. We would support the noble Viscount, if he were to press the amendments.
Viscount Bledisloe: My Lords, as the noble Lord seems not to be rising to the temptation proffered by the noble Lord, Lord Waddington, I shall say that this rather esoteric debate about the words trespasses on the grounds considered by the Judicial Committee of your Lordships' House in the case of Liversidge v Anderson in 1942. Can the Minister tell us whether, if he says that the words are adequate, he assumes that the majority was right in that case or, as is normally thought, that the dissenting judgment of Lord Atkin is to be preferred?
Baroness Carnegy of Lour: My Lords, it is interesting that the reason why the Law Society of Scotland is keen on the change of wording is that the Bill would then say what appears in Scots law, whereas the wording used in the Bill is what appears in English law. The society suggests that it would be a sounder basis for the action of a constable or Customs officer.
The point was beautifully illustrated by the noble Lord, Lord Wedderburn of CharltonI do not think that he is going to speakwho said that he might believe that the noble Lord, Lord Lamont of Lerwick, was his cousin because his aunt had told him so but might also, if he went into the matter in some detail, find that there were no grounds for it. I thought that that story was conclusive. Probably, in this case, Scotland has better wording, and the Minister might consider making a small change.
Lord Bassam of Brighton: My Lords, it is with some discomfortno, pleasurethat I rise to answer. I should telegraph early on that, on this occasion, I shall raise the white flag. I thought that that would make one or two people smile.
We are, of course, ever grateful to noble Lords for expressing their wisdom on such semantic issues. In Committee, I tried to put up as robust a defence as possible of my position. I thought that I had not made too bad a stab at it, but we are prepared to give the matter some further thought.
The noble Viscount, Lord Bridgeman, put his finger on it: in this Billas with all legislation, actuallythe Government's desire is to have simple and straightforward language. The noble Viscount gave us credit for that. We have had an esoteric discussion of the issue. Cases from as far back as 1942 were quoted, and Scots law was invoked. What can I do to resist such an onslaught?
I am happy to give the commitment that we shall take away the amendment to determine what we can do to accommodate the wishes of the Grand Committee, in the first instance, and the wishes expressed fairly and properly on Report. At Third Reading, we shall bring forward a government amendment to incorporate the term "reasonable grounds for believing" in all the appropriate places. With that, I hope that the noble Viscount will feel able to withdraw the amendment.
Viscount Bridgeman: My Lords, I am grateful to the noble Lord, Lord Bassam. I feel that it is not a white flag but an honourable armistice. We shall look forward to receiving the redrafted clauses at Third Reading. In the mean time, I beg leave to withdraw the amendment.
The noble Viscount said: My Lords, in moving Amendment No. 38, I welcome government Amendment No. 45 grouped with mine. We return to the matter of the provisional arrest, which has caused considerable outrage among outside organisations, as well as among Members of this House and another place. Clauses 5 and 74 deal with provisional arrest.
We accept that there is some merit in having a means of provisional arrest in cases where an arrest warrant has been issued but has not found its way into the hands of the British authorities. That could be vital in catching a notorious terrorist whom we suddenly recognise at Heathrow airport. In such circumstances, we would want our constables to be able to arrest the offender and hold him in custody for 48 hours while we secure his arrest warrant from the requesting countries.
That example is what we consider to be the legitimate use of a provisional warrant, although with the caveat that we are still uneasy about the "reason to believe" issue as we discussed earlierbut let that pass. However, there is what I believe to be a potential danger in the drafting of Clause 5, but it is a danger that does not appear in Clause 74. In Clause 74, the justice of the peace must be satisfied in writing and have evidence in front of him that would justify the issue of a warrant for the arrest of the accused. In Clause 5, a constable with reason to believe that a warrant has been or will be issued can make an arrest and hold a person for 48 hours.
We have no further information about how the constable should come to this decision. Could he merely say, "I thought it might be possible that a warrant might be issued"? How can he make such a hypothetical judgment? On what should his belief be based? If he has had communication with police forces in the category 1 territory and they are chasing a notorious criminal, it should not take long for an arrest warrant to be processed. The foreign authorities can then inform the constable and he can make the arrest knowing that a warrant has been issued but is not yet in his possession. However, the provision before us is open to misuse.
In speaking to their Amendment No. 45, grouped with mine, I hope that the Government have tabled a foolproof amendment which may address that point. I await their explanation on how such an abuse can be avoided. I beg to move.
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