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Having said that and been depressed by what the noble Lord said, of course I am pleased that the Government have gone a little way. I just think that this Government have no concept of the grandeur, history and importance of individual liberty and subjects’ rights and privileges under the law. It has gone back through Act of Parliament after Act of Parliament over the past 10 years. Of course I will not press my Amendment No. 101, even though I think that it is much, much better. I am pleased that the Government have gone some way to what I am asking for, and I do not want to appear ungracious over it. But it is just not enough; they do not understand the concept of the grandeur of the liberty of the subject under the law. That is what is so depressing, and it runs through the whole Bill.
8.45 pm
Lord Judd: My Lords, I put my name to Amendment No. 101 with real commitment and not as a formality. I have said in the House before that when I served on the Joint Committee on Human Rights I almost always found myself sitting next to the noble Earl. I was glad to do so, because I came to respect his passionate commitment to the liberty of the individual and its deep roots in the struggle for the social and legal evolution of our nation that has made it what it is. I have listened with some dismay to earlier debates this evening, and certainly on the last amendment I could not bring myself to vote. Having said that, I emphasise that there is a real anxiety that whatever the intentions of the Government, we are seeing the erosion—almost an incremental dismantling—of the very principles on which our system of justice has always been based.
The noble Earl is absolutely right that no too-high premium can be placed on the liberty of the individual. Furthermore, I have always understood that there was a presumption of innocence that was absolutely basic to our legal system and that if anyone was to be deprived of liberty, the onus of responsibility for so doing was on the prosecution.
Interfering with the liberty of the subject to the extent envisaged in these provisions is unthinkable. As a young politician three or four decades ago, I would never have believed that this House would be
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The noble Earl has said that it is a good thing that the Government have moved as far as they have. Like him, I am glad that they have felt able to do so. But he is absolutely right that it does not deal with the underlying strategic issue that confronts us. The other point is that in this rush—it is becoming a rush—for the dismantling of law as we have always understood it, we are beginning to make a complete muddle for the lay man as to what is criminal and what is civil. What happens to the whole concept of civil law if we are to say that violence can, when it is convenient, be treated as civil law as distinct from criminal law? The rational, common-sense differences are just being brushed aside.
The noble Earl has said that he is not going to press his amendment tonight, and he is wise not to do so. I, for one, greatly appreciated what he said and the passion with which he said it. I am really concerned that history will come to see the processes in which we are currently involved as a major selling of the pass in all that we have understood to be justice in this country.
Lord Kingsland: My Lords, I note that the noble Lord, Lord Judd, has signed Amendment No. 101; so to some degree he is profoundly implicated in what my noble friend Lord Onslow has said to your Lordships’ House. I know that my noble friend will be deeply grateful for what the noble Lord has said.
There is an important debate about Article 6 in relation to VOOs, and it is a live and crucial issue, but it is not germane to Amendment No. 101. That amendment raises the issue of cross-examination, which is fundamental to any trial, whether criminal or civil. Cross-examination is vital to any legal proceeding, because it tests the probative value of the evidence. It is perfectly true that in a civil hearing there is wider scope for hearsay evidence; but hearsay evidence can be subject to cross-examination. So with great respect to the Minister, the issue of hearsay evidence is beside the point. We all accept that if we proceed with VOO hearings on the basis that they are civil proceedings, hearsay evidence will play a bigger part than it would otherwise. But that should not in any way be a constraint to cross-examination for the individual who is likely to be subject to a VOO, in so far as it is capable of being exercised within the limits of hearsay evidence.
I do not understand the logic of the Government’s position here. Surely if we accept that hearsay evidence will play a part in VOOs, I see absolutely no problem for the Government in accepting the principle of cross-examination.
Lord Wallace of Tankerness: My Lords, I hear and endorse much of what the noble Earl, Lord Onslow, and the noble Lord, Lord Judd, have said in these
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The noble Earl, Lord Onslow, made an important point about the heritage and the history of the law. Very often the argument is made: “Well, we are living in different times and are facing different challenges”. But any cursory reading of the novels of Dickens would suggest that London was not exactly a safe place in Victorian times and that violent crime was not unknown in the capital city. Yet those who sat on these Benches 150 years ago would have been appalled at the thought that we were putting to one side the criminal law and bringing in much lesser tests for bringing people to justice for behaviour that society found unacceptable.
You do not set aside that heritage and tradition that has been built up for perfectly good and sound reasons as simply as we are being invited to do in our debates this evening. Although the noble Earl, Lord Onslow, does not propose to seek the opinion of the House, he has raised important points. It would be interesting if the Minister could indicate whether the Government believe that the default position should be the use of the criminal law, rather than the use of some civil procedure to get round it. It is a dangerous road that we are travelling down if the criminal law is to be set aside simply because it is not convenient.
Lord Thomas of Gresford: My Lords, these arguments are not new. My noble friend has gone back to Dickens’s time. I can go back even further, to 1794, when this country was at war with revolutionary France. There was great concern among the ruling classes of this country that revolution would break out in England, and that there might be a threat to the throne and to parliamentary government as it was then known. There was unrest in Ireland and a threat of Ireland being invaded, as indeed happened in 1798. What was the reaction of the Prime Minister, Mr Pitt, to that? First, he suspended habeas corpus. The Duke of Leeds said on that occasion, “We have to suspend habeas corpus because, if we don’t, we won’t have habeas corpus to suspend in the future”. That is one of the more brilliant observations from this Chamber that I can think of. Pitt also passed an Act to suspend the rights of people to meet in numbers of more than 50. In another Act, criticism of the Government became a criminal offence. From our history, you can see how these things happen. Of course Pitt was opposed by Charles Fox and the Radicals. Indeed, the ancestor of the noble Earl, Lord Onslow, was a great Whig in his day.
The Earl of Onslow: My Lords, I have a terrible feeling that we were made Earls for supporting some of Pitt’s rather more dubious habits and for no other reason. It was a seriously corrupt procedure, but that does not mean that one is going to defend either Pitt now or corruption then.
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Lord Thomas of Gresford: My Lords, there we have it. It was exactly the same, except that the threat to this country was far greater then than it is today. There was the threat of invasion and revolution. Pitt’s Government were attacking in particular the corresponding societies, which had outposts in Manchester, Sheffield and elsewhere and were meeting to discuss such terrible things as universal suffrage. That was the situation in which that Government decided to bring in measures of this sort.
Today, risk management is central to this Government’s position. I have gone on about it on a previous amendment and I need not repeat what I said. When it comes to legislation to avoid risk, we are in a serious situation. There is risk, but there always is risk of one sort or another in any society. What is it that today demands us, for example, to lock people up for 42 days without trial or to introduce these violent offender orders, which do not go through the ordinary criminal processes? What is so crucial about this point in British history that we throw away all the safeguards that were gradually built into our system, which is exactly what this Government are doing?
Historically, the same thing happened, but we got away from it and reintroduced concepts of freedom and liberty, of which we have been proud. The Americans have gone against that tradition by risk managing in Guantanamo Bay. There is also an awful lot of risk managing going on in Mr Mugabe’s regime. I hope by using these examples that the Government will see the direction in which they are going. It is an authoritarian approach to lock people up for fear of what they might do and not for what they actually have done. We on these Benches will continue to fight that for as long as we have breath.
9 pm
Lord Bassam of Brighton: My Lords, I imagined that after an hour’s respite we might perhaps have moved on a bit more in the argumentation that is brought before your Lordships’ House. I moved a modest amendment, which helps to address a central concern of noble Lords opposite and in particular an issue raised by the noble Earl, Lord Onslow. Then we have been subjected to a discourse on two centuries of political history in the United Kingdom, all over a matter relating to the way in which violent offender orders might be considered in a civil court and in front of a magistrate. We have been regaled with how authoritarian and draconian these measures are.
I think that noble Lords opposite miss an essential point. It is true that over the past decade or so we have adopted a rather different approach in dealing with social nuisance, anti-social behaviour and episodes of low-level unpleasantness in our communities. Our Government have adopted a consistent programme and approach but at almost every step the Liberal Democrats have been consistent in opposing it. They do not like our use of civil procedures in trying to affect and influence the behaviour of individuals who, even they would probably agree, have been dysfunctional and unpleasant in a community setting and in trying to deal with particular individuals within a community. I am entirely at one with noble Lords opposite in their determination to see that we properly protect civil
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I wish to make a further point regarding one of the damaging aspects of the argumentation that is sometimes, although not always, used against the Government’s position. By raising the threshold of the argumentation in the way in which some noble Lords do, they devalue the greater argument. That is a very real and current danger, and it is not a good way in which to argue a case that has some merit.
We are not trying to get round the criminal law or the use of the criminal law—far from it. We are trying to prevent the commission of criminal acts by individuals who, for one reason or another, exhibit behaviour which I think we all agree is unacceptable. We are not trying to undermine civil liberties and civil rights in so doing. We have absolutely protected the right for there to be a contest of evidence in the civil arena. It is right and proper that we seek to protect that, and of course it is right that evidence will be subject to cross-examination. There will be the opportunity for an adversarial and interactive process of discussion about evidence.
There is an element of risk management here but I think that it is risk management of the right sort. It is to prevent the unpleasant crimes that can happen in our communities and protect individuals. That is the merit of violent offender orders, and that is why we cannot accept the amendment in the name of the noble Earl, Lord Onslow. However, we have moved some way to bring in protections and I am grateful to noble Lords who have at least given the Government credit for doing that.
On Question, amendment agreed to.
[Amendments Nos. 100 and 101 not moved.]
The Deputy Speaker (Lord Haskel): My Lords, if Amendment No. 101A is agreed, I cannot call Amendment No. 101AA because they are alternatives.
Lord Bassam of Brighton: My Lords, for the noble Lord’s benefit, I should say that Amendment No. 101A is pre-empted by the fact that noble Lords opposite scored a success with Amendment No. 95B.
The Earl of Onslow: My Lords, I do not quite see how the words “satisfied beyond reasonable doubt” under Amendment No. 100 are excluded by what we have just discussed. I may be being as thick as two short planks but, if I may be so bold as to say so, the noble Lord on the Woolsack also looks a bit confused. Perhaps we could have some assistance.
The Deputy Speaker: My Lords, Amendment No. 99F was agreed to so I cannot call Amendment No. 100 because of pre-emption.
Lord Thomas of Gresford: My Lords, I think subsection (1) was left out by Amendment No. 99F and the amendment in the name of the noble Earl is to subsection (1) so it has gone.
Lord Kingsland: My Lords, it is a technical point; it is not one of substance.
The Earl of Onslow: So I cannot discuss it, my Lords?
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Lord Kingsland: No, my Lords, it has gone.
[Amendment No. 101A not moved.]
Lord Kingsland moved Amendment No. 101AA:
(a) from going to any specified premises or any other specified place (whether at all, or at or between any specified time or times);(b) from attending any specified event;(c) from having any, or any specified description of, contact with any specified individual.(2) Any of the prohibitions, restrictions or conditions imposed by a violent offender order may relate to conduct in Scotland or Northern Ireland (as well as to conduct in England and Wales).
(5) Any order made under subsection (4) may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.”
On Question, amendment agreed to.
Clause 100 [Variation, renewal or discharge of violent offender orders]:
Lord Hunt of Kings Heath moved Amendments Nos. 101B and 101C:
“(a) for an order varying or discharging a violent offender order;(b) for an order (a “renewal order”) renewing a violent offender order for such period of not more than 5 years as is specified in the renewal order.”On Question, amendments agreed to.
Clause 101 [Interim violent offender orders]:
Lord Bassam of Brighton moved Amendment No. 101D:
(a) that the person to whom the main application relates (“P”) is a qualifying offender,(b) that, if the court were determining that application, it would be likely to make a violent offender order in respect of P, and(c) that it is desirable to act before that application is determined, with a view to securing the immediate protection of the public from the risk of serious violent harm caused by P,the court may make an interim violent offender order in respect of P that contains such prohibitions, restrictions or conditions as it considers necessary for the purpose of protecting the public from the risk of such harm.”The noble Lord said: My Lords, I shall speak also to Amendments Nos. 101E and 102. They relate to changes in the way in which interim violent offender orders can be used. Currently, the court can grant an interim order if it is satisfied that the person is a
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Interim violent offender orders are intended to provide short-term and immediate protection to the public while a decision on the main application is being made. It is my understanding that the noble Earl, Lord Onslow, seeks through his amendment to ensure that interim violent offender orders are not made without a clear and justifiable case for such immediate management of an individual considered to pose a risk of serious violent harm. The noble Earl can rest assured that I completely support the intention of that amendment. We feel that it is crucial that the court is able to provide for the immediate risk management of a risky individual to protect the public from serious violent harm, even if the outcome of the main application has not yet been determined. However, we would never expect the court to make an interim order in respect of an individual without evidence that would support the main order and this is what government Amendment No. 101D seeks to achieve. On that basis, I hope that the noble Earl will support the government amendment in lieu of his own.
The amendment tabled by the noble and learned Lord, Lord Lloyd, seeks to ensure that interim violent offender orders are not made without hearing the individual in respect of whom the application has been made, or at least giving the individual the opportunity to be heard. Again, I can make it absolutely clear from the Dispatch Box that we entirely support the overall intention of that amendment as I, like the noble and learned Lord, wish for interim violent offender orders to be used fairly and appropriately at all times.
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