Police Reform and Social Responsibility Bill

Debate between Baroness D'Souza and Lord Campbell-Savours

Thursday 16th June 2011 Lords Chamber

[Lord Campbell-Savours]

My Lords, before I deal with my amendment in detail, I want to say a few words by way of preamble. I am not a lawyer and I cannot claim any knowledge of the background to the administration of justice in the courts, but I am a member of the All-Party Parliamentary Human Rights Group and I have closely followed the debate on this matter in the other place.

A lawyer put it to me in this way the other day: “Clause 154 presents us with a paradox. The Department of Justice is responsible for the administration of justice, yet in certain cases it does not have confidence in the judges it appoints to sensibly administer the justice system, so it effectively nationalises the responsibility”. What many of those concerned about Clause 154 keep asking themselves is: what is driving this agenda on? Some people believe that in part it is fear among some supporters of the state of Israel that prominent Israeli citizens who stand accused of breaches of international law might be detained when visiting the United Kingdom. The problem is that there is an element of truth in all this in that, out of the 10 applications made over the past 10 years, the only two that I understand were successful were against Israeli citizens: one the former Israeli Foreign Minister, Tzipi Livni; the other, Major-General Almog. I have to confess that this targeting of Israeli citizens is a very powerful argument for giving the DPP greater responsibility than the Government proposed. But is it so powerful an argument as to totally undermine the well-trodden path of the legitimate right of the citizen to step in where the state may fear to tread for all sorts of diplomatic, interstate, political or commercial considerations?

The problem is that people have difficulty distinguishing the actions of political leaders in democratic states, such as Israel, which I strongly support, who mistakenly believe that they are defending the interests of their democratic state by engaging in actions which border on breaches of international law. Some people confuse Israeli excesses in Gaza with monstrous atrocities in Srebrenica, Rwanda, the Congo, Uganda and Cambodia and the treatment of Tamils in Sri Lanka. But in my view it is totally counterproductive to threaten the Israeli leadership with arrest. We have to maintain a dialogue with such people and force their hand if necessary through sanctions, freezes on assets and other heavy forms of action depending on the circumstances. So, although I have some sympathy with the Government’s overriding concerns, I believe that they are proceeding in the wrong way.

I shall now speak to my Amendment 245. I tabled this amendment before the publication of the report of the Joint Committee on Human Rights. Our excellent report captures very well almost all the concerns that I would raise. The Government have explained that their motivation for changing the procedure in these cases is to prevent vexatious applications being successful; that it should not be possible for someone to be able to obtain an arrest warrant as part of a stunt or to make a political point. The Government are quite right on this. However, eight of the applications were turned down by the courts and no warrant was issued. So it is not entirely clear to me that such a major change in the law is necessary. The courts seem to be doing a good job in the few cases that there are of weeding out vexatious applications and turning them down. Furthermore, those cases involve the very same experienced district judges who sit at the City of Westminster magistrates’ court—the same judges whom we entrust to hear terrorism and extradition cases. They are people with experience whom we can describe as a steady pair of hands. It is just not clear to me why the Government think that we should trust these people to be wise and judicious in terrorism and extradition cases but not in universal jurisdiction arrest warrant cases.

I am not wholly unsympathetic to the Government’s aims. Perhaps there is a need to make it completely clear that the law of England and Wales can allow arrest warrants to be issued only in genuine and serious cases. However, I am not sure that the Government have got the change quite right in their proposals in the Bill. The Joint Committee on Human Rights recommends in its report that,

“if no further justification for the existing proposal is provided, the Bill be amended to substitute the requirement for the DPP to consent with a requirement for the applicants to notify the DPP of any application for an arrest warrant”,

which I understand is the substance of one of the amendments before us. That appears to me to be the substance of the amendments of the noble Baroness, Lady D’Souza, and the noble Lord, Lord Lester of Herne Hill.

My amendment is very similar but I go a little further. I have tried to capture the enhanced role for the DPP that the Government want to bring in. Crucially, my amendment—like that of the noble Baroness, Lady D’Souza, and the noble Lord, Lord Lester—would leave the final decision to a court. That is very important. The effect of the Government’s proposal is that in practice the DPP will be the decision-maker on whether an arrest warrant is granted. Although it is reasonable for the Government to want the DPP to have a role, it is important that the court remains the final arbiter.

Under my amendment, on receiving an application for an arrest warrant in respect of the relevant offences, the court would contact the DPP and request his advice on the likelihood of a future prosecution. This would mean making available to the DPP the evidence on which the arrest warrant would be decided. The court would then be obliged to take into account the advice of the DPP. It may be argued by those who oppose the Government’s proposals that in practice this is not much different from those proposals. However, I have tried to reflect the fact that it is very important who the decision-maker is: it must be the court. The Government want a role for the DPP, so I have suggested that the court should be obliged to take into account the advice of the DPP in making its decision.

There are several closely connected issues that the Government should also clarify. They concern the test that is to be applied by the DPP. This issue, too, is addressed in the Joint Committee report, and is at the heart of the debate. The first aspect is the level of evidence that will be required. Currently, as I understand it, a court is required to establish that prima facie evidence exists—although I am told that in practice a higher standard of evidence has been applied in previous cases. Alternatively, there might be a threshold test to establish if the evidence is such that it is reasonable to suppose that, in a reasonable time, there will be a reasonable prospect of conviction; or the full code prosecutorial test to establish if there is sufficient evidence for a reasonable prospect of conviction. As a non-lawyer, I believe that it should be something more like the threshold test, which the public would understand and which would allow at least for an interview prior to action. It would be helpful if the Government would clarify what tests they expect the DPP to apply. The other element of the test is a consideration of the public interest. Having applied the evidential elements, the DPP would go on to consider the public interest element. This area would benefit from clarification from the Government, for it is here that suspicion surrounding the change is centred.

In conclusion, I would like us to note that the Government are proposing an entirely new role for the DPP. As I understand it, they are not extending to further offences a role that already exists in relation to some offences; the role is entirely new. Arrest warrants are not normally the domain of the Director of Public Prosecutions. In framing the new procedure, it is important to get it right. The Government have not quite got the balance right in their proposals, and I hope that my amendment will be the subject of serious consideration. I beg to move.

[Baroness D'Souza]

My Lords, because of the lateness of the hour, I will not rehearse the arguments put forward so eloquently by the noble Lord, Lord Campbell-Savours, with which I broadly agree; our aims are very similar. However, I will emphasise one or two points. My interest is in a fair application of universal jurisdiction. Whatever the driving causes of this are, this country has a duty to apply universal jurisdiction, as other European countries do. In defending the proposition that the current system is neither mischievous nor vexatious, I will add that in the past 10 years, only two cases have resulted in successful prosecution—one in 1999 and one in 2005. The 2005 case concerned an Afghan man who was convicted of torture and hostage taking. I think this argues for a pretty restrained system. Indeed, it is very far from being a vexatious system at the moment.

Parliamentary Voting System and Constituencies Bill

Debate between Baroness D'Souza and Lord Campbell-Savours

Tuesday 25th January 2011 Lords Chamber

[Baroness D'Souza]

My Lords, I listened with concern to what the noble Baroness said at the beginning of her speech. I think I made it clear yesterday that many Cross-Benchers—and I can speak only for the Cross-Benchers—are deeply concerned about the Bill and feel strongly that many elements in it undoubtedly could and should be improved. The point I was trying to make was that the conventions of the House suggest that these concerns should be brought to a head by means of an amendment, which is then called and divided on. Many Cross-Benchers would undoubtedly support such an amendment. The concern for a long time has been that no amendments have been brought forward and that the talk has gone on for far longer than is necessary to convince the Cross-Benchers that an amendment should be supported.

[Lord Campbell-Savours]

My Lords, when I came into this House I was told that it was not a tradition to divide the House too often in Committee and the general view was that we should concentrate our efforts for divisions on Report. I hope that noble Lords on the Cross Benches who have told us privately that they feel sensitive about areas of the Bill will join us in the Lobbies when amendments are moved in the next few weeks or months.

I wish to speak to the amendment tabled by my noble friend Lord Liddle as an amendment to the amendment of the noble Lord, Lord Teverson.

I would dearly love six parliamentary constituencies in the county of Cumbria but I recognise that there are problems. I want to go into this in some detail because, although we have each personalised areas in the debate, there are principles involved when dealing with boundaries in Cumbria that apply more widely.

Over the years, Cumbria has made a great contribution to British politics. We have provided a large number of Secretaries of State—Edward Short, now the noble Lord, Lord Glenamara; the noble Lords, Lord Cunningham, Lord Jopling and Lord Hutton; Lord Peart, my predecessor; and Lord Whitelaw—all of whom have been members of the Cabinet. We have provided many junior Ministers—the noble Lords, Lord Henley, Lord Inglewood, Lord Brett, Lord Judd, Lord Dubs and Lord Cavendish, who intervened in the debate today, and a number of other Peers have strong connections with the county.

My noble friend Lord Liddle took us on a quiet canter around the county and explained the interesting characteristics of many of the communities which it comprises. He stressed the very strong local loyalties and community identities that are often incomprehensible to people coming from outside the county. Noble Lords should remember that we are talking primarily about the Lake District and the communities that surround it. These are historic places with a long history of community involvement and identity.

I talk this evening about what I can describe only as a sensitive issue because I was MP for Workington for 21 years. I often say to people who write to me or even stop me in the street when I am in the constituency that I have had my time and I try not to interfere, as do many of us former MPs. We do not interfere in our former constituencies. Therefore, it is with great sensitivity that I venture into the numbers. We are now in the numbers game because this Bill is about numbers not communities. I will take the county as a whole and explain the problem and the possible solution, and how the Bill may well offend lots of people within the county.

At the moment, there are six parliamentary constituencies. Broadly, without going into the actual detail, Barrow has 68,000 electors, Carlisle 65,000, Copeland 63,000, Penrith and the Border 64,000, Westmorland and Lonsdale 67,000, and Workington 59,000, within a few hundred. That makes a total of approximately 390,000 electors across six constituencies in the county. That is an average of approximately 65,000 per seat.

Those who know the detail in the Bill will know exactly where I am going. It means that every seat in the county falls under the requirement in the Bill for 76,000. The actual figure is 64,972 people per constituency. Subject to the 5 per cent leeway or 76,000, we are 14 per cent under the 76,000 target in every seat, so unless there are major changes in the way in which this legislation is implemented, there will be major changes within the county of Cumbria. We will lose a seat.

How do we proceed? On the basis of the 76,000, we can cross boundaries and to some extent destroy the identity that Cumbria has tried to build up over the past decades of being a county with our various district authorities and MPs who do not cross the boundary. That is one way of proceeding. We can cross county boundaries and compromise that principle, or we can settle on five seats, which I will come back to later.

On the basis of the 76,000 target, if we crossed county boundaries and kept strictly to the target, a part of the county—that is to say, 11,000 votes—would have to go into a neighbouring county, which in itself may create difficulties. On the basis of 72,000, which is the 5 per cent leeway deducted from the 76,000 target, crossing county boundaries would mean that 35,000 voters in Cumbria would have to go into another county, which brings us to the amendment that was moved last night when I referred to the problems that might arise in Kendal or possibly in Penrith.