Counter-Terrorism and Security Bill
Debate between Baroness Hamwee and Lord Carlile of Berriew(9 years, 10 months ago)
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Baroness Hamwee
My Lords, my noble friend might not be too pleased to know that I was scribbling quite a lot during his reply, but he will be pleased to know that I can hardly read what I have written. However, I am sure that this is something that we are going to want to come back to next week. It strikes me that a lot of this debate has been on the premise of what the situation is here and now. Even with the reassurance that my noble friend Lord Carlile is so heavily involved in this, I do not suppose that he is going to want that to be for ever and a day. There might come a time when he finds other things that he will apply his energy to.
Leaving that aside, I made the point earlier that what we are talking about here is not only the guidance that we will see fairly shortly. The noble Baroness said that we will not see it until after Committee; in fact we will not see it until after the end of the Bill or even, as far as I understand it, until after enactment. There is also the question of revisions to the guidance, which is surely going to have to be changed; it is very unlikely to be exactly what is required in its first incarnation. It is the sort of guidance that needs time for individual organisations to have their own internal discussions and for umbrella organisations to trickle down the consultation—
Lord Carlile of Berriew (LD)
I am grateful to my noble friend for allowing me to interrupt her. The Minister, during the course of his speech a few moments ago, mentioned the Prevent oversight board on a number of occasions and kindly referred to my involvement. Does he agree with me that, if the Prevent oversight board is to have a realistic oversight role, it should meet reasonably often; it should be able to choose what it reviews from time to time; and it should be heavily involved in the quality control of Prevent schemes around the country rather than, as at present, meeting very rarely and not really carrying out a great deal of detailed scrutiny?
Baroness Hamwee
I am not sure whether that was a question for me; I assume it was, although it seems to be beyond the amendments that we are dealing with here. In making that point, though, I think my noble friend is pointing to the breadth, depth and complexity of this issue and to the need to keep everything under review and to be open to making changes as it becomes apparent that they are needed. This sort of guidance needs time for those who are affected to trickle down consultations, sweep up the responses and reflect back—perhaps this goes to my noble friend’s point as well—experience on the ground.
Like the noble Baroness, I mentioned nurseries in the first group and said rather more about the bureaucracy involved, which would be inappropriate for small organisations such as the nurseries, pre-schools and primary schools that we are talking about. It is about the substance as well as the bureaucracy. I was reminded by her anecdote of the six year-old son of a friend who was being visited by a German family. The child came downstairs going—I do not know how Hansard can reproduce this—“Rat-a-tat-tat”. He was asked, “What are you doing?”, and replied, “I’m killing dirty Germans”. That is exactly the same sort of experience, but how should one react to that?
On the individual amendments rather than the generality, I am glad to hear that the Government will consider equalities issues. What the Minister was given to read was that the Government will, “consider any equalities issues that have arisen since we published the draft for consultation”. There will be issues, I think. I will not get into a discussion at this time of night on the philosophy of consulting the population of prisons, although I think there is quite an interesting debate to be had about that.
Under my Amendment 112CB, the Secretary of State would have to take the decision about whether or not proposed revisions to the guidance were substantial, but that should be by an objective test, not a subjective one.
In summary, I come back to two words: transparency and safeguards. I will of course consider the detail of what my noble friend said, but it is quite clear to me that, with perception being so important as well as reality, we have to reduce the opportunity for incorrect perceptions as well as everything else.
Baroness Hamwee
My Lords, I am glad to hear what the Minister has said. Reference has been made to the Work Programme. My amendment extended beyond the remit to the question of the frequency of reporting, which is a point that the current independent reviewer raised. Less frequent reporting on some matters will free up time to focus on others, responding of course to the current situation. There is also the question of specific statutory powers for access to classified information and to gather information. He has said that he has not had a problem but that he feels that it would be appropriate for the matter to be dealt with in statute. I wanted to ask that those points be among those that the Government are considering and, like others, I look forward to seeing the amendment on Report.
Lord Carlile of Berriew
My Lords, I will add a few words of support for what has been said by the noble Lord, Lord Pannick, and my noble friend. I feel very grateful to my noble friend the Minister for taking the initiative in this group of amendments. David Anderson has set out very clearly and correctly the additional support that he needs and the programme of work that it would be in the public interest to have in his hands. The Minister seems to agree, provisionally at least, with David Anderson’s representations as articulated by the noble Lord, Lord Pannick, in particular, and I feel that we can now await next week with some confidence.
Criminal Justice and Courts Bill
Debate between Baroness Hamwee and Lord Carlile of Berriew(10 years, 1 month ago)
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Lord Carlile of Berriew (LD)
My Lords, this has been a rather intimidating debate so far, in the sense that I notice that two of the three noble Lords who have spoken did so from their tablets. To the public mind, tablets in your Lordships’ House are probably seen to be what most of us take at some point during the day. Anybody who thinks that we are not a modern House should take account of what has just happened.
I support the speeches of all three noble Lords—in particular, that of the noble Earl, who opened cogently the debate on the amendment, which also has my name upon it. I am concerned that there should be a discretion vested in the court to allow anonymity for defendants. One could think of hundreds of examples where this would be just. I shall give the House one, which involves a situation in which parents have been instrumental in the child committing a crime. It may be the father who is a thief and has given the child the stolen goods to look after; or it may be a mother who is involved in some other offence in which she relies upon her child to protect her and, for example, warn her if the police are appearing.
For any of your Lordships are devotees of film noir, in a recent episode of that splendid drama, “The Bridge”, an animal rights terrorist involved his brother in a terrorist act and the brother undoubtedly committed criminal offences—we will have to wait and see whether he is prosecuted in the next episode—for his brother’s protection. It is self-evident that there will be cases such as the more real examples that I mentioned earlier, in which there should be a discretion in the court to protect the child from being named.
We are not saying in this amendment that it should happen. We are saying that surely it could happen. I hope that the Minister will tell me that I am wrong— I would be delighted if he did—and say that powers either exist or will shortly exist that will leave this discretion within the criminal court. There are, as the noble Earl said, civil powers that could be used, but these are complex and difficult to access, and we have the problem that legal aid is not necessarily available for such cases. We therefore need to ensure that children who have committed crime and may be only marginally to blame for their involvement have this protection.
We know that historically there are some cases of great notoriety in which, after the child’s release from custody, lifelong anonymity has been granted. It would be right to at least give the criminal court the power to grant such anonymity for a period, so that the notoriety of the child is protected, even if the merits indicate that this matter should be dealt with by a civil court at a much later stage.
I agree also with the noble Earl’s comments in relation to victims and witnesses. Child witnesses are often very intimidated by the prospect of giving evidence. They know that they are going to be cross-examined and face what may be an unpleasant experience. They will be told that the experience is sometimes well controlled, which is true—but unfortunately it is far from always well controlled. If we are to value the need to obtain child witnesses, particularly in abuse cases and matters of that kind, we should have stronger provision than is contained in the Bill. With those views, I support the amendment and the amendment spoken to by my noble friend Lord Marks, and hope that the Government will say that they would like to take another look at these provisions.
Baroness Hamwee (LD)
My Lords, the world now knows about the technology used by your Lordships and their Saturday night viewing habits. I associate myself with the remarks that have been made. I was not able to be in the House while the Bill was in Committee. However, I was a bit surprised that, rather than a quite simple but perhaps simplistic amendment which restored what everyone had thought of as the status quo, instead the amendment is around 10 lines in length. Those among your Lordships and from the Government who carried out the drafting have come up with very many lines, which can sometimes prove more difficult than a more straightforward and prescribed amendment.
Having said that, I want to mention the position of defendants. I agree very much with what has been said, and I simply add that not to provide anonymity or reporting restrictions—whatever term you apply, although of course they are not necessarily the same thing—seems to me to undermine the whole purpose of the youth justice system, which is rehabilitation, reintegration, and so on. An enormously important principle is at stake here. The same really applies to the amendment of my noble friend Lord Marks. One cannot separate out the stages. I am sure that there is a sporting analogy for this. Having lost anonymity at that early point before being charged, there is really nothing more that one can sensibly do afterwards to fulfil the spirit of what the Government themselves seem to consider important, even if we would like to have more than the Government’s amendment.
Terrorism Prevention and Investigation Measures Bill
Debate between Baroness Hamwee and Lord Carlile of Berriew(13 years, 1 month ago)
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Baroness Hamwee
The issue is that to this individual, being in prison is more acceptable than being in his place of residence under a control order, with the restrictions imposed by the system. I am sure that the noble Lord has heard, from people who had been under control orders that were quashed, the impact they had on them and their families. The interference with anything that any of us would recognise as a normal life has been literally intolerable. That is the point I make to the Committee. I beg to move.
Lord Carlile of Berriew
My Lords, I applaud and support the sentiment behind my noble friend's amendment, but I suggest that it is not only unnecessary but would replace a considerable amount of flexibility with something rather less. On the case history that she has just recounted, I say that nobody has been arrested and charged with breach of a control order for failing to turn up at a police station once, an hour late. In every case, there has been an immense degree of tolerance before anyone has been charged. It is only after a very serious breach, or persistent and repeated breaches, that people are charged.
Nor do I recognise the credibility of the account my noble friend was given. When I was the independent reviewer of terrorism legislation, on a relatively small number of occasions—but several—I was able to visit controlees in their own homes, alone, one to one. On some occasions I visited them in homes to which they had been relocated. The notion of a state-appointed psychiatrist, however independent, turning up unsolicited at their home would have been no more comforting than One Day in the Life of Ivan Denisovich. It is a pretty bad idea.
I ask the Minister to confirm that the following occurs and will occur. First, where there is any suspicion or indication of the poor mental health of the controlee or of any member of his or her family, medical facilities will be put in place, including, if necessary, psychiatrists and psychologists, to deal with the problem; and that such facilities will be flexible and will be provided at the cost of the Home Office. Secondly, will the Minister confirm that the Control Order Review Group has met regularly ever since control orders were brought in, that it includes various people involved in scrutinising and observing the person concerned, and that it has always discussed such issues where they have arisen? Will he further confirm that under TPIMs, some kind of review group—I hope it will not be called TPIMsORG —will continue to meet and carry out that function? There is no evidence whatever that controlees have been treated improperly in the way that my noble friend set out.
On one occasion I suggested to the Home Office that there were some difficulties from time to time in giving controlees a single point of contact—perhaps a local police officer—who was aware of the situation and whom they could telephone if they had a problem. I believe that that has been put right, that they do all have someone to contact, and that sympathetic consideration is given to all difficulties of the kind that my noble friend has in mind.
Lord Henley
My Lords, my noble friend has been consistent over the years in her concern about the impact of control order obligations on individuals and on their health, in particular on their mental health. My first point is that TPIM notices are intentionally more limited in nature than those that can be imposed under control orders. We will no longer have lengthy curfews, compulsory relocation to another part of the country and total bans on communication equipment. Therefore, whatever the result, one would hope that the effect on individuals would be less than under control orders.
Despite the limitations that should significantly reduce the impact on individuals subject to TPIMs, I appreciate that my noble friend remains concerned about these issues. I agree with my noble friend Lord Carlile that the amendment does not achieve what it sets out to do. The noble Lord put a series of questions to me about the current position and about what will be the position. He asked whether medical facilities would be provided by the Home Office for those with poor mental health. He then asked about the Control Order Review Group, and about whether something would follow it. He could not quite bring himself to work out the acronym, but no doubt something can be put in place that will have a similar role. I am sure that my noble friend asked those questions in a rhetorical manner and that he knows the answer certainly to the first two questions. Such things will be provided by the Home Office: CORG exists; and we will certainly consider something suitable to replace it in due course.
Although I cannot accept my noble friend’s amendments, I say that the Bill, together with the relevant control order case law and the duty of the Secretary of State to act within convention rights, already ensures that the Secretary of State will give the appropriate consideration to the impact of the measures on the individual and on their family, including the impact on their mental health, both before imposing a TPIM notice and during the year or however long it remains in force. With that, I hope that my noble friend will withdraw her amendment.
Terrorism Act 2000 (Remedial) Order 2011
Debate between Baroness Hamwee and Lord Carlile of Berriew(13 years, 1 month ago)
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Baroness Hamwee
My Lords, it has taken a little time for this order to reach us—although it is within the 120 days—and I wonder why that is so. It would have been good to have considered it rather earlier after the order came into effect. However, it means that we have had two helpful reports from the Joint Committee on Human Rights and I have also found helpful briefing that we received within the past two or three days from the Equality and Human Rights Commission.
As the Minister said, this is a curtain-raiser for the Protection of Freedoms Bill. I declare an interest which, when I mentioned it on a previous occasion, I discovered I shared with a surprisingly large number of Members of this House—I was stopped and searched under Section 44 by, in fact, the MoD rather than the Metropolitan Police. I was driving past the Ministry of Defence at the time. That was a random stop and search, although I have to say that I thought, and still think, it is very likely that they needed a middle-aged white woman to tick that box. Actually, they bagged two Peers because I was giving a lift to another, and they found a report from the Committee on Standards in Public Life in my boot—so there was nothing much to trouble them in all this. I was more interested than offended.
I support the order but share some of the concerns expressed by the JCHR. It used the term “unease”—I thought that that was a good one—about the Government’s assertion of necessity without being prepared to provide concrete evidence in support of alleged need. I am using shorthand, but the numbers in the House have reduced and those who are here will know what I am talking about. I am also concerned about what seems to be some confusion between “reasonable suspicion” and “reasonable belief”. The JCHR could not have known that we would debate this matter on the same day as TPIMs, but it made that connection. The JCHR made the point that “reasonable” does not appear regarding the authorising officer’s consideration of necessity for and proportionality of authorisation. When we come to the Bill, which will be amendable, perhaps we can look at the precise terms of the new Section 47.
I take the point that has also been made that placing elements of the code of practice into the legislation—the elements that restrict the use of the powers—would be desirable. It would mean greater clarity, enable breaches to be challenged and make checks on the use of the powers legally binding. There is also the point that we may need to consider further the relationship between these powers and the right to peaceful protest.
Of course I welcome the code and I note—particularly given my personal history—that the selection of individuals and vehicles at random must be within the parameters set out within the authorisation. Can the Minister give a reaction on behalf of the Government to the recommendation made by the independent reviewer of terrorism in his report of last July, at paragraph 8.39, on the revision of the code of practice to introduce full and proper guidance on the exercise of the officer’s discretion to stop and search? It is a longer paragraph than that but I am sure that the Minister will be familiar with it. The JCHR recommended prior judicial authorisation of the power to stop and search without reasonable suspicion. The Minister will not be surprised, as I said in the previous debate, that I am with the committee on that. However, I support the order.
Lord Carlile of Berriew
My Lords, on this occasion I feel able to support the Government’s proposals unequivocally and without demur. During my time as independent reviewer of terrorism legislation I saw—and I mean saw with my own eyes—Section 44 being overused, misused and occasionally abused. It produced very few, if any, results in terms of counterterrorism intelligence or information, and its passing is not mourned.
The problem was that there was no requirement for reasonable suspicion and it was treated as a random power to stop and search. I had not heard before this evening that my noble friend Lady Hamwee had been stopped and searched. I recall the noble Lord, Lord West, revealing that he had been stopped and searched, and he told me colourfully of the incident.
The passing of Section 44, and the Government’s speedy action in preventing its use, has been welcome, but there was always a gap to be filled as a result. There are going to be events—the Olympic Games are an obvious example but there may be many others—in which there will be reasonably robust intelligence that gives rise to a reasonable suspicion that a terrorism act will take place. It is important to allow the police to protect the public at such events by giving them a power to stop and search. It is not a random power and it is not expressed in this order as a random power. I agree with my noble friend that it is desirable that police officers who find this kind of power quite difficult to exercise, particularly if they have come from a different part of the country to carry out crowd control duty, should have as much guidance and as good briefings as possible before they are placed on duty with this power in their hands.
I have some experience of the reviewing of the authorisations which, as the Minister reminded us, used to be for 28 days under Section 44 in geographical areas. During my time as independent reviewer a new look was taken at these authorisations, and greater demands were rightly placed on chief officers to ensure that the authorisations were not simply pro formas but that reasons were given. I hope that the same sort of discipline will apply to authorisations following approval of this order.
I know that the civil servants in the Office for Security and Counter-Terrorism who scrutinise the applications now have a great deal of experience, which they apply very well in that scrutiny. I therefore believe that as a result of this order we have replaced Section 44 with something that is better, necessary and properly limited in scope.
Police Reform and Social Responsibility Bill
Debate between Baroness Hamwee and Lord Carlile of Berriew(13 years, 6 months ago)
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Baroness Hamwee
My Lords, there is a long list of amendments because there are a lot of issues. I would have been considerably happier if we had been able to unpack this package somewhat. From listening to the Minister’s reply—she has been saddled with this, I accept—it seems to me that some of the provisions are straining to apply to London the model provided for the rest of England and Wales. That feels very awkward and very inappropriate. I cannot see that we will finish the debate about London tonight, so I think that we will have to come back to aspects of it.
On delegation, at one point I referred to that as “trickle-down”, but I think that the Minister’s reply vindicates that description. I have realised, a bit late in the day, that “Delegatus non potest delegare”, as we all say—
Baroness Hamwee
That is an important principle. I am really troubled that so much of this debate is described as being about delegation, whereas actually it is about getting other people to do a job in a way that, in other businesses, would be quite natural. That is not the same as delegation.
On the term limit, had the Public Bill Office allowed my amendment, it would have addressed all the points that the Minister made. However, the Minister did not address the problem—or, perhaps it would be fairer to say, the question that I asked—which is, “Why is London different in this respect?”.
Let me mention two final issues. The first is about the arrangements that the London Assembly makes and the Government’s insistence on requiring a bespoke committee. The Minister said that this is a matter of practicality. Well, there are practical considerations, but if central government is going to keep out of these things, central government should let the London Assembly work out for itself what the best practical arrangements would be. Frankly, I think that it is a bit paternalistic for central government to say, “You 25 people won’t be able to cope, so let us tell you how best to do it”. It seems to me that certain matters could and would be best handled by a committee, whereas some issues—the budget is obviously one of them—would be matters for the whole Assembly. The Government’s proposal seems an unnecessary intervention.
Finally, on the issue of appointments, although bureaucracy has been blamed, sometimes bureaucracy is a good thing. Actually, the point made is the one raised by the noble Lord, Lord Harris of Haringey, about the lines of connection—I had better avoid words like “accountability”—which I think is the right approach. I do not think that one should be saying that, in the name of avoiding bureaucracy, we will make the process, frankly, rather dodgy.
I am sorry that it must have been quite difficult for those Members of the House who are not directly involved in these matters to have tried to follow the debate, but certain themes have come out. I think that I look forward to—I anticipate with some sort of emotion—discussing these issues further with the Minister, because there are a number of points on which we have now teased out some of the Government’s thinking, which I have found helpful to hear, that we will need to address further. For the moment, I beg leave to withdraw Amendment 51.
Police Reform and Social Responsibility Bill
Debate between Baroness Hamwee and Lord Carlile of Berriew(13 years, 6 months ago)
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Baroness Hamwee
I thank the noble Lord. I have explained why I think it is still appropriate to debate the amendment.
At local government level, there was a format. For each new authority’s structural change order, there was an implementation executive which was adapted to local circumstances and literally shadowed the executive. There was preparation of an implementation plan, which included,
“such plans and timetables as the Implementation Executive considers necessary to secure effective, efficient and timely discharge of”,
the functions, in that case, and such budgets and plans as it considers necessary or desirable to facilitate the economic, effective, efficient and timely discharge of the functions after the relevant date. As I said, this is not the same as a local authority, but the noble Lord will recall, as I do, that when the Greater London Authority was formed, there was a period of shadow working—probably insufficient; it was a month or so.
Whatever arrangement we end up with—after the debate this evening, we are not without a proposed new structure—I am concerned that it should work as well as possible. Schedule 15 provides for transitional provisions. I am sure that the Government believe that everything has been covered in the schedule. Experience might suggest to many of your Lordships that it is hard to anticipate precisely everything that needs to be covered and that there is a risk in such a big bang approach. It is better, in my view, to allow time to consider the detail, because things always seem different once you are in the thick of things, when issues may be thrown up, than when you are anticipating them.
However much thought has been given to both the schedule and the transition board, which I understand the Home Office has formed—chaired, I think, by the police Minister—it would be wise to provide some arrangement which will allow for what may not have been anticipated in the legislation. I do not think that my drafting is of the finest order, but there is an issue here. I beg to move.
Lord Carlile of Berriew
I am puzzled, even in the context of this place, by the procedure being followed at present. Were we debating the amendment in the normal circumstances that many of us, at least, anticipated on the government side, I would oppose it because, as I said earlier, I support the view that we should have democratic accountability for police forces, although my preference is for elected police authorities. I am very disappointed that we cannot debate that issue as a result of pre-emption. That might have been an intelligent debate on a subject with some empirical evidence on which the House could have offered some wisdom to the Government. Indeed, I was beginning to feel a little like Baldrick, because I thought that I had come up with a cunning plan and, rather like Baldrick, had not anticipated that it might be effective on the odd occasion.
This debate reminds me of the childhood poem that starts, “I met a man upon the stair”. The man is the elected police commissioner but he is not there because, in reality, he has just been removed from the Bill by the vote. To put it another way, it is like the Mad Hatter’s tea party without either the Mad Hatter or the tea. I urge my noble friend Lady Hamwee to draw stumps in some way on this group of amendments so that we can in due course have a proper debate on the proper predicate. The predicate for the whole series of amendments that follows is that Clause 1(1) has been agreed.
Terrorist Asset-Freezing etc. Bill [HL]
Debate between Baroness Hamwee and Lord Carlile of Berriew(14 years, 1 month ago)
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Baroness Hamwee
I will also speak to Amendments 8 and 9. The term in Clause 2 with which I am particularly concerned is “involved”. It may look from my amendments as if I am more bothered about the definition of “terrorist activity”. I am a little bothered about that, but more concerned about what is meant by “involvement”. I changed “terrorist activity” to “terrorist acts” simply to make it flow better.
The term “involved in terrorism” seems to me very wide, so I hope that the Minister will explain where it comes from and what the precedents for it are. It looks to me as if the term comes from the Prevention of Terrorism Act 2005 provisions on control orders, which we are all agreed is a tough regime. The Terrorism Act 2000 used a different term, “concerned in terrorism”, in relation to deciding whether to proscribe an organisation. I am told by people from Liberty—I am grateful for their help, which I asked for late last night—that the term “involved in terrorism” has been interpreted by the courts under the control order regime and has been applied even where the person concerned has been acquitted of a terrorism offence. Liberty referred me to the cases involving AY and MB. Therefore, it seems that “involved in” requires only a suspicion of involvement rather than an actual charge or conviction. Although we have spent a good deal of time on suspicion and belief in the debate on Amendment 1, I think that we are back in the realms of suspicion in this group as well.
If I am right that the term “involved in” is taken from the 2005 Act, I should perhaps go on to ask about the different terminology that is used as the provision goes on. The 2005 Act talks about “involvement in terrorism-related activity”, which is not quite what is referred to in the Bill. The courts could distinguish between the two terms and, indeed, that might be what the Minister intends. I felt that I should raise the point at this early stage of the debate.
As other noble Lords will have seen, the briefing from the Equality and Human Rights Commission takes the view that such a threshold is not only too widely drawn but is in excess of what is required by UN Resolution 1373 of 2001.
Let me try to shorten the debate a little—I think that this group of amendments need not detain us nearly as long as the previous one—by acknowledging the provision in Clause 2(1)(b), which requires that the Treasury be of the view that the designation would be
“necessary for purposes connected with protecting members of the public”.
I accept that that is a reassuring condition.
However, I am concerned that the term “involved in terrorist activity” might extend to someone who happens to have been a bystander or who has just been associated with someone a bit more dodgy. The person might just have happened to be in the wrong place at the wrong time. I do not know whether this is a fair analogy to draw, but I am aware of concerns in another part of the legal forest about another term that has now, I am afraid, completely gone from me. That tells me that one should make proper notes. Perhaps my noble friend Lord Carlile knows the term that applies where a gang of people who were standing around happen to have seen a murder and are charged. Can you help me, Alex?
Baroness Hamwee
I thank my noble friend. I could not have afforded that advice but I am very grateful for it. As I said, it may not be an appropriate analogy but it has occurred to me that people whom the public might regard as being a long way away from being responsible for something could be charged under the joint enterprise head with a very serious offence, and I should not like to see that applied here. These amendments are tabled in order to understand the Government’s thinking on this clause better than, I confess, I do at the moment. I beg to move.