Police: Complaints

Lord Elystan-Morgan Excerpts

Tuesday 3rd March 2015 Lords Chamber

[Lord Bates]

On the general subject of complaints, there is an ongoing consultation which will report shortly. However, I will have to write to my noble friend on the specifics of his question.

[Lord Elystan-Morgan (CB)]

Does the Minister accept that one disquieting feature of the report is that cases that were investigated locally in 2014 took on average 135 days to investigate completely while in the previous year they were dealt with in 125 days? Can he give the House an assurance that all necessary resources, financial and otherwise, will be projected at seeing to it that the situation at least does not deteriorate and instead of that improves?

[Lord Bates]

The noble Lord is absolutely right and we know that justice delayed is justice denied. We need to move quickly towards a result in this situation. The reality is that most complaints are dealt with satisfactorily by the constabulary and it is only the very difficult cases that find their way to the IPCC. Often they are more complex and thus more lengthy in their consideration. However, the noble Lord makes an absolutely sound point.

Counter-Terrorism and Security Bill

Lord Elystan-Morgan Excerpts

Monday 9th February 2015 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, as one who pecked away as rather a nuisance in relation to Section 202 of the Education Reform Act 1988, I give special thanks to the Minister for his courtesy and understanding in this matter. There might well have been a technical argument that the wording of Section 43 of the 1986 Act already covered the point, because it refers to employees in the context of freedom of speech, but it would have been churlish to do so. I am very grateful to the Minister for his chivalry, courtesy, sensitivity and, indeed, his bounty and generosity in this matter.

[Baroness Williams of Crosby (LD)]

My Lords, I, too, wish to echo the thanks to the Minister for his persistence and patience. I am also grateful to him for letting me know that he and his officials are discussing consultation with universities and students with regard to the guidance offered by the Minister. As it happens, I spent Friday with a group of young sixth-formers from, I suppose, every kind of ethnic and religious background, a substantial proportion of whom were Islamic. They all strongly took the view that it was very important to enable discussion and debate to take place at their age level. They suggested, very sensibly, that the Government could help by, for example, encouraging political parties and Cross-Benchers to suggest the names of people who might be willing to speak to sixth forms of that kind and to respond if a school asks for a speaker without itself having one in mind. That was a very good suggestion by these young men and women. I hope very much that the Minister will persist with his discussions with the officials. It is crucial that young people feel themselves involved and part of the whole effort to try to deal with terrorism in this country.

Counter-Terrorism and Security Bill

Lord Elystan-Morgan Excerpts

Wednesday 4th February 2015 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, there is no doubt that freedom of speech in universities is utterly essential. Without it, there can be no concept of a real university. Freedom of speech is of course a basic human right, but in a university it is the very bedrock on which its concept is founded.

A week ago, in Committee, the noble and learned Lord, Lord Scott, reminded us that if a university loses freedom of speech—the right to discuss, examine, disseminate and comment on all manner of opinions in the widest possible range—it becomes an intellectual closed shop. I do not think that it could be better put than that. It is against that template that one has to consider all these matters.

I raise a point which follows very closely that of the noble and learned Lord, Lord Hope of Craighead. It relates to Section 43 of the Education (No. 2) Act 1986. The question is whether what is proposed by the Minister in Amendment 15D goes far enough. The fact that “particular regard” has to be paid leaves an open question as to exactly how the two concepts can sit together: the concept in Section 43 of freedom of speech in a university and the concept of statutory guidance, around which the clauses of Part 5 are built. To my mind, it still leaves a dubiety. That is why I support Amendment 14.

I am not sure exactly what wording should be used to improve the situation—it is always dangerous to try to make legislation on the hoof—but I should have thought that one could look to a different precedent. In Section 1 of the Children Act 1989, a court is enjoined, in dealing with a child’s case, to consider seven or eight different situations, but it is stated that the welfare of the child shall be regarded as the “paramount consideration”. Whether the word used is paramount or prime it could so be made clear that, where the two matters—the principles of Section 43 and those set out in the statutory directive—are in conflict, Section 43 should remain paramount.

Section 43 does not stand alone. Another very relevant section is Section 202 of the Education Reform Act 1988. That protects the employment of a person who may be teaching out-of-the-way subjects. Section 202 states that university commissioners,

“shall have regard to the need … to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions”.

Why has Section 202 not been included in the same bounty as Section 43 of the 1986 Act in the Minister’s amendment? I am sure that he will pay close attention to that situation.

I also wish to raise a point which may or may not have relevance, which is the position of Wales. Like Scotland, Wales enjoys devolved powers in relation to higher education. Does the problem identified by the noble and learned Lord, Lord Hope, apply to Wales? I do not think so, but I would like to be totally reassured on that point. These are not simple matters, but they are well worth our best and most detailed and concentrated attention at this very moment. I have very great respect for the Minister and indeed I have some sympathy with him, because 47 years ago—hard as that is to believe—I held exactly the same position in the other place as he does now, and dealt with the same subjects. These are matters which deserve our very best concentration.

[Lord Macdonald of River Glaven (LD)]

In speaking to my Amendment 14A, I again declare an interest as warden of Wadham College, Oxford. Last week in Committee I put my name to the amendment tabled by the noble Lord, Lord Pannick, the purpose of which was to remove universities entirely from the ambit of the Bill. I did so because of what seemed to me to be the self-evidently paramount importance of free speech in universities, and because the obligations that the Bill placed on universities appeared to conflict with their statutory duties under the Education Act 1986 to secure freedom of speech, not only in their institutions but for visiting speakers.

It is fair to say that in debate in Committee there was overwhelming support for the proposal that universities should be removed from the ambit of the Bill. I remain firmly of the view that the definition of “non-violent extremism”, which the Minister has recently set out again, is absolutely hopeless in its application to universities. This is because one can with the greatest of ease imagine all sorts of discussions, lectures and seminars taking place on topics which would be caught by the Government’s definition, and people in those lectures and seminars expressing intellectual views which would also fall under the definition. As far as I am concerned, it is hopeless for the Government to seek to apply such a definition to universities, which are particular places of debate, discussion and intellectual inquiry.

There was overwhelming support in debates—virtually every Peer who spoke did so in favour of the removal of universities from the scope of the Bill—yet, when winding up, those on the Opposition Front Bench made clear that they would be unable to support such a proposition, so last week I tabled a further amendment. The purpose of this Amendment 14A was to secure some reassurance that any risk that the Bill would undermine academic freedom would be mitigated, by placing in the Bill an obligation on universities to approach their duties under it in the light of their pre-existing free speech obligations under the Education Act. Like the noble and learned Lord, Lord Hope, obviously I was pleased when on Monday the Government tabled their own amendment, which in effect secures the same thing.

Like the noble Baroness, Lady Lister, I should have liked much more on this, for all the reasons which she articulated so ably. I should be delighted if the Government were minded to accede to her amendment. Nevertheless, it seems to me to be important that we secure the Government’s acknowledgment—and an acknowledgment on the face of the Bill—that these provisions apply to universities only within the critical context of their statutory freedom of expression duties. This is so that in future it cannot be argued that those duties are displaced by the passage of the Bill: they are not. The Government’s amendment seems to me to make explicit that they are not. I am grateful to the Minister for securing the Government’s movement, such as it is, on this important and fundamental issue.

--- Later in debate ---

[Lord Bates]

I take that point and will come to it as I go through my notes. I will go through them in no particular order but will start with my noble friend Lady Brinton, who asked about paragraph 50 in the guidance. We will reflect on my noble friend’s points about the language in the paragraph and look to clarify this in future. We will also reflect on the point made by the noble Baroness, Lady O’Neill, about prior restraint. I hope that I have reassured the noble Baroness that there is nothing here which would take us back to the times of prior restraint.

The noble Lord, Lord Pannick, asked why academic freedom is not specifically covered. He is quite right in his interpretation that freedom of expression, as secured by the duty in Section 43(1) of the 1986 Act, includes academic freedom, which is articulated in Section 202 of the 1988 Act, as was said by the noble Lord, Lord Elystan-Morgan. The freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions is therefore legislated for.

[Lord Elystan-Morgan]

There is no specific reference, of course, in the new clause, Clause 29, to Section 202 of the 1988 Act. The Minister is, no doubt, well aware that the Joint Committee’s report speaks of the necessity for a specific reference to Section 43 and Section 202 in the very same breath. In other words, my submission is that one is the obverse of the other. Section 43 of the 1986 Act guarantees freedom of speech and academic freedom, as it refers to students, employees and so on. Section 202 of the 1988 Act is the obverse of that in that it refers to the freedom of a person to do those things and yet retain employment. The two are inseparable, in my respectful submission.

[Lord Bates]

I will reflect again on the point about Section 202 of the 1988 Act and will see whether it is there, or whether it is, as the noble Lord, Lord Pannick, suggested, implicit in our wording.

My noble friend Lord Deben talked about the importance of debate. I hope that I have gone some way to reassure him that that is entirely consistent with our view. The guidance stipulates that and it is now stipulated in the Bill. The noble Lord, Lord Butler, asked about the Home Secretary. The Home Secretary can issue directions to universities and this makes a real difference. The power to issue directions will be subject to multiple layers of protection, including judicial oversight and that of the Prevent oversight board, on which my noble friend Lord Carlile provides independent representation. We agreed, following a discussion in Committee, to look again at this, and a direction will be issued only as a last resort.

Independent Panel Inquiry into Child Sexual Abuse

Lord Elystan-Morgan Excerpts

Wednesday 4th February 2015 Lords Chamber

[Lord Bates]

That was the point raised by the noble Baroness. In many ways, this highlights one of the difficulties that we have had to wrestle with. Because of the way in which the independent panel was set up before, the Home Secretary had a degree of control over it, but that was felt not to give confidence to the survivors. Then it was set up under the Inquiries Act 2005, and that degree of control was lost. There are no easy solutions to the problems that we are having. That is why the appointment of the chairman is so critical; she is somebody who is very focused on getting to the heart of the truth and doing so expeditiously.

[Lord Elystan-Morgan (CB)]

Is it not the case that delays such as these, particularly in the case of the Chilcot inquiry, are very much to be regretted? Nevertheless, all such inquiries are bound by the rules of natural justice, and Maxwellisation is only a crystallisation and a spelling out of those particular rules, and cannot be avoided.

[Lord Bates]

That natural justice element is there. Also we are very conscious that sometimes people have been wrongly accused and their lives have been destroyed as a result. So it is an onerous responsibility on all of us to make sure that we get this right and do so in a calm and focused but absolutely resolute way so that we learn the lessons of how we can protect our children in future.

Counter-Terrorism and Security Bill

Lord Elystan-Morgan Excerpts

Wednesday 28th January 2015 Lords Chamber

[Lord Renfrew of Kaimsthorn (Con)]

My Lords, this has been a radical debate in the profound sense of getting to the roots of things. We have been talking about the open society and its enemies, and the Government have rightly identified the enemies of the open society as armed terrorists. But who are the friends of the open society? Clearly, we are speaking about free speech and academic freedom. I think that the Government, in seeking to constrain the enemies of the open society, are wrong if they take steps that constrain free speech and academic debate. The debate this evening has very much highlighted those difficulties.

The noble Baroness, Lady Kennedy of The Shaws, spoke of the difficulties of administrating these procedures if they were passed into law. They would indeed be difficult to administer in a university. I fear that they would not be very well administered in most universities if universities were invited to apply them, because the sort of bureaucracy that can develop in a university would be ill suited to the task. So I feel very strongly that another approach has to be found, and there is a very strong case for excepting universities, as has been argued so well. I declare an interest as a former master of Jesus College, Cambridge, and a former professor. Universities are places where free speech should flourish and should be constrained as little as possible.

This year is the 200th anniversary of the Cambridge Union Society. That may be a small matter in these grand considerations, but I cannot see how a society like the Cambridge Union Society could flourish with the constraints applied to it in the draft guidance, some of which were mentioned by my noble friend Lord Macdonald of River Glaven. Therefore, I very much support the amendment and I hope that the Government will give it very serious consideration, because very high principles are at stake and, indeed, at risk.

[Lord Elystan-Morgan (CB)]

My Lords, I shall speak briefly to Amendment 104. In so doing, I declare a past interest, as I was for 10 years a president of a Welsh university and the chairman of its management council.

I shall deal first with a technical constitutional point that is not a thousand miles away from the matter raised by the noble and learned Lord, Lord Hope of Craighead. Universities and higher education in general in Scotland and Wales are, of course, devolved functions. Therefore, one could easily react in a rather crude and barbaric way and say, “This is not a matter for Westminster to intervene in”—although I certainly do not take up that argument.

Nevertheless, one should bear in mind that there are conventions in existence in the relationship between this House and the devolved assemblies. This is the Mother of Parliaments, and it stands to reason that it has the sovereign authority to cancel or amend in any way that it wishes any area of devolution that it has endowed upon it. But it will not do that and does not intend doing that wrongly. We have the Sewel convention in Scotland and a similar convention in Wales to the effect that such interference will not take place save in the most unusual—if not unique—circumstances. It would take place when either the devolved assembly requests that it should happen—the point essentially raised in relation to Section 43 of the 1986 Act by the noble and learned Lord, Lord Hope—or there is a situation that is utterly unique. One can imagine one or two where there would be justification for such action.

It is clear to me that another principle overwhelms that; for although higher education has been devolved to Scotland and Wales, counterterrorism has not. That surely must take precedence in every way because it involves the security and, at the end of the day, the very existence of the state itself. I raise the matter not to show off any understanding of constitutional matters but to raise a point in relation to what should happen in this unique situation where we have a devolved function being clearly brought under the microscope of Westminster. The Bill accommodates that possibility very clearly in Clauses 23 and 25. In Clause 23, it is in relation to adding an authority to the list in Schedule 3; in Clause 25, it is in relation to giving a direction. However, the Bill states in each case that there has to be consultation between the Home Secretary and Welsh Ministers, and that is the point that I seek to raise.

--- Later in debate ---

[Lord Hannay of Chiswick (CB)]

My Lords, I shall certainly not repeat what has been said—I am sorry; has the noble Lord not finished? I thought that he had.

[Lord Elystan-Morgan]

My Lords, I have a little to go.

Perhaps I may end in this way. The motivations of the Government are probably very decent, proper and understandable, but the way in which they are going about them is extremely naive and in many respects barbaric. Let us imagine that, before a person can speak at a university, notice for 14 days has to be given. A sketch of the content of that speech has to be produced. Just imagine how three people, all of them now dead, would react to that were they alive. One would be Bertrand Russell; another would be Bernard Shaw; a third would be a 30 year-old Winston Churchill. Do you think that they would have accepted the invitation? Do you think that they would have felt themselves bound by that stricture? It is a situation which, at best, is ridiculous and, at worst, can be extremely dangerous and counterproductive.

Most Members of the Committee will have heard at some time or another quoted the immortal words of John Philpot Curran, who in 1795 said, if I remember rightly:

“The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt”.

We can, by overemphasising vigilance, destroy the very thing that we seek to protect.

[Lord Hannay of Chiswick]

I shall not weary the Committee by using all the arguments that have been so well advanced by noble Lords on all sides. They have been much more eloquent than I could possibly be. I support the amendments proposed by my noble friend Lord Pannick and Amendment 104 because I do not think that the Government have made a very convincing case for moving from a voluntary to a statutory basis. They are quite right in wishing to see all higher education institutions taking the Prevent strategy seriously and co-operating with it but they have not given any evidence that this voluntary approach—reinforced perhaps by a bit of naming and shaming—cannot bring everyone voluntarily within this framework. They have said little about the efforts they have made to do that, except to admit, which I very much welcome, that the majority of universities are actually doing this already. Therefore, I do not think that the case has been made for moving from a voluntary to a statutory basis.

There is a bit of a mixture in this grouping, ranging from a carve-out for universities and other proposals that fall short of that, which would leave universities within the Bill but would mitigate the problems from it. I hope that the Minister will address some of the other amendments—Amendments 105, 112 and so on—which would achieve that mitigation. It is extremely important that that should appear in the Bill.

Finally, I have a point to make about the guidance. The consultation on the guidance with universities, if I understand it rightly, concludes at the end of this week. Frankly, that guidance is pretty horrifying. It has caused a great deal of the concern that has been expressed around this Committee by the nature of its prescriptive detail, its intrusiveness and the absolute impossibility for most universities to carry out these provisions. Next week, on Report, the Minister could make clear in the most formal way the changes to the guidance that will be introduced before it is promulgated. I hope that the Minister will take that seriously. If he cannot agree to remove universities from this Bill, which would be my preference, he should accept some of the amendments that would mitigate the effects of it, make quite clear that the guidance will be radically altered and explain how it will be altered. He should explain, above all, some of the points that he put in his letter about the positive things that the Government are happy to continue to see happening in universities and not just give a long list of the negative things that they are going to try to clamp down on. I hope that can be taken to heart before we come back on Report.

Mediterranean: Refugees and Migrants

Lord Elystan-Morgan Excerpts

Wednesday 5th November 2014 Lords Chamber

[Lord Bates]

Absolutely, and there is no change. The obligations are there for any military ships or vessels in the vicinity. They know what they have to do in terms of contacting the maritime rescue co-ordination centre and they will be directed to take those people to a safe port or to have those people passed into safe hands.

[Lord Elystan-Morgan (CB)]

Can the Minister recollect that last Thursday he gave me a very forthright answer to a question as to what the attitude of the commander of a British naval vessel would be if he was aware that there was a refugee ship in peril within range of his ship? I was told indeed that he would most certainly lend all assistance in accordance with the law of the sea and the highest traditions of the Royal Navy. In the light of that most honest answer, what is the point of giving any impression on the part of the Government that we are gibbing in relation to search and rescue?

[Lord Bates]

The noble Lord is absolutely right that we need to be clear. There is a grave information message we need to get out here that of course there is no change in our humanitarian obligation. The only thing which is changing is that we are putting more money and resource behind it, but those obligations from a humanitarian point of view remain, in the proud tradition of this country and of seafarers.

Refugees and Migrants: Search and Rescue

Lord Elystan-Morgan Excerpts

Thursday 30th October 2014 Lords Chamber

[Lord Bates]

The noble Lord comes to this with huge experience and understanding. However, those obligations which are there under the laws of the sea, maritime law and humanitarian law will remain as obligations on any vessels that actually come across people who are making this journey. The question is how we tackle this increasing trend effectively. This is not for the UK alone; this view was pored over on the basis of evidence, intelligence and information which came to the Justice and Home Affairs Council. All 28 member states agreed—which, as my noble friend suggested, is a pretty rare achievement—that, regrettably, this was having a counterproductive effect.

[Lord Elystan-Morgan (CB)]

My Lords, will the Minister kindly answer a specific question, which I am sure all Members of the House would wish to have answered? If the commander of a British warship is cognisant of the fact that there is a refugee ship within reasonable distance of his vessel which is in peril, does he deviate from his course and pass by on the other side, or does he act in accordance with the law of the sea and the highest tradition of the Royal Navy?

[Lord Bates]

The answer is that he gives assistance to that vessel. That is the law; that is the rule; and that will continue to happen. The vessel should be escorted to the nearest safe port and the passengers’ needs addressed. There is an overlying responsibility, particularly where those individuals may have genuine asylum claims which need to be investigated, to then take them to a place where they can be assessed.

European Arrest Warrant

Lord Elystan-Morgan Excerpts

Wednesday 29th October 2014 Lords Chamber

[Lord Bates]

My noble friend is absolutely right in respect of these measures. To keep a balance, though, let us remember that being part of the European Union is not just about signing up to everything that comes down the track. With regard to justice and home affairs, there were 135 measures in the package, 100 of which we did not feel passed the test regarding our national interest. However, 35 did and those are what we want to rejoin.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister accept that committees of this House have heard overwhelming evidence from law enforcement agencies from England, Wales, Scotland and Northern Ireland, as well as the Republic of Ireland, of the wholly invaluable role that the European arrest warrant plays in the war against serious crime? Does he also accept that, although there are minor infractions that can so easily be put right, it would be a severe blow to the administration of justice if, for any reason—particularly in relation to any tactical or political consideration—the European arrest warrant were to be prejudiced in any way?

Police Reform

Lord Elystan-Morgan Excerpts

Tuesday 22nd July 2014 Lords Chamber

[Lord Taylor of Holbeach]

I am very happy to take the noble Lord’s advice on that matter. What he had to say was very interesting.

[Lord Elystan-Morgan (CB)]

Does the noble Lord recollect, and indeed agree with, the historic words of the late Lord Callaghan in relation to the police when he said that our police are not a gendarmerie, they are not a corps d’élite, they are citizens in uniform? Does he accept that, although sophisticated systems may well assist the police, the essence of being a police officer is very much encapsulated in the words of James Callaghan? While accepting—indeed, the noble Lord will remember that I raised on many occasions the need for a comprehensive inquiry on the lines of that conducted by Sir Henry Willink in the early 1960s. There were so many problems that coalesced and it was the only way of dealing with them.

It seems to me, respectfully, that the inquiries that are now being considered are indeed wide-ranging and deep-seated. A great deal will depend on the collation of the evidence. I would ask for one matter, which has already been raised by my noble friend, to be considered in addition. We should ask ourselves the question whether, in the 21st century, we can carry on for very much longer with 43 police forces without considering a process of rationalised amalgamation.

[Lord Taylor of Holbeach]

That takes us back to a point made by the noble Lord, Lord Dear. I think that I explained that the issue appears different from different points of view. I am not sure that a change in size or relocating a responsibility to a regional level or whatever would necessarily lead to more effective policing—in fact, my own prejudice suggests that it would not. However, I agree with the noble Lord’s dictum. It goes back further than Jim Callaghan to Peel himself, who said that the people are the police and the police should be the people. That is the concept that lies behind the British police force, which certainly differs from police forces in other parts of the world.

Serious Crime Bill [HL]

Lord Elystan-Morgan Excerpts

Tuesday 15th July 2014 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, I very much support my noble and learned friend Lady Butler-Sloss, because her amendment absolutely stresses this emotional side that we are talking about and which has been in the background for far too long.

However, I am on my feet only because I think that the point made by my noble friend Lady Howarth is absolutely right. All these measures, and particularly the amendment of the noble Lord, Lord Ponsonby, need to be brought in to the Bill, which should be amended. For that reason, I very much hope that the Minister will do just that.

[Lord Elystan-Morgan (CB)]

My Lords, at Second Reading a month ago, I committed the cardinal sin of making some very specific and detailed comments of a nature belonging more to a Committee stage than otherwise. I am not going to make up for it by making a Second Reading speech today, but I very much welcome the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss.

I have little doubt that the draftsmen of Clause 1 of the 1933 Act intended that “cruelty” should relate to both physical and non-physical cruelty. However, in 1981 in the case of Sheppard, this House caused some confusion in relation to that matter by placing what might be described as a somewhat heavy gloss upon the words of statute. The combined effect of the amendment and Clause 62 is that the situation will be made abundantly clear. I very greatly welcome that.

I also take the point that in so far as defining cruelty in terms of serious harm, a very great bringing together of two concepts has been achieved; that is, the definition of “significant harm” in Section 31 of the Children Act 1989, which of course is the section that sets up the machinery for the obtaining of a care order, is now almost exactly the same—or so near as to make no difference whatever—as the definition of the criminal offence that this clause brings about.

I take wholeheartedly the point made by the noble and learned Baroness, Lady Butler-Sloss, that the last thing one wants to do is to bring these civil situations into a criminal court. Sometimes that is inevitable. I also take the point that it is right that social workers and those involved in the protection of children in the civil field should, as it were, have the same hymn sheet as those who deal with those situations in the criminal field. They are two different fields, which should be mutually exclusive if humanly possible, but nevertheless it is right that the same standard should apply to both.

[Baroness Walmsley]

I wonder if the noble Lord, Lord Elystan-Morgan, would be kind enough to address the House because I am having some difficulty in hearing what he is saying.

[Lord Elystan-Morgan]

Profound apologies. I was discerning perhaps a twinkle of support this side and one welcomes every little support one can get in this place. I apologise profusely to the noble Baroness.

In so far as “wilfully” is concerned, this is an extremely important development. Lawyers well appreciate that “wilful” can mean an act of deliberate commission or omission. On the other hand, intelligent lay men, be they magistrates, jurors or in any other capacity, might find it very difficult to consider that something which is pure omission can be wilful.

Then there arises the almost theological question of whether “recklessly” should be included. I think—but I might be corrected, and for this reason I shall turn to the authorities on the other side—that in so far as the statutory definition of wilful is set out here, it is in fact the classic definition adopted by this House in a case of recklessness called Caldwell in the 1980s. It was the case of a tramp, if I remember rightly, going into unoccupied premises and striking matches, who was found guilty of arson on the basis of recklessness. If am right about that, there is no dispute about the difference between recklessness and wilfulness in this connection.

I will make a general comment on Clause 62, which will not have to be repeated on clause stand part. Section 1 of the 1933 Act is 80 years old. I am one year older than the noble and learned Baroness, and therefore I was about a year old when this became law. The verbiage is much older than that. The verbiage comes from the Poor Law Amendment Act 1868, virtually all of it from Section 37.

That Act was passed in order to deal with the problem of the Peculiar People. The Peculiar People were very devout people who believed that, whenever there was illness in the family, you should not go anywhere near a doctor. You should pray to Almighty God, and accept the will of Almighty God. The consequence was that, when death occurred, and many of these people were prosecuted for manslaughter, a humane jury found them not guilty because of their utter devoutness, although, of course, it represented utter unreasonableness. It was to deal with that particular issue that Section 37 was passed.

This means that we have today still the remnant cobwebs of that Victorian verbiage. Victorian verbiage in a statute sometimes can serve us well. The Offences Against the Person Act 1861 is a classic example which will be with us for many generations, I have no doubt. However, there are cases in which one can look afresh at the whole situation and possibly create an instrument that is more consistent with the needs of the 21st century.