Policing and Crime Bill

Lord Hope of Craighead Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I recognise the point that the noble Viscount has made about the general increase in the level of sentencing, which has caused me considerable concern for quite some time. However, there is force in the point that the noble Baroness made about repeat offences. The people who commit this kind of offence tend to be victims of an obsession. There must be a risk that a number of these perpetrators will do it again, and if the first sentence is ineffective as a deterrent a judge is really inhibited in visiting the appropriate penalty on a repeat offender, particularly if it is even a further repetition, if he is restricted to the levels that presently exist. For that reason, among the others that the noble Baroness mentioned, I would be inclined to support her amendment.

[Lord Paddick]

My Lords, I strongly support the amendment. While I accept what the noble Viscount, Lord Hailsham, said about overcrowding, we need to differentiate between many offences that do not deserve a custodial sentence, and in fact would be more effectively dealt with by a non-custodial sentence, and those that really need long custodial sentences, for the very reasons that the noble and learned Lord has just articulated. These are offences where, particularly in the case of repeat offences, a longer custodial sentence is needed. That is why we will support the noble Baroness should she decide to divide the House.

--- Later in debate ---

[Viscount Hailsham]

My Lords, I shall be very brief. I have no objection to my noble friend answering the questions posed by the noble Lord; it is obviously right that she should. My objection lies to proposed new subsection (3), because I do not think that the existing law needs any change. If one looks at the primary legislation, one sees that the ability of defence counsel to ask questions or call evidence is hedged about by judicial restriction and can be exercised only relatively rarely. I have been in court many times when this has happened, and there is no sense that the legislation is being abused, that evidence is being adduced unnecessarily or that cross-examination is being done wrongly.

At the end of the day, I believe that the law is right as it stands. Although I have no objection to a review and no objection to the questions put by the noble Lord, I do not think we need to change the law—and I am therefore bound to say that subsection (3) of the proposed new clause poses problems as far as I am concerned.

[Lord Hope of Craighead]

My Lords, I will add just a footnote to what the noble Viscount said. Some years ago, there was a challenge to Section 41 of the 1999 Act on the ground that it was incompatible with the convention right to a fair trial. I sat upstairs in a committee room as a Law Lord with the Appellate Committee. We were very careful to restrict the ability of counsel to explore these matters, as far as we possibly could consistent with the right to a fair trial. I am glad to hear that, from the noble Viscount’s experience, the system is working very well. On the other hand, when we were framing our restrictive view as to how the section should be applied, we were looking to the future; we did not have the benefit of experience. Like the noble Viscount, I have no objection to a review, which I suppose might serve some useful purpose by informing everyone as to whether the system is really working as the Law Lords expected it should.

[Baroness Williams of Trafford]

My Lords, the noble Lord, Lord Marks, raises the important issue of the protection of complainants of rape and sexual offences from being questioned about their sexual history. As I previously made clear, it is vital that victims have the confidence to report crimes as terrible as rape, and that they have confidence that the criminal justice process will bring offenders to justice. Our message to those who are willing but currently worried about reporting such offences is that they should feel confident about doing so.

When we first debated the issue, I assured noble Lords that we would look at how Section 41 of the Youth Justice and Criminal Evidence Act 1999 was working in practice. As the noble Lord asked, perhaps I may provide a bit more detail. The Justice Secretary and the Attorney-General have advised me that this will include examining the original policy intent of Section 41, its implementation and how it is operating in practice.

I can confirm that this work will be led by officials in the Ministry of Justice and the Attorney-General’s Office. They will consider carefully the concerns that have been raised and seek views from the judiciary, practitioners and victims’ groups. This work will be completed in the first half of next year.

We have already made clear our commitment to carry out this work and, in our view, there is no benefit in making it a statutory requirement. In the light of the detail that I have provided, I hope that the noble Lord will feel happy to withdraw his amendment.

Policing and Crime Bill

Lord Hope of Craighead Excerpts

Report: 1st sitting: House of Lords
Wednesday 30th November 2016 Lords Chamber

If the Minister will say something to me in her most charming manner—or she can write, if she likes—to the effect that the Government will change the legislation so that we are dealing exclusively with self-defence devices, I will be a great deal happier with what is now being proposed, but so long as we are dealing with an unrestricted class of weapon she will not have my support.

[Lord Hope of Craighead]

Before the noble Viscount sits down, can he be a bit more specific about what he has in mind as a self-defence device? If you have a weapon which is capable of inflicting injury, it all depends on the mind of the user. I understand the point he is making, but I am not quite sure that one could have such a category.

[Viscount Hailsham]

I think one can. I think a Taser is a self-defence device. I know there is a dispute about that and that many take the view that it is unduly dangerous, but I take the view that it is self-defence. I take the view that pepper spray and things of that kind are self-defence. I take the view that a revolver is not. It is that sort of distinction.

Policing and Crime Bill

Lord Hope of Craighead Excerpts

Wednesday 14th September 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I suggest that the Government might like to look favourably on Amendment 8, in particular. One should focus on the word “varied”. If an agreement is varied by something else, the original agreement survives—it is simply changed a little and varied in form. Clause 4(8) refers to a collaboration agreement being varied by a “subsequent collaboration agreement”. The word “varied” should really be “replaced”, because you then have something different. So there is force in the noble Baroness’s amendment, which is small but neat way of expressing what everyone agrees should be done. The agreement should be capable of being varied; my point is that the original agreement survives, but with a small or large change made to make it more effective. For those reasons, I support that amendment.

[Baroness Chisholm of Owlpen]

I thank noble Lords for taking part in this debate. I understand from the noble Baroness, Lady Hamwee, that these are probing amendments designed to tease out how collaboration may be varied. It is of course vital that collaboration agreements can be amended where appropriate to reflect local developments and to ensure the best outcomes for the public they serve. There may be a number of reasons to vary a collaboration agreement, perhaps to include a new partner to the agreement or to change participant roles and responsibilities. Clause 4(8) is simply intended to make it clear that such variations may be made. In locally agreeing to vary the terms in an existing collaboration agreement, the parties will in effect create a new or subsequent collaboration agreement. Such an agreement would be subject to all the provisions that pertain to collaboration agreements. I hope that clarification reassures the noble Baroness and that, accordingly, she will be content to withdraw her amendment.

[Baroness Hamwee]

I think it may have become not a probing amendment.

[Lord Hope of Craighead]

With great respect to the Minister, she did not address my point. One has a choice: either one varies an agreement or one replaces it with something else. The example given is a very good one of a variation, leaving the existing agreement in place. We are at a very early stage of this Bill and all I am suggesting is that the amendment might be taken away and looked at again. It is a question of the proper use of the English language, which is why I have taken the liberty of standing up and making my point.

[Baroness Chisholm of Owlpen]

Certainly. I feel I must bow before the noble and learned Lord’s incredible intelligence in these affairs. I cannot possibly completely disagree with what he says because he is way above my intellect. Of course we can go away and look at this.

Immigration Bill

Lord Hope of Craighead Excerpts

Tuesday 15th March 2016 Lords Chamber

Moved by

[Lord Hope of Craighead]

73: Clause 40, page 31, line 20, at end insert—
“( ) Regulations under subsection (2) which relate to Scotland may only be made with the consent of the Scottish Parliament.”

[Lord Hope of Craighead (CB)]

My Lords, this amendment seeks to introduce a new paragraph into Clause 40. I will speak also to Amendment 140, which raises essentially the same point in relation to Clause 68. With both these amendments I seek to introduce a provision to the effect that the regulations referred to in those clauses which apply to Scotland may be made only with the consent of the Scottish Parliament.

Before I develop the reasoning behind these amendments, I owe the Ministers an apology for not having raised this issue in Committee. I am afraid that frankly I did not notice it until we reached this stage. It was prompted by the debates which took place on the Scotland Bill, to which I shall refer in a moment, which raised a point which bears on the significance of the legislation in this Bill which I am seeking to deal with.

I should add that the same point arose in relation to Clause 34. I tabled an amendment earlier on Report but, due to other business as Convenor, I was not able to attend and could not move it. In a way, it does not matter, because the point was essentially the same. Because of the way in which the Bill is framed, one point links all three clauses in the same way.

--- Later in debate ---

[Lord Bates]

I certainly give an undertaking. All the correspondence is there, in a trail to the noble and learned Lord, stretching back to August. I shall make sure that that is all with the noble and learned Lords by the end of the week, so they have time to consider that for next week.

[Lord Hope of Craighead]

My Lords, I am grateful to the Minister for his reply, which has helped to clarify matters to some extent. Rather like the noble Lord, Lord Wigley, I emphasise that I do not seek in any way to criticise the intention behind the legislation, particularly in regard to children. It is a very important matter, and no criticism is intended on the intention to extend these provisions to Scotland and, no doubt, to the other devolved institutions so that the same protection for children is available. That is absolutely understood—and I understand the immigration policy impetus behind wanting to extend the legislation with regard to residential tenancies to the devolved areas as well. But it is a curious feature that the way in which this will be sought to be done, which is fairly plain from what is being done in England and Wales, is by amending Scottish legislation. It is all very well to say that this is a reserved matter because it deals with immigration, but you cannot get away from the fact that the areas in which legislation requires change are in devolved matters. That is why the relationship with the Sewel convention is very important.

I have always been a little puzzled as to how the Sewel convention extends to discussions between Ministers, and I was very glad to hear that that dialogue has been taking place. In a way that is just as effective—perhaps even more effective—than having a matter before the Scottish Parliament for its consent, because it is a far more constructive dialogue, which can be begun early and help to frame the legislation from an earlier stage. That is not the Sewel convention as expressed in the Scotland Bill, but it is a useful way in which to communicate, which I welcome very much, and I am glad to hear that it has been going on. But there is still the Sewel point, which requires attention, because of the fact that the Scottish legislation is in the target for the statutory instrument.

The noble Lord, Lord Wigley, mentioned the Henry VIII aspect of the provisions, which requires explanation, because it is very wide-ranging. The power is to,

“amend, repeal or revoke any enactment”—

that is, any

“enactment contained in, or in an instrument made under, an Act of the Scottish Parliament”.

There has been no attempt in this legislation to focus on the Scottish legislation, which is quite easily identified, which requires amendment. It would have been more helpful if the Bill had been framed in a way that made it clear which particular statutes required amendment, or at least the areas of law that we are dealing with, instead of having a wide-ranging Henry VIII power to, as it were, demolish all the legislation embraced in these very broad phrases.

I hope that when the Minister writes, he can explain a little more what is intended and what has taken place to reassure people about this. From what he has been saying, I take it that it is not intended that this Bill should go before the Scottish Parliament for a legislative consent Motion. Nor do I think he is suggesting that the instruments themselves should go before the Scottish Parliament; I do not see how they could. But no doubt there are people in Scotland who are listening very carefully to what is being discussed in relation to this matter, as there will be in Wales. It is therefore very important that the matter is fully clarified. I hope that we do not have to come back to discuss it more on Third Reading, so I look forward to what the Minister is going to tell us in writing. I see that the Minister would like to say something.

[Lord Bates]

Very briefly, I just want to clarify, to manage expectations here. What I have undertaken to provide by Monday for the convenience of the noble and learned Lords are copies of the correspondence, which are already in existence, to aid that part of the discussion. With the very hard-working constitutional lawyers and cross-government committees necessary to sign off on such communications, we might be able to generate that by Monday—certainly as soon as possible. But those letters to which I referred will be with the noble and learned Lord before the end of the week.

[Lord Hope of Craighead]

My Lords, I am most grateful to the Minister. I fully understand the problems due to a shortage of time and will look forward to what can best be achieved. For the time being, I beg leave to withdraw the amendment.

Amendment 73 withdrawn.

--- Later in debate ---

[Baroness Redfern (Con)]

My Lords, I will speak briefly and to the point to Amendment 84. It would significantly undermine the Government’s ability to enforce immigration controls and maintain public safety, which is paramount. In the current climate of high migration and growing security threats, I am sure that noble Lords would agree that we need to consider very carefully any measure that could undermine public safety. Although the amendment would not apply to the time limit for certain foreign national criminals, who have knowingly broken immigration laws, these individuals would be able to rely on being released by continuing to obstruct removal.

It is important to note that, based on current behaviours, a large majority of those currently detained would be likely to take advantage of the time limit. This would seriously undermine the legitimate operation controls and pose an unnecessary threat to the public. It would add a further strain on resources, create more bureaucracy and waste time and taxpayers’ money on unnecessary paperwork and legalities. It is in everyone’s best interests to have an asylum system where decisions are taken quickly and effectively, but not because it is rushed.

When we deprive someone of their liberty, that decision should never be undertaken lightly. As a country, we should be proud that we take our duty of care very seriously when individuals are detained.

[Lord Hope of Craighead]

My Lords, I shall make a very short point about proposed new subsection (2) in Amendment 84, and in particular the word “exceptional”. This is simply a power in the tribunal to extend the period. To introduce the word “exceptional” is, I would have thought, unnecessary and perhaps unduly restrictive. The phrase,

“on the basis that the … circumstances of the case require extended detention”,

I would have thought, sets a sufficiently high standard for the tribunal to work to. Of course, the shorter the period—if the Government are minded to introduce a fixed period—the more important it is that the word “exceptional” should not be there, for the reasons that others have mentioned. So I suggest that that word requires very careful thought. I would rather it was not included in the proposed subsection.

[Lord Hylton]

My Lords, having spoken on this subject at Second Reading, and having visited two removal or detention centres more than once, I support what the noble Baroness, Lady Lister of Burtersett, was saying about the categories of people who should never be detained. I draw particular attention to those with serious mental health issues or post-traumatic stress. Surely, if they are at risk of injuring either themselves or other people, they should not be in these detention centres. They should be in secure psychiatric wards. So I hope that the Government will take very seriously what the noble Baroness was saying.

Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 3) Order 2015

Lord Hope of Craighead Excerpts

Tuesday 22nd December 2015 Lords Chamber

[Lord Newby (LD)]

My Lords, I start by echoing that last sentiment of the noble Lord, Lord Bassam, and the comments of the noble Lord, Lord Taylor, about the importance of the smooth running of the usual channels. It is, of course, somewhat strange, having spent a very happy time as co-conspirator with the noble Lord, Lord Taylor, to be now spending a certain amount of time, with mixed success, planning his and his colleagues’ downfall. It is, however, a source of continuing pleasure to work with the noble Lord, and indeed with the noble Lord, Lord Bassam, and the noble and learned Lord, Lord Hope, in such a civilised way, even though we often disagree on matters of great importance to the country. However we manage to do it in what I suspect most people would think of as in the best traditions of the House of Lords.

I, too, am paying tribute to several staff who have served your Lordships’ House very well. Zulmiro Trigo, known to her colleagues and your Lordships as Zizzi, started in the House of Lords in September 1997 as a member of the service team. She worked in all areas, including the Home Room, Attlee Room, Cholmondeley Room and Terrace, the Peers’ Dining Room and Gift Shop. She retired in April and is now enjoying life between Portugal and UK with her husband Umberto who also retired in April.

Umberto himself joined the House in November 1999 and worked as a waiter in banqueting in all areas, including the Attlee Room, the Cholmondeley Room and Terrace, and also the River Room. We wish them both very well.

Oye Acolatse joined the House in January 1993 as a junior chef working in the main kitchen. She worked in all areas and then specialised in the very busy pastry section for a number of years working as chef de partie—and winning the department’s employee of the year award in 2007. She was promoted to lead the section as sous chef in 2008 and decided to retire in April this year after 22 years’ valued service to the House to spend time with family and friends.

Biagio Lammoglia joined the House in June 1993 as the manager of the Peers’ Dining Room, the Peers’ Guest Room and Bishops’ Bar. He was a House of Lords institution. He was a valued member of the senior catering and retail services management team and shared his many years of experience in other areas of the department, as well as running a tight ship in the Principal Floor outlets.

As a new Member to your Lordships’ House, I was rather in awe and dread of Biagio because I felt that I probably already had broken, or was about to break, one or more of the rules of protocol in the Peers’ Guest or Dining Room. Of course, when I did, Biagio was always far too polite to point it out. But my sense of foreboding never completely disappeared. Biagio retired in July this year and is now spending time between Italy and the UK with family and friends.

James—Jim—Donoghue joined Lords Hansard in December 1984, having previously worked as a reporter in the law courts and Commons Hansard, and, after 31 years, retired in May. When live television broadcasting of the Lords began in January 1985, he was the first ever Hansard reporter to appear on television.

Jim still recalls an alarming encounter he had in the Chamber with Lord Denning, the recently retired Master of the Rolls. During the passage of the Education (Corporal Punishment) Bill, Lord Denning raised the legal definition of “battery”, and said:

“We have to go to the common law to know what is battery. The least touching of another person is a battery. So I just have to put my hand on the shoulder of the Hansard writer, like this, and I would be guilty of a battery”.—[Official Report, 4/6/85; col. 622.]

Jim was the Hansard writer in question, and vividly remembers the force that Lord Denning used to make his point; fortunately, no lawsuit resulted.

Jim was an assistant editor on his retirement and said at his retirement party that he would miss the chimes of Big Ben on the quarters and on the hour, the beauty and serenity of Westminster Hall, and listening to the parliamentary choir through the Hansard office window as it rehearsed. He also shared that he would not miss annual appraisals, Thursday debates—which seemed to go on for ever—or waiting for the lift to the third floor, West Front. He calculated that during the 31 years he worked here, he spent eight months waiting for it. We certainly have sympathy with some of those sentiments!

Since retiring, Jim has been indulging his passions for travel and good food and wine, and spent four months in Greece. Jim’s hard work, passion for detail and rich grammatical knowledge are a big loss to the Hansard team, and he is sorely missed.

I have read out several tributes but the qualities of the staff to whom I have just referred apply to all the staff in your Lordships’ House and we wish them a peaceful Christmas and happy new year.

[Lord Hope of Craighead (CB)]

My Lords, on behalf of the Cross Bench group, I associate myself with the very well-earned tributes that have been expressed by other Members of the House.

I add a personal word of thanks to the noble Lords, Lord Taylor of Holbeach, Lord Bassam of Brighton and Lord Newby, for the welcome they have given me as the newest member of the rather special group—the usual channels—of which I have not been a member before.

It is a privilege for me to take part in this important tradition, when the House quite rightly takes a moment to express its gratitude to the many staff who have served us so well over so many years. My appreciation of what the staff do for us goes back to when I first entered the House 20 years ago last February. I can look back to my 13 years as a Lord of Appeal in Ordinary, and to the excellent and devoted service we received on the Committee Corridor from our own dedicated team of doorkeepers, one of the last of whom was Jackie Mouzouros, to whom the noble Lord, Lord Bassam, has just referred. They were with us when we sat in the Committee Rooms and they were with us, too, when we came into the Chamber on Wednesday mornings to deliver our judgments. I still recall their call “Counsel”, when the door opened and the lawyers were admitted to the presence of the Law Lords in the Committee Room, and their equally impressive call, “Clear the Bar”, when the day’s hearing was over. They added a dignity and sense of order to our proceedings which we could not possibly have achieved without their assistance.

It has been another very busy year for us in this House. We have had to work very hard, continuing to hold the Government to account through a wide variety of questions and debates and through our widely respected Select Committee structure. All this has been achieved during a period of continued financial constraint. More has had to be done with no increase in our resources. It is a real achievement, and a tribute to the dedication and resilience of our staff, that we have all continued to enjoy such a seamless service from them.

We have also seen a number of new Members introduced on all our Benches. It is always a real pleasure to hear the tributes paid in maiden speeches to the kindness of the staff and all the help they give new Members in coming to terms with their new surroundings. We know that those words of thanks are not empty, and that the tributes are expressions of gratitude sincerely meant. I believe that we are very fortunate, and that it is entirely appropriate that the staff should be recognised in this way this afternoon.

I should like to mention two former members of staff who have served the House in different, but equally important, roles. First, I mention Lenny Lenaghan, who served as a doorkeeper here for 15 years. Lenny joined the House after a 30-year career in the Metropolitan Police, which included a period as part of the police force that protects us here in the Palace of Westminster. I shall always remember an incident one afternoon when he spotted me, seated just outside the Bar of the House, in need—I am ashamed to say—of being kept awake. He thrust an Order Paper into my hand, which I still have, on which he had written in capital letters the words, “The TV camera will have you on it”. When I apologised to him the next morning for falling asleep, he replied, “Just thinking deeply, my Lord”. This was typical of the firm but tactful way in which he kept us all in order. Lenny retired as one of the four senior doorkeepers in July this year, and we wish him and his wife, June, a very long and happy retirement.

Next, I should like to mention Gail Munden. Gail joined the House in June 1998 as a temporary personal secretary to the noble and learned Lord, Lord Steyn, and myself on the Law Lords’ corridor. We both thought very highly of her and were delighted when she was made permanent in July 2000. In 2006, as the plans for the transfer of the judicial function of the House of Lords to the Supreme Court were being put in place, she was faced—like others, including Jackie Mouzouros—with a very difficult decision: should she move, or should she stay? Gail decided to stay here and accept a position that was then on offer in the office of the Clerk of the Parliaments. This proved a very happy choice as, shortly afterwards, she was promoted to senior personal secretary. She remained in this post, where she made many friends, until her recent retirement in October. Gail is a trustee of the Archer Community Centre, a community building near where she lives in Essex. The building was recently saved from a state of disrepair by Gail and other volunteers, and I understand she intends to continue to devote much of her time to that project in her retirement. We wish her well.

I end by adding my own thanks to all the staff and wishing them, and all noble Lords, a very happy Christmas.

House adjourned at 5.05 pm.

Psychoactive Substances Bill [HL]

Lord Hope of Craighead Excerpts

Tuesday 14th July 2015 Lords Chamber

I hope that, by the time this Bill reaches the other place, the Minister and his colleagues will find language which delimits and denotes much more precisely and exactly the drugs which are the evil that we are trying to protect our young people’s health and lives from.

[Lord Hope of Craighead (CB)]

My Lords, the noble Baroness, Lady Meacher, is right to avoid the use of the word “novel” or “new”. The problem is that what may be new or novel today may not be so next year. What we are seeking to do in this legislation is to create a series of criminal offences, and the prosecutor will need to be very precise in leading evidence to satisfy the requirements of the definition. A solution along the lines suggested by the noble Baroness, supported by the noble Lord, Lord Howarth, avoids that word, which lacks the precision that is needed. Of course, the word new or novel is widely used in common parlance, but that is not really the test that should be applied for legislation such as this. I am therefore sure that the noble Baroness was right to find some other form of wording, and the one she has suggested avoids that difficulty.

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I want to make two quick points as a codicil to this important group of amendments. I strongly support the attempt of the noble Baroness, Lady Meacher, to insert the word “synthetic”. As a former pharmacy graduate—non-practising—who studied such things, to me, the word “synthetic” makes perfect sense in this context, and it would make the Bill a lot clearer. I also support the amendments in this group that would reintroduce the concept of harm, which the 1971 legislation introduced in a way that has stood the test of time. Indeed, I am behind the thrust of all these amendments.

My noble friend Lady Hamwee referred to the Committee stage of this Bill, which the ministerial team dealt with in an exemplary way; it listened very carefully and did the best it could. But any Member of this House who has had the advantage, as some of us have, of reading the recent letter from Professor Les Iversen and the Home Secretary’s response of a few days later, will be left, as I certainly am, with a real concern about the difference in tone between the two approaches taken. I and many others expressed the concern in Committee that the Advisory Council on the Misuse of Drugs was being written out of the script. I use that harsh language deliberately, although I am not blaming the Minister.

On the second page of his letter, Professor Iversen says:

“The ACMD … wishes to present its concerns that the Bill, as drafted, may not achieve its aims”,

which is a pretty fundamental thing to say,

“and may produce serious unintended consequences”.

The heading of the subsequent paragraph states:

“The omission of the word ‘novel’ has widened the scope of the Bill”,

which all of us on my side of the argument were arguing against with the Government Front Bench. The heading of the next paragraph states:

“The psychoactivity of a substance cannot be unequivocally proven”.

Again, with my academic background, I support that view, which is the one taken in Committee. The heading of the next paragraph states:

“The Bill uncouples the concept of harm from control of supply, importation and production”,

which is the point that the noble Baroness, Lady Meacher, and others were making.

What relationship do the Government really have with the ACMD, given that they seem to be so far apart? We had a manifesto commitment which talked in yellow journalese about,

“a blanket ban on all new psychoactive substances, protecting young people from exposure to so-called ‘legal highs’”.

That is the kind of language we would see in manifestos, and a few short weeks or months afterwards we get this Bill, which seems a long way away from Professor Iversen and his colleagues. That is a concern to me. I do not blame the Minister, by the way, but that is a concern that this House is right to reflect on Report. Admittedly, there are proceedings in the House of Commons and I am sure that the Minister’s approach in Committee—the way that he was prepared to pick up points and reflect on them—will continue. I have been in this business a long while and I can see a long distance between these two bits of correspondence. The Minister has some work to do to persuade this House on Report that that gap is not dangerous and that people may not get hurt unless this is sorted out before the final passage and Royal Assent of this Bill.

--- Later in debate ---

[Lord Elton (Con)]

My Lords, I have a very small question to ask relating to the definition of harm, which is qualified by the word “social”. I wonder what in fact that constitutes. If a drug results merely in the inability of the user to sleep satisfactorily or if it interferes with his learning but does not, as a general effect, cause him to disrupt those about him, is it still a social harm? It seems to me that self-harm is a dangerous product of these drugs and it would be a great pity if individuals taking them were not protected when we have the opportunity to do so by a definition which included that which harms the individual as well as society. This is a lawyer’s question. I hope that the noble and learned Lord, Lord Hope, might be able to lay my fears to rest; otherwise, either the Minister or the mover will doubtless do so.

[Lord Hope of Craighead]

My Lords, I am not sure if I am allowed to speak again on Report but I am challenged here. The words in the amendment are “social problem”, not social harm. I think that may be an answer to the noble Lord. They are different phrases, with different meanings.

[Lord Mackay of Clashfern (Con)]

My Lords, I have no particular difficulty with the first amendment concerning “synthetic”, and I think I indicated that to the Minister some time ago before it was actually formulated as an amendment.

However, I have considerable difficulty with the second amendment and how it is going to work. If somebody produces this material and that production is to be a crime, in the general view I have about the law he must at least have the means of finding out whether what he is doing is criminal. The difficulty that has been expressed before in relation to these psychoactive substances is that they are produced so quickly and changed so quickly and the harm is done so quickly that the Misuse of Drugs Act can hardly catch up with them. That is a very serious problem.

I agree very much with what the inspector has said in his report about the difficulty of prisons. Indeed, I have been told before that there are considerable difficulties with the input into prisons, by whatever means, of these legal highs. They certainly seem to have the effect of producing considerable violence, which is undoubtedly a social problem if ever there was one. How is this to work? The Advisory Council on the Misuse of Drugs will have to give advice. Will that not create exactly the same difficulty as the attempt to use the Misuse of Drugs Act to control these legal highs has proved to have in the past? That is the need and reason for the production of the Bill.

The noble Lord, Lord Howarth of Newport, said that the definition is very wide. My view is that, on the whole, the legal effect of a definition is rather more related to its precision than to its particular width. In some cases, the definition of what is made criminal is very wide indeed—as undoubtedly it should be to encompass many methods of carrying out the offence. I cannot see how the mechanism suggested here is going to be capable of working, given the problems that exist. I have been trying to think of how this could be modified but so far without too much success, except that something depends on the intention of the laboratories producing these substances. What are they doing it for? Are they intending to help people to sleep well or behave well and so on? I think they are probably not.

The purpose for which these substances, which may be synthetic, are produced seems highly relevant but it is quite difficult to get at defining an offence by reference to that. However, if the purpose for which the substance is produced is something that the state considers should be criminalised, that is a possible way to define an offence. That would at least have the effect of it being decided in relation to the time of production. It might not be possible to prove it immediately but the essence of it would be something that has happened before that production was put into the hands—or the body, one way or another—of the person receiving it, which is part of the crime that the Bill seeks to establish.

Immigration: Detention

Lord Hope of Craighead Excerpts

Thursday 26th March 2015 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a tribute to the noble and learned Lord, Lord Lloyd of Berwick, that so many excellent speeches have been given in his honour today. I first met him when I was appointed to the House as a Lord of Appeal in Ordinary. We sat together in the Appellate Committee over many years in many distinct cases. The case that comes to my mind as demonstrating the essential humanity of the man whose departure we regret so much is an intellectual property case about the design of teddy bears. I do not know whether he remembers the case, but along to us was brought one of these teddy bears so that we could see the exhibit and understand what the case was all about. At the end, moving rapidly, as he often does, with the assistance of a doorkeeper the noble and learned Lord was able to seize hold of that teddy bear and take it into his possession. I hope very much that he still has it with him and that it will be a companion to him in his retirement.

I am very much in sympathy with the main thrust of this report and welcome many of the points that it makes. That is for a particular reason: it was my practice when I was the Lord Justice General in Scotland to visit as many of the prisons and detention institutions in Scotland as I could, because I felt that I had to know about the conditions there to do my job as Lord Justice General. During the seven years that I held office, I managed to visit all but one of the institutions and one or two of these visits stand particularly in my memory.

One of them was about 20 years ago to a block in a prison in Greenock, if my memory serves me correctly, where a large number of asylum seekers were being held in detention in the Scottish immigration detention centre, pending decisions as to whether they were to be deported or released. I remember being struck by two things. The first was the wholly inappropriate conditions in which these unfortunate people were being held. They can best be described as mid-Victorian, with the most primitive of cells and the most basic of facilities. The second was how totally abandoned these individuals appeared to be. I can still see in my mind’s eye the group of people to whom I was introduced. They were just standing about in a corridor like lost souls. There was nothing for them to do. Unlike convicted prisoners, who, as the noble and learned Lord will know well, can be given work to do and whose time will be occupied with education, work or something like that, there was nothing that could be done with them. They were simply there. There was nowhere to go and nowhere to sit down except in their own cells. Few of them could speak English. They seemed to have no idea why they were there and certainly no idea how long they were going to be there. They put questions to me and to the prison officers who were with me that we simply could not answer. I found it deeply depressing and it has remained in my memory ever since, which is why I am so much in sympathy with the work that the committee did and the points that have been made.

Things have moved on a little bit, at least in Scotland, because people who are being held under these arrangements now are being detained somewhere else, in Dungavel, which is mentioned in the report. It is much better suited to the purpose. When I did my travels around these places, it was an open prison. At one time, it was the home of one of Scotland’s most distinguished families—indeed, a Member of your Lordships’ House, the noble Lord, Lord Selkirk of Douglas, is said to have been born there, I think because it was the family home. Of course, it lost some of its original charm when it was turned into an open prison, but at least it had a rural setting and the kind of breadth to it that meant that it felt quite unlike a prison. That at least is some advance. It is a less intimidating place and there are many places where people can move around and sit down and live more or less like normal people. I have not seen the regime since then and I do not know how matters are being handled there, but I was saddened to see on page 47 of the report the problem, which affected people at Dungavel, of people being moved about “like furniture” without concern for their individual position.

There is not time to go into the issue about timing, except to say that the challenge that this report has set for the Minister and the Government means that the way to deal with it has to be by a radical rethinking of the whole idea of the use of detention from the very beginning. We should not put people into detention until it becomes really necessary to do so. The tragedy is that people are put there like furniture, as was said in the report, and once they are there it is extremely difficult to get them out, for the reasons that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned. There is real value in the report and I greatly welcome it.

Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015

Lord Hope of Craighead Excerpts

Monday 23rd March 2015 Lords Chamber

These regulations are needed effectively to implement the Prevent duty across England, Wales and Scotland, which will ultimately help the Government and law enforcement agencies to keep the country safe from terrorism. I commend them to the House and I beg to move that they are approved.

[Lord Hope of Craighead (CB)]

My Lords, I very much welcome these regulations and I am grateful to the Minister for his explanation. He may remember that when we were debating the Bill, which has now become the 2015 Act, I tabled a number of amendments to try to advance the Scottish position, which was difficult because no Scottish institutions were yet mentioned in the schedule. That meant that I felt a little inhibited in pressing the points that needed to be attended to.

I am particularly grateful to the Minister and those who have been advising him for the way the Scottish matters have been dealt with in Regulations 4 and 5. Regulation 4 deals with a technical point which I had thought about raising but it seemed a little too fussy at the time; namely, that a mandatory order, which was being provided for in the Bill and, subject to this amendment, is still in the Act, is not available as a means of enforcing a court’s orders in Scotland. As Regulation 4 correctly puts it, a proper mechanism is,

“by an order for specific implement”.

Had it been necessary to do so, I would have moved that amendment myself. I did not trouble to because I was quite sure that someone would pick it up if the need arose and I am very glad that that has been attended to.

It is pleasing to see how the definition of the duty to ensure freedom of speech has been expressed in Regulation 5, particularly as it mentions visiting speakers as well as,

“members, students and employees of the institution”.

The wording of that provision, which chimes very well with what I and others were attempting to achieve in the debates on the Bill, is very welcome.

Finally, the Scottish guidance is significantly lighter-handed than the English. In particular, the way higher education and further education institutions are dealt with is significantly lighter because a good deal more trust exists between the Government in Scotland and the institutions with which they are dealing. However, looking at paragraph 60 in the Scottish guidance, it occurred to me that further guidance was being anticipated to deal specifically with the problem of visiting speakers. The Minister mentioned that in his summary. I look forward to seeing what comes out of it, but I hope very much that those who are framing the guidance in Scotland will continue to deal with this with a light-touch mechanism. They are dealing with people of good will who know exactly what they are seeking to achieve and who do not need very much detail—just enough to point the way the universities should go in setting out their mechanisms. I am quite certain they will follow the guidance if it follows the kind of pattern we see in the guidance before us today.

For all these reasons, I am extremely grateful to the Minister and those supporting him for what has been achieved in these regulations.

[Baroness Brinton (LD)]

My Lords, I follow the comments just made by the noble and learned Lord, Lord Hope, by saying that one of the benefits of both new sets of guidance, for England and Wales and for Scotland, is that the tone is very different. That is enormously helpful. I am also very grateful for my noble friend’s comments about the final decision on external speakers being made by the next Government.

However, I would ask the Minister for absolute clarification on one point. I know that there have been discussions outside your Lordships’ House following the consultation on exactly what would happen if agreement were not reached on the thorny issue of external speakers. Could my noble friend give reassurance that the guidance to higher and further education would be withdrawn completely should such an agreement not be reached? Clearly, the reference within the guidance makes it absolutely clear that this is one of the Government’s major concerns.

I would be very grateful as well if our thanks could be passed back to the Minister’s civil servants for the hard work involved in accepting the many thorns in the flesh that your Lordships’ House has provided in the detailed discussions of this, especially given that the Commons did not have the chance to talk about the detail of the guidance when it considered the matter.

--- Later in debate ---

[Lord Bates]

That is a good point. Procedures need to be set out to ensure that the nursery has guidance in place detailing how it will implement Prevent and what it would do if a three year-old said, “My sister is going off to Syria”, or something of that nature. What would it do if a child made such a comment? Does it have a procedure for dealing with that? To whom would it report that and what action would it take? That is probably not the best example as I have just thought of it and I am sure that the officials will probably send me 10 far better examples. However, I am just trying to appeal to the common-sense elements of this. If such an incident should happen, do nursery staff have a procedure in place to deal with it? I think that is all that would be required of nurseries. The noble Baroness raised a very fair point about Ofsted. I am afraid that I do not have the answer at this stage but it is a good point and I will ensure that I write to her on it. I have tried to address as many of the points as possible—

[Lord Hope of Craighead]

Will the Minister clarify the intention on commencement of the various provisions? I see that Regulation 2 states that the regulations will,

“come into force on the day after the day on which they are made”.

I am not sure of the procedure, but if we approve the regulations, does that mean tomorrow or is there some period during which they will lie awaiting further making? It is important because Regulation 3 states that the guidance for both England and Wales and for Scotland will,

“take effect on the day on which this regulation comes into force”.

The guidance as we have it at the moment is guidance, absent the bit about dealing with visitors to universities, and so on. That is referred to in paragraph 60 of the Scottish guidance. I think the Minister was saying that it was not until the complete package was before us that the provisions would come into force. As worded, it would suggest that we have the regulations as they stand. If that is the position, can we take it that the further guidance will be brought before Parliament in further regulations, which would give us an opportunity to debate it? That might be a neat way of dealing with it. I am not quite clear about the procedure and the timing of these various measures.

[Lord Bates]

That is a very good point. I thank the noble and learned Lord for probing further on that. I repeat the answer that I gave in part to the noble Baroness, Lady Brinton. The intention is that these provisions will come into effect on 1 July. I also said that what would be required is for that further regulation-making order, relating to speakers and events, to be in place for that to happen. If that was not in place, the provisions could not come into force as intended on 1 July. That date would have to be changed, presumably in a further statutory instrument that would come before the House. We hope that that will not be necessary, but the current intention is that these provisions will come into effect on 1 July, provided that that important additional element of speakers and events has been passed by your Lordships’ House.

European Public Prosecutor’s Office (EUC Report)

Lord Hope of Craighead Excerpts

Thursday 19th March 2015 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I congratulate the noble Baroness, Lady Corston, and her committee on the work they have done and on their very timely report on this rather troublesome issue. For the most part, I welcome the response by the Home Office to the report. I particularly welcome the Government’s decision not to opt in to the Commission’s proposal to establish a European public prosecutor’s office. I am delighted that the committee has taken the opportunity in paragraph 6 of its report to endorse that proposal.

I last worked on Sub-Committee E about 15 years ago. At that time, the splendidly named OLAF had only just been born and Eurojust was still in the course of being conceived. It was being talked about, but had not yet come into existence. Now that they have grown up, as it were, it is a real pleasure for me to cast an eye over them to see how they are getting on. As it happened, last October I attended a seminar in Florence, at which one of the delegates was from Eurojust. We enjoyed a conversation over dinner, at which she spoke with real enthusiasm about the contacts which she had in the course of her work with prosecutors in the United Kingdom. As I spent some time when I was at the Bar as a prosecutor in Scotland, I was particularly interested in what she had to say about her contacts with the Lord Advocate’s department. Here, too, she was enthusiastic about her contacts with that department and the practical value which she saw in those contacts.

Your Lordships would get much the same message if they were to read the written evidence which the committee received in March last year from Frank Mulholland QC, the Lord Advocate, to which brief reference is made in paragraph 37 of the report. He tells us that the serious and organised crime division in his department, which has an international co-operation unit, participates fully in the work of Eurojust and OLAF. That unit liaises regularly with colleagues abroad in relation to investigations and prosecutions in Scotland, as well as providing assistance to colleagues from other jurisdictions in their own investigations. He tells us that it has successfully used the assistance of Eurojust in a number of serious and high-profile cases, especially those, as in the case of VAT fraud, which are especially complicated.

The Lord Advocate describes the work that Eurojust does in the co-ordination of investigations of the different member states when dealing with cross-border crime as “extremely valuable”. He says that his department also has experience of working with OLAF and that it too carries out much valuable work, although it is fair to say that he adds that difficulties have sometimes arisen because OLAF was not engaged at a sufficiently early stage of an investigation to meet the procedural requirements of Scots law.

If I have any criticism of the report, it is the tiny point that it did not make a little more use of the Lord Advocate’s criticism. As I have said, it gets only one very brief mention in two sentences in paragraph 37. The essence of that evidence is accurately summarised in these two sentences, but it might have been helpful if some more references had been given to his evidence in the later passages dealing particularly with OLAF and Eurojust. Of course, it is possible to trace the evidence online with the assistance of the reference in footnote 98. I am particularly grateful to our Librarian for being able to do this for me. I encourage the Minister and his team to do just that, and to read what the Lord Advocate has to say. That is because one does get from it some valuable insight from someone who as a prosecutor is really in touch with what is going on on the ground.

May I mention briefly some of the points the Lord Advocate makes because I think that they add force to the points made in conclusions and recommendations 6, 7, 8 and 9, with all of which I respectfully agree? The first point is that his department does not see the need for the creation of the EPPO. It is perhaps a bit late in the day to make that point, but it does underline the good sense of the decision not to opt in to the proposal, and the reasons why he makes it are worth stressing. He says:

“There are many challenges to overcome where criminal jurisdiction is potentially viable in different Member States and the diverse rules of evidence within Europe bring their own barriers. Whilst it is recognised that organised crime is not necessarily related to a specific Member State and that the fight against crime needs to be addressed Europe wide, without an evidence based assessment relating to why existing measures and national procedures and practices are not sufficient it is difficult to come to the conclusion that a European Public Prosecutor’s Office would be able to prosecute cases more effectively than individual Member States”.

It is worth stressing the different evidential rules which arise from state to state. The complications for a central office trying to deal with that are fairly obvious. He also makes the point that,

“there is scope for further improvements to be made in the investigation and prosecution of frauds against EU interests through better use of Eurojust and OLAF and by improving working practices between Member States and those organisations”.

He believes, and one can see the force of this, that:

“It is logical that Member States use the current structures available to their full extent before consideration is given to establishing a new body with such far reaching powers”.

As for the impact that the creation of an EPPO would have on a non-participant member state, the Lord Advocate makes the point several times that there is a lack of sufficiently robust evidence to demonstrate that such an office is required. This reinforces the point made in conclusion 6 that the Commission has failed to address the EPPO’s impact on OLAF and the knock-on effect for non-participating member states. As the Lord Advocate sees it, there is a lack of information which makes these effects difficult to assess. He sees real difficulties, whichever model is adopted, whether it is exclusive competence to the EPPO in matters affecting the EU’s budget or a competence that is shared with member states. Either way, conflicts of competence or jurisdiction will arise, which would be a recipe for confusion and delay and would play into the hands of offenders and their defence teams. As the Lord Advocate puts it, a system that gives exclusive competence in some cases and a shared competence in others would result in confusion as to who is dealing with which offence, which would be highly undesirable.

As for the effect on Eurojust and OLAF, here too there is a lack of sufficient information. That is why the assurances referred to in recommendations 6 to 9 are so necessary. There is real cause for concern. This would not be so if the functions of Eurojust were to remain as they are, as Scottish prosecutors would still have the access they enjoy at present, but that is not what seems likely to happen if the proposal goes ahead.

I warmly support what the report says in these recommendations. It is important that the Government take an active role in the development of the proposal. I hope that they will draw strength and guidance from the points made by the Lord Advocate, to which I have referred. I stress that they are not motivated in the least by any kind of Euroscepticism on his part. On the contrary, he is all in favour of inter-state co-operation. He has seen on the ground the benefits that that can bring in combating fraud conducted across borders. The points are essentially practical ones made by someone who really does know what he is talking about,

--- Later in debate ---

[Lord Bates]

I do not think that is the particular effect that I was thinking about in this context. Clearly we have a system that works to a degree at the moment with Eurojust and OLAF as the two bodies that then refer back, in our case, to the Serious Fraud Office and the newly established National Crime Agency, which is doing very good work in tackling fraud of this nature. They are then prosecuted through a court in the UK. It is more that operational level which the Government are thinking about at this time.

[Lord Hope of Craighead]

I am grateful to the Minister for allowing me to intervene. The point that really gives rise to concerns for the Lord Advocate is confusion about competence and jurisdiction. At the moment we have complete clarity as to which body is entitled to prosecute in our courts. They have a complete understanding, rights of audience, and so on. Introducing this outside body would give rise to differentials and demarcations. That in itself would give rise to disputes and we would have a sort of preliminary session as to whether one body or the other should prosecute, which gives rise to delay. So it is not really a matter of resources so much as a matter of confusion, which is why the call for further detail is really so important and why I still support the line that the Government are taking.

[Lord Bates]

That very clearly makes the point that we are talking about, and perhaps explains why it has been impossible to find a way forward so far. I would also mention some of the challenges, which may be insurmountable, in trying to progress down this model. The Government are absolutely committed carefully to watching the negotiations and ensuring that our interests are defended.

The noble and learned Lord also asked about shared competence. Ideally member states would retain competence. It is the only way in which they could contain the elements of the Commission’s proposal that they favour. An independent prosecutor would investigate cases inside member states free of bribery and corruption. We believe that that would be the only way in which the EPPO would add any value to the fight against EU fraud. The UK would prefer the EPPO to have as little competence as possible.

In response to a number of questions raised particularly by the noble Baroness, Lady Corston, in her introduction, it is worth putting on the record and restating the fact that the UK Government are absolutely committed to the fight against fraud. We certainly cannot envisage any circumstances in which it would be tolerated that the UK could become a safe haven for fraud. We are expressing confidence in our own legal systems and existing cross-border co-operation to ensure that that does not become the case.

Counter-Terrorism and Security Bill

Lord Hope of Craighead Excerpts

Wednesday 4th February 2015 Lords Chamber

Moved by

[Lord Hope of Craighead]

14: Clause 25, page 17, line 31, at end insert—
“( ) The general duty under subsection (1) is subject, in England and Wales, to the duty in section 43(1) of the Education (No. 2) Act 1986 (freedom of speech in universities, polytechnics and colleges), and in Scotland, to the need to ensure that freedom of speech within the law is secured in universities and other further and higher education institutions.”

[Lord Hope of Craighead (CB)]

My Lords, it falls to me to move Amendment 14 which is the first of five amendments in this group. I want to make it clear that the fact that I am speaking first and that my name is listed first on the amendment has nothing to do with the relative quality of the contributions which I and the three noble Baronesses who have added their names to this amendment made in Committee. My contribution was much lighter than theirs and I am sure they will have much more to say as the debate develops.

This group also contains Amendment 15, in my name and in the names of the noble Baronesses, as well as government Amendment 15D which is a significant amendment. It has been designed to meet some of the concerns which have been expressed about freedom of speech—especially academic freedom of speech in higher education institutions and, in particular, in universities.

As became clear in Committee, there are three aspects to this problem. The first is how to reconcile what the Government are proposing in the Bill as it stands—the duty which is being imposed on universities and other higher education institutions by the provisions of Section 43(1) of the Education (No. 2) Act 1986. This is a duty to secure freedom of speech in the institutions listed in this subsection. That is the first chapter, on how to reconcile these apparently competing duties.

The second deals with how to achieve the same reconciliation in relation to Scotland, bearing in mind that Part 5 of the Bill applies to Scotland just as it does to England and Wales, and that the 1986 Act does not extend to Scotland so there is no statutory duty on the universities and other institutions in those terms. Nevertheless, one would think—having regard to Article 10 of the European Convention on Human Rights, among other things—that the right to freedom of speech was just as powerful in Scotland as it was in the other jurisdiction.

The third point relates to how to reconcile the duty to secure freedom of speech with the guidance being proposed in the consultation paper. On the first point, I pay particular tribute to the Minister and his team for the way in which they have responded to the particular problem about reconciling the two competing statutory provisions. They have done so with commendable speed, given the rate at which we have been proceeding from Committee to Report. For my part, it seems that Amendment 15D, which the Minister will speak to later in the group, deals exactly with that point and makes it clear that the two duties can live together in the way in which the amendment describes. I express gratitude for what the noble Lord is proposing, which is a step in the right direction, although a small one.

My amendment is divided into two parts. The first deals with the position in England and Wales in relation to the 1986 Act; the second deals with the position in Scotland. That matter is not addressed by Amendment 15D, nor was it mentioned in the very helpful letter that the Minister wrote on 3 February which explains the reason for Amendment 15D but does not deal with the points that I raised about Scotland. I shall briefly repeat what I said in Committee. I drew attention to a fact that we are all aware of: that education north of the border is a devolved matter. We are dealing with a statute that deals with a reserved matter, the prevention of terrorism. There is an obvious need to reconcile these two matters, which no doubt is being achieved by discussions with the Scottish Government and consideration as to how best to meld the Scottish position with that for England and Wales.

The problem to which I tried to draw attention was this: the vehicle that is being used for the Prevent system, both north and south of the border, is all built into Part 5 of the Act. One would like to think that one would find everything one needed in statute to deal with the Scottish position, as one certainly does for dealing with the position in England and Wales. It is the absence of a reference to Scotland and the need to preserve freedom of speech, and at least respect the right to it, that have caused me concern. I raised this in Committee but so far there seems to be no answer.

There is a real puzzle about what exactly the Government’s thinking is about the position in Scotland, because the Bill is silent about it. It may be that because of the shortness of time the necessary discussions with the Scottish Government have not yet been completed; indeed, I would understand the need for those discussions to proceed to a solution. If that is the reason, then my fears would be allayed to some extent. But one is still left with the problem that the Bill will leave this House—and, if nothing is done about it, will no doubt leave the House of Commons as well—without anything in it that addresses the problem. With respect, that seems to be an unsatisfactory situation, bearing in mind that one is trying to achieve exactly the same thing in Scotland as one is seeking south of the border.

So there is something missing here, and I would be very interested to hear the Minister’s explanation of what is being done to address the situation. My suggestion when we talked about this last time was that once the Bill is enacted, I imagine that the only way one can deal with the Scottish position, if it needs to be dealt with, is by fresh enactment, which is a very heavy-handed way of dealing with the problem. One would rather see the matter dealt with now before the Bill leaves Parliament and is enacted.

--- Later in debate ---

[Lord Bates]

I am grateful to my noble and learned friend for that intervention. He hit upon a real issue, and we are going to have to write on that point. When exploring how to indicate that the commitment to free speech is to be taken seriously and nothing should take away from that, we did not want effectively to phrase the amendment in such a way as to say, a bit like Universities UK, “You can now just disregard it because you can claim everything is free speech and therefore do not need all the rest of it”. This is a serious thing that the Government are saying. We believe that there is a particular risk and that universities ought to have due regard to it. We would like that to be done consistently. That was the reason that we landed upon to,

“have particular regard to it”.

This answers the noble Lord, Lord Hannay, and with this I will sit down. You cannot have a debate of this quality, with such incredibly perceptive points being raised, and not be open to it. As I hope I have demonstrated throughout this process since we began our journey at Second Reading, I have tried to listen and have due regard to the views expressed in your Lordships’ House—and nothing will change on that. We will reflect very carefully on the particular points raised. Of course, if there are ways in which we can tighten the language that we use and points to take on board, we still have time to do that, but we feel that in putting forward Amendment 15D, we have something that can give real reassurance to universities in this regard.

[Lord Hope of Craighead]

My Lords, in view of the hour which we have reached, I am sure that all noble Lords would like me to bring this debate to an end as soon as possible. First, I thank all noble Lords who have spoken. This has been a debate of very high quality, and many interesting points have been raised. I am most grateful for the answer the Minister gave on Scotland, which satisfies me. We can no doubt return to that by order, if necessary.

As for the rest, I think that it is a search for clarity. I ask the Minister to bear in mind the contribution of the noble and learned Lord, Lord Mackay of Clashfern, and the point made by the noble Baroness, Lady Williams of Crosby, when she was complimenting the Minister on Amendment 15D. I think she said, “We are not there yet”. In a way, that sums up the essence of the debate. Many points have been made in various ways and many questions have been asked which the Minister clearly has not been able to answer. I think we are reassured by the open mind which he expressed in his concluding words. In view of that, the proper thing for me to do is to beg leave to withdraw the amendment.

Amendment 14 withdrawn.