Serious Crime Bill [HL]

We have given notice that we object to Schedule 3 standing part of the Bill as yet another probing measure; we do not seek to excise it in practice. The offences listed in Schedule 3 are generally the statutory forms of incitement. We want to raise concerns mooted in discussions before Committee stage regarding the difficulties that could arise with the exclusion or disregard of some offences under this legislation. Earlier today, when the noble Baroness, Lady Scotland, responded to the first group led by Amendment No. 93, moved by my noble friend Lord Henley, she said that the Government would be considering whether other incitement-related offences might be added to the schedule. I found that very helpful. One of the reasons why we tabled a probing amendment was to ask the Government to explain, as we had done in Schedule 1, what was the motivation behind the list that we have before us. As the noble Baroness pointed out earlier,Clause 44(4) and (5) set out that a person cannot be guilty of encouraging or assisting an offence under Clauses 40 or 41 believing that an offence under Clauses 39, 40 or 41—all those offences listed in Schedule 3—will happen. What process should be followed where an offence is considered to overlap between the provisions in the Bill and offences in other statutes, for example the Offences Against the Person Act 1861 or the Public Order Act 1986? Which legislation would be considered to have precedence? Which one would be applied first? Perhaps both would. Do subsections (4) and (5) mean that the original Acts would take precedence? If not, will the prosecution have to justify his or her choice of legislation in court, or does it create an opportunity to hedge one’s bets and to go for both in charging? I notice that paragraph 21 of the schedule omits an offence of conspiracy falling within Section 5(2) or (3) of the Criminal Law Act 1977. The paragraph explicitly states that these are forms of conspiracy not affected by the abolition of the offence of conspiracy at common law. We will return to the issue of conspiracy in later amendments. For the moment, however, in the context of Schedule 3 stand part, can the Minister explain the benefits of what appears to be a piecemeal approach to legislation? It has been suggested to us that this exclusion is a significant gap, considering the changes the Government are trying to make. Why have they chosen to take this route? Why not repeal these offences, write them into the Bill and do it that way, rather than leave them to create what could be confusion later on? Could the noble Baroness, Lady Scotland, also explain how these provisions are intended to fit in with the Terrorism Act 2000, for which we see a Section 59 offence is excluded by paragraph 20. Can the Minister indicate what consideration the Government have given to how these provisions are to fit with the much anticipated counter-terrorism Bill this parliamentary Session? We hear that it is an on-off event, but we assume that one will have to be brought sometime during the summer. It is vital that we consider how these exclusions may affect the everyday implementation of this legislation. These are all probing questions and we look forward to the Minister’s explanation of the reasons behind the list in Schedule 6.