§ 9.5 p.m.
§ The Lord Brabazon of Tara
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Brabazon of Tara.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMIEES (Baroness Nicol) in the Chair.]
Clause 1 [Applications of criminal law to United Kingdom-bound foreign aircraft]:
The Minister of State, Home Office (Baroness Blatch) moved Amendment No. 1:
Page 1, line 8, leave out from ("inserted") to end of line 9 and insert (""or (subject to subsection (1A) below) a foreign aircraft".").
§ The noble Baroness said: In moving the amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 2, 4, 6 and 7 which are tabled in my name. Amendment No. 2 is the core of this series of amendments. It imports into the Bill the principle of dual criminality. The effect of the amendment is to limit the jurisdiction of the courts conferred by this Bill to those offences committed on board foreign aircraft whose first landing after the commission of the act is in the United Kingdom, where the act in question is an offence both in this country and in the state of registration of the aircraft.
§ The United Kingdom regularly opposes attempts by other countries to impose their laws on United Kingdom companies or nationals, when outside the territory of the state concerned. There have, for example, been attempts recently by some countries to impose their laws on the conduct of people in British aircraft flying to their countries, to the detriment of the airlines concerned. We resist these attempts by foreign states to impose their laws on our companies and therefore we cannot seek to impose our laws on others in similar circumstances.
§ The purpose of the Bill is to give our courts the power to hear cases where an offence takes place on board a foreign aircraft. In almost all cases, the kinds of crimes which are, regrettably, committed on board aircraft will have the requisite dual criminality.
§ Some noble Lords at Second Reading expressed concern that the inclusion of a dual criminality provision in the Bill would make it more difficult to investigate offences and convict offenders. Of course I should not have proposed such a provision without first consulting those who will prosecute those offenders. However, in view of the concerns expressed by some noble Lords at 1232 Second Reading, and following a constructive meeting with my noble friends Lord Hacking and Lord Brabazon and the noble and learned Lord, Lord Wilberforce, I have gone back to the prosecuting authorities to put the points to them. I am pleased to report to the Committee that the prosecuting authorities consider that the dual criminality provision, as expressed in the amendments, would give rise to no significant difficulties in the prosecution of offenders.
§ The last part of Amendment No. 2 inserts a new subsection (1B) into Section 92 of the Civil Aviation Act, which provides that an act or omission punishable under the law in force in any country is an offence under that law for the purposes of dual criminality however it is described in that law. This provision together with the provisions of Amendment No. 4 should make it more simple to determine the requirement of dual criminality. Under the provisions of Amendment No. 4, the dual criminality test is deemed to be satisfied unless the defence shows grounds that it is not. If the defence is able to show grounds that the test is not satisfied, it will then be for the prosecution to prove that it is, though, in the Crown Court, that will be a matter for the judge alone to decide. These provisions taken together should ensure that the dual criminality test places no undue burden on the prosecution.
§ Amendments Nos. 1 and 6 amend the definition of foreign aircraft in the Bill. The amendments are necessary to ensure that all non-British controlled aircraft are covered by the term "foreign aircraft", even those which have no official state of registration. Amendment No. 1 in effect deletes the definition in the unamended Bill and Amendment No. 6 inserts the new definition.
§ Amendment No. 7 is consequential to the change in the definition of foreign aircraft achieved by Amendments Nos. 1 and 6. It concerns the powers of a consular official to investigate offences on board a foreign aircraft and restricts that power to situations where the courts would have jurisdiction over the offence. I beg to move.
§ Baroness Mallalieu
There are two aspects of this group of amendments which the noble Baroness has just introduced which concern me.
§ Baroness Blatch
I am grateful to the noble Baroness for giving way. I wonder whether it might be for the convenience of the Committee if we discussed the two amendments that are amendments to my amendments and then had one debate on the amendments to my amendments and my group of amendments. That might cut down the time we spend on the Bill.
§ The Deputy Chairman of Committees (Baroness Nicol)
That is a rather complicated procedure to try to follow. I think it might be better if we proceeded in the normal fashion. As I understand it, I shall call Amendment No. 2 and then the amendment to it.
On Question, amendment agreed to.
Baroness Blotch moved Amendment No. 2:
Page 1, line 9, at end insert—
("() After that subsection there shall be inserted—
(1A) Subsection (1) above shall only apply to an act or omission which takes place on board a foreign aircraft where—
(1B) Any act or omission punishable under the law in force in any country is an offence under that law for the purposes of subsection (1A) above, however it is described in that law.".").
§ The noble Baroness said: I beg to move.
Lord Hacking moved, as an amendment to Amendment No. 2, Amendment No. 3:
Line 13, at end insert—
("(1C) The Secretary of State may by order made by statutory instrument, subject to approval by resolution of each House of Parliament, repeal subsections (1A)(b) and (1B)".").
§ The noble Lord said: If this is a convenient moment to address the Committee on my amendment to my noble friend's amendment, I certainly do so. In tabling this amendment and addressing the Committee on it, I was trying to find a position between the Bill as introduced by my noble friend Lord Brabazon and the position that my noble friend the Minister has taken in her amendments. I was trying to find a compromise position.
§ The effect of my amendment is exactly the same as the effect of my Amendment No. 5, and that is to give an opportunity to the Government—after the Bill, hopefully, has come into law and the dual criminality test has come into being—to review the progress of this Bill and how the dual criminality test is working. Then, if the Government find that there are difficulties—I am concerned that there are difficulties both in substantive law and procedural law—it will give the Government an opportunity to address that without having to go back to primary legislation. It is by the affirmative resolution so there would have to be a resolution affirmatively put before both Houses of Parliament. It is not something that we are going to slip under a secondary legislation door, but it is nonetheless an easier way, in my submission, for the matters of difficulty, that I apprehend exist in my noble friend's amendment, to be dealt with.
§ The precedent for this lies in the Arbitration Bill which has recently passed through this House. In Clause 88 of that Bill precisely such a device was used and approved by noble Lords to deal with the problem of domestic and international arbitrations. Clause 88 of the Arbitration Bill gives power to the Secretary of State to remove this distinction between domestic and international arbitrations after the further consultation period which the Minister of State agreed to undertake. Under my amendment the Government would be in that position without having to come back to the House with primary legislation. That is the purpose of my amendment.1234
§ I am entirely in the Committee's hands. Perhaps it would be convenient if I commented on my noble friend's amendment. If the Committee would like me to make those comments later, I shall do so. However, I wished to explain to the Committee the purpose of my amendment.
§ 9.15 p.m.
§ Baroness Mallalieu
This might be an appropriate moment for me to raise my anxieties in relation to the whole of the debate on various options raised by the amendments. Two aspects of this part of the suggested changes to the proposed legislation cause me concern.
First, I believe that we are all most anxious that the Bill should reach the statute book with as few obstructions as possible to the successful prosecution of those who commit crimes in the air. I am, therefore, concerned that Amendment No. 2 introduces into the draft Bill the concept of dual criminality which must necessarily mean that acts and omissions which are crimes in this country, and are committed on an aircraft bound for the United Kingdom which then lands here, cannot be prosecuted here.
I hope that the noble Baroness will be able to reassure me. I should like to know from where the impetus for this change to the draft Bill comes. Have the other countries which have already introduced legislation of this nature—I understand from the debate at Second Reading that they include the United States, Canada, Australia, France and Belgium—included dual criminality in their legislation? If so, can the Minister tell us whether difficulties of proof or delays in prosecutions—I am concerned about both if these changes are made—have resulted?
If those countries have not incorporated dual criminality into their legislation, why is it necessary for us to introduce it into ours? It will undoubtedly cause a legal complication in some cases. For my part I should like to be further reassured that it is a necessary and beneficial change.
My other anxiety at this stage concerns Amendment No. 4. The Minister was good enough to write to me and to other noble Lords. In her letter of 19th April she said:The amendments are drafted in such a way as substantially to shift the burden of proof onto the defence which must show grounds for believing that the behaviour which is prosecuted is not a criminal offence in the country of origin".My reading of Amendment No. 4 is that the burden of proof does not shift. Indeed, I would be greatly concerned if it did. What Amendment No. 4 appears to establish is a presumption that the act or omission constitutes an offence under the law in the country of registration unless and until the defence contends otherwise, either by notice or, if it does not give notice, with leave of the court. In that case, the prosecution is required to prove that it is an offence. As I read Amendment No. 4, it is not for the defence at any stage to prove that an act or omission is not a crime in a foreign country. In other words, the burden remains on the Crown to prove that it is a crime if there is any query about it.
1235 I am always concerned about criminal legislation which is introduced in which the burden of proof is placed on the defence. It seems to me to be contrary to the general principles of our criminal law, to be generally undesirable and permissible only in exceptional circumstances.
I hope that the Minister will be able to reassure me, notwithstanding the wording of her letter, that under the proposed amendments it will not be for the defence to prove that the matter was not a crime in a foreign country and that, if there is any query, the burden remains on the Crown to establish the matter.
Those are my concerns. I hope that the Minister may be able to meet them.
§ Lord Brabazon of Tara
I am grateful to my noble friend for having introduced the amendments. I am grateful to her also for having sent me, and I think others, explanatory notes on the amendments, together with a most useful copy of the Bill as it will appear if and when these amendments are carried.
I have listened to the arguments on all sides as regards dual criminality. My principal aim is to make the Bill as simple as possible. We should be able to prosecute the people who committed the crimes to which I referred at Second Reading and make it as easy as possible for them to be brought to book.
On the other hand, like my noble friend I oppose the efforts of certain foreign governments to introduce extra-territorial legislation which does not always suit our book. In my experience in the Department of Transport, I came across issues where there were difficulties with a government on the other side of the Atlantic and also governments in other parts of the world. Therefore, to include the issue of dual criminality is worth while, it does not give other governments a stick with which to beat us about the head, if they try to introduce extra-territorial legislation which does not meet with our approval. For example, there is the issue of smoking on board aircraft bound for the United States and drinking alcohol on board aircraft bound for certain countries to the east. There are other cases where something is clearly not an offence in this country and we would not wish to see such an activity banned on our aircraft, but nor would we wish to give the government at the other end the opportunity to say: "Well, you did this with your legislation, therefore we can do it with ours". I do not say that it will prevent them doing it; it attempts to do so and at least it leaves us fireproof.
My noble friend gave me the assurance which I wanted to hear that the prosecuting authorities perceive no problem with the additional measure. There will be no difficulty in prosecuting those who commit offences when they arrive in this country. I believe that the extra subsection which puts the burden of proof on the defence is useful.
As to the other amendment on the definition of "foreign aircraft", it is helpful in that foreign aircraft is defined as anything which is not British. That is straightforward and simple. I find it hard to understand 1236 that any aircraft would arrive in this country with no registration; but if my noble friend thinks it might be a problem, then who am I to argue? As the noble Baroness, Lady Mallalieu, said, we want as few obstructions to the provisions as possible and no delay in prosecutions. I hope that with the assurances that my noble friend has given, it will be the case.
In his Amendments Nos. 3 and 5, my noble friend Lord Hacking seeks to introduce a procedure for removing the hurdles to an affirmative instrument. I have no view other than that, like anyone who sits in this House, I am well aware of the resistance of the House to secondary rather than primary legislation. We shall have to see. If there is a problem, then it will be necessary for the law to be changed. However, from what has been said, I do not foresee a problem and therefore I wholeheartedly support the amendments moved by the Minister.
§ Baroness Blatch
First, I shall respond to the amendments of my noble friend Lord Hacking. I am grateful to him for explaining the purpose behind his amendments, and I recognise the anxieties which lie behind them. However, the Government are convinced of the need for a dual criminality test and that is why I have brought forward amendments to introduce it into the Bill. As I said, we do not seek to export our criminal law to other countries, and we believe it essential to preserve ourselves against attempts by other countries to impose their laws on us. If we were not to do that, we should leave ourselves very vulnerable. As I have already made clear, I do not believe that the dual criminality test will in practice cause any difficulty in regard to the sorts of criminal behaviour which have led the Bill's sponsors to come forward with their proposals.
I have given an assurance to my noble friend, which I hope he will accept, that, if the requirements of dual criminality introduced in the Bill do, nevertheless, prove unworkable, we will certainly look at the matter again. But that cannot be anticipated in the manner proposed by my noble friend. While subordinate legislation is often a very useful device, we do not consider that it would be right. First, that is a well-established principle on the part of the Government, and an important one. Were the provisions to be repealed, our view is that that should be done through primary legislation.
The issue of protecting ourselves from the territorial incursions of the laws of other countries is important. I know that Members in another place will agree that it is a matter of fundamental importance. The place for any proposal which might compromise that protection is, as I have just said, in primary legislation.
Perhaps I may take this opportunity to respond to the noble Baroness, Lady Mallalieu. As I made clear earlier, the prosecuting authorities have no significant concerns about this procedure, for which there is an exact precedent. I do not believe that the courts would lightly set aside the requirement on the defence to give notice of the intention to challenge dual criminality grounds and to set out the grounds for such a challenge.
However, the noble Baroness is absolutely right in her interpretation of how the law would work. I spoke in my letter about shifting the burden of proof. I was 1237 referring to precisely the point made by the noble Baroness. We are creating a presumption that the conditions for dual criminality have been met; and it would be for the defence to serve notice of a claim that it has not been met and to seek leave of the court. So the prosecution would then be required to prove to the court that the dual criminality condition had been met. The noble Baroness's interpretation is absolutely right. To give just one example of a precedent, the Computer Misuse Act 1990 contains an exactly similar provision. I am not aware, again, that it has caused any difficulties.
I turn to the other point made by the noble Baroness about other countries, and in particular America. We know that the Americans have not introduced dual criminality. We also know that that has caused a substantial degree of concern to a number of other countries. My understanding is that the United Kingdom has joined 17 other countries in protesting to the United States about the fact that it has not introduced dual criminality. I cannot give any particular instance of any of those countries having in fact introduced it; however, it can be inferred that, if they are concerned about the US not having introduced it, they must consider it an important principle. While I cannot name the countries, I can say that a number of countries are concerned about the fact that dual criminality is not an issue for the United States. We assume that it is an issue for those 17 countries.
The Government take the view that this is an important measure that should be on the statute book. I hope that my noble friend will feel assured that we will monitor the working of this Bill and believe that to be important. I should be the first to say, if we thought that either spurious legal delays or administrative burdens were getting in the way of this measure being used in a sensible way and in the manner we all wish, that we should want to return to it.
§ 9.30 p.m.
§ Lord Hacking
I should like to intervene again and address my concerns in a little more detail. I believe they are important and that the Committee should be addressing them now. Therefore I am somewhat disappointed that my noble friend the Minister is not accepting the opportunity that I am giving her to monitor the performance of this Bill and to test the difficulties that have already been expressed to my noble friend in the meeting that she kindly convened, and which I express again now.
My noble friend talks about this being a well-established principle. I take it that she refers to the dual criminality test. She speaks of an exact precedent, and then refers to some computer legislation. Unfortunately, I have not had an opportunity to examine that. But, other than that precedent, I certainly do not know of the dual criminality test as an established principle of English law.
Perhaps I could just remind my noble friend that her office, the Home Office, issued a paper on these proposals. It was a paper that was commenting upon an Opinion which I wrote with two very learned counsel—two more learned counsel than myself: Mr. Robert 1238 Webb, QC, who is listening to this debate, and also Mr. David Hart. When this opinion was being considered by the Home Office there was a reference to some other part of it to do with the Extradition Act 1989. This is what the Home Office paper says,there are two drawbacks to [the mechanism in] the Extradition Act of 1989. It only applies where an act is committed which is an offence both in the country of jurisdiction and in the UK.So in March of 1995 there was perceived to be a difficulty in using the device of the Extradition Act to deal with a problem which we were addressing in this opinion of June of 1993, because—and I stress "because"—of the dual criminality issue. Therefore it is somewhat puzzling to hear that my noble friend is speaking of this as a well-established principle. It is a principle which has been tried out in the Sexual Offences Bill which is going through the House; but so far as I know, it is not an established principle.
As your Lordships know, a number of other countries have been addressing the issue of crime in the air for a number of years. And, as your Lordships know, the United States of America, Canada, Australia, France and Belgium—to cite five countries—have-all had in place for some time legislation which gave extra-territorial jurisdiction to crimes committed on foreign aircraft landing at their airports.
I should say specifically concerning the United States of America that that legislation has been in existence for 40 years. So far as I know—and my noble friend will correct me if I am wrong—there has not been one single protest by a British airline or another foreign line over the United States exercising this extra-territorial jurisdiction. Indeed, it has been welcomed by airlines flying into the United States of America because it is the captains of those airlines who radio ahead to the airport of destination, who ask for the assistance of the federal agents, and who are grateful to have that assistance. Therefore, to present this as something that is intrusively extra-territorial in my submission is not the correct way to identify this issue.
I have difficulty as to the procedural aspects which the noble Baroness, Lady Mallalieu, addressed to your Lordships and I also have difficulties on the substantive law. Perhaps I may start with the procedural issues because the noble Baroness raised those in her speech to your Lordships. Then my noble friend said that the view of the noble Baroness about the burden of proof not shifting from the prosecution to the defence was a correct interpretation. We have at least established that.
The difficulty of this Bill is in its application. I am aware that views have been expressed by the prosecuting authorities but, nonetheless, it is helpful for all of us who have some experience in these matters also to express our views. The noble Baroness, Lady Mallalieu, has immense experience in dealing with criminal matters. She stayed at the Bar many years after I left, and very successfully too. The trouble arises when one looks at the actual application of this proposed measure.
When a person has allegedly committed an offence on an aircraft, when the arrest at the gate at the request of the aircraft commander has happened and when the 1239 alleged offender has been taken into custody, he may well be an offender who, for example, does not speak English. So the first thing that has to be done is to tell him that he has rights under our law. Those rights are for the defence to serve a notice on the prosecution setting out whether, in the defendant's opinion, this is an offence—not in his country—but in the country of registration of the aircraft.
Secondly, he has to show that there are grounds for that opinion. How on earth can a non-speaking alleged offender in a cell at Heathrow comply with all those requirements without assistance? He will need some form of assistance. He will probably not be eligible for legal aid and there will be language difficulties. From the beginning there are difficulties for the alleged offender. We pride ourselves, do we not, on having a law which is fair in its prosecution process and fair to all defendants?
In my submission, the very beginning of the process presents difficulties. Then, because the burden of proof rests with the prosecution, the difficulties are taken over by the prosecution—the difficulties being that the prosecution then has to go through a process of proving that the offence which allegedly took place in the aircraft is an offence also in the country of registration of the aircraft. That will require expert evidence, an affidavit from a person who is qualified to give an affidavit in the law in the country of registration and possibly the production of statutory law from that country and so forth. So it opens up many procedural difficulties. Most significant of all, as I have tried to emphasise to the Committee, it introduces a process which is not fair on the accused and places a burden on him. Even if the burden of proof does not shift, it still places a burden on that non-speaking alleged offender who is now in a cell at Heathrow or Gatwick Airport. But there are also substantive difficulties. The laws of other countries are not the same as ours. I am not speaking about the more complicated realms of law which also ought to be addressed: laws relating to conspiracy, fraud, telecommunications and so on.
Let me just deal with the kinds of incident that can occur on an aircraft. They rarely occur, but when they do they are extremely unpleasant for all the passengers and crew and cause a great deal of upset. I cited a case at Second Reading concerning threatening behaviour when the offending passenger did not physically hit someone but put his fist in the face of a couple travelling with a child and threatened to hit them in front of the child. It caused a great deal of distress. Under English law such threatening behaviour is an assault because one does not have to hit someone physically to commit an assault. One has to have the capacity to carry out the physical violence and that is sufficient.
Under French law, for example, that is not per se an offence. Therefore, there could be a situation of a serious assault—threatening behaviour by a passenger in an aircraft which is extremely offensive to another passenger—which is an offence under English law but is not under French law; so in that example the accused could not be prosecuted.
1240 Let me give one other example which concerns sexual offences. Unfortunately, offences of a sexual nature happen on aircraft. Some of them are extremely unpleasant. One case was cited by my noble friend, relating to the near rape of an air hostess.
In the time available to me, I have not been able to carry out any full research. However, I must tell the Committee that the age of consent to sexual intercourse for women under the law of Thailand is 15 years. Even more worrying is that there is no limit on the age of consent for males. So a sexual offence can take place with a consenting male down to the age of a baby and that is lawful under the Thai law, as it has been conveyed to me. For another example, under Turkish law it is permissible for a male to have sexual intercourse at age 15 years on a consensual basis and for a woman at 14 years. Both those ages are again beneath our ages of consent.
Those sorts of things can happen on an aeroplane, and the result of the introduction of these amendments by the Government is that the prosecution process cannot go through. That is unsatisfactory, and for that reason I am asking my noble friend the Minister at least to take the opportunity to get some experience about this issue.
The news will not go back very easily or very frequently from the cell in Heathrow with a non-English speaking alleged offender. This is not something which will see the light of day very easily, as all of us who have been involved in the prosecution process know.
I feel strongly about this. However, I feel more strongly that this Bill should go onto the statute book, even if it does have what I believe to be the imperfection of the dual criminality test. I truly want the Government to have the freedom to keep this under review. That is really the emphasis I am placing upon this matter. I give way to my learned friend.
§ Lord Brabazon of Tara
I am not your learned friend; I am your noble friend. I might have an advantage not being a lawyer and trying to inject a bit of common sense into this Bill.
Will my noble friend expand on his point about sex between consenting adults on a Turkish basis if the age of consent is 15? Quite honestly, if two consenting Turks are on a Turkish airliner coming into this country, what business is it of ours to say what they should do? It may be an offence in this country and undesirable as far as we are concerned, but what business is it of ours?
§ Lord Hacking
It is the business of anybody who is concerned when an offence has been committed on an aircraft which is an offence under English law.
I will cite just one example. I will not name the airline, but there was a sexual activity which took place in an airliner which was flying from London to Chicago. That sexual activity caused such offence to some passengers that there ended up being a fight in that aeroplane. When the aeroplane arrived in Chicago, not only were the two persons who perpetrated the act arrested—and they were both well over the age of consent for the activity they were indulging in—but it 1241 ended up at the gate of Chicago airport that six passengers had to be arrested by the police for the disturbance that had been created in that aircraft.
We do not live in an isolated world. It may not upset my noble friend that certain forms of activity take place, but it does offend other people. The purpose of our laws is to create stability, and particularly in relation to this Bill to create stability in an aircraft.
§ Baroness Blatch
I note how strongly my noble friend feels about these matters, but some of his case is rather exaggerated. The concern that he has about somebody who does not speak English arriving in this country accused of an offence on board an aeroplane being somewhat disadvantaged is true. But that disadvantage is just as much a disadvantage whether the condition of dual criminality has to be met or not. It is nevertheless something which has to be dealt with. I can say to my noble friend that the person will be entitled to legal aid; he will be entitled to an interpreter if he cannot speak the language; he will be entitled to put the prosecution to prove dual criminality if there are grounds upon which he can do so. Again, that is unlikely if the offence is what we expect it commonly to be; that is, one of assault.
There are other examples. The Criminal Justice Act 1993 contains the provision and, as my noble friend said, the sexual tourism Bill which is going through this House and another place, also contains it. Work is going on within government on the extension of territorial jurisdiction. It would be quite wrong for us to include in this Bill alone the provision proposed by the noble Lord, Lord Hacking, that, if it turns out in practice not to be working very well—having already given the promise that we shall be monitoring it—the Home Secretary can exercise a power to remove the provision.
We have taken the view that it is an issue; that it should be monitored; and that it should be addressed if it turns out to be a problem. We oppose attempts by other countries to impose their laws on the United Kingdom. We have a strong view that if we are not to include dual criminality in this Bill, we leave ourselves vulnerable. We know that the Americans are anxious to impose their laws on other countries and it is for that reason that, not only the United Kingdom, but also 17 other countries, are extremely concerned that the Americans did not include dual criminality in their own laws and are making protestations on that matter.
My noble friend made much of sexual offences on board aeroplanes. I note the point that he made. However, I do not share his view that the introduction of the dual criminality test will cause difficulties in the prosecution of sexual offences. Non-consensual sexual offences such as rape and sexual assault are, of course, offences in foreign countries and in the case of those offences, which I know are crimes which rightly concern the Bill's sponsors, the dual criminality test will in practice cause no difficulty. Under the Bill, the vast majority of sexual offences committed on board foreign-registered aircraft will be offences which will come within the jurisdiction of our courts.
1242 I am aware that the age of consent for sexual intercourse differs throughout the world. In some countries it is lower than in the UK; in others it is higher. But that is a matter for the authorities of the country or territory concerned, as my noble friend Lord Brabazon said, which will no doubt have framed their legislation in the light of the social and moral climate of their own societies.
If we were to seek to take jurisdiction over sexual acts which were not offences in the country in which the aircraft was registered we would, in effect, be exporting our own laws. Parliament would be claiming authority to legislate in respect of conduct which takes place elsewhere and which is not considered to be an offence in the place where it occurs. No doubt Parliament would resist attempts by the legislative bodies of other countries to purport to legislate for conduct which takes place within its jurisdiction and it would wish to consider very carefully before taking such powers to itself.
I do not believe in practice that that is likely to be a problem in relation to the operation of this Bill. An offensive act (albeit consensual) performed in the presence of other passengers, is likely—by the very fact of being done in public—to constitute an offence in other jurisdictions, as well as in our own. It is inconceivable that some of the more serious acts referred to by my noble friend—if they were consensual and were so disturbing and offensive to other passengers—would not become some form of public order offence and therefore could be coped with under the Bill.
My final point is in no way intended as a threat; it is a matter of fact. We wish to support my noble friend's Bill. It is a good piece of legislation. It will go a long way towards addressing some of the anxieties held by the carriers of passengers by air. But the Government are not in a position to accept my noble friend's amendments. If he insists on the Committee accepting them, we shall have to withdraw our support for the Bill as amended by those amendments.
§ Lord Hacking
It is my turn to take a position on my amendment. I do not intend to press my amendment. In addressing the Committee, my desire was to draw attention to what I believed to be the difficulties under substantive law and under procedural law following through on the comments made by the noble Baroness, Lady Mallalieu. I have advanced those arguments. I have cited one case. It can result in a public order issue. In the time available I have not had time to research the matter. An enormous map has been opened up on which to consider each and every criminal act, whether it is a criminal act in any country of the world which has registered aircraft which fly into this country.
I certainly do not want to part company from my noble friend—I shall cease calling him "my learned noble friend" because he does not seem to think that that is a compliment. He is to be congratulated on bringing this Bill before your Lordships. On the basis that I have made my concerns known, I beg leave to withdraw my amendment.
1243 Amendment No. 3, as an amendment to Amendment No. 2, by leave, withdrawn.
On Question, Amendment No. 2 agreed to.
Baroness Blatch moved Amendment No. 4:
Page 1, line 9, at end insert—
("() After subsection (2) there shall be inserted—
(2A) The requirement in subsection (1A)(b) above shall be taken to be met unless, not later than the rules of court may provide, the defence serve on the prosecution a notice—
(2B) The court, if it thinks fit, may permit the defence to require the prosecution to prove that the requirement is met without the prior service of a notice under subsection (2A) above.
(2C) In the Crown Court the question whether the requirement is met is to be decided by the judge alone.".").
§ The noble Baroness said: I beg to move.
§ [Amendment No. 5, as an amendment to Amendment No. 4, not moved.]
§ On Question, Amendment No. 4 agreed to.
Baroness Blatch moved Amendment No 6:
Page 1, line 10, leave out subsection (3) and insert—
("() In subsection (5), after the definition of "British-controlled aircraft" there shall be inserted—
'foreign aircraft' means any aircraft other than a British-controlled aircraft;".").
§ On Question, amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Provisions as to evidence in connection with aircraft]:
Baroness Blatch moved Amendment No. 7:
Page 2, line 3, leave out subsection (2) and insert—
("() In subsection (4), for the words from "any" to "Kingdom" there shall be substituted "—
§ On Question, amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3 [Short title and extent]:
Baroness Blatch moved Amendment No. 8:
Page 2, line 8, leave out subsection (2).
§ The noble Baroness said: This amendment removes the commencement provision in the Bill. The effect is that the provisions in the Bill will come into force immediately the Bill receives Royal Assent. This is a sensible Bill which gives our courts much needed powers. We are grateful to my noble friend Lord Brabazon for bringing the Bill before the House. I hope the Committee will agree that its provisions should be available to the courts at the 'earliest possible moment. I beg to move.
§ On Question, amendment agreed to.
§ Clause 3, as amended, agreed to.
§ House resumed: Bill reported with amendments.