Last Thursday during the report stage of the Coroners and Justice Bill, the House of Lords considered the writings of Jean Genet, the French novelist and playwright, who based his works on his earlier life of crime. The House was debating whether the Bill should include restrictions on the publication of criminal memoirs.

In his novel The Uncommon Reader, Alan Bennett imagines the Queen as a devotee of literature. At a State Banquet, she asks the President of France about Genet: “Homosexual and jailbird, was he nevertheless as bad as was painted? Or, more to the point, was he as good?” Even Bennett must have been surprised to see that the recently published letters of Isaiah Berlin include correspondence in 1957 recording that at a lunch with the Queen he “pressed the merits of the works of Genet”. Now Her Majesty is to be asked to give Royal Assent to a Bill that ignores the lessons taught by Genet.

Part 7 of the Bill authorises a court to make an “exploitation proceeds order” to recover from a person who has been convicted of an indictable criminal offence sums earned by writing about the offence, or using it as the basis of any other form of expression, from sculpture to an interview with a magazine. An application for such an order will need the consent of the Attorney-General. The court will then have a discretion, taking into account a range of factors, including “the social, cultural or educational value of the activity or product” and “the extent to which any victim of the offence or the family of the victim is offended by the respondent obtaining exploitation proceeds from the relevant offence”.

Among the many speakers opposing Part 7 was Baroness Rendell of Babergh — the author Ruth Rendell. She pointed out that Genet’s autobiography of his criminal life in the 1920s and 1930s, The Thief’s Journal, and his novels and plays, all “exploited” his life of crime. And yet they contributed to public knowledge and debate about crime and punishment, and made a significant contribution to Genet’s own rehabilitation. Indeed, it is easy to think of other examples of memoirs that have been based on criminal activities, whether by Martin Luther King Jr, Nelson Mandela or Jeffrey Archer (I recognise there may be differences between these three cases).

The minister who had the difficult task of defending Part 7, Lord Tunnicliffe, pleaded guilty to not being able to debate with Baroness Rendell the merits of “a French novelist who I have never heard of”. He explained that the provisions were to be confined to the most serious offences, they would be used in no more than one or two cases a year, the court would have a discretion, and it was grossly offensive to victims and their families that criminals could exploit their wrongdoing. He emphasised that the Bill would not prevent publication. It simply provided a mechanism for taking away the financial gain.

Lord Borrie, the Labour backbencher who proposed an amendment to remove Part 7 from the Bill, was rightly unpersuaded by any part of this defence. How is a court supposed to assess the value of the publication and then weigh it against the offence caused by the financial gain? Such a scheme will be created for use in one or two cases a year, yet would be likely to have a substantial chilling effect on authors and others who are far less likely to use their criminal experiences for literary or artistic purposes if they fear that the financial proceeds may be removed. This would be damaging to the public interest and to the rehabilitation of offenders. And all of this for a reform that will not result in a single penny being paid over to the victims or the families: the Exchequer will keep any sums recovered.

It was also pointed out by Lord Borrie that the prison rules already impose restrictions on offenders seeking to publish information about their wrongdoing while they are in prison. In 2004 the Court of Appeal upheld those rules in a case brought by Dennis Nilsen, the serial killer, who was prevented from communicating with his solicitor about his draft autobiography. The most reprehensible offenders, such as Nilsen, will be in prison for a very long time.

Despite the overwhelming strength of Lord Borrie’s case, the Government won the vote in the House of Lords on Part 7, and so will get its way. Unless there is a surprising fifth act to this dramatic saga. Perhaps Her Majesty will take on the persona imagined for her by Alan Bennett and refuse to give Royal Assent to a Bill that will place handcuffs on literature and ignore Jean Genet’s words: “What we need is hatred. From it our ideas are born.”

The author is a practising barrister at Blackstone Chambers, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords

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