Coroners and Justice Bill
House of Commons debates, 26 January 2009, 3:36 pm
Michael Martin (Speaker)
I inform the House that I have selected the amendment in the name of the Liberal Democrats.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I beg to move, That the Bill be now read a Second time.
The measures in the Bill are designed further to strengthen and to improve confidence in our justice system, building on more than a decade of record investment and substantial cultural and institutional reform. As a result, crime is down by more than a third since 1997. This is the first Administration since the war to preside over a significant and sustained reduction in crime. The chances of being a victim are now the lowest since accurate recording began more than 25 years ago. This means that there were 4 million fewer victims of crime in 2008 than there were in 1998. Over the same period, many more offences have been brought to justice—nearly 1.5 million in the year to March 2008.
In the past, victims and witnesses fared badly within the justice system— prosecutors would barely even speak to their own witnesses, and victims and witnesses could be made to share a waiting room with the friends and family of the defendant. There was little or no help for vulnerable witnesses giving evidence. Since 1997, this Government have worked very hard to give a central voice and priority to victims and witnesses. We have increased investment threefold in support for them: for example, the amount for victim support alone has trebled. Victims have been given the legal right to minimum standards of service. There are victim personal statements in court and a victims' advisory panel to inform Government policy. We have made it easier and less traumatic for vulnerable and intimidated witnesses to give evidence in court.
Before I continue, let me say that I should have begun by welcoming Mr. Grieve to his new and elevated post as shadow Justice Secretary and shadow Lord Chancellor. I first noticed his quality and judgment more than 10 years ago when he was speaking vocally and eloquently in favour of what was then the Human Rights Bill. It is fair to say that ever since he has been a consistent supporter of what is now the Human Rights Act 1998 and the incorporation of those measures into British law. We congratulate the Leader of the Opposition on his judgment in elevating the hon. and learned Gentleman to this post. May I also put on record my thanks to his predecessor, Nick Herbert? We sometimes had our disagreements, but we had a very constructive relationship and I wish him well in his new post.
I have set out the Government's record in giving considerable support and improvement to the position of witnesses and victims, but there is plainly scope for further improvement. This morning, I made a written ministerial statement announcing the appointment of Sara Payne as victims' champion—an appointment made jointly by my right hon. Friends the Home Secretary and the Attorney-General and myself. The victims' champion is there to represent the views and concerns of victims and witnesses to Government, to the media and to Parliament and to challenge criminal justice agencies further to reform policies and practices in relation to them.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I am most grateful to the Secretary of State for his kind words of welcome.
Conservative Members welcome the appointment of a victims' champion, but would the Secretary of State care to comment on the fact that the victims' champion appears to be a temporary substitute in the absence of a victims' commissioner? I seem to recollect that a commissioner was first promised as far back as 2003 or 2004, yet we still do not have one. Is not the appointment of the champion an admission that the Government have not got their act together on this matter? [This section has been corrected on 11 February 2009, column 16MC — read correction]
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
No, it is not that, but I am pleased that the hon. and learned Gentleman welcomes this appointment. The Criminal Justice Act 2003 made provision for a victims' commissioner. There was a proper appointment process in 2005, but no suitable candidate was identified for the post, and it was decided that meanwhile the priority should be to build up and strengthen victims' and witnesses' services directly. I looked at the provisions in the 2003 Act and decided that they should be amended, and the Bill makes them rather lighter to ensure that less money is spent on what would amount to a bureaucracy for the commissioner. I hope that those changes commend themselves to the House and to the other place. Meanwhile, we judge that the gap should be filled by the appointment of a victims' champion. As soon as the Bill becomes law, we will take steps to begin the process for a permanent appointment of a victims' commissioner.
I shall now deal with each of the Bill's key provisions in turn, starting with coroners. In the past four decades there have been major reforms of both the civil and criminal courts, but the coronial service has so far remained unchanged. We consulted widely on the draft Bill and have listened carefully to the House, and the Bill will bring about the first major reform of the coroner service in more than 100 years. It will significantly improve the service for bereaved families, not least those of service personnel, and strengthen death certification procedures following the Shipman inquiries.
Angus Robertson (Parliamentary Leader (Westminster Group); Moray, Scottish National Party)
On overseas military deaths, the Secretary of State will be aware that there is currently no provision for inquiries in Scots law, but in recent months significant progress has been made in discussions on the matter between UK and Scottish Ministers. Will he confirm that the UK Government's intention is that they may table provisions during the Bill's passage to help to update the situation?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
Yes, I am happy to confirm that to the hon. Gentleman.
Paul Farrelly (Newcastle-under-Lyme, Labour)
On the deaths of service personnel, I share with many Members concern about the resurrection of private or secret inquests. They hardly seem in keeping with the Obama zeitgeist. May I give an example of a case in which the Secretary of State might have been prevailed upon to issue a certificate on the grounds of national security? In June 1994, a Chinook crashed on the Mull of Kintyre, killing four air crew and Northern Ireland intelligence experts. The families have been fighting to reverse the RAF board of inquiry's verdict of pilot error ever since. I knew Mike Tapper, the father of Flight Lieutenant Jonathan Tapper. May I urge the Secretary of State to explain fully the potential impact of private inquests on the possibility of getting to the truth about the deaths of brave servicemen and women in such cases?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I am just about to come to the Bill's provisions on the special certification procedure. I fully understand, as all of us do, the deep concern and anxieties of the bereaved families of that terrible Chinook accident in 1994, but it happened in the territory of Scotland, which is not directly covered by the Bill and where there have long been separate procedures for fatal accident inquiries.
James Gray (North Wiltshire, Conservative)
Does the Secretary of State agree that one aspect of military inquests about which bereaved families are deeply concerned is that the state can be represented by barristers, whereas they cannot except in exceptional circumstances and at the agreement of the Secretary of State himself? Does he agree that there should be room in the Bill for a clause allowing, or in fact requiring, families to be properly represented at inquests?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I understand the hon. Gentleman's concern, but the reason why successive Governments have resisted a general provision to make representation or legal aid available in inquests is that they are civil, inquisitorial inquiries. They are not judicial proceedings, and they work very differently even from other civil proceedings. That is why successive Governments have resisted the notion that legal aid should be made available. There are exceptions to that—I have been party to agreeing them—and although I do not give the hon. Gentleman an undertaking that we will accept an amendment on the matter, I certainly undertake that we will consider it.
Jeremy Corbyn (Islington North, Labour)
The Secretary of State must be well aware of the hurt caused to families when there is an inquest into a death in police custody, for example, and they cannot be represented because they cannot get legal aid. They therefore feel that they have all the powers of the state against them when they are merely trying to achieve truth and justice for their loved ones. Will he think again about the policy of denying legal assistance to people who are going through a terrible crisis in their lives?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
We are happy to think about it, but as I have said, there are some complexities. We must also consider the overall issue of cost, in the context that the legal aid budget for England and Wales is now the same amount that we spend on prisons, and legal aid per head in England and Wales is higher by a large margin than in any other country in the world, including common-law countries. That is the challenge that we face, but I understand the concern that has been well expressed by Members in all parts of the House.
I turn to the proposals in the Bill relating to coroners. There will be a new chief coroner, who will be a High Court judge and will preside over the reformed service and provide national leadership, and there will be separate independent inspection. For the first time, bereaved families and other interested parties will have access to a dedicated appeals system and will not have to rely on seeking a judicial review of an inquest. There will be far greater scope to transfer investigations from one area to another, taking into consideration the views and needs of bereaved families.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
We entirely welcome the list of proposals that the Justice Secretary has just read out. However, he knows that some anxiety has been expressed about the fact that the post of deputy chief coroner will not be available to those working in the coroners system. I am surprised about that, although it is clearly right that the chief coroner should be a High Court judge, and I hope that we can consider the matter carefully during the Bill's passage.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I have thought about the matter a lot during the Bill's drafting. I fully accept that there is much to be said in favour of what is in the Bill and also of the hon. and learned Gentleman's comments. I am open to considering amendments on the matter in Committee.
Let me now deal with what is plainly the most controversial issue in the Bill—the proposition that, in certain limited circumstances, inquests should partly be held in private. In some circumstances, it is in the interests of justice to hold such inquests partly in private— for example, to protect highly sensitive information, such as a police source or intercept evidence.
During the debate about previous proposals in the Counter-Terrorism Bill—the substance of the current proposals differs markedly from those—it was suggested that there was no need for special provisions and that we could rely, as the criminal courts do, on the public interest immunity certificate procedure. I want to outline a fundamental difference, which means that that argument cannot apply.
In a criminal prosecution, there are many occasions on which the courts receive applications for public interest immunity certificates. As Home Secretary and as Foreign Secretary, I signed several. In most cases, because they are carefully thought through, the court grants a PII and the sensitive information is thus protected and kept from the jury. However, sometimes the PII is not granted. In that case, it is open to the prosecution to withdraw altogether—that sometimes happens. The prosecution therefore has an option to proceed without the PII or withdraw in the public interest.
That option cannot arise in the case of an inquest. The need for an article 2 inquest arises when somebody has died in specific circumstances, not least, as the Bill spells out, when a person has died in the custody or the detention of the state. If the court was not willing to grant a PII, it would be improper for the state to abandon the inquest. That is why a proposal has been presented to introduce a special procedure to deal with the problem, which has become more significant in recent years because the courts have quite properly insisted that the inquests become article 2 compliant.
In a small number of cases, there has been significant difficulty in ensuring that coroners have access to all relevant information, including highly sensitive material, which cannot be made public. Agencies have used public interest immunity to refuse to disclose such material. To make the best of a difficult—and, in my view, unsatisfactory—situation, I am told that some coroners have worked with the relevant intelligence and security agencies to secure as much information as possible to ensure that a viable inquest could take place. In some circumstances, coroners have been shown withheld material in private, although they have not been able to make use of it. They have also been prevented by law from seeing any material protected by the Regulation of Investigatory Powers Act 2000, including intercept material.
We have developed the proposals because we believe that the current state of the law and process is unsatisfactory. It has resulted in two inquests being unable to proceed because the coroners cannot comply with their article 2 obligation to conduct a broad inquiry into the circumstances of deaths resulting from an act or omission of the state. Given that coroners' inquests are increasingly being used to discharge those article 2 obligations, it is likely that that will continue to pose a problem in a small number of cases in future.
I do not claim to the House that the provisions in the Bill are the last word—indeed, we are open to amendments. However, I ask hon. Members to acknowledge that there is a problem and that PII certificates will not tackle it. The state is not in the shoes of a prosecutor in respect of an inquest. As I have said, in the case of a criminal trial, the prosecution can be withdrawn, but in the case of an inquest, that cannot happen.
Part 1 of the Bill seeks to ensure that there is a proper legal basis for inquests to consider protected information. As I have already said, proposals relating to this first surfaced in the Counter-Terrorism Bill. However, the proposals in the Bill represent significant changes to those original provisions, and we have tried to take account of the criticisms that were made. We have narrowed the criteria for certification, and introduced a requirement that consideration must be given to every other way of preventing the material from being made public before the new measures can be used.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I appreciate that this is an area of some difficulty, but I am sure that the Secretary of State will be aware that one of the reasons for holding an inquest is to satisfy the families as to the circumstances of a death. In an article 2 case, the provision and presumption is that there should be a jury. Indeed, that follows almost automatically at present. Frankly, the Government's proposals are really no different from their convening a secret internal inquiry of their own and then saying afterwards, "We are satisfied that everything is all right." The proposals, as drafted, for the secrecy clauses and for the lack of a jury completely undermine the purpose for which an inquest is convened in the first place. There must be a better way of resolving the Secretary of State's dilemma than going down that road.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
If there is a better way, let us see it. I am not unsympathetic to the hon. and learned Gentleman's point, but I have looked at this matter. I am not saying that this is the last word, but this is a really difficult issue. I wholly reject his suggestion that the Bill provides for some kind of secret inquiry conducted by the Secretary of State. That is a parody of what it says. Moreover, as he knows, European jurisprudence—including the convention—does not require there to be a jury in any circumstances. We are very unusual, in England and Wales, in using juries as frequently as we do. That is a great strength of our system, but there is no requirement whatever, either in article 2 or in the Strasbourg jurisprudence, to do so.
David Howarth (Cambridge, Liberal Democrat)
The Bill does two different things. First, it removes the jury; secondly, it provides for an inquest to be held in private. Those are entirely different steps. The Secretary of State's arguments in favour of holding an inquest in private do not justify the removal of a jury, unless one believes that juries inherently represent some kind of security risk. Are not the Government taking the attitude that members of the public are incapable of keeping confidential the information that is put before them as jurors?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
In extreme cases—I can think of cases in which I myself signed public interest immunity certificates— there would be a grave risk of death for some individuals if certain categories of information were to be held by more than a handful of people. That point cannot be trivialised.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I will of course give way in a moment, but, if the House will allow me, I want to make a little progress.
We have narrowed the criteria, and there will also be a requirement that consideration must be given to every other way of preventing the material from being made public before the measures can be used. It is true that these provisions were not on the statute book at the time of the de Menezes inquest, but it was perfectly plain that every effort was made, successfully, to ensure that that inquest could take place without the need to resort to similar measures or for the inquest to be deferred. That will be the default setting, as it were, and it is set out in the Bill.
The Bill anticipates that any decision by the Secretary of State to certify an inquest will be subject to judicial review by the courts. I have no doubt that any such review would be thorough. Indeed, the provisions include a requirement for the Secretary of State to notify interested parties of such a decision, followed by a period of grace to give them the opportunity to apply for judicial review. If judicial review proceedings are brought, the Secretary of State's certificate will have no effect until they are concluded.
Last Session's Bill provided that the appointment of a coroner should be made by the Secretary of State, but there were many objections to that, which I fully understand. This Bill provides explicitly for there to be no involvement—and this is entirely correct—by a Secretary of State in the appointment, which is to be made by the Lord Chief Justice and should be of a High Court judge.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I shall give way first to my right hon. Friend Mr. Howarth, and then to other hon. Friends.
George Howarth (Knowsley North & Sefton East, Labour)
David Howarth spoke earlier about instances where the jury is removed from inquest proceedings. If, however, the case were important enough to be covered by a public interest immunity certificate—I realise that that is not what is being proposed—the information contained in it would almost by definition be of a sufficiently high level of secrecy that a jury would not be privy to it in any case.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
My right hon. Friend is correct. That is the problem and it explains why we run into the difficulties that I have outlined.
Chris Mullin (Sunderland South, Labour)
How satisfied is my right hon. Friend that if the secrecy option had been available in the de Menezes case, it would not have been used? I say that because the default position of those in authority when a mistake of that magnitude occurs is usually secrecy. My right hon. Friend will recall that in that case, the Metropolitan Commissioner wrote to the then Home Secretary the day after the shooting occurred and asked that there be no independent inquiry into the circumstances. He was apparently unaware that the Independent Police Complaints Commission was obliged by law to hold such an inquiry. The danger is that once one opens this little gap in the law, it will be exploited.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I do not deny the temptation, but it is for that reason that under clause 11(1)(b):
"The Secretary of State may certify an investigation... into a person's death if of the opinion that... no other measures would be adequate to prevent the matter being made public."
That is very explicit language and that provision would itself be the subject of very anxious scrutiny by the court on a judicial review of a Secretary of State's certificate.
David Davis (Haltemprice & Howden, Conservative)
I ask the right hon. Gentleman to come back to the issue raised by the Liberal spokesman, David Howarth. There have been instances in the past when jury trials have been held partially in camera—I am thinking back to times when the Soviet Union still existed and we had spy trials—and under those circumstances, of course lives were at risk. It was not always British citizens' lives, as agents in the Soviet Union and so forth were sometimes involved, yet jury trials were still held. Why is it not possible to reconstitute that sort of arrangement?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
There were indeed such trials, but it is also the case that in such trials, some of the evidence that was otherwise material was denied to the jury altogether by the exercise of a public interest immunity certificate. As I said to my hon. Friend Mr. Mullin, the starting point should be how to work round the existing system of having a jury, including having a hearing in camera as part of the proceedings, but one then gets to the point where, under criminal trials, including even those held in camera, the judge agrees that certain relevant information is not disclosable to the jury. That is the difficulty. As I say, I understand the fact that the House is uncomfortable about this provision; it is not one that I am particularly comfortable with myself; it is a real difficulty. What we have to do is to try to find a way through it.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I need to make some progress. I shall give way to my two hon. Friends, but then I must move on.
Joan Humble (Blackpool North & Fleetwood, Labour)
We all understand my right hon. Friend's problems with this issue, but I would like to return to earlier questions about the impact of these measures on service families. They are constantly told that they cannot have public inquiries, because they get answers to questions about the deaths of their loved ones through the coroner's inquest system. Now, however, they are told that they may only get a partial answer. Cannot my right hon. Friend understand the dismay felt by many service families about these issues?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
First, the number of such inquests would be very limited indeed—probably one or two a year, if that. I think it would be very rare for those to be held in respect of service personnel, for good reasons. I understand the concerns, and what the Bill overall does is greatly to strengthen the facilities, services and rights of bereaved families.
Andrew Dismore (Hendon, Labour)
One assumes that the exclusion of the public will extend to the family and relatives of the deceased. It is often difficult, even under normal processes, for such people to get closure when somebody has died in tragic and violent circumstances. In cases of the sort that we are talking about—the most sensitive of all—does my right hon. Friend really think that relatives will get closure when faced with an inquiry from which they have been excluded? Does he think that that complies with the requirements of article 2 of the European convention on human rights, particularly in the light of the case of Jordan, which said that families have to be involved in the inquest process?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
The families will be involved. We are talking about exclusion from only part of the inquest in very limited and very specific circumstances, not about secret inquests. I would also say that those inquests, where held, will be conducted by an experienced High Court judge. Although I understand the concern of families that they will not get a verdict of the jury, what they will get instead, which they cannot get from a jury, is a detailed, reasoned explanation running over many pages, and a review of all the evidence, such as can be made public, as to why the learned judge has come to the view that he or she has.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
If my hon. Friend does not mind, I need to make progress because this is quite a significant Bill.
May I go on to other aspects of the Bill? Part 2 deals with—
Anne Snelgrove (South Swindon, Labour)
I want to raise a point about the way that coroners have dealt with incidences of domestic violence and deaths following those. My right hon. Friend may be aware of the tragic case of Julia Pemberton, whose family live in my constituency. Last year, the Pemberton homicide review concluded in the body of its report that domestic violence training should be made available for coroners. Can my right hon. Friend give the family any comfort that his Bill will insist on such training for coroners?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
The Bill itself will ensure that there is a chief coroner, a charter for bereaved families and guidance given by me and by the Lord Chief Justice on how the coroner service should operate, so the short answer to my hon. Friend is yes.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I am sorry, but I am afraid that I must make progress, if my hon. Friends will allow me. I will give them an opportunity to come back when I have done so, if that is all right.
May I go on to deal with other aspects of the Bill? Part 2 proposes reforms to the law of homicide. In particular, it abolishes the partial defence of provocation and replaces it with a new partial defence, which applies to killings in response to a fear of serious violence and killings in response to words or conduct that cause a defendant to have a justifiable sense of being seriously wronged. Those provisions will not, as some have claimed, give abused women a licence to kill. They are designed, rather, to bring about just outcomes, irrespective of gender.
Let me turn to the law on assisted suicide.
Bob Spink (Castle Point, Independent)
Will the right hon. Gentleman ensure that the use of diminished responsibility in relation to murders will be accepted only where a recognised medical condition is restricted and predetermined by the House when hon. Members go through the Bill in Committee, and is diagnosed before the murder takes place?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I did not entirely follow the hon. Gentleman's question, but I will ensure that it is answered in full during the winding-up speech. It is wonderful being a Minister in my Department, and Ministers thank God every day for the post.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I will, in a second, but let me turn to the law on assisted suicide.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
Will the right hon. Gentleman give way, before he moves on to discuss assisted suicide?
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I am grateful to the right hon. Gentleman for giving way and I have to say that he has moved over the issue of provocation with a speed and nimbleness that rather belie the controversial and complex nature of the proposals. I appreciate that they may have to be looked at in Committee, but he will be aware that there is considerable anxiety about, for example, the proposal that sexual infidelity be excluded whereas so much else may be left to subjective views and the jury's reasoning. He will have seen what the former Lord Chief Justice said about that. Has he any comment to make at this stage that might help the House, and may we have an assurance that we will be able to examine this issue in considerable detail?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I am aware that there is much to be said about the issue on all sides, and I have thought about it very carefully. Of course it will be examined in great detail in Committee. I should be happy to make a speech for a couple of hours going into great detail now, but I fear that that would be considered an abuse of the privilege of the House.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I shall give way to my hon. Friend Emily Thornberry, but then I must make progress, or there will be complaints that I have spoken for too long.
Emily Thornberry (Islington South & Finsbury, Labour)
I am sure my right hon. Friend will know that many Members on both sides of the House are fully sensitive to the difficulties that he faces in trying to amend an inquisitorial system while also trying to protect security, but I am also sure he will agree that whatever qualifications, experience and brilliance High Court judges may possess, they have nothing in comparison with the good sense possessed by juries. I welcome the opportunity to work with my right hon. Friend in trying to find an alternative to restricting jury trial.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I take note of that.
Both the Law Commission and an independent review identified confusion about the scope of the law on assisted suicide. I have also received strong representations on the issue from my hon. Friend Mrs. Moon, whose constituency has suffered the terrible tragedy of a series of suicides. Part 2 does not substantively change the law, but it does simplify and modernise the language of section 2 of the Suicide Act 1961 to increase public understanding and to reassure people that the provision applies as much to actions on the internet as to actions offline.
In the past 10 years, we have developed much greater protection for children from sexual abuse, but we must keep the law up to date with technological changes. The Bill therefore provides for a new offence of possession of non-photographic images of child sex abuse, building on the existing law in respect of indecent photographs.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
Will the hon. Gentleman allow me to make some progress?
The Bill also completes unfinished business from the Criminal Justice and Immigration Act 2008 by proposing to remove the so-called freedom of speech amendment—which was inserted in the Bill in the other place at the last moment—in relation to the offence of inciting hatred on the grounds of sexual orientation. As the House will recall, that provision was defeated overwhelmingly by Members on both sides of the House—there was a majority of 200—but we had to accept the decision of the other place temporarily, because we had to secure Royal Assent by
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I give way to my hon. Friend David Taylor.
David Taylor (North West Leicestershire, Labour)
I am grateful to my right hon. Friend.
In the face of much Government opposition, the other place did indeed insert "free speech" clauses in the part of the Bill dealing with the offences of religious and homophobic incitement. Clause 58, the final clause in part 2 of this Bill, seeks only to remove the "free speech" exemption in relation to homophobic incitement. Is that not a rather asymmetrical approach, and is it likely to survive challenges in the other place?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I shall certainly take account of what my hon. Friend has said, but there are differences and I think that that has been accepted by the House when the matter was debated.
John Bercow (Buckingham, Conservative)
The creation of the offence of homophobic hate crime—courtesy of the Criminal Justice and Immigration Act 2008, the effect of which was to amend the Public Order Act 1986—was very sound, and commanded widespread support. It was designed to catch, among other things, despicable homophobic lyrics in reggae songs, such as "Hang lesbians with a long piece of rope" and "All gay men should die". May I put it to the right hon. Gentleman that the so-called free speech amendment was at best superfluous, and at worst deeply objectionable? Some—although not all—of its supporters would not even know how to spell the word "equality", let alone sign up to it. It is right that clause 58 should remove the exemption.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
A great many were on the Conservative Benches in the House of Lords. I shall pass on the hon. Gentleman's compliments to his noble Friends there.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I should like to make a little progress.
The offence of inciting hatred on the grounds of sexual orientation has a very high threshold. It currently covers only behaviour that is threatening and intended to stir up hatred. We are returning to this issue because we believe there are no circumstances in which the right of alleged freedom of speech should justify such behaviour.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
The one thing the Secretary of State has not told the House is why he thinks the proposed saving clause introduced in the other place in any way undermines the intention and ability to prosecute under the main part of the clause, which we support. Unless I can be persuaded that it does so undermine it, I think that, as a saving clause, it has a great deal of merit, particularly in view of past history, which shows that individuals who have sought to express perfectly reasonable criticism have received visits from the police.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I simply do not accept that. The movers of that amendment were very clear that the words meant something; they were intended to make a conviction very difficult indeed. That was the purpose.
Paul Beresford (Mole Valley, Conservative)
Clauses 52 and 53 relate to images used by paedophiles for their own excitement and for incitement. Clause 58 refers back to an earlier homophobic incitement measure, which can include the written word. Has the Secretary of State ever considered a similar law for paedophiles, in response to the appalling written material they use for similar personal and other incitements? If he has done, or is willing to do so, I will be happy to ask a certain well-known policeman in the Metropolitan police force to send him some copies of this disgusting stuff—and to do so directly, because I do not want to see it.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
We seek all the time to ensure that what this House and the public regard as obscene, objectionable and extremely pornographic and corrupting is covered by the law, and I am happy to sit down with the hon. Gentleman to see whether this provision and the other provisions cover what he has in mind.
Turning to part 3 of the Bill on criminal evidence, investigations and procedure, in July last year, with agreement from all parts of the House, we acted decisively to allow evidence in criminal trials to be given anonymously, following the Law Lords decision in the Davis case. During the passage of the Criminal Evidence (Witness Anonymity) Act 2008, I said that Parliament would be given a further and fuller opportunity to consider the legislative framework for the use of such evidence. Part 3 fulfils that undertaking by re-enacting that emergency legislation, with some changes. It contains proposals to build on the 2008 Act by way of an "investigation witness anonymity order". This new tool will enable the police to provide early reassurance to witnesses that their identity will be protected during and after investigations of gang-related homicide.
In January last year, while on bail awaiting trial for the alleged murder of his wife, Garry Weddell killed his mother-in-law before taking his own life. That case highlighted the desperately difficult decisions facing judges and magistrates every day in granting bail to murder suspects. My right hon. Friend the Prime Minister assured the House at the time that
"if any changes in the law are necessary, we will make them."—[ Hansard, 16 January 2008; Vol. 470, c. 925.]
Following a public consultation, part 3 sets out proposed changes to the law on bail, including the strengthening of rules on granting bail in murder cases and a requirement that the decision to grant bail in such cases is made by a Crown court judge. We believe that this strikes the right balance between protection of the public and protection of the rights of those who have not yet been tried. Combined, the measures in part 3 will ensure that the interests and safety of victims, witnesses and the wider public are put first, and that justice can be better in criminal cases.
On part 4 on sentencing, Parliament lays down the maximum sentence for every offence and, in a few instances, provides for minimum sentences as well, but the range of sentences for particular categories of offence is a matter for the discretion of the court. When I first looked at this issue in the mid-1990s, I found two things. First, for similar categories of offence and similar offenders, there were significant variations in sentence practice, unexplained by any factor other than the habits of different courts. Secondly, the guidance available to courts took the form of a digestion of decades of High Court decisions contained in dense textbooks such as David Thomas's "Current Sentencing Practice", which although an impressive and distinguished work of scholarship, now runs to five volumes.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
That is your fault.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I suggest that neither is the case—that work was already pretty substantial when I was in opposition.
The truth is that sentencing practice is complicated and is bound to be so, but I found that, without any other information, neither the public nor sentencers had a clear idea of the penalties for particular types of behaviour. That explains the significant variation in the attitude of the courts to similar offences and similar offenders. My view was that we needed a more explicit process, but one that fully respected the independence and discretion of judges and magistrates at the point of sentence. So, the Crime and Disorder Act 1998 established the Sentencing Advisory Panel. That was followed by the Criminal Justice Act 2003, which proposed the Sentencing Guidelines Council.
At the end of 2007, Lord Carter's review of prisons recommended the setting up of a working group to look at the advantages and feasibility of a structured sentencing framework and a permanent sentencing commission for England and Wales. In response, a working group was established under Lord Justice Gage, and I am extremely grateful to him and to his colleagues on that group. Our proposals in this Bill implement the unanimous and majority recommendations of that group.
Alan Beith (Berwick-upon-Tweed, Liberal Democrat)
Under the recently developed arrangements, the Select Committee on Justice has a specific role to play in examining proposed sentencing guidelines. How will Parliament be involved in this important process under the arrangements now being proposed?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
Those arrangements would continue and we are, of course, open to suggestions about how they should be strengthened. I have thought about whether there should be arrangements for Parliament to approve by affirmative order the recommendations or decisions of the sentencing council in this Bill—I think there would be many objections to that. I think that there are ways of strengthening the work of the Justice Committee, and we are certainly ready to consider those.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I should like to make a little progress first. The Gage working group rejected the introduction of a United States-style sentencing grid and instead called for the strengthening of the Sentencing Guidelines Council. We support that approach. That is why we propose the new council in part 4 of the Bill. One of the purposes of the council has been explained with admirable clarity:
"there should be a new, formal mechanism whereby the impact of proposed sentencing changes is assessed by an independent body, so that the Government and Parliament are properly informed about the decisions they take, and to ensure that they understand what resources will be necessary to deliver those changes. But that is entirely different to proposing that sentences should be limited by the resources made available by the Government after the framework is set."
That was the opinion of the hon. Member for Arundel and South Downs, when speaking in November 2007, and I wholly agree with what he said.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
The matter that the Secretary of State glosses over is that it is the intention, in setting up this structure, to fetter the ability of judges to exercise their discretion within the parameters laid down by the Sentencing Guidelines Council and by considerations relating to the Government's number of prison places, for example. That is a profound change, and I must tell him that it will come as a shock to the public, because it has been an established principle for a long time that judges should pass sentences that reflect the period that a person should serve in prison. Are we going to hear anything about that this afternoon or will it simply be brushed under the carpet?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
The hon. and learned Gentleman has just heard something about it, but he was not listening to the views of his party's former shadow Justice Secretary. What we are seeking to do is to reach a consensus on what he was proposing.
Alun Michael (Cardiff South & Penarth, Labour)
It is important that we examine what affects the public and not just what affects lawyers. Does my right hon. Friend agree that it ought to be made explicit that a sentencing council's work should include examining what is effective in cutting crime and reducing reoffending? After all, victims want to know, more than anything else, that they will not become victims again in the future. That has not necessarily been a prime focus of the courts system.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
Ensuring the effectiveness of sentencing will be an important role of the sentencing council. The majority of the council's members will be judges or magistrates. It will have a permanent judicial majority, which is one important reassurance. The council will have an enhanced role in collecting data and monitoring the operation and effect of its sentencing guidelines. It will provide independent assessments of the impact of Government proposals on correctional resources. It was that function that Parliament and many others sought so that Parliament would be told when it was proposed to change sentencing practice—
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
That is not the issue.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
It is part of the same issue. New proposals, wonderful though they might be, could result in increased demand for prison places, so the next question is whether the money is available to pay for them. That is a sensible way to proceed. The improved collection of data would also meet the concerns raised by my right hon. Friend Alun Michael that a better assessment should be made over time of the efficacy of sentences in terms of reoffending rates. The courts will be able to depart from the council's sentencing guidelines if that would be in the interests of justice. The Bill is deliberately silent on what is meant by the interests of justice because that would be a matter for the courts to determine.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
May I come at the problem from a slightly different angle? There are already magistrates who are not able to sentence people to community sentences when that might be appropriate because the lack of resources from the Government has made certain courses unavailable. For example, in Staffordshire, magistrates have been unable to sentence people to particular community sentences for that reason, and I am told that that problem is not peculiar to Staffordshire. The Secretary of State must understand that the resources question attaches not only to custodial sentences but to community sentences. People who should be getting community sentences are, for the wrong reasons, being sent to prison.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
The numbers are few and far between in our judgment. We increased the money—£40 million—available to the probation service, and not all of that has been spent. However, I am always happy to look at individual cases.
The Opposition need to make up their mind which side they are on when it comes to resources—
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
Well, that will not write the cheques. In individual departmental areas, the Opposition call for more resources, but overall they call for fewer resources. I remind the hon. and learned Gentleman—I look forward to his response later—that I wrote to his predecessor in November to point out that the shadow Chancellor and the Leader of the Opposition kept saying that they would cut spending in the future and would have cut it in the past. Where would the cuts have applied in this Department? Despite three reminders, not a word came back. We look forward to a response today.
In giving effect to the working group's recommendations, there is no question whatever of individual sentencing decisions being tied to the availability of prison or probation resources. I am aware that parts of the Bill are complex, and I am anxious to get it right. I aim to table some amendments in Committee and I will also listen closely to the debate today.
I have already referred to representations made to me by my hon. Friend the Member for Bridgend, to which I have sought to respond. Now I want to refer to a matter that was brought to the attention of the House by Mr. Goodwill on the advice of Jan Woodward, whose daughter was tragically killed by a drunk driver. In a question to the Prime Minister, the hon. Gentleman drew attention to an anomaly in the law that means that if an offender has committed a serious crime that merits both a prison sentence and a period of disqualification, the latter runs from the point of sentence. The result is that the offender will often have completed a large part of the disqualification before he or she is released from prison. I commend the hon. Gentleman for bringing the matter to the attention of the House. In changing the law, which was of decades' standing, we have sought to ensure that offenders suffer the full punishment for their offences by requiring the courts to extend the period of any driving ban to take account of the time served in prison.
Robert Goodwill (Shadow Minister, Transport; Scarborough & Whitby, Conservative)
Although I recognise that the measure addresses the specific point of a person who is given a prison sentence and a ban at the same time, it does not address the other situation that might occur. A person might be sentenced, for example, for a burglary during a driving ban and would continue to serve that driving ban while in prison for the burglary.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
The hon. Gentleman and I have discussed that and, if we can find a way through it—he acknowledges privately that there is a way through—we will do so. We all understand the point.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
If I may, I want to make some progress, as I have already been on my feet for getting on for 50 minutes.
The Bill also deals with better supervision of knives by the court, which has also been drawn to the attention of the House, and with the issue of profiting from criminal memoirs.
Let me turn finally to the provisions relating to changes to the Data Protection Act 1998. In an age of instantaneous electronic information, it is fundamental that data held on individuals are secure and properly protected. That plainly has not always been the case. At the same time, provided security and scrutiny are guaranteed, better data sharing can greatly work in the interests of the public. It can help to improve opportunities for the most disadvantaged, provide better public services, reduce the burden on businesses, implement policies more effectively and detect fraud.
At present, when a family is bereaved they often have to contact Government Departments and local authority departments many times over to make the necessary arrangements, often providing the same information. Responsible data sharing between the relevant agencies would reduce the number of people who would need to be notified of a death, thereby helping to relieve distress at a difficult time.
Last year, my right hon. Friend the Prime Minister asked Professor Mark Walport and the Information Commissioner, Richard Thomas, to conduct an independent review of data protection and data sharing. The review recommended stronger safeguards to protect data and upgraded arrangements for data sharing. It said, in particular, that
"there is a lack of clarity about what the law permits or prohibits."
So, alongside new powers, clause 152 provides a new scheme for data sharing. Under those powers, an order may be made only in circumstances where sharing the information is in the public interest and proportionate to the impact it may have on the person affected. The Information Commissioner will provide independent oversight of the process, scrutinising draft orders and laying before Parliament a report of his findings. Every single order will have to be debated and approved by Parliament.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
With his characteristic skill, the Secretary of State reduces a seismic change in the relationship between the state and the citizen to something utterly benign. Is it not the case that a great deal of the information that the state acquires from individuals is acquired for specific purposes that Parliament has set down? The Government are proposing to drive a coach and horses through the duty of confidentiality that the state owes to individuals in any case where a quite nebulous concept of public good decides to trump the private right. That is surely not a matter that we should be considering in a portmanteau Bill of this sort. It ought to be contained in separate stand-alone legislation. It has enormous implications for civil liberties and it is not right that the Government should come to the House and ask us to have it as a little add-on to another complex piece of legislation.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
The hon. and learned Gentleman does nothing for his case with his gross exaggeration of the provisions. The measures follow the Walport-Thomas review, which was rather widely welcomed, as I recall. There was then a period of consultation. The Government published their detailed response, which effectively accepted what the highly independent reviewers had proposed, and that has now found its way into the Bill.
I should also say to the hon. and learned Member for Beaconsfield that this Bill is not about choosing between the private individual and the public good, as it were, but about helping private individuals, in many cases, through better data sharing. There are separate provisions for the use of anonymised data for statistical purposes, and the hon. and learned Gentleman needs to look at them.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
In the interests of proper debate, I am about to finish my remarks.
The safeguards in the Bill will be complemented by additional proposals in part 8 to strengthen the auditing and inspection powers of the Information Commissioner. This Government recognise the need to strengthen the protection of personal data, and to restore public confidence in its security. It is right to consider the risks of data sharing, but these should not blind us to its potential benefits.
This Government have presided over a decade of very significant institutional and cultural reform to our public services that has seen them become better funded, better performing and much more efficient. To finish where I began, the result is that this is the first Administration since the war to see crime go down consistently, year by year. That is in contrast to the performance in government of the Opposition, when crime doubled during their 18 years in power.
The proposals before the House today are intended to make the coroner and justice systems more effective, responsive and accountable, and to enable them to meet the expectations of victims, witnesses, bereaved families and the wider public. I commend the Bill to the House.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
The Bill's title suggests that it deals with matters that might command cross-party support. As the Secretary of State will be aware from my earlier interventions, it is widely agreed that the coroners system is in need of reform. Coroners themselves agree with that, as do the Opposition, and we all wish to improve the operation of our justice system. Change is needed, but this Bill fails to address the issues properly. There is certainly much that we wish to support that may strengthen the fight against crime, but some of the Bill's measures are an offence to justice and the preservation of freedom in this country.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I will in just a moment.
It beggars belief that the Government should be seeking a draconian transformation in our law to enable them to share private data about individuals. Those data will have been collected in confidence for specific purposes but their ability to be shared right across Government will be sanctioned merely by statutory instruments that will be unamendable in this House. The controversial nature of such a proposal cries out for stand-alone legislation, and I can tell the Secretary of State that we will seek to remove it from the Bill.
David Heath (Somerton & Frome, Liberal Democrat)
I am most grateful to the hon. and learned Gentleman for giving way, and I welcome him back to his area of expertise. It is a promotion, I am sure, and I am glad to see him in his place.
Far from being too critical, the hon. and learned Gentleman's assessment of the effect of the section of the Bill in question was extremely modest. It is the most important part of the Bill, but did he notice that it was the one area on which the Secretary of State did not wish to engage in debate with the House? Does he agree that, whatever the merits of a modest sharing of information, the proposal before us is so broad that it will have a quite staggering effect in undermining the principles of the Data Protection Act 1998?
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I agree entirely with the hon. Gentleman. We are clearly going to have to make common cause with his party and with hon. Members in all parts of the House as we try to make the Government see sense on this matter.
Alun Michael (Cardiff South & Penarth, Labour)
May I counsel the hon. and learned Gentleman, and his ally on the Liberal Benches, to avoid making over-hysterical comments on the issue of data sharing? Does he accept that there is an important need to have a balance between protecting data and using them, especially to prevent crime and reduce offending? Does he recognise that in many circumstances there is a reluctance to share data because of the sort of rhetoric that he and his colleague have used?
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
My experience of one or two examples of failures to share data, such as that which was highlighted in the Soham murder case, is that there was no requirement whatsoever for any legislation in the House to enable such sharing to happen. Perhaps a slightly greater understanding of what is and is not allowed is needed. However, the country has managed rather well historically by being extremely careful of allowing the Government to share data. Indeed, the right hon. Gentleman will recollect that, at one time, people were so concerned about preserving individuals' privacy that there were separate schedules to the tax Acts to ensure that a tax inspector could not have a complete picture of a person's finances. We have moved a very long way from there. The path that we are on raises really serious possibilities of the oppressive state, as every hon. Member should bear in mind when considering such proposals.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
Before the Secretary of State intervenes, let me point out that I am not saying that the Government have malevolent intentions. I do not think that, but if the proposal is passed by the House, it will be a substantial accretion of state power that is available for misuse, and the benefits appear very slight in comparison, except possibly for the convenience of bureaucrats.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
As I have said before, the hon. and learned Gentleman does his case no good by parodying what is in the Bill, and he seems completely ignorant of the provenance of the proposals, which came not from the Government, but from an independent review of data protection, undertaken by people who are profoundly committed to the provisions—the Information Commissioner and Professor Mark Walport. Moreover, the hon. and learned Gentleman must accept, first, the criticism by Walport and Thomas that the existing regime causes confusion—the proposals are designed to end some of that confusion—and that many of the problems that have arisen about whether data can or cannot be shared to protect the public, and secondly, that the Bill, although I am happy to consider how it could be strengthened—
Michael Lord (Deputy Speaker)
Order. I am anxious not to curtail debate this afternoon, because these are complex matters, but I am sure that the Secretary of State will appreciate that he spoke for nearly an hour and that any intervention he makes should be extremely brief.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I am grateful for finally teasing from the Secretary of State some engagement in this debate, which is some progress.
Let me make the position clear. I do not deny that the arrival of the vast volumes of data that the state is now collating does not raise challenges. Indeed, the Information Commissioner is on record as expressing deep concern about the way in which, for example, data about a person's distant past may be raked up and used in ways that are detrimental to their well-being subsequently. I accept that there is a need for safeguards and supervision, and some of the provisions may do something in that respect, but that does not get us away from the enormity of what is proposed. As it appears in the legislation, this is in fact the moment when the doors are opened to massive and uncontrolled data sharing. We do not think that that is desirable. We certainly do not think it desirable that it should be included in a Bill of this kind.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I probably ought to make some progress, but shall I give way to the hon. Lady before I do so.
Jennifer Willott (Cardiff Central, Liberal Democrat)
Does the hon. and learned Gentleman share my concern at how the Government are presenting their case to the public? We saw an example this afternoon, when the Secretary of State talked about families suffering bereavement. I have also heard him give examples involving people moving house. That makes what is proposed sound like a very minor change, made just for people's own convenience. Does the hon. and learned Gentleman share my concern that, if that is what is going to be done, a change in the law is not needed; people just need to be asked to give their consent? The Secretary of State is using minor examples to cover what is, as the hon. and learned Gentleman has said, a huge change.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
Yes, I agree entirely, and that is characteristic of the Government. It is just like identity cards, on which we were all told that it would be convenient for everyone to be able to prove their identity. None of these things is likely to take me in, and I do not think that they will take in the public either.
Before I move on to consider the clauses, I cannot entirely ignore the Bill's background, particularly as the Secretary of State has provoked a response in view of his opening panegyric about the Government's record on reducing crime and making everyone safer. We are entering a recession that is made far worse by Government debt, and it looks quite clear from the Government's information that that is likely to be detrimental to individuals' safety from crime as well.
In view of the Secretary of State's comments, I would be interested to hear whether he agrees with the Home Secretary, who wrote to the Prime Minister in September warning of the increase in crime in general, and violent crime in particular, brought on by current economic conditions. Given that matter, the Bill does not even scratch the surface of what the Government could or should be considering. Violent crime has almost doubled under this Government—a fact now openly acknowledged by the head of the Home Office in his memorandum to Ministers, but not, apparently, by Ministers themselves.
There has been failure to plan for, let alone fund, adequate prison capacity, and that is one of the reasons why the proposals relating to the sentencing council take the form that they do in the Bill. At a time when people are concerned about the increase in violence, the full impact of the Government's reckless early release scheme is becoming plainly apparent, for example in the ClearSprings fiasco; the issue was on the airwaves only this morning. The long-term failure to build the prisons that we need for our criminal justice system has led the Government to rely on weak non-custodial arrangements, and to fail to rehabilitate offenders or protect the public. I just point out to the Secretary of State that since 1999, nearly 400 people have been killed by criminals on probation.
A quarter of magistrates courts have closed under Labour; they were replaced by administrative measures that do not punish criminals properly and risk penalising the innocent. The mass expansion of penalty notices—again, this is something with which we are having to grapple—conditional cautions and warnings means that half of all criminal offenders avoid altogether court and proper assessment of what is required for them.
On the expanded use of spot fines, we now put shoplifters and those caught in possession of drugs on a par with someone accused of dropping an apple. Half the fines are not paid on time, in any event. One has the impression that Ministers are more interested in the taxation and revenue aspects of fining than in tackling the underlying causes, in relation to those who steal. Of course, the same approach is taken to cannabis, as the Government send out more mixed messages about that dangerous drug; they are reclassifying it on the one hand, but continue to make it the subject of fixed penalty notices on the other.
I notice that someone was recently ASBO'ed for singing in the bath, but on the face of it, real thugs do not seem to be particularly deterred by antisocial behaviour orders. The Government have repeatedly attacked the role of juries during their time in office. Each time, the Government have had to be fought off, but in the Bill there is yet another attempt to undermine the jury system, in relation to inquests. As I said, there is also the growth of the database state and creeping surveillance, despite all the evidence that the Government are more likely to lose or abuse our private information than to protect it. I am afraid that we see all the hallmarks of those serial failings in the details of the Bill.
Just to cheer up the Secretary of State, let me say that there are some measures that we welcome, as I have already hinted and pointed out. We agree that reform of the coroners' system is long overdue. The bulk of the proposals are clearly of great importance, and we will do our best to make sure that those aspects of the reform can work properly. We certainly support measures to prevent criminals from profiting from their crimes, and we will work with the Government to ensure proper protection for victims and witnesses, while safeguarding fair trials. There is much that is good in that part of the Bill. There may well be some challenging issues to do with investigation anonymity orders, but the intention behind them is clearly laudable.
We will also look carefully at the Government's proposals to reform the law on homicide. On that issue, we accept that the Government's intentions are good, but the provisions classically illustrate the problem of trying to cherry-pick important, carefully reasoned and crafted, but admittedly controversial, proposals from the Law Commission's report. There is clearly a need to provide a better definition of partial defences to murder, whether on the grounds of provocation or diminished responsibility. Those will be much harder to rationalise if the Law Commission's idea for two categories of murder is not followed, although, as I say, I have some sympathy with the Government on why they may have decided not to go down that road.
It is a little strange—I repeat what I said in my intervention—that the Government should propose a wide-ranging partial defence where things done or said could cause a defendant to have a justifiable sense of being seriously wronged, intended to be wholly subjective, yet we are asked specifically to exclude sexual infidelity as a ground for feeling wronged. The whole history of human society, whether one is reading "Othello" or considering the case of Ruth Ellis, suggests that that is a matter on which people who might otherwise be behaving reasonably appear to lose all sense of proportion and reason. Without in any way saying that I have a fixed view on the matter, I very much hope that these are issues that we can properly consider, because it will be important that we get them right.
None of the proposals goes to the heart of the matter. They paper over the cracks. The sentencing council papers over cracks. Let us be absolutely clear. The fundamental point about this reform is to ensure that sentencing is driven by Government expediency, rather than by the requirements of justice. If it were not, there would be no reason why the existing system could not be tweaked. Something far more radical is proposed, and it amounts to a substantial fetter on judicial discretion. The Magistrates Association put it this way, and I could not put it better:
"to engineer a reduction in the prison population rather than to deliver just sentences that fit individual crimes".
I make the point rightly made by my hon. and learned Friend Mr. Garnier: the measure applies not just to whether people are being sent to prison; it applies also to non-custodial sentences and whether community punishments are available. It is right across the board.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I am grateful to the hon. and learned Gentleman. His suggestion that the proposal is driven by a desire to reduce the prison population is completely untrue. It is belied by the fact—we are often criticised for this, but I take it on the chin—that the prison population has increased by twice the rate at which it increased under the Conservative Government. It has increased by 2,000 places a year and rising, and we have plans right until 2014 for its further expansion. Moreover, his predecessor was proud to say that the Conservative party was the only party committed long term to reducing the prison population. Is that his policy?
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
Yes, I am entirely committed to the idea of reducing prison population in the long term. That is very desirable. My view has always been that the first step in reducing prison population is to provide adequate prison facilities for rehabilitation and training. That cannot be done in an overcrowded environment, which is why more prison places are needed at present. Moreover, when the Secretary of State quoted my hon. Friend Nick Herbert earlier, he failed to add the final sentence of the comment that my hon. Friend made at the time:
"That is entirely different from proposing that sentences should be limited by the resources made available by the Government after the framework is set."—[ Hansard, 28 November 2007; Vol. 468, c. 359.]
On that score, the attempt to suggest that there is a difference of view between my hon. Friend and myself is nonsense.
The Bar Council called the move that the Government propose on the sentencing council a "dangerous" politicisation. We will deny the courts the discretion that they need and one of the reasons for that is that the Government have squandered so much taxpayers' money that there is none left to discharge Government's first duty to protect the public.
The Secretary of State challenged us to say how the Conservatives would approach these matters differently. I had not intended to go into this, but I am sure we would not have wasted £70 million on a computer system to link prisons to the probation service, which does not work. We certainly would not have spent £100 million to put the Judicial Committee of the Privy Council into a new Supreme Court, which must be one of the greatest extravagances and wastes of the Government's period in office. Furthermore, we would not be spending £131 million to house the Secretary of State in his new accommodation. All that is quite apart from the £5 billion that has effectively been wasted on the National Offender Management Service—a subject that the Government are only too keen to gloss over. I note in passing that £27 million was spent on external consultants in 2007. If the Secretary of State wanted me to, I could run on with an endless list and point out all sorts of areas in which sensible savings can be made on foolish Government expenditure. If the Government had not been so profligate and foolish in some of the projects on which they embarked, the Secretary of State's Department would not have its spending crisis, which has been afflicting it for a considerable period.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
The right hon. Gentleman spoke for an hour, but did not make himself clear.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
In that case, I will now. Just so that we are clear, is the hon. and learned Gentleman saying that any future Conservative Government would guarantee that no IT project would fail to meet its objectives or its budget?
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I very much hope—indeed, I believe —that by applying a bit of common sense, it is possible to avoid some of the pitfalls that have afflicted the right hon. Gentleman's Department. His Department has had many problems, one of which is that his two predecessors were heartily disliked by the Prime Minister when the Prime Minister was Chancellor of the Exchequer. As a result, certainly in respect of constitutional affairs, for example, and particularly on legal aid, the Department ended up constantly underfunded, because of the wickedness of the present Prime Minister. That remarkable story will take some time to be fully recounted, but it appears to have had a great deal to do with the Prime Minister's personal animus against those previous incumbents. That may have given the Secretary of State an unhappy legacy when he took over the Department; indeed, I suspect that it has given him problems from which he has never been able to escape. I am afraid that I am not in a position to help "holistically"—I think that that is the awful word, which is used in the House far too often—to cure the internal dissensions in Government, which go back a long way.
If the measure on the council passes, our concern is that serious offenders who should be in prison will be let out early or will not be sentenced to custody at all, and that the public will pay the price by suffering at the hands of offenders.
Alan Beith (Berwick-upon-Tweed, Liberal Democrat)
Has the hon. and learned Gentleman noticed the increase of 300 prison places required for the other provisions in the Bill itself? Does he know the reason for that?
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I understand well enough that the Government have considerable difficulties, because prison places will rise as a result of some of the measures. Indeed, it is worth remembering that responsibility for the drivers behind the increased costs of both prisons and the court system can be, at least in part, laid at the door of the Government and their zeal in inflicting tougher and tougher criminal offences on the population. Those offences require representation when they go to court and they require more prison places. I understand that well, just as I understand that the problem with ClearSprings at the moment is that half the ClearSprings places have been created either to deal with early release prisoners or as a substitute for prison, to avoid sending on bail people who probably ought to be in a more controlled environment. The evidence is that the people involved have chaotic lifestyles that they inflict on the local communities, and without properly wardened accommodation to help them. All that is part of the Government's general failure.
I turn to the proposals for bail reform. We accept that tightening up the legal criteria for bail is necessary, and to that extent we welcome the proposals, but they are not what we would have wanted in a wholesale reform: to make breach of bail a crime, to curtail the bailing of prolific and repeat offenders, and explicitly to make public protection a prime consideration when courts take decisions on bail. The Peart review talks of a "lackadaisical and nonchalant approach" to the granting and enforcement of bail. This proposal does not do justice to the scale of the problem, and I hope that the matter can be debated in greater detail as the Bill goes through the House.
That also applies to the proposal for a commissioner for victims and witnesses. The Secretary of State, being so nimble-footed, tries to get away from the issue. The position was first enacted in 2004. Five years on, the explanatory notes to the Bill cheerfully tell us that
"a Commissioner was never appointed and the legislation has not yet been commenced."
Today we learn that the appointment has effectively been postponed for another whole year, and that the Government have appointed a "champion". I welcome that, but I am left with the feeling that it was a fig leaf for their failure. It is another case of more talk and no action. If the Justice Secretary is really serious about victims, why does he not introduce what we have called for—a proper victims fund, funded through the earnings from prisoner work schemes and the proceeds of crime?
The Bill will do little to strengthen criminal punishment but plenty to weaken British justice. The proposal, in the part of the Bill dealing with coroners, to remove juries and hold proceedings in secret is an even broader version of the proposal defeated in the other place during the debate on the Counter-Terrorism Bill. The House will recall that in June Ministers failed to make the case that the security case justified this draconian step. What new evidence does the Justice Secretary offer up on this point? When the proposals were withdrawn—we greatly welcomed that—I was under the impression that the Government might embark on considerable consultation to see whether there was an alternative way forward, given the level of disquiet, which was brought home to them very clearly, yet I see no such consultation. Instead, they have just come back to the House and regurgitated the same proposals with some very minor changes.
The challenge of reconciling sensitive evidence with the demands of transparency and due process is not new, and I do not see the specific problem that cannot adequately be addressed within the current system. The Secretary of State said that this was an inquisitorial process, so we could not have the public interest immunity approach, involving an adversarial process. I accept that that is an issue, but substituting something that has all the hallmarks of a secret investigative process will never command the public acceptance and confidence that an inquest process must do if it is to have any relevance—or to be held at all. On that basis, we might as well say that there is no point in having an inquest.
If the Government were prepared to show the necessary flexibility—although I fully accept that it might in some cases mean that some evidence could never be brought before inquest juries—it would be possible to put in place a system with the flexibility that would still allow the process to be open, and would ultimately still enable the Government truly to say, "We have done our best to enable openness to be maintained." Without that, I fear that these proposals will simply undermine public confidence still further. We will therefore consider them very carefully, and it is most unlikely that they can command our support.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I am grateful for the hon. and learned Gentleman's recognition that there is a problem, and that the parallel with criminal trials is not really accurate. Since he accepts that there may be circumstances in which evidence would have to be kept from a coroner's jury, which is at the heart of these proposals, we are ready to consider any constructive suggestions that he or other colleagues make to us.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
There is evidence that has to be kept from coroners' juries at the moment, but in almost all cases—I know that there may be two in which the Government see a particular difficulty—those problems have been overcome. The route that the Secretary of State is taking raises the probability that the number of secret inquests without juries will grow, and that they will then be deemed convenient. That is why we are so concerned about the proposals. I hope that there will be constructive engagement in Committee, and I know that my hon. Friends who will serve on it want that, but I would not be doing my job or expressing my own feelings if I were not to say that I find it difficult to see how the proposals could command our acceptance. Indeed, I think that there is considerable disquiet about them across the House.
I spoke earlier about opposition to data-sharing powers. The Government's track record of protecting the personal data that they hold on citizens is appalling. They have demonstrated serial, serious and systematic incompetence. They have lost the details of 130,000 prisoners held on a computer memory stick, and Driver and Vehicle Licensing Agency information on 3 million learner drivers, not forgetting half the nation's child benefit records, which I believe were lost in the post. Members should view with deep scepticism the proposal massively to increase ministerial powers to share data across Government.
The clauses on data sharing are tucked away at the back of the Bill, but that should not conceal their dramatic impact. The Secretary of State said that I was exaggerating, but I take the view of Mr. Heath, who said that I was rather understating the matter. As a result of the proposals, Ministers will have carte blanche to expand data sharing between officials across Whitehall, local authorities and even companies in the private sector. Privacy International warns of the
"vast risks associated with governance, privacy, security,"
and the British Medical Association has stated that the proposals will strip patients of any rights in connection with the control of their medical records. As I tried to point out to the Secretary of State earlier, that goes to the heart of the relationship between state and citizen. The proposals would, if the public interest required it, allow a statutory instrument to be made allowing the sharing of medical records data with Departments that are not at all concerned with treating individuals, for other purposes. I believe that that is unacceptable. If there is to be change to take account of the growing amount of data, it should be made with great caution and should not be the "open sesame" to a vast increase in Government power.
It is worth bearing in mind the fact that the security case has not been made, that we do not believe that the safeguards are good enough, and that all this is being done at a time when, I gently point out to the Secretary of State, public trust in the Government's ability to protect data is at an all-time low. I recall the Prime Minister saying:
"we can't promise that every single item of information will always be safe".
Indeed not—and that is one reason why the House should be very careful about the powers that it gives the Government in this area.
Finally—I disagree with my hon. Friend John Bercow here—this would not be a new Labour justice Bill without some attempt to curtail freedom of speech. The balance between protecting society from incitement to homophobic hated, which I entirely applaud, and preserving legitimate public debate is delicate. I do not recall the Secretary of State, or the Home Secretary, who I believe was responsible, giving the impression that the decision to accept the Lords amendment to the Criminal Justice and Immigration Bill was a mere tactic for returning to the issue later. It appeared to involve an acceptance that the Lords amendment was sufficient to command acceptance.
Maria Eagle (Parliamentary Secretary (also in the Government Equalities Office), Government Equalities Office; Liverpool, Garston, Labour)
If the hon. and learned Gentleman looks at what was said on that occasion—it was I who said it—he will see that I made it clear that we would return to the matter at a further opportunity as soon as possible.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I thought that the intention to return to the matter meant coming back with some other proposal that met the concerns that had been expressed about preserving freedom of speech. No case has yet been made—I wait to hear it—to show why the words that were included in the other place do anything to undermine the ability to prosecute the offence that has been created. If the Secretary of State or the Under-Secretary of State for Justice, Maria Eagle, can make that case cogently, we will listen. In the meantime, I simply do not see it.
I perceive the provision as a saving clause, designed to deal with the chilling effect that always arises when restrictions are placed on freedom of speech. We debated it and commented on it previously, when we considered issues such as incitement to religious hatred. I want individuals who incite homophobic hatred to be prosecuted just as much as the Under-Secretary does, but I do not want the circumstances that I am about to outline to be repeated, and I do not believe that the Government want that either. Old age pensioners living in Blackpool wrote to their local authority, as is their right, to say that they did not approve of its giving money to a gay organisation. Instead of getting a reply saying, "Terribly sorry. We were voted in, and this is what we believe in. We disagree with you," they got a visit from two police officers telling them that if they wrote such letters again, they might—even under the old law—be prosecuted. They recovered damages and got an apology, but only after a time. They received treatment that makes me ashamed of the system that we seem to be creating in this country. We must ensure that such things do not happen. A sensible freedom of speech clause would be helpful, to reassure those who want to continue to express views that are legal—even if I disagree with them.
Joan Humble (Blackpool North & Fleetwood, Labour)
If I heard the hon. and learned Gentleman correctly, he said that individuals wrote to Blackpool council about that matter. Although the individuals are my constituents, it was not Blackpool council but Conservative-controlled Wyre borough council with which they had a problem.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I am most grateful to the hon. Lady for putting me right, and I apologise for any calumny—it was unintended—against Blackpool. However, the hon. Lady reinforces my point. All the evidence shows that when the House legislates about such matters, the manner in which those who have some authority lower down the chain, and have to implement the legislation, interpret or understand it, is often at variance with what is intended. That is why problems have arisen. There was a street preacher in my constituency who said that people should repent and turn to God, and that if they did not repent they risked going to hell. The police came along and said, "You can tell them that they should repent and turn to God, but you shouldn't give them the other half of the message." [Interruption.] I agree with the Secretary of State that that is absurd, but the House must pay attention to the consequences of its actions in creating absurdities, which may appear amusing to us but are not amusing to those on the receiving end of individuals who take it upon themselves to interpret the law in a way that we did not intend.
David Howarth (Cambridge, Liberal Democrat)
Are not the hon. and learned Gentleman's comments proof of the point that some of us made when the matter was originally discussed? Surely the right way to deal with this matter is by issuing guidance to the police and the prosecution authorities, and procedural protection, rather than including a pointless but potentially dangerous blanket exemption in the Bill.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
If the hon. Gentleman feels that the exemption is too wide and would therefore do damage, I encourage him to ascertain whether there is another way it can be drafted to meet my point; that may be possible. We have been content with such a provision in other cases where we have imposed restrictions on freedom of speech. I simply ask the House to consider the matter carefully, because I think that there is a genuine problem, which past experience has demonstrated. I hope that the Secretary of State will bear that in mind.
John Bercow (Buckingham, Conservative)
As my hon. and learned Friend knows, I yield to none in my admiration for his parliamentary and other talents. I have to say to him, however, that in this particular matter his memory serves him ill, and that the Under-Secretary of State for Justice, Maria Eagle, is entirely correct in her recollection of the sequence of events. The Government made it clear that they intended to bring back this provision in a later measure; there was no question of their backing down or qualifying their position. The point about the Government's policy on this matter, as encapsulated in the legislation, is that it is aimed at catching words or behaviour that are not merely insulting or abusive but threatening. The fact is that the Waddington amendment is a wrecking amendment; it is a menace, and it has to be defeated.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
I am afraid that I do not agree with my hon. Friend that the amendment was intended as a wrecking amendment. Indeed, reading it, as I did at the time, and re-reading it, as I have done more recently, I do not believe that it would have that effect at all. If he wishes to discuss this with me in greater detail, I would be only too happy to do so. That said, I have made it clear that that proposal might not be the only available solution, but I believe that it is important for there to be safeguards. If there are none, the law of unintended consequences will lead to people who express views that are perfectly legitimate—even if they are views with which we disagree—feeling as if they are being persecuted. That is not something that the House should embark on lightly.
Geoffrey Cox (Torridge & West Devon, Conservative)
Does my hon. and learned Friend consider, as I do, that there is something anomalous in the Government's proposal to remove the clause that protects free speech in relation to the discussion of homosexuality, given that they are not proposing its removal in the case of religion?
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
There are indeed anomalies, and they were discussed at some length when this matter appeared previously, if rather bizarrely, in another piece of legislation. I very much hope that we will be able to look at those matters sensibly. There are no easy solutions, and I am the first to accept some of the examples that we have been given, including that of gangsta rap lyrics, which I regard as revolting. I have no difficulty at all in wishing to see them criminalised and stopped—absolutely none. Nor is this the pillar of some religious viewpoint; I do not think that it should be. I want to see a right for people to express their views, including views that other people might not like. That is what a free society is about, and the House must ensure that that can still happen, even when we have ensured that expressions of rabid hatred and incitement to hatred can be curbed. That must be the aim that we seek to achieve.
We will work constructively with the Government to improve the Bill, wherever that is possible. We agree that there are good things in it, and we want to facilitate their passage on to the statute book if possible. That is why we will not seek to oppose the Bill's Second Reading tonight. We will strive to improve it in Committee and on Report, and to remove those parts that are unnecessary or counter-productive, or that we deem to be merely offensive. I hope that the Secretary of State and the Government will listen, although in the light of past experience I am not altogether optimistic about that. I put the Government on notice that if the Bill is not substantially amended—particularly in the area of data sharing, but also in other areas—we will oppose it on Third Reading, because its mischief will wholly outweigh the undoubted benefits that it could confer if the Government would listen sensibly to the views being expressed right across the House.
Finally, I want to come back to something that I said earlier. The clauses of the Bill are littered with the tacit admissions of a decade's worth of failure. There is nothing in it to suggest that the Government, who have created a large part of this mess, have the slightest idea, or any overall plan, for how to put things right.
Michael Lord (Deputy Speaker)
I remind the House that Mr. Speaker has selected the Liberal Democrat amendment.
Alun Michael (Cardiff South & Penarth, Labour)
I am a member of the Justice Select Committee, which has considered many of these issues. I am sure that the Committee Chairman will, if he catches your eye, Mr. Deputy Speaker, summarise some of the Committee's comments, but I want to underline some specific points and to make some personal observations.
I must say that I was disappointed by the rhetorical flourishes that we heard from the shadow Justice Secretary. Of course we would all agree that the line between free speech and protecting the public is a very fine one, but preserving that fine line needs a constructive approach rather than caricature. Bureaucratic insanity in the interpretation of legislation is a problem, even when the law is sensible and very precise.
Let me start by referring to data sharing and the Information Commissioner's work. As I said, the Justice Committee has made a number of helpful comments about that, and I think that the present Information Commissioner, Richard Thomas, has worked hard in that role to achieve a constructive balance, while being both clinical and challenging.
The first intimation I had of the difficulty of getting the line right on this issue came when, both in opposition and as deputy Home Secretary—in that role I worked very closely with my right hon. Friend the Secretary of State for Justice—I found that there was immense reluctance on the part of local government and the police to share data for the purposes of preventing crime. Indeed, we were so concerned about that that a clause went into the Crime and Disorder Act 1998 to say that preventing crime is a legitimate reason for sharing data. Lawyers told us that that was already the case, but, frankly, lawyers and data protection officers refused to accept that and to act on it, which is why we felt it necessary to put the provision in the legislation.
Mr. Grieve referred to the Soham case in his response to my intervention, but that case exposed a problem of systems failure and systems not speaking to each other between two police forces. Actually, what came out of the failure of the police collectively to use information that was available in one part of the police service and to share it with another was a "headline" view among the public that everything must be shared in order to protect the vulnerable, particularly children. On the other hand, news reports on data protection and the data loss that we have seen on a number of occasions led to the equal and opposite headline that nothing should be shared. Both of those arguments are untenable and inappropriate.
The advice still given on occasions by lawyers and data protection officers is, "If in doubt, don't share the data." That is wrong—and wrong in principle. It is just as wrong as saying, "All data must be shared without reservation." The important thing is that on every occasion, a balanced judgment must be made by those who have the information as to whether it is in the public interest, as well as in the interest of individuals, to share it. Nobody who is a holder of data can escape the specific responsibility to balance the pros and the cons and address the public interest. There is no escape from that responsibility. I fear that the shadow Justice Secretary went very wide of the mark by coming down on just one side of that equation.
The second issue is one of public confidence in the way that data are managed and shared. In that regard, I suggest to my right hon. Friend the Justice Secretary that the comments of the Justice Committee offer particular help. Parliamentary accountability is the answer. There is public suspicion of government, which is fed by the headlines of the press and media—it is a fact of life; we cannot get away from it—but Parliament can be a constructive and critical friend to government. I rather felt that in his early remarks, my right hon. Friend was looking for an answer along those lines. Giving a role to the Justice Committee and other instruments of the House is a way of ensuring that the Government are able to achieve the objective of protecting the public, while subjecting the management of data to transparency and scrutiny—both by the Information Commissioner and a Select Committee of the House.
I say to my right hon. Friend that I know we have seen, on occasion, Select Committees acting as a Rottweiler, but that more benign canine friend, the sheepdog, is the one that I would suggest if there were a properly understood role to be played between Parliament and the Government.
Jennifer Willott (Cardiff Central, Liberal Democrat)
Does the right hon. Gentleman share my concern about not only what data are shared, but their integrity and accuracy? Research published last week shows how many errors there are in the data held by different Departments and the complete lack in any Department of a policy of checking those data for errors to ensure that they are up to date and accurate. Is there a role for Parliament in trying to ensure that the data, before they are even considered for sharing, are made accurate?
Alun Michael (Cardiff South & Penarth, Labour)
The hon. Lady makes a fair point. The problem has been not the aspirations of Ministers, but the fact that sometimes the machinery of government and of agencies of government has been poor in two respects: ensuring absolute accuracy of the data, because there is no point having them unless we can depend on their accuracy, and ensuring that there is a culture that, as I have suggested, balances protection of those data where it is not appropriate for them to be released—that is partly to do with methodology, but partly to do with the culture that needs to be put in place—with the need to share data where appropriate. That goes right the way across from situations where anonymised data are not being shared when they should be to inform public policy to the very local level, where specific information could assist in preventing crime. She is absolutely right: the accuracy of data must be part of that overall picture.
On the issue of the sentencing council, it is clear from the evidence that the Justice Committee has taken and published that careful work is needed to ensure that the outcome of having a sentencing council is the intention on which my right hon. Friend the Secretary of State places such emphasis in his proposal. It is a rather sad fact of life that judges seem to be influenced by media debate, despite the importance of the judiciary being objective and independent. That is not a politician's criticism: it is significant the number of cases in which the senior judiciary effectively make that criticism by accepting the view of the Attorney-General that sentences have been too lenient. On the other hand, we see cases in which sentences are reduced by the Court of Appeal, so let us not pretend that the judiciary are perfect in the judgments they make or the decisions they reach in sentencing.
It is absolutely clear that more needs to be done properly to inform sentences, but I am keen that we should increase the confidence of sentencers in community sentencing. Community sentences can be extremely tough and very challenging, and they can change people, but we heard from the Lord Chief Justice in evidence that many sentencers do not have confidence in the effectiveness of community sentences or in the systems in place to apply them.
My right hon. Friend the Secretary of State said in reassuring tones that the majority of those on the sentencing council will be sentencers, but I am not sure that I am wholly reassured by that because we want people who are challenging and objective in looking for evidence. Before I entered Parliament, I had the experience of seeing people on community service and seeing lives change. For example, one young man on community service was sent to work with a disabled swimming club. The experience of working with youngsters with severe disability totally changed his attitude to life because he realised that while he was a bit morose about some circumstances in his life, many people had a far worse time. Building relationships with those youngsters changed his attitude to offending. Many similar examples could be cited.
The problem with many offenders is that they have not created good relationships with other people. They do not see the victim as a person, and they do not see the victim's possessions as being owned by someone. They do not realise that stealing stuff or burning a house will damage people. That is why the concept of relational justice is so important. Bringing people up short by causing them to recognise that they are damaging other human beings, and turning that into a personal issue, can make a great difference.
Community sentences achieve that far better than custodial sentences, although I am not arguing for or against either. What I am saying is that if our system is to achieve the necessary balance, we need to understand the effectiveness of community sentences, and make sentencers understand how they can be used to the benefit of the public by reducing crime and reoffending. That is why I asked my right hon. Friend in an intervention whether he would make it a responsibility of the sentencing council to look at what works in terms of preventing reoffending. I do not just want to see judicial statistics relating to disposals, important though they are; I want "what works" to drive the way in which the council produces frameworks and encourages sentencers to adopt them.
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
We endeavoured to reflect exactly what my right hon. Friend is seeking in clause 102(11), which states:
"the Council must have regard to the following matters"
and includes, in paragraph (d),
"the cost of different sentences"—
that is the point that my right hon. Friend wanted to take up—
"and their relative effectiveness in preventing re-offending".
That provision is aimed at meeting exactly my right hon. Friend's concerns.
Alun Michael (Cardiff South & Penarth, Labour)
I am grateful to my right hon. Friend for underlining that point. What I want to do is raise it in the order of priorities, so that preventing offending and reducing reoffending are at the heart of the system. When my right hon. Friend and I were in the Home Office, we placed a similar responsibility on the youth justice system to prevent offending and reoffending.
John Bercow (Buckingham, Conservative)
I think that what we need to do in the debate is get away from the slightly abstract, arcane and, dare I say, Manichean divide between custodial sentences on the one hand and community sentences on the other. What is absolutely critical to the success of either is that, as part of the package, we provide the often serial offender with the equipment for future citizenship.
Dare I say to the right hon. Gentleman and the Secretary of State that when more than 60 per cent. of people on the young offender estate have speech, language and communication difficulties of a scale and intensity that prevent them from accessing conventional education and training courses, that is a problem and we have to tackle it?
Alun Michael (Cardiff South & Penarth, Labour)
The hon. Gentleman is quite right. I look forward to discussing these issues with him in the Public Bill Committee, if his Whips do not keep him off it because of the independence of his views. The need to address issues such as literacy is something that, in many instances, neither prison sentences nor community sentences have been very good at. I know that my right hon. Friend gives high priority to the need to ensure that it is built more effectively into both prison and community sentences in future.
I am well aware that my right hon. Friend also ascribes importance to making the benefit of community sentences visible. References have been made to luminous jackets enabling the public to see that people are undertaking such sentences, and I understand that wish, but I should like those undertaking community sentences to think of what they wear as a uniform in which they can take pride, and to start to show some consistency by turning up on time and so forth. The aim should be to help their rehabilitation rather than merely to shame them.
Robert Goodwill (Shadow Minister, Transport; Scarborough & Whitby, Conservative)
I recently visited a very good example of community sentencing at the Oriel cricket ground in Scarborough. I was told that the scheme was making relatively good progress in preventing reoffending. However, one of the magistrates present drew me up and said, "But, of course, the reoffending rates relate to the number of people who actually turn up to do the community service, not those who have been sentenced to it. We still have a large number of offenders who are given community sentences but do not turn up to do the time."
Alun Michael (Cardiff South & Penarth, Labour)
I take on board the hon. Gentleman's point, and that is why there must be swift and effective action if there are breaches. However, that action should not be too swift or else the early stages will not be passed, but it should be understood that failure to undertake a community sentence will be acted on very quickly. As with antisocial behaviour orders, the point is to say to people, "If you accept that you ought to stop that sort of behaviour and that you should do what the court has asked of you in passing sentence, then the consequence will be rehabilitation and support for re-engagement in the community, but if you don't, the deal is off." That has to be a part of the deal, and it has to be seen by the public as being so.
My main point is that our focus must be on what works. My right hon. Friend the Secretary of State has seen what happened in Cardiff when a clinical approach was taken and it was asked, "Where does violence happen? Are there facts about the incidence of violence that mean that we can intervene to reduce that offending and therefore reduce the likelihood of becoming victims?" That approach has been a great success, and has been taken up elsewhere.
The media will always go for the frightening and the specific. We will always see on the front pages of newspapers the faces of people who have been beaten up, and there will always be incidents of that. That is a fact of life and I do not blame the media for reporting that; horrific incidents are horrific. However, what we can do is seek to reduce crime rates by adopting a clinical approach and reducing the opportunity for crime, rehabilitating people and challenging their behaviour in the community, so that it is not a question of their going away and coming back into the same environment, but a question of changing their behaviour over time.
The sentencing council must be not a comfortable lawyers' club, but an evidence-based body that helps sentencers do the right thing in preventing reoffending. I bear in mind the evidence we heard from Victim Support. The question was asked, "In a sentence, what do victims want?" The answer that was given was, "Short of being able to turn the clock back and not be a victim of an offence in the first place, what victims would like to know is that it is not going to happen again." Therefore, the prevention of reoffending is not an alternative to supporting victims; it is, in fact, at the heart of supporting them.
Witness anonymity is an issue that requires great care. I appreciate the risks involved in that process, but intimidation and fear are very real factors that undermine justice. Many Members have had the experience of people coming to them and describing a series of events in their street or neighbourhood where a small number of individuals are able to get away with incidents of intimidation and cannot be brought to justice. Therefore, there is a need for the provisions on witness anonymity to be strengthened, albeit with care.
There is also a great need to address internet-related crime and nuisance, to which my right hon. Friend the Secretary of State referred at the end of his remarks. It is, I think, easy to agree on the actions that are needed to prevent child abuse, although it was not easy in the early stages to get agreement between the police and the internet industry on ways of preventing the display of what were incidences of child abuse—not just pornography, but much more serious than that. There is a great need for a joined-up approach across Government Departments, where there is a great deal of duplication, in order to create a partnership right down to the local level to prevent internet-related crime and make the UK the safest place to do business online. A lot of work is going on, to which Parliament is contributing a great deal, such as through all-party groups in particular, and I commend those examples to my right hon. Friend.
I wish to highlight two points on coroners. One is the issue of resources. There is a need for adequate resources, but also for the capacity to move them to the right place at the right time. In the proposals before us, my right hon. Friend is grappling with the eternal dilemma of how to strike the balance between the national and local. It was suggested at one stage that if Nye Bevan had become Secretary of State for Education and Ellen Wilkinson had been Secretary of State for Health, we would have ended up with a local health service and a national education service. In both those services, the tension between the national and the local always exists.
That tension is inevitable in relation to coroners. There are not just the headline examples, which have been referred to in interventions, but very often there have been ordinary cases of people just wanting to know what happened and hoping that a coroner's inquiry will give them the answer. Our experience suggests that there is a need to amend the system in this regard.
The second issue that I wish to discuss relates to health: the need to ensure the independence of medical evidence coming before the coroner's court. Again, all Members of Parliament will have had experience not only of NHS trusts that are good and open when things have gone wrong, but of NHS trusts that are defensive and that seek to avoid getting down to the facts in difficult cases. We need certainty that medical evidence will be objective and based only on medical professionalism. I hope that as this Bill goes through its processes my right hon. Friend the Secretary of State will find ways to increase the assurance about that independence of medical evidence, because I am sure he is as concerned as I am, and as the Committee has been, on that point. There is perhaps a need to re-examine that part of the Bill to ensure that objectivity can be built in.
The Bill addresses some important issues. It deals not, as I first thought, with a series of small issues, but with some of the big issues in relation to improving our justice system. It does so not in terms of great symbolic gestures that change the earth, but by dealing with things such as the sharing of information and way in which sentencing is undertaken, where we do need progressively to find more objective, more evidence-based means of finding the right way forward.
David Howarth (Cambridge, Liberal Democrat)
I beg to move an amendment, to leave out from "That" to the end of the Question and add:
"this House declines to give a Second Reading to the Coroners and Justice Bill because it provides for inquests in private and without a jury, at the behest of the Secretary of State and on grounds that are overbroad;
because it unduly restricts what coroners and inquest juries may say about a death;
because it proposes reforms to the law of murder that are ill-thought through and incomplete;
because it fails to deal with legitimate criticisms of the legislation on anonymous witnesses, and in particular because it fails to make adequate provision for the use of special counsel;
because the system of sentencing guidelines it proposes fails to incorporate adequately the aim of reducing re-offending;
because it will allow unlimited data sharing to occur between any organisations or persons for the purposes of supporting unspecified government policies, regardless of the safeguards contained in other legislation;
and because, to the extent that other measures proposed in the Bill are welcome and not merely symbolic, those measures should have been brought forward in separate Bills to allow them to be scrutinised more carefully."
I have waited a long time to move an amendment on Second Reading.
This is a hotch-potch of a Bill. A Second Reading debate is supposed to be about the principle of the Bill, but it is not clear how a Bill such as this, which at a conservative estimate deals with 28 different topics and amends 56 different Acts of Parliament can have any single principle at all, apart from being a sort of Christmas tree Bill, on to which the Government can hang any topic they think useful to debate from the point of view of the all-important media grid, the device by which future announcements are planned out for the year in advance and by which this country has been governed for the past 12 years . [Interruption.] The Secretary of State says if only life were like that, but to a great extent it has been like that; it has just been a matter of people getting their slot in the grid at the right time.
The other principle of legislative drafting that the Bill seems to follow is that of the red rag and the smuggle. A red rag is a provision in a Bill that is designed to attract the attention of hot-headed Members of this House, and about which the Government do not, in reality, care very much either way, while they smuggle in, largely unnoticed and unchallenged, a lot of significant stuff that otherwise might attract severe criticism. The problem with this Bill is that it is not entirely clear which provisions are the red rags and which are the contraband. Working on the general principle that to avoid scrutiny in Committee, the usual tactic is to put the contraband at the end and the red rag at the start, my guess is that the provisions on data sharing are the contraband and those on secret inquests are the red rag.
That is why I am going to start by discussing the provisions on data sharing, especially in the light of this morning's news that yet more personal information has been lost—this time with regard to the British Council. It is right to say that data sharing can be a good thing—I would not deny many of the remarks made by Alun Michael—but there is a massive downside and we need to bear in mind that it massively increases the risks if data are lost.
Clause 152 would create amazingly broad exemptions to the principles of the data protection legislation. If the issue were specific exemptions from specific powers, it would be a different matter, but it is not. The Bill would allow Ministers to authorise data sharing between any person and any other person, regardless of what any other legislation—apart from the Regulation of Investigatory Powers Act 2000—says. So that would be despite what the data protection and the human rights legislation say about privacy. Under clause 152 in proposed new section 50B(h), a data-sharing order would be allowed to "modify any enactment".
Jeremy Corbyn (Islington North, Labour)
I am pleased that the hon. Gentleman has mentioned the seriousness of this part of the Bill. In his view, is it possible that information could be shared between Departments about people's opinions, activities and knowledge, rather than any criminal actions or convictions?
David Howarth (Cambridge, Liberal Democrat)
That would appear to be possible, because of the power to allow any person to share any data despite what any enactment says. The Government say that the intention is to allow Departments, public bodies and other similar organisations to share data for good purposes, but that is not what the Bill says. The Bill is not confined to public bodies and would also allow the sharing of data with private organisations in any country.
The Bill would also allow a data-sharing order to confer a power on any person to share the information further, leading to a cascade of sharing. All that can be done in furtherance of any relevant Government policy. I want to know where we can find a list of those relevant Government policies that we will be able to compare with the purposes of any particular order.
The possibilities are absurdly broad. For example, the Government would be able to share our personal data with a foreign power. Some people might think that because Barack Obama has been elected President of the US, there is nothing to fear from having our personal data shared with the US Government. I do not think that. Presidents come and presidents go. A great American political thinker once wrote:
"It is in vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm."
These provisions are based on the assumption that we are all good chaps together so the powers will not be abused. That is an assumption that we cannot make.
The provisions would also allow all the restrictions on data sharing in the Identity Cards Act 2006 to be overridden by order. Under that Act, identity data may be shared only with the bodies specified in sections 17 to 21 of the Act—the security services and, with important exceptions as to the type of data, other public authorities, departments and the police. Under the Bill, the Government would be able to authorise sharing the data collected in the national identity database with absolutely anyone without any of the safeguards in the Act. In theory, it will also be open for the Government to sell that data to the highest bidder.
The provisions also allow the override of any safeguards against the sharing of medical records and DNA records. That includes the provision of medical and DNA records not just to public authorities but to anyone, including employers, insurance companies and even the media. The same goes for tax records. Many Members will have received a briefing from Privacy International, which goes on to give yet more examples of what can be done under the provisions.
The Government say that the orders will be subject to scrutiny by the Information Commissioner and to an affirmative vote by Parliament. In extremis, all that will mean will at best be a 90-minute debate in a Committee, with the Government side of that Committee carefully chosen and a whipped deferred vote just after Prime Minister's questions.
The Government's main defence today has been that the provisions are in line with the recommendations of the Thomas and Walport review on data sharing, but that is not the case. That report did say that there should be a fast-track secondary legislation route to allow data sharing, but it also said that the power to do so should exist only in precisely defined circumstances, which is certainly not what has happened. Any person, any relevant Government policy and any enactment are hardly precise circumstances. The Thomas and Walport report expressly says at paragraph 8.47 that
"we believe this process would not be appropriate for large-scale data-sharing initiatives that would constitute very significant changes to public policy, such as those relating to the National Identity Register or the National DNA database."
That is exactly what the Bill as drafted would allow.
Alun Michael (Cardiff South & Penarth, Labour)
Does the hon. Gentleman agree with me about how the provisions of proposed new section 50A(4) apply? It requires that the
"sharing of information enabled by the order is necessary to secure a relevant policy objective",
which is, I think, the point that he has made quite strongly. However, it goes on to require that
"the effect of the provision made by the order is proportionate to that policy objective"—
and, and this is my point, that—
"the provision made by the order strikes a fair balance between the public interest and the interests of any person affected by it."
In other words, the requirement for balance in coming to a conclusion about whether data should be shared is clearly written into the Bill.
David Howarth (Cambridge, Liberal Democrat)
If the right hon. Gentleman is saying that a court might say that on judicial review, he is whistling in the wind. That is precisely the kind of provision that a court would say was plainly political and not for them to judge.
Emily Thornberry (Islington South & Finsbury, Labour)
Would the hon. Gentleman's fears be somewhat allayed if there were an express restriction in the Bill stating the need for compliance with article 8 of the Human Rights Act 1998?
David Howarth (Cambridge, Liberal Democrat)
That would help a little, but I think that it is already implied in any legislation. The circumstances in which the power can be exercised need to be reduced to the precise terms that Thomas and Walport required.
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
Does the hon. Gentleman not agree that the argument comes back to the central point that the measure has completely bypassed any public debate on the circumstances in which Parliament would even contemplate public policy objectives overriding the privacy rights that are implicit in the existing relationship when individuals give information to specific Government Departments? We will be dispensing with that without any real debate about the principles and simply creating a system in which such things can be done at will by the Government based on single votes in this House.
David Howarth (Cambridge, Liberal Democrat)
That is a very important point that goes back to debates on other Bills that create such broad powers.
May I also say to the Government that it is somewhat alarming that the recently published impact assessment on the Bill seems to mention these provisions only in passing and fails to say what the intended costs and benefits of their specific use will be? Will the Government say precisely what they intend to use the provisions for? Some examples have been given, but there seems to be no limit to what that intention could be in the future.
David Heath (Somerton & Frome, Liberal Democrat)
My hon. Friend is making a very strong case. Does he agree that even if any malevolent intent on the part of anyone in putting together these databases is discounted, it is inherent that the more information that is put into a single database and the more accretions that are there, the bigger the impact of any accidental loss of data? We have seen material being put together and then lost by Departments time and time again, to the great discomfort of the people whose information has been supplied.
David Howarth (Cambridge, Liberal Democrat)
That is the inherent problem with data sharing—it increases the risks of things going wrong, not necessarily because of malice but by accident.
My conclusion on those clauses is that, as drawn, they are outrageous. They should be withdrawn, thought about again and introduced in a separate Bill. In my view they alone, in their present state, justify rejecting the Bill.
Let me now turn to the red rag—the provisions for secret inquests without juries.
John McDonnell (Hayes & Harlington, Labour)
The hon. Gentleman is right to cite a potential parliamentary tactic, in that those measures are at the end of the Bill. Can we as a House make it clear to the Government that any programme motion on Report should not put us in a position where that subject slips off the end of the debate, as has occurred on a number of occasions with important matters?
David Howarth (Cambridge, Liberal Democrat)
That is a very important point, and I hope that the Government and the usual channels are listening.
Let us turn to subject of secret inquests without juries. My starting point is that the Bill is already somewhat defective as it fails to guarantee that there will be a jury in any case where there is reason to suspect that the death occurred in any way at the hands of the state. Provisions in the Bill move in that direction, but they do not go far enough. Deaths at the hands of the police and in custody count, but a jury should be required in any case of any death in which state power is implicated. My starting point is therefore with the jury rather than with secrecy.
There are problems with secrecy and privacy—it is important to recall the points raised by Mr. Dismore, such as the question of how a family will get closure if it is excluded from the process—but the jury is at the heart of the question. The main historic function of the inquest jury is to provide a check on the abuse of state power and on the temptations for state officials to mislead and to gloss over the facts about what has happened.
The Secretary of State's defence of the provisions on secret inquests did not go to the heart of the problem about juries. In my view, the Government appear to think that juries are not to be trusted—that juries are members of the general public and that we need to have as few of them taking part in the process as possible. That seems to me to be entirely the opposite of the attitude that we should be taking. Instead, we should be looking for ways in which juries can take part in even the most sensitive cases. As Mr. Grieve said, if there is a limit to how sensitive the information might be, we can deal with that by excluding some of it from the information made available to the juries. Our initial reaction should not be that the best thing to do is to get rid of the jury.
Such matters are very important in a range of cases. They are not merely important in the politically embarrassing cases, although they are important in those cases, too: in the de Menezes case, the Baha Mousa case, the inquests into the deaths of soldiers in Iraq and Afghanistan and any repeat of the David Kelly affair. It is enormously important from the point of view of maintaining faith in the system that when the Government assert in such a case that nothing really went wrong, they should be able to say, even if all the facts do not come out in public, that the matter was decided by independent members of the public who were not part of the state or of the Government apparatus and that those people back up what the Government say.
I admit that the provisions in this Bill are better than those in the Bill that became the Counter-Terrorism Act 2008. Thankfully, the provisions in that measure that allow the Secretary of State to influence the selection of a special, trusty coroner have been removed from this Bill. I hope that whoever advised the Government to include those outrageous provisions will never again be allowed to advise them on a matter of constitutional importance, but we are still left with inquests that are not just secret but jury-less.
The conditions under which the Secretary of State may issue a certificate that bans or removes the jury from a case are still the enormously wide ones contained in the Counter-Terrorism Act 2008. They include anything to do not just with national security but with relations with another state, and anything that the Secretary of State thinks might cause real harm to the public interest. I suppose that one might wonder what unreal harm to the public interest might be but, even so, the conditions seem extraordinarily broad
Dominic Grieve (Shadow Secretary of State for Justice, Justice; Beaconsfield, Conservative)
Does the hon. Gentleman agree that one thing that the Government could have considered, but did not, was requiring the Secretary of State to make an application to a judge to make an order?
David Howarth (Cambridge, Liberal Democrat)
Absolutely. It would be a far better procedure to put the whole question into the hands of the judiciary in the first place, rather than into the hands of the Secretary of State. Part of the background problem is that the Executive distrust almost everyone else. In the Counter-Terrorism Bill, they attempted to take control of the selection of judges: that proposal was got rid of, but they are still obsessed with having some control over getting rid of anyone in the process who they feel might not be on their side.
That leads me to another point—the link that the Bill makes between the use of intercept evidence and the absence of a jury. I and many other hon. Members favour greater use of intercept evidence in the criminal justice system in general, and I believe that many of the Government's objections to that are incomprehensible when compared with what happens in other countries. I welcome this small chink in the Government's previous opposition to the use of intercept evidence in court, but I do not like at all the way the use of intercept evidence is linked with getting rid of the jury. The idea that intercept evidence can be used only when members of the general public are excluded from a case would be a dangerous precedent to allow when it comes to the future development of this part of the law.
I object to the red rag, but the Secretary of State talked about the possibility of different proposals coming forward and of amendments being accepted. For that reason, I suspect that the person who holds the red rag will be tempted simply to put it away once the bull has charged, as it will have served its purpose and attracted our attention. Even so, if the Government are interested, I will take up their offer of trying to work towards a better solution to the problem.
I turn now to the rest of the Bill and all the square miles of text that separate the red rag from the contraband. Some of the material—such as the references to knives and criminal memoirs—is plainly designed for the media grid. By the way, the provisions relating to criminal memoirs contain an amazing section that enshrines populism in statute. When deciding what to do about criminal memoirs, the court will have to take into account whether the public would be offended by the criminal making money out of them. The Bill might as well say that the court should pay attention to what the editors of the Daily Mail and The Sun think.
I do not oppose everything in the Bill, as some of its provisions are to be welcomed, but I believe that parliamentary scrutiny of the rest of it will be largely prevented by the fact that so many different subjects have been jammed together. However, some of the material in the Bill needs more than just tidying up, because it is seriously misguided. I am referring to the attempted reforms of the law of murder, which the Secretary of State passed over very rapidly in his speech.
The impact assessment reveals that the intention of the reform is to convict more people of murder and fewer of manslaughter. It talks about 100 to 200 more murder convictions over the next eight years, at a cost of between £4 million and £8 million. People will no longer be convicted of manslaughter: they will be convicted of murder instead, but who will those people be?
One group who will be convicted of murder rather than manslaughter might be mercy killers. At present, they are often—but not always, as a case last year showed—convicted of manslaughter, rather than of murder, by reason of diminished responsibility. That is because the present definition of manslaughter is fairly loose. It says that a person
"shall not be convicted of murder if he was suffering from such abnormality of mind"
arising from inherent causes
"as substantially impaired his mental responsibility".
That is quite vague stuff, and it allows prosecutors and courts some leeway when deciding whether to go for a charge of murder or manslaughter. Under the Bill, however, the defendant will have to have suffered from a specific, recognised medical condition, and not just from some "abnormality of mind" or other problem. Moreover, the Bill requires the condition involved specifically to have caused the homicide, and not just reduced the defendant's responsibility for it.
There are different views on mercy killing. Personally, I oppose euthanasia, but I cannot see what good it does to hand out more mandatory life sentences to mercy killers as opposed to letting the judge decide the penalty. That penalty might be life, but need not be in any given case.
The current law includes a phrase about the arrested development of mind, but this Bill leaves it out. Combined with the strict causation requirement, and given what happens in the courts now, that seems to me likely to mean that another group of people—those with learning difficulties—will be convicted of murder rather than manslaughter. Why do the Government want that to happen?
I turn now from diminished responsibility to provocation. There is further confusion in the Government's proposals on provocation, which have been variously described as "a dog's breakfast" and "a pantomime horse". One group of defendants who under the new definitions might well find themselves convicted of murder rather than manslaughter—although that would be contrary to what the Government apparently intend—are abused wives. The Bill retains a condition in the current law that has often thrown into doubt an abused wife's ability to use a provocation defence. That condition is that there must be a loss of control.
I am not a criminal lawyer, so I have always been rather puzzled by the requirement in the law that there must be a loss of control for provocation to reduce murder to manslaughter. It seems to me that, apart from contract killings, all murders involve some sort of loss of control, but I am reliably informed that that is not the view that the law takes and that wives who kill their abusive husbands by waiting for them to go to sleep and then attacking them, for example, are usually said not to have lost control.
The Bill seeks to overcome that problem by declaring in clause 41(2) that
"it does not matter whether...the loss of control was sudden."
That does not seem to help at all. Loss of control must happen at some point. Someone has control, and then they do not. In some cases, there might be a longer lead-in time for the loss of control—it might take a longer time, rather than a shorter one, to lose control—but in the end, there comes a point where control is lost. A statute can do many things, but it cannot change reality. An abused wife will have to show that she lost control at the point that she killed to qualify under the statute. If she has not lost control at that point, she will still be guilty of murder.
The Government also say that clause 42(3) means that it is enough to convert murder to manslaughter through provocation, or what replaces it, to fear serious violence from the husband, but that is not what the clause says. It says that a loss of control can be attributable to such a fear. If there is no loss of control in the first place, the fear is not relevant. So I fear that, under the Bill, the 100 to 200 extra convictions for murder will include abused wives.
Another type of defendant—perhaps it is one with which Members will have less sympathy, but such cases happen—who will be convicted of murder under the Bill, as opposed to manslaughter, is those currently covered by the Doughty decision: parents who were previously loving and caring but who, under pressure of stress and fatigue over a long period, suddenly snap and kill their children. They are not threatened with serious violence, but neither do they have, in the words of the statute,
"a justifiable sense of being seriously wronged".
Such people would not be able to bring themselves at all within what those words describe. They lose their temper, although under serious stress. Perhaps the Government intend that such defendants should be convicted of murder, rather than manslaughter, and receive the mandatory life sentence, but they have not said so, and it is unclear to me why they would want that.
Who are the 100 to 200 people? The Government presumably think that there will be a whole new group of men convicted of murder, rather than manslaughter, by virtue of the sexual infidelity clause. I doubt very much whether there are many cases of that sort at all, at least in England. There was one such case in Scotland not so long ago. As far as I can tell from the past 10 or 20 years, that attempted defence usually fails. These days, if sexual infidelity is relevant at all in a murder case, it is relevant in terms of diminished responsibility, rather than provocation, so I do not think that the prisons will be filled with men who previously would not have received a mandatory life sentence by reason of a crime passionnel. In fact, as the hon. and learned Member for Beaconsfield mentioned, the existence of that clause is somewhat puzzling. Why has that form of provocation been picked out for legislative treatment when other forms have not?
The other form of provocation and loss of control that has not been picked out for special mention and been ruled out by the Bill relates to honour killings. I am surprised that the Government seem to have gone that way. Disturbingly, the Bill seems to be almost designed to allow honour killings to count as manslaughter, not murder. The Human Rights Watch definition of honour killing is
"acts of violence, usually murder, committed by male family members against female family members, who are held to have brought dishonour upon the family. A woman can be targeted by individuals within her family for a variety of reasons, including refusing to enter into an arranged marriage, being the victim of a sexual assault, seeking a divorce—even...allegedly committing adultery."
Let us take the example of a woman who refused to enter into a forced marriage. The Bill potentially treats such a case as one of losing control by reason of having a sense of being seriously wronged. Admittedly, the word "justifiable" comes into the definition, but the question is: justifiable to whom? The Bill does not say, and in any case the issue seems to be left eventually to the jury. The same point applies to other parts of the definition. In picking out sexual infidelity, but not picking out honour killing, the Bill is doing something quite disturbing. The whole attempt to deal with the law of murder seems to be arbitrary. I urge the Government to recognise that clauses 39 to 43 are a mess and should be withdrawn.
I do not want to take much more time going through the other 28 topics in the Bill, but I should like to make a few brief comments on the rest of the Bill. On suicide websites, I note with alarm that the relevant clauses are not in any way confined to the specific issue of suicide websites but will replace the whole of the present law on encouraging and assisting suicide, by removing any sense that the encouragement or assistance of suicide must be aimed at a specific person or group of people.
No one, especially parents, can condone those irresponsible and dangerous websites that encourage possibly unstable young people to take their own lives, but encouraging suicide, which is what those websites do, and assisting suicide are different things. Encouraging suicide takes place before the person has decided to commit suicide and is entirely reprehensible, whether it is aimed at a specific person or at the world in general. In that sense, what the Government are doing is right, but assisting suicide can, by contrast, occur after the person has autonomously decided to commit suicide.
Many hon. Members think that assisting suicide is also wrong, but if it is wrong, it is a different sort of wrong from encouraging suicide. Other hon. Members think that assisting suicide is not necessarily wrong if the right sort of safeguards are in place. That, of course, is the position of my party. Admittedly, some forms of assisting suicide could amount to encouraging suicide in some circumstances, but that is precisely what the debate on safeguards is about. I should like the two issues of encouraging suicide and assisting suicide to be clearly separated, and the Bill simply does not do that.
On anonymous witnesses, I simply note that the Bill does not deal with the central problem that was raised when we discussed the temporary Bill last summer: the provision of independent or special counsel, which would overcome many of the difficulties that that Bill produced.
The provision on the anonymity of witnesses in investigations seems useful, but will it really help? There is a serious problem with witnesses not coming forward in gang-type crimes, but the Government are suggesting that it will be a crime for someone to give the name of someone about whom an order has been made to another person, where an investigation has taken place into gang crime. The question is: who will be the defendant in such a prosecution? The answer, it seems, is that it could only be a police officer, so we are making it a crime for a police officer to give out the name of a potential witness. Let us think about the reality of the situation. Will it really have a big effect on potential witnesses from estates threatened by gang violence if the police can say to them, "Don't worry, we'll make an order protecting your identity, and if it is broken, the police will prosecute the police"? That does not seem a very practical idea to increase the confidence of witnesses. Witnesses are certainly threatened; I do not deny the existence of the problem, but the measure seems more symbolic than real.
I urge the House to look at clause 87, which deals with the examination of the accused through intermediaries. It is about the problem of what happens when someone is suffering from a mental illness or other disability and cannot give evidence. There is already provision for ordinary witnesses to be asked questions through intermediaries; that is there to help them. The Bill extends that facility to defendants, but there is a serious question: if a defendant cannot understand the proceedings to the extent that they need that help, why are they on trial? Why are they not unfit to plead? So far, the Government have produced no explanation on that.
The Bill contains a lot of good stuff about video-recording evidence and live links, but I have a question on clause 94, in which the Government propose a subtle amendment to section 138 of the Criminal Justice Act 2003. It looks good, except for the fact that the provision has never been brought into force, although the Government have had six years to do so. Why are they amending something that they could not be bothered bring into force in the first place?
I have a similar question on the bail provisions. I can find no impact assessment on what effect changing the rules on bail for those charged with murder is expected to have. At any one time, about 50 or 60 people accused of murder appear to be on bail. How many of those people do the Government expect to be remanded in custody as a result of the Bill, and what change do the Government expect that to make to a person's chances of being the victim of murder?
My final point is on the sentencing council. The Government are to be congratulated on not falling for the most prescriptive models for sentencing guidelines, although they have chosen a fairly restrictive model. They are also to be congratulated on the provision that the Secretary of State mentioned, under which the council should take into account the relative effectiveness of sentences in preventing reoffending. I agree strongly with what the right hon. Member for Cardiff, South and Penarth said about what works; that has to be built into the criminal justice system from top to bottom.
The problem is that the Government seem to be pursuing two entirely different criminal justice policies in the same Bill. The model of the grid that they put forward seems entirely predicated on the seriousness of the offence and the harm caused. When it comes to carrying out the guidelines in practice, as opposed to talking vaguely about them, the guidelines have no room for preventing reoffending. For the success of restorative justice programmes, what matters might well be whether the offence was committed against a specific human victim—the right hon. Member for Cardiff, South and Penarth mentioned this point—who is willing to take part in a process of restorative justice.
For treatment options, such as treatment for drug and alcohol misuse, the personal characteristics of the offender might matter more than the nature of the offence. The sentencing ranges that the Government have chosen are built entirely on the retribution view of sentencing. In practice, that view will completely squeeze out all the things that the right hon. Gentleman and I want to see in those guidelines. That matters, because although the Secretary of State is right that putting the victim at the heart of the criminal justice system is important, it is also important that we consider not only present and past victims, but future ones. The purpose of the criminal justice system must be to ensure, as far as is possible, that there are as few future victims as possible.
I therefore ask the House, for the reasons set out in our amendment, not to pass the Bill today. It contains some good proposals, but also dangerous proposals on data sharing, and proposals on secret inquests that are, though a red rag, undesirable. A lot of the rest of the Bill seems ill-thought-through, rushed and muddled.
Sylvia Heal (Deputy Speaker)
May I make a plea to Members? I estimate that there are approximately three hours left for this debate. May I ask you all to consider carefully the length of your contribution, so that more people can catch my eye? I call Mr. George Howarth.
George Howarth (Knowsley North & Sefton East, Labour)
Thank you, Madam Deputy Speaker. I shall try to follow your advice as closely as possible; I know that it makes sense. It is a pleasure to follow David Howarth. Some of his points are sensible, others less so. I shall make just one point on what he said about anonymous witnesses. He must be aware that there are hundreds, or more likely thousands, of violent gangsters and others in this country who do not get brought to justice because everybody is far too afraid to act as a witness. He needs to be aware of that fact. As the provisions that my right hon. Friend the Secretary of State is trying to introduce on anonymous witnesses are meant to address that specific problem, the hon. Member for Cambridge should not be so squeamish about the means of dealing with the issue.
David Howarth (Cambridge, Liberal Democrat)
My point about anonymous witnesses in investigations was not that there is not a problem; there is a very serious problem. My point was that I do not think that the provisions will work. They will not make things any better.
George Howarth (Knowsley North & Sefton East, Labour)
The hon. Gentleman has at least gone part of the way with me in recognising the problem, but having recognised it, he must at some stage will the means to resolve it. If he does not think that the proposals are the means, he needs to come up with something that will address that very real problem.
I did not intend to go off on that diversion. I intended to begin by commenting briefly on the Bill's provisions for reform of the coroner system. I come to this subject from the perspective of having a number of constituents who tragically lost loved ones in the Hillsborough disaster on
The individual mini-inquests were held on the revolving door principle, with approximately eight cases being heard a day. That was a horrendous experience for the families involved. The gross insensitivity of focusing on the blood alcohol readings created the wholly false impression that that was a significant contributory factor in the disaster, when it had already been established by the Taylor inquiry that
"the main reason for the disaster was the failure of police control".
I mention this not to rake over the coals of the tragedy, but to highlight why the coroner's procedure caused such distress and offence to the bereaved families. For this reason I welcome the reforms proposed in the Bill, at least in principle. However, I ask Ministers to reflect on my comments on the Hillsborough mini-inquests and see whether the Bill can be improved to ensure that that situation is never allowed to occur again. I hope there will never be another disaster on that scale, but I also hope that if there ever is, the bereaved families will not be put through the wringer as the Hillsborough families were.
I turn to the sentencing provisions in part 4. I had the privilege of serving on the sentencing working group which, following the Carter report, was charged with examining the merits and feasibility of a structured sentencing framework and establishing a sentencing commission. The group, which was expertly chaired by Lord Justice Gage, made a number of recommendations, many of which, I am pleased to say, have found their way into the Bill.
Because sentencing has such an immediate and real effect, it is one of those areas where there should be a clear link between the detail of the policy, the underlying principles and the practical consequences that follow. We have a duty to ensure that sentencing policy is fair to the victims of crime, that society as a whole has confidence in our justice system, and that offenders recognise that the sentences that they receive are proportionate to their crimes and are consistently applied. Regrettably, a lack of consistency is a significant contributory factor to the alarming decline in public confidence in the criminal justice system in recent years, and we must recognise that.
We should also recognise that sentencing has a direct impact on offending in three ways. First, the most direct impact, surprisingly, is the most overlooked. It is difficult for most offenders to commit further crimes while they are serving a custodial sentence. As Mr. Howard put it when he was Home Secretary, prison does work—in that context, at least.
Secondly, sentences should, wherever possible, include the potential for practical and effective rehabilitation. I use the words "practical" and "effective" advisedly. We must be honest. Not all rehabilitation, and not all community sentences, are effective. We should not believe that in every case they are a panacea. In some cases they are not. Thirdly, sentences act as a deterrent that reduces reoffending and discourages offending in the first place. All three impacts are too often overlooked.
On the practicalities of sentencing, Mr. Grieve seemed to get himself in a muddle. I say that with regret. When I listen to him in the House, he is usually fluent, tolerant and logical, but in his speech he created a muddle between the idea of balancing correctional resources and the sentences that are passed. He railed, rightly, against early release schemes. I agree with him. There is nothing worse than an early release scheme for undermining the whole sentencing system. By definition, releasing anyone early without good reason undermines the sentence that the court passed on them.
However, the hon. and learned Gentleman ruled out any predictability in the need for correctional resources. He said that it was up to the courts to decide what those should be, but if we do not predict with more accuracy than in the past how many prison places are needed, or how many places are needed on community sentences, the inevitable consequence is that sometimes we will get it wrong. If we under-provide, there is only one way to deal with that—by means of early release schemes. That is what has happened repeatedly in the post-war history of sentencing. At some point, there is no alternative. The hon. and learned Gentleman cannot have it both ways. Either there is predictability in the system so that we have a reasonable idea what correctional facilities are necessary, or there is no predictability, and at some point in the cycle, early release schemes will have to be introduced.
While serving on the sentencing working group, I was surprised and disappointed to discover—this is another point that the hon. and learned Gentleman failed to take into account—how little we know about, and how little we are able to measure, the variations in sentencing. We commissioned a limited survey of our own, which I do not claim was the last word on the subject. It revealed a number of interesting facts, the most notable of which was that almost half the sentences passed by the courts in England fell outside the guideline ranges.
Courts need to have some flexibility and to exercise some judgment, but do we really think that 50 per cent. of their sentences falling outside the guideline ranges is a good thing? Does any hon. Member want to interrupt me and say, "Surely we should celebrate that"? If nobody is prepared to do that, there must be a general acceptance that it is not a good thing. Whether courts are over-sentencing or under-sentencing, that cannot be right. We need far more information and a clearer picture of what is going on throughout the country. My right hon. Friend the Secretary of State and other Ministers have accepted that we need more data so that we can be clearer about how the sentencing system is working. I welcome the fact that the Bill provides for that.
Four key issues are pertinent to the Bill. The first is the challenge of balancing consistency with judicial flexibility in individual cases. The second is the challenge of ensuring that there are adequate correctional resources available to meet demand without compromising justice in individual cases. The third is the role of the Lord Chief Justice in the new sentencing council, and the fourth is the role of Parliament in setting guidelines.
On the challenge of balancing consistency and flexibility, the group on which I served was extremely clear that there needs to be improved consistency in sentencing, while still allowing for judicial flexibility in individual cases. We recommended, for example, that there should be definitive guidelines for all major high-volume offences, and further narrative guidance on the treatment of previous convictions and aggravating and mitigating factors. To be fair, we were less clear about how to deal with cases where the intended sentence departed from the normal range.
At present, the court is required to have regard to any guidelines relevant to the offender's case. Discretion to stray from those guidelines can be granted only if the court can give reasons for such a departure. There is an alternative approach, which gives the courts more flexibility and simply requires guidelines to be followed unless the court is satisfied that that would be contrary to the interests of justice. Although the majority of the sentencing working group supported that approach, my own view, as indicated in the report, is that the existing requirements should be retained because they provide more consistency while still allowing flexibility in individual cases.
Clause 103 sets specific requirements on how sentencing guidelines should be laid out by the sentencing council. In my view, the clause contains little, if anything, that is not already covered in at least some of the sentencing guidelines. However, specifying the requirements in the Bill will help to achieve the aim of greater predictability and assist attempts to collect relevant data on actual sentencing practice across the whole country. Having a greater understanding of that practice will help the planning of correctional resources to be more effective, and give us the opportunity to revisit the issue of consistency in sentencing in a more informed way in future.
That leads to my second point, which is about the challenge of ensuring that adequate correctional resources are available to meet the demands of the criminal justice system, while also ensuring that individual circumstances are taken into account. The sentencing working group recognised that it is important to match the supply of correctional services to the demand for them. We considered the practicality of giving the sentencing council a duty to design guidelines that would match capacity. However, given the lack of systematic information available on sentences passed, we concluded that that would be impractical. Instead, we recommended that Parliament should express its intentions with regard to correctional resources at regular intervals. Personally, I believe that Sir Alan Beith and his Select Committee could have a role in that, although to make that case in this debate would probably stretch the point too far; perhaps it would be better to debate the issue in Committee.
Our view was that the effect of such an obligation on Parliament, combined with an assessment by the sentencing council of the effects of guidelines on correctional resources, would allow for more rational planning. As I outlined earlier, the ability of the correctional system to cope with demand is an essential element in achieving justice.
The third issue that I wish to cover is the role of the Lord Chief Justice in the new sentencing council. There has been some debate about that. Our working group studied the matter carefully, and we were clear that the workload of the chair of the sentencing council would be too substantial for the Lord Chief Justice to be appropriate; it would require a commensurate time commitment. However, we did recommend that the chair should be a member of the senior judiciary, appointed by both the Lord Chief Justice and the Lord Chancellor. It is clear to me, however, that the Lord Chief Justice should have a transparent and formal mechanism so that he can have some input into the work of the council. Perhaps that could be achieved through an appointed representative empowered to speak on his behalf during any deliberations in the council.
My final point is about the role of Parliament in setting sentencing guidelines. The working group did not come to a unanimous view on the role of Parliament. The majority believed that it would be inappropriate for there to be a duty requiring the sentencing council to consider Parliament's intentions on resources when formulating guidelines, and that Parliament should have no role in approving any guidelines before they are implemented. The minority view of the group—a view that I share—supported a more active role for Parliament, perhaps including the Justice Committee, in relation to both those points. That would mean that the sentencing council would have a statutory duty to consider Parliament's intention in relation to resources, and that Parliament would be able to approve guidelines before they came into practice. The obvious rationale for that approach is that, ultimately, Parliament is the only mechanism available for public accountability in relation to sentencing and its implementation. Manifestly, an independent judiciary cannot be held accountable in the same way.
We need to recognise that a fair sentencing system requires the application of clear principles. In turn, a more consistent approach, flexible enough to take individual circumstances into account, will reduce unexplained variation and reoffending, and could increase public confidence. I welcome and support the Bill, but I give notice that at a later stage—and subject to further consideration of the issues to which I have referred—I might well table my own amendments.
Paul Beresford (Mole Valley, Conservative)
I intend to be succinct, as requested. I am encouraged in that by my awareness that there are a plethora of lawyers here straining at the leash to gnaw at this amalgam of a Bill. I shall touch on just two points. First, I support my hon. and learned Friend Mr. Grieve on clause 152, about which I am deeply concerned. Personally, I feel that it is a further step down the "brave new world" path.
Last year, I put it to Mr. Hanson, a Minister at the Ministry of Justice, that the more the Government increase personal data and centralise them, the more valuable those data will become to those whom we would all wish not to have them. The Minister answered that there would be tough safeguards. That is utterly inadequate. First, the Government's record on losing data is spectacularly poor. Secondly, if the Pentagon computers can be hacked into, I suspect that Ministry of Justice files and many of the others can also be hacked into, perhaps more easily.
Thirdly, and more fundamentally, there is no real safeguard against an individual with key access being paid or politically persuaded to provide illegal access. When, last year, I put that concern to the Association of Chief Police Officers representative leading on the central records, such as DNA records, of criminal—and now, increasingly, non-criminal—individuals, he admitted that that was his one greatest area of fear, deep fear. Many of us have watched with deepening concern the Government's increasing collection of personal data on individuals and the consequential state intrusion into our personal lives. I see this step as representing an appalling risk of further infringement. It would be nice to think that, under persuasion, Ministers would step back—but somehow, I doubt whether they will. I hope that the next Government—a Conservative one—will draw back on that issue, and on others.
I now turn to a more positive issue for me personally. My main interest in the Bill is about the aspects that relate to children and crimes against them. I shall pick only one of them—the provisions relating to images of children. Those provisions represent a new change, one that for some years I have been trying to put on the statute book through discussions with Ministers and attempted amendments, and I welcome them. It has been well known for some time that the quality of computer-generated images is such that computer-literate paedophiles have been using software to produce pseudo-images of child abuse pornography. I am delighted that, at long last, Ministers have recognised the concerns; hence the new legislation.
However, I should also like to suggest some concerns. Clause 53 outlines the penalty for the new offence. Interestingly, as I read the clause, the convicted offender will not automatically be placed on the sex offenders register. As he winds up, will the Minister say whether I am correct? If I am, could such a provision be added at the appropriate stage? Secondly, the maximum penalty for making or distributing indecent photographs or pseudo-photographs of child abuse is 10 years, while the maximum penalty for possession of such photographs or pseudo-photographs is five years. Clause 53 sets a maximum penalty of three years. It seems more appropriate that the maximum penalty in the clause should be similar to those that I mentioned—five years for possession, and 10 for making and distributing. I anticipate that in cases involving pseudo-photographs, the defence will argue that they were generated by computer images, involving a lesser penalty of three years. I ask the Ministers to think carefully about that.
Finally—and succinctly—I would like to draw the Minister's attention to a missed opportunity. The success of this clause, and others concerning similar photographs, depends on detection. One of the difficulties is the increasing use of encryption. Under the Regulation of Investigatory Powers Act 2000, the maximum penalty for failure to produce, on request by the police, the key to access such data is two years. It is blindingly obvious that any individual arrested on suspicion of having encrypted data relating to sexual abuse of children, including under these clauses, will refuse to give the key and risk a penalty of two years instead of revealing the key and risking a penalty of three, five or 10 years, as appropriate. I have raised this concern many times before, and perhaps the simplest way of concluding is to draw the Minister's attention to my private Member's Bill, which he might like to pick up and adapt to this Bill at the appropriate time.
