Crime and Courts Bill [HL] — Second Reading
Lord Henley (Conservative)
My Lords, the Crime and Courts Bill represents the next stage of our reform of the justice system. Last Session, we legislated to strengthen public accountability of local policing by introducing directly elected police and crime commissioners and by bringing forward reforms to reduce reoffending and put the legal aid system on a sustainable path. However, we need to do more to protect the public and to improve further the efficiency, responsiveness and transparency of the justice system. This Bill is directed to those ends.
Part 1 will establish the National Crime Agency. Organised crime costs this country between £20 billion and £40 billion a year. It manifests itself in street corner drug dealing, in the trafficking of men and women forced into modern-day bonded servitude or prostitution, in the online sharing of horrific images of sexually abused children and in cyber-enabled scams that deprive people of their life savings. With some 7,000 organised crime groups operating in this country, we need a more effective response if we are to tackle the human misery they inflict.
The question-why do we need a new agency when the Serious Organised Crime Agency has only been operating for six years?-has quite rightly been posed. I pay tribute to all those working in SOCA. They have had many successes and have earned a high reputation in their dealings with overseas law enforcement agencies, but the threat posed by serious and organised crime is changing and our response needs to adapt and evolve if we are to counter the threat effectively.
The National Crime Agency will have a wider remit to tackle serious and organised crime at the borders, fight fraud and cybercrime and protect children from sexual exploitation. For the first time, the agency will produce a single, authoritative intelligence picture on organised criminal gangs and their activities that will provide the basis for a co-ordinated national response.
Working in collaboration with other law enforcement agencies, the National Crime Agency will prioritise resources and ensure a joined-up approach to the activities undertaken at the local, national and international level to disrupt organised crime gangs and bring their members to justice.
The National Crime Agency's relationship with police forces and others will be based on a partnership, with the mutual exchanges of information and the provision of two-way operational support. Importantly, however, the Bill provides that the director-general should, in exceptional circumstances, be able to direct police forces in England and Wales to undertake a specific task, for example to take action against a particular criminal gang based in the force area.
I fully expect that this power will be rarely used, but it is a necessary back-stop to underpin the strategic policing requirement that supports chief officers and police and crime commissioners in effectively balancing local and national priorities.
In addition to its core crime reduction and criminal intelligence functions, Clause 2 enables the Home Secretary to confer counterterrorism functions on the National Crime Agency. With the creation of this powerful new crime-fighting agency, it is sensible that we build in flexibility to confer on the NCA counterterrorism functions if, in the future, there is a compelling case for doing so. This is not the time for a review of counterterrorism policing. For the present, we need to focus on delivering a safe and secure Olympics and on firmly establishing the National Crime Agency in fact as well as in law. I recognise that any decision in this area should be subject to particularly careful consultation and scrutiny, and that is why we have made this order-making power subject to the super-affirmative procedure.
The National Crime Agency will be headed by a director-general, operationally independent but accountable to the Home Secretary and, through her, to Parliament. The director-general will first and foremost be an operational crime-fighter, and for that reason the Bill provides a mechanism for the director-general to be vested with operational powers.
Given the breadth of the agency's remit, including its central role in leading the operational response to serious immigration crime and preventing the importation of drugs and firearms, the director-general and NCA officers will in appropriate cases need to be able to exercise the full suite of powers of a police, immigration and customs officer. In all cases, this will be subject to proper training.
As a law enforcement organisation operating 24 hours a day, seven days a week, it is essential that the agency remains operationally effective at all times. We cannot be faced with a situation in which public safety is put at risk by operational NCA officers taking industrial action. NCA officers who are designated with operational powers will therefore be precluded from taking strike action in the same way as police officers are. Our preference is that we can reach a voluntary no-strike agreement with the NCA staff and their representatives, and in that event the statutory no-strike provisions can be put into abeyance.
The provisions in Part 2 will further our reforms of the courts and tribunals system so that it is more responsive to the needs of users, more transparent to the public in how it operates, more representative of the communities it services and more efficient and effective in its use of resources.
Responsiveness to users is the driving force behind the creation of the single county court and the single family court. The current structure of 170 geographically and legally separate county courts, some dealing only with routine civil cases while others also handle more complex areas of the civil law, is both confusing to litigants and an inefficient use of resources. There is a similar confusing set of arrangements for dealing with family proceedings, with different types of cases being dealt with in the High Court, county courts and magistrates' courts.
County court users will be able to issue their claim at the court that best meets their needs. That may still be their local court, but equally it could be the nearest to where they work or where waiting times are significantly shorter. It will enable the court estate and the available judicial resources to be utilised more efficiently to facilitate the quicker resolution of cases across the board.
Similarly, the creation of the single family court will make it easier for users to navigate their way through the system, and enable cases to be allocated to the appropriate level of judiciary without the need to transfer proceedings to a different level of court, thereby reducing costs and delays.
Our proposals to introduce greater flexibility in the deployment of members of the judiciary seek to secure a similar outcome in improved efficiency. The deployment of the judiciary is properly a matter for the Lord Chief Justice and the senior president of tribunals. The Bill does not change that, but it affords them greater flexibility by expanding the list of judicial office holders who are capable of sitting in each court or tribunal. Such flexibility will enable the available pool of judges to be used to best effect, thereby further contributing to the quicker resolution of cases.
Our judiciary has a worldwide reputation for integrity and independence. This, in no small measure, is down to the process by which judges are appointed. That process was the subject of significant overhaul with the passage of the Constitutional Reform Act and the creation of the Judicial Appointments Commission. Those reforms have led to increased public confidence in the appointments process by making it more independent and transparent, but after six years of operation it is right that we take stock of the new regime to see where we can make further improvements.
One such area relates to judicial diversity. Progress has undoubtedly been made over the past decade. Ten years ago, little over 10% of judges were women and around 2% were from a black or other minority ethnic background. Today those figures are 22% and 5% respectively. That is welcome progress, but we need to do better to ensure that the judiciary fully reflects the communities that it serves.
Of course, further legislation on its own is not the answer, but there are some useful measures that we can and should take to promote greater diversity. In particular, the Bill will facilitate greater opportunities for part-time working at the most senior levels of the judiciary by providing for the statutory limits on the number of High Court, Court of Appeal and Supreme Court judges to be expressed in full-time equivalents. We are also providing, where two candidates are equally meritorious, that it will be possible to select the candidate from an underrepresented group.
We are also taking the opportunity to achieve a better balance between executive, judicial and independent responsibilities in the appointments process. The Lord Chancellor has a legitimate role to play in ensuring the efficiency, effectiveness and integrity of the appointments process as a whole. This does not mean that the Lord Chancellor needs to have a hand in all judicial appointments. Accordingly, the Bill transfers to the Lord Chief Justice and the Senior President of Tribunals the Lord Chancellor's responsibilities for the appointment of some judges below the High Court.
However, when it comes to the appointments of the president of the Supreme Court and the Lord Chief Justice, we believe it is right that the Lord Chancellor should have a meaningful role in the process, given that the holders of both these offices have a significant influence on the administration of justice. We do not consider that this change will politicise these appointments. They will continue to be made solely on merit, and the Lord Chancellor will be one among five or more on a selection panel. Furthermore, where he sits on the panel, the Lord Chancellor will lose his current right to reject the panel's recommendation.
Fines are the most common form of sentence imposed in the criminal courts, accounting for nearly two-thirds of all sentences. As with other non-custodial sentences, the public must have confidence in this form of disposal. Significant improvements have been made in the enforcement of fines in recent years, but we need to do more. This is why the Bill provides that, where an offender defaults on the payment of a fine, the additional collection costs fall to the offender rather than to the taxpayer, thereby providing an added incentive to offenders to pay their fines on time.
As I have indicated, it is vital that the law-abiding public should have confidence in all non-custodial sentences. While there are some good examples of effective community sentences that reduce reoffending, all too often such sentences fail to command public confidence as a punishment. That is why we are consulting on proposals to improve the effectiveness of community disposals, including ways of ensuring that there is a clear punitive element in every community order. The current consultation runs to
Lastly, this part also contains an important provision that will help to increase public understanding of the justice system. Most members of the public have no direct personal experience of what goes on inside a courtroom. Their perceptions will be derived from TV dramas that more often than not give a distorted view of reality. Allowing the broadcasting of judicial proceedings will help to demystify the workings of the justice system and increase public confidence. Of course, there is a balance to be struck between increased transparency and the safeguarding of the proper administration of justice. To this end, we want to start by allowing the broadcasting of advocates' arguments and judgments in the Court of Appeal before extending this to sentencing remarks in the Crown Court. However, I can assure the House that there is no question of victims, witnesses, defendants or jurors being filmed.
Part 3 of this Bill makes two changes to the immigration appeals system. First, we are removing the full right of appeal against the refusal of a visa to visit family members in the United Kingdom. No other category of visit visa attracts a full right of appeal, and in the Government's view it is a disproportionate use of taxpayers' money. Moreover, the family visit visa appeal right no longer serves its intended purpose. It is very expensive to administer, costing around £29 million a year, and has lengthy processing times, taking up to eight months to conclude an appeal. In many cases appeals are successful because new evidence has been submitted by the applicant. If an applicant has new evidence in support of a visa application, we believe that the proper course is to submit a fresh application and not to seek a new decision through the appeals system.
Part 3 also removes the in-country right of appeal in cases where existing leave has been cancelled in line with a decision to exclude a person from the United Kingdom on the grounds that their presence is not conducive to the public good. A decision to exclude a person on such grounds is taken personally by the Home Secretary on the basis that their presence in this country presents a risk to national security or public safety. It is anomalous that in such cases the excluded person should be able to enter, and remain in, this country pending the outcome of an appeal against the cancellation of their leave. The current arrangements undermine the intended effect of the exclusion decision, and the Bill will rectify this. We are not removing this appeal right, but in future it will be exercisable from outside the country.
Finally, Clause 27 introduces a new, specific offence of drug driving. Figures for 2010 identified impairment by drugs as a contributory factor in nearly 1,100 road casualties, including some 50 deaths. We also know from studies that the extent of the road casualty problem is a lot greater than these reported statistics suggest. We need to do more to tackle this scourge and to protect road users. There is already an offence of driving while being unfit through drugs, but there are few convictions because of the requirement to prove impairment. The new offence is modelled on the analogous drink-driving offence, where it is not necessary to prove impairment but simply that the driver had a concentration of alcohol in his or her body above the prescribed limit.
A person will be guilty of the new drug-driving offence if found to have in his or her body a concentration of a specified controlled drug in excess of the specified limit for that drug. The maximum penalty will be the same as for the analogous drink-driving offence: namely, in the case of a person driving or attempting to drive a vehicle, six months' imprisonment or a £5,000 fine, or both, and disqualification from driving for at least 12 months. The new offence will, we believe, make a significant contribution to road safety and is one that has been widely welcomed by road safety campaigners. The objectives underpinning this Bill are, I think, ones that the whole House can support. The provisions themselves are equally deserving of your Lordships' support, and I commend the Bill to the House. I beg to move.
Baroness Smith of Basildon (Labour)
My Lords, I am grateful to the Minister for his explanation of the Bill. I have listened carefully to his comments and there is much in the Bill that we can support in principle. It is the Government's flagship crime Bill, brought to your Lordships' House as one of the early Bills of the Government's second Session, and yet it is both disappointing and deficient. We are now seeing increases in crimes, including a 13% increase in personal acquisitive crime, the cutting of 16,000 police from our streets and budget cuts of 20% when Her Majesty's Inspectorate of Constabulary and the Audit Commission have both warned that cuts of over 12% were unsustainable and would lead to a worse service. Here we have a Bill that, as its top headline, changes the architecture of how we tackle serious and organised crime. It is not enough and is a lost opportunity to tackle the issues that the public tell us hurt them most. I have to say to the Government that making such major changes at a time of such deep and unprecedented financial cuts increases the risks in making those changes.
We broadly welcome the creation of a National Crime Agency but there are significant points of detail that the Bill either fails to address or raises issues that give cause for concern. I wonder whether the Bill has been introduced before it is really ready and before the detail has been worked out by the Government. The Government have had two years to work out the detail of their proposals but have brought forward a Bill which may be worthy in principle but lacks the detail that underpins those principles. I will give two examples of that. The Bill is in three parts. The whole of Part 1 establishes the National Crime Agency, which is essentially a reorganisation of existing organisations established by the Labour Government, with a few changes. The Bill makes provision for the National Crime Agency framework document which will deal, to quote from Schedule 2,
"with ways in which the NCA is to operate, including ... ways in which ... functions are to be exercised ... and ... ways in which the NCA is to be administered (including governance and finances of the NCA)".
Basically, that is everything it does and how it will be done. However, that framework document, which is the basis for the whole operation of the NCA, will not be available until the Report stage in your Lordships' House. It will not even be available for our deliberations in Committee. Why? It is not good enough that we will not have this information for our Committee stage.
The second example is the community sentencing in Clause 23. Clause 23 states:
"The Secretary of State may by regulations make provision for, or in connection with, dealing non-custodially with offenders aged 18 or over".
Again, that is wholly inadequate. Why is there no further information or detail? It is because the Government have not yet completed their consultation on this matter, so this clause cannot be taken sequentially, but at some later late, after the Summer Recess, when the Government will have to table amendments to the Bill. Despite the fact that the consultation ends in June, those amendments will not be available to your Lordships' House before the Summer Recess starts. I have to say to the Minister that this is a bad start to a Government flagship Bill.
After two years in Government it is hard to understand why this information has not been made available to your Lordships' House. I suspect that the timing of the Bill has been partially driven by clauses within it that provide for the abolition of the National Police Improvement Agency, when its dismantling is already taking place before the legislative changes have been made. I hope that Ministers will take these concerns on board and look at ways in which they can improve this situation. We would be happy to discuss these issues further with them. However, as I have said, there is much in the principle of the Bill that we can support, but there are significant points of detail that we will want to probe further in Committee.
First, I will raise the issue of governance and accountability of the NCA. Obviously, we want the NCA to be successful. After all, the Labour Government set up the bodies that will comprise the bulk of its work: the Serious Organised Crime Agency, the Child Exploitation and Online Protection Centre, and the National Police Improvement Agency. However, there is a lack of clarity in some areas and there are also significant changes that require explanation and some justification from the Government.
What we know of the governance issues, given that we do not have the framework document, is weak. The legislation provides that the police and crime commissioners can be consulted, but do not have to be consulted, in setting the strategic priorities of the NCA and the NCA's annual plan. It is not clear what that will mean in practice and what regard, or what weight, the director-general of the NCA or the Secretary of State will place on the collective opinions of the PCCs.
The PCCs have to ensure that the chief constable co-operates with the NCA. But what will happen when the NCA priorities conflict with the PCC plans, and PCCs have not had the opportunity to make a contribution or feed into the strategic priorities of the NCA, or if they have fed information in and it has not been taken on board? How will any such conflict be addressed and resolved?
The Government have made it clear, through the Policing Protocol Order 2011 and the Police Reform and Social Responsibility Act 2011, that the new PCCs are responsible "for the totality of policing" in their area, that they are publicly accountable, and that they have the power to discipline and even remove a chief constable from office. I can understand why it could be desirable, in certain circumstances, for the NCA to have the power of direction over chief constables. However, it is a major and significant change, and the Government have to explain why it is necessary and in what circumstances.
I listened carefully to what the Minister had to say in his comments, and he referred to this being used in extreme or exceptional cases and only within the police force area. I have to say to him that that is not in the legislation. Although Clause 6 provides criteria, the two that he gave in his speech today are not in the legislation. That shows why we need greater clarity as to how the power of direction sits with the statutory responsibilities of chief constables and the police and crime commissioners.
Until now, the Government have shouted from the roof tops about the power and importance of localism. We even had a Localism Bill, which your Lordships discussed in the previous Session. However, this new power of direction is a distinct and deliberate step away and departure from that principle. I am still very unclear how this will work in practice. I am not convinced that the legislation is adequate to deal with the competing pressures and competing accountabilities between the centre-the National Crime Agency-and the local-the police and crime commissioners and the chief constables. The Government have a duty to ensure that this legislation does not increase the risk of unnecessary conflict because of a failure properly to define accountability and roles, including that of the PCCs that they have introduced.
I should also like to address the issue of the Child Exploitation and Online Protection Centre. CEOP is highly regarded and highly successful. Ministers will be aware of the concerns that absorbing CEOP, first, into the Serious and Organised Crime Agency and then into the NCA, could dilute its effectiveness, which led to the resignation of the CEOP chief executive. His fear was that CEOP staff could be drawn away from child protection work and deployed in other areas of policing activity, possibly because of shortages of resources or staff or a perceived emergency in another area of policing. There was also a related concern about how the pioneering multi-agency approach that CEOP had developed, bringing in valuable assistance, including funding, from private sector bodies and children's charities, might be jeopardised.
When this was first announced, the Home Secretary and Ministers expressed strong support for CEOP and reassured those raising concerns that this would enhance rather than dilute that work. Those assurances were widely and gratefully accepted. In Committee, it would be useful to examine whether the Government's view has moved on in any way since CEOP has been part of SOCA and also look at whether CEOP has maintained the high level of skills and expertise that have made it so highly effective and regarded. It could also be helpful to look at the wider responsibilities related to missing persons and human trafficking.
On the abolition of the National Police Improvement Agency, to which I referred a few moments ago, again the agency is highly regarded and undertook a whole range of functions, some of which have taken a long time to develop and get right. Given that range, there is logic in bringing some of them into the National Crime Agency, alongside SOCA and CEOP. I confess that I am not yet entirely clear how all the different functions of the NPIA will be carried out under the new arrangements. It would be helpful if a complete analysis of this was provided to your Lordships. Understandably, we will seek some clarifications and assurances in Committee to ascertain exactly what Ministers are seeking to achieve and whether total abolition of the NPIA is the right way to do that. We will want to probe two areas further with the Minister: the role and funding of the police professional body, and the new police information and communication technology company that is being set up.
I want also to raise the overarching concerns about funding, staffing and skills. Ministers have provided an indication of funding and have previously said that organisations coming into the NCA will bring their funding with them. However, that is the funding after the spending review and there is no reference to funding the new responsibilities and duties of the NCA. On skills, I have already mentioned the concerns around CEOP as an example that some expertise within the agency could be diluted. We want the NCA to be successful and able to bring together and co-ordinate intelligence to make tackling serious and organised crime more effective. We will look at this in more detail to seek assurances that the funding is adequate for the tasks and additional responsibilities. We will also look for assurances that the new body will retain the skills, expertise and experience of specialist staff and ensure that it is not spread too thinly across different areas.
If Ministers can help on this point, I would also like information about the role of volunteers in the NCA, particularly as, following the Olympics, the Secretary of State will have the power to bring terrorism investigations into the NCA. If, as expected and as the Minister indicated, the Government bring forward such legislation, a number of issues will need to be addressed. The Minister acknowledged that in his comments. There is an understandable fear and concern that any agency that includes terrorism within its brief could find itself diverting resources from other areas to finance that work. The Government will have to consider very carefully how this would be managed if they want to pursue that.
My final point on Part 1 is about freedom of information. As with its main predecessor body, SOCA, the NCA will be exempt from freedom of information legislation. However, the additional functions taken on from the NPIA and the UK Borders Agency were not previously exempt from FOI. This is a significant extension of the exemption, for which I am sure the Government will be able provide proper justification and explanation.
Part 2 of the Bill deals with the court system and judicial appointments. It probably raises fewer concerns and is less likely to attract discussion outside the legal profession which deals with these issues and is well represented in your Lordships' House, including by my noble friend Lord Beecham. I have already expressed the concerns about Clause 23 on community sentences. However, there are other issues that we will want to probe further and seek reassurances on. I look forward to hearing from the expertise on these issues in your Lordships' House. My noble friend Lord Beecham will say more about these issues when he winds up for us at the end of the debate.
I turn briefly to Part 3 of the Bill. Clauses 24 to 26 deal with immigration. I want to say something specifically about Clause 24, which, as the Minister indicated, removes the full appeal rights in family visit cases. I listened carefully to the Minister's explanation that there are many more appeals than anticipated and 63% of the appeals that the Government lose are because new evidence is brought at appeal stage. However, there are other factors that will need to be taken into consideration, including the reasons why 37% of appeals against the Government succeed. Ministers have made the case that the new process is both quicker and cheaper, but it denies the visitor the opportunity to challenge a wrong decision and for representations in support of the applicant to be made.
In 2011, the Chief Inspector of the then UK Border Agency looked at entry clearance decisions where there is currently no full right of appeal; that is, those decisions that are currently subject to the limitations that are sought in this Bill for family visit decisions. In 33% of the 1,500 cases he looked at, the entry clearance officer had not properly considered the evidence. The Government must prioritise better decision-making on first-round applications. It is unfair to demand that applicants make a fresh application as an alternative to an appeal if so many applications are turned down for reasons that are no fault of the individual.
The other issue in Part 3 is drug-driving. This is a very important area, as the Minister indicated. It has our support in principle, but this is, as he has acknowledged, a complex and difficult area to get right. The proposal is to look at this issue in the same way as drink-driving in that a certain level of drugs would be an offence even if there were no problems detected with driving. I was struck by and interested in the comments of the noble Baroness, Lady Meacher, in a speech on the Queen's Speech just a couple of weeks ago, about the complexities of this area. Clearly we will want to debate this further and seek assurances from the Minister about how this could be put into practice in an effective way.
In conclusion, as I said at the beginning, this is a disappointing Bill, light on detail and confused in places, but I am confident that it will benefit from the scrutiny and advice of your Lordships' House. I hope that the Government will be willing to listen and take on board comments and amendments made during the progress of the Bill to ensure that we fully address these issues in order that we may have an effective crime-fighting and justice system.
Baroness Hamwee (Liberal Democrat)
My Lords, yesterday I was asked-as we are so often-how we inform ourselves when we have to consider government proposals. I explained the range of sources, including interest groups and organisations which brief us-lobby, in the best sense of the term. On that basis, although it is obviously not the only test, this Bill presents us with some issues to probe and some where the probe may become a challenge. It gives us the opportunity to seek to deal with issues which are not included-as usual-or where the flesh is not yet on the bones and the bones as well as the flesh will be significant. There will also be a lot that is genuinely interesting. The Bill has provoked comparatively little opposition, but lest Ministers think that this means a quiet life, I also explained to my questioner that Members also bring their own experience, expertise, curiosity and judgment.
My questions about Part 1, on the National Crime Agency, come from curiosity as much as anything, and from a concern that, however much one supports a proposition-especially if one supports it-one needs to be satisfied that it will work well. I am particularly interested in the governance of the NCA, its relationship with other players in the policing landscape, and its powers. From what I have heard over the past few weeks and months, it seems that there has been much good will so far in the work to establish the NCA. However, the tasking arrangements, the powers of the NCA to impose requirements on police forces and other agencies to undertake specific activity, need clear and probably detailed structure. It is often easier to find consensus over a principle than the particular detail.
We spent a lot of time in this Chamber and elsewhere in the last Session discussing chief constables' operational independence when dealing with the Police Reform and Social Responsibility Act. It seems to me that there are similar issues of accountability, transparency and cost, as well as the possibility of clashes over priorities and how to do things as between the NCA and police forces.
The underlying rationale of the reorganisation is that crime does not come neatly pigeonholed and that organised crime of all sorts impacts at all levels-international, national and local. Therefore, it is understandable that there are concerns about the role of police and crime commissioners, who have responsibility for the totality of policing in their area. These governance issues need a clear structure.
There is obvious concern-and the noble Baroness mentioned this-that CEOP in particular should not be fettered by being brought into a new agency. The Government have said that it will retain its operational independence and that that phrase is not just a formula. The Government acknowledge CEOP's innovative partnerships and mixed economy of staff from different disciplines. However, the culture in our policing service is very strong, so determination will be needed to preserve CEOP's identity. The hope must be that the imagination that CEOP has shown is far from being muzzled but is a source of inspiration beyond that command. How its governance, retaining external partners, can be effective is bound to be an issue, as is how the NCA as a whole sets its priorities.
CEOP is, in the jargon, a brand and so is SOCA. Those who have worked on drugs issues, in particular, tell of SOCA's worldwide reputation-I have heard Colombia mentioned-and that is among the good guys, so presumably it has quite a reputation among the bad guys too. That must be preserved.
I can understand the links between SOCA and economic crime but I confess that I am not hugely clear about the remit of the Economic Crime Command-or, rather, in this context how it will operate. Does ensuring a coherent approach to economic crime across a range of agencies need a separate command? Why is the Economic Crime Co-ordination Board to remain, and why is the National Fraud Intelligence Bureau to be left with the City of London Police? Is it-or am I too much of a cynic?-that in the latter case, at any rate, the turf war was just too difficult?
I would certainly go along with the argument, which I have heard deployed over the police-that if something is working well it is best not to disturb it. However, I am not sure how logical that is in this particular context. I am puzzled, too, about why the National Cyber Crime Unit is not a command. What is the significance of the structural difference?
I turn from the largest part of the Bill-although of course the word count and the length of the schedules can be misleading-to the shortest, at any rate until Clause 23 is replaced. I am delighted at the prospect of a serious concentration on non-custodial sentences. They are often much more effective, by which I mean that they reduce reoffending, address an individual's underlying addiction or mental health problems, and do not cause collateral damage to the offender's family or indeed to the offender, and of course they are much less expensive. Therefore, there are excellent economic and social reasons for having them.
I had not known that there is increasing recognition of the effectiveness of community sentencing. The Prison Reform Trust, among others, reports this. I add to that Peter Oborne's support in the recent Community or Custody report under the auspices of Make Justice Work. I question whether there is such a lack of confidence in community sentences as is feared. Peter Oborne was brave-and, I think, accurate-in saying that political correspondents,
"report law and order issues in a false and often misleading way",
with false distinctions between what is "tough" on crime and what is "weak".
Although I am very conscious of the knowledge and expertise of all the speakers who will follow, I shall express one area of concern and perhaps tread on some toes. My concern is how the proposed punitive element may play out, and whether extended curfews and complex restrictions will themselves lead to a breach of orders with the imposition of sanctions-imprisonment-that will undo all the good. Community sentences must not be a soft option. That is important for victims as well. Restorative justice is not a soft option for the offender or the victim but it is deserving of development. We must all have had the experience of suddenly-shockingly-seeing something through another person's eyes. One thing that a community sentence, or any sentence, is not about is humiliation. It is footage of defendants in the United States in shackles that prompts both that comment and my caution about having cameras in court. I said in our debate a couple of weeks ago that the sky had not fallen as a result of the broadcasting of Parliament. However, that does not mean that I am an enthusiast for unrestricted filming in court. I heard what the Minister said today, as he has on previous occasions. Probably what is most important is that the judiciary retains control.
One provision that is not in the Bill-I do not know whether we can squeeze it past the Long Title-is reform of the Public Order Act. Do I have a right not to be insulted? I do not believe so. More importantly, if you insult me, should the weight of the criminal law be brought to bear? Insult is so subjective. Section 5 of the Public Order Act is, in my view, bad law. It should go, and so should the term "insulting" in Section 4A.
Another issue which it may or may not be possible to edge in past the Long Title is a matter that my colleagues in the Commons raised-the anomaly regarding the citizenship of children born overseas to an unmarried British man. The law changed to confer British citizenship on such children born after 2006, as the use of DNA progressed, but not for those before born before that date. However, that issue would not command the time that we will certainly give to the immigration issues raised in the Bill. I doubt that the powers of immigration officers will pass this House unchallenged, particularly the investigative powers.
As for the provision on family visas, I would simply observe at this point that if making a fresh application is better for the applicant-rather than appealing, as the Government seem to argue-then leave it to the applicant to choose. What seem to be at issue, at the heart of all this, are the standards, training and supervision of the service.
I thought that we might have a year without a new criminal offence. Driving under the influence of drugs is, of course, to be condemned. Although our debates will probe whether objective testing is possible, whether there is a variable impact on different people, whether there is more variation with drugs than with alcohol and how prescribed and over-the-counter drugs-which almost always seem to have warnings about not driving or operating machinery-fit in, that does not mean that we condone drug-driving. What about the new psychoactive substances, with or without a temporary ban in place? I note, of course, that the offence of driving while impaired is not being repealed. There is quite a lot to investigate there.
I look forward to our debates on the single county and family courts, given the knowledge that noble Lords can bring to bear on this issue. My only contribution on it-my noble friend Lord Thomas of Gresford will probably deal with it-is to have enjoyed reading the impact assessment which describes the policy options as "do nothing" or "do everything". I also look forward to our discussions on diversity in the judiciary. We have come a long way since my first interview for articles as a solicitor when, having asked about women in the firm, I was told, "We are very broad minded. We have a Nigerian girl working in the basement".
The most cheering thing I have heard on the proposals is that provisions for part-time working will be significant, because of the significant number of women in-or potentially in-the judiciary who are of an age to which this will be significant. I am very happy that that myth in my own thinking has been busted. This is a Bill on which I will want to attempt only a small amount of busting of my own.
Baroness Butler-Sloss (Crossbench)
My Lords, I hope the House will forgive me for beginning with Part 2 and then moving to Part 1. My late brother, Michael Havers, had a dream in the 1980s of a unified family court which he discussed many times with me. In 2012, I therefore welcome very much the proposal for the single family court in Part 2 of the Bill and congratulate the Government on their acceptance of this recommendation in the Norgrove report.
A single family court, however, is the framework or the scaffolding, and it will be important to scrutinise with care the inside of the building and which of the other Norgrove recommendations-all of which I support-are taken forward. The single point of entry will provide a gateway for the direction of cases to their most appropriate tribunal within the hierarchy of the family courts. This will give, I assume, the responsibility for distribution of the family work to judges, district judges and justices' clerks. This will also give the administration of family justice something of the excellent proposals which the noble and learned Lord, Lord Woolf, provided in his seminal report on access to justice in the civil courts in the 1990s.
We would hope, therefore, for greater flexibility in the deployment of judges, improved performance, and more efficient and swifter disposal of cases. I must warn the Government that that desired result may not be so easy to achieve when spouses, partners and parents are fighting their emotionally charged family disputes before judges and magistrates without lawyers, as there will very likely be greater delays and a great deal of clogging, particularly before the district judges and the family magistrates.
A single family court will create the opportunity for a stronger focus on the child's best interests, welfare and also rights; I remind the House that children also have rights. There is an opportunity for a long-overdue dialogue between family judges and directors of social services, both at national and local level, which is very much supported by the Norgrove report. I encourage stronger emphasis on judicial training and judicial case management, and that the training of social workers include directors of social services who are not trained as social workers. If judges can be trained-and they are-so senior social workers, up to and including directors, can perfectly well be trained too, particularly when they come from the education field. All this will be needed to meet the increasingly demanding work of the family court.
The Magistrates' Association has a certain concern that, with the reorganisation of the family court, there will be a lesser role for the family proceedings court. I hope that the Minister will give the much needed reassurance when he responds, as they are a crucial part of the family justice system. There is also the requirement for a limitation on the number of days that a family magistrate is allowed to sit in the family proceedings court. I recommend, as indeed the Norgrove report does, that that inhibition be removed, as it inhibits not only flexibility but the continuity of the magistrates' panel hearing repeat hearings from the same family.
I am delighted by the repeal of media access in the 2010 Act. That is really good news. As far as I could see, it was absolutely incomprehensible. Even the press thought it was not going to work. I recommend that any future legislation on publicity in family courts should have in mind that children have views and ought to be consulted. Older children have already expressed considerable concern that they might have to give evidence-or their parents might have to give evidence-in particularly emotionally charged cases with the public listening.
I support the flexibility of part-time working for judges. It will undoubtedly help women to come back into the judicial process when they have had families. In 1970, when I was first appointed as a district judge-in those days, a registrar-such a thing was inconceivable. However, I wonder a trifle how the listing officer will deal with a long, complicated care case or a long criminal trial if the judge sits only three days a week. The jury may want to sit four or five days a week. Therefore, there will be certain problems for listing officers, but in principle the idea is excellent.
I strongly support diversity when-and only when-it equals merit. It will be very important that women-particularly those from ethnic minorities-who may not be able to bear the strain of the judicial process are not placed in a position where they may find themselves failing because there has been too much enthusiasm for diversity and not enough for merit. This is very important. I have a vivid recollection of a woman judge many years ago who was a very fine pianist. She should have remained a pianist.
I find it slightly difficult to understand the advantages of a single county court. I hope that when the Bill reaches Committee I will learn a bit more about them.
I turn now to Part 1 and the National Crime Agency, which I welcome in principle. However, as the co-chair of the All-Party Parliamentary Group on Human Trafficking and as a trustee of the Human Trafficking Foundation, I have several concerns. In responding to a question after the Queen's Speech, the Prime Minister talked about repelling modern slavery. It is not quite so simple, although I commend him for wishing to do so. He may not be aware that 80% of those who are trafficked in this country come here legally and do not know that they are being trafficked until they are caught up in labour exploitation, debt bondage or prostitution. For instance, there was a case in Newton Abbot or Totnes in the West Country of a girl who came in entirely legitimately expecting to be a masseuse, having been trained by her mother. She did not understand that "masseuse" in some areas of this country does not mean what it meant in eastern Europe. She found herself in a brothel in Totnes, from which she was brave enough to escape. Therefore, we cannot repel them all at the border. I hope that the National Crime Agency will be able to bring to bear a very much more sophisticated approach to deal with traffickers in this shocking but extremely lucrative trade.
I am glad that the Minister referred to trafficking. I share the concerns of the noble Baronesses, Lady Hamwee and Lady Smith, about CEOP. It has just written a letter dated
I also want to ask the Minister about the UK Human Trafficking Centre in Birmingham. Will it be in the National Crime Agency? If not, who is going to gather the data? If the data are not going to be gathered there, what work will the centre be doing? I visited there and it is doing excellent work so I hope that it will be encouraged and not just disappear. If it is not going to be continued, then a national rapporteur or an effective equivalent mechanism is crucial. I suggest to the Government that the current equivalent mechanism is by no means an effective one, by any objective view. The restructuring of the National Crime Agency needs to include a dedicated unit with centralised focus on human trafficking, particularly on the trafficking of children.
Lastly, I have had some dealings with SOCA personnel embedded in various British embassies, particularly in different parts of Europe, and have been very impressed with the work that it is doing, including work on human trafficking. I hope it will continue this admirable work under its new title of the NCA but I would like to be assured of that. Overall, I welcome Parts 1 and 2 of this Bill.
Lord Mackay of Clashfern (Conservative)
My Lords, the right reverend Prelate the Bishop of Birmingham found himself down to speak both here and in the Grand Committee. Notwithstanding his character as a Lord Spiritual, he did not feel that was possible and he also felt that he had more to contribute in the debate in the Grand Committee. I therefore have to fill his place in the sense of taking it, although not in the sense that he would have fulfilled it at as a Lord Spiritual. I also wish to take this opportunity to express my gratitude for the work of the noble Lord, Lord Bach, as a Minister in the Department of Justice and also as a spokesman on legal matters in Opposition. I very much appreciated his support and help and all kinds of particular qualities that he had. I am delighted his place has been taken by the noble Lord, Lord Beecham, with his great experience as a member of the legal profession, making him well able to understand the problems that beset it.
I intend to single out one or two items. Immediately after me the noble Baroness, Lady Jay of Paddington, who convened the Constitution Committee with its very detailed consideration of judicial appointments, will speak. I do not, therefore, intend to get too deeply involved in that position. The noble Baroness will no doubt raise questions about some aspects of the recommendations which do not seem to have been fully reflected in this Bill so far. I want to start by talking briefly about the television provision in Section 22. This is not a new problem and during my term of office it became a very important issue. At that time the noble and learned Lord, Lord Hope of Craighead, who was then the Lord President of the Court of Session in Scotland, issued a practice note as a result of which the television authorities took a great interest in televising a number of cases in Scotland-something of the order of eight altogether. It was pretty obvious to me that they were interested in setting that up in places other than Scotland and in due course that interest was manifested in that they prepared a video with a considerable selection of television films of the courts in Scotland which was presented to senior members of the profession in England. It may be that the noble and learned Lords, Lord Woolf and Lord Lloyd of Berwick, will remember this. In any case, the result of these presentations was that the English profession was not encouraged to go down this road. There had never been a statutory prohibition in Scotland, although the courts were pretty cautious about it and, as I say, while the position opened up a bit at the time, it did not continue. However, noble Lords may have seen on television recently the sentencing remarks in a murder trial made by a Scottish judge who, following the territorial method of description, is called Lord Bracadale, after a most beautiful part of the Isle of Skye. I think that his remarks were broadcast widely and attracted a good deal of positive attention.
The Government proposals aim to open up the courts to television on the basis of orders made by the Lord Chancellor with the approval of the Lord Chief Justice. I would suggest that, in the vast majority of cases, the arguments and the decisions of the Court of Appeal will not attract the immediate interest of our public, whereas sentencing remarks will attract great interest. One has only to look at the print and other media to see that sentencing has a much bigger impact than arguments in the Court of Appeal. Occasionally, of course, a judgment from the Court of Appeal, particularly if it surprises the media, is given a good deal of attention, but I would venture that it would be wise to bring forward arrangements for broadcasting under the proper conditions appropriate to sentencing remarks instead of leaving them, as it were, to the end, which I gather from what I have seen so far is the suggestion.
The other matter I want to mention briefly in connection with television is that the exposure of the Houses of Parliament to television does not seem to have promoted a tremendous increase in the avidity with which the public enter into politics. I do not know the reason for that, although I could guess, and some noble Lords may have the advantage of me in that.
The next matter I want to mention is one that the Constitution Committee has certainly considered, and on this occasion I am going into its area to raise the issue of diversity. I believe that it is extremely important that there should be a sufficient amount of diversity within the judiciary as a whole to make it look reasonably fair in terms of job opportunities for all sorts of duly qualified people in the community. I think it is fundamental not to go down the road that people must be tried by those who belong to the same community as them; that would be completely inimical to justice. On the other hand, diversity in the sense in which I define it is highly desirable, and I believe that progress has been made. The statutory recommendation is that where two candidates are of equal merit, the consideration of diversity should be allowed to prevail. The occasions on which two candidates are of absolutely equal merit are likely to be fairly scarce, but the emphasis put on diversity in this statutory provision, although it may not strictly apply all that often, will help those who have to make these decisions to give effect to it as a desirable aim. Therefore, this is to be welcomed. I agree that it will not happen simply by legislation; a good deal of work is required. Of course, we are told that the new system is transparent-I am not sure what is meant by that because I certainly do not know exactly who is on the committees and so on-and transparency is a great thing: you are able to see through it in a way that you could not do when it was done by the Lord Chancellor on his own. The system has created a degree of breadth which the Lord Chancellor alone could never have attained.
There are one or two other matters I want to mention. In the clauses dealing with judicial appointments, paragraph 4 talks about a "non-legally-qualified" member, which might be a little ambiguous. Of course, it goes on to define it by saying that if you hold or have held certain judicial appointments that disqualify you for the House of Commons, you are not non-legally-qualified, and if you have ever practised or been qualified as a lawyer, you are not non-legally-qualified. This helps to emphasise the distinction between lawyers and judges that some lawyers are keen to make. I do not intend to pursue that, but later in the schedule you find that the Lord Chancellor can define a lay person by order after consulting the Lord Chief Justice. What is the difference between a lay person and a non-legally-qualified person, if any, for the purposes of this appointment?
That is rather an aside. I notice that the Lord Chancellor is to take responsibility for a good number of civil appointments. There may be a question over whether it is any longer appropriate to call him the head of criminal justice-I think he should be the "head of justice", and have thought that for a while.
The other matter I want to mention briefly is the family court. As the noble and learned Baroness, Lady Butler-Sloss, has said, this has been some time in coming. It was very much opposed in the 1980s, as I recollect, and when I was asked to create legislation in connection with the Children Bill, it seemed an opportunity to get something done in this area and get it past the Treasury, which was the obstacle in earlier times. At that time, the noble and learned Baroness, Lady Butler-Sloss, had just produced her report on the situation in the north-east, which in effect recommended a family court. Of course, I could not go the length of having what we have now in this Bill, but by amendments introduced by the Children Act I was able to create a system in which all the levels were available for family justice. This Bill does it in a different way. Apparently mine was good enough to last for 33 years or so-I hope that this one will last for much longer.
Finally, I think the proposals for the county court are to do with questions of jurisdiction. The question I ask is: in what sense is this universal court for the whole of England a county court? There are a lot of counties in England.
Baroness Jay of Paddington (Labour)
My Lords, it is a pleasure to follow the noble and learned Lord. He is right to predict that I will focus my contribution on Part 2 of the Bill, specifically those clauses and schedules that deal with judicial appointments.
As the noble and learned Lord, Lord Mackay, said, the Constitution Committee-which I have the privilege of chairing for another parliamentary Session-has just issued a major report on this subject, following a lengthy inquiry last year that lasted several months. During that inquiry, we took evidence from a wide range of serving and retired judges, lawyers, academics, politicians involved in the process of selection, and the Judicial Appointments Commission. Over this period, the committee has also had a very productive dialogue with the Government, and both the Secretary of State, Mr Clarke, and the noble Lord, Lord McNally, gave oral evidence to us.
The Government took considerable notice of the Constitution Committee's recommendations during their formal consultation on the Bill and last week responded in detail to the report, which the Secretary of State described as a valuable and timely contribution to the debate. The committee is grateful for this response and welcomes the fact that so many of our recommendations appear in the Bill before your Lordships today.
The essential premise of our report was to ensure that the judicial appointments process remains independent, open and transparent-as has been mentioned already today-and produces a judiciary that reflects the society it judges. We were concerned that even in 2011 only 5% of judges were from minority groups and only 22% were women. The Minister has rightly said that this is an improvement but we felt that it needed to go further. Frankly, the judge who inhabits a courtroom in England and Wales is still stereotypically a white male from a fairly narrow social background.
The Constitution Committee felt that it was enormously important to emphasise the need for faster moves towards greater diversity in future appointments. Apart from the difference that this would make to the profession, this is vital to maintain the public's confidence in the judiciary. I therefore join other noble Lords who have spoken this afternoon in very much welcoming the Government's decision to seek to introduce flexible working in the higher courts. As the Minister has said, the provisions of Schedule 12 make possible for the first time the appointment of judges at the highest level-I emphasise, at the highest level-on a part-time, salaried basis. As the Constitution Committee noted in its report, the introduction of flexible working of this nature must help to increase the number of women in the higher courts, as has happened successfully in other professions such as medicine, for example. It was interesting that the chairman of the Judicial Appointments Commission reflected the views of many of our witnesses when he told us:
"This is the first profession that I have touched in my working life where there is not easy access to flexible working arrangements for senior positions".
Having it, he said, "would be transformational". We have to hope that he is right, in spite of some of the practical problems that have rightly been raised by the noble and learned Baroness, Lady Butler-Sloss.
Schedule 12 also introduces the so-called tipping or tie-breaker provision for judicial appointments to increase diversity within the judiciary. At present, the tie-breaker provisions, which are explicit in the Equality Act 2010-we must remember that that Act has not always been uncontroversial-and enable recruiters to prefer underrepresented candidates when candidates are judged equal on merit, do not apply to appointments to judicial office.
We may all agree, as has already been mentioned this afternoon, that this situation may arise relatively rarely but the Constitution Committee felt strongly that, although judicial appointments in England and Wales must continue to be made on merit, they should also continue to be based on principles that enable the adoption of the tie-breaker provision in the equality legislation. I hope that now the Bill has done this, it will not only provide a strong legal statement about the importance of diversity but, more directly, will lead to changing practice without undermining-I emphasise this-the essential merit principle.
However, it is disappointing that the Government have not placed the Lord Chancellor and the Lord Chief Justice under a statutory duty to have regard to the need to encourage diversity in the pool of applicants for judicial posts in the same way as is now required for the Judicial Appointments Commission. Such a duty, which the Constitution Committee recommended, would help to ensure that the Lord Chancellor and the Lord Chief Justice properly recognise and fulfil their leadership roles in promoting judicial diversity. Improvements in diversity will occur only with decisive and persistent leadership. Although I do not doubt the commitment of the present holders of these offices, a statutory duty would ensure a real and lasting commitment to change in this field. It would also enable those two senior judges to account for their actions in encouraging diversity. The Government's response to this proposal by the Constitution Committee is sparse in its reasoning and I suspect that we may return to the question of a statutory duty to promote diversity later in the Bill.
The Government have also said, again disappointingly, that they are not minded to relax the operational restrictions on government-employed lawyers applying to become judges. I suggest that this is probably an unnecessary restriction. There is after all a clear public interest in ensuring that high-quality lawyers are not discouraged from entering the government service just because they may now never be able to progress later to the judiciary. It is also clear from the personnel data about government lawyers that they are, as a class, more diverse than other branches of the legal profession, so it seems logical that opening up their judicial career prospects would be likely to improve the general diversity of the judges.
Overall, I hope that the Government will, as their response to the Select Committee report suggests, give greater weight to the work of their own judicial diversity task force. Evidence to us from the previous advisory panel suggested that some earlier proposals had been sidelined. The noble Baroness, Lady Neuberger, who I am glad is speaking today and who chaired the panel which reported in 2010, told us that,
"considerably greater progress could have been made on most of what we said",
"it did not require huge amounts of money, which has been the excuse for why some of it has not happened".
Significantly, its proposal to introduce a formal appraisal system for judges, which the Constitution Committee also recommends, has not been accepted by Ministers.
The Bill makes a number of alterations to the structure of a judicial appointments process. As the Minister has already said, the Lord Chancellor's powers to appoint judges below the level of the High Court are to be transferred to the Lord Chief Justice. Similarly, the Lord Chancellor's role in appointing judicial members of tribunals is to be transferred to the Senior President of Tribunals. Both these changes are welcome, as they will promote the independence of the judiciary from the Executive and, I suspect, increase public confidence in the appointments process by more accurately reflecting the realities of judicial appointments at a lower level. I also welcome the decision to end the anomalous position whereby the President of the Supreme Court chairs the panel which appoints his successor. This was certainly something that the Constitution Committee felt was important.
There are other structural changes which are in the Bill and give cause for concern. In terms of constitutional principle, the most significant is the decision to allow the Lord Chancellor to sit as a member of the selection panels for the Lord Chief Justice and President of the Supreme Court. I have two concerns about this. First, in spite of what the Minister said, the inclusion of the Lord Chancellor on the selection panel risks the politicisation of the process, which would clearly run contrary to the principles behind it. Secondly, the Government propose to balance the inclusion of the Lord Chancellor on these selection panels with the removal of his current power to reject the decision of those panels. It would clearly be damaging for the fairness of the process if a member of the panel also had a veto over it. However, it raises the prospect, at least in theory, of the Lord Chancellor being outvoted on the panel and thus finding himself faced with a Lord Chief Justice or President of the Supreme Court with whom the Executive did not feel able to work. The Government may need to think again about this proposal, to which I am sure we will return in Committee.
Finally, I note that the Government have rejected the Constitution Committee's suggestion to create a differential retirement age for judges. We propose 75 for the Supreme Court and Court of Appeal justices, and 70 for all the others. The reason behind this proposal is that we thought that the change would ensure that while the most senior judges, where proven judicial quality and experience are at a premium, would continue to work to the later age, more posts would become available earlier at the lower levels. The evidence to us suggested that expanding opportunities in lower tiers of the judiciary would encourage diversity, particularly those who did not follow the traditional career paths. This may well be another area that we return to later in the Bill.
I am very grateful to the Minister for agreeing to discuss the detail of the Bill further with the Constitution Committee before the House begins consideration in Committee. This once again demonstrates the great importance of your Lordships' Select Committees in scrutinising and trying to improve legislation while a Bill is making progress through the House but away from the debate on the Floor. It is a very important part of our role as a Select Committee.
As I have already mentioned to the Minister, I apologise to him and the House as I may not be able to be here when he gives his wind-up speech. Unfortunately, I had already agreed to an evening engagement which I could not postpone at the last minute when the date of this debate was agreed. Looking at the long list of very distinguished speakers, I suspect we may not reach the end of it before I have to leave. However, I have apologised to the Minister and I apologise again to the House. I look forward very much to the next stages of this extremely important Bill.
Baroness Doocey (Liberal Democrat)
My Lords, I broadly welcome the Bill, but I have some concerns about Part 1. My greatest concern is how the Bill will affect the battle against child trafficking and I endorse all the comments made in this area by other noble Lords.
It is not clear to me where responsibility will sit in the proposed new set-up or how the NCA will address the trafficking of children as part of its remit. The information available suggests that responsibility will be split between two separate operational commands of the NCA and child trafficking will not be a primary duty of either of them. If this assessment is correct, the Bill will create a very unsatisfactory situation. The ideal solution would be the establishment of a single, child-focused operational command within the NCA, whose specific remit is to deal with all child-related crime, including all forms of child trafficking and child exploitation.
I would like now to turn to budgets. The NCA will have a wider reach than its predecessors, yet it is proposed that the NCA will be delivered within the budget of its precursor organisations. This is to be achieved through effective prioritisation and smarter use of assets. But the NCA will be a major new organisation, which will require considerable IT support and equipment for it to be effective. I have great difficulty believing that this can be achieved within existing budgets.
I very much welcome the proposal to establish an intelligence hub within the NCA, but it will not be effective unless it is properly resourced, staffed with real experts, and equipped with state-of-the-art information technology. Efficient IT must play a key role in the NCA. However, most existing police IT systems are incompatible, antiquated and require the endless keying and rekeying of the same data. Given that the intelligence hub will be central to the functioning of the NCA, and that IT will be central to the functioning of the intelligence hub, it is absolutely essential that IT systems facilitate easy access to electronic intelligence. So we need to know how the Government propose to resolve the issues around the interoperability of the various IT systems.
The Bill is unclear about the relationship between the NCA, chief officers and police and crime commissioners. In particular, the directive powers of the NCA, especially directed tasking, appear to conflict with the statutory responsibilities of PCCs for the totality of policing within their jurisdiction. The Bill seems to assume that the priorities of PCCs will automatically be aligned with the directive powers of the NCA's director-general. But what happens if the NCA requests or requires police force A to provide assistance to police force B just before an election, when the PCC of force A wants his officers to concentrate all their energy on local issues in order to get re-elected? The Government need to provide greater clarity regarding the interrelationship between the NCA and PCCs and how conflicts will be resolved.
The NCA will have considerable powers, so formal scrutiny, investigations and inspections must be rigorous and transparent. The NCA will be subject to investigation by the Independent Police Complaints Commission and to inspections by Her Majesty's Inspectorate of Constabulary. The Bill proposes that the IPCC will treat any wrongdoing in the NCA in the same way that it treats ordinary police forces. Although the IPCC may implement any of four modes of investigation, in practice, in most cases, it opts for supervised investigations, which effectively means the police force investigating itself. The IPCC justifies this policy on the grounds of limited resources.
The NCA will have far greater powers than an ordinary police force. It therefore follows that any wrongdoing must be independently investigated, so that the public can have confidence in the processes and procedures. Likewise, the proposal that HMIC will arrive at an agreed framework for inspections with the NCA is unsatisfactory. There also need to be unannounced inspections to help maintain public confidence.
At least some, and perhaps most, NCA officers will have operational powers, but NCA officers do not necessarily need to have held operational powers previously. There is also a proposal to appoint volunteer officers, similar to special constables. I very much welcome that, because I think that it will enhance the agency, but there will be a significant need for training for both full-time officers and volunteers. This training will need to be done on a one-to-one basis rather than by officers sitting in front of a computer, so it will cost a lot of money. Will the new professional police body be responsible for organising training for the NCA, or will training be split between various providers? If the latter, how will consistency be maintained?
How will the culture and benefits of employees who come from significantly different backgrounds be brought together? How will police terms and conditions be aligned with those of the security services or Customs and Excise? If one employee has a larger pension, does it follow that another gets higher pay? If there are differences in pay and benefits between NCA employees, that could cause internal problems, but if the employees are all on similar benefits, there could be disparities with the organisations from which they are drawn. That could lead to perverse incentives at one end of the equation or the other, with either a glut or a drought of employees with particular skill sets.
I hope that the Minister can address those concerns in his response.
Lord Lloyd of Berwick (Crossbench)
My Lords, my first impression on seeing this year's helping from the Home Office is one of great relief because it is, at least by recent comparison, relatively short and uncontroversial. There is also relief because it contains only one new offence: driving with drugs in the bloodstream, whether or not your driving is impaired by the presence of drugs. That brings drugs into line with existing law on alcohol and is to be thoroughly welcomed.
I also welcome Clause 17, in so far as it favours the creation of a new, unified county court. Surely, the explanation for the name rests in the jurisdiction, not in the fact that the court will be based in individual counties. I hope that we will not lose the name "county court", despite the unification of all county courts.
I was less certain, I am bound to say, about the family court, for a reason which I shall explain, but having listened to the noble and learned Baroness, Lady Butler-Sloss, I find that I am completely convinced by her argument. Let me just explain the danger I foresee. That is that the unified family court may prove to be a step towards combining the High Court and the county court generally-in other words, a unified civil court. That has long been favoured in Whitehall, but it has long been resisted in the Strand-at least by some of us. Why? The reason is that it may tend eventually to diminish the role of the High Court judge. In my view, the High Court judge is the key to the whole judicial structure, and if he should come to be regarded as just another judge, as it were, just another rung on the judicial ladder-this is certainly how it looks from the list on page 115 of the Bill-the structure would indeed be threatened. It would be a step towards a career judiciary such as they have in France, which I would greatly regret. In the end, in my view, it would affect the quality of our highest judiciary. When the noble Lord replies, I hope that he will at least reassure me that there is no intention of creating a unified civil court, at the moment at any rate.
I come to Clause 18 on page 16 and Part 1 of Schedule 12 on page 167. Section 23(2) of the Constitutional Reform Act 2005 provides as follows:
"The Court consists of 12 judges appointed by Her Majesty".
Nothing could be clearer than that. There is then a provision in subsection (3) for that number to be increased but not reduced. Now we are told that the court is to consist of,
"the persons appointed as its judges".
If I may say so, that seems to me a masterly statement of the obvious. What else could the court consist of but its judges? As to the number of such judges, we are told that it is not to exceed 12 full-time equivalent judges. For the first time in our history we are going to have part-time judges sitting in our most senior court. There would seem to be no limit to the number of part-time judges who might be so appointed. We could have 24 half-time judges, or a mixture of full-time judges and part-time judges. I am bound to say that this is a development I would deeply regret. I wonder whether the interest in flexible-time working and so on justifies such a vital change in our most senior court.
Moreover, why is there a sudden need to provide for an overall reduction in the number of judges of the Supreme Court? Back in 2005 we chose the number 12 because that was the number of serving Law Lords. Is the suggestion that the current judges of the Supreme Court do not have enough to do and therefore the number should be reduced to 11 or 10? Surely anybody who looks at, or even glances at, the weekly law reports can see that they have more than enough to do-indeed, they are too busy rather than not busy enough-yet there is the suggestion that their number might be reduced.
Is the explanation, perhaps, that we do not have enough money to pay for 12 judges? That seems even more inconceivable, yet no other reason is given in the Explanatory Notes for the need now to reduce the number. Indeed, the extraordinary provision in Schedule 12 says that there is a problem about having "exactly 12" Supreme Court judges, almost as if we could afford 11 and a half judges but not 12. I am bewildered by the whole of this part of the Bill, and I hope that we will have an explanation and that it will be fully explored in Committee.
I turn to diversity, which is covered by Part 2 of Schedule 12. How we can get greater diversity among our judges, particularly in our higher courts, has been a problem for as long as I can remember. My recollection is that when we considered these matters in 2004 in the Select Committee, we spent more time on diversity than on any other single issue. Everybody agrees that we should have more diversity and that selection should be on merit. It is very easy to say that. Then along comes Sir Colin Campbell and others who, I remember, argued in 2004 that merit does not mean what one thinks-it is just a threshold. Once one passes the threshold you can take all these other matters into account, including diversity. One finds exactly the same argument advanced before the Constitution Committee by Professor Cheryl Thomas, at paragraph 95 of its report. In 2004, we rejected that argument out of hand. That is why one finds "solely on merit" in Section 63(2) of the existing Act, which entirely meets that argument whenever it is to be advanced. I find myself therefore entirely in agreement with paragraph 97 of the Constitution Committee report-I am glad that it said what is in that paragraph-which also said that "solely" should mean what it says.
However, the Government now come along with the bright idea that two candidates could be exactly equal in merit. What then? Does that give us a kind of loophole in which we can aim for diversity? I remember the noble Baroness, Lady Ashton, being asked in 2005 what would happen if two candidates for the High Court were of exactly equal merit. She laughed and simply brushed it aside, saying that if ever that time were to come at least she would not have to decide it. In truth, it is not a problem at all because, at any rate for the higher courts, it is not possible to imagine that two candidates in real life will be exactly equal. I therefore find myself in entire agreement with the views expressed in the Constitution Committee by the noble Baroness, Lady Neuberger, and by the noble and learned Lords, Lord Phillips and Lord Judge. It is simply not a way through; indeed, it is slightly worse than that. Suppose that one was a black judge who had been appointed to the Supreme Court-
Lord Lea of Crondall (Labour)
I have been following the noble and learned Lord most carefully and apologise for intruding on this discussion among the experts in the field. I find the logic of what he has just said impeccable but is he happy that 80% of judges went to public schools, which represent 7% of the population of this country? He can fob it off on to somebody else but is he happy about that?
Lord Lloyd of Berwick (Crossbench)
Of course I am not happy. I am as unhappy as anybody in this Chamber at the existing situation but we are trying to find a solution. All I can say to the noble Lord is that things are slowly getting better. We have put in provisions saying that it should be the duty of the appointments commission to search out, by widening the pool in which it looks, to find candidates who would be the best. I entirely agree with the noble Lord but I fear it is simply a question of time until we get a reasonable number of black people and white ladies among the judges. What worries me is that the Government are finding some way of trying to satisfy public opinion by saying that, in these circumstances, they can choose to make the Supreme Court more diverse. In fact, it is not going to happen. It is simply wishing away the problem as if it did not exist. If I had to describe the answer which they have given, I would have to say that I find it thoroughly trite.
Lord Berkeley (Labour)
My Lords, first, I apologise to the House and to the Minister for popping out earlier to speak about sewage in the Moses Room, although I suppose I could rephrase that better by saying, "to speak in the Moses Room about sewage".
I will make a few remarks this afternoon about border controls, in Part 3, and the problems that are being experienced, such as the delays faced by people coming into this country. It is interesting that the Bill contains three pages about the power of immigration officers but fails to address completely the fact that there are not enough of them. The latest news on Heathrow is that the MoD police have been drafted in, along with clerks-anyone to reduce queues-but I do not know whether they will have the powers conveyed on them by this Bill if it sees its way through both Houses.
The morale in the Immigration Service is said to be at rock bottom, which is really not very surprising when you have the combination of a 25% staff cut imposed by this Government and a requirement for all passengers to have a full check rather than using the risk-based approach. I suggest that one, two or even three hours of delays, as is reported, is pretty bad for business. I am talking not just about the operators, who I will come on to, but about those who do or want to do business in this country.
The Government argued that cutting the top rate of income tax was essential to keeping big business here. Other people have argued that a third runway at Heathrow is needed, otherwise the aircraft manufacturing businesses will all move to France, which has no traffic jams at its airports. I suggest that if the people to whom presumably these remarks are addressed are delayed by one, two or even three hours every time they come into this country, that is probably even more serious than where they set up their offices or the quality of life here. As for the reputation that we may well get if this happens before or during the Olympics, it is pretty worrying.
I give just three examples of where this seems to be going wrong. As I mentioned, at Heathrow, which has had the most publicity, BAA confirms, according to the Sunday Times yesterday, that the queues were up to three hours long at passport control in April. If you have just flown from Paris, Brussels or somewhere else within Europe that takes less than an hour, to be held up for another three hours is probably not very good.
Tony McMullin, the interim regional director of the border force's northern region, says in an e-mail that attempts to send staff to cover at Heathrow, Stansted, Luton and Gatwick were,
"pretty shambolic and did not work".
I hope he does not suffer the same face as his predecessor, Mr Brodie Clark, who quite rightly spoke out against the problems and had to resign. It clearly is not working and clearly needs more people.
The second example is Eurotunnel. I talked to someone from Eurotunnel the other day, and there was something in the media about a week ago about the queues of cars going into the terminal at Calais being so long that they were blocking the motorway. The French motorway police phoned the company and said, "We're going to send everyone to Dunkirk or back to Paris unless you sort out the queues". Eurotunnel's only way of sorting out the queues is to send the trains off to the UK half empty, because the immigration people cannot process the people in the cars fast enough. If this went on, it would have a serious affect on Eurotunnel's business. That is not the fault of the Immigration Service but of Ministers. Do they care? The same thing will probably happen to some of the airlines.
Finally, there is the question of Eurostar. There has been a lot of publicity about that recently. For many years, passengers from Brussels going to Lille were asked to go through British passport control in Brussels. They objected; why should they have to show their ID cards or passports when travelling between two Schengen countries? Our immigration people in Brussels put in something so that if you had a ticket to go to Lille you did not have to show your passport. Of course, pretty quickly those who wanted to come here illegally found that the best thing was to buy a ticket to Lille and stay on the train to get into this country.
Then the French Government threatened the British Government and Eurostar, saying that unless they sorted out this problem they could not run any trains at all, which was not very helpful either. Now, if you come to London, you have to show your passport in Brussels and then again in London. We are back to one or possibly two hours' delay when you get to St Pancras: again, a problem if you have come for only a short time and were only on the train for an hour or something. It is also pretty irritating if you have taken a family for a couple of days to Euro Disney. I am told that 95% of the passengers on the Disney trains have British passports. These families with small children are still subjected to this one or two hour delay. That really is not right.
The Government have to come up with some solutions pretty quickly. Eurostar announced in the last day or two that it wants to run trains to Geneva, Frankfurt and Amsterdam. Are we going to have outposts of British immigration in every city that these trains want to stop at, checking people's passports? That does not seem realistic. We have to come up with solutions. I have one or two to put to the Minister and the House.
One short-term solution is to go back to a risk-based solution by which those who are most likely to be in need of full passport control get it and the others can get through. Secondly, it is a minor detail but if every passenger has to stand behind a red line and then walk five or six yards to the immigration officer, that adds probably 25% to the processing time. Why must you have a line five yards away? Everything is done on a computer reader now. Frankly, one yard away would be perfectly all right.
The Government then have to staff-up to ensure that there is a maximum delay for travellers, except in an emergency. My first thought would be 15 minutes coming from the EU and 30 minutes from outside. This should be combined with a risk-based approach. I do not know how many noble Lords have been through immigration recently, but there are these iris scanners now. They actually take longer than the scanner that looks at your passport; they are both very slow. There must be a quicker way of doing that.
For the through-rains, the only solution, and a perfectly acceptable one, is to do the checks on the train between Lille and Ashford if the train stops at Ashford. You can have hand-held devices to look at passports and any other ID cards that you might need. The trains that Eurostar uses at the moment each have two jails. They are quite nice jails. They are aluminium-lined and with nice hooks so that if you are in handcuffs you can presumably be hooked up to the ceiling. That means that people cannot run away when the doors get opened at St Pancras, and they can be sent back on the next train.
I know that the Minister will reject my final suggestion, but what would really happen if we joined Schengen? Would it be all that different? Why do we go through all this? That is probably a step too far, but something has to be done. It is getting chaotic, and getting worse. We will look real idiots at the time of the Olympics. Besides the Olympics, there are people trying to go about their daily business who we want to live and work in this country. They are getting seriously put off. I look forward to the Minister's comments when he comes to reply.
Lord Ramsbotham (Crossbench)
My Lords, I will confine my remarks to two clauses in the Bill: Clauses 1(1) and 23. I raise Clause 1(1) because I suspect that I am not alone in being somewhat confused about the Government's direction on policing. On the one hand, we have the formation of a National Crime Agency, and on the other we have had the appointment of police and crime commissioners, with the focus on the local direction of policing. The two do not seem to fit. My interest in policing in this country was stimulated by the Royal Commission on the police in 1962, which I had to study for the staff college exam at the time.
I remember being particularly taken by the memorandum of dissent tabled by Dr AL Goodhart, of Oxford. It was logical and to my mind entirely sensible. In essence, he said that he was convinced that it was essential to establish a centrally controlled police force that was administered on a regional basis. He believed that all these Royal Commissions, ministerial committees and other inquiries would continue indefinitely until necessary steps were taken to introduce a rational and efficient system of government for the police that does not currently exist. How right he has been. Since 1962, there has been a continual dialogue about the governance of the police. It is still not resolved and I do not believe that this proposal resolves it any further.
Dr Goodhart acknowledged that the commission recognised that in modern conditions a certain amount of joint action on the part of various police forces was essential. Hear, hear to that. I had examples when I was serving in the Army. You could not follow a drug trail through England because some counties did not have drug squads and therefore you could not follow them. I realised that all was not well then, and although there have been patch-ups since then I do not believe there has been proper co-ordination.
Dr Goodhart concluded his report with the delphic statement that he believed that the history of the Metropolitan Police,
"illustrates how uncertain is an argument based on a prophecy of what the public will or will not accept".
That is something that we have been privy to recently. The public not accepting something was not an argument against setting up a national police force. However, he says very clearly that responsibility is meaningless unless it includes the power to direct.
One thing worries me about this proposal for the National Crime Agency, which I support because it is a national directive and in principle I am right with it. We are left unclear about it because the protocol that accompanied the appointment of police and crime commissioners said that they were,
"responsible for the totality of policing".
The National Crime Agency requires the police to implement whatever they are following. The Bill says that the Home Secretary,
"may determine strategic priorities for the NCA" .
Why "may"? Surely the Home Secretary is responsible for the strategic direction of policing anyway. There should be no "may" about it. If there is "may", I suspect that there will be even more confusion.
I wonder about these two-way tasking arrangements and how the director-general "may" task police forces and other law enforcement agencies to carry out specified activities. Who is accountable to the public for all this? I suggest that unless this is ironed out so that the roles of the National Crime Agency and police and crime commissioners is resolved and everyone knows in which direction we are moving, there will be not just needless conflict but continued confusion, which will impact on the ability to resolve crime as intended. I merely voice my confusion and say that I hope that this issue will be resolved during the passage of the Bill to make certain that everyone is absolutely clear about their responsibilities in connection with this activity.
Clause 23 is very brief. It says:
"The Secretary of State may by regulations make provision for, or in connection with, dealing non-custodially with offenders aged 18 or over".
At first glance, one wonders why that is necessary. There are already non-custodial sentences for people aged 18 and over, and hundreds of thousands of them are issued and served every year. Of course, the clue is in the statement that the Minister made about the consultation document that is due to be concluded on
I have to admit that I am concerned about this statement. Although the memorandum on delegated powers says at paragraph 204 that this clause,
"is designed solely as a placeholder to allow the Secretary of State to take forward proposals",
I get the impression that this is opening the way for secondary legislation, which I do not believe is satisfactory for looking at young offenders in particular.
I detect some confusion between the Bill and the Explanatory Notes. The Bill talks about offenders aged 18 or over, and while that is strictly true of children it does not differentiate between them and young offenders, whereas the Explanatory Notes talk about "adults", although 18 to 21 year-olds are not regarded as full adults, certainly in the prison system. We have a wealth of evidence in front of us, most recently an admirable document published last week by the Transition to Adulthood Alliance, which talks about ways in which young offenders, particularly the 18 to 25 year-old group, should be looked after, and it is this group that I hope we will be able to focus on during the passage of the Bill.
I am very disturbed that the word "punishment" should appear so often in the Bill. I once had a discussion with Michael Howard-now the noble Lord, Lord Howard of Lympne-when he was Home Secretary. He castigated me for saying that prison was punishment and not for punishment. I said that I thought I was speaking in accordance with the policy of his Government because I had heard the phrase uttered by the noble Lord, Lord Brittan, a previous Home Secretary. He said, "I couldn't disagree with you more", so I asked, "What sort of prisons do you expect me to find when I inspect?". He said, "Decent but austere with a positive regime for tackling reoffending based on opportunities for education and learning job skills". I said, "Where's the punishment in that?". He replied, "I think we'll resume this conversation some other time", but we never have. That, to me, has always reflected the confusion in the rhetorical reference to punishment without really thinking through what it means. The punishment is the sentence awarded by the court. If you add punishment later, you will encourage the people who administer the sentence to say that inflicting punishment is one of their roles. However, it is not. I find it very interesting that in commenting on the Bill people are saying that introducing a punitive element into the sentence is likely to remove some of the rehabilitative content, and we do that at our peril.
I shall not go into all the details of the possible community sentences that could be introduced for this group because countless examples of how they work, how much cheaper they are and how much more effective they are can be found in masses of documents. The examples include Rethinking Crime and Punishment, a programme chaired by the noble Baroness, Lady Linklater, in which I had the privilege to take part. It has listed just how effective these things are. Examples are coming out of people's ears, so why do we need to go through it all again? It is proven and we ought to get on with it.
When people say that the public have no confidence in a community sentence, I have often thought that one thing wrong with them is that they do not do all the things that are done in prison. Why should they not, as in the state of Massachusetts, consist half of education in the widest sense and half of community reparation? By education I mean education, job skills, substance abuse treatment, mental and health treatment and social skills; in other words, all the things that are done with people in prison. Why do you have to go to prison in order to get those things? Why should there not be proper male and female adult offender teams, looking after such people in the community in the same way as the young offender teams do, so that there is proper, meaningful supervision.
All that has been said, so why do we need to say it all again and why do we need secondary legislation to introduce things that have already been proven? I am confused. My appeal to the Minister is that if we are seriously to help the Government move forward on this, could they please ensure that at the end of our debate in Committee people take note this time of the fact that we cannot afford not to do these things. I think of all the effort that was taken to introduce changes, amendments, adjustments and advice during the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill, only to have it all rubbished down the other end, where it was said that it was budgetary and therefore we could take no account of it. These things should not be dismissed for budgetary reasons because there may well be savings, not least in the lives of the people whom we hope to improve.
Lord McColl of Dulwich (Conservative)
My Lords, in the debate on the Queen's Speech on
"to ensure that persons, units or services responsible for investigating",
human trafficking offences,
"are trained accordingly",
"that effective investigative tools, such as those which are used in organised crime or other serious crime cases, are available to persons, units or services responsible for investigating",
human trafficking offences? Furthermore, can the House be reassured that the commitment to tackle human trafficking will be translated into resources, targets and plans?
On a point of detail, I would be grateful if the Minister would tell the House where the UK Human Trafficking Centre will sit in this new organisation. The Serious Organised Crime Agency website states:
"The UK Human Trafficking Centre ... is a multi-agency organisation led by SOCA. Its role is to provide a central point of expertise and coordination in relation to the UK's response to the trafficking of human beings".
As SOCA will be disbanded under this Bill, it is important to be clear where the responsibilities for the UK Human Trafficking Centre will sit. If it is to sit within the National Crime Agency, it will be vital to ensure that the focus on policing and tackling crime does not reduce work on its other much needed functions of protection and prosecution.
Noble Lords will be aware that I am particularly concerned about the protection of human trafficking victims, especially the care of child victims. The SOCA website states that the UK Human Trafficking Centre works,
"closely with partners across the public, private and voluntary sectors to coordinate the provision of a full care, end-to-end programme for the victims of human trafficking".
Like others, I am deeply committed to the UK providing full care and an end-to-end programme for victims of human trafficking.
In the debate on the Protection of Freedoms Bill on
In response, the Minister said that the Government were not ready to accept the introduction of this entity for rescued trafficked children-a legal advocate or whatever it would be called-but that he would invite the Children's Commissioner for England to review the current arrangements for the care of child victims of trafficking, with the intention of providing advice to the Government on whether improvements in care are needed. Three months on, can the Minister provide the House with an update on whether there might be scope within this Bill for the Government to take forward any aspect of our amendment, which is deemed useful by the Children Commissioner's report?
Lord Touhig (Labour)
My Lords, I will direct my remarks to Clause 20 of Part 2, the provisions in the Bill that will make offenders liable to pay new administrative costs to the Courts and Tribunals Service in cases where they do not meet fine payments in full or on time. In particular, I hope that when the Minister comes to reply he will specify the arrangements relating to consideration of means in these circumstances. The Government's intention behind making offenders liable for administration costs-which include those incurred by Courts and Tribunals Service in recovery-related tasks such as issuing payment reminders and tracing outstanding sums-is to increase compliance with payment plans and to make cost savings.
However, unless the offender's financial means are taken into account when applying costs, the change may not achieve either goal. Instead we will force more people further into debt, with little hope of eventual repayment. Those working with the poorest people in our communities understand that there are a number of circumstances which may result in offenders missing payment dates or not being able to meet the prescribed sum at a given point. Many of those who find themselves before the courts already face significant personal challenges. Indeed, the Government's own impact assessment recognises that some offenders lead chaotic lives. Other outstanding debts, unexpected family situations or confusion about the system may cause people to default.
I am certainly not advocating that additional administrative costs presented by such situations should fall automatically and completely to the taxpayer-far from it. I believe that people should face up to their financial responsibilities. However, if the amount owed were increased without any reference to the individual's means, it could result in unnecessary hardship, even when their intention is already to comply with payment of the initial fine.
Furthermore, as the costs will be treated as an increase to the fine and subject to the same sanctions for late payment, it is feasible that people could find themselves trapped in a downward spiral, with ever less ability to repay growing costs. No one will benefit from this. Such situations can be avoided if the new liability for costs outlined in the Bill is subject to the same consideration of means as the initial fine. These are set according to the Criminal Justice Act and the magistrates' court sentencing guidelines, which require the calculation of fines to be based on relevant weekly earnings, disregarding housing benefit, child benefit and tax credits. The guidelines state:
"The aim is for the fine to have an equal impact on offenders with different financial circumstances; it should be a hardship but should not force the offender below a reasonable 'subsistence' level".
I am sure that noble Lords will agree that the important principles of fairness and subsistence should apply also to subsequent increases in the amount payable. Should administrative costs be added at a standard level rather than through a flexible means-based formula, the poorest offenders will find themselves the hardest hit and potentially struggling to meet basic living costs-in direct contrast to the existing safeguards.
I will take the situation of a single parent in receipt of benefits who has been fined for a minor offence. The fine, according to the guidelines, will be set at a reasonable level, disregarding the benefits reserved for covering his rent and supporting his children. However, should he miss a payment for whatever reason he will be liable, under the provisions of the Bill, for extra costs. If his circumstances are again taken into account, he may have to pay slightly less than the full costs. The Courts and Tribunals Service will still recover some of the expenditure incurred through issuing reminders and managing his account, while he will continue to meet other basic outgoings for himself and his family.
However, if his circumstances are ignored and he is expected to pay the entirety of the costs or a standard sum, he could feasibly be left struggling to meet the increased repayment rate. In this case, his only recourse might be to use his housing benefit, child benefit or even a payday loan, to the clear detriment of his family. This is surely not the Government's intention, but it has raised concerns among charitable organisations and other groups, which feel that despite the understandable principles behind this part of the Bill, inappropriate and potentially unmanageable financial burdens may fall on offenders. Caritas Social Action Network, the social action arm of the Catholic Church in England and Wales, has warned of a detrimental personal and societal effect should the change leave people unable to meet basic needs, particularly in cases where they have dependent children or other debts to cover.
I ask the Minister in conclusion to ease these concerns by clarifying what consideration of an offender's financial means will be taken into account when deciding the level at which the new costs will be imposed. Will he also say how the principles of fairness and subsistence underpinning the current process will be protected? A great many people are anxious to know precisely what the Government have in mind.
Lord Alderdice (Liberal Democrat)
My Lords, I will speak about the NCA and in particular those aspects of it that relate to policing arrangements in Northern Ireland and to relations with the Republic of Ireland. Having glanced down the list of speakers, I do not think that these areas will be covered by other noble Lords. I am particularly interested in this matter as a Northern Ireland Member of your Lordships' House, and also as the Liberal Democrat co-chair on Northern Ireland policy.
I will start with some general issues. When SOCA was established and was due to absorb the role of the Assets Recovery Agency, there was considerable concern in Northern Ireland about the loss of the public effect that the ARA had had in not only taking assets away from criminals but making it very clear to the public that this was happening, and sending a public shiver down the backs of paramilitaries. Apart from the legal effect, it had a serious public effect on people in Northern Ireland from all sides of the community. The Independent Monitoring Commission, of which I was a member, expressed anxiety that after moving to SOCA that might not be so evident. There were also concerns about whether SOCA would retain a footprint and a strategy informed by the needs of Northern Ireland.
It is my perception that the concerns were well grounded and that in public terms, whatever SOCA has done by way of assets recovery, it has not had the same impact within the community. As we move to the National Crime Agency, my concern is that it may be difficult for a body that sets its priorities here in the south-east of England to have a public impact on some of these important issues in Northern Ireland. I wonder whether the priorities will remain the same. It was very clear to my colleagues and me that smuggling across the border and fuel laundering, for example, were massive in Northern Ireland but small beer for HMRC, so they were not prioritised. The number of officers put to task was minimal. As we move to a new agency, my concern is that the problems connected with the establishment of SOCA may be repeated.
When Revenue and Customs were brought together, the new HMRC incorporated a lot of Customs powers that had not been available to the Inland Revenue. There was not a great deal of debate about that and I am not sure that all those powers should have been transferred to the new HMRC. I seek the following reassurance from my noble friend the Minister. When the new agency absorbs the responsibilities of other bodies such as the National Policing Improvement Agency, which does not have all the powers that SOCA had, will there be any differentiation or will we see simply a centralising and increasing of power by a centralised and centralising agency?
On the new structures that will be established, I wonder how well they have been explored. There is-at least until Mr Salmond has his way-only one land border for this country, which is with the Republic of Ireland. I see that one of the four commands set down is border policing. This is something of which we in Northern Ireland have been very conscious. The noble Lord, Lord Reid, who is in his place, was very aware of that in his time. I am eager to know whether the Home Secretary has had discussions with the Minister of Justice in the Republic of Ireland, because I cannot see how it will be possible to continue with the excellent relationship that we have with An Garda Siochana and the Ministry of Justice if we have not had direct discussions with our colleagues in the Republic of Ireland in advance of bringing forward a measure to Parliament. Has this been discussed at the British Irish-Council, for example? It is the kind of thing that that body was put in place to discuss.
On the smuggling of drugs, people and fuel, the land border is so permeable that it would be impossible to deal with organised crime without addressing this-and without addressing it in co-operation with our colleagues on the other side of the border. Here I come to another problem. The Bill proposes that it will be possible for the agency to take over counterterrorism functions; there is an order-making power. I find it difficult to see how an agency of this kind could deal with organised crime in a place such as Northern Ireland if it did not incorporate counterterrorism functions. While it is not the case that all organised crime is from paramilitaries-the truth is absolutely the contrary-nevertheless there is sufficient paramilitary involvement to require an understanding of counterterrorism functions; I cannot see how it will be dealt with without the inclusion of those functions. In my work over a long period of time I have been very struck by the fact that An Garda Siochana incorporates the functions of intelligence, organised crime and community policing in one organisation. I am aware that it is good to bring these things together but I am not absolutely convinced that the Bill does that.
Where I have the greatest difficulty is on the question of Northern Ireland itself and its policing arrangements. Policing was the most exquisitely sensitive issue in all the negotiations, far more so than many of the political institutions and structures that many people thought were the key issue. And yet it seems to me that we may have a real dilemma in getting this Bill through because this will require a legislative consent Motion in the Northern Ireland Assembly, maybe even in more than one department. I think for the Department of Social Development there are some issues where an LCM may be required but certainly in terms of the Department of Justice it will be required. I know that my right honourable friend and Secretary of State in another place, Owen Patterson, and the Home Secretary have engaged with David Ford, the Minister of Justice in the Northern Ireland Assembly, and that has been a fruitful engagement.
I know there were proposals that the director-general of the NCA would have the powers of a constable in Northern Ireland. That would effectively produce-certainly in the perception of people in Northern Ireland-a second police force in Northern Ireland with completely different governance arrangements. I fancy it might be difficult to get a cross-community agreement for an LCM in the Northern Ireland Assembly on that and so the Home Secretary has very sensibly pulled that back. The director-general in the original Bill could ask the Department of Justice to direct the chief constable. Fortunately, there has been an understanding that the Policing Board needs to be involved in this kind of thing and the chief constable needs to have these matters discussed rather than have directions made and so there has been a removal of some of the provisions and an instruction that any changes would require the consent or approval of PSNI and of the chief constable, which is very reasonable. But I fear that if any consultation between the director of the NCA is only with the chief constable and not with the First Minister, the Deputy First Minister and the Minister of Justice, you put the police chief constable in a very political position where he or she might be asked to make what would inevitably in Northern Ireland be seen as a highly political decision to allow the director of the NCA to extend the powers. It seems to me we have done such a lot to try to take the issue of the politicising of the police out of the situation that it would be very ill advised to move in that direction. Therefore, although there has been some improvement in the Bill, I suspect that it will be necessary to ensure that not just the chief constable but also the First Minister, the Deputy First Minister and the Minister of Justice are consulted.
As I say, there are inclusions of a requirement to consult the Policing Board and that is excellent but I am wondering how the Bill has got to this point with what I perceive to be real vulnerabilities on the Northern Ireland front. Can my noble friend let us know whether the Executive have yet discussed the question of a legislative consent Motion not being able to be brought forward successfully and given any indication? My understanding is that the Justice Committee has not been able to discuss it because the Bill has only become public very recently. I fear that it might be very difficult to get a legislative consent Motion through, in which case it could well be that Northern Ireland would have to be excluded from the Bill, and that is not without political implications either for those on the Unionist side of the House in Northern Ireland. So I look forward to what my noble friend has to say in giving guidance on this. There have already been very helpful discussions with the Minister of Justice and substantial movements on the part of the Home Secretary but I rather suspect there may have to be more discussions, not just with the Minister of Justice in Northern Ireland, and perhaps more constructive engagement from the Home Secretary and more movement on this issue.
Lord Condon (Crossbench)
My Lords I declare my registered interests in policing and the private security industry. I want to speak primarily, as you would expect, about Part 1 of the Bill and the creation of the National Crime Agency. I warmly welcome the creation of the National Crime Agency and I wish Keith Bristow, the inaugural director-general, and his team every success. I hope the new agency gets off to a confident and successful start. However, I think the Government still have a huge challenge to demonstrate to your Lordships' House and beyond how the National Crime Agency and their other proposals for policing all fit together in a cohesive and comprehensive way. Their plans for policing must work from the bottom up from the local level of the police force and from the top down from the new NCA in a joined-up way. The Minister acknowledged this in his opening speech.
Sadly, I still have residual concerns that we may be left with a disjointed patchwork of policing with significant gaps and a lack of co-ordination. I will explain why. Scotland, for example, is taking a different route. Local, regional, national and international policing issues will be delivered by a single police force with local accountability being accommodated within the single force structure. In November we will have over 40 newly elected police and crime commissioners, some of whom may be elected by less than 10% of the electorate if the predictions for very low turnouts come to fruition. These new police and crime commissioners will, by definition, be intensely parochial. They have to be. They will focus only on local issues and will be looking for re-election exclusively on local performance and local popularity. How, then, will the National Crime Agency and any other regional or national structures take care of the very important regional, national and international policing issues and concerns?
Before looking at the Bill's provisions for the new NCA, it is worth considering just for a moment what is being simultaneously dismantled or potentially downgraded by the Government as they create the NCA. You have already heard that the Serious and Organised Crime Agency has been in place for six years and its staff and functions will provide the core or spine of the new NCA. But the NCA must be far more than just a change of name as SOCA becomes the NCA. I mean no disrespect to the professionalism or the endeavour of colleagues who have worked in SOCA but the metamorphosis from SOCA to NCA must be far more than in name only. The National Police Improvement Agency which has looked at police leadership, performance standards and information technology will be disbanded and we have no clear picture of how it will be replaced. The future of the Association of Chief Police Officers is uncertain, with its funding and its role still to be resolved, but there is a strong presumption that, at the very least, it will be downgraded in importance and role.
Against this background, how will the new NCA provide all the policing needs above the local police force level? I have three areas of concern: first, resourcing levels, secondly, dealing with terrorism, and thirdly, the gaps and grey areas that may be left out because they do not fall comfortably within the NCA remit. I am concerned about the planned resources for the NCA. I have said many times in your Lordships' House that the police service cannot be immune from cuts and savings. I have spent the past 12 years in the private sector delivering more for less and I am very comfortable with that concept. However, I do have real concerns about the resources being allocated to the National Crime Agency. New bodies in the public and the private sector inevitably have start-up costs. Other noble Lords have mentioned their concerns about resources. There is no new money for the NCA. It will inherit the budgets and the 20% reductions of the constituent bodies it is taking over. Despite my enthusiasm for the new agency, its budget proposals look perilously stretched. I hope the Minister can reassure your Lordships that the NCA will be more than just a rather feeble co-ordinating mechanism sitting above the units that are already in existence, but I fear that resource limitations may force it down that avenue. The NCA must be better than the Serious and Organised Crime Agency, and it must be better than the UK Border Agency. Good leadership and determination will go a long way to ensuring its success, but this new agency must not be allowed to falter through unrealistic budgets.
My second area of concern relates to terrorism, which other noble Lords have mentioned. Clause 2 sensibly provides for the Secretary of State to make further provision about the NCA counterterrorism functions. In essence, what is at stake here is whether the status quo should prevail, with the Metropolitan Police retaining its national co-ordinating role with operational hubs around the country, or whether the co-ordinating role should be transferred to the NCA, as the Home Affairs Select Committee in another place recommended. Again, very sensibly, the Minister said in opening that no decision will be taken until after the Olympics.
I am genuinely relaxed if there is to be change, but I urge those making the decision to do so on the pragmatic grounds of what is likely to work best and what is likely to provide the best levels of protection for the public. The decision on who should lead on terrorism should not be about what looks tidy on an organisational chart or the seductive impact of the word "national" in an agency's title. The fight against terrorism is as much about hearts and minds as it is about dramatic operations and arrests. With over 80% of terrorist incidents happening in London and the successful integration of neighbourhood policing, intelligence gathering and hearts and minds projects in the community, it will require strong empirical evidence and a compelling case, as the Minister said, to prove that the new National Crime Agency is better placed than the Metropolitan Police to lead this endeavour. The only assurance I seek from the Minister on counterterrorism is that the decision as to who should lead on combating terrorism will be based on what is most likely to protect the public-no more, no less.
My third and final concern relates to gaps and grey areas and things that the Bill is silent about. The disbanding of the National Policing Improvement Agency and the potential downgrading and functionality of the Association of Chief Police Officers could-I emphasise that it is only "could"-leave gaps and grey areas which the National Crime Agency is not mandated to deliver in any respect at all. Who in the police family will worry about and take responsibility for the police response to multi-location, multi-force riots which historically take place every so often? Who in the police family will worry about and take responsibility for responding to national employment disputes such as the recent tanker drivers' threatened strike? Who in the police family will worry about multi-force natural disasters such as floods or diseases like foot and mouth?
Clause 5 is about the relationship between the NCA and other agencies. It enables and encourages voluntary arrangements and, in limited circumstances, allows the director-general to direct co-operation from local forces. Very sensibly, the Bill envisages more than one force taking part, with the NCA, in a coalition of the willing or, in extremis, a coalition of the directed, but it does not deal with any of the concerns I mentioned earlier. We need reassurance on who will worry about and co-ordinate some of the issues that do not sit comfortably within the NCA.
In conclusion, I genuinely welcome the Bill. I also welcome the new drug-driving offence, which I think will improve road safety. However, as other noble Lords have said, there are some challenges in the detail. I am excited about the potential of the National Crime Agency, but I am concerned that inadequate resourcing may hamstring it and reduce it to an anodyne co-ordinating body rather than allowing it to be the potent force for good that, in the public interest, it deserves to be. I am concerned about counterterrorism and that changes may be based on organisational tidiness rather than on what is most likely to deliver public safety. Lastly, I am concerned that as the Government dismantle, downgrade and rebuild the constituent parts of our policing model, they may inadvertently-I think it would be inadvertently-create gaps and grey areas which we need to think about plugging and clarifying.
I know that the Government are still making up their mind about some of these issues. However, they have unleashed a programme of change that replaces core elements of police accountability and independence, most of which have been enshrined in our system since 1829. So it is the Government who are under an obligation to convince your Lordships' House that what they are putting in place will provide the public with joined-up policing locally, regionally, nationally and internationally. The proposals for the NCA are an important part of the overall police jigsaw, but as this Bill passes through your Lordships' House, I intend to test whether the pieces of the police jigsaw genuinely fit together, whether the Government really know what the picture should look like, and which pieces, if any, are missing.
Lord Harris of Haringey (Labour)
My Lords, I should declare my interests as chair of the Audit Panel for the Metropolitan Police and the Mayor's Office for Policing and Crime, and as an adviser to KPMG, Airwave Solutions, Lockheed Martin UK and a number of other companies that provide services to police forces around the country. It is a privilege to follow the noble Lord, Lord Condon, in the debate. I, too, want to speak primarily about Part 1 and the new National Crime Agency.
The Government's intention to create a National Crime Agency has been known about for almost two years. However, we have yet to hear a clear explanation of what the problem is with the existing arrangements that these changes are required to fix. I am sure that the Government's policy is, "If it ain't broke, don't fix it", but perhaps it goes a bit further than that by saying, "Even if it doesn't need fixing, take it to pieces anyway", because we are not at all clear about which problems will be solved by these reorganisations. Given that the Government's intentions have been clear for the past two years, we have to ask what has been going on during that period. We still do not have a definitive version of the strategic policing requirement, and we do not see any sign of the NCA framework document, even in draft, although it is pivotal to understanding how the new arrangements will work.
My understanding is that, because of this pending reorganisation, senior people in SOCA and the other agencies have spent the past two years sitting in meetings arguing with officials from the Home Office and other bodies rather than devoting themselves to their main purpose, which is that of fighting serious and organised crime. But all the meetings that have taken place over the past two years seem to have failed to produce anything definitive on how the new arrangements are supposed to work. What we are told about the likely organisational structure suggests that we are going to have a series of silos that are spatchcocked together. If that is all it is, frankly it is not clear why the reorganisation is better than a general injunction on the different organisations that currently exist to work together better. Moreover, there remains a lack of clarity about one of the central issues as to how the agency is going to work-a lack of clarity about the powers of tasking and co-ordination, whether voluntary or mandated.
We spent many happy months in your Lordships' House discussing the Police Reform and Social Responsibility Act. That Act clearly states, as does the policing protocol, that elected police and crime commissioners are responsible for the totality of policing within their jurisdiction and that they alone are publicly accountable for the delivery and performance of policing. That responsibility is placed clearly in their hands on behalf of the electorate.
Under this Bill, directed tasking arrangements allow the Home Secretary to empower the director-general of the NCA and allow the director-general of the NCA to task police forces and other law enforcement agencies to carry out specific activity. While the PCC would have to be notified when such a direction is initiated, this tasking would in practice interfere with the operational independence of the chief officer as set out in the Police Reform and Social Responsibility Act, and interfere with the police and crime commissioner's responsibility for the totality of policing. My prediction is that, unless this is handled correctly and there is rather more substance to it than is contained in the Bill, conflict is going to be inevitable.
The whole point of these new accountability arrangements created by the Government is that police and crime commissioners will be elected with a mandate to deliver in respect of local concerns. That is what they are there to do. What is going to happen when the elected police and crime commissioner for Loamshire or some such place decides that his or her number one priority is going to be addressing volume street crime in Loamshire and its larger towns and yet suddenly there is a directive to divert resources from Loamshire to somewhere else to help deal with particular problems of organised crime, when for the public of Loamshire-the electorate that elect the police and crime commissioner-organised crime is not a particular issue facing that local community? How that is going to be managed is not clear from the Bill.
Indeed, the whole Bill poses a series of questions. Who is accountable to the public for activity that is being directed? When things go wrong-as they will-is the Home Secretary or the NCA director-general liable for any repercussions from this activity? How is this going to interfere with the PCC's setting of local strategic priorities and indeed that accountability of PCCs to the public that the Government tell us is so critical? Will the police and crime commissioner for Loamshire or for any other area be able to veto a direction using his or her powers? Presumably that will be the case if it is a voluntary direction because that is my understanding of what "voluntary" means. What if it is not? What are the implications if the chief officer of police accepts a voluntary direction but his or her police and crime commissioner says, "No, I do not think that is in the interests of our local community, which I am elected to defend"? How is that going to be resolved? Who will be responsible under those circumstances?
Of course, the Government have got a let-out clause, as you would expect. I am sure the Minister is aware of paragraph 30 of Schedule 3, which gives the Home Secretary the power to amend the requirement to get prior consent before issuing directions. So we are actually being told that this is not going to be voluntary but there will be this power to dispense with the requirement to have prior consent. I suggest that this is going to create more conflict and more difficulties. Again, perhaps it is not very helpful that the detail has not yet been worked out.
This situation is made all the stranger when you observe that this new agency seems to have virtually no governance arrangements. The director-general reports and is accountable to the Home Secretary, who is in turn accountable to Parliament. There is no board; there are no non-executives; there are not even a few token elected police and crime commissioners sitting in that structure perhaps to provide some coherence with the expressed wish of the local electorate about police and crime priorities. There is no mechanism for scrutinising what is happening. Even the elected police and crime commissioners-which some of us were not hugely enamoured of-had these scrutiny arrangements created within the local authority structure. There is no parallel here.
Of course, the legislation contains promises that the director-general will be operationally independent, but what will that amount to in practice? How will it be enforced, and who is going to scrutinise that operational independence in the absence of any of those governance structures? Let us be clear: operational independence is not all that it might appear or be cracked up to be. It certainly does not apply to policing equipment. I suspect that most chief officers of police would think that their choice of equipment is very much part of their operational decision-making. I do not personally always agree with them on that, but paragraph 1 of Schedule 4 allows the Home Secretary to make regulations on the use of specified equipment and the NCA director-general will be required to comply. There is not much operational independence there. This is the Home Secretary, to whom he or she is accountable, saying, "You will or will not use this type of equipment". That hardly sounds like operational independence to me.
Then there are the very strange provisions under paragraph 4 of Schedule 5. I am sure that the noble Lord, Lord McNally, will explain to us precisely why these are here. Paragraph 4 creates an advisory panel; a new quango, if you like-from a Government who promised us a "bonfire of the quangos"-and what is this new advisory panel going to do? It is going to give advice to the Home Secretary on whether the director-general has sufficient training to carry out his operational powers. I wonder where they dream up things like this-which cellar in the Home Office is responsible for thinking up new committees to do this sort of thing.
This proposal is certainly not a carry-over from the legislation that created the Serious Organised Crime Agency, because it was not thought necessary to have an advisory panel to decide whether or not the director-general of the Serious Organised Crime Agency had the necessary training to carry out their operational functions. So why is it here? Is it because the Home Secretary is planning to replace the current director-general with an individual whose qualifications are so questionable that a panel is needed to test them? That is as may be, but paragraph 5 explains how the Home Secretary can ignore the advice of that panel under any circumstances.
We have to question what model of organisation was used for devising the governance structures for the National Crime Agency. The best example of that, one with which the Home Office is intimately familiar, is the relationship between the Home Secretary and that paragon of effective service delivery, the UK Border Agency. That relationship has worked so well in recent months, between the Ministers and the people with executive responsibility of the agency concerned-two impossible demands before breakfast and the agency, of course, has to comply.
Finally, I will say a word about Clause 2, which allows the Home Secretary by order-admittedly subject to the super-affirmative procedure-to add counterterrorism to the functions of the National Crime Agency. I have to question whether a decision of that magnitude should properly be done simply by order. Let us also be clear: if counterterrorism becomes part of the functions of the National Crime Agency, it will totally transform the National Crime Agency. This body that has taken two years in gestation merely to talk about a series of organisational silos spatchcocked together will suddenly have spatchcocked onto it an even larger organisation completely distorting and changing the priorities.
As the noble Lord, Lord Condon, said, it may or may not make sense ultimately to have counterterrorism as a function of a national agency of that form. However, having been involved in the convoluted discussions to get the current structure in place, I think you have to be very clear about the case you are making before you embark on those changes and very clear about why you want to go ahead with them. The experience in other countries-according to the FBI, for example-is not always a happy one in terms of relationships with local forces regarding counterterrorism. There is a real danger of divorcing a counterterrorism elite squad from ordinary policing, not only in terms of intelligence but also in managing community relations following operational decisions.
I am sure the intentions of the Bill are fine. The Government had two years to move from intentions to detailed proposals but in those two years we have yet to see the fruits of their labour and to understand exactly how these new arrangements are intended to work.
Baroness Neuberger (Liberal Democrat)
My Lords, I shall confine my remarks to Part 2 of the Bill. I was honoured to be invited to chair the advisory panel on judicial diversity by the then Lord Chancellor, Jack Straw, and to continue its work under the present Lord Chancellor, Ken Clarke. We made a number of recommendations and were absolutely delighted and not a little surprised to find that they were accepted by the Government in their entirety. For that reason, I wish to congratulate the Government, particularly the noble Lord, Lord McNally, who I know has thrown his personal enthusiasm behind all this, on what is proposed in the Bill so far.
In these provisions we have the beginning of a way forward. There is a real need for the judiciary to be more reflective of the community it serves, as the noble and learned Lord, Lord Mackay of Clashfern, has said. As Lady Hale, the single female member of our Supreme Court, put it in evidence to the Constitution Committee:
"A woman litigant should be able to go into the Court and see more than one person who shares at least some of her experience. I should not stick out like a bad tooth, as I do at present".
However, let us be clear. We did not think back in 2010 when we reported, and nor do we now, that increasing diversity in the judiciary would be a speedy process. Nor did we think that it was only for the Government to change. Legal professionals, the judiciary and some of our senior law firms will also need to take ownership of these issues. We were encouraged by the positive messages coming from some of the most senior judges in the land, but enabling judges in the most senior positions to work flexibly is only a beginning. Of course we need the legislation to make it possible but even more important, as the Minister said at the beginning of this debate, is a change of culture within much of the senior judiciary and beyond. They need to begin to think differently about how people might work and realise that things do not have to be done just as they always have been.
We know that flexible working is possible and that provisions have been made for sick and widowed judges to work more flexibly on an ad hominem basis in the past. If it is possible in these circumstances, it is possible and-for diversity and other reasons-desirable to do it more widely. So we applaud the measures in Schedule 12. We like the idea of,
"no more than the equivalent of 12 full-time judges of the Supreme Court, rather than exactly 12 judges".
This provision, and the fact that it is being made, sends important messages to women with children, anyone with caring responsibilities and others for whom an absolutely full-time role might be difficult.
We also welcome the so-called tipping point provision in Schedule 12, which we also recommended. Clearly, these changes should not and would not change the overriding principle of appointments based on merit, as the noble and learned Baroness, Lady Butler-Sloss, has said. However, they should encourage clear career progression-a judicial career, rather than a career judiciary-and applications from a wider talent pool than at present
Let us be clear. We have a wonderful judiciary in this country. It is highly talented, highly independent, not always beloved of Government-nor should it be-and of great merit. None of this desire to increase diversity is in any way a personal criticism of the present judiciary. Perhaps I should declare an interest here as sister-in-law of the Master of the Rolls. However, he is on record as saying to the Constitution Committee:
"The main problem is the cast of mind. Most of us think of a judge as a white, probably public school, man. We have all got that problem".
I agree absolutely. Even that does not begin to tackle something even more complicated, which is the nature of the selectors if we are not careful. When I gave evidence to the House of Lords Constitution Committee, I said:
"We all have an inclination to appoint people who are like us".
I spoke from experience.
In jest I added:
"I cannot think why that should be".
Of course, I can think exactly why that is, and I am eternally grateful to David Bewers and others at the King's Fund who pointed out how we were appointing people and made sterling efforts to broaden and widen our pool. However, appointing people in our own image is a natural human reaction. That is why, where the judiciary plays an even greater constitutional role than it did in the past, it is so important that the judges should not be always in the majority-or arguably ever in the majority-in appointing people to become part of their own number. Like Lord Justice Etherton in his evidence to the Constitution Committee, I think that,
"the judges cannot be purely a self-appointing body".
I am delighted that the most senior judges will not in future be involved in the appointment of their own successors. Having an independent lay person as chair of the selection panels for both the Lord Chief Justice and the President of the UK Supreme Court, rather than a judge, is a very good thing. I am also pleased to see proposals in the Bill to allow for easier transfer between the tribunals and the higher courts, which was one of our main recommendations for increasing diversity, given that the tribunals are by and large infinitely more diverse in their judicial membership than the other courts.
However, and now speaking personally and not as part of the advisory panel, I do not support the measures to give the Lord Chancellor the right to sit as a member of an appointing panel of the Judicial Appointments Commission. The idea of the Lord Chancellor sitting on the selection committee for the appointment of the Lord Chief Justice or the President of the UK Supreme Court worries me greatly. I have no doubt that this Lord Chancellor would be scrupulously fair and bend over backwards to do the right thing but he will not be in post for ever and he cannot guarantee his successors.
There is a constitutional issue here. The principle of judicial independence is an important one and that means that neither the Lord Chancellor nor Parliament should be given enhanced powers to decide who becomes a judge. That means that lay involvement of the highest calibre and the greatest independence is essential in the appointments process. That puts a huge burden on the Judicial Appointments Commission. It is early years for the JAC and I congratulate the noble Baroness, Lady Prashar, on all the work she has done to enhance diversity in her time, as has her successor, Chris Stevens. My panel was delighted to the see changes in the specific merit criterion about dealing fairly that were made recently by the JAC. One of the changes was to put in an awareness of the diversity of the communities that the courts and tribunals serve and a commitment to justice, independence, public service and fair treatment. We wait with interest to see how people applying to become judges measure themselves against those criteria in the coming few years.
The Constitution Committee argued hard that merit should remain the sole criterion for appointment. We also held that view strongly. The Constitution Committee did not consider merit to be a narrow concept based solely on intellectual capacity or high-quality advocacy. It said:
"We refute any notion that those from under-represented groups make less worthy candidates or that a more diverse judiciary would undermine the quality of our judges".
We absolutely agreed.
Therefore, we are left with much to do. The advisory panel regarded it as essential to introduce appraisal for the judiciary on diversity grounds, having been told by many more junior judges and possible candidates for judicial office what a difference that would make. The Constitution Committee, as the noble Baroness, Lady Jay, has said, absolutely agreed and supported that. We know there are financial issues here, but we believe that it is possible to have a less than gold-plated appraisal system, fully owned by the judiciary itself-possibly even 360-degree appraisal to allow judges to feel confidence in their performance-which is particularly important for those who do not come from the most conventional backgrounds and legal experience. Benchmarks in the appointment of judges should be set and monitored, and the judicial diversity taskforce should own that benchmarking, examine it and take action regularly. Indeed, today's Bill is evidence of the Government's willingness to take these issues seriously. Sustained effort is also needed to improve things, and that needs to be made jointly by the judiciary, the professions and the Government.
I ask the Minister to assure me that the judicial diversity task force will continue to own this field and will benchmark and take action as necessary, with full co-operation with all those who need to be involved. I ask him also to say something about when funding might be found to allow for appraisal in the judiciary.
The noble Baroness, Lady Meacher, the chair of the APPG on Drug Policy Reform of which I am also a member, had planned to speak today but has had to attend meetings in Brussels. She asked me to say that she will contribute on that matter at later stages of the Bill, as I imagine will people on all sides of the House.
Lord Prescott (Labour)
My Lords, I should perhaps declare my interest as standing as a candidate, if elected by my party, for police commissioner. That has caused me to look closely at what the Government are proposing. If doubts have been expressed in this debate and by the Constitution Committee about the courts and the role of the police commissioner, they reflect not uncertainty in the Government but a contradiction. On the one hand, they say that there should be local control of policing; on the other, they make sure that the control lies at the centre with the Secretary of State. It is the biggest centralisation of our police that we have witnessed for many a year. All you have to do is read what the Home Secretary said to the previous Police Federation conference-not the last one; she had difficulties there. On starting out on this road, she said:
"I'm not interested in running the police".
She later said:
"That principle-that we are best served by a police force run by professionals rather than politicians-is at the heart of this Government's plan to cut crime".
Since crime has fallen by 50% less than under the previous Administration, and it is now being proposed to break up the system then in place, perhaps that is not the best example.
The Home Secretary talks about a change in the policing landscape. She has announced in this Bill the establishment of the National Crime Agency. People have pointed to the conflict between the powers given to the director-general of the institution and those given to other bodies and the chief constable. If you look carefully at this Bill, you see that it is undoubtedly true that power is given to the director-general to direct the chief of police-that is set out in Clause 5. Curiously, the only exception, where you have to seek the permission of the Secretary of State, is the British Transport Police. I do not know why that is so. I understand that it is a separate organisation, but it has a right, if a direction is given by the director-general, to get it confirmed by the Secretary of State. If that is the case, it should apply to other areas.
We have to reflect on what the Government are doing in this transfer of power. I have heard the noble Lord, Lord Condon, and others talk about the fight against terrorism. There is an article in the Telegraph-I got it by mistake; it is not my usual paper-by a man people will not be surprised to learn, given my background with the Met, for whom I do not have great admiration, John Yates. Entitled "A British FBI won't make us any safer", it argues that taking responsibility from the Met-I am not a great fan of it either-and distributing it to another body will break up that co-operation of the willing that the noble Lord, Lord Condon, talked about, where chief constables in an area get together with the director-general of the crime agency. That seems common sense to me; I have no objection to the crime agency. All Governments have tried to co-ordinate efforts when crime has gone beyond an area of operation, nationally and internationally-terrorism, drugs, et cetera. That is right and I have no dispute with it.
However, I do not believe that the Government are merely confused in what they are doing; I believe that it is a deliberate policy to centralise power and to give less power and fewer resources to the regions. Who is going to be responsible for that? As the noble Lord, Lord Harris, has pointed out, local responsibility belongs to the commissioner and the police chief. I assume that they will have a five-year plan for dealing with police and crime. The power is given to the commissioner to sack the chief of police if necessary. It would be rather interesting if the chief of police was operating on what he thought was a nod and a wink from the Secretary of State. I hear that ACPO has not been abolished yet, but apparently it is on the way. That will be set up by the council of chief constables who advise the Secretary of State. Do you think that this Secretary of State might advise those chief constables on what her priorities are? Will they have to go back and change the plan that has been agreed with the police commissioner? Who is running the local crime strategy and the policy for delivering it? I know what will happen-it is called localism under this Government. They do not give you the resources and they then say, "You're responsible". They will then blame the commissioner and the chief constable for not achieving a reduction in crime. The very policy that they are pursuing is to reduce resources by 20%, the police by 16,000 and achieve the increase in crime that we are already coming to. But they will not be blamed any more; rather, it will be these wonderful new commissioners. That is probably why we are asked to swear a pledge of impartiality. Cor blimey, if you held this Government to that pledge of impartiality, you would have difficulty.
The Government claim on the one hand that the police force should be run by professionals and then create on the other a system that elects politicians. Even the police and crime panels being set have councillors on them. Of course the commissioners will have background and of course they must be impartial-I would not for a second think that any judgment that I would be involved in would not be impartial-but they would be judged by the electorate because they would have to stand for election again. That is what the Government say is one of the important democratic accountabilities of the new system.
This is a policy that has been thought out. It is about keeping the power at the centre, leaving the responsibility for the local area and then stripping the system of powers and resources. In my authority, Humberside Police will lose £30 million out of its budget and 400 police. Will that it make it easier to carry out the crime policy in the area? Of course it will not, but the force will be blamed for it.
ACPO had a reasonable amount of independence; there are people here who know how it works. That is now being stripped down to the council of chief constables, and it will obviously be influenced by what happens in the relationship between the Secretary of State and the chief constables.
The other matter of concern is privatisation. I heard the noble Lord, Lord Condon, say that he has worked in the private sector, which has, I am sure, done a lot of things to achieve the efficiencies that are necessary. But this privatisation programme, whether it is in the back office or the front office, is really about reducing the police from a public police force to a private police force. That is what is believed; that is what is likely to happen; and it is all about getting a cheaper kind of labour to replace the traditional force. That raises questions and concerns over whether we are replacing a public police service with a private one, which, of course, many people feel is the case. All this leads to grave concern about the role of the commissioner.
I am not resigning because I have discovered this; I think that you will find that I might try to prevent some of it. Unless I am crossing the line of impartiality, I would think that if I am fighting for my community and it tells me to reduce crime, I am going to be doing all the damn things that I can to see that that happens, even if it means arguing with the Government about it. That is a reality of people being elected by the community and who are accountable to it.
While the crime agency would not be involved in tackling corruption in the police force, there is a worry here. The report that Parliament has received from the IPCC only this week, Corruption in the Police Service, makes it clear that corruption is on the rise. The 178 allegations of officer corruption recorded by the Humberside Police force have been a headline today in my local paper, Hull Daily Mail; I saw it when I got on the train. The figure in the Met it is 1,800 because it is a bigger force. Of course there is a certain amount of competitive unfairness-corruption can occur with a league table-so the report proposes more resources and powers to investigate some of the claims of corruption and police complaints which are not being put forward. I hope the poor Government are reading this report and will give a response to it.
The report also highlights concern about contracts that are being agreed between the police and the private sector. The commission said that it could not get access to the information to make a judgment about such contracts. That is very worrying because a number of senior policemen have joined these private companies and are involved in the bidding. That is wrong. The Government should make it clear to them that they should not be involved in areas where they have expertise and where contracts are involved. This report makes it clear that the commission wants more information on resources. That will be an issue for the commissioner. I strongly think that is what is happening, and that was evident in Surrey. In north Lincolnshire a complete police station has been taken over-it is not just a bit of backroom work; the whole lot has been taken. We have now got C4 Security doing the high-profile work as well, all rejected by the public and very contestable. I think there is a growing concern about these matters.
The Government want to get people into this field as commissioner-and at the moment they are worrying whether they can get independent people, and are trawling businesspeople to encourage them to come out and do this job-but why is the Home Office, as opposed to in elections for the mayor and local government, prepared to pay for information about the candidates? Why is the Home Office doing what we already do for MPs, MEPs and indeed other candidates? But why is there a refusal to give out that information about the candidates? I know they say you can get it on the website. Some 7 million people do not have access to the website, according to the Electoral Commission. Let us look sensibly at what we are doing. Of course there will be arguments. This is about the centralisation of the police. It is actually nobbling local policing, whatever they say, and that is going to be an argument. Forgive me if I think that is kind of political attitude and view. Judge it on the evidence and that is what the election will be about.
Baroness Harris of Richmond (Liberal Democrat)
My Lords, it is always a great pleasure to follow the noble Lord, Lord Prescott. In general, I am quite happy to support this Bill, and that is not something your Lordships will have heard me say often about the Police Bills that I have debated in this House since becoming a Member 13 years ago. I will therefore restrict my comments to Part 1.
Although it is a long time ago, I must declare that for a number of years I was chair of my local police authority. Also, for some 30 years I have been and still am involved in policing issues. I was a deputy chair of the Association of Police Authorities-soon of course to be abolished-and am currently one of its vice presidents. I was also a member of the National Crime Squad Service Authority and was a member of the Police Negotiating Board, and I held other policing responsibilities within the APA. I would like to thank the APA for the really excellent work it has done over the years. I was a founding member of that organisation and we were blessed to have the professionalism and guidance of Catherine Crawford as our first CEO. She was inspirational in bringing together a rather disparate group of police authorities and she made us into a firm pillar of the tripartite arrangement. For the first time, we spoke as a united body, and we owe her and all the staff of the APA, past and present, a great debt of gratitude, as we do all the members who have worked so hard to deliver great improvements to policing in their communities.The replacement of police authorities by police and crime commissioners is something I would rather not dwell on and my views are well known. I simply did not want this Bill to pass without acknowledgement of the fine work and recognition the APA deserves as it gently vanishes into the sunset.
I have been pleased to see that a number of organisations with an interest in policing have sent briefing notes, in the main supporting Part 1. That is a good start. However, their concerns reflect some of mine. I remember that when SOCA was set up in 2006, I was exercised then by its governance, feeling that it was too narrow and lacked police authority member input. All the vast experience of members of police authorities of former regional crime squad bodies was dismissed out of hand, and we were told that the then chair was not prepared to consider any of those members as suitable to sit on the SOCA board.
That proved to be a great mistake, and was partly rectified by the current chair, Sir Ian Andrews, who recognised the need to engage with a much wider policing environment. I congratulate him and the former director of SOCA, Bill Hughes, as well as the current director, Trevor Pearce, on being much more open and helpful to both police forces and police authorities when they sought help. SOCA is a rather different animal now than it was a few years ago. As we have heard, SOCA will disappear shortly, as will the National Policing Improvement Agency, the NPIA. I cannot let this opportunity go by without saying a word or two about the really excellent work this body has also undertaken. It, too, has brought great improvements to the police service and has been managing the national infrastructure, research and analysis and review of police leadership and training. The NPIA was initially run by Peter Neyroud and more recently by the excellent Nick Gargan as chief executive with Peter Holland as chair. It would be utterly remiss of us not to thank them all for their dedicated work over the years and their determination to see their respective organisations move smoothly to the new framework of the National Crime Agency, and we do.
So it is around the governance of the new agency that I have concerns, just as I did when SOCA was introduced, not least now around the introduction of police and crime commissioners. I believe that insufficient thought has been brought to bear on exactly how this will all work in a sufficiently joined-up way. After all, as the APA and a number of your Lordships have reminded us, the PCCs are responsible for the totality of policing, and we have heard an awful lot about that this afternoon. Why not have a representative number of them embedded in the NCA, an idea I spookily share with the noble Lord, Lord Harris of Haringey? It would be a good opportunity to link up both national and local policing delivery. Who will oversee the work of the NCA? It appears that it will simply be the Secretary of State and I cannot think that will be either practical or desirable. This was a view also shared by my noble friend Lady Anelay of St Johns when speaking to an amendment during Committee on the Serious and Organised Crime and Police Bill. She said:
"It is essential for the maintenance of the rule of law that law enforcement agencies be subject to independent oversight and that they have a measure of operational independence from the Executive. It is highly undesirable that an agency with such extensive powers in relation to information gathering, investigation and prosecution should have such a close and exclusive relationship with a single government department".-[Hansard, 5/4/05; cols. 599-600.]
There is no board of either specialist professional or independent members as there is with both SOCA and the NPIA. Would it not be at least beneficial to have the Independent Police Complaints Commission scrutinise their work as Liberty suggests?
How will the NCA be so very different from other police forces, Customs and Excise, and immigration, which have all been subject to scrutiny in the past? The NCA will, arguably, be more responsible for a range of policing functions. This is an area which needs revisiting.
My second concern is that the Freedom of Information Act will not apply to the new NCA, as has already been referred to. The Freedom of Information Act has an extensive exemption regime ensuring that sensitive information does not have to be revealed, and I do not understand why the National Crime Agency is to be exempt. Can my noble friend enlighten me? Can he also confirm whether the officers of the NCA will have the right to strike, unlike police officers?
I have a general concern about how the present duties of SOCA and the NPIA would be apportioned-again, that has been referred to. Can my noble friend reassure me that that will be clarified very shortly? At present, SOCA has identified about 38,000 individuals as being involved in organised crime impacting on the UK. In contrast, to deal with those people, SOCA has 3,984 members of staff and, as at March 2011, the NPIA had 1,820 members of staff, although I think that that will have changed radically, as many have been made redundant. Those seem to be small numbers to deal with such important policing matters, and their merging into the NCA will need very careful management. Can I assume that TUPE regulations will apply to all staff moving over to the new agency?
Almost finally, what is going to happen to the premises that SOCA and the NPIA have, some of which, such as Harperley Hall in County Durham and the police college at Bramshill, are superb and of national importance?
Finally, I have a feeling that a great deal of this work will need to be helped by critical systems analysis, if it is all to move smoothly to the new policing landscape. I encourage my noble friend to consider the viable systems model-which I am willing to share with him and his Bill team, but with which I shall not press your Lordships' patience this evening-which would optimise joined-up, integrated working while delivering high levels of autonomy at all levels, which is just what we need if this new era of policing is to be a success.
Baroness Prashar (Crossbench)
My Lords, I wish to speak about the part of the Bill which relates to judicial appointments. In so doing, I declare interest as the former inaugural chairman of the Judicial Appointments Commission, a post which I held from 2005 to 2010. I fully endorse the comments made by the noble Baronesses, Lady Jay and Lady Neuberger, and commend them both for the way that they have handled the issue of diversity and kept it high on the agenda. Like them, I welcome most of the changes contained in the Bill, but particularly those which relate to part-time working. It was in 2008 that the JAC first recommended that change, because the research which it conducted showed that for many underrepresented groups, the absence of part-time working was a real disincentive. Availability of part-time working will have a positive impact on diversity. I know that people have raised the issue of practicality, but similar objections were raised when the JAC itself was set up. It was suggested that making people apply would decrease the number of applications and that we would not get high-quality applicants. That has not been the case: neither the quantity nor the quality of the applications has diminished. I am sure that ways can be found to get around some of those difficulties.
I am also disappointed that there has been no relaxation on employed lawyers and no movement on appraisals. I am very concerned that it is intended that where a selection commission is convened to select a person for appointment as president of the Supreme Court and the Lord Chief Justice, the Lord Chancellor may be a member of the selection commission. The process by which judges are appointed is of constitutional significance, and the Lord Chancellor should have a limited role in the appointment of senior members of the judiciary. The rationale for establishing an open and independent process for judicial appointments in 2005 was to ensure that there was appropriate distance between the appointments process and the Lord Chancellor. The Constitutional Reform Act 2005 removed the role of the Lord Chancellor as the head of the judiciary and Speaker of the House. The position of Lord Chancellor, which is legally and constitutionally distinct from that of the Secretary of State for Justice, is now a more political role than it was. That change was one reason why the role of the Lord Chancellor was restricted in the Constitutional Reform Act.
Furthermore, in my experience, the process has worked fine in practice, so why the change? It is difficult to see the rationale for it. Indeed, the Select Committee on the Constitution states in its report that:
"The Lord Chancellor should continue to have a limited role in the appointment of senior members of the judiciary; he should be properly consulted and retain his right of veto in relation to the most senior appointments. He must also retain responsibility, and be accountable to Parliament, for the overall appointments process. But he should not be permitted to select candidates from a shortlist, nor should he sit on selection panels. Such changes would risk politicising the appointments process and would undermine the independence of the judiciary".
I very much hope that the Minister will encourage his department to withdraw that change.
I would also like two new provisions in the Bill. I would like the duty contained in Section 64 of the Constitutional Reform Act, whereby the JAC is required to encourage diversity in the range of persons available for selection for appointment, to be extended to the Lord Chancellor and the Lord Chief Justice. Promoting diversity is a joint endeavour between the JAC, the Lord Chancellor and the Lord Chief Justice. The JAC alone cannot bring about the desired change, and the provision as it stands creates unrealistic expectations of the JAC, because it carries the whole burden, and issues which are outwith its responsibility are neglected. For that reason, it is very important that that change is included in the Bill.
My final comments are about the selection of the JAC commissioners themselves. The independence of the JAC is crucial; it is also a body of constitutional significance. If we want an independent judiciary, the body which selects judges should be independent and be seen to be independent. It is important that the membership of the JAC continues to be prescribed in primary legislation and that any changes be brought before Parliament. However, it is equally important that how the members of the JAC are appointed is prescribed in legislation.
The Constitutional Reform Act 2005 makes some provision for the JAC commissioners, requiring that they may not be appointed for more than five years at a time, and not for more than 10 years in all. However, there is a lack of specific detail about the process for the appointment of commissioners. The Ministry of Justice's position is that the guidance for public appointments should apply, as the CRA does not make specific arrangements. Public appointments guidance provides Ministers with considerable flexibility in making appointments and, importantly, choice in candidates recommended for selections. In my view, it would be appropriate and consistent if the provisions in the Constitutional Reform Act for the appointment of judges, which were so carefully crafted to ensure judicial independence, were also applied to the appointment of commissioners and prescribed in legislation. This would in reality and in perception secure the independence of the body that selects judges. In recommending this change, I am not for a minute suggesting that the JAC is not independent or that its current members are not independent; but this change would ensure that this independence is safeguarded in the future, because there is evidence in other jurisdictions that attempts have been made to criticise the selecting body in order to impact on the appointments. So this small change will ensure that the independence of the judiciary is guarded if the body that selects judges remains independent.
Lord Wasserman (Conservative)
My Lords, I very much welcome this Bill, particularly Part 1 establishing a national crime agency, and I shall confine my remarks to this part. I take very seriously the threats that this new agency is being established to tackle: serious and organised crime, economic crime, child exploitation and cybercrime. I also believe that the policing of our borders could do with some strengthening. These threats cannot be tackled effectively by local forces on their own, by ad hoc arrangements between forces set up by groups of chief constables acting collectively, or by ACPO in response to particular events or pieces of intelligence. For this reason, I regard this new agency not as a desirable feature of our policing landscape but as a necessary one. I believe that there is degree of urgency to get the NCA established. So, while I recognise the need for careful scrutiny of this Bill, I hope that it will not be long delayed in this House or in another place and that the NCA can open for business relatively quickly.
When I returned to this country in 2008, having spent the best part of 12 years working on policing matters in the United States, I was amazed to discover that, during this period, our policing arrangements had taken a very odd turn. I found that local policing-that is, policing aimed at tackling local crime and anti-social behaviour-was being directed mainly by officials and Ministers in Whitehall, and occasionally by the Prime Minister himself.
National policing, on the other hand-that is, policing aimed at serious and organised crime and other threats that transcend force boundaries-was being directed not by the Home Office but on an arm's-length basis by an independent agency. This agency was responsible to a board chaired by a former civil servant, who had no crime-fighting experience, and included a number of distinguished and, no doubt, very able members, none of whom had ever walked a beat or felt a collar. To me, this made no sense at all either in terms of effectiveness or democratic accountability. That is why I welcomed the changes to our local policing arrangements introduced by the Police Reform and Social Responsibility Act 2011 and why I welcome the Bill that we are debating today. The Police Reform and Social Responsibility Act transferred responsibility for local policing from the Home Office in Whitehall to local communities, where it belongs. It did this by making local chief constables and their forces directly accountable to individuals who live locally-local chief constables who have been chosen democratically by their fellow residents through the ballot box.
This Bill tackles the other aspect of the mismatch in our policing arrangements that I mentioned a moment ago. It puts responsibility for national policing where it belongs, with a Secretary of State accountable to Parliament. It is he or she, not an independent board, who will appoint the director-general as the operational head of the NCA and who will decide on the agency's functions and strategic priorities. This Bill provides for these priorities to be set in consultation with "strategic partners", but they will ultimately be the responsibility of the Home Secretary. For me, this is the heart of Part I of this Bill and is why I welcome it. While I recognise that there are details to be considered, and the noble Baroness, Lady Smith of Basildon, has already put us on notice that we will debate them in detail, I still think that there is a fundamental principle there, and I welcome that principle.
Fighting serious and organised crime, economic crime and other national threats that face us is not a job for enthusiastic amateurs. It requires a specialist organisation established, equipped, staffed and managed for this purpose. It also calls for leadership of a high order, leadership that can command the respect of the whole policing community because it is based on a record of successful crime fighting. Keith Bristow has demonstrated such leadership, having served as a chief constable and as chair of the APCO crime business area. Like the noble Lord, Lord Condon, I welcome his appointment as the first head of the agency, and I particularly welcome the fact that he is already at work in the Home Office playing a major role in setting it up.
I would, however, like to put on record one concern I have about the role of the head of the NCA. While I strongly endorse the view of my right honourable friend the Home Secretary that the head of the agency should be a successful crime fighter and that he or she should be given operational independence to get on with the job, I believe it is essential that this operational independence should not-I repeat, not-be interpreted by the head of the agency as the freedom to spend taxpayers' money as he or she thinks fit, regardless of any consideration for value for money. That is why I very much welcome the provision in the Bill for the agency to be subject to inspection by Her Majesty's Inspectorate of Constabulary with a view to reporting on its effectiveness and efficiency.
Finally, I return to what I said earlier about our local, as opposed to our national, policing arrangements. In less than six months, on
Lord Judd (Labour)
My Lords, in one sense, the message of the noble Lord, Lord Wasserman, is very powerful: modern organised crime knows no national frontiers; the dividing line between what is crime and what is so-called orthodox business becomes increasingly fudged; we have all the issues of cyberspace, and the rest. The challenges are formidable, and it is necessary to make sure that the police are organised to meet those challenges.
What I would counsel to the noble Lord, Lord Wasserman, is that we live in something rather precious. What is it that we want to live in? We want to live in a free democracy. We want to live in the kind of society in which the relationships between institutions is very complex, in which there are checks and balances, but one in which we are not building up great independent authoritarian bodies in our midst that are not a living part of that complexity. We also want a society, surely, in which citizens are citizens, not merely consumers of a type of democracy, and, as citizens, are playing their part in ensuring a stable and secure society. Local involvement in the responsibilities of policing is therefore a crucial part of democracy.
I have never talked to a serious policeman with real professional experience anywhere-and I have talked to quite a number in my life-who has not sooner or later said, "We can do our job effectively only if we are working with society and if people are working with us and see us as part of the society which is theirs. Then we can get on with the job. If we have a suspicious, hostile, questioning society out there, which is simply delegating responsibility to us, our effectiveness will be limited". In the cause of the kind of society in which we want to live-one which we recognise is threatened by the most sinister kinds of development in crime, as the noble Lord, Lord Wasserman, was spelling out, but nevertheless one in which society remains in the driving seat-and the things that make our society worth living in, we have to take these issues of balance and, perhaps, the dispersal of power rather seriously. There have to be checks and balances, not just formally and structurally but in the very dynamic of society itself.
I have a certain amount of sympathy with my noble friend Lord Harris of Haringey. I have always felt, having been around in politics quite a long time now, that one of the mistakes that Governments make, whatever their political persuasion, is so often they come rushing along to the Dispatch Box with a superb solution to society's problems without first having built up a public understanding and consensus of what problem the legislation is supposed to be tackling. I do not believe that that mistake has been avoided by the Government in this context and, in another way, I think my noble friend would agree that that was very much the point that he was making.
It is also a matter of culture, not just of organisation. That is related to how far the police are integrated with society as a whole. Most people out there-and, I imagine, within Parliament itself-are really quite exercised and worried at the moment about the amount of police corruption. That is not just an organisational issue but a cultural issue. If one goes down the road of independent agencies which are not integrated in society, does that become easier or more difficult to tackle effectively in the long run? It is not a one-way argument because some will claim that the more you are involved in society, the more the temptations arise. On the other hand, it seems to me that if we take these issues seriously we will have to look at the details and implications for society in what is being proposed very carefully as the Bill goes forward.
That takes me on to the issue of law, in so far as this Bill deals with it. I am sure I am not alone in being disturbed by the parallel systems of justice that we are beginning to develop in this country. There are too many discrepancies. If we are talking about law and justice, we must recognise that they are not necessarily the same thing but that we want law which is advancing justice. If we are talking about justice, we are talking about habeas corpus and equality before the law-of course we are. We are talking about law being not only done but seen and felt to be done. In some aspects of our new approach to administrative law-I do not for a moment minimise the challenges and agonising problems which are there-we are beginning to diminish those qualities. We know that we have people interned who are not told why they are interned. We know that we have advocates working in our courts who are not able to discuss with their clients what they are defending them against. How do we reconcile that with what we have always understood to be fundamental to the system of justice in our society? We cannot reconcile it. There may be an exception which we come to say is unavoidable, because of the pressures that are there. However, we had better be pretty careful that we are not beginning to let this become a rather convenient habit of organising our administrative law and thinking that we can make exceptions here, there and in the other place.
This brings us quickly into the realm of immigration, because any of us who has had anything to do with immigration knows that its administration is a disgrace in this country. That is not a partisan point; it has become so over successive Administrations. One has only to look at the number of immigration cases which, on appeal, have been proved to be absolutely up the creek and wrong. Now we hear Ministers cheerfully telling us, "Well, it would be much more sensible and rational not to have appeals against these things. If it is not working in a particular case, then it would be better to start again"-rather like snakes and ladders-"and we'll get much more speedily to the conclusion". That is not quite the point, is it? In law and justice, you want to know what is wrong and why. You want to pursue those matters, and not just say, "Oh well, that didn't work. That was unacceptable-try again". It is actually about finding out the lessons that are there to be found out. I am really rather uneasy about some of the arguments that have been slung around by government in this context.
It also seems that we have some strange contradictions about our culture in this area, because the Government keep telling us of the importance of family as the basis for a stable society. Family and family relationships are crucial to the well-being of people and of society as a whole-unless of course it comes to the realm of immigrants. Then families can be treated completely differently. If we are doing a bit of joined-up thinking about the issues that face us, we also have the challenges of security and stability in the age in which we live. Immigration is central to security and stability. Extremists operate where there is a climate of disenchantment and where there is not a sense of positive good will towards the authorities, the police and society as a whole but a sense of frustration. There are too many bad examples and heartrending experiences. If we are to have security and stability, we had better be looking to that. Every immigration officer doing a job anywhere is fighting the battle for security by asking not simply, "Is this person a terrorist?", but, "Are we giving this person a good, reasonable experience in a terrible situation?". We all understand that so often their situations are terrible, but are we giving them another bad experience which is likely to lead to alienation and the rest?
I would like to conclude with a brief word about alternative sentences. We have to stop prevaricating and playing it both ways. Do we want to protect the British people or not? If we want to protect the British people, do we really believe that one of the best ways of doing that is to achieve rehabilitation? In that way, one gets to the roots of the problem with the offender and to the issue of how that person ceases to be culturally an offender and becomes a positive member of society. If we really believe, as I do, that rehabilitation is therefore the overriding priority-for the individual, for society, and economically, because it makes economic nonsense not to have rehabilitation there at the top-why do we always slip into legislation, proposed legislation and the discussion about legislation the need to bring the public on board and to understand the anxieties of the public, and so on? If we believe that the public are being misled by a stupid press, or too much of a stupid press, then it is no good trying to appease the attitudes that result from that. It is a matter of giving the public an alternative around which they can coalesce. It means speaking out very strongly for the alternative concepts that we see as relevant, effective and right.
We all know that if we were starting again from scratch we would not have the prison system as it is. We would have lots of different types of specialist institutions for different types of people; we would be much more person-orientated, getting the person right. Of course the person must be punished for behaving badly, for breaking the law, for doing damage to society, but rehabilitation remains the issue-winning that person back into a positive role in society.
I hope that in our approach to alternative sentences we do not make the same mistakes that we have made in the prison system of having to say "No, we've got to demonstrate that we're ruthless and tough with prisoners and offenders". We have got to say, "No, we're getting it right with offenders. We're doing what is really going to make a difference to these offenders". That is the issue and we have got to fight for it. We had better not think that it will be a cheap option, because it is not. If we are to do this work well, we have got to have the people in place with the right skills, the right backgrounds, the right understanding, in order to be able to do that constructive work.
We made mistakes with lunatic asylums. We said "They're dreadful places and we ought to get rid of them" and we turned a lot of people out of asylums without the provision in society to care for them. We saw families broken because of people coming home with whom they could not cope. This is not a cheap alternative. It will need a lot of resources, a lot of attention and a lot of care. There is a hell of a lot to do on this Bill, and I am sure that we will do it constructively.
Baroness Linklater of Butterstone (Liberal Democrat)
My Lords, it is always a pleasure to follow the noble Lord, Lord Judd. He always says such nice things about me, so I take this opportunity to say that we have been listening to the voice of experience, of wisdom, and of sweet reason, so it is an honour to follow him.
We put the LASPO Bill to bed a mere couple of months ago, and with this new Bill we now find ourselves addressing more changes to other elements of the criminal justice system. I hope that the day will come when we take time to let new legislation bed down before creating any more, so that we can reflect a little on what we are actually achieving and where we are going: not to speak of giving time for, in this case, relevant government consultations to be completed so that they can be discussed fully and properly.
My particular interest is in Clause 23, entitled "Community and other non-custodial sentencing of adults", which is designated a "placeholder" for the time being, while the White Paper Punishment and Reform: Effective Community Sentences is still ongoing. It will give the Secretary of State the power to make regulations on the provision, content and enforcement of community sentences and to take forward proposals in the consultation paper once final policy decisions have been taken, with amendments tabled later in the Bill. This is encouraging because it flags up the Government's commitment to alternatives to custody more clearly than ever before.
I have often spoken in your Lordships' House about the importance of community sentencing and how much more effective it is than short custodial sentences in reducing reoffending by a factor of 8%, which is affirmed in the White Paper. I sincerely hope that this means that this placeholder clause represents a real commitment by the Government to support, develop and strengthen the provision and its availability, particularly by probation and the voluntary sector, in the midst of the new competitive environment that the Government seek to develop. Partnership working, the hallmark of the voluntary sector, often works better in the interests of clients than the blunt instrument of the free market. The private sector must be seriously encouraged to adopt the greater benefits of co-operation or partnership where clients' interests are concerned, which is what really matters and really works. I will return to this when the Government's proposals become clearer.
I have just had the pleasure of once again being a judge in the Howard League's annual community awards, which highlight and recognise best practice in working with offenders and ex-offenders in the community and which demonstrate just how much creative, constructive and really effective work is now being done all around the country by probation and the voluntary sector. It is like an annual litmus test that shows that this approach to offending is unarguably successful in practical terms and right in human and economic terms.
I was also recently invited to Liverpool by the Merseyside Probation Trust's chief probation officer to see the range of its community-based work, which is truly impressive. I spent some time with a girl who was on an intensive alternative to custody order-an approach for young adults with entrenched problems, involving intense work over a limited span of a year-and I heard from her and her worker how and in what ways her significant problems were being addressed and how her life really was being transformed. I am pleased that the Government are now focusing on these orders.
They are still being piloted, of course, now for 15 to 18 year-olds, who account for a third of those imprisoned each year. Nearly two-thirds of this group go on to reoffend when released from custody, and the pilots already show a significant drop in reoffending. The very positive relationship that I saw was a key element, and the focused and intensive nature of the disposal was clearly worth every penny that was being spent on it, from every point of view. The Government are now responding to the fact that we can no longer afford to spend £50,000 or so more a year for a young person literally to sleep through his or her sentence and come out to offend again; nor, indeed, can they.
I am glad, too, that restorative justice is now being brought to the fore-perhaps at last its time has come-and, indeed, that the Minister Crispin Blunt has nailed his colours to this particular mast. It can do much to help victims of crime, who deserve as much support as possible in order to come to terms with the trauma of the experience, to demystify the offender who has caused such hurt, and to move forward; while the offender comes to realise, often for the first time, the realities of what he has done, and can find ways to make amends. I have had the privilege of sitting in on restorative conferences, and I have seen their remarkable possibilities at first hand. Their potential is great, and I trust that the Government will back the necessary training, costs and administration involved, because the benefits are enormous. I hope to hear that the Minister can reassure me on this.
While welcoming the promise of Clause 23, I also have reservations about the tone, which places very strong and repeated emphasis on toughness and punishment, which are, indeed, the central themes of the White Paper. The Lord Chancellor believes, quite rightly, that too many people who leave custody reoffend, but he also assumes that this is because the current range of provision of alternatives are neither tough nor punitive enough. The White Paper states:
"It is a fundamental principle of justice that those who are found to have done wrong should be punished".
It adds the assumption, with no evidence adduced, that:
"Too many community orders do not include an element which the public and offenders would recognise as 'punishment'".
First, I suggest that there is above all a need for any punishment to be used proportionately, with decisions left to local sentencers' and practitioners' discretion and knowledge over its application. There will always be a tipping point, which will vary between every situation and individual, where punishment as toughness will backfire. The overuse of tags, electronic monitoring and curfews, which we discussed in the LASPO Bill, or even confiscation of assets may certainly punish, yet without necessarily preventing reoffending.
I echo the view of the excellent Justice Select Committee that making sentences more punitive will not necessarily be effective in reducing reoffending or protecting the public more. There is always the risk that it will lead to breach and further criminalising. What will really matter is that sentencers have a working knowledge of the programmes available to them in their patch through regular visits supported by proper statutory arrangements. I will return to this in Committee.
Secondly, public knowledge of our justice system is at best patchy and subjective, and is absolutely not a reliable basis for developing new approaches to sentencing. There is a high level of public anxiety today about the state of the nation generally, precipitated above all by the economic and financial crisis we are all in, making our lives feel worrying and uncertain. I really do not believe that this anxiety is specifically to do with reoffending rates of community penalties and levels of punishment.
There is a wonderful initiative called Local Crime, Community Sentence, provided by the magistracy in conjunction with probation, which I had the pleasure of funding in the first instance when I chaired Rethinking Crime and Punishment. It operates all over the country and delivers programmes to inform local communities of the reality of offending and the way it is managed by the courts and probation in their patch, using real case studies. Attitudes are measured before and after each session, and invariably show a marked rise in confidence in the system and a reduction in punitive attitudes.
However, the corollary of this shows that the public need to know and understand much more the realities of the criminal justice world, and much more must be done to enlighten and inform them through sources other than the Daily Mail. Public confidence and understanding come from seeing what such activities as unpaid work achieve. The fact is that community payback and unpaid work are now an acknowledged success all over the country and the source of much positive reaction within communities, resulting in increased demand for the work done by offenders. It is the one area where the public can have some real idea of what community penalties can consist of, and it is very good. Seeing is believing.
The readiness, willingness and ability to desist from reoffending depend on many factors in an individual's life, ranging from the practical realities of a job or place to live and a meaningful relationship, to underlying feelings of self-worth, the ability to deal with problems such as addiction, or an awareness of the impact of offending on others. The level of toughness or punishment is not likely to be pre-eminent. Last week, I was at an event run by the Prisoners' Education Trust. I declare an interest as a patron. We heard at first hand the absolutely transformative effect on the lives of those present of reading, learning and ultimately passing exams, and in some cases getting degrees. These were people with long offending histories and little previous education. For some, the change had literally started in the prison library. You would not normally equate choosing to be in a library with punishment. Importantly, they had reached a moment when they were ready for that change. That had not been brought on by punishment either.
The five purposes of sentencing are quoted in the White Paper: punishment, deterrence, reparation, rehabilitation, and public protection. We should remember that they all have equal weight when it comes to the decision of a sentence in any particular case. When the White Paper says that there is not enough punishment in the sanctions provided through community penalties, it implies that they are not unpleasant enough and that the offender must be made to suffer more. It assumes that this is what the public look for. While it argues that retribution should be at the heart of punishment, we cannot seek to make the level of unpleasant sanctions commensurate with the level of the crime or to devise a hierarchy of unpleasantness or suffering. In the end, that will not promote a safer or more law-abiding society, let alone represent a civilised response to those who offend. Here, I declare an interest as the mother of a wonderful daughter who is vulnerable and has been the victim of a serious assault. From that point of view also, I know what I am talking about.
Jeremy Bentham, the father of moral philosophy, believed that punishment involves a response of unpleasant sanctions that in themselves mirror or reflect in some commensurate way the actions of the offender. While he famously wrote that,
"the greatest happiness of the greatest number is the foundation of morals and legislation",
he also wrote that,
"all punishment is mischief. All punishment in itself is evil".
Retribution must not be part of our armoury. Rather, community sanctions should include facing up to wrong-doing, reform or recognising the need to change, repentance and even remorse, and reconciliation with the victim where appropriate. All these goals are in fact implied in the White Paper. They involve at least as much toughness of a different order, and as much difficulty or discomfort as the punitive unpleasantness it claims to seek. The law exists to contain and restrain our deepest retributive instincts and articulate them in a civilised and acceptable way. This was presaged in the Oresteia, when Athena appointed the jury of judges to contain the power of the furies and pass judgment on Orestes, thus settling the blood feud. I really hope that the Lord Chancellor will demonstrate the wisdom of Athena and contain his furies. We have no need of them.
The Earl of Listowel (Crossbench)
My Lords, it is a pleasure to follow the noble Baroness and indeed the noble Lord, Lord Judd, on the theme of rehabilitation. I echo what the noble Lord said: effective rehabilitation is a costly business. You need to invest in the right people and professionals, and support them properly, if you are to get the outcome that you want. That investment is well worth making. The National Grid Transco young offender programme was able to reduce reoffending by young people leaving prison from 70% to, I think, below 4%. Those young men went into employment and earned money for their families. Many were having children and setting a good example to the next generation. That was extremely carefully done and required hard work from all around, including the chairman of National Grid Transco in his lobbying for other companies to be involved in this process of mentoring and then employing young men from custody.
I join the warm welcome for Part 2 of the Bill, the reform of family courts. I was pleased to hear my noble and learned friend Lady Butler-Sloss speak about her brother's vision for this future that has now come to us. I certainly see hope there in many possible improvements to the service for children and families.
I will concentrate on one aspect of the Bill: the possibility of an amendment to this legislation that might offer to reduce the numbers of women in custody and children taken into local authority care, and save the courts and local authorities both money and time. I refer to an amendment to Part 2 of the Bill that changes Section 33 of the Children and Young Persons Act 1933. This section deals with parental neglect and its punishment. I hope we might consider amending this section to extend the choice of disposal to include support. I hope we might also discuss ensuring that guidance is clear about offering support prior to court proceedings. In discussing this, I apologise to my noble and learned friend Lady Butler-Sloss for failing to consult her before Second Reading. No doubt the House will look to her for advice on this matter in Committee and I should certainly not wish to add to the legislative forest if legislation already meets my concern. However, I am struck by the anomaly of legislation that seeks only to punish neglect and not to provide for the alternative-support-where appropriate.
This House was concerned some time ago about the effect of introducing parenting orders. The noble Baroness, Lady Linklater, will remember the debate. The noble Lord, Lord Warner, the former chair of the Youth Justice Board, commented to me that in his experience parenting orders were the most effective tool at its disposal-the least costly and the one most welcomed by the recipients. Parents often commented, "Why weren't we offered this help before?". To give a few statistics, between 2001 and 2010, the number of cases under Section 33 of the Children and Young Persons Act 1933 trebled from 782 to 2,172; 67% of these resulted in cautions.
I would be grateful if the Minister might write to me about the remaining 33%. How many cases went as far as custody? How many mothers were imprisoned as a consequence? What became of the children whose mothers were imprisoned? How many children were taken into the care of the state as a consequence of the imprisonment of their mother? I recognise that these are emotive questions. It may be that my concerns are groundless-that very few, if any, individuals are incarcerated and that those few may merit this treatment. I would certainly wish to be assured that this is indeed the case. Even if it is, however, there still may be merit in amending the legislation and guidance to ensure that more families receive the early support they need.
I hope the Minister and your Lordships might be prepared to listen to the concerns of the charity Action for Children about the 1933 legislation. The charity has a long-standing interest in this area. The University of Salford's four-year Evaluation of the Action for Children UK Neglect projectwas launched last week. Research found that Action for Children's intensive family support services intervened successfully in most cases of neglect, even when neglect was a most serious concern, to the level of child-protection intervention. Parenting programmes and outreach were highlighted as particularly effective interventions.
Action for Children works with around 50,000 children and young people across its 480 services. It has a great deal of experience of working effectively with troubled families. I hope that your Lordships will be available to attend a briefing from the charity in the course of the Bill, and the Minister may be prepared to listen carefully to their concerns. No doubt Action for Children will wish to consult my noble and learned friend Lady Butler-Sloss if it has not had the opportunity to do so already.
I shall make one or two other observations about the capacity of courts to make good judgments in family proceedings. The complexity of these cases can be quite daunting and it encourages me that the proposal may offer more opportunities for training in sentencing, child development and in similar areas involving children and families. The district judge Nicholas Crichton, of the Inner London Family Proceedings Court, has made a tremendous difference to families in this country with his innovation of the Family Drug and Alcohol Court. He also goes to eastern Europe and trains the judiciary there to deal with children and families. Where one has expertise in a judge, they can make a huge difference to our society and to that of others.
I am concerned about what is happening with expert witnesses. As your Lordships may be aware, there has been concern about the rates of remuneration for expert witnesses. In particular, independent social workers are now the lowest paid, at £30 an hour. That is lower than a process server in a court. Often in local authorities, front-line social workers are very overstretched, particularly at the current time. Sometimes they are young and inexperienced, and a court needs a good expert to make an assessment of what should happen in a particular child's case.
I know a few independent social workers. The father of one was a social worker and so is his daughter, and my experience has been that these are the sort of experts one would want giving advice in court. The danger is that if one sets the rates of pay so low, the best of them may leave and it might become difficult to find good ones to advise the court. I hope that the Minister might keep that in mind in this particular area. There is a need for good advice to the courts to make the speedy decisions we all want to see for children and to avoid delay.
Perhaps I may also briefly mention looked-after children. I do this in part because the family courts often deal with children who have grown up with a mother or father who themselves grew up in care. If you look at the statistics, it is staggering how many young women in care will go on to have children who are themselves taken into care. If we can avoid that situation, it is very much to be condoned. I am afraid that recent reports about children's homes in the press, in theTimesin particular, highlight the fact that we still have a long way to go in providing a fit-for-purpose service to many of our looked-after children. The many children being taken into care is a good thing. They will have better outcomes as a result of the care of the state, but too many within that group-a small but significant minority-are not getting the care they need.
Only about 4,000 of our children are now cared for in children's homes-about 7% of the children being looked after-but they have a high level of needs. Because it is such an unpopular option, they will be there probably after a number of breakdowns in foster placements; they will be very troubled children. Some of the staff who care for them are wonderful and dedicated, but they do not have the professional development to help them manage those children as well as they should. In research comparing this country with Denmark and Germany, in Denmark 90% of the staff had a BA (honours) qualification. In this country it was 30%. The regulations require staff qualifications in children's homes to be NVQ level 3, about equivalent to an A-level, and managers to have an NVQ level 4. That is about the beginning of a degree course or a foundation-year degree. However, the children in our homes are much more troubled than those in Denmark or Germany, because half the children in care in those countries are kept in residential settings. It is a much more popular option, so there is a mix of children with different levels of need.
It troubles me very much that those in our children's homes are not getting the expert professional support and care which they need. Some have been sexually exploited by predatory men. Others will go on to be parents, perhaps while they are still in care, and quickly have their children taken away from them and be processed through the family court system. There will be other opportunities to debate this, I know, but I suggest that the Government need to look very carefully at this area and think about investing in the training and development of children's home staff.
Briefly, the Magistrates' Association is interested in a duty to oblige co-operation between magistrates and probation. It is concerned that the essential liaison between the two has declined over time. If one looks at the success of the Youth Justice Board, one sees a good working relationship between magistrates and young offender teams. I have been concerned in the past about anti-social behaviour orders and what has reassured me is that magistrates have increasingly understood the right way to use these orders and have consulted youth offender teams.
It might be necessary to legislate for closer liaison between the probation service and magistrates. This would make a big difference to successful alternatives to custody and reduce the adult prison population, as the Youth Justice Board has so successfully reduced the population of children in custody in this country. I look forward to the Minister's response.
Baroness Kennedy of The Shaws (Labour)
My Lords, I wish to address a number of proposals but I start by saying that I heartily agree with noble Lords who have spoken about the importance of our seeking to find alternatives to prison. The increase in prison numbers is horrifying. In this period of increasing youth unemployment, it is alarming to think of the risk of young people offending in greater numbers. More and more of them may find themselves in prison, their lives ruined. That should be a source of great concern to us all. Therefore, I hope that this time we will pursue alternatives to prison with seriousness and I hope that I shall be able to vote in support of such changes.
I want to speak, first, about the creation of the new National Crime Agency to deal with serious crime. I know that there are concerns about this reform and I have reservations myself, but in general I am convinced that globalisation is presenting us with such serious challenges to our national responses to crime that we should be willing to re-examine our present arrangements and be prepared to consider reform.
The very developments that make legitimate markets work-the ease of travel, the electronic transfer of money, the internet and the mobile phone-are all just as effective in developing black markets. In my work in the courts, I see at close quarters the trade in drugs and firearms, the trade in human beings for labour or sexual exploitation, the trade in human organs, which has been all over the newspapers today, and-I was involved in such a case last year-even the trade in babies. Such high-level crime, whether it is terrorism or just traditional organised crime, involves high rewards for the criminals-the money involved is huge. In years to come, we will undoubtedly see an increase in cybercrime.
For the most part, this sort of crime is very difficult to police but it affects all our lives, with greater quantities of drugs on the streets, an increase in gun crime and a pernicious growth in the sex industry. Policing these activities requires high levels of expertise and collaboration. I saw that first hand last year when I chaired an inquiry in Scotland into human trafficking. What became very clear to me was how necessary it is to have real collaboration and systemic responses to this kind of organised crime. Human trafficking, for example, often falls foul of agencies not knowing who takes the lead. It is a crime and so should be led by the police. It should not be fudged as something that might receive an initial investigation by the border agency.
Therefore, I welcome the possibility of a more focused and strategic response, particularly to human trafficking, but to other areas of crime too. However, there are problems. If you increase the centralisation of policing of serious crime in this way, there has to be much stronger oversight than there currently seems to be in the Bill. I am also very concerned that the freedom of information exemption will be continued here and I think that that should be revisited. It is important that the public know about the workings of such an agency when it is going to interfere in the privacy of so many lives.
I turn to the subject of court reforms. I welcome the idea of demystifying the courts and have written about it for years-ever since the late 1970s. It is important that the public know what goes on in courts. I remember that in the 1980s the drama series "Crown Court" did much to awaken public understanding of the processes and the issues that arose. I have no argument with the plan to televise the hearing of appeals in the Supreme Court or the Court of Appeal so that the public can watch and listen to the arguments being presented and understand why the judges make certain decisions. However, let us be very clear that that is not what the television companies are interested in. They are interested in new products and new ways of giving us pictures. They are interested in new titillation from "Big Brother" to "X Factor".
We know what interests most television companies and I am afraid that some of it feeds the less attractive aspects of the human condition. The television companies want criminals. They do not want to watch judges giving judgments in the commercial courts. They want criminals; they want murder and mayhem; they want rape and carnage; and they want pretty victims and nasty, thuggish offenders. They also want celebrities being dragged before the courts. This is not about transparency; it is about voyeurism. Although it may be starting in a small way, I have great concerns about where this is going to lead. Basically, television companies-I have heard it being discussed-want criminal cases and they want to be in the courtroom. Reporting criminal cases is currently very disappointing for television newsmen. Where are the pictures? That is one of the questions that television people always ask. They do not like talking heads. Talking heads are a bore and that is why it is very difficult to cover trials. You get only snatched shots of witnesses leaving the Old Bailey or those cartoon-like drawings of defendants in the dock that look nothing like the people concerned. I can tell your Lordships that-I have represented them. Sometimes I appear in those drawings.
The television companies are desperate to get into the courtroom. It will start with just having the judge giving judgment, but they are not interested in the men in wigs waxing long and impenetrably about law. That is not what they want to see. They want the sensational, the salacious and the grotesque. So I am afraid that this is one of those rare occasions when I am going to disagree with our former Lord Chancellor, the noble and learned Lord, Lord Mackay, because I do not think that this is a healthy development. I hope that there is no rush to cover judges reading out their sentencing remarks. Letting television cameras into courts carries serious risks and, although this is starting at a low level with the higher courts, the potential for drift is huge and the consequences for justice are very serious.
Perhaps I may explain that the camera does not replicate the public gallery. People say, "But this is just making the public gallery bigger". It is not. The camera chooses what to look at. It edits as it chooses. Indeed, at the moment the camera is looking at me. It is not looking at the responses of other noble Lords to what I am saying. If you sit in the public gallery of a court, you take in not just what the witness says but what the judge says and you watch the defendant's responses and other things that happen in the courtroom. That tells you much more than you will ever know from watching snatches of the proceedings on television, and snatches are what they will be. Some states in the United States had to introduce something called gavel-to-gavel coverage because lawyers and people concerned with justice complained that, if you did not show the whole process, people would think that they had seen the trial but they would not understand whole areas of evidence that were never placed before the public. Unfortunately, "News at Ten" will not be interested in putting it all in front of you; it will put in front of you what is most dramatic. The public will think that they have seen the trial because they will have seen bits of it and then they will think that the jury got it all wrong. That will undermine confidence in the system.
Of course, we now have other forms of technology. Once shown on television, cases will be uploaded on YouTube and downloaded on to people's phones. We will have people playing and replaying cases. Do you think that jurors are going to resist that when we do not have juries staying in hotels as they do in America? Of course juries are reminded not to look at these things, but do you really think that they will not? Do you think that they will not do it in the company of their families at home, so that there is then another jury deciding what it thinks of the evidence? The risks are horrifying. I think that new technology will make it impossible to have a fair trial and, in the end, that will mean that the whole question of jury trial is put in jeopardy.
There is also an issue for judges. In this country, judges enjoy a level of anonymity and unrecognisability. However, that will be lost. You can be sure that comment will be made about the sentences not being strong enough or tough enough. Then judges will be vilified and criticised and they will start to become defensive because they will know that the cameras will keep coming back to their particular court. When Cherie Booth-the wife of a former Prime Minister-sits, will people want the cameras to be in court to see whether her judgments come up to snuff? These may look like advances and transparency to all of you, but I am afraid that it looks like a very serious challenge to justice to me.
I welcome the efforts on diversity. All my professional life I have been arguing about the need for more women in the courts and on the Bench, but I am concerned about a number of things. I am concerned that the issue of merit is not examined in the Bill. I would like to see a new statutory merit test because merit is not a value-free zone; it is an area where many of the judgments that are made are made from a very narrow perspective. As the Chief Justice of Canada has reminded us,
"human beings have a tendency to see merit only in those who exhibit the same qualities that they possess".
I am afraid that in the recent appointments of two men to the Supreme Court-there is still only one woman in that court-25 consultees were asked for their views and 24 of them were men. The outcome is affected if the gatekeepers are all from one perspective. Currently the emphasis is on one relentlessly individualised understanding of merit and it is too narrow. Instead, the collective competence of the court should be a central feature of appointment, allowing for the correction of deficits in terms of diversity but also in terms of specialist experience, such as people who have experience of trying cases involving children or people who have experience beyond the commercial. Candidates should, in the first instance, fulfil the criteria of intellectual ability and professional experience in practice, but then we might look to some of the other factors that would enrich our courts.
The Bill has much to commend it but much that needs to be looked at again. I hope that in Committee we shall make it very much better.
Baroness Kennedy of The Shaws (Labour)
I did, but I think that one case can often make bad law. Of course, an individual judge giving a judgment in a case can make people think that that was interesting and reasonable. However, you can be sure that, as we cover all cases more regularly, certain judges will be considered too lenient and they will be pursued. We shall find that the hunger for punishment will be fed by certain television stations. I am concerned about where this will go, so I hope that a good deal of caution will be shown before we go down this road.
Lord Woolf (Crossbench)
My Lords, it has been a great privilege for someone such as myself to be able to hear the previous speeches on the Bill. Some of the material that has to be considered is quite complex and not necessarily the stuff to excite one on a hot summer's afternoon if one is sitting in the garden faced with the attraction of a slumber. Previous speakers have shown a masterly understanding of the Bill and so I am not sure how much I can help the House. However, I would like to give the House some general reactions in consequence of my reading of the Bill, informed by the speeches that have gone beforehand, which have been of such a high quality.
I share in the general welcome for the Bill which I have detected. You address the parts of the Bill that cause you concern; you do not address those parts with which you are happy. The areas that have been focused on for that reason have been few but, none the less, are very important. Although I would not dream of following my noble and learned friend Lady Butler-Sloss in respect of family courts, I would indicate that I wholly agree with what she said about them. Perhaps what she said about family courts is, in generality, true also in relation to county courts. Courts work best if those in the courts have the fewest restrictions on their ability to handle cases in a way which is constructive and sensible. When you break courts down into too many parts you have to create divisions which do not help the administration of justice. A single court, like the family court, enables resources, which are so scarce today, to be devoted in the best way possible for the resolution of those very difficult issues that come before the family court.
I do not think that there is any need for concern about the status of High Court judges because, if the court is working properly, the judges will be chosen with care so that the cases that they deal with reflect their expertise, experience and ability. Cases are administered in a way that will enable the diet of a High Court judge to be distinct from that of judges in lower courts. What I have just said I think is particularly true in an ordinary civil case. Of course, we shall have to examine the detail but people really want their civil disputes resolved as economically, effectively and efficiently as possible. As I see it, at their heart, the proposals are trying to move forward in the right direction in that respect.
The areas to which I would want to make particular reference are those that deal with the changes to the appointment process, particularly in relation to the position of the Lord Chancellor. At the end of my judicial career in this country I had what I thought was probably the most important responsibility I had at any stage of my judicial career: trying to agree with the noble and learned Lord, Lord Falconer, a concordat which, when examined by the Select Committee, resulted in the Constitutional Reform Act 2005. As I understood it, the result of that process was to achieve a new relationship between the judiciary, the Executive and Parliament which would be in the interests of all concerned in the new situation that had arisen. Deeply involved in that process was the belief that we had now come to the stage when this country should follow most other countries that adopt proper democratic standards in recognising the need for the separation of powers. The change in the Lord Chancellor's status-I would like to express my high regard for what successive Lord Chancellors achieved by way of appointment-meant that the role played by the Lord Chancellor would no longer be appropriate in the new situation that we were dealing with. In that situation it was decided that the Lord Chancellor's powers should be carefully curtailed and structured so that he could act as an important element in the appointment process but no longer have any role in making appointments. He was to have the ability to accept proposals of the new independent Judicial Appointments Commission, but he was to have no power himself to make proposals or to start off an individual's appointment unless it had gone through the process prescribed by Parliament, and which brought the matter before the commission.
Here I would like to echo as forcefully as I can the very wise words of the noble Baroness, Lady Prashar, who has unique experience in running an appointments commission and successfully managed to confront very significant administrative difficulties in getting that process off the ground. I must disclose an interest here. I was one of the members of the appointments commission that appointed her. She herself was appointed by an independent process, as was each member of the commission. It was felt that the independence of the judiciary was critical and required that the best people available should be appointed. The process of appointment, although not known or properly understood by the public at large, should be one that in itself indicates independence. That is what we have achieved, and we have done it in a way much admired all around the globe by other jurisdictions which would like to have a process of a similar nature.
I say those initial words because the idea of giving the Lord Chancellor the ability to invite himself, so to speak, to be a member of the Judicial Appointments Commission-I am not quite clear from my reading whether it is the Lord Chancellor, the President of the Supreme Court or the Lord Chief Justice who can do this, but I may have overlooked something because others have said that it also applies to the Lord Chief Justice-is an inroad on the principle of the independent appointments process which the 2005 Act created. I submit that the Lord Chancellor would be right to get himself into a position where he is not performing the role which it is generally clear he is intended to perform, particularly in the case of the most senior judges. It seems strange that he should seek power with regard to those people. Under the current legislation, there is a power which requires him to be consulted. I just do not think it is realistic to assume that if he is consulted, he cannot exercise as much influence as he could if he were a minority member of the Judicial Appointments Commission. If the commission is not going to follow what he has indicated when consulted, why would it follow him if he is on the commission? I do not see that that is an advantage.
When one looks at the other powers that are going to be given to the Lord Chancellor by regulation-each one deserves careful examination-they seem to be inconsistent with his being a member of the Judicial Appointments Commission. He would be giving guidance to himself. That does not seem a very sensible arrangement. It is proposed that his powers be extended in various ways, and I suggest that his being given an increased role just does not match. I therefore suggest that the report on appointments that we received from the Constitution Committee of this House was absolutely right when it turned its face against the change in the position of the Lord Chancellor in this regard.
I hope that in summing up the Minister will be able to give us some assistance by telling us what he sees as the advantages of this. I emphasise "what he sees", because I suspect that some of this comes from very senior members of the judiciary. If that is the case I am bound to say that I disagree with those views. I think we should keep to and not derogate from the general position indicated in the 2005 Act. Lord Chancellors come and go, and although it is a great and high office, one cannot assume that in the future there will not be a Lord Chancellor who, for reasons he or she thinks proper, will do things that really do not benefit the system. Giving a regulatory power in the terms proposed here seems to me to be extremely dangerous. I have indicated that I agree with the Constitution Committee's report and I have indicated that I agree with the noble Baroness, Lady Prashar. Perhaps I should leave that subject now.
That leaves the other Part of the Bill. I am particularly interested in Clause 23, which deals with disposal in the community. Again, it is not more than a regulating power. I understand from what the Minister said in opening that in due course we are going to have the benefit of understanding what is in mind here. I am certainly not going to overlook the opportunity to persuade the Government to take the sort of actions which the noble Baroness, Lady Linklater, was encouraging them to do by expressing too much concern about the way the matter has been dealt with as part of the legislative process. Surely there must be caution in having a Bill where there are so many powers which by themselves cannot be understood or assessed because the Government themselves have not yet decided what to use them for. All they have done in the Bill is to enable the Government to put the flesh on the bones at a later stage. However, if we are going to discuss the matter appropriately, as we have done today, it is not very helpful not to know anything about the flesh.
I do not want to detract from my appreciation of the Bill by picking faults here, there and everywhere. That is much better left to Committee. I extend a general welcome to the Bill but I suggest that we must approach parts of it with caution. I share some of the concerns expressed about the introduction of cameras in courts. It could be beneficial but we should approach it with caution. It will be absolutely essential that the judge in court should be able to decide whether filming should be allowed after satisfying himself that it would be in the interests of justice that this should happen. I recognise that that will put a great burden on the trial judge.
My final point concerns diversity. The judiciary-and, to my knowledge, previous Lord Chancellors who had the power of appointment-strove to make our judiciary better reflect the society in which we operate. It is an extremely difficult exercise and should not be underestimated. However, giving a message-which is what the Bill does-that the legislature and those who are responsible for appointments consider it a good idea to have a test that is more favourable to accelerating diversity is certainly sensible. However, I am bound to say that I would have started not at the top but lower down. If there is another Supreme Court that allows its judges to work part-time, I know not of it. Again, perhaps the Minister will enlighten me when he replies. The work of a final court of appeal cannot easily be done three days a week, or with the sharing of labour. Many cases last all week-and if they do not, the judges start working on their judgments when the case finishes. If one judge cannot come and take part in that way, from a practical point of view I do not see how they will be able to make the sort of contribution that we want our diverse judges to make to the administering of justice. That is another matter that we should consider.
Lord Ponsonby of Shulbrede (Labour)
My Lords, I will speak briefly on Parts 2 and 3 of the Bill. I start by acknowledging that it is not particularly party politically sensitive but is largely about the administration of justice, and I will address the matters in that spirit and in clause order.
Clause 17 proposes a single family court with a single point of entry. As far as I am aware, the proposal has been generally welcomed. I have the privilege of having just been appointed to sit on the Family Proceedings Court. As a new appointee to this jurisdiction, I will be very interested to see how it progresses. Colleagues generally welcome the change, although, as the noble and learned Baroness, Lady Butler-Sloss, said, lay magistrates are looking for reassurance that their role in the Family Proceedings Court, which is vital, will be protected. They have expressed this concern.
Clause 18 concerns the diversity of the judicial appointments process. As far as I am aware, the magistracy as a group is more diverse than more senior members of the judiciary. Nevertheless, it may be worth exploring whether some ideas about senior members might appropriately be applied to the appointment of magistrates as well.
Clause 20 concerns the payment of court fines. As the noble Lord, Lord Henley, said in his introduction, some two-thirds of all sentences are fines. I will make many of the same points as the noble Lord, Lord Touhig. Clause 20 concerns the role and powers of fines officers. The Bill allows for the recovery of charges incurred in the recovery of fines where offenders have defaulted on their payments. Fines officers are to be treated as not making judicial decisions, which will enable their functions to be carried out by contracted-out staff. While I am not against the proposal, it fails to address a shortcoming in the current system; sentencers, namely magistrates and judges, often do not know the level of unpaid fines when they impose new fines on an offender. Therefore, they can make the situation of unpaid fines worse rather than exploring other sentencing options where possible.
One possible remedy for this is to make it a requirement for sentencers to know the level of unpaid fines before imposing new ones. I canvassed this possibility with magistrate colleagues over the past week or so and there was relatively little enthusiasm, as it would impose a large administrative burden on the existing system. Nevertheless, I put it to the Minister that this administrative change would do more to combat the level of unpaid fines than the proposals that the Government advance in the Bill.
We have heard a lot this evening about Clause 23, which concerns the community and non-custodial sentencing of adults. It acts as a placeholder for the Government to bring forward proposals on community sentences at a later stage. In her intervention, the noble Baroness, Lady Linklater, mentioned the White Paper that was published last week. There are two consultations in progress. The first is a Ministry of Justice consultation entitled Punishment and Reform: Effective Community Sentences. The second is the Home Office White Paper on antisocial behaviour orders. My understanding, unlike the noble Baroness's, is that the amendments that are going to be proposed by the Government are to do with the Ministry of Justice consultation and not the Home Office White Paper. I see that the noble Lord, Lord Henley, is nodding his head.
I have two general points to make about Clause 23. The first is similar to the point made by the noble Earl, Lord Listowel, and the noble Baroness, Lady Linklater, that whatever the proposals are, it is of huge importance that magistrates and the judiciary have confidence in community sentences. This issue has been brought up on previous criminal justice boards. It should be a statutory requirement for probation trusts and magistrates' Benches to liaise and to be properly informed about the availability of community sentences. I know the Government's standard response to this point is that nothing prevents that and it is a desirable outcome, but my point is that it is an uneven outcome in different parts of the country if it is not a judicial requirement. This point was made by the noble Baroness, Lady Linklater, and the noble Earl, Lord Listowel, and I strongly support their view that it should be made a statutory requirement for this liaison to happen.
My second point about Clause 23 anticipates the amendments the Government will bring forward on Report. These are likely to include increased options for more sentencing in the community. It is inevitable that some of the options which the probation trusts offer will be more available in big cities than in rural areas or small towns. I readily acknowledge that this is a practical problem, but you could end up with sentencers knowing an offender's address before they know the details of the sentence being passed. You could have an extreme situation in which a sentencing Bench on the same day will allow one vulnerable offender to escape prison while another offender will be sent to custody purely on the basis of their address. This is a slightly extreme example, but it is entirely possible as there is a lack of consistency across probation trust areas. This is perhaps an inevitable consequence of localism, but it is clearly inequitable and not proper justice. The answer to this conundrum is for proper national guidance to ensure that, broadly speaking, the same options are available to sentencing Benches all over the country.
Finally, I turn to Clause 27 on drug-driving. I know my noble friend Lord Simon is going to say something about this, and I read with interest the contribution of the noble Baroness, Lady Meacher, in the debate on the gracious Speech. I am aware of the complexity of this issue by reading some of Sir Peter North's report. I have sat on a number of drink-driving appeals over the past few years and I have listened to expert witnesses giving their testimony about the unreliability of the equipment involved in drink-drive tests. It so happens that in an earlier career of mine as a junior technician I dealt with similar equipment, so I know how complex it is. Without wanting to be too prejudicial, I will say that it is very easy for expert witnesses to come up with extremely complex reasons why the equipment is not to be relied on. That will only be much exaggerated when you are dealing with a multitude of drugs rather than just alcohol. It is very important to get this element of the Bill correct, otherwise there will be a lot of opportunities for expert witnesses and lawyers to create mischief in this situation.
I look forward to taking part in debates on this Bill. It is an important Bill and there are many details to address.
Lord Dholakia (Liberal Democrat)
My Lords, the best thing about the Crime and Courts Bill is that it is being introduced in your Lordships' House. Between now and Third Reading, we will have the unique opportunity to scrutinise its contents. I have no doubt that it will be a better Bill than those which we normally receive from the other end. There are measures in this Bill which I welcome and there are issues on which we expect the Minister to provide further explanation during its passage.
I wish to concentrate on Part 2, which contains various provisions in respect of modernising courts and the tribunal system. Reading carefully between the lines, it seems that apart from the establishment of the National Crime Agency in Part 1, we are dealing with a number of matters that surfaced during the LASPO Bill in the last Session of Parliament. I received further proof of this when my noble friend Lady Linklater started where she left off last time, particularly on matters of sentencing and restorative justice.
Many of the issues were highlighted at the time, but we now have greater clarity about the Government's intentions, and I thank them for that. The Constitutional Reform Act 2005 made substantial changes to the process of selecting and appointing various judicial officeholders. We had the Judicial Appointments Commission and a separate process for appointing the Justices of the Supreme Court. The Ministry of Justice's consultation document entitled Appointments and Diversity, and its own response to it, now forms the basis of Part 2; it intends to achieve a proper balance between executive, judicial and independent responsibilities. I fully subscribe to the Minister's view that this will bring clarity, transparency and openness to the judicial process.
Our system of justice is at the heart of the democratic process and I trust that these objectives will further cement the confidence of the community in our judicial system. I also welcome the emphasis on diversity. Britain's minority ethnic population stands at between 8% and 10%, and while quotas are wrong in principle and in law there is nothing wrong with setting targets that, over a period of time, could achieve a fair balance in our judiciary. My friend the noble Baroness, Lady Prashar, as the first chair of the Judicial Appointments Commission, has laid a sound foundation on which we need to build.
However, there is a distinct omission. Is there any reason why the appointment of magistrates should be excluded from this process? The Ministry of Justice has made great strides in ensuring that the magistracy is reflective of the society it serves, but it would be helpful if the Minister would revisit the clause to ensure that the measures to promote diversity in the appointments process apply to magistrates as well.
I recently chaired a public engagement programme run by the Magistrates' Association in order to gain a greater understanding of people's views on the future of summary justice and the role of magistrates. The evidence included contributions from the local police, local victims of crime, local magistrates, professionals from intervention agencies, ex-offenders, local legal practitioners and the audience, which included the general public.
During our evidence-gathering session, we expected criticism but instead found a good deal of understanding of the way magistrates perform their duties. Two common facts emerged from every consultation held in the country. The first was that local justice should remain local within a magistracy that is representative of our diverse society, and a lot needs to be done in this respect. The second was that the magistracy is not reflective of class in society, and one of the biggest barriers to overcoming this lies in the recruitment of people who hold down ordinary jobs. However, we need to exercise care, since appointment is only a small part of the process. It is not simply selection and recruitment that are important; retention is a vital element, and that comes about only when effective training is part of the retention programme.
I said earlier that there are some good measures in the Bill. An example is the single family court for England and Wales. Care needs to be exercised in how this is to be implemented, and I ask the Minister to ensure that family court magistrates continue to play a significant role in this respect.
An area of considerable interest in the Bill relates to community and other non-custodial sentences for adults. My noble friend Lord McNally can take great credit for rescuing the Youth Justice Board in the last Session of Parliament. The board has reduced youth crime and continues to do so, but now we need to push my noble friend even further. The Ministry of Justice consultation paper, entitled Punishment and Reform: Effective Community Sentences, is most welcome. We look forward to the Government's response when the consultation concludes on
I have repeatedly stressed the more effective use of community sentences instead of short-term prison sentences for low-level offences. The incidence and nature of crime varies from place to place and from generation to generation, and it is obvious that crime is something that all societies have to come to terms with in their own way. We can debate the underlying causes of crime, but most research and consultations have tended to refute rather than confirm the causes of crime and the effectiveness of punishment and treatment. Magistrates tread delicately but effectively, particularly when the public and political mood continues to be conditioned more by tabloid reporting than the considered way in which magistrates reach their decisions.
Prison is expensive, and reoffending rates are frightening. Roma Hooper, director of Make Justice Work, says that community sentences have lowered levels of reoffending and are better value for taxpayers, yet we are not advocating tending gardens, painting walls or putting up fences, as seems to be the perception in the minds of both sentencers and the general public. Community sentences need to be robust and demanding in order both to challenge offenders and to gain the confidence of the public. There are many good examples that we can look at, particularly when we consider the international dimension. The probation service should also be equipped with adequate resources to ensure that this happens. We also need to look at the role of the voluntary and private sectors in providing innovative approaches and building programmes tailored to the individual needs of each offender.
Punishment on its own has a very limited impact on offenders. In our nationwide consultation, it became clear that the public, including many victims, expect to see punishment as part of a sentence but that the priority is for the offender to stop offending. The public do not want what happened to them to happen to others, or to themselves again. I commend my noble friend Lady Linklater's contribution on this subject. I trust that the end product of the Government's consultation will clearly demonstrate that it is possible for restoration and rehabilitation to be a fundamental part of the process in our courts.
I will certainly have more to say when the Government's response is available. I conclude by saying that it is for us to lead public opinion and not simply follow it. For too long, public policies have had the imprint of media pressure. It is time to change this political emphasis. With all the expertise available in your Lordships' House, this will be a better Bill when it reaches the Commons.
Lord Dear (Crossbench)
My Lords, I am very conscious that we are now four and a half hours into Second Reading and, batting as late as I am, pretty well everything that one wanted to say has been said. I will try to keep my remarks very brief and perhaps put a change of emphasis on some of the points that have been made. I want to address the National Crime Agency-no surprise, perhaps-and say just a little about community sentencing and drug-driving. I had quite a lot written down about courts but I will leave that to the succeeding stages in your Lordships' House.
I declare an interest in that I served in the police service in England for many years. With particular regard to what I want to say tonight, I had a lot to do years back with the regional crime squads, then the National Crime Squad and the National Criminal Intelligence Service-all of which were rolled forward way or another into SOCA, the Serious Organised Crime Agency-and for a while I worked very closely with the Federal Bureau of Investigation, and I want to mention that agency very briefly as well.
As we know, the NCA has four major commands: organised crime, border policing, economic crime and CEOP, the Child Exploitation and Online Protection Centre. The noble and learned Baroness, Lady Butler-Sloss, quite rightly made great play of the seriousness of people trafficking, particularly child trafficking within that insidious, growing, serious and very lucrative trade. There is nothing amiss about that not being mentioned in the Bill; I hope that, in winding, the Minister will reassure me that it will be encompassed by the new National Crime Agency. Of course, there is no specific mention either of cybercrime, the trafficking of drugs, arms or antiques and valuable works of art or the moving of high-value mechanical plant and motor vehicles, all of which cause immense distress, are highly lucrative to criminal organisations-
Baroness Butler-Sloss (Crossbench)
Forgive me for interrupting the noble Lord but I was not criticising the Bill, I was criticising CEOP's letter, which did not refer to trafficking as part of the job it had to do.
Lord Dear (Crossbench)
Thank you for making that point clear.
All those crimes are not in the Bill. I would expect to find them addressed within the rubric of the National Criminal Agency and will look for reassurance for that. The one thing that I raised an eyebrow over was the apparent lack of border management or governance procedures in the Bill, and I think we might explore that in Committee. It seems odd that an agency as potentially powerful as this one should be able to operate directly to the Home Secretary without some sort of non-executive agency-can I put it in those terms?-to oversee it.
The press are already labelling the NCA as the FBI. Those of us who know anything at all about the FBI realise that it is a very different body, both constitutionally and organisationally, to what is proposed for the NCA. Yet there is an article, already referred to by the noble Lord, Lord Prescott, who is not in his place at the moment, in today's Daily Telegraph, headed: "A British FBI won't make us any safer". It is an interesting article, written by John Yates who until recently was head of counterterrorism for the country and indeed a senior officer in the Metropolitan Police. It is a strange article that I commend to your Lordships although they might find, as I did, that it is something of a curate's egg. What made me really concerned about was that it seems to be some sort of plea for the Metropolitan Police to retain the counterterrorism lead in the country.
I should say immediately, having served in the Metropolitan Police and dealt with counterterrorism from a provincial force looking to the Met, that I have the highest regard for everything the Metropolitan Police has done in the past and continues to do in counterterrorism. It has a worldwide reputation for protecting us from terrorists and, if the protection fails, for then dealing with terrorism offences very well and successfully. I hope that this article is not the beginning of a turf war between police forces-some sort of demarcation dispute and parochialism-because we have seen from time to time, not necessarily with the Met but throughout the police landscape over the years, occasional examples of that: "It's my ground and I am going to defend it". If in the future, and it may be a long time away, the evidence was there to move the counterterrorism command away from the Met and into another agency, the ability to move it into the NCA seems to be a very sensible view.
There is a huge threat, and we have talked about it before: cross-border crime in the United Kingdom, cross-border internationally-you could almost call it pan-global and that would be accurate. The threat, as the noble Lord, Lord Wasserman, has already said, is far too big for individual forces to deal with, no matter how big some of those forces are. We have seen before, and I think this used to go on to the record, examples of police forces that have denied the will for successful operations to crime squads, preferring to look at their own problems on their own ground and not to co-operate across borders for the greater good, although not all forces. That is rare but it does happen and could in future. The threat will continue to grow, make no mistake about it, and the NCA will grow over the years. There is plenty of scope in the Bill for co-operation between forces and between forces and the NCA. There is a raft of operational powers available but the director-general, as we have seen, has to be able to direct in extremis. The point was made in the Minister's opening remarks that the powers to direct will be used sparingly but they have to be there, and I would defend that posture very fiercely indeed.
We have heard a lot in your Lordships' House about the tensions that undoubtedly will exist between the police and crime commissioners and the chief constables on the one hand and the National Crime Agency on the other-localism. I said just a year ago when we were discussing the Bill that launched the concept of PCCs that a constructive tension between the PCC and the chief constable was a good idea; there has to be balance. There also has to be a constructive tension also between the localism of police forces-PCC and chief constable together-and the NCA. I do not see any way around it. It surprises me that nobody else in your Lordships' House has mentioned that every single western democracy-at least to my knowledge-has a two-tier policing system. I cannot think of one that does not have a national organisation of some sort and a local web of organisations as well. How they relate varies, but they still have the two. If one tries to knock down the concept of the NCA, the two alternatives that are left seem equally undesirable. One is to have a purely local police service, taking no account whatever of national and international pressures; the other is a national police force, which I do not necessarily espouse. Scotland will have a national police force shortly, but Scotland is smaller and, if I may so with the greatest respect to Scotland, the range of problems there is probably smaller than it is in England and Wales. If you recognise that there has to be a national entity of some sort, you are three-quarters of the way towards accepting the necessity for the NCA.
We did not mention Clause 23 in the early part of this Second Reading, but several of your Lordships have since done so. The noble Baroness, Lady Linklater, gave us a compelling argument for everything around Clause 23. The Bill is of course very light on detail-we are waiting for that to come; there is nothing in the explanatory document to help us on that. I sincerely hope that when we get down to the detail of Clause 23 we will see an enhanced role for the probation service working in conjunction with voluntary organisations. I am sometimes asked by people who believe that I know far more about policing than I really do, "What would you do to really help the police?". I tend to say, "If you really want to help the police, stiffen up and make really efficient the probation service, because in doing so you will stop the revolving door or slow it down. You will drastically cut recidivism; you will stop repeat offending; and that at a stroke would help policing and society no end". Out of Clause 23, I hope to see emerge a discussion that takes us somewhere along that line.
I know that the noble Viscount, Lord Simon, is going to say quite a lot about drug-driving. I shall not try to steal any of his thunder other than to say that this matter is long overdue for addressing. It is exactly two years since the publication of Sir Peter North's report, identifying that the problem was perhaps even more serious than we first thought; pointing out, as we already knew, that it was very difficult to prosecute drug-driving under the existing law; and recommending the creation of the offence of driving with a controlled drug above a specified limit. We should look at the specified limit in Committee, because, in December 2010, the Transport Select Committee put that to one side and recommended zero tolerance. The difference between specified limits and zero tolerance is considerable. It seems to me rather odd that drink-driving, using a legal substance illegally in a car, should be very different from drug-driving, where you are using ab initio an illegal substance before you get into it. We will need to keep our options open on zero tolerance.
I have spoken for too long. I commend the thrust of the Bill, I support the concept of the NCA and I look forward to being involved both in Committee and on Report.
Viscount Simon (Labour)
My Lords, I intend to speak fairly briefly on a few very specific items contained in this Bill.
Clause 26 and Schedule 14 propose that some of the specialist work carried out by the police and customs be extended to immigration officers, some of whom will be allowed to approve specified applications to carry out searches, detention and powers of seizure. There are concerns that giving even greater police-like powers to immigration personnel is not matched by any training or accountability requirements. It is proposed that by conferring the powers of a constable on National Crime Agency officers there needs to be an assurance by the Government that these people are fully attested officers. With an administration seemingly intent on using private contractors, such a requirement is very important.
During the debate on the gracious Speech, I raised some practical issues relating to Clause 27 where a new section is to be inserted into the Road Traffic Act 1988 relating to driving while under the effect of specified drugs. Section 4(5) of that Act already covers drug driving but the Government claim that enforcement is problematical. The field impairment test exists as do forensic medical examiners but the combination does not always seem to work satisfactorily.
It is the view of the Police Federation of England and Wales-I am an honorary member of the roads policing central committee-that legislation needs to target the habitual illegal drug user who is a danger to himself or herself and to the public while driving under the influence of drugs and that the legislation is easily enforceable through the correct use of technologies.
I also drew attention to the swipe testing kit for drugs which is being used very effectively in some other countries, and in particular to the 34 prosecutions for driving under the influence of drugs in this country in 2010 while there were 34,000 prosecutions in Germany in the same period using this equipment.
The Government are proposing that, in some cases, a zero-tolerance approach to driving under the effect of drugs will be imposed. Bearing in mind that there is then no need to prove intention or negligence, it is, to my mind, unwise to use this approach to catch drivers. The levels at which drugs are considered to cause impairment in driving will have to be established very, very carefully.
The proposed new offence negates the need to prove impairment-something which I consider to be very relevant-but will be based on prescribed limits where a drug has been taken resulting from a doctor's examination. With this in mind, is it possible that a GP could be taken to court as the originator of prescribing drugs which might affect driving? Or will driving be banned when certain drugs are prescribed but which, in practical terms, only affect driving above certain levels? And, of course, the effect of drugs can vary from one person to the next. This area will need to be looked at extremely carefully as noble Lords have already said.
I read in a newspaper that Scotland intends to reduce the drink-drive limit from 80 mg to 50 mg. It really is such a pity that the Government have not taken a similar no-tolerance approach. We all know of the increased impairment when a higher reading is used and the resultant increase in road deaths and injuries. I just wonder if the Scottish drivers will flee across the border if they see a police car when they know that they would not pass the lower limit. Expanding on this concern, I wonder how the DVLA will handle endorsements or disqualifications emanating from Scotland both in regard to permission to drive and to valid insurance in England and Wales. The opportunity of using this Bill to bring us into line with the greater majority of the European countries would be welcomed. And perhaps it is time for us to follow those wise Scots.
Legislation needs to result in easily enforceable levels being found using correct technologies rather than legally medicated members of the public, driving safely, being convicted. This, of course, is easier said than done but having a fairly narrow list of controlled drugs which cause most concern would be a good starting point.
Lord Thomas of Gresford (Liberal Democrat)
First, perhaps I may say a word or two on Part 1. The issue which has emerged in the debate is what the noble Lord, Lord Dear, called constructive tension; my noble friend Lady Hamwee referred to it as tasking arrangements. I agree that there is an utter lack of clarity in the Bill about the relationship between the proposed NCA, police and crime commissioners and chief constables. It would be very helpful if the noble Lord, Lord Henley, could bring before the House, at Report or in Committee, a draft protocol. Surely that is what will have to operate after the implementation of these proposals. There has to be machinery to sort out the different arrangements which will arise. I agree with everything that my noble friends Lady Hamwee and Lady Doocey and the noble Lords, Lord Ramsbotham, Lord Condon, Lord Prescott and Lord Harris, said with some passion on this topic.
I turn to Part 2 and start with the issue of diversity. The noble Baroness, Lady Jay, was correct when she said that it is the traditional career path which results in the judiciary which we have today. The judiciary does not reflect the diversity of today's society; it reflects the lack of diversity in the legal profession 30 to 40 years ago, when I was a junior member of the Bar, or even before that, when I was a solicitor. I recall that I had a lady pupil, which was regarded as a considerable improvement on the situation in the small Bar I was in at Chester; she was the only lady in the place at the time.
The traditional career path is that the judiciary is appointed from a core body of legal practitioners, mainly from the Bar, who have demonstrated judgment and integrity over the years of their practice. You might say that they have shown their merit. They are appointed in their mid 40s or early 50s to the county court Bench or to the High Court Bench. If they are fortunate, they become members of the Court of Appeal in their late 50s. If they are even more fortunate, a select few will reach the Supreme Court in their middle 60s. Some noble and learned Lords present may have achieved that rank before that age, but that is the generality.
It is only been possible in the past year or two to choose someone who has not followed the traditional career path to be a member of the Supreme Court, but there has been only one appointment so far. That is one of the problems that arose when we were discussing the retirement age of Supreme Court justices at 70, which does not give anybody a sufficiently lengthy tenure in that role. I agree with the noble Baroness, Lady Jay, that the Constitution Committee was correct in saying that the age of retirement should be pushed to 75 for the Supreme Court and to 70 in other cases. I am not even sure whether that is right or whether that is not a bit of ageism. We talk about discrimination on the grounds of gender, race or whatever: what about age? Should it not be on merit that people are forced to retire, rather than otherwise?
Lord Thomas of Gresford (Liberal Democrat)
That goes down well in the House of Lords, it may not go down well anywhere else.
What is the alternative? A professional judiciary. There are models all over the world. You start off as a judge's clerk when you get your degree. You take your first steps in your late 20s and get appointed to the local Bench. You climb the ladder. There is no need for lay magistrates. Eventually, you get a judicial position and there you are as a judge. Perhaps you can introduce diversity into such a judiciary rather more easily than you can in our system of the traditional career path, but is it desirable?
The noble and learned Lord, Lord Lloyd, opposed the career judiciary, and I agree with him. What I do not think is right is to introduce the concept of part-time judges to increase diversity, if that is the purpose behind it. You cannot job-share on the Bench. I recall being in a foreign jurisdiction, we were there for a fortnight, and on the third day the judge disappeared for coffee and never came back. When we went to see what he was doing, he was with his golf equipment in a golf bag, and he was flying out for the rest of the time we were there in order to play golf. We could not continue with the case. So both sides had to troop back to this country. You cannot job-share. If the purpose of having part-time judges is to increase diversity, it is not the right approach.
I now turn to county courts, of which I have great experience. I share the doubts expressed by the noble and learned Baroness, Lady Butler-Sloss. A single court may have some administrative advantages. However, there are two tests. First, does it increase or decrease access to justice? Secondly, does it improve the quality of the decision-making in relation to a particular case? As to the first question about access to justice, that depends on the maintenance of buildings and offices in every part. The noble and learned Lord, Lord Mackay, referred to the name "county". The reason why we had county courts was that they were immediately available, not just the courts themselves but the offices where you could get writs and warrants-the noble Lord, Lord Elystan-Morgan, and I remember the one in Wrexham very well. That meant that, without witnesses having to travel too far, a case could be determined within the community. Secondly, on the quality of the decision, there is the continuity of the judge in a particular case. You did not apply on one day for an interim order and on another day for another interim order, only to find yourself in front of different judges when you got to the end of the process. You had continuity of the judge. Sometimes that was not a very advantageous thing, but that is what you had-the noble Lord, Lord Elystan-Morgan, knows exactly what I am thinking. So I am not sure about county courts. I hope that it is not just a cost-saving measure and that some real principle is behind it.
As to family courts, I welcome them. The expense and delay in public law cases has been recognised in the Norgrove report. Proceedings have indeed got out of hand, with expert after expert being called and cases dragging on in a way that does not assist-I think there is a delay of 55 weeks at the moment to get a case before the court. Can the Minister say what has happened to the Family Justice Board that was promised this month in the Government's response to the Norgrove report? Hopefully that will be able to refocus private cases between partners and children on mediation and dispute resolution, which I hope is the way that we are going to go.
I went on the London Legal walk a week ago today to raise money, ironically, for CABs and law centres, which we debated at much length. I had the opportunity of discussing the present situation with some family law practitioners. I was told that district judges are quicker; magistrates are much slower but are more easily persuaded; and litigants who appear in person will inevitably make a case last twice as long-but I do not want to go back over areas that we covered extensively before.
As regards television, will it cause advocates to act differently in court? I doubt it. I do not know what your Lordships' experience is but in this place I am not conscious of television cameras when I am speaking. I am conscious of them only when I am sitting next to the person who is speaking. That probably accords with your Lordships' experience, particularly if the person I am sitting next to goes on for some time. Oh, I am being kicked. As for the drama of television performances, in the political field Prime Minister's Questions must take most of the viewing time. The rest of the parliamentary proceedings are a cure for insomnia in the middle of the night. It is the drama of Prime Minister's Questions that attracts an audience.
Where is that in the courts? In the criminal court, it is in the cross-examination of major witnesses, particularly victims. We can see that in the Leveson inquiry at the moment, as we can again with the cross-examination of the men in the dock. Yet the most dramatic moment is undoubtedly the delivery of the verdict. I can tell your Lordships that that can be hugely dramatic. People faint; there are screams and shouts. Nothing on the stage, in my experience, or in any film I have ever seen can match the drama of a jury returning a verdict. That is the moment, but of course it cannot be allowed on television. What we must not have is for the public to usurp the jury in any way to come to a conclusion, perhaps to vote over the telephone. Perhaps the Ministry might think it a good idea to have a number that everybody phones to give their verdict, and then it could collect the proceeds from the phone calls. That is not the way to proceed. We must keep the tightest possible control on television in the court-room. I agree that it would be right to have sentencing remarks. If anybody wants to watch arguments or judgments in the Court of Appeal that would, like parliamentary proceedings, be a cure for insomnia.
Lord Elystan-Morgan (Crossbench)
My Lords, this has been a most excellent Second Reading debate. I, like so many other Members of the House, I am sure, have found it a most enriching and educating experience. It is yet again a case of a Government bringing in at least one miscellaneous provisions criminal law Bill a year. I think this must be true over the past 25 years, possibly even longer. On previous occasions I have been irreverent enough to suggest that some day we should have a Bill of Rights and a written constitution, and that the obverse of that Bill of Rights should be that a Government should be allowed only one miscellaneous provisions criminal Bill every two years. That was an academic point when made in earlier years. It may now be much more relevant, in light of the fact that Clause 2 of the House of Lords reform Bill has been demolished by the Richard committee and that there may well be a unanimous view that only a written constitution can prevent two elected Houses committing mutual strangulation.
Be that as it may, at this late hour I will confine my remarks to Clause 17. As the House will know that clause deals, first, with the creation of a single, unified county court for England and Wales and, secondly, the creation by subsection (3) of a family court. I was most interested to hear what the noble and learned Baroness, Lady Butler-Sloss, said about her late brother Michael and his most progressive and pioneering views, which he articulated in the early 1980s, in relation to a family court.
On the question of a county court, doubts have been raised as to exactly what is achieved by this. The county court has a fascinating history. It is of Anglo-Saxon origin, probably predating the Norman conquest by a couple of centuries, but it is a very different body from a criminal court as such, dealing with criminal and civil matters. Indeed, it was almost rendered unnecessary and irrelevant by the assize system of Henry II in the 12th century. The County Courts Act 1846 created a small claims court, something entirely different from the earlier county court. It was a very modest development, and in the 176 years since then it has grown out of all proportion and beyond all imaginations.
That is the point that I make in relation to whether there should be unification. The strongest claim for bringing together the 170 individual courts-this rich patchwork quilt of little fiefdoms-into one court, is brought about more than anything by the fact of the tremendous development that there has been in that court in the past 20 or 30 years. Thousands of heavy, complex cases, which normally would be heard in the High Court-the High Court would never be able to handle anything like that with its present membership-have been successfully handled by the county court, in many cases by circuit judges sitting as deputy High Court judges, but in many cases by ordinary circuit judges. Therefore, one has to take that very much into account.
The noble Lord, Lord Thomas of Gresford, asks the question of exactly what it will achieve-what is the added value? It seems to me that one can put the case in the following fairly balanced way. There are obvious advantages to using the human and material resources of those 170 courts to the best possible effect but there are two very substantial difficulties and dangers. We had a cull of the county courts in England and Wales some two years ago. I forget exactly how many were lost but dozens disappeared.
Under Schedule 9, which deals with this particular reform, the Lord Chancellor will have massive powers to decide which county courts exist or not. He will decide where this conjoined, unified court for England and Wales will sit, and there may well be a further cull. I appeal for the particular consideration of rural areas, which the noble Lord, Lord Thomas of Gresford, and I know very well, where the travelling distances involved for people who do not have private transport are so immense-very often half the day is taken up with two or three bus or train journeys-that one has to take into account that justice will be denied to people who live in those areas unless one maintains broadly the structure that we have at the moment.
One other matter is illustrative of what can happen with centralisation. It happened two or three years ago, when the Lord Chancellor decided that all bulk issues should take place through the Salford County Court. This meant that hundreds of thousands of processes were commenced there on behalf of bodies that were of national stature. The effect of that on the viability of other county courts could be immense, making any profit and loss trading account considerations largely irrelevant. There was no consultation at all with the Welsh judiciary, local government or the managers of county courts. It should never have been done in that way. If it is humanly possible in some way to revisit that situation, I will be very glad to see it dealt with in a fair and balanced way.
I come now to the question of the family court. Yes, this development has been waiting at our door for a very long time. I have no doubt that it is to be welcomed. I do not think it revolutionary. As a circuit judge for many years, dealing with cases that had commenced in the county court, I found it easy to send them either up to the High Court or down to a magistrates' court. There is nothing revolutionary in this at all, but again there is the power of the Lord Chancellor to decide exactly what shall be heard at which courts and at what level. Those powers are very considerable.
I end with the obvious point that the setting up of a family court creates a new forum but does not deal with the dozens of issues now coming to the boil in relation to family matters. I refer in particular to the Munro report, the Narey report and the remainder of the Northcroft report. Dozens of pioneering and progressive decisions have to be made. When the Minister comes to sum up the debate, I would welcome some indication as to what the timetable might be. I pay tribute to the Government tonight for having examined so many of these major reforms in a sensitive and careful way. It would be entirely wrong to tack any of them on to latter stages of the Bill. However, I would like some idea of the order of priority and the possible timetable.
Lord Beecham (Labour)
My Lords, as many speakers in this very thoughtful debate have implied-notably my noble friend Lady Smith-for all the Bill's positive features, it is yet another example of the Government's recidivist tendency to legislate on the hoof. In this case, it is a demonstrably unshod hoof. From the crass failure that my noble friend identified to provide a framework document for Part 1 of the Bill in relation to the National Crime Agency, to the uncertainty about when we will be informed of the outcome of consultation on the community sentencing provisions and the response to that consultation, let alone details of what the Government plan to include the Bill, to the extraordinarily wide powers to amend any enactment contained in Clause 2(4), which deals with counterterrorism, through to the uncertainties about the financial implications of the establishment of the National Crime Agency, the latter's relationship-touched on by the noble Lord, Lord Ramsbotham-with the police and crime commissioners, the powers of the NCA director, the recurrent issues of accountability not only of the NCA itself but of immigration officers under Part 3, the implications of the abolition of the police improvement authority, the lack of clarity over details of the opposed new offence of drug-driving, which all of us would welcome in principle, and the reliance yet again on regulations as yet unseen instead of primary legislation, the Bill falls lamentably below the standards that your Lordships' House and the British people are entitled to expect, especially given its importance in relation to our system of justice.
It is as well, then, that the Bill starts and will finish in your Lordships' House where, thanks to the presence of so many former senior members of the judiciary, experienced legal practitioners at the highest level-among whom I am not included-and many other Members with a passionate concern for liberty, accountability and due process, it can expect to receive more, and more effective, scrutiny than the whipped procedures of the House of Commons all too frequently allow. I have some sympathy with the noble Lord, Lord Henley. Continuing our Dickensian dialogue-perhaps I should say "monologue"-I rather see him today in the role of Sergeant Buzzfuzz, briefed not by the plaintiff on a breach of promise action against Mr Pickwick but by the Home Office and the Ministry of Justice, today's combined equivalent of the Circumlocution Office. We may, however, return to the question of breach of promise-breach of electoral promise-when we come in due course to the Justice and Security Bill.
I now address those issues in the Bill which fall primarily within the responsibilities of the Ministry of Justice. In relation to creating a single county court, my considerable concern is the venue. For most purposes, as we have just heard, this is at present based on one or both parties having a connection with the geographical area of the county court in which proceedings commence. I hope that the Minister can assure us that this will remain the case and, if it is, how that can be secured. To pick up the point raised by the noble Lord, Lord Elystan-Morgan, will he also assure us that we will not see a further rash of closures of county court facilities for the reasons that he gave? No doubt corporate clients would find it very convenient to choose the venue at the expense of the interests of individual claimants.
In passing, it is worth noting that the ministerial statement heralding this change also announced increases in the small-claim limits in the county court below which it is impossible for a successful litigant to obtain his costs: first to £10,000, then to £15,000. This is not in the Bill but it is connected to the question of access to justice and it would be a grave blow to claimants and a boon, no doubt, to the insurance industry, which of course is such a generous donor to the Conservative Party.
On family courts, the Bill carries forward the generally well received recommendations of the Norgrove report. I have one particular concern because the Bill is not clear on this: will a single lay magistrate, who counts as a judge in the Family Court under Schedule 10's insertion of new Section 31Y in the Matrimonial Proceedings Act, be empowered to determine contested cases? That would perhaps be less than desirable. I raised the matter in discussion with the Bill team and I do not know whether the Minister has yet ascertained whether that would be the case.
Mentioning the magistracy brings me to a slightly different point, one hinted at by the noble Lord, Lord Elystan-Morgan. Last night I was in discussion with the lord-lieutenant in my area, who expressed considerable concern on his part and, as he put it, on behalf of his brother lords-lieutenant, about the position within the magistrates' court system, where the feeling is that lay magistrates are increasingly being displaced by full-time paid district judges. I confess that I have not appeared in a magistrates' court for nearly 20 years, and the role of the justices' clerks-as they used to be called; I am not sure that the appellation is still relevant-seems to have changed. Apparently the clerks are no longer responsible to magistrates' courts' committees but, increasingly, seem to be responsible upwards, to the Ministry of Justice. As the magistracy becomes more professionalised, I suppose that that is likely to be increased. There is a concern, which was raised in the debate on the Queen's Speech by a Member opposite, that local justice might be somewhat imperilled.
In relation to judicial appointments, generally we welcome the steps to promote equality and diversity. It is worth proceeding with the concept of part-time appointments in the higher courts, recognising that there may be a risk, as some of your Lordships have indicated, and practical difficulties. It is not necessary to assume that if things turn out to be less effective than envisaged we are stuck with the system indefinitely. I suggest that it would be a matter to be kept under review, and that could be provided for in the legislation in the first place. However, we are so far behind in promoting equality and diversity that it seems worth while at least to attempt to see whether that particular provision could improve the position.
It was interesting to hear a number of Members of your Lordships' House-my noble friend Lady Jay, the noble Baronesses, Lady Neuberger and Lady Prashar, and the noble and learned Lord, Lord Woolf-all expressing concerns about the desirability of the Lord Chancellor having a vote in the selection of the president and deputy president of the Supreme Court. I share those concerns. Proceeding in that way may seem questionable, as we may be thought to be bringing the Executive too close to postholders who ultimately may have to sit in judgment on the Executive. I do not mean just the Lord Chancellor as an individual; I mean the Government of whom the Lord Chancellor is obviously a member. It is also not clear to me whether the powers of the Lord Chancellor to prescribe regulations about appointments in consultation with the Lord Chief Justice and others is or should be absolute or whether there is to be any parliamentary scrutiny-not of the appointments but of the regulations that will govern those appointments.
On Clause 22 and the question of filming or recording proceedings, we welcome the proposals for Court of Appeal hearings and remarks on sentencing in Crown Courts to be broadcast, subject always to the decision of the trial judge. I think that there would be a concern, which I would certainly share, if it were envisaged that those two categories should be expanded and other areas of the court's activity made subject to broadcasting. I endorse Liberty's suggestion that these two proposals should be embodied in the Bill-possibly with a sunset clause to allow the position to be evaluated after a period-and that in any event any extension of categories should be subject to primary legislation and not implemented through regulation.
On Clause 23, which deals with community sentences, simply giving the Secretary of State the power to make regulations for or in connection with non-custodial sentences is unacceptable, particularly in the light of the paucity of information currently available and the length of time before it will become available, to which I and others have referred. Moreover, there is a question about how the whole clause stands with last week's White Paper on anti-social behaviour, which we have not yet had an opportunity to debate. That whole set of proposals needs to be thoroughly debated and we need to know exactly what the Government have in mind before we can make a judgment about it.
On the provisions relating to immigration under Part 3, my noble friend Lady Smith indicated a number of concerns that, again, I share. The first relates to the abolition of the right of appeal against refusal of entry clearance to the UK under Clause 24, which undoes the Labour Government's changes in relation to family visit visas. As Liberty points out, this would create great difficulties in relation to, for example, important family events, weddings or funerals or for visiting the sick. My noble friend Lord Judd quite rightly raised the apparent bypassing of family values on the question of family visit visas.
There is also a potential problem in relation to Clause 25 concerning appeals against a decision to vary a person's leave to enter or remain in the UK when he or she is outside the jurisdiction when the decision is made. That could make it extremely difficult for the right to be exercised.
Under Clause 26 and Schedule 14, we have the conferment on immigration officers of very wide powers without an evident framework for accountability such as, as in the case of the police, the Independent Police Complaints Commission. Moreover, paragraph 380 of the Explanatory Notes indicates that the clause confers on the border agency's chief operating officer the power,
"to authorise applications from immigration officers for the purpose of investigating organised immigration crime",
without defining the latter term. What is "organised immigration crime"? We need to be clear about that. In any event, the powers conferred by Clause 26 do not seem to be limited to those purposes. Again, we have wide-ranging powers without any real boundaries or constraints.
Clause 27 deals with drugs and driving, on which the noble Baroness, Lady Meacher, spoke with such effect during the debate on the Queen's Speech. Like others, I look forward to hearing from her again in Committee. The Government must address the concerns that she expressed and that have been expressed by Liberty, the British Medical Association and, as we have heard tonight, other noble Lords about the practical implications of a widely drawn offence. It must surely be confined to substances that are likely to affect driving ability and which the user knows, or ought to know, are likely to have such an effect and, as we have heard, can be measured.
Other matters may be raised in the course of the Bill's progress, and one that may make an appearance is metal theft. That was debated at some length in the very late hours during the passage of the legal aid Act, as some noble Lords will recall, and the Government indicated that measures would be brought forward. I would have thought that the Bill would have provided an opportunity to deal with this matter of considerable concern that affects public safety as well as having considerable financial implications. We may take the opportunity of tabling an amendment to that end.
The Opposition look forward to working with the Government and Members from all parts of the House to improve a Bill that, in some areas, introduces welcome reforms but in others threatens to undermine, to some extent, parliamentary and public accountability and infringe civil liberties. It will be for your Lordships' House to improve the Bill and send it to the House of Commons in a form that we can only hope will represent an improvement and which will allow us to achieve a consensus on those matters on which, broadly speaking, we share a civilised view but that the Bill does not quite match in the reach of its provisions.
Lord McNally (Liberal Democrat)
My Lords, I thank the noble Lord, Lord Beecham, for that offer at the end. That is exactly how we wish to approach the Bill. I am grateful for the broad welcome that has come from all parts of the House about the thrust of the Bill and I recognise that, in a limited time, people are bound to raise the points that they do not like rather than emphasise the points that they do like.
The noble Lord was a little modest in his introduction. He is a very distinguished lawyer and, as he knows, I am not. In the two years I have been in this job, I have got used to saying very quickly to people, "I am not a lawyer". I have now abandoned that mantra because my noble friend Lord Thomas of Gresford took me for lunch the other day with a very distinguished professor of law from the University of Yale. I used my usual defensive opening, "Well, I am not a lawyer", and he lent forward and said, "Then I'll speak very slowly".
However, I share the view of the noble Lord, Lord Beecham, that we have benefited from a debate in which we have been able to hear a wide range of people with tremendous depth of experience about the issues under discussion. We have heard from some of our most distinguished judicial representatives: the noble and learned Lord, Lord Woolf, is a former Lord Chief Justice; my noble and learned friend Lord Mackay, is a former Lord Chancellor; the noble and learned Lord, Lord Lloyd, is a former Law Lord; and the noble and learned Baroness, Lady Butler-Sloss, was President of the Family Division. It is always a great pleasure to hear their contributions. I always have some mixed feelings about the interventions from my noble and learned friend Lord Mackay because he says things in such a gentle voice that I am convinced that he is on my side but at about two o'clock in the morning I wake up and realise that he has delivered the most devastating critique of what I was hoping to do. So I shall wait for that 2 am moment some time tomorrow morning.
This has been a very good debate. I fully take on board that we have a task in Committee to look at these proposals. Some of the issues that have been raised will have to be explained, debated and discussed, and how we propose to do things will have to be weighed against alternatives. That is certainly how my noble friend Lord Henley and I will take this forward. I would also like to put on record our thanks, particularly for Part 2 of the Bill, to the Constitution Committee for its contribution: a very timely report. With her usual courtesy, the noble Baroness, Lady Jay, explained to the House, and to me separately, why she could not be with us for the wind-ups tonight. I know that she will play a full part when we reach Committee.
I will try and cover a range of the issues raised during the debate. Although we will be returning to them all in Committee, it is right that I also try and deal with them tonight. A large number of people-the noble Lords, Lord Ramsbotham, Lord Harris and Lord Prescott, and the noble Baronesses, Lady Smith and Lady Doocey-raised the question of whether there was an incipient conflict between the accountability of the PCCs and the National Crime Agency. I am not sure. I think the best answer probably came from the noble Lord, Lord Dear, in his recognition that there will probably be a certain tension in these roles but not a destructive tension.
Somebody mentioned that there has been a debate since 1929 about how national and how local a police force should be. It is true that in this country we have had policing that has done both, but as fresh challenges have come up, successive Administrations have sought to create agencies that can meet the wider challenges that go beyond localism without losing the benefits of localism. I agree with the noble Lord, Lord Dear, that this is not a slippery slope towards an FBI. It will be a powerful agency, and again I hear what the noble Lord says about the importance of the power of direction if it is going to be effective. However, that is something that we can look at in Committee.
I move on to the powers of the director-general to direct a police force in England and Wales to perform a particular task, and whether that conflicts with the chief officer's accountability to the local police and crime commissioner. The power of the director-general directly to task a police force will be a very limited backstop measure, used only when co-operative arrangements cannot be agreed on and where it is essential for the national effort against serious and organised crime that action is taken by that police force. This power does not cut across the responsibility of police and crime commissioners to hold their chief constables properly to account for the totality of policing in that force's area, including tackling cross-boundary policing challenges such as organised crime, terrorism, public disorder, civil emergencies and cyberthreats. This includes the responsibility of police and crime commissioners to ensure that their chief constable co-operates effectively with the National Crime Agency.
Noble Lords asked whether this would be done within a reduced budget. We are clear that the National Crime Agency, like SOCA, will need to live within its spending review settlement, which will be based on the respective budgets of the precursor organisations. The agency will deliver more through its enhanced intelligence capability, capturing a single national picture of the threat presented by organised crime. It will also have more effective tasking and co-ordinating arrangements, enabling more effective prioritisation and smarter use of its own and others' assets.
Lord McNally (Liberal Democrat)
Not at 9.35 pm after six hours of debate. We will leave that for another day.
The noble Baronesses, Lady Hamwee and Lady Smith, asked whether CEOP would retain its identity. CEOP will keep its ability to create and maintain the innovative partnerships that are so valuable. It will keep its independent brand and multidisciplinary workforce, and it will have a ring-fenced budget, operational independence within the NCA and independent governance.
The noble Baroness, Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Lords, Lord McColl and Lord Dear, raised the question of human trafficking. The National Crime Agency will have a key role in building on the existing arrangements for tackling human trafficking by using its enhanced intelligence capabilities and co-ordinating functions to target organised criminal gangs involved in human trafficking, wherever they are. The UK Human Trafficking Centre will move into the National Crime Agency as part of the precursor transfer of the Serious Organised Crime Agency. This will ensure that human trafficking continues to receive the priority and attention that it deserves.
My noble friend Lord Alderdice raised the important and particular issue of how the National Crime Agency will operate in Northern Ireland. The NCA will be a UK-wide agency. In framing the provisions of the Bill and developing the operating model on the ground, we were acutely conscious of the fact that policing is devolved in Northern Ireland, and of the need to work with the grain of existing police arrangements. My right honourable friend the Home Secretary worked closely with the Minister of Justice, David Ford, to ensure that the legislative framework properly respects the devolution settlement. The provisions were designed not to interfere with the important accountability arrangements for policing in Northern Ireland. In accordance with the Sewel convention, it will be necessary for the Northern Ireland Assembly to agree a legislative consent Motion in respect of the provisions in Part 1 of the Bill. I am sure that the Assembly will debate the matter robustly, and we will welcome any proposals for strengthening the partnership working between the National Crime Agency and the Police Service of Northern Ireland.
The noble Baronesses, Lady Doocey, Lady Hamwee, Lady Harris and Lady Smith, and the noble Lords, Lord Dear and Lord Condon, raised the question of counterterrorism functions. We have made it very clear that decisions on the future of counterterrorism policing should not be taken until after the 2012 London Olympic and Paralympic Games, and after the NCA has been fully established. Only then will counterterrorism policing be considered, and decisions taken on what role the NCA might play. Without prejudice to any further decision on the issue, Clause 2 will enable the functions of the NCA to be extended by order to cover counterterrorism policing. Any such order would be subject to super-affirmative procedures to ensure full parliamentary scrutiny. I agree with the noble Lord, Lord Dear, that we do want any turf wars. Just as we will set an example in this House of constructive examination of the cases, I hope the various police authorities will do the same.
The noble Baroness, Lady Smith and my noble friend Lady Harris raised the question of whether the new agency will be exempt from the Freedom of Information Act. I am the Minister responsible for freedom of information and I have given this considerable thought. At the moment SOCA is covered by the Freedom of Information Act. The question I had to face was whether it was cleaner simply to make the larger body exempt. It is a matter that can be well examined in Committee. We are committed to making the National Crime Agency open, public-facing and transparent. Careful consideration was given to whether the National Crime Agency should be brought under the Freedom of Information Act, which was not the case with the Serious Organised Crime Agency. We want the public to have access to a wide range of information about what the agency is doing, how it is performing, its internal procedures and the latest assessment of the threat from organised crime. The measures in the Bill, such as a duty to publish information, will ensure that this happens. The National Crime Agency will handle large volumes of sensitive information, including intelligence material which could have a critical impact on national security. If the National Crime Agency were subject to the Freedom of Information Act, there is a risk that international and private-sector partners would be more reluctant to share information with the agency. Intelligence shows that organised criminals will seek to exploit any avenue, including freedom of information requests, to further their criminal activity. As I said, it was a matter of a judgment. I am very happy to revisit it in Committee. Perhaps when we do so, the Opposition could tell us why SOCA was exempt from the Freedom of Information Act and we could explore their thinking at that time. I suspect it was not very far from the thinking that we have gone through when looking at the setting-up of this agency.
The noble Baroness, Lady Smith, and the noble Lord, Lord Condon, asked about the National Policing Improvement Agency functions. The wind-down of the agency is well under way with some functions already transferred to the Home Office and others to the Serious Organised Crime Agency as an interim step to their new home in the National Crime Agency in 2013. A programme of further transfers to other successor organisations, such as the new police professional body and the new police information and communications technology company is being managed in conjunction with the National Policing Improvement Agency. My right honourable friend the Home Secretary has already set out the details of these transfers in two Written Ministerial Statements. The future destination of all remaining National Policing Improvement Agency functions will be announced in due course.
The noble and learned Lord, Lord Lloyd of Berwick, the noble and learned Baroness, Lady Butler-Sloss, the noble Lords, Lord Elystan-Morgan and Lord Ponsonby of Shulbrede, and my noble friends Lord Thomas of Gresford and Lord Dholakia asked about changes to the county and family courts. There is no secret agenda for further court closures. That is a separate issue that will be debated, discussed and decided on its merits at the time. In both cases this will give greater flexibility and efficiency, and in the main the practitioners involved in those courts have welcomed the move. I was particularly pleased to hear the endorsement that the noble and learned Baroness, Lady Butler-Sloss, felt able to give, although I suspect that, once again, we will examine this carefully in Committee.
An issue that is of concern to my noble friend Lord Dholakia and the noble Lord, Lord Ponsonby, as well as the noble and learned Baroness, Lady Butler-Sloss, is whether the role of magistrates will be diminished in the new single family court. I can assure noble Lords that the Government have no intention of diminishing the importance of magistrates in the family justice system. Magistrates will continue to play a vital role in the new family court, but on the specific question of whether a lay magistrate would sit alone in these cases, the answer is no.
There was a full and informed discussion on the merits of diversity. One of my tasks in the Ministry of Justice is to promote diversity. To a certain extent I accept the point made by my noble friend Lord Thomas that, particularly at the top end, the shape of our judiciary reflects the Bar of 30 years ago. However, I have said before from this Box that when people ask me what the biggest difference is on returning to Whitehall after a 30-year gap, it is that the Civil Service has managed to diversify in a most remarkable way over that period. Although I might have started life as a Fabian, I am not convinced that the inevitability of gradualness is going to produce the diverse judiciary that a 21st century functioning democracy deserves. I am in nothing but awe of both the intellectual calibre and the integrity of our judiciary. Wherever I go, I realise what a great national asset we have in it. However, I do not think that its merit cannot be produced from a more diverse source that better reflects our society.
I look forward to discussing these issues in Committee and I hope that we will see broad cross-party support in this House for what we are trying to do. We are not proceeding recklessly, rather we are building on some worthwhile reforms. We have listened to much of the advice given by the Constitution Committee and I think that we are on the right track. However, I also agree with a point that was made a number of times, which is that if we are going to get diversity, it is not a matter for government alone. The professions and the judiciary have to buy into it. The noble Baroness, Lady Neuberger, asked particularly about the Judicial Diversity Taskforce. The work of the taskforce on diversity is crucial and I can provide a reassurance that it will continue to drive progress in this area. I certainly made it clear when I became Minister that one of my priorities was attending meetings of the taskforce and making sure that we kept up the pressure and commitment from the various parts of the system that are recommended on that force.
The noble Baronesses, Lady Neuberger and Lady Prashar, and the noble and learned Lord, Lord Woolf, queried the involvement of the Lord Chancellor in the appointment process. Obviously, we will return to this. I have sat in on some of the discussions and it certainly is not any kind of power grab by the present Lord Chancellor. In fact, like me, he is rather an enthusiast for the separation of powers. In the discussions, the opinion came from a number of sources that the relationship between the President of the Supreme Court, the Lord Chief Justice and the Lord Chancellor was absolutely crucial to the effective working of justice and therefore making sure that they were a cohesive group was very important.
As has been pointed out, at the moment the Lord Chancellor has a veto, which is a pretty large intrusion into any selection process. In these proposals, that veto is dropped and he becomes one of a committee. It will be very interesting to tease this out in Committee. As the noble and learned Lord, Lord Woolf, will confirm, these are not only judicial offices but considerable administrative offices-perhaps they regret it-particularly for the Lord Chief Justice, and their relationships with the Executive and Parliament have to be managed properly to reflect the realities of those relationships. Looking over at the Cross Benches, I can see that noble Lords are keeping their powder dry for Committee.
The noble Lords, Lord Touhig and Lord Ponsonby, raised the issue of the enforcement of fines. The issue of fines enforcement and the vulnerable is important. Fines are a criminal sentence and taxpayers should not be subsidising those who deliberately avoid payment. Under our proposals, if the offender provides accurate means information at the outset of their engagement with the justice system and keeps to the payment plan set out by the court, enforcement action will not take place.
We heard a number of very interesting comments on court broadcasting from the noble Baroness, Lady Kennedy, and the noble and learned Lord, Lord Mackay, who is much influenced by Scottish experience. Again, let us have a good Committee session on that.
On community sentencing, I would make a virtue of the fact that it is only a holding clause at the moment. It is also an opportunity. We heard my noble friend Lady Linklater and the noble Lords, Lord Ramsbotham, Lord Judd and Lord Dholakia, eloquently putting the case for constructive community sentencing. We are in consultation; this is the opportunity to use that consultation to make that case.
On drug-driving, I draw the House's attention to the fact that my noble friend Lord Attlee has been here throughout this debate precisely because he is going to cover those clauses in the Bill. He even whispered to me that if any noble Lords wished to nobble him and talk to him before that, he is ready to receive them.
It would only be fair if I said that we could leave other matters to Committee. I understand the concerns expressed by the noble Baroness, Lady Smith, and the noble Lord, Lord Judd, about family visa cases and, again, we will make our case in Committee.
On the timetable that the noble Lord, Lord Elystan-Morgan, asked about, I am afraid that I cannot help. The Bill will be the first steps in the reform of the family court. There are significant changes in store that will take some time to implement, so I cannot at this time give a timetable, but we will do so when we are able.
The noble Lord, Lord Henley, and I look forward to exploring these and other issues in Committee. I believe that this Bill will greatly enhance the national response to serious and organised crime while delivering a swift, more transparent and effective courts and tribunals system. I warmly commend it to the House.
Bill read a second time and committed to a Committee of the Whole House.