My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.--(Lord Bassam of Brighton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD CHANCELLOR in the Chair.]

Schedule 4 [Meaning of "offence against a child"]:

moved Amendment No. 82:

Page 54, line 22, at end insert--

("( ) an offence under section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of child);").

Before turning to the substance of the technical Amendment in front of us, I want briefly to mention that earlier this week I placed draft copies of the guidance for Part II of the Bill in the Library of the House. I must stress that this is a preliminary draft and at this stage we are merely seeking comments on it from a range of organisations. It is in no way, shape or form a finished document.

I am grateful to the Minister for giving way. I was not aware of that and wondered whether other Members of the Committee were aware of it.

The purpose of my making these simple observations at the Dispatch Box today is to ensure that everyone is on notice of the fact. I apologise that the noble Baroness was not previously aware of it but I am making it plain to the Committee today that we have taken this important step.

I am making the draft available now so as to provide an indication of how the scheme might work in practice. I hope that this will help to inform our consideration of this part of the Bill and also to ensure that the guidance reflects the intentions of both this House and the other place for the operation of the scheme.

The Government have tabled Amendment No. 82 to Schedule 4 which sets out the definition of an offence against a child and thereby serves to identify those who should be disqualified from working with children. The Government's technical amendment follows the proposed increased penalty for the possession of child pornography. The amendment ensures that those who receive a sentence of 12 months or more for possession of indecent photographs of a child will be disqualified from working with children under Part II of the Bill. I beg to move.

I do not believe that I am the only Member of the Committee who is rather dismayed by the Minister's remarks. If the intention of placing a document in the Library of the House is to inform debate on the issue, none of us knew about it until this moment. We have had no opportunity to read the document that has been placed in the library and debate on this part of the Bill will be complete by the end of today.

I undertook to place a copy of the guidance in the Library of the House at the earliest possible moment so that debate at later stages of the Bill would be more complete. I raise the matter this afternoon as a matter of courtesy to the Committee. I apologise for the fact that the noble Baroness has not had sight of the document. However, we undertook to ensure that the document would be placed in the library of the House at the earliest possible opportunity. We believe that to make available a copy of this document, which I stress is in draft form, at the earliest possible opportunity is in the interests of everyone and ensures that this piece of legislation is effectively thought through and that guidance upon it is well considered.

Before the noble Lord sits down, perhaps he can clarify one matter. What is the guidance to or for?

The guidance which relates to Part II of the Bill is a preliminary draft, not a finished document. It is hoped that it will enable people to have a better understanding of the proposed penalties for possession of child pornography. One would have thought that that would be a helpful step to take. I hope that the noble Lord finds the document a constructive and helpful read.

My point is that it would have been helpful if Members of the Committee had been able to see it when it was deposited. Can the Minister tell the Committee when the document was deposited and why only now noble Lords are informed that it is in the Library?

I said in an earlier response that we placed the guidance in the Library earlier this week. I shall try to ensure that the noble Baroness is made more precisely aware of when that occurred. I am informed that it took place on Monday.

I do not want to prolong the debate, but I believe that to be outrageous.

Not having seen the guidance or been aware that any had been produced, I must speak without the benefit of it. However, I support the Amendment in principle. There are two reasons why pornographic photographs are very damaging. First, there is damage to the child itself when the photographs are taken; secondly, there is a tendency for pornographic photographs to stimulate fantasies. That leads adults with such a tendency to live out those sexual fantasies.

I ask the Government to define more closely what they mean by "indecent photographs of a child". For example, in one case reported in the press, Boots the Chemist was asked by a perfectly innocent person to develop photographs of his granddaughter sitting in the bath. The matter was reported to the police. The man was accused of being a paedophile and a very great deal of trouble and unfairness ensued. Can the Minister give an assurance that either in these guidelines or at some future stage there will be an opportunity to define the nature and character of "indecent photographs"?

We dealt with the first part of the Committee stage as early as this week. At that time the Minister did not mention that the draft document would be placed in the library. We have no difficulty in supporting this measure. However, in matters of this nature which have a direct bearing on the point, the Committee should know precisely what is available. As the Minister is used to sending so many letters to noble Lords on both sides of the Chamber, it would not have been out of place had he had the courtesy to send the document to us. If so, we would have been better informed and been able to contribute more positively to this debate.

I am grateful for the interventions on this part of the legislation. This guidance is related to how we expect the provisions in Part II of the Bill to work in practice in relation to the disqualification of unsuitable people from work. The guidance is intended to inform the police, the Probation Service and voluntary organisations. We intend to go out to consultation on the contents of the guidance and we have simply shared it with the Committee as a courtesy. If some Members of the Committee regard my failure to mention it earlier as a discourtesy I apologise unreservedly. As the noble Lord, Lord Dholakia, observes, on many occasions I have undertaken to keep noble Lords informed at every stage of the process on which we are embarked. I apologise if some Members of the Committee feel slighted by this. I believed that I should raise this with the Committee this afternoon as a matter of courtesy. Although I do not believe that it would have had a direct bearing on the content of our debates this afternoon, on reflection perhaps it would have been more helpful if the Committee had been forewarned of its appearance.

We are pleased that we have produced the guidance as early as we have. It was completed in first draft form only at the end of last week. I am grateful for the forbearance of the Committee in this matter.

I cannot claim to be totally satisfied by the noble Lord's response. This Committee sat on Monday. Was the Minister aware that the document was to be placed in the library on Monday? If not, why not? He should have been aware of it. If he was aware of it, it would have been courteous had we been told that it was in the Library on Monday, and even more so if the Minister had taken the advice of the noble Lord, Lord Dholakia, and given Members of the Committee copies of the guidance.

The noble Lord made a baffling observation. He said that it did not have a direct bearing on our debates today. If the guidance is an explanatory note on Part II it will have a direct bearing on today's debate. This is a wholly unsatisfactory state of affairs.

I always try to be helpful on these occasions. I shall come to the point raised by the noble Baroness in due course. It is worth pointing out that this part of the Bill was not reached on Monday. We were then busy with earlier parts of the legislation to which we gave careful consideration. I was not aware on Monday that the guidance was to be placed in the library. I was made aware of that yesterday when I worked through the papers. We need to focus on what is before us this afternoon. This is simply a technical and, I believe, uncontroversial Amendment. I had not predicted that advice to the Committee about something that we believed was constructive would create such interest and concern in the noble Baroness. I apologise if Members of the Committee feel slighted in any way, which was not my intention. At all times my intention is to be helpful and to have worthwhile and constructive debates on important issues of the day.

In view of the comments that have been expressed with such strength from around the Committee, does the Minister agree that the Amendment has merit but that it has been impossible to discuss it now because the draft of the guidelines has become available only very late in the day? Perhaps the Minister will consider withdrawing the amendment and bringing it back on Report when everyone will have had a chance to think about it.

When I was in Opposition we did not get guidelines during the passage of a Bill. I should like to pray in aid the support of the noble Lord, Lord Harris of Greenwich, in relation to the Police Act 1996 and in relation to the Environment Act 1995. Those were large and important Acts. We did not get guidelines until after the Bill had passed through all stages of the House. I think that the Committee is lucky to have even draft guidelines which are available in the Library.

In response to the remarks of the noble Baroness, Lady Hilton, the noble Baroness will know-- certainly the Minister will know--of the difficulty of technical people in the background, the officials, the counsel and all the people involved in drafting guidelines. A Minister can only do his or her best to press for guidelines. I do not think there is a Minister on either side of the House who does not do his or her best in the backroom to press for guidance, because it is helpful to the Committee. I can honestly say, with hand on heart, that during the nine years I was a Minister that, if guidance existed, I certainly did not wait until the next Committee day to tell Members that it had been placed in the library some days before.

More is being made of this matter than is necessary. I certainly am not inclined to withdraw the Amendment as it is a technical amendment. It sets out a definition of an offence against a child. The guidance is guidance. It is there for our information. If Members of the Committee feel that it is important to have a debate on that, no doubt the issue can be raised again on Report. The Bill makes perfect sense without the guidance, as does the amendment. The guidance is for those working in the childcare sector. That is where it is most important. That is where it will be applied. That is where it will be interpreted and understood. At the first opportunity I had I advised the Committee of the presence of the guidance in the Library of the House. I thought that I was being courteous in providing the Committee with the information in a timely way.

Will the Minister take note that his Amendment is not terribly well-drafted. It should be inserted at lines 19 or 20 on page 54 of Schedule 4.

I am grateful to the noble Lord. I shall reflect on his helpful observation.

Will the Minister respond to the noble Lord, Lord Northbourne, and give the Committee an adequate definition of what is an indecent photograph of a child? For those of us who have not been involved in the drafting of the Bill, but have been listening to the discussion with great interest, that seems to be the main point. Is that in the guidance that no one has seen? Is the Minister able to give a definition now or will he wait until Report stage? So far as concerns the Amendment, clearly that is the nub of the matter.

The definition is contained in Schedule 4 to the Bill. The guidance is guidance. It is interpretation, rather like the PACE codes are guidance to the Police and Criminal Evidence Act. When the noble Baroness has had an opportunity to look through the draft guidance I look forward to any constructive observations she has. I shall want to listen to any concerns she has about it. I shall be more than happy to meet and discuss those concerns. But what we are talking about this afternoon is actually what is on the face of the Bill and in the schedules.

Perhaps the Minister would like to know that my noble friend Lady Seccombe has just been to the Library to get a copy of the guidelines for me and it is not there.

I apologise to the Committee for being precipitous previously but I had not realised that the noble Lord, Lord Northbourne, wished to intervene. It is now my duty to put the Question. The Question is that Amendment No. 82 shall be agreed to. As many of that opinion will say, "Content". To the contrary, "Not-Content". I think the Not-Contents have it. Clear the Bar.

Division called.

Tellers for the Contents have not been appointed pursuant to Standing Order No. 54. A Division therefore cannot take place, and I declare that the Not-Contents have it.

moved Amendment No. 83:

Page 55, line 41, at end insert--

("( ) he commits an offence under section 4 of the Misuse of Drugs Act 1971 (restriction on production and supply of controlled drugs) by supplying a controlled drug to a child,").

When this issue was discussed in Another place--

I wonder whether we could have an explanation. A number of my colleagues are still in the Division Lobby where they went as a consequence of the Opposition's action--

Noble Lords:

No!

At least time should be allowed for noble Lords to come back to the Chamber.

I take full responsibility. A second Teller was not appointed on the "Content" side.

When this issue was discussed in Another place the Minister said:

"There can be few incidences of the supply of drugs that are more serious than the supply of drugs to children. That is wicked beyond belief. The hon. Member for Surrey Heath is right to draw attention to the evil that it represents. When there is evidence of the supply of drugs to children, it attracts properly condign and exemplary punishment, and it is right that it should. It is also right that we should take a particularly dim view of those who exploit their position with children to peddle drugs to them. That is a very serious matter and one would expect the law to take it seriously".

It is on the basis of the Minister's own words that I have moved the Amendment today.

In the same debate the Minister said:

"The evidence, which forms the basis for the Bill, is that drug dealers seldom target the under-18s; they have a much more scatter-gun approach and are out to sell drugs to anyone whom they can lure into buying from them. They do not care how old someone is--which is partly where the wickedness lies".--[Official Report, Commons Standing Committee G, 13/4/00; cols. 145-146.]

I agree with the Minister that dealers do not care to whom they sell drugs. As long as they sell them they do not care who is buying them. But to say that they do not target children is monstrous. If we believe the statistics, we see that too many of our children are being supplied with drugs in their communities and at school gates. While they may not be targeted specifically, they are nevertheless being targeted.

We cannot continue to wring our hands about the drug problem among children if we are not prepared to make those who supply the drugs, particularly controlled drugs, pay the price by banning those people from working with children. That is what we are talking about in this amendment. It is about the disqualification order. Anyone who supplies drugs to children should be included in the disqualification order. I beg to move.

On the face of it the Amendment moved by the noble Baroness is attractive. I yield to no one in my determination as a Minister to do all that I can to ensure that we fight the drugs war and the drugs menace. As a parent, as a Minister and as a socially concerned person, I see it as one of the Government's primary responsibilities to do all we can to ensure that we counter the drugs culture and dissuade people from becoming interested in drugs, becoming involved in drugs and becoming drug dealers and drug users.

The supply of drugs to children is an extremely serious offence and should be treated as such. It can result in potentially long-term harm to children, either intentionally or recklessly. However, when you look at the actual facts on drug dealing, the amendment does not have the required impact, even if targeted at those who supply drugs to children. Neither in practical terms nor on an evidence-based approach would it be feasible to include this as an offence that merited disqualification from working with children. The evidence clearly indicates that drug dealers seldom, if ever, target under-18s as such but will supply drugs to those of any age who wish to buy. There is clear agreement across the political divide on that point.

The main group using drugs range from 16 to 29 and it will probably be a matter of chance whether a child figures on any indication of who takes drugs. Because the dealer may well not know the ages involved--if, for example, he is supplying drugs outside a night club--there could be an unacceptable degree of arbitrariness in the application of the disqualification. This question of practicality and arbitrariness is an important one. There are other serious drugs offences, such as possession with intent to supply or conspiracy to supply, which fall into the same area of harm. It would be odd and arbitrary to pick out only one drugs offence in the way envisaged in the amendment. However, the evidence in a case of possession with intent to supply is likely to concern lifestyle, quantity of drugs, equipment, and so on, not the possible identity of the person to whom the drugs would be supplied. For conspiracy to supply it is the agreement, not the actual supply, which would need to be proved. But this offence arguably catches the "bigger" fish.

Moreover, the offence of supply itself does not require any financial element. It would cover teenagers sharing pills even if no money changed hands. Indeed, the evidence is that children are introduced to drugs by their peers, not by older drug dealers, and the dealer allegedly hanging around the school playground is something of a myth. That is well established by the report on drug misuse and the environment produced by the Advisory Council on the Misuse of Drugs in 1998. For the reasons I have given I do not accept the amendment put forward by the noble Baroness despite its apparent attractiveness. I ask her to withdraw the amendment.

The second area of difficulty in including the supply of drugs in the schedule perversely arises from the extremely serious nature of the offence itself and the proper severity with which the courts deal with it. A student selling drugs outside a night club might well, quite properly, be dealt with very severely by the courts but not pose a long-term danger to children such as would merit the disqualification.

For these reasons we do not think it would be right to include this offence as a trigger for the disqualification order. It could not be delivered in practical terms or supported on an evidence-based approach. The practical and legal difficulties which lie behind the rejection of the amendment should in no way be misrepresented as a lack of concern over drug abuse by children or others, or a lack of rigour with those responsible for peddling illegal substances.

We should do all that we possibly can to bring such people to justice. But to include the offences in the list to trigger the ban would not help with that; nor would it serve better to protect children from abuse.

I do not know on which planet the official who wrote that brief for the Minister is living. It would be wrong not to include as a person unfit to work with children someone who supplies controlled drugs to children. The noble Lord referred to the difficulty of identification. That might be used as a defence by a shopkeeper who sells cigarettes to children. Shopkeepers are expected, even though it may be difficult at times, to know who is under and who is over age. A publican is expected by law, though it may be difficult from time to time, to know who is under and who is over age. Why should it be any more difficult for a policeman to know whether drugs have been sold to someone who is or is not under age? In either of those cases, as the noble Lord pointed out, it is an offence. For that reason, someone who supplies controlled drugs to anyone else will be guilty of an offence.

But the other reason given by the noble Lord is completely baffling. He said that someone who supplies drugs outside a nightclub--I do not know why he referred so often to nightclubs; I am much more concerned about what happens outside the school gates or in youth clubs--is committing a very serious offence indeed. While that person may be severely dealt with by the courts for supplying drugs, in particular for supplying them to children, it does not make them fit people to work with children. In opposing my Amendment, I must assume that the noble Lord is saying that a person who supplies drugs to a child can continue to be excluded from an order which prohibits them from working with children. I wonder if the Home Secretary would confirm that to the parents of Leah Betts or to all the other children who, sadly, have suffered from the effects of someone older supplying them with drugs.

I find that quite offensive and I shall return to this matter on another occasion. The noble Lord will have an opportunity to discuss the brief with his officials and perhaps reflect on what he has said. However, I can confirm that I shall certainly return to this issue and at that point I shall seek the opinion of the House.

Before the noble Baroness withdraws her Amendment, perhaps I may offer her my support. A few years ago, Barnardo's produced a report on child prostitution which looked in particular at children between 13 and 15 years of age. They were enticed into prostitution by being given drugs.

Parents of children with drug problems in Glasgow visited us here in the House of Lords. Those parents were desperate because people were giving drugs to their children. This problem is bigger than perhaps the Minister truly realises.

Perhaps I may voice a concern as regards a particular point. It is quite credible to believe that young people are often supplied with drugs by their peers. For that reason, we may encounter a difficulty here, in that young people may be disqualified from working with other young people, perhaps as the result of a minor episode which occurred when they were still rather immature.

The noble Earl, Lord Listowel, makes an important point and I take that on board. Indeed, if one examines the list of offences in the schedule, the same observation could be made about many of them. However, it is my understanding that when a disqualification order is contemplated by the courts, they have the ability to consider exceptional circumstances. It could be that the discretion conferred on the courts to make such a judgment is the best way to deal with that kind of situation.

Furthermore, we have in place revocation procedures whereby people may apply to the tribunal for a revocation order. If we are discussing young people under the age of 18 giving drugs to each other, while that is not something I condone, the period during which they can apply is somewhat shorter than for those who are over 18. The discretion is in place in the Bill as regards the application of a disqualification order and would deal with that point.

I regard this Amendment as extremely important. The supply of drugs to children is the scourge of the age. The problem is so serious that we need to do as much as we can to prevent it. Furthermore, it is serious enough to warrant allowing the Minister time to reflect once again upon it. I shall return to this issue, but if at that stage the Minister is still not minded to accept an amendment along these lines, I shall then seek the opinion of the House. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Clause 26 agreed to.

Clause 27 [Disqualification from working with children: adults]:

moved Amendment No. 84:

Page 12, line 38, leave out ("either") and insert ("one").

In moving Amendment No. 84 I shall speak also to Amendments Nos. 85, 87 and 96. I shall not be moving Amendments Nos. 86 and 88 and I shall explain why in a moment.

Amendments Nos. 84 and 96 are consequential. Perhaps I may therefore move on to the core of this grouping; namely, Amendments Nos. 85 and 87. They introduce additional conditions which, if met, will result in disqualification from working with children.

Amendment No. 85 invites the court to make a determination, having regard to all the circumstances, that a convicted person over the age of 18 is likely or not, as the case may be, to commit a further offence. Amendment No. 85 applies the same condition to a convicted person who is under the age of 16.

As I have just said, I shall not be moving Amendments Nos. 86 and 88 on the ground that, on reflection, the word "further" in Clause 27(5) and 28(4) have the same effect as my amendments would have had. When he comes to reply, I should be grateful if the Minister could confirm my understanding of these amendments. I apologise for that. I need to table these amendments myself and, since I am not legally qualified, I do not always get it right. I beg to move.

These amendments raise an important issue, crucial to the balance of the scheme in Part II of the Bill. Perhaps I may deal with them carefully and in some detail.

The Government's aim here is to ensure that an effective scheme to protect children is put in place. As currently drafted, the provisions seek to provide the strongest scheme possible but at the same time to ensure that the entire scheme is properly justified by the need to protect children.

There are three main reasons why we do not think it right to adopt the approach of allowing the courts to disqualify from working with children anyone who commits one of the trigger offences listed in Schedule 4. First, the disqualification has a serious impact on an offender's private life. It must be imposed only where clearly justified by the underlying criminal offence. It is no substitute for the imposition of lengthy custodial sentences where these are warranted by the offence and necessary for child protection. That is a vital point.

To make the disqualification available on a discretionary basis might encourage sentencers who are wavering on the issue of custody not to impose it on the basis that the disqualification would be an adequate safeguard. We believe that this would be a retrograde step.

I should also draw the attention of noble Lords to the express provision contained in Section 2 of the Criminal Justice Act 1991, which has now been consolidated in the Powers of Criminal Courts (Sentencing) Act 2000, on custodial sentences. This is that the sentence shall be:

"where an offence is a violent or sexual offence, of such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender".

That is clear and unequivocal. Where the individual poses a risk to children, his sentence should reflect that. I should note in this context that if there are, for example, compassionate circumstances which make a prison sentence unsuitable, a suspended sentence will also attract the disqualification order.

Secondly, it is essential that the disqualification is imposed automatically, unless there are very exceptional circumstances, on all serious offenders against children. This adds enormously to the strength and coherence of the scheme. The requirement of a penalty of 12 months' imprisonment as a trigger serves to identify an offender for whom an automatic ban is justified. Underneath this level of penalty, there would have to be unfettered discretion for the courts, which would need to consider the risk likely on an individual case basis.

The discretion envisaged would serve only to dilute and weaken the scheme. It would bring its underlying principle in doubt. It would also add to its complexity, administration, bureaucracy and, inevitably, to its room for error.

I should like to make one further point in this respect. We regard it as essential to get the scheme off to a strong start. We should like disqualification to be seen as inevitable for adult offenders when the conditions are met--which is similar to registration under the Sex Offenders Act--although its severe nature makes the need for some residual discretion important. But that is not to say that, when the scheme has bedded in, the issue could not be revisited if the evidence is that this would add to child protection. As I said earlier, at present such a step would weaken the protections, but obviously this is something we properly need to keep under close review

Thirdly, we believe that it is essential for the disqualification order to be awarded at Crown Court level or higher. Magistrates are not trained or qualified to make such decisions and they would be inappropriate people to award a lifetime ban. The use of 12 months imprisonment as a trigger serves to set the ban firmly at Crown Court level for cases either heard at Crown Court or referred there for sentence.

Of course, award of the ban could still be restricted to Crown Court level with lower penalties allowed. However, this would mean either that the same case could be liable to fundamentally different disposal depending on the mode of trial, even if the primary sentence was the same, or that provision would have to be made to refer large numbers of cases to the Crown Court for sentence to consider the ban. This could lead to great additional costs in time and money to the criminal justice system.

I should also draw attention to the substantial safeguards which exist against those receiving lesser penalties for the criminal offences in Schedule 4, or who are convicted for offences falling outside the schedule, to stop them working with children. First, once the criminal records bureau is up and running, if offenders seek any such work their full criminal records, including spent convictions and cautions, should be available if a check is made countersigned by a registered body. Secondly, if they were already working with children in areas covered by the schemes run by the Department of Health or the Department for Education and Employment and committed a criminal offence with a lesser penalty, they could nevertheless be banned.

Of course there will be cases--such as that of Gary Glitter--in which the immediate reaction might be, "He should be banned", but the ban is no substitute for the proper prison sentence if risk to children is involved. Moreover, the disqualification order should be seen as part of a whole network of child protection measures and as only one part of what should be an increased culture of vigilance by all organisations involved in working with children, parents and so on.

I must stress that this a difficult, complex and tricky area. While we do not wish to weaken the disqualification scheme, we appreciate that there is a need for complementary measures to deal with those who fall outside the scheme but who may nevertheless, on the basis of a detailed assessment of their individual cases, pose a risk to children. This was debated at great length in Another place and we listened very carefully to the concerns raised there. This is an area where we are all working to a common goal--the protection of children.

We have already in place the sex offender order which can be imposed on a sex offender after he or she is sentenced if there is a subsequent cause for concern that the public is at risk of serious harm from them. But this cannot be imposed at the point of sentence, even if there is already evidence of such risk.

To meet concerns over cases where there is a clear need for additional public protection evident at the point of sentence, we are bringing forward a new sex offender restraining order, to be available to senior courts at the time of sentence. We will discuss this in detail later in our consideration of the Bill, but it is perhaps worth saying now that it would allow a senior court, if the circumstances--particularly the need to protect the public--fully justified it, to impose the equivalent of a disqualification order at the point of sentence on any sex offender receiving a custodial sentence. This would be imposed on the basis of the merits of the individual case. This should go a long way towards answering concerns about any apparent rigidity of the present scheme and allow for flexibility without the dilution which would result from the noble Baroness's amendments.

The noble Baroness asked me to confirm her interpretation of her own wording. I am happy to do so. But, for the reasons I have outlined, I suggest to the noble Baroness that it may be advisable for her to withdraw her Amendment.

I am grateful to the Minister for such a detailed answer. However, it has unnecessarily complicated the issue.

My amendments concern a disqualification order for those people who are already convicted in court of an offence against a child but who do not qualify for a disqualification order. One has to think only of the awful crimes committed by Gary Glitter, who traded in child pornography. He received a sentence of less than 12 months and, because of that, he did not fall into the category of qualifying for a disqualification order. I am not saying that this would apply to him, but if the court, having regard to all the circumstances, believed that someone with a similar conviction was likely to offend again, it is right that he or she should be deemed unfit to work with children.

My Amendment is concerned with whether people are suitable or not to work with children. If a person qualifies for a disqualification order--a matter which was referred to in at least two or three pages of the Minister's speech--there is no problem; they qualify and that is an end to it. But it is different where an offender does not qualify for an order--that is, where someone is sentenced for something very serious but receives less than 12 months.

I am not a magistrate, but my magistrate friends know that some pretty serious offences go through the courts and that the individuals receive sentences of less than 12 months. I can remember going into Lincoln prison. The governor was showing me around and pointed to someone who was due to be released the following week--he was serving a six months sentence--and said, "I know that this man will come back. It is a dead cert that he will come back".

All I am saying is that in circumstances where the court believes that a person is likely to commit a further offence against a child, that person should qualify for a disqualification order that deems him unsuitable to work with children. That is all the amendment seeks to do.

I am grateful to the noble Baroness for her further clarification and explanation. I appreciate the arguments she is putting forward--I shall not beat about the bush on that--but I had hoped she would pick up the point that I made earlier that this is an issue which we may wish to revisit at a later stage, perhaps when we see the scheme and system properly kick in. At this stage we believe that we have got the measure about right. It is important that we try to get it right at the outset. There will be scope for further review.

It is perhaps worth making the additional point that disqualification is not a substitute for a proper sentence. The unfortunate impact of the noble Baroness's proposal is that it might undermine proper sentencing. We need to see the scheme working and to make a judgment at a later stage. I do not rule out that at some later stage we may have to revisit the issue.

I am not sure that the Minister understands the Bill. I am not talking about a substitute for a proper sentence; I am talking about a person who has been given a proper sentence in the court. I am talking about a person who has committed a crime against a child and who has received a sentence which does not qualify him for a disqualification order. If the court, having regard to all the circumstances--which is the wording of my Amendment--believe that that person is likely to commit a further crime against a child, he should be deemed unfit to work with children and thereby qualify for a disqualification order.

I can only conclude from what the Minister said that the Government feel that somebody who is convicted of a crime against a child but who, as the Bill is set out, does not qualify for a disqualification order, nevertheless can be deemed fit to work with children. I beg leave to seek the opinion of the House.

On Question, Whether the said amendment (No. 84) shall be agreed to?

Their Lordships divided: Contents, 73; Not-Contents, 104.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 85 and 86 not moved.]

Clause 27 agreed to.

Clause 28 [Disqualification from working with children: juveniles]:

[Amendments Nos. 87 and 88 not moved.]

Clause 28 agreed to.

Clause 29 [Sections 27 and 28: supplemental]:

moved Amendment No. 89:

Page 13, line 39, leave out ("for a term of 12 months or more").

In moving this Amendment, I shall speak also to Amendments Nos. 90 to 93. The amendment relates to another very serious matter and follows on the previous amendment. It is important as it involves the protection of children.

As a magistrate, I was always advised that a sentence of imprisonment of any length cannot be imposed unless the Bench believes that there is no other appropriate way of dealing with it. It follows that only serious offences result in imprisonment of any duration.

Twelve months is a lengthy sentence in anyone's view, and to restrict disqualification to that period is not acceptable. It would not, and indeed did not, catch cases such as the former drummer of the Bay City Rollers or Gary Glitter. Many members of the public believe that such offenders should be disqualified from working with children, and we agree with them.

We appreciate that disqualification is a consequence of a serious offence--a conviction--as the Minister of State said in Another place. However, we on these Benches believe that the protection of children is paramount. I beg to move.

This set of amendments addresses precisely the same arguments as those just discussed. Therefore, it is not necessary for me to rehearse all of them again. There are three main reasons why we do not think it right to adopt the approach of allowing the courts to disqualify anyone who commits one of the trigger offences in Schedule 4 from working with children.

As I believe is commonly accepted between us, disqualification has a serious impact on an offender's life. It should only be imposed where it is clearly justified by the underlying criminal offence. It is also essential for the disqualification to be imposed automatically on all serious offenders against children. As I said earlier, we believe that it is essential for the disqualification order to be awarded at the right level of court as regards these more serious offences.

We are entirely at one across the Dispatch Boxes on the serious nature of these offences. As I said in the earlier debate, this is a matter that we shall continue to keep under review; indeed, we do so at all times. However, we need to have a provision that is both proportionate and workable. We believe that the current scheme qualifies on both those points. For those reasons, I urge the Committee to reject this set of amendments.

The Minister's response is most disappointing. The situation whereby people like Gary Glitter would be able to work with children seems to me to be quite wrong. I note that the Minister said that the matter will be kept under review. It is true that an automatic disqualification in such circumstances would be in force for a certain time, but the convicted person could always make an application to the court to have it removed if he had not offended for a period of time.

We should be concentrating on the protection of children. Surely it is the job of this Chamber to ensure that children are fully protected. I shall read the Minister's response in Hansard and discuss it with my colleagues. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 90 to 93 not moved.]

moved Amendment No. 94:

Page 14, line 10, leave out ("or guardianship").

This Amendment relates to a minor technical change to Clause 29. A guardianship order is properly defined in subsection (1) at line 35 on page 13. The reference to a "guardianship order" on page l4 at line 10 is, therefore, superfluous. We believe that removing that reference and adding "guardianship order" (as defined previously in the clause) as a separate meaning of a "qualifying sentence" will solve the problem. For those reasons, I ask the Committee to accept this small, technical government amendment. I beg to move.

On Question, amendment agreed to.

moved Amendment No. 95:

Page 14, line 11, at end insert ("or

( ) a guardianship order,").

On Question, amendment agreed to.

Clause 29 agreed to.

Clause 30 [Appeals]:

[Amendment No. 96 not moved.]

Clause 30 agreed to.

Clause 31 agreed to.

moved Amendment No. 97:

After Clause 31, insert the following new Clause--

:TITLE3:REINSTATEMENT OF DISQUALIFICATION ORDER

(" .--(1) This section applies where the Tribunal has directed under the provisions of section 31 that a disqualification order is to cease to have effect in respect of an individual.

(2) A relevant person may at any time apply to the Tribunal for the reinstatement of the disqualification order.

(3) An application under subsection (2) may only be granted if the Tribunal is satisfied, having regard to all the circumstances, that it is likely that the individual will commit a further offence against a child.

(4) Where the Tribunal reinstates an order under this section, it must state its reasons for doing so and cause those reasons to be included in the record of the proceedings.

(5) In this section, "relevant person" means--

(a) the Secretary of State;

(b) a superintendent of police;

(c) the director of social services of a local authority.").

This Amendment will test how serious the Government are about disqualification orders and about ensuring that people who are unsuitable to work with children are prevented from doing so. The amendment would allow the Secretary of State, a superintendent of police or the director of social services to seek a reinstatement of a disqualification order from a tribunal if it is believed that, following revocation of a disqualification order, a person poses a further threat.

The introduction of disqualification orders is welcomed. However, where a tribunal under the Clause 30 powers directs that a disqualification order ceases to exist and the individual concerned subsequently displays threatening behaviour, it is also important that the tribunal should be free to reinstate that order so as to protect children. At that point, the person will have spent his sentence and, therefore, he will have to commit another crime before the courts can intervene for a second time.

The amendment would allow the courts to make a determination that such is the behaviour of someone who has had an order revoked that it qualifies him for reinstatement of the order. It is a reserve power and one that we all hope will be used infrequently. Nevertheless, these are potentially dangerous situations. We believe that such a provision would prove to be a serious child protection measure. I beg to move.

I believe this Amendment to be most sensible for the simple reason that we always have this difficulty of the police saying, "We can't do anything because no offence has been committed". If used with extreme discretion, such a power would be useful.

I am intrigued by the noble Baroness's remarks. However, the record of this Government in trying to sort out what was something of a hotchpotch of legislation in this field of protecting children is of the highest order. The measures that we have brought forward have now begun to provide a consistent and coherent framework for protecting children; and, indeed, for driving home that important range of arguments, as well as ensuring that the public are aware of the importance of protecting children. Although there may have been some very good intentions in the area prior to this Government coming into office, coherent provisions such as those contained in the framework of this Bill were not available.

This Amendment, a proposed new Clause, would allow a disqualification order that had been removed by a tribunal to be reinstated by it. As the noble Baroness said, it would allow the Secretary of State, a superintendent of police or a director of social services to apply to the tribunal for the order to be reinstated.

The review process is strict. Reinstatement of the ban would constitute an additional penalty. The amendment adds nothing to the force and rigour of any of these processes and could in some circumstances undermine them. I fully understand why the noble Baroness moved the amendment. As I have argued, the Government share, and have done much to champion, the need to protect children and to ensure that those who should be disqualified remain so if any risk to children remains.

It is for that reason that once a person has been disqualified the process is heavily weighted so that he or she can achieve a lifting of the ban only if they can positively satisfy the tribunal that they no longer pose a risk to children. This is a strong and stern test and a substantial safeguard within the scheme. To allow the tribunal to reimpose the ban would not add to the safeguards for children. Moreover, it could potentially weaken the scheme. I am sure that that is not the noble Baroness's intention.

The amendment properly sets a high criterion for reimposition of the ban. Such a high criterion would indeed be necessary in the circumstances envisaged. However, the reinstated disqualification would appear to be a new penalty and Article 6(2) protections under the Human Rights Act 1998 and the European Convention on Human Rights seem properly justified.

But this statutory route to reimpose the ban could limit the ability to reimpose the ban through other routes such as by the Secretary of State. This is because the high criterion, which would rightly be essential for the tribunal to reinstate the disqualification order, might be read across to the other ways in which the person might be banned a second time without recourse to the reimposition of the order.

It may be helpful if I set out what these other ways would be. If a person from whom a disqualification order has been lifted gives further cause for concern there are three possible avenues of action. First, if he is working with children in the areas covered by education or health department bans, a ban could be reimposed by the same route as before if his conduct was sufficiently serious to merit his dismissal or removal from work with children.

Secondly, if he is a sex offender and begins to fall into his former ways, a sex offender order could be applied for; this could include a ban on working with children. Finally, if he were a violent offender, the precursor activity might itself be criminal; alternatively, an anti-social behaviour order might be sought.

I am grateful to the Minister for giving way. Do the three examples he has mentioned pertain if a person's sentence is completely spent?

The answer is "Yes". Thus we see no need for the new Clause proposed by the noble Baroness. As I said, by setting in statute such a high criterion for reimposition it could make protection more difficult by these other routes.

I fully understand the noble Baroness's reasons for proposing the new clause. However, we cannot accept it. We believe that we have a robust framework. I hope that the noble Baroness will withdraw the Amendment.

Before I do so, I press the noble Lord further. A person may have a completely spent sentence but a social services director, a superintendent of police or the Secretary of State may believe that that person is displaying behaviour that gives cause for concern. Under the terms of my Amendment they would apply to the tribunal and the latter would decide whether the person constituted a threat. I believe that the noble Lord is saying that a ban can be imposed on a person whose sentence is completely spent without that person attending a court proceeding. On what basis could a court proceeding take place if the person concerned had not committed an offence?

I confirm that it would be possible to apply a ban.

But what procedure would be invoked and on what basis would that person be further punished? The noble Lord states that my Amendment constitutes a further punishment. However, he has read out three further punishments that could be imposed on an innocent person in the sense that he or she has a spent sentence. Will the noble Lord explain why my amendment constitutes a punishment and is unacceptable when he has given three examples of punishment for a person who is innocent at that point?

The person may be innocent at that point but, as the noble Baroness said, they may well exhibit peculiar behaviour. Sex offender orders and anti-social behaviour orders are awarded by the civil court on the grounds of new risk. That is how the scheme works.

I believe that we have a perfectly practical and workable method of dealing with this matter. The key point is that the tribunal should only ever lift a disqualification order in exceptional circumstances. Being able to reimpose it might make tribunals more generous in that they might consider they could afford to take risks. However, we do not want them to take risks. They must be satisfied that a person is positively suitable to work with children. That is an important part of the way in which our scheme works.

I need to press the noble Lord further. He says that a sex offender order can be imposed on someone with a spent conviction who is at that point innocent. All I am saying is that they should be deemed unsuitable to work with children. The noble Lord said that one cannot impose a disqualification order on such people--in other words, reimpose a revoked order--but one can impose a sex offender order. Will the noble Lord explain why they can continue to work with children in those circumstances?

We are trying to create a coherent system. I believe that the noble Baroness does not understand the way in which we see the system working. Perhaps that is because I have not explained it as well as I could, or perhaps the noble Baroness's understanding is incomplete. I believe that we have designed a robust and effective system. I suggest that the way in which the noble Baroness seeks to reintroduce a disqualification order is not workable. We want to see a workable scheme. I believe that the scheme we have offered is workable. I believe that the explanation I have given for ways in which a ban could be reintroduced is coherent. We do not think that it is necessary to do what the noble Baroness seeks. In any event, we feel that a disqualification order should be lifted and set aside only in exceptional circumstances. I hope that the noble Baroness will read what I have said and reflect further.

The noble Lord just mentioned a ban being reintroduced. I am suggesting that a ban should be reintroduced where someone is displaying the behaviour we have mentioned. If the noble Lord is saying that there is a system for reintroducing a ban, I should like to know what it is. I understand that the noble Lord is saying the following. Someone who has committed a serious offence against a child is convicted and a disqualification order is imposed. At some point a tribunal has deemed that that person is reformed and fit to work with children. Subsequently, a director of social services, a superintendent of police or the Secretary of State have reason to believe that the person is beginning to pose a threat to the public. They believe that a reinstatement of the order would be appropriate. I believe that the noble Lord is saying that it would not be appropriate and that the person in question could continue to be deemed fit to work with children. That is unacceptable. I shall return to this matter. If the noble Lord is not prepared to reflect further on the matter at the next stage of the Bill I shall seek the opinion of the Chamber.

Perhaps I may clarify the position. The behaviour that the noble Baroness describes is precisely the behaviour which would lead to reoffending. Then the situation would revert to where it was before.

The noble Baroness needs to reflect carefully on the Amendment. I think that we are trying to achieve the same objective: to ensure that people who are unsuitable to work with children do not work with them in the future. That is why we have such a hard-nosed and rigorous disqualification scheme, and I think that in very few cases would anyone manage to achieve a revocation of that disqualification. That is the important point on which to focus.

This is my final word on the matter. The noble Lord has made my case. Yes, of course, that kind of behaviour leads to re-offending. My Amendment is about preventing re-offending, not leading to it. I am in the business of preventing children being at risk. The noble Lord says that the ban cannot be reinstated and that the person displaying such behaviour can continue to work with children. That is unacceptable. However, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 [Conditions for application under section 31]:

moved Amendment No. 98:

Page 15, line 40, leave out ("he is released") and insert ("the sentence passed on him expires").

Under Clause 31 a person who has been disqualified from working with children may apply to a tribunal for a review of the order. Clause 32 states that for those under the age of 18 this could be made five years after release from custody, and for those over 18 10 years after release from custody.

The Amendment proposes that the application should not be made five or 10 years from release from custody but from the time the sentence expires. While it is for the tribunal to decide whether an application can be considered, the tribunal will act in the terms of legislation as well as on its own guidelines. But it would be difficult, if the legislation allows for applications on the basis of Clause 32, for this to be rejected without other good reasons.

The time that an offender is released from custody can depend on a number of factors. Some will have quite short terms, in particular if the Home Office detention curfew scheme is imposed. That would mean that those could become an option. We feel that it is better to strengthen the Bill now to make sure that the timescales are those of the full term of the sentence before the disqualification application can be made. I beg to move.

As I have said several times today, the Government bow to no one to explain and make clear their concern to ensure that those who are disqualified should remain so, if there is any risk to children. It is for that reason that once a person has been disqualified the process is heavily weighted so that he can achieve a lifting of the ban only if he can positively satisfy the tribunal that there is no longer a risk for children.

I wish to reassure noble Lords that the review process is very rigorous.

Perhaps the Minister is reading from the wrong brief. I am raising the question of when an application can be made to a tribunal for disqualification, not for review.

I thought that we were discussing Amendment No. 98.

It is the application for the review of a disqualification order.

I apologise for the delay. The reason for the present wording is in order to consider whether or not this leave should be granted. On any demonstration of suitability, the tribunal must consider the individual's record in the community. There is no value in considering the period when an offender might have been imprisoned, especially when one considers that many sex offenders in prison are exemplary prisoners. It is their record in the community that we feel must count. With her experience in these matters, I am sure the noble Baroness will understand that. Equally, there is no reason to limit the period to exclude the time the offender may spend, for example, on supervision. This will be time in the community and should be counted as such. However, the tribunal might be aware that the offender might be on his best behaviour during such a time and might take this into account.

The purpose of the disqualification order is not primarily to punish the individual but, as we all accept, to protect children. For that reason there is no requirement to tie the date on which an offender is able first to approach the tribunal to the date on which their sentence expires. The relevant period is from the date when they were first released into the community. If during that period they have returned to prison for a different or even similar offence, or perhaps had been recalled for breach of licence conditions, those circumstances would be extremely telling, perhaps even conclusive in the deliberations of the tribunal.

A further difficulty with the Amendment would be that some offenders who receive life sentences could never be considered for review. There could be cases where a review for someone serving a mandatory life sentence was appropriate and it would be wrong not to allow this possibility, remote thought it may be. For those reasons, we do not feel able to accept these amendments.

Can the Minister tell me the likely earliest possible date on which an offender could make an application for revocation?

I shall have to take advice on that point. I shall be happy to share that information with the noble Baroness. I am advised that it would be 10 years after release for an adult.

I think that we are getting the Minister into a muddle. I had understood that. My proposal--the Minister rejected it--is that the revocation, which could not be applied for until five or 10 years respectively, should be after the expiry of the sentence not after the end of the time of the sentence served. I believe that that has been rejected. I beg leave to withdraw the Amendment and will consider our position after reading Hansard.

Amendment, by leave, withdrawn.

Clause 32 agreed to.

Clause 33 [Persons disqualified from working with children: offences]:

moved Amendment No. 99:

Page 16, line 25, at end insert ("or performs on a casual basis (whether for financial reward or not) any functions which would constitute work in a regulated position").

The Amendment would ensure that the Bill encompasses casual work--the work that people undertake in a voluntary sense which brings them into close contact with children. This work could be paid or unpaid and would cover youth groups, adventure playgrounds, church groups and so on. The amendment would toughen the existing provision, making it clear that there are no doors open to disqualified people.

As has been well recognised in previous discussions on the issue, child sex offenders are devious and cunning. The possibility of having any access to children in the groups and organisations that I have mentioned would present great opportunities to them. Further jobs could be added to the list, such as child minding and other situations in which children need to be looked after.

The Clause is deficient because it does not cover those who seek casual labour. The amendment is designed to remedy that. I beg to move.

Like the noble Baroness, we are determined to ensure that individuals who pose a risk to children are prevented from obtaining positions in which they are able to prey upon children. I fully understand the noble Baroness's point that we are dealing with devious and sly criminals. That is why we have sought to ensure that disqualified individuals are banned from a comprehensive range of defined regulated positions. We are seeking to establish a new offence as a powerful disincentive to breaching a disqualification order.

The definitions in Clause 37 cover work of any kind, whether paid or unpaid. Any casual work that falls within the regulated positions defined in Clause 34 will be covered. I hope that the noble Baroness will accept my assurance that there is no need for the Amendment.

It has been suggested that we should go further and undermine the concept that such work should be regular. The noble Baroness may want to include truly one-off casual work, such as a builder who would normally work on any number of sites being asked on a one-off basis to mend the roof of a school. We believe that that would go beyond what is justified by the overriding need to protect children.

There are a number of factors to be taken into account in ensuring the protection of children. Not least is the need to ensure that offenders are not completely ostracised from society and treated as utter pariahs. Part of that consideration requires that the disqualification order does not prohibit them from taking on work that would not cause a potential risk to children. We think that the current definition of working with children, using the framework of regulated positions, will achieve the right balance. It will prevent disqualified individuals obtaining work that would give them the access to children that might enable them to abuse a child in any sense. The key consideration is whether the normal duties of the individual provide him with the kind of access to, or authority over, children that the Bill is designed to preclude.

The current definition will catch any casual worker who comes into regular contact with children. For example, it will catch an individual who offers his services to a catering firm one of whose primary functions is the provision of meals in schools. However, it will deliberately not catch the street cleaner who occasionally tidies up a public park, unless the normal duties of the post involve regular work in or around areas set aside for the use of toddlers or small children.

The current definition provides sufficient protection against those who might be a threat to children, but it rightly does not prevent them from taking work of any sort that might occasionally bring them into contact with children, but would not give them the sort of access that would pose a threat to children's safety.

The amendment might make an unreasonably vast sector of the jobs market out of bounds to the disqualified individual. We see no great merit in that, although we fully share the concern to provide the maximum possible protection to children. We believe that our definition achieves that.

I thought that the noble Baroness was talking not just about casual work, but about work for which no payment is made. Will that be covered?

I thought that I had made it clear that the work would be caught whether it was paid or unpaid.

I was interested to hear the Minister's definitions of those seeking casual labour. He referred to catering work and street cleaners. That is not what I was getting at. Such jobs would be casual labour, but people would probably not come into direct contact with children in those circumstances. We are more concerned about voluntary organisations and groups in which people come into direct contact with children. I gave some examples, including youth groups, adventure playgrounds, Church groups or scouts. There are many areas in which people can take up work for a short period.

I understand that. I thought that I had made that plain. I am more than happy to take further advice. I believe that the Bill covers those positions, but I shall be happy to clarify the matter further at a later stage if the noble Baroness withdraws her Amendment.

I should be grateful if the Minister would clarify the situation. In the meantime, we shall revisit our legal advice, which is that such positions are not covered. Perhaps we can come to an amicable conclusion between us. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 100:

Page 16, line 28, at end insert (", or

(b) fails to remove such an individual from such work.").

This is a minor Amendment that closes a potential loophole in the offences provided in Part II. Clause 33 provides two new offences. The first occurs when a disqualified individual knowingly applies for, offers to do, accepts or does any work in a regulated position, as defined in Clause 34. The second offence occurs when someone knowingly offers work in a regulated position to or procures such work for a disqualified individual.

It is conceivable that someone already working in a regulated position could be disqualified. It would obviously be an offence for them to work in such a position again, but the Bill would not currently make it an offence for someone knowingly to hold open a post or keep that disqualified person in employment. Strictly speaking, to hold open such work or otherwise to ensure that work is available is neither to offer nor to procure work in a regulated position.

We intend to ensure that someone who is identified as a risk to children is prevented from being in a position to cause further harm and is removed from any such position they already hold. Such an individual forfeits the right to hold positions that grant them the access to children that might give an opportunity for abuse of any kind. A disqualification order would justify the dismissal of a person from a regulated position under Section 98(1) of the Employment Rights Act 1996.

The amendment does not contravene the sprit of the Bill. It ensures that our aim of protecting children from those who might abuse them is more thoroughly met. I beg to move.

I am sorry to delay proceedings, but I should like to ask one question by way of clarification about the interlocking of the Amendment with the rules about actively seeking work, as applied by the Department for Education and Employment. I should be distressed to think that anybody was to be disentitled to benefit for not actively seeking work because he refused to apply for a job that he was very properly not allowed to hold. On the other hand, if information is to be shared with the Employment Service, as it would need to be, there could be a question of confidentiality. I should be grateful if the Minister could tell me, now or at a later stage, how the Government intend to tackle that practical issue.

I shall be the first to admit that my brief does not cover that issue. I understand the point that the noble Earl has raised. I believe that it is an interesting point and one which we shall obviously need to think through carefully. I can give an assurance that the individual would not be deprived of benefit for such a reason. However, if the noble Earl is content for me to do so, I shall be happy to provide him with as full an explanation as I can at a later date.

I want to refer simply to a matter of drafting. I notice that Clause 33(1) makes it an offence if a person,

"knowingly applies for ... any work in a regulated position".

Under subsection (2), which we are considering at the moment:

"An individual is guilty of an offence if he knowingly offers work in a regulated position", and so on. Now there is to be added,

"or (b) fails to remove such an individual from such work".

The mens rea appears to be absent from that provision. I wonder whether the draftsman can have a look at it.

I am grateful to the noble Lord for raising that point. I am not sure that I necessarily agree with him that mens rea is absent. The Clause refers to "procuring". However, I shall take away the matter and examine it further.

On Question, amendment agreed to.

Clause 33, as amended, agreed to.

Clause 34 [Meaning of "regulated position"]:

moved Amendment No. 101:

Page 17, line 25, at end insert--

("(i) a position whose normal duties involve the provision of youth justice services as defined in section 38(4) of the Crime and Disorder Act 1998.").

In moving Amendment No. 101, I shall speak also to Amendments Nos. 102 and 103. With regard to Amendment No. 101, the Youth Justice Board was set up under the 1998 Act. Therefore, it is odd that the provisions of the Bill do not include someone who is involved with the board as such work, almost on a daily basis, involves contact with children or young people. I believe that that is a serious omission from the Bill and, given the intentions of the Bill, I hope that the noble Lord will agree.

Amendment No. 102 brings the Bill into line with some of the changes which are taking place in local government. If the Minister looks at Clause 34(5)(b), he will see that there is reference to a,

"member of a social services committee established by a local authority".

Now one has to add, "or any associated sub-committee". Committees as we knew them--education committees, social services committees and so on--are all disappearing under the new structural arrangements. Therefore, I believe that the inclusion of "or any associated sub-committee" would be a harmless addition. It would provide a catch-all for whatever the structural arrangements were in any local authority.

Amendment No. 103 adds a list of regulated positions held by individuals who would be disqualified from working with children if they were convicted. The list in the Bill relates strictly to child-related positions. However, my amendment broadens the list to include positions that may involve contact with children. I cannot believe that the noble Lord will accept any of them, but certainly I believe that some of the items in my list are debatable. They are there for that purpose. However, if the noble Lord is not prepared to accept some or all of the items, I believe that he should give some clarification to the Committee as to why they are not appropriate in this part of the Bill. I beg to move.

I turn, first, to the inclusion of the youth justice service as a whole. That matter was considered very carefully as a result of discussions in Another place. All people who provide youth justice services and who regularly supervise, train or care for or are in sole charge of children are already covered by the definition in the Bill. That should cover all front-line staff who have contact with children as part of their normal duties in any of those capacities.

Thus, youth justice workers whose positions need to be covered are already within the definition. We do not accept that the definition should be extended to cover ancillary staff, such as secretarial and administrative staff, who, after all, have no direct contact with children. In some areas, such as schools and children's homes, we believe that exceptionally that should be the case. That is because the degree of trust placed in such institutions in respect of caring for children is at its very highest.

If we extend more widely the position from which offenders under Part II are disqualified, there is a real risk that we shall create an unemployable class of people. Whole areas of local authority or health service employment would become completely out of bounds, far beyond what is needed to protect children.

I turn to the list of positions set out in Clause 34(6). This is a crucial part of the definition of regulated positions. It denotes positions where a particular position of trust and respect is afforded to the holder. It covers roles in which, for example, postholders have the right to go into schools or voluntary groups without supervision as a privilege of their position. The children and their parents might look up to such individuals and respect them as "safe" members of the local establishment.

However, the list specifically and rightly is limited to positions of that kind in relation to children's services and not to general positions which may happen to relate to children. The only justifiable exception is directors of social services where, even if children are only a part of their responsibility, the role is so crucial and the possibility of abuse or cover-up where things go wrong so great.

The new positions suggested by the amendments do not fall into the child-related category. I accept that they are all positions of importance in the community. However, I believe that their inclusion here goes beyond what is necessary to ensure the protection of children.

Amendment No. 102 takes the positions below the highest level of authority and responsibility. It goes beyond the top-level boundary that we have set. Although it is important to be a member of a sub-committee to a social services committee, we do not consider that such a position should be dealt with at the same level as a member of the committee itself. We believe that, if we begin to break down those positions beyond the level of highest responsibility, the scheme may lose its coherence.

Of course, this is a matter which we can continue to review and which at some future date we may wish to revisit. Essentially, in our view the extra positions and services go far too wide. We believe that we have the balance right in this area as currently drafted in the Bill. For those reasons, I trust that the noble Baroness will feel able to withdraw her amendment.

I am grateful for that explanation. I am entirely culpable in relation to the wording of Amendment No. 102. It is my own wording and I realised, almost as the noble Lord was describing why it was not acceptable, that he was absolutely right.

However, neither is the wording on the face of the Bill, as it stands, acceptable. Local authorities are changing dramatically as the result of an Act passed by both Houses of Parliament. Such things as social services committees may not exist. In fact, I suspect that within a short time they will not exist at all. Therefore, a form of words needs to be found.

I believe that the word that was offensive (in a mild sense) was "sub-committee" because it rather denoted that I was talking about a spawned sub-committee of a main social services committee. I was trying to say that under the new arrangements a member of a social services committee will be something else, and a description needs to be found to convey that it is the appropriate local government committee with the responsibility for social services, or some such wording. If the Minister is able to find a form of wording that better reflects what I am talking about, I shall be grateful.

Perhaps the noble Baroness will kindly give way. I said that we would keep the positions under Amendment No. 102 under consideration. I am quite prepared to take away the matter and give it further thought. I see some merit in the point that is being made. I suspect that the noble Baroness is right: sub-committees may well in time become things of the past. We are changing local government for the better and we may need to have a look at that issue more closely. With her agreement, I shall be happy to take away the matter and give it consideration.

I am grateful for that response. Again--

Before the noble Baroness decides whether to withdraw the Amendment perhaps I can seek clarification on one point. I understand that paedophiles have a tendency to form networks. Is the Minister confident that the measures in the Bill as it stands are sufficient protection against infiltration of paedophiles into the higher ranks of organisations that may have some ability to show patronage to paedophiles?

That is a pertinent question. The history of investigations into rings of child-abusing paedophiles within childcare organisations is known to all of us in the Committee. It is a matter of grave concern. One can never be 100 per cent certain about such matters. Since we have been in government, we have tried to introduce legislation that closes down all potential avenues to such infiltration. As is our aim, in large measure this Bill closes off many more of those opportunities. I am grateful for the support of the noble Earl.

The noble Earl, Lord Listowel, is absolutely right. One has only to read the Waterhouse report or consider the case of Mr Laverack in my own local authority. There was a sophisticated network of paedophiles working right across local government in areas that did not have direct contact with children, but they had a real opportunity to create the kind of conditions where, at times, they came into contact with children. That is an important point that should be given some consideration. I am delighted by the way in which the Minister has taken that point on board.

I am sorry to be pedantic about my "sub-committee". I think it is a misleading statement and I want to expunge it from the minds of everybody. The issue that I rather clumsily attempted to resolve, but did not succeed in resolving, is the problem of there not being a social services committee. Therefore, a form of words needs to be found for a committee that has responsibility for social services.

I understand what the Minister said about my long list. However, it needs to be kept in mind and, as the Bill becomes an Act and is put into practice, it will be important to be able to revisit some of these matters, especially in the light of the network point raised by the noble Earl, Lord Listowel.

I am sorry about the position of the Youth Justice Board. Again and again we come back to the nature of the paedophile. By nature the paedophile is a manipulative person. Paedophiles are accommodating; they appear to be nice people in a superficial way but they are deceptive. Those who worm their way into becoming members of the Youth Justice Board do not just become clerks and secretaries but those who are responsible for policy and overseeing what happens in the area in the youth justice services. It seems to me that the Youth Justice Board is an important addition.

I am not sure whether the Youth Justice Board is subsumed in the youth justice services. The Minister mentioned that the youth justice services will be incorporated in the Bill. If the board is subsumed in that, I would be reassured. If it is not, I may revisit the matter at later stages of the Bill.

On this occasion I admit to being slightly confused by the general drift of the argument of the noble Baroness. In Amendment No. 101 she talks about youth justice services and there is a reference in her other list to the Youth Justice Board and a member of a local board. We believe that we have covered most of the instances in which someone working in a local authority will come into close contact with young people. We need to keep such matters under review continually. I am grateful for the way in which the noble Baroness raised the issue. We have had a constructive discussion. I am happy to reflect on the amendments. At this stage I do not promise to bring forward changes, but we shall have to revisit this subject in due course in judging the effectiveness of the legislation.

Returning to the sub-committee point, at some point in the future we may have to consider what it covers and whether it relates to the old chair of social services or to the new member of a local Cabinet in local government. Those matters are also important as part of the changing pattern of local government service provision and the way in which people operate as politicians. I suspect that all these matters will come up for future consideration. I am grateful to the noble Baroness for raising these issues. Perhaps we are heading in a direction where, in the future, we may have a degree of consensus. I trust that she is happy to withdraw her amendment.

I shall withdraw the Amendment. I am sorry about the confusion. In relation to the reference in the amendment to,

"youth justice services as defined in section 38(4)", my understanding is that the Youth Justice Board was set up under that Act. That is why the reference is there and why the board is mentioned. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 102 and 103 not moved.]

Clause 34 agreed to.

Clauses 35 and 36 agreed to.

moved Amendment No. 104:

After Clause 36, insert the following new clause--

:TITLE3:INDECENT PHOTOGRAPHS OF CHILDREN: INCREASE OF MAXIMUM PENALTIES

(" .--(1) In section 6(2) of the Protection of Children Act 1978 (punishments), for "three" there is substituted "ten".

(2) In Article 3(4)(a) of the Protection of Children (Northern Ireland) Order 1978 (indecent photographs of children), for "three" there is substituted "ten".

(3) In section 160 of the Criminal Justice Act 1988 (summary offence of possession of indecent photograph of child)--

(a) after subsection (2) there is inserted--

"(2A) A person shall be liable on conviction on indictment of an offence under this section to imprisonment for a term not exceeding five years or a fine, or both."

(b) for the sidenote there is substituted "Possession of indecent photograph of child".

(4) In Article 15 of the Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (summary offence of possession of indecent photograph of child)--

(a) after paragraph (2) there is inserted--

"(2A) A person shall be liable on conviction on indictment of an offence under paragraph (1) to imprisonment for a term not exceeding five years or a fine, or both."

(b) for the heading there is substituted "Possession of indecent photograph of child".").

In moving government Amendment No. 104 I shall also speak to Amendment No. 105 in the name of the noble Baroness, Lady Blatch.

This new Clause and the amendment of the noble Baroness deal with the same issue and in dealing with the one I shall necessarily deal with the other. However, I hope to demonstrate that, on this occasion, our amendment is superior for two reasons and to persuade the noble Baroness not to move her amendment.

This was an area discussed at length in Another place following amendments tabled by honourable Members. As the Government made clear at that time, we were grateful that the issue of penalties for child pornography offences was raised by honourable Members. That was an area that we had been considering and we were pleased to be able to agree to bring before this Committee the amendments tabled for discussion today. Of course, the issue of child pornography, even the offence of possession on its own, is a serious one.

Both the government and Opposition amendments will increase the maximum sentence under the Protection of Children Act 1978 for the offences of taking, making, distributing, showing and possessing, with a view to distribution, indecent photographs of children under 16 on conviction on indictment from three years imprisonment, or a fine or both, to a term not exceeding 10 years, or a fine or both.

In addition, our amendment also makes the simple possession of indecent images of children under 16 an either way offence and increases the maximum penalty available under Section 160 of the Criminal Justice Act 1988 from a maximum of six months imprisonment, or a fine or both, to a term not exceeding five years imprisonment, or a fine or both.

Amendments Nos. 104 and 105 demonstrate that all noble Lords fully share public abhorrence of such crimes. We need to ensure that the maximum penalties available for this type of offence reflect the seriousness with which society regards them. We agree that child pornography is not to be tolerated in any form and regard offences relating to the production and distribution of such material as very serious indeed. No one in this House will forget that pictures of child pornography are, in effect, pictures of child abuse.

We understand that misuse of the Internet has unfortunately led to an increase in the number of offences committed under the Protection of Children Act 1978. We are all aware that public concern about the circulation of this material has grown. While the sexual offences review did not look at pornography offences in themselves, we believe that there is a clear read-across to the offences under the Protection of Children Act 1978. In light of our concern that the law delivers protection for children and of the work of the review which has the protection of children as a central aim, as well as our wider concerns over the increased incidence of child pornography offences, we feel that the time is now right--we hope we have a consensus for this--to enhance the maximum penalties for these offences.

I said that we felt that our amendment had two advantages. The first is that it refers to the other offence--that of simple possession of indecent images--and deals with the rising and maximum sentence for that offence. The second is that the new clause will apply to England, Wales and Northern Ireland. In due course I shall move an amendment to Clause 72 to ensure that that is achieved. Colleagues in Scotland will of course consider the implications for their own legislation. As presently drafted Amendment No. 105 would not go as far as bringing Northern Ireland into the ambit of this offence. I therefore invite the noble Baroness, Lady Blatch, not to move Amendment No. 105. I beg to move.

I am grateful to the Minister for that explanation. I have admitted my weakness before in understanding legalese and it was helpful to have that explanation. Certainly on the face of it I accept the Government's Amendment. It was in good faith promised in Another place and it is here, and it does appear to go further than my amendment. However, I should like to reflect on the relative merits of the amendments between now and the next stage.

The noble Lord, Lord Bach, from his experience in court and the experience of his colleague, the noble Lord, Lord Bassam, in the Home Office, will know the sheer corrupting and degrading effects of taking, making or distributing child pornography, not to mention, as the noble Lord said, the horrific consequences for children who are physically abused for the purpose. For every pornographic picture involving children there is a child abused. That is a point worth bearing in mind when this amendment is being considered.

I am grateful for what the noble Lord said. On the face of it I accept that Amendment No. 104 is a better amendment than mine. My other point relates to something said by the noble Lord, Lord Northbourne; that is, the thorny issue still arises of a definition of pornography and pornographic pictures. It will be important to resolve that before the next stage of the Bill.

This gives me the opportunity of raising once again the question of what is meant by indecent photographs, which got rather lost in the toing and froing over Amendment No. 82.

I have had the opportunity to look at Schedule 4 and also to visit in the Library the guidelines to which the Minister referred. Neither has any definition of indecent photographs. The noble Lord, in moving Amendment No. 104, referred repeatedly to child pornography. Is he saying that an indecent photograph is the same as child pornography? I am not clear. I remember when the police put on a show of pornography and associated issues by Westminster Hall. There were pictures not of children being sexually abused, but simply pictures of naked children.

We have to be extremely careful that we get this right. In the first place we would make ourselves look absurd and discredit the cause of trying to defeat child pornography if we did not; secondly, it is wrong to give children or anyone else the idea that nakedness in itself is an evil.

I support the points made by the noble Lord, Lord Northbourne. Everyone concerned sympathises with the Government's Amendment. We want to be certain that it is not going to catch people it is not meant to catch. The noble Lord says that he cannot find any definition in legislation. Perhaps there is a definition in case law which would be adequate. If so, I hope the Minister can tell us about it. If there is no definition in either, should we put one in to make sure we do not do what we do not intend to do?

Perhaps I can admit to another failure in my life. Throughout almost the whole of my time at the Home Office I tried hard to obtain a definition of indecency and failed miserably. The Home Office was very resistant to providing a definition.

A picture that is corrupting and depraving is a picture that is not acceptable. If one thinks of the beautiful pictures of John Lennon and Yoko Ono with their child, in some of which all three were naked, none of them were indecent photographs as such. It is where the photograph itself is corrupting and depraving and where the activity that is being photographed is an offence to the child. It must be possible, with the kind of brains that we can muster to bear on this, to produce a definition of pornography. It is one of those cases where we all know what we mean by it, but in relation to the law it is important to obtain a form of words to reflect what we think we all mean.

I appeared in a leading case in court before the Judicial Committee of this House which was concerned with indecent assault; my noble friend Lord Carlile of Berriew was on the other side. That was a case in which a shopkeeper in Pwllheli had smacked the bottom of a 12 year-old girl. The question that arose was whether or not that was an indecent assault.

I suggest the Government look at that case. At the end of the day what is indecent is what is indecent in the eyes of the tribunal deciding the issue, whether it is magistrates or whether it is a jury. All the circumstances of the specific case have to be taken into account. By analogy, if one applies that principle to indecent photographs, it is simply a matter for the tribunal to decide whether or not they are indecent photographs. There is no other way in which one can approach this. One cannot put into words what a picture conveys. Accordingly, one must leave it to the good sense of the judiciary, juries and the magistracy.

I support what has just been said and the noble Baroness, Lady Blatch, should not feel any sense of failure in respect of her past experience in relation to indecency. Although in the centre of it all it is possible to know what is offensive and what is against the interests of the child, at the margins--this is where indecent photographs and activities like smacking a child appear--there will always be an issue of judgment. As long as the law focuses upon the welfare and safety of the child, it seems to be in the right place. Judgments should be left to other people in individual cases. The law is now making it clear that the protection of children is at the centre of its thinking.

I am grateful to all noble Lords who have taken part in this debate. I should remind noble Lords that the government Amendment looks at existing offences under Acts of Parliament going back to 1978 and suggests to the Committee that we raise the maximum sentence for them.

In relation to definitions, we shall have to look at the Act itself in order to obtain the best definition that we can. However, the noble Lord, Lord Thomas of Gresford, with his vast experience in this field, put his finger on it. It will be for the court in each instance--the jury if the matter is heard at Crown Court; the magistrates if it is summarily--to decide whether or not any set of facts amounts to the offence in the Act of Parliament. With the greatest respect to all noble Lords who have spoken on this matter, we are here dealing with what the maximum sentence should be for an offence that is proved. If the offence is not proved, no sentence will be served because there will be no conviction. I commend the amendment to the Committee.

On Question, amendment agreed to.

[Amendment No. 105 not moved.]

moved Amendment No. 106:

After Clause 36, insert the following new clause--

:TITLE3:CHILD RAPE: AUTOMATIC LIFE SENTENCE

(" .--(1) Where a person over the age of 18 years is convicted in England and Wales of an offence under section 1 of the Sexual Offences Act 1956 (rape), and where the victim was under the age of sixteen years at the time of the offence, the court shall impose a sentence of life imprisonment.

(2) The court may not impose the prescribed sentence specified in subsection (1) if it is of the opinion that there are specific circumstances which relate to the offence or the offender which would make the prescribed custodial sentence unjust in all the circumstances.").

I know from the outset that the Amendment will be controversial not only on the Government Benches but also on Liberal Democrat Benches and possibly on the Benches behind me. Many people--and I include myself--believe that the rape of a child is almost too awful to contemplate. The amendment is all about raping children and I know that the proposal will be controversial because it introduces a mandatory life sentence. However, it must be said that the Home Secretary, Mr Straw, has accepted the principle of mandatory sentences.

The importance of the amendment reflects the gross indecency and the seriousness of the crime of raping a child. I am sure that Members of the Committee will ask whether this sentence will work in the same way as a life sentence for murder works and whether the Home Secretary, a politician, will decide the tariff. I envisage that the courts will decide the tariff in this case.

Although life sentences are given, some offenders are released from prison after a relatively short time, depending on the seriousness of the offence. Nevertheless, if they are subject to a life sentence they are released on licence. That means that they will be supervised after release and should they display any behaviour which gives rise to concern that they may reoffend, they can be returned to prison.

A person who would rape a child is a dangerous criminal who deserves to be taken out of the community for a long time. Paedophiles who operate in that way are deceptive and manipulative. They are often respected in their communities. They are often the last people one would expect to see in court.

I remember being shocked when, visiting a bail hostel, I met someone who absolutely charmed me. He had travelled abroad a great deal and had pinned on the wall of his room moving letters from people who had appreciated his work abroad and photographs of children who were suffering from leprosy and with whom he had worked in the Third World. He had a record as a good school master, was very educated and had good books on his shelves. I asked why he was there. It was quite a touching story. I was told that I would not believe the horrific nature of his crimes. He had spent his sentence and had volunteered to go into the bail hostel on the ground that he could not then trust himself sufficiently to go out and live freely in the community. If I had not met someone who could tell me of his crimes, I would have believed him to be the kind of person with whom I could have trusted my children.

It is dreadful to think that a child has been raped by someone who was trusted. I believe that anyone who will deceive to that extent and act with such gross indecency should receive a severe sentence. The sentence can be determined by the court and I shall be happy to change my amendment to that effect at a later stage. However, I believe that such a person should be supervised throughout his life because we know that paedophiles are habitual, repeat offenders. I beg to move.

Perhaps I may say with deep and affectionate respect that the Amendment is not necessary. If a court, as it may from time to time, undersentences the remedy exists by statute. It is the positive obligation of the Attorney-General in this class of case to bring proceedings before the Court of Appeal (Criminal Division). If I were the Attorney-General, I should feel deeply offended by the proposal because it presupposes that the Attorney-General is not doing his job. I see no reason why that assumption should be made.

If there is a case which justifies an appeal, the necessary application, supported by the appropriate material, can be provided to the Attorney-General, assuming that he is not moving on his own initiative. Therefore, there is every available remedy for dealing with the situation which the noble Baroness suggests. Subsection (2) of her new Clause--and I commend her--provides a let-out to the court which considers that in all the circumstances not to impose imprisonment for life would be unjust.

However, having accepted that there should be that measure of discretion, I cannot see why on earth the noble Baroness is not content with the Attorney-General's powers to intervene. Accordingly, I suggest that the amendment is unnecessary.

With deep respect to the noble Baroness, I cannot support her Amendment. There are infinite varieties of the offence of rape but it is difficult to get that understood. It is not the case that every person over the age of 18 who has penetration with a girl under the age of 16 is a paedophile. The very wording of the new Clause reveals that the noble Baroness is aiming at the wrong target. Rape is of infinite circumstances.

In a serious case of rape, there is a presumption that a person will receive a life sentence. That is very much on the cards and it is just for that to happen. Under subsection (2) of the new clause, the discretion to impose a sentence less than life imprisonment is left open to the judge. Therefore, if the amendment were accepted, he would be in precisely the same position as he is today. Accordingly, the amendment can have no effect.

One sympathises with the intentions of the noble Baroness who wants to underline the disgust that people rightly feel for paedophile rape, but the definition set out goes much further.

Perhaps I may briefly add my voice to those who are concerned about the noble Baroness's Amendment. I hope that she will not believe that the debate is simply lawyers taking a view about the merits of courts.

As the noble Lord, Lord Thomas of Gresford, said, the strong likelihood is that in the kind of case to which the noble Baroness referred--that of a person in a position of trust--the sentence is likely to be severe. However, it is unlikely that all cases fall into the same category. I believe that the noble Baroness accepts that in subsection (2), which leaves the court a discretion not to pass such a sentence.

I want to comment briefly on that point. The proposal is that the court has that discretion if it is of the opinion that there are specific circumstances which relate to the offence or offender which would make the prescribed custodial sentence unjust in all the circumstances. I am sure that the courts would operate that; indeed, they already do.

My concern is that setting a relatively low test to avoid the result of the mandatory sentence may bring the courts into disregard and disrespect in the minds of the public. The public will think that the offence ought to carry a sentence of life imprisonment and that Parliament has said so. Time and again the courts will not do so because the circumstances are at the other end of the scale from those to which the noble Baroness refers. That leads to the risk that the courts will not carry with the public the respect that they should have. That is an important feature of this proposal. I support the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas, who have suggested that, with respect, the noble Baroness should not press her amendment.

My interpretation of the case put by the noble Baroness, Lady Blatch, was that she was concerned less with imposing long sentences in all cases than in having the ability to recall individuals to prison if they began to act in a suspicious way in relation to young people. Perhaps that interpretation is wrong, but I believe that that is what the noble Baroness is driving at.

I am grateful to the noble Baroness for raising this important issue. She will not be surprised when I invite her to withdraw the Amendment. The short debate on the matter raised by the noble Baroness, Lady Blatch, has been to the point and of considerable importance.

I remind the Committee that the maximum penalty for the offence of rape is already life imprisonment. Section 2 of the Crime (Sentences) Act 1997 provides an automatic life sentence for those convicted of a second rape irrespective of the age of the offender or victim. This reflects the Government's view that repeat offending in respect of serious violent and sexual offences must be dealt with severely by the courts and that, accordingly, a limit on the discretion of the courts is appropriate in that category of case. In view of those provisions the amendment is of relevance only to first time offenders.

The Government believe that judicial discretion is essential in sentencing first time offenders particularly in the case of sexual offences. That discretion may well arise in the case described by the noble Baroness where the judge uses his or her discretion to sentence a convicted defendant to life imprisonment. But to add to the number of offences for which mandatory sentences must be imposed is something that has always concerned Members of this House, whether lawyers or not. If possible we want to keep sentencing discretionary, not mandatory. Sometimes it must be mandatory but not, we believe, in this particular instance.

The amendment represents an unacceptably radical departure from the principles of effective sentencing policy. Automatic life sentences should be clearly exceptional and reserved for categories of case in which a limit on the discretion of the court is justified. We are not persuaded that that is so in this instance. All rapes are serious; nearly every such offence demands a severe prison sentence. Sex offences against children are of even graver concern. The Court of Appeal has issued comprehensive guidelines on sentencing in cases involving sexual offences. They make it crystal clear that the age of the victim is a relevant aggravating feature. As has been observed, this offence, which is always serious, covers a variety of different sets of circumstances; some terrible and others not terrible, although still very serious.

Reference has been made to subsection (2). We believe that in effect the provision for the exercise of discretion in specific circumstances, while understandable given the nature of the offending, will prove fatal to the intent of the amendment. We believe that the court, mindful of the fact that the offender is being sentenced for the first time, is likely to interpret "specific circumstances" more widely than in the case of repeat offenders, thereby severely reducing the impact and intended utility of the provision and thus demeaning the role of the court in society. A sentencing provision of this kind which proved to be effective in its purpose in only a proportion of cases to which it applied would not reflect good sentencing policy; in other words, a mandatory sentence, with which it would be comparatively easy to escape a life sentence, as it were, would not be a good sentence.

I refer the Committee to the report of the Sex Offences Review Setting the Boundaries. It is important that the structure of offences and penalties is looked at in the round to ensure effective and comprehensive protection. The review makes recommendations relating to rape. We do not believe that it would be appropriate to interfere with the current sentencing framework pending the outcome of that review which may result in recommendations affecting sentencing in rape cases. Where this Chamber has had to deal with possible new mandatory sentences for offences it has tended to move forward carefully and slowly. The Government do not believe that the case for this important change has been made out.

Before the Minister sits down, I note that he failed to refer to the Attorney-General. Is that because he has no confidence in the noble and learned Lord? That provides a simple answer not only to this case but to all mandatory life sentences. It is not limited to the single or repeat case but relates to all cases. Perhaps the Minister can help me.

I have the highest regard for and confidence in the Attorney-General. I have to say that because he shall join me on the front bench in a fairly short period! The point that the noble and learned Lord raises in regard to this Amendment is extremely well made. I apologise for not referring to it in my reply.

Does the noble Lord also agree that there is a problem in obtaining convictions in rape cases? The public perception that there is a mandatory life sentence in less serious cases, to adopt the Minister's own expression, in the circumstances envisaged in this Amendment may lead to juries acquitting. That is one of the problems that now arise in trials of rape cases.

I believe that I used the expression "less terrible" rather than "less serious". However, the noble Lord makes a good point.

I was right on only one small point: nobody behind me weighed in on the Amendment. I believe that there is genuine understanding of my revulsion at these offences. I made a distinction between two high school students and someone who raped a child. I referred to paedophilic rape and concentrated on the lifelong supervision of someone who despoiled the life of a young child.

Some powerful points have been made and the matter has been dealt with very sensitively, as I always expect it to be in this Chamber. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 107:

After Clause 36, insert the following new clause--

:TITLE3:USE OF ELECTRONIC COMMUNICATIONS SYSTEMS TO COMMIT ACTS OF GROSS INDECENCY WITH CHILDREN

(" . After section 1 of the Indecency with Children Act 1960 (indecent conduct towards young child), there shall be inserted--

"Use of electronic communications systems to commit acts of gross indecency with children.

1A.--(1) In this section, except where otherwise stated, "child" means a person under the age of sixteen years.

(2) Any person who uses an electronic communications system, including (but not limited to) computers, computer networks, computer bulletin boards and newsgroups, computer chatrooms, the internet, and other analogous electronic means, for the purposes of--

(a) engaging in an act of gross indecency with a person he knows or has reason to believe is a child;

(b) engaging in a sexually explicit discussion with a person he knows or has reason to believe is a child; or

(c) soliciting a person he knows or has reason to believe is a child to engage in any act that would constitute an offence under section 1 or under section 2(a) or (b), is guilty of an offence and shall be liable--

(i) on conviction on indictment, to imprisonment for a term not exceeding ten years, or to a fine, or to both; or

(ii) on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to both.

(3) References in the Children and Young Persons Act 1933 to the offences mentioned in the first Schedule to that Act shall include offences under this section.

(4) Offences under this section shall be deemed to be offences against the person for the purpose of section 3 of the Visiting Forces Act 1952 (which restricts the trial by the United Kingdom courts of offenders connected with visiting forces).".").

This Amendment is supported by the police. The police argue that they are powerless to act until an offence has been committed. The amendment allows the police to intervene if they believe that, with the use of technology, an offence is being prepared for. Early Intervention could save much distress, particularly to children. Currently, there are no suitable Laws to govern the use of computers in this way. It is now common knowledge that more and more paedophiles use the Internet to pursue and procure young children for sex. Earlier the noble Earl, Lord Listowel, spoke of the voracious way in which paedophiles network and use technology for that purpose. This amendment provides the police with another shot in their armoury to track down these heinous crimes. I beg to move.

Perhaps the Baroness can give an example of what she means by an "act of gross indecency on the Internet". My wife told me that when she was 17 her father used to tell her before she went out for the evening,

"Don't do anything you can't do on a bicycle".

Is the noble Baroness saying that one can do things on the Internet that one cannot do on a bicycle? If so, what are they?

When I first discussed the Amendment with a colleague, I had difficulty because the heading for the amendment was "The use of computers in sex". The same kind of matters crossed my mind as crossed the noble Lord's. I went to see the Clerk in the Public Bill Office, and he will remember that we had to cross that line out of the amendment. I am talking about the fact that there is some pretty awful material being downloaded to which children have access. We know that a great deal of very sophisticated networking goes on. There are efforts being made by the police to decode some of that material on the Internet. It is a serious issue. It is not just a serious issue for this country; there is a European dimension. I take the point that the noble Lord has made.

Last year the police and one of the children's organisations made a presentation to the All-Party Children Group on this subject. The subject is horrifying. There are groups of paedophiles who network on the Internet. It is organised from Russia. It is beyond Europe. The police are concerned about that. The whole matter needs to be looked at. Therefore, I support the noble Baroness's Amendment.

I should like to speak in support of the general thrust of the Amendment. I do not claim to have any great knowledge of the Internet. I should like to be more skilled for constructive purposes, not for the purposes referred to in the amendment. I am sure that we need to recognise that there are people using the Internet for the purposes to which the noble Baroness has referred. Whether or not the amendment captures the issue is technically beyond my ability. Certainly the issue is one which needs to be addressed thoroughly.

I support the Amendment. The matter to which the noble Baroness refers in subsection (2)(a) is the passing on of names and addresses between networking groups of paedophiles. That is a problem. Paragraphs (b) and (c) are expressed more clearly. There is a problem here. I hope the Government will address it.

We agree that there clearly is a problem here. We are of course sympathetic to the thinking behind the Amendment. I need to say in clear terms about both Amendments Nos. 107 and 108 that the problem has been with our substantive law on sexual offences. It needs to be looked at overall. It needs to be overhauled. A comprehensive sexual offences Bill needs to be brought before Parliament. Since 1956 we have tended to tinker with it too much on a piecemeal basis. The danger is that it then lacks coherence. In the field of sexual offences it is particularly true that there should be a coherent set of offences that make sense in this day and age and which everyone understands and is clear about.

The new Clause proposed by the noble Baroness would create a new offence of using a computer to commit acts of gross indecency with a child. It would also create offences of,

"engaging in an act of gross indecency with a person he knows or has reason to believe is a child"; engaging in sexually explicit discussion with such a person and soliciting a person he knows or has reason to believe is a child, to engage in any act that would constitute an offence under the Indecency with Children Act 1960.

We believe that is a matter of concern, but much more work needs to be done in the area to ensure that we deal effectively with the problems to which the spread of electronic communication has led. We do not believe that the amendment, as drafted, is suitable to achieve its purpose.

The Government--as all Members of Committee and everyone else in this House know--are determined to do all they can to curb the misuse of the Internet by child pornographers and paedophiles. There is huge sympathy with the intent behind the amendment, but we do not believe that these new offences address the complex issues involved. They would leave some difficulties, such as determining where the offences occur. For example, the amendment as drafted states that,

"engaging in a sexually explicit discussion with a person he knows or has reason to believe is a child",

In a certain set of circumstances, that may criminalise innocuous activities such as sexual chat between adolescents, medical advice on-line, as well as misuse of the Internet by paedophiles for the contact of children. That is the harmful activity at which the noble Baroness's amendment is aimed.

Defining the expression "sexually explicit discussion" may also give rise to problems. That complex issue is already under discussion by a sub-group of the Internet Crime Forum. That forum consists of the police, the industry and the Government. I am happy to be able to say that a report is due to be published shortly. More work needs to be done to ensure that we deal effectively with the problem.

The law already applies online as it does offline. Thus, conspiracy, incitement or attempts to commit gross indecency with a child under 14 are already offences under the Indecency with Children Act 1960, whether organised over the Internet or not. May I remind the Committee that the offences carry a penalty of up to 10 years' imprisonment?

There are drafting and interpretation difficulties in the new clause which we believe demonstrate that this whole area needs some more work. For example, what is meant by an act of gross indecency committed through the Internet or via a chatroom, and so on, as set out in the first subsection of the amendment? If it involves sending videocam pictures to the child of the offender committing an act of gross indecency--for example, masturbating to the camera--it would be caught by the existing offence of indecency with a child.

Similar difficulties arise over the reference to someone engaging in what is described in the amendment as "sexually explicit discussion". The proposed offence is potentially very wide in its scope. It may catch an agony aunt service to young people as well as someone engaged in a discussion about sex education. These are examples of where at present the amendment does not meet that which is needed.

The sub-group hopes to publish a report shortly. It is the Government's view that we need to wait and see the conclusions rather than jump into legislation now which may not be wholly effective in dealing with the potential problem. I ask the noble Baroness to withdraw her amendment.

If the Government feel that this area of the law requires a comprehensive review, will they undertake to withdraw their Sexual Offences (Amendment) Bill before it reaches this House, so that that amendment too may be included in such a comprehensive review? If not, and if this is an area where the Government are prepared to contemplate some changes, could we not--I shall hang on a moment until the Minister is listening--propose something along the lines of making it an offence to undertake actions intended to be preparatory to the kind of offences which already exist? That would catch many of the points aimed at in Amendments Nos. 107 and 108 without in itself creating new offences for doing things where there is clearly no intention of ever being involved in the sort of act which is currently criminal.

During the remaining stages of the Bill's passage through the House, will there not be an opportunity at least to make a start on dealing with a problem which otherwise will wait until God knows when in the legislative programme--perhaps three or four more years? I do not see why we should wait that long when we could do something now.

It is the substantive law on sex offences--the definition of offences and how they apply in given circumstances--that needs to be reviewed and revised. Small Bills that may or may not change the age of consent do not fall into the same category of substantive offences--defining what they are and what they are not. I believe that the Government are right to bring forward the other piece of legislation. But I make the point that when we are dealing in detail with what should or should not constitute an offence we need to tread warily and carefully.

I thank the Minister for both those replies. His reply to the original Amendment was powerful and carefully considered. The issue is what the effect of the amendment would be. We need to be sure about that before we pass legislation in this area, as in time I hope we will. On the other hand, with Clause 1 of the Sexual Offences (Amendment) Bill, there is no doubt what the legal effect of that will be. We have already waited for it for a very long time. I thank the Minister for that reply also.

As the Minister said, this is an extremely complex area. But I am becoming rather disappointed. I know that a review of sex offences has been going on since well before the election. It was set up by the previous government. It has not yet reported and we do not appear to have made any progress. That is disappointing.

The police want something practical. They want some practical Intervention powers to prevent some of this sexual activity happening. It would be helpful to have discussions with the police to find out what powers would make it easier for them to track down this kind of crime and bring these people to book. Aside from all the other things that are going on, I should like to think that some attempt will be made to enter into negotiations with the police to see whether something practical can be done. Computers have been with us for a long time but we are still wringing our hands and saying that we cannot tackle the problem. As my noble friend Lord Lucas said, we must be able to do something, even if it is only fairly modest, at this stage. I should like there to be some discussions with the police to see whether something practical could come out of my suggestion.

The misuse of technology is becoming a scourge across not only the financial world but also the social world. All parents are concerned about the way in which people are now gaining access to their children. I hope that we can continue to reflect on this issue. Pending the long awaited review of sexual offences, I hope that an opportunity can be taken before the Bill completes its passage through the House to find a way of putting some aspect of my Amendment into legislation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 108:

After Clause 36, insert the following new clause--

:TITLE3:INDECENT CONDUCT TOWARDS CHILDREN

(" . For section 1 of the Indecency with Children Act 1960 (indecent conduct towards young child), there shall be substituted--

"Indecent conduct towards children.

1.--(1) In this section, except where otherwise stated, "child" means a person under the age of sixteen years.

(2) Any person who--

(a) knowingly commits an act of gross indecency with or towards a child, or who incites a child to commit such an act with that person, or with another;

(b) travels with the intent of committing any act of gross indecency with or towards a child;

(c) knowingly employs, uses, persuades, induces, entices or coerces a child to engage in, or to assist any other person to engage in, an act of gross indecency with or towards any child; or

(d) transports a child with the intent that that child engage in an act of gross indecency, is guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years, or to a fine, or to both.

(3) Any person who--

(a) abducts, detains or otherwise restricts the liberty of a child for the purpose of sexually exploiting that child; or

(b) organises or knowingly facilitates such abduction, detention or restriction, is guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 15 years, or to a fine, or to both.

(4) Any parent, guardian or other person having for the time being custody or control of a child who knowingly permits that child to engage in, or to assist any other person to engage in, sexual activity, or who knowingly permits the sexual exploitation of that child, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years, or to a fine, or to both.

(5) References in the Children and Young Persons Act 1933 to the offences mentioned in the first Schedule to that Act shall include offences under this section.

(6) Offences under this section shall be deemed to be offences against the person for the purpose of section 3 of the Visiting Forces Act 1952 (which restricts the trial by the United Kingdom courts of offenders connected with visiting forces).".").

Any person who knowingly commits an act of gross indecency towards a child, travels with the intent of committing an act of gross indecency towards a child, knowingly employs, uses, persuades, induces, entices or coerces a child for the purposes of sexual activity or even abducts a child for sex should be punished severely. I stand at the Dispatch Box with the memory of Sarah Payne and too many other children who have suffered in this way. The time really has come to resort to legislation to make the punishment fit this crime. I beg to move.

I do not want to repeat myself, but the Government have sympathy with the intention behind the Amendment, in particular the extension of the offence to protect children up to the age of 16. However, we do not think that this is an effective way of increasing child protection. The law in this area is complex and confusing. Further piecemeal changes to the law on sexual offences and penalties should on the whole be avoided. That is why we are considering the comprehensive review of sex offences, resulting in the recommendations contained in Setting the Boundaries. That reported in the summer and the report is out to consultation. I am advised that it was set up under the present Government. Perhaps it does not matter. There is no party political point to be made here. There certainly should not be, anyway.

It is important that the structure of offences is looked at in the round to ensure effective and comprehensive protection. We oppose the amendment because it would increase the complexity and confusion of the present law. This needs to be thought through clearly in the light of the needs of today's world. The amendment seeks to introduce a whole range of new offences under the guise of one amendment. Many of these raise complex issues which need much more careful consideration. Some add to and some duplicate existing law. Others are quite new. I do not want to give many examples. One is the effect of including the word "knowingly". Is that a requirement attached to the age of the child or is it "knowingly" in relation to the acts? That is the kind of issue we need to make clear.

Other points of detail could be challenged, but I do not intend to go into them now. I share the objective of wanting increased protection for children from sex offenders. We do not think that the amendment would achieve that. Indeed, it demonstrates why a wholesale review was needed, not a piecemeal approach. I invite the noble Baroness to withdraw the amendment.

I am sorry the noble Lord feels like that. Perhaps I may address the word "knowingly". The Amendment refers to a person who "knowingly"--in other words, not unwittingly--commits an act of gross indecency or unwittingly abducts a child. We know that these things are going on. We know that children are abducted. I am happy to say that some of them find their way back home, but many others do not--like little Sarah Payne. Something should be done.

The noble Lord referred to the sexual offences review. A sexual offences review was taking place at the Home Office before the election. It is just possible that that was wound up and a new remit was drafted. I agree with the noble Lord that this subject should never be a party political issue. We should concern ourselves with getting the legislation right.

I am sorry that nothing can be done at the moment to update the law to deal with a person who commits some of the actions set out in subsection (2)(a), (b),(c) and (d). I do not think people realise what an awful experience abduction is for the child and how frightening it can be. We should find a way of dealing with someone who transports a child away with the intention of indecently abusing the child.

I hear what the Minister says. I found his answer more disappointing than the previous one. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 109:

Before Clause 37, insert the following new clause--

:TITLE3:REVISION OF AGE OF CHILD IN PROCEEDINGS RELATING TO INDECENT PHOTOGRAPHS OF CHILDREN

(" .--(1) In the Protection of Children Act 1978--

(a) in subsection (3) of section 2 (evidence); and

(b) in subsection (6) of section 7 (interpretation), for the word "16" there shall be substituted the word "18".

(2) In the Protection of Children (Northern Ireland) Order 1978--

(a) in paragraph (2) of Article 2 (interpretation); and

(c) in paragraph (1) of Article 7 (evidence), for the word "sixteen" there shall be substituted the word "eighteen".").

This Amendment concerns the age of a child in proceedings relating to indecent photographs of children. The rise of public concern about the sexual exploitation of children has been on the increase over the past few years. One of the ways in which children are exploited is through being sexually abused. The record of such abuse may be captured on film, video or computers to be watched repeatedly and distributed around the world. Like the noble Lord, Lord Northbourne, I too remember the exhibition shown just off Westminster Hall. I had to leave before I completed my tour of the exhibition because I found some of the material so disturbing that it still haunts me.

Such early experience of sexual activity often leaves deep emotional scars on a child which can damage future relationships. Furthermore, the child must live with the permanent knowledge that pictures of the abuse are still circulating.

There would be few who would defend child pornography, but disagreements arise over what we mean when we refer to a "child" for the purposes of legislation as well as at what age children should slip out of the net of protection offered to them by the law. Currently, the Protection of Children Act 1978, the law that makes it an offence to produce or distribute an indecent photograph of a child, defines a child as someone under the age of 16. This same definition is automatically applied to the legislation that makes possession of child pornography an offence; namely, Section 160 of the Criminal Justice Act 1988. The same definition also applies in Northern Ireland. Yet for the purposes of the Bill, Clause 25 states that,

"an individual commits an offence against a child if ... he commits any offence", listed in Schedule 4. Clause 37 of the Bill defines a child as,

"a person under the age of 18".

The offence of producing and distributing child pornography is already included in Schedule 4 and Amendment No. 82 would add possession of child pornography to the list of offences. This amendment proposes that the same definition of a child should be applied to the offences related to child pornography.

The Government have recognised that children remain vulnerable and in need of protection up to the age of 18. In the Sexual Offences (Amendment) Bill, children up to the age of 18 are protected from those in a position to abuse their trust. Children up to 18 years old should be protected from those who wish to take indecent photographs of them. This protection would be in line with that conferred by the United Nations Convention on the Rights of the Child, which defines a child as someone under the age of 18. Article 34 of the convention refers in particular to child pornography and says that,

"State parties undertake to protect the child from all forms of sexual exploitation and sexual abuse", including,

"the exploitative use of children in pornographic performances and materials".

In part because of the increase in child pornography on the Internet earlier this year, the United Nations issued a new optional protocol to the children's convention on the sale of children, child prostitution and child pornography. These offences are described as of a "grave nature" and governments are urged to take firm action to protect children. Can the Minister tell the Committee what is the Government's view of the new protocol and whether they will sign it?

Voting in favour of this amendment would bring our legislation into line with Article 34 of the United Nations Convention on the Rights of the Child, increase protection for teenagers and signal our continuing commitment to taking firm action against child pornography.

I hope that the Minister will have sympathy with this amendment. I beg to move.

The noble Baroness, Lady Seccombe, will know that I very often support her and her noble friend Lady Blatch on Home Office matters. But I am afraid that I cannot do so on this occasion.

For decades, if not centuries, 16 and 17 year-olds have been deemed legally capable of consenting to most forms of sexual activity. There is one particular form of sexual practice which is not only capable of being psychologically damaging but is also undoubtedly physically dangerous which is the exception to this rule, and where the United Nations Convention on the Rights of the Child is indeed germane. We may return to this point before long.

But, taking indecent photographs with the consent of the subject--conceivably the enthusiastic consent of the subject--hardly comes into that category. The Amendment does not confine itself to photographs taken for commercial reasons. It could catch two 17 year-olds who took photographs of their activities by remote control for their own amusement.

Secondly, paedophiles--against whom most of these amendments are aimed--are not interested in boys and girls as old as 16 or 17. Finally, there is a practical objection, given that few people carry their passports around with them at all times. Whereas it is usually possible to distinguish between a 14 year-old and a 16 year-old, it can be far more difficult to distinguish between a 16 year-old and an 18 year-old. Many people of 16 or 17 look two, three or even four years older than their true age.

For all those reasons, I believe that the amendment, although well intended, is misconceived.

Perhaps I may put a question to the Minister, one that I wanted to put on a previous Amendment. Is an international committee examining the problem of paedophiles? We were shown some truly horrific photographs by an organisation called Care. The pictures were of children who were much younger. The pictures even showed intercourse being conducted with babies. It was quite revolting. It is impossible to imagine how terrible are these things. The matter needs to be addressed.

This is a sombre debate. The noble Baroness, Lady Seccombe, and others who have spoken to the Amendment have all pointed out that this is a serious matter that affects children more and more these days. Clearly all Members of the Committee will share that view.

The issue here is whether the specific amendment moved by the noble Baroness is appropriate. I have to tell the noble Baroness that the view of the Government is very much that which has been expressed by the noble Lord, Lord Monson.

The effect of the new Clause outlined in the amendment would be to raise the maximum age of a person considered to be a child for the purposes of an

"indecent photograph of a child" under the Protection of Children Act 1978 from 16 to 18.

We are sympathetic to the concern behind the amendment. Who could not be? However, the amendment ignores the age of consent and we believe that the proposed new age extension to 18 is impractical and unrealistic. Indeed, there is perhaps a large number of people who are lawfully married or involved in personal relationships at the ages of 16 and 17. As the noble Lord pointed out, some of them may choose to take personal photographs of each other. Surely it would be wrong to criminalise such activity. That would take the law far further than it should reach in this very difficult field.

The more extreme kind of material involving individuals between the ages of 16 and 18--the age group to which the noble Baroness has rightly drawn attention--is already covered by the Obscene Publications Act 1959; namely, if the material was deemed to be obscene under the terms of that Act, then the law would bite and a criminal conviction would follow.

The police may well face difficulties when trying to distinguish between people of 16, 17 and 18 when considering cases for prosecution.

The noble Baroness mentioned the United Nations protocol. I am afraid that I shall have to write to her separately on that point. I shall do so as soon as I can and I shall ensure that a copy of the letter is placed in the Library of the House.

So far as concerns international work, a point raised by the noble Baroness, Lady Masham, there is apparently a great deal of work being undertaken in this area in which the British Government are participating. Perhaps I may cite by way of example the international cyber-crime committee. If the noble Baroness would like more details, again I shall ensure that she is given them in writing. She nods; I take that as acceptance.

I have said all that I want to say on the amendment. While we are sympathetic to the thinking behind it, because of the practical consequences and the effect it would have on people conducting their own lives in their own ways, quite lawfully, we believe that the amendment is not appropriate and I invite the noble Baroness to withdraw it.

I am grateful to the Minister for his understanding of the Amendment and thank him for it. I shall read what has been said very carefully and carry out some more background research. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 agreed to.

Clause 38 [Probation orders renamed community rehabilitation orders]:

moved Amendment No. 110:

Page 21, line 7, after ("orders)") insert ("whenever made").

In moving Amendment No. 110, I shall speak also to government Amendments Nos. 111 and 112. I shall then invite other noble Lords to speak to their amendments in this group and reply to them in due course.

Amendments Nos. 110, 111 and 112 are minor amendments which would have the effect of changing the names of probation orders, community service orders and combination orders to, respectively, community rehabilitation orders, community punishment orders, and community punishment and rehabilitation orders--and this is the point--regardless of the date when the original orders were imposed. That is the purpose of the three amendments. Making the names of all the orders the same, irrespective of the date they were imposed, would help remove the possibility of confusion as to any differences between them. No doubt the issue of the change of name will arise during the course of the debate on amendments tabled by other noble Lords. I beg to move.

As the Minister rightly pointed out, these amendments are grouped with Clause 38 stand part of the Bill, Clause 39 stand part of the Bill and Amendment No. 113, which is tabled in the names of my noble friend Lord Thomas of Gresford and myself.

Clauses 38, 39 and 40 concern the renaming of probation orders, community service orders and combination orders. We had an interesting debate on this matter during Second Reading. There is a fairly informed opinion among those who are responsible for operating these orders as to whether there is any necessity for changing the emphasis at this stage of the Bill.

There is quite often a tendency to look at the failures of some of the orders rather than to build on the successes of a large number of probation orders and community service orders which are actively and properly carried out up and down the country. I know--and I am sure that a number of others who have sat as magistrates know--that many times, when such orders are made, it is quite clear that a number of people perform their tasks in a fairly orderly manner and benefit from the order imposed by the court.

I believe that it is unnecessary at this stage to change the terminology. The phrase "probation order" has international recognition. Indeed, I understand from a number of people working in the probation field that some eastern European countries are currently setting up probation services, with probation orders based very much on the model in this country. The changes are presumably being introduced in order to enhance public knowledge and confidence. The term "community rehabilitation order" is far less clear than "probation order". The term "probation order" is positive; it suggests that the person on the order has a distinct period of time to prove themselves and to make changes to their lifestyle. As I have explained, a large number of people benefit from them.

Clause 39 concerns community service orders. Community service has a higher profile than I suspect the Home Office would care to admit. The community service order has been in existence in this country for the past 25 years. We do not believe that the public see it as voluntary work. This was apparent when community service orders were made last year on a number of high profile offenders. The public knew that those convicted persons were carrying out work for the community as an act of reparation, not punishment. We have always believed that community service should be positive and that the person on the order should see an increase in their self-esteem as a result of their contribution. If it is seen purely as negative and a punishment, this will not be achieved and it will be harder to engage with offenders on work schemes.

As regards Clause 40 and Amendment No. 113, we believe that the term "combination order" is clumsy and needs refinement. If the proposed name is used it will lead to those employed in supervising the order being held up to ridicule. They will become "punishment officers". The term is negative and punitive and will not assist in increasing the offender's self-esteem and, therefore, his chances of reintegration into society. We suggest that the combination order be renamed the "probation and community service order", which meets precisely the aim of these particular orders.

The names of my noble friends are attached to Amendment No. 158 and to the notices of intention to oppose Clauses 38, 39 and 40 standing part of the Bill, to which the noble Lord has just spoken.

"What is in a name?", I think is the question behind these amendments. We think that all the names proposed are disappointing; they are very clumsy and they do little to explain what the orders represent. In fact, they probably do less to explain than the current orders.

I understand that at the moment a review is being undertaken of the renaming of sentencing orders as part of a review of the sentencing framework. It seems pointless to rename these orders at this stage and then possibly have to rename them again later on. The review may also allow an opportunity for better thought to be given as to what the orders should be called--if indeed it is necessary for the names to be changed. Perhaps the only reason to do so is to clarify the emphasis behind them.

We contend that renaming them at this stage does nothing to enhance the nature or the purpose of the orders. If the orders are to be reviewed anyway, this is an inappropriate moment to change names. I hope that the Minister will agree at least to delay the commencement until the results of the review can be taken into account.

I intervene briefly to reflect on the enormous difficulty of legislation and the huge task required to introduce any change into legislation on any piece of law, particularly at a time when Parliament had to sit all night last night in order to get the work done. Changing law is an expensive, protracted and delicate operation--and here we have three whole clauses devoted simply to changing the names of three orders.

To engage first the department and then the parliamentary draftsman in this task, at great public expense, must have some great motivation. Some great benefit must be expected to flow from it. All I pause to do is to ask the Minister to tell us what that is. It is not apparent from what he has told us and it seems a pity to waste statute on doing something with no visible benefit.

I support those who have said that the case for changing the names of the orders has not been made. The early part of the Bill is about changes in the Probation Service. The service will retain its present name--and rightly so--but the case for changing the title of the orders has not been made. I strongly support those who want to retain the existing names, which are well-established and understood.

The noble Lord, Lord Elton, has said everything that I had intended to say and I shall not say it again. I thank the noble Lord.

On this occasion I cannot agree with the comments that have been made by a distinguished group of noble Lords on this issue. The Government are convinced that there are sound arguments for changing the names of the three orders.

Let us hear them.

If the noble Lord will contain himself, it is my intention in the next few minutes to put the Government's case and he must consider it in his turn.

Perhaps I may turn, first, to the review mentioned by the noble Baroness in speaking to the Amendment. There is a fundamental review of the 1991 Act framework, not merely in regard to the names of these orders. We believe that if we are to change the names, we must do so in this Bill, because we have to move forward in this field.

The Probation Service is a law enforcement agency. Its aims are the proper punishment of offenders, reducing reoffending and protecting the public. Of course, an important part of its aim is the rehabilitation of offenders. Community sentences, whether they be existing probation orders or community sentence orders, are penalties with the purposes both of punishing and of rehabilitating offenders. That may be understood by noble Lords in this House, with their experience of the world. But it is too little understood by the public, who can be unclear about the work of the service and who, frankly, often see community orders as a soft option. The Government are determined that community orders will be used, and that they will not be a soft option.

It is vital, therefore, that everyone--the wider public, offenders and the service itself--understands both the role of the service and the purposes of community sentences. Re-naming community orders in order both to explain their primary purpose and to underline the aims of the service is necessary to promote greater confidence in our criminal justice system. Of course, we are aware that some members of the present service--of which I am a huge admirer; indeed, part of my maiden speech in this place was devoted to praising one particular probation service--do not welcome the change. They claim that the current names are well understood. That is true so far as concerns professionals who work within the criminal justice system. But our concern--a real concern--is to make the system more transparent for members of the general public. Too often, they are left in the dark as to what is happening and therefore, not surprisingly, express dissatisfaction with the criminal justice process.

By way of example, the expression which everyone now agrees should go--namely, "combination order"--was not clear to me, as a practising barrister defending and prosecuting offenders. I did not understand what the phrase meant for quite a while once it had come into being. What was a "combination order"? What on earth did it mean? What did it mean to the general public when they read in the newspaper that someone had received a combination order? In my view it meant absolutely nothing. It told them nothing, except that the miscreant had escaped prison. It did not even tell them that the miscreant had escaped prison often by the skin of his teeth. So the expression "combination order" should never have been written into legislation. Everyone in this Chamber seems to agree: Amendment No. 113 suggests a different title for the combination order. That is the most glaring example of how the orders have not been understood by the general public, and for good reason.

A "probation order" emphasises rehabilitation. Of course, it has a punishment element as well. The punishment element is the restriction on freedom that is involved in having to report to a probation officer and do what he or she reasonably demands. But it is much more a rehabilitative order. That is shown in the number of modern probation orders that have conditions attached to them to take part in programmes. The attempt is to rehabilitate the offender. What can be wrong in describing the true position of an existing probation order by the use of the term "community rehabilitation order"? That is precisely what it is.

As to "community service order", the phrase implies that the offender is being asked to do some kind of voluntary work. It may be that some members of the public look rather askance at someone who has pleaded guilty to and been convicted of quite a serious offence being given a community service order. It has never been a voluntary activity. The point about a community service order is that it is not voluntary; it is compulsory. A community service order in practically every case is a direct alternative to prison. There is a rehabilitative element to it, but it also emphasises punishment: the restriction on freedom, often for many hours--up to 240 hours over a period of a year--during which time the offender must do work for the community; if he does not, he will be brought back to court and will often, under the present law, receive a prison sentence. It is a punishment.

That is why we believe that the expression "community punishment order" is entirely appropriate for what has been called up until now a "community service order". If that is right, it follows that the present "combination order" should be called a "community punishment and rehabilitation order"--a joining together of the old probation element and the old community service element in the new title. I do not claim for a moment that it is poetry. It is not supposed to be. But it describes to the general public what the courts are doing with these particular offenders.

Of course the Government want to see the rehabilitation of offenders. That is no doubt the reason why judges and magistrates make these orders in the first place. But the Committee should recognise that when such orders are imposed they are a mixture of rehabilitation and punishment. It is our view that the titles that we have arrived at are the appropriate ones and that it would be wrong to revert to the present titles.

I congratulate the noble Lord on a careful and well-argued response; but in the end it was disappointing. He says that the Government's purpose is to make the aims of the orders more transparent for members of the public. What this amounts to is that the Government want to toughen up the language for public consumption. If one needs any proof of that one has only to look at the comments of Mr Boateng in Standing Committee G in Another place. He said:

"We are moving away from a social work type befriending model, and no one should be under any illusions about that".--[Official Report, Commons; Standing Committee G, 4/4/00; col. 33.]

He went on, at col. 36:

"No one should be under any illusions about the nature of the change and of the culture shift that we expect. It is a philosophical change".

Therefore, according to Mr Boateng, it is a "philosophical change".

The toughening up of the language has a downside. I have had long experience of seeing probation officers in operation and of reading their reports. In the past, I recall that a good probation officer would look for that gold nugget in the most unlikely individual. He would attempt to bring something out of the offender, to try to bring him into society and mend his ways. As a result of the sort of rhetoric that we have been hearing in relation to this Bill, I have noticed that today's probation officer--I have in mind a recent case--is less ready to do so; indeed, he is more ready to go along with the idea of punishment, and so on.

The suggestions that used to be found in probation orders as regards the various ways of "disposal"--to use the word that I absolutely abhor--have now been reduced. The effect on the probation officer and on the offender is more important than simply toughening up the language for the greater benefit of the public who read the tabloid newspapers. That is the crucial relationship with which the Probation Service should be concerned: the relationship between the probation officer and the individual. I believe that the renaming of these orders will have a much more important and far-reaching effect than the Government realise.

I should like to thank the Minister for what I thought was an extremely helpful and thoughtful response to the points made. I wonder whether he will agree with me in two respects. First, none of us in this Chamber regards any of these orders as being a "soft option". The noble Lord used that phrase. The thought that we would want any of these orders to be perceived as a soft option is far from being in any of our minds. Secondly, does the noble Lord agree that that perception arises as a matter of practice and not because of the name being used? Whatever the name of the order, it is essential to ensure that it is implemented in a robust and thorough way. That is the point that we should like to make.

I congratulate the Minister on the care and eloquence with which he tried to make his case. However, I am afraid I do not believe that he succeeded. First, I think that his case rests on a false factual premise. He argued that the word "probation" was not understood. In fact, it has passed into the language. The phrase "on probation" is so well understood that it is even used in reports on cricket or football team selection. Further, if the Minister is afraid that that may appear to be a soft touch, I should remind him that when it is used in that way it carries a very distinct suggestion of the "male" fist inside the velvet glove. It is not at all a soft phrase.

I am not convinced by the case for putting such expressions into tabloid language. But if we are to do so, we might as well do it properly. Let us take, for example, the phrases in the Bill and imagine them being put into a draft for an article that is to appear in the Daily Mirror. I shall begin with, the "community rehabilitation order". I think that the blue pencil would come out at once. Alternatively, we could take a "community punishment order". It seems to me that the blue pencil would ask whether this is punishing the community. There is also the "community punishment and rehabilitation order"--far too many words! If the Government are going to try to put this wording into popular language so as to change the impression generated by it, they might make a better fist of it than they have done here.

Secondly, as my noble friend just said, this proposal is an attempt to change the language in order to change the impression given, without changing the substance. In my view, that is something that hardly ever works. It must lead to one or the other of two conclusions: either nothing changes--in other words, neither the image nor the substance will change--or, alternatively, the substance is changed in order to justify an attempt to change the image. Either of those would cause a number of us on all sides of the Committee very considerable concern.

The question as to whether or not this renaming will work reminds me of a story that my father used to tell me--I do not know whether or not it is a shaggy dog--about the naming of Iceland, a name which, he said, deterred potential settlers. Therefore, the next time that people discovered a piece of land in that quarter of the globe, they chose to name it Greenland in order to make it sound rather more attractive. However, I do not believe that the settlement in Greenland ever justified that. The renaming in this Bill will, at best, be a case like Greenland. In fact, I shall think of these provisions as the "Greenland clauses".

Finally, name changing can cause a great deal of confusion; indeed, since I became a Member of this place 12 years ago, I have completely lost count of the number of names that have been given to the body that once upon a time used to be known as the University Grants Committee. I tend to refer to it by a name at least two names out of date. If we do this to the public, they may manage to cap that yet.

The noble Lord's expression does not suggest to me that he is liable to take this matter way and think about it. However, if he does so, I hope that he will look with care at the syntactical point made by the noble Earl, Lord Russell. The noble Lord is actually going contrary to the structure of the present language. In a community service order, it is the community that is served. That is the verbal interpretation that is now current among all who have encountered this document. The noble Lord is now proposing a "community punishment order" and wants to reverse the process so that it is the community which does the punishing. In the other case, the community is not being rehabilitated, it is rehabilitating. If the object of the exercise is to get the process understood, the language used has to be unambiguous; this is not.

I am grateful to the Minister for what he said. However, I was not in the least bit surprised. He made great play of the new terminology. Perhaps I should remind him that a Minister flew to America and on his return used the terminology "a correctional service", which I believe was the title that the Government originally had in mind for the Probation Service. However, when a protest was mounted, that suggestion was immediately withdrawn. I believe that this renaming will provoke a similar reaction. I warn the Minister that we shall certainly take this on board when we reach Report stage.

My main concern here is the expression that the Minister keeps using. He repeatedly said that the public do not understand. But when have members of the public been consulted on the issue? I give way.

What I meant when I spoke about the public not understanding is that they have considered for a long time--indeed, perhaps they have even been right--that those who are made the subject of a probation order have really "got off" easily for what they did. That has been the trouble with the expression "probation order" in the past. I speak from long, personal experience in the field. If one of my clients received a probation order, it would be a victory for me; but, in his mind, it would often be a let off for him. That is a truth, which is often not expressed.

Therefore, because the Government believe that community orders--whether they be probation or community service orders--have a real function in the criminal justice system, we are determined to ensure that they are seen to work--

I am grateful to the Minister for giving way. I, too, held the job in the Home Office of being responsible for the Probation Service. In my experience, wherever there was a misunderstanding about the role of the Probation Service and whether or not it was effective, it had nothing to do with the name; it had everything to do with the practice of the Probation Service in a particular area. If the public saw people on probation loafing around, leaning on their shovels or not doing what they should be doing, their perception of the local service was diminished. It was never a question of the connotations of a name, but rather the public's perception of how the service operated.

Much has changed in the Probation Service since then. Good practice is now spread throughout the service. The noble Lord is wrong to believe that a change of name will change the culture of the service. The service is a good one, irrespective of the names of its provisions.

Part of the process of changing the culture of the service involves changing its name. In some places the name became associated--sometimes wrongly, sometimes rightly--with defendants effectively being let off their offence. No one considered the punishment or rehabilitation elements; a probation order was often considered to be a let off. That is how we believe the general public have often viewed probation orders. The danger is that if the general public have that perception, the whole concept of community sentences becomes devalued. For that reason the Government are making it quite clear that the purposes of community sentences are reduction in reoffending; protection of the public; and proper punishment of offenders. This is not a case of adopting a hard line policy for the sake of it. The alternative to having acceptable community sentences is to send all offenders to prison. That is not something that the Government or any noble Lord present would want. As the term "probation orders" has unfortunately become devalued, we believe that it is essential to change it.

I return to the remarks I made before giving way to the Minister. It appears that we are talking at cross purposes here. I sat as a magistrate for 14 years. I issued probation orders, community service orders and so on. The defendants did not have an easy time of it. Their lawyers pleaded their case and the individuals concerned pledged to obey the terms of the order. The problem is that the Government play down the success of community service and of the Probation Service.

A similar thing happened in the case of the Parole Board. No problem arises in 95 per cent of parole cases. However, if one isolated incident arises, everything is blown out of all proportion. Likewise newspapers do not report the conditions that attach to probation orders in articles on the Probation Service. It is up to the Government to explain to the public what probation orders involve. One gets the impression that the Government, through this Bill, are saying to the general public, "Law and order are high on our agenda and we are trying to be tough". As I said earlier, we shall certainly return to this matter on Report.

Clearly we do not want to spend too long on this matter, but does the noble Lord seriously expect us to accept the proposition that the word "probation", which has three syllables and is well-known and understood, will carry less impact than the word "rehabilitation", which has six syllables, is not generally understood, and is unfamiliar to the criminal classes?

I must apologise to the Committee for having missed the first part of this discussion as I had to attend an important meeting upstairs. I should disclose that I did quite a lot of judicial work--about 30 days. I was a Recorder for eight years and a relief judge at the Old Bailey for two years. I also sat as a deputy chairman of quarter sessions, in early days in Kent and in later days in Essex. Therefore I have a lot of experience of the effect of putting people on probation. I must say that I admired what the Probation Service did. There is no doubt about that. I am not a die hard so far as legal reform is concerned, as many noble Lords know, but I think that we should avoid change if it is not really necessary. I do not think that it is necessary in the case we are discussing.

Also there is a practical argument against what is now proposed. If Members of the Committee look at the expressions "probation orders" and "community rehabilitation orders" on page 21 of the Bill, they will find that the expression "probation orders" consists of only five syllables. The expression "community rehabilitation orders" consists of 12 syllables. What a mouthful for the people in the courts to have to use and to absorb!

I agree that there is not much difference between the terms "community service orders" and "community punishment orders"--there is an increase of only one syllable there. However, if Members of the Committee compare the term "combination orders" on page 22--which has only six syllables--with the term "community punishment and rehabilitation orders", they will find that the number of syllables is doubled to 12. I cannot see any advantage in changing the old expressions. If there are no advantages, we should bear in mind the disadvantages of imposing unnecessary mouthfuls on the people who work in this field. I implore the Government to think again about this matter.

May I just remind the Minister of the previous time this place was abolished? A second chamber was recreated under the protectorate of Oliver Cromwell. They had an immensely long argument about what to call it. They decided that they could not call it the upper house so they decided to call it the other House. That made precisely no difference.

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

I rise to oppose the Question that Clause 38 should stand part of the Bill.

Noble Lords:

Oh!

I apologise. I understand that the Question has already been spoken to.

Clause 39 [Community service orders renamed community punishment orders]:

moved Amendment No. 111:

Page 21, line 28, after ("orders)") insert ("whenever made").

This Amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Clause 39, as amended, agreed to.

Clause 40 [Combination orders renamed community punishment and rehabilitation orders]:

moved Amendment No. 112:

Page 22, line 9, after ("orders)") insert ("whenever made").

This Amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

[Amendment No. 113 not moved.]

Clause 40, as amended, agreed to.

Clause 41 [Exclusion orders]:

moved Amendment No. 114:

Page 22, line 42, at end insert--

("( ) shall only be made if the offence is one which is specified in schedules by order of the Secretary of State and"

This Amendment concerns exclusion orders. Unfortunately the Bill does not explicitly state that the exclusion order will be used in limited circumstances. We fear therefore that because the offences are not prescribed there will be net-widening and that it will be used in a range of non-predatory situations.

We also believe that the scheme must be carefully monitored to ensure that it delivers the stated objectives. If the scheme is introduced it should also be used in conjunction with supervision and treatment if necessary. It would be helpful, therefore, to include a schedule to the Bill which can then include offences relating to racial hatred, sexual harassment, domestic violence and offences against children. In effect, that will determine the limitation of that Clause without necessarily giving much wider powers to the Government. I beg to move.

Amendments Nos. 115, 118, 121 and 124 in this group stand in my name. As drafted, in Clauses 41, 42, 45 and 46 the Bill allows for the Secretary of State to use secondary legislation to extend the parameters of sentences. The Delegated Powers and Deregulation Committee recommended strongly that these powers should be removed. The second report of the committee states in its final recommendation:

"The Committee has drawn attention to the powers in clauses 41, 42, 45 and 46, each of which allows for the Amendment of the bill to increase the severity of a sentencing power. The Committee recommends that these powers should be omitted. If those powers are to remain, which would be contrary to our recommendation, the Committee suggests that they should be subject to affirmative procedure".

Following my reference to the issue at Second Reading, I received the following day a letter from the chairman who wrote on behalf of the committee. He said:

"The Committee thought that I should point out, however, that our recommendation was not that the powers in Clauses 41, 42, 45 and 46 should be subject to affirmative procedure, but that they should be omitted. It was only if the House disagreed with the view that we considered that they should then be made subject to affirmative procedure".

Therefore the letter from the chairman on behalf of the committee makes it clear that its firm recommendation to the House is that the powers should be omitted and that only if the House takes the view that they should not be omitted, then the affirmative resolution should be referred to. I believe that the Minister is going to settle for the affirmative resolution. I believe that he should allow the House to take a view on whether that is acceptable.

Under this Government and the former government, the House enjoys an unbroken record of accepting the advice of the Delegated Powers and Deregulation Committee since its inception. I recommend strongly that this Bill should not be made the exception. The committee has served the House well. Its work is highly regarded and I suggest that this is no time to reject its advice. I beg to move.

I deal first with the government amendments and then the amendments grouped with them. The government amendments, Amendments Nos. 116, 117, 119, 122 and 125, are minor amendments. They close a small loophole in the Bill.

The Secretary of State already has powers, or will have powers under the Bill, which enable him to alter by order the maximum period of curfews, exclusions and drug abstinence orders. The amendments simply ensure that where the maximum period for such orders has been altered by the Secretary of State and a court is considering amending the terms of an individual order, this can be done with reference to any new maximum periods. For example, if a court is minded to extend the length of an exclusion order, on application by the offender's probation officer, the Bill as it stands precludes the total exclusion period from lasting longer than one year. But if the Secretary of State had exercised his power to increase the maximum length of exclusion orders generally to, say, two years, it would seem reasonable in the circumstances for the court amending a particular order to be able also to extend its duration--

I am grateful to the Minister for giving way. If the noble Lord wishes to give the courts power to extend sentences, why not use primary legislation to extend the parameters within which the courts can operate? That is the proper way, and it is the way in which the Delegated Powers and Deregulation Committee recommends that it is done: by using primary and not secondary legislation--and not, as described by the noble Lord, secondary legislation on the hoof.

We have the greatest respect for the advice we receive from the Delegated Powers and Deregulation Committee and listen carefully to it. The noble Baroness knows perhaps better than I do--she has been attending this Chamber far longer than me--just how difficult it is to obtain legislative slots. We seek to persuade the Committee that some flexibility is essential here. I do not think that that is unreasonable in the circumstances.

Perhaps I may return to the point on the argument. It seems reasonable for the court amending a particular order to be able to extend its duration to two years. This would be achieved by the Amendment.

The amendment also enables the Secretary of State to amend the periods which apply to the warning provisions when he has used his power to alter the maximum length of an exclusion order and a drug abstinence order. Again, this is simply to provide consistency in the Bill.

These amendments, therefore, do nothing more than provide a consistent approach to the length of curfews, exclusions and drug abstinence orders, should the Secretary of State make new maximum periods available.

I turn to the amendments tabled in the name of the noble Baroness, Lady Blatch. Amendments Nos. 115, 118, 121 and 124 would remove from the Bill the power of the Secretary of State to make an order substituting a new period of time for exclusion orders, and curfew and exclusion conditions and drug abstinence orders. Primary legislation, as the noble Baroness acknowledged, would therefore be required in order to make such changes to the maximum available length of these orders and requirements.

The delegated powers which are the subject of these amendments have already arisen as part of our evidence to the Delegated Powers and Deregulation Committee of this House. We have considered carefully all the pros and cons relating to the nature of these powers and their exercise, and have paid particular attention to the committee's recommendations. Our thinking has led us to the conclusion that it is appropriate in these circumstances to provide such powers for the Secretary of State, although I shall of course explain why and of what kind.

These amendments concern the power to make changes to the periods of exclusion orders, as I have described. It seems evident that the noble Baroness, Lady Blatch, disagrees with the interpretation we have placed on these matters. The Delegated Powers and Deregulation Committee has recommended deleting these powers from the Bill; or, as I understood it, if the House accepts the need for the powers, making the procedure draft affirmative. We believe that this would be much better. That process would provide adequate parliamentary scrutiny and flexibility. We think that that is a strong and powerful argument.

However, I believe that these powers should be delegated for the reasons of flexibility and the existence of precedent. I deal with those points in turn. These orders are experimental in nature and are due to be piloted before implementation. The department cannot be absolutely sure about the most effective period at the time of legislating--that is, now. The proposed periods in the Bill are based on the best available evidence to date. If the pilots which are currently due to commence next year give an early indication that different periods would be more effective, it would be preferable to test those periods as well before national roll-out.

The maximum length of the exclusion order has been set at a year, partly on the basis that exclusion is less intrusive than the curfew order, the maximum period of which has been set at six months. However, that may be too short to act as an effective deterrent to a stalker or a perpetrator of domestic violence.

No doubt all members of your Lordships' House support the intention behind the orders, but, if there is no delegated power to amend the periods, their full potential may not be effectively tested. A suitable vehicle for primary legislation may not be available at the time. That is an important consideration.

There are precedents for increasing the maximum period of a community order by secondary legislation. They were identified in the oral evidence given to the Committee. In addition, the minimum and maximum periods for drug treatment and testing orders can be changed by secondary legislation under Section 58 of the Powers of Criminal Courts (Sentencing) Act 2000. My proposals are not unprecedented. That is a relevant consideration in the decision to use secondary legislation. That I why I believe that it is appropriate to retain the powers.

That does not mean that I do not recognise and appreciate the point made by the noble Baroness and by the Delegated Powers and Deregulation Committee. I accept that all the relevant order-making powers should be subject to the affirmative resolution procedure. I am proposing amendments to that effect at this stage. For the sake of consistency, I am also proposing amendments to the Powers of Criminal Courts (Sentencing) Act 2000 so that changes to the period of the curfew order are made subject to the affirmative resolution procedure, rather than to the negative resolution procedure, as at present.

I hope that I have demonstrated the need for the delegated powers and the serious consideration that we have given to the various points that have been raised, not least by our action on the important issues. While I respect the arguments and concerns that underlie the amendments, I do not think that it would be appropriate to accept them.

The amendments tabled by the noble Lord, Lord Dholakia, would restrict the availability of exclusion orders and the exclusion requirements of community rehabilitation orders to offences specified in an order made by the Secretary of State. That could curtail the availability of exclusion orders and requirements, thereby depriving the courts of the ability to use the powers in deserving cases. The nature of the sentence does not demand such checks.

We are introducing new powers of exclusion so that courts have available to them an additional means of protecting those who could be at risk from an offender in the community. We recognise the public concern about such issues. In future, a court sentencing an offender for any offence that warrants a community penalty that is not fixed by law will be able to consider exclusion as an option. If it is important that the offender be excluded from certain places, the court may prohibit him from entering.

The court will also be able to order that the exclusion requirement is electronically monitored. Any breach of the requirement would register at the electronic monitoring control centre and appropriate action could then be taken. Electronic monitoring will provide better enforcement and better protection for the public. We regard it as a valuable new power for the courts. Of course, it will be for the courts to use such powers as they deem appropriate. We see no advantage in restricting their use to particular offences or offenders. We do not believe that it would be in anyone's interests to restrict the courts' powers in the way proposed.

Noble Lords may be concerned that exclusion orders or requirements might be used in inappropriate or unsuitable cases, but there can be no reason for courts to impose exclusion if it is not necessary.

In contrast, curtailing the availability of the power might deprive a court of the ability to protect a particular member of the public who was at risk from an offender, just because his crime had not been listed by an order. Any attempt to restrict a sentence in that way risks making it unintentionally unavailable in highly deserving cases.

Exclusion will not be an arduous imposition on the offender. All that he has to do is comply with the requirement not to visit the prohibited place or places. That should not be too difficult. For those reasons, we are not able to accept these amendments.

I heard what the Minister said about the Delegated Powers and Deregulation Committee. I am deeply disappointed that he will be the first Minister of either party to break with the convention of accepting the committee's advice, which in this case was unequivocal. It said that even the affirmative resolution procedure would be contrary to its advice.

The Minister referred to precedent. On page 3, the report says:

"The Home Office identified two precedents (sections 45 and 50 of the Powers of Criminal Courts (Sentencing) Act 2000)"-- one of this Government's Acts--

"but they readily admitted that these were not an exact parallel".

Even the Home Office admits that the cases may well be precedents, but they are not parallels with the powers that are now being taken. The report goes on:

"we consider that, in principle, the length of a sentence should not be extended by secondary legislation, and that this order-making power should be deleted from the bill".

The Minister said that it was difficult to get parliamentary time for new legislation. Having been in the department, I agree, although the Home Office does not have a bad record this year. This is the sixth Bill currently going through Parliament and there have been 14 Home Office Bills accepted since the Queen's Speech. We have parliamentary time now, because the Bill is before the House. If the Minister says that the Government may need to extend to two years, why not take a power to do that? The courts do not have to use it. It will be there to provide flexibility. If the department does not have time to draft such amendments, perhaps I shall do so on Report. As the committee suggests, the Home Office can give the courts flexibility under primary legislation.

Let us be clear about what is happening. The maximum sentences that courts can dispense are to be extended. The Minister has described very urgent circumstances in which a court says that it would like a bigger sentence at its disposal and the Home Secretary passes an order through Parliament. The parameters for sentencing are an important matter that should be dealt with in primary legislation. The House should take a view on whether to accept the unequivocal recommendation of the Delegated Powers and Deregulation Committee.

As I have explained, there are precedents. The Criminal Justice Act 1991--which was Conservative legislation--gave the Secretary of State the power to extended the maximum length of curfew orders by order, using the negative procedure. This territory has been trodden before. I understand the power of the noble Baroness's case, but we are trying to strike a balance to secure flexibility should it seem sensible, after the pilots have finished, to have longer sentences.

That is an eminently sensible way to proceed. We have met the Delegated Powers and Deregulation Committee half way by picking up on the point about the need to make such orders subject to the affirmative procedure. In some respects, it could even be argued that we are going further by applying affirmative procedures in the curfew order provided under Section 12 of the Criminal Justice Act 1991.

So we understand the argument. We can see part of its import. We take a judgment that we require the flexibility. There are precedents already in place in legislation not put through Parliament by our own party but by Members from the party opposite.

Therefore, although, obviously, we must have great respect for the committee and its work, on this occasion we are trying to strike an important balance. For that reason, I think that we are right to proceed in the way in which we are.

The Minister said that he had met the committee half way. I cannot help feeling that that savours of what paediatricians describe as a "space perception defect".

We have here a major constitutional principle. There are not very many things in this House which we assume regulations cannot do. Since I arrived here, I have been told by a great many people that extending the length of criminal sentences was one of those things.

I accept the point that the Minister makes about 1991. Almost always, where a question comes up about the limits on executive power, we find that at least once the executive has done it before and got away with it because perhaps we were busy looking at something else. So the fact that there is one precedent in what I remember was an extremely large Bill is not necessarily persuasive.

In conceding a small point of practice, even if one of some substance, while trying to hang on to the whole of the constitutional principle, the Minister is meeting the committee a long way short of half way.

I listened with growing surprise as his answer developed. The points about parliamentary time no doubt have substance. But he seemed to me to be saying that the existence of Parliament is inconvenient to Ministers. No doubt it is. It is meant to be. He is not the first Minister who has said that by a very long way. Parliament has had a rather perverse habit of finding that argument somewhat less than persuasive.

I do not say that there is an iron force in the convention about regulations. I of all people am in no position to say that. But when we voted on a regulation on the Greater London freepost, the noble and learned Lord, Lord Simon of Glaisdale, and many others had laid the ground for that change over a period of upwards of 10 years. The issue had been very carefully considered over a very long time and debated a great many times in this Chamber before anyone moved to leaping over the chasm.

I have heard no equivalent debate on whether we should relax the principle that regulation does not extend to length of criminal sentences. If that is indeed going to happen, it would call for very careful consideration by the whole of this House and Another place over as long a period as we spent on the question of whether regulations could be voted upon.

Bringing it through just because it might be for the executive's convenience is very far from sufficient. This is a matter of the standing of this House and of the standing of Parliament as a whole. That issue needs a great deal more consideration than we have yet given it.

I am grateful to the noble Earl for that Intervention. I shall go back to the Hansard of 1991 to see exactly what happened at that time. However, if it was wrong, two wrongs do not make a right. We did not have the benefit of the Delegated Powers and Deregulation Committee. That has been a remarkable addition to the work of this House. It has been extremely helpful to those of us who deal with Bills as they go through the House.

The committee has given this matter very careful consideration. As I said earlier, it has been absolutely unequivocal in its advice and I believe that it should be heeded.

I listened to the Minister carefully and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 115 not moved.]

moved Amendment No. 116:

Page 24, line 38, at end insert--

("(3) An order under subsection (2)(a) above may make in paragraphs 2A(4) and (5) and 19(4) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order."").

On Question, amendment agreed to.

Clause 41, as amended, agreed to.

Clause 42 [Drug abstinence orders]:

moved Amendment No. 117:

Page 26, line 2, after ("(2)") insert (", (3A)").

On Question, amendment agreed to.

[Amendment No. 118 not moved .]

moved Amendment No. 119:

Page 26, line 15, at end insert--

("(5) An order under subsection (4) above may make in paragraphs 2A(4) and (5) and 19(6) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order."").

On Question, amendment agreed to.

On Question, Whether Clause 42, as amended, shall stand part of the Bill?

This Clause relates to drug abstinence orders. As far as we can see, this new order serves no purpose at all. The clause introduces a new drug abstinence order requiring an offender to abstain from misusing Class A drugs.

The Government recently introduced drug treatment and testing orders. So far up to half of offenders placed on those orders have completed the treatment without regressing. Given the difficulty of working with addictive drug users, that must be seen as a very positive outcome. Treatment can also be made as a condition of an existing probation order. The difficulty with that provision is that often there are delays of two to three months before treatment can be made available. There is no presumption of treatment with drug abstinence orders. Class A users will not stop using the drugs because a court tells them to.

It is envisaged that there will be three pilot studies and that about 3,500 orders will be made every year. If that measure is rolled out nationally, we are talking of between 40,000 and 50,000 abstinence orders which are likely to be made each year. In our view, the offenders are being set up to fail. They will not face automatic custody but will be dealt with for those breaches in the normal way.

A recent study conducted by the Inner London Probation Service into the outcomes of breach proceedings during 1998-99 showed that 21 per cent received a custodial sentence. If that outcome were repeated with this group, the prison population would increase, it is estimated, by up to 10,000 per year.

There are other amendments in this grouping in the name of my noble friend Lord Thomas of Gresford and myself. Perhaps I may speak to them at this stage.

Perhaps we should deal with the Question whether Clause 42 shall stand part of the Bill.

Clause 42, as amended, agreed to.

Clause 43 [Pre-sentence drug testing]:

moved Amendment No. 120:

Page 26, line 23, at end insert--

("( ) A court shall not order a drug test unless it has been notified by the Secretary of State that arrangements for treatment are available in the relevant area.").

Amendment No. 120 is concerned with pre-sentence drug testing. Clause 43 enables a court, when considering passing a community sentence, to order a drug test. In most cases it will be known to the court, through reports and other notes, whether or not an offender is misusing Class A drugs. To order a further test would therefore be a questionable use of resources.

The key issue is treatment. Currently, there is often a delay of as long as two to three months before treatment becomes available to those who wish to engage in recovery. It is essential that the Government put aside funds to enable agencies to provide relevant treatment properly and promptly as a response to the order of the court for a test. I beg to move.

I am rather worried about this in case it delays the procedure in court. There are so many drug users now, many of whom are Class A drug users. I believe it is important that drug users are tested so that they become aware; otherwise they will simply go further down the slippery slope. It is possible that they will be sent to a place such as Phoenix House, which deals with drug rehabilitation, instead of being sent to prison. I feel that this Amendment might hold up the procedures.

In addition, some prisons now have drug rehabilitation units and it is possible that users will be sent there instead of to other places which would not rehabilitate them. I have worked with young offenders. Over the years I have been appalled at how young the users are and how large the drug population has become. It is very big and I believe that it is necessary to find out whether young people are taking drugs.

This group includes two government amendments. I shall speak to those and pick up the points arising from Amendments Nos. 120 and 131 which are, to all intents and purposes, the same in effect.

I turn to the government Amendment first. Amendment No. 130 clarifies why the disclosure of drug test results from testing carried out in police detention should be undertaken. The main purposes of disclosure will be several-fold: to inform any decision taken about granting bail in criminal proceedings; to inform any decision regarding supervision where the person is in police detention, remanded, committed to custody or released from custody into the community or has been granted such bail; to inform any decision about appropriate sentence or supervision where a person has been convicted of an offence; or for the purpose of ensuring that appropriate advice and treatment are made available.

Clarification for the purposes of disclosure will ensure that the sensitive nature of that information is respected and that the individual's rights are preserved in line with the Human Rights Act. It will provide for appropriate disclosure to ensure the safety both of the individual and of the public.

Research has shown that there is a clear link between drug misuse and acquisitive crime. The Government are absolutely determined to take all necessary steps to break that link. Drug testing will be a primary tool in the identification and monitoring of drug misusers. In order to maximise the benefits of drug testing, it is essential that appropriate disclosure is provided across the criminal justice system and relevant external agencies to inform sentencing and supervision and to allow for appropriate treatment to be made available to the individual.

We believe that, while an offender is within the criminal justice system, we have a duty of care towards both him and the wider community. We feel that we would be failing in that duty if we withheld relevant information which could impact on the safety of individuals, those responsible for their supervision and the general public.

As the drug testing programme develops, particularly during its pilot phase, the circumstances in which it is appropriate to disclose a drug test result will be assessed very carefully. We have defined disclosure by purpose to ensure that full disclosure provision is available in all appropriate circumstances in the future.

Our Amendment No. 140 establishes the authority of the Secretary of State to regulate the provisions of samples for the drug testing of offenders released on licence. We see drug testing as an integral part of monitoring compliance to licence conditions.

It is our intention to pilot drug testing, including the testing of prisoners released on licence, in three areas from spring 2001. Drug testing technology continues to develop and we shall use the pilot phase to determine which systems are most effective. It seems to us to be appropriate that the authority for issuing rules for regulating the provision of samples is held by the Secretary of State. That will ensure that the rights of the individual are protected and that effective and consistent drug testing systems are in place across the criminal justice system.

The amendment brings the regulation of arrangements for testing on licence into line with the authority required for regulating the provision of samples at other points in the criminal justice system already set out in the Bill.

I turn to Opposition Amendments Nos. 120 and 131. As a result of Amendment No. 120, courts would be prevented from ordering a pre-sentence drug test to inform a decision on the most appropriate community sentence unless notified formally that provision for treatment was available within that area. In our view, pre-sentence drug tests will help to identify offenders with a propensity for drug misuse and will assist the courts in deciding on the appropriate community sentence. Here, treatment availability is not the only issue.

It is important that, if necessary, the courts have the power to require an offender to undergo a drug test for specified Class A drugs prior to sentence. However, court decisions to order pre-sentence drug testing should be comparatively rare. Drug testing on charge will already have helped to identify offenders who are misusing drugs, and steps will have been taken to encourage them into treatment at that point.

It is also likely that the pre-sentence report provided by the Probation Service will comment on the part played by drug misuse in an offender's criminal activity. However, on occasion it will be useful to ascertain whether an offender is currently using Class A drugs. A pre-sentence drug test will also provide for occasions when a drug test at charge was felt to be inappropriate. That may be particularly relevant where the offender was deemed to be unfit. A drug test result could help a court to decide whether a drug abstinence order or abstinence requirement is the most suitable disposal.

A pre-sentence drug test should not depend on a declaration to the court that treatment is available. The two are not necessarily linked. Enabling a court to order a drug test is an integral part of the new regime and, we argue, should be retained. In cases where a drug treatmentand testing order is considered appropriate, treatment will be provided through a service level agreement agreed and funded by the Probation Service.

There will be a number of cases where, although an offender tests positive for Class A drugs, treatment is not appropriate. In such cases, the requirement may well be to monitor behaviour by random drug testing as part of a community sentence, and treatment availability will not be an issue.

It is perhaps worth reminding the Committee how much the Government are investing in the treatment of drug misusers. Research has shown that effective Intervention can be made at each stage of the criminal justice process. Initiatives include the introduction of arrest referral schemes, with joint funding providing £20 million over three years. Arrest referrals will be available in all custody suites from 2002.

Evaluation of drug testing and treatment orders is now complete and a national roll-out has already begun. The Government will be investing £54 million over two years towards drug treatment costs. The Government are also providing £28 million for development of the CARATS scheme within prisons in order to support the rehabilitation of offenders. It is intended that by March 2002 20,000prisoners per year will be assessed and that 5,000 will undergo drug treatment.

However, drug treatment is not yet complete. Although considerable resources are being put into treatment, there is still a shortage of capacity. Those difficulties are being addressed. Both the Department of Health and the Home Office are co-ordinating a recruitment campaign for drugs workers. By April next year up to 685 drugs workers will have been recruited and trained. We shall, of course, ensure that a major change in our delivery of treatment to drug misusers is established with the creation of the national treatment agency. That agency will be set up in April 2001.

By 2003-04 we shall be investing more than £400 million annually in drug treatment services--an increase of more than 70 per cent over the amount being spent in the current year.

I believe that I have made a powerful case for what we are endeavouring to achieve. For many years I have travelled around the country and met workers in agencies which attempt to help drug abusers. Those workers have said that there is an insufficient supply of services and support for drug abusers. We believe that pre-court testing, testing later through the criminal justice process and, of course, in prison and on release for those who are on licence is most helpful in this regard. We believe that our package is the most comprehensive and coherent to have been put together to help drug abusers and misusers. We see a better future for those people so that we can turn them away from a world of involvement in crime.

Amendment No. 131 would prevent the police from ordering a drug test at charge for the purpose of identifying those offenders who misuse specified Class A drugs unless notified formally that provision for treatment is available within that area. The arguments against Amendment No. 131 are much the same as the arguments against Amendment No. 120.

I hope that the noble Lord will feel able to withdraw his amendment.

Before the noble Lord decides what to do, I want to congratulate the Government on what they are trying to achieve. It is a difficult task.

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 43 agreed to.

I beg to move that the House do now resume. I suggest that the Committee stage begin again not before 8.31 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.