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.—(Baroness Scotland of Asthal.)
My Lords, in view of the debate we had at about 11 o'clock last night, may I ask the Chief Whip what time he intends that the House shall rise tonight? I quote from Chapter 3, subparagraph 3.01 of the Companion, which states:
"It is a firm convention that the House normally rises by about 10 p.m. on Mondays to Wednesdays".
It has been normal for the House to rise much later than that in recent weeks.
My Lords, I am grateful to the noble Countess for giving me some notice that she was going to raise this question. The short answer is that, given a fair wind, you always have to keep several fingers crossed. The intention is that we shall finish the Committee stage of the Criminal Justice Bill in order to rise around 10 o'clock tonight. I need to complete the quotation from the Companion, because beyond the passage that the noble Countess quoted it states:
"The time of meeting of the House can be varied to meet the convenience of the House".
That obviously is a factor which is regularly debated among the usual channels. I keep my fingers crossed. There are around 43 groups of amendments, which I know sounds horrendous, but of those 17 have already been debated—which is music to my ears, even as I say it—and a substantial number of the rest are, I am reliably informed, technical amendments introduced by the Government. So I hope that my wish becomes a fact.
My Lords, I cannot give an answer to that question. I am in total sympathy with the motivation behind the question of the noble Lord, Lord Marsh, which is a calculation we need to make, not just about late sittings, but about the demands that the workload of this House, which we recognise is considerable, makes on the staff who look after us so well and so effectively, and, I might say, even at 1.30 in the morning—this morning—so uncomplainingly.
My Lords, can the Chief Whip confirm that 50 per cent of yesterday's amendments were government amendments and that two-thirds of the amendments today will be government amendments? Can he tell us, in relation to the growing burden of work in this House, what proportion of those relate to clauses which were never discussed in the House of Commons and what reflection that has on the burden that we have to carry?
My Lords, as the noble Lord, Lord Elton, knows, the vast majority of government amendments—this certainly applied to yesterday's debate—meet the approval of the House and are indeed there precisely to respond to questions raised during the passage of the Bill. All that I can say is that the vast majority of them were accepted with wide agreement across the House. The majority of government amendments—certainly at this stage in our proceedings—are introduced to try to reach agreement and consensus. Believe me, I work very hard to try to achieve just that.
As for the work of the other place, it is not a bad rule—I say this with some diffidence—to say that the approach is precisely the same there. We have different methods and different procedures in the two Houses. At our best, we work complementarily; I shall do my best to ensure that we do so.
My Lords, will the noble Lord accept two things? First, it is a gross abuse of procedure that a Bill as important as the Criminal Justice Bill should arrive in this House not having been discussed fully in another place. The real work of scrutiny is done by this place; that is the value of this House and the way that it does its work. Secondly, most of the government amendments moved yesterday were indeed accepted by the whole House, but they had little to do with responding to points made by opposition Members of the Committee. They were mostly additions to the Bill. In response to my noble friend Lord Elton, many of them related to clauses that had received no discussion whatever in another place.
My Lords, I fear that if we start comparing the procedural methods of the two Houses, we shall rapidly lose our audience. The noble Baroness well knows that when it is discussing timetabling arrangements, the other place does so with the full involvement of the opposition parties. There are often arguments about the length of time that should be available, but it is then up to the Opposition to decide how they should time their contributions—frequently to have key debates taking place at key times in the proceedings. But, honestly, we shall become a House of anoraks if we start comparing procedural devices and methods in the two Houses to try to decide which is the best.
My Lords, once again I find myself in complete agreement with the import behind that question, which is to emphasise that in the judgment of my noble friend—which I must say I share—there is far more effective, detailed scrutiny of legislation when it is performed in the atmosphere of a Committee. In Committee, the Minister, who frequently has to respond to extremely difficult questions, has the advantage, among other things, of having Civil Service support right alongside. If we could avoid the system whereby difficult questions are responded to by people running up and down carrying notes, that would be to the advantage of all of us.
The question asked was when we will finish tonight. My estimate of when we may conclude has now fallen by six minutes.
My Lords, the noble Lord the Chief Whip has a silver tongue, but the truth is that we are now suffering the consequences of the House of Commons having turned itself into a part-time Chamber and guillotining every Bill, with the result that Bill after Bill is coming here having been insufficiently considered in the other place. Until that is put right, we shall never be able to meet the wishes of the Chief Whip and the House that we should rise at, say, 10 o'clock in the evening.
My Lords, a number of us have form on this business. I have never before been accused of having a silver tongue, but I am grateful for that, if it was a compliment. Can the noble Lord, Lord Waddington, and I agree to have a draw on this one? If I were to check the number of times he voted for guillotine Motions in the other place when he was in government and he were to check the number of times I voted for guillotine Motions when we were in government—
My Lords, when in government the noble Lord frequently voted for guillotine Motions. Shall we declare it a no-score draw?
My Lords, there is no possibility of declaring a draw on this argument when the Government win again and again both here and in another place. What worries me is that the noble Lord and the Government as a whole tend to find it so easy to identify the convenience of the House with that of the Government.
My Lords, I can only say to the noble Lord, Lord Peyton, that if the sole objective of the House has been to respond to the convenience of the Government, that has escaped me in my present role.
My Lords, is the noble Lord aware that the Government, instead of thinking things out well in advance of a Bill going to another place—or this House, if it comes here first—have developed the custom or habit of thinking up further things later on? We have been asked to accept amendments that will add 30 or 40 pages to an enormous Bill, which was 374 pages long when it reached us. Will the noble Lord bear in mind that in future the Government should get their thoughts and intentions well matured before presenting a Bill to either House?
Yes, my Lords, it is clearly in everyone's interest that any Bill should be in as good a shape as possible when it is introduced to the House. I do not detract from that for a minute, but any legislative system ought also to be able to deal with issues as and when they arise during what can be a lengthy passage between being introduced to one House and concluded in the other. It is a duty of governments to respond to public need and issues that arise, even when that is during the course of a Bill's passage.
Even if it sounds a little immodest, a government who managed in 1997 to be elected with a majority of more than 150 and who managed to repeat that operation in 2001 cannot be entirely out of tune in legislating in a way that is acceptable to the public.
My Lords, may I say how grateful I am to the noble Lord for trying to pour oil on troubled waters? However, I respectfully point out to him—I know that time is going by, but this has been an important debate—that the usual channels are not the whole House. There has been much restless feeling on the Back Benches about the length of sittings. We would all very much appreciate it if something could be done to control the time at which the House rises.
My Lords, I am totally in sympathy with the thrust of the question of the noble Countess, Lady Mar. I should love the House to be able to complete its business earlier. As for the rights of Back-Benchers, I wholeheartedly agree with her, not least from the knowledge of having been a Back-Bencher for a large proportion of my life and knowing that, given the inevitable way in which these things operate, one day I shall be a Back-Bencher again. So I agree.
moved Amendment No. 230ZA:
It shall be the duty of the chief officer of each probation area—
(a) to establish consultation arrangements with local magistrates' courts committees and local communities,
(b) to assist the probation service in the performance of its duties of reducing offending, and
(c) to supervise offenders in the community."
I have never had the privilege of moving an amendment twice in one day, but today is the day. I moved the amendment at 1.30 this morning. It is an unusual position. Those who have already caught up with Hansard have given me the benefit of the doubt and told me that they thought I pulled a marvellous coup this morning, and that I carried out some sort of ambush to count the Government out. Would that it were so. I was one of the Front-Bench Members who agreed that we should continue until the amendment had been completed. It had not occurred to me that there were not sufficient Peers in the Committee to see the business through. I thought, therefore, that I had disposed of it in the proper manner last night. I have spoken to the Government this morning, and we hope very briefly to dispose of the matter in very much the proper manner today.
The amendment was tabled after we received representation from the Magistrates' Association. It was debated in full earlier this morning, so I will not go into detail, nor will I invite any other Members of the Committee to respond. All that could be said was said earlier today. The clause would quite simply re-establish local consultation between the probation service and magistrates. That statutory consultation was killed off following the introduction of the Criminal Justice and Court Services Act 2000. The Magistrates' Association made the point that, despite the well-meaning attempts of the Government to provide alternative means of ensuring that there was liaison, that has not worked in its eyes. It wants the re-establishment of statutory provision.
In that case, I seek to repeat the same process, but perhaps with a rather different result at this stage. I beg to move.
I have listened very carefully this morning—although I confess that I was rather surprised at the outcome—to what the noble Baroness said about the Magistrates' Association's view. I share her concern that the association must have confidence in the arrangements. My honourable friend the Minister responsible for prisons and probation, Paul Goggins, has discussed those issues with the association already. I can certainly undertake that the National Probation Service will follow the issues up as a matter of priority. I know, for instance, that it is setting up a communication forum. I shall write to the noble Baroness with details before Report. I ask her not to repeat the process of last night and to allow us to move on more swiftly to other business.
I explained to the Minister's office this morning that I had been in contact with the chairman of the Magistrates' Association and that we wish to press ahead. We accept the Government's good efforts in talking. I understand that that will proceed regardless. It is considered important, and, since I have a duty to the association, I wish to test the opinion of the Committee.
moved Amendment No. 230A.
Before Clause 284, insert the following new clause—
I discovered some time ago on a visit to Northern Ireland that the police there had no powers to arrest disqualified drivers. I found that a most surprising and disturbing bit of information, because there is a high accident rate in Northern Ireland. There are relatively more road deaths in Northern Ireland than here on the mainland. The police in England, Wales and Scotland do have those powers. My amendment would give the police in Northern Ireland the powers to arrest disqualified motorists.
From the soundings that I have taken, my proposition is well supported. Indeed, I understand that the police in Northern Ireland would welcome a change in the law giving them more powers. The Government are very sympathetic, as are the opposition parties. The only possible opponents are the disqualified drivers themselves. If ever there were an amendment to the Bill that would command universal assent, I have produced it here and now. The only issue is whether this amendment has been appropriately worded—I understand the argument about amendments being technically defective.
Perhaps the more important argument is whether this Bill is the right vehicle for such an amendment. If there is a different solution I am sure that my noble friend on the Front Bench will indicate what it is. I hope that she will give the proposition and the wish to give the police these powers her full support. It would then be just a matter of whether this Bill or another one is the best place for the provision and how quickly the matter can be resolved. I beg to move.
I hope that I will be able to give a modicum of pleasure to my noble friend Lord Dubs, and I would like to thank him for bringing the anomaly before the House. The Government are aware of concerns on this matter and fully agree with my noble friend that the police service in Northern Ireland should be provided with the power of arrest without warrant for the offence of driving while disqualified, notwithstanding the displeasure that that will cause disqualified drivers.
As my noble friend has already acknowledged, however, the amendment is technically defective. Although the Government agree in principle that this is an oversight in the law of Northern Ireland that must be corrected, we do not believe that the Criminal Justice Bill is the most appropriate vehicle in which to correct it.
My right honourable friend the Secretary of State for Northern Ireland is committed to introducing, at the next available legislative opportunity, a provision to give the police the necessary power. With that assurance, I hope that my noble friend will feel content.
I thank my noble friend. Of course, I would rather my noble friend had accepted the amendment or said that she would introduce one on Report, but I think that we have the next best thing. I welcome the commitment and hope that it will not be too long before she is successful in seeing such legislation through the House. I am grateful to her for her support and beg leave to withdraw the amendment.
We now turn to terrorism provisions and to the period of time during which the police are able to hold terrorist suspects without charge. Initially, the period that was thought proper for such detention to take place was 48 hours, with a possible extension of two days, following a report for which the noble Lord, Lord Lloyd of Berwick, was responsible. We debated the matter during proceedings for the Terrorism Act 2000, when it was decided that the time could be extended to seven days from four days. Now, only two or three years later, we are told that that is inadequate and that the Government seek to detain suspected terrorists for periods of up to 14 days without charge.
In any event, last year, suspects were held for the full seven days on only 16 occasions. We on these Benches would like to know what evidence there is for the necessity to gain further evidence within a matter of days so that such people could be charged. Did the authorities investigating the offences think that seven, eight, nine or 10 days was necessary? Absolutely no evidence has been produced to justify that. It is said that investigations these days must take into account devices of mass destruction—nuclear, biological and chemical devices—and that the investigation of computer hard disks takes time. Such things could be part of an investigation that would justify holding people without charge.
We should be very wary about holding people for any length of time at all without charging them with a criminal offence. We are prepared to concede that the seven days could be extended to 10 days, but we require justification for the further extension to 14 days. I beg to move.
I am glad to follow my former pupil—a status of which I often remind him. I agree with everything that he said, except that I would go further and say that the clause should not stand part of the Bill. The suggested increase from seven to 10 days suffers from the same vice as the Government's proposal.
As the noble Lord said, Clause 284 will extend from seven to 14 days the period during which a terrorist can be held without charge. I will start by thanking the Minister for her great courtesy in writing to me, when she saw the point that I sought to make, and for letting me see the evidence on which the clause was based.
The obligation on the police to charge or release a suspect is one of the cornerstones of the liberty of the subject. I hope that that does not sound too pompous. The length of detention has always, necessarily, been a matter of compromise between, on the one hand, the understandable need of the police to gather as much evidence as they can before charging the suspect and, on the other hand, the insistent demands of human rights. I remind the Committee, as I have often done before, that human rights were not invented at the time of the passage of the Human Rights Act 1998; judges have enforced human rights since the beginning of the common law.
In 1984, when the Police and Criminal Evidence Act was passed, there was an intense debate in Parliament about the appropriate period of detention. It was eventually settled that the suspect could be detained for 36 hours, with a further extension, if authorised by a magistrate, not exceeding four days in all. That is the maximum currently allowed for even the most serious crimes such as conspiracy to import class A drugs, for example. That crime often involves difficult and detailed inquiries here and abroad.
When I wrote my terrorism report in 1996, I received much evidence from the Metropolitan Police, backed up by case studies and detailed figures, that, in terrorist cases, four days were not long enough. The facts and figures that were put before me are set out in paragraph 9.10 of my report. I was persuaded that, in terrorist cases, the existing limit of seven days was justified, even though a period of seven days greatly exceeded the period allowed under the Police and Criminal Evidence Act and, more importantly, the four days allowed under Article 5.3 of the European Convention on Human Rights, as indicated in the case of Brogan. The fact that the period went beyond what was permissible under the convention did not matter. We had already derogated from the convention on the ground that, in Northern Ireland, we were, so it was said, facing a crisis that threatened the life of the nation.
When the Terrorism Act 2000 was passed, Parliament accepted that seven days was the correct compromise and ought to be sufficient to enable the police to carry out their inquiries. Now, scarcely three years later, we are asked to double the limit. We should do so only if the Government can make a very good case for it.
The extension is justified on three grounds. The first is that police inquiries may involve analysis of chemical substances and that the analysis of such substances takes time. The second is that there is a need to extract information from computers. The third relates to the problem of translation from foreign languages. Those are the three grounds specifically relied on by the Minister in her letter to me dated 23rd July, 2003.
There is nothing new in any of those grounds. They all existed in 2000, and they all existed when I wrote my report in 1996. Moreover, there is nothing unique about terrorism in respect of those three grounds. The grounds are common to other crimes and, in particular, to the importation of class A drugs, which, as I said, frequently involves international aspects, including the translation of documents, and the extraction of information from computers. On their own, the three grounds do not justify the increase that we are asked to make.
Then, it is said that terrorism is different from other serious crimes. It is, it is said, a "uniquely serious" crime, words that became familiar to us yesterday when we discussed earlier parts of the Bill. I question whether terrorism is, in any real sense, uniquely serious. The harm so far done by terrorism in this country, at any rate, is far less than the harm done by, for example, the spread of class A drugs.
Will the Minister remind us when the last serious terrorist incident occurred in this country? She will say that terrorist incidents in this country have been so few because of the success of the anti-terrorist squad. I am glad to concede that point, and I have nothing but admiration for David Veness, who helped me greatly when I wrote my report, and for the anti-terrorist squad in general. However, if the Minister says that, so far, the system has worked, she will undermine her main point: if a seven-day limit has been sufficient to keep us safe, why do we suddenly need more time now?
The police will always ask for more time. I do not criticise them for that, but they are not the only judges of what is acceptable in a free society. Our job, in Parliament, is to make sure that they are not asking for too much. I have seen the evidence that the police put before the Minister to justify the increase. Obviously, I cannot comment on the extent or detail of the evidence, but I can say that there is nothing new in it and nothing that begins to justify an increase from seven to 14 days or the more modest increase for which the Liberal Democrats ask. I am not persuaded that 10 days is right, and I am even less satisfied by the proposal by the main opposition party that the matter could be resolved by having a sunset clause. Although we are all rightly concerned by the threat of terrorism—none more so than I—the liberty of the subject still counts for something.
I shall speak to Amendment No. 252BA. I share the concerns raised by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Thomas of Gresford. I agree with the noble and learned Lord that the number of attacks, fortunately, has been comparatively few. I, too, join the tribute to the outstanding police officer, David Veness. On looking back over terrorist attacks, one must take into account not only the number of attacks but also their severity and their impact. Otherwise, I am very much in agreement with the points raised by the noble and learned Lord, Lord Lloyd of Berwick, who rightly referred to this amendment as being the sunset clause.
We share the Government's resolve to deal with the threat of terrorism. That is why we do not completely oppose the clause, but it appears to be overtly draconian. I hope that the Minister may give additional information along the lines requested by the noble and learned Lord. It is well recognised that we face a serious terrorist threat. Presumably, that is why the Government are suggesting such an unprecedented period of detention—namely, keeping a person for 14 days without charge. As has been pointed out, that is a very serious matter indeed.
However, as requested by the noble Lord, Lord Thomas of Gresford, the Government should provide examples from past investigations where the police thought that the seven-day rule was not sufficient and that a longer period of detention was necessary to secure evidence and to carry out chemical or biological tests. I believe that the request was made in the other place. As yet, no such information has been forthcoming, but I hope that it will be introduced by the noble Baroness in this debate.
As we understand it, the statistics in the 10th Annual Report of the Independent Commissioner for Northern Ireland, published in 2003, show that out of a total of 236 suspected terrorists in Northern Ireland, only two were detained for more than five days. That does not demonstrate an urgent need for doubling the detention period without charge from seven to 14 days.
Another point is the anxiety that the noble and learned Lord mentioned about evidence and the Human Rights Act. The longer a person is detained, surely, the more worrying the weight and reliability of any evidence obtained from that person. For example, if a confession were to be obtained on the thirteenth day of being held without charge, would that evidence risk being excluded as unsafe? That is why we have proposed a sunset amendment to Clause 284, to which I now speak, which would give the Government three years' grace. That period could be utilised to monitor how effective the power is and whether it is necessary. On that basis, I shall move the amendment at the appropriate time.
I declare an interest in this matter as the statutory independent reviewer of the Terrorism Act 2000. I believe that it is right never to vote on issues relating to the Terrorism Act and the Anti-terrorism, Crime and Security Act 2001, Part 4. However, before this amendment was laid in another place, I was asked to consider what was proposed and I have spent considerable time doing so.
It may be helpful if I give Members of the Committee an insight from my viewpoint as independent reviewer which may inform the debate. Like everyone here who has met him, I, too, have great admiration for Commander David Veness. However, most of the information that I obtained about this has come from others. Although I have spoken to Mr Veness, most of my information has come from officers in Scotland.
I acknowledge the eminence of the noble and learned Lord, Lord Lloyd, in relation to legislation on terrorism, particularly as, with great respect, I am about to disagree with him. His report of 1996 provided the template—indeed, most of the detail—upon which the Terrorism Act 2000 was founded. As the independent reviewer of the Terrorism Act 2000, I have to provide reports on the operation of the Act as a whole. I do so by travelling the country, by reading material that is provided and by speaking to various interest and pressure groups, political parties in Northern Ireland and the police, notably Special Branch. As regards the operation of the whole of the Terrorism Act 2000, my next report will be published around the turn of the year.
As my noble friend Lord Thomas of Gresford, the noble Lord, Lord Hunt, and others said, it is extremely rare for detention without charge of as much as seven days to take place. There are controls upon the exercise of detention for longer periods permitted under existing legislation. I have reviewed those controls. For what it is worth, in my opinion, those controls are exercised very carefully by those in charge of them. Certainly, in the period that I have been the reviewer, I have not received complaints that those controls are being exercised in anything other than a proper way.
Therefore, are seven days sufficient for the purpose of the legislation? Is the seven-day period fit for the purpose, having regard to what has been happening in recent times? I say to the noble and learned Lord that there is room for argument. It is justified to say that there has been a change in the character of terrorism. Certainly, there has been a change in the character of the terrorism upon which investigation is strongly focused during the past three years.
In summary, the police are involved now in the investigation of terrorism in which the suspects, as compared with the suspects from the island of Ireland, are people about whom we know far less and who are far more difficult to investigate over a short period. There are very few cases in which the seven-day period may not be sufficient. If there are any such cases, they are at the extremely serious end of the spectrum. They are likely to be the most serious cases.
Perhaps I may give the reasons, which are slightly more in number than those described by the noble and learned Lord, Lord Lloyd of Berwick, following his review of evidence provided by the Minister and by the Home Office. First—this is derived from the experience of an operation that was founded in Scotland recently—it can be the case that a substantial number of suspects have to be interviewed during the course of their detention. If the operation requires very tight security—many of these operations depend upon intelligence material provided by the intelligence services to the police—it is absolutely necessary that the loop of knowledge is very small. As a result, it is not possible to have a very large squad of officers involved in arrests and interviewing in such cases.
Secondly, in order to identify suspects who have been arrested, it is important to know who they are, where they have come from and what they have been doing recently. If the suspect has lived in the United Kingdom or in the Republic of Ireland, we are bound to know a great deal about that person at the time of their arrest. However, the real experience of the police in relation to recent events is that they have on occasion arrested people about whom they know nothing, not even their names. In some cases, these people entered the United Kingdom illegally and have never come into official contact with any kind of authority. They may have arrived in the back of a lorry, or by some other secret means, and have been dispersed into the community. They first become known at all to the authorities, let alone the police, on their arrest. So it can be a tortuous process involving inquiry across Europe and the rest of the world to find out who they are.
There are controls of a judicial kind and that does take place. Further, a dedicated group of district judges (criminal) does exactly that. Some months ago I spoke to the district judge in charge of that operation and I am certainly satisfied that they are very rigorous about it. I hope that the noble Lord, Lord Clinton-Davis, can be reassured on that point.
I turn to the next important issue. An operation was carried out in Scotland called Operation Scotia, which crossed the Border. However, it is a matter of which substantial parts are still sub judice, so it is difficult to talk about it in any detail. The operation resulted in the forensic science procedure in certain premises taking three days—just the search process, not the analysis. In any case where, for example, the presence of poisonous material is suspected, the police have no option but to exercise the most extreme and—using the word literally—minute care in—I hope that I will be forgiven for the use of a rather ugly word now in common use—forensicating the premises. Sometimes it is not realistic to interview suspects who were on those premises unless the process of forensication has been completed and without some kind of report being made, even if it is only preliminary, about what has been found.
I turn to the question of interpretation facilities. The police have had difficulties with interpretation in some parts of the country—not by any means are all terrorist suspects found in London. In certain areas it can be extremely difficult to locate enough interpreters with the skill and the time to play their full part in the interview process, bearing in mind that the defence lawyers also need to use interpreters. Those people must be drawn from a small pool and great skill is required.
We have already heard mention of computer hard drives. Anyone involved in criminal cases concerning matters such as fraud, for example, knows how difficult it is to find experts who are not already fully occupied to analyse computer hard drives. It can take a long time.
Time must be made available for legal advice. In many of these cases, it so happens that a very small number of legal firms advise most of the suspects. Those lawyers have to be given time to do so, including making an allowance for interpretation as already mentioned.
There are the personal needs of the suspects to consider. Many of those arrested recently are Muslims. Their prayer rights and wishes have to be and are respected, as are their meal arrangements. They must also be allowed sufficient visits by their families as well as their lawyers. All this takes a considerable amount of time.
I am most grateful to the noble Lord for giving way. He has listed a number of points, all of which would apply equally to other forms of crime, in particular to the importation of serious drugs.
With great respect to the noble and learned Lord, cases involving the importation of class A drugs very rarely involve people of the kind I have described; that is, those who have never been identified, who have extreme language difficulties of the kind already mentioned and with the forensication requirements which may involve public safety issues of an immediate kind.
Where the noble and learned Lord and I would probably have to disagree about this matter is that I would say that there are special features here. I do not refer only to the trauma of a potential terrorist act, but to the special features of the arrest situation which mark out serious suspected terrorist offences from other forms of crime, including international dealing in class A drugs.
The final matter I wish to mention—it is the eighth point—is one which leads me to the conclusion that this proposed measure ought to be available. We hope that the police would carry out very carefully collated and thought-out interviews in cases of this kind. They will be given only one chance and it is in the interests of both the public and the defendants, if they become defendants, that the interviews should be well researched and conducted in a proper way, without undue prolixity. Having spoken to many police officers about this, my view is that there will be cases where the issue of interviews, taken in conjunction with the other points I have mentioned, means that—only occasionally, but in very important cases—seven days may not provide enough time.
Reluctantly, therefore, and on balance, on the grounds that the protections which are already in place do work to protect the interests of suspects, the advice I would give in this debate is that this power is appropriate, although it will probably be used only on extremely rare occasions.
I come back to the point which I raised in my intervention. It is highly dangerous for the extension to 14 days to be exercised without judicial approval, which would have to be very specific. I noticed that, in the course of his remarks, the noble Lord, Lord Carlile, did not refer to this.
I pay tribute to the noble Lord's work and I think that it is invaluable. However, we have to be conscious of the rights of ordinary people—which includes terrorists. We may not like them, but so far as the law is concerned, they are entitled to protection. I think, therefore, that the burden of proof for which this extension is being sought should rest firmly on my noble friend. There can be no equivocation about that; it is a very serious matter indeed. For all I know, my noble friend may be able to convince the Committee that an extension of this kind is required, but I would be surprised if she were able to do so.
The noble Lord also said something about a change in the character of terrorism. He may be right about that, but in my view we should be very slow to dismiss altogether the claims of those who purport to present a view about civil rights, which is most important. All I ask is that this issue should be considered impartially—perhaps in secret, I do not know—by a judge. The trouble I see ahead is that, slowly but surely, a rule will develop to the effect that prospective defendants on this kind of charge will be held for 14 days willy-nilly, and it will not matter whether it is justified; that will be the case. Have defending lawyers and defendants asked for a change of this kind to be made?
In my view—I may be wrong—the burden of proof cannot be properly discharged in such circumstances. The gravamen of the noble Lord's intervention is that the change foreseen in this proposal is justified, but nothing that he said in his powerful speech would enable the Committee to come to that conclusion.
Like the noble and learned Lord, Lord Lloyd, perhaps I may express my concerns. I support what the noble and learned Lord said about the obligation to charge or release being the cornerstone of the liberty of the subject, although he said it with some hesitation and apologised that it might sound pompous. Let me say immediately that there is absolutely nothing pompous or wrong in reminding the Chamber, and the nation, of the importance of liberty and how easy it is to cede its precious principles.
In saying that, I am not suggesting for a moment that we roll over in the face of terrorism. The work carried out by the noble and learned Lord, Lord Lloyd, in relation to this subject was crucial and he has incredible experience of the balancing that has to take place. The problem with the trade-off between civil liberties and security, which we all entertain when referring to terrorism, is that we always imagine that it is not us who will be making the trade. We always believe that someone else's liberty will be affected when in fact liberty cannot be separated out in that way. In the end, the "them" always means us. It is our liberty inside our system that is affected. It is important that we hold on to that idea because it is those precious principles of our democracy that terrorism assaults. So let there be no apologies for explaining why this matters and why this subject is so important.
I am concerned, however, that this seems very much like an administrative convenience. When investigating crime, it is always difficult to get things done within the set parameters. So you always think that if you were given more time, that would be the answer to the problem. It is in that way that a kind of "creep" takes place which erodes liberty.
I should say to my friend and colleague at the Bar, the noble Lord, Lord Carlile, that when you spend too much time with people on the investigative side you hear only about the problems they feel they are facing—how they would like more time; how they would like to have interpreters at the ready; how they would like more computer experts, and so on. But, as the noble and learned Lord, Lord Lloyd, said, none of these problems are new. They are not very different from what they were three years ago when the Terrorism Act 2000 was enacted, and they are not very different from those experienced in the many terrorism cases in which I have been involved, which now run into double figures. Not all of them were to do with Ireland. Many cases involved people who had language difficulties—they were from the Middle East and from the Indian sub-continent—and they needed interpreters, and so on.
By enlarging the amount of time in which people are kept in custody—people who are in fear; people who know the seriousness of what is being alleged against them—we run the risk that people may end up making confessions against their own interests and which may lead to miscarriages of justice.
This brings me back to the principle that liberty matters. We do not want people kept in custody without good reason. They should be brought before the courts and charged at the earliest possible opportunity. Fourteen days is too long. Nothing has changed to justify such an extension.
My noble friend Lord Clinton-Davis inquired whether anyone had spoken about this to anyone on the defence side. I can assure him that the answer will be in the negative because, if anyone had inquired, they would have been told that this is an outrage. We should remind ourselves of why protecting liberty is so important. We need better justification for this incredible change than we have heard so far.
I agree with my noble friend Lady Kennedy of The Shaws and the noble and learned Lord, Lord Lloyd, that liberty is the cornerstone of our democracy—but liberty for all, not only for those who wish to perpetrate crimes of terror against us. It is a question of balance. We have to balance the liberty of those being investigated with the liberty of those who will be the subject of terror. It is a difficult balance.
I part company with the noble and learned Lord, Lord Lloyd, when he says that there is no distinction between terrorism and drug trafficking; that there is nothing unique about it. I do not share his view for the following reasons. I absolutely accept that trafficking in class A drugs is pernicious; I absolutely accept that it visits terror of a long and enduring nature upon those who take and abuse drugs. But there is a significant difference. Those who take drugs have an element of choice. Sometimes they are vulnerable and pressured, but they can choose to take the drug or to say no. There is no element of choice when it comes to terror. Terror is visited upon us whether we like it or not. There is no consent; there is no agreement; and there is nothing that those who are subjected to terror can do to avoid it. No one asks our permission; no one asks for our consent. So while I accept what the noble and learned Lord says in relation to investigation, we should be frank in accepting the nature of terror.
We also need to accept that things have changed. We may not like the fact that things have changed, but they really have changed. Why? Because in the past those involved in nefarious practices—if I may speak colloquially—usually had form. What happens now? More and more of the people who engage in terror appear to have no record of involvement in crime, as the noble Lord, Lord Carlile of Berriew, said.
Tragically, there is a new feature: those who perpetrate terror have no feeling of self, and dying is not an issue for many of them. That is a tragedy because previously we could rely on the fact that most bombers who perpetrated offences—I refer to the terror visited on us by the Real IRA and others in the terrible bombings to which we were subjected—wished to escape; they did not wish to be subject to the death they visited on others. Tragically for us, that situation has changed and we are living in a new environment where the risks to our people are more acute than ever before.
How do we respond? I take up the point made by my noble friend Lord Clinton-Davis in relation to the courts. What will be the courts involvement? Let me put it into context, although I know that not all Members of the Committee are totally familiar with the provisions.
Clause 284 amends Part 3 of Schedule 8 to the Terrorism Act 2000 which governs the detention of persons detained under Section 41 of that Act. Section 41 gives a constable the power to arrest a person without a warrant whom he reasonably suspects to be a terrorist. An individual detained under Section 41 may only be held by the police for a maximum of 48 hours unless an application has been made asking a court to issue or extend a warrant of further detention. I echo what was said by the noble Lord, Lord Carlile of Berriew—the judges who are tasked with performing this function are rigorous in the way in which they apply it.
Under Schedule 8 as it stands, a court may extend the period of detention for up to seven days if the conditions set out in the legislation are met. Clause 284 will allow such detention to be incrementally extended by the court for up to 14 days. I agree with the noble Lord, Lord Carlile, who said that this will be used sparingly and not frequently. But there appears to be a need to use it.
These provisions come to us from the police and are considered to be essential to them. I add my voice to those of the noble and learned Lord, Lord Lloyd, the noble Lords, Lord Hunt and Lord Carlisle, and others who have rightly complimented Commander David Veness on his work and the work done by all those officers who have been so successful in trying to keep us safe in recent days. I add my voice because the police are simply asking for unmerited extensions—they have persuaded us that these extensions count.
The Committee will be very grateful to the Minister for explaining the way in which this works. Has she had any discussions with those judges and retired judges who are performing the function she has explained and would have a better view on this than almost any of us, as to whether this extension is justified?
I can certainly undertake to write to noble Lords about that matter. The pressure that the seven days has caused on certain of the more sensitive operations has been understood by the judiciary who have had to deal with these matters. On the comments made by the noble Lord, Lord Carlile of Berriew, I do not think we have ever had any dissociation from their understanding about how difficult this is and the benefits that there may be from extensions. If we have had any formal consultation with them, I will certainly write to the noble and learned Lord to indicate that.
I hope this matter does not come back on Report, but if it were to do so, I would happily see what we have and come back to the Committee on the next occasion.
It is difficult for me to answer because I believe that there may already have been such a dialogue. The noble Lord will know that a very limited number of judges deal with these matters; they are intensely involved in the way in which we develop these issues. I am quite confident that if the judiciary, seized of this matter, felt that it was unnecessary and we were quite happily dealing with matters within the ambit of that which we had, they would have told us about that very forcefully. But I am very happy to check it and to have some confirmation, and I am sure that if the officials in the Box have such information, I will probably have it by the time I sit down because I have a feeling I will be here for a while. Well, I am told that they have not had specific conversations but they will certainly do so.
It follows that for some limited and very specific circumstances under which the current seven days may be insufficient to enable the police fully to investigate the offences in respect of which the individuals have been detained, the proportion of cases to which this applies is small but significant. I obviously cannot go into individual cases or give any information that might be useful to those to whom the legislation might apply, but I am able to say that of the 212 persons detained from 1st January 2002 to 31st March 2003, 16 cases went into the sixth day as a result of extensions.
I will also give examples of the types of circumstances which might lead the police to need more time. While I cannot refer to actual operations, the examples I am about to give are not hypothetical but are extrapolated from actual occurrences. I hope that noble Lords will understand that I cannot identify them more specifically than that.
Increasingly frequently, there may be occasions when it is necessary to examine substances that are thought to be dangerous—all the issues raised by the noble Lord, Lord Carlile, bite on these matters—which are found on or with the detained individuals, to establish whether they are chemical, biological, radiological or nuclear materials. Such substances have to be retrieved in accordance with forensic procedures. Moreover, very detailed health and safety provisions exist to protect the experts doing that work. This is a time-consuming process which needs to be carried out with painstaking attention to clinical procedures and often in stages, with one stage needing to be complete before the subsequent stage can be started. In one significant case, it has even been necessary to bring equipment from the United States to perform the analysis.
A further layer of complexity that technological development has added is that investigations increasingly involve the requisition and analysis of hard drives of PCs and the subsequent search of suspects' work or home premises after an arrest has been made. It is therefore a matter of days, not hours, before any material from a hard drive is available to be used in the questioning of a suspect. This can be further exacerbated when the hard drives or PCs obtained from a number of individuals have to be cross-referenced to each other to establish patterns of communication and even movement.
There is another difficulty in investigating terrorism. When one is undertaking a sting, if I may call it that, in relation to drugs operations, usually it is possible to do much of the preparatory investigative work before one goes in to arrest. Quite often in terrorism cases, one simply does not have that luxury. So the level of preparation on cases can vary because things can turn very quickly. You find yourself having to investigate an issue earlier than you would otherwise have preferred. I regret to tell noble Lords that terrorists are not very compliant with one's timetabling.
A similar situation arises with mobile phone use and the swapping techniques of whole phones and phone parts, such as SIM cards, designed to make it more difficult for the police to track the owner and the pattern of use. Establishment of identity, as the noble Lord, Lord Carlile of Berriew, mentioned, is increasingly a feature of re-questioning and pre-questioning activity with the police, often having to work through the use of false identities or multiple false identities. The unravelling of the false identities involves extensive national and frequently international inquiries and cross-checking. It would be unusual to reach a successful outcome easily and speedily. The same applies to bank accounts, for which up to five individuals have used the same identity to access and move funds. For the analysis of documents and possibly video material found on premises, and in the questioning of suspects, translators and interpreters frequently need to be used, possibly for rather remote languages. Those persons have to be used for interviews at all stages during the period of detention.
Moreover, and I believe significantly, it is unusual for there to be only one set of the above or similar circumstances contributing to delay in the investigation. More frequently, there is a combination of factors, each of which involve detailed and time-consuming but vital research, which impacts on the time available to the police for questioning.
The modus operandi available to terrorists is clearly growing in sophistication and breadth. In such combined cases as I have mentioned, the police investigation will need to be correspondingly more sophisticated in order to analyse and cross-reference the available evidence. That is what creates a different investigative playing field and justifies the need for allowing the police an extended period to put the information together.
However, I hope that the Committee understands that it is not proposed that the court be given a power to issue a warrant authorising 14 days' detention on the first occasion that a warrant for detention is sought. On the contrary, there is a significant number of safeguards within Schedule 8 that will continue to apply, and we have built further safeguard provisions into the amendment. Thus a court will be able to extend the period in the warrant for more than seven days only if the warrant already authorises detention for the maximum seven days currently permitted.
The provision will be incremental, and it is perfectly possible for the court to say, "I will give you 48 hours, but on this investigation I am not going to give you any further extension". So the court will have the control that it needs to supervise and incentivise—a horrible word that is used more and more—the people undertaking the investigation to go as quickly as possible.
I wish to emphasise the fact that there is a real imperative in undertaking such investigations to work as speedily as possible. Once the perpetrators are aware that one of their number has been identified, the evidence will evaporate quickly. The important thing is to have the scope; everyone knows that time is absolutely the essence in such cases. I know that there are those who will say, "You don't need it", but the tragedy is that we do. There are cases in which, even if we work as fast as we can, we may not be able, tragically, to stop them. We have had examples of that in our history.
Schedule 8 has a brake, which can be applied by the court. The court will be able to extend the period in the warrant for more than seven days only if the warrant has already been authorised. The police can detain for 48 hours; if the conditions of the investigation meet the criteria stipulated in the Act, the police may apply to a court for an extension of that 48 hours. The maximum that the court could allow at that point is five days, in theory. Usual practice is for the court to grant smaller extensions of 24 hours or 48 hours and for the police to have to return to the court to request and justify further extensions. Only if the police had already obtained a warrant extending detention to the full seven days would they be able to make a further request under the provisions in the amendment to go into the post-seven-day period.
The application and use of the power in Clause 284 will be subject to annual review by the independent reviewer of the Terrorism Act 2000; that is, the noble Lord, Lord Carlile of Berriew, who has spoken in the debate and has been fully briefed on the formulation of the amendment and the reasons for it. I am grateful to him for having participated.
Noble Lords will have to make a balanced judgment. Detaining people, whatever they are suspected of, is, as my noble friend Lady Kennedy of The Shaws and the noble and learned Lord, Lord Lloyd, said, a very serious matter for any democracy. It is right that such a measure should receive very careful scrutiny. However, it is for noble Lords to judge whether on balance the limitation of liberty being proposed is proportionate and justified in a very small number of cases, in relation to the potential damage that the actions of suspected terrorists would have on society.
The noble Lord, Lord Hunt of Wirral, asked about the most recent incidents—the terrorist attacks by the Real IRA, which are well known to us all and which caused a huge amount of mayhem, disruption and distress in our country. We can rejoice that the same officers who seek a greater extension have been able to keep us safe so far. However, it would be foolish for me not to emphasise to the Chamber how difficult that has been. There have been occasions when, had there been more opportunity to investigate matters, we might have been able to do that which we eventually did more quickly, limiting the risk to which we put our nation. It will be no comfort, if we have a slip between cup and lip, to be told that the consequences of that slip could be justified to the people subjected to it by virtue of the fact that there is no difference between terror and drug trafficking.
Our amendment, Amendment No. 230B, which aimed at a compromise period for the length of a detention, is clearly weak and inadequate. In the light of the debate that we have heard this afternoon with my friends and colleagues, not to mention tutors, it is clear to me that there is no basis in principle for the compromise that our amendment contains. Therefore, I do not propose to press it.
The noble Baroness, Lady Kennedy of The Shaws, pointed to the clash between civil liberties and the security and safety of the state. If a defendant is kept without charge for an undue time, civil liberties are clearly violated. I admire the statements of principle made by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness. On the other hand, a lengthy investigation and interrogation before charge, about which my noble friend Lord Carlile of Berriew spoke, may be necessary for security. How does one achieve the balance?
The noble Lord, Lord Clinton-Davis, pointed us in the right direction when he emphasised the necessity to consider the degree of judicial control. It is in the intensity of judicial control where an investigation takes place over a lengthy period. It is in that where we may ultimately find a solution and safeguard. Because of the noble Lord's intervention, I was delighted to hear from the Minister that she proposes to have a formal consultation with the district judges, who exercise that control at the moment.
By Report stage—the matter will certainly be returned to on Report—I should like to have light thrown on the problem from that quarter. I should like to know how often the suspect is seen. Is there only an application made to a judge, who takes no further interest in the welfare of the person detained after that application has been made? To what degree are the suspect's physical and psychological health supervised? What reports are brought back to the judicial authority on the progress of the investigation?
I do not accept some of the justifications for the Government's position. In my experience—in the cases that I have dealt with—it is quite impossible to analyse a hard disk within 14 days of seizure. I do not think that a period of seven, 14 or 21 days would make much difference at all in that regard.
However, I take heart from the statistics that the noble Baroness gave; namely, that in the past 15 months or so for which figures are available, only 16 out of 212 suspects were held into the sixth day. Therefore, it does not appear at the moment to be a huge problem which is preventing the proper investigation of these cases.
I have already thrown a huge amount of cold water on my own amendment and the Committee will not be surprised if I beg leave to withdraw the amendment.
I do not wish to add anything to what I have already said. I take note of the fact that the noble Lord, Lord Carlile, did not even put it stronger than saying that very occasionally seven days may not be enough. In my belief that is not good enough to justify the amendment. However, it seems to me that some consultation with those who have had experience of dealing with these applications would be of great help. If that can be done before Report I should be happy not to press my objection now.
moved Amendment No. 231:
"Enforcement of regulations implementing Community legislation on endangered species
(1) In this section— "the 1972 Act" means the European Communities Act 1972 (c. 68); "relevant Community instrument" means—
(a) Council Regulation 338/97/EC on the protection of species of wild fauna and flora by regulating the trade therein, and
(b) Commission Regulation 1808/01/EC on the implementation of the Council Regulation mentioned in paragraph (a).
(2) Regulations made under section 2(2) of the 1972 Act for the purpose of implementing any relevant Community instrument may, notwithstanding paragraph 1(1)(d) of Schedule 2 to the 1972 Act, create offences punishable on conviction on indictment with imprisonment for a term not exceeding five years.
(3) In relation to Scotland and Northern Ireland, regulations made under section 2(2) of the 1972 Act for the purpose of implementing any relevant Community instrument may, notwithstanding paragraph 1(1)(d) of Schedule 2 to the 1972 Act, create offences punishable on summary conviction with imprisonment for a term not exceeding six months.
(4) In Scotland, a constable may arrest without a warrant a person—
(a) who has committed or attempted to commit an offence under regulations made under section 2(2) of the 1972 Act for the purpose of implementing any relevant Community instrument, or
(b) whom he has reasonable grounds for suspecting to have committed or to have attempted to commit such an offence.
(5) Until the coming into force of paragraph 3 of Schedule 23 (which amends paragraph 1 of Schedule 2 to the 1972 Act), subsection (3) has effect—
(a) with the omission of the words "in relation to Scotland and Northern Ireland", and
(b) as if, in relation to England and Wales, the definition of "relevant Community instrument" also included Council Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora as amended by the Act of Accession to the European Union of Austria, Finland and Sweden and by Council Directive 97/62/EC.
(6) Any reference in this section to a Community instrument is to be read—
(a) as a reference to that instrument as amended from time to time, and
(b) where any provision of that instrument has been repealed, as including a reference to any instrument that re-enacts the repealed provision (with or without amendment)."
I hope that this amendment will be widely welcomed. The purpose of Amendments Nos. 231, 250, 251, 252 and 253 is to increase the maximum penalty for endangered species trade offences occurring within the United Kingdom from two to five years' imprisonment. Those offences will also become arrestable. I beg to move.
The amendment is widely welcomed but remarkably late. It might assist the Committee if the noble Baroness explained why it has taken so long to bring forward this amendment and its accompanying consequentials. I have in mind particularly the exchange that occurred in the other place on 20th May when Mr Blunkett appeared to be unaware that an undertaking had been given to amend the Bill in the way described by the noble Baroness. An undertaking had been sought in particular by my honourable friends in the other place, including the Member for Faversham and Mid Kent. He agreed to withdraw his Private Member's Bill in return for an undertaking that was given by the Minister for Rural Affairs and Urban Quality of Life on 21st March. On 20th May the Home Secretary appeared to be unaware of that undertaking, but promised that effect would be given to it as quickly as possible.
I do not seek to make much of that except to say that there have been a number of other instances where Ministers have made promises to bring forward amendments and changes to this Bill but, in some cases, we still await those amendments and changes. I hope that the noble Baroness will be able to secure a system within the Home Office whereby every pledge and every promise that is made by a Minister, in particular by the Home Secretary, is carefully recorded and implemented as soon as possible.
I suppose that I take rather an old-fashioned view of Report stage in that I believe that it is the stage when a Bill is reported to this place with or without amendments. It is not the stage at which completely new amendments should be introduced. I very much hope that the noble Baroness agrees with me. In the circumstance that we still await certain amendments, I have a distinct foreboding that we shall see a number of government amendments on Report and, indeed, at Third Reading. That would echo the very effective intervention of the noble Countess, Lady Mar, earlier today when she said that Bills must receive greater scrutiny before they are introduced and that pledges and commitments that are given should be very carefully thought through and introduced at a much earlier stage. But having said all that, I warmly welcome the introduction of these measures.
Although I support what my noble friend Lord Hunt said, I feel bound to add that it seems to me very extraordinary that we should have the proposed new clause at all. Subsection (1) of Clause 306 points out very clearly:
"Subject to the following provisions of this section, this Act extends to England and Wales only".
The Bill is concerned with criminal justice in a broad sense. However, for us to add the rare application of some "regulations implementing Community legislation" simply on endangered species seems to me to be right outside the themes of this Bill. One could imagine other occasions when the measure might be implemented. Indeed, it would not surprise me if it were technically feasible to do so by regulation instead of by amending the statute. The Bill is so lengthy anyway. I wonder whether the noble Baroness, Lady Scotland, would be so good as to consider whether it would be better not to add this minor addition to the Bill.
As the noble Lord, Lord Hunt, said, the amendment is widely welcomed. It was brought forward by the Government in response to an amendment tabled in the other place. The Government gave an undertaking to do that as swiftly as possible. The Committee will be aware of the arrangements in the other place in relation to tabling amendments. The amendments were not tabled in the other place because some key policy provisions, such as sentencing principles for murder, were brought into the Bill on Report in the Commons. The Government said then that they would table these amendments in the Lords. They have been tabled as quickly as was reasonably practicable.
I know that the noble Lord, Lord Hunt, would wish the Government to continue to consider very carefully each and every suggestion made by Her Majesty's loyal Opposition together with the other parties before considering the final position at which they rest. We have done that and we have responded. I had hoped in moving the amendment to give the Committee a little pleasure and respite. I apologise if that is not the case. I reassure the noble Lord, Lord Hunt, that there is indeed a system in the Home Office whereby commitments made by Ministers are monitored. In each and every Bill to which I have been party we have without exception tried to honour those matters.
moved Amendment No. 232:
(1) When a child aged under sixteen suffers serious harm or death deriving from ill-treatment, whilst it is with two or more people, at least one of whom has responsibility for it, and the death or injury must have been caused by one or more than one of those people, all of those people shall be guilty of an offence of failing to protect the child and shall be liable on conviction to imprisonment for a term not exceeding 14 years.
(2) Serious harm deriving from ill-treatment will be established where the child is the victim of an offence of—
(c) assault under section 18 or 20 of the Offences Against the Persons Act 1861 (c. 100);
(d) rape; or
(e) indecent assault.
(3) It is a defence to a charge under subsection (1) if a defendant shows that he did all that it was reasonably practical to do, in the circumstances, at the time of the serious harm deriving from ill-treatment.
(4) In a trial for an offence under subsection (1), any decision whether or not there is a case for any defendant to answer shall not be taken by the judge before the end of the defence case."
The amendment is tabled in my name and that of the noble Baroness, Lady Whitaker. It calls for joint liability for harming children. It is a very important amendment to which I hope the Government will respond favourably.
Proposed new subsection (1) defines the problem and proposes that there be joint liability when more than one person might be involved in an offence of failing to protect a child. It also imposes a maximum sentence of 14 years. Proposed new subsection (2) defines serious harm. Proposed new subsection (3) identifies a positive defence, and proposed new subsection (4) clarifies that a judge should not take any decision, whether or not there is a case for the defendant to answer, before the end of the defence case.
I move the amendment with some trepidation as a layperson and having had nothing to do with the law in the past. However, I am concerned that there should be a change to our criminal proceedings, to ensure that those who harm children cannot use a loophole in the law that prevents them being prosecuted. I appreciate that the amendment deals with an extremely complex and difficult aspect of the law, which is presumably why action has not already been taken. It is purely a probing amendment at this stage.
"It is wholly wrong that those who abuse children, and particularly those implicated in their killing, should be able to play the system and get away with such crimes simply because it cannot be established beyond reasonable doubt which part each individual played".—[Official Report, Commons Standing Committee B, 4/3/03; col. 1268].
I am very pleased that the Law Commission's report last month said exactly the same thing—that there was a need to change the law. It said that it was time to stop parents who killed children getting away with murder.
That report arose from a joint working group with the NSPCC chaired by Judge Isobel Plumstead. I make no apology for going into some detail on the findings of that working group, because they need to be placed on record.
Research evidence from 43 police forces throughout England and Wales showed that, during the three years covered by the survey, no fewer than three children a week under 10 years old were killed or suffered serious injury by suffocation or violence. Of those children, a little more than half were under six months old, and 83 per cent were under two years old. Shockingly, 61 per cent of investigations that reached a conclusion resulted in no prosecution. Of the 27 per cent of cases that resulted in a conviction, only a small proportion led to conviction for either homicide or causing grievous bodily harm.
Of 366 cases of death or serious injury to children analysed by the NSPCC, 99 cases resulted in a conviction, 21 in acquittal and 21 in the case being dismissed. No further action was taken in 225 cases. They were not even brought to court. That only slightly more than a quarter of those terrible cases resulted in a successful prosecution is a real indictment of our legal system.
The report of the working group identifies the present difficulties in getting a prosecution—that the fatal injury may have been suffered when the child is in the care of both his or her parents, one parent and a new partner, relatives, foster carers or adoptive parents. The child is unable to tell. Even when an assault is not fatal, an infant or very young child is unable to say who caused the harm. Nor are the carers compelled to account for the period when the injury was inflicted. When interviewed by the police, they can make no reply, not say who did something or blame each other. Article 6(1) of the European Convention on Human Rights has strengthened the common law privilege against self-incrimination.
The position is further exacerbated by the 1987 Lane v Lane case, when the Court of Appeal ruled that in the absence of evidence that indicated which of the two parents had inflicted the assault that led to the child's death, or of evidence that they had acted in concert to assault the child, neither parent could be convicted of murder or manslaughter. In some circumstances, however, there might be a conviction for cruelty or neglect to a child. The consequence is that the Crown can show only that the child was seriously injured or killed when A and B were present. It cannot show that A and B acted together. It cannot determine who was responsible. At the same time, it has to ensure that the person who was not responsible is acquitted. As a result, no conviction follows.
Many cases illustrate the effect of the Lane v Lane judgment, and I shall briefly cite three. In Aston v Mason in 1991, both carers were prosecuted for the murder of a 16 month-old child. There was a conviction for manslaughter at trial, but that was quashed because there was no clear evidence of which parent was present when the fatal injury was inflicted. Applying Lane v Lane, that meant that there was no case to answer.
In Strudwick v Merry in 1994, both parents were convicted of manslaughter but the convictions were quashed. However, the Court of Appeal upheld convictions in that case for long-term cruelty based on other evidence, but the parents evaded conviction on the more serious offence. More recently, in S v C an 18 month-old child suffered a series of assaults over three months and a number of serious and horrifying injuries during a period of 19 hours. Convictions at trial for grievous bodily harm and child cruelty were quashed by applying Lane v Lane. Those cases clearly establish that a conviction for murder, manslaughter, wounding or assault is currently impossible if the prosecution cannot establish which of the child's parents was present when the injuries were inflicted.
It might be argued that a higher sentence, as in the amendment, will not act as a deterrent. That is an imponderable. However, it is important for society to send the message that people who commit such crimes must be detected and will face severe penalty if convicted.
Actually, I do not. Part of the reason is that I am not certain whether I have the wording of the amendment absolutely correct. I am really trying to establish the principle behind what change is necessary. If there is advice that the wording is not correct, I am happy to take it.
My final point is about the clear cross-reference between domestic violence and violence against children. A review of 105 children in 1996 by Brandon and Lewis showed that domestic violence had taken place in almost half the families. When the proposals on the consultation paper on domestic violence are made into law, as I hope they will be, I hope that there will be a further opportunity to press for the change.
The public need to know that the penalty for such horrific cases involving serious injury or death to a child will be treated with the greatest gravity. All the evidence shows that our criminal justice system is failing one of the most vulnerable and defenceless groups in our society. Children suffer serious injury or die in the care of adults who should protect them, yet the number of convictions is minimal. The crimes go unpunished and the offenders remain at liberty, perhaps to offend again. As the Law Commission says, we must improve the law. I hope to hear from my noble friend that urgent action will be taken in line with the recommendations of the Law Commission. I beg to move.
I would very much like to give my general support to the noble Baroness. I shall not try to support every word of the amendment, but she is dealing with a very real problem that is thought by many people to be a real injustice in our law. To many people it seems odd and unjust that, if a person must have died at the hands of one of two people but the evidence does not point unambiguously to one rather than the other having committed the crime, in the absence of evidence of a joint enterprise neither can be convicted. That is the inevitable consequence of it being up to the prosecution to prove guilt beyond reasonable doubt.
That does not mean that there may not be a case for creating new offences which catch those who ought to be convicted of some offence. That is what the noble Baroness, with great ingenuity, is seeking to do. If one were to direct one's attention to that problem, one would find, not only in the case of maltreatment of children but also in other areas of law, that one could create new offences which would prevent obviously guilty people getting away with not being convicted of any offence whatever.
There is nothing unjust in condemning someone who has the opportunity to protect a child from ill treatment and has failed to take it. There is nothing unjust in making that person guilty of an offence and subjecting them to punishment. I therefore hope that the Minister will take the matter away and think carefully about how we might deal with an area of law that has always worried me and many others.
I, too, support my noble friend Lady Gould, but I am rather worried about subsection (4) in her new clause. Frankly, it does not make a lot of sense. However, since she has said that she would be prepared to consider the issue, I recognise that what both she and the noble Lord, Lord Waddington, have said makes a lot of sense. Rather than weary the Committee, I shall merely offer her my support.
I am full of admiration for my noble friend Lord Waddington and I have great respect for the noble Lord, Lord Clinton-Davis. I fully understand what is behind the noble Baroness's intentions in proposing the new clause. However, I come to a different conclusion from that of my noble friend Lord Waddington or of the noble Lord, Lord Clinton-Davis. I hope that the Government will make it clear that to introduce a new offence of that kind is not a serious, practical proposition.
One realises and understands, as the noble Baroness has said, the distress and anger that greets one when one hears that a child has been injured or killed, but that since the prosecution is unable to say which of two people have committed the offence, neither of them can be convicted and both are acquitted. One understands that position, but as I understand the clause, it provides that anyone who is responsible for that child or is one of those people with the child when the child is killed, although that person may be in no way responsible for its death, he shall nevertheless be guilty of an offence of failing to protect the child.
What does that mean? If a father, stepfather—as is often the case—or a stranger kills a child by shaking him or her to death, is one really to say that his or her mother, who may have had nothing to do with his or her death, is nevertheless in some way guilty of an offence, deserving of 14 years' imprisonment? That surely cannot be right.
Although one is then left with the challenge of looking at the evidence to try to prove which individual caused the death of the child, it is not a solution to say that someone else who happened to be present must be assumed, by virtue merely of their presence, to be guilty of an offence in failing to protect the child.
Surely, if a person is present at the time when a child is killed, it is reasonable to assume, until the contrary is shown, that that person, as he or she was present, could have taken some steps to try and prevent the child being killed. If, therefore, the person were charged with failing to protect the child, it would then be open to that person, having entered the witness box, to show that he or she had no opportunity to protect the child. In those circumstances, that person would not be guilty of an offence, but at least the matter would be resolved, because the person would have had to have shown what actually happened.
I do not accept my noble friend's argument. I am not sure what the phrase "whilst it is with two or more people" means. Does it mean that those people have to be present? How does one show that they were present at the moment when the act was committed? In those tragic cases where children are shaken—that is what normally happens—in order to cause injury or death, the act is usually carried out by one person, with nobody else in the room or in the presence of the child. To reverse the burden of proof and say to the other parent, "You must prove that you did everything to protect the child" is not the answer to the problem.
Although I sympathise with and understand the point that the noble Baroness has made, I hope, with great respect, that the Government will not accept her approach.
I support the amendment for all the reasons that my noble friend Lady Gould so eloquently gave, but in addition, I should like to say that when I sat regularly as a magistrate, which I did for more than 15 years, it became increasingly clear to me that what people expected of the justice system was, first and foremost, the full attribution of responsibility for criminal and illegal acts, and after that, of course, the right sentence.
The attribution of responsibility for crimes seems to me to be at the heart of justice. It is what marks the transition of a society from primitive theories of the causation of evil acts to a system based on reason and the rule of law.
Yet in one of the most heinous crimes of all—injuries to or even the murder of children—our law, in its present state, prevents the attribution of responsibility through the trial process when there are two or more adults who must have been involved in the assault, but when it cannot be established beyond reasonable doubt who did what. Those are adults who are in a unique position to safeguard the child or to account for any injuries, but they cannot be brought to book. The law remains impotent in the face of a clearly acknowledged, most serious crime.
The amendment seeks to right that injustice. It does it through modest extensions of the criminal law which were first proposed by the Law Commission and have been endorsed, as my noble friend said, in its most recent report on the subject last month. To adopt this amendment would show real compliance with the spirit of the United Nations Convention on the Rights of the Child and it would ensure that we had brought justice closer to the important sphere of brutal violence within the family.
While for various reasons I need not go into I cannot accept the working of the amendment, I see that it undoubtedly addresses a problem. The one-off attack on a child when there are two people living in the house is not too difficult to solve. It is usually obvious which of the two people committed the offence. However, the trouble is that in case after case of this type there is a long history of a child being battered and of non-accidental injury. In case after case that is brought before the court, there are the hospital records, the doctors' records and the social services records from which one can follow and trace the various injuries as they occur. In the usual position, it is difficult to attribute blame precisely to one or the other if the process of battering ends in death.
There is a considerable danger—and I speak from experience—of the wrong party being convicted and the person who carried out the final fatal attack not being charged. Again, speaking from experience, there is a considerable danger that a jury faced with the history of a battered child will convict both people. I have read and heard about people being acquitted because the jury cannot decide who carried out the act, although I have no experience of that. But far more often, the jury convicts both partners in the house. There are considerable dangers in the judicial process and in trying to identify who did it.
Therefore, such a provision carries a great deal of merit. Perhaps not in this Bill but in a future Bill, the matter should be truly addressed and dealt with.
The Committee is grateful to the noble Baroness, Lady Gould of Potternewton, for moving the amendment and to the noble Baroness, Lady Whitaker, for having reminded us of the need to ensure that we answer the concerns raised outside the House and her wish to see the full attribution of responsibility.
I benefited greatly from the contributions of my two noble friends Lord Waddington and Lord Carlisle of Bucklow. I agree with them both. It may seem curious that I am in agreement with them when they disagree with each other, but here we have a serious problem. The noble Lord, Lord Thomas of Gresford, identified that and I agree with the context in which he put it.
Some high profile cases are crying out for a solution. However, as my noble friend Lord Carlisle said, there are some serious problems. I have seen cases in which one person stands by and does nothing while an abuser is committing criminal acts which can amount to murder and manslaughter. There is sometimes a reason for that. In cases I have seen, the partner of a defendant is often abused and is frequently powerless to stop what is happening.
The clause offers such people a defence, but the burden is put on them to show that they were suffering from abuse at the time. I know from my own practice that many battered women do not admit, even in open court, that they are so treated. Therefore, there is the danger that they will be punished twice.
Furthermore, as I am sure my noble friend had in mind, there have been circumstances in which the partner did not suffer abuse but simply was completely unaware that the abuse was taking place. A whole range of situations must be carefully considered, which is why the matter has received such excellent scrutiny from the Law Commission.
I return to my support for my noble friend Lord Waddington. He rightly says that there is nothing unjust in penalising someone who is just standing by when the crime is committed. That is why I agree with both my noble friends and now look to the Government, with all their resources, to do what Mr Hilary Benn said would be done: to find a solution.
I warmly congratulate the noble Baronesses on providing the Committee with this important debate and I now look forward to hearing the Minister's response.
I, too, congratulate my noble friend on moving the amendment. I totally take into account the fact that she does not propose to pursue it or to suggest that it has anything other than a number of fundamental flaws. She has moved the amendment to enable us to have a debate and I thank her for doing so.
Any death of a child is obviously a sad and terrible matter, as the noble Lord, Lord Carlisle of Bucklow, made plain. We are all concerned to ensure that prosecution in cases of non-accidental death is not hampered by the perceived loophole in the present law. It is not acceptable that those guilty of killing a child in their family should escape because the law cannot determine who struck the fatal blow. A number of agencies have examined the problem, most recently the NSPCC and, very helpfully, the Law Commission.
I regret to tell the Committee that I have experienced cases in which the jury could not decide which person committed the act. Mainly, those were cases in which neither defendant gave evidence. One of the problems we have is that it is difficult in that situation for the court—for the jury—to make a determination as to guilt. The noble Lord, Lord Hunt, is right in saying that in many such cases often the woman, regrettably, has been brutalised and subjugated to such an extent that not only has she not been able to protect her child but she has become unwilling or unable to give evidence against her partner and as a result justice cannot be done. I understand all those problems and they are difficult to solve—not least because if they were easy to solve, governments in the past 100 years would have done so.
But we believe that we may be edging our way towards a solution. We have previously made clear our determination to act. We are wholly committed to legislation in order to resolve this problem. But we need to get this right and to legislate on a complete set of measures to achieve our goal. There are some tricky issues for us to balance. I do not believe that the amendment gets it right, but I entirely understand the thrust of what my noble friend is seeking to achieve. We therefore had, and continue to have, detailed discussions with the Law Commission and others on their proposals in this area.
We have also been working on our own measures in discussion with other government departments, the police, the NSPCC, the working group and other professional people. We have a duty to secure an effective investigation and adjudicative process to protect the rights of children and, indeed, of other vulnerable people. It has been my pleasure to expend a not inconsiderable amount of my time trying to help craft the solution.
We believe that part of the solution lies in changes in procedure and part lies in the creation of a new offence, to which the noble Lord, Lord Waddington, made reference. However, the two need to work together to provide the answer that we need. The amendment before us acknowledges that. I agree with the noble Lord, Lord Hunt, that there is much merit in what the noble Lord, Lord Carlisle of Bucklow, said in relation to caution, and there is much in the passionately expressed opinion of the noble Lord, Lord Waddington, that we must get on and try to do something.
As I said, the two need to work together, but the present Bill is not the right vehicle for a new offence. We believe that, although the Law Commission has taken this whole issue much further than has previously been the case, there may be a little further to go before we are sure that we have the right answer. It must be compatible with the ECHR, the Human Rights Act and all the other matters with which we shall have to deal.
I want to commend my noble friend Lady Gould, who tabled the amendment. It is right to keep this issue in the public eye and, if I may respectfully say so, to keep up the pressure up on the Government, which I feel. The voice of others has been very helpful in ensuring that that happens. I particularly commend my noble friend Lady Whitaker for her ceaseless efforts in this regard. We intend to see that the desire expressed in Committee today is fulfilled. Children have every right to place their trust in their carers and not to discover, to their cost, that it is sadly misplaced and that justice is thwarted. We need to ensure that their killers are brought to justice and that those who stand idly by are also brought to account where that is justified.
With that reassurance, I hope that the noble Baroness will feel content. We shall continue to pursue this issue with a great deal of energy and we hope to find an early opportunity to return to the House when we have an appropriate legislative slot.
I thank my noble friend very much for her remarks. I also thank everyone who has spoken in what I believe has been a very important and interesting debate. I said at the start that I have no legal training, and therefore I tabled the amendment with some trepidation. It was a probing amendment because I felt sure that the wording would not be as it should. I accept that without a doubt. However, I am very pleased that many noble Lords have spoken in support of the principle of the amendment.
I am pleased, in particular, that my noble friend said that the solution is under serious consideration and discussion. Like the noble Lord, Lord Hunt, I look to the Government to arrive at a solution and to bring before the House another Bill that will stop this appalling situation. It has gone on long enough, and those who commit such terrible crimes must be brought to justice. However, at present, I beg leave to withdraw the amendment.
moved Amendment No. 232AA:
(1) Section 23A of the Criminal Appeal Act 1968 (c. 19) (power to order investigations by Criminal Cases Review Commission) is amended as follows.
(2) In subsection (1) after "conviction" there is inserted "or an application for leave to appeal against conviction,".
(3) In paragraph (a) of that subsection—
(a) at the beginning there is inserted "in the case of an appeal,", and
(b) for "case", in both places where it occurs, there is substituted "appeal".
(4) After paragraph (a) of that subsection there is inserted—
"(aa) in the case of an application for leave to appeal, the matter is relevant to the determination of the application and ought, if possible, to be resolved before the application is determined;".
(5) After that subsection there is inserted—
"(1A) A direction under subsection (1) above may not be given by a single judge, notwithstanding that, in the case of an application for leave to appeal, the application may be determined by a single judge as provided for by section 31 of this Act."
(6) After subsection (4) there is inserted—
"(5) In this section "respondent" includes a person who will be a respondent if leave to appeal is granted.""
The Government's proposed new clause in Amendment No. 232AA amends the Criminal Appeal Act 1968 to allow the Court of Appeal to direct the commission to investigate a report on any matter on an application for leave to appeal against conviction, as well as on an appeal against conviction. The proposed new clause in government Amendment No. 232AB makes equivalent provisions for Northern Ireland. There are related minor and consequential amendments to Schedule 30 and Clause 306. Unless noble Lords wish me to do so, I do not propose to go into greater detail.
The Court of Appeal has expressed concern that, on occasions, its consideration of an application for leave to appeal against conviction has been fettered by the lack of a power to have certain issues investigated by the Criminal Cases Review Commission and that it has therefore been unable to consider whether leave should be granted. In the amendments we have sought to address the concerns properly raised with us by the judiciary, and I commend them to the House. I beg to move.
I welcome these new clauses. If I recall correctly, it was not only the judiciary that expressed some concern. Sir Robin Auld—the Minister nods—also criticised the inability of the Court of Appeal to direct the commission to investigate and report to it on any matter in an application for leave to appeal, as distinct from an appeal itself. I recall the noble Baroness explaining in a letter that there may, indeed, be instances where the court might require the assistance of the commission at the application stage and, without it, it might even be forced or obliged to deny leave. Therefore, the amendments are welcome and I support them from these Benches.
moved Amendment No. 232AB:
(2) In subsection (1) after "conviction" there is inserted "or an application for leave to appeal against conviction,".
(3) In paragraph (a) of that subsection—
(a) at the beginning there is inserted "in the case of an appeal,", and
(b) for "case", in both places where it occurs, there is substituted "appeal".
(4) After paragraph (a) of that subsection there is inserted—
"(aa) in the case of an application for leave to appeal, the matter is relevant to the determination of the application and ought, if possible, to be resolved before the application is determined;".
(5) After that subsection there is inserted—
"(1A) A direction under subsection (1) above may not be given by a single judge, notwithstanding that, in the case of an application for leave to appeal, the application may be determined by a single judge as provided for by section 45 below."
(6) After subsection (4) there is inserted—
"(5) In this section "respondent" includes a person who will be a respondent if leave to appeal is granted.""
On Question, amendment agreed to.
moved Amendment No. 232AC:
(2) After subsection (4) there is inserted—
"(4A) Subject to subsection (4B), where a reference under section 9 or 10 is treated as an appeal against any conviction, verdict, finding or sentence, the appeal may not be on any ground which is not related to any reason given by the Commission for making the reference.
(4B) The Court of Appeal may give leave for an appeal mentioned in subsection (4A) to be on a ground relating to the conviction, verdict, finding or sentence which is not related to any reason given by the Commission for making the reference."
(3) In subsection (5) for "any of sections 9 to" there is substituted "section 11 or"."
These amendments concern appellants referred to the Court of Appeal by the Criminal Cases Review Commission. At present, an appellant of this kind can add additional grounds of appeal, whether or not they are related to any reason given by the commission for making the reference. An unlimited number of grounds may be added in this way.
During the passage of the Courts Bill earlier this year we discussed this issue—I see that the noble Lord, Lord Hunt, is smiling and nodding. I was unpersuaded then but I know that I am about to give him considerable satisfaction. I see him beaming that satisfaction at me across the Dispatch Box. We were unable to agree the change on that occasion but have since had the opportunity to consider matters more thoroughly and are now persuaded of the merits of the change.
I am afraid that, not for the first time, the decisive factor is the evidence of the extent to which some appellants are abusing the present regime. Any time wasted by the Court of Appeal in considering manifestly unmeritorious grounds of appeal can serve only to delay other meritorious appeals that anxiously need a determination. I should stress that, in making the change, we are mindful of the special nature of appellants referred to the Court of Appeal by the CCRC. We are well aware that these are potential miscarriage-of-justice cases and would obviously not propose any change that might raise the possibility of a miscarriage of justice going uncorrected.
We are satisfied, however, that the proposals contain the necessary safeguards. We are not limiting appeals in these cases to grounds identified by the CCRC. Under the amendments, appellants will still be able to add further grounds, unrelated to the commission's reasons for making the reference, provided they have the leave of the Court of Appeal to do so. I beg to move.
As I entered the Chamber, a noble Lord said to me that he hoped the noble Baroness would apologise to me. I have a warm recollection of our exchange. On that occasion, the noble Baroness criticised me for having gone on at too great a length in seeking to explain the amendment. Indeed, she said that I had entertained the House—here she used a very rude phrase—to an exhaustive exposition, which can be translated as my having been exceedingly boring.
However, I had only set out the view, expressed very clearly by the judiciary, that there was a need to move in this direction. Therefore, I do not look for an apology; I merely now look for the Government to accept that what we said from these Benches was correct, even though we may have done it at considerable length. I shall certainly not make the same mistake this time. I warmly support these clauses.
moved Amendment No. 232AD:
"Power to substitute conviction of alternative offence on appeal in England and Wales
(1) The Criminal Appeal Act 1968 (c. 19) is amended as follows.
(2) In section 3 (power to substitute conviction of alternative offence) in subsection (1) after "an offence" there is inserted "to which he did not plead guilty".
(3) After section 3 there is inserted—
(1) This section applies on an appeal against conviction where—
(a) an appellant has been convicted of an offence to which he pleaded guilty,
(b) if he had not so pleaded, he could on the indictment have pleaded, or been found, guilty of some other offence, and
(c) it appears to the Court of Appeal that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of the other offence.
(2) The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the appellant's plea of guilty a plea of guilty of the other offence and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity.""
This is another amendment which has been designed to rectify a gap in the criminal appeals legislation. Where the Court of Appeal is hearing an appeal against conviction, after a finding by the jury where the appellant did not plead guilty, it has the power to substitute a conviction of an alternative offence if it is satisfied that the facts established by the jury's finding would also make up the alternative offence.
However, there is no equivalent power in the Criminal Appeal Act 1968 for the Court of Appeal to substitute an alternative conviction following a guilty plea. As I hope noble Lords will understand, an appeal against conviction after a guilty plea is rather unusual. It is perhaps for that reason that the situation is not covered in the legislation.
However, there have been two recent cases in which the gap has caused difficulty; namely, the cases of Horsman and Duggan, to which I referred in my letter to Her Majesty's loyal Opposition Front Bench anticipating these amendments. In both cases the court was dealing with a conviction following a guilty plea and in both cases the court might have substituted an alternative conviction had it had the power we are introducing here.
One might imagine that the power will be generally used under circumstances where the appellant consents to the substitution and, indeed, may even have requested it. However, the amendments allow the Court of Appeal the discretion to impose an alternative conviction on the same facts, even where an appellant does not consent. There may be the occasional case, therefore, for example, where an appellant seeks to withdraw a guilty plea on conviction but the court considered that there is no good reason for him to do so, especially as the appellant will have already admitted to the relevant facts.
That is subject to safeguards, as any conviction imposed in the exercise of this discretion will of course have to accord with the court's obligations under the Human Rights Act. Moreover, I hope that it will be noted that this is only a power to substitute in relation to an equal or less than severe sentence.
Finally, in cases where the court is unsure of the facts, which have been admitted, it will be able to order a re-trial. The amendments are designed to give the Court of Appeal as much flexibility as possible and will fill an unjustifiable gap in the law identified by the court. I beg to move.
moved Amendment No. 232AE:
(1) The Criminal Appeal (Northern Ireland) Act 1980 (c. 47) is amended as follows.
(2) In section 3 (power to substitute conviction of alternative offence) in subsection (1) after "an offence" there is inserted "to which he did not plead guilty".
(3) After section 3 there is inserted—
"3A POWER TO SUBSTITUTE CONVICTION OF ALTERNATIVE OFFENCE AFTER GUILTY PLEA
(1) This section applies where—
(a) an appellant has been convicted of an offence to which he pleaded guilty,
(b) if he had not so pleaded, he could on the indictment have pleaded, or been found, guilty of some other offence, and
(c) it appears to the Court of Appeal that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of that other offence.
(2) The Court may, instead of allowing or dismissing the appeal, substitute for the appellant's plea of guilty a plea of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law by the plea so substituted.""
On Question, amendment agreed to.
moved Amendment No. 232AF:
"SUBSTITUTION OF CONVICTION ON DIFFERENT CHARGE ON APPEAL FROM COURT-MARTIAL
(2) In section 14 (substitution of conviction on different charge) in subsection (1) after "an offence" there is inserted "to which he did not plead guilty".
(3) After section 14 there is inserted—
"14A SUBSTITUTION OF CONVICTION ON DIFFERENT CHARGE AFTER GUILTY PLEA
(1) This section applies where—
(a) an appellant has been convicted of an offence to which he pleaded guilty,
(b) if he had not so pleaded, he could lawfully have pleaded, or been found, guilty of some other offence, and
(c) it appears to the Appeal Court on an appeal against conviction that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of that other offence.
(2) The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the appellant's plea of guilty a plea of guilty of the other offence, and may pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence as they think proper, being a sentence warranted by the relevant Service Act for that other offence, but not a sentence of greater severity.""
On Question, amendment agreed to.
moved Amendment No. 232AG:
"APPEALS AGAINST SENTENCES IN ENGLAND AND WALES
(1) The Criminal Appeal Act 1968 (c. 19) is amended as follows.
(2) In section 10 (appeal against sentence in certain cases) for subsection (3) there is substituted—
"(3) An offender dealt with for an offence before the Crown Court in a proceeding to which subsection (2) of this section applies may appeal to the Court of Appeal against any sentence passed on him for the offence by the Crown Court."
(3) In section 11 (supplementary provisions as to appeal against sentence) after subsection (6) there is inserted—
"(7) For the purposes of this section, any two or more sentences are to be treated as passed in the same proceeding if—
(a) they are passed on the same day; or
(b) they are passed on different days but the court in passing any one of them states that it is treating that one together with the other or others as substantially one sentence.""
This group of amendments will simplify the operation of Section 10 of the Criminal Appeal Act 1968. Section 10 grants a right of appeal to the Court of Appeal against a sentence of the Crown Court where the defendant has been committed by the magistrates' court to the Crown Court for sentence, and under certain other circumstances where the defendant is dealt with in the Crown Court, having previously been dealt with in a magistrates' court.
Generally speaking, the right of appeal is only attracted where a defendant is sentenced on committal to six months' imprisonment, or more. Where the defendant is sentenced to less than six months, there is no right of appeal against the Crown Court's sentence. It would appear that the reason for the limitation is that the magistrates' court has power to impose a sentence of up to six months' imprisonment. Therefore, the thinking seems to be that if the magistrates' court committed the defendant for sentence, it must have thought that a sentence of more than six months was desirable. Accordingly, if the Crown Court imposes a sentence of less than six months, the Crown Court's sentencing decision has acted as a kind of de facto appeal, and the defendant has received a sentence lower than the magistrates' court originally intended. Therefore, the reasoning seems to be that no right of appeal against the Crown Court's sentence is necessary.
As I pointed out in my letter to Her Majesty's loyal Opposition Front Bench, however, the limitation gives rise to the anomaly that if a defendant is convicted on indictment and sentenced by the Crown Court to less than six months' imprisonment, an appeal against sentence lies to the Court of Appeal. If the defendant is convicted in the magistrates' court, committed to the Crown Court for sentence and receives the identical sentence, there is no right of appeal to the Court of Appeal. That cannot be right.
The operation of Section 10 is subject to a further complication. Where the Crown Court imposes any of the sentences listed in Section 10(3)(c) or (cc) of the 1968 Act, a right of appeal lies to the Court of Appeal, regardless of the length of any prison term imposed, and even if no term of imprisonment is imposed at all. Section 10(3)(c) currently includes, for example, orders banning a person from holding or obtaining a driving licence, and football restriction orders.
These exceptions to the general rule under Section 10 give rise to further anomalies. The senior judiciary are of the opinion, and we agree, that the section is in need of simplification. Under our amendments a right of appeal to the Court of Appeal will be available, subject to the usual leave requirement in any case to which Section 10(2) of the 1968 Act applies. I beg to move.
We now move to Schedule 27, which sets out a number of provisions on jury service. We welcome the contents of Schedule 27. However, I seek clarification from the Minister as to the effect of some of the provisions. First, I stress that we warmly welcome the change to an inclusionary approach to juries as currently there are some 4 million people who are excluded, which is an unacceptable figure.
In order for juries to be effective and representative, they must be drawn from society at large and at random. For that reason we are also pleased to note that the abolition of an easy opt out is being tackled in this schedule. For too long people have said that they are too important, too busy or cannot be spared from their jobs to serve on a jury. But I must point out that it seems ironic that the Bill seeks to include in the jury those who are closely involved with the administration of justice. I should like to explore that aspect with the Minister.
Certainly, under the present provisions there is a risk that particular individuals, such as a retired judge or a serving police officer, could well be called to jury service. There is a danger that they would disproportionately influence that jury. It is a danger about which I am sure the Minister will reassure us. That is the purpose of these amendments. There is a concern that a jury would naturally tend to defer to such an individual's view as that person would be seen as having the most experience in the field of justice. In many cases such people might well assert their views as experts and could even persuade the jury to support their decision on the case. Even if they did not identify themselves as connected with the administration of justice, it might be obvious from the way in which they discuss the evidence and talk about the case during deliberations that they know more than most and even through inadvertence could affect the outcome of the trial.
It would be hard to hide one's identity from the rest of the jurors were the juror in question to be the Lord Chief Justice or a member of the high-profile judiciary. Those closely connected with the administration of criminal justice will also know the reasons why juries are sometimes excluded from the court room while a judge makes a ruling on a piece of evidence, a confession, an allegation of bad character, or whatever. It will be hard for those with that kind of knowledge to put it completely from their mind and to try the case on the evidence before them when they will suspect, or indeed may even know from signs that they would understand, that there is more evidence of a controversial nature.
On a more practical note, the schedule seems to have been ill thought through in one or two other respects. I take, for example, the situation of a district judge called to serve on a jury. It would be reasonable to assume that he would not be asked to travel a large distance to carry out his duty and so would probably report to his local court—most likely his own. There he would know the court staff and might even know a few of the defendants.
While such a person, male or female, is listening to the case, they might ask many questions. That is an absolute right of a member of the jury, but that kind of questioning might well disrupt the trial and distract the other jury members. In summing-up or in advising the jury on the law, the trial judge may make a mistake that the judge serving on the jury notices. I wonder what would happen in those circumstances. Would the individual be allowed to point out the error or would the trial be allowed to carry on until there is an appeal?
The solution to these problems is to be found in this group of amendments. They would not grant a blanket exemption for those connected with the administration of justice; rather they would exempt them if, in the opinion of the appropriate officer, other jurors might give their views undue weight. The amendments would insert a new subsection into the 1974 Act to ensure that a person who wished to challenge the appropriate officer's decision either way could have the issue resolved by the Crown Court. They would also enable the appropriate officer to obtain the court's guidance, where necessary.
I hope I have explained my reason for moving the amendment. I need some reassurance. It might well be helpful to the Committee if the Minister were to explain how she sees this particular side of jury service developing. I stress again how warmly I welcome the Government's extension to an inclusive system. I beg to move.
This point needs a certain amount of consideration. It is not so much the issues upon which a judge has to decide as a matter of discretion—for instance, those under Section 78 of the Police and Criminal Evidence Act—because those matters will not be left to the jury. I have in mind, particularly in relation to Amendment No. 232E, the situation where there is a question of inferences from silence.
I cannot believe that juries are not surprised that on occasion a defendant says nothing about a particular matter. I remember one case—and I am sure many other noble Lords with experience of this issue will remember similar things—in which one defendant out of a group did not give evidence because he had a bad record and consequently would be cross-examined by one of his co-defendants. One then has the problem of what to say to a jury about inferences from his failure to give any evidence. I can readily see that that someone on a jury who knew about these things would carry an undue influence. I believe that the noble Baroness, Lady Scotland, could help us greatly in describing how she sees this kind of situation being resolved.
The issue would have to be resolved at the selection stage of a jury. These things do not necessarily arise at an early stage in a trial; they turn up as it goes along. One does not want to have a jury member, who has obviously been acquainted with the other members of the jury in the course of the proceedings, suddenly being discharged because something arises about which he or she is bound to know more than would be good for anyone to be told about during a jury's deliberations. There are great practical difficulties on this issue. I shall be very interested to hear what the noble Baroness has to say about it.
I should declare an interest because I am in the unusual position of having actually served on a jury. I concluded my degree aged 20, but did not join the Middle Temple until shortly after my 21st birthday. In the interim I was called to jury service. I must confess that to your Lordships because I did not disclose my knowledge to the jury. So, I was perfectly aware that the defendant had convictions when they were not put in; I was also perfectly aware that the basis upon which the judge retired was to hear something on the voir dire; and I understood perfectly the issue. I must say that I hope it did not impinge on my ability to do justice, but I did not tell anyone who I was.
So I understand the anxiety about the issues raised by the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Hunt. We believe—and I welcome the warmth given to these provisions by the noble Lord, Lord Hunt—that widening the ambit of people who can give assistance as jury members is very important and that we need to have that inclusion clearly faced.
The proposal will take two stages. There will undoubtedly be circumstances in which it would not be appropriate for, say, a police officer, a judge, or a lawyer to serve on a jury. A number of safeguards exist to ensure that people whose presence on a jury might threaten, or even appear to threaten, the fairness of a trial will not so serve. These will be adequately covered in the new arrangements.
The screening process is to have two stages. At the first stage, the jury summoning form, which will need to be amended to reflect the new arrangements, invites anyone who thinks they have a "good reason" to defer or be excused from jury service to state that reason. One such reason would be that it is very likely that the person will know, or be known to, someone involved in the conduct of the trial. The guidance to be issued by my noble and learned friend the Lord Chancellor will also make this clear.
A number of noble Lords know about the situations of which I speak. There are members of the judiciary who have been in an area for a very long time. There will be no one in that locality who does not recognise either their face, their name or sometimes, just as importantly, their voice. There will be police officers who have worked in an area for a very long time. It may be that in another district, in another area but within the same jury catchment, it would be perfectly proper for them to so serve. So we would—
I am very grateful to the noble Baroness, as will be the Committee, for her careful exposition of these matters. But she is clearly reading from some guidance or draft guidance. It perhaps might be useful to the Committee for her to share her detailed notes on this issue. Rather than take up the Committee's time in going through the guidance, it might be very helpful before Report for noble Lords to have sight of the document to which she refers.
I regret to tell the noble Lord that there is no document: I seem to have developed the ability to read and think at the same time—I know that that is somewhat testing. If it would be more helpful, we could certainly set out in a written document the sort of ideas that we have about how it will work. They are not set in stone, because they are just our thinking, but I want to reassure the House that we entirely take on board the issues raised by both the noble Lord, Lord Hunt, and the noble Viscount, Lord Colville. We shall have to make proper arrangements. I should be happy to do that.
The Minister mentioned people who have been detained at some stage, especially under Part 2, in relation to disqualified persons. There is a small group of people—immigration detainees—who may subsequently find themselves legally qualified to remain in the United Kingdom. Will they have to wait for 10 years before they can serve on a jury, or will the fact that they have been found to be legally entitled to stay in this country entitle them to jury service?
The noble Lord raises an interesting point. It will date from the time that they are declared to be lawfully in the country. I do not know whether we have resolved that difficulty. Usually, the time starts to run from the moment that lawful presence or residence is acknowledged. I do not know the precise answer; I shall certainly write to the noble Lord, because he has raised an interesting point.
I am grateful to the noble Viscount, Lord Colville of Culross, for his intervention. Like him, I can see some great practical difficulties here, but the Minister has done much to reassure us. Without wanting to curtail matters, I am grateful to her for having agreed to share with us in more detail some of the anticipated guidance. I am pleased that it is in draft form, so that we have a real opportunity to influence it before it is finalised.
I should make clear that I do not have guidance; I have our outline thinking on the matter. I am certainly happy to place the outline that I have just described in written form, but it would be wrong if the Committee were to think that we yet have the guidance, because we have not. I can do my best to provide that outline.
I was referring to guidance with a small "g". I was warmly welcoming the guidance that the noble Baroness will give us. That will give us the opportunity to think through some situations; we are very much with her on how vital is the inclusive nature of a jury. Against that background, I beg leave to withdraw the amendment.
moved Amendment No. 233:
For section 37(2) of the Crime and Disorder Act 1998 (c. 37) (aim of the youth justice system) there is substituted—
"(2) The youth justice system shall also have regard to the following principles—
(a) the welfare of the child shall be the paramount consideration;
(b) deprivation of liberty should only be used as a measure of last resort and for the shortest possible time;
(c) any decisions must be made in the best interests of the child.
(3) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to the aim and principles.""
The amendment stands in my name and in that of the noble Baroness, Lady Massey of Darwen. Unfortunately, the noble Baroness has been detained from your Lordships' House this afternoon through other responsibilities, but she supports the amendment.
The purpose of the new clause is to establish a clear legal framework for the youth justice system to be guided by child-centred principles that meet the UK's obligations under international and domestic law and to ensure that all those working in the youth justice system, including the Prison Service, courts and youth offending teams are guided by those principles.
I shall make a few general comments before I move to the three principles in the amendment. We feel that the new clause is necessary because the Bill contains proposals that will significantly reform the criminal justice system in the UK. In attempting such a broad revision of the system, the Government fail to give adequate attention to the particular need to protect children and young people from the full force of the criminal law and to ensure that their welfare and best interests are at the forefront, in line with our domestic law and international obligations. A group of children's charities and justice organisations is urging the Government to amend the Bill to ensure that the welfare and best interests of children are at the heart of the youth justice system.
I shall now outline the specific reasons why we feel the need for a statement of principles in the Bill. That is because the youth justice system has been the subject of criticism from the United Nations Committee on the Rights of the Child and successive reports from Her Majesty's Chief Inspector of Prisons. The recent report from the chief inspector, Safeguarding Children, found that:
"the welfare needs of children and young people who commit offences were not being addressed adequately by those responsible for their welfare".
The UN Committee on the Rights of the Child has also expressed serious concerns about the UK's treatment of children in trouble with the law—in particular, our failure to establish a system of juvenile justice that fully integrates the convention. The United Nations Convention on the Rights of the Child commits the UK to separating the system for children in trouble with the law from that for adults—in Article 40—to ensuring that the best interest of the child are a primary consideration in all decisions about them—in Article 3—and to ensuring that custody is used only as a measure of last resort—in Article 37.
The amendment sets out clearly a framework for the youth justice system that would meet all those obligations and requirements and clarify the necessary safeguards for children while—this is crucial—retaining the primary overall aim of the youth justice system as set out in the Crime and Disorder Act 1998, which is the prevention of reoffending. That Act contains no statement of principles to guide those working in the system.
The other relevant provision is Section 44 of the Children and Young Persons Act 1933, which requires all courts to have regard to the child's welfare. Although important and valuable, that provision is often neglected and is in need of clarification and strengthening. It applies only to courts, not to the whole of the youth justice system. That is why we feel that the amendment is necessary.
It would also bring the legislation in England and Wales in line with that in Northern Ireland, where the Justice (Northern Ireland) Act 2002 sets out a framework for the youth justice system there that establishes that all persons and bodies exercising functions relating to youth justice must have regard to the welfare of children.
First, I address the new clause's provision for the welfare of the child. The Children Act 1989 states that in all matters relating to the upbringing of a child the court must have the child's welfare as its paramount consideration. That is generally regarded as setting the marker and standard for the treatment of children and young people in England and Wales. However, the welfare principle contained in the Act is not clearly applied to proceedings other than family proceedings. There are signs that the welfare of the child is not being given adequate consideration in the youth justice system, where greater emphasis is placed on punishment delivered by strictly offending-related assessments and programmes of intervention.
The recent joint report of Her Majesty's Chief Inspectors, Safeguarding Children, found that the welfare needs of young people who commit offences were not being adequately addressed by those services responsible for their welfare. In particular, the work of the youth offending teams was found to be focused exclusively on the offending behaviour of young people and there was little evidence of welfare needs being addressed or considered. The report further found that the YOTs were detached from other services and not fully addressing children's needs for protection and safeguarding.
Although, as the Howard League judgment of November 2002 by Mr Justice Munby in the High Court, established, the Children Act 1989 applies to children in prison, it does not apply to the Prison Service, which means that, unlike authorities, it does not have a clear statutory duty to safeguard the welfare of children. In the light of that judgment, the Joint Committee on Human Rights recently recommended that an amendment to the Children Act 1989 be sought at the earliest opportunity to place a statutory duty to safeguard the welfare of children on the Prison Service and local authorities. The amendment would go a long way towards achieving that aim.
The second point of principle is custody as a last resort. The current population of the juvenile secure estate in England and Wales is more than 3,000, which is significantly high, when compared to the majority of western Europe. Recent Home Office figures confirm that the UK now has the highest overall prison population rate among countries of the European Union. Since the early 1990s, successive legislation has increased the availability of custodial measures for remand and sentence for children as young as 12. That has reversed the trend established in the 1980s away from custody. It has resulted in year-on-year increases in the numbers of children in custody. That is another reason why we need the statement of principle.
In October 2002, the UN Committee on the Rights of the Child published its response to the UK Government's implementation of the UNCRC. The committee was extremely critical of the UK Government with respect to the youth justice system in England and Wales. It expressed particular concern about the increase in use of custody for children, especially young children, and their treatment in custody. Article 37 of the UN convention states that the imprisonment of a child shall be used only as a measure of last resort and for the shortest possible time. The UN committee states:
"It is the concern of the committee that deprivation of liberty is not being used only as a measure of last resort and for the shortest appropriate period of time, in violation of article 37(b) of the [convention]".
It is a very clear direction regarding the use of custody, to which the Government should pay attention.
In particular, the committee expresses concern that the detention and training order has been introduced, allowing children aged 12 to 14 to be deprived of their liberty. Implementation of Section 130 of the Criminal Justice and Police Act 2001, which relaxed the criteria for making court-ordered secure remands, has also increased the numbers of children in custody. The Youth Justice Board has stated that the piloting of Section 130 has had a "significant impact" on the size of the juvenile custodial remand population. The noble Lord, Lord Warner, chairman of the Youth Justice Board, has described the measures as "unsensible".
The third principle is the best interests of the child. In its 2002 report, the UN Committee on the Rights of the Child made its most comprehensive and severe criticism of the UK's administration of juvenile justice. In particular, the committee recommended,
"that the State party establish throughout the State party the best interests of the child as a paramount consideration in all legislation and policy affecting children, notably within the juvenile justice system".
Although the Children Act 1989 establishes that decisions taken by the court must be taken in the child's best interests through the establishment of the welfare checklist and the need for the court to take all matters into account, the Crime and Disorder Act 1998 has eroded that principle in dealing with children who offend by stressing the primary aim of preventing offending above all other considerations. That is another reason why we feel that a restatement of the principle of best interests is needed in the Bill.
I am aware that the Green Paper Every Child Matters and the Next Steps document that accompanies it set out some possible changes to the youth justice system, some of which are very welcome. However, the document covers only sentencing issues. It fails to address the problems across the whole youth justice system and the difficulties caused by a system that is not fully separate from the adult criminal justice system.
I hope that the Minister will be inclined favourably towards our amendment since it would retain the Government's overall aim for the youth justice system—the prevention of offending by children—while reinforcing and clarifying the necessary safeguards for children and better complying with the UK's children's rights obligations. I beg to move.
My noble friend Lady Massey could not be present, but I wish to take the opportunity to support the noble Baroness, Lady Walmsley. I pay tribute to the noble Baroness for the wonderful way in which she champions in this House the rights of children. I support the amendment. I wish to reinforce the three principles to which the noble Baroness has spoken.
I was involved in the launch, in July 2003, of Scope, an umbrella group of most of the children's charities, including the National Children's Bureau, Barnardo's, the NSPCC and others. The real concern of those organisations in coming together was to address the very issues that the amendment highlights. The concern is that we are not living up to our international obligations. We are talking about the human rights of children. We should see the distinction between children and adults. I would have thought that it was very much in keeping with the Government's thinking.
The Green Paper published recently is a very positive document welcomed by many of us concerned with children's rights. Clearly, it still has some way to go, but that such work is being done on so many fronts is a welcome innovation. I hope that the Government will listen to the principles in the amendment, that they will take the amendment to heart and include it in the Bill.
The noble Baroness, Lady Walmsley, has made a very powerful case in setting out the amendment. It forces us to think about the numbers and the position of children under 18 who are still held in adult prisons. That has been the subject of at least one report by the Howard League, chaired by, I believe, my noble friend Lady Masham of Ilton. It has been discussed in your Lordships' House on several occasions. I ask the noble Lord, Lord Bassam, how many children under 18 are held in adult prisons? If they are still there, are they at least held in wings separate from adult prisoners? It is regrettable that relatively little progress has been made on the issue. I hope that the noble Lord will have some good news for us today.
I am extremely grateful to the noble Baroness, Lady Walmsley, for moving this very constructive amendment. I suspect that, ultimately, there is not much difference between our objectives and views. I am sure that the noble Baroness will wish to join me in paying tribute to the noble Lord, Lord Warner, for his important work as chair of the Youth Justice Board before he moved on to his current ministerial responsibilities. The work of the Youth Justice Board has enabled us to make progress in how children and young people are treated and regarded in the criminal justice process. It has perhaps broadened perspectives on how the criminal justice process works in the interests, and supervises the interests, of children and young people caught up in the criminal justice system.
I echo the tribute that the noble Baroness, Lady Kennedy of The Shaws, paid to the important work carried out by the noble Baroness, Lady Massey, in that field. I recognise the vigour with which the noble Baronesses have argued and advanced their case.
We established in the Crime and Disorder Act 1998 that the principal aim of the youth justice system is to prevent offending by children and young people. That has proved to be of great value, acting as a focus for previously disparate agencies and services and enabling us to face up in a pragmatic, non-judgmental way to the problems that crime causes to society. By focusing on offending behaviour by children and young people, we are acting in their interests because we are trying to get behind the issues relating to that pattern of offending.
The welfare of young offenders has long been a very important issue in the criminal justice system and has a long history. The noble Baroness, Lady Walmsley, referred to legislation going back to 1933—the Children and Young Person's Act 1933—which obliged those involved in government and the provision of services to have regard to the welfare of juveniles when sentencing them. Welfare considerations are therefore firmly rooted in legislation.
Let us also be clear, however, that child welfare is not the only consideration in the justice system and cannot be the main consideration. The justice system exists to tackle crime; welfare issues arise as a consequence of the need to tackle crime. We must also have proper regard to the needs and interests of victims and the wider community. We have a duty to ensure that justice is delivered and that the needs and interests of victims are not lost in the process. It is also our view that preventing offending is, as I said earlier, in the best interest of the child or young person and does not undermine the interests of the victim and the wider public.
Praise has already been heaped on the Green Paper, Youth Justice—The Next Steps and the main children Green Paper Every Child Matters, both of which were published on 8th September. In those documents we propose a single main sentencing purpose of preventing offending. Currently, the sentencing of young people is subject to several different statutory aims and principles—a point that was underlined by the noble Baroness, Lady Walmsley, in her contribution to the debate. As such, the relationship between and the relative strength of preventing offending, taking account of welfare and ensuring just desserts is not entirely clear.
We propose a single main sentencing purpose of preventing offending to put the main priority beyond doubt. We propose that that main purpose would be supported by requirements for sentencers to take into account the extent to which punishment is needed; whether, and if so how, there needs to be public protection because of the seriousness or persistence of the offending; the individual's age and vulnerability; whether there should be a restorative or reparative approach or obligations on the young person; and what particular interventions have been tried if the person has been sentenced before and what would be appropriate now or in the future. It is a holistic approach that takes on board many of the concerns raised in this debate.
With regard to welfare, what we are proposing through this formula is a more up-to-date, pragmatic equivalent of age and vulnerability, which is less value-ridden and focuses on the actual issues that can require special protection for a young person. It is selective and highlights the practical points. We propose that other sentencing considerations, along with their cost and evidence of their effectiveness, will be set out by the Sentencing Guidelines Council.
We should welcome views on this proposal, and, indeed, on all the other proposals outlined in the consultation document. Those views should be forwarded by 1st December. We do not consider it sensible to make changes in law to the principles of juvenile sentencing in advance of that consultation process. That would be approaching it from the wrong end. That brings me to the remaining part of the noble Baroness's amendment to this Bill—minimising deprivation of liberty. Such a measure should, of course, be used only as a last resort in respect of all individuals and should not be taken lightly. It is particularly important that children and young people do not get sent to custody or other secure accommodation by the courts if there is a more appropriate alternative sentence.
In Youth Justice—The Next Steps, we have put forward proposals on introducing more intensive sentences as the main response to the serious and persistent offending of juveniles. Intensive supervision and surveillance—a highly supervised community programme involving close attention from supervising officers, full-time daytime programmes and electronic monitoring—is currently being expanded to 4,200 places in England and Wales by January 2004, three-quarters for sentenced juveniles and a quarter for bailees. However, custody would still need to be available when the offence or offences are so serious that only a physical restriction of liberty can be justified. It is finally for the courts, and rightly so, to use their judgment when choosing the most appropriate sentence for an individual young offender.
We are happy to undertake to look seriously at building the thinking behind this remaining element into future strategic sentencing purposes for youth justice. However, it is not our intention to tinker now. We have fallen into that trap too often in the past. We want to stimulate and hear a full debate on the proposed general purposes and put together a properly integrated formula for new legislation. Our minds are therefore open on the issue and we are delighted to have stimulated debate on it, of which this discussion is an important part. Tinkering with the process of sentencing at this stage, however, would be wrong and inappropriate.
The noble Lord, Lord Hylton, asked about the numbers of juveniles in custody in adult institutions. My figures suggest that, at the end of August 2003, there were 2,760 juveniles held in secure facilities of which 2,270 were held by the Prison Service. Only around 100 of those juveniles mix with over-18s when there are genuine reasons and in strictly controlled conditions. I am sure the noble Lord will be aware that the Prison Service has a distinct estate for 15 to 17 year-old boys. They are in 13 juvenile-only establishments on their own sites or on sites shared with, but separate from, young offender institutions for 18 to 20 year-olds. I hope that that provides some context.
We are beginning to witness a reduction in the number of young people held in custody. The numbers peaked in October 2002 at some 3,175. Since then, they have fallen back to 2,760 in August this year. That is a decrease of just over 13 per cent. I am sure that that reduction after a period of increase will be welcomed by all. I hope that that answers the statistical point raised by the noble Lord earlier. Following my comments, I hope that the noble Baroness will feel able to withdraw the amendment.
My noble friend Lady Walmsley made an important point about the judgment given a year ago on an application for judicial review by the Howard League to which the Minister failed to reply. My noble friend mentioned the distinction between what the court decided about the welfare of the child and the responsibility of the agency to provide that welfare. This amendment misses that particular obligation. Nowhere in the Minister's explanations does he give any indication whether the judgment was considered by the Home Office and whether there is likely to be any appropriate legislation in the near future. If there is not, is it not right in this day and age that we have legislation that covers the duty and obligation of the agency, not just the welfare of the child?
I apologise if I missed that point. I thought that I was making the general point throughout my reply. Of course, the welfare of the child is extremely important. It is at the core of our thinking and forms a part of the consultation documents that were published recently. I cannot comment specifically on whether the Home Office directly reflected its thinking on the particular case mentioned by the noble Lord when constructing the consultation documents, although I am sure that it will have done because that case clearly has an important bearing on the way in which these policy issues will develop in the future.
If there are particular points that I have missed, I would be happy to follow them up, perhaps in correspondence, which I would be happy to share with other noble Lords who have taken part in this debate and related debates.
I thank the Minister for that response. I also thank the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Hylton, and my noble friend Lord Dholakia for their report. I am delighted to see that the noble Baroness, Lady Massey of Darwen, is in her place and that her other responsibilities have allowed her to be present for the Minister's response. I add my warm compliments to the noble Lord, Lord Warner, who is now a health Minister in your Lordships' House, on the sterling work that he did when he was chairman of the Youth Justice Board. It was at that time that he made the comments that I quoted.
The Minister said that he felt that we had the same objectives: I agree. However, he said the objective was to prevent offending and reoffending by children. He said that that should be the primary objective of the youth justice system, not the welfare of the child. Offending behaviour often occurs because the child's welfare has been compromised. Addressing the child's welfare would help to meet the Government's objectives for the youth justice system. I pointed out the shortcomings of existing law in that regard. I am not satisfied that the Minister has given an explanation that covers the reasons why we feel that the new clause is required.
I add my praise to that for the Green Paper Every Child Matters. It has the potential to make many improvements to the life chances of children in this country. I look forward to giving my response to it in the fulness of time. However, as I said, its weakness is that it covers only the sentencing system, not the whole system. With due respect, I do not believe that the Minister covered that point.
I was delighted to hear the Minister's restatement of the principle that custody should be the last resort for young people and for all offenders. However, the fact remains that numbers in custody are rising. Nobody is suggesting that custody should never be available for those who need to be taken away from the public because they are a danger. The fact that the number of young people in custody is rising must be recognised, and something must be done about it. I welcome the indication that the Minister gave that the principle is likely to be built into future legislation more clearly than it is at the moment. I look forward to seeing the Bill—I presume that that is what the Minister meant—that will follow the Green Paper in the fulness of time during the next Session of Parliament. We will have many conversations on the subject in the next 12 months.
I shall read with great care what the Minister said. On behalf of the noble Baroness, Lady Massey of Darwen, and myself, I beg leave to withdraw the amendment.
moved Amendment No. 233A:
"OVERCROWDED PRISON ESTABLISHMENTS
No prison shall hold more prisoners than is provided for in its certified normal level of accommodation without Parliament being informed and then only when it is deemed safe to do so by the responsible authority."
One area of concern that was repeatedly reflected in the House, particularly at Second Reading and in several amendments, is the substantial increase in the prison population that will result from the Bill. We have an unacceptably high prison population. In many cases, it exceeds the CNA—the certified normal level of accommodation. Almost all disturbances in prisons are a direct result of overcrowding. In almost all cases of treatment or rehabilitation, we fail because of the unacceptably high prison population. Over 60 per cent of people reoffend within two years of discharge because the size of the prison population is not conducive to a rehabilitation or resettlement programme.
I do not wish to sound alarmist, but it is clear that there is a serious danger that control and discipline in our penal institutions will be a matter of serious concern, if we do not control the prison population. The purpose of our amendment is to prevent overcrowding in prisons.
Custodial sentencing is carried out with no regard to the facilities available to accommodate prisoners. It leads to the overcrowding of facilities, with serious consequences for the ability of the Prison Service to provide regimes of a sufficient standard. It also means that the activities of prisoners are reduced and that it becomes less possible to accommodate prisoners safely and humanely. In turn, those factors limit the capacity of the prison system to reduce the risk that prisoners will reoffend on release.
By legislating to prevent capacity in prisons being exceeded without parliamentary oversight and to allow it only when the Prison Service deems it to be safe, we will help to focus attention on the need to reduce unnecessary custodial sentencing. I beg to move.
The noble Lord, Lord Dholakia, has raised an important matter, but it is not a new one. We must go back many years—to 1940. During World War II, no more prisons were built, and the Home Secretary—a Labour Home Secretary, I think—gave a ruling to those responsible for looking after the prisons that there should be three prisoners to a cell, not two, if more than one prisoner were admitted. That was a sound principle. It prevented homosexuality and has worked pretty smoothly.
In the years since, more prisons, especially open prisons, have been built, and the prison population has remained high. If the amendment moved by the noble Lord, Lord Dholakia, were made and the principle behind it put strictly into operation, some problem or other might arise. However, the noble Lord has made it easy for the matter to be dealt with by asking merely that Parliament should be informed. It is a matter that we should have in mind, and the Government should welcome the requirement to inform Parliament as a moderate solution to the problem.
I support my noble friend Lord Renton and the noble Lord, Lord Dholakia. My noble friend is right to say that it is an important matter. He speaks from the position of having had a distinguished career as a Minister, particularly at the Home Office. The noble Lord, Lord Dholakia, speaks with the authority of the chairman of the National Association for the Care and Resettlement of Offenders. He has served on the councils for nearly 20 years and has been chairman since 1998. We have had an important discussion about a pressing issue, and I shall add my own concerns about the situation.
The Prison Reform Trust study, which was based on the Prison Service's data for England and Wales, was published recently—in July, I think. It showed that a serious situation was developing. For instance, the rate of positive drug tests rose to 11.7 per cent last year. The trust made it clear that that was happening in a range of areas as the system struggles to cope against a background of overcrowded gaols, leading to poor performance.
In 2002–03, we saw the highest number of suicides on record, with 105 gaol inmates taking their lives. Prisons in England and Wales also failed to meet their overcrowding target, with 20.4 per cent of the average population doubling up in single cells, against a Prison Service target of 18 per cent. In Shrewsbury, the most overcrowded gaol in England and Wales, there was an average of 91.1 per cent of prisoners doubling up. That situation cannot be allowed to continue, nor can it be allowed to deteriorate.
The report reveals a Prison Service in which performance is very seriously hampered by a record prison population. Far too many prisons are overcrowded, provide inadequate levels of purposeful activity and experience high levels of recorded drug use. The only way to improve the situation is to reduce the prison population and to extend facilities immediately. The noble Lord cleverly highlighted the problem by proposing that if a prison must be overcrowded, Parliament should be informed. We must have a safe environment in our prisons. I support my honourable friend and the noble Lord.
I, too, heap praise upon the noble Lord, Lord Dholakia, for his selfless work in relation to NACRO, over many years. I know that this is an issue dear to his heart, and rightly so. The new clause, after Clause 294, requires the Secretary of State to inform both Houses of Parliament whenever—that is the issue—a prison is to hold more prisoners than its certified normal accommodation, which is the uncrowded capacity, and that a responsible authority had considered it safe to do so.
I understand the import of what the noble Lord seeks to do, but it is unnecessary. It is important, but existing procedures already ensure that the conditions under which prisoners are held are humane and decent and that a responsible authority exists to ensure that prisoners are held safely.
As noble Lords will concede, certified normal accommodation is a measure of the uncrowded capacity. It represents the good, decent standard of accommodation that it is aspired to provide to all prisoners. The degree by which an establishment can exceed its CNA is known as the "operational capacity", which is determined by operational managers on the basis of their operational judgment and experience, taking into account control, security and the proper operation of the planned regime. Notwithstanding these considerations, all accommodation must be certified in accordance with Section 14 of the Prison Act 1952 and Rule 26 of the Prison Rules 1999.
Details of changes to individual prison capacity are already made available on a monthly basis. Any requirement to inform Parliament before a change occurs would be difficult to deliver practically. Every week, several prisons may adjust their capacity for operational reasons—such as, refurbishment or opening new capacity—sometimes outside parliamentary business hours.
I hear what noble Lords have said about overcrowding and pressure in prisons. To reinforce what we said earlier, we wish prison to be the port of last resort. We have invested greatly in this area. The Government are already investing £1.3 billion in extra capacity in 2005–06. The Prison Service will increase capacity by nearly 3,500 places in existing prisons by 2006. A further 1,290 places will be provided through the new prisons currently under construction at Ashford, near Heathrow, and at Peterborough. The Prison Service continues to investigate options for providing further increases in capacity over the coming years.
Longer-term planning is being taken forward within the correctional services review, which is looking at the future direction of correctional services as a whole. Noble Lords know all that we are doing in respect of home detention curfew, intermediate sentences, conditions and reformation and the way in which we are able to take advantage of opportunities to release people safely into the community slightly earlier than we would otherwise. We take on board the noble Lord's concerns. I assure him that we are addressing them. The procedures are there to ensure that there is proper accountability.
I am grateful to the noble Baroness for her reply. In the light of what she said, I shall look at the amendment again. However, I suspect that I shall continue to support what both noble Lords said. There is very serious concern about our prison population. No amount of tinkering or building more prisons will help because, put simply, they will be filled up.
My approach is simple. Ultimately, if Parliament is not informed about exceeding normal capacity, the only alternative is to raise repeated debate on the subject, which we have done in the past. It will be helpful to examine what the Minister said and perhaps return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.
moved Amendment No. 234:
Page 338, leave out lines 4 and 5 and insert—
"(2) A parenting order is an order which requires the parent—
(a) to comply, for a period not exceeding twelve months, with such requirements as are specified in the order, and
(b) subject to sub-paragraph (3A) below, to attend, for a concurrent period not exceeding three months, such counselling or guidance programme as may be specified in directions given by the responsible officer."
Amendments Nos. 234 to 239 are necessary because of amendments made in the Anti-social Behaviour Bill to the Crime and Disorder Act 1998—the legislation dealing with parenting orders. The changes made in the Anti-social Behaviour Bill allow greater flexibility in the delivery of parenting programmes. They allow a programme to consist of, or to include, a residential course, provided that the court is satisfied that this is likely to be more effective than a non-residential course and that any interference with family life is proportionate.
The amendments deal with changes to the numbering of the Crime and Disorder Act and also ensure that, where a parenting order is imposed following a parent's failure to attend a youth offending panel meeting, the parenting order can include a requirement to attend a residential course in the same way as other parenting orders.
Residential parenting support will be appropriate only in exceptional cases for families in serious crisis, where the court is satisfied that this is likely to be more effective than a non-residential programme. The residential approach would enable parents to be taken out of their home to a setting that is structured so that more sustained counselling and guidance work can be carried out. Proper arrangements for the care of children will be crucial. Courses would be tailored to meet specific circumstances. Therefore, children might attend residential courses on a voluntary basis, thus enabling work to take place involving the family.
Intensive work involving the whole family can be very effective. It can be carried out at a residential centre to supplement work being carried out with parents and their children separately. In some other circumstances, a short period away from their children is exactly what parents need in order to concentrate and benefit from structured counselling and guidance.
I have sought to outline these amendments more fully because I know that a number of noble Lords not present in the Chamber today are anxious about such provisions. I thought it right to put them on record. I beg to move.
moved Amendments Nos. 235 to 237:
Page 338, line 6, leave out from "under" to "are" in line 7 and insert "sub-paragraph (2)(a) above"
Page 338, line 9, at end insert—
"(3A) A parenting order under this paragraph may, but need not, include a requirement mentioned in subsection (2)(b) above in any case where a parenting order under this paragraph or any other enactment has been made in respect of the parent on a previous occasion.
(3B) A counselling or guidance programme which a parent is required to attend by virtue of subsection (2)(b) above may be or include a residential course but only if the court is satisfied—
(a) that the attendance of the parent at a residential course is likely to be more effective than his attendance at a non-residential course in preventing the commission of any further offence by the offender, and
(b) that any interference with family life which is likely to result from the attendance of the parent at a residential course is proportionate in all the circumstances."
Page 338, line 14, leave out ", (5)"
On Question, amendments agreed to.
Schedule 28, as amended, agreed to.
Clause 295 [Arrangements for assessing etc risks posed by certain offenders]:
moved Amendment No. 238:
Page 169, line 5, at end insert—
"( ) every local education authority any part of whose area falls within the relevant area,"
Amendments Nos. 238 and 239 respond to an undertaking made by the Government in Committee in the Commons to consider, in light of a proposed amendment, whether to include local education authorities in the list of agencies on whom a duty to co-operate with the police, probation and prison services—the "responsible authority"—in the establishment of arrangements to assess and manage the risks posed by sexual and violent offenders will be placed.
These arrangements, commonly referred to as the multi-agency public protection arrangements, the MAPPA, were originally introduced by the Criminal Justice and Court Services Act 2001. The Criminal Justice Bill strengthens them by requiring other agencies to co-operate with the responsible authority in each area to the extent compatible with their existing statutory responsibilities.
In practical terms, including local education authorities in the "duty to co-operate" provisions will help the responsible authority to take fuller consideration of any risks that a particular offender may pose to children for whom the LEA has a statutory duty. It will also enable LEAs to draw to the attention of the responsible authority, and to the other duty to co-operate bodies, concerns that they may have about the vulnerability of a particular child to the risks posed by an offender.
Such a strengthening of the MAPPA will therefore improve inter-agency liaison and joint working to which the report of the noble Lord, Lord Laming, into the tragic death of Victoria Climbie drew attention. We have sought to respond here to concerns that were raised on this issue. I hope that these amendments will find support among noble Lords. I beg to move.
moved Amendment No. 239:
Page 169, line 24, at end insert—
""local education authority" has the same meaning as in the Education Act 1996 (c. 56);"
On Question, amendment agreed to.
[Amendment No. 239ZA had been withdrawn from the Marshalled List.]
Clause 295, as amended, agreed to.
Clauses 296 and 297 agreed to.
Clause 298 [Criminal record certificates: amendments of Part 5 of Police Act 1997]:
On Question, Whether Clause 298 shall stand part of the Bill?
In June of this year the Criminal Records Bureau was in a dire state when figures on its performance were published. The bureau had set a target for 95 per cent of standard checks to be completed in one week. By March 2003 only 19.4 per cent of those cases met the target. The target for enhanced checks was 90 per cent to be completed within three weeks. In practice, the target was achieved in only 52.4 per cent of cases. On valid applications a target of 98 per cent was set to be achieved by March 2003, but it was achieved by only 6.5 per cent. So the bureau was in a complete mess, under-resourced and a bureaucratic nightmare.
The solution opted for by the bureau was to double the criminal record check fees on 1st July of this year from £12 to £24. Even after that was done, the bureau's books will not be balanced until 2007, losing £12 on every check carried out.
The record checks in question are those carried out for people in sensitive occupations, and it is against that background that Clause 298 has been introduced into the Bill, together with Schedule 29. That schedule contains clauses introduced as amendments by the Home Secretary, seeking powers to allow the staff of private companies to have access to the police and criminal records of applicants to positions in teaching and social and voluntary work. Such information is extremely sensitive, but it is to be made available to a private company. It will be accessed by staff who are not properly vetted and not aware of data protection issues and confidentiality. This is a short-term solution to address the total failure of the Criminal Records Bureau to process the volume of work it receives accurately and in a speedy fashion.
Instead of tackling directly the problems faced by the Criminal Records Bureau, this proposal is a short-term effort to bring in private companies to carry out functions which should properly be confidential and controlled by government. We oppose the clause and we shall oppose the schedule when it is put forward.
I rise to speak to Amendment No. 239A. This amendment has been tabled following anxieties expressed to me by the Civil Service unions, in particular by the PCS, the Public and Commercial Services union. I seek the removal of paragraph 10 of Schedule 29 because I could not think of any other way of raising the questions that I want to put to my noble friend on the Front Bench.
"such parties as he may determine".
It is that wording which worries both myself and the PCS union. To say the least, the wording is very loose. As the noble Lord, Lord Thomas of Gresford, has already pointed out, it refers to an area which concerns sensitive information and where the need for confidentiality is paramount. What are the "relevant functions" and who are the persons to be determined by the Secretary of State? Surely these should be spelt out in the schedule.
The paragraph raises a number of other issues. First, I understand that the idea for this proposal came from an independent review team, chaired by Patrick Carter, which reported almost a year ago, in December 2002. The PCS believes that things have moved on and that the proposals may no longer be needed. Perhaps my noble friend could comment on that.
Secondly, if the proposals are needed, the PCS believes that they could blur the line between the public and private sectors and those who work in them—a danger already indicated by the noble Lord. In terms of the public services, obviously the PCS is keen to ensure that public sector responsibilities are adhered to and that confidentiality in centres of information is protected and preserved.
Thirdly, I understand that some areas of Home Office work are already being outsourced by the Capita group to India. It would be extremely worrying if this area was likely to be outsourced. I believe that measures are needed to ensure that this important work is carefully protected, preferably by writing into the schedule the appropriate safeguards.
Finally, I refer to the implementation of this part of the schedule. Would its enactment be subjected to the affirmative resolution procedure; that is, will any proposals for enactment be presented to Parliament before they are put into effect? If not, that would leave the Secretary of State with a great deal of power in a very delicate area. I hope that my noble friend can set my mind at rest on these issues.
In doing so, as the Committee would expect, I do not intend to claim for a second that the establishment of the Criminal Records Bureau has been one of the Government's finest processes of implementation. It has been bedevilled by problems and it has been a very difficult challenge to get it right.
Having said that, let me explain why these measures will be a part of the continuing process of improvement to ensure that the Criminal Records Bureau is able to fulfil its extremely important function of ensuring that no one is employed by public or other bodies in situations where, because of their past records, they might put the vulnerable public at risk.
Clause 298 and Schedule 29 make a number of amendments to Part 5 of the Police Act 1997, which sets out the statutory framework under which the Criminal Records Bureau operates. The Committee will be aware of the difficulties faced by the CRB in its first few months. As a result of these difficulties, my right honourable friend the Home Secretary, as pointed out by the noble Baroness, Lady Gibson of Market Rasen, appointed an independent review team, led by Patrick Carter, to take a fundamental look at the operations of the CRB. The provisions in Schedule 29 flow directly from the review team's recommendations. Their aim is to further improve the performance of the CRB so that it is well placed to meet future challenges as demand for disclosure services continues to grow.
The recommendations should be viewed against the backdrop of a sustained improvement in the CRB's performance since last autumn. The bureau is now issuing on average 40,000 disclosures a week compared with 24,500 in August 2002. It is also now meeting its service standards for turnaround times, with more than 90 per cent of standard and enhanced disclosures being issued within two and four weeks respectively. However, the Home Office is not complacent. We need to build on these improvements in performance and ensure that the CRB has the necessary capacity to meet all the demands for its services, particularly in relation to higher level disclosures.
This is where the review team's recommendations and these amendments to the Police Act come in. The CRB is a vital element of the Government's programme to improve the protection of children and vulnerable adults from those who might wish to harm them. To meet this objective, the CRB must be placed on a sounder footing.
The amendments to the 1997 Act give effect to four of the review team's recommendations. First, they recognise and upgrade the critical role of registered bodies. The CRB is too remote from an applicant for a disclosure to carry out the identity validation process effectively. This role ought properly to fall to the registered body which countersigns the application, but with scope to delegate the function to the employer or other agent in appropriate cases. To ensure that registered bodies discharge their responsibilities effectively, the amendments enable the CRB to attach conditions to a registration and to suspend or cancel a registration where such conditions are breached.
The second issue addressed by the amendments concerns the electronic submission of applications. Recent consultation carried out by the Home Office with registered bodies suggests that there is strong support for an electronic channel. Many registered bodies will wish to adopt such a channel as their preferred means of submitting disclosure applications. The migration to the electronic route will not happen overnight, but there may come a point where there will be a diminishing case on efficiency grounds for maintaining the existing telephone and paper channels. A facility to mandate the electronic channel could therefore in the future be useful, although at this point in time there is no intention to move to that forthwith.
The third area covered by the amendments is the criteria for determining who qualifies for a standard disclosure and who should get an enhanced disclosure. A standard disclosure simply includes details of any criminal convictions. An enhanced disclosure also includes any relevant local police intelligence. Because applications for enhanced disclosures need to be referred to local police forces, they are necessarily more costly and time consuming. It is important therefore that we do not tie up resources producing enhanced disclosures in situations where they are not appropriate. To this end, the amendments establish a flexible mechanism to set the criteria for determining who qualifies for an enhanced disclosure and then provide the CRB with the means to ensure that such criteria are properly observed. The CRB will want to rely on education and support for registered bodies in the first instance and will exercise this new power only as a last resort.
Finally, the amendments to the 1997 Act will facilitate the more flexible deployment of Civil Service and private sector staff working together under the umbrella of the CRB. I should emphasise that the power to delegate functions is discretionary. There have been some concerns about the possibility that non-civil servants will be given access to conviction information on the police national computer. No decision has been taken to delegate the PNC matching function but, were we to decide to do so, I can assure the Committee that the delegation will be subject to all appropriate safeguards, which I will spell out in more detail later.
Having set out the purpose of the amendments to Part 5, let me explain the effect of removing Schedule 29 from the Bill. First, we would lose the ability to set and enforce performance standards for registered bodies. This would mean the continuation of a lack of rigour exercised by a minority of registered bodies in confirming the identity of a disclosure applicant—it is of course fundamental to the system working that you verify the identity of the person about whom the check is being made—which could open up the possibility that a known paedophile might gain access to children.
There would also be a continuation of the high error rate in applications forms. Some one in four forms have to be returned to registered bodies for the correction of errors or for the supply of missing information. We would also lose our ability to better define the criteria for eligibility for enhanced disclosures, as I indicated previously.
There would also be no power to mandate the use of an electronic application channel—which is most likely to come on stream at some point in the future, if not immediately—and, finally, there would continue to be artificial barriers between the functions that can be carried out by civil servants and those that can be carried out by the CRB.
Let me turn to the issues raised by the amendment of the noble Baroness, Lady Gibson. She asked, first, whether these powers are still necessary. The answer is yes, they are. Following the conclusions of the high level review carried out by Patrick Carter, with the active involvement of the Permanent Secretary of the Home Office, senior civil servants in the department are firmly of the view that these powers are needed.
As I indicated, the intention behind the provision is to facilitate more effective business processes—a ghastly term—from beginning to end to ensure that the relationship between the CRB and Capita, which carries out many of the operational functions, is effectively integrated, albeit subject to appropriate checks. In other words, it is to optimise the efficiency of the CRB by rationalising management responsibilities and the respective roles in an end-to-end chain of the CRB and Capita. The current system creates artificial barriers in the way of efficient end-to-end processes. However, I emphasise that this power is discretionary. In the event that we decide to go down this route, the delegation will be subject to appropriate safeguards to protect sensitive information.
I shall list those safeguards because they go to the heart of the question of whether there is risk involved in this. I apologise for speaking at length but there are concerns about these issues. The safeguards are as follows. All staff with access to the PNC would be vetted to a level equivalent to an enhanced disclosure. Paragraph 11 of Schedule 29 to the Bill contains a specific new offence of unauthorised disclosure of information obtained in connection with a delegated function which would apply if a member of Capita's staff passed on, without proper authority, information obtained from the PNC.
Next, all bodies gaining access to the PNC for the first time are checked by the Police Information Technology Organisation—PITO—which is responsible for managing the PNC and sets strict security safeguards. All users have unique ID and a password system operates. They are required to operate in accordance with security operating procedures—I will not go into detail. Access to the PNC is auditable by the CRB itself, by PITO and by the police.
The noble Lord knows that from the establishment of the system, Capita was contracted by the Home Office as part of the operation of the Criminal Records Bureau service. The Criminal Records Bureau agency had employed Capita as part of the system from the beginning; it is not bringing in Capita now to sort out the system, but trying to improve the way in which the agency and Capita work so that the functions for which the CRB is responsible are effectively carried out. They have been there from the beginning.
I was not involved in that process in any detail—I am looking for any signs of life in the Box. There would undoubtedly have been a public procurement process. I would have expected that more than one tender was submitted as a result of that public procurement. I am assured that there was competition—there was a competitive process.
The short answer is no. After someone has won a competition on very large procurements—I am speaking in generalities—there is usually a fairly complex negotiation to go from the competition into a final contract. When that contract is let, its terms apply for the period of the contract as it runs. There are always, in such cases, processes for revision and alteration to the contract.
I have been in danger of going on at length but I felt it was important that I set out why this is necessary. Let me turn to some of the other questions that have been raised.
I was asked if the delegation of power is subject to any parliamentary procedure. The straight answer is no: the power to delegate the Secretary of State's functions under Part 5 of the Police Act 1997 is not subject to parliamentary procedure. No objection to this was raised by the Select Committee on Delegated Powers and Regulatory Reform.
In response to an implied question by the noble Earl, Lord Russell, the contract was for 10 years, after which time it will be retendered.
In short—perhaps in long—those are the main issues to which I have sought to respond. I have sought to explain why these powers are necessary and why we believe they will help to improve the service to the bodies that require it, therefore improving public protection, which is, of course, what this is all about.
I had not intended to intervene, but I am driven to do so by having considered the debate in the other place. I recall an earlier exchange in this House in which my noble friend Lady Blatch pointed out the problems that this House has when clauses and schedules are not debated properly in the other place. I was enjoying listening to the Minister when he was reading out his speaking note, because it followed, almost exactly, the speech made on 20th May in the other place by Mr Paul Goggins, except that the Minister was able to complete his remarks. Mr Goggins was rudely interrupted by his own guillotine Motion. He had started:
"The amendments to the 1997 Act give effect to four of the review team's recommendations . . . This role—"[Official Report, Commons, 20/5/03; col. 955.]
Nothing more was heard by the other place. A guillotine Motion deprived the other place of debating this at all. Fortunately we have now had the conclusion—or, indeed, the substantial part—of what Mr Goggins intended to say.
I am concerned about the way in which the focus has been on blaming individuals who have tried to do what the Government have asked them to do when I believe the real blame is with the Government themselves. I would like to put that on the record. It is very easy to do so, because all I have to do is quote the present Lord Chancellor, now the Secretary of State for Constitutional Affairs, from a speech made on 11th March in a debate with the very erudite and efficient Winifred Robinson on the "Today" programme. He said:
"We tried to do too much too early. We should have introduced the checks on a gradual basis. . . . The consequence of trying to do everything too early was we ended up in a situation where the CRB wasn't able to cope".
"We've now stabilised what the CRB does".
However, the problems continue. We constantly hear press reports about how employees have been forced to wait months before starting new jobs.
I felt I had to put the record straight. I believe that the Government made a series of errors in setting up and demanding that the CRB should carry out these functions. I just hope that the Government will have an efficiency scrutiny of their activity in demanding the impossible as the review team now seeks to see its recommendations implemented. There is a lot to learn from this mess, and I hope the Government will learn the lessons.
I hope that I was clear when I introduced my remarks by indicating that not for one second did the Government seek to claim that they did not have responsibilities for how this process unrolled, even though others may have had responsibility as well. It does us no credit to pretend that we are not at fault.
As to lessons learnt, I recollect from the time when I was in the Home Office—not so long ago—that both Ministers and officials were seriously aware that they had learnt a lot about how to handle major projects of this sort so that they reduced the likelihood of such problems happening in the future.
Having said that, I think the noble Lord, Lord Hunt, is slightly uncharitable; the situation is nothing like as bad as it was a year ago. It certainly should not be as bad as it was a year ago because that was unacceptable. Substantial progress has been made and it is very important that we continue to sustain that rate of progress, which is why we believe these powers are necessary.
It seems to me that it just shows that parliamentary accountability does not work. This has been a mess. The civil servants are unsure about their position, as the noble Baroness, Lady Gibson, told us. The other place had an explanation that was cut short by a guillotine. We come here today, in a small Committee, to discuss this issue in the way that we have. It is really is not very satisfactory, and I will come back to this issue on Report.
moved Amendment No. 239ZB:
"EXCLUDING CIVIL LIABILITY OF VICTIMS OF CRIME
(1) A person who has been convicted of a criminal offence before a relevant court shall have no civil action for damages in respect of personal injury caused by the victim of the offence for which that person has been convicted unless the court considers that it is in the interests of justice that such action can be brought.
(2) Subsection (1) shall only apply to personal injuries caused during the circumstances of the offence for which the person was convicted.
(3) For the purpose of subsection (1) "victim" is defined as any person natural or corporate—
(a) whose interests were affected or threatened by the relevant offender, or
(b) who believed on reasonable grounds that their interests were affected or threatened by the relevant offender, or
(c) who was, at the time of the offence, a servant or agent of any person falling within paragraph (a) or (b) and who either knew or reasonably believed that the person's interest were so affected or threatened by the relevant offender.
(4) For the purposes of subsection (3) "interests" includes—
(a) any proprietary interest;
(b) a personal interest in avoiding physical injury.
(5) For the purpose of subsection (1) "damages in respect of personal injury" shall be defined to include all consequential loss suffered by the offender."
Earlier in this evening's proceedings, we received an assurance from the noble Baroness, Lady Scotland, that a unit within her department was monitoring carefully every commitment made by a Minister to ensure that it was then implemented. I would be greatly reassured by her comments were it not for the fact that I am now being forced to introduce a new clause to exclude civil liability of victims of crime when last February the Home Secretary had a discussion with my right honourable friend Oliver Letwin, on the "Today" programme. In recognising the importance of the points being made by Mr Letwin, Mr Blunkett said that he would find a solution. The Home Office did not appear to have found a solution in May, even though it was said that a new clause would be put forward in this place. We are now on the final day of the Committee stage—sadly, because there is so much that we should have debated, and we have not had time properly to consider the Bill. We move towards Report stage on further days, and we have not had a new clause from the Government, which is why I am moving this new clause.
There has been public outrage about the fact that there appeared to be a situation in the legal system whereby a burglar could sue his or her victim and recover damages with the benefit of legal aid. It is probably a euphemism to use the phrase "public outrage". That marvellous campaigning newspaper, the Daily Mail, has highlighted it on many occasions, as have the BBC and others.
The new clause raises the issue of civil proceedings brought by criminals against their victims after their conviction and arising out of the circumstances in which they committed the offence. The clause would wholly deprive anyone convicted of a crime of the right to sue or bring civil proceedings against their victim on the basis of the circumstances in which they committed the offence. In many ways, we on these Benches are seeking to turn the Home Secretary's words into action, given the lack of any response from the Government in moving a new clause, as was originally promised.
We are all aware of the extent to which the current system has given rise to that serious public disquiet. There have been a number of high profile cases, the most notable of which is probably that of Mr Tony Martin. I do not want to make a comparison with that case, because it is certainly not acceptable in any way to use excessive force. However, there are provisions in the existing system, in the criminal law, to deal with the situation.
The public, and many noble Lords, feel most strongly about the issue of compensation, for several reasons. First, if a criminal commences civil litigation, public money is often put at his disposal—a fact that is widely reported by the press. Secondly, the present system does not allow many victims of crime to receive compensation. Obviously, if they suffer injury, they are entitled to go to the Criminal Injuries Compensation Authority. However, very often there are material losses to the victims—usually the poorest, who are often uninsured. It is often hard or even impossible for them to recover from those losses.
The law as regards self-defence, which should also be considered with regard to the new clause, is also unsatisfactory. What constitutes reasonable force, with which one is legally allowed to defend oneself, one's family and one's home, is decided in accordance with the facts of each case. However, from the way in which cases are reported in the press, it is now unclear to most people in the country whether they can defend their homes or themselves without problems or the fear of being sued. That is surely an untenable situation.
I hope that the Government respond positively to the new clause and enable law-abiding people to feel that they can defend their homes without the fear that they may be punished twice. I beg to move.
We on these Benches support the new clause. It is very important that the victims of crime receive proper compensation. I know that the Minister will give us an assurance that the level of compensation paid under the compensation scheme will continue as it is now. Victims should not carry the burden of legal proceedings being brought against them on top of what they have suffered personally and physically. We support the new clause.
In supporting the amendments moved by my noble friend Lord Hunt, I repeat the question asked by the noble Lord, Lord Thomas. My noble friend referred to the Criminal Injuries Compensation Board. Is any review taking place at the moment of the scope of the board? If so, what are its terms and when will we know its outcome?
I thank the noble Lord, Lord Hunt, for tabling this important amendment. I make it clear that the Home Secretary does not intend to resile in any way from the commitments that he gave. I shall explain in the course of my comments why there has been some delay.
The amendment would prevent any person who has been convicted of a criminal offence from pursuing a civil action in damages for any personal injury caused by a range of people falling within the definition of a "victim" of the offence, unless the court considered that it was in the interests of justice for the action to be brought.
The Government are sympathetic to the concerns raised by the Opposition in this area, and recognise the need for people to have confidence in the justice system. It is important that victims of crime are not subject to unjustified claims for damages when they have acted reasonably and proportionately in defending themselves or their property. We recognise that there may occasionally be cases that raise public disquiet and understand the concerns that can be raised by even one case. The Government have indicated that we shall take action.
We are thinking along the same lines as this amendment, but we consider that some aspects of it need to be improved. For example, it is unclear how and when a claim should proceed and what mechanisms would enable it to do so. The amendment would give a very wide discretion to the courts as to whether the claim should proceed, which could operate to reduce its effectiveness. It would cover corporate bodies and the proprietary interests of the victim, which we believe may not be the best approach, but would not protect from civil action a third party such as a police officer who had intervened to defend the victim. It also does not make clear that other defences currently available to the victim would continue to be available, such as the doctrine of ex turpi causa non oritur actio, which can operate to deny an action arising from a base cause.
We therefore intend to bring forward a government amendment which is clearer and more focused, and which will genuinely strengthen courts' powers to reject unmeritorious claims. This is a complex area of the law, and any amendment could have implications for a number of related areas, including the common law on self-defence; the law on negligence and contributory negligence; and the application by the courts of certain common law doctrines such as ex turpi causa. We are giving those implications very careful consideration.
We have also been considering the concerns raised by the public about the granting of legal aid to fund the type of case that we are discussing. Public funding is intended to help the least well off in society with the cost of legal advice, and it is open to anyone who wishes to bring or defend proceedings in the English or Welsh courts to apply through a solicitor to the Legal Services Commission for funding. The criteria for the grant and withdrawal of public funding are laid down by Parliament. The Legal Services Commission cannot differentiate between applicants on the grounds that a decision to grant funding may be unpopular. Decisions are made solely according to whether an application meets the statutory criteria. Funding applications are assessed according to a means and merit test. Only those applicants who satisfy both statutory tests will qualify.
Reference was made to Mr Fearon, who was granted some limited legal aid funding under the Legal Aid Act 1988. A more stringent merit test was introduced under the Access to Justice Act 1999. The Lord Chancellor has directed the Legal Services Commission to include the current criteria for funding personal injury cases in its consultation about changes to the scope of Community Legal Service funding and the funding code later in the year, with a view to tightening the rules in that area, so that any future claim, such as that of Brendon Fearon, would be excluded from the normal scope of the Community Legal Service.
An application for public funding under the exceptional funding powers under Section 6(8)(b) of the Access to Justice Act 1999 would be possible for any excluded service. However, an application would be less likely to meet the additional criteria set for exceptional funding.
I hope that by outlining the measures that we are taking forward on both the civil law and legal aid, the Government have made clear their intention to address concerns that have been raised. However, as I indicated, this is a complex area of civil law and it is important to produce a clear, strong and effective amendment that does not have any damaging effects on the wider law. Unfortunately, it has not been possible to finalise matters in time to put forward an amendment at this stage of the Bill. However, we aim to bring forward an amendment on Report. I hope that on that basis the noble Lord, Lord Hunt, on behalf of the noble Baroness, will not press the amendment. We are trying—
It may assist the noble Lord if I remind him of the point raised by my noble friend Lord Carlisle of Bucklow, which was supported by the noble Lord, Lord Thomas of Gresford. Is there a review going on into the Criminal Injuries Compensation Board? My noble friend Lord Carlisle is a former distinguished chairman. Could we have more details and an answer to the questions that he raised?
As is sometimes the case, in another five seconds I would have found the relevant information, but I have it now. As has been said, there have been press reports on the matter the noble Lord mentioned. We are certainly trying to improve the focus and efficiency of the criminal injuries compensation scheme and to draw in additional resources to achieve better support for victims and witnesses. I can therefore say clearly that we hope to publish a consultation paper on this matter in a couple of months or so to set out how we intend to move forward on the issue with thorough consultation.
That is one of the issues that the consultation paper will set out. It will consider how the criminal injuries compensation scheme should be developed and improved for the benefit of victims and witnesses. I cannot prejudge the detail of the document or the outcome of the consultation.
With the greatest respect, one will have to wait to see how the process of consultation rolls out on an intent by government to improve the operation of the Criminal Injuries Compensation Scheme. Any other comment would clearly be premature.
Before the noble Lord replies to that, I have not followed what is to happen. As I understand it, we are not going to have an amendment on this particular matter on Report. We are going to have a report as a result of the Law Commission's consultations and various other considerations and that will come forward in legislation at some time in the future—goodness knows when, given the Government's programme. I happen to come from the part of the country where Mr Tony Martin and Mr Fearon had their conflict. It is a very lively issue there. It would be helpful to know what will happen and have some indication when it is going to happen. We need to know that.
I may have missed the point but I sought to be explicitly clear on the matter. In short, the Government will fulfil the commitment given by the Home Secretary in this respect. I have indicated that we are broadly sympathetic to the amendment tabled by the Opposition Front Bench. We shall bring forward a considered and careful government amendment on Report to seek to put beyond danger the concerns that the public quite rightly and understandably have in this respect. It would have been good if we had that amendment before us tonight but it will be with the House on Report with a very earnest endeavour to close this loophole.
I have also been asked about the review of the criminal injuries compensation scheme. I have stated very clearly that there will be a consultation paper on that. We are not in a position to say any more at this point about its scope and depth, but in a sense it is self- evident that it will consider how the criminal injuries compensation scheme should be developed to give better justice to victims and witnesses. But any further than that no government can at this stage go.
I am very grateful to the noble Lord, Lord Filkin, for what he said, but we do not have a lot of time. This is a very complicated issue. I think that the noble Lord, Lord Carlisle of Bucklow, would probably agree with me that a number of issues, both criminal and civil, are involved which need to be carefully considered. We have something in the order of a fortnight. When will the amendment, or a draft of it, be produced so that people can take advice on it? I really do not think that it is any use supposing that we can come to a satisfactory conclusion upon this matter if the amendment is put down about two days before the Report stage is started in this House. Can the noble Lord give us any indication about when we shall get the text?
It will be tabled in time for the Report stage of this Bill. If it is possible to table it earlier to give as much notice as possible to noble Lords who are interested in the matter, that will be done. However, I can say no more than that apart from giving the commitment that the amendment will be tabled for Report, as I believe I have now said three or perhaps four times.
I speak for a number of Members of the Committee when I say that it may be the repetition which is causing us some concern. Here we are right at the eleventh hour with a matter of days to go before the consideration on the proceedings of this Bill will be concluded. We have a statement that the amendment which I had the opportunity of moving this evening is substantially what the Government would like to see but that they would like to make certain changes to it. Therefore, it is not clear to me why the Government do not accept the amendment and seek to improve it on Report. At least we would then have a basis on which we could work. As the noble Viscount pointed out, it may well be that the Minister already has a draft, in which case it would be very helpful indeed if he published it.
The only other point I make concerns my serious disquiet about the review of the Criminal Injuries Compensation Board. I believe that we read about it in the press but I was not aware until this evening that the Government had confirmed that there was such a review. That causes considerable concern as in my experience of government the Treasury's hand will be somewhere within this. If I am wrong, let the Minister say that the Treasury is not at all involved in this matter. The Treasury will be looking for better value for money from the Criminal Injuries Compensation Board. The review is bad news for victims. I regret the fact that it just slipped out during the Minister's speech. I hope that the Minister will indicate whether he has a draft amendment and why he will not accept our amendment as a basis on which improvements could be made. I think that everyone is a little bewildered about why we cannot make progress.
I believe that I signalled at length why we thought that the amendment had merit in principle. However, considerable areas of difficulty arise regarding specific legal points on the intersection with other areas of civil law. Therefore, it would mislead the Committee to accept the amendment at this point. The best process is to bring forward an amendment as soon as possible which meets exactly the same issue that the noble Lord, Lord Hunt of Wirral, wishes to achieve, but does it in a way that we consider is right and sound. We shall do that as early as we possibly can but it is important that we bring forward a sound amendment. I am advised that we shall try to table the amendments one week before they are due to be debated, if we possibly can. I think that is an improvement on what I said previously.
To be short about the criminal injuries compensation, there was a leak. I gave a straightforward response as a result of that leak. We make it clear that we will have a consultation paper which we will put out for proper consultation as soon as we can. There has been no breach of parliamentary procedure whatever on that; clearly, there has been a breach of some other codes in terms of divulging confidential government information. I hope that there will be general rejoicing at the serious intent to come forward with a consultation paper on criminal injuries, and we very much hope that Members of the Committee will participate in and respond to that.
I have no knowledge of that whatever. However, if I can supply any information on that, I shall be pleased to write. Within two months or so, the intent is to bring forward a consultation paper, as I have indicated.
The noble Lord, Lord Hunt of Wirral, has done some excellent work on the amendment and bringing the issue forward, but that last comment is unworthy of him. We have made it quite clear that there has been a leak of government work in progress before we are in a position to make an announcement. Governments are not usually blamed for leaks being seen as a breach of faith of process.
I was, on many occasions in the other place by the opposition in my time as a Minister. When there was a leak, a certain Mr Cook unfortunately seemed to be the beneficiary of a number of brown paper envelopes. However, I shall not go over that, except to say that we immediately made the situation on leaks open and clear in a Statement to Parliament. That is what I rather regret is not happening. The Government may well have been caught by surprise, but something has leaked. Perhaps there should be a more detailed explanation, but that is for another time and place.
I am also very disappointed about the lack of any new clause or amendment so far, but heartened that it will be with us at least one week before we debate the issue again. I am comforted by that, and in those circumstances I beg leave to withdraw the amendment.