Criminal Justice and Immigration Bill

– in the House of Lords at 3:07 pm on 22nd January 2008.

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Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 3:07 pm, 22nd January 2008

My Lords, I beg to move that this Bill be now read a second time. This is a wide-ranging Bill: it traverses youth justice, sentencing, anti-social behaviour, the risk management of violent and sex offenders, the law on self-defence and the possession of extreme pornographic images, to name but a few of its provisions. However wide ranging, at its core, this is a Bill about protecting the public, promoting the rehabilitation of reoffenders and further strengthening confidence in the criminal justice system.

Much has been achieved in these areas in the last 10 years. Crime is down by one-third. Police numbers have increased by 14,000 and there has been significant investment in the prison and probation services. We have also set out, in response to the report by my noble friend Lady Corston, an action plan to improve provision and services for women, in order to tackle their offending at an earlier stage, particularly in the community and before they end up in custody.

I am under no illusion, however, about how much more needs to be done. Crime needs to come down further, as do reconviction rates. Few in this House will take solace from the number of children and young people currently in custody. No one can pretend that these issues can be tackled by the passage of legislation alone, but criminal justice legislation has a contributory role to play in helping to tackle crime and anti-social behaviour, and in enhancing the protection of the public.

Many of the provisions in this Bill build on successful innovations to be found in earlier legislation passed by the Government. The generic community sentence for adult offenders, crack-house closure powers and sexual offences prevention orders have all proved their worth in recent years. Why not apply those successes to other contexts, such as the punishment and rehabilitation of young offenders, tackling significant and persistent anti-social behaviour centred on particular premises and the protection of the public from violent offenders?

Part 1 provides for the youth rehabilitation order. This new generic community order will simplify the sentencing structure for young offenders and enable the courts to tailor sentences to individual risks and needs. Over time the youth rehabilitation order should help to reduce offending and the number of young offenders sent to custody.

Part 2 makes a number of reforms to sentencing. They build on the framework set out in the Criminal Justice Act 2003 and reflect the experience of operating that Act over nearly three years now. The Government will always ensure sufficient prison places to accommodate those serious and dangerous offenders on whom the courts see fit to pass a custodial sentence. Over the past 10 years we have increased prison capacity by more than 20,000 places and, following the review by my noble friend Lord Carter of Coles, we will see capacity rise by a further 15,000 places to 96,000 places by 2012.

My noble friend's remit was not just to look at the supply of prison places, but at the other side of the equation—demand. We need to ensure that prison and probation resources are properly focused on serious, dangerous and violent offenders, with public safety coming first. The Bill contains a number of provisions to this end, many as a direct result of recommendations in my noble friend's report.

Public protection sentences are reformed to increase judicial discretion and refocus them on the most dangerous offenders. Credit will be given to offenders who spent time on bail subject to an electronically monitored curfew, in a similar way to the credit currently given in respect of time spent on remand. The two are clearly not analogous, which is reflected in the fact that the credit given will be at only the rate of half a day for each full day subject to curfew and then only when the terms of the curfew are adhered to.

Release and recall arrangements are also reformed, first, by bringing the arrangements for the recall of offenders sentenced under the Criminal Justice Act 1991 into line with the arrangements for those sentenced under the 2003 Act. Release arrangements for non-dangerous offenders sentenced under the 1991 Act to a sentence of four years and over will also be aligned with the release provisions in the 2003 Act. In addition, the Bill provides for a fixed 28-day recall period for non-dangerous offenders who breach the terms of their licence, restricting the use of suspended sentence orders to indictable and either-way offences, and restricting the availability of community sentences to imprisonable offences only. Lastly in this part, the Bill amends the Bail Act to restrict the grounds on which a person charged with an imprisonable summary offence may be refused bail. Taken together these measures will help ensure that the prisons system is put on a sound and sustainable long-term footing.

Part 3 deals with appeals and changes to the test applied by the Court of Appeal when considering an appeal against conviction. They contain significant differences to the provisions originally in the Bill when it was considered in the other place. Part 3 has been substantially revised. The Court of Appeal will retain the ability to quash any conviction, even in cases where the guilt of the appellant is not in doubt, when it is of the view that it would seriously undermine the proper administration of justice to allow the conviction to stand. This will enable the court to uphold the rule of law by taking account of serious misconduct by the police or the prosecuting authorities.

Parts 4 and 5 place the offices of the Prisons and Probation Ombudsman for England and Wales and of the Prisoner Ombudsman for Northern Ireland on a statutory footing. In placing what have previously been purely administrative arrangements on a firm statutory basis, it is the Government's view that the Bill would substantially enhance the standing and independence of the new commissioners. However, it is evident from public statements made by the current ombudsmen and by the Parliamentary Ombudsman that there is significant concern about the provisions. All three ombudsmen have argued for a different model that provides for direct accountability to Parliament.

I want to make it clear that we wish to proceed with Parts 4 and 5 on the basis of a consensus if at all possible. In the absence of such a consensus at present, I advise the House that I intend to table amendments in Committee to withdraw these two parts. In doing so, I want to assure the House that the Government remain committed to placing these two important offices on a firm statutory basis. We will now enter into a period of further consultation with interested parties. We will need to be satisfied that any alternative statutory model will provide value for money and enhanced service. We hope that there will be an early opportunity for Parliament to return to this issue.

I refer in this section to the provisions in Clause 105 which extend the remit of Crown Prosecution Service designated caseworkers. The Government consider the deployment of designated caseworkers an efficient and effective means of dealing with straightforward advocacy in the magistrates' courts, enabling Crown prosecutors to focus more effectively on the provision of advice and to devote more time to the preparation and handling of serious, complex and sensitive casework. The Government firmly believe that allowing designated caseworkers who are properly supervised, suitably trained and externally regulated to appear in a wider range of criminal hearings can only benefit the criminal justice system by delivering greater efficiencies through the more focused deployment of Crown prosecutors. This can be achieved without any drop in the level of service, not only to the courts and court users but, more importantly, to victims of crime and the public at large.

In tackling the possession of extreme pornographic images, the Bill seeks to bring our controls on such violent and explicit material into the internet age. We can no longer control the circulation of this pernicious and potentially harmful material through legislation dealing with the traditional forms of publication and distribution. We have to look to an offence of possession. We want to ensure that the new offence hits the right target. In the other place, concerns were expressed that the offence went too wide. We understand that concern. I aim to bring forward amendments in Committee that will clarify the drafting of the offence and, I hope, put beyond doubt that the type of imagery found in popular mainstream films will not be covered by the offence.

The prostitution-related provisions in this Bill make important changes to the Street Offences Act 1959, to remove the term "common prostitute" and introduce an alternative penalty to a fine for the offence of loitering or soliciting. This new order can be tailored to the specific needs of those involved in street-based prostitution, offering a more appropriate intervention which will address the causes of their offending behaviour. We expect the order to be supervised by someone already based in a dedicated support project who is already working with the individuals involved in prostitution and who will be able to continue working with the offender beyond the terms of the order. Those based in dedicated projects have the greatest expertise in dealing with the issues faced by those involved in prostitution and are best placed to deliver this role. These new orders will enable us at least to start to address the underlying causes which lead people into prostitution. They will not of course provide an instant solution, but they must be a better alternative to a fine which offers those involved in prostitution no way out and the major problem of the revolving-door syndrome.

I have no doubt that the new offences of inciting homophobic hatred will attract much debate in this House, and rightly so. In constructing the offences we have been very conscious of the need to balance the protection of the gay and lesbian community from material inciting hatred with the right to freedom of expression. We believe that we have struck the right balance in the Bill. The new offence will apply only to threatening words and behaviour intended to stir up hatred on grounds of sexual orientation. Given that high threshold, and all the other safeguards, including the consent of the Attorney-General to any prosecution, we do not consider that a saving is needed to protect expressions of criticism or antipathy towards homosexual practices. If such expressions are not threatening and not intended to incite hatred, they will not be covered by the offence. If they are, then they should not be excluded. This was debated in the other place, and the other place rejected such a saving by a considerable margin.

Clause 128 provides a valuable clarification of the law on the use of force in self-defence. It will help to reinforce public confidence that the criminal justice system is on their side when they act in self-defence, whether in protection of themselves or their property, or when acting as responsible citizens in seeking to prevent the commission of an offence.

Part 9 provides for violent offender orders. Those orders will provide a means of continuously protecting the public from some of the most dangerous violent offenders who still present a high risk at the end of their sentence, when there are no other means for public protection authorities to manage their risk. Violent offender orders will therefore be an essential risk-management tool by enabling the closure of that gap in supervision arrangements. Violent offender orders will be available only in cases where there has been a previous conviction for a serious violent offence and where an individual is considered to pose a risk of serious violent harm.

Part 13 includes reserve powers to restore the statutory prohibition on inducing prison officers to take industrial action. I should like to make it very clear to the House that we have taken that step reluctantly, following the decision of the Prison Officers' Association, the union representing prison officers, to withdraw from the current voluntary joint industrial relations partnership agreement. Our hope is that it will be possible to agree with the Prison Officers' Association, before Royal Assent, a new dispute resolution and trade union recognition agreement which puts industrial relations within the Prison Service on a sounder long-term footing and which ensures that the working of our prisons is not disrupted by industrial action. Such action can never be justified in the prison context, not least because of the real and immediate adverse impact to the health and welfare of the prison population. Were a new voluntary agreement which includes protections against industrial action to be put in place, Clause 190 enables the statutory prohibition to be put into abeyance by order.

Finally, I want to alert your Lordships to one new provision—a not uninteresting provision at that. The House will be aware that on Report in another place a new clause was tabled, and subsequently withdrawn, which provided for the abolition of the common-law offences of blasphemy and blasphemous libel. In the other place, my honourable friend the Parliamentary Under-Secretary of State, Maria Eagle, advised that the Government would be conducting a short, sharp consultation with the churches, particularly the Church of England, on that matter. Subject to the outcome of that consultation, it is our aim to bring forward amendments to the Bill to abolish those essentially obsolete offences. I cannot give a guarantee, but I hope that it will be possible to table any such amendments in time for Committee.

G

"In tackling the possession of extreme pornographic images [...] We want to ensure that the new offence hits the right target."

Perhaps the Noble Lord hasn't considered that if you "want to hit the right target" you do not carpet bomb the target and everything else in the surrounding area with a law that is so vague and ill-defined that it relies on subjective opinions of what an image *appears* to show (note, not actually shows) nor one that deliberately ignores whether the participants consented or not.

The argument from the Government appears to be "We don't like this stuff, so we're going to ban it to protect the little peoples' minds from being corrupted since we don't trust them to behave responsibly".

Why does this sound so reminiscent of "Is this the sort of book you would want your wife or your servants to read"?!

Submitted by Graham Marsden

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, my noble friend will be aware, I assume, that the General Council of the Bar, supported by the Law Society, has expressed disquiet about Clauses 42 and 44. What action will the Government take to engage both the Law Society and the Bar Council in discussion about those matters?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I am most grateful to my noble friend for raising that matter. Of course I have read the briefing from the Bar Council, which arrived this morning. I understand that my colleague, Maria Eagle, is due to meet the Bar Council within the next 24 hours. We will listen carefully to what it has to say—I have no doubt we will discuss that during this afternoon's debate—and hope to assuage its fears. I understand that this is an important matter but assure my noble friend that we wish to engage with the Bar Council and other relevant organisations.

I described this Bill as wide ranging in my introductory remarks. It is wide-ranging and important, dealing with many significant issues which have a direct and immediate impact on our communities and the workings of the criminal justice system. The Bill will strengthen and safeguard those communities. I am sure that the House will wish to scrutinise the Bill carefully and the Government welcome that. With those concluding remarks, I commend the Bill to the House.

Photo of Lord Kilclooney Lord Kilclooney Crossbench

My Lords, the Minister has just mentioned that he will consult, especially with the Church of England. Does he anticipate that the Church of England will have one voice?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, that extraordinarily interesting question is probably best left to the two right reverend Prelates due to speak. However, I have always noticed that the Anglican church, whatever the difficulty with the issues, tries to come to a pretty sensible outcome. I am sure that it will be able to do that on this matter. I should declare an interest as my father was a Church of England clergyman.

Moved, That the Bill be now read a second time.—(Lord Hunt of Kings Heath.)

Photo of Lord Henley Lord Henley Shadow Minister, Justice 3:27 pm, 22nd January 2008

My Lords, it is customary to offer thanks to the Minister for introducing such a long and complicated Bill. On this occasion, I offer my commiserations. We all know that it is not his fault and that he has to do as he is told. However, he must know that it is something of a farce.

In this time of rising violent crime—and there is absolutely no point trying to deny that it is such a time—when the Government themselves are proposing that metal detectors be installed in schools to keep out knives and prisons are overcrowded, they bring forward a Bill like this, which has no coherence or theme and which has grown like Topsy since it was first introduced in another place. It has grown from one to two volumes, from 240 to 358 pages, from 129 to 202 clauses and, I think, from 23 to 38 schedules.

The Minister comes before us today—the poor Minister—to say that they are proposing to remove two parts of that Bill, one of which was introduced only at Report in another place. Two parts—of 48 clauses—and, I presume, something in the order of nine of the 38 schedules will have to be struck out. This looks like chaos in legislation.

As the noble Lord made clear, the Bill is wide-ranging in covering the criminal justice and law spectrum. We have the youth rehabilitation orders, sentencing and appeals. We were going to have the new Commissioner for Offender Management and Prisons for both the United Kingdom and Northern Ireland. However, we understand—because there is allegedly no consensus—that that is going to be taken out. I do not know if it is a lack of a consensus on our part which has meant that it needs to be taken out or whether it is some other lack of consensus. No doubt the noble Lord will tell us in due course.

We are to deal with bail, legal aid and, in the criminal law parts of the Bill, with pornography, sexual offences, hatred on the grounds of sexual orientation, prostitution, self-defence and more. We have parts dealing with international co-operation, violent offender orders, anti-social behaviour, policing and clauses dealing with the question of whether prison officers can go on strike, as well as immigration issues.

We must be grateful that the Minister did not go through the Bill clause by clause or we might have been here for a very long time indeed, but he has given us some idea of what is in the Bill, and I imagine that we will spend a considerable time on it when we reach the Committee stage. I mention all this to make it clear that, as I have said, there is a lack of theme to the Bill. There is no consistent message, but a whole series of measures—good, bad and indifferent, although I might have said good, bad and ugly. It is a sort of spaghetti western of a Bill. But we shall give all these parts close scrutiny in due course because some were barely discussed in another place; I shall get to those later on. The Minister himself would accept that we have a duty to look forward to what I suspect will be for him quite a testing Committee stage. In the presence of his colleague the noble Lord, Lord West, I hope that he will have some assistance from the Home Office and, looking at the sponsors in another place, possibly from Ministers in other departments such as the Department for Children, Schools and Families, which also seems to be involved, and no doubt the appropriate officials from all those departments.

Like the Minister, I do not have time to go through the Bill clause by clause, but I do want to say just something about certain aspects of it. I am sure that other noble Lords will highlight other areas. However, I should make it clear that while on this occasion my noble friend Lady Hanham is not speaking at Second Reading, she will be joining us in Committee to deal with some of the Home Office aspects, particularly those related to immigration.

I shall start by saying a little about youth rehabilitation orders, covered in Part 1. On this occasion I should like to offer the Minister a small degree of comfort by saying that I think we can give this measure some support, while expressing a considerable degree of concern about the potential inflexibility of the orders. We will need to know more about them and we shall certainly want to pursue some amendments to see how they fit together, particularly whether orders related to treatment for substance or alcohol abuse could be made compulsory. We need to make a detailed examination of this first part.

In Part 2 we move on to dealing with sentencing. As the noble Lord made clear, this part will make some profound changes, such as doing away with the power of magistrates' courts to suspend sentences for summary-only offences. I presume that will mean that slightly more people will go to prison, although prisons are already bursting at the seams. At the same time, the Secretary of State is to be allowed to re-release non-dangerous offenders who breach the terms of their licence, which I presume is designed to release pressure on prison numbers. We also have the rather peculiar idea that credit will be given for periods on remand on bail just as if the individual had been locked up. I am not sure of the logic behind that unless it is again to keep down the pressure on prisons. That, too, is a measure we shall wish to pursue in Committee. It is one which I think the noble Lord will find is not necessarily as popular with the public as he thinks.

Part 3 covers appeals. As I understand it, the Government are making a profound change following the case of the Crown v Mullin, which would allow the Court of Appeal to rule that a conviction will not be unsafe if it is satisfied that the appellant is guilty of the offence. I gather that, in another place, the Government agreed to look at this again. As I understand it—the noble Lord and I have both received the same brief—the Bar Council, the Criminal Bar Association, the Criminal Appeal Lawyers Association, the judiciary, Justice, Liberty, the Law Society and the Criminal Cases Review Commission have all expressed their concerns. The Minister might accept that some movement or flexibility would by wise on the part of the Government. They might be well advised to consider the advice coming from such bodies.

The noble Lord says that Parts 4 and 5 need not concern us. I look forward to the noble Lord's amendment removing what now appears to be about a quarter of the Bill, along with—if he will give this confirmation—some nine schedules that seem to be dependent on Parts 4 and 5. When will we see those parts again, and in what legislation?

Part 6 brings us to the remaining criminal justice provisions. Two in particular will need a considerable degree of scrutiny. First, Clause 104 deals with trial or sentencing in the absence of the accused in magistrates' courts and seems to create a presumption that the court will so proceed in such cases. As they already have a discretion in law to do so, does the clause really add that much? Perhaps the noble Lord will be able to enlighten us in due course. That cannot be said of Clause 105, which I suspect will effectively remove the role of lawyers in some summary cases. Again, we want to hear more from the noble Lord on that point.

Part 6 is also indicative of how the Government—particularly the Home Office or what is now the Ministry of Justice—legislate. On page 83, in paragraph 519, the Explanatory Notes state, for Clause 103—it was originally Clause 84 when the Bill first started in the Commons—that,

"Clause 84 introduces Schedule 22, which amends Schedule 3 to the 2003 Act".

The two subsequent paragraphs set out just what Schedule 3 of the 2003 Act was to do, what the amendments it made achieved, and what will happen in due course. Then we are told in paragraph 522 that,

"most of the provisions of Schedule 3 to the 2003 Act are not yet in force".

So here we are repealing something that never actually came into force. It seems a strange way to legislate. As I said before in an earlier speech on a Criminal Justice Bill, perhaps in time the Ministry of Justice will make improvements in the way they manage things, removed from the dead hand of the Home Office. I do not know if that will be the case; I somehow doubt it. No doubt the Minister and the noble Lord, Lord West, can look to these things and see what they can achieve in due course.

In Part 7, we move on from criminal justice to the criminal law itself. We find a whole array of diverse and disparate matters, as the noble Lord assured us. We deal with extreme pornography, prostitution, homophobic hatred, self-defence, nuclear material and facilities, and new penalties for unlawfully obtaining personal data. The Government might also consider some new penalties for incompetently losing personal data—something that the Government seem to know a great deal about at the moment. The noble Lord, Lord West, smiles ruefully. Perhaps we can leave that for an amendment at a later stage.

My first point on this part of the Bill is that there will be problems of definition—the Minister touched on this in his opening speech—and a need for certainty or, at least, a degree more clarity. Secondly—this is particularly true of the measure on hatred on the grounds of sexual orientation—there will need to be compromise by all concerned to achieve a balance between preserving freedom of expression, as the Minister put it, while seeking the appropriate protection that the clause seems to offer. We on these Benches will enter into debates on that and other clauses and seek that compromise. Thirdly, we need to examine these clauses carefully—I am thinking, in particular, of the clause on self-defence—and consider whether what the Bill proposes does anything at all; or is it, dare I put it this way, grandstanding, so that the Government can claim they are doing something when all the Bill does is clarify the existing law without adding anything. We certainly sought to add something to the law of self-defence.

We still have some seven parts of the Bill to go but, before I finish, perhaps I may touch on Part 9, which deals with violent offender orders, and simply mention the others, which will get their time in due course. The Minister has, quite rightly, made his declaration on the front of the Bill that its provisions are compatible with Convention rights, as did his right honourable friend the Lord Chancellor in another place. I ask the Minister to have another look. Is he absolutely sure and happy that these provisions are compliant? I particularly refer him to Article 6 on the right to a fair trial and Article 7 on retrospective punishments. It would be wise of the Minister to take advice and have another look at that in the light of his statement on the front of the Bill.

I also note what the Minister had to say about blasphemy and blasphemous libel, and his other comments about the Church of England. We look forward to that debate and, in the light of recent letters they have written on the subject, to some former distinguished most reverend Primates taking part in it. It is a matter that we can deal with in good time and in its proper place.

I remind the House and, in particular, the Minister, of the large aspects of the Bill that were not debated in another place. There was virtually no debate on prostitution, although I understand that since the passage of the Bill through the other place, three Ministers, including the Solicitor-General, all went at once to inspect the situation in Sweden and to report on the conditions there. Why it took three Ministers I do not know; it may be that they thought there would be safety in numbers. I leave that to them. There was no debate in the other place on the powers of the magistrates courts; no debate on pornography and sex offenders; no debate on personal data, which I imagine we all want to discuss again—I look forward to the contributions of the noble Lord, Lord West, on that subject; no debate on miscarriages of justice; and no debate on powers to restrict the Court of Appeal, violent offender orders, causing nuisance on NHS premises or tobacco sales—I could go on. The noble Lord will get the drift of what I am saying.

We look forward to a busy Committee stage and to ensuring that all these matters are debated, and debated fully.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs 3:45 pm, 22nd January 2008

My Lords, we welcome the cheery optimism of the Minister in opening this debate, but we do not welcome the Bill. Not only is it the 54th Bill dealing with crime and criminal justice that has come before us in the past 10 and a half years, but it perpetuates muddled thinking, a lack of understanding of the fundamental legal principles that lie behind the British concept of justice and populist but meaningless gestures towards the red-tops' concerns of the day. Rhetoric and vote-catching matter more than practicality and principle. It is not surprising that the Joint Committee on Human Rights has today expressed concerns about almost all the Bill's provisions. Thank you very much—it is a paradise for lawyers, as the noble Lord, Lord Henley, hinted a moment ago.

Above all, though, the Bill is a missed opportunity to encourage, in a principled way, the prevention of crime in this country by creating and resourcing the means to put young offenders on the right path and by approaching social problems not through the criminal courts but with imaginative and constructive solutions.

With regard to youth justice, there is no attempt to put forward a radical policy that will shift the emphasis towards prevention and earlier interventions. We can pick out the scattered provisions from the Bill dealing with youth justice: youth rehabilitation orders in Part 1, the sentencing of young offenders in Clause 9, youth offender contracts in Clauses 36 and 37, conditional cautions in Section 98 and Schedule 18 and a review of ASBOs in Clause 174. It is all over the place. There are three things lacking: a comprehensive approach that would deal in one comprehensible Bill with all the provisions relating to youth justice; a government structure that would place one Minister firmly in charge of policy and implementation; and a commitment to resources to carry out the tasks that are seen to be necessary.

The youth rehabilitation orders are to be made by a magistrates' court, whose prime purpose in the Bill is said to be punishment. Yet magistrates are turned into a social agency who must pick and mix from a selection of requirements tailored towards the individual young offender. They are to initiate service provision, such as accommodation by local authorities, medical treatment, drug treatment and education. They are to consider intensive supervision and fostering. Is that the role of a sentencer in a criminal court? If it is, how can that possibly be done without extensive reports, assessments into the background and personality of the person in question from social workers, probation officers and, frequently, medical practitioners? What input will there be from parents and from the offender himself, as happens with the more enlightened Scottish system of children's panels? If our courts are to become a social agency of this nature, surely it is incumbent to state that the prime purpose in sentencing young offenders is not punishment but the consideration of the best interests of the child, as is set out in the children's convention, whether that includes an element of punishment or not. As the Joint Committee on Human Rights says in its report today, detention or imprisonment should be seen only as a last resort. We shall be putting forward amendments for debate on all these matters. My noble friends Lady Linklater and Lady Falkner will expand on that.

The grave danger that exists with all these restrictions and requirements is that they set up children and young people to fail. The sanction in each case is a fine and, in the ultimate, imprisonment. Around 6,500 children and young people are in prison, a 200 per cent increase since 1991. Reoffending rates following custody are 82 per cent, rising to 96 per cent for those who have more than seven convictions. The cost is £245 million a year, which is 70 per cent of the Youth Justice Board's budget. According to the Audit Commission's 2004 report, six months in a young offender institution costs £25,400 as compared with £8,500 for the most intensive community sentence. Meanwhile, on 7 January, the Minister for Prisons, David Hanson, confessed in a reply to a Question in another place from my colleague, Mr Tom Brake, that convictions for robbery in London where the defendants are under 18 have increased threefold in the past seven years, from 592 to 1,533. It is a fivefold increase in respect of girls.

The Government claim that their policies have in some areas resulted in a fall in crime. In some respects, that may be so, but they cannot take the credit for it. Crime has fallen across Europe. The European Crime and Safety Survey, published last year, and sponsored by the European Commission, compared levels of crime across all EU countries. It found that levels of common crime have fallen in the EU during the past 10 years, but the UK is regarded as a crime hotspot. For example, out of 20 countries, we rank fourth for the level of thefts of personal property reported to the police, which is twice the rate it is in Poland. When it comes to a comparison of 16 capital cities, London leads the field in the provision of security devices, but it has the highest levels of theft, burglary, robbery, sexual incidents and assaults in Europe—it is higher even than in New York. It was no surprise to learn last October that gun crime had increased by 10 per cent in a year. London has the lowest percentage in the EU, bar Amsterdam, of citizens who have not been victimised in the past five years.

That accords with our own perceptions: how many of your Lordships would feel safe, not just in London, but in your nearest town, in walking the streets after nine o'clock in the evening? Even the Home Secretary finds it necessary to take her minder to the local kebab shop in Peckham.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, did the noble Lord see an article by Libby Purves in today's Times, which noted that, under the reign of Genghis Khan, a naked virgin could carry a pot of gold from one end of the kingdom to the other without any form or fear of interference?

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I am not suggesting that the Home Secretary should follow that precedent, but she did say that she would not be safe in Kensington. That shows you the standing of this Government.

Although we are still heading the European league tables for crime, we imprison vastly more offenders than our European neighbours. Prison is not the answer. According to the International Centre for Prison Studies based at King's College London, in 1998 we imprisoned 98 out of every 100,000 citizens; today, that figure has gone up 50 per cent to 143 out of every 100,000 citizens. Let us look at the comparisons. In that same period, France has moved from 85 to 84 in every 100,000 citizens, Germany from 93 to 81, Italy from 67 to 85, Ireland from 72 to 71 and Denmark from 67 to 64. Imprisoning 143 out of every 100,000 citizens in this country is the result of that macho swaggering that we saw by rival Home Secretaries of both Governments. Prison does not work, but what is the Government's answer? It is build more, build bigger.

On sentencing, we shall be concerned under Part 2 to examine the failure of the indeterminate sentence for public protection and to attack the unconstitutional attempts to have released prisoners recalled for a fixed term of 28 days at the say-so of the Secretary of State, without any judicial or independent oversight.

With violent offender orders, we are back on familiar territory. This is the use of the criminal justice system not for the investigation and punishment of past offences, but as a tool to manage future risk. Over centuries, in order to protect the innocent defendant, the common law developed the concept of due process in criminal cases, as encapsulated in Articles 6(2) and (3) and 7(1) of the European Convention on Human Rights. However, no similar safeguards exist or have been suggested for the misuse of civil procedures to impose conditions or requirements on an individual, breach of which amounts to a criminal offence. It is not a technical procedural question of interest only to lawyers; it involves a court—frequently on hearsay, tittle-tattle evidence, which would not be received in a criminal court—making an order that sets out a personal code for the individual forbidding such conduct as prostitution or entry into an area of a town or a particular public house, which is not criminal in itself. It follows that a person who breaches his own personal criminal code imposed on him may be sent to prison for non-criminal conduct, which would not have that effect on anyone else. The principle of all those orders, from ASBOs onwards, is bad—and the practice is even worse.

Another issue of principle arises with the proposal that unqualified CPS staff will be able to conduct serious trials in a magistrates' court, which is totally contrary to the public interest. I cannot put it better than the Bar Council, which said that,

"in cases involving contested facts, issues of law, and serious allegations, which demand a high level of professional responsibility and developed advocacy skills legally qualified lawyers have an essential role to play. Qualified lawyers, who are under a professional duty to be independent, not only contribute to maintaining the independence of prosecutions in our criminal justice system but they also inspire confidence in the public and the victims of crime."

It is a cost-saving exercise that the Government are engaged in.

There are two necessary requirements: first, to put a ceiling on the type of case that may be conducted by an unqualified person—certainly not including cases punishable by imprisonment—and, secondly, to ensure that any CPS staff appearing in court at least qualify with ILEX, the Institute of Legal Executives, and are taught to understand and apply the ethics of advocacy thoroughly. Your Lordships will appreciate that the negotiation of pleas, the disclosure of documents and other evidence, and the rules of evidence themselves are particularly important. It is wrong that the only person in court who might have received any training at all should be the court clerk—and even he does not have to be a professional. It would hopelessly inappropriate for him to advise the prosecutor on how to conduct his case properly and then go in with the magistrates to advise them on the law.

I turn to populist measures, which I mentioned at the beginning and which are simply misconceived. The Government seem to think, along with the tabloid press, that under the law as it presently stands defendants who are guilty regularly escape punishment because the Court of Appeal will quash their convictions on a technicality. Since 1907, the Court of Criminal Appeal has been required to dismiss an appeal if the jury would inevitably have convicted. However, the court does not consider whether it is satisfied beyond reasonable doubt of the guilt of the appellant. How could it? It has no opportunity to see the witnesses, hear what they have to say or see them examined or cross-examined. The task of the Court of Appeal was to determine whether the defect was so fundamental as to make the jury's verdict unsafe; if it does so conclude, generally it will order a new trial. This new proposal that the Court of Appeal will not dismiss an appeal if it is convinced beyond reasonable doubt of guilt turns it into judges of the facts without hearing the evidence. That is utterly alien to the rule of law.

I turn to another topic: the introduction of a watered-down Megan's law in Part 13. It ignores existing practice, which involves the notification of head teachers of the presence of someone who is a danger. The presumption that information about an offender should be disclosed not simply to a targeted individual but generally, as the Bill proposes, will dangerously encourage vigilante groups of the sort which attacked a paediatrician because they thought that she had something to do with child abuse.

As for self-defence, I suppose that it is the Government's intention, following the Martin case, to strengthen the defence of self-defence to allow a householder to shoot someone in the back as he runs away. At common law, a defendant today who acts under a mistaken belief has to show that his belief is objectively reasonable. The new provision put forward by the Government says that he is protected by this defence even if his mistaken belief was entirely unreasonable. I do not agree with the Joint Committee on Human Rights that the clause clarifies but does not amend the existing law: it strengthens self-defence in a way that I hope your Lordships will agree is quite inappropriate.

I shall have much to say on the proposed cap on compensation for miscarriages of justice. The Government do not seem to realise that if a person is wrongly imprisoned he is a victim of the state, not of a third party, and it is for the state to put him in the same position he would have been in had he never been wronged.

As for extreme pornography, Clause 113 is utterly vague, and Clause 115 proposes an unacceptable reverse burden of proof. We welcome what the Minister said a moment ago, when he appeared to recognise that. I shall leave it to my noble friends Lord Wallace of Tankerness and Lady Miller to comment further on the provisions of Parts 7 and 8. Similarly, in Committee, my noble friend Lady Harris will deal with policing matters in Part 11 and my noble friend Lord Avebury with special immigration status in Part 12.

I make no excuse for speaking at length on the Bill. The primacy of the House of Commons in this Parliament has become a joke. As the noble Lord, Lord Henley, pointed out, the Government started off in the other place with a Bill of 129 clauses and 22 schedules and ended up with 202 clauses and 37 schedules. Large swathes of legislation were simply tossed into this ragbag of a Bill in Committee and on Report and were never debated because there was not sufficient time. Everyone looks to your Lordships in this House to scrutinise and sort it all out. Well, I assure the Government that we have the time. We will scrutinise these measures clause by clause and schedule by schedule, and we hope that there will not be scrawled on the government brief the magic word "resist".

Perhaps the first sign of spring is the abandonment of Parts 4 and 5, which gets rid of 47 clauses voted through the other House on a Whipped vote. The proposal then was to replace the ombudsman with HM Commissioner for Offender Management and Prisons, someone who was neither a commissioner responsible to Parliament nor involved in offender management. What a title—Gilbert and Sullivan would have loved it.

We will raise issues that colleagues in the other place sought to argue but which were ruled out for lack of time. Such issues are data protection and the scandal to which the noble Lord, Lord Henley, referred of personal files in the control of the Government dropping off the back of a lorry, and human trafficking. Why are we legislating on prostitution but still delaying ratifying the Council of Europe Convention on Action against Trafficking?

We will look to the Government to fulfil the pledge that was given to Dr Evan Harris, my colleague in another place, on the abolition of the law of blasphemy, and we shall bring forward other serious amendments hoping to persuade your Lordships to include them in this Bill. If, in due course, they are rejected on a Whipped vote by the government party in the Commons—a party supported at the last election by 35.1 per cent of those voting—then the joke will be upon the people of this country, and they will not find it very amusing.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench 4:05 pm, 22nd January 2008

My Lords, I echo what noble Lords have said about the way in which this Bill has been handled, and, indeed, add my commiserations to the Minister who is in charge of guiding this Bill through your Lordships' House.

Parts of the Bill are not only acceptable but welcome—these may include some of those to which the noble Lord has already said goodbye in Parts 4 and 5. However, it is a sad state of affairs when all the opposition parties in the other place, not to mention a number of the Government's own supporters, are so unhappy—I use a mild word—with the way it has been handled, particularly with the addition of so many new clauses at Commons Report stage, as we have heard, and the grotesquely short time given them to consider this huge Bill. Even the Minister of State, David Hanson himself, commented that,

"if I were an Opposition Member I might well oppose the motion myself. I know that it will be very difficult for us to discuss some of the amendments before the House in the time that we have allocated".

Unsurprisingly, the point was underlined by many speakers in the other place that this House now has a vast amount of work to do if we are, in the words of Edward Garnier,

"to deconstruct the Bill and turn it into something resembling a proper Act of Parliament".—[Hansard, Commons, 9/1/08; cols. 308, 428.]

I have no doubt that we shall do our best to achieve this. Our track record for doing so with many other Bills is very good. But it is, quite frankly, pretty disgraceful that this is the background to the Bill and that it comes to us clothed in such ill feeling.

That prompts me to make some more general remarks about the way in which the Government approach the business of legislating in the criminal justice area. I speak from my background of years as a juvenile court magistrate, as a one-time member of the Parole Board, and as somebody who has been involved with many voluntary organisations working in this field.

It simply is not a competent way to run a service to have so much legislation poured into those who have to work in the system and operate it, such as magistrates, probation and prison officers. As we have heard, the law is changed time and again. As Liberty reminds us, it is the Government's 37th criminal justice or policing Bill since 1997. I was horrified to hear the noble Lord, Lord Thomas of Gresford, say that the figure was 57, so there is a little inconsistency there. But the resources are simply not there for everyone to be properly retrained to meet the demands of this legislation. As we also heard, much of it is never implemented and some of it is repealed before it is even implemented. I suggest to the Minister that we would have a much better outcome from the criminal justice system if only the Government were more minded to listen to those who work in it and who struggle to do a good job in increasingly difficult circumstances.

I have a complaint about something that was not much covered, if at all, in the Bill. On 6 December 2007, the Government published their response to the Corston report on women in the criminal justice system. As your Lordships will recall, the noble Baroness, Lady Corston, was commissioned to report to Ministers after the tragic deaths of six women in Styal prison. Her excellent report, published in March 2007, concluded against imprisoning, at huge cost, vulnerable women offenders who pose no risk to the public. Instead, the report called for the closure of women's prisons over a 10-year period, along with the establishment by the Government of some small custodial units for dangerous offenders and a larger network of support and supervision centres.

These centres would be based on the existing successful community centres visited by the Corston review group and would provide access to services to help women deal with addictions, mental illness, rape and domestic violence, trauma and debt, while helping them gain skills and take responsibility for their families. A study undertaken by the New Economics Foundation and the Prison Reform Trust demonstrates conclusively that such an approach would be highly cost-effective.

In my view, the Government's response to the review of the noble Baroness, Lady Corston, has been weak and insubstantial. Ministers agreed with the report's analysis of the problem and nearly all of its recommendations; but they have failed to support the key recommendations—first, for dedicated funding and, secondly, for establishing a women's commission to drive things forward. Ministers have also failed to use this legislative opportunity, which is being used for many other matters, to introduce any changes in the way that women are treated. Many other noble Lords will, I am sure, join me in expressing grave disappointment at this.

I said earlier that I spent many years as a juvenile magistrate. Through that experience I learnt the importance of taking the greatest care when dealing with the damaged children who come before the courts, often from the most poverty-stricken backgrounds—poverty-stricken not just in terms of just money but in aspiration and preparation for life. If children are to survive such backgrounds and not grow up to be the residents of adult prisons until, sadly and often, they meet an early death, they need solutions that deal with what has happened to them and thus try to transpose their prospects. I fear that Keith Joseph's "cycle of deprivation" that he outlined many years ago is all-too-obviously alive and kicking today.

Imprisonment is simply not the answer, but despite that the number of children and young persons under 18 in prison doubled in 15 years, from 1,405 in 1992 to some 3,000 last summer. I want to tell the Minister again what he has heard me and others say previously—children should not be in prisons or in establishments run like prisons. If they are dangerous to themselves and others they must be in secure settings, but which should be run on child care and human rights principles.

So I welcome very much the involvement of the Department for Children, Schools and Families in the youth justice system and the appointment of the new chairman of the Youth Justice Board, Mrs Frances Done, who comes from a local authority background. But I cannot welcome the youth justice proposals in this Bill, because they constitute no more than a further fragment of piecemeal reform of the system and completely miss the opportunity to address its fundamental flaws. In particular, we need legislation and policy for children in trouble with the law to be made much more congruent with that which deals with children and families more broadly, in respect of welfare, safeguarding, education and health.

I hope, too, that we can make some progress in Committee by introducing a much higher threshold for the use of custody. That is strongly supported by the Standing Committee for Youth Justice, the Local Government Association and the Joint Committee on Human Rights. I hope also that we can remove the possibility of violent offender orders being used for those under the age of 18. There are already sufficient powers to deal with that tiny and tragic minority of children who need continued supervision. It would be a great step forward if we could persuade the Government that breach of an anti-social behaviour order should not lead to a child being put into custody. That power does not exist in Scotland, so why do we need it here?

I turn briefly to the measure on prostitution. I know that the noble Lord, Lord Faulkner, will speak on this; he has done much to raise awareness of the need for better treatment of women involved in this work. I welcome the provision that defines a brothel, but I fear that the proposals on compulsory rehabilitation, and the possibility of 72 hours' imprisonment for failure to attend this, will not make women safer. Instead, they will add pointlessly to the prison population and will not address the depth of the problems that some of these women face. I hope that we can persuade the Minister to look again at these proposals and to consider seriously their utility and practicality in terms of the use of resources. Is it intended that these measures should apply not only to those who work in prostitution, but also to those on the buying side? Surely there should be equal provision—although I would prefer that the whole of this area be taken out of the Bill.

It is clear that this House has a long haul ahead of it. I look forward to hearing the concerns of other noble Lords about this Bill and particularly to hearing what hope the Minister can give us when he concludes.

Photo of The Bishop of Manchester The Bishop of Manchester Bishop 4:16 pm, 22nd January 2008

My Lords, the appearance of another criminal justice Bill at least provides a speaker in your Lordships' House with plenty of scope. I shall leave the right reverend Prelate the Bishop of Liverpool to touch on those parts of the Bill that affect the working of the criminal justice system. I hope that noble Lords will forgive me if I allude to two issues, neither of which was contained in the Bill when it was introduced in another place, but to which the Minister referred in his opening remarks.

The first is what might be described, in the light of some comments already made, as the elephant in the room—I refer to the intention to abolish the common law offences of blasphemy and blasphemous libel, which was announced by the Government in a debate on an amendment at Report stage in the other place. It would not be appropriate to enter into substantive arguments now but it would be strange if no mention of it were made from this Bench. The noble Lord, Lord Henley, referred to statements made by the Church of England's Archbishops. On his recent visit to Durham, the most reverend Primate the Archbishop of Canterbury said that the Church of England would not resist this measure, given the awkward and not very workable legacy of the law. This will have come as no surprise to those who heard the debate on the Racial and Religious Hatred Bill in November 2005. The former Bishop of Oxford, now happily among us again as the noble and right reverend Lord, Lord Harries of Pentregarth, indicated in answer to the proposal of the noble Lord, Lord Avebury, that the church's opposition to abolition rested on issues of timing rather than principle. I say today that we welcome the consultation that the Government are undertaking before introducing their amendment, to which the Minister referred in his opening, supportive remarks about the Church of England. The Church of England itself is consulting other churches and religious bodies, and we hope the outcome of those consultations will be revealed shortly.

Before moving on, I would like to correct a common misapprehension about the law of blasphemy. It is often said that it protects only the tenets of the Church of England, but that statement is based on a faulty reading of case law. The judgment of the Administrative Court in the Jerry Springer case on 5 December 2007 usefully confirmed that the factual basis of the offence includes,

"contemptuous, reviling, scurrilous and/or ludicrous material relating to God, Christ [or] the bible".

The law therefore protects the basic tenets and scripture of the Christian religion. I mention that because it means that response to the proposal for abolition is not a matter for the Church of England alone but for Christian denominations and groups more generally, although of course, as I have already indicated to your Lordships, we are playing a central part in all those discussions at the moment. Incidentally, I assure the Cross-Benchers—in particular, in this centenary Week of Prayer for Christian Unity—that the Christian churches together hope to speak on this matter with one voice.

My second topic also relates, as I said, to an amendment put forward by the Government. I refer to the creation of a new offence of incitement to hatred on the ground of sexual orientation, which is contained in Clause 126 and Schedule 26. I want, first, to enter a caveat about the principle of legislating to protect particular groups, not because I believe that they do not deserve protection—they do—but simply because we already have a battery of public order provisions which apply to everyone. Sections 4A and 5 of the Public Order Act 1986 prohibit words, behaviour or displays of written material intended to cause harassment, alarm or distress, or which are heard or seen by a person likely to be caused harassment, alarm or distress. We must of course hold to the principle that it is wrong to threaten or stir up hatred against anyone on any ground.

That said, we on these Benches recognise that members of sexual minority groups may indeed be subject to all kinds of threatening and hate-filled behaviour based on irrational prejudice. The report of the Select Committee on religious offences pointed out that incitement has often been criminalised,

"as a reaction to the perception that a novel social mischief has arisen or that an existing mischief has become particularly damaging to society".

Whether that is now the case may be debated. Paradoxically, the demand for such a law may reflect society's increasing intolerance of hostility to sexual minorities but, by that token, it may be less necessary than it once was.

If there is to be a new offence, it raises some of the dilemmas with which we became familiar in the debates over religious hatred. The churches are concerned that the offence should clearly exclude from its scope the expression of traditional Christian teaching about human sexuality, marriage and the family, and consequent criticism of particular forms of behaviour or lifestyle. Frankly, freedom to advance those convictions is part of life in a free society, and it should be distinguished from freedom to threaten or stir up hatred against people with whose behaviour and lifestyle Christians and others may disagree.

The Church of England and the Roman Catholic Church made a joint submission to the Public Bill Committee in the other place, expressing support for the new offence, on the condition that it clearly distinguished between incitement and controversial statements of opinion. They thought that this condition would probably be satisfied by the requirement of intention to stir up hatred, coupled with the restriction of the offence to threatening, rather than abusive or insulting behaviour. They raised the question of whether there should also be a provision to protect freedom of expression, similar to that introduced by the noble Lord, Lord Lester of Herne Hill, into the Racial and Religious Hatred Bill. As noble Lords know, such an amendment was moved and defeated in the other place.

I very much hope that the discussion on this proposal will continue as we reflect on the balance—and it is a delicate balance—between protection of the vulnerable and freedom of expression, and ask ourselves whether this measure has got that balance right.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 4:26 pm, 22nd January 2008

My Lords, I find myself returning to a theme that I have addressed a number of times in this House: the rule of law and what it means in contemporary society. The law is sometimes misunderstood by those who govern us; they often forget that the law is the bedrock of our nation. It tells us who we are and what our values are. It has a huge impact on our lives. I am afraid that, too often, Governments—and I mean that in the plural—see the law as an instrument to be used to secure seemingly sensible outcomes, when in fact the law is a fabric, where one thread pulled can cause unravelling well beyond what was anticipated by Ministers. Sometimes, short-term populist gains blind those who govern us to the long-term consequences of tinkering with well established legal principles.

I share the concerns of other noble Lords. I am concerned about the youth justice proposals, about the expansion of prison places without consideration of the Corston recommendations, and about the abandonment of due process in the violent offender orders. In relation to self-defence, the law that we have is perfectly adequate, and I am interested to see that we are replacing an objective test of what an accused believed was necessary, and moving to a subjective test. The very argument for the importance of introducing objectivity was the reason for changing our test in relation to rape. We decided that a subjective test of what an accused in a rape case believed was not a good test, and we should make it objective, using as our allegory what was done in relation to self-defence.

There are many myths about the criminal justice system. There is the myth that large numbers of criminals are getting away with it when, in fact, the vast majority of people arrested plead guilty or are found guilty. There is the myth that judges are soft touches who rarely send people to jail, which has never been my experience. Only last week we were presented with the new myth that murderers are getting bail, which is, again, far from the truth. Then we have the myth that people get off on appeal because of a technicality. I regret that the Government have drawn on that myth in introducing Clause 42. Appeals are rarely successful. The majority of criminal appeals are filtered out; they go in front of a single judge as a paper exercise, then in front of a court as an application for leave to appeal. Legal aid is often withdrawn from appeals that are hopeless. When an appeal goes in front of the court and eventually succeeds, that is invariably for a very good reason. Winning an appeal is hard. The judge says, "Lady Kennedy, the jury saw your client, it heard his story, and the verdict would have been no different if it had known about the matters of which you complain". The test applied by the Court of Appeal is: was the verdict rendered unsafe?

We must remember that in a just system of law, things matter beyond the individual case. The criminal appeal process exists not only to ensure that the innocent are not punished but to uphold the rule of law. The function of criminal appeals is not just to see that in a given case the right result is obtained, but to ensure that the law, rules of evidence and procedure are respected and applied. Anything else would act as an incitement to undermine procedure. It would give a green light to police officers, for example, to take shortcuts. It sends out powerful messages to those who act on behalf of the state as to how to conduct themselves. In extreme and unusual circumstances the Court of Appeal will quash convictions that are tainted by grave breaches of the law or serious failures to apply the rules, irrespective of the factual guilt or innocence of the accused.

I emphasise that it is rare when that is done, but when it is done it is because of the belief we share that a criminal conviction is acceptable only if it carries moral authority. A decision reached in defiance of the basic rules that society prescribes for criminal investigations and for trials does not carry moral authority. If convictions can be upheld where the authorities have flouted fundamental tenets, the self-restraint that the authorities are expected to show in keeping to them will be undermined. It will send a signal that breaking or bending the rules can pay. Those who enforce the law should obey the law and not benefit from breaches or irregularities.

Few in this House would argue with the noble and learned Lord, Lord Bingham, who, in the case of Randall, said that,

"it is not every departure from good practice which renders a trial unfair ... But the right to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable, that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty".

The concern that I and many of us involved in the law have is that we are changing the basis on which our Court of Appeal functions. We are interfering with the rule of law.

Clause 105 is, again, about interfering with important principles within our system. It will extend the powers for non-legally qualified persons to act as prosecutors in the magistrates' courts. We are allowing efficiency gains, which are all to the good in most circumstances, but which should never outweigh fair trials. To allow the prosecution of a case in the magistrates' court by unqualified staff, where there might be a loss of liberty or a conviction for dishonesty affecting someone's life fundamentally, would, we must agree, be quite wrong. I hope that the Government will look again at some of those changes.

Law is the glue that holds together the constituent parts of our society, and it is a civilising force. As soon as we forget that, we run serious risks. Law is what makes the centre hold—to refer to my favourite poet, Yeats. It is the mortar that fills the gaps between people and communities. A just system of law is the invisible substance which sustains social well-being, social and moral consensus, and mutuality of interest and trust. It is built around principles. The principles of the rule of law should not be subject to change without great care. If we interfere with those principles which underpin law, fritter them away and pick them out of the crannies of our political and social architecture, restoration becomes impossible. Therefore, I will be asking the Government to think again about a number of the changes in the Bill, which again are interfering with those well established principles which we should hold dear.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative 4:35 pm, 22nd January 2008

My Lords, I follow the noble Baroness, Lady Kennedy, with admiration and complete agreement. There has already emerged in this debate more of a theme than can be detected in the Bill. That theme is, in fact, that the Bill has no theme. I call to mind those old ironmonger shops in the country, which used to be crammed and cluttered with an astonishing collection of items; so prolific were they that they were frequently suspended from hooks on the ceiling, nails in the walls or even less usual projections. Where they were to be found and why they were to be found there would be apparent only to the proprietor, and not always to him.

This Bill puts me nostalgically in mind of those shops, whose chaotic arrangements seem now to have made them almost extinct. In the Bill, dangling from the same hook—it is labelled Part 7, "Criminal law"—we find provisions relating respectively to the protection of nuclear facilities, loitering for the purposes of prostitution, hatred on the ground of sexual orientation and imprisonment for the purpose of unlawfully obtaining personal data. Part 11, on "Policing", provides a nail which is shared between provisions for "Police misconduct and performance procedures" and provisions for securing that police authorities may themselves be inspected.

Lest we were to doubt whether this has anything to do with criminal justice, the Long Title, which takes up 11 and a half lines in inventory itself, assures us that it does. Right at the end of the Bill—as it were, at the very back of the shop—lodged behind the provision for special immigration status, we find provisions which even this heroic draftsman has been obliged to label "Miscellaneous". From making it unlawful once again for prison officers to strike, which is an example of the law taking away what the law has given, in this instance very recently, these proceed unblushingly to the consequences of persistent sales of tobacco to persons under 18.

This is almost beyond parody, but there is more. Now the entirety of Parts 4 and 5 are to be withdrawn, for reasons which have been given to us by the noble Lord, Lord Hunt of Kings Heath, only this afternoon. I am afraid that they are being withdrawn for being unfit for purpose. This is a fundamental defect affecting the management of the Bill as a whole. This is not a proper way to legislate. It is certainly not an efficient one. Draft legislation ought to have a comprehensive theme and not depart from it. Efficient scrutiny in Parliament and outside depends on this principle being fulfilled. Without it, the legislation is unlikely to impinge fairly on those who it may affect.

The Government cannot plead that they have not had enough opportunity to legislate for such matters; they have taken advantage of at least 35 previous opportunities. Nor can they claim in mitigation that each of these provisions received ample debate in the other place, however late in the day they were hung upon the Bill. As your Lordships now well know, Ministers took pains to use their majority to whip their supporters into denying debate to the elected other place, so that important provisions have never been debated at all. No more than 30 minutes was allowed for the Third Reading of a Bill which now, as we have heard, extends to 202 clauses and 18 schedules when it had begun with not much less than half that.

Once again, it falls to this unelected Chamber to redress the balance, which I hope we shall. That will be for the remaining stages but, meanwhile, we encounter straightaway how this kind of legislative abuse impinges on Second Reading contributions: they have to jump about from item to unconnected item and can easily become more detailed than is appropriate for Second Reading.

Bearing my own warning in mind, I turn first to Clause 10, as have other noble Lords, which will remove from magistrates' courts the power to pass suspended sentence orders for summary-only offences. It is to be noted that Crown Courts will also be affected where such cases come up to them for sentence. In my view, the suspended sentence is a thoroughly admirable device. It marks the gravity of the offence while, at the same time, allowing the offender the chance, by his reformed behaviour, of avoiding going to prison and saving the taxpayer the expense of keeping him there as well. He has not got away with it because, if he reoffends, he can be made to serve the remainder of his term, with more for the latest offence.

Now it is said by the Government that courts are using that option inappropriately, by preferring it to the non-custodial community sentences that the offence would otherwise attract. Therefore, the suspended sentence for summary-only offences is to be removed from them, even though it was only given to them by this Government in 2003.

The Magistrates' Association states that this argument is misconceived. For a suspended sentence to be available, the facts of the offence must have crossed what is called the custody threshold, so the choice for the court would not necessarily have included a community sentence. If it can no longer suspend a custody sentence, it may be driven to impose an immediate sentence of custody. Supporting the Magistrates' Association, the Police Federation estimates that a further 1,000 prison places may be necessitated. Is that what the Government want?

The Sentencing Guidelines Council is available to correct any perceived mistaken approach. After all, we are dealing with a magistracy that is more comprehensively trained than ever before in its history. I hope that the Government will think again about that.

I turn next to Clause 31, which removes the requirement that, before the Secretary of State may decide whether to recall a prisoner serving a life sentence or indeterminate sentence for public protection, he must, except in an emergency, obtain a Parole Board recommendation. I am not aware of any objective ground for dissatisfaction with the performance of the independent Parole Board in this context. I agree with what Liberty says—that Parliament should not agree to give Ministers this and similar unencumbered powers to deal with the sentences of individual offenders in individual cases. It is unsafe and it risks arbitrary decisions.

That proposal seems to emanate from ministerial irritation, evidenced elsewhere in the Bill, at recent decisions by those who hold independent responsibilities in the criminal justice system. I fear that it stems from the desire on Ministers' part to acquire unencumbered control for themselves—or more of it. That must be stoutly resisted.

I am led, therefore, at once to the more complex provisions in Part 3, limiting the power of the Court of Appeal to overturn a conviction—noble Lords have already focused on that, and I am very glad of it—if it considers the conviction unsafe. That is in Clause 42. That stems with ministerial irritation with the decision of the Court of Appeal in a case already referred to, Mullen in 2000.

The Court of Appeal has for years had jurisdiction to overturn a conviction on the single ground that it is unsafe. I acknowledge that, at first sight, there is some attraction in legislating to provide that a conviction is "not unsafe" if the court thinks that there is,

"no reasonable doubt about the appellant's guilt", but in also providing that the court is not required to "dismiss the appeal" if it thinks that it would,

"seriously undermine the proper administration of justice", to allow the conviction to stand. However, I think that closer examination establishes that it is itself unsafe for Parliament to presume to instruct the Court of Appeal as to what is unsafe and what is not.

We will need to look very closely at that clause, which the Government amended in Committee. It is essential to recognise three things. The first is that the state's misconduct, for example, in securing the rendition of the appellant to this country, can have been irredeemably heinous. In Mullen's case, the words were,

"so unworthy or shameful, that it was an affront to the public conscience to allow the prosecution to proceed".

We cannot claim to be honourable upholders of the rule of the law if we permit ourselves, by law, to profit from the product of such behaviour, which fortunately is rare indeed, but might not remain so if this possible sanction were removed. That would be a slope positively glacial in its slipperiness.

Secondly, we should remember that it is important to recognise that the Court of Appeal has shown that an appeal will succeed only on proof of the gravest wrongdoing or procedural mistake, such as would have led the court in the first instance, had it known about it, to stay the proceedings. The court can, and often will, order a retrial when it overturns a conviction on the grounds that it is unsafe. Lastly, contrary to the impression given by the Government, we should remember that the facts in the case of Mullen stand alone. In reality, there is no problem.

One has to stick to time, otherwise I would have liked to examine many more items that hang incongruously on their hooks and which need rigorous scrutiny in Committee. They include the provision on self-defence, which disarmingly states that it is only intended to clarify the common law, but which will create difficulties all its own. They certainly include the provision to authorise non-legal CPS staff to conduct serious trials in Her Majesty's courts.

However, the Government have produced a Bill that contains many good things, among many that are not. As a whole, these items resemble the ill assorted contents of a badly cluttered shop. If we are to improve that shop, we are going to have to spend a lot of time in it and that I look forward to.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs 4:46 pm, 22nd January 2008

My Lords, the noble and learned Lord, Lord Mayhew of Twysden, tempts me to extol the virtues of ironmonger shops which, sadly, hardly exist in this country now. I would have to turn to France where you can find everything from a chestnut roaster to grout. However, as he correctly said, time is limited, so I will resist that temptation.

This Government, under Gordon Brown, when he became Prime Minister, made much of saying that they wanted to strengthen the role of Parliament. Therefore, I find it extraordinary how this first piece of important Ministry of Justice and Home Office legislation under his premiership, has proceeded. As other noble Lords have said, the Government treated the elected Chamber with total disregard when it came to guillotining discussion and introducing important clauses with no time to debate them. If this had been a technical, uncontroversial Bill—in which case, it would have started in your Lordships' House—that would not have mattered. However, this Bill contains some very controversial items which need to be debated.

I am going to talk about three of those issues, two of which I will particularly concentrate on in Committee. I want to mention the issue of young people—I will not be discussing it so much in Committee, but it needed debating in the other place. The issue is very much in the headlines at the moment, with talk of feral children, and little can be more important than instances of violence perpetrated by children. It is something which shocks society. The Bill's response to how we treat young people—their rehabilitation, their response to the justice system and how to make that system effective—really needed to be debated by elected Members and I hope that we will be able to do it justice in your Lordships' House.

It is not simply the legislative response but also the ministerial guidance that follows it. That comes out so clearly in debate. For example, Clause 39 provides for imposing orders that will enable a court to impose an unpaid work requirement, a curfew requirement or an attendance centre requirement. When discussing these, we should debate whether the provisions are to be used only when a young person will not pay rather than cannot pay. Ministers will have to be sensitive in the guidance they issue and should give assurances regarding the resources that the legislation requires. That is because far more pressure will be put on youth offending teams and probation services, both of which are currently overstretched.

The two issues I shall concentrate on are set out in Part 7—the first is extreme pornography. It is a difficult issue to debate at all, but one to which I hope we shall bring some cool and objective thinking. Again, it did not really receive the sort of examination in the other place that it should have had. We have had an interesting briefing from a large number of academics such as lecturers in media studies and so on who have joined together on this issue. The first point they make bears repeating at this stage: the Government have been using a rapid evidence assessment to back up their claims that legislation is necessary in this area. They say that the REA document is based on largely discredited research emanating from particular psychology and sociology traditions once favoured in America and that the supporting evidence has no real connection to the British case. That is the sort of issue that we need to examine in Committee.

Legislation needs to be objective and evidence-based, not subjective. Personally, I do not like pornography and believe it to be essentially degrading to the spirit, and violent pornography is even worse. Indeed, anything depicting extreme violence is, I think, dangerous as regards the well-being of society. However, I also do not believe in censorship unless it is absolutely essential to protect people, and my personal view is not what I want the House to focus on. We need to concentrate on the fact that this sloppy clause is dangerous.

On 6 December last the Minister said that the Government believe that the individual pornography user will have no difficulty in recognising pornography. That is not an objective or evidence-based approach. Surely it cannot be for the possible perpetrator of a crime to judge whether he actually is committing a crime. A great deal more thought needs to go into exactly how these clauses have been drafted, and I recognise that the Minister has suggested that the Government will bring forward something which I hope will be more evidence-based. Further, I am extremely glad that we will have the benefit of the report of the Joint Committee on Human Rights before us.

Before I leave this point, I refer to the specialist interest material we have received from the Outsiders Trust, which represents the interests of physically disabled people. That is the sort of issue I hope we will come back to in Committee.

I turn now to the provisions on prostitution. Given that the Government started to create a strategy in this area with the publication of guidance in 2000 entitled Setting the Boundaries, followed by legislation with the Sexual Offences Act 2003 and a year later a consultation paper entitled Paying the Price, to which they received responses and then developed a strategy, I am shocked that the result of all that work is simply two short clauses which represent a pathetic response to a severe problem. The fact is that prostitution happens. People are willing to pay for sex and others are willing to sell it. Within that framework, whether we like it or not, it is going to take place. The responsibility of the legislation is to make prostitution as safe as possible so that it presents a small health risk to both the buyer and the seller and minimises as far as possible the physical risks for the women who operate in the trade. It is also a question of striking a balance between privacy and safety.

It is a mistake to regard all prostitutes as victims or unwilling participants, but that is the line the Bill is taking. It is a Victorian Bill because it talks a lot about rehabilitation of prostitutes. I was interested to learn that Ministers have been to Sweden, which has gone down the criminalisation route. It has criminalised the user as well as taking the further step—I know the Minister will deny this—of criminalising the seller. The Bill will criminalise those who do not fulfil their rehabilitation orders.

The Ministers could have chosen to visit New Zealand, which has gone down the decriminalisation route, and seen if that has worked better since legislation was introduced there. That is a point I will want to explore in Committee. Women who own brothels and run them well and safely should be able to do so without fear of prosecution under the trafficking laws if they are employing people who are there of their own free will. I believe that that would be safer. But I do not believe we can achieve all this in this Bill, and I agree with the noble Baroness, Lady Howe, that we need to remove the clauses dealing with prostitution in their entirety.

That is what I will be concentrating on. I shall also be looking carefully at exactly how the clauses on immigration in Part 12 are going to affect the children of immigrants and at all the issues raised by the Joint Committee on Human Rights on those provisions. It raises serious issues, and I look forward to debating them in Committee.

Photo of The Bishop of Liverpool The Bishop of Liverpool Bishop 4:57 pm, 22nd January 2008

My Lords, this Bill comes before the House at a time when the public mood about youth offending is both volatile and vengeful. The killings of both Rhys Jones and Garry Newlove have taken place in parishes within my diocese, in Liverpool and in Warrington. We have been deeply touched by the dignity of Stephen and Melanie Jones and properly challenged by the analysis of our social malaise offered by Garry Newlove's young widow. The mood of the public is that the perpetrators of such crimes should be punished, but when such murderers are young people, we need also to understand how we, as a society, have failed them. Without diminishing their responsibility for what they have done, we share in the culpability of creating a society in which lawless young people can hold such devastating sway.

I remind your Lordships that these two murders did not happen in areas of multiple deprivation but in leafy suburbs of owner-occupiers. It is evidence that it is not easy to contain such violence by disturbed young people. We on these Benches welcome the Bill's recognition of the youth offender teams and the youth rehabilitation orders, although we share some of the critical observations offered by the Prison Reform Trust, and by the noble Lord, Lord Thomas, and the noble Baroness, Lady Howe. When it comes to youth crime, we need to probe and examine the history of the offender. We need to understand their character and how it was formed. We need to investigate the circumstances of their life and analyse the culture that has desensitised the conscience and stultified the imagination so that the offender is unable to feel the pain they are inflicting on their victim.

If society is to a degree responsible for the moral deficiency of these young people it begets, then society—namely ourselves—must also bear the cost of the remedy. The diversionary processes are labour-intensive, necessarily expensive and require commensurate expenditure.

I welcome the Bill's provision for assessing the offender's needs concerning mental health, drug abuse and education, but I am alarmed that, according to the Bill, these orders can be issued only where such a provision is already in place. What happens when they are not available locally? Youth offending teams are under huge pressure today. We should not lay upon them such a burden of caring for juvenile offenders in society if we are not prepared to support them adequately.

It is of the utmost importance that when youth rehabilitation orders are issued they are properly tailored to the capacity of the young person. If they contain unrealistic expectations then, as has already been said, these young people are being set up to fail. There needs to be a proper assessment of the maturity of the young offender, their emotional age and circumstances, so that they stand a chance of succeeding. The young person and society are the losers if they fail and the young offender ends up with a custodial sentence which could have been avoided by proper assessment.

The purpose of the orders must be the rehabilitation of the young offender and the welfare of the young person. All this takes time and, inevitably, money and resources. I know that the Government hear the cry that they should spend more money from all quarters all the time. This must be uncomfortable when, at the same time, they are asking for cuts across the whole Prison Service. My concern is that some of the cuts being proposed will prove to be false economies. For example, the core day, soon to be implemented in all prisons in England and Wales, will have a direct impact on the work done by chaplains of all the faith communities who engage volunteers to come into prison in the evening and at the weekends. The Government rightly welcome the faith alliance as a key partner in rehabilitating prisoners back into society, but then pulls the rug from beneath its feet by making prisoners unavailable at a time when the volunteers can come.

The Bill brings into sharp focus the purpose of prison. Is it a means of social control of a criminal underclass, or is it to be a place of redemption, restoration and rehabilitation? Plans for super prisons that incarcerate large numbers, with less staff per prisoner, less contact with families and less opportunity for social contact, feed the notion that prison is simply there to control the criminal underclass. Plans that offer courses for education, training and restorative justice emphasise rehabilitation. They ensure that prisons are not just warehouses for criminals, but greenhouses where the prisoner can breathe and grow and live and prepare for planting back into the wider community.

We on these Benches would like to see a nationally costed commitment to programmes of restorative justice and to programmes of education and training, such as drug awareness, healthy relationships and anger management. Only with these in place, costed and budgeted nationally, do we have any chance of the offender management scheme working in the way that we all hope that it will. We look forward to scrutinising the Bill in its passage through the House and to amending it appropriately.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench 5:04 pm, 22nd January 2008

My Lords, there have already been some major contributions to our debate. We have had the speech of the noble Baroness, Lady Howe of Idlicote, the memorable speech of the noble Baroness, Lady Kennedy of The Shaws, stressing the importance of the rule of law in our lives, and the profound but entertaining contribution of the noble and learned Lord, Lord Mayhew of Twysden, with the ironmonger's shop. He need not despair; they have not all vanished. I can take him to one in Dorchester which fully satisfies his rigorous requirements.

It is almost hopeless to engage in a Second Reading debate on the Bill. There is far too much in it. In my view, a lot of it was ill considered at the drafting stage and so much of it has not been considered by the first House. I shall take two examples. I hope to show that the first, the defence of self-defence, needs a good deal of further thought. The other relates to Clause 42, which deals with the right of appeal and how the Court of Appeal will be required to conduct its caseload in future if the Bill is enacted in its current form.

On self-defence, the Explanatory Notes state:

"Clause 128 provides a gloss on the common law of self-defence and the defences provided by section 3(1) of the Criminal Law Act 1967 and section 3(1) of the Criminal Law Act (Northern Ireland) 1967, which relate to the use of force in the prevention of crime or making an arrest. It is intended to improve understanding of the practical application of these areas of the law. It uses elements of case law to illustrate how the defence operates. It does not change the current test that allows the use of reasonable force".

So we have something that is glossing the existing law—in an unspecified way, from what I have read so far—and is explanatory and is intended to improve understanding, so it has a sort of teaching role, but the law is not changed.

With that introduction, the clause itself then sets out various provisions. Clause 128(7) says:

"This section is intended to clarify the operation of the existing defences mentioned in subsection (2)", one of which is self-defence. It is a very odd to find within a clause a provision saying that the clause's function is to clarify the common law defence, which we are told in the Explanatory Notes has not in any way been changed. However, if the noble Lord, Lord Thomas of Gresford, is correct, the law is changed. Clause 128(8) says:

"For the purposes of references in this section to what D"— that is, the accused—

"believed, it is immaterial whether ... any belief of D's was mistaken, or ... (if it was mistaken) the mistake was reasonable".

As I understand it, that changes the law. It is odd that we are not told what the gloss is and that an earlier subsection says the clause is merely clarifying what the existing position is.

Some of the provisions are couched in the most extraordinary language. Clause 128(5), which sets out what the jury will be asked to consider, says that a person,

"acting for a legitimate purpose"—

I am a bit puzzled by that; presumably a "legitimate purpose" is self-defence, so the whole thing is circular—

"may not be able to weigh to a nicety the exact measure of any necessary action".

So the jury will be asked to consider whether the defendant could have weighed "to a nicety" the measure of force to be used. That is pretty incoherent. It has not been thought through properly at all.

That is a minnow, however, compared with the destructive operation of Clause 42, which deals with the function of the Court of Appeal. I remind your Lordships that, for the purposes of Section 1A of the existing 1968 Act, a conviction is not unsafe if the court thinks there is no reasonable doubt about the appellant's guilt. While listening to the debate, I have jotted down typical examples of where under current practice one might expect that the Court of Appeal would want to upset a conviction. I shall give your Lordships four of them, and see what fate would befall the appellants now. First, the judge in his summing-up failed to put the case of the defendant to the jury. Secondly, he misdirected the jury on the applicable law on a relevant point. Thirdly, he wrongly refused to allow the defence to call three witnesses. Fourthly, it emerged after the trial that the prosecution had in its possession written statements which might have given some support to the defendant's case.

Let us go back to the first example: failure to put the case of the defendant to the jury. Under the Bill, the Court of Appeal would say, "Well, we have had an excellent exposition of the case of the defendant; we fully understand it. We have had that knowledge. We now ask ourselves whether there is any reasonable doubt about the defendant's guilt. No, we do not think there's any doubt about it. It does not make any difference that the case was never put to the jury and summed up for them". Let us go back to the second example: misdirection on some point of law in the case. The Court of Appeal would now say, "That does not matter. We know what the law is. That rule of law affects our thinking that this man was guilty and there is no reasonable doubt about it". And so one can go on. In the third example, the judge refuses to allow certain witnesses to be called. The Court of Appeal now says, "We have read those witness statements. We do not find them convincing; we do not suppose that a jury would have found them very convincing, so appeal dismissed". The same would apply with the statements which were not made available. It may be misconduct by the prosecution, which can be criticised, but the court will say, "It is not a ground on which we can allow the appeal, because we read those statements and, once again, we are satisfied that the evidence before the jury, even if the statements had been available, is enough to ensure guilt".

The clause completely undermines trial by jury. It substitutes trial by the Court of Appeal for trial by jury. That is a grave development, which should not be allowed to happen. I remember the late Lord Devlin giving an address in which he attacked a decision of the House of Lords, sitting judicially, wherein, in his view, it had done precisely what the Bill does: it had substituted its view of the facts of the case and restored a conviction where a lower court had not taken quite a different view but could not interfere with the verdict of the jury.

That is the vice in Clause 42. I shall content myself with those two points.

Photo of Lord Judd Lord Judd Labour 5:12 pm, 22nd January 2008

My Lords, there is a good deal to be welcomed in the Bill. However, it is clear that a full and considered response by the Minister to the observations of the Joint Committee on Human Rights is essential.

I was struck by the observations of the right reverend Prelate the Bishop of Liverpool. Rehabilitation must surely remain a central, muscular objective of penal policy. Too often, it becomes a hollow refrain. Of course it may be necessary to register the unacceptability of criminal behaviour by some degree of punishment, and protection of the public is vital, but the worse the crime, the greater the challenge to a self-confident, civilised society tirelessly to strive for rehabilitation. To fail is a failure of civilisation; it is to fail the individual and it is usually an economic nonsense, with all the economic and social costs of reoffending.

Our prisons have far too many people in them who should not be there at all. Too many prisoners are suffering from mental illness, learning difficulties and similar conditions. Prison, far from helping, frequently aggravates their condition. Concerned and highly professional prison staff, of whom there are many, will be the first to speak of this, yet we seem to be locked into an inadequate and self-defeating pattern of expenditure, as the plan for a huge expansion of prisons indicates. If we were to start from scratch, we could almost certainly have a purpose-built and secure rehabilitation-oriented system at no greater cost, thereby achieving substantial success in curbing reoffending with all its gravely adverse consequences.

I declare an interest as until recently, for nine years, a president of the YMCA, which does significant work with young people in prisons and detention centres. Children in penal custody are among the most disadvantaged among our society. More than 25 per cent have a literacy or numeracy ability of only seven years or younger, while 85 per cent have symptoms of personality disorder. Ten per cent appear to have psychotic illness, while more than 50 per cent have been in care or involved with social services and 41 per cent have been excluded from school. The Youth Justice Board has indicated that up to nine out of 10 children in custody after having committed a serious offence have been previously abused or suffered severe traumatic experiences. But far too often they simply do not get the help that they need while detained. In secure training centres, which hold younger children, self-harm rose by 803 per cent between 2001 and 2004. Too many children still die in custody. So far, despite imaginative and highly effective work by NGOs and others, overall arrangements for rehabilitation have not been a success. Three-quarters of youngsters reoffend within a year of release.

Too often the children involved in crime—even the worst cases—are first and foremost themselves victims, and what they need above all is help, not just punishment. To be candid, too often our society totally fails to grasp this. Children should never be in prison. If, but only if, for the protection of the public it is essential to detain them, such detention should invariably be in secure but also properly resourced, purposely designed and professionally staffed special accommodation. With the vast expenditure envisaged for the new prison-building programme, this is surely the time to start applying a more rational and appropriate approach. Future crime prevention and good economic logic demands this.

The Standing Committee for Youth Justice brings together almost 20 organisations with extensive front-line experience of working with children and young people. It includes the Association of Youth Offending Team Managers, Nacro, the National Children's Bureau, the NSPCC, the Children's Society, Voice and others. The committee has assembled a succinct and powerful brief on the Bill, listing its principal remaining concerns. I hope that my noble friend will ensure that he and his colleagues personally read that brief—it is not in any way hostile—and take it fully into account. It would be good if today he would reassure us that they have or will.

On youth rehabilitation orders, while the standing committee welcomes the principle of generic community sentences, it is concerned about too much subjectivity in the court's approach, which may be difficult to counter in cases towards the higher end of the community sentencing range. It believes the Bill has to be amended to prevent a standard custodial sentence—a detention and training order—being imposed unless a youth rehabilitation order or intensive supervision surveillance order has previously been tried. It also believes that the Bill should establish that sentencers are required to take into account the age and circumstances of children and young people before them, and not to overload the sentence content and duration beyond their reasonable capacity to comply. It reminds us that such children are frequently unstable and immature.

Among other concerns are the importance of retaining the power of the court when dealing with a breach, to allow the order to continue without imposing additional punishment, if this is the most appropriate course to take, and the unacceptability of removing the specification that the court may impose an intensive supervision and surveillance requirement or a custodial sentence for a breach of an order when the original offence did not warrant custody or was a non-prisonable offence.

It is also concerned about the absence of a guarantee that children should have access to justice with proper legal representation, whatever the form of youth rehabilitation order being imposed, and not just before requiring local authority residence or foster care, as envisaged in part 2 of Schedule 1. It is necessary to make the promotion of children's welfare an explicit primary purpose of sentencing. Similarly, it is important to replace a punishment purpose for children with a requirement that sentences are proportionate to the offence.

We need to take into account the relative success of referral orders with their problem-solving and restorative justice approach by making provision for second referral orders, provided that a youth offending team or equivalent officer recommends that. There are similar concerns about the youth default orders in Clause 39.

We need to extend the otherwise good step in Clause 98 of a youth version of the conditional caution to those under the age of 18. We also need to abolish the power to prosecute children under 18 for prostitution, which was surely intended by the Department of Health guidance on safeguarding children in prostitution issued in 2002. Children must be seen as the victims of social inadequacy and worse, as they almost always are.

The Standing Committee also notes the absence of convincing supporting evidence to justify the introduction of violent offender orders. It asks whether proportionate and appropriate use can be made of such orders with children and young people. It emphasises the dangers of counterproductivity among children inherent in anti-social behaviour initiatives. Therefore, while it welcomes the principle of periodic reviews, it stresses the importance of ensuring that these are available at any stage, not just after 12 months. It also stresses the importance of removing a custodial sentence for the breach of an ASBO by a child and of ending the iniquitous practice of naming and shaming, which not only breaches our international obligations on privacy for the child, but too easily becomes a badge of honour. It is also important to reduce the minimum length of the child ASBO from two years to three months.

There is also an imperative need for an assessment under the common assessment framework before an order is made to ensure that mental health difficulties or conditions such as autism have been identified, so that the children affected by such conditions get appropriate treatment and not just an inappropriate ASBO.

The children covered by this Bill are, in many ways, already among the most excluded in our society. In our deliberations, we must be very careful indeed lest in any way some provisions of the Bill inadvertently tend to institutionalise that exclusion.

A

I totally agree with the Noble Lord Hunt, that our treatment of children who are out of control, or commit an offence is deplorable. Many of these children have mental health problems, and it should be their right to have a psychiatric examination before any decision is made about their "disposal". I am myself in favour of small special schools for such disabled children. Under the present scheme (if there is one) they remain uneducated, unmanageable, and are likely to procreate children similar to themselves, due to the lack of care they have themselves received. It is a vicious circle, and a catch 22. It is easy to blame the parents, but they themselves(not all) may well have been brought up in an unsatisfactory background, with poor parenting. This has left them without the skills of parenting for their own children. If the child is sick, that is no reason to blame the parents, who themselves need support and advice.

Submitted by Alix Cull

Photo of The Earl of Onslow The Earl of Onslow Conservative 5:23 pm, 22nd January 2008

My Lords, I can say in all truthfulness that I agree with every single word said by the noble Lord, Lord Judd, on the aspect of children; I just wish that the Government would not only take him seriously but act on his advice. I am deeply privileged to serve on the Joint Committee on Human Rights. Two of us are down to speak today—the other is the noble Baroness Lady Stern, who will cover youth justice, offender management, compensation for miscarriage of justice and prostitution. I will attempt to summarise our position on the rest.

The noble Lord, Lord Hunt, stated on the face of the Bill that it was HRA compatible, but we have serious doubts about that. We have looked into it in depth. Our committee is chaired by a very able member of a different party from me from another place and we arrived at our conclusions effortlessly and unanimously. Our committee noted with disdain the amount of clauses that went undebated in another place. This Government's lack of respect for Parliament and government Back-Benchers' supine acceptance of timetable Motions is nothing short of pathetic.

The Government claimed that they would rebalance the criminal justice system. What exactly does this mean? In giving evidence to one of our committees in 2005-06, the noble and learned Baroness, Lady Scotland, stated that there was no need to rebalance the criminal justice system. Could we please have some help on which of those two things the Government mean?

I start with the changes to the Court of Appeal, which were dealt with extremely well by the noble Lord, Lord Neill. I really should not have anything to add but as I am trying to summarise what the JCHR has said, I ought to try. We are concerned about the fact that the judges will be asked to adjudicate on fact—which is the proper job of a jury—and not on the conduct of the trial. Surely the job of the Court of Appeal is to find whether the trial has been properly conducted and whether there are grounds for a retrial or for the throwing out of the conviction. I believe this has arisen because there is a rumour going about that the Court of Appeal has been letting criminals off because of triviality. There is no evidence of this and the court has found no evidence of this.

In previous reports on monitoring breaches of human rights we have noted that the UK law does not allow the reopening of criminal cases following an ECHR judgment. This Bill has an opportunity to rectify that and I hope that we can persuade Her Majesty's Government so to do.

I now turn with gentle delicacy to extreme porn. What is it? Is it Juvenal's ninth satire? I have unfortunately lost my Latin copy of it; otherwise, I would have quoted it to your Lordships. However, I certainly would not dream of translating it. Luckily, we are of a much less classical generation so I hope that most of your Lordships would not have understood it. I once quoted it on the wireless—on a Radio 3 programme about pornography rock with the encouragement of the noble Lord, Lord Alli, and a minor payment. This little sideline concerns what is meant by extreme porn. "Extreme" is an extremely subjective word. The law must not have subjective judgments in it; it makes things too difficult, if not impossible, and it makes judgment on facts difficult.

We wrote to the Minister, asking for a definition that was sufficiently precise and foreseeable to pass Article 8, relating to respect for privacy, and Article 10, relating to freedom of expression, and asked whether the new offence was necessary in a free society. We are concerned at the vagueness of the offence. We question whether Clause 113 is precise or foreseeable enough to meet the Convention requirements. The offence requires the image to be extreme. That is an extremely subjective judgment in itself. The Explanatory Notes state that the new offence was made to protect individuals from participating in degrading staged activities or bestiality, to cut supply and to prevent others from accidentally coming across such material. We question whether the behaviour criminalised in Clause 113(6)(a) and (b) should be so if carried out by adults in private.

Self-defence and force used to prevent crime are welcome. Our committee thought that the Government clarified it—although the noble Lord, Lord Thomas, said that they did not, so we will have to work that out later—rather than extended the existing law. The noble Lord, Lord Neill, said that that put "a gloss" on it, which is a good expression. However, the issue also brings into focus the question of reasonableness in the circumstances, regardless of the reasonableness of that belief. This can be summarised thus: if a racist householder shoots a black visitor because he believes that all black men are burglars, should that be classed as a reasonable thought and should it be taken into account?

Violent offender orders were not debated at Report in the Commons and they raise serious human rights issues. First, is the power to make them sufficiently defined as to be compatible with the Human Rights Act? Secondly, are they fair in accordance with Article 6? Thirdly, are there sufficient safeguards against retrospective punishment? We think a power to impose VOOs that interferes with Convention rights is not well enough defined to satisfy legal certainty. Unlike the Prevention of Terrorism Act or the Serious Crime Act, the Bill does not include an indicative list of prohibitions, conditions or restrictions that may be imposed. The Explanatory Notes to the Bill state that VOOs are not punitive and do not constitute sanction.

On that issue, we asked the Government three questions: first, would they distinguish between VOOs and indeterminate sentences for public protection; secondly, why is it appropriate to use civil proceedings in circumstances of criminal conviction; and, thirdly, why are criminal guarantees not appropriate in the light of the McCann case? I shall quote the noble and learned Lord, Lord Bingham, who stated in the Court of Appeal that the procedural protections must be commensurate with the gravity and consequences of the controlled individual. He stated:

"In our view, the combination of the fact that a VOO will only be made where an individual has already been convicted of a serious violent offence, the risk being protected against is the risk of that person causing serious violent harm in the future by committing a serious criminal offence, the severity of the restrictions to which an individual may be subject under a VOO, and the possible duration of such an order (up to two years and infinitely renewable) means that in most cases an application for a VOO is likely to amount to the determination of a criminal charge for the purposes of Article 6 and therefore to attract all the fair trial guarantees in that Article".

The Government have accepted in the Commons that criminal standards will apply, but they must be in the Bill. The Minister has confirmed that hearsay evidence and written rather than verbal evidence will be allowed. This evidence must be open to challenge on behalf of the accused, otherwise it will not be subject to Article 6.

Interim violent offender orders can be imposed for four weeks initially and renewed indefinitely. No proof of individual behaviour is necessary. These two conditions are excessive. There must be prima facie evidence and a limit on renewability. The Government dispute that VOOs may clash with Article 7 of the Convention on the possibility of retrospective punishment—that is, the imposition of a VOO arising out of a conviction prior to the Bill becoming law. The Government say that VOOs are not punishment, but are preventive measures; but imposing a curfew sounds to me extremely like, and not dissimilar from, punishment.

Premises closure orders run the risk of creating homelessness and interfering with property rights. The Government are to produce guidelines, but they should be in the Bill.

Special immigration status gives rise to the risk of further breaches of the refugee convention and, therefore, the statutory interpretation by the 2003 Act of Article 1F should be repealed.

The Bill will attract trouble ahead and I will happily mix it with the best, because the legislation needs serious revision. I hope that noble Lords will accept that that was rather a rushed précis of a long and complicated document.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords (Communities), Department for Communities and Local Government 5:35 pm, 22nd January 2008

My Lords, as my noble friend Lord Thomas of Gresford said, here we are again repeating the annual cycle of criminal justice and immigration Bills. There is no respite and I suspect that this pattern will continue in future years. This is at a time when the police are in conflict with the Home Office regarding their pay. Prison officers have not hesitated in taking industrial action. The Probation Service is at breaking point in some areas and demands adequate resources. The future of NOMS is still in question and, more importantly, police and court cells are still being used to house some prisoners, because of overcrowding. In my 30 years of involvement in various parts of the criminal justice field, I have never come across such a sorry state of affairs.

I shall concentrate on two aspects. The first is about immigration. I am tempted at this stage to deal with Part 12, which relates to special immigration status. It affects those who have committed terrorism or other serious criminal offences and who cannot be removed because of Section 6 of the Human Rights Act 1998. I shall of course leave that to my noble friend Lord Avebury who will have a lot to say on that subject. My concern relates not to what is in the Bill but what we have failed to rectify.

As noble Lords will know, Prime Minister Gordon Brown has just returned from his visit to India. This is his second visit. I am aware that during his previous visit, the Prime Minister of India discussed with him the impact of retrospective changes affecting migrants and their families who entered the UK legally from the Indian subcontinent under the Highly Skilled Migrants Programme (HSMP). The Joint Committee on Human Rights in its report on the HSMP stated that these retrospective changes were unlawful in ECHR law. The Human Rights Commission and the then Commission for Racial Equality stated that the changes were discriminatory and breached Section 71 of the Race Relations Act.

Why do I mention this? The effect on individuals has been catastrophic. We are criminalising groups of people who may be reluctant to leave the United Kingdom. There are those who have returned to India with their families and have lost everything. They felt that the British Government had cheated them. The UK Government unfairly went back on their promise that the HSMP would lead to settlement, but the retrospective changes made that impossible. They have nothing left in their home country—no jobs, no assets, no hope and in some cases not enough money to travel back. These are qualified people. They were deemed to have skills which were required here. To retrospectively alter their status and ask them to leave is inhuman and does not fit with the liberal values we espouse.

If we are concerned about the impact of the Human Rights Act on those who damage this country and wish to remove them—as we intend to do in this legislation—should we not, by the same token, meet our obligations to those whom we trusted under our Highly Skilled Migrants Programme? This was the golden opportunity to rectify this shameful decision, but it does not form part of the Government's legislative programme. We on our part would certainly wish to explore amendments in Committee to see if this gross injustice could be rectified.

I come to the second part of this Bill, which concentrates on criminal justice matters. I do not wish to sound disgruntled because the Bill may to a small extent help to reduce the prison population. To me, any criminal justice legislation must be measured against its impact on our prisons and its unacceptably high population; and my noble friend Lord Thomas of Gresford has pointed out our serious concern as to whether that reduction would happen in reality. I have no doubt that the Bill includes a number of provisions that will help to slow down the rapid and alarming increase in the prison population. The most significant of these are the badly needed restrictions on using the indeterminate sentence of imprisonment for public protection. The legislation introducing this sentence was so badly drafted that it has led to large numbers of offenders being given indefinite sentences who are far from being the dangerous offenders for whom an indeterminate sentence is appropriate. Half the offenders who have received these sentences have been given tariffs of 20 months or less, showing that their offences are at the less serious end of the spectrum. At least the Bill will limit these sentences to cases involving tariffs of two years or more and will remove the presumption that indefinite sentences should be passed simply because the offender has a previous conviction for a similar offence. Let us hope that this will help to prevent the inappropriate use of these sentences for offenders whom it was never envisaged would receive them.

The Bill also stipulates that non-dangerous offenders who have breached their licences should be recalled to prison for a fixed period of 28 days. This may help to prevent the lengthy and disproportionate imprisonment of offenders who have been recalled for missing, or being late for, probation appointments. But again, as my noble friend Lord Thomas of Gresford pointed out, there must be judicial oversight, rather than executive power exercised by the Home Secretary or the Justice Minister. The rising number of prisoners being recalled for breach of licence has put increasing pressure on the prison system—they now make up 11 per cent of the local prison population. Although I welcome the Bill's provisions on this point, I would like to see the Government go further by introducing a graduated scale of punishment for breach of licence, with prison being used only when less severe penalties have been tried. Even more important would be to ensure that there is adequate machinery to monitor the outcomes of such punishments.

The Bill provides for the restriction of suspended sentences to indictable offences and those that can be tried either way. There is evidence that courts too often pass suspended sentences where they could have passed a community sentence. Even where courts use the suspended sentence properly to replace an immediate jail sentence, they often fix suspended periods of imprisonment longer than the immediate prison sentence that they would otherwise have passed. If the criminal reoffends and the sentence is activated, the offender is imprisoned for longer than if he had received an immediate prison sentence in the first place. Let us hope that the Bill will at least limit this damage by prohibiting the passing of suspended sentences for minor summary offences.

The new sentence requiring convicted prostitutes to attend three meetings with a supervisor has been controversial. On the one hand, this would be a better option in many cases than the self-defeating sentence of a fine, which drives the offender straight back to the streets to earn more money to pay the fine. In some cases the new sentence could steer prostitutes towards services that will help them to sort out the drug and housing problems that are usually driving them to solicit. On the other hand, it would be unfortunate if the new sentence led to a procession of women, who have failed to turn up for meetings with supervisors because of their chaotic lifestyles, being brought back to court and jailed for failure to attend meetings.

Some of the Bill's provisions could help to provide more appropriate ways of dealing with young offenders. It is important that we have an effective probation service, with measures that identify a way forward. One is the extension of conditional cautions to young offenders aged 16 and 17, which provides an additional means of diverting young people away from the formal criminal justice system. Also welcome is the requirement that courts passing an anti-social behaviour order on a juvenile must consider imposing an individual support order alongside the ASBO. But do we have the resources and the probation structures to ensure that this will happen? One of the main problems with ASBOs is that they are entirely negative measures. They prohibit specified behaviour by the young person, but provide no help to the offender or to their family to change that person's behaviour. Individual support orders can provide a degree of help with the problems that contribute to anti-social behaviour, but courts currently use them in only a small proportion of cases. The Bill should help to increase the number of cases in which positive help is provided to young people who are the subject of an anti-social behaviour order.

I have repeatedly expressed my concerns about the impact of the Rehabilitation of Offenders Act. I welcome the extension of the Act to bring cautions, final warnings and reprimands within its scope. This will mean that unconditional warnings and cautions are immediately spent for the purposes of the Act and that conditional cautions are spent after three months. After that, they will not have to be declared when the offender is applying for a job. This is welcome, even though I would have preferred to see it as part of legislation involving comprehensive reform of the Rehabilitation of Offenders Act. However, this does give me an opportunity to introduce reform in a Private Member's Bill.

Although the Act includes a range of measures that are individually welcome, overall they amount to merely tinkering around the edges of a sentencing and penal system that is in crisis. The prison population is at record levels, the prison system is in a state of extreme overcrowding and the Government's plans to build new, bigger prisons will absorb vast resources that could be better spent on improving prisoners' rehabilitation. I would have preferred to see a Bill that tackled the problem of this country's over-punitive sentencing system head-on. Such a Bill would have legislated to require sentencing guidelines to take account of the capacity of the prison system. It would have removed prison as an option for low level, non-violent crime. It would have prohibited courts from imprisoning offenders, other than the most dangerous, unless they had first tried an intensive community sentence. As it stands, the Bill contains some sensible ideas but fails to take the root-and-branch approach necessary to reform our criminal justice system and to reduce our prison population to levels that are more in line with those of our European neighbours.

Photo of Baroness Stern Baroness Stern Crossbench 5:47 pm, 22nd January 2008

My Lords, this is not the Bill that most people concerned with an effective criminal justice system and a safer society would like to see. The noble Lord, Lord Dholakia, has described the situation very well. The Bill that we need would be more realistic and would set narrower boundaries, not broader ones, for what a criminal justice system should do to protect the public and administer justice. It would make well-grounded decisions about what resources to allocate now and in the future, and then plan how to use them most effectively so that the system could cope with its workload. It would devise a framework enabling those who work in the system to make more use of their discretion, their sense of responsibility and their skills to deal with defendants and offenders in the best way that they can, to contain and rehabilitate them and reassure the public that the criminal justice system works. If we were moving towards such a system, we would be moving towards a safer and less frightened country. Sadly, we are not.

The way of making policy that the Bill exemplifies, with a bit of this and a bit of that and without proper analysis and assessment of the unintended consequences, has not served us well. Those of us who spent many days debating the Offender Management Bill and questioning the realism of the Government's claims are not surprised that the NOMIS database, which was meant to be the holy grail in allowing for end-to-end offender management, has been scaled back and will now be used only by prisons. Nor are we surprised that end-to-end offender management has been brought in only for a very small group of offenders. That is a sensible outcome, but the realities should have been understood from the start.

Therefore, my starting point is that if we were making evidenced-based policy and using resources to best effect, we would not be here today debating this Bill. However, we are, so is there anything in it to welcome? I am sure that we all welcome the decision to rectify some of the mistakes and misjudgments of earlier legislation: for example, introducing a minimum tariff of two years for IPPs and extended sentences; giving credit for bail on electronic monitoring; realigning the 1991 and 2003 Acts' early release provisions; and fixing the period of 28 days for recalled offenders.

I also warmly welcome the Minister's announcement in his opening remarks that the clauses on the Commissioner for Offender Management and Prisons are being withdrawn. Although it is highly desirable that this office is placed on a statutory footing, the Government's proposals as they stood were deeply flawed. However, I support the remarks of my noble friend Lady Howe about the Government's weak-kneed approach to the proposals made by the noble Baroness, Lady Corston.

I want to concentrate specifically today on one aspect of the Bill—that is, the compatibility of these proposals with the Government's human rights obligations. We are fortunate that, thanks to the dedication and hard work of the staff of the Joint Committee on Human Rights, of which I am a member, a report on these matters was agreed yesterday evening and produced overnight so as to be available for this debate. I hope that the Minister noted at the beginning of that report the appreciation expressed for the full Explanatory Notes on human rights compatibility, which the committee found "unprecedented". I hope that this comprehensive report will be of use to the many noble Lords who are interested in the Bill, and I am glad that it has already been referred to by the noble Baroness, Lady Miller, my noble friend Lady Howe, and the noble Lords, Lord Henley and Lord Thomas.

Perhaps I may say a word about youth justice. Our youth justice system is a scandal and has been the subject of adverse reports from all the main human rights bodies. It subjects some of the most vulnerable children in our society to punishments that they do not understand, because their lives so far have been nothing but punishment, in places that are not in any way appropriate to hold them and meet their needs and where they are subjected to practices such as strip-searching—sometimes forcible strip-searching while they are restrained—and pain infliction. Those practices are clearly inhumane and degrading.

I never thought that I would see the day when the European Committee for the Prevention of Torture, which among other things concerns itself with prison conditions in Russia and what happens in police stations in Turkey, came here and told Her Majesty's Government that it was not acceptable in children's prisons to hit children on the nose until they felt pain to make them do what they were told. I assume that that is what happened as, soon after the committee's visit, the Government announced that this practice was to be discontinued. We must be grateful that the Government abandoned it. In that respect, I should like to mention the Labour Member of Parliament for Northampton North, Sally Keeble, who has campaigned with such determination to get these practices changed. We must also be grateful that the Department for Children, Schools and Families became involved and that two esteemed professionals with childcare backgrounds were brought in by the Government to look at what I would describe as the gross and indefensible use of restraint in children's prisons. Those of us who have met these two professionals are optimistic about the outcome of their work. In order to take forward this reform agenda, it is essential that we change our approach to the use of custody, and therefore I hope that the Minister will listen carefully to those who urge us to amend the Bill to create a threshold for the incarceration of children.

In response to arguments about reforming the youth justice system, Ministers have tended to say that critics fail to appreciate that some children commit serious crimes. Of course they do; those who urge reform know that children from abused and violent backgrounds may well commit serious crimes. These are the children who need particular skilled, painstaking care and attention if they are to grow into adults able to lead violence-free lives. This is not just a human rights issue; it is a case of recognising the evidence and devising policies accordingly.

I turn specifically to the report of the Joint Committee on Human Rights. The committee welcomed the introduction of the generic community sentence for children under 18 on the basis that,

"it has the potential to enhance the legal protection for the human rights of children and young people in the criminal justice system".

However, the committee is concerned that custody should be a last resort and that punishments should be proportionate—not only to the offence but to the child's age and intellectual and emotional maturity. Therefore, it recommends that we remember the requirement of the UN Convention on the Rights of the Child that in all measures taken in regard to children, the best interests of the child should be paramount. The committee therefore finds unacceptable the thrust of Clause 9—that the best interests of the child should be subordinated to the principal aim of the youth justice system. It recommends that the Bill be amended to make it explicit that the sentencing court should have regard to the welfare of the child "as a primary consideration".

The committee noted with surprise that there is no presumption that children are entitled to publicly funded legal representation in criminal proceedings and it recommends an amendment to provide such a right. The Joint Committee was also concerned about the proposal to cap the amount of compensation payable to those who suffer a miscarriage of justice. It did not accept that there should be a cap and envisaged that £500,000 might be very inadequate recompense for someone who had been unjustly imprisoned for a large part of his or her life. The noble Lord, Lord Thomas of Gresford, put that point very well in his opening remarks. The committee recommended that this provision be deleted.

The committee supported wholeheartedly, as will all noble Lords, the need for rehabilitation of the very many vulnerable people involved in prostitution. This would be a human rights-enhancing measure. But we were very concerned that enforcement could result in 72-hour detention and might lead to imprisonment. We hope that the Minister will consider deleting this provision.

The Joint Committee has produced some model amendments on these and other matters that we hope to be able to table in Committee, and we look forward very much to the work that we have to do to make this a better Bill.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour 5:58 pm, 22nd January 2008

My Lords, I am grateful, as the House will be, for the excellent, erudite and expert speeches that we have heard on the Bill so far. I join those who have criticised the size and, indeed, the content of the Bill. Here we have yet another large criminal justice Bill to add yet more criminal offences to the already overburdened statute book at a time when there is an acute shortage of prison places.

In the 10 years since 1997, 3,000 new criminal offences have been added to the statute book. In light of the acute shortage of prison places, I tabled a Written Question to ask Her Majesty's Government,

"whether, in light of the acute shortage of prison places, they will review all the criminal offences created since 1997 carrying a prison sentence".

I thought that I would get a reasonable response to that, and that the Government would be as worried as I am about all these offences, with perhaps many unintended consequences, which they had not thought of in the beginning. The Answer was:

"The Government do not consider that it would be helpful to review all offences created since any particular date, but all departments that propose new offences are required to refer these to the Ministry of Justice for consideration of prison population implications".—[Hansard, 7/1/08; cols. WA 170-71.]

Has that department seen this Bill? Have they considered all the implications of all the new offences that carry a prison sentence? Have they considered whether they are all necessary and, indeed, whether the prison system can cope with them in its present parlous state? We shall have to see what the answers to those questions are.

Another item has, understandably, not received much attention. As a trade unionist since the age of 16, I was particularly perturbed that a Labour Government, who had opposed a previous Tory Act that limited the right of prison officers to strike, should itself re-import that provision into this Bill. Whatever has happened to collective bargaining, which the Labour Party and the trade union movement have fought for throughout their existence? That provision is a disgrace to the Labour Party, which, after all, was created out of the trade union movement and which, I hope, still believes in free collective bargaining. Public servants should not be in any worse a position than private-sector employees in fighting for their pay and rights. It was particularly insensitive of the Government to introduce this provision just as they were telling the police that they could not have the full award of the police pay committee.

I move on to Clause 126, which deals with hatred on the grounds of sexual orientation. We have already heard all the reasons why that clause should not appear in this Bill from the right reverend Prelate the Bishop of Manchester. I want to approach it from a secular point of view. In 1957 I was a member of the court and council of the University of Reading. The vice-chancellor of the university at that time, whom I liked and knew well, was Sir John Wolfenden. Of course, Sir John produced an excellent report. Unfortunately, it was 10 years before it was implemented. Sir John brought the issue alive and said why homosexuality should be decriminalised for consenting adults over the age of 21. I supported that absolutely. That was a time when, if you supported the Wolfenden report, you were held in great suspicion. Make no mistake about that; it was not very easy.

Things have moved on, and I am very glad that they have done so. Unfortunately, some of the leaders of the gay and lesbian community—Stonewall in particular—are now demanding not equality, which we all agree with, but privilege. That goes too far. We are perfectly in favour of equality in matters of sexual orientation, but I am concerned about the implications of Clause 126 for free speech, particularly as it omits the free speech protection given in respect of racial and religious hatred legislation.

People are already confused about what they can and cannot say; that, in itself, is a restriction on free speech. Indeed, they are at risk of arrest. Frightening cases have already been brought by the police, which should give us pause before passing this clause. Let me remind noble Lords of some of them. In 2005, a Christian couple, Joe and Helen Roberts, were interrogated by the police because they complained about their local council's gay rights policy. All they did was make a complaint. The Bishop of Chester was investigated by the Cheshire constabulary in November 2003 after he told his local newspaper of research showing that some homosexuals reorientated to heterosexuality. He was perfectly entitled to say that without being interviewed by the police. In December 2005, the police questioned the family values campaigner, Lynette Burrows, after she expressed the view on a radio programme that homosexual men may not be suitable for raising children. She was entitled to express that opinion without the police coming down on her like a ton of bricks.

Apparently Stonewall has a solution. Ben Summerskill, one of the main proponents of a homosexual incitement offence, believes that such an offence would allow religious beliefs about homosexuality to be stated, provided they were expressed in a temperate way. Who is going to judge what is temperate? We could all produce differing definitions. There are real dangers in this point of view.

In conclusion, Stonewall appears to have undue influence on Government policy. It is certainly due to their pressure that this clause was introduced. Stonewall does not have the unqualified support of the gay community; make no mistake about that. Peter Tatchell and Matthew Parris have both spoken against the clause because they believe that it will not help homosexuals and lesbians. Furthermore, Stonewall appears to believe that somehow gays are less able to stand up for themselves than everybody else. I do not believe that that is true. They are just the same as anybody else and can fight their corner as they wish. By its actions Stonewall is putting them at greater risk of physical attack.

I believe that the clause is unnecessary and should be struck out. If not, at least we should have the paragraph about free speech added to it as it applies to other legislation on race and religion. Without that it will be an extremely dangerous clause.

Photo of Lord Waddington Lord Waddington Conservative 6:11 pm, 22nd January 2008

My Lords, the noble Lord, Lord Thomas of Gresford, referred to this as a rag-bag of a Bill, but I want to pick out just Clause 126, which has been referred to by the noble Lord, Lord Stoddart, and makes it a criminal offence to incite hatred on the grounds of sexual orientation. The clause cries out for amendment to protect the right to free speech, and no doubt such amendments will be debated in Committee. Right now the question is whether there is any need for the clause at all in light of the fact that there are already laws to deal with those who are minded to stir up hatred against gays. The question is whether this is not just another example of the Government's enthusiasm for creating more and more offences without proper consideration on whether they are really necessary or whether they interfere unnecessarily with personal liberty.

Let me make one thing absolutely plain. There is no place in a civilised society for hatred towards gay people. The existing law, as the right reverend Prelate the Bishop of Manchester reminded the House, already bans threatening, abusive, insulting words or behaviour likely to cause harassment, alarm or distress, with—incidentally—tougher penalties when the conduct is aggravated by hostility towards someone because of his sexual orientation. Far from the existing law being weak, difficult to apply and ineffective, it has been used extensively in recent times, sometimes raising legitimate concerns on whether the police are very expert at analysing people's utterances to determine whether they have gone beyond comment and criticism and are abusive, threatening or calculated to stir up hatred.

Let us be absolutely clear. The police already have power to arrest someone who they think is whipping up homophobic hatred. Really serious cases, and cases when the Public Order Act does not bite because no one present is likely to be caused harassment, alarm or distress, can be dealt with under the Serious Crime Act 2007, which, in toughening up the old law on incitement, makes it criminal to encourage or assist the commission of crime—to use, for instance, words that recklessly encourage criminal violence. Contrary to what the chief executive of Stonewall told the Commons Public Bill Committee, there is no gap in the law to allow rap lyrics which, in the example given by Stonewall, encourage the killing of gay people. That is clearly criminal, but in the vast majority of cases the present Public Order Act is potent enough. It allowed the arrest of the evangelist Stephen Green for handing out leaflets containing the notorious passage from Leviticus. It allowed the prosecution to conviction of a Bournemouth man who displayed a placard saying, "Stop homosexuality, stop lesbianism".

It is an unfortunate fact that the police have not always used the existing law wisely. As the noble Lord, Lord Stoddart of Swindon, said, the right reverend Prelate the Bishop of Chester was investigated after he referred in an article to the possibility of some homosexuals being reoriented to heterosexuality. Robin Page, the former presenter of "One Man and His Dog", was arrested for making some frivolous and tasteless but certainly not criminal remarks at a country fair, and a retired couple have recently recovered damages for the harassment and intimidation to which they were subjected after complaining about Fleetwood Council's gay rights policy. There was then, as your Lordships will remember, the absurd arrest and prosecution to conviction of the Oxford student by police who chose to construe a joke about a horse being gay as criminally homophobic. Then there was the interrogation of Lynette Burrows in the circumstances that the noble Lord, Lord Stoddart, again outlined.

None of this means that there should not be strong laws to protect gay people but it makes one wonder what conduct the Government envisage will be caught by this law that is not already covered by existing legislation. It also shows that the police have not been very adept at applying existing hate-crime laws and makes one doubt the case for their spending even more time in this area. With violent crime rampant, which was made very plain by the noble Lord, Lord Thomas of Gresford, I encourage the police to spend more time on men's actions and less time on their utterances.

It is no use the Government saying that the new power can be used only when the offending words are specifically intended to pose a threat and are not merely humorous, mocking and abusive. It is no use the Government going on about the need for the Attorney-General's consent. A police officer, armed with the power to arrest without warrant, will in the first place be the judge of what has crossed the line from the abusive to the threatening. There is nothing in recent history to persuade me that the police will be sensitive to the difference between robust criticism and incitement to hatred, or that they will behave moderately any more than did the police in Bournemouth who persecuted the unfortunate, and now deceased, Mr Hammond.

Freedom and freedom of speech are very precious commodities. Excuses can always be found for their curtailment and plenty of excuses have been advanced for many curtailments of our rights in recent years. The Government even defended the proposition that it was criminal to read out a list of those killed in Iraq from the steps of the Cenotaph. We should not now be creating more criminal offences without being 100 per cent sure that they are necessary and will not be misused.

I repeat that to oppose this legislation is not to be anti-gay. One of its chief opponents is that doughty campaigner for gay rights, Peter Tatchell. Quite simply to attack this legislation is to be pro free speech.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs 6:19 pm, 22nd January 2008

My Lords, along with others today, I find something heart-sinking about yet another enormous criminal justice Bill covering a multitude of issues without any discernible theme or thread, as it moves through a range of young offender, sentencing and other criminal justice provisions. Then, having dropped the proposal for a commissioner for offender management and prisons, it moves on to criminal law, policing and immigration before ending up with "Miscellaneous" and then "General", to mention just some of its 14 parts. Like the noble and learned Lord, Lord Mayhew, I find I am humming along to the same theme; that this is a Bill without a discernible theme. It is indeed a hotchpotch of provisions, some good and some bad. Sentencers will be putting back the towel they had on their heads as they got around the Criminal Justice Act 2003, then the Police and Justice Act 2006 and then the Offender Management Act 2007, to mention just a recent few.

It has also escaped nobody that scandalously scant time was allowed for scrutiny in the other place—scrutiny which now falls to this House to try to rectify. However, I fear that the more we tinker, the more complicated and opaque the result becomes. It seems to me that the heart of the problem is the complete disjunction between the stated aims of our criminal justice system and the way policy and practice is carried out.

There is clear unanimity at every level of government and the judiciary, as well as all the agencies, both voluntary and private, that custody should only ever be used as a last resort and then only for the most dangerous, violent and prolific offenders. This has been repeated by all recent Home Secretaries and Lords Chancellor, as well as loudly and eloquently by the noble and learned Lord the Lord Chief Justice, and echoed by everyone in the field, including those who wrote the Home Office strategy paper which laid the groundwork for much of this Bill.

The solution, we know, has to be found in community-based penalties, which are not only cheaper and work better, but involve a measure of making good by the offender, putting something back into the community against which there has been an offence. They make a constructive connection. Above all, they create the opportunity for offending to be reduced, which is the ultimate goal and overarching justification for all the sentencing options and policies we try to construct.

Above all else, the public want the offender not to do it again. Polls have repeatedly demonstrated the recognition by the public that prison is not the answer to cutting crime, and that the public are not pressing for the punitive measures the press and many politicians would have us believe. We have consensus but, despite all this, what do we actually do? We send more people to prison than almost every other country in western Europe; the number of people given custody at magistrates' courts has more than doubled between 1993 and 2005 and has risen by one-third in the Crown Courts. Crucially, people are sent to prison for longer. We have such a problem as a result with overcrowding that it is not possible for prisons to do the job we want them to do with the dangerous prisoners they should be dealing with. There have been times when these prisons have operated beyond safety limits. Yet, for example, last year more than 50,000 people were sent to prison for less than a year. They were not dangerous, violent people from whom we needed protection.

It should become clear that it is absolutely vital that enough proper community alternatives are available in order that sentencers have the necessary confidence and can use them. What have we done about the alternatives—the sanctions expressly deemed appropriate for the minority of all we deem offenders? They are largely provided, as we know, by the Probation Service along with the range of other agencies working with offending and vulnerable people of all ages. But what we have actually done is to require agencies such as the Probation Service to cut back on their budgets—in the case of the Probation Service, by somewhere between 3 and 5 per cent year on year over the next three years. Simultaneously, however, the Government have now agreed to spend around £3 billion to solve the prison crisis, and no one has blinked. That is a crazy failure of the right hand to have any connection with what the left is doing. It is even crazier when the Secretary of State himself is on record as having said that we cannot build ourselves out of this crisis.

There is evidence galore of the price that is being paid socially, economically and financially in our country. I am aware that most of what I have said is probably quite familiar to most of us in this Chamber, but it has to change. Even as far as this Bill is concerned, nearly every clause carries with it some financial implications, resources which are necessary to make things a reality without which we remain in a world of unreality. Every new measure involving the courts and community costs something, but I am not aware of plans for the commensurate growth in front-line community resourcing which in any way relates to the investment in prison building.

However, I will say that I welcome the impact statement in the Explanatory Notes on the Bill. The Government have calculated that once the provisions have been fully implemented, I think in a few years' time, there will be a net reduction of 4,300 prison places, which of course will be a start. The alternative disposals will have to be supplied and paid for. I entreat the Minister to tell us how the mismatch of the allocation of resources between prison building and community-penalty resources can be rebalanced in order that the appropriate provision exists and our debates on this Bill can indeed become rooted in reality.

I will confine the remainder of my remarks to one or two of the youth justice aspects of this Bill. I am grateful to the Standing Committee for Youth Justice for its briefing, and the PRT, among others. I have dealt with children in trouble in Scotland as well as England. The difference is that in Scotland no child gets near the criminal justice system because of the children's hearings. This explicitly recognises the paramount importance of the welfare of the child, as is the requirement of the UN Committee on the Rights of the Child. I understand that the committee is to examine the UK Government again this year. I would like to think that this Bill could offer an opportunity to look again at how we are, in fact, increasingly criminalising young children and using custody more and more. I thank the noble Baroness, Lady Stern, for referring to what is a true blot on the record of this country—that we should be imprisoning so many children in what were called secure training centres and have now become acknowledged and recognised as part of the Prison Service system. We could consider introducing the concept of a custody threshold for children, which she also mentioned.

The Home Office strategy paper underpinning much of this Bill does say that we believe it is important to keep children out of prison if at all possible. This is not to say that children in trouble will not sometimes badly need secure accommodation, but of course as we know prison is not the answer. Prison is least effective and most damaging for children, with their reoffending as high as 80 per cent and over. As the noble Lord, Lord Judd, mentioned, one of the most alarming and distressing statistics is that self-harming by children rose by 803 per cent between 2001 and 2004, and six children have actually died in custody in the past five years. It has been suggested that the threshold for custody could be triggered if the offence causes serious harm or if custody is necessary to protect the public. This would inter alia bring us more in line with similar European countries, including of course Scotland. Will the Government be prepared to comply with the UNCRC on that issue?

The new youth rehabilitation orders are interesting, because they are an attempt to provide a real alternative to custody and, as such, should be welcomed, despite their many shortcomings. They represent an attempt to provide a more flexible and creative package of sentencing which could, if used properly, more nearly fit the individual young person, not least if he or she reoffends. However, 11 community sentences have been replaced by 16 requirements that, among other things, do not include the reparation order, which can be an important element. Why? What is really interesting here is that, in two cases—that of intensive fostering and of the drug treatment requirement—they cannot be imposed unless the Secretary of State has notified that the provision is locally available. Here is one actual reference to the need for provision to be in place. After all, what is the point of including in the Bill provision that is not actually available?

It is also helpful that the purposes of sentencing are clearly set out in the Bill, but what is not clear or set out is that the welfare and best interests of the child are and must be at the heart of the youth justice system. Article 37 of the UNCRC commits us explicitly to separate the system for dealing with children who have trouble with the law from that for adults. At present, the evidence is that punishment is put before welfare in this country. I sincerely hope that we can address that in Committee, and I hope that the Minister will agree to look at that.

Much needs to be done on the detail, as well as the general thrust of the Bill. I am sure that there will be stimulating and important debates, because there is much work to be done and some important issues to be dealt with. I hope—although not very optimistically so—that we will all be the wiser for it.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee) 6:32 pm, 22nd January 2008

My Lords, many Members will have received, as I did, the briefing paper from the Bar Council to which the noble Lord referred earlier, criticising, in particular, Clauses 42 and 105. Clause 42 has already been very well covered, notably by the noble Baroness, Lady Kennedy of The Shaws, and by the noble and learned Lord, Lord Mayhew, but, if I may, I would like to add my penny-worth to the argument.

The inclusion of Clause 42 seems to me to show that the Government have no clear idea of the existing powers of the Court of Appeal, or, indeed, what the Court of Appeal is there for. It is simply not the case that appeals are allowed because of minor procedural errors. If there are such errors, the appeal will certainly be dismissed on the grounds that it will not have affected the safety of the conviction. If the errors are more serious, the conviction may well be quashed but, very generally, there will be an order for a new trial—apparently, in one-third of all cases where convictions are quashed. That seems to me to show that the existing system is working well.

There remain those cases, the very few cases—Mullen is always the one given by way of example—where, for whatever reason, the defendant has not had a fair trial. In those cases, the conviction must be quashed, even though there is no possibility of a retrial. Why? Because it is an overriding duty of the Court of Appeal to ensure that defendants have a fair trial, no matter how guilty they may seem to be. That has always been the function of the Court of Appeal, and that is now the court's duty under Article 6 of the European convention. If the defendant has not had a fair trial in accordance with the rule of law, his conviction must be quashed. It is as simple as that.

It therefore seems to me that proposed new subsection (1A), by requiring the court to dismiss the appeal if it is satisfied of the defendant's guilt, is clearly in conflict with the court's duty under Article 6 of the convention. It is true that new subsection (1B) would go some way to cure the defect created by new subsection (1A) in some cases, but it does not go far enough. In any event, what could be the point of enacting new subsection (1A) to cure a defect or fill a gap that does not exist and then create an express exception to that provision? That simply does not make sense, and I hope that, in due course, we will see to it that Clause 42 is removed.

As for Clause 105, designated case workers clearly perform a very valuable function, but they are not qualified legally to conduct trials. As the noble Lord, Lord Thomas, suggested, it seems to me that Clause 105 has been included as a cost-cutting exercise. It may not even be effective as that, but whether it is effective or not, it must not be allowed to interfere with justice.

Like the noble and learned Lord, Lord Mayhew, my eye was caught by Part 13, quaintly entitled "Miscellaneous" provisions. One might ask exactly what was the dividing line between the provisions included in Part 13 and the rest of the Bill? However, the Bill being what it is, it is perhaps better at Second Reading to stand back a little from the detailed provisions and consider in what way the criminal law is now moving.

The first and obvious question is: why are we being asked to consider this massive criminal justice Bill so soon after the Criminal Justice Act 2003? If there had been any serious defects in the criminal law, which I do not believe that there were, surely they ought to have been cured when the present Government came back for the second time with the 2003 Act. So why do we have this massive new Bill? I suspect that one answer is the Government's perceived need—perceived by the Government, but not by me or, I suspect, by the rest of us—to reassure the public from time to time that they are being tough on crime. Of course, that has the additional advantage of putting the official Opposition in the awkward position of not wanting to oppose unnecessary provisions for fear of appearing soft on crime.

Thus, what goes into a criminal Justice Bill nowadays seems to be at least in part driven by what will play well with the public. There is thus little time left for the serious consideration of basic defects in the structure of our criminal law—a good example of which is the law of murder, on which we touched the other day during Questions. Everybody knows that the law of murder is in a mess, and has known long before the Law Commission said so in clear terms in its report in 2006. Everybody knows that one of the difficulties in making sense of the criminal law is the mandatory sentence of life imprisonment. It causes great injustice in individual cases. The Law Commission sought to solve that problem by dividing the law of murder into two degrees, only one of which would carry the mandatory life sentence.

That is the sort of question that we ought to be considering today. But what do the Government do? They shelve the problem. Yet again, they have decided to consult on one aspect only of the Law Commission report: on the so-called partial defences. The Law Commission reported on that subject as long ago as 2004 and still nothing has happened. And why not? Because neither of the main political parties will dare to tackle this obvious problem without the co-operation of the other, for fear of what the Daily Mail might say. I am sorry to put it in those rather blunt terms, but that is the truth as I see it.

The second purpose of bringing forward this massive Bill so soon is to correct the mistakes, which have now become apparent, made in 2003. That brings me to Part 2 of the Bill. Everyone accepts that Parliament has a proper role in fixing general levels of sentences. However, if it does, Parliament must take account of the consequences. A good example—I am glad that the noble Lord, Lord Dholakia, dealt with this point—is the new indefinite sentence for the protection of the public; the flagship of the 2003 Act.

Judges already had ample powers to impose discretionary life sentences for the public's protection and they used those powers. However, the Government thought that more powers were necessary. The effect is that we now have 3,100 defendants serving indefinite sentences, nearly half of them for relatively minor offences, such as street robberies. The average tariff for all of them would have been 30 months. That is a slightly different statistic from the one given by the noble Lord, Lord Dholakia, but it is another one that shows what has happened.

Surely the Government should have realised that this would happen. Surely they must have realised what would be the effect on prison populations. However, they did not. As a result, as the Lord Chief Justice said in a lecture the other day, after court prisoners are being driven around for hours on end in a desperate search for a prison that can squeeze them in. As often as not, two or three hundred are spending the night in police or court cells. We simply cannot go on like this.

It is particularly unfair on people serving these indefinite sentences because they cannot go before the Parole Board to prove that they are not dangerous until after they have served on a training course; but they cannot get on to a training course. That is a great injustice. I am glad that not before time the Government have decided, at least in part, to backtrack on the effect of indefinite sentences.

At the other end of the Bill, I am equally concerned, as I am sure the noble Lord will realise, about violent offender orders. I shall oppose them in exactly the same way, and for exactly the same reasons, as I opposed serious offender orders. Ever since we hit on ASBOs, it seems that the law has been going down the long road in trying to make civil preventive orders do the work of the criminal courts. Once again, I will have some things to say about that when the time comes.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs 6:43 pm, 22nd January 2008

My Lords, I welcome the Government's commitment to abolishing the offence of blasphemy, something I sought to do myself in 1995, again in 2001 and in a year's work on the Select Committee on Religious Offences in 2002. My only regret is that the consultation will not be completed until after the Committee stage. I have difficulty in understanding that, considering that all the organisations to be consulted gave voluminous evidence to the Select Committee in 2002. I should like to bet the right reverend Prelate the Bishop of Liverpool that none of them will have changed its tune in the intervening six years.

I wish to speak about Clauses 181 to 187, dealing with special immigration status. On 7 February 2000, an Afghan plane carrying 186 passengers landed at Stansted, having been hijacked by a few of the passengers. Three days later, the hostages were all released and the hijackers agreed to surrender unconditionally to the Essex Police. The Home Secretary, then Mr Jack Straw, said that he personally would decide any applications for asylum by persons on board the aircraft and was determined to see that, if legally possible, the passengers would all be removed from the UK as soon as possible. I stood surety for 13 of them in their application for bail, in the sum of £3,900, for well over a year, until the noble Lord, Lord Rooker, gave instructions for that guarantee to be withdrawn. I therefore declare an interest.

In due course, 10 hijackers were charged with a number of offences and an 11th man was found unfit to plead. At the first trial, the jury failed to agree and, in the second, one person was acquitted and the remaining nine were convicted on all counts, but given comparatively light sentences on account of the mitigating circumstances. It was acknowledged by the prosecution that they belonged to a political organisation whose members had been arrested and tortured, and they were threatened with the same fate.

In June 2003, the Court of Appeal set aside the convictions because the trial judge had misdirected the jury in relation to the defence of duress. No retrial was ordered as most respondents had, by that time, served their sentence in full. The panel of three adjudicators who considered the nine men's applications for asylum concluded that Article 1F of the refugee convention, which applies to a person who,

"has committed a serious non-political crime outside the country of refuge", excluded them from the protection of the refugee convention. We welcome the recommendation of the JCHR that the statutory construction of Article 1F should be repealed. However, the panel went on to say that the rights protected by Article 3 of the ECHR were unqualified or absolute and not restricted by the appellant's conduct. It therefore granted the appeals under the ECHR and the tribunal refused an application by the Secretary of State for leave to appeal. This left the Home Secretary with only one option, to grant short-term discretionary leave to enter. However, the Home Secretary prevaricated for over a year—those are the Court of Appeal's words, not mine—and promulgated a new policy under which discretionary leave would no longer be granted and a person could be kept on temporary admission indefinitely, with all the consequences that would follow in terms of denial of access to employment and public services, including health and social security. On 3 November 2005, the Home Secretary, then Mr John Reid, "broke his long silence", retrospectively applying the new policy to the Afghan nine and putting them on temporary admission.

The nine then applied for judicial review of this decision. Sullivan J found on 12 May 2006, in an "impeccable judgment", that it was unlawful because the status of temporary admission or temporary release had no parliamentary sanction. He said that the new policy gave Ministers an arbitrary, unfettered power to breach Article 8(1) of the ECHR, the right to family life, and that it was not lawfully applicable in cases where consideration of leave to enter had been concluded and which therefore did not come within the provisions of paragraph 16 of Schedule 2 to the 1971 Act. The Secretary of State did not challenge the finding that delay in granting the nine leave to enter was unlawful or the quashing of his decision to hold them on temporary admission. However, he did challenge the court's order that he should grant the nine discretionary leave to remain. Finally on 4 August 2006, the Court of Appeal rejected that submission, observing that during the six years that the Afghans had been in the UK, there had been ample time for the Secretary of State to clothe himself with the powers that he had awarded himself, without parliamentary approval, in the August 2005 instruction.

What we now have before us , in Clauses 181 to 187, is the creation of special immigration status to cover persons such as the Afghans hijackers, who are excluded from Article 1F protection but who cannot be removed because it would put them at risk under Article 3 of the ECHR. In order to strengthen the BIA's ability at some future date to send back the tiny numbers involved to where they came from—we understand that there are no more than 50 of them now—the Government intend to consign them to a limbo, as my honourable friend David Heath put it, where they will have no access to employment or to public services other than very limited subsistence and accommodation along the lines that NASS provides at the moment for asylum seekers, although the details remain to be spelt out. They will not be entitled to local authority housing, social security or NHS services except in emergencies, and I believe that their children will be denied education in the state system. Perhaps the Minister will confirm that. Moreover, these conditions will continue indefinitely. The Afghans are a good example because they have lived under them for the past eight years.

Will the Minister confirm that it is the Government's intention to apply the new status to these nine people, and how do they justify that breach of the principle that legislation should not be retrospective? In Committee we will examine in more detail the circumstances of the dependants, to whom Article 1F does not apply, even under the Government's notoriously broad interpretation, and we will want to know why the BIA has failed to respond to some of their independent asylum applications made over the past eight years.

Under existing law, people who are not removable for human rights reasons are given discretionary leave to remain for six months at a time, and on each occasion this is renewed, the BIA has the power to review the circumstances and consider whether it might then be safe to remove them. After 10 years applicants may seek indefinite leave to remain, although there is no obligation to grant it. As we see it, the Law Society is right in saying that the new status is unnecessary, and we shall also argue that it is inconsistent with the Government's declared objective of simplifying immigration law, a project that we wholeheartedly endorse.

The UNHCR has reiterated its advice that Clause 182, setting out the definition of a "foreign criminal" by reference to Section 72(2) of the Nationality, Immigration and Asylum Act 2002 and the 2004 specification of particularly serious crimes order, inappropriately excludes persons convicted of a wide range of offences by virtue of Article 1F of the convention, creating what it called,

"a particularly low threshold for an exception to the principle of non-refoulement to apply".

We tried to argue the case on the NIA Bill at the time. But now we have a different threat. Everybody who is a foreign criminal convicted of a specified offence, whether it is hijacking or shoplifting, and everyone to whom Article 1F applies whether or not he has been convicted of any offence, can be designated by the Secretary of State, giving him what the Law Society rightly describes as "enormous discretion". In the words of Justice,

"the breadth of conduct giving rise to the possibility of designation is extraordinarily and inexplicably broad".

Similar criticisms have been made by the Refugee Council, Liberty. the JCWI, ILPA and others.

Persons subject to this status may be required to observe conditions which "relate to" residence, employment, occupation or reporting, and would allow several of the conditions to be attached to control orders under Section 1(4) of the Prevention of Terrorism Act 2005. The person would also be potentially subject to electronic monitoring or tagging, and failure to comply with any of these conditions may result in a criminal conviction and a sentence of up to 51 weeks' imprisonment. These conditions may last indefinitely and may be applied not only to the person himself, but to his spouse and children, making them subject to the hardship of special status through no fault of their own, contrary to Article 3 of the Convention on the Rights of the Child. One lawyer with whom I discussed this effect called it "grotesque", and I agree.

Worse, the ability to rebut the presumption that a designated person is a "danger to the community", as in Section 72 of the NIA Act, is to be set aside, so the Afghan hijackers whose conviction was quashed by the Court of Appeal in its judgment of 6 June 2003, and who were found not to be a danger to the community or the security of this country and therefore not caught by the exclusion of Article 33(2) of the Refugee Convention, are still liable to designation. There is no independent review mechanism to oversee the use made by the Secretary of State of these extensive powers.

When the Government have deliberately persisted in conduct which they knew was unlawful and then come to Parliament seeking to change the law so as to validate the past illegality and allow them to persist in the same conduct in the future, we hope that your Lordships will reject their impudent proposals. The prime duty of Parliament, as we heard earlier today, is to uphold the rule of law and not to acquiesce meekly when governments twist it to match what Prime Ministers say they are going to do, without reflection, in the heat of the moment. These costly and far-reaching clauses, offering no protection to the public, should be removed from the Bill.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour 6:54 pm, 22nd January 2008

My Lords, there are many aspects of the Bill on which I am tempted to speak, but I intend to confine myself this evening to Clauses 123, 124 and 125 in Part 7, those dealing with street offences. I start by expressing my disappointment that the Government have not taken this opportunity to carry out a comprehensive reform of the law on prostitution, which everyone who studies the subject agrees is long overdue. They are instead proceeding in what must be seen as a piecemeal way. The best government publication on the subject in recent years is Paying the Price, published in 2004, and it is worth reminding ourselves what it said about street-based prostitution. Paragraph 1.6 reads like this:

"A common pattern is for men and women to be trapped in street-based prostitution after having been coerced into it at a young age or to fund their own—and often their partner's—problematic drug use. Those involved in this way rarely benefit, apart from ensuring their drug supply. The profits of the 'trade' go straight into the pockets of drug dealers. While some may become involved 'to buy nice things'—and for some it is undoubtedly a highly lucrative business—for the 80-95% of those involved in street-based prostitution to feed a serious drug habit the reality is very different".

We have to bear in mind that the street-based sector represents only about 15 per cent of the total of perhaps 80,000 sex workers, a statistic which is either ignored or misunderstood by a number of politicians and others who comment on these matters.

In Paying the Price, serious consideration was given to the possibility that local authorities would be allowed to sanction red-light toleration zones, with sex workers licensed and regular health checks introduced, an approach followed in a number of other countries, including Australia and Holland. These are worth looking at, as is the kind of decriminalisation introduced in New Zealand. Paying the Price was a real step forward, and it was the hope that legislation to implement its proposals would not be long in coming, but unfortunately we are still waiting, because this Bill is certainly nowhere near that.

As your Lordships may be aware, I have raised some of these issues in the House on a number of occasions over the past seven years. I first did so during the passage of the Criminal Justice and Police Act 2001, which strengthened the law on carding—placing cards advertising sexual services in phone boxes. Sections 46 and 47 of that Act had the effect of making it harder for women working in the relative safety of their own flats to advertise for clients, with the consequence that many were tempted to resume soliciting on the streets, where the risk of serious assault is many times greater. I pointed out that research carried out by the Economic and Social Research Council among indoor and street-working prostitutes in three British cities found that women working on Glasgow's streets were six times more likely to be violently attacked by clients than those working indoors in Edinburgh, and four times more likely than indoor workers in Leeds.

In a debate on sentencing initiated by the most reverend Primate the Archbishop of Canterbury in March 2004, I described for the House what happened when I was invited by the Metropolitan Police in January of that year to join its street offences and juvenile protection unit on patrol in Brixton. The officers were conducting a four-week intensive campaign on street soliciting. The evening started with a briefing at a police station in Camberwell, two walls of which were covered with photographs of prostitutes known to work in the area. I was told that it was certain that a number of those women would be arrested for soliciting during the night—and that was exactly how it turned out.

One of them was a 23 year-old woman known as Judy. As a known prostitute, she was arrested walking down a side street in a red-light district of Brixton. She had a string of convictions for soliciting and a reputation for never appearing in court unless taken straight there from a police cell. She worked in the sex industry to fund her cocaine habit. I found it particularly disturbing that no one appeared to make any attempt to get her off drugs. Instead, she was in a cycle of soliciting, arrest, a court appearance, a fine, and then more soliciting to pay the fine and buy the drugs. That evening made a profound impression on me, and since then I have tried to judge the various proposals that have emanated from the Government and other well meaning bodies for dealing with street prostitution on whether they are likely to be of any real value or help to women like Judy.

I have read with great care the Hansard reports of proceedings in another place on this Bill, and particularly the debates in Committee on the clauses dealing with street offences. On Second Reading on 8 October, John McDonnell, MP for Hayes and Harlington, articulated the concerns of the Safety First Coalition, which is a remarkable group of individuals and organisations including religious groups such as Zacchaeus 2000, as well as the Royal College of Nursing, the National Association of Probation Officers and the English Collective of Prostitutes. Their stance is supported by medical consultants and the British Psychological Society, using practitioner knowledge and evidence from the top medical and legal journals.

The coalition came together following the murders of the five young women in Ipswich, to put forward the point of view that everyone deserves to be safe, regardless of gender, race, occupation or lifestyle. This received widespread support from the people of Ipswich, who rather than blaming such women themselves believe that everything possible should be done to ensure their safety in future. The coalition organised a well attended meeting in Committee Room 10 last Wednesday. A number of Members of your Lordships' House were there to hear unanimous criticism of the clause, which, to quote from its briefing,

"introduces compulsory rehabilitation under threat of imprisonment".

On the surface, Clause 124 may appear a well meaning effort to get people out of the sex industry. I respect my noble friend Lord Hunt for putting forward that point of view in his opening speech. Indeed, it is linked to a proposal in Clause 123 to do away with the term "common prostitute", which dates back to the Vagrancy Act 1824. That is long overdue. Yet what chance is there that women such as Judy, to whom I referred a moment ago, would ever turn up for these rehabilitation sessions? The answer is almost none at all. Have we forgotten what we know about addiction? Compulsion does not work, and the person must be willing and supported in order to be able to change her life.

The Safety First Coalition believes that a failure to appear would lead to a summons back to court, possible imprisonment for 72 hours and that,

"women could end up on a treadmill of broken supervision meetings, court orders and imprisonment".

This is clearly a view with which the Joint Committee on Human Rights concurs, in its paragraph 155 on page 117, as the noble Baroness, Lady Stern, pointed out in her brilliant speech a little earlier. In other words, this measure could increase the criminalisation of consensual sex with the effect that, instead of seeking help to get out of the sex industry or deal with a drug dependency, it would be driven further underground. Driving prostitution underground is guaranteed to increase sex workers' vulnerability to rape and other violence, as violent men would know that the risk of arrest deters sex workers from reporting assaults.

The truth is that recent piecemeal legislative changes mean that we now have some of the most punitive laws on prostitution anywhere in the world, particularly given the increasing numbers of anti-social behaviour orders being directed at women working in the sex industry who then end up in prison for breach of the orders. The female prison population has doubled in the past 10 years and, while we do not know exactly how many women are there for offences relating to prostitution—via the breach of an ASBO or the non-payment of a fine which would have originated from soliciting—the number seems substantial. This is a grave situation, especially when we consider that many are young and in need of support, and may be mothers who are then separated from their children. At the same time, we are doing little to "design out" the vulnerability of sex workers, which criminologists show we can, or to tackle the influence of pimps on those women.

I also regret that this Bill does little to address the fundamental reasons why young women—some young men, too—go into prostitution in the first place. We undoubtedly need extra resources to address practical needs such as housing, debt, a viable income and drug addiction treatment.

I would like to be able to say that these clauses were extensively debated in the other place, before they came up to us here. Sadly, that was not the case, as the noble Lord, Lord Henley, pointed out in his opening speech. The longest debate in the other place was whether Britain should adopt the practice adopted in Sweden of criminalising the purchase of sexual services but not their sale. I do not intend to take up the House's time tonight by debating what has been happening in Sweden, but I counsel my noble friend that there are as many or more powerful arguments against doing what Sweden has attempted as there are for trying it. I for one will certainly oppose such a proposition if it comes before us during the later stages of this Bill.

Finally, bearing in mind that we are promised a substantive piece of legislation reforming the law on prostitution in the next Session—David Hanson, the Prisons Minister, is on record as saying this—it would be better to drop Clauses 123 to 125 and Schedule 25 from this Bill now. I hope that there will be substantial support for this point of view in all parts of the House, and I intend to table amendments in Committee which will do that.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench 7:06 pm, 22nd January 2008

My Lords, in the context of Punch's famous cartoon of the curate's egg, this Bill is partly good. I would go further: it is in most parts good and wholesome. It has been attacked for being a ragbag. That was the expression used by the noble Lord, Lord Thomas of Gresford. Yet he then suggested half a dozen other ragbag provisions that should be added to it. It is, of course, a miscellaneous provisions criminal Bill. All criminal Bills, with few exceptions, are miscellaneous provisions Bills. The condemnation of the noble Lord, Lord Henley, and the noble and learned Lord, Lord Mayhew, that there is a lack of theme to the Bill does not demolish it completely. The late Winston Churchill once growled at a waiter who had presented a blancmange before him, saying "Take it away, it has no theme". Miscellaneous provisions Bills, by definition, cannot have themes, so should not be judged by that yardstick or measure—no more, for example, than a road traffic Bill should be. It involves so many different and disparate matters that it is essential, if one is to take advantage of legislation passing through the House, to add all manner of disparate parts to it.

I have two general comments. First, we appreciate that for the past 40 years Parliament has suffered a surfeit of criminal justice legislation. This, we are told, is the 39th Bill of a criminal nature to be introduced in the past 10 years. The noble Lord, Lord Thomas of Gresford, gives a higher figure and he may very well be right. We appreciate that the law must change with changing events, and change swiftly. Nevertheless, the pace of change in relation to legislation has been wholly excessive. Her Majesty's loyal Opposition need take no comfort from that. They need not dress themselves in any white sheet of purity because their fecundity regarding criminal justice legislation over the 18 years preceding 1997 was, if anything, greater than the record of the present Government.

There seems to be a mentality which suggests that once a criminal justice Act has been in existence for a period of time, one should, at best, tinker with it and, at worst, take it to pieces. Both the Offences Against the Person Act 1861 and the Theft Act 1968—I had the privilege, as a Minister in the Home Office, of taking the 1968 Act through the other place—are, with very few exceptions, as fresh, as useful and as competent today as the day on which they received Royal Assent. The fact that something is ageing and aged does not mean that it has to be thrown away. Perhaps I should declare an interest because of my age. I feel, mischievously sometimes, that as an obverse to the Bill of Rights of the late 17thcentury, there should be a provision that Parliament should not be allowed to pass more than one criminal justice Bill per annum.

The second matter I wish to refer to is the most vicious of vicious circles in the relationship between the volume of criminal justice legislation and the apprehension of the public in relation to their safety from crime. Parliament rolls out criminal justice Bill after criminal justice Bill; the public are incensed to believe that their position is becoming more and more desperate. As the public take up such a position, more and more criminal justice Bills come through Parliament. You may say, "Hold on. A dread of crime is, after all, a legitimate and natural reaction in any civilised community. Why should people not feel shock and horror at young people being knifed and shot on their streets? Why should the weak, the aged, the infirm and the otherwise wholly vulnerable not feel terror at the prospect of being robbed or burgled? Why should not society feel abhorrence in relation to the scourge of drugs, especially among young people?" That is not my case. Anyone who does not react to those fears would be callous and indifferent. But when you have a situation of near hysteria in society, when the community seems to be saying, "We are engulfed by a tidal wave of crime and the courts, the police and Parliament are impotent to protect us", that is the point at which we have to consider the viciousness of these vicious circles.

In the past 10 years crime has decreased in Britain by about 35 per cent. I agree that it may, to some extent, very well be part of a general trend, as the noble Lord, Lord Thomas of Gresford, said. In the preceding 18 years, crime doubled. One would have thought, therefore, that there might have been some prospect of one graph line going down and being roughly tracked and paralleled by the other graph line—but they are moving in wholly different directions. As was suggested by my noble and learned friend Lord Lloyd of Berwick, that may have a great deal to do with the editors of tabloid newspapers. I think it has something to do also with ruthless and unprincipled political propagandism, but that is a matter for another day.

There are many measures in the Bill that I support. I commend, on the whole, the provisions for the rehabilitation of youths. There are difficulties, which no doubt will be discussed in detail in Committee, but I particularly welcome the activity aspects of a rehabilitation order and the fostering provisions, which are imaginative and link up with the more general law relating to children and young persons. It is a step forward to seek that ASBOs for young people should be reviewed every 12 months. That is a progressive and intelligent development.

On pornography, it is only right that we should tighten the law in regard to its most scurrilous and dangerous form, if only to protect people from being murdered in sadistic sexual cases where the stimulation seems to come from such sources.

I greatly welcome the protection that is specifically spelt out for NHS personnel and NHS premises.

There will no longer be the threat that highly dangerous criminals might, theoretically, have to be released at a much earlier date than anticipated in the light of the totality of their sentence. This was brought to light in the Cardiff case about a year ago when the Home Secretary of the day, to his great discredit, attacked the learned judge who was simply carrying out the letter of the law and could not have passed any other sentence. In that connection, I make a plea for judges to be trusted and not to be shackled. Four hundred years ago, Lord Bacon said that if justice had a voice it would be that of an English judge. Provided the English judge is not confined to Anglo-Saxons, I believe that that principle still holds good in our day and age.

On Clause 42 and the self-defence provision, that is intended to be declaratory of the current law, and nothing else. Some suggestion has been made in the debate that it extends the law to some extent, but I doubt whether that is the case. In 1984, in the case of Gladstone Williams, the Court of Appeal made it perfectly clear that an honest belief, albeit an unreasonable belief, held by the defendant was good enough. That was repeated in a number of other cases over the next two or three years, particularly in the case of Beckford, a Privy Council case, in 1988.

I would quarrel with the wording of the provision because it relates to the defence of self-defence. Self-defence is not a defence; it is a matter that the prosecution has to expunge beyond reasonable doubt. I hope that it will be reworded to remove that mythology.

I end on a theme to which I have returned on many occasions over the past few months—the question of the prison population. I have no doubt but that the Government have striven manfully to increase the number of prison places; I have no doubt that the Carter report, in advising—and that advice has been accepted by the Government—that there should be 6,500 extra places by 2012 is sound, with a further 5,000 to come onstream. We now have 81,000 prisoners in our prisons, which are bursting at the seams. We are imprisoning more people and, as my noble friend Lady Stern pointed out, more children than any other country in western Europe. We will never be able to build ourselves out of this problem. There is only one way we can tackle the problem, and that is by sending fewer persons to prison. You may say that is impossible. It is not. Our citizens are no more wicked, no more predilected to crime than the citizens of Germany, France, Italy, Spain, Greece and the other European countries. We have to inculcate, in one way or another, a different culture with regard to sentencing.

S

A convicted murderer who claims that viewing pornography led him to kill is exactly as credible as a terrorist who claims to act for this or that faith or conviction. Only a fool would credit either.

Submitted by Sean Goldthorpe

Photo of Lord Graham of Edmonton Lord Graham of Edmonton Labour 7:20 pm, 22nd January 2008

My Lords, I very much appreciate what has just been said and the fine manner in which the noble Lord's fine speech ended by concentrating on the prison population.

I declare three interests. The first is that more than 20 years ago I was proud to be the parliamentary consultant to the Prison Officers' Association. The second is that I had the great honour last year to be made a life member of that organisation, to add to a life membership of my own trade union, the National Association of Co-operative Officials. The third is to reveal that one of my proud possessions is a slate from the roof of Strangeways prison, Manchester, inscribed with the words, "To Lord Graham of Edmonton, a true friend of the POA". I am very proud of that; it signifies the work I have done for the association.

The House will appreciate that, having declared those three interests in this matter, I have what is called "form". I do not resile from revealing that to the House. Society rightly incarcerates those found guilty of crimes, some of a heinous nature, to spend time locked up away from the outside world. Many of them, men and women, seek to serve their time without aggravation or violence. Sadly, there are others who continue behind bars their lifestyle of violent behaviour. Who faces them 24 hours a day, dealing with their hatred, their violence and their terror? With respect, it is not the judges, the juries, the police, the public, the media or the man in the street; it is the dedicated men and women who serve within our prisons—and who also serve a sentence themselves because they are locked inside as well.

Prison officers deserve our gratitude for facing as humanely as possible those whom society puts behind bars. They are entitled to our support and do not deserve to be denied justice and equity, especially by a Labour Government. I appreciate what the noble Lord, Lord Stoddart, said on that point. The crux of my argument today lies in the issues that on 9 January in another place formed what was then called new Clause 36 but now forms Clauses 189 and 190. Clause 189(1) says:

"'industrial action' includes the withholding of services as a prison officer and any other action likely to affect the normal working of a prison".

The words "the normal working of a prison" are the kernel of the dispute. They have caused deep resentment, anger and dismay. This is in the aftermath of Section 127 of the Criminal Justice and Public Order Act. The POA believed that statements made by the then leader of the Labour Party, Tony Blair, met its aspirations when he said:

"'An incoming Labour Government will want to put this situation right and ensure once again that prison officers are treated in the same way and with the same working rights as other public servants and recognise the status of the Prison Officers' Association as an independent trade union".

There is great significance in the words that have been used. I was delighted and grateful when I read Hansard of another place to see that the Minister for Justice recognised that—and I was just as grateful for the words the Minister sitting in front of me used when raising this issue—when he said:

"In the hope of being helpful, while I cannot give an undertaking now as to the terms I am certainly ready to sit down and consider ways in which that provision can be tightened, with a view to bringing forward amendments in the other place".

That is where we are today; we are in the other place. I do not want to spoil the situation, but I am very hopeful.

To what was the Minister for Justice referring when he made that statement, and what is the possible way out of the impasse? The Minister here today can be in no doubt that there is deep disquiet bordering on anger at the treatment the POA believes it has received in recent times. Consultation and agreement on the precise words, matched by an agreed alternative, can lift the atmosphere of suspicion of deception. That atmosphere can be dispelled by using words with new meanings. The Minister knows, as do I, that this is an ongoing situation and it is not too late.

The Minister for Justice said, in replying to the honourable Member for Morecambe:

"prison officers ... are dedicated staff ... they are not losing the right to strike—the POA voluntarily signed up to legally binding undertakings not to take industrial action; it accepted the case that I am now making. It did not have to sign up to it; it did sign up to it".—[Hansard, Commons, 9/1/08; col. 332.]

So the question is: why did the POA sign up to it? Because it thought it had a deal, a quid pro quo, whereby it inherited better, more equitable pay negotiation procedures. What has happened since? The Minister for Justice justifies breaking his agreement on pay by saying that there were "exceptional economic circumstances". Thus the arbitrary power to scupper an agreement is seen by the POA as a reneging on that agreement.

The situation does not affect only the POA but has seeped into all public sector trade unions. In a letter dated 14 January, Brendan Barber, the general secretary of the TUC, tells me that the TUC expresses,

"strong support for full trade union rights for POA members".

The most significant paragraph in his letter reads as follows:

"Neither the POA nor the TUC view the prospect of industrial action in this essential service lightly, and the POA is fully prepared to commit to binding arbitration processes to resolve disputes without the need for industrial action. In turn, however, the Government and the Prison Service need to commit to return full trade union rights to the POA as held by other public sector unions rather than thinking that an arbitrary legal restriction on trade union rights is the solution to industrial relations tensions in this vital service".

A new beginning is badly needed. That may come through the report by Ed Sweeney of ACAS, which proposes, as in similar public sector services, the establishment of minimum cover arrangements instead of a statutory ban. Those proposals ought to be discussed at meetings on 24 January. They should not be jeopardised or put at risk, and no words of mine seek to exacerbate the situation. The offending words to which I have referred could, and should, be substantially changed. I urge the Minister to draw back from making industrial relations in the Prison Service worse than they are. In my view, the ball is in the Government's court.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench 7:28 pm, 22nd January 2008

My Lords, I am normally fairly understanding of the exigencies of governing in the modern world, which necessitates a degree of improvisation and changes of plan in response to rapidly moving events, but the degree of improvisation attending the genesis of the present Bill surely goes beyond all bounds. To an extent I agree with the noble Lord, Lord Elystan-Morgan, who said that the Government needed to be responsive to events in legislation, but I think the Bill goes too far.

I will not weary the House by repeating the catalogue of changes of plan, the number of new clauses and amendments and the lack of time for debate in Committee; noble Lords who have spoken before me today have gone over them many times already.

More time has probably been spent on criticising the handling of the Bill than debating its provisions. Not only does the Bill give every appearance of being the Ministry of Justice's kitchen sink, into which to dump every bright idea knocking around, and some not-so-bright ideas, with little sense of coherence and even less consideration, but also the Government seem to be making it up as they go along.

The Bill has been variously described as a hotchpotch and a ragbag. This makes it difficult to know exactly how to react. Again praying in aid the noble Lord, Lord Elystan-Morgan, I say that a degree of miscellaneous provisioning is necessary in criminal justice legislation as the system is progressively fine-tuned to meet changing circumstances. There is obviously, therefore, good as well as bad in the Bill. As well as being a ragbag and a hotchpotch, it is also a curate's egg. There is good especially where the Government are putting right failures of legislation that have gone before.

On the other hand, one must doubt whether such a ferment of legislation is the best way to develop a rational criminal justice system. One might even say that the Government's approach to criminal justice legislation has suffered from attention deficit hyperactivity disorder. One may especially beg leave to doubt whether all the late changes, and some of the early ones, are so important and urgent as to require such a precipitate legislative process. Some of them could have waited and would certainly benefit from greater discussion. Of one thing, however, we can be sure: in my short time in this House, and on most of the occasions when I have attended a Second Reading debate, the Minister's stock response has been: "Well, it's pleasing to see that the Bill has been so widely welcomed on all sides of the House". I defy the Minister to make that response today.

However, I shall concentrate the bulk of my remarks on the sentencing provisions in Part 2. It is no secret that the prison system is in crisis. Much of the crisis is of the Government's own making. According to research by the Prime Minister's strategy unit, there has been a 22 per cent increase in the prison population since 1997. This is estimated to have had the effect of reducing crime by around 5 per cent—I am not sure how one estimates that, but that is the estimate—but it is at a time when overall crime has fallen by 30 per cent due to other measures and trends. Notwithstanding that, the number of people found guilty by the courts has remained broadly constant: 1,645,000 in 1995 and 1,783,000 in 2005. The number of people given a custodial sentence by magistrates' courts has risen from 25,000 in 1993 to 57,250 in 2005: it has more than doubled. I repeat that that is at a time when crime is falling overall. The number of people given a custodial sentence at Crown courts has also risen, from 33,722 in 1993 to 43,986 in 2005. In particular, the introduction of a raft of mandatory penalties and, under the Criminal Justice Act 2003, of a new, indeterminate sentence for public protection has led to substantial inflation in sentencing.

Against this background, the overall thrust of the sentencing provisions of the Bill has to be welcomed. I am not one to accuse Ministers of U-turns when I see them trying to put right mistakes of their own making. The Bill's intention is to reduce the prison population by a modest but useful 4,300—that is about 5 per cent of the present total—mainly through Clause 10 and Clauses 13 to 18. Clause 10, which abolishes suspended sentences for summary offences, is a step in the right direction. If it presaged an intention on the part of the Government to move towards a general presumption against imposing custodial sentences for summary offences, or even the abolition of custody all together, it would be even more welcome. As many speakers have said, prisons have become too much a dumping ground for the socially excluded. Much of the pressure on prison places could be eased if the Government's stated commitment to reserve prisons for serious and violent offenders could move from the realms of general aspiration to that of determination.

The restriction on imposing community sentences in Clause 11 is a sensible measure, which appears to provide for greater use of financial penalties. The introduction of a system of income-related fines was recommended by the noble Lord, Lord Carter, in Managing Offenders, Reducing Crime in 2003. Day fines operate successfully in much of Europe and can, alongside diversion schemes, help to avoid unnecessary use of community sentences and imprisonment. However, one of the most misconceived innovations of recent years has been the sentence of indeterminate public protection, or IPP, which has been one of the main drivers of the increase in the prison population.

I am indebted to the Prison Reform Trust, whose report on the pathology of IPPs has exposed how fundamentally flawed the IPP system is. IPPs have been heavily criticised also by, among others, the Lord Chief Justice, the chairman of the Parole Board and the Chief Inspector of Prisons. IPPs were aimed at offenders convicted of a serious violent or sexual crime and whom the judge believes pose a threat to the public. In practice, however, IPPs have not been used as was intended: as a specialised tool to deal with the relatively small number of dangerous violent or sexual offenders. Instead, they have been used more widely and for less serious crimes. As a result, they have bombed on two counts: they have fuelled an increase in the prison population and they have done nothing to reduce levels of violent and dangerous crime. Currently, there are three times more IPP prisoners than the Minister predicted during the 2003 Act's passage. By 2012, that number is expected to triple again.

The USA has doubled its prison population during 15 years through risk-based sentencing that has the same logic as the IPP, yet it still has frightening levels of violent crime. It is a shame that the Government have not taken a little longer to reflect on the experience of the USA in that regard. If they are serious about refining IPPs, and not flooding the prison system or planting a time bomb for the Probation Service, they might start by refining the list of crimes that qualify for an IPP.

Clauses 13 to 18 are thus part of the Government's leisurely repentance for a hasty and ill-considered measure. Raising the minimum tariff to two years is only common sense. Allowing the judge wider discretion in assessing dangerousness should also be seen as a welcome result of mature reflection.

I was a criminologist for a number of years, but that was some time ago, so I am still becoming reacquainted with this area of policy. It has been clear to me from listening to the contributions of other noble Lords that I still have a great deal to learn before I am capable of rivalling their level of analysis. However, it would greatly assist me and, I hope, the House if the Minister answered a couple of questions.

In a Written Answer on 27 November, the Government estimated that there were 428 IPP prisoners being held beyond the expiration of their tariff. Can the Minister tell us whether the situation has improved? "Exceeding their tariff" is a neat euphemism, evoking images of a Parisian café overcharging gullible tourists. In at least some cases, however, it signifies people imprisoned with no real hope of release, thanks to the unavailability of the rehabilitation courses that they need to attend to satisfy the parole board that they can be safely released. Will the Government provide figures on how many of the prisoners who have committed suicide since the introduction of IPPs were serving such sentences? This is far too important an issue to be lost behind the cost limits of parliamentary questions, as has previously been the case.

Public protection is a worthy goal in criminal justice, but sooner or later prisoners are freed. On current rates, two-thirds of them will have committed another crime within a couple of years. Jailing people for public protection without rehabilitation is a cruel deception. I am still not sure whether these sentencing reforms stem from that understanding or necessity.

Before I conclude, I want to say a word or two on the provisions in the Bill relating to unqualified legal representatives. Academic lawyers—and I know because I was once one—sometimes envy the earnings of their peers in legal practice, but never so much as the Government seem to. Lawyers argue that quality legal representation is one guarantee of justice. It will be said, "They would say that, wouldn't they?". But I share the concerns of other noble Lords about the proposals to extend the powers of non-legal staff to represent accused persons in court and hope that they will receive close scrutiny in Committee. Quality legal representation entails the expertise and advocacy skills that attend qualification for legal practice. I recognise that there are routine cases that can be handled other than by qualified barristers or solicitors, but I am not sure that the Government have adopted a sufficiently focused and targeted approach in Clause 105, which would allow non-legal staff to conduct a variety of very serious proceedings.

The Minister might like to offer his reflections on research carried out in 2003 by the Crown Prosecution Service which showed that two-fifths of such staff had undertaken work beyond their existing remit. On this point, the reference to Section 3(2)(g) of the Prosecution of Offences Act 1985 is entirely opaque, and the Explanatory Notes are vague. Will the Minister write to me with a full list of the powers already assigned and the powers potentially assignable under the provision?

Another aspect of quality seems to me even more vital than knowledge and skills—independence. Barristers and solicitors receive ethical training before they qualify, as well as years of training in the law and its practice. They are regulated to strict professional standards, owe allegiance to the court itself and depend on no one but themselves for career progression. These are not insignificant guarantees of independence. I do not think that any of them apply to non-legal staff. Failures of justice are not, to my mind, acceptable collateral damage from efficiency savings in the court system, and I look forward to returning to this in Committee.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 7:44 pm, 22nd January 2008

My Lords, I apologise to the House for not being here for most of the early part of this afternoon, but I was attending a sitting of the Merits of Statutory Instruments Committee, which I thought was also my duty.

I have several concerns about this Bill, and at this late stage do not propose to go into them in any detail. I very much oppose Clause 42, which is obviously wrong, for reasons that have been so well set out by others. I also have great concern about Clause 105, which has already been so well expressed by my noble friend Lord Low of Dalston. The effect of the Legal Services Act is to set out clearly the disciplinary processes for barristers and solicitors who fall below acceptable professional standards. No such process exists for those who are not trained lawyers, including non-qualified Crown Prosecution staff. They do not owe the same overriding duty to the court that all professional lawyers owe. This is a matter of very considerable concern, as there is a danger of potential miscarriage of justice—and I shall say a lot more about it in Committee. Perhaps I should add that the presence of the clause appears to owe a great deal more to the benefit of cost-cutting than to any advantage whatever to the administration of justice.

I should like to speak today on children, and children who offend. I commend the Government on their drive towards prevention and early intervention for children as well as the good work of youth offending teams, but I feel that a lot more should be done. I preface my comments by a recognition that some children, even young ones, commit serious crimes, which under our system cannot be overlooked. They face the rigour of the law and have to do so in exactly the same way as the young men who kicked a man to death and were convicted of murder. But children who offend were not born bad; they may be born with character defects and they may have developed behavioural problems, but inadequate parenting, the family and social environment, as well as their character defects, have a part to play—often a very large part—in their offending.

As the House knows all too well, there is a great deal of research on this subject, which makes clear the impact on children of problems in the home such as drink, drugs, domestic violence and mental health problems—as well as households where there are many other offenders. Early intervention and diversion from offending or reoffending should play an important part in the approach towards children. We must remember, as other noble Lords said earlier, that children who offend are also children who need help. I very much support the proposal of my noble friend Lady Stern on Clause 9 to give priority to the welfare of the child, especially to younger children. I was also greatly impressed by and very much support the contribution of the noble Baroness, Lady Linklater, to this debate.

More could and should be done at an early stage to identify the problems in the family, rather than necessarily treating all children as offenders. YOTs deal with children after they have been to the youth court. I propose to put down some amendments, and I hope that the House will bear with me as I explain their background. I have proposals for the diversion of young offenders, starting with 10 to 12 year-olds, so that they do not go to the youth court at all and therefore do not have a criminal finding of guilt but are dealt with in the family court system and not the criminal court system. I suggest that 10 to 12 year-olds who offend and whom the police or the Crown Prosecution consider should be dealt with by the youth court should be looked at by a local committee, chaired by either a judge or magistrate with representatives from police, CPS, probation, social services, education and health, to see whether the offence is so serious that it has to go to the youth court. It may well be known that the family is dysfunctional or the committee may consider that there should be an investigation to see whether there are reasons for offending that might be dealt with so as to avoid repetition of offending and without the child receiving a finding of guilt. That would give social workers an added burden, but it could have the effect of stopping or at least alleviating the cause of offending and, if so, would save years of repeated visits to the criminal courts, with the huge cost per person of an adult in the criminal courts.

If the circumstances point to family or other influences pushing the child into committing crimes, the family proceedings court may be where the child and family should be considered rather than the youth court. The local committee might decide that informal intervention by social workers might do the trick or that the local authority should issue care proceedings to give the family proceedings court the power to deal with the case—it does not have that power at the moment. Social workers would then have to be prepared on such a recommendation to issue care proceedings. The youth offending team could be involved before the child is found guilty rather than afterwards.

An alternative—or, indeed, concurrent—possibility is that, on the child's arrival at the youth court, the magistrate should have the power, which is sometimes called the Section 37 power of the family proceedings court, to require a social report on the child before the child pleads guilty, to see if this is a case for social work intervention rather than a decision of the criminal court. That would no doubt require the family to agree, but if the alternative is for the child to be found guilty, the family may well agree. The youth court, on receipt of the social work report, could then decide whether to deal with the child within the criminal proceedings or adjourn or dismiss the criminal proceedings and transfer the child's case to the family proceedings court. Again, that would require primary legislation. It would also require the local authority to be prepared in some cases to make the appropriate application in the family proceedings court, which some local authorities, on past experience, have not been at all keen to do.

There would be an added burden on social services and local authorities or possibly the youth offending team, but if it diverted the child from reoffending, it would be extremely cheap at the price. My proposals might fit well with those that I know are being considered for restorative justice for children. Together, the proposals might go forward. I would therefore like to add my proposals to Part 1 of the Bill.

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs 7:52 pm, 22nd January 2008

My Lords, the origins of the Bill seem to lie more in a desire to respond to newspaper headlines than a considered analysis of what needs to be done and then to change the law carefully and proportionately to reflect the changes that are needed. The broad sweep of the Bill, comprising piecemeal measures on youth justice and rehabilitation, sentencing, the establishment of new bodies—now to be withdrawn, we are told—changes to compensation, new powers and penal policy indicate that a huge area of the civil and criminal justice systems were frozen in a time warp, have now entered the 21st century and hence need urgently updating. But as my noble friend Lord Thomas of Gresford has already stated, that is not the case. We have had numerous such Bills over the lifetime of this Government. This can mean two things: that our criminal justice system overall is so inadequate as to require constant readjustment, or that previous legislation in many these areas was not thought through properly. Most people would conclude the latter.

I now turn my attention to the principle that will guide our approach to the Bill from these Benches. There is a concern that when the state interacts with its citizens and uses its powers of sanction against them, it is duty bound to do so proportionately and with regard to an end which, in the majority of cases, is rehabilitation. This will entail the Government putting forward arguments based on evidence—something not readily visible in the provisions we find here today, as my noble friend Lady Miller stressed.

If we take the area of youth justice, the need for those principles becomes even more evident. Where children and young people have broken the law, it is a combination of other factors, including inadequate parenting, poor life skills and familial and social causes that have led this person down the route that they have taken. The noble Lord, Lord Judd, reminded us of the stark statistics of deprivation and the speeches of several other noble Lords will indicate to the Minister how contested this area will be.

In dealing with measures on youth offending, the current approach is to have a range of measures of differing requirements. While the replacement of the previous orders with youth rehabilitation orders may be more straightforward, the prescriptive nature of several of the measures envisaged in Part 2 give cause for concern. We will explore the rationale behind legislating in statute for certain areas, rather than allowing for the greater discretion to be built into the system, bearing in mind the circumstances of each individual case.

Moreover, at this stage, we are not convinced that the Bill incorporates adequate safeguards for children and young people to be treated as far as possible outside the custodial sentencing regime. As the report of the Joint Committee on Human Rights points out, not only is proportionality to be sought, but the child's age and emotional maturity is relevant to the use of custody, which the noble Baroness, Lady Stern, has already mentioned. There is a risk that young people will fall into the trap of entering into custody, not only, as the JCHR states, because of the seriousness of their offence, but because of their failure to comply with the terms of their community sentences. We hope that the Government will take the considered views of the JCHR on board and come forth with revised proposals.

We will also seek to explore the rationale behind elements of Part 6 of the Bill, which seeks to extend the adult conditional caution scheme to young people aged 16 and 17. It seems that the constructive engagement intended for young people, in order not to criminalise them, which should be the basis of cautions has, through the addition of "conditional" turned into a sentence. We intend to explore whether the options available to young people through this measure will be proportionate, workable and suitable for that age group. Before I leave this area, I must say to the noble and learned Baroness, Lady Butler-Sloss, that we look forward to hearing more about her amendments—they sound intriguing—and seeing whether we can work with her on them.

Many noble Lords have expressed concerns about violent offender orders. My noble friend Lord Thomas foreshadowed our broad concerns with these orders, not least their extremely broad reach. As Liberty points out:

"At the heart of these is the extraordinary scope available for the imposition of restrictions on individual freedom".

Restrictions for the type of offender envisaged here already exist within the current system, not least through imprisonment for public protection measures, licences and parole measures. If the scope of these orders in practice is wide—that is, overly generalised—and the conditions are overly restrictive, they may well be in breach of Article 7 of the ECHR. We would be back in the territory of relegislating, as we have had to do with terrorism. The JCHR report points out that these orders are analogous to control orders and serious crime prevention orders. In this case, to satisfy the requirement of legal certainty, at minimum an indicative list of the types of prohibitions, conditions or restrictions that might be imposed should be published. We intend to press Ministers on that point in Committee.

A further issue relating to violent offender orders is the danger of excessive use and the numbers that could be imprisoned. According to the Prison Reform Trust, when the proposal was announced, it was suggested that the orders would lead to an increase of 3,000 in the prison population. I understand that the Government contest this figure and expect smaller numbers of prison places being taken up. However, in the words of the Prison Reform Trust, ministerial estimates in past debates, such as on indeterminate sentences for public protection, made during the passage of the Criminal Justice Act 2003, have been confounded by reality and serve to demonstrate the importance of properly debated and drafted legislation.

I echo the disappointment of the noble Baronesses, Lady Howe and Lady Stern, that an opportunity to act on the report of the noble Baroness, Lady Corston, on women in prison was not taken in this Bill. It would have helped Ministers generate some positive focuses in this area in an otherwise rather uninspired and possibly deleterious piece of legislation.

Many noble Lords have spoken today on many aspects of the Bill that we will have an opportunity to review further. We have had a considerable number of briefings and many hundreds of pages of advocacy. In the weeks ahead we will no doubt hear elegant and erudite perspectives on issues of concern. My noble friends have identified several areas where we will probe, question and debate the purpose and workability of the laws envisaged. As ever, it is our intention to work constructively with all sides to improve what seems yet again to be hastily prepared and ill-thought-through legislation. We hope that by the end of this process we will have law which serves both the criminal justice system and society better than the current system.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 8:01 pm, 22nd January 2008

My Lords, in a characteristically graphic and entertaining simile, my noble and learned friend Lord Mayhew of Twysden, compared the contents of this Bill to those of an ironmonger's shop. I think that he might have been slightly unfair to the profession of ironmongery. It seems to me, rather, that the Bill as it has arrived at your Lordships' House is a vast exercise in political displacement.

The noble Lord, Lord Elystan-Morgan, argued that the fact that the Bill does not have a single theme should not be the basis for condemning it; and I agree with him. Many criminal justice Bills have miscellaneous provisions and inevitably have to cover a wide range of different offences. But I do not think that the core of the criticism of the Bill is its lack of a single theme; it is its failure to grapple with the central problems that the criminal justice system is facing.

One very good example exhibited today is that of youth crime. The Government had only to listen to the noble Baronesses, Lady Howe, Lady Stern and Lady Linklater, the noble and learned Baroness, Lady Butler-Sloss, and many other of your Lordships who have, in no uncertain terms, underlined the deep shortcomings of the Government's approach to youth offenders and youth crime. The Bill contains many new dispositions for offences which carry imprisonment; and yet we know very well that there are no places for people to go to prison, let alone courses in those prisons to rehabilitate the prisoners who are sent there. Much of the Bill also makes disposition for community offences, but community offences are in a state of crisis. Not only is there under investment in them but there is also a deep lack of public confidence in community dispositions for a whole range of reasons which need facing up to in the immediate future. Our main criticism is the Bill's failure to confront the reality that our society has to confront today in this sector.

My noble friend Lord Henley rightly pointed out to your Lordships that much of the Bill was unscrutinised in another place. The scale of this lack of scrutiny is staggering. I give just one example. At the Report stage of the Bill the following new clauses were introduced: clauses on bail conditions, credit for a period of remand on bail, sentences of imprisonment and detention for public protection, extended sentences for certain violent or sexual offences, release on licence if prisoners are serving extended sentences; release of fine defaulters and contemners, early release of long-term prisoners, and electronic monitoring of persons released on bail. None of these extra provisions has been examined in another place. Effectively, the Government have required another place to subcontract all this work to your Lordships' House. I am sure the Minister can be in no doubt that the Committee stage on these matters will necessarily have to be very detailed and extensive because of that.

Inevitably, I cannot look at every provision in this Bill, and so many of them have been so adequately dealt with by your Lordships that it is not necessary for me to do so. So, I will turn my attention to two or three issues, the first being youth rehabilitation orders. Under the Bill the court is given an immense menu of different requirements to impose on a young offender. It can impose an activity requirement, a supervision requirement, an unpaid work requirement, a programme requirement, an attendance centre requirement, a prohibited activity requirement, a curfew requirement, an exclusion requirement, a residence requirement, a local authority residence requirement, a fostering requirement, a mental health treatment requirement, a drug treatment requirement, a drug testing requirement and an education requirement. Are the Government confident that they have the resources to meet all these dispositions or, indeed, any of them? What analysis have the Government done on the availability of resources to underpin this very important new order? What kind of guidance will judges get on the hierarchy of these orders? Are they all of equal weight? Are some more important than others? Are some to be given in clusters or can they be given singly? What happens if there is a breach of an order? Is it one strike and you're out or is the child sent back to do the particular task again? Perhaps the Minister can enlighten us on this. There appears to be no lower age limit for these orders. For example, could a 10 year-old be subject to a youth rehabilitation order? The Minister may not be able to answer all these questions now but I should be most grateful if he would respond as best he can. The most important point that has been made about youth rehabilitation orders and all the youth provisions in the Bill is that the Government have not sought to put them in their social and welfare context. That is the message that the Minister should take away with him tonight.

The noble Baroness, Lady Kennedy, the noble Lord, Lord Neill of Bladen, the noble and learned Lord, Lord Lloyd of Berwick, and others spoke about Clause 42 and, I believe, Clause 104. It is not necessary for me to repeat the substance of the argument on Clause 42; it was extremely well argued by those who spoke. However, I want to emphasise a point behind it. I believe that the noble Baroness, Lady Kennedy, underlined the crucial point about what I summarise as due process—that the Court of Appeal has a duty to ensure due process irrespective of the outcome of the trial. This duty rightly undermines the Government's amendment.

In a way I suppose we should not be surprised to find the Government seeking to undermine due process because, if we look back at their history in relation to the conduct of criminal trials since 1997, we see that there have been many attempts to undermine due process. For example, there have been sustained attempts to remove jury trial, not just from fraud cases—many of your Lordships will remember an earlier attempt to limit the number of defendants who had the right to opt for jury trial in the Crown Court. It was only because of the determination of your Lordships' House that we saw that off—and rightly, too. One of the most terrible depredations of the criminal trial process was the change in the rules on propensity in the 2003 Act—changes that I hope will be reversed some day. Then, in another context, we saw the denial of the requirement to make a prima facie case by someone who faced extradition. Your Lordships may well remember the attempt to oust judicial review altogether in certain cases.

Those examples would have been unthinkable before 1997 and I see Clause 42 in exactly the same context; it is yet another attempt to undermine due process. I am afraid that one of the difficulties we have to face is, curiously enough, the Human Rights Act, because this Bill has been certified as conforming to that Act. It is right that jurisprudence on the continent does not entertain the kind of criminal process that we have—jury trial—so there is no case law in the Human Rights Act. The Government have been quite cute in saying that all these provisions conform to the Human Rights Act. We badly need to fill that gap in our law and bring back the old common-law protections for the criminal process that the Government have sought to abandon, piece by piece.

Many noble Lords spoke to Clause 104 on the appearance of non-lawyers in contested cases in magistrates' courts. The clause is astonishing. We spent most of last year considering a Legal Services Bill that was intended to improve the supervision of lawyers appearing in criminal or civil cases—whether they were barristers or solicitors. The strictest possible regulation is now imposed on a member of the profession. The next thing that the Government do is to say that it is perfectly all right for non-members of the profession to appear as lawyers; and, of course, they are not regulated. I regard that as rank hypocrisy by the Government and I do not understand what the origin of this can be, unless, as the noble and learned Baroness, Lady Butler-Sloss, said, it is economic.

Is it actually economic? Is it economic to take people out of the CPS, who would normally be doing the kind of things that they do in the CPS, and let them take a lot of time off to appear in the magistrates' court? We had this battle during the Access to Justice Bill in 1999. Until then members of the CPS were not allowed to appear as counsel in criminal trials. The Lord Chancellor, the noble and learned Lord, Lord Irvine, took the Bill through your Lordships' House and the Government decided to give the CPS rights of appearance in the Crown Court. I was very surprised that the Bar Council did not oppose that, but the Opposition certainly opposed it—and rightly, too—because there is a basic conflict of interest between being employed by the CPS and appearing as an independent barrister in the court with the kind of duties which one has to that court when one appears as counsel.

At the time, the noble and learned Lord, Lord Irvine, assured the House that an independent barrister would be unavailable only in a very few cases. In fact, it has become almost regular practice in certain parts of the United Kingdom. I wonder, quite apart from the principle, whether that makes economic sense. I am sure that the CPS says that it does. Does it really make sense for these people who are employed in an organisation that prepares the background to the trial then to appear in the trial, day after day, week after week? We may well need to test this matter in Committee.

Many other matters will be before us in Committee. Two will be of particular interest—blasphemy and homophobic hate. They are issues upon which the Opposition's view is that we will have a free vote. I listened carefully to what my noble friend Lord Waddington said in his outstanding speech. I will not trouble the Minister any further on other issues at this moment, but will allow him to wait and see the amendments emerge. I wish him luck and look forward to hearing him.

A

Your Lordship, if the mentally ill who are now in prison, often through loss of contact with the psychiatric service,there would be more accommodation in existing prisons. Also the enormous amounts of money proposed by the Government to build new prisons could well be reduced, and better used to provide accommodation, at times secure, for people who suffer from severe and enduring mental illness, with more acute beds for those who live in the ocommunity but suffer further breakdown of their mental processes and require further assessment, and decent housing, where their families (if they have one) are unable to cope through their own age or illness. Added to this any carers should be assessed for their own needs. This was agreed a long time ago, but as yet has not(I think) been fully implemented.

Submitted by Alix Cull

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 8:15 pm, 22nd January 2008

My Lords, I look forward to receiving those amendments from the noble Lord. The noble Lord, Lord Low, challenged me to say that in general, despite a few positive comments and so on, the Bill has been warmly welcomed. I am not going to say that. We have had a serious and important debate and, of course, my noble friends and I who sit on the Front Bench look forward to intensive debate during the next few weeks on the important matters raised by noble Lords. A "hotchpotch", "curate's egg", "ragbag", "ironmonger's shop" and other apt or not-so-apt phrases, depending on your point of view, have been used.

I am not going to trade on the number of Bills that my Government have passed in relation to criminal justice with the number that the Conservatives passed. That shows a certain familiarity with the way that criminal justice Bills have been developed over the years and the noble Lord, Lord Elystan-Morgan, had important points to make about that. I accept, of course, that a considerable number of clauses were introduced in the other place. Actually, the Bill was in Committee for 47 hours and a further eight hours were given over to the remaining stages so we should not underestimate the time taken. However, I fully understand that your Lordships' House will bring its customary energy to scrutinising the Bill.

We will consider very carefully the points made by the noble Earl, Lord Onslow, and the noble Baroness, Lady Stern, on the Joint Committee on Human Rights. I am sure that during our debates on amendments we will discuss the recommendations made by that committee. On the issue of lessons to be learnt from the legislative process, of course we want to learn lessons from legislation that has not fulfilled the purpose for which it was designed. Noble Lords have referred to the Governance of Britain Green Paper and the intent of the Government to rebalance the role of Parliament vis-à-vis the Executive. We want to learn those lessons and to take them to heart. I agree that it would be good to have a wider debate on the purpose of criminal justice legislation and particularly, as the noble Lord, Lord Elystan-Morgan, said, on its impact on public confidence. None the less I would argue that the measures in this Bill are useful and help to deliver our objectives of protecting the public, reducing reoffending, promoting the rehabilitation of offenders and strengthening confidence in the criminal justice system. Whatever disappointment noble Lords have expressed about parts of the Bill, we share those overriding objectives. We should also acknowledge that crime has fallen by 32 per cent since 1997 and that the fear of crime is lower. We will always argue about statistics, but there is sufficient hard evidence to suggest that we are on the right lines. Whatever doubts there are about government policy, it is important to put them in perspective.

The noble Baronesses, Lady Howe and Lady Stern, were disappointed that the Bill is not being used as a vehicle to put into practice the report of my noble friend Lady Corston. The timing is not right for that, but two valuable debates will come up in the next 10 days on women's justice issues and the report of my noble friend Lady Corston. The Government have largely accepted the recommendations of my noble friend's report. I say to the noble and learned Lord, Lord Lloyd, while not repeating our debate of last week on the structure of murder offences, that I hope that he will accept that this is not shelving. We are attempting to look at the partial defences first and then to come back to the overall framework.

Since I have been in this position, we have had a number of interesting debates on youth justice. I know that this subject is dear to the hearts of all noble Lords. We are all concerned about the rate of offending and reoffending. The position at least is stable, with rates of reoffending by young people having fallen by 3.8 per cent since 1997. Of course, that is no excuse for complacency. I understand the points raised by noble Lords about the use of custody for young people, and about the intent of the youth justice system in general. I assure the noble Baroness, Lady Stern, that we are responsive to the concerns expressed about the use of physical restraint in under-18 establishments. We debated the statutory instrument and set up an independent joint review. That is currently taking evidence and is due to report to Ministers in April.

On the wider question of youth justice, we accept the need to look at this in a comprehensive way—to consider what more can be done to prevent children and young people coming into the criminal justice system, to make more effective use of the time that they spend in the system and to reduce reoffending. There is nothing between us on these matters and proposals on how to tackle this will be set out in a youth crime action plan, to be published in the summer. I listened with interest to the noble and learned Baroness, Lady Butler-Sloss, and I am sure that whatever the fortunes of the many amendments that she is going to put down, they will certainly feed into this wider review and be very useful.

On the question of youth rehabilitation orders, I will respond in detail to noble Lords in writing. The intention is that the requirements, which will apply to 10 to 18 year-olds, will be flexible enough for each youth rehabilitation order to be more onerous than the last and to address directly the offending behaviour. I agree with the right reverend Prelate about the need for proper tailoring. We expect youth offending teams to work with the courts to provide them with appropriate information that they can use to help them decide which requirements should be attached to the orders. I do not know whether that has convinced the right reverend Prelate but the intention is certainly to have a kind of hierarchy with the emphasis on preventing reoffending.

I well understand that we shall have a debate on the threshold, although I point out to noble Lords that the courts already have to have regard to whether a custodial sentence is justified. We will also debate the purpose of juvenile sentencing. The Bill makes it clear that, when dealing with young offenders, the court must primarily have regard to the principal aim of the youth justice system, which is the prevention of offending by young people. It also makes it clear that the court must have regard to welfare needs. However, when a court is sentencing a young offender, welfare needs never have taken, and in our view should not take, priority over the prevention of offending. We shall come back to that matter and also to the UN Convention on the Rights of the Child.

I turn to the subject of the Prison Service, about which we had a lot of very interesting comments. The allegation is that, through various legislative programmes, the Government are engaged in knee-jerk reactions to media attention on the problems that we have with the prison population. I have started to visit prisons again over the past few months and, although the Prison Service is under considerable pressure at the moment, I pay great tribute to the improvements that have taken place. I have seen an enormous improvement in healthcare in prisons. There is more to be done and that is why we have the review of mental health issues, but we have also seen much more effort being made in relation to educational and housing support for those leaving prison. There is much more to do but let us pay tribute to what has been achieved.

I know that we will be discussing Titans, although they are not subject to legislative provision. I emphasise that the noble Lord, Lord Carter, proposed large campuses, which could benefit from investment in good design and management but could also have smaller units where the benefits of smaller-scale institutions could be brought to bear.

My noble friend Lord Graham and the noble Lord, Lord Stoddart, raised concerns about the prison officer disputes and the reserve power that we wish to take. I pay tribute to prison officers, who have an incredibly difficult job. They do not often get a good press outside or, indeed, even in your Lordships' House. The great majority of prison officers do a fantastic job but we face a very difficult situation in view of the action taken in August and the decision of the POA to withdraw from the current joint voluntary agreement. I say to my noble friend Lord Graham that we hope it will be possible, before Royal Assent, to agree a new dispute resolution and trade union recognition agreement with the POA, but we think that we need the reserve power. We do not believe that the kind of industrial action that took place could ever be justified in the prison context, not least because of the prisoners' welfare considerations.

A great deal of attention has been paid to indeterminate sentences for public protection, and we shall come back to that in Committee. I am the first to acknowledge that these have not been targeted well enough and that too many cases with short tariffs have caused problems with managing and rehabilitating offenders in the prison system. That has had a knock-on impact on the availability of programmes that IPP sentence prisoners have to undertake before the Parole Board can consider their eventual release. Clearly, we have to deal with that. We believe that the proposals in the Bill will enable us to ensure that these are focused on the most serious and dangerous offenders.

I turn to the subject of extreme pornography. The noble Earl, Lord Onslow, and a number of other noble Lords expressed some concerns, which I well understand, about the definitions and how they might be applied. The reasons for bringing this matter before your Lordships' House are well taken: some very disturbing cases, with disturbing impacts, have arisen from the availability of extreme pornography. Equally, I accept that we have to be very careful about the definition; we do not want it to be wider than we intend. I said in my opening speech that we will bring forward amendments—in Committee, I hope—to make that absolutely clear.

We have had a very interesting, almost cameo, debate about prostitution. I certainly accept the comments of my noble friend Lord Faulkner and the noble Baroness, Lady Miller, that we need to see this in the round, as part of a comprehensive approach. Noble Lords have rather made fun of my ministerial colleague's recent visit to Sweden, but it should be seen as a positive, fact-finding tour and a contribution to this wider debate. It feeds into a six-month review in tackling the demand for prostitution. My noble friend Lord Faulkner accepted that the intent of the clauses in the Bill is positive. It deals with the revolving-door problem of people being consistently caught by the police, brought before the courts and then reoffending. That is the aim of the clause; it aims to help people to address the causes of offending. The consensus I sensed from the comments of noble Lords is that we need to have programmes that are designed to help people get out of the position that they are in.

I thank the right reverend Prelate the Bishop of Manchester for his comments on blasphemy. No doubt he will take on board the earnest request of the noble Lord, Lord Avebury, to speed it up even more than the church is already doing. I pay tribute to the church for its work in this area. As for homophobic offences, I say to the noble Lord, Lord Waddington, that there is a distinction between the Public Order Act, which protects individuals from harm, and the clause, which deals with incitement to hatred of people as a group on the basis of their sexual orientation.

Police activity obviously comes down to their operational independence, but like most organisations I suspect that they must go through a learning process. The Crown Prosecution Service will always assess a case and bring a prosecution only if there is a reasonable prospect of conviction. Let me emphasise that this new law will not prevent free speech or debate; it will not prevent jokes or expressions of religious belief. We recognise the importance of safeguarding freedom of expression, conscience and religion. I give way.

S

I hope that any Government amendment on the subject of extreme pornography will answer this question. What is so terrible about sexual arousal, which means that it must be made criminal?
As the Bill stands, it will remain perfectly legal to own, and in some cases display in public, extreme, violent images to sell (advertising), to entertain (movies, video games), to inform (T.V. news) and to worship (crucifix). But images judged to have been made to arouse the viewer sexually, with otherwise similar content, mean a three year prison term.
The intention appears to be to punish a state of mind. Why?

Submitted by Sean Goldthorpe

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, in light of what the noble Lord has just said, will the Government be prepared to accept an amendment safeguarding free speech, as we have in racial and religious legislation?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, the short answer is no. We do not consider it necessary, but I am happy for us to debate that after Second Reading. The noble Lord, Lord Elystan-Morgan, rather responded to my noble friend on self-defence. I re-state that we do not intend to extend the law. It is clear, despite the excellent work of the Association of Chief Police Officers and the Crown Prosecution Service in public education, that public concern and confusion remain. The existing law clearly works better than most people think; I readily acknowledge that, but it does not work as well as it could or should. The Bill's aim is to aid understanding.

On the issue of quashing convictions, I undertake to write in detail to noble Lords on those matters. Perhaps I may do that in the light of the meeting that is to take place with the Bar Council in the next 24 hours or so. I can tell my noble friend Lady Kennedy that we have always acknowledged that the provisions in Clause 42 would impact on very few cases, but the fact that we think there will be only very few cases is no reason for not taking action. One of the cases in which some concern was expressed was Smith, when the defendant was convicted after submission of no case to answer had, in the court's opinion, been wrongly rejected by the trial judge. In that decision the court not only quashed the conviction but made it clear that it would have done so even if the defendant had gone on to plead guilty after his submission was rejected. I will follow this up with a more detailed explanation.

Given the time, I shall now come on to caseworkers. Designated cases were first introduced in 1999. In the nine years since, the general view is that the system has worked well and a good reputation has been earned. I can tell the noble Lord, Lord Kingsland, that this is not justice on the cheap, nor does it undermine the role of magistrates' courts. It is about the most effective use of resources. I make no defence about saying that, given the resources we have, we must use them more effectively.

The noble Lord, Lord Thomas of Gresford, raised two issues: first, the threshold of the case and, secondly, regulation. On the latter issue, the Crown Prosecution Service is holding discussions with the Institute of Legal Executives concerning membership for its designated caseworkers and accreditation for training programmes. I hope to report back at a later stage on the outcome of those discussions.

I listened with interest to the comments on violent offender orders, as did my noble friends. We are satisfied that such orders are compatible with convention rights, but I understand that we shall have to reply to the committee's response. We had a very interesting discussion on special immigration status. The noble Lords, Lord Dholakia and Lord Avebury, asked some important questions to which I shall respond. I have to say that the Government do not think it right that people who have committed serious offences should be entitled to leave to remain, including access to key mainstream benefits and employment on the same basis as law-abiding migrants simply because they cannot be removed at present.

I think that noble Lords welcomed the Government's intent to move to withdraw clauses on the ombudsmen. I shall take that with me, as it was good to get some welcome. I reiterate that the Government are committed to getting that on the statute book and no doubt bringing back the kind of criminal justice Bill that noble Lords wish to see in the future. In the mean time, we shall work very hard to see what consensus can be achieved. This has been an educative and highly informed debate. I look forward to Committee and to debating these matters in great detail.

On Question, Bill read a second time, and committed to a Committee of the Whole House.