moved Amendment No. 1:
After Clause 11, insert the following new Clause—
In section 158 of the Criminal Justice Act 2003 (c. 44) (meaning of "pre-sentence report"), after subsection (1) insert—
"(1A) Subject to any rules made under subsection (1)(b) and to subsection (1B), the court may accept a pre-sentence report given orally in open court.
(1B) But a pre-sentence report that—
(a) relates to an offender aged under 18, and(b) is required to be obtained and considered before the court forms an opinion mentioned in section 156(3)(a),must be in writing.""
My Lords, we have tabled Amendment No. 1 in response to concerns raised in debate in Committee on pre-sentence reports for young offenders aged under 18. The Criminal Justice Act 2003 makes provision for oral reports to be made to a court. That enables cases for relatively minor offences to proceed where the offender is already known to the court representative and where, in most cases, a pre-sentence report will have been prepared on a previous recent occasion. It is right that a young person should be dealt with promptly when charged with a criminal offence if the case is proven. It is known that speedy intervention has the greatest effect on preventing reoffending. That is why we have focused on reducing the time for persistent young offenders to be brought before a court.
The majority of pre-sentence reports, 80 per cent, will be full written reports, 11 per cent will be oral reports given to the court and the remaining 9 per cent are described as specific sentence reports—shortened, written pre-sentence reports. Where the offence is fairly low level and the court has a recent full report before it, or where the offence is very minor, we believe it is in the young person's best interests that the case is proceeded with promptly. By way of example, where the young person has committed an offence of shoplifting of a low value item or minor criminal damage with no aggravating circumstances—for instance, there is no associated drug abuse problem—and the court is content that a full report is not required, we believe that an oral report may be appropriate. Similarly, an oral report on the current offence may be provided where the young person is a repeat offender and a written pre-sentence report was prepared for the previous offence and remains valid. In those cases, we think it would be unreasonable to adjourn the case and remand or bail the young person until a new report is completed. However, I acknowledge the concerns that were raised earlier about the need to ensure that where custody is being considered the court has the full background information before it in a written pre-sentence report.
In Committee, the noble and learned Baroness, Lady Butler-Sloss, expressed concern, as did other noble Lords, about the possibility of a young person being sentenced to custody without the court having a written report before it. The noble Lord, Lord Kingsland, has expressed similar concerns. I can confirm that this possibility is not excluded, either in existing legislation, or the national standards for youth justice services. I acknowledge the concerns of noble Lords. Amendment No. 1 will ensure that the court has a written pre-sentence report when considering sentencing a young offender to custody.
I will also deal with Amendment No. 2, which will be moved in due course by the noble Lord, Lord Kingsland. We are very grateful to the noble Lord for giving us the opportunity to discuss his amendment and our amendment with him this morning and earlier this afternoon. I think we understand his concern correctly: it is that Amendment No. 1 would mean that the court would have to decide that custody was appropriate before requesting a written pre-sentence report. He rightly pointed out that, in many cases, the court would not be able to come to such a view until it had seen the pre-sentence report.
We have considered the matter further since the noble Lord's observations of earlier today. We can reassure the noble Lord that this is not the effect of Amendment No. 1. Section 156(3) of the Criminal Justice Act 2003 requires that a court must, in respect of a person under the age of 18, obtain a pre-sentence report before reaching an opinion. Under Section 152(2) of that Act, the offence, or combination of the offence and one or more offences associated with it, must be so serious that neither a fine alone, nor a community sentence, can be justified. In other words, the court must obtain a pre-sentence report before reaching a decision that the custody threshold has been met. In practice, this means that where the defendant pleads not guilty, but is convicted after a trial, the court will have to adjourn, and a pre-sentence report be prepared, in a case where custody is a possibility. I repeat those words: where custody is a possibility.
The effect of Amendment No. 1 is that a written pre-sentence report will have to be prepared in those circumstances. The court will then be in a position to come to a view as to whether the offender has reached the custody threshold. The amendment will mean that the court cannot come to such a view without a written pre-sentence report. It also means that, as at present, written pre-sentence reports will be prepared in many instances where the court decides, in light of that report, that custody is not appropriate. I hope that answers noble Lords' concerns, particularly those of the noble Lord, Lord Kingsland. There is no difference between us or around the House. A young person should not be sent to custody without a full written pre-sentence report being obtained. In due course I am likely to invite the noble Lord to withdraw his amendment; for the moment, I beg to move Amendment No.1.
My Lords, I am most grateful to the Minister for his opening remarks. He will recall that, in Committee, widespread concern was expressed by many noble Lords about the absence of an obligation on a court to require a written report before a custodial sentence was passed. I would like to think that it was that strength of opinion that has led the Government to come forward with the amendment now before your Lordships. I am extremely grateful to the Government for responding in this manner.
I do not think that the Government have gone quite far enough, which explains my amendment to their amendment. I would require written reports in all circumstances, whether the likely sentence was going to be custodial or some form of community sentence. It seems to me that particular care should be taken in respect of offenders aged under 18. I do not see why as much care should be taken in relation to those who are going to receive a community order of one sort or another as a custodial sentence; but I readily admit that our prime concern is with custodial sentences.
"a pre-sentence report which is required to be obtained and considered before the court forms an opinion", mentioned in Section 156(3)(a)? It is quite clear that under that section a court must obtain and consider a pre-sentence report before forming an opinion as to whether, under Section 152(2), the custodial threshold had been reached. The difficulty is that a judge will not reach a conclusion on whether the custodial threshold has been reached until he has read the pre-sentence report. This means that the judge will have to take a view immediately after a defendant is convicted about whether there is the slightest chance that, following receipt of a report, he will pass a custodial sentence.
My understanding of what the noble Lord, Lord Bach, has said to the House is that it must be clear that if there is the slightest possibility that a custodial sentence might ensue—only the judge will know that—he must require the report to come to him in writing. In a sense, this amendment is saying that whether or not it is in writing is entirely up to the judge: at the end of the day, it is his subjective judgment to determine whether the report is required to be in writing or whether it can be an oral report.
As long as that is clearly understood by the judiciary, for my part and the Opposition's part, I am content with the amendment. I can see the noble Lord, Lord Bach, nodding, which gives me some hope that I shall get my way on this. Let me put it another way, if there is the slightest chance that a custodial sentence is to be passed, and if there is no report in writing, there must be a serious chance that the process will be in some way or other quashed by a higher court. It is very important that Parliament is clear about what it is doing before it does it.
My Lords, it gives me very great pleasure to say how impressed I am by the care, assiduity and sensitivity with which the Government and the Opposition have approached this question. One of the most important conclusions that a court can ever arrive at is to deprive a young person of his or her liberty. However, I am not sure that I entirely agree with the argument put forward so clearly and fairly by the noble Lord, Lord Kingsland.
There are two stages to the judge's consideration. First, and this follows rather slavishly the wording, if I remember rightly, of Section 152 of the 2003 Act, it must be considered whether the threshold for custody has been crossed—in other words, whether the seriousness of that offence, with one other offence, at least, taken into consideration, is such that anything other than the custodial disposal would not be justified. That is not the exact wording but would be near to it.
Therefore, there is a preliminary decision as to whether that threshold has been crossed. The learned judge then says, "If that has been crossed, I will have to consider all the other considerations, including, of course, the offender's antecedence and, no doubt, all the information that can be given in either a written or an oral report". What is concerned here is not so much a final decision by the learned judge, but a preliminary one as to the crossing of that threshold line.
My other point is that although a written report is always to be preferred to an oral one, I would like to pay the highest possible tribute to those hardworking probation officers in daily attendance at the courts who, sometimes at very short notice, will produce a most incisive and comprehensive report on an offender's situation. They can be helped, of course, by the learned judge having had the papers the night before and digested them and, having warned learned counsel before 10.30 am, informing that person that he would like that report done. Sometimes—and I am afraid that I was guilty of this from time to time—it might be at 12.45 pm that one would ask for that report by 2 pm.
However, my own experience was that these reports were prepared with very great conscientiousness, dedication and thoroughness. Almost invariably, a person asked to conduct such an inquiry would first get in touch with the probation officer who had written the last report and, if that was not possible, to have the matter adjourned for a few hours until that report was available. Therefore, one should not demote the verbal report too much, because in most cases, it will be of a very high standard. It will enable the judge, once there has been a preliminary decision under Section 152, as a crossing of the threshold, to be able to review that situation in the light of all the information that the court will then have.
My Lords, having spoken on this issue in Committee, I am moved, first, to thank the Government for listening to what other people have said, and that is always to be congratulated. It seems to me that what the noble Lord, Lord Bach, has just said may be 100 per cent right, whereas my noble friend Lord Kingsland is guaranteeing that it is going to be right. Under those circumstances, to avoid doubt, what harm is there—and it seems there is some benefit—in amending the Bill in the way that my noble friend says? I am not being difficult, just trying to be clear.
My Lords, it will not surprise Ministers to learn that I am delighted that the Government have moved this amendment and very much support it. I share the view of the noble Lord, Lord Elystan-Morgan. If there is any real likelihood of a young person, usually a man, under the age of 18, going to prison, it would be most unlikely that the judge would not want, in any event, a written report and consideration of a great deal of what would come into such a report.
This is a moment at which one can really leave it to the judge to decide what more he needs. I would like to pay tribute to the excellent oral reports that are given, but, where you are likely to go to prison, you are entitled to have a written report. I would have expected that to be provided in a case where a young person is likely to go to prison.
My Lords, we on these Benches first raised this issue in Committee under Amendment No. 79. We are very grateful to the Government for listening and for bringing forward this amendment. Unfortunately, I disagree with the noble Lord, Lord Elystan-Morgan, about the value of an oral report. Probation officers have in the past done their very best but I have always thought it unsatisfactory that they should be required at very short notice to take upon themselves the production of a report. Normally, these reports require inquiries and consultation with the family. It is far better that that be a considered process—very much more so when the defendant is under 18.
The Government have listened to the views put forward from all around the House and I am grateful to them for what they are doing. I also support the noble Lord, Lord Kingsland, for the belt-and-braces approach he has taken in his amendment to the amendment. If he wishes to take the matter further, we will support him.
My Lords, I thank noble Lords for their contributions to this debate. On behalf of the Government, I thank Liberal Democrat Members for having raised this issue in Committee and other Members who have raised it during our proceedings on the Floor of the House. I argue that with Amendment No. 1, we have come up with the right answer. The only thing about which I disagree with the noble Lord, Lord Kingsland, is whether there should necessarily be a written report in each case where a community sentence is imposed. We certainly agree with the view that was expressed around the House that there should be a written report in cases where a custodial sentence is or could be imposed.
The noble Lord is pressing me, quite rightly, to be as clear as possible. As I said when moving the amendment, in practice this means that where the defendant pleads not guilty but is tried and then found guilty, after conviction the court will have to adjourn and a pre-sentence report will be prepared in a case where custody is a possibility. I do not think that we can be much clearer than that. After that, it will be in the hands of the judge, who is the sentencer.
My Lords, as I think I said earlier, I am most grateful to the Government for bringing forward the amendment. The noble Lord, Lord Bach, has clarified a somewhat occluded part of its wording in a way that I find entirely satisfactory.
I am disappointed that the Government are not minded to accept my amendment. I think that in some respects, where a community order is under consideration, the variety of possible components of that order benefit greatly from a carefully thought out pre-sentence report on the history of the young person, his or her character and his or her suitability for the wide variety of possible rehabilitation orders that are open to the court. It is a different argument for a written report but, I believe, an equally powerful one. Nevertheless, the Government have come forward with their amendment; it meets us at least halfway. In those circumstances, I shall not press my amendment this afternoon. Therefore, I beg leave to withdraw the amendment.
My Lords, the object of the amendment is to repeal Section 229 of the Criminal Justice Act 2003. I should first explain why I did not press this amendment to a vote on Report. Section 229 of the 2003 Act contains the statutory definition of dangerousness. By subsection (3), which is the crucial subsection, the court is obliged to assume dangerousness if the offender has been convicted on two or more occasions of certain specified offences commonly known as the "two strikes and you're out" provision.
That subsection is to be repealed by the Bill as it stands and I am very grateful to the Government that they are taking that course. All that will then be left of Section 229 is subsection (2). All that subsection (2) will say is that the court in assessing dangerousness,
"must take into account of all such information as is available to it about the nature and circumstances of the offence", and may take into account previous convictions. That is all Section 229 will then provide.
On Report, I pointed out that the courts have always taken previous convictions into account. What else can they take into account more obviously than previous convictions? They really do not need to be told by Parliament that they may do that. I think that is now accepted by the Government, at least to that extent, that Section 229 is covered by the existing practice.
However, the noble Lord, Lord Bach, argued that the reference in Section 229 to information about the offence, or information about the offender, adds something that the courts have not always taken into account and he referred to the case of Considine in support of that argument. I was unfamiliar with that case so I needed to look at it before asking the House to express a view. I have now looked at it. It turns out that, so far from helping the argument of the noble Lord, Lord Bach, it helps mine. Indeed, I would go further than that and say that it is absolutely conclusive in favour of my argument. In an earlier decision, in the case of Johnson, the court said that subsection (2),
"adds nothing to the approach which the sentencer would normally take, that is, to consider all the information available to the court ... it is difficult to see how any sentencer, properly forming his judgment, would properly fail to take all matters of possible relevance into account".
I say amen to that. That sentence in Johnson was expressly approved by a five-judge Court of Appeal in the case of Considine, the case on which the noble Lord, Lord Bach, relied.
In the light of my looking at that case, I wrote to the noble Lord and to the Lord Chancellor to ask them to reconsider Clause 16. Once subsection (3) has gone—and it is going—to retain Section 229 is pointless. It is saying only what already happens. Hence my amendment to repeal Section 229 of the 2003 Act. In his letter of reply the Lord Chancellor makes three points. He accepts now that subsection (2) does reflect the existing practice of the judges in assessing dangerousness. But he says that the statute got there first. It is only in 2007 in Considine that the case law caught up with Section 229.
It may be that that sounds odd, but it seems to me that that is what the Lord Chancellor is saying in this sentence of his letter:
"The fact that the courts did in fact, by a process of case law development, confirm by the end of 2007 that the statute reflects case law derived in other contexts as to assessing dangerousness is helpful".
As I understand it, the argument is that the courts might have taken a different view in assessing dangerousness in relation to the new, indeterminate sentence than they have always done in relation to the ordinary life sentence. If that is the meaning of that argument, I suggest in all seriousness that it is scraping the very bottom of the barrel. It suggests that, in interpreting this new provision covering indeterminate sentences, the court might have excluded all together what is relevant in assessing dangerousness. In any event, what might have been the position no longer matters, because we now know as a result of Considine that there is no difference between Section 229 and the practice which the judges have already adopted. So I say to the House that Section 229, consisting of what it will consist of unless my amendment is adopted, is wholly otiose and should be repealed.
I can deal with the second and third arguments of the Lord Chancellor quite simply. The second argument was that it might imply an intention to repeal or alter the law substantially if we repealed Section 229. But we are of course altering the law substantially in the Bill by repealing subsection (3). That is the subsection which has the teeth, as I have tried to explain. We are not surely implying anything by repealing Section 229 about the information which courts ordinarily take into account in assessing dangerousness, because, as I have said, we now know that subsection (2) adds nothing to the existing practice.
Finally, the letter states that Parliament can, if it wishes, embody case law in legislation, to which I say, "Of course, it can". But there is surely no point in stating the obvious. It is surely our duty to shorten, so far as we can, and simplify legislation. We have an opportunity of doing that now by repealing Section 229, which if it remains, will simply be a blemish on the statute book. I invite the House to do that and beg to move.
My Lords, this is the second clause in the Bill which is useless and will draw the contempt of the legal profession and the judiciary if it is allowed to remain. This Government have had the tendency to look overseas to the United States of America and adopt its practices. That is a country where 750 out of 100,000 people are in prison, as opposed to 150 out of 100,000 in this country and an average of about 70 or 80 in the rest of Europe. For that reason, they introduced as a good wheeze the idea of "two strikes and you're out". The Government have recognised that that has done nothing to assist the administration of justice in this country. All it has done is serve to fill our prisons and produce the ridiculous anomalies of people being given indeterminate sentences, but with the proviso that they can apply for parole after 28 days. The end of that is very welcome to us. But we are now left with nothing, other than simply a repetition of what already has been the practice, as the Lord Chancellor has recognised in his letter. I urge your Lordships not to make nonsense of the criminal law in this way. The Government should go the whole hog. If they want to get rid of "two strikes and you're out", they should get rid of it and not leave useless bits of legislation hanging about.
My Lords, I, like the House, am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for putting forward again his submission that there is no need to retain Section 229—the assessment of dangerousness section—of the Criminal Justice Act 2003 in what is, of course, its truncated form following our reforms, about which he has just been generous.
We are grateful to the noble and learned Lord for bringing the issue to the attention of the House. As he has said, he has been in correspondence with my right honourable friend the Lord Chancellor, and I believe that they have also spoken. At the noble and learned Lord's instigation, we have undertaken further consultation with senior Court of Appeal judges, who deal with criminal cases day after day. They have indicated informally to the Secretary of State that they favour the retention of Section 229 of the Criminal Justice Act 2003, in the truncated form proposed by the Bill.
I will explain, as briefly as possible, why the Government want to keep this part of the Bill as it is. Our changes in this Bill will, as we have already agreed, remove the statutory presumption of risk, which greatly limited judicial discretion in assessing risk, while leaving in place the remainder of Section 229, which sets out what matters the court may consider when assessing risk. Those, as the noble and learned Lord said, are set out in Section 229(2), which refers to previous offences and says that the court must take into account as well,
"all such information as is available to it about the nature and circumstances of the" instant
"offence ... may take into account any information which is before it about any pattern of behaviour of which" any of the offences mentioned in its paragraph (a) or new paragraph (aa)form part, and, lastly,
"may take into account any information about the offender which is before it".
We believe it is important to retain that statutory basis for the assessment of risk because it clarifies that the courts may look not just at the circumstances of the trigger offence, but take into account all such information as is available about the pattern of behaviour of which the offence formed part. That matter is of particular relevance to a court with a special responsibility for assessing an offender's prospective dangerousness, and a hallmark of public protection sentencing.
My Lords, I am of course not saying that. I know that learned judges do that up and down the country. Perhaps the noble Lord, Lord Thomas, will hear me out before interrupting. In passing the Criminal Justice Act 2003, Parliament created a specific task for courts of assessing the dangerousness of sexual and violent offenders. The decision on risk would be made in the context of a new sentencing regime—one that has particularly serious ramifications for offenders who fall into its scope. I think we agree that those ramifications can be extremely severe. We believe that it was important to have clarity, from the beginning, on the breadth of information and evidence that a court can consider in assessing dangerousness in this new context.
On Report, I referred to the case of Considine, and the noble and learned Lord, Lord Berwick, has made his analysis of it. That will perhaps teach me better, as a mere ex-junior member of the Bar, about trying to cross swords with the noble and learned Lord. If I were to have appeared before him in days gone by, the thought of that would have terrified me for the weekend before, but in what I hope is the safety of the House of Lords I will make my point on Considine.
The noble and learned Lord asked whether we agreed that the Considine judgment showed that the new Section 229 would add nothing to the factors that a court would normally consider. The answer to that, to be absolutely blunt with the House, is that I do not think that it is particularly relevant to the issue that the House may have to decide in a few minutes whether we agree to that or not.
As I explained, it would have been an omission for the Government to have failed to cover that point of the legislative scheme when we set up the legislation in 2003. The alternative would have been to trust the case law developed in other contexts in which dangerousness needed to be assessed and that that would be assessed and applied in the new context. We did not want to do that at the time because we wanted the new system to be clear from the very beginning, in view of the novelty and seriousness of the new sentencing proposals. As the noble and learned Lord told the House this afternoon, the courts did, in fact, by a process of case law development, confirm subsequently that the statute reflecting case law, derived in other contexts as to assessing dangerousness, is helpful. But does it follow that, because that is what the cases have decided, the statute is dispensable? We argue not. We do not believe that it is right to repeal the statute on the basis that subsequent case law would give courts the guidance that they need.
It is, we think, particularly the case—although I think that the noble and learned Lord disagrees with us on this point—that a repeal of Section 229 would imply an intention to alter the law substantively. It has not been suggested that there is any need to change the position regarding the breadth of information that may be considered in the changes that we have made in this Bill. Indeed, we would argue that, given the wider changes that we are making to the public protection legislation, it is more important than ever that it remains in place. We think that repeal of Section 229 would therefore create a doubt where currently there is none. It is there in statute.
For whose benefit will that be done? It is not necessarily for that of the learned judges who will of course have to pass sentences. However, I remind noble Lords that soundings that we have made suggest that a number of very senior judges who work in the criminal field are of the view that it would be helpful to keep this section in. We think that there are also significant presentational advantages in making it clear to criminal justice agencies and, perhaps, even to the general public, that previous convictions and the other kind of information that is relevant and lawful to be taken into account by a sentencing judge are very relevant to the assessment of risk. We believe that it is transparent—it is there in the statute—and we believe that it encourages confidence.
Those are the arguments that the Government put in suggesting that, on balance, it would be advisable to keep this part of Section 229 on the statute book.
My Lords, I am very grateful to the noble Lord, Lord Bach, as ever, for his reply. I am always impressed by his arguments, and I am sure that I was impressed by the argument that he advanced in the case in which he said he appeared before me, although I cannot pretend that I remember much about it. However, there is one thing that he said that concerns me—his reference to the fact that he has consulted informally senior members of the judiciary. I am not sure that that is really good practice. I do not think that things should be referred to that have been discussed informally with the judiciary, because we are not in a position to know what exactly the judges have said. Indeed, I have consulted members of the judiciary about this and other clauses, but I do not think that those discussions should be referred to as an argument in support of an argument in this House.
Having said that, I am not impressed with the answer, any more than I was with the letter from the Lord Chancellor, so I wish to test the opinion of the House.
My Lords, I shall speak also to Amendments Nos. 6 to 10. Amendments Nos. 5 to 9 refer to what is now Clause 28, which must be one of the most opaque clauses in the Bill and, when the Bill becomes law, it will become one the most opaque sections on the statute book. It deals with three distinct classes of offenders.
The first group concerns offenders serving a determinate sentence for offences that are neither violent nor of a sexual nature. The second group concerns those who have received determinate sentences where they are serving sentences for crimes of a sexual or violent nature, or have been assessed as unsuitable for automatic re-release because they present a risk of serious harm. The third and final category covers those offenders who have committed sexual or violent offences and who are serving extended sentences.
In the case of the first category of offenders, if they have been assessed as not presenting any risk of harm to the public and are recalled, the Bill stipulates that they will be in prison for a fixed period of 28 days, at which time they will automatically be re-released. Clause 28 gives the Government power by statutory instrument to alter the figure of 28 days. Two of our amendments seek to remove the power that is available to the Government in the Bill.
In the case of the two other categories of prisoner to which I have referred, the Bill gives the Secretary of State and, in certain circumstances, the Parole Board the power to take decisions about the prisoner's release. Other amendments in our group affecting Clause 28—Amendments Nos. 5, 7 and 8—seek to insert an extra decision-maker in decisions about release; a Crown Court judge. We believe that it is wrong that decisions about the fate of such prisoners should lie solely in the hands of the Executive. We believe that someone who is properly qualified, outside the Executive, should also play a part in the decision-making process. That is why we propose to add to the Bill,
"subject to the agreement of a Crown Court judge".
There is one other amendment in the group, Amendment No. 10; it refers to Clause 30. It concerns the recall of those offenders who have received a life sentence but who are now out on licence. Once again, the Bill gives the discretion to recall those former prisoners to the Secretary of State and, in certain circumstances, to the Parole Board. A recent decision of the Court of Appeal suggested that the Parole Board, at least in certain circumstances, is not independent of the Secretary of State. Once again, we believe that another party should be involved in decisions about those who have received a life sentence but who are now out on licence. In this case, our amendment inserts a reference to the Lord Chief Justice.
The background to these amendments was very fully debated in Committee and I do not propose to say anything further in support of them. I beg to move.
My Lords, I am grateful to the noble Lord for tabling the amendments. These are important matters and they allow us to debate the provisions of the Bill relating to the release and recall of prisoners. Amendments Nos. 5, 7 and 8, amending Clause 28, have the effect that, where recalled determinate-sentence prisoners have been assessed by the Secretary of State as safe to re-release, there would be a requirement for their cases to be referred to the Crown Court so that the court could review that decision.
Our main concern at this proposal is that it would place a substantial added burden on the Courts Service. To give some indication of the scale of this burden, in 2007-08 the Parole Board conducted over 14,000 recall reviews. We are also of the opinion that the process for dealing with such referrals would be slow and bureaucratic. Prior to 1999, all recalls in respect of prisoners serving less than four years had to be pursued through the courts. It was a more complex process which was rarely used, but it was one of the reasons why we extended executive recall provisions in the first place. We are not convinced that the proposal would enhance public protection in any significant way.
I remind the House that prisoners serving sentences for sexual or violent offences are automatically precluded from being given a fixed-term or 28-day recall. Those serving sentences for offences other than sex or violence can be given a fixed-term recall only if they are assessed as not presenting a risk of serious harm.
I also remind the House that all recalled prisoners have a right to have the recall decision reviewed by the independent Parole Board, thus providing offenders with a means of redress. Our recall provisions are designed, frankly, to reduce the burden on the Parole Board and on the Prison Service and will assist in achieving our objective to focus prison and the Parole Board's resources on the most dangerous offenders. We have carefully considered the noble Lord's amendments but I am afraid we cannot accept them.
Amendment No. 10 seeks to amend Clause 30 in respect of the recall of life and indeterminate-sentence prisoners. I can assure the House that we recognise that recalling a life-sentence prisoner has potentially serious consequences. It could result in the offender spending the rest of his or her life in custody. That is why such decisions are not taken lightly and why all such decisions are subject to review by the Parole Board. Amendment No. 10 requires all recalls of life or indeterminate-sentence prisoners to have the approval of a judge.
We fear that this amendment would build a potential source of delay in the recall process, during which further serious crime could, unfortunately, be committed. The purpose of recall action is to enable the Secretary of State to take swift and preventive action in removing potentially dangerous offenders from the community. We think it is a crucial means of public protection. The current provisions for the recall of a life-sentence prisoner—this is an important issue but I shall be as quick as I can—are to be found in Section 32 of the Crime (Sentences) Act 1997. That section provides two routes for recall. Section 32(1) enables the Secretary of State to recall, having first consulted the Parole Board and received a positive recommendation. But Section 32(2) enables the Secretary of State to recall a life-sentence prisoner without prior consultation with the board where it is,
"expedient in the public interest to recall that person before such a recommendation is practicable".
The clear inference of the statute as it now stands is that in the majority of cases a lifer recall will be pursued through the Section 32(1) route—the Parole Board route—and that the Secretary of State will recall a lifer without prior consultation with the Parole Board only where such consultation is not possible in an individual case.
The House will know that for life-sentence prisoners released into the community on life licence, the threshold for recall is high. An increased risk of reoffending by itself is not sufficient to warrant recalling them to prison. The Secretary of State must be satisfied that the prisoner presents an unacceptable risk to life and limb. To warrant a life or indeterminate sentence it follows that a prisoner will have been convicted of the most serious sexual or violent offences. When their conduct has deteriorated to such a degree that they are assessed as presenting an unacceptable risk to life or limb, it is invariably in the interests of public protection that the recall process facilitates their swift removal from the community.
In practice therefore, nearly all recalls are effected administratively as we speak. We accept that there is no limit on the number of cases that may be decided under the public expediency recall procedure—that is, Section 32(2), which gives the Secretary of State his powers. However, the spirit of the legislation leans towards the primary mechanism for deciding to recall a lifer through a Parole Board recommendation. But in the period from October 2002 to March 2007 more than 80 per cent of decisions to recall lifers were made without a Parole Board recommendation. I can reassure the House that those decisions have been entirely correct in law on the basis that it was expedient in the public interest for the Secretary of State to exercise his power of executive recall without consulting the Parole Board.
Nevertheless, we are concerned to ensure that the statutory framework reflects current operational practice, and that the operational practice could not be seen as undermining Parliament's intention. For that reason, Clause 30 places our current operational practice on a firm statutory footing. We also recognise that it is critical that there are strong and effective safeguards in place to ensure that the decision taken by the executive is open to challenge by the offender, and even if not challenged, is open to robust scrutiny by an independent body. That is what the review by the Parole Board achieves.
The Parole Board will invariably have an oral hearing to consider the representations of life-sentence prisoners. Such hearings are normally chaired by a judicial member. The prisoner is entitled to be present, legally represented, and to call witnesses. The board has the power to direct the prisoner's immediate re-release if it is satisfied that it is safe to do so. This is a question of balance and we recognise that it is important to strike the right one between being able to take swift, preventive action to protect the public on the one hand, and ensuring that such decisions are subject to robust scrutiny. That is why we believe that putting Clause 30 into the Bill is the appropriate measure to achieve that balance.
I can be shorter and more helpful to the noble Lord, Lord Kingsland, on his two remaining Amendments Nos. 6 and 9. They would remove the power to amend the period of time an offender must serve before being automatically re-released if given a fixed-term recall or the period other recalled offenders must serve before the Secretary of State must refer their case to the Parole Board.
Having given careful consideration to these amendments, and expressing our gratitude to the noble Lord, Lord Kingsland, in particular, and having listened to other noble Lords in debate, we are prepared to accept those two amendments. We will need to bring forward a consequential amendment when the Bill returns to another place.
My Lords, first, I am most grateful to the Minister for acceding to Amendments Nos. 6 and 9. No doubt there will be certain changes in the drafting by the Government in order to stamp their own inimitable character on these provisions.
My Lords, it will come as no surprise to the Minister to learn that I am disappointed by his reaction to our other amendments. He underlined the importance of speed and effectiveness in the recall process in relation both to those categories in Clause 28 to which I referred and to the life sentence category in Clause 30. I understand that those are important considerations.
On the other hand, individuals are effectively having their liberty removed from them, often for a very long subsequent period. In my submission, the judicial arm of the constitution ought to play a role in that decision. That is what lay at the heart of our amendments. The Minister has been adamant: he will give no ground. I thought very carefully about what I should do at Third Reading. In the end, I have decided not to press these amendments, but I would not want the Minister to think that strong feelings on the part of the Opposition did not lie behind them. I beg leave to withdraw the amendment.
moved Amendment No. 9:
Clause 28, page 22, leave out lines 28 and 29
On Question, amendment agreed to.
Clause 30 [Recall of life prisoners: abolition of requirement for recommendation by Parole Board]:
[Amendment No. 10 not moved.]
moved Amendment No. 11:
Clause 41, leave out Clause 41 and insert the following new Clause—
After section 16B of the Criminal Appeal Act 1968 (c. 19) insert—
"Appeals following references by the CCRC
16C Power to dismiss certain appeals following references by the CCRC
(1) This section applies where there is an appeal under this Part following a reference by the Criminal Cases Review Commission under section 9(1)(a), (5) or (6) of the Criminal Appeal Act 1995 or section 1(1) of the Criminal Cases Review (Insanity) Act 1999.
(2) Notwithstanding anything in section 2, 13 or 16 of this Act, the Court of Appeal may dismiss the appeal if—
(a) the only ground for allowing it would be that there has been a development in the law since the date of the conviction, verdict or finding that is the subject of the appeal, and(b) the condition in subsection (3) is met.
(3) The condition in this subsection is that if—
(a) the reference had not been made, but(b) the appellant had made (and had been entitled to make) an application for an extension of time within which to seek leave to appeal on the ground of the development in the law,the Court would not think it appropriate to grant the application by exercising the power conferred by section 18(3).""
My Lords, we agreed on Report to bring forward these amendments, which restrict the scope of Clauses 41 and 42 to cases referred to the Court of Appeal by the Criminal Cases Review Commission. The noble and learned Lord, Lord Lloyd of Berwick, had tabled his own amendments to this effect but, as I explained then, the Government consider that the wording here, while slightly longer, is necessary to ensure precision. I trust that it may be accepted that this is not wholly within the Hunt rule on amendments.
Amendment No. 11 inserts into the Criminal Appeal Act 1968 a new Section 16C. It will apply only in cases where the Court of Appeal is determining an appeal referred to it by the Criminal Cases Review Commission, and where the only ground for allowing the appeal is that there has been a development in the law since the date of conviction. In such cases, it would be open to the court to dismiss the appeal if it would have refused an extension of time within which to seek leave to appeal; if, hypothetically, the court had been considering an out-of-time application by the appellant rather than a reference by the Criminal Cases Review Commission. Amendment No. 12 makes the equivalent provision for Northern Ireland, and Amendment No. 54 makes the equivalent provision for the Armed Forces. Amendments Nos. 55 and 56 are transitional provisions. I hope that the noble and learned Lord, Lord Lloyd, will accept that the substance of his amendments is reflected in the Government's amendments. Our joint objective is to secure that the Court of Appeal is no longer obliged automatically to quash convictions in the relevant cases. I beg to move.
My Lords, one only has to compare the clause as it now appears in Amendment No.11 with the clause as it appears in the Bill to see what a very marked improvement the amendment has made to the existing Bill. I am very glad that that has happened and I extend my welcome to it. It achieves exactly what needed to be achieved, neither more nor less. I support the amendment.
My Lords, we on these Benches congratulate the Government on another climbdown on the Bill. We are pleased to see that the amendment has been put through.
moved Amendment No. 12:
Clause 42, leave out Clause 42 and insert the following new Clause—
After section 13A of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) insert—
"Appeals following references by the CCRC
13B Power to dismiss certain appeals following references by the CCRC
(1) This section applies where there is an appeal under this Part following a reference by the Criminal Cases Review Commission under section 10(1)(a), (6) or (7) of the Criminal Appeal Act 1995 or section 1(1) of the Criminal Cases Review (Insanity) Act 1999.
(2) Notwithstanding anything in section 2, 12 or 13A of this Act, the Court of Appeal may dismiss the appeal if—
(a) the only ground for allowing it would be that there has been a development in the law since the date of the conviction, verdict or finding that is the subject of the appeal, and(b) the condition in subsection (3) is met.
(3) The condition in this subsection is that if—
(a) the reference had not been made, but(b) the appellant had made (and had been entitled to make) an application for an extension of time within which to seek leave to appeal on the ground of the development in the law,the Court would not think it appropriate to grant the application by exercising the power conferred by section 16(2).""
On Question, amendment agreed to.
Clause 62 [Possession of extreme pornographic images]:
My Lords, there are many things in these clauses about extreme pornography with which we on these Benches remain deeply unhappy. On Report, the Minister did not explain why he could not move at least a little nearer the Obscene Publications Act 1959. Linking these clauses to that Act would have made the measure more objective, and less subjective, and would have had the other strength of targeting the producers of such material rather than the end user. It would target those who are making vast amounts of money out it.
In Committee, the noble Baroness, Lady Kennedy of The Shaws, had a suggestion, but the Government did not take up, to make it illegal for credit card companies to allow the spend on extreme porn sites. I thought that was a constructive suggestion that the Government had not chosen to pursue.
The other reason to link these clauses to the Obscene Publications Act is that that is a tried and tested definition in court. It talks of material that tends to "deprave and corrupt" as opposed to "extreme", which the Minister admitted at Report stage is a very subjective judgment. It is something that he does not like.
I appreciate that the Minister feels that "deprave and corrupt" is old-fashioned language and not suitable, but it has stood the test of time in court for printed material and it addresses what the Government say they are trying to do with these clauses. The Government want to stop people becoming depraved and corrupted and therefore more likely to commit criminal acts. I will come back to whether there is enough evidence of that—and I will contend that anyway. The legislation as drafted does simply allows the word "extreme". Although theBill defines that word, when a case comes to court it is going to give juries a great deal of difficulty when they start to look at it in any detail.
The legislation allows the police to pick up someone watching this material before they commit any crime, before they actually cause any harm to another person. The Government may be right that the person might have gone on to commit such a crime, but often they may be arresting somebody who has strange tastes, ones we might find repugnant, but who is never going to harm anyone else and is no threat to society. Their life is likely to be ruined by the subsequent court case, even if it fails or if the accused is successfully produces one of the defences. That is truly the domain of the thought police. These clauses are the state entering the bedrooms and minds of citizens before they commit any crime that involves harm to another human being.
I know that the Minister will again quote the evidence. However, the academic world is not of one voice on the effects of this material. A number of academic studies quoted by the Minister show that extreme pornography may affect violent criminals—people who had criminal intent in the first place. On the other hand, he could have chosen to quote from Professor Todd Kendall who presented his paper to Stanford Law School. It showed that as the United States brought in access to the internet at a different rate in the 50 states—not intentionally—a 10 per cent increase in internet access yielded a 7.3 per cent decrease in reported rapes. The purpose of quoting that is to show that different academic studies show different things.
I now turn to Amendment No. 15, which concerns the tariffs. Will the Minister explain why the tariffs are as they are for simply watching an act, when committing the act results in a lesser or equal tariff? Surely it is much worse to commit an act under the Sexual Offences Act than to watch it on the internet. I want also to ask him about the guidance that he will issue to the police. How on earth are the police going to enforce this law? Will it be by random raids on people's bedroom, by reports from neighbours or by trawling through hacked internet access? Policing this area will be a nightmare when it comes to otherwise law-abiding citizens watching alone or with their partners things that we may find distasteful or even disgusting. This affects an awful lot of British citizens. I have no way of telling whether extreme or just ordinary pornography is involved, but internet service providers estimate that about £1 billion a year is spent on pornography. That is either 1 million people spending £100 or—my maths is failing me. Anyway, it is a lot of people.
There is another route that the Government could have chosen to take that might have been very constructive. It would have been to set up a government website that allowed the reporting on non-consensual abusive acts, slightly along the lines of Crimestoppers. That would have allowed users to report anything truly criminal or suspect and would have led to the arrest of genuine sexual offenders from whichever country they originated. That idea could be put into practice and would be very cost-effective.
We feel that the Government have gone down a number of wrong routes with this Bill, and that is we why we have tabled this amendment. I beg to move.
My Lords, I apologise to the noble Baroness, Lady Miller, for not putting my name to Amendments Nos. 13 and 15 in time. My opposition to these clauses is undiminished. I listened carefully to the reply that my noble friend Lord Hunt made in the debate on Report. He spoke with great passion and sincerity, and I admire him for that, but unfortunately the quality of his arguments did not match up to the passion and sincerity with which he made them.
This is fundamentally about an intrusion in the harmless private lives of ordinary citizens in this country. On Report, I spoke about the Video Recordings Act 1984. I did not repeat one of the juiciest pieces about it. Until that time, we had a British Board of Film Censors, which was not a censorship board. It classified films, and if it refused to classify them, they could still be shown with the permission of local authorities. The Video Recordings Act 1984 changed the board from being a classification board to being a censorship board because if a video recording was not approved by the board, it could not be shown at all. From being a classification board, it became a censorship board, but its name changed from being a censorship board to a classification board. George Orwell would have been proud.
I am enthusiastic about Amendment No. 13 because it seeks to get round the horrible situation which the Government are putting us in by adding an extra gloss to the Obscene Publications Act 1959. I would support the noble Baroness, Lady Miller, if she chose to divide on that.
I am less enthusiastic about Amendment No. 15, not because it is not right in itself, but because I simply do not believe that any jury will convict a citizen of this country for possessing what it is not illegal to produce. The noble Baroness, Lady Miller, gave the reason of needing inspectors with the right of entry to people's homes, sitting rooms, bedrooms, video machines and DVDs. Is that really what the Government are proposing? There is no other way of enforcing it. If they succeed in doing it, however they succeed in doing it, what jury is going to convict people for possessing what it is not illegal to produce? The Government, despite all the sincerity of the noble Lord, Lord Hunt, have failed to answer any of these arguments.
My Lords, I am very pleased indeed that these amendments have allowed one to have another look at this whole area, because it was a mistake not to have allowed us on Report to discuss a similar route to the one agreed for the clauses dealing with sex workers for the clauses in this Bill about extreme pornography. In other words, they should be taken out of the Bill. I hoped that your Lordships would have had an opportunity to debate both sides of the concern that lay behind those amendments.
The human rights aspect was rightly aired. However distasteful to many, including myself, if people choose to watch extreme or kinky pornography in the privacy of their own home, and that is not breaking the law, the state should not be involved. It was argued by the organisation backlash, among others, that this law as currently drafted is likely to criminalise hundreds of thousands of people who use violent pornographic images as part of consensual sexual relationships. It also argues that some of the RAE research was inaccurate and biased. The other, equally important, concern is whether extreme pornography could be harmful, in the sense of generally brutalising, to citizens. I am reminded of when I was asked to watch an experiment at the LSE with two groups of undergraduates. One group watched some rather violent material, and the other was shown, gradually, up to a point, fairly placid stuff. At that point, they were both shown some pretty violent stuff. The first lot, who had got used to seeing what they were shown—rather more violent stuff—did not react at all, while the other group was horrified. That is quite important.
Of far greater concern, as has been mentioned, is the possible effect on sick or vulnerable people who might fantasise about what they are viewing and go on to commit violent crime against members of the public. That was argued forcefully in the other place by Martin Salter MP, quoting the case of Jane Longhurst. In most cases, as we know, these offences are committed against women. Both areas of concern combine to make a strong case for a far more professional look at this whole subject, not least in view of the growing use of the internet, and other forms of IT equipment, to access this kind of extreme material, and the lack of any significant powers for Ofcom to intervene.
As one who, in the 1990s, when chair of the Broadcasting Standards Commission, had responsibility for monitoring the early days of pornography, I have absolutely no doubt of the huge growth in both the quantity and the extreme nature of today's material. No doubt, if we had followed the Minister's advice and gone to the police station to see the evidence that he had to endure, that would have graphically confirmed my view.
Despite the proposal that I had hoped to make earlier—that, like the clauses on prostitution, these extreme pornography clauses could be referred for further expert study and not form part of the Bill—I still urge the Minister and the Government to establish an expert commission or Select Committee to take evidence and examine this whole area in far greater detail. It is a growth area of citizen concern which will not go away.
My Lords, as I indicated on Report, I broadly support the Liberal Democrats and the noble Lord, Lord McIntosh, on this matter. However, one thing puzzles me about Amendment No. 15: it does not allow for a fine to be imposed on conviction or indictment, unlike the clause as it stands. The overcrowding in our prisons will not be ameliorated at any time in the foreseeable future. It seems to be a defect that there is no possibility of a fine in that case.
My Lords, on Report, I asked the Minister the purpose of this new offence. Was it to discourage criminal sexual acts being filmed, or was it to discourage people from watching porn? The Minister's answer was something of a surprise: he wished to criminalise the gratification of the individual in watching pornography in the privacy of his own home. That is one thing, but it seems completely illogical to make that a more serious offence than the act which—if it is criminal—the individual is watching. I ask the Minister to reflect on whether he can in any form of logic maintain his opposition to these amendments.
My Lords, I was not intending to speak but I want to add my support for what the noble Baronesses, Lady Miller and Lady Howe, and my noble friend Lord McIntosh have said in this short debate. From Committee stage onwards we have been consistent on this issue. I very much appreciated the support that the noble Baroness, Lady Miller, gave me in my efforts to remove the street offences clauses at an earlier stage, and I very much commended my noble friend Lord Hunt for agreeing to do that. It is a great pity that he has not taken these clauses out as well. With the greatest respect to him, he has not made the case that they are necessary, workable or desirable. As my noble friend Lord McIntosh said, he made a brilliant speech on Report, full of passion and full of commitment; but his main point and main argument in favour of these clauses was that it is necessary to satisfy the public demand, because the public do not like what they think is available. They do not know quite what is available but they do not like it and the law, therefore, must make it impossible for it to be accessed.
My worry is that if you adopt laws on that basis, you will finish up with something that is unworkable. As my noble friend Lord McIntosh said, it is almost impossible to imagine that a jury will convict someone on the basis of viewing an activity, the activity itself not being the subject of a criminal act. I think that the law will be brought into disrepute if the Government persist. I, too, support the noble Baroness, Lady Miller. I commend her courage and honesty and the way in which she has campaigned on this through three stages of the Bill. I hope she does not give up.
My Lords, first, I must apologise to your Lordships for arriving slightly late for this amendment. I, too, support it. I feel that the Government are doing their old-chum gesture politics. They are "sending a signal". That is a very bad basis for passing laws. We know that this is not unique to this Government. I can almost guarantee that after the next general election, when I might be sitting on that side of the House and other Members might be sitting on this, I will make exactly the same criticism of an incoming Conservative Government. It is a habit which Governments find it irresistible to resist. But the logic of what the noble Lord, Lord McIntosh, and the noble Baroness, Lady Howe, said, and the expressed views of the Joint Committee on Human Rights, on which I have the honour to sit, support that position. Even with the concessions coming in the next clause, it is an awful pity that this amendment will not be agreed to.
My Lords, for the reasons that have been given by a number of other noble Lords, I, too, urge the Government, even at this late stage, to rethink these clauses. The provision is potentially unworkable. In view of the advantages of the noble Baroness's amendment, I very much support it.
My Lords, I also am grateful to the noble Baroness, Lady Miller, for allowing us to come back and debate this important matter. The principle was decided on Report, and this debate has in a sense been a rerun of that debate on principle. That is fair enough. I fully understand the probing nature of the noble Baroness's amendments.
I very much accept the point made by the noble Baroness, Lady Howe, and endorsed by my noble friend Lord Faulkner, that this is but one element of a number of matters in this area. The noble Baroness has eloquently argued for a Select Committee of this House to look at these issues in general. Although that is always a matter for the House itself, I am sure that the Government will always co-operate and be happy to give evidence to any such initiative that the House takes forward. She might then say, "Well, you ought to take this away until the investigation has been completed". She will know that I am reluctant to do so. However, I take her point that some substantive issues need to be discussed, including those issues on prostitution.
My Lords, in the Minister's comments one suddenly sees a chinkette of light. In those circumstances, will he ask, through the usual channels, for a Select Committee? He shakes his head in the wrong way. Perhaps I shall take rather less notice of his charm on this issue than I thought that I should.
My Lords, the noble Earl is always tempting me down paths I ought not to go. It is not for the Government to suggest to Parliament what it ought to do in matters governing its own affairs. If I were to do that, I would be out of order. I recognise that the noble Baroness, Lady Howe, has expressed a legitimate concern that many issues around sexual behaviour need to be addressed. All I was saying is that this is entirely a matter for this House. However, there are ways in which we may debate these matters: in Thursday debates, in Questions for Short Debate, or, if the House authorities agree, by setting up a special Select Committee.
As noble Lords will know, there was a great deal of controversy over the authorities' decisions on a number of proposed Select Committees. Noble Lords will remember, for instance, the arguments over whether there should be a Select Committee on the Barnett formula. My noble friend Lord Barnett, who is not present today, would remember. I am simply saying that I recognise the point raised by the noble Baroness. These are important matters and Parliament has an important role in discussing them.
I thank my noble friend Lord McIntosh for his kind remarks, although he went on to say that he did not think much of my arguments. I was interested in his recollection of the great days of local government, when it had a role in deciding whether films could be shown in a local authority area. As a member of Oxford City Council in the 1970s I well recall Alderman Fagg chairing a sub-committee of the estates committee which viewed these films on Monday morning at 10 o'clock. I confess that we debated these matters and that I argued that there should be no censorship of any film and it was all unnecessary. Well, I have changed my mind. The noble Lord, Lord McIntosh, has not. He has been a model of consistency over many years on these matters.
Over the past few days I have received many e-mails from many organisations. I understand, of course, my noble friend's concern about unnecessary intrusion into harmful activities in people's own bedrooms. However, we are not talking about what might be described as the routine pornography which I am sure accounts for much of the billion pounds and the—as the noble Baroness suggested, though I am not sure how many people—million people; we are talking only about extreme or violent pornography. I want to make that clear.
The noble Baroness asked me to explain in detail why the Obscene Publications Act and its definitions were not used in the formulation of this clause. This legislation has been proposed because the controls in the Obscene Publications Act are much more easily evaded these days by the use of modern technology, namely the internet, which makes it much easier to use and distribute and therefore easier to possess. As most such extreme material is hosted abroad, controls on publication and distribution are no longer sufficient.
My Lords, I am sorry to interrupt the Minister. The issue is not about the controls. The issue is about the definitions. The definitions in the Obscene Publications Act have worked for almost 50 years. Changes in the difficulty of control do not affect that argument at all.
My Lords, I do not think I was arguing that. I was trying to answer the first question posed as to why we are bringing forward this legislation at all. The second question, relating to the noble Baroness's first group of amendments, is why we have not we have not used the Obscene Publications Act. Her amendment removes the element of the offence which requires that an extreme pornographic image depicts an extreme image and replaces it with a reference to the definition of "obscene"; namely, the "deprave and corrupt" test, which, as she says, is found in Section 1 of the Obscene Publications Act 1959. Her amendment also has the effect of rendering redundant subsections (6) and (7). Those subsections set out the,
"grossly offensive, disgusting or otherwise of an obscene nature", test and the list of extreme acts. The amendment has the effect of opening up the offence to all obscene pornography. It would no longer be limited to certain specified depictions of threatening, violent, bestiality or necrophilia images. The noble Baroness may wish to consider the implications of that when she comes to wind up.
My officials and the department, when considering this matter over the months that it has taken to prepare the Bill, saw the initial attraction of linking this possession offence to the existing publication offence. Under the Obscene Publications Act, whether material is obscene depends on whether it would deprave and corrupt those most likely to read, see or hear it. That "deprave and corrupt" test works by reference to the likely audience. In the context of possession there is no audience. Directly importing the deprave—
My Lords, there is an audience of one, who is about to be criminalised should this Bill be passed. How could the officials or the Minister come to the conclusion that there was no audience?
My Lords, directly importing the "deprave and corrupt" test into this offence would have the effect of requiring the possessor of the material to consider its effect on himself. The possible perverse consequence of that could be that less sexually aware members of society become more at risk of committing an offence than habitual users of pornography. So it is clear that the test would have to be adapted. It is not a simple case of referencing. We explored the feasibility of adapting the Obscene Publications Act but concluded that our approach is to be preferred.
The Obscene Publications Act offence is not limited to specified material, but, rather, catches anything which passes the "deprave and corrupt" test. By contrast, the approach that we have taken with this possession offence is to target only specified material. Even if we had used an adapted version of the Obscene Publications Act obscenity test, we would still have had to limit it by reference to specified acts.
As the amendment of the noble Baroness, Lady Miller, has the effect of rendering redundant the subsection (7) list of specified acts, it opens up the clause to cover a much broader range of pornography—anything which could pass the "deprave and corrupt" test. I am advised that it could catch the depiction of degrading sexual acts such as drinking urine or smearing excrement on a person's body. In that respect, the noble Baroness's amendment might widen the offence significantly.
We do not consider that by not providing for a direct read-across to the Obscene Publications Act test we open up any significant risk that material could be caught by this possession offence which it would be lawful to publish. It is not our position that the words,
"grossly offensive, disgusting or otherwise of an obscene character" are synonymous with the wording of the "deprave and corrupt" test. Rather—I repeat the points that I have made at earlier stages—it is that the three elements of the offence, the "pornography" test, the "explicit realistic extreme act" test and the "grossly offensive, disgusting or otherwise of an obscene character" test, when taken together, should ensure that the offence captures only material which it would be illegal to publish by virtue of the "deprave and corrupt" test within the Obscene Publications Act.
Amendment No. 15 would reduce the maximum prison sentence available to Crown Courts to deal with the possession of material described in Clause 62(7)(a) and (b) from three years to two years, making it the same as the maximum penalty proposed for bestiality and necrophilia material falling under Clause 62(7)(c) and (d). I have listened carefully to the points raised on this. In considering the penalties for these offences, it is clear that we have considered carefully proportionality with regard to existing criminal offences. We certainly think it right that the maximum penalty for possession of extreme pornographic material should fall below that available for the more serious offence of possession of indecent photographs of children, which is five years maximum. It should fall below also that available for publication, distribution and possession for gain offences under the Obscene Publications Act, which in Clause 69, as your Lordships will be aware, we are raising from three to five years. These are also more serious offences. Further, the penalties should not exceed the maximum penalty available for certain substantive offences potentially committed in making pornography, such as those in the Sexual Offences Act 2003 in relation to offences with animals and corpses which carry maximum penalties of two years.
The sentencing levels that we propose are proportionate, bearing in mind the high threshold levels for this offence. I stress that we are not talking about the kind of soft porn to which many noble Lords have referred and which has been referred to in the letters and e-mails that I have received in the past few weeks. It is material that should not be in circulation in this country. I say again that the increased availability of this material is a direct result of the impracticality in the internet age of controlling its circulation by targeting the publishers under the Obscene Publications Act 1959. We think it right to give the courts the means to reflect greater concern about the material featuring extreme sexual violence, whether real or simulated, than is the case for material which is degrading but non-violent. That is the reason for the distinction in the maximum penalties between the categories set out in Clause 62(7).
There are two other points to be made on the noble Baroness's amendment to the penalty provision. First, her amendment removes, perhaps inadvertently, the capacity of the Crown Courts to impose a fine. Secondly, it deletes the transitional provision of subsection (4), which is required to provide for future changes to the sentencing powers of magistrates' courts in England and Wales.
On the issue of policing, I hope that I can reassure noble Lords. The police have welcomed this offence. They see it as a further means to take illegal material out of circulation and an additional tool to deal with individuals whose behaviour may be causing concern. This is not, I suggest, a case of policing the bedroom. It is intended to target only the most extreme pornography. We believe that the number of prosecutions will be relatively small, but my understanding—from advice that I have received—is that the offence will be a valuable additional resource for officers already working on protecting the public in this area. I also give an assurance that this offence will not be commenced before a full explanation of it is given to the police and to the courts.
I am aware that this area is controversial. We discussed the principle on Report, and I hope that I have, at the very least, provided some explanation to the noble Baroness of the approach that the Government have taken. She will now have to consider her position.
My Lords, I thank very much all those noble Lords and noble and learned Lords who have spoken. This difficult area is one that I would have found it lonely to do alone, so I particularly thank your Lordships for expanding—better than I can, in all cases—on why these clauses are, in our view, particularly unworkable.
As the Minister says, we dealt with the principle on Report, so the point of coming back at Third Reading is to offer the Government a small chance to make these clauses slightly less unworkable—and slightly more reasonable—especially in the light of the history of courts trying to deal with this difficult area, and of juries understanding what is going on. I am particularly glad that the noble Baroness, Lady Kennedy of The Shaws, has joined the House at this point. She has spoken before about how difficult juries find this issue, and obviously has wide experience of why that is so.
This really comes down to the contention that these clauses are, as the noble Earl, Lord Onslow, said, put there to send a signal more than anything else. There was great consensus that they are really unworkable and do not address the issue that the Government are trying to address here. Perhaps the most chilling point in the Minister's summing up—I thank him for going into some detail—was that when it came to policing this it was for dealing "with individuals" who are "causing concern". Well, that is pretty difficult. How are they causing concern if they have committed no crime yet? They might be causing concern in all sorts of ways; they might be individuals whom the police do not much like, for a number of reasons, but then they get raided. Again, that really makes me feel worried. This is, as the noble Baroness, Lady Howe of Idlicote, said, all to do with human rights. It would have been better to look at this in the cool light of day. I am sorry that the Minister has resisted the idea. I know that he cannot call for it, but he could put on the pressure to create a Select Committee to look at the whole issue of violence in the media. That, I think, is what really concerns noble Lords.
I hope that, in this instance, the Conservative Benches will indicate whether they support these poorly drafted and unworkable clauses. I have a feeling that, should I test the opinion of the House, they will simply abstain. That would be a pity, as they are usually strong on trying to improve a Bill as the Liberal Democrat Benches are trying to today. It is quite clear that we feel there is still room for improvement. For that reason, I beg leave to test the opinion of the House.
moved Amendment No. 14:
After Clause 64, insert the following new Clause—
"Defence: participation in consensual acts
(1) This section applies where—
(a) a person ("D") is charged with an offence under section 62, and(b) the offence relates to an image that portrays an act or acts within paragraphs (a) to (c) (but none within paragraph (d)) of subsection (7) of that section.
(2) It is a defence for D to prove—
(a) that D directly participated in the act or any of the acts portrayed, and(b) that the act or acts did not involve the infliction of any non-consensual harm on any person, and(c) if the image portrays an act within section 62(7)(c), that what is portrayed as a human corpse was not in fact a corpse.
(3) For the purposes of this section harm inflicted on a person is "non-consensual" harm if—
(a) the harm is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself; or(b) where the person can, in law, consent to it being so inflicted, the person does not in fact consent to it being so inflicted."
My Lords, during our debate at Report, I said that the Government intended to address the concerns expressed by the noble Lord, Lord Wallace, and others, about individuals who keep a record of themselves freely and willingly participating in bondage, domination, submission and sadomasochistic practices in which no unlawful harm occurs. We recognise that it would be anomalous if participants in perfectly lawful acts were to be at risk of prosecution for possession of images portraying those acts. We have introduced an amendment which creates a new defence of participation in acts in which no unlawful harm occurs. The defence will apply in respect of images which meet the very high threshold for the offence. The defence will not apply in respect of bestiality images or necrophilia images which involve a real corpse.
In respect of other material, it will be a defence for a person to prove, on the balance of probabilities, that he or she directly participated in the act or any of the acts portrayed and that the act or acts portrayed did not involve the infliction of any non-consensual harm on any person.
The defence that we are proposing does not amend the law in the wider area that was set out in the House of Lords case of R v Brown—a decision that the European Court of Human Rights found not to be an infringement of Convention rights. However, the defence is constructed so that, if the law on that point should change in the future, the defence would not move it. I hope that this defence will give reassurance to those who participate in legal and consensual acts of which they wish to keep a photographic record. I beg to move.
My Lords, when members of the Joint Committee on Human Rights were told that the Minister was going to move this amendment, we all said, "Yippee" or words to that effect, so I would like to thank the Minister for going as far as he has. There is a question of moving millimetres rather than metres, but one must be thankful for small mercies; on behalf of the Joint Committee, I would like to say, "Thank you for the millimetres".
My Lords, I raised these matters in Committee and at Report and I also want to express appreciation for the amendment introduced by the Minister, which addresses the issue of someone having a record of his or her participation in a consensual act. The noble Earl, Lord Onslow, is right that it is millimetres rather than metres. As I understand it, a person may have a photograph and although he himself is not present in the photograph, he could lead witnesses to establish that the act was consensual. But that defence will not be open to him. I regret that that is an issue that will come up in a court case and show again the fundamental misgivings that many of us have about these clauses as a whole. Nevertheless, it is only appropriate to acknowledge where a step in the right direction has been made and I am grateful to the Minister for that.
My Lords, it would be discourteous for me not to join in. I rather liked word "chinkette" used by the noble Earl, Lord Onslow. This is something rather than nothing and we are modestly grateful.
My Lords, this is a small, consequential amendment to define the extent of the amendment that we won on Report on data protection. I beg to move.
My Lords, the House will be well aware from the previous debates on this provision that interim violent offender orders are intended, and I believe are needed, to provide the public with immediate protection from an individual who is considered to pose a risk of serious violent harm while a decision on the main violent offender order is being taken.
To address the concerns raised by the noble and learned Lord, Lord Lloyd of Berwick, I made a commitment on Report to bring forward amendments so that an interim order could be made only in the absence of the individual in respect of whom the order has been applied for, if the court is satisfied that the individual has been given reasonable notice of the application and the court hearing date. Such a requirement would ensure that the individual could attend the hearing or make representations on that day if he or she chose to do so. Amendment No. 20 fulfils that commitment.
The other amendments in the group are minor, technical amendments, which seek to ensure that all individuals who are given a custodial sentence or hospital order on conviction for one or more of the specified qualifying offences are eligible for a violent offender order. The amendments also ensure that hospital orders, restriction orders and supervision orders made by the courts under all relevant legislation are included in the definition of these terms. I commend the amendments to the House. I beg to move.
moved Amendment No. 19:
Clause 98, page 76, line 42, leave out from "and" to end of line 44 and insert "either—
(i) a sentence of imprisonment or other detention for at least 12 months was imposed for the offence, or(ii) an order equivalent to that mentioned in subsection (3)(a) was made in respect of it,"
On Question, amendment agreed to.
moved Amendment No. 20:
After Clause 103, insert the following new Clause—
"Notice of applications
(1) This section applies to—
(a) any application under section 99 for a violent offender order,(b) any application under section 103 for an interim violent offender order, and(c) any application under section 102 for the variation, discharge or renewal of a violent offender order, or for the variation or discharge of an interim violent offender order.
(2) A magistrates' court may not begin hearing such an application unless it is satisfied that the relevant person has been given notice of—
(a) the application, and (b) the time and place of the hearing,a reasonable time before the hearing.
(3) In this section "the relevant person" means—
(a) the person to whom the application mentioned in subsection (1)(a) or (b) relates, or(b) the person in respect of whom the order mentioned in subsection (1)(c) has been made,as the case may be."
On Question, amendment agreed to.
Clause 115 [Interpretation of Part 7]:
moved Amendments Nos. 21 to 25:
Clause 115, page 87, leave out lines 41 to 43 and insert—
"(a) a sentence of imprisonment, any other sentence or order mentioned in section 76(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (as in force at any time after the passing of this Act) or any corresponding sentence or order imposed or made under any earlier enactment, or"
Clause 115, page 88, leave out lines 3 and 4 and insert—
""hospital order" means—
(a) an order under section 37 of the Mental Health Act 1983 (c. 20) or section 60 of the Mental Health Act 1959 (c. 72), or(b) any other order providing for the admission of a person to hospital following a finding of the kind mentioned in section 98(2)(b) or (c) of this Act;"
Clause 115, page 88, leave out lines 11 and 12 and insert—
""restriction order" means an order under section 41 of the Mental Health Act 1983 (c. 20) or section 65 of the Mental Health Act 1959 (c. 72);"
Clause 115, page 88, leave out lines 16 and 17 and insert—
""supervision order" means—
(a) a supervision order within the meaning of Schedule 1A to the Criminal Procedure (Insanity) Act 1964 (c. 84), or (b) a supervision and treatment order within the meaning of Schedule 2 to that Act;"
Clause 115, page 88, line 33, at end insert—
"( ) References in this Part to a finding of the kind mentioned in section 98(2)(b) or (c) or (4)(b) or (c) include references to a case where a decision on appeal is to the effect that there should have been such a finding in the proceedings concerned."
On Question, amendments agreed to.
Clause 117 [Offence of causing nuisance or disturbance on NHS premises]:
moved Amendment No. 26:
Clause 117, page 89, line 29, at end insert—
""English NHS premises" means—
(a) any hospital vested in, or managed by, a relevant English NHS body,(b) any building or other structure, or vehicle, associated with the hospital and situated on hospital grounds (whether or not vested in, or managed by, a relevant English NHS body), and(c) the hospital grounds,"
My Lords, I can be brief. These amendments fulfil an undertaking that I gave to the noble Baroness, Lady Finlay, who I do not see in her place, on Report on
The amendments adapt the provisions in Clauses 117 to 119 so that the new offence of causing nuisance or disturbance to National Health Service staff on hospital premises, and the associated power of removal, will apply in Wales. The amendments provide for Welsh Ministers to issue the guidance under Clause 119 as regards the exercise of the powers of removal in Wales and to commence the provisions in so far as they apply to NHS premises in Wales. I hope that the amendments will meet with the approval of the noble Baroness and with that of the whole House. I beg to move.
My Lords, I am grateful to the Minister for bringing forward these amendments. I am sure that I speak for the noble Baroness, Lady Finlay. I am pleased to have pointed out to the noble Lord that the Government had overlooked the fact that the Welsh Assembly could not make criminal offences. I am sure that the message will get to Wales in time for tomorrow that, at Third Reading, after the Bill had gone all the way through the other place and come here, they finally remembered that Wales exists.
My Lords, Clause 117 is a very progressive and well justified measure. It is perfectly true, of course, that the more serious offences—we know that many such offences are committed on NHS premises and against NHS personnel—can be dealt with quite adequately under the Offences Against the Person Act 1861. The beauty of Clause 117 is that one can intervene at a much earlier stage to prevent what might be a very serious fracas developing. I welcome, as does the noble Lord, Lord Thomas of Gresford, the fact that this measure has now been extended to Wales.
Whether this is NHS legislation that borders on the criminal, or criminal legislation that borders on the NHS is a somewhat moot jurisprudential point. It does not really matter. Massive executive responsibilities in relation to the NHS have been with Wales ever since the devolution process of 1964 began. They were devolved, after 1998, to make this matter the prerogative of the Welsh Assembly in relation to executive decisions. Now we have Part 3 of the Government of Wales Act 2006, in Schedule 5 of which NHS functions belong to an area where the Welsh Assembly could initiate a procedure that would enable an Order in Council to grant it a swathe of authority and jurisdiction. As yet, it has not done so. In a perfect world, I would love to have seen the Welsh Assembly take this initiative, provided of course that the provisions came into force no later than the provisions in this Act. There is no earthly reason why NHS personnel in Wales, vulnerable as they are, should not have the same protection as they have in every other part of the United Kingdom.
I make a slightly technical, constitutional point here. During the passage of the 2006 measure through this House, an undertaking was given which, I think, was the equivalent of an undertaking given in the context of Scotland: that there would be a convention whereby this House, although of the parent Parliament, would have absolute sovereign authority to intervene in any matter relating to Scotland, Northern Ireland and Wales, but would not do so in regard to any function that either had been transferred or was intended to be transferred. Therefore, in future, I very much hope that the initiatives will come from the Welsh Assembly Government themselves. I think there are three matters in the pipeline now, one already having been passed by this House. Under Part 3, I understand there are about 20 more on the shopping list, and they take quite some time to be heard. I very much hope that the Welsh Assembly will, in so far as it is practicable, take those initiatives. I trust that this House will be loyal—I am certain that it will be—to that undertaking that it will intervene in such matters only at the request of the Welsh Assembly.
My Lords, I would like to have on the record my sincere thanks to the Ministers in the Wales Office, to the First Minister in the Assembly and to Ministers in the Assembly for having entered into a long and, at times, complicated dialogue to ensure that we reach this point. These amendments, tabled by the Government, are extremely important because they ensure that the Assembly will have parity with the powers that will exist in England. They also have the sophistication to allow the powers to be triggered at the decision of the Ministers in the Assembly. I am also grateful to officials who, behind the scenes, have worked with me and enabled the dialogue to take place.
My Lords, I thank noble Lords who have contributed to the debates and in particular the noble Baroness, Lady Finlay, because she has played a sterling role in this exercise. I also assure the noble Lord, Lord Thomas of Gresford, that no Labour Government could ever forget Wales—it is always at the forefront of our mind and our thinking.
We responded very positively to suggestions put to us. Our earlier thinking was that the Welsh Assembly would come forward later with this, but we are more than happy to ensure that these provisions are active and will be actively pursued in England and Wales. I am also grateful to the noble Lord, Lord Elystan-Morgan, for his kind contribution. I thought that what he said was absolutely right: that these things are initiated close to where the power in Wales really lies. That is a very important principle, particularly in a devolutionary settlement. I am grateful for the support we have had on these amendments.
moved Amendments Nos. 27 to 31:
Clause 117, page 89, line 40, after "body" insert ", or a relevant Welsh NHS body,"
Clause 117, page 89, line 40, leave out "it" and insert "such a body"
Clause 117, page 90, line 5, leave out "and" and insert—
""relevant Welsh NHS body" means—
(a) a National Health Service trust (see section 18 of the National Health Service (Wales) Act 2006 (c. 42)), all or most of whose hospitals, establishments and facilities are situated in Wales, or(b) a Local Health Board (see section 11 of that Act),"
Clause 117, page 90, line 6, at end insert—
""Welsh NHS premises" means—
(a) any hospital vested in, or managed by, a relevant Welsh NHS body,(b) any building or other structure, or vehicle, associated with the hospital and situated on hospital grounds (whether or not vested in, or managed by, a relevant Welsh NHS body), and(c) the hospital grounds."
On Question, amendments agreed to.
Clause 118 [Power to remove person causing nuisance or disturbance]:
moved Amendments Nos. 32 and 33:
Clause 118, page 90, line 14, after "an" insert "appropriate"
Clause 118, page 90, line 23, leave out subsection (5) and insert—
"(5) In this section—
"appropriate NHS staff member"—
(a) in relation to English NHS premises, means any English NHS staff member authorised by a relevant English NHS body to exercise the powers which are conferred by this section on an authorised officer in respect of English NHS premises, and(b) in relation to Welsh NHS premises, means any Welsh NHS staff member authorised by a relevant Welsh NHS body to exercise the powers which are conferred by this section on an authorised officer in respect of Welsh NHS premises,
"English NHS staff member" means a person employed by a relevant English NHS body or otherwise working for it (whether as or on behalf of a contractor, as a volunteer or otherwise),
"Welsh NHS staff member" means a person employed by a relevant Welsh NHS body or otherwise working for it (whether as or on behalf of a contractor, as a volunteer or otherwise).
(6) Terms defined in section 117 have the same meaning in this section as in that section."
On Question, amendments agreed to.
Clause 119 [Guidance about the power to remove etc.]:
moved Amendments Nos. 34 to 43:
Clause 119, page 90, line 31, leave out "English"
Clause 119, page 90, line 34, leave out "English"
Clause 119, page 90, line 36, after "of" insert "appropriate"
Clause 119, page 90, line 38, leave out "NHS staff members" and insert "persons"
Clause 119, page 91, line 10, leave out "Secretary of State" and insert "appropriate national authority"
Clause 119, page 91, line 11, leave out "Secretary of State" and insert "authority"
Clause 119, page 91, line 12, leave out "English"
Clause 119, page 91, line 12, leave out from "must" to end of line 14 and insert ", when exercising functions under, or in connection with, section 118, have regard to any guidance published by the appropriate national authority under this section."
Clause 119, page 91, line 15, leave out subsection (5) and insert—
"(5) In this section—
"appropriate national authority"—
(a) in relation to a relevant English NHS body and authorised officers in respect of English NHS premises, means the Secretary of State, and(b) in relation to a relevant Welsh NHS body and authorised officers in respect of Welsh NHS premises, means the Welsh Ministers,
"appropriate NHS staff member" and "authorised officer" have the same meaning as in section 118,
"relevant NHS body" means a relevant English NHS body or a relevant Welsh NHS body.
(6) Terms defined in section 117 have the same meaning in this section as in that section."
On Question, amendments agreed to.
Clause 120 [Nuisance or disturbance on HSS premises]:
My Lords, we come to the special immigration status which is dealt with in Part 10 of the Bill. If I may, I will first get it on the record that the amendments that were moved in Committee and on Report were not for the exclusive benefit of the Afghans but for everybody who is to be consigned indefinitely to the special immigration status defined in this part of the Bill. We were concentrating mainly on the Afghans because they were the people on whom we had detailed information. Of the other 38 people who are likely to be designated under the special immigration status, their cases were not in the public domain. The Minister raised the curtain briefly to allow us to glimpse the particular case of Mr A of the Justice and Equality Movement in Darfur who may, or may not, come under Article 1F. But neither he nor Mr B, a former member of the AWB in South Africa, had been tried. In the case of Mr A, the "serious reasons for believing" that he had done any of the specified acts in the exclusions appeared to rest on his standing in the JEM, which had committed war crimes in Darfur. It is an extension of Article 1F to say that it is going to apply to every single individual who is taking part in an organisation that has been labelled as having committed war crimes.
My approach today is not to cross swords with the Minister on the interpretation of the convention of one Act in particular, but to try to see if we can reach an accommodation by looking at this status from a common-sense point of view. A person who is designated will be denied the right to work and access to mainstream benefits—to the end of his life in many cases, because the situation in his country of origin will make it impossible for him ever to be returned for ECHR reasons. That may continue not just for a few years but, as we see from looking at the examples—particularly for the Afghans—more or less into the indefinite future.
These amendments say that in passing this indeterminate sentence, the Secretary of State will have to consider whether the person constitutes a danger to the community in this country. If not, he is able—as we have discussed already on two occasions—to grant six months' leave to remain. That can be renewed from time to time, until a final decision can be made. But after a number of years, when it becomes clear that there is no prospect whatever of returning the person, and even more that he has become settled in the UK with a wife and children who would also be exempted from designation by these amendments, it would be reasonable to grant him indefinite leave to remain.
The Minister said that, in the case of the Afghans, although the wives were to be treated in line with the principal applicant, it was open to them to apply for asylum separately. As he knows, they have done so without getting responses for several years. Meanwhile, children have been born here and, in many cases, have acquired British citizenship. The longer the families are here, the closer their ties with the UK and the more intolerable it would be to pack them off to Afghanistan, or wherever, in the improbable event that circumstances there would make it possible for them to be returned without ECHR risk. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Avebury, for bringing the House's attention back to the provisions relating to the special immigration status. The first of these amendments would introduce an additional condition which would have to be satisfied in order for someone to be treated as a foreign criminal for the purposes of Clause 128. In addition to being someone who has been sentenced to imprisonment for two years or more, or who has been given a custodial sentence of any length for one of the offences listed in the order made under Section 72 of the Nationality, Immigration and Asylum Act 2002, or who is excluded from refugee status by virtue of Article 1F of the Refugee Convention, a person would be a "foreign criminal", and hence liable to designation, only if, in addition, the Secretary of State certifies that he or she constitutes a danger to the community. I do not consider that additional restriction appropriate, and I am therefore unable to accept this amendment.
Why? I remind noble Lords that the new special immigration status is intended to apply primarily to foreign criminals as defined in this clause who are liable to deportation, but who cannot currently be removed for human rights reasons. They are people who we would want to remove from the United Kingdom if we possibly could. We would seek to remove the person concerned whether or not he or she represented a continuing danger to the community. Special immigration status, as the phrase suggests, is an immigration measure. It is not about public protection.
The test for deportation in Section 3(5)(a) of the 1971 Immigration Act is that the Secretary of State deems the person's deportation to be conducive to the public good. That test can be met on the basis of the person's past conduct alone, irrespective of whether or not they represent a continuing danger to the community.
Let us take the hypothetical example of someone who has committed a serious offence and has served a lengthy custodial sentence well in excess of the two-year threshold. It may be that on their release they are no longer a danger to the community. Indeed, if the person concerned has been given a life sentence, the Parole Board will not recommend the person's release if they consider that he or she is still a danger to the community. We might nevertheless wish to deport that person, and, if we are unable to do so for human rights reasons, we would wish to be able to designate them under this part of the Bill. In the case of someone who is excluded from refugee status by virtue of Article 1F, the point may be even more starkly defined.
Where a person is guilty of a crime against peace, a war crime or a crime against humanity, their ability to commit the crime is quite often linked to their status or position in the country where the crime occurred. Once they are in the United Kingdom, they will normally have lost that status or position, and, even if they have not, they are very unlikely to constitute a danger to the community of the United Kingdom. For example, Mr A—mentioned by the noble Lord—the founder member of the Sudanese Justice and Equality Movement whose case I mentioned on Report, posed no danger to the community of the United Kingdom. Again, it is likely that we would wish to deport such a person. If we are unable to do so for a human rights reason, we would want to be able to designate them under these provisions.
The Government's position is that it should be possible to deny foreign criminals as defined by this clause immigration leave, and prevent them establishing ties which may make their removal at a later date, when things change, more difficult, whether or not they constitute a current danger to the community. Their past actions alone would be sufficient grounds for taking deportation action. However, since they cannot be deported at the present time, we say that the same test—that is, the individual's past actions, without any attempt to assess whether or not they continue to pose a danger to the community—should apply to designation for the purposes of special immigration status.
I am aware that the provisions of Section 72 of the Nationality, Immigration and Asylum Act 2002 require there to be consideration of whether the person constitutes a danger to the community. While we have drawn on the provisions of that section to set the threshold for some of the conditions which may result in a person being designated under Part 10, the two are not an exact parallel. It is important to note that their position is very different from those who would be liable for designation for special immigration status.
Section 72 applies for the purpose of the construction of Article 33(2) of the Refugee Convention, and it is Article 33(2) which requires this assessment to be made. The reason for that is that Article 33(2) permits signatory states to return a refugee to a country where he fears persecution. That is obviously a serious step to take, which is why Article 33(2) requires that the refugee must not only have been convicted of a particularly serious crime but must constitute a danger to the community in the country of refuge in order for removal to take place.
In the case of special immigration status, we would not be removing an individual to face possible persecution. The status is designed for those who we accept can not be removed for human rights reasons and does not apply to recognised refugees. That is fundamentally different from the application of Article 33(2).
I turn to Amendment No. 46 relating to the introduction of an appeal mechanism. I have technical concerns about the operation of the proposed appeal arrangements, which I will cover briefly before turning to issue of principle.
First, any appeal against certification would be to the Asylum and Immigration Tribunal. There is no provision for an appeal to be transferred to the Special Immigration Appeals Commission, as might happen in the case of an appeal against an immigration decision.
Secondly, as drafted, the amendment provides for an appeal against certification and for an appeal against a refusal to revoke the certificate. There would be nothing to prevent someone who had been designated appealing against certification, losing that appeal, and applying immediately for the certificate to be revoked with a further right of appeal if that is refused. If that appeal is also unsuccessful, there would be nothing to prevent a further application for the certificate to be revoked. Even though we have said that we expect the number of cases where the new power will be used to be small, the possibility of successive applications and appeals represents a potential waste of resources in terms of time, money and people.
It has been the Government's position throughout the passage of the Bill that a free-standing right of appeal is unnecessary and that judicial review provides an appropriate vehicle for challenging any decision to designate. Under the provisions as currently drafted, once the Bill comes into force a person who has been designated will be able to bring a judicial review on the grounds that the decision to designate is unlawful, unreasonable, procedurally unfair or incompatible with their ECHR rights. In our view, this provides an adequate safeguard and is preferable to introducing a new appeal mechanism with multiple layers of litigation.
My principal objection is not to the deficiencies of the proposed appeal mechanism. The Government have made their position clear: we believe it should be possible to designate people with the new status simply on the grounds of what they have done in the past, and that it is unhelpful and unnecessary to introduce the additional requirement to assess whether or not they currently represent a danger to the community. On that basis, I ask the noble Lord to withdraw his amendments.
My Lords, the Minister addressed the question of appeals as if Amendment No. 46 referred to appeals against designation whereas it is, of course, related to Amendment No. 45, which provides for certification. The appeal in Amendment No. 46 deals with the appeals on the Secretary of State's certification in Amendment No. 45. I hope that the Minister will recognise that his argument did not apply pari passu to what we are proposing under these two amendments.
All that is not really the point because we are talking about whether there should be that procedure for certification in addition to any other conditions that are imposed. I must say that we have not been successful in trying to compromise, as I had hoped.
The Minister did not address what I had said about families, particularly wives and children, who are left in a state of limbo indefinitely under the proposals in the Bill. The Minister knows that we have had reason to complain several times because his assurances that they had power to appeal, and that they would be considered in the normal way, have not been satisfied in practice. The four wives and children whose applications were treated in line with those of the Afghan hijackers—we are using them as examples and not as exclusive cases that we mean the decision to rest on—have not been considered properly as individual applicants but are still waiting after eight years for several cases to be considered.
I am dissatisfied with the Minister's answer and, although I accept that the drafting is not perfect, I wish to test the opinion of the House.
moved Amendment No. 47:
Clause 136, page 102, line 4, leave out from "action"" to end of line 6 and insert "means—
(a) the withholding of services as a prison officer; or(b) any action that would be likely to put at risk the safety of any person (whether a prisoner, a person working at or visiting a prison, a person working with prisoners or a member of the public).""
My Lords, we come to what can best be described as the Earl Onslow amendment. The noble Earl has enlivened and instructed our proceedings on the Bill, and I am glad to be able to table this amendment. At rather a late hour on Report, we accepted in principle the amendment tabled by the noble Earl to alter the definition of industrial action in Clause 136. As, alas, the Government found some technical matters that were not to our taste, I undertook to bring forward a revised version for Third Reading.
The noble Earl's amendment proposed changing the definition of industrial action from action that affects,
"the normal working of a prison" to action that puts,
"the safety of prisoners, staff or the public at risk".
I want to confirm that safety considerations have always been the Government's primary concern and motivation behind these provisions, and that is why we welcomed the substance of the noble Earl's amendment. We have tabled the amendment as it its now drafted to resolve any uncertainties resulting from generic terms such as "staff", but in substance the amendment reflects the proposals of the noble Earl. It redefines industrial action as,
"the withholding of services as a prison officer or ... any action that would be likely to put at risk the safety of any person".
For the avoidance of doubt, the revised definition includes examples of categories of people likely to be put at risk. I commend the amendment to the House and beg to move.
My Lords, earlier in the debate I used the word "chinkette" of light. This is a great flash of sunlight from the noble Lord. One is always tempted on occasions such as this to refer to sinners that repenteth and all the rest of it. What I must do is say thank you to the noble Lord. What I am even more impressed by is that the amendment was moved on my behalf by my noble friend Lord Bridgeman on my Front Bench, without even putting forward the argument. He just said, "I beg to move", and the Minister was so moved by that one line that he agreed to it. All I can say is thank you very much indeed.
moved Amendment No. 48:
After Clause 137, insert the following new Clause—
"Police and prison service pay: Secretary of State's power to make regulations
Regulations made by the Secretary of State—
(a) specified in section 62 of the Police Act 1996 (c. 16) (functions of the board with respect to regulations) which do not follow the recommendations of the Police Negotiation Board as established by section 16 of that Act, or(b) under section 128 of the Criminal Justice and Public Order Act 1994 (c. 33) (pay and related conditions) which do not follow the recommendations of the Prison Service Pay Review Board as established by that section, may not be made until laid before, and approved by resolution of, the House of Commons."
My Lords, this amendment, or something similar to it, was moved in Committee and it has changed only marginally since then in that we have been advised that we cannot include the Armed Forces in this Bill, even though they are in the same position as the Prison Service and the police. We have therefore excluded them from consideration at this time. However, the principle remains the same: where an independent review body makes a recommendation on pay for either the Prison Service or police, it should be a requirement that, if the Government are not going to accept those recommendations, they are obliged to bring the matter to Parliament.
The three services—the Armed Forces, the Prison Service and the police—are all the subjects, or will be by the time this legislation goes through, of mandatory no-strike agreements. Therefore, there is an onus on the Government to ensure that their interests, which are held by the independent review bodies, are protected. The review bodies already have a clear remit as to what they have to take into account in coming to their decisions. That includes affordability, as defined by their funding departments. The Minister will recall that last year the Government staged the implementation of a pay review. This was the first time that they had not followed the review body's recommendations. We argue that the consequence of short-changing members of these vital services is very serious indeed. The actions last year resulted in the threatened prison officers' strike later this month, and the highly unusual police march on Parliament. The Government need to put themselves in a position of explaining their actions to Members of Parliament and having those actions approved by them by a formal resolution. I beg to move.
My Lords, I will speak specifically about police pay and assure the noble Baroness that we will be supporting this amendment. Independent arbiters, as we have heard, awarded a 2.5 per cent pay award and the Home Secretary can have been left in no doubt about the anger of police officers on the day of their massively successful, well-ordered and well-mannered protest march on
The office of constable is a protected one and has been for almost 100 years since police officers accepted a no-strike clause. How that office has been badly used by the Home Secretary's decision to override years of clear understanding on all sides that an agreement made by an independent body should be binding. It always was and it always should be. When I was a member of the Police Negotiating Board, some years ago in the time of the previous Government and this one, we all worked hard to maintain that position. It is desperately sad for me to see how this long-standing agreement has been completely overturned without any consultation and absolutely no real understanding of the views of front-line police officers who, day to day, give their services to protect us all.
This is what a number of them have told me: they have expressed sheer disgust and outrage at the Home Secretary's decision not to award a full amount immediately. They mention the amount that MPs pay themselves; fat cats in the City, about whom we heard some lively questions put to the Minister today at Question Time; and the restrictions on their private life when they are off duty. Effectively, a police officer is always on duty. Officers do lots of horrible work. They are hands-on at accidents, deaths and assaults on themselves and others. They really do not feel that they are getting thanks for doing a difficult and sometimes dangerous job. In Committee, my noble friend Lord Thomas of Gresford said:
"The appointment of a pay review body has been used over and again to take the sting out of an industrial conflict. It has very often been the price that the Government or a state body have paid for seeing an end to industrial conflict. They ought not in our view to undermine those provisions. That is why we support the amendment".—[Hansard, 10/3/08; col. 1367.]
We continue to support that today.
My Lords, one cannot take away somebody's right to do something and then not put in place binding arbitration. My noble friend Lady Hanham mentioned the disturbing sight of the police demonstrating. That sight terrified me because it brings the forces of law into political play. That is very dangerous. One of the reasons for the 1688 glorious revolution was the fear of standing armies. That is the flipside of the coin when police or soldiery take political action. For that reason, above all, with the police, the Prison Service and the Army, the Government ought to accept binding arbitration. If they are not going to accept binding arbitration, they should explain to the House of Commons why they have not done so. To think otherwise is extremely dangerous.
My Lords, I declare an interest as the former president of the Police Superintendents' Association and a recipient of police pay and a police pension. I have every sympathy with the amendment and agree entirely with the views of the noble Baroness, Lady Hanham, and the noble Baroness, Lady Harris. It gives me no pleasure to say this because I am a government Peer. Having said that, the amendment seems to be a matter for resolution in the House of Commons, not this House. For that reason alone, I shall abstain. I would have voted against the amendment. It is a financial matter and should properly be dealt with in the other place. I shall abstain on this basis, but I agree entirely that the Government have not taken the high ground on this. The right to strike was taken away, quite rightly, in 1919. The police are in a special position as are the other services. We should value that and honour independent arbitration. For that reason, I shall abstain.
My Lords, in 1919 the Police Act of that year removed the right to strike from the police. One of the reasons for doing that was that the police had indeed gone on strike in various places, notably London and Liverpool, but in a number of other urban areas as well. This country was faced with the vision and reality of troops with fixed bayonets going onto the streets of Liverpool and a warship sailing up the Mersey and training its guns on the rioters on the shore in Liverpool. That is the sort of horror story that the 1919 Act sought to remove. We have moved very fast away from that to a position where the police serve this country loyally and steadfastly, despite the fact that their pay and allowances have oscillated over the years.
In 1979 the Lord Edmund-Davies review, looking at the parlous state then of police pay and allowances, brought in for the first time the concept of a basket of occupations, as it was called in those days, against which police pay and allowances should be measured on an annual basis. From that time until very recently, police pay and allowances have been good and have been reflected in the way recruiting is carried out. I will set out what has happened quite recently. In 1979 there was the Lord Edmund-Davies review, with the basket of occupations. That basket of occupations was changed arbitrarily by the Government in, I think, 2006, changing the occupational constitution of that basket to something which, quite clearly, would produce a lower pay review. That review, on the most recent sounding, produced a 2.8 per cent increase. That was not good enough for the Government, who went to arbitration. Both sides signed up to binding arbitration and the arbitration level, if I remember rightly, was 2.5 per cent. The Government settled at 1.9 per cent. We are really slicing this; the principle is not about the amounts involved, which were quite small. They would have been nice to have, but it was not that much of an issue. The issue was the fact that the principle, which has already been spoken about very eloquently in your Lordships' House, had been breached.
The Government's action on this last occasion drove a coach and four straight through all those principles of trust, respect and support, which a uniformed service has had and needs to have in the Government of this country. The police feel deeply let down and believe that they have been thrown to one side. I am sorry to give marginal percentage points, but the 1.9 per cent sits very uncomfortably with the 2.5 per cent that was given to police support staff. So, in this philosophical way, you have police officers walking on the streets with civilian police support officers who are getting more money because they have the right to strike. The principle speaks for itself. I warmly and wholeheartedly support the amendment.
My Lords, first, perhaps I may say how I much welcome the cameo appearance of the noble Baroness, Lady Hanham, on this Bill. Clearly, I welcome the opportunity to debate this matter again, which we last debated in Committee. I also pay tribute to the outstanding work of the police, the prison officers and the Armed Forces, although for the reasons stated by the noble Baroness her amendment is limited to police and prison officers, and does not refer to the Armed Forces.
Yes, these very key workers deserve a fair and effective pay system mechanism, which serves them and the taxpayer well. That is very simply the Government's position. Although the focus of the amendment and the debate is on the police and prison officers, they are not alone in having independent pay machinery which makes recommendations to Ministers. I emphasise the words, "recommendations to Ministers". This process has been developed over more than 35 years and has for a number of workforces, including groups without the right to take industrial action, stood the test of time and has been seen to deliver a fair and effective mechanism for determining pay awards.
However, it has always been clear that the Government retain discretion on whether to implement those recommendations. Both this Government and previous Governments have overseen such a system. Looking at the record, for instance, of the previous Government in relation to awards by independent pay review bodies, it is clear that they have used staging many times. I see in your Lordships' House at least two former distinguished Secretaries of State for Health. The doctors and dentists pay review body pay awards were staged four times—in 1984, 1990, 1991 and 1996. The pay award was deferred twice—in 1985 and 1986. In 1993, a pay limit was imposed. For nurses, the pay award was staged in 1985, 1990 and 1991.
My Lords, those people all have the right to industrial action. That is the difference. It is as simple and as clear as that. I am delighted when the present Government use the Conservative Government to pray in aid for their errors. On occasions, my Government made just as many errors as the present one. There is no need to pray in aid their errors.
My Lords, I very much fear that. I would caution that party against it. Of course, the noble Earl is right that some of the pay groups I have mentioned are not subject to restrictions on taking industrial action. That is one distinction. But, none the less, I seek to demonstrate that the party opposite has not been reluctant to stage pay awards in the light of recommendations made by independent review bodies. The fact is that the noble Earl might have given me just one or two more seconds to list the times that pay awards were staged in relation to the Armed Forces Pay Review Body—in 1984, 1990, 1994 and 1996. The previous Government deferred an Armed Forces Pay Review Body recommendation once and in 1993 a pay limit was imposed. I could go on.
My Lords, we were told by the noble Lord, Lord Dear, that this was a binding arbitration and that there was an award of 2.5 per cent, but that the Government were prepared to pay only 1.9 per cent. Was there ever a situation when the Conservative Government failed to abide by a binding arbitration?
My Lords, I think that it is for them to answer that particular point. I am simply seeking to demonstrate to your Lordships' House that Governments of different complexions have found it necessary sometimes to stage awards where wider considerations have come into force. That is what has happened. This does not undermine the integrity of the process of independent review bodies in the least. But, ultimately, the Government have to make those decisions.
Obviously we have considered the amendment and the impact that it would have. Our conclusion is that the Government have an established responsibility for managing public finances. We do not think that it is appropriate to subject to parliamentary approval the Government's discretion to regulate an important factor in those finances. Parliament already has the overriding oversight of departmental expenditure, which we think gets the balance right. But, at the end of the day, the Government must reserve the discretion to make the final decision, which is why we cannot support the noble Baroness's amendment.
My Lords, I cannot say that I am totally surprised at the Minister's response. I am equally not totally surprised at the fact that he has tried to invoke the Government of some 10 years ago. We have had quite a lot of this Government and, probably, we can rely now on their history on legislation. I have nothing more to say on this amendment.
My Lords, as I was saying before the Minister made that point, it is under this Government that this legislation is being put into place and it is their actions with which we are dealing today. These two bodies cannot strike. There is a review body, which always has access to information before it makes its recommendations. If the Government seek to change that, as the Minister says, they have discretion. In the light of what they have done, we say that that discretion is too great. Therefore, it should be controlled and made responsible to Parliament. I do not accept the Minister's reply and I wish to test the opinion of the House.
moved Amendment No. 50:
Clause 145, page 110, line 36, at end insert—
"(8) Her Majesty may by Order in Council extend any provision made by virtue of subsection (4)(b), with such modifications as may appear to Her Majesty to be appropriate, to the Isle of Man or any British overseas territory.
(9) The power under subsection (8) includes power to make supplementary, incidental, consequential, transitory, transitional or saving provision.
(10) Subsection (8) does not apply in relation to amendments of the Armed Forces Act 2006 (c. 52)."
My Lords, these are technical amendments which ensure that any consequential amendments that need to be made to other enactments can be extended to the Isle of Man and British Overseas Territories in appropriate cases. I beg to move.
moved Amendment No. 52:
Clause 150, page 113, line 15, at end insert—
"(4A) Sections 117 to 119 come into force—
(a) in relation to English NHS premises, on such day as the Secretary of State may by order appoint, and(b) in relation to Welsh NHS premises, on such day as the Welsh Ministers may by order appoint."
On Question, amendment agreed to.
My Lords, this is a minor drafting amendment to Schedule 5 to the Bill which inserts new Schedule 15A to the Criminal Justice Act 2003. Paragraph 42 of new Schedule 15A to the Criminal Justice Act 2003 refers to the Firearms (Northern Ireland) Order 1981. The reference should be to the 2004 order, and the amendment makes this correction. I beg to move.
moved Amendment No. 54:
Schedule 25, page 271, leave out lines 17 to 35 and insert—
"Power to dismiss certain appeals following references by the CCRC
2 After section 25B insert—
"Appeals following references by the CCRC
25C Power to dismiss certain appeals following references by the CCRC
(2) Notwithstanding anything in section 12, 21 or 25 of this Act, the Appeal Court may dismiss the appeal if—
(a) the only ground for allowing it would be that there has been a development in the law since the date of the conviction or finding that is the subject of the appeal, and(b) the condition in subsection (3) is met.
(3) The condition in this subsection is that if—
(a) the reference had not been made, but(b) the appellant had made (and had been entitled to make) an application for an extension of time within which to seek leave to appeal on the ground of the development in the law,the Court would not think it appropriate to grant the application by exercising the power conferred by section 9(3).""
On Question, amendment agreed to.
Schedule 27 [Transitory, transitional and saving provisions]:
moved Amendments Nos. 55 and 56:
Schedule 27, page 304, line 4, leave out paragraph 14 and insert—
"14 The amendment made by section 41 applies in relation to an appeal under Part 1 of the Criminal Appeal Act 1968 (c. 19) if the reference by the Criminal Cases Review Commission is made on or after the date on which that section comes into force."
Schedule 27, page 304, line 23, leave out paragraph 15 and insert—
"15 The amendment made by section 42 applies in relation to an appeal under Part 1 of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) if the reference by the Criminal Cases Review Commission is made on or after the date on which that section comes into force."
On Question, amendments agreed to.
My Lords, I beg to move that this Bill do now pass.
Moved accordingly, and, on Question, Bill passed, and returned to the Commons with amendments.