Criminal Justice and Immigration Bill

– in a Public Bill Committee on 16th October 2007.

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[Sir Nicholas Winterton in the Chair]

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield 10:30 am, 16th October 2007

I welcome hon. Members to this first sitting of the Public Bill Committee on the Criminal Justice and Immigration Bill. Although I have already done so in the Programming Sub-Committee, I welcome in particular those new hon. Members who have been thrown into the lions’ den at an early stage of their parliamentary career—the hon. Members for Ealing, Southall and for Sedgefield. I hope that they enjoy our proceedings.

Before we begin, I have several preliminary domestic announcements to make. I am always pleased that hon. Members are as comfortable as possible so, if they wish, they may remove their jackets during our sittings. I request them to ensure that their mobile telephones, pagers and other electronic devices that make noise are turned off or switched to silent mode during sittings. If I hear any intervention from such gadgets, the look on my face will tell all.

I remind the Committee that copies of the money resolution in connection with the Bill are available in the room. I also remind hon. Members that adequate notice should be given of amendments. As a general rule, I and my fellow Chairman, Mr. O’Hara—who happens to be in the room—do not intend to call starred amendments, including any that might be reached during an afternoon sitting of the Committee. I hope that the lead spokesmen for Opposition parties, in particular, will take note of that.

We are still in the very early days of taking oral evidence in Public Bill Committee proceedings, so it might help if I explain briefly what is proposed so that we can all be clear what we are about and how we should proceed. The Committee will first be asked to consider the programme motion on the amendment paper on which debate is limited to half an hour. We shall then proceed to a motion to report written evidence and a further motion to permit the Committee to deliberate in private in advance of the oral evidence sessions, which I hope that we can take formally. Assuming that that motion has been agreed, the Committee will then move into private session. After it has deliberated, witnesses and members of the public will be invited back into the room and our oral evidence session will commence. If the Committee agrees to the programme motion, it will hear oral evidence today and on Thursday before reverting next week to the more familiar proceedings of clause by clause scrutiny of the Bill. I call the Minister to move the programme motion.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I beg to move,

That —

(1) the Committee shall (in addition to its first meeting at 10.30 a.m. on Tuesday 16th October) meet—

(a) at 4.00 p.m. on Tuesday 16th October;

(b) at 9.00 a.m. and 1.00 p.m. on Thursday 18th October;

(c) at 10.30 a.m. and 4.00 p.m. on Tuesday 23rd October;

(d) at 9.00 a.m. and 1.00 p.m. on Thursday 25th October;

(e) at 10.30 a.m. and 4.00 p.m. on Tuesday 20th November;

(f) at 9.00 a.m. and 1.00 p.m. on Thursday 22nd November;

(g) at 10.30 a.m. and 4.00 p.m. on Tuesday 27th November;

(h) at 9.00 a.m. and 1.00 p.m. on Thursday 29th November;

(2) the Committee shall hear oral evidence in accordance with the following table:

TABLE

Date

Time

Witness

Tuesday 16th October

Until no later than 1.00 p.m.

Ministry of Justice; Home Office

Tuesday 16th October

Until no later than 5.15 p.m.

Magistrates’ Association; Probation Boards Association

Tuesday 16th October

Until no later than 6.15 p.m.

Police Federation of England and Wales

Tuesday 16th October

Until no later than 7.00 p.m.

Stonewall

Thursday 18th October

Until no later than 10.25 a.m.

Youth Justice Board; Children’s Society

Thursday 18th October

Until no later than 1.40 p.m.

Prison and Probation Ombudsman

Thursday 18th October

Until no later than 2.40 p.m.

Liberty

Thursday 18th October

Until no later than 4.00 p.m.

Local Government Association

(3) the proceedings on consideration of the Bill in Committee shall be taken in the following order: Clause 1; Schedule 1; Clause 2; Schedule 2; Clause 3; Schedule 3; Clauses 4 to 6; Schedule 4; Clauses 7 to 23; Schedule 5; Clauses 24 to 29; Schedule 6; Clause 30; Schedule 7; Clauses 31 to 35; Schedule 8; Clauses 36 to 48; Schedule 9; Clauses 49 and 50; Schedule 10; Clauses 51 to 53; Schedule 11; Clause 54; Schedule 12; Clauses 55 and 56; Schedule 13; Clauses 57 to 72; Schedule 14; Clauses 73 and 74; Schedule 15; Clauses 75 to 80; Schedule 16; Clauses 81 to 103; Schedule 17; Clauses 104 to 107; Schedule 18; Clauses 108 to 111; Schedule 19; Clause 112; Schedule 20; Clauses 113 to 124; Schedules 21 and 22; Clause 125; Schedule 23; Clauses 126 to 129; new Clauses; new Schedules; remaining proceedings on the Bill;

(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 7.00 p.m. on Thursday 29th November.

I welcome you, Sir Nicholas, and your co-Chair, Mr. O’Hara, to the Committee. You and I have served before as Chairman and Minister in my previous incarnation as Minister of State for Northern Ireland. You will recall that, on that occasion, the Northern Ireland (Offences) Bill received the unanimous support of myself and the Whip, and no one else on the Committee. However, I am sure that this Bill’s  objectives will achieve a much greater consensus than that, and I look forward to our debate in Committee today.

We had, I hope, a good discussion on Second Reading and in the Programming Sub-Committee when the programme motion was agreed by hon. Members. I am pleased to see that, perhaps as part of a new consensus of government, the hon. Members for Broxbourne, for Ruislip-Northwood and for Kettering are sitting on the Government Benches, and I look forward to their votes with the Government on the matter. I am sure that the hon. Member for Ruislip-Northwood, who has the Whip, will not feel at all compromised by those matters in due course.

On Second Reading the hon. and learned Member for Harborough made some valid points that he will consider in Committee. As I recall, he unfairly declared the Bill to be rather like a plum-duff. Perhaps because of my working class background, I did not eat many plum-duffs in my childhood, but I am sure that it will prove to be a satisfactory meal for us all during the course of the debate.

The programme motion provides two full days for oral evidence, which is a new concept. This is the first opportunity that I have had, during the 20 or so Bills that I have taken through as a Minister or Whip, to see this new operation working, and I genuinely look forward to seeing how we can help to support the passage of the Bill and get some views from members of the Committee. I am particularly looking forward to working with my colleagues the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston and the Under-Secretary of State for the Home Department, my hon. Friend the Member for Gedling. We will be giving evidence very shortly to the Committee on those matters.

There is provision in the programme motion for nine other witnesses to give evidence to the Committee to help us with out deliberations on the Bill. As Members will see, the Magistrates Association, the Probation Boards Association, the police, Stonewall, Liberty, the Local Government Association, the Youth Justice Board and the prisons and probation ombudsman will all give evidence.

I should inform the Committee that my hon. Friend the Member for Tooting and the hon. Member for Ruislip-Northwood have discussed whether we can add additional witnesses, and particular mention was made of the need to include the Evangelical Alliance to give representations to the Committee on some clauses that will certainly create discussion and have already elicited an interesting level of correspondence to hon. Members. I am happy to agree to that suggestion if the Committee so wishes. If so, I will bring back a motion either this afternoon or on Thursday morning that will add the Evangelical Alliance to the list of witnesses and allow them to make representations accordingly.

I also offer my personal welcome to my hon. Friends the Members for Ealing, Southall and for Sedgefield. My hon. Friend will know that it has been a considerable time since a Member for Sedgefield last sat on a Committee of this nature. I know that both hon. Members will make valid contributions and, I hope, will view this as a valuable experience in coming to grips with some of the day-to-day matters of scrutiny in the House.

After we have taken oral evidence, the programme motion provides for 12 sittings for the usual, detailed, clause-by-clause consideration of the Bill. Because the Bill’s carry-over motion for the House has already been approved and the Gracious Speech will take place on 6 November, we will take a break for Prorogation and resume on 20 November, with the current end date of 29 November for the completion of the Committee’s work. While that is a relatively short amount of time, I hope that the Committee will work to that timetable and will be able to detail how it wishes to handle the Bill, according to the demands of the Opposition. The Government are happy to go at whatever speed Opposition Members—both official Opposition Members and the hon. Members for Cambridge and for Somerton and Frome—wish to participate.

To assist the scrutiny of the Bill, I wrote to you yesterday, Sir Nicholas, giving details of amendments for consideration in Committee that have been tabled before you today. I can give an assurance—I know that this is an issue with which you have some concerns—that, whenever possible, I will give as much notice as possible to the Committee of any Government amendments that may come forward. There are still some outstanding policy issues that my right hon. Friend the Secretary of State for Justice and Lord Chancellor gave notice of on Second Reading. We will deal with those, prior to the tabling in Committee, as soon as possible after the drafting instructions have been completed, so that hon. Members have an opportunity for further scrutiny.

Finally, it may help all members of the Committee if I advise them that we have divided the legislation broadly into select parts for myself and my colleagues to deal with. Parts 1 and 2 of the Bill will be dealt with largely by me; parts 3 to 6 of the Bill will be taken by my hon. Friend the Under-Secretary of State for Justice; and my hon. Friend the Under-Secretary of State for the Home Department will lead on the Home Office provisions contained in parts 7 to 11.

I look forward to a constructive and searching debate and to hon. Members’ contributions to the Committee. Given that all parties accepted the programme motion during discussions in the Programming Sub-Committee last Thursday morning, I commend the motion to the Committee.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I am sure that members of the Committee are grateful to the Minister for the reasonable and constructive way in which he has set out the contents of the programme motion.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I join the Minister in welcoming you, Sir Nicholas, and your colleague, Mr.O’Hara, as Chairmen, both of the evidence sessions and of the main Bill Committee, starting next week. I also welcome the Minister and his ministerial colleagues. I have done business with two of them, but not with the Under-Secretary of State for Justice, and I look forward to dealing with her arguments as we progress.

I, too, join the Minister in welcoming the two new Members of Parliament to the Committee. They are under no disadvantage whatever, because we are all new to this procedure. Whether it is any use we will  shortly discover. I have some private doubts as to the usefulness of the arrangement—I say that these are private doubts because we are in Committee, so no one is listening—because the Public Bill Committee starts next week and there is, therefore, very little time between the closing of the evidence sessions on Thursday and the beginning of the Committee on Tuesday, for the Government to do anything about the evidence that they have received.

It would be ridiculous and unduly cynical of me to suggest that that was the entire point of the exercise and that this was a release valve system to allow outside bodies to think that they are having some input into the construction of the pudding, and for the Government to doff their cap to democracy, then move on and do precisely as they always intended to do. We shall see; I know that the Minister of State, Ministry of Justice is a man of immense good will and will seek to accommodate the criticisms, be they constructive or otherwise, that emanate from my party’s benches and those of the Liberal Democrats during the course of proceedings. Needless to say, I am pleased that he is contemplating, through discussions between the hon. Member for Tooting and my hon. Friend the Member for Ruislip-Northwood, adducing more evidence during the course of proceedings, namely from the Evangelical Alliance.

I made some suggestions to the Government in the summer about witnesses whom I thought were appropriate for this hearing. I cannot understand it, but, either the letter must have got lost or they did not find my suggestions entirely happy ones. I would have thought that it would have been useful in such a Bill to have heard evidence from, if not the Lord Chief Justice, perhaps his deputy, Sir Igor Judge, and from representatives from the council of circuit judges. That is, the Crown court judges, who have to deal, along with the magistrates, from whom we are hearing, with the bulk of first instance criminal cases.

I described the Bill on First Reading as a plum-duff. I could use any other suitable metaphor to demonstrate that it has been pulled together without a theme; no central argument seems to push through its core. It is simply a collection of nice ideas, in the Government’s thinking, which have been pulled together under one title, the Criminal Justice and Immigration Bill. It seems to me that there are a number of issues in the Bill that should have been separated into different pieces of legislation. That would embarrass the Government because it would take the number of Bills from this Department and its predecessor into the stratosphere. I do not feel that it will add to public safety or reduce reoffending. However, we will discuss that in due course.

I am, none the less, content for the moment with the programme motion. I am sure that my hon. Friends sitting on what the Minister described as the Government Benches are merely rehearsing for what will be the inevitable—

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I said that I was looking forward to the hon. Lady’s arguments. If they are at that level, I am looking forward to them even more.

Hon. Members from all sides welcome this opportunity to expose the incompetence and uselessness of Government legislation of any variety. We cherish, and indeed relish, the opportunity to engage in argument, as I am sure the hon. Member for Somerton and Frome will agree, in the most calm, cautious, thoughtful and considered way over the next few very brief weeks. Let us enjoy it, but let us try to produce some decent legislation, rather than just churn out the conveyor belt of early-day motion-style legislation, which achieves nothing except a headline in the occasional tabloid newspaper.

With those happy remarks, on behalf of all of my parliamentary colleagues from the official Opposition, I welcome you, Sir Nicholas, and the ministerial team. I trust that we will have a constructive few weeks doing business.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I too welcome you to the Chair of this Committee, Sir Nicholas, along with your co-Chairman, Mr. O’Hara. I have worked with both of you in the Chair and know that you will keep excellent order and maintain a high level of scrutiny.

There has been a lot of talk, on Second Reading and today, about the number of criminal justice and immigration Bills that we have dealt with. It has been my sad misfortune, over 10 years, to have participated in most of them. I feel that I might have heard every possible argument on criminal justice that it is possible to adduce. The hon. and learned Member for Harborough said that Government legislation is all useless and incompetent. It is not all useless and incompetent; it is just mostly useless and incompetent. Our job is to identify and promote those parts that are not useless and incompetent and to remove some of the surplus to another place.

I am grateful to the Minister and his team, who I also welcome to the Committee, for having listened to what I said about the programme motion on Second Reading, and for arranging an alternative to be agreed by the House.

I, too, am new to the procedure of Public Bill Committees taking evidence and I echo some of what the hon. and learned Gentleman said. If Public Bill Committees taking evidence is to mean anything, it is important, first, that we hear from the people who have something that it is important that we hear and, secondly, that we have the opportunity to deliberate on that information to see whether it has relevance for what we do later.

I must say to the Government that it would have been far better had we not started any of the deliberative sittings until after Prorogation. We were quite clear that we would have evidence sessions before that. Given the unique timing of having Prorogation in the middle, it would have been better to have the opportunity of carefully considering the evidence over that period, which fortuitously we have in the middle, and of starting the line-by-line scrutiny of the Bill afterwards. If the evidence sessions are to work, who  the Committee hears cannot be in the hands of the Government. I know that there have been talks between the hon. Members for Tooting and for Ruislip-Northwood. The hon. Member for Ruislip-Northwood was kind enough to speak to me in the Tea Room yesterday and to give me the benefit of some of his thoughts.

We need a more formal arrangement outside of the Committee, which would enable us to discuss which witnesses it would be appropriate to call, and to take that advice from a wider section of the Committee. When we take evidence, the Committee does not act as a hierarchy but as a Select Committee. Therefore it would be open for all hon. Members to suggest who might usefully give evidence. That structure is not in place at the moment and as a result, although I have no doubt as to the value of the evidence that we will hear, there are certainly people whom my hon. Friend the Member for Cambridge and I could suggest as useful witnesses. The hon. and learned Member for Harborough has already suggested people from the judiciary whom it would be useful to hear from, but there is a wider spectrum of people who will be affected by the Bill and whom we should consider.

Perhaps, Sir Nicholas, we can find a way to examine the witnesses whom the Committee is to call and to take a view on whom we would like to hear from. If the consequence of that is that we have more evidence-taking sessions before Prorogation, and the line-by-line scrutiny takes place after Prorogation, to me that is no bad thing.

There are very important matters for consideration. I am going to forswear any pudding metaphors, but the Bill covers a wide range of issues. There is no—I think the current term is “narrative”—that links many of those issues, and it is therefore important to give each and every part of the Bill our careful scrutiny.

There are large parts of the legislation with which I broadly agree, in principle if not in detail. There are some areas where I will strenuously disagree with the Minister, but that is something that the Committee will examine over the weeks to come and I personally look forward to it.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

May I help the Committee by responding to one or two of the points that the hon. Member for Somerton and Frome has raised? Of course matters relating to those witnesses who come before the Committee can be discussed and agreed upon across the House, outside the Committee. Such matters must then be put to the Programming Sub-Committee which would endorse any other proposals. The Programming Sub-Committee would then report to this Committee, which, as a whole, could agree upon and endorse its recommendations. There is an opportunity for flexibility and I hope that that gives some reassurance. If the Minister would like to intervene at this stage I am happy for him to do so.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I should like to respond to some of the points raised as I would not want the Committee to take all of them at face value. There is a strong Government defence for some of those issues.

First, I say to the hon. and learned Member for Harborough that any witness who gives evidence to the Committee will have the opportunity to raise points  with the Government, the Opposition and individual Labour Members, in order to influence the Bill’s progress. Some issues may be raised during evidence sessions that we are not able to act upon during the Bill’s initial consideration. However, the hon. and learned Gentleman will know that there is not only the Committee stage, there is also Report, proceedings in the other place, and Third Reading—there is a whole range of mechanisms through which we can absorb the views that are put. If the Government and hon. Members believe that the points raised are valid, we will consider and accept them.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

My main concern is that the evidence session is timetabled to finish this Thursday and the Public Bill Committee to start next Tuesday. Would it not be more sensible to allow a period of reflection between the end of the evidence sessions and the beginning of the Public Bill Committee? If one started the Bill Committee after the start of the new Session, the Government would have the advantage. I am not suggesting that they would necessarily reach any different conclusions—that would be a hope too far—but they would at least have the opportunity of being seen to have that time to reflect on the evidence. Therefore, my gentle suggestion is that Ministers spend next week at the Ministry of Justice and the Home Office reflecting on what they have heard this week rather than going through the line-by-line discussion of the Bill.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I am grateful for the hon. Gentleman’s suggestion. However, that suggestion was not put to the Programming Sub-Committee or indeed to the usual channels before their discussions. I commended the programme motion before the Committee today. I say to the hon. and learned Gentleman that the purpose of these evidence sessions, as outlined by the Leader of the House, is to ensure that we have some wider debate on such points.

I will make two other quick points. There was a suggestion that the Opposition had not been consulted about the individuals who form the Committee and that the hon. and learned Gentleman’s letter had got lost in the post. He will know that I wrote to him about such matters before the recess, and he will know that my hon. Friend the Member for Tooting discussed the matter with the official Opposition. He will also know, if he looks at his letter and file, that as a result of his representations, the Police Federation and the Probation Boards Association have been added to the list of witnesses for the Committee in the programme motion. The time available to debate the programme motion prevents me from going any further now.

The hon. and learned Gentleman will know that we also approached the judiciary on his suggestion to see if they wished to participate in evidence session. The judiciary declined to take part because of the party political nature of some of the discussions that might take place. He will reflect on the fact that we have considered such matters and, in doing so, have accepted some of his suggestions. I am very happy to do that because my hon. Friend the Member for Tooting was exemplary in the way that he held discussions with colleagues beforehand, as indeed were my officials, to ensure that we had a full replication of the wishes of the Committee.

I would say the same, without being too hasty, with regard to the hon. Member for Somerton and Frome. The same discussions were held with the official Opposition. My hon. Friend assures me that he has had discussions with the Liberal Democrats in relation to the witnesses and the Select Committee aspect of the Bill. I have been assured by him that the Liberal Democrats did not propose one single witness to attend this evidence session. I am very relaxed about that. At the end of the day, we are a Committee and we will seek evidence from individuals and individuals will put points to the Committee. As a Minister, I and my colleagues will try to facilitate the opportunity for individuals to put evidence in a positive way to the Committee.

In final summation, I welcome the fact that we can add the Evangelical Alliance. The programme motion before the Committee was agreed without a Division in the Programming Sub-Committee. If I can break confidences, there was very little discussion at that stage about adding to the programme motion. I commend the motion to the Committee and I hope that both the hon. and learned Member for Harborough and the Liberal Democrats will understand that the Government want to engage with them in a positive way. We want to have witnesses. If there are lessons to be learned about this process, then, certainly, we will try to learn them. However, I believe that by trying to engage others in discussion, we have acted in an honourable way. I hope that the programme motion reflects the wishes of the Committee.

Question put and agreed to.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice 11:00 am, 16th October 2007

I beg to move,

That, subject to the discretion of the Chairman, any written evidence received by the Committee shall be reported to the House for publication.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

On a point of clarification, will any written evidence received after the close of the formal evidence sessions, during the course of the Committee sittings, still be acceptable and placed on the record?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

The hon. and learned Gentleman will know that the motion that I have just moved states that this is subject to the discretion of the Chairman. I am relaxed about that, Sir Nicholas, pending your relaxation also.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I can give a straightforward and single word answer to the hon. and learned Member for Harborough. That answer is yes, so I hope that that is of some reassurance.

Question put and agreed to.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Copies of any memorandums that the Committee receives will be made available in the Committee Room.

Ordered,

That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—[Mr. Hanson.]

The Committee deliberated in private.

On resuming—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

We will now hear evidence from representatives of the Ministry of Justice and the Home Office, two very important Government Departments. I welcome the witnesses here today. Mr. Hanson, as the lead Minister for the Government, would you like to introduce your colleagues to the Committee?

Mr. Hanson: Yes. The other Ministers are Vernon Coaker, Under-Secretary of State at the Home Office and Maria Eagle, Under-Secretary of State at the Ministry of Justice. Christine Stewart assists me on sentencing policy. Mark de Pulford is involved in supporting the work that Maria will undertake, and Simon King will support the work that Vernon Coaker will be undertaking.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Thank you very much. Everybody now knows who everybody is. Questions can be directed to any of our witnesses or, for that matter, to all of them. I hope that they will be specific to individuals who are giving evidence to us. Before calling the first member of the Committee to ask a question, I should like to remind all hon. Members that questions should be limited to matters within the scope of the Bill. I call David Burrowes to put questions on the first matter.

Q 1

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

First, I declare an interest as a practising criminal solicitor, particularly in local youth courts. My first question is a general one, put on behalf of many practitioners who often have to perform mental gymnastics in straddling different pieces of legislation and working out which have been implemented from the last criminal justice Act. They would want to ask whether you really listen to and consult them. They are concerned about the pace of legislative change, particularly in youth courts, and wonder whether this extra Bill will deal with their concerns about that pace and their ability to deliver justice in youth courts.

Mr. Hanson: In the youth rehabilitation order we are trying to simplify the sentencing structure, building on and learning from our experiences with existing sentencing and tailoring sentences to individual risk and to need. I accept that some measures now in place are, in part, replicated in the new youth rehabilitation order. We are trying to pull those measures together into a generic sentence and to put in additional capability, particularly relating to residential sentences, so that we can have a generic order through which the court can determine what type of sentence should be allocated. I appreciate that we continue to make changes regularly. I hope that this Bill will simplify and modernise the youth order.

Q 2

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

If the intention is to replicate in many ways the adult rehabilitation orders established under the Criminal Justice Act 2003, why not have an alcohol treatment requirement? Also, to allow you to  be specific in terms of rehabilitation orders, why have you kept apart a reparation order, rather than absorb it within a generic order?

Mr. Hanson: Alcohol is a very important issue, as it is a driver of a large element of youth crime. My hon. Friend the Member for Warrington, North (Helen Jones) raised this issue on Second Reading, as did the Opposition. It is a point on which I want to reflect. With our colleagues in the Department of Health and the Ministry of Justice, we are considering whether we need to rectify that potential omission. I will examine the matter in detail. In the event of our being able to do so, I will consider how I reflect that in the Committee. However, from my perspective, it is certainly a matter that we need to address.

The order covers a range of matters, including activities, supervision, programme requirements, attendance centres, curfew, exclusion, local authority residence, fostering, mental health, drug treatment, drug testing and a range of others. There is potentially a gap in respect of alcohol. We did not include it because, at that stage, we felt that it was not appropriate, but I want to reflect on that. Without making a commitment to the Committee, let me say that I will return to it in policy terms in due course, if we reach agreement.

The reparation order is separate. It has been said that there is potential to create some confusion, but I do not believe that that is so. The reparation order is there because, in my view, reparation and understanding the impact of the crime is central to helping to prevent further youth crime in future. We believe that through reparation orders we will be able to bring home to the offender some of the impact of their crime by showing them its impact and helping them to make reparation in the community. Ultimately, we will change young people’s behaviour by bringing home to them the damage of their actions, the causes of their actions, and how they have impacted on the communities in which they live and work.

I hope that reparation orders will be effective in preventing the escalation of offending behaviour before the court needs to consider a youth rehabilitation order. It may well be that the reparation order is used and that it helps individuals come to turns with what they have done, and that the youth rehabilitation order is reserved for cases where the reparation order has failed.

Q 3

Photo of Nick Hurd Nick Hurd Conservative, Ruislip - Northwood

First, I should like to follow up on the question that the hon. and learned Member for Medway (Mr. Marshall-Andrews) asked the Secretary of State for Justice on Second Reading, which was what exactly this youth rehabilitation order package contains that is not available to the courts today. The hon. and learned Gentleman did not get an answer. I should be grateful if the Minister gave the Committee an answer, together with some sense of the evidence and data supporting the view that the courts are crying out for this new generic package.

Secondly, I should like to know about the resources available for some of the requirements. The evidence from the Centre for Crime and Justice Studies, on analysing community orders for adults, is that some of the requirements, particularly in relation to attendance  centres and drug treatment, are not widely used because they are not widely available. I should like to get a sense of what resource back-up is being considered to make such things more widely available.

Thirdly, under clause 1(3)(b), as I read it, there is increased provision for the state effectively to take people’s children away. Given the sorry track record of the state as a parent, which has been described by a former Home Secretary of this Administration as a scandal, will the ministerial team assure the Committee about the underlying intentions in the Bill and say what evidence there is to support this apparently chilling provision? Most people—certainly, my constituents—would want the state to be focused more on making parents more responsible for their children, rather than taking them away.

Mr. Hanson: I am grateful to Mr. Hurd for raising those points. I shall respond first to the point about the question that my hon. and learned Friend the Member for Medway asked on Second Reading. The requirements under the youth rehabilitation order include the range of requirements that I have just mentioned in response to Mr. Burrowes: activities, supervision, unpaid work, programme requirements, curfew, exclusion, residence orders, fostering, mental health and drug treatment and so on, most of which are currently in place. The key new element in the youth rehabilitation order is the requirement to participate in specified activities or residential exercises for up to 90 days. We are including in the order a provision whereby the so-called responsible officer under the Bill—for example, a member of a youth offending team or, indeed, a probation officer—could recommend, as part of the sentence options to the court, that an individual participate in a residential activity for up to 90 days. The work that has been undertaken on those issues shows that there is great potential to stop reoffending in enabling people to feel part of a team, learn new skills and be involved in that way. If the Committee so wishes, I am happy to supply further evidence of the nature of the youth rehabilitation order. I shall circulate some further information to the Committee in due course.

All these measures have considerable resource implications and we obviously need to examine them in detail within the budget of the probation service. In the whole of my budget responsibilities, with my hon. Friend the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston, I have responsibilities for secure accommodation in respect of prisons and for probation. We will try to put any savings that we can make by stopping people going into custody into community-based penalties. I want to see greater use of such penalties as well as greater use of measures to keep young people out of custody, and I need to manage the budget accordingly. I cannot give the Committee figures today, but when we debate such matters, I should be happy to provide additional information about the costs. There will already be a training cost for the new order, should it be agreed by the Committee, and we have budgeted for it—from memory, we have budgeted about £600,000 for training. I shall certainly give consideration during our proceedings in Committee to setting out in more detail the actual management of the probation and other relevant elements of the order.

I do not recognise the third point set out by Mr. Hurd in his interpretation of the Bill. If you will forgive me, Sir Nicholas, I shall reflect on it with colleagues and write to the hon. Gentleman about it, copying my reply to other members of the Committee.

Q 4

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Let me help the Minister. Paragraph 18 of schedule 1 refers to a fostering requirement that will become part of the punishment process that will be available to the courts. Sub-paragraph (7) states:

“A court may not include a fostering requirement in a youth rehabilitation order unless the court has been notified by the Secretary of State that arrangements for implementing such a requirement are available in the area of the local authority which is to place the offender with a local authority foster parent.”

On the face of it, it looks as though the Bill is promising several things, but unless the Secretary of State has the resources to implement them, they will not happen. Can you tell us whether the Secretary of State has resources in place for every local authority area, so that the provision can be implemented? Presumably, you thought about such matters before you drafted the Bill.

Mr. Hanson: When I said to Mr. Hurd that I did not recognise the point, I was saying that what he described is not the practice. We want to ensure through the Bill overall that we prevent individuals from having to be removed from their parents, and that we support work on parenting skills and supporting families.

To answer Mr. Garnier’s point, there is a requirement for fostering in the Bill that potentially has resource implications. We are now working through them now. We are giving the courts extra abilities to have that disposal available to them. Like many such measures, it will be used as a last resort. We wish to see efforts being put in to stop crime and prevent young people from coming before the courts in the first place. That is why the reparation order is in place.

Q 5

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I do not think that you quite understood my point; I shall try again. We understand what you are intending to do, but you cannot do anything unless you have the resources—indeed, the Bill says that you cannot do anything unless the Secretary of State says that the resources are there. We also know that 27 per cent. of all people in custody, be they children, young offenders or adults, have come through the care system—they have been looked-after children. It seems that you are promising something when you have not worked out whether you have the resources to provide it. In any event, if you could provide it, would you not simply be increasing the number of people in an already overcrowded custodial estate?

Mr. Hanson: The intensive fostering requirement is only a pilot at the moment and we are examining those issues in detail—[Interruption.] We are looking at piloting that. All of these measures will have resource implications when implemented. We are currently working through that. We have just finished the comprehensive spending settlement for this year. These are policy objectives with legislative back-up and I will report to the Committee on progress as work is undertaken.

Q 6

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

But surely you should have thought about whether the resources were available before drafting the Bill. We know that the Prison Service, for example, is being asked to make 3 per cent. efficiency savings this year; we know that there has been no increase in the Home Office budget, which is essentially a cut; and we know that the Ministry of Justice has not inherited any increase in its budget. It seems to me that we have two Departments with no money to spare introducing more things to do. However, they will not do them because the Secretary of State will not be able to certify that he has the provision to do so. Could you please explain to us, before the Bill gets very much further, why these things are in it unless you can tell the world, the public, your voters and the taxpayer that the resources are available to achieve what you intend to put into law?

Mr. Hanson: As I have said, we are committed to providing support to ensure the roll-out of the provisions. We are currently planning for that. I am not in a position today to give details about the costing of each proposal, but there will be opportunities to do that during the course of the Committee, and in future years when the legislation has been passed by both Houses, as I hope it will be. We are piloting the fostering order. We will be looking at all of these matters. I am not in a position today to give details of the budget, but I will supply the Committee with a note on our forward thinking on these matters.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

It is my understanding that the Minister has taken the point and I have no doubt that it will be followed up later in our deliberations.

Q 7

Photo of David Heath David Heath Shadow Leader of the House of Commons

My question is in the same area, because I am interested in the response to the question on general resourcing. Resources are critical to the success of this part of the Bill and the various orders that a court may make, and currently they are not there.

Before our deliberative sittings, will the Minister provide the Committee with information about the access to health treatment, mental health treatment and drug treatment for the residents of each criminal justice area, so that we have some overview of the resources available in each area and whether courts will be able to make these orders, or whether they will be restrained by the provision not being there? Where there are gaps, I think that the Committee should be aware of them. Can the Minister provide that information?

Mr. Hanson: I am happy to reflect on those points and I will be happy to circulate a note on current provision and budget resources and on future discussions about them to the Committee, because they are important matters. However, we would not be introducing the legislation if we did not believe that we have the capacity to deliver it. I hope the Committee agrees that that would be pointless.

Q 8

Photo of Phil Wilson Phil Wilson Labour, Sedgefield

I have one question on under-age drinking, which, as we know, can in itself fuel crime. In the rehabilitation orders there is nothing about alcohol treatment requirements as there is in the community sentences for adults. Is that an oversight? Will you be putting it in or is there a reason for missing it out?

Mr. Hanson: I am grateful to my hon. Friend for raising that point. As I have indicated, the alcohol issue was raised on Second Reading and I believe that we need to reflect on it. We are currently doing some work with the Department of Health on whether we can practically give the support, based on the same issues that have been mentioned about finance and deliverability. I will be looking at that very closely because, without branding all young people as the same, alcohol is a problem that can fuel antisocial behaviour and youth offending. I think that it is an area that we need to examine in more detail and hope that I can consider this with other Departments and bring forward appropriate regulations in due course.

Q 9

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Will the Bill, and particularly part 1, which deals with youth justice, lead to an increase, a decrease or a standstill in the number of young people in custody?

Mr. Hanson: Our intention is to reduce the number of people in custody because we want to try to stop offending in the first place. That is why some of the issues here are determined to be alternatives to custody. I am very much in favour of looking at stronger community penalties, and the new youth offending order will include a range of issues that are potentially alternatives to custody. We have not assessed the numbers, but I hope and believe it will reduce the number of people going into custody.

Q 10

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Have you done any planning or carried out any projections of how it will affect the custodial population?

Mr. Hanson: No. We are looking at that. I anticipate that the forward look on community sentences will reduce the number of individuals in custody. I cannot give the Committee a figure, but our assessment is that that will be an alternative to custody, and that is our wish.

Q 11

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Will you share with the Committee at some stage your thinking and the evidence that your Department, as you have designed this Bill, will have taken in relation to resource implications and the numbers of people being disposed of by the courts either through the community punishment system, or in respect of youngsters through referrals or going into custody? As you know, your prison estate is completely full and you have no room for any more.

Mr. Hanson: I am happy, as always, to share information with the Committee as it is vital to deliberate on these important matters. Our assessment is that these provisions are designed to try to reduce the number of young people going into custody by putting in place mechanisms through the reparation order and the youth offending order to stop people going into custody. The new 90-day residential facility is designed specifically for that purpose.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Can we now move on to part 2, sentencing? I ask Mr. Garnier to put his question to the Minister.

Q 12

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

As my hon. Friend Mr. Burrowes made clear, I am a sentencer. I sit as a Crown court recorder, so I have to digest this measure, as I had to digest the 2003 legislation, which I shall now have to put aside in order to digest this one and many of the other measures that the Government have passed over the last 10 years.

Why are you abolishing the suspended sentence for summary offences? What is the thinking behind that policy?

Mr. Hanson: Again, sentencing figures suggest that the courts are imposing substantial numbers of extended sentences for summary offences only where community sentences could previously have been used. I want to offer some clarification so that we are not putting in place suspended sentences where community sentences would have been more appropriate.

Q 13

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Surely you will have consulted the Judicial Studies Board on this matter. You understand that you do not consider a suspended prison sentence until you have worked out whether that offence, that offender and the circumstances surrounding that particular set of facts merit a custodial punishment in the first place. You have got to cross the custodial threshold, and it is only when you have considered the special circumstances of the offender and perhaps other matters that you then go back to consider whether you should suspend that custodial sentence. It is not an alternative to a community sentence, it is an alternative to immediate custody.

Mr. Hanson: When I examined sentencing trends they suggested to me that a substantial number of cases where suspended sentences were imposed were those where previously a non-custodial sentence would have been appropriate. The figures for 2005 and 2006 show that the immediate custody rate has remained stable at 7 per cent., whereas the usage of suspended custody orders has increased from 1 per cent. in 2005 to 3 per cent. in 2006. I am of the view that we need to give some clarity to courts to ensure that we can provide stronger community sentencing, which I think is more effective.

Additionally, there are a number of cases in which suspended sentences have resulted in breaches and people are brought to prison, and I believe that that in itself is not necessarily the best way to deal with those individuals in the longer term.

Q 14

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Well, you can give a suspended sentence with requirements that are additional to it. There are already existing mechanisms to deal with that sort of behaviour.

Can I take you on to indeterminate sentences for public protection, as we have to rattle along? Could you explain the English of clause 12, in which you attempt to clarify your new regime with relation to imprisonment for public protection measures? IPPs were introduced in the Criminal Justice Act 2003 with some degree of fanfare. Clause 12 seems to prick the enthusiasm with which your predecessors in the Home Office introduced them. Perhaps you could explain what is going on.

Mr. Hanson: Clause 12 does not relate to IPPs. We are currently considering what we do with IPPs, but the clause does not relate to them.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

You are right—indeterminate sentences.

Mr. Hanson: Clause 12 relates to indeterminate sentences, and we are considering how to ensure that there is judicial discretion in particularly serious cases and looking at sentencing options in relation to that. It follows on from a number of difficult cases that have occurred recently, such as the Sweeney case in south Wales.

Q 15

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Are you suggesting that clause 12 introduces greater judicial discretion, rather than removing it?

Mr. Hanson: Yes. The purpose of clause 12 is that, in extremely serious cases, the judiciary could examine the sentence and—after looking at potential discounts for guilty pleas, time spent on remand and automatic discount—decide whether the final sentence that would be given was proportionate to the extreme level of the crime committed. In the case of Sweeney, which occurred some months ago in south Wales, clause 12 would have allowed the judge to decide whether it was an extremely serious case and accordingly to consider whether to increase the tariff to secure the above punishment and, indeed, justice for the victim. Perhaps my colleague wishes to speak—

Christine Stewart: I think that that is right. The clause affects the way in which the tariff for indeterminate sentences—discretionary life sentences—is currently set. At the moment, when the court imposes a discretionary life sentence, it must decide what period to set for punishment and deterrence. The remainder of the sentence is effectively determined by the Parole Board.

In setting the tariff, the court considers what sentence would have been imposed were it to have imposed a determinate sentence and what period would then be served by the offender. It would look at the overall headline sentence and then halve it, because the offender would only serve half of that sentence. A discretionary life sentence, by its very nature, belongs in the category of particularly serious offences. Such a sentence could not be imposed unless the courts decided that it was a very serious offence. In those cases, when the courts look at setting the tariff, they look at guidelines. For example, in something like rape, including rape of a child, the maximum sentence in the range set out by sentencing guidelines is 19 years, which would be about nine and a half years.

In the case of a discretionary life sentence, there could be circumstances that suggest that the offence is so serious that the equivalent determinate sentence does not go far enough to mark the seriousness. In those rare cases, the court would have the discretion to say that if that is the starting point, it would not half the sentence—it may reduce it by a lesser proportion so that it could mark the seriousness of the offence.

Mr. Hanson: The key thing is that we are trying to increase judicial discretion to examine serious cases.

Q 16

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

To what extent would that have a bearing on the prison population?

Mr. Hanson: In overall terms, our assessment suggests that the Bill will lead to a reduction in the prison population. Certain measures within the legislation,  including this one, could potentially lead to an increase in sentences. However, in overall terms, the measures would reduce the prison population by—from memory—some 1,300.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

You reckon on 1,300 additional—

Mr. Hanson: No, in overall terms, if the measures were introduced, our assessment is that the prison population would be reduced. The notes for the Bill indicate that we expect about 25 additional places as a result of the application of this clause. However, generally speaking, our assessment is that there will be a reduction of approximately 1,300 prison places if all the measures are implemented by both Houses. Each clause has different weights and measures, but overall we expect a reduction of approximately 1,300.

Q 17

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I have a question on clause 10, going back to the debate on the abolition of suspended sentences for summary offences. I also have a point to make on clause 18 about the relationship between the Parole Board and the Secretary of State.

First, on clause 10, how will the Government avoid the following problem if suspended sentences are abolished for summary offences? The way in which many sentencers think about the decision before them is to think first, “In or out? Is this an offence that requires imprisonment or not?” After they have thought “In or out?”, they think, “Suspend or not?” That is the structure of the decision. If that is how sentencers think, and if the ability to suspend is taken away, they may decide “in”, and then, with no powers to suspend, we therefore end up with more people in prison. That is the problem. Perhaps you could answer that question and then I will come back to my other question.

Mr. Hanson: There is a difference of view on the likely response to clause 10. This afternoon we will hear from the Magistrates Association, which holds a similar view to that of the hon. Member for Cambridge. Our view is that rather than up-tariffing sentences, the measure will result in a down-tariffing to community sentences. Our assessment is that there will be a saving of approximately 400 prison places as a result of these measures. There is a genuine difference of opinion. I can only give you the Government’s view that faced with that choice, sentencers will opt for a community sentence rather than a custodial sentence. We may wish to explore as a Committee whether sentencers share that view—I suspect that the Magistrates Association will not—but that is our judgment and we must stick with it.

Q 18

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

Perhaps I should have declared an interest. My wife is a magistrate and has been doing this kind of sentencing for a long time. Magistrates are trained in particular ways to approach those questions in particular ways, and perhaps that is where the Government need to look for the solution on how magistrates are asked to approach sentencing.

Clause 18 abolishes the requirement for the Secretary of State to receive a recommendation from the Parole Board before recalling a prisoner who is subject to a life sentence. At the moment the Secretary of State can  only act without the Parole Board’s involvement if it is in the public interest to recall the offender before the Parole Board can make a recommendation—in other words in an emergency. That emergency system will now be the overall way of doing things and the objection to that is that it brings the Secretary of State far too much into the sentencing process. The Government have already had severe legal problems with the question of the independence of the Parole Board. Will not clause 18 make that situation worse? Does it not in effect put the Secretary of State in the position of a judge? It violates the principle of the separation of powers.

Mr. Hanson: I do not believe that it does. I am happy to defend that point in Committee when the time comes.

Christine Stewart: It is worth making the point that recall decisions in all other cases are currently taken directly by the Secretary of State. Those provisions were introduced in the 2003 Act. Clause 18 simply ensures that in even more serious cases, such as when somebody is serving an indeterminate sentence and is likely to be dangerous, the process can act quickly so that the offender can be recalled. The Parole Board then focuses on the review of that decision and takes decisions about release, but it is treating such offenders in the same way as others. It would be slightly odd if it took longer to recall an offender who has been given a life sentence—an indeterminate sentence—than to recall an offender who has been given a determinate sentence.

Q 19

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I did not understand that. Is it not the case at the moment that where the Parole Board cannot act quickly enough, the Secretary of State already has the power to recall?

Christine Stewart: In exceptional cases, but leaving aside indeterminate sentences. In other cases, the Parole Board does not have a part to play in the recall decision, so it is odd that in serious cases you have to go through the process of going to the Parole Board first. The Parole Board thinks that its role should be determining whether the offender is safe to be released, rather than taking a position on recall.

Q 20

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

In the rest of the Bill, the Parole Board effectively acts as an appeal court for the Secretary of State. That does not appear in clause 18.

Christine Stewart: The Parole Board is the mechanism through which the offender will go in order to get released. It is like an appeal mechanism for all such offenders.

Mr. Hanson: I should add that the Parole Board welcomes the proposals to remove it from the decision-making process for recall on the basis that it more clearly defines its role. The Parole Board’s welcome strengthens the legislative provision before the Committee.

Q 21

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

Going back to clause 10, are you paying lip service to the issue of judicial discretion? If you were to follow the concerns about judicial discretion, would you not go back to the situation that  applied before April 2005 when magistrates had discretion over suspending a sentence, rather than pigeonholing them under this provision and allowing them to suspend sentences only if the offence is indictable either way?

Mr. Hanson: These are matters for debate. We have said in our proposals that we believe it is important to clarify the matter. We try to ensure that we pass community sentences rather than up-tariff suspended sentences—with due respect to magistrates—because such sentences are often breached. That ultimately means that people go to prison, and the potential for preventing reoffending is that much more difficult. However, these are matters for debate. I can only set out our position. We believe that it is important that we try to encourage community sentences rather than suspended sentences for such offences. In so doing, we are saving prison places, and helping to prevent reoffending. Those are matters that we will debate in due course.

Christine Stewart: It is perhaps worth adding that about 40 per cent. of suspended sentence orders have been imposed in respect of summary only offences. That raises a question about their use because such offences are less serious. We are saying that in 40 per cent. of these cases the court has concluded that the custody threshold has been crossed. As the Minister has already said, if you look at the custody rates and trends, it looks as if many of these orders are being drawn from the community order. They are offences which, in the past, would have received a community order.

Q 22

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

Because the Government have directed that a much more firm line be taken on the breaching of community of orders?

Christine Stewart: No. This is a decision that the court is taking about whether, in this particular case with the offence that has been committed, the offence is serious enough to have crossed the custody threshold. Courts have to take that decision in order to impose a suspended sentence order. Yet if you look back at the number of people receiving such orders in comparison with the immediate custody trend—that has not changed—it would seem to suggest that the custody threshold has dropped because these were people who were getting custody and now they are getting suspended custody. However, it has not dropped. Therefore, it suggests that the numbers are being drawn from people who would otherwise have got community orders.

Q 23

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

So the answer is to remove the power rather than, as the Minister said, clarify the situation and look at training on how magistrates apply their powers?

Christine Stewart: That is what this provision is doing. It is removing the power with summary-only offences.

Mr. Hanson: The provision removes the power. There are obviously always training issues involved as well. I have been quite clear about that.

Q 24

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Has anybody done any work on the point that Christine Stewart was making? Are the people who have been getting suspended custodial  sentences for summary offences persistent and repeat offenders? Has the court had to say, “We have tried non-custodial and community sentences, but you keep on doing this. The only thing that we can do is notch it up one more rung of the ladder. We will send you to prison, but suspend the sentence. If you make a mistake again, you will go inside.” Most people who end up in front of the courts and are given a custodial sentence, subject to the most serious offences, have been through the courts before and the courts have decided that they are running out of options and that custody is the next stop. A suspended sentence may be the halfway point.

Mr. Hanson: As far as I am aware, we have not done the detailed research on prolific offenders within that cohort, but I am happy to look at that and to supply any information to Mr. Garnier and the Committee.

Q 25

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

If you find that the evidence suggests that of the 40 per cent. that Christine Stewart was talking about, most of those are persistent offenders, albeit low level, and therefore anti-social—there is a victim to every offence, whether they are direct or indirect—would you consider reintroducing the magistrate’s power to suspend a custodial sentence?

Mr. Hanson: I would not go as far as that. Those are matters for debate. My view is that, even with prolific offenders, short-term jail sentences—in terms of a suspended order, many people would breach the sentence and end up with a short-term jail sentence—are less effective than some of the stronger community penalties. I would want to encourage that use; that is one of the reasons that we have made the change.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

One can give a suspended sentence with additional requirements. I have found that a very useful sentence to give; it tends to work if there are adequate numbers of probation officers to do the supervising. It may be that the probation service is exhausted at the moment. I fully appreciate that the Government is trying transfer supervision to the third sector and the private sector, and I applaud that in many respects, but given the current set-up, it seems that there is value in a suspended sentence, even for summary offences in the persistent offender category.

Mr. Hanson: I think that we are trespassing into the realm of debate on the issue, rather than simply addressing some of the points. I am happy to engage in that, but you may wish to consider moving on, Sir Nicholas.

In response to the hon. and learned Gentleman, we have increased dramatically the level of investment in probation over the last 10 years and the new Offender Management Act 2007 will give greater flexibility to the probation service to draw in and add value from the private and voluntary sectors. There is debate to be had.

My assessment is that the use of suspended sentence orders has led to an increase in prison population and increased use of prison when those orders have been breached. I would much prefer to have a more community-based focus, which is why we have  introduced the provision. But I will supply the Committee with the information that it has requested on prolific offenders.

Q 26

Photo of Virendra Sharma Virendra Sharma Labour, Ealing, Southall

Can the Minister explain, as a former lawyer, in plain English, what is meant by clause 19(2) and proposed new section 46ZA, particularly proposed new subsection (2)?

Mr. Hanson: The purpose of clause 19, which amends the position of prisoners released under the early removal scheme under the Criminal Justice Act 1991, is threefold. First, it will extend the scheme so as to make it available to offenders not liable for deportation or removal for whatever reason, but who wish to resettle permanently outside the UK. It gives provision for that. Secondly, it streamlines the existing scheme by removing a number of restrictions on eligibility, enabling more prisoners to benefit from the scheme as well as making it easier to administer. Thirdly, it removes a potential anomaly in the treatment of prisoners released under the 1991 Act and those released under the Criminal Justice Act 2003. The proposals are outlined in the explanatory notes, but if my hon. Friend wishes, I am happy to give him a view on those by correspondence.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Thank you, Minister. We now pass on to part 3: Appeals. Mr. Garnier has the questioning.

Q 27

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I think that I am right in saying that the Secretary of State said on Second Reading that the Government was going to reconsider the wording of clause 26. The Government will have received, I would have thought, quite a number of letters or communications expressing concern about the scheme behind part 3. Will the Minister give us an indication of what she intends to replace the clause with?

Maria Eagle: Sir Nicholas, I will be handling this section on behalf of the ministerial team, if that suits the Committee.

I am sorry not to be able to provide the rewritten clause, which would be the ideal course, but the concern that was expressed during the consultation and the Secretary of State for Justice’s announcement on Second Reading that we were comprehensively reviewing it has put me at a slight disadvantage. [Interruption.]Not in that respect. I knew that he was going to do that, but obviously this consideration, following the consultation and the impact that it has had on the Government’s thinking about this issue, has come later in the day than the original drafting. Therefore, it is important that, when we are replacing a drafting that is already there and that has caused a lot of concern, we get it right.

The Government still do not consider it right that the Court of Appeal should be obliged to quash convictions in cases where there is no doubt as to the appellant’s guilt, with certain caveats. As the Secretary of State said on Second Reading, we want to ensure that the Court of Appeal has a discretion to quash in a case where it is satisfied as to the guilt of the appellant but where there has been serious misconduct by the prosecuting authorities. That was one of the main concerns that came through in the representations; the Mullen-type cases are the ones that are often quoted.

We want to ensure that that discretion is there, so that judges can make absolutely clear, by quashing convictions even of people who are clearly guilty, their abhorrence for extreme wrongdoing by the state in those sorts of circumstances. That is certainly something that we wish to do, but we believe that there are still examples where an appellant is guilty and a conviction should not be quashed, for example in respect of purely procedural matters.

An example that springs to mind is Regina v. Coutts, which the hon. and learned Gentleman and the lawyers on the Committee might be aware of. In that case, a chap who was engaged in a violent and sexually related strangulation of a young woman had his murder conviction quashed following the fact that the jury was not given the opportunity to consider a manslaughter verdict, even though no one, including the defence or the Court of Appeal, which considered the case subsequently, thought it appropriate that the jury should consider such a verdict.

So there is a narrow range of potential cases where we believe that, if the defendant’s guilt is not in doubt and there is not some wrongdoing or a serious breach of convention rights, it should still be open to the Court of Appeal to quash a conviction where guilt is not in doubt.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

How are you going to measure that? How is the Court of Appeal to make a decision about whether something is a mere procedural misdemeanour as opposed to serious misconduct? Also, are you not concerned that you are completely interfering with the way in which the Court of Appeal currently works? I think that the Court of Appeal has the power to use the proviso—Mr. Howarth tells me that that is the technical term—in certain circumstances. Am I not right in thinking that the Court of Appeal can already take account of mere procedural irregularities if there is a pressing case for upholding the conviction? Are you not allowing your mind and your policy to be directed by one or two emotionally charged cases, such as the one that you mentioned a moment ago, whereas what we are trying to do is to design good law for the entire appellate system?

Maria Eagle: We certainly want to have good law for the entire appellate system. We want to ensure that the Court of Appeal has the discretion that it should rightly have. There is no doubt about the fact that, following what the Secretary of State said on Second Reading, we are seeking to give the Court more discretion in a wider range of circumstances than the clause, as it is currently drafted, does. To that extent, we have listened carefully to the representations that we have received.

In my understanding, it is certainly the case that, under the current law, convictions are quashed on the grounds of procedural irregularity even where there is absolutely no doubt about guilt.

Q 28

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Is it not the case that the Court of Appeal is not interested simply in guilt, but also in justice? That is what you should be interested in too.

Maria Eagle: Yes, and we are. That is one of the reasons why we are seeking to make the changes to the clause that the Secretary of State has indicated.

Maria Eagle: We do not have a draft that I can present to the Committee today.

Maria Eagle: We have drafts of drafts. Of course, there are discussions and consultations going on about precisely how best to achieve this aim, on the basis of what the Secretary of State has said. I certainly hope to be able to provide a paper to indicate our thinking early next week, in time for the consideration by the Committee of the clause in question. I hope to produce a draft absolutely as soon as we possibly can for the Committee to see. We are endeavouring to produce it. Because this part of the Bill will be reached rather early in the time that the Committee has for consideration, it might not be possible to produce it for then, but there will be a paper that sets out in detail the Government’s thinking in draft, and we certainly hope at the least to have produced it on Report. I understand that that is not entirely satisfactory to hon. Members, but it is the best that I can offer today. We are working very hard to ensure that we do that.

Q 29

Photo of David Heath David Heath Shadow Leader of the House of Commons

I have just a couple of questions. It seems a very odd way of demonstrating the intention of giving additional discretion to the Court of Appeal by introducing a clause which, as it originally stated, clearly restricts the discretion of the Court of Appeal. How on earth did we have the genesis of clause 26 in its current form?

Maria Eagle: To be honest, I am not in a position to answer that today, because I was not in the Department when it was devised, so I do not have to hand the background knowledge to tell the hon. Gentleman exactly how it was devised. He will be aware, as other hon. Members will be, that concern was expressed, both inside and outside the Department, about the general signal that convictions are being quashed for very serious offences that have been admitted to, and where guilty pleas have been given, or guilt has been found by the courts. Appeals have then been held on what would appear to an ordinary member of the public to be a simple procedural irregularity that does not even necessarily imply wrongdoing, and then those people have had their convictions completely quashed and quite often went free with compensation.

That is the concern that gave rise to the policy formulation, and we are all aware of that. There was a consultation document that sought views. All that I can say today is that, as far as I am aware, this document was drawn up with a view—which the Secretary of State has since made clear on Second Reading—that it is currently drawn too widely, and that we will seek to change it. I will, as I have said, produce some indication in much greater detail of our thinking in terms of the drafting next week, and will produce the new draft as soon as I possibly can.

Q 30

Photo of David Heath David Heath Shadow Leader of the House of Commons

May I put it to the Minister that the Bill is not drawn too widely; it is simply wrong. It addresses an issue where the Government have provided no evidence that there is an issue to address. Can she provide the Committee with a list of the cases that gave the cause for concern? She talks about Mullen-type cases, but I know of only one Mullen-type  case, and that is Mullen. Presumably, the Department has a definitive list of other cases that gave rise to concern. The Committee is entitled to know what those cases were, and in what way the court misinterpreted its present discretion, and [ Interruption. ]—and, as was said from a sedentary position; we are all sedentary at the moment, but from a particularly sedentary position by Mr. Garnier—expressed its concern about any fettering of its discretion. Can the Government prove that they have come up with some other issues in the letter that has been sent to you, Sir Nicholas, from the Government, that might represent useful additions to the terms of the Court of Appeal, and which could replace this section? Until I hear a rationale for clause 26 in its present form, I am not sure that the Minister needs to make strenuous efforts to redraft it, because it addresses an issue that very few of us see as a current problem. I hope that if she is not ready in Committee to produce a new draft and table it as an amendment in regular time, she will accept an amendment to leave out clause 26 in Committee, because the present clause 26 is simply unsatisfactory.

Maria Eagle: I do not think, after what the Secretary of State said on Second Reading, that I am disagreeing with him about the fact that the present clause 26 is unsatisfactory. I am happy to come forward next week with some more information about what has given rise to the concerns that ended up in the current draft of clause 26. It is perfectly open to him to argue that the best way out of this issue is to remove clause 26 altogether and to table any amendments that he wishes.

For my part, the Government are still seeking to make sure that, in a narrower range of cases where it is absolutely clear that guilt is not in issue, those who have been found guilty or admitted guilt, often to extremely serious charges, are not allowed to go free simply because of a procedural irregularity. Sometimes it is worse things, such as in the Mullen-type case, and we want to ensure that they are not allowed to go free on what most ordinary members of the public would see as a technicality. While I do not argue that this will affect thousands of cases per year, because it will not, the Government still believe that there is a loophole to be closed. I am willing to come forward next week with a little more detail in respect of the genesis of this.

Q 31

Photo of David Heath David Heath Shadow Leader of the House of Commons

How many people who admit guilt go before the Court of Appeal, as a matter of interest?

Maria Eagle: I cannot tell you that today.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

On the length of the sentence, I do not imagine that it would be—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

We have laboured that matter. Is there another question, Mr. Heath, before we go on?

Q 32

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I have one question. In the paper that you are bringing forward, can we have the Government’s view of the present law and how that differs from the Court of Appeal having the discretion that the Secretary of State said it should have?

Maria Eagle: Yes, I can undertake to include that.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

We move on to part 5, “Other criminal justice provisions”. I know that David Burrowes has a question to put to our witnesses.

Q 33

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

In relation to the extension of conditional cautions, could you respond to the concerns of magistrates and others that effectively it is dumbing down justice and is avoiding the disposal that can happen in court? If it is to look at conditions that involve rehabilitation and stopping people reoffending, what will be included in those provisions and are there the resources to deliver it?

Maria Eagle: My colleague, David Hanson, is dealing with some bits of part 5. He will be dealing with this question.

Mr. Hanson: Again, Sir Nicholas, the aim of youth conditional cautions is to reduce the number of the children being taken to court for relatively low levels of offences by creating an alternative, robust mechanism for bringing young offenders to account, and to address some of the causes of their behaviour. The conditions attached to the youth conditional caution must help the rehabilitation of the offender. I am particularly keen to see safeguards to ensure that the youth conditional caution is approved appropriately. In general terms, we are trying to reduce the number of people who go into custody by putting in place an alternative to custody which will provide rehabilitation, introduce some effective measures and help to prevent reoffending by young people.

Q 34

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

Will you spell out those safeguards?

Christine Stewart: The safeguards are already set out in schedule 11.

Q 35

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

Are there any further safeguards?

Christine Stewart: The circumstances in which the order may be given are set out in the Bill.

Q 36

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

There are to be no further directions or guidance?

Christine Stewart: There will be guidance, obviously, but the Bill sets out the circumstances in which a youth conditional caution can be given and it includes the fact that there has to be sufficient evidence to justify bringing a prosecution. If the caution is not given, the young offender has to admit their guilt. Obviously, if implemented, there will be further guidance to prosecutors.

Q 37

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

But I am speaking of safeguards in relation to the extent of the conditions and their restrictions on the activities or liberty of the young offender. The application of conditional cautions for older offenders is very much used—some would say abused—in relation to the extent of those conditions, which do not necessarily deal with the concerns to rehabilitate that offender.

Mr. Hanson: In relation to the adult order on which this is based to a considerable extent, in practice for adults so far about 80 per cent. of conditional cautions  have been termed reparative and about 20 per cent. rehabilitative. We listened carefully to what magistrates and others have said about the punitive conditions. We want to look at how we can develop the proposal for young people, looking at reparation as the key to helping support them and preventing them reoffending.

Q 38

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

Finally on that point, will there be extra resources to deliver the rehabilitation and reparation that people want, for example in relation to alcohol and drugs, which are often a key factor in youth offending? Will resources be dedicated to deliver that rehabilitation from drugs and alcohol?

Mr. Hanson: In all these measures we are assessing the resource implications. They are additional powers; they will have an impact on resource allocations. I am not in a position today to go into detail on that matter but we do have some assessments and we are working on them now, subject to the legislation being passed by both Houses.

Q 39

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

Will we be able to get that information?

Mr. Hanson: I undertake at least to discuss with the Committee some of the financial considerations that we are currently undertaking when we come to the appropriate clauses. I am not in a position to do that today.

Q 40

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

What practical consequences do you anticipate of the increase in magistrates’ powers to try people in their absence?

Maria Eagle: It falls to me to answer that question. The practical consequences, hopefully, will be that more trials will go ahead in the absence of defendants. If they think they can get away with simply not turning up and that will delay the case, that will turn out not to be so. It will send the stronger signal that there is a presumption that trials should go ahead, whereas at present there is a discretion that many magistrates would exercise. Our purpose is simply to send a stronger signal that not turning up is not a way to delay settlement of the case—with appropriate safeguards, which we hope are there.

Q 41

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

There is clearly a power, which is on page 37 of the Bill, for the court to send somebody to prison if they are convicted in their absence and the court can sentence the defendant to custody. Normally, one would expect before custody—indeed, before any sentence—that there would be a pre-sentence report. You will not get one in this case, will you?

Maria Eagle: The intention is that only defendants who have been bailed to appear at trial, who are therefore aware of their requirement to appear, would be liable to be sentenced to custody in their absence. The clause also makes it clear that the defendant who is sentenced to custody in their absence will be brought to the court before being sent to prison, so there will be an opportunity at that time for the defendant to explain their failure to appear and for any further steps to be taken.

Q 42

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I was making a point about pre-sentence reports. The sentence will have been given. The defendant can then come and say why he was not  there on the last occasion, but the sentence will have been made and the court will be functus officio as far as that is concerned, therefore subject to an appeal, at great expense and delay, and that is that—off he goes.

Maria Eagle: It seems that in some cases there would already be reports that were commissioned previously.

Q 43

Maria Eagle: Because he has been bailed to appear to be sentenced.

Q 44

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

We are talking about trials—trial or sentencing; I am not restricting myself to sentencing. A person is tried in his absence; he is found guilty in his absence and is sentenced in his absence. He is then sentenced to a term of custody without a pre-sentence report. Eventually, he is brought to court, where he is given an opportunity to explain his absence—

Maria Eagle: He also has the opportunity to seek a rehearing of the case if he believes that an injustice has been done and there is a good reason why things should not proceed as they have been determined.

Q 45

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

It will have some effect on the numbers in custody, will it not? To accommodate the increasing number of people in custody under the Government’s current sentencing regime, they have had to introduce early release from custody on licence, with which you will be familiar. The plan is that, during the 12 months from June 2007, 25,500 offenders will be released early from prison to reduce the net prison population by about 1,500 to 2,500.

A number of the provisions in the Bill are calculated to—I use that in the proper sense of the word, rather than to mean intended to—increase the prison population and create difficulties for prison capacity. Perhaps the Minister of State can help you on this, but do you have any plans to increase the 18-day early release period to deal with some of the prison overcrowding issues that will flow inevitably from several provisions of the Bill?

Maria Eagle: We are dealing with the Bill and it is absolutely clear, as David Hanson said in answer to earlier questions, that some of its provisions will tend to create a small increase in the number of people imprisoned. We have worked out, through the work of the Department and its officials, that other provisions will cause a reduction. Overall, the impact of the Bill will be a fall of about 1,300 in the number of prison places filled.

Q 46

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

We have not seen a net fall in the prison population since ECL was introduced, and about 6,000 people have been released so far on ECL. It is not doing the job. Court cells and prison cells are continuing to be used. Do you have any plans to increase the 18-day period?

Maria Eagle: This clause of the Bill is not about—

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

But I am asking you a question, and I should be obliged if you would answer it.

Maria Eagle: This Bill is not about—[Interruption.]

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. Will the hon. and learned Gentleman please ask the Minister the question again?

Q 47

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Thank you, Sir Nicholas. A number of the provisions of the Bill are bound to increase the prison population. The prison population has not been reduced as a result of the introduction of ECL with an 18-day early release. I am asking you whether you now have plans to increase the 18-day period for early release to something longer than that.

Maria Eagle: Perhaps my colleague can answer that question, given that he handles the issue.

Mr. Hanson: The first point to mention is that our overall assessment is an approximate 1,300 reduction in places filled, if all the Bill’s measures are passed in their current form. That there will be a reduction is the key matter that the hon. and learned Member for Harborough must recognise. There will be certain spikes from certain clauses, but overall there will be a reduction.

We have introduced ECL on an 18-day basis to help to relieve some of the prison pressures. We have taken that difficult decision. It was introduced as a temporary measure. We shall be keeping it under review in all ways and at the moment there are no immediate plans to increase the time scale. The hon. and learned Gentleman will be aware that we now have a large building programme, with additional places being put on stream between now and Christmas, and between January and June of next year. We anticipate, difficult though it is, that although the prison population has increased, it is within striking distance of our capacity, and we anticipate that we can manage it with the measures that we have put into place. We keep everything under review at all times.

Q 48

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Let me try again. Eighteen-day ECL has not reduced the net prison population and indications are coming from your Department that the court service will be required to make court cells available. The police will, of course, continue under Operation Safeguard to make available police station cells to accommodate people who cannot fit into prison. I need to know from you whether your statement that there will be no immediate decision to increase 18 days to some higher number means not this week or not next week. I want to know what “immediate” means. Clearly, you must have thought about it because the real issue that is affecting our criminal justice system day by day is the overcrowding of the custodial estate. We both know that.

Mr. Hanson: This does not relate directly to the Bill, but I am happy to answer. We are keeping all options under consideration at all times, because we want to see the Prison Service estate managed properly. I am introducing new Bill provisions to bring on stream new places between now and Christmas and between Christmas and January. We have ECL, a temporary measure, the impact and necessity of which we are reviewing weekly. We have had some difficulties over the summer, partly because of things that were outside of our control—for example, the loss of accommodation in Gloucester due to the floods and  the loss of accommodation in Maidstone due to Legionnaires’ disease. Those difficult issues have caused additional pressures.

I am constantly, with my colleague, the Under-Secretary of State for Justice, keeping under measure the level of the prison population and considering taking whatever measures are appropriate to ensure that we protect the public and keep supply accordingly. The building programme that we are undertaking, the measures on supply that we have undertaken and the issues that we might need to look at in the light of the Carter report, which will come out towards the end of this year, will colour the passage of the Bill in its later stages. We may need to consider recommendations from the Carter report that might need legislative proposals. If so, I will brief the Committee at the earliest opportunity and ensure that any resolutions and proposals coming out of that report are put to the Committee as part of an overall package to protect the public and manage the prison population.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

We have a brief question from Mr. Sharma before we move on to the next section.

Q 49

Photo of Virendra Sharma Virendra Sharma Labour, Ealing, Southall

My question is on clause 58, “Extension of powers of non-legal staff”. I am aware that there are many advocates—people who have worked in the law centres and the advice agencies have learned and picked up advocacy skills. However, when we are talking about the designated caseworkers, what level of qualification will be required and what skills and formal training will they have before actually getting into that position?

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

As Committee members will know, since 1988 designated caseworkers have been able to do certain types of work in the magistrates courts. During my visits to courts, court officers and all kinds of people who see the work that those caseworkers do tell me that they perform very well. When visiting courts, I have had good feedback about the work that they do.

The provision will enable designated caseworkers to do a much wider range of work than they have been able to do, but under the supervision of an experienced Crown prosecutors. There will be some training, as is given now, and that is at the heart of this provision. Prior to making any appearances or doing work in the courts, designated caseworkers undertake a two-week course that is assessed independently by the college of law in Nottingham. They also subsequently complete e-learning courses and have at least 15 hours of continuing professional development per year to keep their knowledge and skills up to date. It is intended that that type of training should continue.

The proposals will extend the type of work that caseworkers can do in magistrates courts to contested matters. That is the big change contained in the clause. The Crown Prosecution Service and the Department certainly intend to ensure that we provide sufficient training, guidance and ongoing continuing professional development to give confidence and ensure that the people undertaking the higher level of work in the magistrates court are properly able to do so and are properly supervised.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

We really must make progress now. Can we move to part 6, “Criminal law”? Could I ask those who are going to question our witnesses to be brief? Hopefully the witnesses—the Ministers and their civil servants—can be brief as well.

Q 50

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

In relation to the offence of possession of a single extreme pornographic image, or it could be more than a single image, what evidence do the Government have to show that either watching it or participating in it is harmful to adults? I am wondering that because, in August 2006, the Government stated:

“Given the many different approaches to conducting the research and framing the questions, as well as differences in the nature of the material examined, we are unable, at present, to draw any definite conclusions based on research as to the likely long term impact of this kind of material on individuals generally, or on those who may already be predisposed to violent or aberrant sexual behaviour.”

The Government subsequently produced a rapid evidence assessment in September of this year, long after the Bill had been published and presumably intended to back it up, which mentioned some increased risk. It is worrying that that was produced so late in this context. In that document, however, the Government stated:

“The REA found no formal research studies of the effects on those who participate in making extreme pornography.”

Where is the evidence?

Maria Eagle: The evidence is contained in that rapid evidence assessment which, although it did not find any formal research studies on the effect on those who participate in making the extreme pornography, did find that there were some harmful effects on some of those who viewed it, particularly men who were predisposed to aggression or had a history of sexual aggression. Therefore, the rapid evidence assessment looked around all of the research that had been done, rather than commissioning specific research to fill gaps in the research, and it showed that there was cause to have concern in certain circumstances for what is, no doubt, a smallish number of the population who might be susceptible to their behaviour being affected by viewing extreme pornography.

We must remember that when we are talking about extreme pornography, we are talking about images at the very top end of what most people would consider viewable. We are not talking about the common or garden porn, of which there is much on the internet and that it is perfectly lawful for people to possess or make under current domestic law. The proposal would make it illegal to download and possess images that it is already illegal to publish in this country, rather than extend the definition of what ought to be caught by the law.

The concern really arises from the increasing trend over recent years that we should seek to prevent harm to people, particularly children. We have changed the law in recent years to deal with images that would be illegal if they were published or made in this country but which now, because of changes in technological capacity, can come into the country and be downloaded, having been published elsewhere. Therefore, we are not seeking to extend the current law or to change the level of porn that is allowed to be  published and considered lawful. We are simply seeking to deal with the technological impact that means that such material can now be downloaded into one’s own computer, despite the fact that it would be illegal to publish or make it in this country.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

We have limited time, Mr. Cohen, so you must be as quick as possible.

Q 51

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

The measure is limited to material of a sexual nature, but some of those people who were used in the evidence that the Government have given include those who could have got violent images of a non-sexual nature, and those might have stimulated them to kill. There are thousands and thousands of horror films that show people being cut up, so why does this legislation concentrate on material of a sexual nature?

Maria Eagle: The Government are concerned about all violent imagery and there are legislative controls on violent as well as sexual imagery through the Obscene Publications Act 1959. There are also regulatory controls through the British Board of Film Classification and the Advertising Standards Authority. There is regulatory and legislative control of such images. There has been particular concern about explicit and extreme pornographic material produced for the purposes of sexual arousal that also includes real or very realistic violence. That is one reason why the BBFC will not classify violent and abusive material in the R18 category, which is reserved for pornographic films. There is control in respect of this issue.

In this offence and this change to the law, we are seeking to catch the extreme end of the spectrum of pornographic material. While there may be points of difference on precisely where the line should be drawn, most members of the Committee and most ordinary members of the public would see necrophilia and bestiality as something that society ought to disapprove of and to think about controlling images of. While there might be points of difference about precisely where the line should be drawn for some of the other imagery, this is a practical issue. I do not think that too many members of the public would disapprove of our attempt to catch the most extreme end of the spectrum.

Q 52

Photo of David Heath David Heath Shadow Leader of the House of Commons

My question is on a slightly different subject. I assume that this is the correct time to make reference to the Government’s intention to insert a new clause and new schedule as an amendment to section 327 of the Criminal Justice Act 2003. This is what is sometimes referred to as Megan’s law or Sarah’s law, for which the enthusiasm of the Government waxes and wanes. Is what the Ministers are introducing effectively a Megan’s law or Sarah’s law? Will it provide information, on almost a free basis, on the whereabouts of convicted paedophiles in a community?

Mr. Coaker: This is a very important part of the Bill. The Government have arrived at the proposals as the result of a huge consultation with people on the one hand from children’s charities, who did not want  anything that approached any sort of disclosure to the general public, to people on the other side, who thought that there should be full and open disclosure under any circumstances. With the support of children’s charities and law enforcers, the Government have reached a coalescing of opinion around the idea that, with some controlled disclosure, you can defend the rights of individuals while at the same time enhancing public protection. It will not be a Megan’s law with automatic disclosures.

Q 53

Photo of David Heath David Heath Shadow Leader of the House of Commons

But there is a presumption, is there not?

Mr. Coaker: There is a presumption regarding the people within the multi-agency public protection arrangements. If they believe that it would enhance public protection to disclose to organisations and people that there is a sex offender in their area, there is a presumption that they will do so. There is a duty on them to consider that. There is not a presumption that they automatically have to inform people. If they decide not to do so, they must record that decision so that they are accountable for it being made. That does not satisfy people at the extremes, but in my view, and in the view of the majority of the people who have supported this measure, from children’s charities like the National Society for the Prevention of Cruelty to Children on the one hand to Sara Payne on the other, it is a way of moving the debate forward.

Alongside that particular arrangement, we are going to pilot disclosures—these will not form part of the Bill—where individual people can register a child protection interest. Again, the responsible authorities will have a duty to consider whether they should disclose such information and whether doing so would be in the interests of the child. I would suggest that this is an extremely important area of the Bill. I look forward to hon. Members from all sides contributing and adding to the debate. I know that hon. Members sometimes question consultation, but this consultation took place over almost a year. People started from polarised positions and we have now arrived not at a compromise that is a fudge, but at one that allows us to see how well this operates, and whether it enhances child protection. If that is the case, we can learn from it and move on.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

We have just 10 minutes. David Burrowes and Harry Cohen want to come in again, so if each of you could ask a very short question one after the other and then the Minister can respond.

Q 54

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

Can we have details of the proposals for the new offence of inciting homophobic hatred, evidence of where the present legislation is inadequate and details of how we will protect freedom of speech? What will be criminalised and what will not be?

Q 55

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I want to ask about prostitution, perhaps with relation to rehabilitation sessions—I think that magistrates can order three sessions. There was an advert in The House Magazine from the  organisation CHASTE, which suggested that the problem began with the trafficking of women and said that the Swedish model has been a success. Has the Home Office done any research on the Swedish model? Maybe it is the men who should be sent to rehabilitation sessions, to learn about trafficking—

Mr. Coaker: I shall leave the point about homophobia to Maria Eagle and I shall deal with the question on prostitution. The proposals on prostitution in this legislation are very important. I will say a little about them—you mentioned rehabilitation.

The Bill does two things of immense importance. First, it takes the term “common prostitute” out of the law, which is something that all the organisations which we work with have been very pleased about, and something that in 2007 is a positive step forward. Secondly, although soliciting and loitering remain offences, the inclusion of a rehabilitative penalty in the Bill ensures that we have a measure that we can use to help street workers to get out of the circumstances they are in. Rather than fining street workers, or dealing with them in a broad sense, we will try to look at their circumstances, their situation in terms of employment, housing and all those other things—often drug addiction—and we will try and work with them to do something about it.

We also want to tackle the issue of demand. With respect to street workers, we have done a lot with kerb-crawling campaigns. The Sexual Offences Act 2003 clarified the law and raised the legal age from 16 to 18, making it an offence to purchase sex with anybody under the age of 18.

Trafficking is a huge issue. I have made this point time and time again: if somebody knowingly has sex with a trafficked person, the trafficked person is not freely consenting to that sexual act. In my view that is rape, and as many people as possible should be charged with rape if they knowingly—I include that word—have sex with somebody who is trafficked.

With regard to the Swedish model, I am sure that all members of the Committee know that it is an offence to pay for sex in Sweden. That was introduced in 1999. The evidence is unclear as to whether that has led to a drop in prostitution, or whether it has pushed it underground, leading to an increase in off-street prostitution. We need more work to be done on the matter to see whether we can learn anything from it. However, one of the things that has happened has been an increase in internet advertising to do with prostitution. That perhaps suggests that the matter has simply been pushed underground. However, the evidence is very patchy and it is difficult to get full information about what the impact has been. I take the point. I can see you waving at me, Sir Nicholas, and I will stop at this point. We must always look at whether we can learn from examples from other countries. The Government have made no decision about that.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Maria Eagle to respond to Mr. Burrowes’s question.

Maria Eagle: On the point about incitement to homophobic hatred, we now have provision in law to outlaw incitement to hatred of particular groups on the  grounds of race or religious belief. We believe that it is right to extend that protection to people who are homosexual—to make it unlawful to incite hatred of people who are homosexual. Let me make it clear that we do not intend to place too onerous a burden on freedom of speech. We realise that we must have a balance between protecting homosexual people from hate crime and freedom of expression. It is not our purpose to try to interfere with people expounding or setting out their own religious beliefs. It is not our intention to prohibit discussion or debate about the perceived rights or wrongs of homosexuality, or to stop comedians from making jokes, but it is our intention to outlaw incitement to hatred. That is what the provision will do. We will bring forward the draft provision in time for the Committee to consider it and at that time it will be possible to have a further debate about whether it is pitched correctly, or whether people agree with how it is pitched.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Thank you. Could we move on quickly to the final part that we will be able to cover in this sitting: part 8?

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am not sure which of the Ministers is responsible.

Mr. Coaker: It is me.

Q 56

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Thank you. Am I right in thinking that applications for violent offender orders can only be made to the magistrates court? [Interruption.] Yes. We are dealing with essentially a criminal injunction to prevent, or to discourage, or to deter an individual who comes within various qualifications from committing particular offences—is that right?

Mr. Coaker: It is not a criminal penalty, it is a civil order.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

It is granted by the magistrates court.

Mr. Coaker: It is granted by the magistrates court in the same way as magistrates courts grant other civil orders.

Q 57

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Yes, they grant ASBOs and they may, presumably, grant prevention of serious crime orders. Now is not the time to have a philosophical discussion about the blurring of the division between the criminal law and the civil law.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

It certainly is not. We need to concentrate on the Bill.

Q 58

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Yes, exactly. What concerns me is that the qualifying offences are manslaughter, soliciting murder, wounding with intent to cause grievous bodily harm, malicious wounding, and attempted murder or conspiracy to commit murder. Those are all quite serious offences that would normally be dealt with by a senior Crown court judge or a High Court judge in the criminal courts, and yet you think that it is appropriate that such applications should be made to the magistrates.

Mr. Coaker: We certainly do because the original specified offences that the hon. and learned Member for Harborough has referred to will have been dealt with by the criminal courts as appropriate. We are talking about an individual who is post-conviction, whose term of imprisonment—their licence period—has come to an end, and yet the assessment of the chief police officer is that they are still a risk, notwithstanding the fact that they have completed the sentences that the criminal courts have given them. In those circumstances it would be appropriate for the chief police officer to apply to the magistrates court.

Q 59

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

These individuals are subject to the criminal law. The criminal law says that it is an offence to commit murder or to solicit murder. Why is that not adequate?

Mr. Coaker: Because we are seeking to prevent that. With respect to the hon. and learned Gentleman, we are trying to use civil orders to prevent future harm, whereas the debate between us is that he would use the criminal law to deal with somebody who does something wrong. We are trying to interdict into that period so that somebody does not do something wrong in the first place, as well as using the criminal law as a deterrent.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

You are suggesting that the law of murder is not sufficient to deter—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. Before I adjourn the Committee, may I, on behalf of the Committee, thank all our witnesses for the courteous and full way in which they have sought to deal with the questions put to them by the Committee? Thank you very much.

It being One o’clock, The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Four o’clock.