§ Lords amendment:No. 76, in page 24, leave out lines 31 to line 389.15 pm
§ Madam Deputy Speaker
With this it will be convenient to discuss Government amendments (a) to (c) in lieu thereof, Government amendments (d) and (e) to the words so restored to the Bill, Lords amendment No. 79 and the Government motion to disagree thereto, Government amendments (a) and (b) to the words so restored to the Bill, Lords amendment No. 80 and the Government motion to disagree thereto, Government amendments (a) and (b) in lieu thereof, and Government amendments (c) and (d) to the words to restored to the Bill.
§ Mr. Boateng
Our amendments achieve two objects. First, they restore to the Bill a power for the Secretary of State to add to the list of factors that must be taken into account when imposing exclusion orders and exclusion and curfew conditions. Secondly, they increase the maximum length of exclusion order and conditions to two years, rather than 12 months.
Amendments accepted in another place, which were moved on the advice of the Delegated Powers and Deregulation Committee, deleted from the Bill the power of the Secretary of State to alter the maximum period of exclusion orders and exclusion and curfew requirements of other community sentences.
However, those amendments inadvertently deleted non-contentious powers that allowed the Secretary of State to add to the list of factors that must be taken into account when imposing exclusion orders and exclusion and curfew conditions. Notice was therefore given that it would be necessary to restore those powers. The amendments in lieu are designed to achieve the point of principle conceded in another place, but at the same time to ensure that the powers that ought to remain do remain.
Furthermore, as a corollary to the deletion of the delegated powers to extend the maximum sentence in these matters, the Government also gave notice that we would need to extend the maximum sentence for exclusion from 12 months to two years. In so far as any 892 further changes to the maximums will need to be carried out in primary legislation, the amendments grant courts the flexibility required to carry out the piloting of the provisions in the short term, by increasing the available maximum sentences.
I trust that hon. Members will see that these changes are not contentious, and I hope that we will not long delay the House.
§ Mr. Bercow
I am afraid that the Minister's trust is misplaced. We have considerable concerns on this front. Once again, the tactic is becoming clear. Whenever Ministers have something unpalatable to say to the House—this was certainly considered unpalatable in the other place—they deploy a mixture of a tone of sweet reasonableness and a weary cynicism about the possibility of anyone dissenting from their propositions.
We are here concerned with some extremely important matters: exclusion orders and exclusion and curfew requirements. There is a legitimate concern about the wisdom or appropriateness of the Government arrogating to themselves such Henry VIII powers in order to add to—or even, conceivably, subtract from—judgments made elsewhere.
It might prove in the end that the Government have a point, in which case, with my customary grace, I shall be happy to concede, but I am concerned about the extreme breeziness and insouciance—I use the words advisedly—with which the Minister dismissed the legitimate concerns expressed by some very distinguished Members of the other place.
To prove that I am not exclusively preoccupied with my noble Friend Baroness Blatch, I will instead focus briefly on Lord Russell, whom I regard as an immensely distinguished man and a thoroughgoing humanitarian. That does not mean that he is not wrongheaded, as most Liberal Democrats are, on all sorts of matters—of which, no doubt, more anon, in the weeks and months ahead—but there can be no doubt that he is concerned with justice and the rights of the individual and with propriety in our legislation and procedures.
Lord Russell is very worried indeed that the Government are riding roughshod over the views of the Delegated Powers and Deregulation Committee. It has been asked for, and has given, its view of the Government's proposals. That view is singularly unflattering. However, all that the Minister can do is to chuckle at any expression of dissent. I find it perturbing that he is not only grinning in a somewhat unendearing fashion but is chewing something. He is certainly not chewing on the argument. If he did so, he might see that there is some sense in saying that the Government should not take to themselves powers to amend in a matter of this kind.
We are talking about the conditions of a sentence imposed on someone convicted of an offence. The idea that the Government should subsequently impose new conditions or variations in the places to which people are entitled to go, without obvious good reason or clear justification to the House, does not seem credible to me.
In seeking hastily to dredge up some justification for its shabby treatment of the other place, the Government argued that there was a precedent. They looked back to the Criminal Justice Act 1991 and invoked an example of a similar procedure being applied.
893 There is, however, a key difference, which will have penetrated your fertile mind, Madam Deputy Speaker, almost as soon as I rose to my feet. That difference is that that august body, the Delegated Powers and Deregulation Select Committee, had not been established when the 1991 Act was passed. It was not invited to pronounce and did not offer any criticism or commendation of that part of the 1991 Act. We now have the benefit of its view, which the Government disdain.
Many people who are concerned with the reform of offenders and involved in the legal profession, who have experience of the probation service and who are united in a passionate belief in justice and an opposition to overweening state power will be very concerned by the Government's extraordinarily laid back and somewhat arrogant attitude.
We rest our case. We are the defenders of the rights of the individual, and the opponents of the leviathan. The Minister has never been much of a champion of the rights of the individual. He has always been in favour of a big state. He is fast becoming an enthusiast for an overweening, centralised and unaccountable exercise of state power.
§ Mr. Simon Hughes
We were in danger of getting into some general and philosophical political theory, but we skirted away fairly quickly.
These amendments are important. I have a question about policy clarification, and a more detailed question on the matter to which the Minister alluded.
First, will the Minister confirm that the amendments would take away the Government's power in relation to three earlier parts of the Bill—clauses 41, 45, and 46, which deal with exclusion orders, curfew orders and exclusion requirements, respectively—and mean that the Government would no longer be able to vary the possible sentence of the court? We think that that is a very important matter, and it relates to the wider debate that has already received some consideration in this parliamentary year.
The Home Secretary came to the House almost a year ago to confirm the ruling of the European Court of Human Rights in relation to the killers of James Bulger. It ruled that the court should set the tariff, and not a Minister. The right hon. Gentleman indicated that the Government accepted the ruling and would act accordingly.
The European Court appears still to permit Ministers to set the tariff for adults, as opposed to juveniles. That has not been corrected yet, even though some of us find it hard to understand how the European Court and the Government can argue that the courts can set tariffs only for juveniles and not adults.
§ Mr. Bercow
Will the hon. Gentleman confirm that he and his party oppose ministerial interference or intervention in setting any tariffs?
§ Mr. Hughes
I confirm that absolutely. Our view is very clear: it is for Parliament to pass the laws within which judges set sentences. It is not for Ministers to interfere to fix either the tariff or the sentence. Those are matters for the courts.
894 We also consider that there are some circumstances in which an indeterminate sentence may be appropriate. That view is shared by the right hon. Member for Maidstone and The Weald (Miss Widdecombe). The later consideration of whether the person involved should be released should also be determined only by the court, and not by Ministers.
The hon. Member for Buckingham (Mr. Bercow) was right to ask the question. Our view is clear, and it differs from that of Conservative Members.
§ Mr. McWalter
Does the hon. Gentleman agree that it is nevertheless important for Parliament to indicate various scales and how seriously or severely it believes that certain offences should be punished? That is particularly important given that sometimes the courts have taken a very mild view on offences such as domestic violence. It has been right for Parliament to give the lead to indicate how gravely it believes that the court should consider those offences to be.
§ Mr. Hughes
There is a whole debate here. It is for Parliament to set the maximum and the minimum sentence and to review those as it thinks appropriate. The Government, or anybody else, can bring forward proposals. It is for the courts to seek consistency of sentencing across the country so that the courts do not impose arbitrary sentences in one area. It is of course open to individual Members of Parliament, to Parliament as a whole and to the Government to express a view.
Sometimes the court—the Court of Appeal, the Court of Criminal Appeal, the House of Lords or the Lord Chief Justice—will pass a sentence that is intended to send a message regarding the view that society takes about a particular case. There are various ways in which it can be done, but I accept the hon. Gentleman's general proposition.
I do not want to delay the House further. I want to know that in accepting what the Delegated Powers and Deregulation Committee in the House of Lords has required and the amendments that the Lords have proposed, the Government will not seek, in this Bill or in other legislation, to hold to the Government and Secretaries of State the power to amend the length of sentences by order, as opposed to leaving that decision to Parliament. I share that view with the hon. Member for Buckingham. If we are to provide for longer exclusion orders, longer curfews and a period for which a curfew can be imposed, Parliament must decide the maximum period, not Ministers. Will the Minister confirm that the Government have accepted that view, not just for these three clauses, but as a general matter of policy, in relation to the Bill and in general?
The Minister said that in relation to these three clauses, the Government proposed to have pilot schemes looking at exclusion order and curfew provisions. Is it just a theory and a plan so far, or are arrangements in hand for it to happen? If so, where and when does he anticipate that action will be taken to start the pilots and how long will they last?
§ Mr. Boateng
I will set the mind of the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) at rest for the avoidance of any doubt on tariffs and delegated powers. Tariff setting involves ministerial 895 decision making about an individual offender. We believe that the consistent position of successive Governments—Conservative and Labour—on tariff setting for adults, which has been supported by the court in Strasbourg, is right, and we intend to maintain that position. The hon. Gentleman should be under no illusions about that. We disagree profoundly with the Liberal Democrats on that issue.
On the delegated powers, those which have been removed from the Bill relate to amending the sentencing maximum within which the courts make sentencing decisions. The Government will not be able to alter the maximum or minimum period that courts can impose for those sentences. That is the effect of the provisions. Let us be absolutely clear about that.
No doubt the speech of the hon. Member for Buckingham (Mr. Bercow) added enormously to the jollity of nations but, as a performance from the Dispatch Box on a serious issue, it was a bit wanting. Indeed, the early exit polls—at least on this side of the House—are not favourable. The hon. Gentleman must not expect a Florida recount if he goes on like this. It is not possible to accuse me of breezy insouciance—that is a new one for me—on the one hand and weary cynicism on the other. Breezy cynicism, maybe, but the hon. Gentleman cannot accuse me of both.
§ Mr. Boateng
I hear what the hon. Gentleman says, but I shall not go down that road. We have had an interesting debate in which serious and important points have been made. We remain firmly of the view that I have expressed and I trust that, even if hon. Members regard the amendments as partly contentious, they will not regard them as overly contentious. I therefore urge the House to accept them.
§ Lords amendment disagreed to.
§ Government amendments (a) to (c) in lieu of Lords amendment No. 76 agreed to.
§ Government amendments (d) and (e) to the words so restored to the Bill agreed to.