Lords Sitting of 4 October 2000

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bradford.

National Health Service: Winter Demand
Baroness Sharpies Baroness Sharpies asked Her Majesty's Government:
How they propose to ensure that there will be no crisis this winter in the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, a great deal of work has gone into planning for this winter. Immunisation against influenza has been extended across the UK to include all those over the age of 65 as well as other at-risk groups. In May this year an additional £150 million was made available for the expansion of critical care services in England. No one can guarantee that there will not be difficulties in the health service this winter. It is simply not possible to solve every bed problem or every staff shortage by then. However, the NHS is in no doubt about the importance of improving its ability to respond.
Baroness Sharples: My Lords, I thank the noble Lord—tired but still noble—for his reply. Does he accept that UCH is one hospital which has not had a single extra bed? With a reported shortage of 3 million flu jabs, will that not present terrible problems by January?
Lord Hunt of Kings Heath: My Lords, I certainly do not accept that there is a shortage of flu jabs. My understanding is that in the UK 11 million doses will be available in the coming year as compared with 7.8 million this year. So far as concerns capacity, we are doing everything that we can, particularly through an expansion of over 340 critical care beds, to ensure that the facility exists to deal with extra pressure. We must also face the fact that great pressure arises in relation to recruiting sufficient staff, and that is a very real challenge.
Lord Renton: My Lords, what steps will the Government take to ensure that the work of the National Health Service is not increased by bogus asylum seekers or other illegal immigrants?
Lord Hunt of Kings Heath: My Lords, I believe that since its formation a great tradition of the National Health Service has been to offer its services to all who need them. That must include asylum seekers.
Lord Clement-Jones: My Lords, does the Minister deny that GPs have had to cancel appointments because of shortages of vaccines? Has not the
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Department of Health admitted that it has only 65 per cent of the flu vaccines needed to vaccinate people over the age of 65? Will the Minister now undertake to withdraw the major publicity campaign launched by the department until he has adequate stocks?
Lord Hunt of Kings Heath: No, my Lords. I believe that the arrangements that have been made will enable us to ensure that those 11 million doses are available in GPs' surgeries. The campaign is very important because we wish to make sure that we reach the target of at least 60 per cent of the over-65s who will present themselves for the vaccination.
Baroness Masham of Ilton: My Lords, perhaps I may ask the Minister whether the flu that is expected is a new strain. Will he tell the House a little about it and what people should do if they get it?
Lord Hunt of Kings Heath: My Lords, I do not believe that I should enter clinical waters. We receive very important information from the World Health Organisation regarding the particular strains that are likely to confront this country. That enables us to prepare the vaccines. Certainly we have found the WHO service to be extremely helpful.
Lord Turnberg: My Lords, does my noble friend the Minister agree that one of the many reasons why there are problems in the NHS over the winter period is the rather prolonged closure of hospitals to all but emergencies during the four or five days of the Christmas period when staff are given a well-earned break? Does he also agree that one of the ways through that problem would be to stagger the holidays and breaks and improve the rota arrangements so that work can continue during that rather critical period?
Lord Hunt of Kings Heath: My Lords, I am not sure about staggering Christmas Day. I believe that that may prove to be rather challenging. However, I certainly accept that the issue can be a problem. In the winter planning arrangements that have been developed, we have put particular emphasis on ensuring that services across both health and social services sectors continue to function during Christmas and the New Year. We have said that a near-normal service is expected to be provided on working days in that period with access to key services on non-working days.
Baroness Gardner of Parkes: My Lords, is the Minister aware that the staff situation is greatly aggravated not only by the Christmas break, which I believe the staff value greatly, but by the fact that many staff either are themselves ill or suffer ill effects after Christmas and fail to return to their duties on the first day of work? Can the Minister provide a suggestion as to how to improve that situation?
Lord Hunt of Kings Heath: My Lords, I hesitate to caution NHS staff against over-indulgence over the Christmas period. They work very hard and when they

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have time off they are entitled to enjoy themselves. The important issue of staffing has been a real challenge to the health service. I believe that recruitment campaigns and the increased emphasis that we are placing on flexible working conditions will enable us to meet some of the staff issues that we face. We must keep working at it.
Lord Bruce of Donington: My Lords, is the Minister aware that whatever hazards may lie before the people of this country during the forthcoming winter, they can be confident that the entire personnel of the health service is dedicated to the task with which it has been entrusted? The nation ought to have complete confidence in the staff this coming winter.
Lord Hunt of Kings Heath: My Lords, I echo the remarks of my noble friend. I understand that he is 88 today and I am sure that all noble Lords congratulate him. I know he was present in another place, although the proceedings took place in this actual Chamber, when the NHS Bill was taken through Parliament in 1948.
Baroness Northover: My Lords, is the Minister aware that many hospitals have still not made arrangements for dealing with an increased demand this winter? Does he agree that such plans should have been worked out at least months ago, given that winter tends to come around on an annual basis? As the plans that are now being considered involve cutting operating lists so that beds can be freed, can he tell us how the Department of Health intends to avoid extending waiting lists so that the spring does not become the new time for "trolley-waits"?
Lord Hunt of Kings Heath: My Lords, the Government have targeted waiting lists and that is why we are well on course to meet our manifesto pledge. In relation to factoring in the impact of winter pressures on waiting lists, every trust has to make such calculations. On planning, every local health community has a local winter planning group which involves the whole of the health community, the authorities, the trusts, the social services and the independent and voluntary sectors. Each community had to produce a plan by the end of September. We shall monitor that situation carefully. Where we believe there are likely to be problems we shall not hesitate to intervene.

House of Lords: Nomination of Members
2.45 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway asked Her Majesty's Government:
Whether they consider that it is in accordance with the status of this House that members of the public should be invited to propose themselves for membership.
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, the short Answer is yes, indeed the Government believe that the new arrangements for nomination of Cross-Bench Peers should, by their openness, enhance the dignity of the House. The Government want the process to encourage nominations from all sections of society and clearly self-nomination has a role in opening up the process. I am confident that that will not diminish the quality of membership as the standards for appointment to be used by the noble Lord, Lord Stevenson of Coddenham, and his co-commissioners are exacting.
Lord Campbell of Alloway: My Lords, I thank the noble Baroness for her Answer. Is she aware that there is a body of contrary opinion that takes the view that the status of the House would be adversely affected? Can she tell the House why making self-nomination available to candidates for the non-political peerages, promoted on government funding and in implementation of a government policy to modernise this House, would not require the approval of Parliament?
Baroness Jay of Paddington: My Lords, I know that the noble Lord is aware that the process of establishing the non-statutory Appointments Commission to take forward the process of reviewing the nomination procedure for Cross-Bench Peers in the House was part of the House of Lords Act arrangements we dealt with extensively last year. Of course, we must await the outcome of the consideration that the noble Lord, Lord Stevenson, and his commission are undertaking. I believe that it is a little pessimistic at this stage to say that it will lead to a reduction in the quality of membership of the House. It is not a view shared by the Government.
Lord Borrie: My Lords, is my noble friend aware that some of the most senior and most dignified posts in the public and private sectors in recent years have been advertised for self-nomination, including posts for the higher judiciary? Does she agree that in no way is it abusive of the dignity of such positions that one should have the widest possible opportunity of being able to appoint the widest possible range of people to important posts?
Baroness Jay of Paddington: My Lords, I agree with my noble friend. In relation to other potential criticisms of the outcome of this arrangement, one of the bases for election of Members to the other place and potentially of elections of Members to this House is that people self-nominate themselves and put their names forward for such positions. As I understand it, the party of the noble Lord, Lord Campbell of Alloway, is supportive of the idea that there should be an elected portion of the membership of this House.
Baroness Platt of Writtle: My Lords, does the Leader of the House agree that there should be more emphasis on nomination by groups of people, just as in local government people have to be put forward by

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others? If one wants to be a fellow of a learned society one has to be proposed by other fellows. Does she agree that the people of greatest value to this House are unlikely to put themselves forward?
Baroness Jay of Paddington: My Lords, the noble Baroness may be under a slight misapprehension as to what is happening. Self-nomination is only part of the process being undertaken by the noble Lord, Lord Stevenson. Obviously, there is capacity to extend the nominations procedure and for people to be nominated by the kind of bodies suggested by the noble Baroness, or indeed by a group of friends. Self-nomination is just one of the paths towards the appointment of Cross-Bench Peers which the noble Lord and his commission will be examining.
Lord McNally: My Lords, as one who had sight of a Prime Minister's postbag for three years, will the Minister accept that self-nomination is not so new an idea as might be thought? Has she also had time to consider an idea that I floated in The House Magazine that, because of the importance of the Cross-Benchers in the House of Lords, it might be as well if the noble Lord, Lord Stevenson, ran the ruler over existing Cross-Benchers to judge their suitability as well?
Baroness Jay of Paddington: My Lords, as always the noble Lord, Lord McNally, comes forward with some fascinating and inventive ideas. I do not believe I break any code of family secrets as I suspect we are speaking of the same Prime Minister, in referring to the numbers of self-nominations, when I say that my noble friend Lord Callaghan always told me, as I am sure he did the noble Lord, that he carried a special piece of paper in his pocket for those who volunteered themselves in this capacity.
Lord Harris of High Cross: My Lords, in view of the noble Baroness's reference to the advertising of top jobs, and in view of the discontent some of us still feel about inciting an unseemly scramble for peerages in this way, may I suggest that she considers taking a leaf out of Iolanthe and offers her own exalted station for competitive examination?
Baroness Jay of Paddington: My Lords, I am happy to do that if that is a proposal noble Lords seek as a way of reform. I am always looking for ways to achieve reform.
Lord Faulkner of Worcester: My Lords, does my noble friend recall that the present system is not without its critics? Does she remember that earlier this year her distinguished predecessor as Leader of the House, the noble Viscount, Lord Cranborne, described one of this year's nominations for a life peerage by Mr William Hague as an affront to the dignity and standing of Parliament?
Baroness Jay of Paddington: My Lords, there is the potential to affront the dignity and standing of
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Parliament in many ways. But I do not believe that the process being undertaken by the noble Lord, Lord Stevenson, will do that.

Sierra Leone
2.52 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
What orders have been given to the commander of British forces in Sierra Leone on how to deal with mercenaries flying a helicopter gunship on behaft of the Government of Sierra Leone.
The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, UK personnel in Sierra Leone liaise with those employed by the Government of Sierra Leone to pilot their helicopters. This is essential, not least to ensure that UK forces are not mistakenly attacked and to avoid the risk of collision between UK and Government of Sierra Leone helicopters. In addition, a British officer is advising the Government of Sierra Leone on the establishment of an air wing. He advises on air transport, reconnaissance and offensive capability requirements.
Lord Avebury: My Lords, is the Minister aware that the mercenary force, using a helicopter gunship, bombarded civilian areas in Makeni, Lunsar and Kambia, killing many civilians? Does she feel it is appropriate for a British officer to advise a force engaged in committing war crimes? Also, does she appreciate that there have been numerous resolutions of the UN General Assembly condemning the use of mercenaries in internal armed conflicts? The UN rapporteur on the use of mercenaries reaffirmed that there is an absolute prohibition on the employment of those people. Will not the Government therefore persuade President Kabbah to dismiss the mercenaries and to get on with the job of training his own forces?
Baroness Symons of Vernham Dean: My Lords, I understand the noble Lord's anxieties. He has an extraordinarily good record in pursuing these issues in Sierra Leone which I know cause him a good deal of concern. But we must look at the definition of "mercenary" in the first instance. The noble Lord will know that there is no universally accepted definition of what amounts to a mercenary. As regards the reports that have been received concerning the activities of the helicopter gunship, they are unconfirmed.
If the noble Lord has matters that he wishes to discuss in relation to specific incidents, I shall be happy to talk to him about that in private. However, in doing that I must stress that British troops are on the ground at the moment in Sierra Leone and are the subject of hostile activity. It is less than one month since the British soldier was killed. Therefore in discussing this matter I can say nothing in your Lordships' House that puts into the public arena information which may be of use to our potential enemies. I am sure the noble Lord

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understands that and I therefore make the offer to discuss these matters with him privately if he would find that useful.
Lord Burnham: My Lords, is not the noble Lord's Question another reason why we should have a full debate or a Statement to this House on Sierra Leone? I asked the Minister for a debate about a month ago and confirmed the request in a conversation with her officials last week. I recognise what the noble Baroness says in relation to operational confidentiality. But are not the forces in Sierra Leone largely dependent on mercenaries—if that is the correct word—for the very efficient air traffic control in Sierra Leone?
Baroness Symons of Vernham Dean: My Lords, I can confirm the noble Lord's point. I apologised to him in private, and I do so again in your Lordships' House, because I was not aware of the detailed contents of a letter that arrived when I was away. So the noble Lord is quite right. But so is the answer I gave him on Monday. These matters can be discussed through the usual channels if the noble Lord wishes to press a point over the debate.
In answer to whether or not the point of the noble Lord, Lord Avebury, strengthens the argument here, as he probably already knows, the Government are committed to publishing a Green Paper on mercenary activity by November 2000 as the basis for consultation. I should have thought that that would be an ideal vehicle for further discussion, whether that is in your Lordships' House formally or by other means.
I am not sure whether the noble Lord is right in suggesting that the Government of Sierra Leone are dependent on mercenaries for air traffic control. There is a narrow delta of activity in Sierra Leone between Lungi airport and Freetown. That is where the activity is concentrated and it is through the proper liaison I described to your Lordships that collisions, as well as unnecessary attacks, are avoided.
Lord Avebury: My Lords, I agree with the Minister that nothing should be said or done that would bring our troops into danger in Sierra Leone and I join him in congratulating our forces on the excellent job they are doing in training the new Sierre Leone army. But would he agree that the casualties and deaths which are being caused by the mercenaries' helicopter gunship are far away from any scene of operation in which British troops are engaged, particularly in Makeni, where civilians were killed in the lower part in the central market? If I provide the noble Baroness with details of the casualties, including the names of the persons who were killed, which have been reported by the Centre for Democracy and Development in Freetown and also by ABC Television in Australia, will she undertake to look into them and take the matter up with President Kabbah?
Baroness Symons of Vernham Dean: My Lords, as I said, I am aware of the press reports. However, they are unconfirmed by the sources that we would
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normally expect to confirm such reports. I am happy to receive any information that the noble Lord has and to put that information before other Ministers. If it is deemed necessary to take these matters further, I am sure the appropriate action will be taken. But I hope the noble Lord will let me be a party to the information which he believes he has on these matters.

IRA Arms Dumps
3 p.m.
Lord Dixon-Smith Lord Dixon-Smith asked Her Majesty's Government:
When they next expect any of the three members of the de Chastelain Commission to visit or revisit IRA arms dumps.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, the inspection of arms dumps is not carried out by members of the international commission themselves but by the two distinguished inspectors, Maarti Ahtisaari and Cyril Ramaphosa. They reported to the commission on 25th June that they had completed their first successful inspection of a number of arms dumps and had concluded that it signalled a genuine effort by the IRA to advance the peace process.
The IRA's statement of 6th May gave a commitment that the dumps would be re-inspected regularly to ensure that the weapons had remained secure. The Governments very much hope that the IRA will shortly honour that commitment and enable the inspectors to submit a further encouraging report to General de Chastelain and his colleagues.
Lord Dixon-Smith: My Lords, I am grateful to the noble and learned Lord for his response. Does he recognise the symbolism of the decommissioning process, not only for the non-republican community of Northern Ireland but for all communities of the United Kingdom? Decommissioning has been recognised as requiring to be a process but it appears to be a one-stop act. Are the Government taking steps to try to ensure that the process gives more the appearance of being continuous and less the appearance of being interrupted?
Lord Falconer of Thoroton: My Lords, of course I recognise the importance of the decommissioning process to the whole peace process. The House will recall that on 6th May 2000 the Provisional IRA issued a statement saying that it would initiate a process which would completely and verifiably put IRA arms beyond use. In the same statement it referred to the confidence-building measure of allowing the two distinguished persons to inspect the arms dumps. The arms dumps have been inspected once and the IRA contacted the international commission on decommissioning. Therefore, steps are being taken. The Government hope that a further inspection will take place soon and the process will continue.
Lord Molyneaux of Killead: My Lords, is the Minister aware that the three dumps visited contained only obsolete weapons, already replaced by new weapons supplied from America where five members of the Provisional IRA have been convicted and imprisoned? Does the Minister share my hope that the American Government will not follow the practice of the Northern Ireland Office and release such prisoners within a matter of days?
Lord Falconer of Thoroton: My Lords, I cannot comment on what the American Government may do. However, my knowledge of the contents of the arms dumps comes from the report of the inspection by President Ahtisaari and Mr Ramaphosa. They stated in their report to the international commission on decommissioning:
"We have now carried out our first inspection. We inspected a number of arms dumps. The arms dumps held a substantial amount of military material, including explosives and related equipment, as well as weapons and other material".
They also stated that they believed that their inspection, which had been allowed by the IRA,
"was a genuine effort by them to advance the peace process".
Baroness Park of Monmouth: My Lords, how confidence building can the process be when neither of the eminent gentlemen is a soldier and when one very much doubts whether either would know a rocket launcher from a Hoover? Is there any possibility of insisting that on the next inspection someone should be included who would know such things? Frankly, it is totally unreasonable to describe the process as "confidence building".
Lord Falconer of Thoroton: My Lords, I take issue with the noble Baroness when she seeks to play down the significance of the arms inspection in June. The two gentlemen are distinguished politicians. One should not lose sight of the fact that opening up arms dumps for independent inspection is an unprecedented step for a terrorist organisation to take. I have no hesitation in stating that according to my knowledge the inspections were useful, meaningful and credible and provide an important confidence-building measure.
Lord Marsh: My Lords, would the noble and learned Lord accept that his statement does not answer the question put by my noble friend? No one disputes that weapons were demonstrated. What is at issue, and what has been widely reported, is that those weapons were obsolete and are known to have been replaced. Can the noble and learned Lord address himself to that question?
Lord Falconer of Thoroton: My Lords, I was asked whether I knew that the dumps contained obsolete weapons? My knowledge of what was in the dumps when they were inspected comes from what the two distinguished gentlemen stated in their report. I understand that the noble Lord, Lord Molyneaux, based his question on what was reported in The Times
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and other newspapers yesterday. They were described as reports of senior intelligence officers or senior security sources. I am not in a position to comment in relation to them. All I can tell the House is what the two distinguished gentlemen stated.
Lord Dubs: My Lords, is my noble and learned friend in a position to comment on reports in the press that a second inspection is imminent and that it will include further arms dumps in addition to those previously inspected?
Lord Falconer of Thoroton: My Lords, I am aware of reports in the press which attribute to the Sinn Fein leadership words to the effect that it is confident that the IRA will uphold the commitments it gave on 6th May. Like everyone else, I shall wait to see what happens.
Lord Smith of Clifton: My Lords, will the Minister indicate what further steps the Government have in mind to enable the de Chastelain commission to be more proactive in facilitating the process of decommissioning on both the republican and paramilitary loyalist sides?
Lord Falconer of Thoroton: My Lords, I agree with the premise underlying the question that it is also for the loyalists to decommission. However, it is for the de Chastelain commission to decide on the appropriate steps. As I indicated in answer to an earlier question, there are two strands to the issue; first, the confidence-building measure of inspecting the arms dumps—and I note what my noble friend Lord Dubs said in relation to that—and, secondly, the creation of a process which is a matter between the de Chastelain commission and the terrorist organisations.
Lord Tebbit: My Lords, does the noble and learned Lord have any idea of the percentage of arms held by the IRA in the three dumps?
Lord Falconer of Thoroton: My Lords, I cannot answer that question. I have no idea.

Criminal Justice and Court Services Bill
3.6 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD CHANCELLOR in the Chair.]
Schedule 4 [Meaning of "offence against a child"]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 82:
Page 54, line 22, at end insert—
("( ) an offence under section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of child);").
The noble Lord said: Before turning to the substance of the technical amendment in front of us, I want briefly to mention that earlier this week I placed draft copies of the guidance for Part II of the Bill in the Library of the House. I must stress that this is a preliminary draft and at this stage we are merely seeking comments on it from a range of organisations. It is in no way, shape or form a finished document.
Baroness Blatch: I am grateful to the Minister for giving way. I was not aware of that and wondered whether other Members of the Committee were aware of it.
Lord Bassam of Brighton: The purpose of my making these simple observations at the Dispatch Box today is to ensure that everyone is on notice of the fact. I apologise that the noble Baroness was not previously aware of it but I am making it plain to the Committee today that we have taken this important step.
I am making the draft available now so as to provide an indication of how the scheme might work in practice. I hope that this will help to inform our consideration of this part of the Bill and also to ensure that the guidance reflects the intentions of both this House and the other place for the operation of the scheme.
The Government have tabled Amendment No. 82 to Schedule 4 which sets out the definition of an offence against a child and thereby serves to identify those who should be disqualified from working with children. The Government's technical amendment follows the proposed increased penalty for the possession of child pornography. The amendment ensures that those who receive a sentence of 12 months or more for possession of indecent photographs of a child will be disqualified from working with children under Part II of the Bill. I beg to move.
Baroness Blatch: I do not believe that I am the only Member of the Committee who is rather dismayed by the Minister's remarks. If the intention of placing a document in the Library of the House is to inform debate on the issue, none of us knew about it until this moment. We have had no opportunity to read the document that has been placed in the Library and debate on this part of the Bill will be complete by the end of today.
Lord Bassam of Brighton: I undertook to place a copy of the guidance in the Library of the House at the earliest possible moment so that debate at later stages of the Bill would be more complete. I raise the matter this afternoon as a matter of courtesy to the Committee. I apologise for the fact that the noble
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Baroness has not had sight of the document. However, we undertook to ensure that the document would be placed in the Library of the House at the earliest possible opportunity. We believe that to make available a copy of this document, which I stress is in draft form, at the earliest possible opportunity is in the interests of everyone and ensures that this piece of legislation is effectively thought through and that guidance upon it is well considered.
Lord Northbourne: Before the noble Lord sits down, perhaps he can clarify one matter. What is the guidance to or for?
Lord Bassam of Brighton: The guidance which relates to Part II of the Bill is a preliminary draft, not a finished document. It is hoped that it will enable people to have a better understanding of the proposed penalties for possession of child pornography. One would have thought that that would be a helpful step to take. I hope that the noble Lord finds the document a constructive and helpful read.
Baroness Blatch: My point is that it would have been helpful if Members of the Committee had been able to see it when it was deposited. Can the Minister tell the Committee when the document was deposited and why only now noble Lords are informed that it is in the Library?
Lord Bassam of Brighton: I said in an earlier response that we placed the guidance in the Library earlier this week. I shall try to ensure that the noble Baroness is made more precisely aware of when that occurred. I am informed that it took place on Monday.
Baroness Blatch: I do not want to prolong the debate, but I believe that to be outrageous.
3.15 p.m.
Lord Northbourne: Not having seen the guidance or been aware that any had been produced, I must speak without the benefit of it. However, I support the amendment in principle. There are two reasons why pornographic photographs are very damaging. First, there is damage to the child itself when the photographs are taken; secondly, there is a tendency for pornographic photographs to stimulate fantasies. That leads adults with such a tendency to live out those sexual fantasies.
I ask the Government to define more closely what they mean by "indecent photographs of a child". For example, in one case reported in the press, Boots the Chemist was asked by a perfectly innocent person to develop photographs of his granddaughter sitting in the bath. The matter was reported to the police. The man was accused of being a paedophile and a very great deal of trouble and unfairness ensued. Can the Minister give an assurance that either in these guidelines or at some future stage there will be an opportunity to define the nature and character of "indecent photographs"?
Lord Dholakia: We dealt with the first part of the Committee stage as early as this week. At that time the

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Minister did not mention that the draft document would be placed in the Library. We have no difficulty in supporting this measure. However, in matters of this nature which have a direct bearing on the point, the Committee should know precisely what is available. As the Minister is used to sending so many letters to noble Lords on both sides of the Chamber, it would not have been out of place had he had the courtesy to send the document to us. If so, we would have been better informed and been able to contribute more positively to this debate.
Lord Bassam of Brighton: I am grateful for the interventions on this part of the legislation. This guidance is related to how we expect the provisions in Part II of the Bill to work in practice in relation to the disqualification of unsuitable people from work. The guidance is intended to inform the police, the Probation Service and voluntary organisations. We intend to go out to consultation on the contents of the guidance and we have simply shared it with the Committee as a courtesy. If some Members of the Committee regard my failure to mention it earlier as a discourtesy I apologise unreservedly. As the noble Lord, Lord Dholakia, observes, on many occasions I have undertaken to keep noble Lords informed at every stage of the process on which we are embarked. I apologise if some Members of the Committee feel slighted by this. I believed that I should raise this with the Committee this afternoon as a matter of courtesy. Although I do not believe that it would have had a direct bearing on the content of our debates this afternoon, on reflection perhaps it would have been more helpful if the Committee had been forewarned of its appearance.
We are pleased that we have produced the guidance as early as we have. It was completed in first draft form only at the end of last week. I am grateful for the forbearance of the Committee in this matter.
Baroness Blatch: I cannot claim to be totally satisfied by the noble Lord's response. This Committee sat on Monday. Was the Minister aware that the document was to be placed in the Library on Monday? If not, why not? He should have been aware of it. If he was aware of it, it would have been courteous had we been told that it was in the Library on Monday, and even more so if the Minister had taken the advice of the noble Lord, Lord Dholakia, and given Members of the Committee copies of the guidance.
The noble Lord made a baffling observation. He said that it did not have a direct bearing on our debates today. If the guidance is an explanatory note on Part II it will have a direct bearing on today's debate. This is a wholly unsatisfactory state of affairs.
Lord Bassam of Brighton: I always try to be helpful on these occasions. I shall come to the point raised by the noble Baroness in due course. It is worth pointing out that this part of the Bill was not reached on Monday. We were then busy with earlier parts of the legislation to which we gave careful consideration.
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I was not aware on Monday that the guidance was to be placed in the Library. I was made aware of that yesterday when I worked through the papers. We need to focus on what is before us this afternoon. This is simply a technical and, I believe, uncontroversial amendment. I had not predicted that advice to the Committee about something that we believed was constructive would create such interest and concern in the noble Baroness. I apologise if Members of the Committee feel slighted in any way, which was not my intention. At all times my intention is to be helpful and to have worthwhile and constructive debates on important issues of the day.
Lord Ampthill: In view of the comments that have been expressed with such strength from around the Committee, does the Minister agree that the amendment has merit but that it has been impossible to discuss it now because the draft of the guidelines has become available only very late in the day? Perhaps the Minister will consider withdrawing the amendment and bringing it back on Report when everyone will have had a chance to think about it.
Baroness Hilton of Eggardon: When I was in Opposition we did not get guidelines during the passage of a Bill. I should like to pray in aid the support of the noble Lord, Lord Harris of Greenwich, in relation to the Police Act 1996 and in relation to the Environment Act 1995. Those were large and important Acts. We did not get guidelines until after the Bill had passed through all stages of the House. I think that the Committee is lucky to have even draft guidelines which are available in the Library.
Baroness Blatch: In response to the remarks of the noble Baroness, Lady Hilton, the noble Baroness will know— certainly the Minister will know—of the difficulty of technical people in the background, the officials, the counsel and all the people involved in drafting guidelines. A Minister can only do his or her best to press for guidelines. I do not think there is a Minister on either side of the House who does not do his or her best in the backroom to press for guidance, because it is helpful to the Committee. I can honestly say, with hand on heart, that during the nine years I was a Minister that, if guidance existed, I certainly did not wait until the next Committee day to tell Members that it had been placed in the Library some days before.
Lord Bassam of Brighton: More is being made of this matter than is necessary. I certainly am not inclined to withdraw the amendment as it is a technical amendment. It sets out a definition of an offence against a child. The guidance is guidance. It is there for our information. If Members of the Committee feel that it is important to have a debate on that, no doubt the issue can be raised again on Report. The Bill makes perfect sense without the guidance, as does the amendment. The guidance is for those working in the childcare sector. That is where it is most important.

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That is where it will be applied. That is where it will be interpreted and understood. At the first opportunity I had I advised the Committee of the presence of the guidance in the Library of the House. I thought that I was being courteous in providing the Committee with the information in a timely way.
Lord Hylton: Will the Minister take note that his amendment is not terribly well-drafted. It should be inserted at lines 19 or 20 on page 54 of Schedule 4.
Lord Bassam of Brighton: I am grateful to the noble Lord. I shall reflect on his helpful observation.
Baroness Carnegy of Lour: Will the Minister respond to the noble Lord, Lord Northbourne, and give the Committee an adequate definition of what is an indecent photograph of a child? For those of us who have not been involved in the drafting of the Bill, but have been listening to the discussion with great interest, that seems to be the main point. Is that in the guidance that no one has seen? Is the Minister able to give a definition now or will he wait until Report stage? So far as concerns the amendment, clearly that is the nub of the matter.
Lord Bassam of Brighton: The definition is contained in Schedule 4 to the Bill. The guidance is guidance. It is interpretation, rather like the PACE codes are guidance to the Police and Criminal Evidence Act. When the noble Baroness has had an opportunity to look through the draft guidance I look forward to any constructive observations she has. I shall want to listen to any concerns she has about it. I shall be more than happy to meet and discuss those concerns. But what we are talking about this afternoon is actually what is on the face of the Bill and in the schedules.
Baroness Blatch: Perhaps the Minister would like to know that my noble friend Lady Seccombe has just been to the Library to get a copy of the guidelines for me and it is not there.
The Principal Deputy Chairman of Committees (Lord Tordoff): I apologise to the Committee for being precipitous previously but I had not realised that the noble Lord, Lord Northbourne, wished to intervene. It is now my duty to put the Question. The Question is that Amendment No. 82 shall be agreed to. As many of that opinion will say, "Content". To the contrary, "Not-Content". I think the Not-Contents have it. Clear the Bar.
Division called.
Tellers for the Contents have not been appointed pursuant to Standing Order No. 54. A Division therefore cannot take place, and I declare that the Not-Contents have it.
3.30 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 83:
Page 55, line 41, at end insert—
("( ) he commits an offence under section 4 of the Misuse of Drugs Act 1971 (restriction on production and supply of controlled drugs) by supplying a controlled drug to a child,").
The noble Baroness said: When this issue was discussed in another place—
Lord Shepherd: I wonder whether we could have an explanation. A number of my colleagues are still in the Division Lobby where they went as a consequence of the Opposition's action—
Noble Lords: No!
Lord Shepherd: At least time should be allowed for noble Lords to come back to the Chamber.
Lord Carter: I take full responsibility. A second teller was not appointed on the "Content" side.
Baroness Blatch: When this issue was discussed in another place the Minister said:
"There can be few incidences of the supply of drugs that are more serious than the supply of drugs to children. That is wicked beyond belief. The hon. Member for Surrey Heath is right to draw attention to the evil that it represents. When there is evidence of the supply of drugs to children, it attracts properly condign and exemplary punishment, and it is right that it should. It is also right that we should take a particularly dim view of those who exploit their position with children to peddle drugs to them. That is a very serious matter and one would expect the law to take it seriously".
It is on the basis of the Minister's own words that I have moved the amendment today.
In the same debate the Minister said:
"The evidence, which forms the basis for the Bill, is that drug dealers seldom target the under-18s; they have a much more scatter-gun approach and are out to sell drugs to anyone whom they can lure into buying from them. They do not care how old someone is—which is partly where the wickedness lies".—[OffIcial Report, Commons Standing Committee G, 13/4/00; cols. 145–146.]
I agree with the Minister that dealers do not care to whom they sell drugs. As long as they sell them they do not care who is buying them. But to say that they do not target children is monstrous. If we believe the statistics, we see that too many of our children are being supplied with drugs in their communities and at school gates. While they may not be targeted specifically, they are nevertheless being targeted.
We cannot continue to wring our hands about the drug problem among children if we are not prepared to make those who supply the drugs, particularly controlled drugs, pay the price by banning those people from working with children. That is what we are talking about in this amendment. It is about the disqualification order. Anyone who supplies drugs to children should be included in the disqualification order. I beg to move.
Lord Bassam of Brighton: On the face of it the amendment moved by the noble Baroness is attractive. I yield to no one in my determination as a Minister to

1525
do all that I can to ensure that we fight the drugs war and the drugs menace. As a parent, as a Minister and as a socially concerned person, I see it as one of the Government's primary responsibilities to do all we can to ensure that we counter the drugs culture and dissuade people from becoming interested in drugs, becoming involved in drugs and becoming drug dealers and drug users.
The supply of drugs to children is an extremely serious offence and should be treated as such. It can result in potentially long-term harm to children, either intentionally or recklessly. However, when you look at the actual facts on drug dealing, the amendment does not have the required impact, even if targeted at those who supply drugs to children. Neither in practical terms nor on an evidence-based approach would it be feasible to include this as an offence that merited disqualification from working with children. The evidence clearly indicates that drug dealers seldom, if ever, target under-18s as such but will supply drugs to those of any age who wish to buy. There is clear agreement across the political divide on that point.
The main group using drugs range from 16 to 29 and it will probably be a matter of chance whether a child figures on any indication of who takes drugs. Because the dealer may well not know the ages involved—if, for example, he is supplying drugs outside a night club—there could be an unacceptable degree of arbitrariness in the application of the disqualification. This question of practicality and arbitrariness is an important one. There are other serious drugs offences, such as possession with intent to supply or conspiracy to supply, which fall into the same area of harm. It would be odd and arbitrary to pick out only one drugs offence in the way envisaged in the amendment. However, the evidence in a case of possession with intent to supply is likely to concern lifestyle, quantity of drugs, equipment, and so on, not the possible identity of the person to whom the drugs would be supplied. For conspiracy to supply it is the agreement, not the actual supply, which would need to be proved. But this offence arguably catches the "bigger" fish.
Moreover, the offence of supply itself does not require any financial element. It would cover teenagers sharing pills even if no money changed hands. Indeed, the evidence is that children are introduced to drugs by their peers, not by older drug dealers, and the dealer allegedly hanging around the school playground is something of a myth. That is well established by the report on drug misuse and the environment produced by the Advisory Council on the Misuse of Drugs in 1998. For the reasons I have given I do not accept the amendment put forward by the noble Baroness despite its apparent attractiveness. I ask her to withdraw the amendment.
The second area of difficulty in including the supply of drugs in the schedule perversely arises from the extremely serious nature of the offence itself and the proper severity with which the courts deal with it. A student selling drugs outside a night club might well, quite properly, be dealt with very severely by the courts but riot pose a long-term danger to children such as would merit the disqualification.
1526
For these reasons we do not think it would be right to include this offence as a trigger for the disqualification order. It could not be delivered in practical terms or supported on an evidence-based approach. The practical and legal difficulties which lie behind the rejection of the amendment should in no way be misrepresented as a lack of concern over drug abuse by children or others, or a lack of rigour with those responsible for peddling illegal substances.
We should do all that we possibly can to bring such people to justice. But to include the offences in the list to trigger the ban would not help with that; nor would it serve better to protect children from abuse.
Baroness Blatch: I do not know on which planet the official who wrote that brief for the Minister is living. It would be wrong not to include as a person unfit to work with children someone who supplies controlled drugs to children. The noble Lord referred to the difficulty of identification. That might be used as a defence by a shopkeeper who sells cigarettes to children. Shopkeepers are expected, even though it may be difficult at times, to know who is under and who is over age. A publican is expected by law, though it may be difficult from time to time, to know who is under and who is over age. Why should it be any more difficult for a policeman to know whether drugs have been sold to someone who is or is not under age? In either of those cases, as the noble Lord pointed out, it is an offence. For that reason, someone who supplies controlled drugs to anyone else will be guilty of an offence.
But the other reason given by the noble Lord is completely baffling. He said that someone who supplies drugs outside a nightclub— I do not know why he referred so often to nightclubs; I am much more concerned about what happens outside the school gates or in youth clubs—is committing a very serious offence indeed. While that person may be severely dealt with by the courts for supplying drugs, in particular for supplying them to children, it does not make them fit people to work with children. In opposing my amendment, I must assume that the noble Lord is saying that a person who supplies drugs to a child can continue to be excluded from an order which prohibits them from working with children. I wonder if the Home Secretary would confirm that to the parents of Leah Betts or to all the other children who, sadly, have suffered from the effects of someone older supplying them with drugs.
I find that quite offensive and I shall return to this matter on another occasion. The noble Lord will have an opportunity to discuss the brief with his officials and perhaps reflect on what he has said. However, I can confirm that I shall certainly return to this issue and at that point I shall seek the opinion of the House.
Baroness Masham of Ilton: Before the noble Baroness withdraws her amendment, perhaps I may offer her my support. A few years ago, Barnardo's produced a report on child prostitution which looked in particular at children between 13 and 15 years of age. They were enticed into prostitution by being given drugs.

1527
Parents of children with drug problems in Glasgow visited us here in the House of Lords. Those parents were desperate because people were giving drugs to their children. This problem is bigger than perhaps the Minister truly realises.
The Earl of Listowel: Perhaps I may voice a concern as regards a particular point. It is quite credible to believe that young people are often supplied with drugs by their peers. For that reason, we may encounter a difficulty here, in that young people may be disqualified from working with other young people, perhaps as the result of a minor episode which occurred when they were still rather immature.
Baroness Blatch: The noble Earl, Lord Listowel, makes an important point and I take that on board. Indeed, if one examines the list of offences in the schedule, the same observation could be made about many of them. However, it is my understanding that when a disqualification order is contemplated by the courts, they have the ability to consider exceptional circumstances. It could be that the discretion conferred on the courts to make such a judgment is the best way to deal with that kind of situation.
Furthermore, we have in place revocation procedures whereby people may apply to the tribunal for a revocation order. If we are discussing young people under the age of 18 giving drugs to each other, while that is not something I condone, the period during which they can apply is somewhat shorter than for those who are over 18. The discretion is in place in the Bill as regards the application of a disqualification order and would deal with that point.
I regard this amendment as extremely important. The supply of drugs to children is the scourge of the age. The problem is so serious that we need to do as much as we can to prevent it. Furthermore, it is serious enough to warrant allowing the Minister time to reflect once again upon it. I shall return to this issue, but if at that stage the Minister is still not minded to accept an amendment along these lines, I shall then seek the opinion of the House. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 agreed to.
Clause 26 agreed to.
Clause 27 [Disqualification from working with children: adults]:
3.45 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 84:
Page 12, line 38, leave out ("either") and insert ("one").
The noble Baroness said: In moving Amendment No. 84 I shall speak also to Amendments Nos. 85, 87 and 96. I shall not be moving Amendments Nos. 86 and 88 and I shall explain why in a moment.
Amendments Nos. 84 and 96 are consequential. Perhaps I may therefore move on to the core of this grouping; namely, Amendments Nos. 85 and 87. They introduce additional conditions which, if met, will result in disqualification from working with children.
Amendment No. 85 invites the court to make a determination, having regard to all the circumstances, that a convicted person over the age of 18 is likely or not, as the case may he, to commit a further offence. Amendment No. 85 applies the same condition to a convicted person who is under the age of 16.
As I have just said, I shall not be moving Amendments Nos. 86 and 88 on the ground that, on reflection, the word "further" in Clause 27(5) and 28(4) have the same effect as my amendments would have had. When he comes to reply, I should be grateful if the Minister could confirm my understanding of these amendments. I apologise for that. I need to table these amendments myself and, since I am not legally qualified, I do not always get it right. I beg to move.
Lord Bassam of Brighton: These amendments raise an important issue, crucial to the balance of the scheme in Part II of the Bill. Perhaps I may deal with them carefully and in some detail.
The Government's aim here is to ensure that an effective scheme to protect children is put in place. As currently drafted, the provisions seek to provide the strongest scheme possible but at the same time to ensure that the entire scheme is properly justified by the need to protect children.
There are three main reasons why we do not think it right to adopt the approach of allowing the courts to disqualify from working with children anyone who commits one of the trigger offences listed in Schedule 4. First, the disqualification has a serious impact on an offender's private life. It must be imposed only where clearly justified by the underlying criminal offence. It is no substitute for the imposition of lengthy custodial sentences where these are warranted by the offence and necessary for child protection. That is a vital point.
To make the disqualification available on a discretionary basis might encourage sentencers who are wavering on the issue of custody not to impose it on the basis that the disqualification would be an adequate safeguard. We believe that this would be a retrograde step.
I should also draw the attention of noble Lords to the express provision contained in Section 2 of the Criminal Justice Act 1991, which has now been consolidated in the Powers of Criminal Courts (Sentencing) Act 2000, on custodial sentences. This is that the sentence shall be:
"where an offence is a violent or sexual offence, of such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender".
That is clear and unequivocal. Where the individual poses a risk to children, his sentence should reflect that. I should note in this context that if there are, for example, compassionate circumstances which make a prison sentence unsuitable, a suspended sentence will also attract the disqualification order.

1529
Secondly, it is essential that the disqualification is imposed automatically, unless there are very exceptional circumstances, on all serious offenders against children. This adds enormously to the strength and coherence of the scheme. The requirement of a penalty of 12 months' imprisonment as a trigger serves to identify an offender for whom an automatic ban is justified. Underneath this level of penalty, there would have to be unfettered discretion for the courts, which would need to consider the risk likely on an individual case basis.
The discretion envisaged would serve only to dilute and weaken the scheme. It would bring its underlying principle in doubt. It would also add to its complexity, administration, bureaucracy and, inevitably, to its room for error.
I should like to make one further point in this respect. We regard it as essential to get the scheme off to a strong start. We should like disqualification to be seen as inevitable for adult offenders when the conditions are met—which is similar to registration under the Sex Offenders Act—although its severe nature makes the need for some residual discretion important. But that is not to say that, when the scheme has bedded in, the issue could not be revisited if the evidence is that this would add to child protection. As I said earlier, at present such a step would weaken the protections, but obviously this is something we properly need to keep under close review
Thirdly, we believe that it is essential for the disqualification order to be awarded at Crown Court level or higher. Magistrates are not trained or qualified to make such decisions and they would be inappropriate people to award a lifetime ban. The use of 12 months imprisonment as a trigger serves to set the ban firmly at Crown Court level for cases either heard at Crown Court or referred there for sentence.
Of course, award of the ban could still be restricted to Crown Court level with lower penalties allowed. However, this would mean either that the same case could be liable to fundamentally different disposal depending on the mode of trial, even if the primary sentence was the same, or that provision would have to be made to refer large numbers of cases to the Crown Court for sentence to consider the ban. This could lead to great additional costs in time and money to the criminal justice system.
I should also draw attention to the substantial safeguards which exist against those receiving lesser penalties for the criminal offences in Schedule 4, or who are convicted for offences falling outside the schedule, to stop them working with children. First, once the criminal records bureau is up and running, if offenders seek any such work their full criminal records, including spent convictions and cautions, should be available if a check is made countersigned by a registered body. Secondly, if they were already working with children in areas covered by the schemes run by the Department of Health or the Department for Education and Employment and committed a criminal offence with a lesser penalty, they could nevertheless be banned.
1530
Of course there will be cases—such as that of Gary Glitter—in which the immediate reaction might be, "He should be banned", but the ban is no substitute for the proper prison sentence if risk to children is involved. Moreover, the disqualification order should be seen as part of a whole network of child protection measures and as only one part of what should be an increased culture of vigilance by all organisations involved in working with children, parents and so on.
I must stress that this a difficult, complex and tricky area. While we do not wish to weaken the disqualification scheme, we appreciate that there is a need for complementary measures to deal with those who fall outside the scheme but who may nevertheless, on the basis of a detailed assessment of their individual cases, pose a risk to children. This was debated at great length in another place and we listened very carefully to the concerns raised there. This is an area where we are all working to a common goal—the protection of children.
We have already in place the sex offender order which can be imposed on a sex offender after he or she is sentenced if there is a subsequent cause for concern that the public is at risk of serious harm from them. But this cannot be imposed at the point of sentence, even if there is already evidence of such risk.
To meet concerns over cases where there is a clear need for additional public protection evident at the point of sentence, we are bringing forward a new sex offender restraining order, to be available to senior courts at the time of sentence. We will discuss this in detail later in our consideration of the Bill, but it is perhaps worth saying now that it would allow a senior court, if the circumstances—particularly the need to protect the public—fully justified it, to impose the equivalent of a disqualification order at the point of sentence on any sex offender receiving a custodial sentence. This would be imposed on the basis of the merits of the individual case. This should go a long way towards answering concerns about any apparent rigidity of the present scheme and allow for flexibility without the dilution which would result from the noble Baroness's amendments.
The noble Baroness asked me to confirm her interpretation of her own wording. I am happy to do so. But, for the reasons I have outlined, I suggest to the noble Baroness that it may be advisable for her to withdraw her amendment.
Baroness Blatch: I am grateful to the Minister for such a detailed answer. However, it has unnecessarily complicated the issue.
My amendments concern a disqualification order for those people who are already convicted in court of an offence against a child but who do not qualify for a disqualification order. One has to think only of the awful crimes committed by Gary Glitter, who traded in child pornography. He received a sentence of less than 12 months and, because of that, he did not fall into the category of qualifying for a disqualification order. I am not saying that this would apply to him, but if the court, having regard to all the circumstances,

1531
believed that someone with a similar conviction was likely to offend again, it is right that he or she should be deemed unfit to work with children.
My amendment is concerned with whether people are suitable or not to work with children. If a person qualifies for a disqualification order—a matter which was referred to in at least two or three pages of the Minister's speech—there is no problem; they qualify and that is an end to it. But it is different where an offender does not qualify for an order—that is, where someone is sentenced for something very serious but receives less than 12 months.
I am not a magistrate, but my magistrate friends know that some pretty serious offences go through the courts and that the individuals receive sentences of less than 12 months. I can remember going into Lincoln prison. The governor was showing me around and pointed to someone who was due to be released the following week—he was serving a six months sentence—and said, "I know that this man will come back. It is a dead cert that he will come back".
All I am saying is that in circumstances where the court believes that a person is likely to commit a further offence against a child, that person should qualify for a disqualification order that deems him unsuitable to work with children. That is all the amendment seeks to do.
Lord Bassam of Brighton: I am grateful to the noble Baroness for her further clarification and explanation. I appreciate the arguments she is putting forward—I shall not beat about the bush on that—but I had hoped she would pick up the point that I made earlier that this is an issue which we may wish to revisit at a later stage, perhaps when we see the scheme and system properly kick in. At this stage we believe that we have got the measure about right. It is important that we try to get it right at the outset. There will be scope for further review.
It is perhaps worth making the additional point that disqualification is not a substitute for a proper sentence. The unfortunate impact of the noble Baroness's proposal is that it might undermine proper sentencing. We need to see the scheme working and to make a judgment at a later stage. I do not rule out that at some later stage we may have to revisit the issue.
Baroness Blatch: I am not sure that the Minister understands the Bill. I am not talking about a substitute for a proper sentence; I am talking about a person who has been given a proper sentence in the court. I am talking about a person who has committed a crime against a child and who has received a sentence which does not qualify him for a disqualification order. If the court, having regard to all the circumstances—which is the wording of my amendment—believe that that person is likely to commit a further crime against a child, he should be deemed unfit to work with children and thereby qualify for a disqualification order.
1532
I can only conclude from what the Minister said that the Government feel that somebody who is convicted of a crime against a child but who, as the Bill is set out, does not qualify for a disqualification order, nevertheless can be deemed fit to work with children. I beg leave to seek the opinion of the House.
3.59 p.m.
On Question, Whether the said amendment (No. 84) shall be agreed to?
Their Lordships divided: Contents, 73; Not-Contents, 104.

Division No.1

CONTENTS

Alton of Liverpool, L.

Lang of Monkton, L.

Anelay of St Johns, B.

Listowel, E.

Astor of Hever, L.

Lyell, L.

Attlee, E.

McColl of Dulwich, L.

Biffen, L.

McConnell, L.

Blatch, B.

Mackay of Ardbrecknish, L.

Boardman, L.

Marsh, L.

Brabazon of Tara, L.

Masham of Ilton, B.

Bridges, L.

Molyneaux of Killead, L.

Bristol, Bp.

Montrose, D.

Brougham and Vaux, L.

Mowbray and Stourton, L.

Burnham, L. [Teller]

Murton of Lindisfarne, L.

Byford, B.

Northbourne, L.

Campbell of Croy, L.

Northesk, E.

Carnegy of Lour, B.

Norton of Louth, L.

Clark of Kempston, L.

O'Cathain, B.

Darcy de Knayth, B.

Onslow, E.

Denham, L.

Oxfuird, V.

Dixon-Smith, L.

Palmer, L.

Elles, B.

Park of Monmouth, B.

Elliott of Morpeth, L.

Plumb, L.

Ferrers, E.

Renton, L.

Fookes, B.

Roberts of Conwy, L.

Fraser of Carmyllie, L.

Rogan, L.

Gardner of Parkes, B.

Rotherwick, L.

Glenarthur, L.

Seccombe, B.

Gray of Contin, L.

Selsdon, L.

Hanham, B.

Skelmersdale, L.

Hayhoe, L.

Stodart of Leaston, L.

Henley, L.[Teller]

Swinfen, L.

Hooper, B.

Tenby, V.

Howe, E.

Thomas of Gwydir, L.

Jenkin of Roding, L.

Trumpington, B.

Jopling, L.

Tugendhat, L.

Kimball, L.

Warnock, B.

Laird, L.

Wilcox, B.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Burlison, L.

Ahmed, L.

Carter, L. [Teller]

Alli, L.

Christopher, L.

Amos, B.

Clarke of Hampstead, L.

Andrews, B.

Cledwyn of Penrhos, L.

Bach, L.

Clinton-Davis, L.

Barnett, L.

Cocks of Hartcliffe, L.

Bassam of Brighton, L.

Craig of Radley, L.

Bernstein of Craigweil, L.

Crawley, B.

Blackstone, B.

Davies of Oldham, L.

Blease, L.

Dean of Thornton-le-Fylde, B

Borrie, L.

Desai, L.

Bragg, L.

Dubs, L.

Brennan, L.

Elder, L.

Brett, L.

Evans of Parkside, L.

Bruce of Donington, L.

Farrington of Ribbleton, B.

1533

Faulkner of Worcester, L.

Mason of Barnsley, L.

Fitt, L.

Massey of Darwen, B.

Fyfe of Fairfield, L.

Milner of Leeds, L.

Gibson of Market Rasen, B.

Mishcon, L.

Gladwin of Clee, L.

Mitchell, L.

Gordon of Strathblane, L.

Molloy, L.

Goudie, B.

Monson, L.

Gould of Potternewton, B.

Nicol, B.

Graham of Edmonton, L.

Patel of Blackburn, L.

Grenfell, L.

Paul, L.

Harris of Haringey, L.

Pitkeathley, B.

Harrison, L.

Prys-Davies, L.

Haskel, L.

Ramsay of Cartvale, B.

Hayman, B.

Rendell of Babergh, B.

Hilton of Eggardon, B.

Richardson of Calow, B.

Howells of St. Davids, B.

Roll of Ipsden, L.

Howie of Troon, L.

Sawyer, L.

Hoyle, L.

Shepherd, L.

Hughes of Woodside, L.

Shore of Stepney, L.

Hunt of Kings Heath, L.

Simon, V.

Imbert, L.

Simon of Glaisdale, L.

Irvine of Lairg, L. (Lord Chancellor)

Smith of Gilmorehill, B.

Islwyn, L.

Smith of Leigh, L.

Jeger, B.

Strabolgi, L.

Jenkins of Putney, L.

Strange, B.

Judd, L.

Symons of Vernham Dean, B

Kirkhill, L.

Taylor of Blackburn, L.

Laming, L.

Tomlinson, L.

Lea of Crondall, L.

Turnberg, L.

Lipsey, L.

Turner of Camden, B.

Lockwood, B.

Uddin, B.

Lofthouse of Pontefract, L.

Varley, L.

Macdonald of Tradeston, L.

Wedderburn of Charlton, L.

McIntosh of Haringey, L. [Teller]

Wilkins, B.

Mackenzie of Framwellgate, L.

Williams of Elvel, L.

Williams of Mostyn, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.9 p.m.
[Amendments Nos. 85 and 86 not moved.]
Clause 27 agreed to.
Clause 28 [Disqualification from working with children: juveniles]:
[Amendments Nos. 87 and 88 not moved.]
Clause 28 agreed to.
Clause 29 [Sections 27 and 28: supplemental]:
Baroness Seccombe Baroness Seccombe moved Amendment No. 89:
Page 13, line 39, leave out ("for a term of 12 months or more").
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 90 to 93. The amendment relates to another very serious matter and follows on the previous amendment. It is important as it involves the protection of children.
As a magistrate, I was always advised that a sentence of imprisonment of any length cannot be imposed unless the Bench believes that there is no other appropriate way of dealing with it. It follows that only serious offences result in imprisonment of any duration.
Twelve months is a lengthy sentence in anyone's view, and to restrict disqualification to that period is not acceptable. It would not, and indeed did not, catch cases such as the former drummer of the Bay City
1534
Rollers or Gary Glitter. Many members of the public believe that such offenders should be disqualified from working with children, and we agree with them.
We appreciate that disqualification is a consequence of a serious offence—a conviction—as the Minister of State said in another place. However, we on these Benches believe that the protection of children is paramount. I beg to move.
Lord Bassam of Brighton: This set of amendments addresses precisely the same arguments as those just discussed. Therefore, it is not necessary for me to rehearse all of them again. There are three main reasons why we do not think it right to adopt the approach of allowing the courts to disqualify anyone who commits one of the trigger offences in Schedule 4 from working with children.
As I believe is commonly accepted between us, disqualification has a serious impact on an offender's life. It should only be imposed where it is clearly justified by the underlying criminal offence. It is also essential for the disqualification to be imposed automatically on all serious offenders against children. As I said earlier, we believe that it is essential for the disqualification order to be awarded at the right level of court as regards these more serious offences.
We are entirely at one across the Dispatch Boxes on the serious nature of these offences. As I said in the earlier debate, this is a matter that we shall continue to keep under review; indeed, we do so at all times. However, we need to have a provision that is both proportionate and workable. We believe that the current scheme qualifies on both those points. For those reasons, I urge the Committee to reject this set of amendments.
Baroness Seccombe: The Minister's response is most disappointing. The situation whereby people like Gary Glitter would be able to work with children seems to me to be quite wrong. I note that the Minister said that the matter will be kept under review. It is true that an automatic disqualification in such circumstances would be in force for a certain time, but the convicted person could always make an application to the court to have it removed if he had not offended for a period of time.
We should be concentrating on the protection of children. Surely it is the job of this Chamber to ensure that children are fully protected. I shall read the Minister's response in Hansard and discuss it with my colleagues. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 90 to 93 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 94:
Page 14, line 10, leave out ("or guardianship").
The noble Lord said: This amendment relates to a minor technical change to Clause 29. A guardianship order is properly defined in subsection (1) at line 35 on page 13. The reference to a "guardianship order" on page 14 at line 10 is, therefore, superfluous. We believe

1535
that removing that reference and adding "guardianship order" (as defined previously in the clause) as a separate meaning of a "qualifying sentence" will solve the problem. For those reasons, I ask the Committee to accept this small, technical government amendment. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 95:
Page 14, line 11, at end insert ("or
( ) a guardianship order,").
On Question, amendment agreed to.
Clause 29 agreed to.
Clause 30 [Appeals]:
[Amendment No. 96 not moved.]
Clause 30 agreed to.
Clause 31 agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 97:
After Clause 31, insert the following new Clause—
Baroness Seccombe Baroness Seccombe moved Amendment No. 109:
Before Clause 37, insert the following new clause—

Criminal Justice and Court Services Bill

  REINSTATEMENT OF DISQUALIFICATION ORDER
  (" .—(1) This section applies where the Tribunal has directed under the provisions of section 31 that a disqualification order is to cease to have effect in respect of an individual.
  (2) A relevant person may at any time apply to the Tribunal for the reinstatement of the disqualification order.
  (3) An application under subsection (2) may only be granted if the Tribunal is satisfied, having regard to all the circumstances, that it is likely that the individual will commit a further offence against a child.
  (4) Where the Tribunal reinstates an order under this section, it must state its reasons for doing so and cause those reasons to be included in the record of the proceedings.
  (5) In this section. "relevant person" means—

  (a) the Secretary of State;

  (b) a superintendent of police;

  (c) the director of social services of a local authority.").

  The noble Baroness said: This amendment will test how serious the Government are about disqualification orders and about ensuring that people who are unsuitable to work with children are prevented from doing so. The amendment would allow the Secretary of State, a superintendent of police or the director of social services to seek a reinstatement of a disqualification order from a tribunal if it is believed that, following revocation of a disqualification order, a person poses a further threat.
  The introduction of disqualification orders is welcomed. However, where a tribunal under the Clause 30 powers directs that a disqualification order ceases to exist and the individual concerned subsequently displays threatening behaviour, it is also important that the tribunal should be free to reinstate that order so as to protect children. At that point, the person will have spent his sentence and, therefore, he will have to commit another crime before the courts can intervene for a second time.
  The amendment would allow the courts to make a determination that such is the behaviour of someone who has had an order revoked that it qualifies him for reinstatement of the order. It is a reserve power and one that we all hope will be used infrequently. Nevertheless, these are potentially dangerous situations. We believe that such a provision would prove to be a serious child protection measure. I beg to move.
  The Earl of Erroll: I believe this amendment to be most sensible for the simple reason that we always have this difficulty of the police saying, "We can't do anything because no offence has been committed". If used with extreme discretion, such a power would be useful.
  Lord Bassam of Brighton: I am intrigued by the noble Baroness's remarks. However, the record of this Government in trying to sort out what was something of a hotchpotch of legislation in this field of protecting children is of the highest order. The measures that we have brought forward have now begun to provide a consistent and coherent framework for protecting children; and, indeed, for driving home that important range of arguments, as well as ensuring that the public are aware of the importance of protecting children. Although there may have been some very good intentions in the area prior to this Government coming into office, coherent provisions such as those contained in the framework of this Bill were not available.
  This amendment, a proposed new clause, would allow a disqualification order that had been removed by a tribunal to be reinstated by it. As the noble Baroness said, it would allow the Secretary of State, a superintendent of police or a director of social services to apply to the tribunal for the order to be reinstated.
  The review process is strict. Reinstatement of the ban would constitute an additional penalty. The amendment adds nothing to the force and rigour of any of these processes and could in some circumstances undermine them. I fully understand why the noble Baroness moved the amendment. As I have argued, the Government share, and have done much to champion, the need to protect children and to ensure that those who should be disqualified remain so if any risk to children remains.
  It is for that reason that once a person has been disqualified the process is heavily weighted so that he or she can achieve a lifting of the ban only if they can positively satisfy the tribunal that they no longer pose a risk to children. This is a strong and stern test and a substantial safeguard within the scheme. To allow the tribunal to reimpose the ban would not add to the safeguards for children. Moreover, it could potentially weaken the scheme. I am sure that that is not the noble Baroness's intention.
  The amendment properly sets a high criterion for reimposition of the ban. Such a high criterion would indeed be necessary in the circumstances envisaged. However, the reinstated disqualification would appear

  1537
  to be a new penalty and Article 6(2) protections under the Human Rights Act 1998 and the European Convention on Human Rights seem properly justified.
  But this statutory route to reimpose the ban could limit the ability to reimpose the ban through other routes such as by the Secretary of State. This is because the high criterion, which would rightly be essential for the tribunal to reinstate the disqualification order, might be read across to the other ways in which the person might be banned a second time without recourse to the reimposition of the order.
  It may be helpful if I set out what these other ways would be. If a person from whom a disqualification order has been lifted gives further cause for concern there are three possible avenues of action. First, if he is working with children in the areas covered by education or health department bans, a ban could be reimposed by the same route as before if his conduct was sufficiently serious to merit his dismissal or removal from work with children.
  Secondly, if he is a sex offender and begins to fall into his former ways, a sex offender order could be applied for; this could include a ban on working with children. Finally, if he were a violent offender, the precursor activity might itself be criminal; alternatively, an antisocial behaviour order might be sought.
  Baroness Blatch: I am grateful to the Minister for giving way. Do the three examples he has mentioned pertain if a person's sentence is completely spent?
  Lord Bassam of Brighton: The answer is "Yes". Thus we see no need for the new clause proposed by the noble Baroness. As I said, by setting in statute such a high criterion for reimposition it could make protection more difficult by these other routes.
  I fully understand the noble Baroness's reasons for proposing the new clause. However, we cannot accept it. We believe that we have a robust framework. I hope that the noble Baroness will withdraw the amendment.
  Baroness Blatch: Before I do so, I press the noble Lord further. A person may have a completely spent sentence but a social services director, a superintendent of police or the Secretary of State may believe that that person is displaying behaviour that gives cause for concern. Under the terms of my amendment they would apply to the tribunal and the latter would decide whether the person constituted a threat. I believe that the noble Lord is saying that a ban can be imposed on a person whose sentence is completely spent without that person attending a court proceeding. On what basis could a court proceeding take place if the person concerned had not committed an offence?
  Lord Bassam of Brighton: I confirm that it would be possible to apply a ban.
  Baroness Blatch: But what procedure would be invoked and on what basis would that person be further punished? The noble Lord states that my
  1538
  amendment constitutes a further punishment. However, he has read out three further punishments that could be imposed on an innocent person in the sense that he or she has a spent sentence. Will the noble Lord explain why my amendment constitutes a punishment and is unacceptable when he has given three examples of punishment for a person who is innocent at that point?
  Lord Bassam of Brighton: The person may be innocent at that point but, as the noble Baroness said, they may well exhibit peculiar behaviour. Sex offender orders and anti-social behaviour orders are awarded by the civil court on the grounds of new risk. That is how the scheme works.
  I believe that we have a perfectly practical and workable method of dealing with this matter. The key point is that the tribunal should only ever lift a disqualification order in exceptional circumstances. Being able to reimpose it might make tribunals more generous in that they might consider they could afford to take risks. However, we do not want them to take risks. They must be satisfied that a person is positively suitable to work with children. That is an important part of the way in which our scheme works.
  Baroness Blatch: I need to press the noble Lord further. He says that a sex offender order can be imposed on someone with a spent conviction who is at that point innocent. All I am saying is that they should be deemed unsuitable to work with children. The noble Lord said that one cannot impose a disqualification order on such people—in other words, reimpose a revoked order—but one can impose a sex offender order. Will the noble Lord explain why they can continue to work with children in those circumstances?
  Lord Bassam of Brighton: We are trying to create a coherent system. I believe that the noble Baroness does not understand the way in which we see the system working. Perhaps that is because I have not explained it as well as I could, or perhaps the noble Baroness's understanding is incomplete. I believe that we have designed a robust and effective system. I suggest that the way in which the noble Baroness seeks to reintroduce a disqualification order is not workable. We want to see a workable scheme. I believe that the scheme we have offered is workable. I believe that the explanation I have given for ways in which a ban could be reintroduced is coherent. We do not think that it is necessary to do what the noble Baroness seeks. In any event, we feel that a disqualification order should be lifted and set aside only in exceptional circumstances. I hope that the noble Baroness will read what I have said and reflect further.
  Baroness Blatch: The noble Lord just mentioned a ban being reintroduced. I am suggesting that a ban should be reintroduced where someone is displaying the behaviour we have mentioned. If the noble Lord is saying that there is a system for reintroducing a ban, I should like to know what it is. I understand that the noble Lord is saying the following. Someone who has

  1539
  committed a serious offence against a child is convicted and a disqualification order is imposed. At some point a tribunal has deemed that that person is reformed and fit to work with children. Subsequently, a director of social services, a superintendent of police or the Secretary of State have reason to believe that the person is beginning to pose a threat to the public. They believe that a reinstatement of the order would be appropriate. I believe that the noble Lord is saying that it would not be appropriate and that the person in question could continue to be deemed fit to work with children. That is unacceptable. I shall return to this matter. If the noble Lord is not prepared to reflect further on the matter at the next stage of the Bill I shall seek the opinion of the Chamber.
  4.30 p.m.
  Lord Bassam of Brighton: Perhaps I may clarify the position. The behaviour that the noble Baroness describes is precisely the behaviour which would lead to reoffending. Then the situation would revert to where it was before.
  The noble Baroness needs to reflect carefully on the amendment. I think that we are trying to achieve the same objective: to ensure that people who are unsuitable to work with children do not work with them in the future. That is why we have such a hard-nosed and rigorous disqualification scheme, and I think that in very few cases would anyone manage to achieve a revocation of that disqualification. That is the important point on which to focus.
  Baroness Blatch: This is my final word on the matter. The noble Lord has made my case. Yes, of course, that kind of behaviour leads to re-offending. My amendment is about preventing re-offending, not leading to it. I am in the business of preventing children being at risk. The noble Lord says that the ban cannot be reinstated and that the person displaying such behaviour can continue to work with children. That is unacceptable. However, at this stage I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 32[Conditions for application under section 31]:
  Baroness Hanham Baroness Hanham moved Amendment No. 98:
  Page 15, line 40, leave out ("he is released") and insert ("the sentence passed on him expires").
  The noble Baroness said: Under Clause 31 a person who has been disqualified from working with children may apply to a tribunal for a review of the order. Clause 32 states that for those under the age of 18 this could be made five years after release from custody, and for those over 18 10 years after release from custody.
  The amendment proposes that the application should not be made five or 10 years from release from custody but from the time the sentence expires. While it is for the tribunal to decide whether an application can be considered, the tribunal will act in the terms of legislation as well as on its own guidelines. But it would
  1540
  be difficult, if the legislation allows for applications on the basis of Clause 32, for this to be rejected without other good reasons.
  The time that an offender is released from custody can depend on a number of factors. Some will have quite short terms, in particular if the Home Office detention curfew scheme is imposed. That would mean that those could become an option. We feel that it is better to strengthen the Bill now to make sure that the timescales are those of the full term of the sentence before the disqualification application can be made. I beg to move.
  Lord Bassam of Brighton: As I have said several times today, the Government bow to no one to explain and make clear their concern to ensure that those who are disqualified should remain so, if there is any risk to children. It is for that reason that once a person has been disqualified the process is heavily weighted so that he can achieve a lifting of the ban only if he can positively satisfy the tribunal that there is no longer a risk for children.
  I wish to reassure noble Lords that the review process is very rigorous.
  Baroness Hanham: Perhaps the Minister is reading from the wrong brief. I am raising the question of when an application can be made to a tribunal for disqualification, not for review.
  Lord Bassam of Brighton: I thought that we were discussing Amendment No. 98.
  Baroness Hanham: It is the application for the review of a disqualification order.
  Lord Bassam of Brighton: I apologise for the delay. The reason for the present wording is in order to consider whether or not this leave should be granted. On any demonstration of suitability, the tribunal must consider the individual's record in the community. There is no value in considering the period when an offender might have been imprisoned, especially when one considers that many sex offenders in prison are exemplary prisoners. It is their record in the community that we feel must count. With her experience in these matters, I am sure the noble Baroness will understand that. Equally, there is no reason to limit the period to exclude the time the offender may spend, for example, on supervision. This will be time in the community and should be counted as such. However, the tribunal might be aware that the offender might be on his best behaviour during such a time and might take this into account.
  The purpose of the disqualification order is not primarily to punish the individual but, as we all accept, to protect children. For that reason there is no requirement to tie the date on which an offender is able first to approach the tribunal to the date on which their sentence expires. The relevant period is from the date when they were first released into the community. If during that period they have returned to prison for a different or even similar offence, or perhaps had been

  1541
  recalled for breach of licence conditions, those circumstances would be extremely telling, perhaps even conclusive in the deliberations of the tribunal.
  A further difficulty with the amendment would be that some offenders who receive life sentences could never be considered for review. There could be cases where a review for someone serving a mandatory life sentence was appropriate and it would be wrong not to allow this possibility, remote thought it may be. For those reasons, we do not feel able to accept these amendments.
  Baroness Hanham: Can the Minister tell me the likely earliest possible date on which an offender could make an application for revocation?
  Lord Bassam of Brighton: I shall have to take advice on that point. I shall be happy to share that information with the noble Baroness. I am advised that it would be 10 years after release for an adult.
  Baroness Hanham: I think that we are getting the Minister into a muddle. I had understood that. My proposal—the Minister rejected it—is that the revocation, which could not be applied for until five or 10 years respectively, should be after the expiry of the sentence not after the end of the time of the sentence served. I believe that that has been rejected. I beg leave to withdraw the amendment and will consider our position after reading Hansard.
  Amendment, by leave, withdrawn.
  Clause 32 agreed to.
  Clause 33 [Persons disqualified from working with children: offences]:
  Baroness Hanham Baroness Hanham moved Amendment No. 99:
  Page 16, line 25, at end insert ("or performs on a casual basis (whether for financial reward or not) any functions which would constitute work in a regulated position").
  The noble Baroness said: The amendment would ensure that the Bill encompasses casual work—the work that people undertake in a voluntary sense which brings them into close contact with children. This work could be paid or unpaid and would cover youth groups, adventure playgrounds, church groups and so on. The amendment would toughen the existing provision, making it clear that there are no doors open to disqualified people.
  As has been well recognised in previous discussions on the issue, child sex offenders are devious and cunning. The possibility of having any access to children in the groups and organisations that I have mentioned would present great opportunities to them. Further jobs could be added to the list, such as child minding and other situations in which children need to be looked after.
  The clause is deficient because it does not cover those who seek casual labour. The amendment is designed to remedy that. I beg to move.
  Lord Bassam of Brighton: Like the noble Baroness, we are determined to ensure that individuals who pose a risk to children are prevented from obtaining
  1542
  positions in which they are able to prey upon children. I fully understand the noble Baroness's point that we are dealing with devious and sly criminals. That is why we have sought to ensure that disqualified individuals are banned from a comprehensive range of defined regulated positions. We are seeking to establish a new offence as a powerful disincentive to breaching a disqualification order.
  The definitions in Clause 37 cover work of any kind, whether paid or unpaid. Any casual work that falls within the regulated positions defined in Clause 34 will be covered. I hope that the noble Baroness will accept my assurance that there is no need for the amendment.
  It has been suggested that we should go further and undermine the concept that such work should be regular. The noble Baroness may want to include truly one-off casual work, such as a builder who would normally work on any number of sites being asked on a one-off basis to mend the roof of a school. We believe that that would go beyond what is justified by the overriding need to protect children.
  There are a number of factors to be taken into account in ensuring the protection of children. Not least is the need to ensure that offenders are not completely ostracised from society and treated as utter pariahs. Part of that consideration requires that the disqualification order does not prohibit them from taking on work that would not cause a potential risk to children. We think that the current definition of working with children, using the framework of regulated positions, will achieve the right balance. It will prevent disqualified individuals obtaining work that would give them the access to children that might enable them to abuse a child in any sense. The key consideration is whether the normal duties of the individual provide him with the kind of access to, or authority over, children that the Bill is designed to preclude.
  The current definition will catch any casual worker who comes into regular contact with children. For example, it will catch an individual who offers his services to a catering firm one of whose primary functions is the provision of meals in schools. However, it will deliberately not catch the street cleaner who occasionally tidies up a public park, unless the normal duties of the post involve regular work in or around areas set aside for the use of toddlers or small children.
  The current definition provides sufficient protection against those who might be a threat to children, but it rightly does not prevent them from taking work of any sort that might occasionally bring them into contact with children, but would not give them the sort of access that would pose a threat to children's safety.
  The amendment might make an unreasonably vast sector of the jobs market out of bounds to the disqualified individual. We see no great merit in that,

  1543
  although we fully share the concern to provide the maximum possible protection to children. We believe that our definition achieves that.
  Lord Dholakia: I thought that the noble Baroness was talking not just about casual work, but about work for which no payment is made. Will that be covered?
  4.45 p.m.
  Lord Bassam of Brighton: I thought that I had made it clear that the work would be caught whether it was paid or unpaid.
  Baroness Hanham: I was interested to hear the Minister's definitions of those seeking casual labour. He referred to catering work and street cleaners. That is not what I was getting at. Such jobs would be casual labour, but people would probably not come into direct contact with children in those circumstances. We are more concerned about voluntary organisations and groups in which people come into direct contact with children. I gave some examples, including youth groups, adventure playgrounds, Church groups or scouts. There are many areas in which people can take up work for a short period.
  Lord Bassam of Brighton: I understand that. I thought that I had made that plain. I am more than happy to take further advice. I believe that the Bill covers those positions, but I shall be happy to clarify the matter further at a later stage if the noble Baroness withdraws her amendment.
  Baroness Hanham: I should be grateful if the Minister would clarify the situation. In the meantime, we shall revisit our legal advice, which is that such positions are not covered. Perhaps we can come to an amicable conclusion between us. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 100:
  Page 16, line 28, at end insert (", or
  (b) fails to remove such an individual from such work.").
  The noble Lord said: This is a minor amendment that closes a potential loophole in the offences provided in Part II. Clause 33 provides two new offences. The first occurs when a disqualified individual knowingly applies for, offers to do, accepts or does any work in a regulated position, as defined in Clause 34. The second offence occurs when someone knowingly offers work in a regulated position to or procures such work for a disqualified individual.
  It is conceivable that someone already working in a regulated position could be disqualified. It would obviously be an offence for them to work in such a position again, but the Bill would not currently make it an offence for someone knowingly to hold open a post or keep that disqualified person in employment.
  1544
  Strictly speaking, to hold open such work or otherwise to ensure that work is available is neither to offer nor to procure work in a regulated position.
  We intend to ensure that someone who is identified as a risk to children is prevented from being in a position to cause further harm and is removed from any such position they already hold. Such an individual forfeits the right to hold positions that grant them the access to children that might give an opportunity for abuse of any kind. A disqualification order would justify the dismissal of a person from a regulated position under Section 98(1) of the Employment Rights Act 1996.
  The amendment does not contravene the sprit of the Bill. It ensures that our aim of protecting children from those who might abuse them is more thoroughly met. I beg to move.
  Earl Russell: I am sorry to delay proceedings, but I should like to ask one question by way of clarification about the interlocking of the amendment with the rules about actively seeking work, as applied by the Department for Education and Employment. I should be distressed to think that anybody was to be disentitled to benefit for not actively seeking work because he refused to apply for a job that he was very properly not allowed to hold. On the other hand, if information is to be shared with the Employment Service, as it would need to be, there could be a question of confidentiality. I should be grateful if the Minister could tell me, now or at a later stage, how the Government intend to tackle that practical issue.
  Lord Bassam of Brighton: I shall be the first to admit that my brief does not cover that issue. I understand the point that the noble Earl has raised. I believe that it is an interesting point and one which we shall obviously need to think through carefully. I can give an assurance that the individual would not be deprived of benefit for such a reason. However, if the noble Earl is content for me to do so, I shall be happy to provide him with as full an explanation as I can at a later date.
  Lord Thomas of Gresford: I want to refer simply to a matter of drafting. I notice that Clause 33(1) makes it an offence if a person,
  "knowingly applies for … any work in a regulated position".
  Under subsection (2), which we are considering at the moment:
  "An individual is guilty of an offence if he knowingly offers work in a regulated position".
  and so on. Now there is to be added,
  "or (b) fails to remove such an individual from such work".
  The mens rea appears to be absent from that provision. I wonder whether the draftsman can have a look at it.
  Lord Bassam of Brighton: I am grateful to the noble Lord for raising that point. I am not sure that I necessarily agree with him that mens rea is absent. The clause refers to "procuring". However, I shall take away the matter and examine it further.
  On Question, amendment agreed to.
  Clause 33, as amended, agreed to.
  Clause 34 [Meaning of "regulated position"]:
  Baroness Blatch Baroness Blatch moved Amendment No. 101:
  Page 17, line 25, at end insert—
  ("(i) a position whose normal duties involve the provision of youth justice services as defined in section 38(4) of the Crime and Disorder Act 1998.").
  The noble Baroness said: In moving Amendment No. 101, I shall speak also to Amendments Nos. 102 and 103. With regard to Amendment No. 101, the Youth Justice Board was set up under the 1998 Act. Therefore, it is odd that the provisions of the Bill do not include someone who is involved with the board as such work, almost on a daily basis, involves contact with children or young people. I believe that that is a serious omission from the Bill and, given the intentions of the Bill, I hope that the noble Lord will agree.
  Amendment No. 102 brings the Bill into line with some of the changes which are taking place in local government. If the Minister looks at Clause 34(5)(b), he will see that there is reference to a,
  "member of a social services committee established by a local authority".
  Now one has to add, "or any associated sub-committee". Committees as we knew them—education committees, social services committees and so on—are all disappearing under the new structural arrangements. Therefore, I believe that the inclusion of "or any associated sub-committee" would be a harmless addition. It would provide a catch-all for whatever the structural arrangements were in any local authority.
  Amendment No. 103 adds a list of regulated positions held by individuals who would be disqualified from working with children if they were convicted. The list in the Bill relates strictly to child-related positions. However, my amendment broadens the list to include positions that may involve contact with children. I cannot believe that the noble Lord will accept any of them, but certainly I believe that some of the items in my list are debatable. They are there for that purpose. However, if the noble Lord is not prepared to accept some or all of the items, I believe that he should give some clarification to the Committee as to why they are not appropriate in this part of the Bill. I beg to move.
  Lord Bassam of Brighton: I turn, first, to the inclusion of the youth justice service as a whole. That matter was considered very carefully as a result of discussions in another place. All people who provide youth justice services and who regularly supervise, train or care for or are in sole charge of children are already covered by the definition in the Bill. That should cover all front-line staff who have contact with children as part of their normal duties in any of those capacities.
  Thus, youth justice workers whose positions need to be covered are already within the definition. We do not accept that the definition should be extended to cover ancillary staff, such as secretarial and administrative staff, who, after all, have no direct contact with
  1546
  children. In some areas, such as schools and children's homes, we believe that exceptionally that should be the case. That is because the degree of trust placed in such institutions in respect of caring for children is at its very highest.
  If we extend more widely the position from which offenders under Part II are disqualified, there is a real risk that we shall create an unemployable class of people. Whole areas of local authority or health service employment would become completely out of bounds, far beyond what is needed to protect children.
  I turn to the list of positions set out in Clause 34(6). This is a crucial part of the definition of regulated positions. It denotes positions where a particular position of trust and respect is afforded to the holder. It covers roles in which, for example, postholders have the right to go into schools or voluntary groups without supervision as a privilege of their position. The children and their parents might look up to such individuals and respect them as "safe" members of the local establishment.
  However, the list specifically and rightly is limited to positions of that kind in relation to children's services and not to general positions which may happen to relate to children. The only justifiable exception is directors of social services where, even if children are only a part of their responsibility, the role is so crucial and the possibility of abuse or cover-up where things go wrong so great.
  The new positions suggested by the amendments do not fall into the child-related category. I accept that they are all positions of importance in the community. However, I believe that their inclusion here goes beyond what is necessary to ensure the protection of children.
  Amendment No. 102 takes the positions below the highest level of authority and responsibility. It goes beyond the top-level boundary that we have set. Although it is important to be a member of a sub-committee to a social services committee, we do not consider that such a position should be dealt with at the same level as a member of the committee itself. We believe that, if we begin to break down those positions beyond the level of highest responsibility, the scheme may lose its coherence.
  Of course, this is a matter which we can continue to review and which at some future date we may wish to revisit. Essentially, in our view the extra positions and services go far too wide. We believe that we have the balance right in this area as currently drafted in the Bill. For those reasons, I trust that the noble Baroness will feel able to withdraw her amendment.
  Baroness Blatch: I am grateful for that explanation. I am entirely culpable in relation to the wording of Amendment No. 102. It is my own wording and I realised, almost as the noble Lord was describing why it was not acceptable, that he was absolutely right.
  However, neither is the wording on the lace of the Bill, as it stands, acceptable. Local authorities are changing dramatically as the result of an Act passed by both Houses of Parliament. Such things as social

  1547
  services committees may not exist. In fact, I suspect that within a short time they will not exist at all. Therefore, a form of words needs to be found.
  I believe that the word that was offensive (in a mild sense) was "sub-committee" because it rather denoted that I was talking about a spawned sub-committee of a main social services committee. I was trying to say that under the new arrangements a member of a social services committee will be something else, and a description needs to be found to convey that it is the appropriate local government committee with the responsibility for social services, or some such wording. If the Minister is able to find a form of wording that better reflects what I am talking about, I shall be grateful.
  Lord Bassam of Brighton: Perhaps the noble Baroness will kindly give way. I said that we would keep the positions under Amendment No. 102 under consideration. I am quite prepared to take away the matter and give it further thought. I see some merit in the point that is being made. I suspect that the noble Baroness is right: sub-committees may well in time become things of the past. We are changing local government for the better and we may need to have a look at that issue more closely. With her agreement, I shall be happy to take away the matter and give it consideration.
  Baroness Blatch: I am grateful for that response. Again—
  5 p.m.
  The Earl of Listowel: Before the noble Baroness decides whether to withdraw the amendment perhaps I can seek clarification on one point. I understand that paedophiles have a tendency to form networks. Is the Minister confident that the measures in the Bill as it stands are sufficient protection against infiltration of paedophiles into the higher ranks of organisations that may have some ability to show patronage to paedophiles?
  Lord Bassam of Brighton: That is a pertinent question. The history of investigations into rings of child-abusing paedophiles within childcare organisations is known to all of us in the Committee. It is a matter of grave concern. One can never be 100 per cent certain about such matters. Since we have been in government, we have tried to introduce legislation that closes down all potential avenues to such infiltration. As is our aim, in large measure this Bill closes off many more of those opportunities. I am grateful for the support of the noble Earl.
  Baroness Blatch: The noble Earl, Lord Listowel, is absolutely right. One has only to read the Waterhouse report or consider the case of Mr Laverack in my own local authority. There was a sophisticated network of paedophiles working right across local government in areas that did not have direct contact with children, but they had a real opportunity to create the kind of
  1548
  conditions where, at times, they came into contact with children. That is an important point that should be given some consideration. I am delighted by the way in which the Minister has taken that point on board.
  I am sorry to be pedantic about my "sub-committee". I think it is a misleading statement and I want to expunge it from the minds of everybody. The issue that I rather clumsily attempted to resolve, but did not succeed in resolving, is the problem of there not being a social services committee. Therefore, a form of words needs to be found for a committee that has responsibility for social services.
  I understand what the Minister said about my long list. However, it needs to be kept in mind and, as the Bill becomes an Act and is put into practice, it will be important to be able to revisit some of these matters, especially in the light of the network point raised by the noble Earl, Lord Listowel.
  I am sorry about the position of the Youth Justice Board. Again and again we come back to the nature of the paedophile. By nature the paedophile is a manipulative person. Paedophiles are accommodating; they appear to be nice people in a superficial way but they are deceptive. Those who worm their way into becoming members of the Youth Justice Board do not just become clerks and secretaries but those who are responsible for policy and overseeing what happens in the area in the youth justice services. It seems to me that the Youth Justice Board is an important addition.
  I am not sure whether the Youth Justice Board is subsumed in the youth justice services. The Minister mentioned that the youth justice services will be incorporated in the Bill. If the board is subsumed in that, I would be reassured. If it is not, I may revisit the matter at later stages of the Bill.
  Lord Bassam of Brighton: On this occasion I admit to being slightly confused by the general drift of the argument of the noble Baroness. In Amendment No. 101 she talks about youth justice services and there is a reference in her other list to the Youth Justice Board and a member of a local board. We believe that we have covered most of the instances in which someone working in a local authority will come into close contact with young people. We need to keep such matters under review continually. I am grateful for the way in which the noble Baroness raised the issue. We have had a constructive discussion. I am happy to reflect on the amendments. At this stage I do not promise to bring forward changes, but we shall have to revisit this subject in due course in judging the effectiveness of the legislation.
  Returning to the sub-committee point, at some point in the future we may have to consider what it covers and whether it relates to the old chair of social services or to the new member of a local cabinet in local government. Those matters are also important as part of the changing pattern of local government service provision and the way in which people operate as politicians. I suspect that all these matters will come up for future consideration. I am grateful to the noble Baroness for raising these issues. Perhaps we are

  1549
  heading in a direction where, in the future, we may have a degree of consensus. I trust that she is happy to withdraw her amendment.
  Baroness Blatch: I shall withdraw the amendment. I am sorry about the confusion. In relation to the reference in the amendment to,
  "youth justice services as defined in section 38(4)",
  my understanding is that the Youth Justice Board was set up under that Act. That is why the reference is there and why the board is mentioned. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 102 and 103 not moved.]
  Clause 34 agreed to.
  Clauses 35 and 36 agreed to.
  Lord Bach Lord Bach moved Amendment No. 104:
  After Clause 36, insert the following new clause—

  INDECENT PHOTOGRAPHS OF CHILDREN: INCREASE OF MAXIMUM PENALTIES
  (" .—(1) In section 6(2) of the Protection of Children Act 1978 (punishments), for "three" there is substituted "ten".
  (2) In Article 3(4)(a) of the Protection of Children (Northern Ireland) Order 1978 (indecent photographs of children), for "three" there is substituted "ten".
  (3) In section 160 of the Criminal Justice Act 1988 (summary offence of possession of indecent photograph of child)—
  (a) after subsection (2) there is inserted—
  "(2A) A person shall be liable on conviction on indictment of an offence under this section to imprisonment for a term not exceeding five years or a fine, or both."
  (b) for the sidenote there is substituted "Possession of indecent photograph of child".
  (4) In Article 15 of the Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (summary offence of possession of indecent photograph of child)—
  (a) after paragraph (2) there is inserted—
  "(2A) A person shall be liable on conviction on indictment of an offence under paragraph (1) to imprisonment for a term not exceeding five years or a fine, or both."
  (b) for the heading there is substituted "Possession of indecent photograph of child".").
  The noble Lord said: In moving government Amendment No. 104 I shall also speak to Amendment No. 105 in the name of the noble Baroness, Lady Blatch.
  This new clause and the amendment of the noble Baroness deal with the same issue and in dealing with the one I shall necessarily deal with the other. However, I hope to demonstrate that, on this occasion, our amendment is superior for two reasons and to persuade the noble Baroness not to move her amendment.
  This was an area discussed at length in another place following amendments tabled by honourable Members. As the Government made clear at that time, we were grateful that the issue of penalties for child pornography offences was raised by honourable Members. That was an area that we had been considering and we were pleased to be able to agree to bring before this Committee the amendments tabled
  1550
  for discussion today. Of course, the issue of child pornography, even the offence of possession on its own, is a serious one.
  Both the government and opposition amendments will increase the maximum sentence under the Protection of Children Act 1978 for the offences of taking, making, distributing, showing and possessing, with a view to distribution, indecent photographs of children under 16 on conviction on indictment from three years imprisonment, or a fine or both, to a term not exceeding 10 years, or a fine or both.
  In addition, our amendment also makes the simple possession of indecent images of children under 16 an either way offence and increases the maximum penalty available under Section 160 of the Criminal Justice Act 1988 from a maximum of six months imprisonment, or a fine or both, to a term not exceeding five years imprisonment, or a fine or both.
  Amendments Nos. 104 and 105 demonstrate that all noble Lords fully share public abhorrence of such crimes. We need to ensure that the maximum penalties available for this type of offence reflect the seriousness with which society regards them. We agree that child pornography is not to be tolerated in any form and regard offences relating to the production and distribution of such material as very serious indeed. No one in this House will forget that pictures of child pornography are, in effect, pictures of child abuse.
  We understand that misuse of the Internet has unfortunately led to an increase in the number of offences committed under the Protection of Children Act 1978. We are all aware that public concern about the circulation of this material has grown, While the sexual offences review did not look at pornography offences in themselves, we believe that there is a clear read-across to the offences under the Protection of Children Act 1978. In light of our concern that the law delivers protection for children and of the work of the review which has the protection of children as a central aim, as well as our wider concerns over the increased incidence of child pornography offences, we feel that the time is now right—we hope we have a consensus for this—to enhance the maximum penalties for these offences.
  I said that we felt that our amendment had two advantages. The first is that it refers to the other offence—that of simple possession of indecent images—and deals with the rising and maximum sentence for that offence. The second is that the new clause will apply to England, Wales and Northern Ireland. In due course I shall move an amendment to Clause 72 to ensure that that is achieved. Colleagues in Scotland will of course consider the implications for their own legislation. As presently drafted Amendment No. 105 would not go as far as bringing Northern Ireland into the ambit of this offence. I therefore invite the noble Baroness, Lady Blatch, not to move Amendment No. 105. I beg to move.
  Baroness Blatch: I am grateful to the Minister for that explanation. I have admitted my weakness before in understanding legalese and it was helpful to have

  1551
  that explanation. Certainly on the face of it I accept the Government's amendment. It was in good faith promised in another place and it is here, and it does appear to go further than my amendment. However, I should like to reflect on the relative merits of the amendments between now and the next stage.
  The noble Lord, Lord Bach, from his experience in court and the experience of his colleague, the noble Lord, Lord Bassam, in the Home Office, will know the sheer corrupting and degrading effects of taking, making or distributing child pornography, not to mention, as the noble Lord said, the horrific consequences for children who are physically abused for the purpose. For every pornographic picture involving children there is a child abused. That is a point worth bearing in mind when this amendment is being considered.
  I am grateful for what the noble Lord said. On the face of it I accept that Amendment No. 104 is a better amendment than mine. My other point relates to something said by the noble Lord, Lord Northbourne; that is, the thorny issue still arises of a definition of pornography and pornographic pictures. It will be important to resolve that before the next stage of the Bill.
  Lord Northbourne: This gives me the opportunity of raising once again the question of what is meant by indecent photographs, which got rather lost in the toing and froing over Amendment No. 82.
  I have had the opportunity to look at Schedule 4 and also to visit in the Library the guidelines to which the Minister referred. Neither has any definition of indecent photographs. The noble Lord, in moving Amendment No. 104, referred repeatedly to child pornography. Is he saying that an indecent photograph is the same as child pornography? I am not clear. I remember when the police put on a show of pornography and associated issues by Westminster Hall. There were pictures not of children being sexually abused, but simply pictures of naked children.
  We have to be extremely careful that we get this right. In the first place we would make ourselves look absurd and discredit the cause of trying to defeat child pornography if we did not; secondly, it is wrong to give children or anyone else the idea that nakedness in itself is an evil.
  Earl Russell: I support the points made by the noble Lord, Lord Northbourne. Everyone concerned sympathises with the Government's amendment. We want to be certain that it is not going to catch people it is not meant to catch. The noble Lord says that he cannot find any definition in legislation. Perhaps there is a definition in case law which would be adequate. If so, I hope the Minister can tell us about it. If there is no definition in either, should we put one in to make sure we do not do what we do not intend to do?
  5.15 p.m.
  Baroness Blatch: Perhaps I can admit to another failure in my life. Throughout almost the whole of my time at the Home Office I tried hard to obtain a definition of indecency and failed miserably. The Home Office was very resistant to providing a definition.
  A picture that is corrupting and depraving is a picture that is not acceptable. If one thinks of the beautiful pictures of John Lennon and Yoko Ono with their child, in some of which all three were naked, none of them were indecent photographs as such. It is where the photograph itself is corrupting and depraving and where the activity that is being photographed is an offence to the child. It must be possible, with the kind of brains that we can muster to bear on this, to produce a definition of pornography. It is one of those cases where we all know what we mean by it, but in relation to the law it is important to obtain a form of words to reflect what we think we all mean.
  Lord Thomas of Gresford: I appeared in a leading case in court before the Judicial Committee of this House which was concerned with indecent assault; my noble friend Lord Carlile of Berriew was on the other side. That was a case in which a shopkeeper in Pwllheli had smacked the bottom of a 12 year-old girl. The question that arose was whether or not that was an indecent assault.
  I suggest the Government look at that case. At the end of the day what is indecent is what is indecent in the eyes of the tribunal deciding the issue, whether it is magistrates or whether it is a jury. All the circumstances of the specific case have to be taken into account. By analogy, if one applies that principle to indecent photographs, it is simply a matter for the tribunal to decide whether or not they are indecent photographs. There is no other way in which one can approach this. One cannot put into words what a picture conveys. Accordingly, one must leave it to the good sense of the judiciary, juries and the magistracy.
  Lord Laming: I support what has just been said and the noble Baroness, Lady Blatch, should not feel any sense of failure in respect of her past experience in relation to indecency. Although in the centre of it all it is possible to know what is offensive and what is against the interests of the child, at the margins—this is where indecent photographs and activities like smacking a child appear—there will always be an issue of judgment. As long as the law focuses upon the welfare and safety of the child, it seems to be in the right place. Judgments should be left to other people in individual cases. The law is now making it clear that the protection of children is at the centre of its thinking.
  Lord Bach: I am grateful to all noble Lords who have taken part in this debate. I should remind noble Lords that the government amendment looks at existing offences under Acts of Parliament going back to 1978 and suggests to the Committee that we raise the maximum sentence for them.

  1553
  In relation to definitions, we shall have to look at the Act itself in order to obtain the best definition that we can. However, the noble Lord, Lord Thomas of Gresford, with his vast experience in this field, put his finger on it. It will be for the court in each instance—the jury if the matter is heard at Crown Court; the magistrates if it is summarily—to decide whether or not any set of facts amounts to the offence in the Act of Parliament. With the greatest respect to all noble Lords who have spoken on this matter, we are here dealing with what the maximum sentence should be for an offence that is proved. If the offence is not proved, no sentence will be served because there will be no conviction. I commend the amendment to the Committee.
  On Question, amendment agreed to.
  [Amendment No. 105 not moved.]
  Baroness Blatch Baroness Blatch moved Amendment No. 106:
  After Clause 36, insert the following new clause—

  CHILD RAPE: AUTOMATIC LIFE SENTENCE
  (" .—(1) Where a person over the age of 18 years is convicted in England and Wales of an offence under section 1 of the Sexual Offences Act 1956 (rape), and where the victim was under the age of sixteen years at the time of the offence, the court shall impose a sentence of life imprisonment.
  (2) The court may not impose the prescribed sentence specified in subsection (1) if it is of the opinion that there are specific circumstances which relate to the offence or the offender which would make the prescribed custodial sentence unjust in all the circumstances.").
  The noble Baroness said: I know from the outset that the amendment will be controversial not only on the Government Benches but also on Liberal Democrat Benches and possibly on the Benches behind me. Many people—and I include myself—believe that the rape of a child is almost too awful to contemplate. The amendment is all about raping children and I know that the proposal will be controversial because it introduces a mandatory life sentence. However, it must be said that the Home Secretary, Mr Straw, has accepted the principle of mandatory sentences.
  The importance of the amendment reflects the gross indecency and the seriousness of the crime of raping a child. I am sure that Members of the Committee will ask whether this sentence will work in the same way as a life sentence for murder works and whether the Home Secretary, a politician, will decide the tariff. I envisage that the courts will decide the tariff in this case.
  Although life sentences are given, some offenders are released from prison after a relatively short time, depending on the seriousness of the offence. Nevertheless, if they are subject to a life sentence they are released on licence. That means that they will be supervised after release and should they display any behaviour which gives rise to concern that they may reoffend, they can he returned to prison.
  A person who would rape a child is a dangerous criminal who deserves to be taken out of the community for a long time. Paedophiles who operate
  1554
  in that way are deceptive and manipulative. They are often respected in their communities. They are often the last people one would expect to see in court.
  I remember being shocked when, visiting a bail hostel, I met someone who absolutely charmed me. He had travelled abroad a great deal and had pinned on the wall of his room moving letters from people who had appreciated his work abroad and photographs of children who were suffering from leprosy and with whom he had worked in the Third World. He had a record as a good school master, was very educated and had good books on his shelves. I asked why he was there. It was quite a touching story. I was told that I would not believe the horrific nature of his crimes. He had spent his sentence and had volunteered to go into the bail hostel on the ground that he could not then trust himself sufficiently to go out and live freely in the community. If I had not met someone who could tell me of his crimes, I would have believed him to be the kind of person with whom I could have trusted my children.
  It is dreadful to think that a child has been raped by someone who was trusted. I believe that anyone who will deceive to that extent and act with such gross indecency should receive a severe sentence. The sentence can be determined by the court and I shall be happy to change my amendment to that effect at a later stage. However, I believe that such a person should be supervised throughout his life because we know that paedophiles are habitual, repeat offenders. I beg to move.
  Lord Ackner: Perhaps I may say with deep and affectionate respect that the amendment is not necessary. If a court, as it may from time to time, undersentences the remedy exists by statute. It is the positive obligation of the Attorney-General in this class of case to bring proceedings before the Court of Appeal (Criminal Division). If I were the Attorney-General, I should feel deeply offended by the proposal because it presupposes that the Attorney-General is not doing his job. I see no reason why that assumption should be made.
  If there is a case which justifies an appeal, the necessary application, supported by the appropriate material, can be provided to the Attorney-General, assuming that he is not moving on his own initiative. Therefore, there is every available remedy for dealing with the situation which the noble Baroness suggests. Subsection (2) of her new clause—and I commend her—provides a let-out to the court which considers that in all the circumstances not to impose imprisonment for life would be unjust.
  However, having accepted that there should be that measure of discretion, I cannot see why on earth the noble Baroness is not content with the Attorney-General's powers to intervene. Accordingly, I suggest that the amendment is unnecessary.
  Lord Thomas of Gresford: With deep respect to the noble Baroness, I cannot support her amendment. There are infinite varieties of the offence of rape but it is difficult to get that understood. It is not the case that

  1555
  every person over the age of 18 who has penetration with a girl under the age of 16 is a paedophile. The very wording of the new clause reveals that the noble Baroness is aiming at the wrong target. Rape is of infinite circumstances.
  In a serious case of rape, there is a presumption that a person will receive a life sentence. That is very much on the cards and it is just for that to happen. Under subsection (2) of the new clause, the discretion to impose a sentence less than life imprisonment is left open to the judge. Therefore, if the amendment were accepted, he would be in precisely the same position as he is today. Accordingly, the amendment can have no effect.
  One sympathises with the intentions of the noble Baroness who wants to underline the disgust that people rightly feel for paedophile rape, but the definition set out goes much further.
  Lord Goldsmith: Perhaps I may briefly add my voice to those who are concerned about the noble Baroness's amendment. I hope that she will not believe that the debate is simply lawyers taking a view about the merits of courts.
  As the noble Lord, Lord Thomas of Gresford, said, the strong likelihood is that in the kind of case to which the noble Baroness referred—that of a person in a position of trust—the sentence is likely to be severe. However, it is unlikely that all cases fall into the same category. I believe that the noble Baroness accepts that in subsection (2), which leaves the court a discretion not to pass such a sentence.
  I want to comment briefly on that point. The proposal is that the court has that discretion if it is of the opinion that there are specific circumstances which relate to the offence or offender which would make the prescribed custodial sentence unjust in all the circumstances. I am sure that the courts would operate that; indeed, they already do.
  My concern is that setting a relatively low test to avoid the result of the mandatory sentence may bring the courts into disregard and disrespect in the minds of the public. The public will think that the offence ought to carry a sentence of life imprisonment and that Parliament has said so. Time and again the courts will not do so because the circumstances are at the other end of the scale from those to which the noble Baroness refers. That leads to the risk that the courts will not carry with the public the respect that they should have. That is an important feature of this proposal. I support the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas, who have suggested that, with respect, the noble Baroness should not press her amendment.
  5.30 p.m.
  Lord Monson: My interpretation of the case put by the noble Baroness, Lady Blatch, was that she was concerned less with imposing long sentences in all cases than in having the ability to recall individuals to prison if they began to act in a suspicious way in
  1556
  relation to young people. Perhaps that interpretation is wrong, but I believe that that is what the noble Baroness is driving at.
  Lord Bach: I am grateful to the noble Baroness for raising this important issue. She will not be surprised when I invite her to withdraw the amendment. The short debate on the matter raised by the noble Baroness, Lady Blatch, has been to the point and of considerable importance.
  I remind the Committee that the maximum penalty for the offence of rape is already life imprisonment. Section 2 of the Crime (Sentences) Act 1997 provides an automatic life sentence for those convicted of a second rape irrespective of the age of the offender or victim. This reflects the Government's view that repeat offending in respect of serious violent and sexual offences must be dealt with severely by the courts and that, accordingly, a limit on the discretion of the courts is appropriate in that category of case. In view of those provisions the amendment is of relevance only to first time offenders.
  The Government believe that judicial discretion is essential in sentencing first time offenders particularly in the case of sexual offences. That discretion may well arise in the case described by the noble Baroness where the judge uses his or her discretion to sentence a convicted defendant to life imprisonment. But to add to the number of offences for which mandatory sentences must be imposed is something that has always concerned Members of this House, whether lawyers or not. If possible we want to keep sentencing discretionary, not mandatory. Sometimes it must be mandatory but not, we believe, in this particular instance.
  The amendment represents an unacceptably radical departure from the principles of effective sentencing policy. Automatic life sentences should be clearly exceptional and reserved for categories of case in which a limit on the discretion of the court is justified. We are not persuaded that that is so in this instance. All rapes are serious; nearly every such offence demands a severe prison sentence. Sex offences against children are of even graver concern. The Court of Appeal has issued comprehensive guidelines on sentencing in cases involving sexual offences. They make it crystal clear that the age of the victim is a relevant aggravating feature. As has been observed, this offence, which is always serious, covers a variety of different sets of circumstances; some terrible and others not terrible, although still very serious.
  Reference has been made to subsection (2). We believe that in effect the provision for the exercise of discretion in specific circumstances, while understandable given the nature of the offending, will prove fatal to the intent of the amendment. We believe that the court, mindful of the fact that the offender is being sentenced for the first time, is likely to interpret "specific circumstances" more widely than in the case of repeat offenders, thereby severely reducing the impact and intended utility of the provision and thus demeaning the role of the court in society. A sentencing provision of this kind which proved to be effective in its

  1557
  purpose in only a proportion of cases to which it applied would not reflect good sentencing policy; in other words, a mandatory sentence, with which it would be comparatively easy to escape a life sentence, as it were, would not be a good sentence.
  I refer the Committee to the report of the Sex Offences Review Setting the Boundaries. It is important that the structure of offences and penalties is looked at in the round to ensure effective and comprehensive protection. The review makes recommendations relating to rape. We do not believe that it would be appropriate to interfere with the current sentencing framework pending the outcome of that review which may result in recommendations affecting sentencing in rape cases. Where this Chamber has had to deal with possible new mandatory sentences for offences it has tended to move forward carefully and slowly. The Government do not believe that the case for this important change has been made out.
  Lord Ackner: Before the Minister sits down, I note that he failed to refer to the Attorney-General. Is that because he has no confidence in the noble and learned Lord? That provides a simple answer not only to this case but to all mandatory life sentences. It is not limited to the single or repeat case but relates to all cases. Perhaps the Minister can help me.
  Lord Bach: I have the highest regard for and confidence in the Attorney-General. I have to say that because he shall join me on the Front Bench in a fairly short period! The point that the noble and learned Lord raises in regard to this amendment is extremely well made. I apologise for not referring to it in my reply.
  Lord Thomas of Gresford: Does the noble Lord also agree that there is a problem in obtaining convictions in rape cases? The public perception that there is a mandatory life sentence in less serious cases, to adopt the Minister's own expression, in the circumstances envisaged in this amendment may lead to juries acquitting. That is one of the problems that now arise in trials of rape cases.
  Lord Bach: I believe that I used the expression "less terrible" rather than "less serious". However, the noble Lord makes a good point.
  Baroness match: I was right on only one small point: nobody behind me weighed in on the amendment. I believe that there is genuine understanding of my revulsion at these offences. I made a distinction between two high school students and someone who raped a child. I referred to paedophilic rape and concentrated on the lifelong supervision of someone who despoiled the life of a young child.
  Some powerful points have been made and the matter has been dealt with very sensitively, as I always expect it to be in this Chamber. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Blatch Baroness Blatch moved Amendment No. 107:
  After Clause 36, insert the following new clause—

  USE OF ELECTRONIC COMMUNICATIONS SYSTEMS TO COMMIT ACTS OF GROSS INDECENCY WITH CHILDREN
  (" . After section 1 of the Indecency with Children Act 1960 (indecent conduct towards young child), there shall be inserted—
  USE OF ELECTRONIC COMMUNICATIONS SYSTEMS TO COMMIT ACTS OF GROSS INDECENCY WITH CHILDREN

    Use of electronic communications systems to commit acts of gross indecency with children.
    1A.—(1) In this section, except where otherwise stated, "child" means a person under the age of sixteen years.
    (2) Any person who uses an electronic communications system, including (but not limited to) computers, computer networks, computer bulletin boards and newsgroups, computer chatrooms, the internet, and other analogous electronic means, for the purposes of—

    (a) engaging in an act of gross indecency with a person he knows or has reason to believe is a child;

    (b) engaging in a sexually explicit discussion with a person he knows or has reason to believe is a child; or

    (c) soliciting a person he knows or has reason to believe is a child to engage in any act that would constitute an offence under section 1 or under section 2(a) or (b),

    is guilty of an offence and shall he liable—

    (i) on conviction on indictment, to imprisonment for a term not exceeding ten years, or to a fine, or to both; or

    (ii) on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to both.

    (3) References in the Children and Young Persons Act 1933 to the offences mentioned in the first Schedule to that Act shall include offences under this section.
    (4) Offences under this section shall be deemed to he offences against the person for the purpose of section 3 of the Visiting Forces Act 1952 (which restricts the trial by the United Kingdom courts of offenders connected with visiting forces).".").
    The noble Baroness said: This amendment is supported by the police. The police argue that they are powerless to act until an offence has been committed. The amendment allows the police to intervene if they believe that, with the use of technology, an offence is being prepared for. Early intervention could save much distress, particularly to children. Currently, there are no suitable laws to govern the use of computers in this way. It is now common knowledge that more and more paedophiles use the Internet to pursue and procure young children for sex. Earlier the noble Earl, Lord Listowel, spoke of the voracious way in which paedophiles network and use technology for that purpose. This amendment provides the police with another shot in their armoury to track down these heinous crimes. I beg to move.
    Lord Northbourne: Perhaps the Baroness can give an example of what she means by an "act of gross indecency on the Internet". My wife told me that when she was 17 her father used to tell her before she went out for the evening,
    "Don't do anything you can't do on a bicycle".
    Is the noble Baroness saying that one can do things on the Internet that one cannot do on a bicycle? If so, what are they?
    Baroness Blatch: When I first discussed the amendment with a colleague, I had difficulty because the heading for the amendment was "The use of computers in sex". The same kind of matters crossed my mind as crossed the noble Lord's. I went to see the Clerk in the Public Bill Office, and he will remember that we had to cross that line out of the amendment. I am talking about the fact that there is some pretty awful material being downloaded to which children have access. We know that a great deal of very sophisticated networking goes on. There are efforts being made by the police to decode some of that material on the Internet. It is a serious issue. It is not just a serious issue for this country; there is a European dimension. I take the point that the noble Lord has made.
    Baroness Masham of Ilton: Last year the police and one of the children's organisations made a presentation to the All-Party Children Group on this subject. The subject is horrifying. There are groups of paedophiles who network on the Internet. It is organised from Russia. It is beyond Europe. The police are concerned about that. The whole matter needs to be looked at. Therefore, I support the noble Baroness's amendment.
    Lord Laming: I should like to speak in support of the general thrust of the amendment. I do not claim to have any great knowledge of the Internet. I should like to be more skilled for constructive purposes, not for the purposes referred to in the amendment. I am sure that we need to recognise that there are people using the Internet for the purposes to which the noble Baroness has referred. Whether or not the amendment captures the issue is technically beyond my ability. Certainly the issue is one which needs to be addressed thoroughly.
    Lord Thomas of Gresford: I support the amendment. The matter to which the noble Baroness refers in subsection (2)(a) is the passing on of names and addresses between networking groups of paedophiles. That is a problem. Paragraphs (b) and (c) are expressed more clearly. There is a problem here. I hope the Government will address it.
    5.45 p.m.
    Lord Bach: We agree that there clearly is a problem here. We are of course sympathetic to the thinking behind the amendment. I need to say in clear terms about both Amendments Nos. 107 and 108 that the problem has been with our substantive law on sexual offences. It needs to be looked at overall. It needs to be overhauled. A comprehensive sexual offences Bill needs to be brought before Parliament. Since 1956 we have tended to tinker with it too much on a piecemeal basis. The danger is that it then lacks coherence. In the field of sexual offences it is particularly true that there should be a coherent set of offences that make sense in this day and age and which everyone understands and is clear about.
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    The new clause proposed by the noble Baroness would create a new offence of using a computer to commit acts of gross indecency with a child. It would also create offences of,
    "engaging in an act of gross indecency with a person he knows or has reason to believe is a child";
    engaging in sexually explicit discussion with such a person and soliciting a person he knows or has reason to believe is a child, to engage in any act that would constitute an offence under the Indecency with Children Act 1960.
    We believe that is a matter of concern, but much more work needs to be done in the area to ensure that we deal effectively with the problems to which the spread of electronic communication has led. We do not believe that the amendment, as drafted, is suitable to achieve its purpose.
    The Government—as all Members of Committee and everyone else in this House know—are determined to do all they can to curb the misuse of the Internet by child pornographers and paedophiles. There is huge sympathy with the intent behind the amendment, but we do not believe that these new offences address the complex issues involved. They would leave some difficulties, such as determining where the offences occur. For example, the amendment as drafted states that,
    "engaging in a sexually explicit discussion with a person he knows or has reason to believe is a child".
    In a certain set of circumstances, that may criminalise innocuous activities such as sexual chat between adolescents, medical advice on-line, as well as misuse of the Internet by paedophiles for the contact of children. That is the harmful activity at which the noble Baroness's amendment is aimed.
    Defining the expression "sexually explicit discussion" may also give rise to problems. That complex issue is already under discussion by a sub-group of the Internet Crime Forum. That forum consists of the police, the industry and the Government. I am happy to be able to say that a report is due to be published shortly. More work needs to be done to ensure that we deal effectively with the problem.
    The law already applies online as it does offline. Thus, conspiracy, incitement or attempts to commit gross indecency with a child under 14 are already offences under the Indecency with Children Act 1960, whether organised over the Internet or not. May I remind the Committee that the offences carry a penalty of up to 10 years' imprisonment?
    There are drafting and interpretation difficulties in the new clause which we believe demonstrate that this whole area needs some more work. For example, what is meant by an act of gross indecency committed through the Internet or via a chatroom, and so on, as set out in the first subsection of the amendment? If it involves sending videocam pictures to the child of the offender committing an act of gross indecency—for example, masturbating to the camera—it would be caught by the existing offence of indecency with a child.

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    Similar difficulties arise over the reference to someone engaging in what is described in the amendment as "sexually explicit discussion". The proposed offence is potentially very wide in its scope. It may catch an agony aunt service to young people as well as someone engaged in a discussion about sex education. These are examples of where at present the amendment does not meet that which is needed.
    The sub-group hopes to publish a report shortly. It is the Government's view that we need to wait and see the conclusions rather than jump into legislation now which may not be wholly effective in dealing with the potential problem. I ask the noble Baroness to withdraw her amendment.
    Lord Lucas: If the Government feel that this area of the law requires a comprehensive review, will they undertake to withdraw their Sexual Offences (Amendment) Bill before it reaches this House, so that that amendment too may be included in such a comprehensive review? If not, and if this is an area where the Government are prepared to contemplate some changes, could we not—I shall hang on a moment until the Minister is listening—propose something along the lines of making it an offence to undertake actions intended to be preparatory to the kind of offences which already exist? That would catch many of the points aimed at in Amendments Nos. 107 and 108 without in itself creating new offences for doing things where there is clearly no intention of ever being involved in the sort of act which is currently criminal.
    During the remaining stages of the Bill's passage through the House, will there not be an opportunity at least to make a start on dealing with a problem which otherwise will wait until God knows when in the legislative programme—perhaps three or four more years? I do not see why we should wait that long when we could do something now.
    Lord Bach: It is the substantive law on sex offences—the definition of offences and how they apply in given circumstances—that needs to be reviewed and revised. Small Bills that may or may not change the age of consent do not fall into the same category of substantive offences—defining what they are and what they are not. I believe that the Government are right to bring forward the other piece of legislation. But I make the point that when we are dealing in detail with what should or should not constitute an offence we need to tread warily and carefully.
    Earl Russell: I thank the Minister for both those replies. His reply to the original amendment was powerful and carefully considered. The issue is what the effect of the amendment would be. We need to be sure about that before we pass legislation in this area, as in time I hope we will. On the other hand, with Clause 1 of the Sexual Offences (Amendment) Bill, there is no doubt what the legal effect of that will be. We have already waited for it for a very long time. I thank the Minister for that reply also.
    Baroness Blatch: As the Minister said, this is an extremely complex area. But I am becoming rather disappointed. I know that a review of sex offences has been going on since well before the election. It was set up by the previous government. It has not yet reported and we do not appear to have made any progress. That is disappointing.
    The police want something practical. They want some practical intervention powers to prevent some of this sexual activity happening. It would be helpful to have discussions with the police to find out what powers would make it easier for them to track down this kind of crime and bring these people to book. Aside from all the other things that are going on, I should like to think that some attempt will be made to enter into negotiations with the police to see whether something practical can be done. Computers have been with us for a long time but we are still wringing our hands and saying that we cannot tackle the problem. As my noble friend Lord Lucas said, we must be able to do something, even if it is only fairly modest, at this stage. I should like there to be some discussions with the police to see whether something practical could come out of my suggestion.
    The misuse of technology is becoming a scourge across not only the financial world but also the social world. All parents are concerned about the way in which people are now gaining access to their children. I hope that we can continue to reflect on this issue. Pending the long awaited review of sexual offences, I hope that an opportunity can be taken before the Bill completes its passage through the House to find a way of putting some aspect of my amendment into legislation. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Baroness Blatch Baroness Blatch moved Amendment No. 108:
    After Clause 36, insert the following new clause—

  INDECENT CONDUCT TOWARDS CHILDREN
  (" . For section I of the Indecency with Children Act 1960 (indecent conduct towards young child), there shall be substituted—
  "Indecent conduct towards children.
  1.—(1) In this section, except where otherwise stated, "child" means a person under the age of sixteen years.
  (2) Any person who—

  (a) knowingly commits an act of gross indecency with or towards a child, or who incites a child to commit such an act with that person, or with another;

  (b) travels with the intent of committing any act of gross indecency with or towards a child;

  (c) knowingly employs, uses, persuades, induces, entices or coerces a child to engage in, or to assist any other person to engage in, an act of gross indecency with or towards any child; or

  (d) transports a child with the intent that that child engage in an act of gross indecency,

  is guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years, or to a fine, or to both.
  (3) Any person who—

  (a) abducts, detains or otherwise restricts the liberty of a child for the purpose of sexually exploiting that child; or

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  (b) organises or knowingly facilitates such abduction, detention or restriction,

  is guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 15 years, or to a fine, or to both.
  (4) Any parent, guardian or other person having for the time being custody or control of a child who knowingly permits that child to engage in, or to assist any other person to engage in, sexual activity, or who knowingly permits the sexual exploitation of that child, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years, or to a fine, or to both.
  (5) References in the Children and Young Persons Act 1933 to the offences mentioned in the first Schedule to that Act shall include offences under this section.
  (6) Offences under this section shall be deemed to be offences against the person for the purpose of section 3 of the Visiting Forces Act 1952 (which restricts the trial by the United Kingdom courts of offenders connected with visiting forces).".").
  The noble Baroness said: Any person who knowingly commits an act of gross indecency towards a child, travels with the intent of committing an act of gross indecency towards a child, knowingly employs, uses, persuades, induces, entices or coerces a child for the purposes of sexual activity or even abducts a child for sex should be punished severely. I stand at the Dispatch Box with the memory of Sarah Payne and too many other children who have suffered in this way. The time really has come to resort to legislation to make the punishment fit this crime. I beg to move.
  Lord Bach: I do not want to repeat myself, but the Government have sympathy with the intention behind the amendment, in particular the extension of the offence to protect children up to the age of 16. However, we do not think that this is an effective way of increasing child protection. The law in this area is complex and confusing. Further piecemeal changes to the law on sexual offences and penalties should on the whole be avoided. That is why we are considering the comprehensive review of sex offences, resulting in the recommendations contained in Setting the Boundaries. That reported in the summer and the report is out to consultation. I am advised that it was set up under the present Government. Perhaps it does not matter. There is no party political point to be made here. There certainly should not be, anyway.
  It is important that the structure of offences is looked at in the round to ensure effective and comprehensive protection. We oppose the amendment because it would increase the complexity and confusion of the present law. This needs to be thought through clearly in the light of the needs of today's world. The amendment seeks to introduce a whole range of new offences under the guise of one amendment. Many of these raise complex issues which need much more careful consideration. Some add to and some duplicate existing law. Others are quite new. I do not want to give many examples. One is the effect of including the word "knowingly". Is that a requirement attached to the age of the child or is it "knowingly" in relation to the acts? That is the kind of issue we need to make clear.
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  Other points of detail could be challenged, but I do not intend to go into them now. I share the objective of wanting increased protection for children from sex offenders. We do not think that the amendment would achieve that. Indeed, it demonstrates why a wholesale review was needed, not a piecemeal approach. I invite the noble Baroness to withdraw the amendment.
  Baroness Blatch: I am sorry the noble Lord feels like that. Perhaps I may address the word "knowingly". The amendment refers to a person who "knowingly" — in other words, not unwittingly—commits an act of gross indecency or unwittingly abducts a child. We know that these things are going on. We know that children are abducted. I am happy to say that some of them find their way back home, but many others do not—like little Sarah Payne. Something should be done.
  The noble Lord referred to the sexual offences review. A sexual offences review was taking place at the Home Office before the election. It is just possible that that was wound up and a new remit was drafted. I agree with the noble Lord that this subject should never be a party political issue. We should concern ourselves with getting the legislation right.
  I am sorry that nothing can be done at the moment to update the law to deal with a person who commits some of the actions set out in subsection (2)(a), (b),(c) and (d). I do not think people realise what an awful experience abduction is for the child and how frightening it can be. We should find a way of dealing with someone who transports a child away with the intention of indecently abusing the child.
  I hear what the Minister says. I found his answer more disappointing than the previous one. Nevertheless, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.

REVISION OF AGE OF CHILD IN PROCEEDINGS RELATING TO INDECENT PHOTOGRAPHS OF CHILDREN
(" .—(1) In the Protection of Children Act 1978—

(a) in subsection (3) of section 2 (evidence); and

(b) in subsection (6) of section 7 (interpretation), for the word "16" there shall be substituted the word "18".

(2) In the Protection of Children (Northern Ireland) Order 1978—

(a) in paragraph (2) of Article 2 (interpretation); and

(c) in paragraph (1) of Article 7 (evidence), for the word "sixteen" there shall be substituted the word "eighteen".").

The noble Baroness said: This amendment concerns the age of a child in proceedings relating to indecent photographs of children. The rise of public concern about the sexual exploitation of children has been on the increase over the past few years. One of the ways in which children are exploited is through being sexually abused. The record of such abuse may be captured on film, video or computers to be watched repeatedly and distributed around the world. Like the noble Lord,

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Lord Northbourne, I too remember the exhibition shown just off Westminster Hall. I had to leave before I completed my tour of the exhibition because I found some of the material so disturbing that it still haunts me.
Such early experience of sexual activity often leaves deep emotional scars on a child which can damage future relationships. Furthermore, the child must live with the permanent knowledge that pictures of the abuse are still circulating.
There would be few who would defend child pornography, but disagreements arise over what we mean when we refer to a "child" for the purposes of legislation as well as at what age children should slip out of the net of protection offered to them by the law. Currently, the Protection of Children Act 1978, the law that makes it an offence to produce or distribute an indecent photograph of a child, defines a child as someone under the age of 16. This same definition is automatically applied to the legislation that makes possession of child pornography an offence; namely, Section 160 of the Criminal Justice Act 1988. The same definition also applies in Northern Ireland. Yet for the purposes of the Bill, Clause 25 states that,
"an individual commits an offence against a child if … he commits any offence",
listed in Schedule 4. Clause 37 of the Bill defines a child as,
"a person under the age of 18".
The offence of producing and distributing child pornography is already included in Schedule 4 and Amendment No. 82 would add possession of child pornography to the list of offences. This amendment proposes that the same definition of a child should be applied to the offences related to child pornography.
The Government have recognised that children remain vulnerable and in need of protection up to the age of 18. In the Sexual Offences (Amendment) Bill, children up to the age of 18 are protected from those in a position to abuse their trust. Children up to 18 years old should be protected from those who wish to take indecent photographs of them. This protection would be in line with that conferred by the United Nations Convention on the Rights of the Child, which defines a child as someone under the age of 18. Article 34 of the convention refers in particular to child pornography and says that,
"State parties undertake to protect the child from all forms of sexual exploitation and sexual abuse",
including,
"the exploitative use of children in pornographic performances and materials".
In part because of the increase in child pornography on the Internet earlier this year, the United Nations issued a new optional protocol to the children's convention on the sale of children, child prostitution and child pornography. These offences are described as of a "grave nature" and governments are urged to take firm action to protect children. Can the Minister tell the Committee what is the Government's view of the new protocol and whether they will sign it?
Voting in favour of this amendment would bring our legislation into line with Article 34 of the United Nations Convention on the Rights of the Child, increase protection for teenagers and signal our continuing commitment to taking firm action against child pornography.
I hope that the Minister will have sympathy with this amendment. I beg to move.
6 p.m.
Lord Monson: The noble Baroness, Lady Seccombe, will know that I very often support her and her noble friend Lady Blatch on Home Office matters. But I am afraid that I cannot do so on this occasion.
For decades, if not centuries, 16 and 17 year-olds have been deemed legally capable of consenting to most forms of sexual activity. There is one particular form of sexual practice which is not only capable of being psychologically damaging but is also undoubtedly physically dangerous which is the exception to this rule, and where the United Nations Convention on the Rights of the Child is indeed germane. We may return to this point before long.
But, taking indecent photographs with the consent of the subject—conceivably the enthusiastic consent of the subject—hardly comes into that category. The amendment does not confine itself to photographs taken for commercial reasons. It could catch two 17 year-olds who took photographs of their activities by remote control for their own amusement.
Secondly, paedophiles—against whom most of these amendments are aimed—are not interested in boys and girls as old as 16 or 17. Finally, there is a practical objection, given that few people carry their passports around with them at all times. Whereas it is usually possible to distinguish between a 14 year-old and a 16 year-old, it can be far more difficult to distinguish between a 16 year-old and an 18 year-old. Many people of 16 or 17 look two, three or even four years older than their true age.
For all those reasons, I believe that the amendment, although well intended, is misconceived.
Baroness Masham of Ilton: Perhaps I may put a question to the Minister, one that I wanted to put on a previous amendment. Is an international committee examining the problem of paedophiles? We were shown some truly horrific photographs by an organisation called Care. The pictures were of children who were much younger. The pictures even showed intercourse being conducted with babies. It was quite revolting. It is impossible to imagine how terrible are these things. The matter needs to be addressed.
Lord Bach: This is a sombre debate. The noble Baroness, Lady Seccombe, and others who have spoken to the amendment have all pointed out that this is a serious matter that affects children more and more these days. Clearly all Members of the Committee will share that view.

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The issue here is whether the specific amendment moved by the noble Baroness is appropriate. I have to tell the noble Baroness that the view of the Government is very much that which has been expressed by the noble Lord, Lord Monson.
The effect of the new clause outlined in the amendment would be to raise the maximum age of a person considered to be a child for the purposes of an
"indecent photograph of a child"
under the Protection of Children Act 1978 from 16 to 18.
We are sympathetic to the concern behind the amendment. Who could not be? However, the amendment ignores the age of consent and we believe that the proposed new age extension to 18 is impractical and unrealistic. Indeed, there is perhaps a large number of people who are lawfully married or involved in personal relationships at the ages of 16 and 17. As the noble Lord pointed out, some of them may choose to take personal photographs of each other. Surely it would be wrong to criminalise such activity. That would take the law far further than it should reach in this very difficult field.
The more extreme kind of material involving individuals between the ages of 16 and 18—the age group to which the noble Baroness has rightly drawn attention—is already covered by the Obscene Publications Act 1959; namely, if the material was deemed to be obscene under the terms of that Act, then the law would bite and a criminal conviction would follow.
The police may well face difficulties when trying to distinguish between people of 16, 17 and 18 when considering cases for prosecution.
The noble Baroness mentioned the United Nations protocol. I am afraid that I shall have to write to her separately on that point. I shall do so as soon as I can and I shall ensure that a copy of the letter is placed in the Library of the House.
So far as concerns international work, a point raised by the noble Baroness, Lady Masham, there is apparently a great deal of work being undertaken in this area in which the British Government are participating. Perhaps I may cite by way of example the international cyber-crime committee. If the noble Baroness would like more details, again I shall ensure that she is given them in writing. She nods; I take that as acceptance.
I have said all that I want to say on the amendment. While we are sympathetic to the thinking behind it, because of the practical consequences and the effect it would have on people conducting their own lives in their own ways, quite lawfully, we believe that the amendment is not appropriate and I invite the noble Baroness to withdraw it.
Baroness Seccombe: I am grateful to the Minister for his understanding of the amendment and thank him for it. I shall read what has been said very carefully and carry out some more background research. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 agreed to.
Clause 38 [Probation orders renamed community rehabilitation orders]:
Lord Bach Lord Bach moved Amendment No. 110:
Page 21, line 7, after ("orders)") insert ("whenever made").
The noble Lord said: In moving Amendment No. 110, I shall speak also to government Amendments Nos. 111 and 112. I shall then invite other noble Lords to speak to their amendments in this group and reply to them in due course.
Amendments Nos. 110, 111 and 112 are minor amendments which would have the effect of changing the names of probation orders, community service orders and combination orders to, respectively, community rehabilitation orders, community punishment orders, and community punishment and rehabilitation orders—and this is the point—regardless of the date when the original orders were imposed. That is the purpose of the three amendments. Making the names of all the orders the same, irrespective of the date they were imposed, would help remove the possibility of confusion as to any differences between them. No doubt the issue of the change of name will arise during the course of the debate on amendments tabled by other noble Lords. I beg to move.
Lord Dholakia: As the Minister rightly pointed out, these amendments are grouped with Clause 38 stand part of the Bill, Clause 39 stand part of the Bill and Amendment No. 113, which is tabled in the names of my noble friend Lord Thomas of Gresford and myself.
Clauses 38, 39 and 40 concern the renaming of probation orders, community service orders and combination orders. We had an interesting debate on this matter during Second Reading. There is a fairly informed opinion among those who are responsible for operating these orders as to whether there is any necessity for changing the emphasis at this stage of the Bill.
There is quite often a tendency to look at the failures of some of the orders rather than to build on the successes of a large number of probation orders and community service orders which are actively and properly carried out up and down the country. I know—and I am sure that a number of others who have sat as magistrates know—that many times, when such orders are made, it is quite clear that a number of people perform their tasks in a fairly orderly manner and benefit from the order imposed by the court.
I believe that it is unnecessary at this stage to change the terminology. The phrase "probation order" has international recognition. Indeed, I understand from a number of people working in the probation field that some eastern European countries are currently setting up probation services, with probation orders based very much on the model in this country. The changes are presumably being introduced in order to enhance public knowledge and confidence. The term "community rehabilitation order" is far less clear than

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"probation order". The term "probation order" is positive; it suggests that the person on the order has a distinct period of time to prove themselves and to make changes to their lifestyle. As I have explained, a large number of people benefit from them.
Clause 39 concerns community service orders. Community service has a higher profile than I suspect the Home Office would care to admit. The community service order has been in existence in this country for the past 25 years. We do not believe that the public see it as voluntary work. This was apparent when community service orders were made last year on a number of high profile offenders. The public knew that those convicted persons were carrying out work for the community as an act of reparation, not punishment. We have always believed that community service should be positive and that the person on the order should see an increase in their self-esteem as a result of their contribution. If it is seen purely as negative and a punishment, this will not be achieved and it will be harder to engage with offenders on work schemes.
As regards Clause 40 and Amendment No. 113, we believe that the term "combination order" is clumsy and needs refinement. If the proposed name is used it will lead to those employed in supervising the order being held up to ridicule. They will become "punishment officers". The term is negative and punitive and will not assist in increasing the offender's self-esteem and, therefore, his chances of reintegration into society. We suggest that the combination order be renamed the "probation and community service order", which meets precisely the aim of these particular orders.
Baroness Hanham: The names of my noble friends are attached to Amendment No.158 and to the notices of intention to oppose Clauses 38, 39 and 40 standing part of the Bill, to which the noble Lord has just spoken.
"What is in a name?", I think is the question behind these amendments. We think that all the names proposed are disappointing; they are very clumsy and they do little to explain what the orders represent. In fact, they probably do less to explain than the current orders.
I understand that at the moment a review is being undertaken of the renaming of sentencing orders as part of a review of the sentencing framework. It seems pointless to rename these orders at this stage and then possibly have to rename them again later on. The review may also allow an opportunity for better thought to he given as to what the orders should be called—if indeed it is necessary for the names to be changed. Perhaps the only reason to do so is to clarify the emphasis behind them.
We contend that renaming them at this stage does nothing to enhance the nature or the purpose of the orders. If the orders are to be reviewed anyway, this is an inappropriate moment to change names. I hope
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that the Minister will agree at least to delay the commencement until the results of the review can be taken into account.
Lord Elton: I intervene briefly to reflect on the enormous difficulty of legislation and the huge task required to introduce any change into legislation on any piece of law, particularly at a time when Parliament had to sit all night last night in order to get the work done. Changing law is an expensive, protracted and delicate operation—and here we have three whole clauses devoted simply to changing the names of three orders.
To engage first the department and then the parliamentary draftsman in this task, at great public expense, must have some great motivation. Some great benefit must be expected to flow from it. All I pause to do is to ask the Minister to tell us what that is. It is not apparent from what he has told us and it seems a pity to waste statute on doing something with no visible benefit.
Lord Laming: I support those who have said that the case for changing the names of the orders has not been made. The early part of the Bill is about changes in the Probation Service. The service will retain its present name—and rightly so—but the case for changing the title of the orders has not been made. I strongly support those who want to retain the existing names, which are well-established and understood.
Earl Russell: The noble Lord, Lord Elton, has said everything that I had intended to say and I shall not say it again. I thank the noble Lord.
Lord Bach: On this occasion I cannot agree with the comments that have been made by a distinguished group of noble Lords on this issue. The Government are convinced that there are sound arguments for changing the names of the three orders.
Lord Elton: Let us hear them.
Lord Bach: If the noble Lord will contain himself, it is my intention in the next few minutes to put the Government's case and he must consider it in his turn.
Perhaps I may turn, first, to the review mentioned by the noble Baroness in speaking to the amendment. There is a fundamental review of the 1991 Act framework, not merely in regard to the names of these orders. We believe that if we are to change the names, we must do so in this Bill, because we have to move forward in this field.
The Probation Service is a law enforcement agency. Its aims are the proper punishment of offenders, reducing reoffending and protecting the public. Of course, an important part of its aim is the rehabilitation of offenders. Community sentences, whether they be existing probation orders or community sentence orders, are penalties with the purposes both of punishing and of rehabilitating offenders. That may be understood by noble Lords in this House, with their experience of the world. But it is

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too little understood by the public, who can be unclear about the work of the service and who, frankly, often see community orders as a soft option. The Government are determined that community orders will be used, and that they will not be a soft option.
It is vital, therefore, that everyone—the wider public, offenders and the service itself—understands both the role of the service and the purposes of community sentences. Re-naming community orders in order both to explain their primary purpose and to underline the aims of the service is necessary to promote greater confidence in our criminal justice system. Of course, we are aware that some members of the present service—of which I am a huge admirer; indeed, part of my maiden speech in this place was devoted to praising one particular probation service—do not welcome the change. They claim that the current names are well understood. That is true so far as concerns professionals who work within the criminal justice system. But our concern—a real concern—is to make the system more transparent for members of the general public. Too often, they are left in the dark as to what is happening and therefore, not surprisingly, express dissatisfaction with the criminal justice process.
By way of example, the expression which everyone now agrees should go—namely, "combination order"—was not clear to me, as a practising barrister defending and prosecuting offenders. I did not understand what the phrase meant for quite a while once it had come into being. What was a "combination order"? What on earth did it mean? What did it mean to the general public when they read in the newspaper that someone had received a combination order? In my view it meant absolutely nothing. It told them nothing, except that the miscreant had escaped prison. It did not even tell them that the miscreant had escaped prison often by the skin of his teeth. So the expression "combination order" should never have been written into legislation. Everyone in this Chamber seems to agree: Amendment No. 113 suggests a different title for the combination order. That is the most glaring example of how the orders have not been understood by the general public, and for good reason.
A "probation order" emphasises rehabilitation. Of course, it has a punishment element as well. The punishment element is the restriction on freedom that is involved in having to report to a probation officer and do what he or she reasonably demands. But it is much more a rehabilitative order. That is shown in the number of modern probation orders that have conditions attached to them to take part in programmes. The attempt is to rehabilitate the offender. What can be wrong in describing the true position of an existing probation order by the use of the term "community rehabilitation order"? That is precisely what it is.
As to "community service order", the phrase implies that the offender is being asked to do some kind of voluntary work. It may be that some members of the public look rather askance at someone who has pleaded guilty to and been convicted of quite a serious
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offence being given a community service order. It has never been a voluntary activity. The point about a community service order is that it is not voluntary; it is compulsory. A community service order in practically every case is a direct alternative to prison. There is a rehabilitative element to it, but it also emphasises punishment: the restriction on freedom, often for many hours—up to 240 hours over a period of a year—during which time the offender must do work for the community; if he does not, he will be brought back to court and will often, under the present law, receive a prison sentence. It is a punishment.
That is why we believe that the expression "community punishment order" is entirely appropriate for what has been called up until now a "community service order". If that is right, it follows that the present "combination order" should be called a "community punishment and rehabilitation order"—a joining together of the old probation element and the old community service element in the new title. I do not claim for a moment that it is poetry. It is not supposed to be. But it describes to the general public what the courts are doing with these particular offenders.
Of course the Government want to see the rehabilitation of offenders. That is no doubt the reason why judges and magistrates make these orders in the first place. But the Committee should recognise that when such orders are imposed they are a mixture of rehabilitation and punishment. It is our view that the titles that we have arrived at are the appropriate ones and that it would be wrong to revert to the present titles.
Lord Thomas of Gresford: I congratulate the noble Lord on a careful and well-argued response; but in the end it was disappointing. He says that the Government's purpose is to make the aims of the orders more transparent for members of the public. What this amounts to is that the Government want to toughen up the language for public consumption. If one needs any proof of that one has only to look at the comments of Mr Boateng in Standing Committee Gin another place. He said:
"We are moving away from a social work type befriending model, and no one should be under any illusions about that".— [Official Report, Commons; Standing Committee G, 4/4/00; col. 33.]
He went on, at col. 36:
"No one should be under any illusions about the nature of the change and of the culture shift that we expect. It is a philosophical change".
Therefore, according to Mr Boateng, it is a "philosophical change".
The toughening up of the language has a downside. I have had long experience of seeing probation officers in operation and of reading their reports. In the past, I recall that a good probation officer would look for that gold nugget in the most unlikely individual. He would attempt to bring something out of the offender, to try to bring him into society and mend his ways. As a result of the sort of rhetoric that we have been hearing in relation to this Bill, I have noticed that

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today's probation officer—I have in mind a recent case—is less ready to do so; indeed, he is more ready to go along with the idea of punishment, and so on.
The suggestions that used to be found in probation orders as regards the various ways of "disposal"—to use the word that I absolutely abhor—have now been reduced. The effect on the probation officer and on the offender is more important than simply toughening up the language for the greater benefit of the public who read the tabloid newspapers. That is the crucial relationship with which the Probation Service should be concerned: the relationship between the probation officer and the individual. I believe that the renaming of these orders will have a much more important and far-reaching effect than the Government realise.
6.30 p.m.
Lord Laming: I should like to thank the Minister for what I thought was an extremely helpful and thoughtful response to the points made. I wonder whether he will agree with me in two respects. First, none of us in this Chamber regards any of these orders as being a "soft option". The noble Lord used that phrase. The thought that we would want any of these orders to be perceived as a soft option is far from being in any of our minds. Secondly, does the noble Lord agree that that perception arises as a matter of practice and not because of the name being used? Whatever the name of the order, it is essential to ensure that it is implemented in a robust and thorough way. That is the point that we should like to make.
Earl Russell: I congratulate the Minister on the care and eloquence with which he tried to make his case. However, I am afraid I do not believe that he succeeded. First, I think that his case rests on a false factual premise. He argued that the word "probation" was not understood. In fact, it has passed into the language. The phrase "on probation" is so well understood that it is even used in reports on cricket or football team selection. Further, if the Minister is afraid that that may appear to be a soft touch, I should remind him that when it is used in that way it carries a very distinct suggestion of the "male" fist inside the velvet glove. It is not at all a soft phrase.
I am not convinced by the case for putting such expressions into tabloid language. But if we are to do so, we might as well do it properly. Let us take, for example, the phrases in the Bill and imagine them being put into a draft for an article that is to appear in the Daily Mirror. I shall begin with, the "community rehabilitation order". I think that the blue pencil would come out at once. Alternatively, we could take a "community punishment order". It seems to me that the blue pencil would ask whether this is punishing the community. There is also the "community punishment and rehabilitation order"—far too many words! If the Government are going to try to put this wording into popular language so as to change the impression generated by it, they might make a better fist of it than they have done here.
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Secondly, as my noble friend just said, this proposal is an attempt to change the language in order to change the impression given, without changing the substance. In my view, that is something that hardly ever works. It must lead to one or the other of two conclusions: either nothing changes—in other words, neither the image nor the substance will change—or, alternatively, the substance is changed in order to justify an attempt to change the image. Either of those would cause a number of us on all sides of the Committee very considerable concern.
The question as to whether or not this renaming will work reminds me of a story that my father used to tell me—I do not know whether or not it is a shaggy dog—about the naming of Iceland, a name which, he said, deterred potential settlers. Therefore, the next time that people discovered a piece of land in that quarter of the globe, they chose to name it Greenland in order to make it sound rather more attractive. However, I do not believe that the settlement in Greenland ever justified that. The renaming in this Bill will, at best, be a case like Greenland. In fact, I shall think of these provisions as the "Greenland clauses".
Finally, name changing can cause a great deal of confusion; indeed, since I became a Member of this place 12 years ago, I have completely lost count of the number of names that have been given to the body that once upon a time used to be known as the University Grants Committee. I tend to refer to it by a name at least two names out of date. If we do this to the public, they may manage to cap that yet.
Lord Elton: The noble Lord's expression does not suggest to me that he is liable to take this matter way and think about it. However, if he does so, I hope that he will look with care at the syntactical point made by the noble Earl, Lord Russell. The noble Lord is actually going contrary to the structure of the present language. In a community service order, it is the community that is served. That is the verbal interpretation that is now current among all who have encountered this document. The noble Lord is now proposing a "community punishment order" and wants to reverse the process so that it is the community which does the punishing. In the other case, the community is not being rehabilitated, it is rehabilitating. If the object of the exercise is to get the process understood, the language used has to be unambiguous; this is not.
Lord Dholakia: I am grateful to the Minister for what he said. However, I was not in the least bit surprised. He made great play of the new terminology. Perhaps I should remind him that a Minister flew to America and on his return used the terminology "a correctional service", which I believe was the title that the Government originally had in mind for the Probation Service. However, when a protest was mounted, that suggestion was immediately withdrawn. I believe that this renaming will provoke a similar reaction. I warn the Minister that we shall certainly take this on board when we reach Report stage.

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My main concern here is the expression that the Minister keeps using. He repeatedly said that the public do not understand. But when have members of the public been consulted on the issue? I give way.
Lord Bach: What I meant when I spoke about the public not understanding is that they have considered for a long time—indeed, perhaps they have even been right—that those who are made the subject of a probation order have really "got off" easily for what they did. That has been the trouble with the expression "probation order" in the past. I speak from long, personal experience in the field. If one of my clients received a probation order, it would be a victory for me; but, in his mind, it would often be a let off for him. That is a truth, which is often not expressed.
Therefore, because the Government believe that community orders—whether they be probation or community service orders—have a real function in the criminal justice system, we are determined to ensure that they are seen to work—
Baroness Blatch: I am grateful to the Minister for giving way. I, too, held the job in the Home Office of being responsible for the Probation Service. In my experience, wherever there was a misunderstanding about the role of the Probation Service and whether or not it was effective, it had nothing to do with the name; it had everything to do with the practice of the Probation Service in a particular area. If the public saw people on probation loafing around, leaning on their shovels or not doing what they should be doing, their perception of the local service was diminished. It was never a question of the connotations of a name, but rather the public's perception of how the service operated.
Much has changed in the Probation Service since then. Good practice is now spread throughout the service. The noble Lord is wrong to believe that a change of name will change the culture of the service. The service is a good one, irrespective of the names of its provisions.
Lord Bach: Part of the process of changing the culture of the service involves changing its name. In some places the name became associated—sometimes wrongly, sometimes rightly—with defendants effectively being let off their offence. No one considered the punishment or rehabilitation elements; a probation order was often considered to be a let off. That is how we believe the general public have often viewed probation orders. The danger is that if the general public have that perception, the whole concept of community sentences becomes devalued. For that reason the Government are making it quite clear that the purposes of community sentences are reduction in reoffending; protection of the public; and proper punishment of offenders. This is not a case of adopting a hard line policy for the sake of it. The alternative to having acceptable community sentences is to send all offenders to prison. That is not something that the Government or any noble Lord present would want.
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As the term "probation orders" has unfortunately become devalued, we believe that it is essential to change it.
Lord Dholakia: I return to the remarks I made before giving way to the Minister. It appears that we are talking at cross purposes here. I sat as a magistrate for 14 years. I issued probation orders, community service orders and so on. The defendants did not have an easy time of it. Their lawyers pleaded their case and the individuals concerned pledged to obey the terms of the order. The problem is that the Government play down the success of community service and of the Probation Service.
A similar thing happened in the case of the Parole Board. No problem arises in 95 per cent of parole cases. However, if one isolated incident arises, everything is blown out of all proportion. Likewise newspapers do not report the conditions that attach to probation orders in articles on the Probation Service. It is up to the Government to explain to the public what probation orders involve. One gets the impression that the Government, through this Bill, are saying to the general public, "Law and order are high on our agenda and we are trying to be tough". As I said earlier, we shall certainly return to this matter on Report.
Lord Elton: Clearly we do not want to spend too long on this matter, but does the noble Lord seriously expect us to accept the proposition that the word "probation", which has three syllables and is well-known and understood, will carry less impact than the word "rehabilitation", which has six syllables, is not generally understood, and is unfamiliar to the criminal classes?
6.45 p.m.
Lord Renton: I must apologise to the Committee for having missed the first part of this discussion as I had to attend an important meeting upstairs. I should disclose that I did quite a lot of judicial work—about 30 days. I was a Recorder for eight years and a relief judge at the Old Bailey for two years. I also sat as a deputy chairman of quarter sessions, in early days in Kent and in later days in Essex. Therefore I have a lot of experience of the effect of putting people on probation. I must say that I admired what the Probation Service did. There is no doubt about that. I am not a die hard so far as legal reform is concerned, as many noble Lords know, but I think that we should avoid change if it is not really necessary. I do not think that it is necessary in the case we are discussing.
Also there is a practical argument against what is now proposed. If Members of the Committee look at the expressions "probation orders" and "community rehabilitation orders" on page 21 of the Bill, they will find that the expression "probation orders" consists of only five syllables. The expression "community rehabilitation orders" consists of 12 syllables. What a mouthful for the people in the courts to have to use and to absorb!

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I agree that there is not much difference between the terms "community service orders" and "community punishment orders"—there is an increase of only one syllable there. However, if Members of the Committee compare the term "combination orders" on page 22—which has only six syllables—with the term "community punishment and rehabilitation orders", they will find that the number of syllables is doubled to 12. I cannot see any advantage in changing the old expressions. If there are no advantages, we should bear in mind the disadvantages of imposing unnecessary mouthfuls on the people who work in this field. I implore the Government to think again about this matter.
Earl Russell: May I just remind the Minister of the previous time this place was abolished? A second chamber was recreated under the protectorate of Oliver. Cromwell. They had an immensely long argument about what to call it. They decided that they could not call it the upper house so they decided to call it the other house. That made precisely no difference.
On Question, amendment agreed to.
Clause 38, as amended, agreed to.
Baroness Hanham: I rise to oppose the Question that Clause 38 should stand part of the Bill.
Noble Lords: Oh!
Baroness Hanham: I apologise. I understand that the Question has already been spoken to.
Clause 39 [Community service orders renamed community punishment orders]:
Lord Bach Lord Bach moved Amendment No. 111:
Page 21. line 28, after ("orders)") insert ("whenever made").
The noble Lord said: This amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
Clause 39, as amended, agreed to.
Clause 40 [Combination orders renamed community punishment and rehabilitation orders]:
Lord Bach Lord Bach moved Amendment No. 112:
Page 22, line 9, after ("orders)") insert ("whenever made").
The noble Lord said: This amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
[Amendment No. 113 not moved.]
Clause 40, as amended, agreed to.
Clause 41 [Exclusion orders]:
Lord Dholakia Lord Dholakia moved Amendment No. 114:
Page 22, line 42, at end insert—
("( ) shall only he made if the offence is one which is specified in schedules by order of the Secretary of State and"
The noble Lord said: This amendment concerns exclusion orders. Unfortunately the Bill does not explicitly state that the exclusion order will be used in limited circumstances. We fear therefore that because
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the offences are not prescribed there will be net-widening and that it will be used in a range of non-predatory situations.
We also believe that the scheme must be carefully monitored to ensure that it delivers the stated objectives. If the scheme is introduced it should also be used in conjunction with supervision and treatment if necessary. It would be helpful, therefore, to include a schedule to the Bill which can then include offences relating to racial hatred, sexual harassment, domestic violence and offences against children. In effect, that will determine the limitation of that clause without necessarily giving much wider powers to the Government. I beg to move.
Baroness Blatch: Amendments Nos. 115, 118, 121 and 124 in this group stand in my name. As drafted, in Clauses 41, 42, 45 and 46 the Bill allows for the Secretary of State to use secondary legislation to extend the parameters of sentences. The Delegated Powers and Deregulation Committee recommended strongly that these powers should be removed. The second report of the committee states in its final recommendation:
"The Committee has drawn attention to the powers in clauses 41, 42, 45 and 46, each of which allows for the amendment of the bill to increase the severity of a sentencing power. The Committee recommends that these powers should be omitted. If those powers are to remain, which would be contrary to our recommendation, the Committee suggests that they should be subject to affirmative procedure".
Following my reference to the issue at Second Reading, I received the following day a letter from the chairman who wrote on behalf of the committee. He said:
"The Committee thought that I should point out, however, that our recommendation was not that the powers in Clauses 41, 42, 45 and 46 should be subject to affirmative procedure, but that they should be omitted. It was only if the House disagreed with the view that we considered that they should then he made subject to affirmative procedure".
Therefore the letter from the chairman on behalf of the committee makes it clear that its firm recommendation to the House is that the powers should be omitted and that only if the House takes the view that they should not be omitted, then the affirmative resolution should be referred to. I believe that the Minister is going to settle for the affirmative resolution. I believe that he should allow the House to take a view on whether that is acceptable.
Under this Government and the former government, the House enjoys an unbroken record of accepting the advice of the Delegated Powers and Deregulation Committee since its inception. I recommend strongly that this Bill should not be made the exception. The committee has served the House well. Its work is highly regarded and I suggest that this is no time to reject its advice. I beg to move.
Lord Bassam of Brighton: I deal first with the government amendments and then the amendments grouped with them. The government amendments, Amendments Nos. 116, 117, 119, 122 and 125, are minor amendments. They close a small loophole in the Bill.

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The Secretary of State already has powers, or will have powers under the Bill, which enable him to alter by order the maximum period of curfews, exclusions and drug abstinence orders. The amendments simply ensure that where the maximum period for such orders has been altered by the Secretary of State and a court is considering amending the terms of an individual order, this can be done with reference to any new maximum periods. For example, if a court is minded to extend the length of an exclusion order, on application by the offender's probation officer, the Bill as it stands precludes the total exclusion period from lasting longer than one year. But if the Secretary of State had exercised his power to increase the maximum length of exclusion orders generally to, say, two years, it would seem reasonable in the circumstances for the court amending a particular order to be able also to extend its duration—
Baroness Blatch: I am grateful to the Minister for giving way. If the noble Lord wishes to give the courts power to extend sentences, why not use primary legislation to extend the parameters within which the courts can operate? That is the proper way, and it is the way in which the Delegated Powers and Deregulation Committee recommends that it is done: by using primary and not secondary legislation—and not, as described by the noble Lord, secondary legislation on the hoof.
Lord Bassam of Brighton: We have the greatest respect for the advice we receive from the Delegated Powers and Deregulation Committee and listen carefully to it. The noble Baroness knows perhaps better than I do—she has been attending this Chamber far longer than me—just how difficult it is to obtain legislative slots. We seek to persuade the Committee that some flexibility is essential here. I do not think that that is unreasonable in the circumstances.
Perhaps I may return to the point on the argument. It seems reasonable for the court amending a particular order to be able to extend its duration to two years. This would be achieved by the amendment.
The amendment also enables the Secretary of State to amend the periods which apply to the warning provisions when he has used his power to alter the maximum length of an exclusion order and a drug abstinence order. Again, this is simply to provide consistency in the Bill.
These amendments, therefore, do nothing more than provide a consistent approach to the length of curfews, exclusions and drug abstinence orders, should the Secretary of State make new maximum periods available.
I turn to the amendments tabled in the name of the noble Baroness, Lady Blatch. Amendments Nos. 115, 118, 121 and 124 would remove from the Bill the power of the Secretary of State to make an order substituting a new period of time for exclusion orders, and curfew and exclusion conditions and drug abstinence orders. Primary legislation, as the noble Baroness
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acknowledged, would therefore be required in order to make such changes to the maximum available length of these orders and requirements.
The delegated powers which are the subject of these amendments have already arisen as part of our evidence to the Delegated Powers and Deregulation Committee of this House. We have considered carefully all the pros and cons relating to the nature of these powers and their exercise, and have paid particular attention to the committee's recommendations. Our thinking has led us to the conclusion that it is appropriate in these circumstances to provide such powers for the Secretary of State, although I shall of course explain why and of what kind.
These amendments concern the power to make changes to the periods of exclusion orders, as I have described. It seems evident that the noble Baroness, Lady Blatch, disagrees with the interpretation we have placed on these matters. The Delegated Powers and Deregulation Committee has recommended deleting these powers from the Bill; or, as I understood it, if the House accepts the need for the powers, making the procedure draft affirmative. We believe that this would be much better. That process would provide adequate parliamentary scrutiny and flexibility. We think that that is a strong and powerful argument.
However, I believe that these powers should be delegated for the reasons of flexibility and the existence of precedent. I deal with those points in turn. These orders are experimental in nature and are due to be piloted before implementation. The department cannot be absolutely sure about the most effective period at the time of legislating—that is, now. The proposed periods in the Bill are based on the best available evidence to date. If the pilots which are currently due to commence next year give an early indication that different periods would be more effective, it would be preferable to test those periods as well before national roll-out.
The maximum length of the exclusion order has been set at a year, partly on the basis that exclusion is less intrusive than the curfew order, the maximum period of which has been set at six months. However, that may be too short to act as an effective deterrent to a stalker or a perpetrator of domestic violence.
No doubt all members of your Lordships' House support the intention behind the orders, but, if there is no delegated power to amend the periods, their full potential may not be effectively tested. A suitable vehicle for primary legislation may not be available at the time. That is an important consideration.
There are precedents for increasing the maximum period of a community order by secondary legislation. They were identified in the oral evidence given to the Committee. In addition, the minimum and maximum periods for drug treatment and testing orders can be changed by secondary legislation under Section 58 of the Powers of Criminal Courts (Sentencing) Act 2000. My proposals are not unprecedented. That is a relevant consideration in the decision to use secondary legislation. That I why I believe that it is appropriate to retain the powers.

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That does not mean that I do not recognise and appreciate the point made by the noble Baroness and by the Delegated Powers and Deregulation Committee. I accept that all the relevant order-making powers should be subject to the affirmative resolution procedure. I am proposing amendments to that effect at this stage. For the sake of consistency, I am also proposing amendments to the Powers of Criminal Courts (Sentencing) Act 2000 so that changes to the period of the curfew order are made subject to the affirmative resolution procedure, rather than to the negative resolution procedure, as at present.
I hope that I have demonstrated the need for the delegated powers and the serious consideration that we have given to the various points that have been raised, not least by our action on the important issues. While I respect the arguments and concerns that underlie the amendments, I do not think that it would be appropriate to accept them.
The amendments tabled by the noble Lord, Lord Dholakia, would restrict the availability of exclusion orders and the exclusion requirements of community rehabilitation orders to offences specified in an order made by the Secretary of State. That could curtail the availability of exclusion orders and requirements, thereby depriving the courts of the ability to use the powers in deserving cases. The nature of the sentence does not demand such checks.
We are introducing new powers of exclusion so that courts have available to them an additional means of protecting those who could be at risk from an offender in the community. We recognise the public concern about such issues. In future, a court sentencing an offender for any offence that warrants a community penalty that is not fixed by law will be able to consider exclusion as an option. If it is important that the offender be excluded from certain places, the court may prohibit him from entering.
The court will also be able to order that the exclusion requirement is electronically monitored. Any breach of the requirement would register at the electronic monitoring control centre and appropriate action could then he taken. Electronic monitoring will provide better enforcement and better protection for the public. We regard it as a valuable new power for the courts. Of course, it will be for the courts to use such powers as they deem appropriate. We see no advantage in restricting their use to particular offences or offenders. We do not believe that it would be in anyone's interests to restrict the courts' powers in the way proposed.
Noble Lords may be concerned that exclusion orders or requirements might be used in inappropriate or unsuitable cases, but there can be no reason for courts to impose exclusion if it is not necessary.
In contrast, curtailing the availability of the power might deprive a court of the ability to protect a particular member of the public who was at risk from an offender, just because his crime had not been listed by an order. Any attempt to restrict a sentence in that way risks making it unintentionally unavailable in highly deserving cases.
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Exclusion will not be an arduous imposition on the offender. All that he has to do is comply with the requirement not to visit the prohibited place or places. That should not be too difficult. For those reasons, we are not able to accept these amendments.
7 p.m.
Baroness Blatch: I heard what the Minister said about the Delegated Powers and Deregulation Committee. I am deeply disappointed that he will be the first Minister of either party to break with the convention of accepting the committee's advice, which in this case was unequivocal. It said that even the affirmative resolution procedure would be contrary to its advice.
The Minister referred to precedent. On page 3, the report says:
"The Home Office identified two precedents (sections 45 and 50 of the Powers of Criminal Courts (Sentencing) Act 2000)"—
one of this Government's Acts—
"but they readily admitted that these were not an exact parallel".
Even the Home Office admits that the cases may well be precedents, but they are not parallels with the powers that are now being taken. The report goes on:
"we consider that, in principle, the length of a sentence should not be extended by secondary legislation, and that this order-making power should be deleted from the bill".
The Minister said that it was difficult to get parliamentary time for new legislation. Having been in the department, I agree, although the Home Office does not have a bad record this year. This is the sixth Bill currently going through Parliament and there have been 14 Home Office Bills accepted since the Queen's Speech. We have parliamentary time now, because the Bill is before the House. If the Minister says that the Government may need to extend to two years, why not take a power to do that? The courts do not have to use it. It will be there to provide flexibility. If the department does not have time to draft such amendments, perhaps I shall do so on Report. As the committee suggests, the Home Office can give the courts flexibility under primary legislation.
Let us be clear about what is happening. The maximum sentences that courts can dispense are to be extended. The Minister has described very urgent circumstances in which a court says that it would like a bigger sentence at its disposal and the Home Secretary passes an order through Parliament. The parameters for sentencing are an important matter that should be dealt with in primary legislation. The House should take a view on whether to accept the unequivocal recommendation of the Delegated Powers and Deregulation Committee.
Lord Bassam of Brighton: As I have explained, there are precedents. The Criminal Justice Act 1991—which was Conservative legislation—gave the Secretary of State the power to extended the maximum length of curfew orders by order, using the negative procedure. This territory has been trodden before. I understand the power of the noble Baroness's case, but we are

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trying to strike a balance to secure flexibility should it seem sensible, after the pilots have finished, to have longer sentences.
That is an eminently sensible way to proceed. We have met the Delegated Powers and Deregulation Committee half way by picking up on the point about the need to make such orders subject to the affirmative procedure. In some respects, it could even be argued that we are going further by applying affirmative procedures in the curfew order provided under Section 12 of the Criminal Justice Act 1991.
So we understand the argument. We can see part of its import. We take a judgment that we require the flexibility. There are precedents already in place in legislation not put through Parliament by our own party but by Members from the party opposite.
Therefore, although, obviously, we must have great respect for the committee and its work, on this occasion we are trying to strike an important balance. For that reason, I think that we are right to proceed in the way in which we are.
Earl Russell: The Minister said that he had met the committee half way. I cannot help feeling that that savours of what paediatricians describe as a "space perception defect".
We have here a major constitutional principle. There are not very many things in this House which we assume regulations cannot do. Since I arrived here, I have been told by a great many people that extending the length of criminal sentences was one of those things.
I accept the point that the Minister makes about 1991. Almost always, where a question comes up about the limits on executive power, we find that at least once the executive has done it before and got away with it because perhaps we were busy looking at something else. So the fact that there is one precedent in what I remember was an extremely large Bill is not necessarily persuasive.
In conceding a small point of practice, even if one of some substance, while trying to hang on to the whole of the constitutional principle, the Minister is meeting the committee a long way short of half way.
I listened with growing surprise as his answer developed. The points about parliamentary time no doubt have substance. But he seemed to me to be saying that the existence of Parliament is inconvenient to Ministers. No doubt it is. It is meant to be. He is not the first Minister who has said that by a very long way. Parliament has had a rather perverse habit of finding that argument somewhat less than persuasive.
I do not say that there is an iron force in the convention about regulations. I of all people am in no position to say that. But when we voted on a regulation on the Greater London freepost, the noble and learned Lord, Lord Simon of Glaisdale, and many others had laid the ground for that change over a period of upwards of 10 years. The issue had been very carefully
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considered over a very long time and debated a great many times in this Chamber before anyone moved to leaping over the chasm.
I have heard no equivalent debate on whether we should relax the principle that regulation does not extend to length of criminal sentences. If that is indeed going to happen, it would call for very careful consideration by the whole of this House and another place over as long a period as we spent on the question of whether regulations could be voted upon.
Bringing it through just because it might be for the executive's convenience is very far from sufficient. This is a matter of the standing of this House and of the standing of Parliament as a whole. That issue needs a great deal more consideration than we have yet given it.
Baroness Blatch: I am grateful to the noble Earl for that intervention. I shall go back to the Hansard of 1991 to see exactly what happened at that time. However, if it was wrong, two wrongs do not make a right. We did not have the benefit of the Delegated Powers and Deregulation Committee. That has been a remarkable addition to the work of this House. It has been extremely helpful to those of us who deal with Bills as they go through the House.
The committee has given this matter very careful consideration. As I said earlier, it has been absolutely unequivocal in its advice and I believe that it should be heeded.
Lord Dholakia: I listened to the Minister carefully and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 115 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 116:
Page 24, line 38, at end insert—
("(3) An order under subsection (2)(a) above may make in paragraphs 2A(4) and (5) and 19(4) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order."").
On Question, amendment agreed to.
Clause 41, as amended, agreed to.
Clause 42 [Drug abstinence orders]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 117:
Page 26, line 2, after ("(2)") insert (", (3A)").
On Question, amendment agreed to.
[Amendment No. 118 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 119:
Page 26, line 15, at end insert—
("(5) An order under subsection (4) above may make in paragraphs 2A(4) and (5) and 19(6) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order."").
On Question, amendment agreed to.
7.15 p.m.
On Question, Whether Clause 42, as amended, shall stand part of the Bill?
Lord Dholakia: This clause relates to drug abstinence orders. As far as we can see, this new order serves no purpose at all. The clause introduces a new drug abstinence order requiring an offender to abstain from misusing Class A drugs.
The Government recently introduced drug treatment and testing orders. So far up to half of offenders placed on those orders have completed the treatment without regressing. Given the difficulty of working with addictive drug users, that must be seen as a very positive outcome. Treatment can also be made as a condition of an existing probation order. The difficulty with that provision is that often there are delays of two to three months before treatment can be made available. There is no presumption of treatment with drug abstinence orders. Class A users will not stop using the drugs because a court tells them to.
It is envisaged that there will be three pilot studies and that about 3,500 orders will be made every year. If that measure is rolled out nationally, we are talking of between 40,000 and 50,000 abstinence orders which are likely to be made each year. In our view, the offenders are being set up to fail. They will not face automatic custody but will be dealt with for those breaches in the normal way.
A recent study conducted by the Inner London Probation Service into the outcomes of breach proceedings during 1998–99 showed that 21 per cent received a custodial sentence. If that outcome were repeated with this group, the prison population would increase, it is estimated, by up to 10,000 per year.
There are other amendments in this grouping in the name of my noble friend Lord Thomas of Gresford and myself. Perhaps I may speak to them at this stage.
The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): Perhaps we should deal with the Question whether Clause 42 shall stand part of the Bill.
Clause 42, as amended, agreed to.
Clause 43 [Pre-sentence drug testing]:
Lord Dholakia Lord Dholakia moved Amendment No. 120:
Page 26, line 23, at end insert—
("( ) A court shall not order a drug test unless it has been notified by the Secretary of State that arrangements for treatment are available in the relevant area.").
The noble Lord said: Amendment No. 120 is concerned with pre-sentence drug testing. Clause 43 enables a court, when considering passing a community sentence, to order a drug test. In most cases it will be known to the court, through reports and other notes, whether or not an offender is misusing Class A drugs. To order a further test would therefore he a questionable use of resources.
The key issue is treatment. Currently, there is often a delay of as long as two to three months before treatment becomes available to those who wish to engage in recovery. It is essential that the Government
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put aside funds to enable agencies to provide relevant treatment properly and promptly as a response to the order of the court for a test. I beg to move.
Baroness Masham of Ilton: I am rather worried about this in case it delays the procedure in court. There are so many drug users now, many of whom are Class A drug users. I believe it is important that drug users are tested so that they become aware; otherwise they will simply go further down the slippery slope. It is possible that they will be sent to a place such as Phoenix House, which deals with drug rehabilitation, instead of being sent to prison. I feel that this amendment might hold up the procedures.
In addition, some prisons now have drug rehabilitation units and it is possible that users will be sent there instead of to other places which would not rehabilitate them. I have worked with young offenders. Over the years I have been appalled at how young the users are and how large the drug population has become. It is very big and I believe that it is necessary to find out whether young people are taking drugs.
Lord Bassam of Brighton: This group includes two government amendments. I shall speak to those and pick up the points arising from Amendments Nos. 120 and 131 which are, to all intents and purposes, the same in effect.
I turn to the government amendment first. Amendment No. 130 clarifies why the disclosure of drug test results from testing carried out in police detention should be undertaken. The main purposes of disclosure will be several-fold: to inform any decision taken about granting bail in criminal proceedings; to inform any decision regarding supervision where the person is in police detention, remanded, committed to custody or released from custody into the community or has been granted such bail; to inform any decision about appropriate sentence or supervision where a person has been convicted of an offence; or for the purpose of ensuring that appropriate advice and treatment are made available.
Clarification for the purposes of disclosure will ensure that the sensitive nature of that information is respected and that the individual's rights are preserved in line with the Human Rights Act. It will provide for appropriate disclosure to ensure the safety both of the individual and of the public.
Research has shown that there is a clear link between drug misuse and acquisitive crime. The Government are absolutely determined to take all necessary steps to break that link. Drug testing will be a primary tool in the identification and monitoring of drug misusers. In order to maximise the benefits of drug testing, it is essential that appropriate disclosure is provided across the criminal justice system and relevant external agencies to inform sentencing and supervision and to allow for appropriate treatment to be made available to the individual.
We believe that, while an offender is within the criminal justice system, we have a duty of care towards both him and the wider community. We feel that we

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would be failing in that duty if we withheld relevant information which could impact on the safety of individuals, those responsible for their supervision and the general public.
As the drug testing programme develops, particularly during its pilot phase, the circumstances in which it is appropriate to disclose a drug test result will be assessed very carefully. We have defined disclosure by purpose to ensure that full disclosure provision is available in all appropriate circumstances in the future.
Our Amendment No. 140 establishes the authority of the Secretary of State to regulate the provisions of samples for the drug testing of offenders released on licence. We see drug testing as an integral part of monitoring compliance to licence conditions.
It is our intention to pilot drug testing, including the testing of prisoners released on licence, in three areas from spring 2001. Drug testing technology continues to develop and we shall use the pilot phase to determine which systems are most effective. It seems to us to be appropriate that the authority for issuing rules for regulating the provision of samples is held by the Secretary of State. That will ensure that the rights of the individual are protected and that effective and consistent drug testing systems are in place across the criminal justice system.
The amendment brings the regulation of arrangements for testing on licence into line with the authority required for regulating the provision of samples at other points in the criminal justice system already set out in the Bill.
I turn to opposition Amendments Nos. 120 and 131. As a result of Amendment No. 120, courts would be prevented from ordering a pre-sentence drug test to inform a decision on the most appropriate community sentence unless notified formally that provision for treatment was available within that area. In our view, pre-sentence drug tests will help to identify offenders with a propensity for drug misuse and will assist the courts in deciding on the appropriate community sentence. Here, treatment availability is not the only issue.
It is important that, if necessary, the courts have the power to require an offender to undergo a drug test for specified Class A drugs prior to sentence. However, court decisions to order pre-sentence drug testing should be comparatively rare. Drug testing on charge will already have helped to identify offenders who are misusing drugs, and steps will have been taken to encourage them into treatment at that point.
It is also likely that the pre-sentence report provided by the Probation Service will comment on the part played by drug misuse in an offender's criminal activity. However, on occasion it will be useful to ascertain whether an offender is currently using Class A drugs. A pre-sentence drug test will also provide for occasions when a drug test at charge was felt to be inappropriate. That may be particularly relevant where the offender was deemed to be unfit. A drug test
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result could help a court to decide whether a drug abstinence order or abstinence requirement is the most suitable disposal.
A pre-sentence drug test should not depend on a declaration to the court that treatment is available. The two are not necessarily linked. Enabling a court to order a drug test is an integral part of the new regime and, we argue, should be retained. In cases where a drug treatmentand testing order is considered appropriate, treatment will be provided through a service level agreement agreed and funded by the Probation Service.
There will be a number of cases where, although an offender tests positive for Class A drugs, treatment is not appropriate. In such cases, the requirement may well be to monitor behaviour by random drug testing as part of a community sentence, and treatment availability will not be an issue.
It is perhaps worth reminding the Committee how much the Government are investing in the treatment of drug misusers. Research has shown that effective intervention can be made at each stage of the criminal justice process. Initiatives include the introduction of arrest referral schemes, with joint funding providing £20 million over three years. Arrest referrals will be available in all custody suites from 2002.
Evaluation of drug testing and treatment orders is now complete and a national roll-out has already begun. The Government will be investing £54 million over two years towards drug treatment costs. The Government are also providing £28 million for development of the CARATS scheme within prisons in order to support the rehabilitation of offenders. It is intended that by March 2002 20,000prisoners per year will be assessed and that 5,000 will undergo drug treatment.
However, drug treatment is not yet complete. Although considerable resources are being put into treatment, there is still a shortage of capacity. Those difficulties are being addressed. Both the Department of Health and the Home Office are co-ordinating a recruitment campaign for drugs workers. By April next year up to 685 drugs workers will have been recruited and trained. We shall, of course, ensure that a major change in our delivery of treatment to drug misusers is established with the creation of the national treatment agency. That agency will be set up in April 2001.
By 2003–04 we shall be investing more than £400 million annually in drug treatment services—an increase of more than 70 per cent over the amount being spent in the current year.
I believe that I have made a powerful case for what we are endeavouring to achieve. For many years I have travelled around the country and met workers in agencies which attempt to help drug abusers. Those workers have said that there is an insufficient supply of services and support for drug abusers. We believe that pre-court testing, testing later through the criminal justice process and, of course, in prison and on release for those who are on licence is most helpful in this regard. We believe that our package is the most

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comprehensive and coherent to have been put together to help drug abusers and misusers. We see a better future for those people so that we can turn them away from a world of involvement in crime.
Amendment No. 131 would prevent the police from ordering a drug test at charge for the purpose of identifying those offenders who misuse specified Class A drugs unless notified formally that provision for treatment is available within that area. The arguments against Amendment No. 131 are much the same as the arguments against Amendment No. 120.
I hope that the noble Lord will feel able to withdraw his amendment.
Baroness Masham of Ilton: Before the noble Lord decides what to do, I want to congratulate the Government on what they are trying to achieve. It is a difficult task.
Lord Dholakia: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 agreed to.
Lord Bach: I beg to move that the House do now resume. I suggest that the Committee stage begin again not before 8.31 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Park Home Owners
7.30 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton rose to ask Her Majesty's Government what action they propose to take following the publication of the findings of the ministerial working party on the welfare of park home owners.
The noble Lord said: My Lords, I am deeply grateful for the opportunity to raise what, to many people, is an interesting matter. To 250,000 people who live on park home sites it is a significant matter. I am delighted to see the noble Baroness, Lady Maddock, in her place. Over many years she has journeyed with me to many places in relation to this issue. She takes a keen interest in the subject, as is recognised outside the House.
First, I want to express appreciation, not least to the residents' associations, for the progress that has been made. In Parliament there is an all-party group on the subject. In the early part of 1998—two-and-a-half years ago—I was part of a deputation that went to see the Minister, Hilary Armstrong, who was very receptive to the problems of park home owners. Those problems primarily came from the kind of areas where such sites exist, mostly in the countryside but also near to towns.
At the end of July, 20 Members of Parliament attended our annual meeting. Those who know Parliament well will understand that for 20 Members to attend anything is impressive. The Minister will be delighted to know that 25 Members have said that they intend to engage in a discussion with the Minister, Nick Raynsford, on 24th October. He will receive a warm reception. There is an appreciation that after some delays and some difficulties at last we are succeeding in achieving a solution to a great problem.
Of course, the problem does not only affect those who live in park homes. About 1,200 sites are recognised as park homes on which 250,000 people live and about two-thirds or three-quarters of them are members of the body that seeks to represent the site owners. Site owners are affected as are park residents, communities, local authorities and health and environmental officers. This issue is not a narrow one. If there are 250,000 people who have chosen to live on the parks because they are nice places and the kind of places to which they want to retire, we should take account of this sector of society.
For me this journey started in 1983 when the legislation that affects this issue was created. At that time I was in the other place representing my party on the committee that created the 1983 Act. It was made with the best of intentions, but over the past 18 years a number of blemishes have occurred. In my experience those who live in park homes have not received the kind of respect or attention given to many other groups of people. For owner occupiers, council tenants and private tenants there is legislation of a substantial nature which affects their lives. I hope that the Minister will be able to tell the House that the department will move forward.
I have spoken to residents' representatives recently and they are delighted about one matter. One of the biggest bones of contention has been the provision in the 1983 Act that provided for the ability of the site owner to take up to 10 per cent of the sale of a home. However, invariably it has not been "up to" 10 per cent, but 10 per cent of the sale price. When it was put to them that that amount should be reduced, site owners said that if that happened they would have to increase the pitch fee. There is a great deal of anger about this matter.
I am delighted to be able to tell the House—no doubt the Minister will reinforce this—that: while the working party was unable to resolve the matter, the department has commissioned a survey by an independent, qualified, respected body whose responsibility it will be to serve the communities and to advise on the right kind of relation between the commission and the pitch fee.
Over the years, evidence has come to me that while undoubtedly there are many good site owners who faithfully try to make a good living—as they do—and to be fair to their tenants, sadly there are a number of site owners who have a bad reputation. Noble Lords will be appalled to learn that in the year 2000 there are men who do not fulfil their responsibilities to look after their tenants. I believe that there is a great deal of

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fear and concern. Many people who become park home owners are elderly or infirm. They are not looking for a fight, but they are capable of being bullied and frightened. Up to now the mechanism whereby they could indicate fairly what was wrong has been lacking.
One thing that is wrong is the cavalier way in which many local authorities grant licences to people to operate parks and then fail to monitor the carrying out of the conditions attached to those licences. I am a local government man, so I know of the pressures, the shortages of capital and the difficulty in finding properly qualified individuals. However, many local authorities have a great responsibility for the aggravation caused because they simply issue licences, renew them, and do not take sufficient care and attention to ensure that the park is properly looked after.
On 19th July, my honourable friend, Hilton Dawson, the chairman of the all-party group, took part in a debate in the other place. I was delighted to see that Members of all parties took part in that debate. In varying degrees they welcomed the working party report, as I do now, and expressed their views. Some were more strongly expressed than others, but it was an all-party affair.
A lady called Sam Hart from the Big Issue was in the middle of a campaign and was approached by many people. I congratulate her on her efforts. There was TV, radio and local press publicity. Sadly, in the main it was not helpful publicity from the point of view of the industry. It generally came about when a terrible situation arose which ought to be put right.
Many people gravitate to park homes and find that, because they have what I call a "bad" landlord, their dream is blighted; it turns sour. What we want to try to do tonight and in the coming period is to give to those people and others, whom I welcome becoming park home owners, the prospect that the Government, local authorities and all the agencies will take seriously the problems that can arise.
I spoke to the annual meeting of the British Holiday and Home Parks Association—a body with 800 members—and the National Park Homes Council. I am delighted to say that their response to the report came in a letter to me from Mr Spencer saying that there had been a meeting of the residents and industry sub-group on 20th September to review a crucial part of the written statement. Mr Spencer told me that 20 areas of consensus had been agreed, others had been identified and further meetings were planned.
So it is all good news and I do not want to spoil it. But it is important for the record that we indicate to the Minister—she will be no stranger to this—some of the problems. I should say that two excellent civil servants, Mr. Faulkner and Mr Davis, served the working party.
I want the House to listen to two or three illustrations. The first comes from a residents' association which said:
"We the undersigned, believe that the site owner … abuses his position as our landlord in accordance with our complicated and varied agreements in that his companies … [first] claim that they are entitled to and do make charges for a] A £30 charge per person for photocopies of contractors invoices".
So merely for asking for a copy of the contractor's invoice they were charged £30; that has since been increased to £50.
The complaints included,
"b] interest charges (on some agreements)
c] overdue reminders (£50)
d] A £15 charge for letter reply to letters of query (now £30)".
The letter goes on to say that the site owner says he is entitled,
"to add the legal charges incurred by the 'Company' as part of the maintenance clause.
b] entitled to prohibit traders from providing services or carrying out work on resident's plot or home unless authorised by the `Company'.
c] entitled to impose contractors' agreements with the 'Company' to carry out communal and 'capital' work and impose charges without consultation with the residents who foot the bill".
It is scandalous that a body of people who are living quietly in their homes have a landlord who treats them in that way.
A further letter says,
"As many of you are aware Malcolm and myself had the `privilege' of meeting … and his manager on the day after he took over [the place]. After introductions we were having an amicable conversation with them until that is we told him that we had a Residents Association … then lost his temper and made it very plain that he did not allow Residents Associations on any of his Parks and in his words 'It would be stamped on and wiped out'".
One of the great benefits of the report, for those who are interested to read it, is that it strongly recommends that there should be the freedom to create proper residents' associations on the parks. It is, after all, not only a benefit to the residents, but also to the site owner.
Another letter states,
"As I explained to you there is no negotiation with the site owner whatsoever over any of the terms of the contract, and none of the residents on the site were allowed to negotiate any of the terms, which in our view is an unfair contract".
I am conscious of the time and I am grateful for this opportunity to debate this matter. Another group of residents wrote,
"For many years mobile home residents have had cause for serious complaint about the results of their peculiar situation—living in homes they owned on land they did not own. Dubious agreements, huge rent rises, overcharging for gas, water and electricity, the 10 per cent payment to the site owner as commission on a unit's changing hands, compulsory removal of units to make room for new and more expensive ones, dangerous conditions, particularly in relation to fire and roads, harassment, the prohibition of residents' associations and lack of involvement by local authorities are among the commonest grievances".
The final excerpt I should like to read into the record states:
"There is no vetting of prospective site licence holders. Site licence conditions are not sufficiently stringent. The environmental health department have not ensured even those

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minimum standards that it has imposed or adhered to. Site licences are not subject to review and they are extremely difficult to revoke".
I plead with the Minister to accept that it is not just one department in the local authority that has responsibility here; there is more than one department. But my evidence is that there is a lack of co-ordination within the council to ensure that environmental, planning and health bodies and others work together.
I am grateful for the time I have been given. I shall be delighted if the Minister will go back to her department and tell her colleagues, not least Hilary Armstrong and Nick Raynsford, that we give the report a general welcome. But more needs to be done, and soon. The people who are affected are elderly or frail and before they obtain relief from some bad landlords they may not be here. I warmly welcome the report and look forward to what the Minister has to tell us.
7.45 p.m.
Baroness Maddock: My Lords, I am grateful to the noble Lord, Lord Graham of Edmonton, for the opportunity to debate the Report of the Park Homes Working Party on the welfare of park home owners. This report arrived thanks to the persistence of the noble Lord, Lord Graham, and of many others over a number of years. Those of us in both Houses of Parliament who have an interest in this area have invariably become involved through casework with constituents at various levels of government. Indeed, that certainly happened when we developed an interest and knowledge of this sector of housing.
When I was a Member in another place, my constituency was Christchurch and it had a high proportion of park home owners in it. Indeed, I am grateful for my successor's speech in another place, which informs me that up to one in 10 of the constituents in Christchurch now lives in a park home. The majority of my constituents at that time living in park homes were very satisfied with their choice. But there were ongoing worries; there were uncertainties, many due to the nature of the tenure but particularly financial worries.
For quite a short period of time I had been approached by park home owners and owners of parks on a number of issues. As a result I carried out my own survey among the park home owners in my constituency. What is interesting is that the issues they raised, the areas in which they wanted to see changes, were not dissimilar from the issues raised in the report we have before us today.
The general areas of concern were security surrounding the tenure and also the ongoing costs of the tenure. People were worried about clarity, about the rights and responsibilities between home owners and park owners, and about fairness of treatment. I believe the noble Lord, Lord Graham, explained to us today some of the difficulties that many elderly people face in dealing fairly with the person who owns their park and the unfairness of not being able to meet together as a group and talk together with their park home owner.
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When we look at these issues, we see that they have been set against the background of legislation that was enacted in a completely different world from today. One of the first pieces of legislation was the Caravan Site and Control and Development Act 1960. Next we had the Caravan Site Act 1968 and, more recently, the Mobile Homes Act of 1983, in which the noble Lord, Lord Graham of Edmonton, was involved. However, over the years, technology has influenced the whole nature of the homes in which people live. The modern park home bears little resemblance to the 1960s caravan. It is not mobile in any normal sense of the word; it is a prefabricated home built to a high standard and often better insulated and easier to maintain than much of our mainstream housing stock.
People choose to live in park homes for a variety of reasons. They offer low-cost home ownership, easy maintenance and relatively low running costs. As we have heard, they suit many retired people not only for the reasons I have outlined but because they may enable people to free up capital from previous permanent housing and because a park home site is often a safe and secure environment. People know who is coming in and out, neighbours are near and there is a feeling of security.
Another factor which affects this sector, as it does many other areas of life, is the changing age profile of our population. With more people living longer, often with special needs later in life, we see many elderly people living in park homes who are not only vulnerable to harassment and the difficulties outlined earlier but who find it difficult to transfer into sheltered accommodation. Sometimes people need disabled adaptations which are not normally undertaken by local authorities in park homes.
There are discrepancies because they can apply for assistance towards the cost of insulation to make their homes more efficient. Under the Home Energy Conservation Act, which I steered through another place, local authorities have responsibilities for energy efficiency in domestic properties, and that includes park homes. Yet, despite the fact that park homes have become important providers of low-cost housing, the sector remains outside mainstream legislation.
The report before us makes recommendations some of which will require the enactment of primary legislation. The Housing Green Paper was recently published and we shall debate it in the future. We understand that there may be a Housing Bill in the next Session of Parliament and we should use that opportunity to end what I and perhaps others would describe as the "Cinderella status" of park homes.
I know that many of the park owners are not in favour of such moves. Indeed, I received a briefing from the National Park Homes Council and it raised various concerns about what would happen if park homes came under mainstream housing legislation. I shall raise only one or two. It states that,
"simply moving park homes within housing will not only do little for the plight of those on rogue operator parks but also hurt those on the many well run parks around the country".

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I understand those concerns and believe that it is not beyond us to create legislation which does not have that effect.
The council also states that,
"A new regulatory regime would have to be invented or will reliance be simply based upon that presently governing the private rented sector?".
We may have to have another regulatory regime but it can be based on current best practice. That is not insurmountable.
Another main concern is that park homes have their roots in caravan legislation and to remove them will see the sector wither and die. Caravans which people use for leisure time and holidays are different from the park homes we are discussing. I welcome the fact that they come under different legislation and believe that there is no reason why both sectors cannot exist. There is a demand for both.
However, interestingly, that organisation points out that more than 2,500 park home owners benefit from free access to the independent housing ombudsman. That is part of mainstream housing and proves the point that we should not be afraid of the change. It will not be simple and things will be different but we should not be afraid of it. It is not necessary to change everything overnight. Some changes must take place gradually.
Some of the other objections which were raised could be accommodated in legislation. The National Park Homes Council is worried that,
"There is no mechanism for defining the unique form of tenure that provides the very nature of park home living".
It is right but there is no reason why that cannot be framed in legislation; we do it in respect of many other issues. Although in this Session we have had difficulties in writing legislation I do not believe it is beyond us to do something.
The council is also worried about local authorities losing their ability to control conditions via site licensing. The Government are talking about licensing houses in multiple occupation. I understand the concerns, which might be worded badly, but the changes are possible and I should like to see them take place.
When the matter was debated in another place, Members from all parties took part and there was agreement on a number of issues. Very importantly, elderly and vulnerable people should be protected. I therefore support recommendations which will clarify the existing legislation and ensure that we have a standard of service provided by park owners evenly across the country.
Perhaps the issues of greatest controversy are pitch fees and the commission of up to 10 per cent on the sale of site homes to which site owners are entitled. I welcomed what the noble Lord, Lord Graham, said because, like others who took part in the previous debate, I strongly urge the Government to set up some kind of commission to consider an independent study
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into the economics of the industry. That would enable a system of commission and pitch fees which could win the support of both home owners and park owners.
Likewise, I support fair practice for the resale of utilities. That should be dealt with urgently. When I was a Member of Parliament, my postbag from park home owners consisted of more letters on this subject than on any other. Park home owners always found it difficult to deal with the issue.
One issue not covered in the working party report has been raised by many people who work in this area. It is the thorny issue of the council tax banding of park homes. It has moved on a little because of house prices but that depends on the part of the country in which you live. People in many areas have to pay council tax on a value far above the value of their home and I still have ringing in my ears park home owners saying, "And, what's more, we were paying in our pitch fees for the upkeep of the roads and the lights and for the removal of litter, so why do we have to pay again?". I hope that the Government will respond to that concern, although I realise that it was outside the remit of the report.
In conclusion, I support many of the recommendations of the working party and all the work that went into it. However, park homes have become a vital part of the supply of affordable housing in this country, particularly in rural areas. We should move towards including park homes in mainstream legislation in order not only to ensure that the legislation is in line with the social and technological changes of the past 20 to 30 years but also that park homes can thrive as a form of decent, affordable housing.
Most park homes are warm and safe and very environmentally friendly. They use fewer raw materials, less land and are often better insulated. I see no reason why they cannot flourish to the benefit not only of the people who live in the homes but also of those who own the parks. I hope that we can move towards a situation in which that happens within the national housing framework.
8 p.m.
Baroness Hanham: My Lords, during a debate in the other place on park homes earlier this year, the noble Lord, Lord Graham of Edmonton, was described as knowing more about park homes than all Members of that place and this House put together. Having heard the noble Lord today, I am sure that none of us disagrees with that.
It is over two years since the working party on park homes was first set up. I understand that the consultation period is now well advanced and is to be completed by the end of this month. Despite the hopes of some to the contrary, it is unlikely that there will be sufficient parliamentary time left to deal with any of the recommendations unless they are taken up in primary legislation which is currently on the stocks, as suggested by the noble Baroness, Lady Maddock. There may not even be time to amend the existing relevant legislation, such as the Caravans Act 1963 and

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the Mobile Homes Act 1983. However, the development of codes of good practice, amendments to the voluntary model statement, and general guidance on the observance and implications of the current law can be done on a much shorter time-scale, and we would welcome that.
It is obvious from the report and previous debates that the concerns which brought this working party together relate to a minority of park site owners. By common consent, the majority are members of respectable organisations which ensure that owners adhere to good management ideals and provide parks which have excellent services where residents, who are often elderly, can live in secure and attractive homes in pleasant surroundings without hassle, harassment or excessive charges.
It is worth noting a survey which was referred to in the working party's report. It records that 90 per cent of park home owners are satisfied with their homes and 80 per cent with the parks in which they live. They appear to be pleased with the conditions and the arrangements which surround them. Having seen some of them, one understands why that is so.
As always, when decisions come to be made it is important to strike a balance which recognises those facts as well as the unsatisfactory situations which are referred to in the working party's report. Unfortunately, as always, it is the minority which has brought about the whole package of concerns which the working party addresses, some of which have already been debated: the fairness of the pitch fee charges and the agreements which surround them; the sale of homes to third parties; the justification for the commission charged by the park owners; the rights of owners and tenants who are faced with an application to end an agreement; harassment; unsatisfactory standards, and so on. All these matters and others are treated with great care by the working party. I hope that during the consultation period the extent of the problems will become clear and those who are affected by them will respond.
I turn briefly to the 10 per cent commission charged on sales. I am delighted to hear from the noble Lord that something is being done about this. As to the level and annual uplift of pitch fees, at the moment that is justified as a necessary means to enable the park owner to obtain an income and provide a viable business. Clearly, that is a necessity, but the working party's recommendation that the Government should commission an independent study of the economy of the park homes industry—this may be the matter to which the noble Lord referred—is seen as a constructive way to examine this matter in more detail.
However, it seems fairly obvious that no owner will provide any standard of quality of site without obtaining some form of income. Therefore, there needs to be clarity about charges and commissions, and the principles behind them, and about pitch fees. Undoubtedly, there must also be some means of recompensing the site owner or contributing towards the costs. There are debates about council tax banding and the role of local authorities in monitoring and
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enforcing site conditions and helping with renovation grants. All of those matters are relevant to this important debate.
From this side of the House, in general we welcome the report which seems measured and thoughtful. It requires, and one hopes that it will receive, much further discussion during the consultation period. I hope that many of those affected will respond so that their views can be taken into account. I am aware that the noble Lord and others have spent a great deal of time ensuring that this matter is brought to the attention of Parliament. If that response is not made, it will be a missed opportunity.
Although park homes may be a small part of the total sum of housing in this country, there is no reason why those who live in them should have a lower quality of life than that expected by any other home owner. However, it is obvious that in some places that is what happens. But let us not forget that there are very many operators who provide accommodation on good sites, and homes which are valued by the people who live in them. I hope that they also take part in the debate so that any measures ultimately adopted do not discourage them from continuing and expanding their business.
Although there is a rather small number of participants, we have had an interesting and informative debate. I thank the noble Lord for giving us this opportunity to debate this important matter.
8.6 p.m.
Baroness Farrington of Ribbleton: My Lords, I begin by joining in the congratulations to my noble friend on tabling this Question. The noble Baroness, Lady Hanham, said that a small number of noble Lords had taken part in the debate. However, I can assure her that from where I stand the quality of the debate is exceptional. The knowledge that all three speakers bring to this matter is very high.
The report of the park homes working party was published on 11th July. I am happy to set out the actions that we are taking, and propose to take, on those proposals. Copies of the report have been placed in the Library of the House and distributed widely. The report proposed a range of changes to the control regime for the mobile homes sector. We are consulting on the proposals and will give serious consideration to the responses received and take action in the light of those responses.
Like other noble Lords, I commend my noble friend for his active interest in the mobile homes sector. Through his role as secretary of the Parliamentary All-Party Group for the Welfare of Mobile Home Owners, he has raised awareness of mobile homes issues and the concerns of residents. It was as a result of a suggestion by his group that the park homes working group was set up. I share his concerns about the position of some residents of mobile homes, particularly those who are retired or on fixed incomes or who find themselves in dispute with their park owners.
As to the experience of those who have developed knowledge in this field, I commend the work carried out by the noble Baroness, Lady Maddock, during her

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time as a Member of the other place and since. I hope that she, too, will respond during the consultation period and draw on her experience and knowledge. The park homes sector can play a useful part in providing decent affordable homes. Many park home owners live in good quality, attractive accommodation on well-run parks and enjoy the park homes lifestyle. However, I also appreciate the concern expressed by my noble friend that it is necessary for park home sites to have an appropriate control regime which balances the needs and interests of residents and those of park owners. The wise words of the noble Baroness, Lady Hanham, must be borne in mind: the aim is to ensure a fair balance of interest between the parties. Improvements to the control regime should target rogue operators and practices while keeping bureaucracy to a minimum for the responsible operator.
When we set up the working party to look into the existing legislation and make suggestions for changes it consisted of members of residents' bodies, park owners' bodies and local authorities. The report makes 30 recommendations for change. Those include changes to the arrangements for the sale of homes, issuing written agreements, harassment and site licensing.
We will consider those recommendations carefully. In doing so, it would be helpful to have the views of a wider constituency of residents, park owners or other interested parties, who did not have an opportunity to make a contribution to the report. For that reason, we are consulting on the proposals, with a deadline of 31st October for any comments that such interested parties may wish to make. We will consider our response to the recommendations in due course after that date.
An important aim of the working party, as all three noble Lords have recognised, was to reach consensus between residents' and park owners' bodies. An impressive degree of consensus was achieved on a range of issues. I congratulate the working party on its work.
It may be helpful if I make a few general comments on some of the working party's recommendations and the timetable for further action to take them forward. Most of the recommendations are for legislative change. The aim is broadly to provide greater clarity to the rights and responsibilities of residents and park owners and to improve the level of protection available to residents.
For example, there is a proposal for the resident and the park owner to sign a written agreement at the time of the sale of the home, so that both parties are aware of their obligations at the outset. There is also a proposal to tighten up arrangements which currently allow park owners to exploit their power of veto on the proposed purchaser of a home. My noble friend Lord Graham referred to the proposal that a new statutory requirement is placed on local authorities to impose and monitor conditions to mobile home site licences, and to consult residents on those conditions. That would require authorities to carry out their
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responsibilities for site licensing more methodically and consistently. We recognise that. There is criticism that in some cases local authorities do not do a good job of monitoring.
One of the recommendations is to make the setting of conditions for site licences a duty on all authorities. Good practice guidance should help to improve the consistency of operation of the rules.
The noble Baroness, Lady Maddock, raised the issue of the campaign supported by the Big Issue on behalf of mobile home owners; that their mobile homes should be included in housing legislation. We share the general concern to provide residents with adequate protection against exploitative treatment. However, the proposal is not one which won any consensus with the members of the working party. Some members of the working party were in particular concerned about the imposition of unnecessary, bureaucratic controls, which could drive park owners out of the industry.
We also need to bear in mind that mobile homes are fundamentally different in tenure from anything currently covered by ordinary housing legislation. Nevertheless, I can assure noble Lords that we are willing to consider a wide range of suggestions in developing an appropriate control regime for mobile homes. Points which were raised as points of detail—including the point raised by the noble Baroness, Lady Maddock, about the current role of the housing ombudsman—ought to be considered as part of the review. Those proposals and many others requiring amendments to the legislation need to be further developed and their impact assessed. A legislative opportunity would then need to be found to implement them.
We recognise that many people would like to see urgent action for reform. I am sure, however, that a careful and thorough approach to these issues, including a wider consultation with interested parties and scrutiny of the effect of legislative changes, is the right way forward. For proposals where legislation is not required, action will be taken forward straightaway on a number of fronts.
All three speakers referred to the recommendations for good practice guidance. The report recommends that we accept the working party's view that there are wide variations between authorities in the way they operate their responsibilities. We are issuing good practice guidance following the findings of recent departmental research. Our aim in disseminating good practice is to improve the quality and consistency of the service which authorities provide to residents and park owners on harassment and site licensing. Guidance on harassment was published this summer. Guidance on site licensing should be published next week.
The working party also identified a willingness on the part of residents' and owners' bodies to consider further the provisions which are included in the industry's voluntary agreement between the parties. I commend the parties for the willingness they have shown to take the issues further.

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The issue of pitch fees and sales commission was also raised. That was perhaps one of the most controversial areas on which the working party sought to reach agreement.It was inevitable that where money has to change hands, as in the case of pitch fees and the commission, there would be particular sensitivities. On the residents' side, there is concern about whether the amounts being charged are fair. On the industry side there is concern to maintain income and investment levels, and retain the viability of park home businesses.
The working party recommended that the department should carry out research on the economics of the industry, which would assist in considering any future control regime for pitch fees and the commission. DETR officials are considering the possibility of commissioning such a study, and have now drafted a specification for the research. Members of the park homes working party have been given the opportunity to make a contribution to the specification, and we will take the research forward as soon as we are able.
Also raised was the issue of concern that was recognised in the working party's recommendation on the subject of utilities. The working party recommends the setting of a maximum resale price for utilities and the provision of full information on charging. It believes that it would assist residents who feel they are being overcharged by the park owners.
We are therefore willing to consider action—both the possibility of legislation when a suitable opportunity arises in due course and good practice guidance—across a broad front, following the publication of the working party's recommendations. To help us in this, we are keen to hear views from a wider constituency. I congratulate noble Lords on the contributions they have made to that consultation and the debate today. We have already received more than 500 responses to our consultation exercise on the working party's recommendations, with nearly a month of the consultation period still to go. Many important issues need to be considered and raised as part of that consultation—for example, the issue raised by the noble Baroness, Lady Maddock, on the need for ensuring proper recognition of the need for adaptations for those people with disabilities living in park homes. We will consider all the issues at that stage.
The noble Baroness, Lady Hanham, touched on the issue of council tax. We both have a long connection in the field of local government. She knows that the Government have no proposals at the moment to consider changing the way that council tax is banded. I am quite sure that there will be those who, as part of the consultation, will offer a point of view on that subject.
In general, I would not want to rule out anything in the recommendations of the working party. We are keen to take forward particularly those issues where there is clear consensus support from the working party and other consultees. We will of course need to look carefully at the costs and benefits of any change
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and the impact the recommendations may have, particularly on the park homes industry and local authorities.
I congratulate my noble friend Lord Graham on his contribution to this debate and on the contribution he has made on this issue over many years. The introduction to the consultation document rightly recognises and praises his dedication to the needs and serious problems facing what may be a minority of people living in park homes. We shall look carefully at the case made for change in the report. We shall take into account the comments made today and in another place and in the responses received to the wider consultation exercise. I thank my noble friend for giving me the opportunity to respond on this subject.
Lord Graham of Edmonton: My Lords, before the noble Baroness sits down, perhaps I may say that many people outside the House will be grateful for her sympathetic response and reaction to the report. I should like my noble friend to bear in mind two points. The noble Baroness, Lady Hanham, said that the report referred to a survey in which 90 per cent of the residents participated. The residents' associations do not for a moment accept the validity of those statistics. Those who participated in the survey were restricted to parks where the owners agreed that their tenants should be surveyed. Many park home owners declined to take part. The suspicion is there that it was the bad owners—I do not accept that the majority are bad—who declined to take part. I make the point that the statistics in this field are dicey.
I should like the Minister and her colleagues to take on board another point. There is a great responsibility on the site owners' association to ensure that its members conform. Sadly, the owners of 500 parks are not members of the trade association. One of the burdens in this matter is taking up a point with the association only to be told, "I'm sorry. We cannot do anything because they are not members of our association". I am certain that the Minister, Nick Raynsford, will receive a warm reception from the all-party group. There is a growing interest in and anxiety about this matter. The Minister and his colleagues, especially, Mr Faulkner, who was the chairman of the working party, and Mr Davis, who was the secretary, did a Trojan job. We are very grateful indeed.
Baroness Farrington of Ribbleton: My Lords, I can assure my noble friend that I shall take away and consider the additional points he raised. Perhaps I was remiss in not recognising that the report suggests that residents should have the right to form a residents' association. We shall give serious consideration to that proposal.
Baroness Ramsay of Cartvale: My Lords, I beg to move that the House do adjourn during pleasure until 8.31 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.23 to 8.31 p.m.]

Criminal Justice and Court Services Bill
8.31 p.m.
House again in Committee.
Clause 44 [Community sentences: drug abstinence requirements]:
On Question, Whether Clause 44 shall stand part of the Bill?
Lord Dholakia: This clause allows drug abstinence requirements to be attached to a community sentence. We do not understand why such a power is needed. The Government recently introduced drug treatment and testing orders, which have been fairly successful. Treatment can also be made a condition of an existing supervision order.
The suggestion here is that an abstinence requirement is made without the possibility of treatment. Class A users will not stop their drug abuse because a court or a probation officer has told them so to do. In our view, without treatment, offenders who are made the subject of this requirement are being set up to fail. Probation officers will have the onerous role of supervising and conducting the tests. It will be the probation officer who will have to tell the person on supervision that there was no provision for treatment and that they will have to pull themselves together and stop taking drugs. That is totally unrealistic. It is also dangerous.
During the drug treatment and testing order pilot scheme in Croydon, female members of staff were at one time forced to supervise tests involving the passing of urine. A clear health and safety issue was raised by this. On one occasion a male offender threw an empty receptacle at a female member of staff in an act of frustration.
We believe that if this clause is implemented we shall see a sharp rise in the number of short-term prisoners and prisoners with acute drug problems. The Prison Service will not be able to cope or to offer such prisoners any realistic hope of treatment or rehabilitation.
Lord Bassam of Brighton: Clause 44 introduces a new requirement for drug abstinence which the courts may add to community rehabilitation orders, to community punishment orders or to community punishment and rehabilitation orders. This is very much in line with the action we are taking against those who commit crime to feed a drug habit. These new powers complement the drug abstinence orders and will be used where the court has decided to impose a community sentence and further requires the offender to abstain from drug misuse.
The court is required to add such a requirement to a community sentence where the offender is aged 18 or over; is convicted of a "trigger offence" and, in the opinion of the court, is dependent on or has a tendency to misuse specified Class A drugs. In other cases, the court has the discretion to include a drug abstinence requirement if it is believed that the misuse of a
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specified Class A drug caused, or contributed to, the offence. The court may not add a drug abstinence requirement if a drug treatment and testing order or drug abstinence order has been issued, nor if a community rehabilitation order has been issued which includes any drug requirement.
Testing is an integral part of monitoring the abstinence requirement. The Secretary of State will have the power to issue guidance on the frequency of sample provision by the offender and may make rules for regulating the provision of samples.
Drug abstinence requirements are also to be piloted and this clause provides that a court may make such a requirement only in areas notified by the Secretary of State that arrangements are in place for it to be implemented.
Lord Dholakia: I thank the Minister for providing that information. I hope, too, that the Minister has taken note of my earlier comments.
Clause 44 agreed to.
Clause 45 [Community sentences: curfew requirements]:
[Amendment No. 121 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 122:
Page 29. line 19, at end insert—
("(10) An order under sub-paragraph (9)(a) above may make in paragraph 19(2)(aa) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order."").
On Question, amendment agreed to.
Clause 45, as amended, agreed to.
Clause 46 [Community sentences: exclusion requirements]:
Lord Dholakia Lord Dholakia moved Amendment No. 123:
Page 29, line 31, at end insert—
("( ) An exclusion requirement shall only be made if the offence is one which is specified in schedules by order of the Secretary of State.").
The noble Lord said: Amendment No. 123 deals with the exclusion requirements of community sentences. Under the provisions of the clause, I understand that new technology will be used to produce a "reverse tag" which will be used to protect the victims of predatory crimes, such as domestic violence, stalking and so forth.
I addressed this matter earlier. It would be helpful if, when the schedule is prepared, it specifies clearly what it will contain rather than rely on the extremely wide powers conferred by this clause. I beg to move.
Lord Bassam of Brighton: I am grateful to the noble Lord for his further intervention on this matter. Of course I shall be happy to consider the point that he has made.
Amendment, by leave, withdrawn.
[Amendment No. 124 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 125:
Page 30, line 20, at end insert—
("( ) An order under sub-paragraph (8)(a) above may make in paragraph 19(2)(ab) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order.").
On Question, amendment agreed to.
Clause 46, as amended, agreed to.
Clause 47 agreed to.
Clause 48 [Breach of community orders: warning and punishment]:
[Amendment No. 126 not moved.]
The Attorney-General (Lord Williams of Mostyn): moved Amendment No. 127:
Page 32, line 45, at end insert (", and
( ) where one of those orders is a curfew order that fact shall be disregarded for the purposes of sub-paragraph (4) above"").
The noble and learned Lord said: In this group originally were to be found Amendments Nos. 126, 127, 128 and 129. I think—I am not entirely certain—that the noble Lord, Lord Windlesham, has decoupled Amendment No. 128, although the amendments all deal with the same topic. If I trespass on Amendment No. 128 inappropriately, I shall of course give way at once.
Perhaps I may deal with and speak to government Amendments Nos. 127 and 129. It was quite plain during Second Reading that there was a good deal of concern about Clause 48—essentially described as "undue rigidity". Certainly the noble Lords, Lord Windlesham, Lord Dholakia and Lord Brennan, raised those concerns and I believe that the noble and learned Lord the Lord Chief Justice also expressed similar concerns in correspondence with the Home Secretary.
As I have said, a good deal of the criticism was that the enforcement proposals were too rigid, too mandatory. We took the view that community sentences should not be ignored or treated too lightly. My noble friends Lord Bassam, Lord Bach, and I said that we would think carefully about whether this particular regime could be improved, subject of course to the fact that the final result should be consistent with what we were aiming to achieve. I think we can say that we have listened and paid careful attention. What we have now got—if the Committee agrees to it—is more judicial discretion while retaining certainty of outcome.
Under the government amendments to which I have referred, where an offender is aged 18 or over and is subject to a community order to which the statutory warning provisions apply, having found the breach to have occurred, the court would first decide whether or not, notwithstanding the current breach, the offender's response to the sentence as a whole was such that it was likely that the order would be successfully completed. If the court took that view—in other
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words, successful completion likely—it would allow the order to continue; and it would be under a duty to punish the breach by imposing a community punishment order, a curfew order or, where the appropriate age applied, an attendance centre order. Having listened to all the representations, we came to the conclusion that a fine would not be appropriate as it is of a lower tariff than the community penalty breached.
If the court does not believe that there is a likelihood that the order would be successfully completed, there would be a requirement to impose a custodial sentence, other than in exceptional circumstances. If the original offence itself was punishable by imprisonment, a prison sentence would be imposed for the original offence. If the original offence was not so punishable, the prison sentence would be limited to not more than three months. The existing exclusion—that is, those who are under 18 and those who fail to comply with a requirement to refrain from using Class A drugs—would remain.
As in the original wording, the presumption would also be displaced where there were exceptional circumstances to justify it. In dealing with these cases, the courts would be obliged to impose one of the alternative community sentences as a penalty for breach or re-sentence for the original offence, if thought appropriate. There are consequential amendments, of course, in Schedule 6 to the Bill.
I believe that these amendments are a proportionate, reasoned and reasonable response to the criticisms which were made. I should say on my own behalf that I am grateful for the criticisms because the consequences of listening to them and trying to engage in a reasonable debate has brought about a better outcome. I beg to move.
8.45 p.m.
Lord Windlesham: In speaking to this amendment, I should like to speak also to Amendment No. 128, which stands in my name and the name of the noble Lord, Lord Dholakia, and others.
Clause 48 of the Bill, as it stands, provides that, unless there are exceptional circumstances, all offenders who breach community orders such as probation or community service orders, after one warning would automatically be punished by a mandatory prison term of not more than three months in duration.
This was a proposal—I use the past tense in view of what we have just heard from the Government Front Bench—which was breathtaking in its scope, in its non- selectivity and in its potential impact on the prison population, especially in local prisons and at reception. As the noble and learned Lord accepted, there were strong criticisms of the proposal at Second Reading. Consequently, a cross-party amendment was tabled in the names of the noble Lord, Lord Dholakia, the noble Baroness, Lady Stern, the right reverend Prelate the Bishop of Lincoln, and myself, to omit the clause altogether. That is Amendment No. 128, to which I am addressing myself at the moment.

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But sometimes the seasons and political opportunities coincide. The Second Reading debate on the Bill was shortly before the long summer Recess. That allowed time for second thoughts; it allowed time for strong representations from the Probation Service; and, we understand from what the noble and learned Lord the Attorney-General said, an opportunity for the Lord Chief Justice, whom I am delighted to see in his place, to be in touch with the Home Secretary on the matter. I have a strong suspicion that others present this evening also may have played a part.
As a result, we have in front of us what is substantially a new clause. It is brought forward as Amendment No. 129, to which the noble and learned Lord the Attorney-General will be addressing himself very shortly. As he has already explained, the effect of the amendment leaves the court with more flexibility in dealing with breaches of community orders. Instead of automatic imprisonment, it proposes that a court—both a magistrates' court and a Crown Court—need not make use of custody if it is of the opinion that the offender would be likely to comply with the rest of the order if it was allowed to continue. Where the order is allowed to continue, the court would punish the breach with a community punishment order—to use the title which will be in use if the Bill is enacted in the form in which it is at present—or a curfew order enforced by a tag, or, for offenders under the age of 21, an attendance centre order. The court would also have the option of dealing with an offender by re-sentencing for the original offence.
If, however, it was considered "unlikely"—the same term again—that the offender would comply with the order, then, unless there were exceptional circumstances, the court would be under an obligation to punish the breach with imprisonment.
When the noble Lord, Lord Bassam, was first in touch with me on behalf of the Home Secretary to inform me that Ministers were willing to make this substantial concession, I thought there were two aspects of this welcome news which needed to be established. The first was: did the Probation Service think it was workable? The likelihood is that the sentencing court, in deciding whether or not there has been a breach and, if so, what the penalty should be, would have to look to the Probation Service for a report, because it is the Probation Service which will know the individual first-hand. We must hope that the court has not been so familiar with the individual from the past to be able to make an assessment on its own.
With very little hesitation, the answer from the Association of Chief Officers of Probation was that it anticipated the Probation Service would be able to distinguish between, and advise the court on, orders which were still viable and might be allowed to continue and those where the chances of completion were remote. That was one part of the assessment as to the effect of the proposed changes.
The second part was how the courts would look on the proposal. I shall say no more on that aspect in view of the fact that the noble and learned Lord, Lord
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Woolf, is here and will be able to give us his own view. Those are the crucial aspects to which we must give our attention.
Finally, I hope that the Government will not dismiss too readily the use of fines. It was briefly passed over in the Attorney-General's opening remarks. I am aware that fines are currently out of favour with the Home Office. But there is a case for a fine to be added to the other suggested punishments for breach—a curfew order, community service hours, or an attendance order—for those offenders who might be assessed as able to continue with their orders.
At present, fines are widely used as a disposal in this context. I understand from the Inner London Probation Service, the biggest service in the country, that in about a quarter of cases—a substantial number if one considers the volume of throughput—the court attaches a financial penalty to the continuation of the order. So, in welcoming the order and in accepting the significance and generosity of the concession, I hope that the Home Secretary, the Attorney- General and others will not dismiss the possibility of including fines as a supplementary penalty. I commend the amendment and I look forward to the comments of other Members of the Committee who may take part in the debate. When it is concluded, I shall withdraw the amendment.
Lord Woolf: Like Members of the Committee in general, I should acknowledge that it is welcome that the Home Secretary has felt it possible to propose the amendment introduced by the noble and learned Lord the Attorney-General. I acknowledge straightaway that the proposal is much more satisfactory than what was previously contained in the Bill. However, the clause in its original form and in that proposed in the amendment raises an issue of principle and I consider it right to detain the Committee with a brief discussion of the matter.
Prior to taking up my present office, for almost 10 years I had not been directly concerned with our criminal justice system. I found to my regret that in the intervening period the system had not improved. I am afraid that it was my clear impression that it had deteriorated. That was despite—or, more accurately, partly because of—a flood of legislation in the intervening period. That legislation was no doubt well intended and was passed with objectives in mind which many would say were commendable. However, its effect has been to make the task of the sentencing judge or magistrate extraordinarily convoluted and difficult.
Because of my change of role, I thought it important that I should return to school. Therefore, I attended a refresher course for a week during the summer which was held by the Judicial Studies Board. The course work was impressive, as were the skills of those who attended. They needed to be. In order to pass a lawful sentence today, you have to pass through hoop after hoop imposed by the legislature. Although unintentionally, I am sure, the legislation has created an obstacle course. The sentences which can be passed and those which cannot are hedged around with a myriad of technical restrictions. What has to be

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explained in open court when passing sentence has become subject to a mass of technical requirements—so much so that a hot topic at the seminar that I attended was: is the better practice to go through the statutory hoops before telling the offender what is his or her sentence; or is it better to tell him or her the worst and then go through the hoops? From the offender's point of view, and that of the expeditious and efficient administration of justice, neither alternative has much to commend it.
Clause 48, in its original form, had the disadvantage that, although it was designed to give non-custodial sentences more credibility in the case of a breach of the conditions, it was in practice likely to lead to the opposite result. That is for the simple reason that it would make probation officers more reluctant than they should be to give warnings, and even more reluctant to bring offenders back to court. Those who have had anything to do with sentencing know that in many cases what is most effective if someone is brought back to court should a community sentence have had conditions breached is for the offender to be brought back into court. That is in itself salutary. A stern warning from the court can then have the effect that is required and the original intention of the sentencer when imposing the community sentence can be achieved.
What is the evidence that magistrates or judges are being unduly lenient when offenders are brought back before the courts for a breach of a condition imposed on a custodial sentence? That is not the impression of probation officers with whom I have discussed the matter. If we are treating offenders unduly leniently, training plus guideline decisions from senior judges can produce the required result. Why place a judge in the entirely artificial situation of having to impose an artificial sentence of imprisonment?
The new provision requires the court, if it is not satisfied that a community sentence can be completed, still to impose a sentence of imprisonment. What are the requirements with regard to that sentence of imprisonment? The court must ask itself what would be the sentence if the offender had just been convicted. But that is not the situation. A period of time would have elapsed before the sentence would have been imposed. Secondly, the sentencer has to consider what decision he would have imposed when the matter was originally before him. But that is putting the sentencer in an entirely artificial position. His intention at the time was not to impose a sentence. So he is asked to go through a hoop which serves no purpose.
Then, the court is being asked to impose imprisonment in some circumstances for an offence in relation to which no imprisonment could be imposed. A sentence of imprisonment is imposed for that offence in substitution for the means of disposal in the community which had originally been imposed. It is justified on the basis: "Ah, but the offender has since committed a breach of the order that was made". But imposing imprisonment in those circumstances is still imposing a sentence for the original offence. If Parliament had previously said that the proper sentence was not imprisonment, is it right, as a matter
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of principle, to impose imprisonment because the community sentence that was imposed has not been complied with?
It is now accepted that great improvements have been made by the legislation that this Bill seeks to amend; namely, the Powers of Criminal Courts (Sentencing) Act, which was passed this year. That Act brought together legislation that was spread across numerous Acts of Parliament. The consolidation was very much a step to be commended. However, we are now in the process of repeating the mistakes of the past by trying to deal piecemeal with particular problems that have been identified, frequently without conducting the investigation that should have been carried out to see whether the amendments to what has been consolidated in that Act are justified.
Complexity is a menace in any system of justice. What we are constantly doing is increasing that complexity. We have reduced the complexity in the civil justice system. That has assisted the administration of justice. What is being done now, and what has been done over the preceding years, is to move in the opposite direction with regard to the criminal justice system. I respectfully suggest to noble Lords that that process should be avoided unless an overwhelming case is made out to move in the other direction. As far as concerns this amended Clause 48, I know of no such case.
Finally, I should like to associate myself with what the noble Lord, Lord Windlesham, said with regard to an alternative of a fine. With the greatest respect to the noble and learned Lord the Attorney-General, I suggest that it is not an answer to the non-inclusion of a fine to say that that is a lower sentence in the tariff than the community sentence that has been imposed. The situation could arise where the offender would still have to fulfil his community sentence but could pay a fine in addition. As we have heard, that form of sentencing is regularly used now. I can see no purpose in depriving the courts of that additional weapon.
When sentencing, it is vital for a court to have as many options as possible. Of course, that means that the outcome is less certain; but it does not mean that the outcome is less desirable. Sentencing requires flexibility. We must avoid removing that flexibility if we can.
9 p.m.
Lord Brennan: I am sure that I speak on behalf or all Members of the Committee in acknowledging the value to us, and to the community, of listening to the views of the noble and learned Lord the Lord Chief Justice on the matter of sentencing with which we are concerned tonight. We shall need carefully to consider what he said in relation to the structure of legislation about future sentencing because that illustrates to us the particular tensions that arise in the present Bill which so concern him on the part of the judiciary and the system of criminal justice.
Why is this debate an example of that concern? We are here debating the question of how those who receive what must be described as a "lenient

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sentence"—that is to say, a non-custodial sentence—by way of a community order should be dealt with when they breach the terms of that order. That question raises the three issues that so concern the Lord Chief Justice. First, there are the interests of the offender; secondly, there is the question of protecting the public; and, thirdly, in seeking to resolve those two, often conflicting, considerations, there is the question of how the judges can best be assisted in sentencing.
I hope that the reasoned and, in my view, effective compromise on the question presently before the Committee by way of this amendment will give the noble and learned Lord some assurance that, with careful thought, the right solution can be achieved from time to time, despite the fact that it may be accompanied by one of two of those "hoops" that he has deprecated so much—and rightly so.
In the context of this debate it is important for the legal profession, and those in the criminal justice system, briefly to explain the purpose of the present amendment. As I understand it, a community order is regarded in many cases as an alternative to a custodial sentence. But for mitigating circumstances, the particular defendant ought otherwise to go to prison or to youth detention by way of sentence. That decision as the result of a pre-sentence report and the considerations surrounding the decision then made by the judge are designed to protect the public from harm on the part of the offender; to prevent the commission of further offences; and to secure the rehabilitation of the offender. However, I suggest that it should never be forgotten that behind those objectives is the belief that, if they cannot be achieved, that which was first worthy of consideration—namely, a custodial sentence—should be worthy of fresh consideration as regards those who breach those objectives by their conduct.
The Bill before us talks about an "unacceptable failure" in relation to the requirements of a community order. It is not a simplistic requirement to ask of a defendant that he observes an order of a court. Therefore, having identified the nature of the sentence, I invite Members of the Committee, and those who will read the Hansard report of this debate, to consider the purpose of the order: it is to make the defendant obey the requirements of the probation officer by completing the community order—whether it be community service, probation, or whatever—instead of going to prison.
With that background I ask three questions. First, what is the position of the offender with regard to the proposal in Amendment No. 129? At the day of sentence the judge will have to tell him or her in plain language that if the order is breached there will be a penalty, which may be the very penalty that would have been passed but for the mitigating circumstances that justify a community order. The defendant will be told in plain English, "If you do not do what you are told, you will be brought back and you may be sent to prison". That is not difficult to understand.
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I am quite sure that that warning will be repeated by every probation officer at their first meeting with a defendant. It may be the subject of a nudge from time to time as the months go by. It may, unfortunately, result in a first official warning. No defendant can plausibly say that that would take him by surprise; the opposite is the case. It gives him opportunity after opportunity to obey and to fulfil the terms which the court required of him.
Secondly, what is the position of the probation officer? As the noble Lord, Lord Windlesham, told us, it is significant that the Association of Probation Officers accepts the approach I have mentioned. I speculate on the reasons for that. It gives control which is reasoned and not indiscriminate. In my view it is a control which assists the effective completion of a community order; it does not hinder it. It enables the officer to say to the defendant, "I want to help you. You tell me you want to help yourself. You must follow the rules. If you do not, there are consequences". That is the kind of regimen which many of us observe in our ordinary lives; why not a defendant in these circumstances?
Thirdly, what is the position of the sentencing judge? The judge must ask himself: if there is a breach under this system, is the sentence likely to be successfully completed if I do not return to the sentence that ought originally to have been imposed? That is a perfectly reasonable question. If the sentence is likely to be successfully completed, there is every motive to allow it to stand. If that is not the case, I cannot foresee any cogent reason why the court should not return to square one; namely, to what the defendant was told would happen if he did not obey. The judge in so sentencing has his powers restricted by Parliament, but advisedly so because Parliament wishes a sentence to have penal effect if it is not observed by the person receiving it.
Those three considerations of the offender, the probation officer and the judge all lead me to conclude that this is—as I described it initially—a reasonable and effective method of ensuring that those who receive lenient sentences must take the consequences if they do not obey the rules. On several occasions in this Chamber I have heard the liberal—I use that word with affection rather than disdain—sentiment that there are many in our community who are so disadvantaged by background, drug addiction or whatever, that they need special attention. That is quite right. However, there are many more who are not so disadvantaged who treat such sentences as ones with which they can play. That must stop.
I therefore commend the amendment to the Committee, but I do so with restraint because, as my noble and learned friend the Lord Chief Justice said, this Bill is an amendment to a Bill which was a consolidating Bill this year of two Bills passed in the previous two years. This has got to stop. Sentencing and crime merit parliamentary attention, but not month by month or several times in one Parliament.
I make that suggestion seriously because we are dealing with important questions which affect public confidence in our system. The more carefully we

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prepare, the more detailed our examination of the resulting legislation, the more effective will be the result.
I conclude by inviting us all when next we examine legislation of this kind to remember what the Lord Chief Justice has told us. For us it is legislation. For the criminal justice system is human activity day by day which everyone should be able to understand and be able to follow and which, we hope, will benefit the community. I endorse the amendment and ask the Committee to support it.
9.15 p.m.
Lord Dholakia: Amendment No. 128 stands in the name of the noble Lord, Lord Windlesham, the right reverend Prelate the Bishop of Lincoln, and myself, and the noble Baroness, Lady Stern, who asks me to give her apologies. She is in Sweden and unable to be here on time.
I am delighted that the noble and learned Lord the Attorney-General has considered our concern. It is in his nature to find ways in which we can move forward. Much of the case has been made. I am delighted to hear the views of the noble and learned Lord the Lord Chief Justice.
The government amendment will improve the clause considerably by enabling the court to let an order continue if it considers it likely that the order can be successfully completed. The only oddity about this part of the amendment is that it requires the court to pass a community service order, a curfew order, or an attendance order for the breach but not a fine. Sufficient emphasis has been given to this and it would be right and proper for the Minister to consider whether a fine might be appropriate in certain cases.
Under the amended clause, if the court decides that it is not likely that the order can be successfully completed, it will be required to imprison the offender unless there are exceptional circumstances. This remains excessively rigid. For example, in the case of an offender with a chaotic lifestyle who has breached a community service order a court resentencing the offender might conclude that the probation order or curfew order with electronic monitoring would be a suitable punishment as well as having a better chance of injecting some structure into the offender's life. It would be more likely to steer the offender away from further crime than a short period of imprisonment.
The amendments considerably improve the clause and have the support of the Association of Chief Officers of Probation. I hope that the Minister will look at the amended clause. It still ties the hand of the resentencing court in a way which seems somewhat excessive and undesirable. The proposals improve it. Let us hope that it will work.
Lord Williams of Mostyn: This has been a micro debate of great profundity. It is a pity that more noble Lords were not here to listen to it. It seems to me that it divides itself into two categories. The first is the general jurisprudential, almost philosophic, approach that the noble and learned Lord the Lord Chief Justice
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utilised in dealing with the general problem of sentencing. He said—I think I cite him fairly—that complexity is a menace in the criminal justice system. It may be, but the alternatives may be no better. One alternative to complexity is simply the blunt sentence. The other is the system with which he and are well familiar—I am not being disrespectful to our judicial colleagues in the northern part of the Americas—where the judge simply ticks the box. There is nothing complex about it but neither is there anything particularly sophisticated or subtle about it.
I take the point made by the noble and learned Lord the Lord Chief Justice and immaculately, if I may say so, by my noble friend Lord Brennan. I cannot improve upon his argument. I used to hear those words often in debates on reform of the House of Lords followed by the most cruel word in the English word—"however". But I do not propose to say "however" or seek to improve on his argument. The single point I need to address—the noble and learned Lord the Lord Chief Justice and the noble Lord, Lord Dholakia referred to it—is the question of fines.
The answer to that—it was touched upon by my noble friend Lord Brennan—is that a fine was a possible alternative on the original sentencing occasion. It was rejected as insufficient. It was rejected because it would be neither a punishment nor an appropriate deterrent. It was a lower level than the one being breached. Experience indicates that significant fines are rarely collected from this class of offender. I do not dissent from the figures given by the noble Lord, Lord Windlesham. I should have said earlier how typically generous his response was. But if one has an offender who has already been sentenced in this way, a significant fine is unlikely to be imposed and collected.
We say, following the noble Lord, Lord Brennan, that a curfew order, a community punishment order or an attendance centre order would have a significant effect on offenders whose lives, I agree, are typically unstructured and chaotic.
We have benefited enormously from the debate. There is no doubt in my mind that the amendment will provide a significantly better remedy than the original clause. I am grateful to those who have contributed to the debate this evening and those who have taken the trouble to put their points to me privately and by letter. I hope that I have dealt with the concerns that have been expressed.
Lord Windlesham: To get us back into order, it might be appropriate for me to say that I shall not move Amendment No. 128. We have had a distinguished debate, illuminated by the presence and the contribution of the Lord Chief Justice.
The Attorney-General said that he could not improve on the speech made by the noble Lord, Lord Brennan. I hope that he will read it carefully. Echoing the Home Secretary, the noble Lord said that community penalties are punishments that must be observed. If they are not, the individual will be brought back to court and must know that he may be sentenced

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to imprisonment. The word "may" is crucial. There is nothing wrong with that. It leaves discretion with the court.
The noble Baroness, Lady Kennedy of The Shaws, and I are on different sides of the Chamber, but we have often agreed on many matters. Her nodding is as eloquent as any of the words that she could and often does use. Our essential objection to the original proposal was that it was a mandatory—and very harsh—scheme that would have resulted in injustice. That cannot be the right way to approach criminal justice policy. With those words ringing in the Attorney-General's ears, I repeat that I shall not move my amendment.
On Question, amendment agreed to.
[Amendment No. 128 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 129:
Page 33, line 1, leave out subsections (4) and (5) and insert—
("(4) In paragraph 4, for sub-paragraph (1) there is substituted—
"(1) This paragraph applies if it is proved to the satisfaction of a magistrates' court before which an offender appears or is brought under paragraph 3 above that he has failed without reasonable excuse to comply with any of the requirements of the relevant order.
(1A) In a case where the offender is aged 18 or over and the order is one to which the warning provisions apply, the magistrates' court shall impose a sentence of imprisonment for the offence in respect of which the order was made unless it is of the opinion—

(a) that the offender is likely to comply with the requirements of the order during the period for which it remains in force; or

(b) that the exceptional circumstances of the case justify not imposing a sentence of imprisonment.

(1B) The sentence of imprisonment—

(a) where the offence was an offence punishable by imprisonment, shall be for the term which, if—

(i) he had just been convicted of the offence by the court, and

(ii) section 79(2) of this Act did not apply, the court would impose on him for that offence; and

(b) in any other case, shall be for a term not exceeding three months;

taking account of the extent to which he has complied with the requirements of the order.
(1C) If in a case within sub-paragraph (1A) above the court does not impose a sentence of imprisonment or if the case is not within that subsection, the magistrates' court may deal with him in respect of the failure in one of the following ways (and must deal with him in one of those ways if the relevant order is in force)—

(a) by making a curfew order in respect of him (subject to paragraph 6A) below);

(b) where the offender is aged 16 or over, by making a community punishment order in respect of him (subject to paragraph 7 below);

(c) where the offender is aged under 21, by making an attendance centre order in respect of him (subject to paragraph 8 below); or

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(d) where the relevant order was made by a magistrates' court, by dealing with him, for the offence in respect of which the order was made, in any way in which the court could deal with him if he had just been convicted by it of the offence."

(5) In paragraph 5, for sub-paragraph (1) there is substituted—
"(1) This paragraph applies where under paragraph 3 or by virtue of paragraph 4(4) above an offender is brought or appears before the Crown Court and it is proved to the satisfaction of that court that he has failed without reasonable excuse to comply with any of the requirements of the relevant order.
(1A) In a case where the offender is aged 18 or over and the order is one to which the warning provisions apply, the Crown Court shall impose a sentence of imprisonment for the offence in respect of which the order was made unless it is of the opinion—

(a) that the offender is likely to comply with the requirements of the order during the period for which it remains in force; or

(b) that the exceptional circumstances of the case justify not imposing a sentence of imprisonment.

(1B) The sentence of imprisonment—

(a) where the offence was an offence punishable by imprisonment, shall be for the term which, if—

(i) he had just been convicted of the offence by the court, and

(ii) section 79(2) of this Act did not apply, the court would impose on him for that offence; and

(b) in any other case, shall be for a term not exceeding three months;

taking account of the extent to which he has complied with the requirements of the order.
(1C) If in a case within sub-paragraph (1A) above the court does not impose a sentence of imprisonment or if the case is not within that subsection, the Crown Court may deal with him in respect of the failure in one of the following ways (and must deal with him in one of those ways if the relevant order is in force)—

(a) by making a curfew order in respect of him (subject to paragraph 6A) below);

(b) where the offender is aged 16 or over, by making a community punishment order in respect of him (subject to paragraph 7 below);

(c) where the offender is aged under 21, by making an attendance centre order in respect of him (subject to paragraph 8 below); or

(d) by dealing with him, for the offence in respect of which the order was made, in any way in which the Crown Court could deal with him if he had just been convicted before it of the offence".").

On Question, amendment agreed to.
Clause 48, as amended, agreed to.
Clauses 49 to 51 agreed to.
Clause 52 [Testing persons in police detention]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 130:
Page 35. line 43, at end insert—
("( ) Information obtained from a sample taken under this section may be disclosed—

(a) for the purpose of informing any decision about granting bail in criminal proceedings (within the meaning of the Bail Act 1976) to the person concerned;

(b) where the person concerned is in police detention or is remanded in or committed to custody by an order of a court or has been granted such bail, for the purpose of informing any decision about his supervision;

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(c) where the person concerned is convicted of an offence, for the purpose of informing any decision about the appropriate sentence to be passed by a court and any decision about his supervision or release;

(d) for the purpose of ensuring that appropriate advice and treatment is made available to the person concerned.").

On Question, amendment agreed to.
[Amendment No. 131 not moved.]
Clause 52, as amended, agreed to.
Clause 53 agreed to.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 132:
After Clause 53, insert the following new clause—

Criminal Justice and Court Services Bill

  DEFENCE AGAINST SECTION 8 OF THE MISUSE OF DRUGS ACT 1971
  (" . It shall be a defence for a person accused of an offence under section 8 of the Misuse of Drugs Act 1971 (occupiers etc. of premises to be punishable for permitting certain activities to take place there) that he did not wilfully permit an activity under that section to take place.").
  The noble Lord said: This is the miscellaneous chapter in Part III. The amendment raises a new issue. It refers to Section 8 of the Misuse of Drugs Act 1971, which makes it an offence for the occupier or any person concerned in the management of any premises knowingly to permit or suffer the use of drugs on their premises.
  The reason for the amendment derives from a case which achieved some publicity in Cambridge recently where Members of the Committee will recall that a charity which was providing services to the homeless in Cambridge, including an open access drop-in centre offering cheap food, washing facilities, free clothing, support and advice and so on, was the subject of a police investigation.
  In that case a trial took place at the King's Lynn Crown Court at the end of 1999 and leave to appeal has been granted against the sentences imposed there. The appeal has not been heard.
  I do not propose to address any remarks to that appeal because, of course, the appeal will be determined upon the wording of the Act as it presently stands. I do not feel that I shall in any way embarrass the Court of Appeal by moving this amendment.
  The purpose of the amendment is to replace the word "knowingly" permit with "wilfully" permit. The circumstances at which this amendment are aimed are these. All over the country there are day centres and centres for homeless people which are attempting to do something to assist and rehabilitate people who have drug problems. It is inevitable that the people whom they are trying to help will, from time to time, bring drugs into the premises and may consume them, or attempt to do so, in different ways.
  It is almost impossible to deal with people of that nature without risking the provisions of Section 8 of the Misuse of Drugs Act as it now exists. The purpose of the amendment is to make it a criminal offence if, and only if, there is an element of willful
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  encouragement involved in the person who is charged with this offence under Section 8 of the Misuse of Drugs Act.
  In order to take this opportunity to right what may not be a particularly satisfactory criminal provision, I beg to move this amendment.
  9.15 p.m.
  Lord Bassam of Brighton: The amendment moved so eloquently by the noble Lord, Lord Thomas of Gresford, may have a seriously adverse effect on the number of successful prosecutions against owners and those concerned in the management of premises by providing a defence for those who did not take adequate measures to prevent the production, supply or use of illegal drugs on their premises.
  Further, innocent occupiers of premises are already adequately protected, in our view, by the elements of "knowledge" and "permitting" in the Section 8 offence. Section 8 of the Misuse of Drugs Act 1971 recognises as serious offences per se the connivance of those in charge of premises to allow the unlawful production, supply or consumption of controlled drugs to take place there.
  Section 8 of the Misuse of Drugs Act 1971 makes it an offence for an occupier or person concerned in the management of premises knowingly to permit certain specified actions to take place on those premises; namely, the production or attempted production of a controlled drug, the supply or attempted supply of a controlled drug or the preparation of opium for smoking or the smoking of cannabis.
  Section 8 replaces a similar section in the Dangerous Drugs Act 1965 and was drafted specifically to ensure that only a person with guilty knowledge can be caught by its provisions.
  Section 8 as currently drafted does, we think, quite properly require those concerned in the management of premises to accept responsibility for taking all reasonable steps that are available to them to prevent drug dealing.
  The Misuse of Drugs Act 1971 currently provides no special defences in relation to Section 8 offences. The suggested new clause, which provides a defence that the person concerned did not act "wilfully", could weaken those provisions. It would certainly make them less clear. It could enable owners and managers to argue that, although they had guilty knowledge of the illegal activity, they had not permitted it wilfully, for example, by showing that they had perhaps taken some half-hearted, but not all reasonable, measures to prevent the production, supply or use of illegal drugs on their premises.
  The precise intention of the amendment is far from clear. If it is designed to protect the occupier who does not know about the illicit activity or who, despite his best efforts, is unable to prevent it, the amendment is unnecessary and makes the existing protections less clear. Alternatively, if it is designed to limit the offence to occupiers who positively encourage such use of their premises, I suggest that it represents a significant

  1619
  weakening of the criminal law in this area. In any event, it obfuscates and confuses. We believe that clarity is crucial in the drafting of criminal offences.
  I am well aware of the prosecution of Ruth Wyner and John Brock. However, I do not believe that it would be appropriate for me to comment on that for the very reasons that the noble Lord has described.
  I do not believe that we can accept the amendment. It would not be proper and, from our point of view, it would weaken significantly an important part of the criminal law.
  9.30 p.m.
  Earl Russell: I listened with much interest to the Minister. He made a serious attempt to engage with the argument of the amendment. However, I believe that there is a certain circularity in his arguments. He says that the amendment might prevent a number of prosecutions which are brought at present. In effect, he is saying that the effect of the amendment might be to alter the law. However, that, of course, entirely begs the question of whether the law should be altered, and it entirely begs the question of whether all the prosecutions which are brought at present should be brought.
  It is a very high priority of this Government, and of the Prime Minister in particular, to get homeless people off the streets. We accept that priority, but it entails providing them with somewhere else to go. We have a situation where the use of drugs among large sections of the population is extremely common. We also have a situation where one cannot impose many sanctions against someone who has no home, no property and no regular source of income; that person has nothing on which any of the regular sanctions can purchase.
  Therefore, people who are in charge of hostels for the homeless may be confronted by a situation in which either they must know that drugs will on occasion be consumed on the premises, although they may not know by whom, or, in order to prevent that, close the place down altogether.
  My late friend Lady Seear used to say that politics was always a matter of choosing the lesser of two evils. In this situation I would not have great difficulty in deciding which I considered to be the lesser of two evils. Does the Minister have an opinion as to which of those two evils would be the lesser?
  Lord Bassam of Brighton: I accept that the noble Earl places a very interesting dilemma before us. However, our concern is to ensure that we have effective law to deal with the drugs menace. I have made a case which is clear: we believe that the amendment would significantly weaken the criminal law. We believe that the criminal law is necessary; it sets a standard.
  Of course, the circumstances that the noble Earl describes present certain problems for those who run
  1620
  such institutions. However, we have put a great deal of resource into trying to tackle homelessness. We believe in getting people off the streets. This piece of legislation does not prevent us pursuing that policy. We believe that the legislation is entirely necessary and we are content with it as it is.
  Lord Thomas of Gresford: The essence of the dilemma to which the noble Lord referred is this: he says that the offence is guilty knowledge of the use or consumption of drugs by an occupier on the premises. However, that rather begs the question of whether that is guilty knowledge because the statute is in its present form. Is it in the public interest that a person who does his best for the community by taking homeless people off the streets and providing a roof over their heads takes a risk that they will use or consume drugs because that is their way of life? Is it in the public interest that that person is committing a criminal offence simply because he knows that that is happening, or should not there be an additional element of wilfully consenting to it happening?
  I can see the utility of a criminal offence that is based upon the wilful consent to the use or consumption of drugs upon premises. However, I cannot see the utility of evicting people from homes that are provided by charities simply because the person knows that drugs are being consumed or used on the premises. That is the argument. I hope that the Minister will consider the matter.
  The Earl of Listowel: Before the noble Lord withdraws his amendment, perhaps I may intervene. I remember interviewing a mental health nurse at a hostel for homeless drug users in Kings Cross. Two of her mental health nurse colleagues had resigned in the course of the year because of the immense pressure that the staff in the hostel experienced. Young people would congregate in the office around the workers, desperate for their attention. I am concerned that people like that worker, who is a single mother but absolutely devoted to her clients, would be put in the position in which they are concerned as to whether they may be breaking the law, although they are doing their best for the young, desperate people. Has the Minister any way of reassuring people in that situation that they can carry out their job without undue anxiety?
  Lord Thomas of Gresford: I am grateful for the support of the noble Earl. He has highlighted the problem that exists. Can those in the position of the young nurse to whom he referred have any confidence that they will not be prosecuted and risk a substantial prison sentence? I do not want to refer unduly to the case in Cambridge, but it resulted in a five-year sentence of imprisonment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 54 agreed to.
  Clause 55 [Life sentences: tariffs]:
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 133:
  Page 37, line 16, leave out from ("shall,") to end of line and insert ("unless it makes an order under").
  The noble and learned Lord said: This group of amendments includes Amendments Nos. 133 to 138 inclusive. The purpose of Clause 55 is to bring our law into line with a key conclusion of the European Court of Human Rights in its judgment in the case of Thompson and Venables. As the Committee knows, those were the convictions following the cruel murder of James Bulger in February 1993.
  Under Clause 55, in line with the judgment, where a court convicts a person who is under the age of 18 of committing murder it will be for the court to determine the tariff to be served. We achieve that by amending and extending the provision in the Crime (Sentences) Act 1997, which provides for courts to set tariffs in cases which involve discretionary life sentences.
  The first three amendments—Amendments Nos. 133, 134 and 135—are to ensure that it is clear for all possible cases that an appeal can lie against the period that the court specifies.
  The proposed new Section 82A, which reflects the position under the 1997 Act, leaves scope for a court to conclude, in appropriate circumstances, that life should mean life and, therefore, no determinate tariff should be set. Plainly, those would be very rare cases, but it would be of enormous importance in an individual case. It is vital to ensure that an appeal is possible. Under Section 82A as it standsthere is some doubt about that. Amendments Nos. 133, 134 and 135 therefore recast subsection (4), with the result that the court must give an order whether it is setting a determinate tariff or has concluded that no determinate tariff should be set.
  Subsection(5) relates to juveniles and whole life tariffs. Amendments Nos. 136, 137 and 138 relate to that subsection).
  Section 82A provides for a sentencing court not to set a determinate tariff if it concludes that the seriousness of the offence means that no such tariff should be set. That follows the scheme of the 1997 Act under a practice direction on tariff setting issued by the Lord Chief Justice some time ago.
  It is extremely difficult to envisage circumstances where a court might draw such a conclusion when the offender is under the age of 18. It is just possible, in an extreme case. We do not want to leave a possible gap and therefore subsection (5) ensures that the Parole Board still has the determinative role in the release of such an offender.
  There are two aspects of the subsection which need to be addressed. First, when will it come into play? At the moment it is linked to the sentencing court concluding that life should mean life. But it needs to be clear that it does not apply where the Court of Appeal Criminal Division subsequently overturns that conclusion and substitutes a determinate tariff.
  1622
  Amendment No, 136 will have that effect by linking Section 82A(5) to cases where a conclusion that life should mean life currently stands.
  The second point is the approach to be adopted by the Home Secretary. We have drawn on the policy that applies to those over 18 given whole life tariffs as set out by the then Home Secretary, Michael Howard, on 7th December 1994 and my right honourable friend Mr Straw on 10th November 1997. But there are particular considerations that arise when dealing with juveniles.
  Should a court ever consider that life ought to mean life for a juvenile offender, the case should be reviewed by Ministers after 15 years as compared with 25 years in the case of an adult offender. The review would need to consider the needs of retribution and deterrence and take into account any exceptional circumstances, like exceptional progress in custody, bearing carefully in mind the youth of the offender when the offence was committed and the importance, of course, of having proper regard to a child's welfare. It would be open to the Home Secretary in assessing the extent to which the needs of retribution and deterrence had been met, to consult the Lord Chief Justice of the day for his view.
  Further reviews would be conducted every five years. The Home Secretary would be open to representations at any point, before or after the initial review, that a review should be held earlier than scheduled, perhaps for example because of exceptional progress in custody, bearing in mind the youth of the offender, or where there were any other exceptional circumstances viewed in the same light.
  Once a ministerial review resulted in a determinate tariff being imposed, a direction would be given under. Section 82A(5) to enable the Parole Board to determine release under the early release provisions in the Crime (Sentences) Act 1997 after the expiry of the set period. We believe that it needs to be clear that a determinate tariff will not be fixed by the Home Secretary under Section 82A(5) until that is appropriate, and that he will follow a particular policy, which I have sought to outline, for doing so. That is the purpose of Amendments Nos. 137 and 138.
  I appreciate that the explanation has been a little lengthy. But there is significant public interest not only in this case, but also in these matters and I felt it appropriate. I beg to move.
  9.45 p.m.
  Lord Windlesham: There is no need for the Attorney-General to apologise for the length of his remarks. It was their complexity that I found difficult to follow. I should like to put this series of amendments into a wider and, in some sense, more political context.

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  These amendments are part of a long-running conflict between the executive branch of government and the judiciary over the period of time to be spent in custody by offenders who have been convicted of very serious offences which have attracted sentences of life imprisonment. Indeterminate sentences of this kind, over the years, have become effectively hybrid because of differing views as to who should be responsible for taking crucial decisions on when a life sentence prisoner should be released on licence, and on what authority. Unless the penalty is fixed by law—and that now applies only to the single offence of murder—the life sentence is at the discretion of the court. The court determines, case by case, the tariff—that is, the period of time—to reflect the gravity of the offence and the culpability of the offender.
  The main battleground has been over who should take the final decision to release a prisoner from custody at the expiry of the tariff, or to continue to detain him in prison. One of the alternatives is the Home Secretary. How does he decide? Has he met the offender? No. Has he seen him in court? No. He has seen only the papers. He must decide on paper, and inevitably will take into account the political and public anticipated reaction.
  Or should the decision be taken by a discretionary life sentence panel of the Parole Board after interviewing the prisoner? The prisoner is legally represented in the prison where the hearing takes place, there is a judicial chairman of the panel, and reasons are given. It is a quasi-judicial process to decide when a prisoner serving life imprisonment can safely be released, and what the risk and the danger might be.
  Bit by bit, the Home Secretary's authority to take these decisions personally has been eroded, now leaving only adults who have been convicted of murder. That in itself is a large and controversial issue. It was the subject of a Select Committee of this House, chaired by Lord Nathan, in the 1980s, of which I was a member, and subsequently of another independent committee, chaired by the noble and learned Lord, Lord Lane, a former Lord Chief Justice, of which I was also a member. So there was a time when I was a great deal more familiar with these issues than I am today.
  Clause 55 changes the way in which tariffs will be set in cases of detention during Her Majesty's Pleasure—that is, for young offenders under the age of 18—and also provides for the sentencing court, rather than the executive branch of government, to decide how long the period in custody should be before the case can be referred to the Parole Board.
  The change was not volunteered by the Government. Decisive power in this field, as in others, has seldom been handed over willingly, but in order to comply with a decision of the European Court of Human rights in the case of UK v. Thompson and UK v. Venables last year. That case, as others before it, were brought by the well-known and highly regarded civil
  1624
  liberties organisation, Justice. Justice has now raised some questions about the need for, and effect of, these amendments. It comments on Clause 5 that:
  "Subsection 4 effectively applies the rules for adult discretionary lifers in the Criminal Justice Act 1991 to discretionary HMPs"—
  that is, prisoners serving sentences at Her Majesty's pleasure. It continues:
  "That is that there are some cases that are so serious that tariffs can't be fixed: they become whole life tariff cases. This is inconceivable for an under 18 year old, and would automatically be an appeal point. No judge should be making such a recommendation.
  If that is right—and we cannot think what else it can mean—then subsection 5 is otiose, as there is no room for an administrative tariff. The [government] amendment seems to take us even further off the track".
  I believe that my noble and learned friend Lord Mayhew of Twysden may also speak on this aspect, since both he and I have had contact with Justice, and perhaps we may have the opportunity of hearing again from the Lord Chief Justice.
  Lord Mayhew of Twysden: I have little to add to the remarks of my noble friend Lord Windlesham. The provisions in the draft amendment are extremely difficult to navigate and, at best, confusing. Notwithstanding the explanation given by the Attorney-General—he has no reason to apologise for its length—perhaps there are grounds for reconsidering the drafting. As I understand the Attorney, the Government wish to cater for a case in which a court, when dealing with an offender who was under the age of 18 at the time of the offence, considers that an appropriate disposal is the recommendation of a whole life term of imprisonment.
  I endorse what has just been said by my noble friend. It is inconceivable that a court should think it right to make a whole life recommendation in respect of someone who is under the age of 18. I speak with the utmost diffidence in the presence of the Lord Chief Justice. I would have thought that such a decision would be overturned on appeal. In those circumstances, one wonders whether it is right to legislate in this way when it may well give rise to the inference that in the Government's thinking that may be an acceptable disposal (to use the current word). If that is right, I am obliged to agree with Justice that subsection (5), whether as drafted or as proposed to be amended, is superfluous, because in such a case there is no room for an administrative or ministerial tariff. I am prepared to believe that I have misunderstood the position—indeed, I hope that I have—but in the latter event I pray in aid that the language is none too clear.
  Finally, I invite the Committee's attention to the criteria in new subsection (5A), which is inserted by Amendment No. 138. The wording could hardly be more open-ended or wide:
  "The appropriate stage, for the purposes of subsection (5) above, is when the Secretary of State has formed the opinion, having regard to any factors determined by him to be relevant for the purpose, that it is appropriate for him to give the direction".

  1625
  I do not see how that can be more at large. Surely, there should be some restriction or specification of the matters which the Secretary of State can take into account. I should be obliged if the Attorney-General could refer the Committee to any precedent in the enormous existing corpus of legislation which the Government would follow.
  Lord Williams of Mostyn: I am grateful for those responses. As I said at the outset, this is a legislative scheme of amendments that is designed to bring into effect the consequences of Thompson and Venables. I said—perhaps not sufficiently clearly—that it was extremely difficult to envisage circumstances in which a court might draw a conclusion that a whole life tariff was appropriate in the case of someone who committed an offence, or series of offences, under the age of 18. It is possible in an extreme case that someone who has almost reached the age of 18 commits a series of murders where a whole life tariff is appropriate.
  It is necessary to point out the virtue of the thinking behind the amendments. As the noble Lord, Lord Windlesham, said, the intention is to take away executive discretion and lodge it more appropriately with the courts, which was the conclusion of the European Court.
  We have also carefully provided for an appeal process. I do not believe that there is any difference in purpose between the noble and learned Lord, Lord Mayhew of Twysden, the noble Lord, Lord Windlesham, or the case that I have expressed. I am more than willing to see whether the drafting can be improved if that is consonant with the policy aim that I have expressed on behalf of the Home Secretary. This is a measure which gives more power to the judiciary, which many would think appropriate whether or not the European Court had come to its conclusion in Thompson and Venables.
  With my noble friends Lord Bassam and Lord Bach, I shall give thought to whether or not we can get a clearer and perhaps more limited discretion in the context of what the noble and learned Lord said. I gather from the sense of the Committee that our aim is the same. If we can improve the wording we are more than happy to listen to alternative suggestions.
  On Question, amendment agreed to.
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 134 to 138:
  Page 37, line 34, leave out from beginning to ("is") in line 36 and insert ("If the court").
  Page 37, leave out lines 40 to 42 and insert ("the court shall order that, subject to subsection (5) below, the early release provisions shall not apply to the offender").
  Page 37, line 43, leave out ("excluded by subsection (4) above") and insert ("where an order under subsection (4) above is in force").
  Page 37, line 45, after ("shall") insert ("at the appropriate stage").
  Page 38, line 2, at end insert—
  ("(5A) The appropriate stage, for the purposes of subsection (5) above, is when the Secretary of State has formed the opinion, having regard to any factors determined by him to be relevant for the purpose, that it is appropriate for him to give the direction.").
  The noble and learned Lord said: These amendments have already been spoken to. I beg to move.
  On Question, amendments agreed to.
  Clause 55, as amended, agreed to.
  Clause 56 agreed to.
  Clause 57 [Release on licence etc: conditions as to monitoring.]:
  10 p.m.
  Lord Bassam of Brighton moved Amendment No. 139:
  Page 40, leave out line 9.
  The noble Lord said: In moving this amendment, I shall speak also to the new clause, which is Amendment No. 146, and Amendments Nos. 141 and 156.
  Before dealing with the detail of the amendments we are bringing forward in this part of the Bill, it may be helpful and useful to the Committee if I explain briefly the background to the proposals and why we are asking the Committee to consider such a major set of new measures so late in the passage of the Bill. First, I must acknowledge that we are asking a great deal in bringing forward these measures at this stage. But we feel it is justified. That is partly because events over the summer have demonstrated the urgent need to reassure the public that measures are in place for protection against sex offenders. The police, probation and other services work tirelessly—do they not?—to protect the public against such offenders who may often be some of the most dangerous members of our society. I should like to pay homage to their hard work and endeavours.
  The measures we propose are in no way critical of their work. But there is a clear and pressing need to explain better to the public what goes on at present, often without their knowledge. We also think that it will provide a better, stronger framework for public protection and put the matter on a statutory basis.
  Secondly, there are some measures which we believe we can enact now, which will give the police and other services better tools to deal with such serious sex offenders. Some of those are measures which we feel we can bring forward in advance of the major review of the Sex Offenders Act that we set up earlier in the summer. I must stress that that review will press forward and, hopefully, complete its work by the end of the year. But where we can legislate now to improve the Act, we feel we should do so. There are other measures, such as the proposed new sex offender restraining order which are new, although they build on concepts in existing legislation.
  This then is the package of new measures we are asking the Committee to agree should form part of the Bill. In memory of Sarah Payne, whose parents have campaigned so courageously for reform, we see the new measures as a "Sarah's Law".
  Finally, at this stage I should say a brief few words about what areas of the Sarah's Law campaign we do not consider it would be right to bring forward to the

  1627
  Committee. "Naming and shaming" is not the way forward; the risks are all too evident. That approach jeopardised the arrangements in place to monitor sex offenders and to protect children from them rather than improving the protection of children; nor would "controlled access" to the sex offenders' register improve public protection. It is difficult to see how such a system could allow solely parents or other concerned and responsible individuals a right of access to information about individual sex offenders while retaining control of the information.
  Decisions about disclosure must be taken on a case-by-case basis by the police and probation services. We believe, however, that parents and the public have a right to more information about the way sex offenders are managed in the community, the safeguards that are in place and the part they can play in enforcing those safeguards. That is why we are creating a statutory duty on the police and probation services to establish arrangements for assessing and managing risks posed by sexual and violent offenders. That will be coupled with guidance by the Home Secretary about those arrangements and, in particular, about the publication of information. That information might include, for example, details of the number of registered sex offenders in the police force area; programmes which exist for managing sex offenders; the number of times disclosure of information about sex offenders has taken place to organisations and individuals; and the type of organisation to which disclosure has taken place—perhaps schools. The police and probation services will enter into dialogues with local communities on the basis of this information.
  We are also creating a new duty on the local probation board: first, to consult the victims of sex and violent offenders about whether they want to comment on the terms of the offender's release; and, if so, whether they wish to be informed of or propose any conditions which relate specifically to them. There is also a whole raft of amendments to the Sex Offenders Act 1997, which serve to tighten the protection afforded by that Act and add additional protections.
  I shall now turn to discuss in more detail the measures we are bringing forward. The new clause constitutes the second main element of our proposals designed to ensure that the public are properly aware of measures being taken to safeguard them from sexual and other violent offenders. In particular, the new clause is about ensuring that the person most affected by these offenders, the victim, can receive information about and comment on the conditions or requirements to which the offender is to be subject on release.
  The Probation Service's work with victims is vital. It can be enormously helpful in assisting victims in their struggle to rebuild their lives. Access to information about an offender's release conditions can prevent victims feeling isolated by the criminal justice system and alleviate any fears they may face over an offender's impending release.
  The recent thematic inspection "Ensuring the Victim Matters" commended the Probation Service on its excellent work with victims of crime, which it
  1628
  undertakes with great commitment, sensitivity and understanding. However, the report indicates that the current arrangements do not go far enough and suggests that many victims of serious crime are often overlooked. The new clause therefore builds on the existing non-statutory arrangements and creates new statutory duties on the local board.
  First, in the case of all offenders sentenced to 12 months' imprisonment or more for a sexual or violent offence, the local board for the area in which the offender is sentenced will be under a duty to take all reasonable steps to ascertain whether the victim wishes to make representations as to any conditions to which the offender should be subject when he is released. Victims will also be asked if they wish to be informed about "their" offender's release and any conditions that apply to it. Then, where the victim has requested information, the local board must provide details of relevant conditions to which the offender is to be subjected on licence. So, for example, victims will be informed if the licence contains a condition not to go within a certain radius of the victim's home.
  This duty goes far wider than under the current arrangements. It will provide greater protection and reassurance both to victims and to the general public. It is a move which will be welcomed by the service, many members of which are keen to offer assistance to more victims of offenders than are affected by the current requirement for a four-year sentence, and in some cases have already put arrangements in place to that effect.
  The change will be supported by new, comprehensive guidance to help services provide a new, nationally consistent and improved standard for victims.
  Finally, we acknowledge that the widening of victims' work will carry some funding implications for the service. The service will therefore welcome the additional resources that the Government will be making available to enable the service to respond to the demands of this new work.
  What we are not doing, however, is requiring the Probation Service to give full details of the offender, such as his address, to the victim. There can be no legitimate reason for this and it is no part of our agenda to encourage reprisals or vigilante activity. This new clause concerns protecting and reassuring victims, not putting at further risk offenders who have been rightly punished through the criminal justice system.
  The new duty also signals the way for the creation of a new national Probation Service for England and Wales that is confident about its ability both to supervise offenders effectively and to respond to the needs of victims.
  Perhaps I should also mention that the other provisions of this part of the Bill apply to dangerous offenders released on temporary licence. However, we are not placing a duty on the Probation Service to notify victims in cases where a dangerous offender is released on a short period temporary licence. Where the licence period is only a day or so, for example to

  1629
  allow an offender to attend a funeral, to require statutory notification to the victim in all cases would be impractical and inappropriate. We do intend, however, in secondary legislation made under the Bill, to maintain the current position whereby services will have discretion to notify victims of periods of temporary release where they judge it appropriate and necessary for the protection of the victim.
  I hope that I have given a clear exposition of the new clauses and their implications. I beg to move.
  Lord Thomas of Gresford: Can the noble Lord explain the thinking behind subsection (2) of the new clause? Am I entirely wrong or do I understand it to state that the clause does not apply where an offence is a sexual or violent offence, first, because it is an offence against a child and, secondly, that the sentence in respect of the offence against a child is imposed by a magistrates' court as opposed to the Crown Court or the Court of Appeal? I do not follow the thinking here.
  Lord Bassam of Brighton: I am grateful to the noble Lord for that question. I shall need to study his comments and consider them further. These are not points to which I should like to give an off-the-cuff response.
  Lord Windlesham: I should like to raise some points on behalf of Victim Support, of which I have the honour to be president. I declare an interest in that respect.
  Victim Support has pointed out that, while welcoming the fact that this clause will, for the first time, confer statutory rights on victims of certain offences, it is concerned that the clause seems to provide for less than the current Probation Circular 61/95. Victim Support would not want victims of crime inadvertently to become worse off after the legislation comes into force than they are at present.
  Four points have been made to me in a letter and I shall put them to the Minister as quickly as possible. I hope he will take them back to the Home Office and arrange for them to he looked at in some detail. First of all, the word "representations" has not been defined in the clause. The letter states that,
  "we would be concerned if this would require victims to make their information available in person, for example, at a Parole Board [hearing] because of the implications for their safety. (Current arrangements allow for the victim's concerns to be incorporated in the probation officer's report). Subsection (5) would appear to allow for present arrangements to continue but this is not explicit. Would another term make this clearer or could a definition be added?"
  It is important to ensure that the wording of this new clause does not unintentionally pose risks for the victim.
  The letter continues:
  "Sub-section 3b seems to be inconsistent with sub-section 6b. Sub-section 3b allows for the victim to receive any information about conditions or requirements of the offender whereas subsection 6b appears to restrict such information to conditions or requirements which relate to contact with the victim or his family".
  1630
  The third point is that,
  "The clause does not include the possibility for the victim to be offered information about the sentence prior to the pre-release stage. This is stipulated in paragraph 7 of PC61/95"—
  that is the probation circular—
  "which refers to victims being offered general information about the custodial process and post-release supervision, and the likely timescale for consideration of release on licence or temporary licence in the case concerned".
  The final point is that,
  "Section 6c seems to provide a degree of discretion to the local board on a case by case basis as to what information is given, rather than the current right detailed"—
  in the probation circular—
  "under paragraph 15 which states that the victim should be given notice of the month and locality in which release will take place".
  I appreciate that these are relatively technical amendments, but we must remember that they can have human effects. I suggest that the noble Lord does no more than ask the officials in the Home Office—whose co-operation Victim Support greatly appreciates—to look into these matters and to sit down with representatives of Victim Support to talk them through.
  Lord Dholakia: I live within a radius of 10 miles of where Sarah Payne was murdered. It was almost a personal grief to see what happened to that child. I am sure that all sides of the House share the pain that Sarah's parents must have gone through.
  I welcome the news that the News of the World has at last abandoned its name and shame campaign. That campaign has contributed to an atmosphere in which lawlessness has flourished, innocent members of the public have been targeted by vigilantes and offenders have gone to ground fearing reprisals. In all, it has done considerable damage and subjected some unfortunate members of the public to truly terrifying ordeals.
  I should perhaps declare an interest as chair of NACRO. We are pleased that the joint approach in which NACRO has been involved with the Home Office has shifted the discussion onto a sensible footing, and we are in agreement with many elements of the "For Sarah" campaign. Indeed, NACRO has long called for a number of measures to reduce the risk of child abuse, including a massive public education campaign on child abuse and how to minimise risk, closing loopholes in current legislation, and sentences that would mean dangerous paedophiles would not be released from prison until they no longer posed a danger to children.
  There will always be occasions when members of the public will be rightly warned about dangerous individuals in their area. The police already have powers to do this, and we would support greater clarity over how these powers are to be used. But if the events over the past few weeks have shown us anything, it is the folly of thinking that all members of the community will use information about sex offenders in a responsible manner.

  1631
  I think the Home Office is right to propose an amendment which is the right way forward.
  Baroness Blatch: Perhaps I may ask the Minister whether what he said subsumes my concerns in Amendment No. 155. For a long time the Government have been calling for victims to receive more information, but more information about the progress of the prosecution of the case in which they are involved. I would be reassured if everything I was concerned about in the amendment has been subsumed.
  In rising to put this point, perhaps I may also express support for my noble friend Lord Windlesham. It would be disappointing, to say the least, given all the good intentions of attempting to do much more for victims, if the sum total achieved were to be a lesser service than they have hitherto received under the circular issued in 1995.
  10.15 p.m.
  Lord Bassam of Brighton: I can now give a response to the noble Lord, Lord Thomas of Gresford. It is a fairly obvious one, and I am sorry that I did not "twig" it earlier. The provision will not apply to magistrates' courts because their sentencing powers are restricted to six months maximum. That is the simple explanation. We ought both to have known that, but I am sorry that I was not able to give the noble Lord the answer first off.
  I have listened to the points made by the noble Lord, Lord Windlesham. We shall examine them carefully. I do not think that the concerns of the victim support organisations are quite right; however, I am grateful that the noble Lord has taken the opportunity to raise them. In regard to the points raised by the noble Lord, particularly his reference to subsections (3)(b) and (6)(b), I see one as an amplification of the other. We need to take the matter away and give it further consideration.
  The noble Baroness, Lady Blatch, raised a point in relation to her Amendment No. 155. There is no intention that the level of service should be reduced and the new statutory duty will be on top of the existing guidance. I believe that that covers the point made by the noble Lord, Lord Windlesham. On a cursory inspection of the amendment, I believe that the matters the noble Baroness raises may well be subsumed within it. However, I do not want to be definitive. I need to reflect further. We are grateful to the noble Baroness for tabling the amendment. It is helpful and is supportive of the general drift of what we are trying to achieve with the new clauses introduced by these amendments.
  I cannot deal with every point raised. We shall clearly need to return to these matters. If there are some improvements that we can make as a result of the issues raised from all corners of the Chamber, we shall of course endeavour to do so.
  1632
  I am grateful to the noble Lord, Lord Dholakia, for his observations. I, too, live not far away from the area where the unfortunate events concerning Sarah Payne took place. They certainly had a profound impact on my family and the people with whom I mix in that community. These measures will go a long way to give the necessary reassurance to the public, together with amendments that we shall debate later this evening.
  Baroness Blatch: Before the noble Lord sits down, I shall not press my amendment and I shall not speak to it again when we come to it. However, I should like to say that it was not a question of reducing the effects of the amendment. The prosecuting authorities did not have the obligation in the first place to provide information on the progress of the prosecution. I should like to know whether that new obligation on the part of the prosecuting authority is subsumed; and, if it is not, could it be subsumed in any new arrangements?
  Lord Bassam of Brighton: I am grateful to the noble Baroness. I give an undertaking to inquire whether that makes good sense. If it does, clearly we need to include it.
  On Question, amendment agreed to.
  Clause 57, as amended, agreed to.
  Clause 58 agreed to.
  Clause 59 [Release on licence etc: drug testing requirement]:
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 140:
  Page 41, line 20, after ("regulations") insert ("made by the Secretary of State").
  The noble Lord said: I have already spoken to this amendment. I beg to move.
  On Question, amendment agreed to.
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 141:
  Page 41, leave out line 32.
  On Question, amendment agreed to.
  Clause 59, as amended, agreed to.
  Clause 60 [Short-term prisoners: release subject to curfew conditions]:
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 142:
  Page 41. line 34, leave out from ("subsection") to end of line 37 and insert ("(2)(d) there is inserted—
  "(da) the prisoner is subject to the notification requirements of Part I of the Sex Offenders Act 1997;"").
  The noble and learned Lord said: This grouping contains government Amendment No. 142, as well as amendments tabled in the name of the noble Baroness, Lady Blatch; namely, Amendments Nos. 148 to 154. I think it would be convenient if I were to deal, first, with Amendment No. 148, which would have the consequence of the abolition of the home detention curfew scheme in its entirety. The amendment

  1633
  proposes to insert a new clause to the effect that Sections 34A, 37A and 38A of the Criminal Justice Act 1991 would cease to have effect.
  I may be wrong, but I understand that the present Leader of the Opposition has highlighted this as a policy pledge; namely, the abolition of the home detention curfew. The other amendments proposed by the noble Baroness are intended, both individually and together, to limit the scope of application of the HDC scheme. The noble Baroness and I are diametrically opposed: the Government have no intention of scrapping the home detention curfew scheme, which incorporates one of the biggest electronic monitoring systems in the world. It has had a very successful first 20 months of operation. Indeed, as I have travelled around and spoken to colleagues in different countries, I am bound to say that they are extremely impressed—first, with the nature of the scheme and, secondly, with its success rate.
  All prisoners discharged on home detention curfew are inevitably about to return to the community. This is about the successful resettlement of short-term prisoners who are serving sentences of not more than four years and is aimed at supporting the transition from custody to community. It is worth bearing in mind that the home detention curfew scheme had the unanimous support of the all-party Home Affairs Committee in the other place. It said that the scheme will,
  "provide adequate protection to the public because of the tagging element, and will give prisoners an opportunity to readjust to life outside prison".
  Prison governors have been very cautious; indeed, only 30 per cent of eligible offenders have been placed on HDC to date. I know from my own visits to prisons in the past that the co-operation between prison staff, police and probation officers has been extremely effective. The risk assessment is used very prudently. As I said, two figures are important: only 30 per cent of eligible offenders are placed on home detention curfew; and there is a very high and successful completion rate of about 94 per cent. Moreover, fewer than 2 per cent on HDC to date are known to have committed new offices while on the scheme, and many thousands have completed the scheme successfully.
  As regards the specific amendments, I turn now to Amendment No. 149 tabled in the name of the noble Baroness, Lady Blatch. This amendment looks like a straightforward attempt to encourage the sentencing courts to explain the practical implications of the scheme. However, its consequence would be that no one in prison could go on an HDC scheme unless its existence was explained by the court at the time of sentence, together with an explanation of the way in which the scheme would affect the length of sentence. If the court did not mention the existence of the scheme when sentencing, the offender would automatically be barred from consideration. We believe that the net result would be additional time-consuming bureaucracy for the courts and a loss of clarity and consistency in the use of the scheme.
  However, the amendment goes further. It would require the court to specify the precise amount of time that would be served in custody by the individual offender if he were to be released on HDC after the minimum period of imprisonment specified in statute. That would create false expectations. In any event, looking at courts in practice and the scheme as it is operated, it simply would not be possible for the sentencing court to have the relevant and required information to hand to determine whether an offender would be eligible for HDC.
  We do not accept that the list of statutory exemptions which already exists needs to be overlaid with a further set of exemptions decided on an individual basis by the courts. I recognise the noble Baroness's concern but I say again with great respect that the courts simply do not have the ability at the time of sentence to overlay a further set of exemptions decided on an individual basis.
  We believe that the public protection/prisoner resettlement balance is best served by up-to-date assessment of risk determined by the prison governor in conjunction with the police and the appropriate agencies, not least the Probation Service. In reaching that decision, consideration needs to be given to the prisoner's criminal record, but also—this is critical—to an assessment of the offender's behaviour in prison, particularly his willingness, or otherwise, to tackle his offending behaviour. Those elements are simply not knowable at the time of sentence.
  No such provision applies to parole, the other major discretionary release scheme applying to prisoners. The fact that a prisoner is eligible to be considered for release on HDC or parole does not mean that they will be released in this way. In the case of HDC, the percentage passing the risk assessment is about 30 per cent. In the case of parole, about 40 per cent of those eligible are successful in being granted a parole licence in any given year.
  Amendment No. 152 has a similar intent to Amendment No. 149. But the grounds suggested—"the interests of justice"—are wide indeed. The defects which I mentioned a moment ago still obtain as regards the scheme that is proposed.
  Amendments Nos. 150, 151, 153 and 154 would add to the list of categories of prisoner who are excluded from eligibility for release on the home detention curfew scheme. Amendment No. 150 would exclude domestic burglars who have committed more than three offences, but it does not deal with the nature of those offences. They may be extremely trivial at one end of the spectrum, or extremely serious at the other.
  Amendment No. 151 would exclude anyone committing the wide range of offences for which the maximum period is more than 10 years in prison, irrespective of the seriousness of the actual offence, and irrespective of the nature of the sentence passed.
  Amendment No. 153 would exclude prisoners who had committed any one of three offences against police constables, but that includes obstructing a police officer in the execution of his duty. In some circumstances that can constitute a minor offence.

  1635
  I look to the noble Lord, Lord Thomas of Gresford, for confirmation of that point, not, I hasten to add, because he has ever committed the offence. However, he knows as well as I that sometimes that offence is not enormously serious or grave, although sometimes it is.
  Amendment No. 154 would exclude prisoners who had committed against a child any of some 40 offences in Schedule 4 to the Criminal Justice and Court Services Bill which are defined as "offences against a child". These include matters as diverse as cruelty to children—that might include an act committed in a moment of exasperation by an otherwise loving parent—and encouraging the wicked offence of child prostitution.
  The home detention curfew scheme is subject to several statutory exclusions. If the Committee accepts my proposal in Amendment No. 142, that will give effect to the commitment given by my right honourable friend Mr Straw in another place. The original Clause 60 would have excluded only sex offenders serving a current sentence for a relevant offence under the 1997 Act. Amendment No. 142 would extend the exclusion to all sex offenders still subject to the notification requirements of the 1997 Act, whether or not their current sentence is for a relevant sentence under that Act. I am sure that we can look to the noble Baroness to support this strengthening of the scheme.
  In short, I believe that we have a fundamental difference of approach. I recognise that the noble Baroness feels strongly about her approach. However, I suggest that ours is better. I beg to move.
  Baroness Blatch: As the noble and learned Lord the Attorney-General said, we shall have to agree to differ on the amendments he has mentioned.
  As my honourable friend David Lidington announced in another place at col. 662 of Commons Hansard on 12th June, these amendments deal with what the Government term their home detention curfew scheme, which might be more accurately labelled "the special early release scheme for prisoners who have committed serious offences". The idea that a person serving a six month sentence could be released in just six weeks makes a mockery of sentencing—and makes a mockery of honesty in sentencing. That is what Section 34A of the Criminal Justice Act 1991 allows for.
  Up to 2,000 prisoners may be on home detention curfew at any one time. In total nearly 23,000 prisoners have been released early since the scheme began in January of last year. This figure includes over 3,000 drug dealers, many killers, thousands of burglars and two rapists. Seven hundred offences have been committed by individuals who were out on the scheme. That is 700 more offences than if the scheme had not been introduced.
  It is true that Amendment No. 148 removes the home detention curfew scheme. Amendment No. 149 makes it clear that it is for the judge to make the provisions of the home detention curfew clear at the
  1636
  time of sentencing. The amendment improves clarification. It brings more honesty into sentencing and will allow victims to have clearer information from the outset about the fate of the offender.
  Amendment No. 150 excludes the mandatory three year sentence for burglary as it would not be in the spirit of sentencing if the offender were to be released early.
  Amendment No. 151 includes offences such as supplying Class A drugs. It does not mean that an offender has to be sentenced to 10 years, only that the offence carries a maximum of 10 years. Amendment No. 151 gives the judge the flexibility to rule out home detention curfew as an option.
  Morale in the police service is dangerously low and we believe that the early release of offenders who have assaulted police officers is wrong. So far I understand that 190 offenders who have convictions for assaulting police officers have been released on home detention curfew. This amendment proposes the exclusion of the use of home detention curfew orders for such an offence.
  On Amendment No. 154, as the noble and learned Lord said, we feel strongly that in the interests of child protection offenders who are convicted of any offence against a child listed in the Bill should be ineligible for the scheme. I defend my amendments even against the might of the Attorney-General.
  10.30 p.m.
  Lord Williams of Mostyn: I think that we have agreed to differ quite economically. An individual may have been sentenced to imprisonment only for obstructing a constable, or someone who was otherwise a loving parent may have been guilty of a minor offence against a child. That is quite often the experience; and they are met sometimes with terms of imprisonment. The fundamental point is that these people will be back in the community within not more than four months in any event. Four months is the maximum period, as I recall it, of home detention curfew. Therefore one seeks, as carefully as possible, to manage prisoners back into the community. We all know that the indicators for further reoffending include no home to go to, no settled community to go back to, and no work. That is the whole purpose and virtue of home detention curfew.
  I take the noble Baroness's point as sincerely meant when she says that police morale is adversely affected. I go back to my own experience over the year when I was Minister for Prisons and Probation. I have never seen such close co-operation between police, probation and prison officers. They all benefited enormously from that joint assessment ultimately made by the governor.
  I go back to my original point. Amendment No. 148 blows the scheme completely out of the water. I see that the noble Baroness is nodding with all the implacability of Pio Nono. I think that he is about to be made a saint: she can draw some comfort from that!

  1637
  I do not want to hurry the noble Baroness on to that because I think that that is a post mortem declaration. I think that we just have to disagree on the issue.
  Baroness Blatch: I am a great supporter of the home detention curfew. I introduced it into this House a very long time ago. I did not receive much support from noble Lords opposite when they were sitting on these Benches. It has many applications which are beneficial to the criminal justice system. But the home detention curfew is a cop-out for many people. One of the things which destroys public confidence in the criminal justice system is to hear in court or read that someone has been given a six-month prison sentence and to see them home in a matter of weeks. That takes a lot of explaining to the public.
  Obstructing a policeman in the course of duty is a serious matter. If somebody receives a six-month sentence, they should not be out in the community until they have served it. I am concerned about public confidence. I make no apologies for the fact that Amendment No. 148 would blow the scheme out of the water.
  On Question, amendment agreed to.
  Clause 60, as amended, agreed to.
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 143:
  After Clause 60, insert the following new clause—

  AMENDMENTS OF THE SEX OFFENDERS ACT 1997
  (" . Schedule (Amendments of the Sex Offenders Act 1997) (which amends the Sex Offenders Act 1997 in respect of persons who are subject to the notification requirements of that Act to make provision, in particular, for—

  (a) altering the requirements,

  (b) increasing penalties,

  (c) enabling courts to make restraining orders, and

  (d) improving the information held about such persons), is to have effect.").

  The noble Lord said: I shall also speak to Amendments Nos. 157 and 157A.
  This is more of Sarah's law. The aim of the amendments is to improve child protection. It would not be right to delay these measures until some of the more intractable issues relating to sex offences have been considered. We shall discuss later other amendments relating to the Sex Offenders Act 1997. The noble Lord, Lord Hylton, has tabled Amendment No. 157A, which I understand that the noble Lord, Lord Brennan, will address. It would insert in the Bill some of the details that might be required when a person required to register wished to leave the country.
  With the exception of the proposed new sex offender restraining order, all the order-making powers in the amendments will apply to Northern Ireland as well as to England and Wales.
  I shall outline the key measures. First, we propose to shorten the time before initial registration must take place from 14 days to three days, to require that registration is done in person and to allow the police to take fingerprints and a photograph at that stage. That
  1638
  reduction in the time limit is necessary to avoid the possibility of a sex offender disappearing within the 14 days presently allowed for.
  The taking of fingerprints and photographs will allow certainty over the identity of the person registering and provide a visual impression of his current appearance. We believe that three days is the minimum to allow a sex offender time to make arrangements for accommodation and to locate and visit his local police station. We shall return to that on later amendments.
  Secondly, we are proposing an enabling power to allow the Secretary of State to make regulations requiring some or all sex offenders to notify the police when they intend to travel abroad and on their return. That crucial step has been argued for by the police and other organisations since the Act was originally implemented. This seems the right opportunity to take such a power. The other side of the coin—the registration in this country of those convicted abroad—raises difficult issues and is being looked at actively as part of the major review of the Act.
  Thirdly, we intend to increase the penalties for failure to register. The proposed new penalty of a maximum five years in prison also carries the power of arrest, for which the police have again long argued to prevent unregistered sex offenders slipping out of sight.
  Fourthly, we propose a new sex offender restraining order, which could be imposed on a sex offender at the point of sentence.
  Finally, we intend to tighten up the information flow between the various agencies and authorities that may hold a sex offender—such as prisons or hospitals—before release so that the fact that the offender is required to register on return to the community is not lost if he or she passes from one organisation to another. We want to ensure that the information is always passed to the police on release. We propose to do that by regulations after discussion with the organisations concerned.
  Amendment No. 157 will insert a new schedule. I apologise for having to go into such detail, but it is important that the issues should be put on the record. Paragraph 2 provides that the period specified in the Sex Offenders Act 1997 during which an offender subject to its requirements must notify the police of his details will be reduced from 14 days to three days. It provides further that when initially notifying the police of his name and address, the offender will no longer be able to do so by post.
  Paragraph 3 goes to the point about reporting to the police to register the name. There is also provision for regulations to be made under the negative resolution procedure to specify the particular police station in any given area.
  Paragraph 4 provides a delegated power by which the Secretary of State may make rules concerning offenders who are required to register and intend to travel abroad.
  I turn to the issue raised by the noble Lord, Lord Hylton. He has written to me on this issue and has tabled an amendment to probe further. I am extremely grateful to him for raising this. There are two key points to make. First, I do not think that this level of detail is appropriate to be on the face of the legislation. However, I entirely accept that it is something which needs proper debate in Parliament. This is why we are proposing that the regulations should be subject to the affirmative resolution procedure.
  But secondly, the noble Lord is entirely right to probe to ensure that the power that we are proposing would cover all the details we might wish to specify. Our present thinking is that we should be able to specify the date of leaving this country and the country or countries of intended travel but not further detail such as addresses. That is because we feel that that is the point at which the country to which the offender is planning to travel should take on the responsibility, if the police here have notified the authorities there of the intention to travel. The offender would then be within their jurisdiction and that is not something which we could properly police at one remove.
  I accept there is room for different views on this point and I shall listen to what the noble Lord, Lord Brennan, has to say on the matter. We can look again at the exact wording of the proposed power in the light of the noble Lord's comments. We shall need to be sure that it will cover all the areas which we might wish to specify. If necessary, I am happy to give the undertaking that we shall bring forward an amendment on Report if any change is needed to reflect the wishes of the House.
  Paragraph 5 amends Section 3(1) of the Sex Offenders Act 1997 in order to increase the maximum penalties available following conviction that takes place after this paragraph comes into force for an offence of failing to comply with the Act's requirements. It provides that a failure to comply with the Act's requirements will be an offence triable either way, increasing the penalty on indictment to a maximum of five years in prison. It also provides that an offender who is required to register under the terms of the 1997 Act will be liable to the new penalties introduced by this paragraph.
  Paragraph 6 introduces a new power for the higher courts, including the Youth Court in certain circumstances, to impose a restraining order on conviction of an offender for a relevant sexual offence. The courts could exercise the power when imposing any custodial sentence on an offender liable to registration, including mental health disposals. For the Youth Court, this power would be limited to a sentence of 12 months or more.
  However for all courts we feel it important that a custodial sentence be awarded to trigger consideration of the new order. Where the risk that the offender is seen as presenting at the point of sentence is insufficient for a custodial sentence, such an order could not be justified. But I must draw attention to the sex offender order which would still be available in
  1640
  such circumstances if such an offender demonstrated that he posed a risk to the public subsequently, and to the strengthening of community penalties generally elsewhere in this Bill.
  Together with the new order, we consider that this provides an interlocking set of measures to protect the public from sex offenders.
  I have provided a considerable amount of detail. I could bring forward further details at this point but in view of the lateness of the hour, I think that they are perhaps unnecessary. I should not like to have a dramatic effect on some Members of the Committee who are obviously not following fully some of the matters that are before it. I beg to move.
  10.45 p.m.
  Lord Brennan: I speak to Amendment No. 157A on behalf of the noble Lord, Lord Hylton. Circumstances have conspired to raise a matter of considerable importance at a time which is not at all propitious to your Lordships' timetable. I propose to be brief but, nevertheless, direct about the importance of the matters with which I am now going to deal.
  Amendment No. 157A seeks to enlarge upon paragraph (4) of Amendment No. 157, introducing further material into Schedule 5 to the Bill. The purpose is to extend the utility and effect of the sex offenders' register under the 1997 Act. Of considerable importance to make such changes effective is to ensure that police authorities and those who deal with them for the protection of children know the whereabouts of registered sex offenders. The mere fact of being on a register is in itself a deterrent. However, when international travel occurs, detail is important to exercise control.
  The register under the 1997 Act has been an achievement of some importance in this country. It has a compliance rate of those registered, or required to register, of over 97 per cent. That produces a deterrent effect because, by registering, each and every one of those offenders puts himself at risk should he endanger the safety of children.
  The Association of Chief Police Officers, exercising its powers under the register system to investigate and assess it, welcomed a review which the Home Office said that it would carry out in the recent past (the date of which I shall check in a moment). ACPO said this summer:
  "The Sex Offenders Act is widely regarded, not only in the UK but also abroad, as being successful. Indeed, a number of other countries have expressed their interest in developing similar arrangements. However, over the past two and a half years a great deal has been learnt and the time is now right to build on the current arrangements and explore how further improvements can be made".
  Therefore, as I understand it, a review is presently under way. It would be most unfortunate if the provisions of this Bill, or any consequential regulations, were to be finalised before that review had been completed.
  The reason why I participate in this debate is that I have a connection with ECPAT (UK), which is an NGO specifically directed at protecting children

  1641
  against international sex crime. It is currently showing a video film in cinemas up and down the country which is very dramatic indeed and, so far as I am aware, has aroused considerable interest in the importance of the work that it does.
  ECPAT (UK), with its experience, and associating its experience with the opinions of the Association of Chief Police Officers, asked for, and from the Government has now received, arrangements to control the registration of the people in this country who leave or return to the UK having been registered as sex offenders here. I travel considerably in Asia, the Americas and North Africa. It cannot be emphasised too greatly to this House and to the public that the international aspect of child paedophilia sex crime is of enormous and dangerous importance. It would be a shocking dereliction of national duties that each should not do what it can or should refuse to co-operate with all others to protect children against this international criminal activity.
  That is why the Association of Chief Police Officers want outbound and inbound registration—outbound so that a registered sex offender can tell those administering the register where he or she is going. With due respect to what my noble friend the Minister said, it would represent a remarkably significant lack of effort by the civil servants involved if they were to restrict their enthusiasm on this matter to saying, "Register, yes; but the address is for the other country to find out". I should find that particularly unimpressive. It goes to the point of international co-operation.
  There is no problem whatever in a registered sex offender, on leaving this country, identifying the addresses to which he intends to travel. We all leave addresses with our families so I cannot see why a registered sex offender should be in a different position when he leaves this country. It is perfectly straightforward.
  In that situation the police here could send the details to the country to which that person is travelling. If there is 97 per cent compliance in this country, we can assume much the same level of compliance from another country when an offender travels there, especially as he may be visiting that country for the purpose of committing a sexual crime against children.
  I hope that the Minister and those advising him will think again and become much more positive in the requirements that they seek to impose on convicted criminals. What about the return of the sex offender? The importance of return is to re-establish that a sex offender is once more within our jurisdiction, so the detail as to the port of re-entry is extremely important. He then resumes the measure of registered control.
  I invite the Government to consider what I have said, speaking as I do on behalf of ECPAT and the Association of Chief Police Officers. I invite them to consider several clear means of making what I have suggested effective, in primary or in secondary legislation.
  1642
  First, there is the use of Interpol blue notices. I do not suggest that that should apply to every trivial sex offender; I am much more concerned with those convicted of serious crimes against children. I do not see why it should be regarded as any less important to protect children through the Interpol blue notice system than to protect others against adult crime. Secondly, within the context of our neighbouring European countries, the Schengen database can be used. That is the product of the Tampere meeting in Finland, and provides a means whereby police officers and government organisations can exchange data about relevant criminal activity. Thirdly, they can revitalise, in so far as it can be revitalised, the immigration warning index when people re-enter this country.
  The reason I have pressed the Government with a degree of precision is because this summer there was a round-table meeting between ECPAT, police representatives and the Home Office. It was subject to Chatham House rules. I shall not go into the detail. That simply demonstrates that the Government have had time to consider that which I invite them to consider—for example, incorporating provisions in this Bill, or in secondary legislation.
  Brevity has had its day. I finish by plainly telling the Government that I shall raise this matter again—I hope in more comfortable chronological circumstances—at Report stage. On that basis I shall not press the amendment.
  Baroness Blatch: I rise to say that that was an incredibly powerful intervention from the noble Lord. Lord Brennan. There is not much difference between noble Lords on this matter. This evil trade in sex abuse crosses all countries' boundaries. If the sex offender's privacy is breached that is as nothing compared to the privacy of a child that is breached when the sex offence takes place. If the noble Lord, with his considerable skills, wants to devise amendments, I can offer full support. I believe that the Government will be receptive. A powerful case has been made and the hope is that the Government can reflect on the matter and that a consensus can be developed to find a way of using this Bill. It is a wonderfully opportune moment to do something very important for our children.
  Lord Bassam of Brighton: I shall endeavour to respond to both the last two interventions after I have put right something which I failed to mention earlier in introducing the government clauses.
  I ought to have mentioned Scotland. The 1997 Act is a piece of legislation which pre-dates devolution. Amendments to the Act fall into a devolved area. The Scottish Executive have therefore had to consider carefully whether similar amendments should be introduced in the Scottish Parliament or at Westminster. The Executive concluded, after giving it careful consideration, that the best way to extend the protection of these measures as quickly as possible was to extend the Westminster Bill. That would maintain a common registration regime across the Border and avoid enforcement difficulties.

  1643
  As I am sure Members of the Committee are aware, under the civil convention the UK Government cannot normally legislate at Westminster for Scotland on devolved matters—that is quite right—and we certainly cannot do it without the consent of the Scottish Parliament. However, I am delighted to be able to inform the Committee that the Scottish Parliament will be debating this matter. We cannot table the necessary amendments before the agreement of the Scottish Parliament is forthcoming. But I can inform the Committee that we shall be bringing forward the necessary amendments as soon as possible if the Scottish Parliament agrees that approach. I hope Members of the Committee will be content for us to follow that course. It seems to be a logical and sensible one. We feel that a unified approach is wisest. The principle is simple and I hope that the late tabling of these amendments, if the Scottish Parliament agree to this, will not cause inconvenience to the House on this matter.
  I turn if I may to the intervention of my noble friend Lord Brennan and the intervention in support by the noble Baroness, Lady Blatch, on Amendment No. 157A. I hope I indicated in my comments when I first came to the Dispatch Box on this subject that I was extremely sympathetic to the amendment. I am even more sympathetic to it having listened to my noble friend. Like him, I take these matters very seriously and feel that the view of the police is important. I am more than happy to give an undertaking this evening to take the amendment away and give consideration to each part of it. We should examine it carefully. If we can make it work, if it is practical—on the face of it it seems to be precisely that—then it is an amendment worthy of support, though there may be a requirement for some fine-tuning and further discussion, particularly with the police, to ensure that we get it right for them.
  I am grateful for the support from the Benches opposite in this respect. I shall be happy to give that amendment careful consideration.
  On Question, amendment agreed to.
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 144:
  After Clause 60, insert the following new clause—

  ARRANGEMENTS FOR ASSESSING ETC RISKS POSED BY CERTAIN OFFENDERS
  (" .—(1) In this section—
  "relevant sexual or violent offender" has the meaning given by section (Supplemental); and
  "responsible authority", in relation to any area, means the chief officer of police and the local board for that area acting jointly.
  (2) The responsible authority for each area must establish arrangements for the purpose of assessing and managing the risks posed in that area by—

  (a) relevant sexual or violent offenders, and

  (b) other persons who, by reason of offences committed by them (wherever committed), are considered by the responsible authority to be persons who may cause serious harm to the public.

  (3) The responsible authority for each area must keep the arrangements established by it under review with a view to monitoring their effectiveness and making any changes to them that appear necessary or expedient.
  (4) As soon as practicable after the end of the period of 12 months beginning with the coming into force of this section and each subsequent period of 12 months, the responsible authority for each area must—

  (a) prepare a report on the discharge by it during that period of the functions conferred by this section, and

  (b) publish the report in that area.

  (5) The report must include—

  (a) details of the arrangements established by the responsible authority, and

  (b) information of such descriptions as the Secretary of State has notified to the responsible authority that he wishes to be included in the report.

  (6) The Secretary of State may issue guidance to responsible authorities on the discharge of the functions conferred by this section.").
  The noble Lord said: The first clause in this group builds on arrangements already in place so that the responsible authority—that is, the chief officer of police and the local board, which includes the chief officer of probation—will have a joint duty to make arrangements for assessing and managing the risks posed by relevant sexual and violent offenders, or other offenders who may cause serious harm, and to keep those arrangements under review.
  I am sure that Members of the Committee will be aware that the police and Probation Service already in practice make arrangements to manage such offenders. The purpose behind making this a statutory duty is to ensure there is consistency in all areas and also to promote good practice among the different areas. We are also requiring those authorities to prepare and publish at least every 12 months a report on how they have discharged the duties I have just described. As part of the report, they must give details of the arrangements which have been made and such information as the Secretary of State has notified to the authorities that he wants to include.
  In addition, the Secretary of State will have the power to issue guidance to the authorities on how to discharge the functions under this clause. This guidance will cover important areas such as consultation with other organisations, including social services departments, child protection organisations and prisons, as appropriate in fulfilling these functions. It will also contain guidance on what the report to be issued should contain.
  The purpose of these latter provisions is, I hope, self-evident. Events following the tragic death of Sarah Payne have shown that there is a great deal of public anxiety about, and apparently low levels of understanding of and confidence in, existing systems for managing former offenders in the community. We have discussed that at length today.
  We want not only that these arrangements should be carried out but for the public to see them carried out. We are not proposing that details of particular offenders should be made available, but we are proposing that the public should be able to see what measures are being taken to protect them.
  The next new clause defines what is, for the purposes of the arrangements I have mentioned, a "relevant sexual or violent offender". We have tried to ensure that we catch all those who, by the very nature of the crime concerned or sentence, might present a real risk and threat to the public without requiring the authorities to be statutorily required to assess and manage every type of offender.
  The main type of offenders classified under the clause as a "relevant sexual or violent offender" are those who are subject to the notification requirement under Part I of the Sex Offenders Act 1997; or sentenced to a term of imprisonment or some form of detention for 12 months or more; or detained at Her Majesty's pleasure or under a hospital order or guardianship order under the Mental Health Act 1983; or eligible for a disqualification order to be imposed to prevent them working with children under Clauses 27 and 28 of the Bill.
  I appreciate that some of your Lordships might be concerned that this list, while attempting to be comprehensive, might not take into account all possible offenders who might present a risk for whatever reason. However, the previous clause requires the authorities to establish arrangements not just for "relevant sexual or violent offenders" but also for other persons who, by reason of the offences committed by them, are considered to be persons who may cause serious harm to the public.
  Furthermore, nothing in these clauses takes away from the police their existing common law powers to take necessary action to protect the public or prevent and detect crime. In other words, they remain able to take appropriate action in respect of any person who they believe presents a danger, irrespective of any conviction or sentence. These two clauses are intended to put what the police and Probation Service do on a statutory footing to ensure that the public are protected from those who most clearly pose a threat to public safety and that the public are made aware that such steps are being taken. I beg to move.
  11 p.m.
  The Earl of Listowel: Having spoken with detective chief inspectors, in particular with one who has responsibility for sex offenders, I can say that there was a strongly expressed frustration about the assessment of sex offenders. It is difficult to monitor sex offenders. Monitoring in particular high-risk offenders is labour intensive and officers are kept busy around the clock. The main concern is that assessment must be effective in order that police forces are used effectively.
  Can the Minister assure the Committee that the new arrangements will ensure a refined assessment of the risk posed by sex offenders so that the resources available are used in the most effective way possible? Perhaps that is too specific. Does the Minister regard this as an issue, and is he satisfied that it will be dealt with?
  Lord Bassam of Brighton: Obviously, this is a very important issue since it goes to the heart of all our
  1646
  debates. We seek to make the police and probation services more effective in controlling this particular group of sexual and violent offenders. One can never be certain that one has it absolutely right. Progress in this field of enforcement has been incremental. One has built on experience and learnt from what has gone before, as is often the case. One needs to improve and perfect one's performance. As I have sought to make clear in debate, we are willing to listen and learn from all those with an interest in this subject so that we arrive at the best possible answers. There is no perfect solution to any of these problems, but we must ensure that the police and probation services and prisons have the tools to do the job, that risk assessment is in place, and that we deal with offenders in the correct way. That is no easy task. No doubt we shall have further discussions to try to improve on what we are already doing.
  The Earl of Listowel: Looking at the amendment moved by the Minister, the public concern in this area is that perhaps in order to do an excellent job of supervising these potentially very dangerous people everyone will be watched and resources will be spread too thinly so that the effort is not so effective. One example given to me when speaking to detective chief inspectors was the case of two young people. The older of the two had been convicted of a minor sexual offence. The consequences of that offence will be with the person for a long time and it will be treated as seriously as a much graver offence. I am concerned that the new measure may not be sufficiently sensitive to deal with the various kinds of sexual offender about whom we are concerned.
  Lord Bassam of Brighton: It is always hard to make a judgment as to whether the legislation proposed goes far enough. We want a precise and targeted, not a scattergun, approach. For that reason we have risk assessment processes in prisons, and the fruits of those programmes are well known to the law enforcement agencies which must engage with sex offenders. We hope that treatment programmes also have an impact. We shall endeavour to improve performance with precision. Clearly, we do not want to bring people within the scope of these measures when their inclusion is entirely inappropriate. That is why risk assessment is available and the police and probation services improve the quality of their training to get it right.
  On Question, amendment agreed to.
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 145:
  After Clause 60, insert the following new clause—

  SUPPLEMENTAL
  (" .—(1) For the purposes of section (Arrangements for assessing etc risks posed by certain offenders) a person is a relevant sexual or violent offender if he falls within one or more of subsections (2) to (5).
  (2) A person falls within this subsection if he is subject to the notification requirements of Part I of the Sex Offenders Act 1997.
  (3) A person falls within this subsection if—

  (a) in England and Wales he is convicted of a sexual or violent offence (within the meaning of the Powers of Criminal Courts (Sentencing) Act 2000), and

  (b) one of the following sentences is imposed on him in respect of the conviction—

  (i) a sentence of imprisonment for a term of 12 months or more,

  (ii) a sentence of detention in a young offender institution for a term of 12 months or more,

  (iii) a sentence of detention during Her Majesty's pleasure,

  (iv) a sentence of detention for a period of 12 months or more under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (offenders under 18 convicted of certain serious offences),

  (v) a detention and training order for a term of 12 months or more, or

  (vi) a hospital or guardianship order within the meaning of the Mental Health Act 1983.

  (4) A person falls within this subsection if—

  (a) in England and Wales he is found not guilty of a sexual or violent offence (within the meaning of the Powers of Criminal Courts (Sentencing) Act 2000) by reason of insanity or to be under a disability and to have done the act charged against him in respect of such an offence, and

  (b) one of the following orders is made in respect of the act charged against him as the offence—

  (i) an order that he be admitted to hospital, or

  (ii) a guardianship order within the meaning of the Mental Health Act 1983.

  (5) A person falls within this subsection if any of the conditions set out in sections 27(2) and (3) and 28(2) and (3) are satisfied in his case.").
  On Question, amendment agreed to.
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 146:
  After Clause 60, insert the following new clause—

  DUTIES OF LOCAL BOARDS IN CONNECTION WITH VICTIMS OF CERTAIN OFFENCES
  (" .—(1) This section applies in a case where—

  (a) an offender is convicted of a sexual or violent offence, and

  (b) a relevant sentence is imposed on him in respect of that conviction.

  (2) This section shall not apply in a case where the offence of which the offender is convicted is a sexual or violent offence by virtue of paragraph (c) of subsection (10) unless the relevant sentence in respect of the conviction was imposed by the Crown Court or the Court of Appeal.
  (3) In cases where this section applies, the local board for the area in which the offender is sentenced must take all reasonable steps to ascertain whether any appropriate person wishes to—

  (a) make representations about whether the offender should be subject to any conditions or requirements on his release and, if so, what conditions or requirements, or

  (b) receive information about any conditions or requirements to which the offender is to be subject on his release.

  (4) In this section "appropriate person", in relation to an offence, means any person who appears to the local board in question to be, or to act for, the victim of the offence ("the victim").
  (5) Where it is ascertained that an appropriate person wishes to make representations in accordance with paragraph (a) of subsection (3), the relevant local board must forward those representations to the person responsible for determining the matters mentioned in that paragraph.
  (6) Where it is ascertained that an appropriate person wishes to receive information in accordance with subsection (3)(b), the relevant local board must take all reasonable steps—

  (a) to inform that person whether or not the offender is to be subject to any conditions or requirements on his release,

  (b) if the offender is to be subject to any such conditions or requirements, to provide that person with details of any conditions or requirements which relate to contact with the victim or his family, and

  (c) to provide that person with such other information as is considered by that local board to be appropriate in all the circumstances of the case.

  (7) For the purposes of subsections (5) and (6) "relevant local board" means—

  (a) where the offender is to be supervised on release by an officer of a local board, that local board,

  (b) in any other case, the local board for the area in which the prison or other place of detention from which the offender is to be released is situated.

  (8) Section 5(2)(a) and (7) applies to arrangements made by a local board for the purposes of this section as it applies to arrangements made for the purposes mentioned in section 1.
  (9) In this section—
  "conditions" means conditions in a licence;
  "relevant sentence" means—

  (i) a sentence of imprisonment for a term of 12 months or more,

  (ii) a sentence of detention in a young offender institution for a term of 12 months or more,

  (iii) a sentence of detention during Her Majesty's pleasure,

  (iv) a sentence of detention for a period of 12 months or more under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (offenders under 18 convicted of certain serious offences), or

  (v) a detention and training order for a term of 12 months or more;

  "requirements" means requirements specified in a notice under section 65(5) of the Criminal Justice Act 1991 (requirements imposed in connection with supervision of young offenders after release).
  (10) An offence is a sexual or violent offence for the purposes of this section if it is—

  (a) a sexual or violent offence within the meaning of the Powers of Criminal Courts (Sentencing) Act 2000,

  (b) an offence in respect of which the offender is subject to the notification requirements of Part I of the Sex Offenders Act 1997, or

  (c) an offence against a child within the meaning of Part II of this Act.

  (11) This section has effect in relation to cases where the relevant sentence is imposed after this section comes into force.").
  On Question, amendment agreed to.
  Baroness Blatch Baroness Blatch moved Amendment No. 147:
  After Clause 60, insert the following new clause—

  SEX OFFENDERS: NOTIFICATION REQUIREMENTS
  (" . In section 2(1), section 2(2) and section 2(7) of the Sex Offenders Act 1997, for the words "14 days", there shall be substituted the words "48 hours".").
  The noble Baroness said: Protection of the public is paramount. The registration of paedophiles established under the Sex Offenders Act 1997 has been generally welcomed, although in recent times a strengthening of the law has been pressed for by many concerned parents. This amendment, irrespective of any future changes, is important. Even the Minister in another place admitted:
  "There is much strength in the argument that 14 days is too long".—[Official Report, Commons, 12/6/00; col. 708.]
  There can be no argument for delaying this change. Having seen that the register is successful, we now want to tighten it up further. A registration scheme of 48 hours will achieve that. I beg to move.
  Lord Bassam of Brighton: The noble Baroness will be aware that earlier I referred to an amendment which will reduce the 14-day period to three days. I was very tempted by her amendment. I asked our officials whether it was preferable to have a shorter period of time. It is a question of practicalities. The law enforcement agencies have concluded that, given the need to reduce the time, they need to have something they can manage. The view has been formed that 72 hours is rather easier to manage than 48 hours. If I was as confident as the noble Baroness is that the amendment would be workable, I would be more than happy to accept it. I do not think that I can. We do not think that it would make much difference in increasing public protection. We clearly accept the case. We understand the point that is being made. That is why we have put in place the three-day amendment. Having consulted with the law enforcement agencies and taken their views very carefully into account, we do not think that we can accept the amendment. I invite the noble Baroness to withdraw her amendment.
  Baroness Blatch: Certainly three days is better than 14 days. I think that 48 hours would be better than 72. Nevertheless, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 148 to 155 not moved.]
  Clause 61 [Interpretation, etc.]:
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 156:
  Page 42, line 5, at end insert—
  ("( ) In this Part (except in section (Duties of local boards in connection with victims of certain offences) references to release include temporary release.").
  The noble Lord said: This amendment has already been spoken to. I beg to move.
  On Question, amendment agreed to.
  Clause 61, as amended, agreed to.
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 157:
  Before Schedule 5, insert the following new schedule—

  SCHEDULE AMENDMENTS OF THE SEX OFFENDERS ACT 1997

    Introductory
    1.—(1) The Sex Offenders Act 1997 is amended as follows.
    (2) In this Schedule—

    (a) "commencement", in relation to any paragraph, means the coming into force of that paragraph,

    (b) "relevant date" has the same meaning as in Part I of that Act.

    Period and place for giving notification
    2.—(1) In section 2 (effect of notification requirements), after subsection (1) there is inserted—
    "(1A) In relation to any person whose home is situated in England, Wales or Northern Ireland, subsection (1) above shall have effect as if for the period of 14 days there were substituted a period of three days."
    (2) After subsection (5) of that section there is inserted—
    "(5A) In relation to any person whose home is situated in England, Wales or Northern Ireland, any notification under subsection (1) above shall be made in accordance with subsection (5)(a) above."
    (3) This paragraph applies in relation to any person—

    (a) whose relevant date falls after commencement, or

    (b) whose relevant date falls before commencement but in whose case the period mentioned in subsection (1) of that section has not begun.

    Additional requirements on giving notification
    3. After subsection (6) of that section there is inserted—
    "(6A) A person giving a notification under subsection (1) above whose home is situated in England, Wales or Northern Ireland shall also, if requested to do so by the police officer or other person referred to in subsection (5)(a) above, allow the officer or person to take his fingerprints and his photograph, or either of them.
    (6B) The power to take fingerprints in pursuance of subsection (6A) above is exercisable for the purpose of verifying the identity of the person giving the notification by checking the fingerprints against any other fingerprints to which the officer or person has access.
    (6C) In relation to persons whose homes are situated in England, Wales or Northern Ireland, or any description of such persons, the Secretary of State may by regulations provide for subsection (5)(a) above to have effect as if for the reference to any police station in a person's local police area there were substituted a reference to a police station or police stations prescribed by the regulations.
    The power to make regulations under this subsection is, exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament."

    Notice of intention to leave or return to the UK
    4. Before subsection (7) of that section there is inserted—
    "(6D) In relation to persons subject to the notification requirements of this Part whose homes are situated in England, Wales or Northern Ireland, or any description of such persons, the Secretary of State may by regulations require, or authorise any person to require—

    (a) prior notice of their intention to leave the United Kingdom, and

    (b) in the case of persons who have left the United Kingdom after giving such notice and subsequently return, notice of their return,

    to be given in accordance with the regulations.
    The power to make regulations under this subsection is exercisable by statutory instrument, and no such regulations shall be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament."
    Penalties
    5.—(1) In section 3 (offences), in subsection (1), for the words following paragraph (b) there is substituted—
    "he is guilty of an offence.
    (1A) In relation to England and Wales and Northern Ireland, a person guilty of an offence under subsection (1) above is liable—

    (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both,

    (b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

    (1B) In relation to Scotland, a person guilty of an offence under subsection (1) above is liable on summary conviction to a fine not exceeding level 5 on the standard scale, or imprisonment for a term not exceeding six months, or both.
    (1C) If without reasonable excuse—

    (a) a person fails to comply with section 2(6A) above,

    (b) a person required by regulations under section 2(6D) above to give prior notice of his intention to do so leaves the United Kingdom without having given notice in accordance with the regulations, or

    (c) a person fails to comply with any requirement of such regulations to give notice of his return to the United Kingdom,

    he is guilty of an offence and liable as mentioned in subsection (1A) above."
    (2) This paragraph applies where the act constituting the offence in question occurs after commencement.
    Restraining orders
    6.—(1) After section 5 there is inserted—
    "Restraining orders.
    5A.—(1) This section applies where—

    (a) the Crown Court or the Court of Appeal imposes a sentence of imprisonment, or makes a hospital or guardianship order, in respect of a person convicted of a sexual offence to which this Part applies,

    (b) the Crown Court or the Court of Appeal orders that a person who has been found not guilty of such an offence by reason of insanity, or to be under a disability and to have done the act charged against him in respect of such an offence, be admitted to hospital or makes a guardianship order in respect of him,

    (c) a youth court makes a detention and training order for a term of twelve months or more, or a hospital or guardianship order, in respect of a person convicted of such an offence,

    (d) a youth court makes a hospital or guardianship order in respect of a person who has been found not guilty of such an offence by reason of insanity, or to be under a disability and to have done the act charged against him in respect of such an offence.

    (2) The court may make an order under this section in respect of the person ("the offender") if it is satisfied that it is necessary to do so in order to protect the public in general, or any particular members of the public, from serious harm from him.
    (3) The order may prohibit the offender from doing anything described in the order.
    (4) The order shall have effect for the period specified in it or until further order; and the offender shall not cease to be subject to the notification requirements of this Part while the order has effect.
    (5) The offender may appeal against the order—

    (a) where he was convicted of a sexual offence to which this Part applies, as if the order were a sentence passed on him for that offence,

    1652

    (b) in a case within subsection (1)(b) or (d) above, as if he had been convicted of such an offence and the order were a sentence passed on him for that offence.

    (6) The Crown Court or, in a case within subsection (1)(c) or (d) above, the youth court for the area in which the offender resides may, on the application of—

    (a) the offender, or

    (b) the chief officer of police, or the local board, for the area in which the offender resides,

    vary or discharge the order.
    (7) On the application the court may, after hearing the applicant, and the other persons mentioned in subsection (6) above (if they so wish), make any order under this section varying or discharging the previous order which the court considers appropriate.
    (8) If without reasonable excuse the offender does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.
    (9) A person guilty of an offence under this section is liable—

    (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both,

    (b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

    (10) In this section "hospital order" has the same meaning as in the Mental Health Act 1983."
    (2) Sub-paragraph (1) has effect in relation to sexual offences to which Part I of the Sex Offenders Act 1997 applies where the acts constituting the offence occurred after commencement.
    (3) In section 10 (short title etc.), after subsection (3) there is inserted—
    "(3A) The Secretary of State may by order make any modifications of section 5A above which he considers necessary or expedient for the purpose of enabling courts in Northern Ireland to exercise the powers conferred by that section.
    The power to make an order under this subsection is exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament."
    Information
    7. After section 5A there is inserted—
    "Information about release or transfer.
    5B.—(1) This section applies to any person ("the offender") who—

    (a) is subject to the notification requirements of this Part, and

    (b) is serving a sentence of imprisonment or a term of service detention, or is detained in a hospital, in England, Wales or Northern Ireland.

    (2) The Secretary of State may by regulations require notice to be given by the person who is responsible for the offender to persons prescribed by the regulations of any occasion when the offender is released or a different person becomes responsible for him.
    (3) The regulations may make provision for determining who is to be treated for the purposes of this section as responsible for an offender.
    (4) The power to make regulations under this section is exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament."
    Supplementary
    8. In section 6 (interpretation of Part I), after the definition of "guardianship order" there is inserted—
    ""local board" has the same meaning as in the Criminal Justice and Court Services Act 2000".
    9.—(1) In section 10—

    (a) in subsection (4), for "section 8" there is substituted "sections 3(1B) and 8",

    (b) in subsection (5), after "Act" there is inserted "(except section 3(1A) and (1C))".

    (2) At the end of that section there is inserted—
    "(6) Any power to make regulations or an order under this Act may be exercised so as to make different provision for different purposes."
    Consequential
    10. In section 4(4) (young sex offenders), for the words following "section" there is substituted "3 above shall have effect as if, for paragraphs (a) and (b) of subsection (1A) and for the words following "liable" in subsection (1B), there were substituted "on summary conviction to a fine not exceeding level 5 on the standard scale".").
    The noble Lord said: This amendment has already been spoken to. I beg to move.
    On Question, amendment agreed to.
    [Amendment No. 157A, as an amendment to Amendment No. 157, not moved.]
    Schedule 5 agreed to.
    Clause 62 agreed to.
    Clause 63 [Failure to secure regular attendance at school: increase in penalty]:
    On Question, Whether Clause 63 shall stand part of the Bill?
    Earl Russell: To have to speak in a clause stand part debate last thing at night is a short straw; to have to do it to an exhausted House is about as short as straws come. I shall do my best.
    The clause deals with the responsibility of parents whose children are playing truant from school. It raises the penalties to which they are subject from a fine of £1,000 to £2,500 with an alternative of three months' imprisonment. The clause in the Bill starts from the premise that something must be done. That is the most dangerous cry in politics.
    It is true that something must be done. The problem is considerable. That is not in dispute. The question is whether there is a disjunction between the need to do something and the measures proposed in the Bill. The measures proposed in the Bill rely on the concept of vicarious guilt. They punish the parents for the default of the child. The question is whether causing more dismay for the parents, creating a greater determination in the parents to change the situation, will prove effective. I have very considerable doubts on that matter.
    In one of my father's works I came across the remark, "Fortunately, most children desire approval. If they did not, all discipline would be impossible". In that context, the remark brought me up with a jerk, but I cannot help suspecting that we are here dealing with those few children who are exempted from that remark, who do not desire approval. If they desired approval, they would probably be going to school already. In this kind of case the parents' disciplinary powers are effectively nil because the sanctions
    1654
    available to a parent, especially a parent with a teenage child, are in practice extremely limited and the power of physical punishment is extremely restricted.
    Very often the only power in the hands of a parent in a state of real desperation is to drive the child out of the house. Governments do not take that quite as seriously as they should. The MORI report of 1991 on 16 and 17 year-olds in receipt of severe hardship payment found that a majority of those who had left home had done so because the parents had thrown them out. We now have the Children's Society report which was debated in the House on 20th January. The noble Earl, Lord Listowel, who was in his place a few moments ago, spoke in that debate. The Children's Society found that almost one-fifth—19 per cent—of children who had run away overnight did so because they had been forced to leave home. The society estimates that as amounting to one in 50 of all young people or 14,000 young people in each school year cohort.
    Those young people face quite considerable dangers and get into quite considerable difficulties. But whatever the effect may be, it does not improve their school attendance. In fact, quite the opposite is the case. If, as I believe, the chief effect of the clause will be to cause parents to throw out their children in order that the parents, in desperation, in shame and in fear, may escape the penalty of themselves being imprisoned for what they cannot prevent, the clause will do only harm.
    I understand that in some cases there is a question of the parents being compliant in the offence of truanting. Where the parent has personal responsibility for an act, I would be perfectly prepared to see it treated as an offence of aiding and abetting. But very often, especially when a school system of notification has broken down, the parent is in ignorance that the offence of truanting has actually taken place. It may be quite difficult to prove one way or the other whether that is the case.
    Parents should be punished for what they themselves are responsible for doing. The concept of vicarious guilt is a dangerous one and punishing the parent may serve only to worsen further the relationship between the parent and child, which may well have been bad enough in the first place. I hope there is still time for some further thought about this clause, which I think is counterproductive.
    11.15 p.m.
    Baroness Blotch: There are some questions about. the clause that need to be answered. Perhaps I may give an example of a particularly difficult case. This happened about three years ago. The lady in question—she is the mother of a 15 year-old son—gave her son breakfast every morning and sent him off to school. After about seven weeks she received a letter from the school asking where he was because the school had not seen him all that term. Who was culpable here? Was it the school for not following up the absentee quickly enough, or was it the parent, who was totally innocent of the offence? Under the Bill, that circumstance would be considered an offence.

    1655
    Secondly, given that the Government have decided to increase the level of fines, when the policy was first announced I undertook a little detective work to establish what level of fines was being levied by the courts at the present time. I found that hardly any parent was levied the maximum fine allowed under the maxima. Perhaps the Minister's officials at the Home Office can provide me with up to date figures. Given that, while it may sound very macho to increase the level of fines, if the current level of fines is not being exploited by the courts, it appears academic to increase the level even further.
    All kinds of problems are being thrown up by this issue. Nowadays, parents face genuine difficulties in this area. Many of the sanctions that were available to parents have been removed by law, either by the European Court of Human Rights or by decisions coming from this House of Parliament. Parents are left in an extremely difficult position in today's world. They need to care for robust teenagers—the example I cited a moment ago makes the position clear. I should be interested to know what is to happen in such circumstances.
    Lord Bassam of Brighton: I am grateful for both of the contributions. They were interesting and illuminating, giving as they did the views of the logician and the practitioner.
    This is a difficult and vexed subject. It is one that, as a parent, I have thought about a great deal. My children all attend school—the eldest is nearly 12 while the youngest is almost five years old. The problem can be seen in personal terms. However, children really do only have one chance to benefit from their schooling. They need to gain that benefit and to do so they must attend school regularly. Currently, too many children miss school for no good reason. There are around 1 million children—around 10 per cent of all pupils—who miss at least one-half of a school day through unauthorised absence; namely, truancy. That often happens with parent consent or even with parent collusion. We need to be clear about that and I believe that there is a consensus that that is often the case.
    Apart from the effect that truancy has on educational levels of attainment, children out of school without permission are more likely to become involved in, or be drawn into, criminal activity or antisocial behaviour or, perhaps worse to themselves, become victims of abuse. They may fall into other highly undesirable anti-social practices.
    The Government have been determined to address this issue, as no doubt were the previous government. We have introduced a range of initiatives through the education service to help to tackle truancy. To that end, we have provided significant resources through the social inclusion: pupil support grant worth some £500 million over three years. A high level of resource is being put into this. The grant is being used to support local projects which prevent truancy from happening in the first place.
    1656
    This measure to increase the penalty for non school attendance supplements those initiatives and challenges the culture which tolerates the absence of children from school.
    Perhaps I should restate for the record what my colleague the Minister of State mentioned in another place; namely, that the intention of the measure is not to imprison parents of truants. I most certainly do not wish to see parents locked up. It would be counter-productive to have children taken into care in those circumstances. The purpose of the measure is to get parents into court and to change their behaviour, along with helping to change the nature of their relationship with their child.
    Under Section 444 of the Education Act 1996, if a registered child of compulsory school age (5 to 16) fails to attend school regularly, his parents are guilty of an offence. If convicted, the parents are liable to a fine of up to £1,000, which is level 3 on the standard scale of offences. While not taking anything away from the importance of other offences, this is the same level as fines handed out for people found guilty of not having a fishing or a television licence. I would argue that permitting, aiding and abetting or colluding with truancy is, in many respects, more serious than that. It has to be more serious than that; it affects the potential and prospects of the child.
    Baroness Blatch: Does not the noble Lord agree that statistics from the magistrates' courts indicate that nothing like £5 is ever levied? So what is the point of doubling it?
    Lord Bassam of Brighton: I shall come to that point. Clause 63 provides that the penalty for school attendance offences be raised to level 4 on the standard scale and/or three months' imprisonment. The maximum fine will rise from £1,000 per parent per child to £2,500 per parent per child. Courts—this is the crucial point—will still determine the actual fine, dependent on the individual circumstances.
    It is not a desire to fine heavily the parent; it is not a desire to imprison the parent. The thinking behind this measure is to close a gap which allows parents of truants summonsed to court simply not to attend. At the moment 80 per cent of parents do not bother to attend court.
    The Government take the view that we cannot accept truancy. We cannot condone it—and it should not be condoned by the parent. That is unacceptable. I am sure that there is consensus on that point. It is not a matter, as the noble Baroness said, of us being macho about it; that is not the purpose behind this. It is to ensure that the offence is at a level where the parent is obliged to attend court.
    To do this, we need to work with parents and to make it clear that truancy is not a matter to be treated lightly. It will be easier for a magistrate to help us with that if he or she can meet the parent in court and assess whether, for example, a parenting order or a community sentence is more appropriate. The Magistrates' Association has made it clear that parents

    1657
    not attending court is a source of considerable frustration. It has pressed for measures which would force parents to attend. That is exactly what we are after, getting the parent to court. We believe that the simplest and most effective way to do this is to make the offence imprisonable. That way a warrant may be issued for the parent's arrest, compelling them to come to court.
    I am aware that having the imprisonment clause will allow magistrates to invoke the penalty; I accept that. If the measure becomes law, however, the Magistrates' Association will be providing guidance to magistrates which would draw attention to the fact that under the Criminal Justice Act 1991 custody is reserved for only the most serious cases. This would make it most unlikely that any parent would be imprisoned for this offence. But by raising the standard level of penalty to level 4, we will be in a situation where we can compel the parent to come to court, and then the authorities can begin seriously to engage with that parent.
    Clearly, this has to be part of a broader strategy—I do not think any of us would want to see the court used in a heavy-handed way to achieve that—but it has the value of making the parent and child face up to their responsibilities together, to work with the authorities and to ensure that the truancy behaviour—which can trigger other unfortunate kinds of anti-social behaviour—can be prevented. That is the purpose of what we are proposing. I commend Clause 63 to the Committee.
    Earl Russell: I am grateful to the noble Baroness, Lady Blatch, for her helpful remarks. What she said about ignorance I can confirm; I, too, have knowledge of such cases. What she said about the fine not being fully levied is a point of considerable importance and deserves thought. Many of the people we are concerned about could not of course possibly pay the kind of fines that we are envisaging.
    I am grateful to the Minister for the care and thoughtfulness of his reply. I agree with a great deal of it, but not, unfortunately, with the parts which most bear on the point at issue. I accept his point that children get only one chance, but the point at issue is whether the amendment will make the situation any better.
    I accept also what the noble Lord said about parental collusion. Where parental collusion can be proved, I am quite prepared to have it treated as aiding and abetting truancy from school—but one would have to prove the mens rea of the parent before taking any action. What I am not happy about is the concept of vicarious guilt, of holding the parents responsible for things that they have not done, did not wish, and in some cases may have been unable to prevent even if they had tried.
    11.30 p.m.
    Lord Bassam of Brighton: The noble Earl confronts an interesting issue. The concept of vicarious guilt exists whether or not we raise the threshold and the
    1658
    penalty, does it not? Therefore, what bearing does it have on this particular proposal? The noble Earl's argument stands or falls, does it not?
    Earl Russell: I entirely accept what the Minister says; I thought that he would say as much. I have in fact opposed this concept from the beginning. I have not always been able to be present in the Chamber when it has arisen, but on this occasion, when I see matters getting worse and more serious, I am able to be in the Chamber and I am able to say so.
    I entirely accept the Minister's point about it being the intention of the measure to get the parents into court. What I am not certain about is what the effect of that will be. For most parents, whether they can do anything about it or not, it will be a very shaming experience. Parents who have been shamed by the behaviour of their children tend rapidly to translate that shame into the form of anger with the child. That anger can be extremely explosive. I remember a case being reported in the Evening Standard following a riot at Chelsea football ground during which people were throwing iron bars across the pitch. A woman watching television observed her son to be among those doing it. When he returned home that evening, he found his bed out in the street and was told that he would sleep there because he was not coming into the house.
    One may, in the short term, laugh sympathetically at that story, but in the long term if the intention persists it will create a major problem. That is precisely the effect that the Minister will achieve in getting parents into court. The provision will be counter-productive. It is too late at night for any further debate on this matter. I hope that we may return to it at a later stage of the Bill.
    Baroness Blatch: Perhaps I may put a question to the Minister. Is this a magistrates' court issue, or a youth court issue?
    Lord Bassam of Brighton: I am told that it is a matter for the magistrates' court. I am fairly clear that it must be. I shall take further advice, but that is the indication. If it is not, I shall inform the noble Baroness.
    Baroness Blatch: My noble friend sitting alongside me, who is a magistrate, says that truancy is dealt with in the youth court.
    Clause 63 agreed to.
    Clauses 64 and 65 agreed to.
    Schedule 6 [Minor and consequential amendments]:
    [Amendment No. 158 not moved.]
    Lord Bach Lord Bach moved Amendment No. 159:
    Page 56, line 39, leave out ("4(1)(c)(ii), 5(1)(c)(ii)").
    The noble Lord said: On behalf of my noble friend, in moving this amendment, I shall speak also to Amendments Nos. 160 to 187. With the leave of the Committee, I shall then move those amendments

    1659
    en bloc. Amendment No. 188 in this group is an opposition amendment, after which I should like to move en bloc Amendments Nos. 189 to 225.
    This group of amendments makes the necessary changes to Schedule 6, so that the amendments are made to other enactments that are needed to ensure that the measures in the Bill that we have already discussed can take full effect. Schedule 6 to the Bill contains only amendments that are consequential on the substantive provisions contained in the Bill. The Committee may be relieved to hear that I do not intend to go through each one of the amendments in turn; however, I am in a position to give some brief examples if that would be of assistance.
    This group of amendments includes amendments to Schedule 6 to the Bill which provides for amendments to be made to other enactments that are consequential on the changes to the names of community orders; for example, Amendments 159 and 160 relate to paragraph 1 of Schedule 6 to the Bill, which provides for references in other enactments to probation orders to be changed to references to "community rehabilitation orders". Such changes are consequential to Clause 38 of the Bill, which, as Members of the Committee will remember, renames probation orders as "community rehabilitation orders". That is just one example. I am in a position to give the Committee more, if required. However, for the moment, I beg to move.
    Baroness Blatch: The Minister will be relieved to know that I do not intend to ask many detailed questions on this grouping. I say that more in sadness than in anger. Indeed, I am not even equipped to ask questions about it. I find this wholly and utterly baffling. I received a copy of a schedule today, following a request that I made yesterday. I have that copy of Schedule 6 before me. It has light type printing, dark type printing, side-lining, underlining and crossings out, without a single key to tell me what it all means.
    I do not know how to interpret the document. It arrived without an explanatory or covering letter, other than a notification to tell me that a copy of Schedule 6 was attached. There is nothing in the Explanatory Notes. There is no reference to Schedules 6 or 7. In fact, I was collecting amendments during the summer as they arrived, only to find that yet further amendments were arriving to amend those I had already received. This is about the worst possible example I can remember of legislative drafting. These amendments will go through tonight due to sheer ignorance on my part. I have no idea what all this means; it is a very unsatisfactory state of affairs.
    Lord Bach: I am sorry that the noble Baroness feels that way. I know that some effort was made to ensure that a copy of the revised Schedule 6 reached the noble Baroness. The crossings-out are omissions in the amendments—deliberate omissions in the amendments. The underlinings indicate additions to
    1660
    the amendments. I am sorry if this does not please the noble Baroness. However, an attempt was made to try to make the position clearer.
    Baroness Blatch: I am sorry. The Minister's response is not very satisfactory. There are underlinings, crossings-out, light and dark typing and side-lining in the copy schedule, with no reference as to what any of it means. As to the noble Lord saying that a great effort was made to ensure that I received this copy today, I should point out that late last night the Chief Whip insisted, because I was insisting upon it, that I saw a re-drafted schedule. I asked for a completely re-drafted Schedule 6. I wanted it to look like a re-draft so that I could then compare it alongside Schedule 6 in the Bill. I should still like to see a completely re-drafted Schedule 6 without all these markings. No one, not even the noble Lord, has explained the position to me.
    The noble Lord has said that the underlinings are the new parts. If that is so, what do the crossings-out represent? What is the distinction between the light and dark typing? Moreover, what is the significance of the side-lining?
    Lord Bach: The underlinings are the new parts; the crossings-out are the omissions; and there is no relevance at all either in the light or the dark shading.
    On Question, amendment agreed to.
    Lord Bach Lord Bach moved Amendments Nos. 160 to 187:
    Page 56, line 40, at end insert—
    ("in Schedule 4—

    in paragraph 1. sub-paragraphs (1) (in each place), (2), (3) (in both places) and (4) and the preceding cross-heading,

    in paragraph 2, sub-paragraphs (1) (in both places), (2) to (4) and the preceding cross-heading,

    paragraph 5(a),
    paragraph 6(4) (in both places).").
    Page 57, leave out line 19 and insert—
    ("paragraph 1(1)(c),").
    Page 57, line 20, leave out from ("(2)") to end of line 21 and insert ("and (3)(a)").
    Page 57, line 22, at end insert—
    ("in Schedule 4—

    in paragraph 3, sub-paragraphs (1) (in the first, second and third places), (2) (in the first and third places) and (3) (in the first place) and the preceding cross-heading,

    in paragraph 4, sub-paragraph (1) (in both places), sub-paragraph (2) and sub-paragraph (3) (in the first place),

    paragraph 5(b),
    paragraph 6(4)(c).").

    1661
    Page 57, line 38, leave out ("4(1)(c)(ii), 5(1)(c)(ii)").
    Page 57, line 42, at end insert—
    ("in Schedule 4—

    paragraph 5 and the preceding cross-heading,

    paragraph 6(4)(a).").

    Page 58, line 13, at end insert—
    ("In the Prisoners and Criminal Proceedings (Scotland) Act 1993—
    sections 12(2)(a) and 15(4).").
    Page 58, leave out lines 14 and 15.
    Page 58, line 15, at end insert—
    ("In the Criminal Procedure (Scotland) Act 1995—
    sections 209(3)(a) and 234(1)(a).").
    Page 58, line 15, at end insert—
    ("In the Crime (Sentences) Act 1997—
    section 31(2A)(a).").
    Page 58, leave out lines 38 to 43.
    Page 58, line 43, at end insert—

    Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (c. 65)
    . In Part I of the Second Schedule to the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (capacities in respect of which payments may be made under Part V, and paying authorities), for paragraphs 6 and 7 there is substituted—

    "6. Member of the staff of a local board or of two or more local boards established under section 4 of the Criminal Justice and Court Services Act 2000.

    The local board or, as the case may be, the local boards acting jointly.

    7. Chief officer of a local board established under section 4 of the Criminal Justice and Court Services Act 2000.

    The Secretary of State."")

    Page 64, leave out lines 7 to 9.
    Page 64, line 9, at end insert—

    Social Work (Scotland) Act 1968 (c. 49)
    .In section 94(1) of the Social Work (Scotland) Act 1968 (interpretation)—
    (a) at the appropriate place there is inserted—
    ""community rehabilitation order" has the meaning given by section 38 of the Criminal Justice and Court Services Act 2000",.
    (b) for the definition of "probation order" there is substituted—
    ""probation order"—

    (a) in relation to an order imposed by a court in England or Wales, means a community rehabilitation order,

    (b) in relation to an order imposed by a court in Northern Ireland, has the same meaning as in the Criminal Justice (Northern Ireland) Order 1996,"").

    Page 64, line 26, leave out from ("etc.)") to end of line 30 and insert (""within the meaning of the Probation Service Act 1993" is omitted").
    Page 64, line 30, at end insert—
    (".—(1) Schedule 3 (approved schools and other institutions) is amended as follows.
    (2) In paragraph 6(1), after "Probation Service Act 1993" there is inserted "or section 3, 5 or 9 of the Criminal Justice and Court Services Act 2000".
    (3) In paragraph 9—

    (a) in sub-paragraph (2)—

    (i) for "either" there is substituted "any",

    (ii) in paragraph (a), "or" is omitted,

    (iii) after paragraph (b) there is inserted—

    "(c) section 3 of the Criminal Justice and Court Services Act 2000 (functions of the Secretary of State);

    (d) section 5 of that Act (functions of local boards); or

    (e) section 9 of that Act (approved bail hostels, etc.)."

    (b) for sub-paragraph (4)(b) there is substituted—

    "(b) the amount which in his opinion represents the proportion of the contributions paid by local authorities under section 90 of the Act of 1933 or (as the case may be) the proportion of the sums paid by—

    (i) probation committees under rules made under the Probation Service Act 1993,

    (ii) the Secretary of State under section 3 or 9 of the Criminal Justice and Court Services Act 2000, and

    (iii) local boards under section 5 of that Act, which (in either case) should be treated as having been paid on account of expenditure of a capital nature in connection with the former approved institution;"

    (4) In paragraph 10(4)(b), after " Probation Service Act 1993" there is inserted "or under section 3, 5 or 9 of the Criminal Justice and Court Services Act 2000".").
    Page 64, leave out lines 40 to 42.
    Page 64, line 42, at end insert—

    Pensions (Increase) Act 1971 (c. 56)
    . In Schedule 2 to the Pensions (Increase) Act 1971 (official pensions), after paragraph 53 there is inserted—
    "53A. A pension payable in accordance with regulations under section 7 of the Superannuation Act 1972 in respect of service as chairman, chief officer, member or member of the staff of a local board established under section 4 of the Criminal Justice and Court Services Act 2000."").
    Page 64, line 42, at end insert—

    Local Government Act 1972 (c. 70)
    . In Part I of Schedule 12A to the Local Government Act 1972 (access to information: exempt information)—

    (a) in paragraph 2(a), "or" is omitted,

    (b) at the end of paragraph 2(b) there is inserted—

    "or
    (c) a local board within the meaning of the Criminal Justice and Court Services Act 2000.",.
    (c) after paragraph 2 there is inserted—
    "2A. Information relating to a particular chief officer, former chief officer or applicant to become a chief officer of a local board within the meaning of the Criminal Justice and Court Services Act 2000."").
    Page 64, line 42, at end insert—

    Juries Act 1974 (c. 23)
    .—(1) Schedule 1 to the Juries Act 1974 (ineligibility and disqualification for and excusal from jury service) is amended as follows.
    (2) In Part I, in Group B—

    (a) in the entry for the warden and staff of a probation hostel or bail hostel, "(within the meaning of the Probation Service Act 1993)" is omitted,

    (b) after that entry there is inserted—

    "The warden or a member of the staff of approved premises (within the meaning of Part I of the Criminal Justice and Court Services Act 2000)",

    1663
    (c) after the entry for probation officers there is inserted—
    "The chief officer and members of the staff of a local board established under section 4 of the Criminal Justice and Court Services Act 2000.
    Any person who performs the functions of a chief officer of a local board in accordance with a management order made under section 10 of the Criminal Justice and Court Services Act 2000.
    Any person who performs the functions of an officer of a local board under section 5(2) of the Criminal Justice and Court Services Act 2000".
    (3) In Part II, in the third paragraph, for "been placed on probation" there is substituted "had made in respect of him a probation order".").
    Page 64, line 42, at end insert—

    Rehabilitation of Offenders Act 1974 (c. 53)
    . The Rehabilitation of Offenders Act 1974 is amended as follows.
    . In section 5 (rehabilitation periods for particular sentences)—

    (a) in subsection (4A), for "a person was placed on probation" there is substituted "a probation order was made",

    (b) in subsection (4A)(b), for "probation order" there is inserted "order in question".

    . In section 6(3) (the rehabilitation period applicable to a conviction)—

    (a) for "placed on probation" there is substituted "a probation order was made",

    (b) for "or probation" there is substituted "or a breach of the order".").

    Page 65, leave out lines 25 to 34.
    Page 65, line 42, after ("56(3)") insert (", (4)").
    Page 66, line 4, after ("56(3)") insert (", (4)").
    Page 66, line 20, at end insert—
    (". Section 72 (report by probation officer on means of parties) is omitted.").
    Page 66, line 46, at end insert—
    (". In Schedule 6A (fines that may be altered under section 143), the entry relating to Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000 is omitted.").
    Page 67, line 4, at end insert—
    "Criminal Justice Act 1982 (c. 48)
    . In paragraph 7(3)(b) of Schedule 13 to the Criminal Justice Act 1982 (reciprocal arrangements), for "probation committee for that area to appoint or assign a probation officer" there is substituted "local board for that area (established under section 4 of the Criminal Justice and Court Services Act 2000) to appoint or assign an officer of the board".").
    Page 67, leave out lines 23 to 26.
    On Question, amendments agreed to.
    Baroness Blatch Baroness Blatch moved Amendment No. 188:
    Page 67, line 34, leave out paragraph 78.
    The noble Baroness said: The purpose of this amendment is to bring local probation boards in line with the Home Office, which is not subject to the requirement in the Local Government Act not to take account of non-commercial considerations when contracting with others. This is particularly important
    1664
    for a criminal justice organisation where many considerations other than cost are relevant. I beg to move.
    Lord Bach: The amendment would have the effect that in the Local Government Act 1998, Schedule 2, which deals with public supply or works contracts, the reference to a probation committee within the meaning of the Probation Service Act 1993 would not be changed to a reference to a local board under the Bill. The provision in the Bill is a necessary consequential of the change from "probation committees" to "local boards".
    We oppose the noble Baroness's amendment. Under Section 17(1) of the Local Government Act 1988 there is a duty on a public authority, in relation to its public supply or works contracts, to exercise its functions without reference to matters which are non-commercial, (as defined in subsection (5) of that section, for example, the terms and conditions of employment by contractors of their workers.
    That duty applies to public authorities as defined in Schedule 2 and that schedule presently includes a probation committee. We see no reason why it should not apply equally to a local board. I cannot therefore support the amendment.
    Baroness Blatch: I take it that the local boards will have the same obligations as a local authority. I should have thought that the Home Office was also a public authority. If it is not a public authority, what is it? Almost in a state of despair I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Lord Bach Lord Bach moved Amendments Nos. 189 to 255:
    Page 67, leave out lines 39 to 42.
    Page 68, leave out lines 1 to 3.
    Page 68, line 39, at end insert—

    Local Government Finance Act 1988 (c. 41)
    . The Local Government Finance Act 1988 is amended as follows.
    . In section 74(1)(c)(levies), for "magistrates' courts committee or probation committee" there is substituted "or magistrates' courts committee".
    . In section 117(5)(c) (rates and precepts: abolition), for "magistrates' courts committee or probation committee" there is substituted "or magistrates' courts committee".").
    Page 68, leave out lines 40 to 43.
    Page 69, line 29, at end insert—
    (". In section 58(4) (financial provisions applicable on cessation of controlled or assisted community home or disposal etc of premises)—

    (a) in paragraph (a), "or" is omitted,

    (b) in paragraph (b), after "hostels or homes" there is inserted—

    "; or
    (c) of sums paid under section 3, 5 or 9 of the Criminal Justice and Court Services Act 2000 in relation to expenditure on approved premises (within the meaning of Part I of that Act)."").
    Page 69, line 29, at end insert—
    (". In section 68(2)(d), (persons disqualified from being private foster parents), for "has been placed on probation or" there is substituted "a probation order has been made in respect of him or he has been".").
    Page 69, line 34, at end insert—
    (". In Schedule 10 (amendments of adoption legislation), paragraph 29 is omitted.").
    Page 70, line 4, at end insert—
    (". In section 34A(2)(c) (power to release short term prisoners on licence), for "4(1)(d) or 5(1)(d)" there is substituted "4(1C)(d) or 5(1C)(d)".").
    Page 70, leave out lines 6 to 12 and insert ("subsection (7) is omitted").
    Page 70, line 29, at end insert—
    (". In Schedule 3 (reciprocal enforcement of certain orders), in paragraph 10—

    (a) in sub-paragraphs (2)(b) and (3)(c) for "probation committee" there is substituted "local board",

    (b) in sub-paragraph (3)(a), for "a probation officer assigned" there is substituted "an officer of a local board assigned",

    (c) in sub-paragraph (3)(d), for "probation centre" there is substituted "community rehabilitation centre".").

    Page 70, line 29, at end insert—
    (". In Schedule 3 (reciprocal enforcement of certain orders), in paragraph 11(4), for "4(1)(d), 5(1)(d)" there is substituted "4(1C)(d), 5(1C)(d)".").
    Page 70, line 31, leave out ("paragraph 2 is") and insert ("paragraphs 2 and 6(3) are").
    Page 70, leave out lines 39 to 42.
    Page 70, line 46, at end insert—
    ("Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9)
    . In section 15(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (variation of supervised release order), for "probation officer" there is substituted "officer of a local board".").
    Page 71, leave out lines 5 to 27.
    Page 71, line 27, at end insert—
    ("Criminal Procedure (Scotland) Act 1995 (c. 46)
    . The Criminal Procedure (Scotland) Act 1995 is amended as follows.
    . In section 209(7) (supervised release orders), for "probation officer" there is substituted "officer of a local board".
    . In section 228(2)(b) (probation orders), for "probation committee" there is substituted "local board".
    . In section 234 (probation orders: persons residing in England and Wales)—

    (a) in subsection (2), for "probation order made" there is substituted "community rehabilitation order made",

    (b) in subsection (3)(c), for "probation committee" there is substituted "local board",

    (c) in subsection (4)(a), after "probation orders" there is inserted "or, as the case may be, community rehabilitation orders",

    (d) in subsection (5)(a), for "probation order" there is substituted "community rehabilitation order",

    (e) in subsection (5)(b), for "combination order" there is substituted "community punishment and rehabilitation order",

    (f) in subsection (10), for "probation orders" there is substituted "community rehabilitation orders".

    . In section 242 (community service orders: persons residing in England and Wales)—

    (a) in subsection (1)(a)(ii), for "community service order" there is substituted "community punishment order",

    (b) in subsections (1)(a)(iii), (2)(b) and (3)(b), for "community service orders" there is substituted "community punishment orders",

    (c) in subsection (3)(b)—

    (i) for "probation committee" there is substituted "local board",

    (ii) for "a probation officer" there is substituted "an officer of the board".

    . In section 244 (community service orders: general provisions relating to persons living in England and Wales or Northern Ireland)—
    (a) for subsection (3) there is substituted—
    "(3) Subject to the following provisions of this section—

    (a) a community service order made or amended in the circumstances specified in section 242 shall be treated as if it were a community punishment order made in England and Wales and the legislation relating to community punishment orders which has effect in England and Wales shall apply accordingly; and

    (b) a community service order made or amended in the circumstances specified in section 243 shall be treated as if it were a community service order made in Northern Ireland and the legislation relating to community service orders which has effect in Northern Ireland shall apply accordingly."

    (b) in subsections (4)(a) and (6), after "community service orders" there is inserted "or, as the case may be, community punishment orders",

    (c) in subsection (5), after "a community service order" there is inserted "or, as the case may be, a community punishment order".

    . In section 307(1) (interpretation), at the appropriate place there is inserted—
    ""local board" means a local board established under section 4 of the Criminal Justice and Court Services Act 2000";").
    Page 71, leave out lines 28 to 30.
    Page 72, line 49, at end insert—
    ("Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24))
    . The Criminal Justice (Northern Ireland) Order 1996 is amended as follows.
    . In Article 10(1A) (probation orders) as it has effect pursuant to paragraph 10(1) of Schedule 3 to the Criminal Justice Act 1991 (reciprocal enforcement of certain orders), for "probation committee" there is substituted "local board".
    . In Article 13(4)(b) (community service orders in respect of convicted persons) as it has effect pursuant to paragraph 7(1) of Schedule 13 to the Criminal Justice Act 1982 (reciprocal arrangements), for "such orders" there is substituted "community punishment orders".").
    Page 73, line 13, leave out from ("order") to ("section") and insert ("has been made under subsection (2) of").
    Page 73, line 15, after ("2000") insert ("or a direction under subsection (5) of that section has been given or will be required to be given at the appropriate stage").
    Page 73, line 18, at end insert ("or, in the case of a life prisoner in respect of whom a direction under subsection (5) of that section has not been given but will be required to be given at the appropriate stage, the whole of his sentence,
    and in this section "appropriate stage", in relation to such a direction, has the same meaning as in subsection (5A) of that section.").
    Page 73, line 23, after ("been") insert ("made or").
    Page 73, line 24, after ("sentences") insert ("or such a direction will be required to be given at the appropriate stage").
    Page 73, line 39, leave out ("35(1)(b)") and insert ("35").
    Page 73, line 39, after ("general)") insert—
    ("(a) in subsection (1)(b),").
    Page 73, line 40, at end insert—
    ("(b) in subsections (5)(c) and (8)(a), for "4(1)(d)" there is substituted "4(1C)(d)".").
    Page 73, line 46, at end insert—
    (". In Schedule 1 (transfer of prisoners within the British Islands)—

    (a) in paragraph 8(5), in the table, for "Probation Officer" there is substituted "Officer of a local board",

    (b) in paragraph 11(6), in the table, for "Probation Officer appointed for or assigned to such petty sessions area" there is substituted "Officer of a local board appointed for or assigned to such petty sessions area".").

    Page 74, line 34, at end insert—
    (". In Schedule 8 (minor and consequential amendments), paragraph 110 is omitted.").
    Page 75, line 27, at end insert—
    (". Section 6 (appeals against prohibition or restriction of employment) is omitted.").
    Page 75, line 38, at end insert—
    (" . In section 12 (interpretation)—

    (a) in the definition of "child care position", for paragraphs (a) to (c) there is substituted—

    "(a) is a regulated position for the purposes of Part II of the Criminal Justice and Court Services Act 2000; but

    (b) is not a position within subsection (3) below;"

    (b) in subsection (3)(b), for the words from "an independent" to the end there is substituted "a school which is a children's home for the purposes of the Care Standards Act 2000".").

    Page 76, line 7, at end insert—
    (". Section 38 (electronic monitoring of curfew orders) is omitted.").
    Page 76, line 7, at end insert—
    (". In section 40 (curfew orders: supplementary), in subsection (1)(a), the words from "(including" to "available)" are omitted.").
    Page 76, line 7, at end insert—
    (". In section 40 (curfew orders: supplementary), after subsection (2) there is inserted—
    "(3) An order under subsection (2)(a) above may make in paragraphs 2A(4) and (5) and 19(3) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order."").
    Page 76, line 27, at end insert—
    (". In section 45(2) (community rehabilitation orders: supplementary), for "paragraph 19(2)(a)" there is substituted "paragraphs 2A(4) and (5) and 19(2)(a)".).
    Page 76, line 35, at end insert—
    (". In section 57 (copies of orders)—

    (a) in subsection (2). after "order shall" there is inserted "(subject to subsection (3A) below)",

    (b) after subsection (3) there is inserted—

    "(3A) Where—

    (a) a magistrates' court amends a drug treatment and testing order under section 55(1) above; and

    (b) the order as amended provides for a magistrates' court other than that mentioned in paragraph (a) to be responsible for the order;

    1668
    the court amending the order shall not give copies of the order as amended as mentioned in subsection (2) above but shall forthwith send copies of it to the court responsible for the order and that court shall, as soon as reasonably practicable after the order is amended, give copies to an officer of a local board assigned to that court."").
    Page 76, line 35, at end insert—
    (". In section 58 (drug treatment and testing orders: supplementary), at the end there is inserted—
    "(2) Where an order under paragraph 1(1A) of Schedule 3 provides for the warning provisions to apply to drug treatment and testing orders, an order under this section may make in paragraph 2A(4) and (5) of that Schedule any amendment which the Secretary of State thinks necessary in consequence of any substitution made by that order."").
    Page 76, line 43, leave out ("76") and insert ("76(1)").
    Page 77, line 43, leave out ("137(2)(a)") and insert ("137").
    Page 77, line 44, leave out from ("compensation)") to end of line 46 and insert ("subsection (2)(a) is omitted").
    Page 78, line 20, leave out (""40(2), 40C(2), 58B(4),") and insert (""40(2)(b), 40C(2)(b),").
    Page 78, line 21, leave out ("7(9) or 8(8)") and insert ("7(9)(b) or 8(8)(b)"").
    Page 78, line 22, at end insert—
    ("( ) after "15(1)" there is inserted "40(2)(a), 40C(2)(a)",").
    Page 78, line 24, after second ("or") insert ("paragraph 7(9)(a) or 8(8)(a) of Schedule 2 or").
    Page 78, line 33, at end insert—
    ("( ) in the definition of "attendance centre order", for "4(1)(c) or 5(1)(c)" there is substituted "4(1C)(c) or 5(1C)(c)",").
    Page 78, line 35, at end insert—
    ("( ) in the definition of "curfew order", after "59 above" there is inserted "or paragraph 6A of Schedule 3 to this Act" and after "section 59" (in the second place) there is inserted "or paragraph 4(1C)(a) of Schedule 3",").
    Page 78, line 35, at end insert—
    ("( ) in the definition of "community punishment order", for "4(1)(b) or 5(1)(b)" there is substituted "4(1C)(b) or 5(1C)(b)",").
    Page 79, line 12, leave out ("40A(13)") and insert ("40A(14)").
    Page 80, line 7, after ("after") insert (""testing").
    Page 80, leave out lines 11 to 23 and insert—
    ("( ) In paragraph 4—

    (a) in sub-paragraph (2), for "(1)(d)" there is substituted "(1C)(d)",

    (b) in sub-paragraph (3), for "sub-paragraph (1)(d)" there is substituted "sub-paragraph (1A) or (1C)(d)",

    (c) in sub-paragraph (4), for "(1)(a)" there is substituted "(1C)(a)",

    (d) in sub-paragraph (6), for "sub-paragraph (1)(d)" there is substituted "sub-paragraph (1A) or (1C)(d)".

    ( ) In paragraph 5—

    (a) in sub-paragraph (2), for "(1)(d)" there is substituted "(1C)(d)",

    (b) in sub-paragraph (3), for "sub-paragraph (1)(d)" there is substituted "sub-paragraph (1A) or (1C)(d)".

    ( ) After paragraph 6 there is inserted—
    "Curfew orders imposed for breach of relevant order
    6A. — (1) Section 37(1) of this Act (curfew orders) shall apply for the purposes of paragraphs 4(1C)(a) and 5(1C)(a) above as if for the words from the beginning to "make" there were substituted "Where a court has power to deal with an offender under Part II

    1669
    of Schedule 3 to this Act for failure to comply with any of the requirements of a relevant order, the court may make in respect of the offender".
    (2) In this paragraph—

    "secondary order" means a curfew order made by virtue of paragraph 4(1C)(a) or 5(1C)(a) above;

    "original order" means the relevant order the failure to comply with which led to the making of the secondary order.

    (3) A secondary order—

    (a) shall specify a period of not less than 14 nor more than 28 days for which the order is to be in force; and

    (b) may specify different places, or different periods (within the period for which the order is in force), for different days, but shall not specify periods which amount to less than two hours or more than twelve hours in any one day.

    (4) Part IV of this Act, except sections 35, 36, 37(3) and (4), 39 and 40(2)(a), has effect in relation to a secondary order as it has effect in relation to any other curfew order, but subject to the further modifications made below.
    (5) Section 37(9) applies as if the reference to an offender who on conviction is under 16 were a reference to a person who on the date when his failure to comply with the original order is proved to the court is under 16.
    (6) Paragraphs 2A, 4(1A) to (2) and 5(1A) to (2) above and 10 and 11 below apply as if, in respect of the period for which the secondary order is in force, the requirements of that order were requirements of the original order.
    But in paragraphs 4 and 5 above, sub-paragraph (1C)(c) applies as if references to the relevant order were to the original order or the secondary order.
    (7) In paragraphs 4 and 5 above, sub-paragraph (3) applies as if references to the relevant order were to the original order and the secondary order.
    (8) Paragraph 19(3) below applies as if the reference to six months from the date of the original order were a reference to 28 days from the date of the secondary order."
    ( ) In paragraph 7—

    (a) in sub-paragraph (1), for "4(1)(b) and 5(1)(b)" there is substituted "4(1C)(b) and 5(1C)(b)",

    (b) in sub-paragraph (2), for "4(1)(b) or 5(1)(b) above" there is substituted "4(1C)(b) or 5(1C)(b) and "original order" means the relevant order the failure to comply with which led to the making of the secondary order",

    (c) for sub-paragraphs (4) to (6) there is substituted—

    "(4) Part IV of this Act, except sections 35, 36, 46(3) and (8) and 48 to 50, has effect in relation to a secondary order as it has effect in relation to any other community punishment order, but subject to the further modifications made below.
    (5) Paragraphs 2A, 4(1A) to (3) and 5(1A) to (3) above and 10 and 11 below apply as if, in respect of the period for which the secondary order is in force, the requirements of that order were requirements of the original order.
    But in paragraphs 4 and 5 above, sub-paragraph (1C)(c) applies as if references to the relevant order were to the original order or the secondary order.
    (6) In paragraphs 4 and 5 above, sub-paragraph (3) applies as if references to the relevant order were to the original order and the secondary order.
    (7) Paragraph 19(3) below applies as if the reference to six months from the date of the original order were a reference to 28 days from the date of the secondary order.",.
    and for the cross-heading preceding the paragraph there is substituted "Community punishment orders imposed for breach of relevant order".
    ( ) In paragraph 8—

    (a) in sub-paragraph (1)—

    (i) for "4(1)(c) and 5(1)(c)" there is substituted "4(1C)(c) and 5(1C)(c)",

    (ii) for the words following "Where a court" there is substituted "has power to deal with an offender under Part II of Schedule 3 to this Act for failure to comply with any of the requirements of a relevant order, the court may",

    (b) in sub-paragraph (2)—

    (i) in paragraph (b), after "applicable" there is inserted "section 36B and",

    (ii) for "4(1)(c) or 5(1)(c)" there is substituted "4(1C)(c) or 5(1C)(c)",

    (c) in sub-paragraph (3), for "4(1)(c) or 5(1)(c)" there is substituted "4(1C)(c) or 5(1C)(c)".

    ( ) In paragraph 9—

    (a) in sub-paragraph (1), for "4(1)(a), (b) or (c) or 5(1)(a), (b) or (c)" there is substituted "4(1C)(a), (b) or (c) or 5(1C)(a), (b) or (c)",

    (b) sub-paragraph (2) is omitted,

    (c) in sub-paragraph (3), for "4(1)(d)" there is substituted "4(1C)(d)".").

    Page 80, line 24, leave out ("8(1),").
    Page 80, line 38, at end insert—
    ("( ) In paragraphs 16 and 21(7), for "4(1)(d)" there is substituted "4(1C)(d)".").
    Page 81, line 6, leave out from ("months") to ("from") in line 7.
    Page 81, line 11, leave out from beginning to ("from") in line 12.
    Page 81, line 12, at end insert—
    ("( ) in sub-paragraph (3), after "six months" there is inserted "(or, for an offender aged under 16 on conviction, three months)",").
    Page 81, line 17, after ("year") insert ("(or, for an offender aged under 16 on conviction, three months)").
    Page 81, line 48, leave out ("25(1)(a)") and insert ("25—
    (a) in sub-paragraph (1)(a),").
    Page 81, line 49, at end insert—
    ("(b) sub-paragraph (2) is omitted,
    (c) in sub-paragraph (3), "or (2)" is omitted.
    ( ) After paragraph 25 there is inserted—
    "26.—(1) On the making under this Part of this Schedule of an order amending a drug treatment and testing order, the proper officer of the court shall (subject to sub-paragraph (3) below) forthwith give copies of the amending order to the responsible officer.
    (2) In sub-paragraph (1) above, "proper officer" means—

    (a) in relation to a magistrates' court, the justices' chief executive for the court; and

    (b) in relation to the Crown Court, the appropriate officer.

    (3) Where—

    (a) a magistrates' court amends a drug treatment and testing order under this Part of this Schedule; and

    (b) the amending order provides for a magistrates' court other than that mentioned in paragraph (a) to be responsible for the order;

    the court amending the order shall not give copies of the amending order as mentioned in sub-paragraph (1) above but shall send copies to the court responsible for the order and the justices' chief executive for that court shall forthwith give copies of the amending order to the responsible officer.
    (4) A responsible officer to whom in accordance with sub-paragraph (1) or (3) above copies of an order are given shall give a copy to the offender and to the treatment provider."").
    Page 81, line 51, at end insert—
    (".— (1) Schedule 4 (transfer of certain community orders to Scotland or Northern Ireland) is amended as follows.
    (2) In paragraphs 1(3) and 2(3)—

    (a) in paragraph (c), for "probation committee" there is substituted "local board",

    (b) in paragraph (d), for "probation centre" there is substituted "community rehabilitation centre".

    (3) In paragraph 6—
    (a) in sub-paragraph (8), for the definition of "corresponding order" there is substituted—
    ""corresponding order"—

    (a) in relation to a community rehabilitation order, means a probation order;

    (b) in relation to a community punishment order, means a community service order; and

    (c) in relation to a community punishment and rehabilitation order—

    (i) if the offender resides in Scotland, or will be residing there at the relevant time, means a probation order including such a requirement as is mentioned in section 229(4) of the Criminal Procedure (Scotland) Act 1995; and

    (ii) if he resides in Northern Ireland, or will be residing there at the relevant time, means a combination order;",.

    (b) for the cross-heading preceding paragraph 6 there is substituted "Community rehabilitation, community punishment and community punishment and rehabilitation orders: general provisions".").
    Page 82, line 1, leave out first ("In").
    Page 82, line 1, after ("orders)") insert—
    ("is amended as follows.
    ( ) In paragraph 3—

    (a) in sub-paragraph (2)(b), for "sections 38" there is substituted "sections 36B",

    (b) in sub-paragraph (5)(a), for "4(1)(d)" there is substituted "4(1C)(d)".

    ( )").
    Page 82, line 6, leave out ("In").
    Page 82, line 7, after ("orders)") insert—
    ("is amended as follows.
    ( ) In paragraph 3—

    (a) in sub-paragraph (2)(b), for "sections 38" there is substituted "sections 36B",

    (b) in sub-paragraph (5)(a), for "4(1)(d)" there is substituted "4(1C)(d)".

    ( )").
    Page 82, line 11, after ("22,") insert ("34(a),").
    Page 82, line 17, at end insert—
    (". In Schedule 10 (transitory modifications), in paragraph 12(2)—

    (a) in paragraph (c), for "each of sub-paragraphs (1) and (2)" there is substituted "sub-paragraph (1)",

    (b) the "and" preceding paragraph (d) is omitted and after that paragraph there is inserted—

    "(e) in sub-paragraph (2)(a) of paragraph 26, for the words "justices' chief executive for the court" there were substituted "clerk to the court"; and

    (f) in sub-paragraph (3) of that paragraph, for the words "justices' chief executive for that court" there were substituted "clerk to that court".").

    Page 82, line 17, at end insert—

    Child Support, Pensions and Social Security Act 2000 (c. 19)
    . The Child Support, Pensions and Social Security Act 2000 is amended as follows.
    . In section 62 (loss of benefit for breach of community order)—

    (a) in subsection (8), in the definition of "relevant community order", for paragraphs (a) to (c) there is substituted—

    "(a) a community punishment order;

    (b) a community rehabilitation order;

    (c) a community punishment and rehabilitation order;"

    (b) for subsection (11)(c)(ii) there is substituted—

    "(ii) in the definition of "relevant community order", for paragraphs (a) to (e) substitute—

    "(a) a community service order:

    (b) a probation order;

    (c) such other description of order made under the Criminal Procedure (Scotland) Act 1995 as may be prescribed for the purposes of this section; or

    (d) any order falling in Scotland to be treated as an order specified in paragraphs (a) to (c)"."

    In section 64 (information provision)—

    (a) in subsection (2), for "Chief Probation Officer for any area in England and Wales" there is substituted "chief officer of a local board",

    (b) in subsections (2)(a) and (7)(c), for "a person employed or appointed by a probation committee" there is substituted "an officer of a local board",

    (c) at the end of subsection (10) there is inserted "and "local board" means a local board established under section 4 of the Criminal Justice and Court Services Act 2000".").

    Page 82, line 17, at end insert—

    Learning and Skills Act 2000 (c. 21)
    . The Learning and Skills Act 2000 is amended as follows.
    . In sections 115(1)(e) (consultation and co-ordination) and 120(2)(e) (information: supply by public bodies), for "probation committee" there is substituted "local board".
    . In section 121(1) (supplementary), after the definition of "local authority" there is inserted—
    ""local board" means a board established under section 4 of the Criminal Justice and Court Services Act 2000,"
    and the definition of "probation committee" is omitted.").
    Page 82, line 17, at end insert—
    ("Regulation of Investigatory Powers Act 2000 (c. 23)
    . In section 81(3)(a) of the Regulation of Investigatory Powers Act 2000 (general interpretation), after "twenty-one" there is inserted "(eighteen in relation to England and Wales)".").
    The noble Lord said: I have already spoken to the generality of these amendments. I beg to move Amendments Nos. 189 to 255 en bloc.
    On Question, amendments agreed to.
    Schedule 6, as amended, agreed to.
    Clause 66 agreed to.
    Schedule 7 [Repeals]:
    Lord Bach Lord Bach moved Amendments Nos. 256 to 308:

    Page 82, line 20, at end insert—

    ("1948 c. 58.

    Criminal Justice Act 1948

    In section 27, in subsection (1), the words from "then, if the court" to "not been so notified", and subsection (2).")

    Page 82, line 20, at end insert—

    ("1948 c. 58.

    Criminal Justice Act 1948.

    In section 39(3), "or remand centre".

    In section 80(1), the definitions of "local authority" and "remand centre".")

    Page 82, line 20, at end insert—

    ("1952 c. 52.

    Prison Act 1952.

    In section 37(4), "remand centre". In section 43, subsection (l)(a), in subsection (2), in paragraph (a) "a remand centre or" and paragraphs (b) and (c), subsection (3), in subsection (4), "remand centres" and subsection (7). In section 47, in subsection (1), "remand centres" and, in subsection (5), "remand centre".")

    Page 82, line 20, at end insert—

    ("1955 c. 18.

    Army Act 1955.

    In section 71 A, subsections (1A) to (1C), in subsection (1D), paragraph (b) and the "and" preceding it, in subsection (1E), paragraph (b) and the "or" preceding it and, in subsection (5), "custody for life or" and "and to a sentence of custody for life".

    In section 71AA(1AA), "aged 17".

    In section 71AB(1), paragraph (b) and the "or" preceding it.

    In Schedule 5A, in paragraph 10(1A), "under 18 years of age" and, in paragraph 15(3), in the second column of the table, "Custody for life".")

    Page 82, line 20, at end insert—

    ("1955 c. 19.

    Air Force Act 1955.

    In section 71A, subsections (1A) to (1C), in subsection (1D), paragraph (b) and the "and" preceding it, in subsection (1E), paragraph (b) and the "or" preceding it and, in subsection (5), "custody for life or" and "and to a

    sentence of custody for life".

    In section 71AA(1AA), "aged 17".In section 71AB(1), paragraph (b) and the "or" preceding it.

    In Schedule 5A, in paragraph 10(1A), "under 18 years of age" and, in paragraph 15(3), in the second column of the table, "Custody for life".")

    Page 82, line 20, at end insert—

    ("1957 c. 53.

    Naval Discipline Act 1957.

    In section 43A, subsections (1A) to (1C), in subsection (1D), paragraph (b) and the "and" preceding it, in ● subsection (1E), paragraph (b) and the "or" preceding it and, in subsection (5), "custody for life or" and "and to a sentence of custody for life".

    In section 43AA(1AA), "aged 17".

    In section 43AB(1), paragraph (b) and the "or" preceding it.

    In Schedule 4A, in paragraph 10(1A), "under 18 years of age" and, in paragraph 15(3), in the second column of the table, "Custody for life".")

    Page 82, line 20, at end insert—

    ("1959 c. 45.

    Metropolitan

    Section 3.

    Magistrates' Courts Act 1959.

    In section 4(2), "of the probation system within the inner London probation area".")

    Page 82, line 20, at end insert—

    ("1967 c. 80.

    Criminal Justice Act 1967.

    In section 67(6), "to a remand centre or".")

    Page 82, line 20, at end insert—

    ("1968 c. 27.

    Firearms Act 1968.

    In section 52(1)(a), "in a young offender institution or".")

    Page 82, line 20, at end insert—

    ("1969 c. 54.

    Children and Young Persons Act 1969.

    In section 23 (as it has effect pursuant to section 98(2) of the Crime and

    Disorder Act 1998), in subsection (1), "a remand centre or", subsection (4)(b), in subsection (5), "remand centre or" and, in subsection (5A), "a remand centre or".")

    Page 82, line 20, at end insert—

    ("1969 c. 54.

    Children and Young Persons Act 1969.

    In section 46(1), "within the meaning of the Probation Service Act 1993".")

    Page 82, line 20, at end insert—

    ("1969 c. 54.

    Children and Young Persons Act 1969.

    In Schedule 3, in paragraph 9(2)(a), "or".")

    Page 82, line 20, at end insert—

    ("1971 c. 40.

    Fire Precautions Act 1971.

    In section 40(2)(a), "remand centre".")

    ●

    Page 82, line 20, at end insert—

    ("1972 c. 70.

    Local Government Act 1972.

    In Part I of Schedule 12A, in paragraph 2(a), "or".")

    Page 82, line 20, at end insert—

    ("1974 c. 23.

    Juries Act 1974.

    In Schedule 1, in Part I, in Group B, in the entry for the warden and staff of a probation hostel or bail hostel, "(within the meaning of the Probation Service Act 1993)".")

    Page 82, leave out lines 25 and 26.

    Page 82, line 26, at end insert—

    ("1980 c. 43.

    Magistrates' Courts Act 1980.

    In section 11(3), "or detention in a detention centre".

    In section 31, in subsections (1) and (2), "or youth custody".

    In section 77(2), "or detention under section 108 of the Powers of Criminal Courts (Sentencing) Act 2000 (detention of persons aged 18 to 20 for default)".

    In section 82(1)(c), "youth custody or detention in a detention centre". Section 96A.

    In section 133, in subsection (1), the first, second and fourth mentions of "or youth custody" and subsection (2A).

    Section 135(3).

    Section 136(4).")

    Page 82, line 26, at end insert—

    ("1980 c. 43.

    Magistrates' Courts Act 1980.

    Section 72.")

    Page 82, line 26, at end insert—

    ("1980 c. 43.

    Magistrates' Courts Act 1980.

    In Schedule 6A, the entry relating to Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000.")

    Page 82, line 26, at end insert—

    ("1980 c. 57.

    Imprisonment (Temporary Provisions) Act 1980.

    In section 6, in subsections (1) and (2), "remand centre".")

    Page 82, line 26, at end insert—

    ("1983 c. 20.

    Mental Health Act 1983.

    In section 48(2)(a), "or remand centre".")

    Page 82, line 29, at end insert—

    ("1988 c. 33.

    Criminal Justice Act 1988.

    In section 75(3), "or of detention under section 108 of that Act of 2000 (detention of persons aged 17 to 20 for contempt)".")

    Page 82, line 29, at end insert—

    ("1988 c. 34.

    Legal Aid Act 1988.

    In section 21(11), "or a remand centre".")

    Page 82, line 29, at end insert—

    ("1988 c. 52.

    Road Traffic Act 1988.

    Section 105(2)(b).")

    Page 82, line 35, column 3, at end insert—

    ("In section 58(4)(a), "or".")

    Page 82, line 40, column 3, at end insert—

    ("In Schedule 18, paragraph 25(4)(b).")

    Page 82, line 40, at end insert—

    ("1991 c. 25

    Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.

    In Schedule 1, in paragraph 4(1), paragraph (c) and the "or" preceding it.")

    Page 82, line 40, at end insert—

    ("1991 c. 53.

    Criminal Justice Act 1991.

    Section 37A(7).")

    Page 82, line 40, at end insert—

    ("1991 c. 53.

    Criminal Justice Act 1991.

    In section 45(1), "or to be detained under section 108 of the Powers of Criminal Courts (Sentencing) Act 2000".

    Section 68(b).

    In section 92(1), in

    the definition of "prison", "or remand centre".

    In Schedule 8, paragraph 2.

    In Schedule 12, in paragraphs 15(4) and 16(3), "remand centre or".")

    Page 82, line 40, at end insert—

    ("1991 c. 53.

    Criminal Justice Act 1991.

    In Schedule 8, paragraph 6(3).")

    Page 82, line 40, at end insert—

    ("1992 c. 14.

    Local Government Finance Act 1992.

    In Schedule 1, in paragraph 1(4), "or section 108 of the Powers of Criminal Courts (Sentencing) Act 2000".")

    Page 82, line 42, at end insert—

    ("1994 c. 19.

    Local Government (Wales) Act 1994.

    In Schedule 16, paragraph 109.")

    Page 82, line 42, at end insert—

    ("1994 c. 33.

    Criminal Justice and Public Order Act 1994.

    In section 117(3)(a), "and a remand centre".

    In section 125(3)(a), "remand centre or".")

    Page 82, line 42, at end insert—

    ("1994 c. 33.

    Criminal Justice and Public Order Act 1994.

    In Schedule 10, paragraphs 72 and 73.")

    c

    Page 82, line 42, at end insert—

    ("1994 c. 37.

    Drug Trafficking Act 1994.

    In section 9, in subsection (2), "or of detention under section 108 of the 2000 Act (detention of persons aged 18 to 20 for default)" and, in subsection (5), "or detention".

    In section 10(2), "or detention".

    In section 15(13), "or of detention".

    In section 16(4)(b), "or detention".

    In section 17(4)(b), "or of detention".

    In section 2l(5)(a), "or of detention".

    In section 41(7), "or detention".")

    Page 82, line 42, at end insert—

    ("1996 c. 33.

    Prisoners' Earnings Act 1996.

    In section 4(2), in the definition of "prisoner", "or remand centre".")

    Page 82, line 47, at end insert—

    ("1998 c. 37.

    Crime and Disorder Act 1998.

    In Schedule 8, paragraph 110.")

    Page 83, line 3, at end insert—

    ("1999 c. 22.

    Access to Justice Act 1999.

    In Schedule 10, paragraph 17.")

    Page 83, line 3, at end insert—

    ("1999 c. 22.

    Access to Justice Act 1999.

    In Schedule 10, paragraphs 41 to 45.

    In Schedule 11, paragraph 42.")

    Page 83, line 3, at end insert—

    ("1999 c. 22.

    Access to Justice Act 1999.

    In Schedule 11, paragraph 15.")

    Page 83, line 16, column 3, at end insert—

    ("In section 76(1), paragraphs (c) and (d).

    In section 78, in subsections (1) and (2), "or detention in a young offender institution".

    In section 87(12), paragraph (b) and the preceding "and".

    Sections 93 to 98.

    Section 99(2).

    In section 106, subsection (1) and, in subsection (3), the words from the beginning to "and".

    Section 108.

    Section 110(6).

    Section 111(6).")

    Page 83, line 16, column 3, at end insert—

    ("Section 137(2)(a).")

    Page 83, line 16, column 3, at end insert—

    ("In section 139, in subsection (2), "or of detention under section 108 above (detention of persons aged 18 to 20 for default)", in subsection (3), "or detained", in subsection (3)(c), "custody for life or detention in a young offender institution", in subsection (4), "or detention" and, in subsection (5), the second "or detention".

    In section 140(3), "or detention under section 108 above".")

    Page 83, line 20, column 3, at end insert—

    ("In Schedule 3, in paragraph 25, sub-paragraph (2) and, in sub-paragraph (3), "or (2)".")

    Page 83, line 20, column 3, at end insert—

    ("In Schedule 7, in paragraph 7(7), paragraph (a) and, in paragraph (b), "if the justice or youth court has not been so notified".")

    Page 83, line 20, column 3, at end insert—

    ("In Schedule 8, in paragraph 6(7), paragraph (a) and, in paragraph (b), "if it has not been so notified".")

    Page 83, line 21, column 3, at end insert ("5(3), 9, 10, 12, 14, 15, 17, 19, 20, 22,").
    Page 83, line 21, column 3, at end insert ("34(a),").
    Page 83, line 22, column 3, leave out ("50(3),").
    Page 83, line 22, column 3, after ("50(3),") insert ("56, 57, 66, 68, 70, 77, 78, 111(4), 143(b), 152 to 156, 166(3),").
    Page 83, line 22, column 3, leave out ("and 188") and insert (", in paragraph 183, sub-paragraph (2)(b) and the preceding "and", sub-paragraphs (3)(b) and (3)(c) and paragraph 188").

    Page 83, line 22, column 3, at end insert—

    ("In Schedule 10, in paragraph 12(2), the "and" preceding paragraph (d).")

    Page 83, line 22. at end insert—

    ("2000 c. 21.

    Learning and Skills Act 2000.

    In section 121(1), the definition of "probation committee".")

    The noble Lord said: This group of amendments repeals sections of other enactments which are redundant as a result of this Bill. I beg to move Amendments Nos. 256 to 308 en bloc.
    On Question, amendments agreed to.
    Schedule 7, as amended, agreed to.
    Clauses 67 and 68 agreed to.
    Clause 69 [General interpretation]:
    Lord Bach Lord Bach moved Amendments Nos. 309 and 310:
    Page 44, leave out line 13.
    Page 44, line 15, at end insert—
    (""subordinate legislation" has the same meaning as in the Interpretation Act 1978.
    ( ) In this Act, "enactment" means an enactment whenever passed or made; but in this Part it means—

    (a) an Act passed before, or in the same Session as, this Act, and

    (b) subordinate legislation made before the passing of this Act.").

    The noble Lord said: These are drafting amendments which have the effect of changing the meaning of the term "enactment" in the Bill. For all parts of the Bill other than Part IV, the amendment has
    1680
    the effect of extending references to the term "enactment" to include enactments passed after the Bill becomes law. The use of the term in Part IV of the Bill is restricted to Acts passed before or in the same Session as the Bill and to subordinate legislation made before the passing of the Bill.
    This amendment is being made to ensure that those provisions in the Bill which change the names of community orders, probation orders, officers etc. in other enactments are effective in relation to all enactments whenever they are passed. I beg to move.
    On Question, amendments agreed to.
    Clause 69, as amended, agreed to.
    Clauses 70 and 71 agreed to.
    Clause 72 [Extent]:
    Lord Bach Lord Bach moved Amendments Nos. 311 to 314:
    Page 44, line 38, after ("124") and insert ("to 127, 130 and 131").
    Page 44, line 41, at end insert—
    ("( ) section (Amendments of the Sex Offenders Act 1997) and Schedule (Amendments of the Sex Offenders Act 1997),").
    Page 45, line 1, at end insert—
    ("( ) paragraphs 17 and 19 of Schedule 2").
    Page 45, line 5, leave out ("and 34") and insert (", 34 and (Indecent photographs of children: increase of maximum penalties)").
    The noble Lord said: Clause 72 deals with extent. In general the Act will extend only to England and Wales, as subsection (1) provides. However, there are a number of exceptions to this, listed in subsections (2), (3) and (4). Subsection (2), for example, provides for certain aspects of the Bill to extend to the UK as a whole, notably for the purposes of courts-martial.
    Amendment No. 311 relates to Clause 72(2)(b), which extends the new tariff-setting provisions to the whole of the United Kingdom for the purposes of courts-martial. This amendment tidies up the provision made for the consequential amendments to the Crime (Sentences) Act 1997.
    Amendment No. 312 extends the amendments to the Sex Offenders Act to Northern Ireland as well as England and Wales. Amendment No. 313 extends the amendments of the Parliamentary Commissioner Act 1967 and the House of Commons Disqualification Act 1975 to the whole of the United Kingdom, which is consistent with their present extent.
    Amendment No. 314 extends the increased penalties for possession of indecent photographs of children to Northern Ireland as well as to England and Wales. I beg to move.
    On Question, amendments agreed to.
    Clause 72, as amended, agreed to.
    Remaining clause agreed to.
    House resumed: Bill reported with amendments.
    House adjourned at thirteen minutes before midnight.