HL Deb 11 November 2003 vol 654 cc1234-319

4.7 p.m.

Lord Bassam of Brighton

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Bassam of Brighton)

On Question, Motion agreed to.

Clause 247 [Determination of minimum term in relation to mandatory life sentence]:

Baroness Anelay of St Johnsmoved Amendment No. 225: Page 142, line 31, at end insert—

(7) This section does not apply if the offender was under 18 when he committed the offence."

The noble Baroness said: My Lords, in moving Amendment No. 225, I shall speak also to Amendment No. 237, which is consequential to Amendment No. 225. The purpose of the amendment is to remove juvenile offenders found guilty of murder from the sentencing framework proposed in Schedule 19; that is, those offenders who were under the age of 18 when they committed the offence. The determination of the minimum term to be served in such cases would then be a matter for judicial discretion.

The Children's Society has no doubt briefed other noble Lords as well as myself on the matter. In another place, my right honourable friend Oliver Letwin and his colleagues made it clear in their debates on the Bill that we object in the strongest terms to the inclusion of young people under 18 years old in Schedule 19. When we debated the issue in Committee, the Minister said that she thought it necessary and desirable to include young persons in the provisions. We disagreed then and we disagree now. She said: It is very rare for murders to be committed by very young juveniles".—[Official Report, 14/10/03; col. 870.]

She is right and that is, mercifully, true.

The Minister argued that it was not right to have a substantial disconnection around the age of majority and that she would be worried if the new principles were seen to apply to an immature 18 year-old and not to a 17 year-old. However, we argue that it is right to follow the current legal definition of a child enshrined in the Children Act 1989 and the UNCRC. In respect of these provisions, it is therefore appropriate for a cut-off to be at 18 years old.

In Committee, the Minister raised a valid point when she said that my amendment would leave young people without any right to receive judicially determined tariffs because the Bill repeals Section 82 of the Powers of Criminal Courts (Sentencing) Act 2000. The Children's Society suggested a solution, which is in the form of my Amendment No. 237. Section 60(1) of the Criminal Justice and Court Services Act 2000 inserted Section 82A into the Powers of Criminal Courts (Sentencing) Act 2000.

The section applies when a court passes a life sentence that is not fixed by law or where the offender is under 18 years old when he or she committed the offence requiring the sentencing court to specify the period that should be served. This section is repealed in Schedule 28, paragraph 98 of the Bill. Amendment No. 237 would, therefore, delete paragraph 98(2).

This amendment would work; it would not remove the mandatory life sentence for minors who are found guilty of murder—life sentence should still follow. It would preserve the current position whereby the trial judge fixes the minimum period to be served. It should always be remembered, as in every case, that the minimum period is not necessarily the maximum period that will in fact be served.

The Minister undertook to consider the House's view before we reached Report, although she made it clear that she thought it was unlikely that the Government would wish to remove juveniles altogether from the framework on murder. I very much hope that she will be able to say today that the Government have reflected further on the representations that have been made and that they will either accept my amendment as it stands or say that they have decided to bring forward their own similar amendments on Third Reading. I beg to move.

Baroness Walmsley

My Lords, I support this amendment on behalf of these Benches. I remain convinced, despite our discussion in Committee, that the discretion of the trial judge to set the minimum custodial sentence before the offender's case can be considered for early release should be retained. It is worth emphasising that we want only to ensure that early release can be considered at a point to be determined by the judge. There would, of course, be no guarantee that early release would be recommended.

In responding to our concerns that the welfare of the child principle is not being upheld by this part of the Bill, and on other occasions, the Minister has pointed out that there are times when the protection of the public should come first. That may well be so, but that is the job of the parole board—to consider the matter of dangerousness at a certain point in time and regularly thereafter. If there was still a risk to the public, early release would certainly not be given. Therefore, I do not believe that the Minister's argument in Committee can apply.

The proposed starting point of 15 years would mean that children sentenced for murder would be held well beyond the point at which they cease to be dangerous. Therefore, this measure does not comply with our obligations under the UN Convention on the Rights of the Child. As the Minister conceded in Committee, murders committed by minors are rare and do not fall into a pattern. All the more reason, therefore, that judges who have had many years in courts assessing the special circumstances of hundreds of cases should retain the discretion they currently have.

The noble Baroness, Lady Anelay, mentioned the cut-off point of 18; the Minister had said that it was arbitrary. Given that some young teenagers are remarkably mature and some older teenagers remarkably immature, that could also be said of adults. It is really rather a good argument for deleting the new principles altogether—for adults, too. Taking the argument to its logical conclusion, perhaps we should have no legal cut-offs at all, because there will always be someone who will fall just outside them.

I remind your Lordships' House of our obligations under the UN Convention on the Rights of the Child, which are to have a separate system for dealing with children in trouble with the law, ensuring that the best interests of the child are a primary consideration and that custody should be a last resort and for the minimum necessary amount of time. These measures contravene all those factors, for the reasons I have just mentioned.

The welfare principle has been emphasised by the noble and learned Lord, Lord Browne-Wilkinson, in the Venables and Thompson case. He said, the judge is bound by Section 44(1) of the Children and Young Persons Act 1933. Therefore in imposing such a tariff he must take into account the need for flexibility in the treatment of a child and, in so doing, will set the minimum tariff so as to ensure that at the earliest possible moment the matter comes under the consideration of the Parole Board". The Sentencing Advisory Panel and the Court of Appeal practice statement both indicate that what the Government are doing in this clause is wrong. Indeed, the joint effect of the provisions of the Criminal Justice and Court Services Act 2000 and the new statutory minimum would be such that the consideration of welfare would be well nigh impossible.

As my noble friend Lord Thomas of Gresford reminded us in Committee, the effect of this and other measures will be to ratchet up sentences and to put the courts into a straitjacket. The Minister's comments in reply lead me to think that she believes the public are clamouring for this. I do not believe that is the case at all. The public well understand the need for proper punishment for serious crimes and the protection of innocent people. However, they also understand the nature of children, the impact of their immaturity and life experience on their behaviour and the need to treat them differently from adults. This clause does not do that, and I strongly urge the Minister to listen to the concern of the House, the judiciary and children's organisations about this. I strongly support the amendment of the noble Baroness, Lady Anelay.

4.15 p.m.

Baroness Mallalieu

My Lords, I should like to add my voice to this debate: My perspective is slightly different. I did not intervene on this matter in Committee, and I wonder if I might briefly do so now.

I have had the privilege of representing a number of children who have been accused of murder and, on occasions, have subsequently been convicted. It has been my experience that in some cases, a remarkable change has already occurred by the time the trial takes place. The child has been in secure accommodation and has, in some cases, received attention which was much needed and brought about very rapid change.

I should like to give an illustration. I once represented a boy, aged 16, who was subsequently convicted of not one but two murders. Having spent nearly a year in secure accommodation, he came to his trial with such determination to better himself that he had become interested in subjects which had occupied none of his time before—he had been a truant. Arrangements were made so that his trial was delayed each morning so that he could take his GCE examinations, which he was passionate to do, and which he passed. He is now in the process of serving his sentence.

Given that children often undergo a remarkable change when they receive treatment and attention which may have been desperately needed before, it seems to be a major mistake to abandon flexibility within the system. There may be rare cases in which this would be necessary or valuable, but we should not lose the flexibility; I am therefore very concerned about the application of Clause 247 to children. I hope that the Minister will adopt one of the two courses that has been urged on her by the noble Baroness, Lady Anelay.

Lord Carlisle of Bucklow

My Lords, I strongly support my noble friend Lady Anelay and agree with every word that the noble Baroness, Lady Mallalieu, has said. Like her, I have also defended people under the age of 18 who have been charged with murder, and I share the views that she has expressed.

Serious and grave as the offence of murder is, it seems horrific that the judge should start with what effectively is a minimum of 15 years in prison for a person of 16 or 17, without the opportunity for that child, who will mature and change over the years, to be released at an earlier stage. Had we on this side of the House introduced this measure, I wonder what the Minister would have said about it.

Let me make it clear that I do not like Schedule 19, and I hope one will have the opportunity to debate it under the amendments of the noble and learned Lord, Lord Ackner. We are talking about using any of its schedules and applying them to immature young people of 16 or 17. In the two cases I can think of, one was clearly a bag snatch which went wrong, and the other a fight in a school playground. Are we really saying that for people who are convicted of murder in those circumstances—whatever may have happened to them since they committed the offence, however appalled they are about what they have done—the judge should be required to consider 15 years as the appropriate time? It is not a 15-year sentence, because 15 years is the equivalent of a 22-year sentence, but it will be 15 years before they can be released. Like the noble Baroness, Lady Mallalieu, I hope the Minister will think again about this and accept at least that this schedule should not apply to those under 18.

Baroness Stern

My Lords, my name is on Amendment No. 225, and I also support Amendment No. 237. The arguments have been very well put around the House, and I will be brief.

I emphasise that the UK Government have signed up to a range of international instruments about the rights of the child. Those were not forced on us; we signed them willingly. They are all based on certain principles—that children are not adults, that children must be treated differently from adults, and that the measures taken must be in the best interests of the child. Although society must be protected from children who are genuinely dangerous, children, whatever they have done, must be protected by society.

The proposed starting point of a sentence of 15 years for a child convicted of murder is in that context unacceptable. When an important country such as the United Kingdom allows itself to weaken the commitment to international instruments of such importance as the Convention on the Rights of the Child, other countries think that they can get away with that as well. We are setting a very bad example.

I do not find the arguments advanced in Committee by the noble Baroness, as compelling as she normally is, totally convincing. She said that such cases were very rare, which is the case. That suggests that an individual response to each case is appropriate, rather than the approach taken in the Bill. She also cited the possibility of inequity if an immature 18 year-old is subject to the provisions and a mature 17 year-old is not. That is an argument not for including children in the scheme, but against the whole scheme.

I very much hope that the Minister will be able to bring some satisfaction to a number of us by reporting on the review of principles in relation to juveniles that she promised in Committee, and agreeing that this measure is a step too far.

Earl Russell

My Lords, I made a very brief contribution on the sentencing part of the Bill in Committee, to which the Minister made a very generous and warm-hearted reply. Her defence was that she stood for consistency. That is a perfectly good argument; consistency is indeed a virtue. However, the question that must arise is, "Consistency in what?". Consistency as at present applied in the Home Office must necessarily consist of what can be put down on paper and measured.

It is interesting to compare that with the approach of the 17th-century court to consistency. It, too, believed in consistency, according to whether the prisoner showed remorse, whether the crime had been carefully premeditated, and in particular whether it was conducted selfishly for profit or was the result of the mood of the moment—whether the person intended to produce the result that they did. Those are perfectly valid considerations, but they cannot be judged without observing the demeanour of the witness. Indeed, it is difficult even to judge them by reading the transcript. They are questions of consistency that must of necessity fall to the trial judge.

What I cannot see is why one type of consistency— measurable, quantifiable thought—should be sacrosanct and the other sort of consistency totally ignored. If we want to be consistent, we must try in each case before us to strike the balance between the two types of consistency.

A case occurs to me. I admit that it is fictional, but it could perfectly well have happened. Let us suppose that, on the Channel Islands in 1940, a boy of 12 observed the invading Germans open his garden gate and march up his front path. He took his father's shotgun off the wall and fired, killing one of them. The Germans marched straight into the house, seized his father and shot him dead. The remorse that that boy would have felt would last the rest of his life. It is not consistent to treat that entirely on a level with a premeditated criminal who steals habitually for profit.

If we want consistency, we have to hear the evidence of the trial as well as the quantifiable statistics. That is much more difficult to do with children than with adults, because children are much more likely to perform certain unpremeditated action without full understanding of its consequences. That is a very strong argument for accepting the amendments.

The Earl of Listowel

My Lords, I strongly support the amendments. I want to clarify a point where there may be slight confusion. I am sure that the Minister will clarify that the Government do not seek to impose a minimum sentence for children. The provision is a minimum starting point, and it will be made clear that if the judge deems it suitable to have a minimum sentence of zero, that would be the case.

What has been the custom in the past is that the minimum starting point is discussed. Then the Lord Chief Justice advises in his practice statement that the minimum starting point, in this case for children who murder, is a certain number of years. Recently, the decision was that that should be 12 years. The Government propose 15 years, which is three years extra to the minimum starting point. My concern is that, as a result of what the Government propose, we will hold children and young people in custody for longer and long past the time when they are safe to return to the public domain.

I should briefly like to remind the House of the situation of such children. As many noble Lords have said, although the children have done terrible things they are also often very vulnerable. In Young and Dangerous, the research of Professor Boswell in 1996, she looked at a third of the children in custody for serious offences or murder. She found that 72 per cent of the children had been abused. That evidence was corroborated by at least one practitioner working with the children, and she felt very strongly that it was an underestimate of the number of children abused. Half the children in the juvenile establishment have been in care or in contact with social services. The rates of mental disorder are far higher than in the general population. Some 45 per cent of children in care have mental disorders, which is four times the average, and 90 per cent of children in residential accommodation in children's homes have mental disorders.

I do not wish to tire the House any further, but when we talk about Sure Start and the Green Paper. Every Child Matters, we are thinking about changing the culture and making this country a better place for children and families. I fail to see how being tougher on children—even children who commit the most terrible crimes, given that they often have horrible and horrific starting points in their lives—fits with the direction of improving the conditions for our most vulnerable families and children. If one looks again at the longitudinal research, one sees that such children come from the poorest and largest families with a history of family breakdown and punishment within the family, where the child cannot regularly predict what the parent will do in response to its behaviour.

I look forward to the Minister's response. She always tries to be as helpful as possible. With her long experience of work in the area, I am sure that her response will be well worth listening to.

Lord Thomas of Gresford

My Lords, it is my experience that children who commit crimes of serious violence are damaged children. That encompasses everything that the noble Earl said a moment ago. In this country, it is part of our society that we bend all our agencies in an attempt to help children to get over the disadvantages of their background, their lack of education, the housing from which they come, the bad parenting, and all other factors that have caused them to be damaged. However, we then come to adulthood, which we generally place around or about the age of 18, when we have to say to offenders, "I'm sorry. We appreciate that you have come from a terrible background and that you are a damaged person, but society can no longer function if we do not treat you as a person entirely responsible for your actions". It is at that point that the division is generally and should be made. The drawback of the Bill is that it does not seek to draw any distinction between children and adults in Schedule 19, which I shall criticise later for other reasons. Therefore, I entirely support the amendment.

4.30 p.m.

Lord Donaldson of Lymington

My Lords, I shall make two points, rather different in character. First, when I was a Queen's Bench judge, dealing not particularly with murder, but with a range of offences, I came to the conclusion, rightly or wrongly, that the magic age was approximately 24. Before that age, there was a real chance of reformation; after it, it became much more doubtful. Of course, I do not suggest that that is a precise cut-off point, but it is an important point.

My second point is unrelated. It concerns me in relation to the whole of Schedule 19 and its effect on children. Judges take an oath to do justice to all men: "I agree according to law and the customs and usages of the realm". However, if a judge is faced with a situation in which the law requires him to do injustice, or injustice as he sees it, he has a very real problem. I suspect that in most cases he will say to himself, "Well, I am not prepared to do this, so I will now spend a lot of time deciding how I can make it look respectable not to do it". The judge may then turn round and cite "the age of the offender" or "the mental condition of the offender". In other words, he will start not, as the Government would expect, from the provisions of the schedule, but from what is in his view a just result.

Having started from that point, he will try to see how he can bend the various provisions of the statute overtly to justify it, although that will not be his personal justification. That is not a satisfactory situation. If one is going to give judges the authority that they have always had and expect them to do justice in individual cases, according to what they see before them and the evidence they hear, one must let them have discretion. Otherwise, one will either slowly erode their passion for justice or erode the effect of the law. I hope that the latter will be the case.

Lord Ackner

My Lords, this is yet another case which is covered by the memorandum which the Lord Chief Justice filed in the Library as representing his views and the views of the judges sitting in the Court of Appeal Criminal Division. I shall not take up your Lordships' time in reading it all out. I shall content myself merely with drawing attention to paragraph 62 on page 19, in which the Lord Chief Justice states: Many of those involved, if not all, come from a disadvantaged background. Those who have responsibility for their upbringing after they are sentenced usually do a most remarkable job of bringing up these youngsters and they can be transformed in consequence". I suggest that in any case involving a child the ability to have the maximum flexibility in the treatment of that child is absolutely essential.

Lord Clinton-Davis

My Lords, I support the view that judges should be able to exercise discretion. The onus falls heavily on my noble friend the Minister to aver that I am wrong. She has said that the cases that we have to consider are rare. That argument goes against her rather than for her. If they are rare, the judge should be able to exercise discretion rather than not. We have heard a raft of opinions expressed against her proposition. Who supports her proposition? Anybody at all? I may be wrong, but I would be very surprised if anybody were to come to her aid, apart from officials in the Home Office, who, I am sure, are exercising a benign influence on her.

I do not usually vote against my own government, but certain aspects of the Bill are unacceptable and this schedule is one of them. I am not sure that I shall vote against the Government, but I shall at least abstain. My noble friend may be able to persuade me that I am utterly wrong, but I doubt it. I am a great fan of hers and usually—but not always—take her advice, but I will be surprised if I do so on this occasion.

Baroness Scotland of Asthal

My Lords, my noble friend has thrown down the gauntlet and I am anxious to take it up. I empathise with all that has been said about the rarity and the difficulty of seeking to sentence juveniles.

I should point out to my noble friend Lady Mallalieu and the noble Lord, Lord Carlisle of Bucklow, that I too have had the privilege of representing children of tender years who have been in the tragic situation of having committed heinous offences, not least of which being murder. From practical experience, I recognise, as has been pointed out by my noble friend Lady Mallalieu, the noble and learned Lord, Lord Donaldson, and the noble Lords, Lord Carlisle and Lord Thomas of Gresford, that there can on occasion be dramatic changes in the nature of the child's behaviour.

However, I also recognise that there has to be a framework within which such decisions are made. I fully understand the purpose of the amendment moved so eloquently by the noble Baroness, Lady Anelay, and supported with such warmth by the noble Baroness, Lady Walmsley. It seeks to cure the flaw in the previous amendment and direct attention to the problem with the proposed amendment. It provides for juveniles to retain judicial tariff setting by retaining the current tariff-setting provisions for juveniles under the Powers of Criminal Courts (Sentencing) Act 2000. I reassure noble Lords that we have given the most anxious and careful consideration to whether it would be right and proper to remove juveniles from those provisions. We have concluded that it is essential for juvenile murderers to have minimum terms set according to those principles.

I want to make one issue absolutely clear. My noble friend Lord Clinton-Davis says that the judge must have discretion and I do not argue with him. The view was echoed by the noble and learned Lords, Lord Donaldson and Lord Ackner, both of whom have great experience of exercising that judicial discretion. Schedule 19 preserves judicial discretion. It is often forgotten, so it is important to recite it, that paragraph 8 of Schedule 19, in dealing with the aggravating and mitigating factors, states: Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order". So there, enshrined in the schedule—preserved—is the exercise of judicial discretion.

We therefore start with 15 years, but that is not where the judge, in exercising his discretion, may end. I also say to the noble and learned Lord, Lord Donaldson, that this is not a distortion of the judge's exercise of discretion. If one looks at the mitigating and aggravating features, one sees that those are all issues which a court should properly take into account when exercising its discretion and in seeking to do justice not only to the defendant but also to the victims and their families who have suffered and suffered grievously.

I say, too, that it is also important for the victims and their families to understand the basis upon which the court came to its decision. My noble friend Lord Clinton-Davis asked: who supports this provision? If one has had the privilege that I have had in talking to many of the families of the bereaved, one realises that they want to understand the system. It humbles one that they do not often seek vengeance, but what they do seek is an understanding of why the life of their loved one—often their child—was taken and why the court imposed that sentence upon the perpetrator.

These provisions enable the court to explain why and how the court came to that decision. I do not believe that that task is beyond our judiciary because it is a task that many of our judges have undertaken and discharged with great distinction for many years. Some of the best judges in this country make those decisions in a way that all who listen do understand. That is what these provisions achieve. They do not set a straitjacket. They do not say to the judge, "You must impose this". They set a framework within which the judges should work better to explain the decisions they make. I make that as a first point.

I do not apologise for reiterating some of the points I have made because I need to respond to what was said by the noble Baronesses, Lady Anelay and Lady Walmsley. I hope that they will try, as did I, to listen to the points that are made. I cannot stress sufficiently the importance of the figures. As a number of noble Lords have said, cases of murder by very young juveniles are extremely rare, with only one case on average every five to 10 years. Figures kept since 1998 indicate that since then 78 out of 81 murders by juveniles were committed by 15 to 17 year-olds, and none at all by children aged 10 to 11.

Excluding juveniles from these provisions would therefore have little effect on protecting very young offenders. Since the overwhelming majority of juveniles affected are in the bracket nearest the age of majority, this would lead to the undesirable possibility of sudden and considerable disparity in tariffs between 17 and 18 year-olds. Such caps would also lead to a serious loss of fairness, clarity and consistency. That point was emphasised by the noble Earl, Lord Russell, when dealing with the benefits and disadvantages of consistency.

It is also right to remember that the figures we are quoting are not too far from the reality with which we are currently faced. Juvenile tariffs in recent years have not been so far out of line with adult tariffs. Out of a sample of the 18 detainees in Her Majesty's prisons released on licence in 2000, the average tariff was almost 11 years and the average prison term served was 13.9 years. The minimum terms ranged from five to 16 years. There are therefore clear similarities in the levels.

Juvenile tariffs currently tend to average between 10 and 11 years, so nothing in the provisions would cause there to be a disproportionate attack on the issue with which we are dealing. As regards age, paragraph 9(b) states that: the fact that the victim was particularly vulnerable because of age or disability", must be taken into account, as must the age of the perpetrator. Age, as regards both the victim and the alleged perpetrator, used as a mitigating factor is echoed in paragraph 10. The courts can take those issues properly into account and can do justice in the way that noble Lords have sought.

The noble and learned Lord, Lord Ackner, drew attention to the guidelines of the Lord Chief Justice and his comments on maximum flexibility. We believe that these provisions maintain that flexibility. Therefore, a clear, simple and transparent sentencing structure is essential in maintaining public confidence in the justice system, particularly when pertaining to the crime of murder which is understandably the most high-profile crime. We have carefully considered the views and concerns expressed in Committee, but we have concluded that they can be addressed within the framework as drafted for the reasons I have just given. The framework provides the courts with the ability to take proper account of the special needs of juveniles.

It must be stressed that the starting points for the tariffs under Schedule 19 are not minimum sentences. Age is specified as a mitigating factor and the courts will have a discretion significantly to reduce from the starting points to arrive at sentences appropriate to the youth of juvenile offenders.

In practice, courts may be inclined to follow a rule of thumb such as that set out by the Lord Chief Justice in his direction dealing with juvenile tariffs, where the starting point is lowered according to the extent by which the juvenile is below the age of majority. The statute would allow for that. We believe that this flexibility is sufficient to allow for the special needs of the range of juvenile offenders without excluding them from the framework.

We have to ensure that everyone understands the basis upon which sentencing will be managed—that we will have the clarity and transparency we need so that the confidence which has diminished in our system can be restored. We believe that this framework—that is all it is; it is not a straitjacket, but a framework—does that which noble Lords would wish.

Lord Clinton-Davis

My Lords, before my noble friend sits down, I want to say that she has been very persuasive. However, I asked her to name a few of the people or organisations that supplied the view that this is a retrograde step. Will she now tell the House what organisations support the view that she has put forward so persuasively?

Baroness Scotland of Asthal

My Lords, your Lordships will know that when these proposals were being canvassed through the Auld review and so on, considerable consultations took place and support was voiced for the proposals. I cannot give noble Lords a list of all those who replied. However, I can certainly tell your Lordships that when I have been questioned outside this House about these provisions. I am usually asked by members of the public not why we are doing this but why we are not doing even more.

Noble Lords will know that I chair the Inter-Ministerial Committee on Domestic Violence, which deals with the subject of victims and witnesses. I emphasise that the thrust of many of the concerns voiced there is: "We do not understand why those decisions were made. Help us to understand. What is the basis upon which judges came to the decisions? What rule of thumb was applied? How does this operate? What do they take into account, why do they take it into account, and how does it work?".

We say that the framework gives everyone a basis upon which they can better understand what is being done. It is of no comfort to victims and witnesses to be told that an offence was committed by a juvenile in need; they need to understand why the court came to the decision that that should mitigate the sentence. They need to be told, and we believe that these provisions enable that to be done.

I shall certainly be happy to supply my noble friend with a fuller response about those who urged us to implement this measure. However, since taking on the role of Minister of State with responsibility for criminal justice and dealing with this issue since June, I say openly that not one member of the public has approached me or talked to me about this matter saying that he or she does not want this measure. That is the reality.

Lord Thomas of Gresford

My Lords, has the noble Baroness ever heard a judge pass a sentence in a murder case without explaining the reasons for, and factors behind, the tariff which he imposes?

Baroness Scotland of Asthal

My Lords, I am reminded that this is Report stage. Therefore, I cannot give the noble Lord the courtesy of a reply. If I were able to do so, I would say that my experience is not held universally by all other members of the Bar.

Baroness Anelay of St Johns

My Lords, I thank all noble Lords who have spoken so forcefully in support of the amendments. I am particularly struck by the experience of the noble Baroness, Lady Mallalieu, who referred to cases in which she had been involved as a lawyer. She remarked, as did others, on the propensity of children for rapid change and said that it is a mistake to abandon flexibility in a system which sentences children. I believe that that must go to the core of what we are discussing today.

The Minister says that there is a solution here, that paragraph 8 of Schedule 19 provides all the flexibility that one needs, and that here the judge does not have to sentence for 15 years but can apply a panoply of aggravating or mitigating circumstances. Of course, when the noble Baroness uses that argument, she is arguing against the whole of Schedule 19 because the logical extension would be to leave it to the judge entirely.

The noble Baroness will know that, with some reluctance, I have agreed to go down a very stony path in agreeing with her that paragraph 8 of Schedule 19 may be sufficient refuge for adults. However, I cannot accept that it is a sufficient refuge for children. I wish to test the opinion of the House.

4.54 p.m.

On Question, Whether the said amendment (No. 225) shall be agreed to?

Their Lordships divided: Contents, 202; Not-Contents, 113.

Division No.1
CONTENTS
Ackner, L. Habgood, L.
Addington, L. Hamwee, B.
Alderdice, L. Hanham, B.
Alexander of Weedon, L. Hannay of Chiswick, L.
Allenby of Megiddo, V. Harris of Peckham, L.
Ampthill, L. Harris of Richmond, B.
Anelay of St Johns, B. Hayhoe, L.
Astor of Hever, L. Henley, L.
Attlee,E. Hereford, Bp.
Avebury, L. Higgins, L.
Barker, B. Hodgson of Astley Abbotts, L.
Beaumont of Whitley, L. Hooper, B.
Biffen, L. Howe, E.
Blackwell, L. Howe of Aberavon, L.
Blatch, B. Howe of Idlicote, B.
Bledisloe, V. Howell of Guildford, L.
Blood, B. Hunt of Wirral, L.
Bowness, L. Hurd of Westwell, L.
Bradshaw, L. Hylton, L.
Bridgeman. V. Inglewood, L.
Bridges, L. Jenkin of Roding, L.
Brittan of Spennithorne, L. Kennedy of The Shaws, B.
Brooke of Sutton Mandeville, L. Kimball, L.
Brougham and Vaux, L. King of Bridgwater, L.
Byford, B. Kingsland, L.
Caithness, E. Kirkham, L.
Campbell of Alloway, L. Knight of Collingtree, B.
Carlisle of Bucklow, L. Laing of Dunphail, L.
Carnegy of Lour, B. Lamont of Lerwick, L.
Chester, Bp. Lindsay, E.
Chorley, L. Linklater of Butterstone, B.
Clement-Jones, L. Listowel, E.
Cobbold, L. Liverpool, E.
Colville of Culross, V. Livsey of Talgarth, L.
Colwyn, L. Lloyd of Berwick, L.
Cope of Berkeley, L. [Teller] Lucas, L.
Cox, B. Luke, L.
Craig of Radley,L. Lyell, L.
Craigavon, V. McAlpine of West Green, L.
Crathorne, L. MacGregor of Pulham Market,
Cumberlege, B. L.
Darcy de Knayth, B. Mackie of Benshie, L.
Dholakia, L. Maclennan of Rogart, L.
Dixon-Smith, L. Maddock, B.
Donaldson of Lymington, L. Mallalieu, B.
Eden of Winton, L. Mancroft, L.
Elles,B. Mar and Kellie, E.
Elliott of Morpeth, L. Mayhew of Twysden, L.
Elton, L. Methuen, L.
Fearn, L. Miller of Chilthorne Domer, B.
Feldman, L. Miller of Hendon, B.
Finlay of Llandaff, B. Monro of Langholm, L.
Flather, B. Montrose, D.
Fookes, B. Morgan, L.
Fowler, L. Mowbray and Stourton, L.
Gardner of Parkes, B. Moynihan, L.
Geraint,L. Neill of Bladen, L.
Glenarthur, L. Newby, L.
Glentoran, L. Newcastle, Bp.
Goodhart, L. Noakes, B.
Goschen,V. Northesk,E.
Gray of Contin, L. Oakeshott of Seagrove Bay, L.
Greengross, B. O'Cathain, B.
Onslow, E. Sharpies, B.
Palmer, L. Shaw of Northstead, L.
Park of Monmouth, B. Shutt of Greetland, L.
Parkinson, L. Simon of Glaisdale, L.
Pearson of Rannoch, L. Skelmersdale, L.
Peel, E. Smith of Clifton, L.
Phillips of Sudbury, L. Steel of Aikwood, L.
Pilkington of Oxenford, L. Stern, B.
Plumb, L. Stewartby, L.
Prashar, B. Stoddart of Swindon, L.
Prys-Davies, L. Strange, B.
Rawlings, B. Strathclyde, L.
Razzall, L. Tenby,V.
Reay, L Thomas of Gresford, L.
Redesdale, L. Thomas of Gwydir, L.
Rees, L Thomas of Walliswood, B.
Renfrew of Kaimsthorn, L. Thomson of Monifieth, L.
Rennard, L. Tope, L.
Renton, L. Tordoff, L.
Renton of Mount Harry, L. Trefgarne, L.
Richardson of Calow, B. Trumpington, B.
Roberts of Conwy, L. Tugendhat, L.
Rogan, L. Vinson, L.
Rollof Ipsden, L. Vivian, L.
Roper, L. Waddington, L.
Rotherwick, L. Wade of Chorlton, L.
Rotherwick, L. Wakeham, L.
Russell, E. Walker of Worcester, L.
Russell-Johnston. L Wallace of Saltaire.L.
Ryder of Wensum, L. Walmsley, B. [Teller]
St John of Fawsley, L. Walpole, L.
Saltoun of Abernethy, Ly. Weatherill, L.
Sandberg, L. Wedderburn of Charlton, L.
Sandwich, E. Wigoder, L.
Scott of Needham Market, B. Wilcox, B.
Seccombe, B. Williams of Crosby, B.
Selborne, E. Williamson of Horton, L.
Sharman, L. Willoughby de Broke, L.
Sharp of Guildford, B. Wolfson, L.
NOT-CONTENTS
Alli, L. Elder, L.
Amos, B. (Lord President) Evans of Parkside, L.
Andrews, B. Evans of Temple Guiting, L.
Archer of Sandwell, L. Evans of Watford, L.
Ashley of Stoke, L. Falconer of Thoroton, L. (Lord
Ashton of Upholland, B. Chancellor)
Barnett, L. Farrington of Ribbleton, B.
Bassam of Brighton, L. Faulkner of Worcester, L.
Bhatia, L. Filkin, L.
Billingham, B. Fitt, L.
Borrie, L. Gale, B.
Bragg, L. Gibson of Market Rasen, B.
Brennan, L. Golding, B.
Brett, L. Goldsmith, L.
Brooke of Alverthorpe, L. Gordon of Strathblane, L.
Brookman, L. Goudie, B.
Brooks of Tremorfa, L. Gould of Potternewton, B.
Burlison, L. Graham of Edmonton, L.
Campbell-Savours, L. Gregson, L.
Carter, L. Grocott, L.[Teller]
Christopher, L. Harrison, L.
Clarke of Hampstead, L. Hilton of Eggardon, B.
Clinton-Davis, L. Hogg of Cumberrauld, L.
Cohen of Pimlico, B. Hollis of Heigham, B.
Corbett of Castle Vale, L. Howells of St. Davids, B.
Crawley, B. Howie of Troon, L.
Davies of Oldham, L. [Teller] Hughes of Woodside, L.
Dean of Thornton-le-Fylde, B. Hunt of Chesterton, L.
Desai, L. Hunt of Kings Heath, L.
Dixon, L. Jay of Paddington, B.
Donoughue, L. Jones, L.
Dormand of Easington, L. Judd, L.
Dubs,L. King of West Bromwich, L.
Eatwell, L. Kirkhill, L.
Layard, L. Puttnam, L.
Lea of Crondall, L. Radice, L.
Lipsey, L. Rea, L.
Lockwood, B. Rendell of Babergh, B.
Lofthouse of Pontefract, L. Rooker, L.
Macdonald of Tradeston, L. Sainsbury of Turville, L.
McIntosh of Haringey, L. Sawyer, L.
McIntosh of Hudnall, B. Scotland of Asthal, B
MacKenzie of Culkein, L. Simon, V.
Mackenzie of Framwellgate, L. Smith of Leigh, L.
Marsh, L. Symons of Vernham Dean, B.
Mason of Barnsley, L. Taylor of Blackburn, L.
Massey of Darwen, B. Temple-Morris, L.
Merlyn-Rees, L. Thornton, B.
Mishcon, L. Tomlinson, L.
Mitchell, L. Turnberg, L.
Morris of Aberavon, L. Warner, L.
Morris of Manchester, L. Warwick of Undercliffe, B.
Nicol, B. Whitaker, B.
Patel of Blackburn, L. Whitty, L.
Paul, L. Wilkins, B.
Pendry, L. Williams of Elvel, L.
Plant of Highfield, L. Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.6 p.m.

Baroness Scotland of Asthalmoved AmendmentNo. 225A: Before Schedule 19, insert the following new schedule—

"PRISONERS LIABLE TO REMOVAL FROM UNITED KINGDOM:MODIFICATIONS OF CRIMINAL JUSTICE ACT 1991

  1. 1 In this Schedule "the 1991 Act" means the Criminal Justice Act 1991 (c. 53).
  2. 2 In section 42 of the 1991 Act (additional days for disciplinary offences), in subsection (2) before the word "and" at the end of paragraph (a) there is inserted—
  3. 3
    1. (1) In section 46 of the 1991 Act (persons liable to removal from the United Kingdom) in subsection (3) after paragraph (d) there is inserted "or
    2. (2) Sub-paragraph (1) does not apply to any prisoner whose sentence relates to an offence committed before the commencement of this Schedule.

4 After section 46 of the 1991 Act there is inserted—

"46A EARLY REMOVAL OF PERSONS LIABLE TO REMOVAL FROM UNITED KINGDOM

  1. (1) Subject to subsection (2) below, where a short-term or long- term prisoner is liable to removal from the United Kingdom, the Secretary of State may under this section remove him from prison at any time after he has served the requisite period.
  2. (2) Subsection (1) above does not apply where—
    1. (a) the sentence is an extended sentence within the meaning of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000,
    2. (b) the sentence is for an offence under section 1 of the Prisoners (Return to Custody) Act 1995,
    3. (c) the prisoner is subject to a hospital order, hospital direction or transfer direction under section 37, 45A or 47 of the Mental Health Act 1983,
    4. (d) the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, or
      5. 1249
    5. (e) the interval between—
      1. (i) the date on which the prisoner will have served the requisite period for the term of the sentence, and
      2. (ii) the date on which he will have served one-half of the sentence,
        • is less than 14 days.
  3. (3) A prisoner removed from prison under this section—
    1. (a) is so removed only for the purpose of enabling the Secretary of State to remove him from the United Kingdom under powers conferred by—
      1. (i) Schedule 2 or 3 to the Immigration Act 1971, or
      2. (ii) section 10 of the Immigration and Asylum Act 1999, and
    2. (b) so long as remaining in the United Kingdom, remains liable to be detained in pursuance of his sentence until he falls to be released under section 33 or 35 above.
  4. (4) So long as a prisoner removed from prison under this section remains in the United Kingdom but has not been returned to prison, any duty or power of the Secretary of State under section 33, 35 or 36 is exercisable in relation to him as if he were in prison.
  5. (5) In this section "the requisite period" means—
    1. (a) for a term of three months or more but less than four months, a period of 30 days;
    2. (b) for a term of four months or more but less than 18 months, a period equal to one-quarter of the term;
    3. (c) for a term of 18 months or more, a period that is 135 days less than one-half of the term.
  6. (6) The Secretary of State may by order made by statutory instrument—
    1. (a) amend the definition of "the requisite period" in subsection (5) above,
    2. (b) make such transitional provision as appears to him necessary or expedient in connection with the repeal or amendment.
  7. (7) No order shall be made under subsection (6) above unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.
  8. (8) In relation to any time before the commencement of sections 80 and 81 of the Sexual Offences Act 2003, the reference in subsection (2)(d) above to Part 2 of that Act is to be read as a reference to Part 1 of the Sex Offenders Act 1997.

46B RE-ENTRY INTO UNITED KINGDOM OF OFFENDER REMOVED EARLY FROM PRISON

  1. (1) This section applies in relation to a person who, after being removed from prison under section 46A above, has been removed from the United Kingdom before he has served one-half of his sentence.
  2. (2) If a person to whom this section applies enters the United Kingdom at any time before his sentence expiry date he is liable to be detained in pursuance of his sentence from the time of his entry into the United Kingdom until whichever is the earlier of the following—
    1. (a) the end of a period ("the further custodial period") beginning with that time and equal in length to the outstanding custodial period, and
    2. (b) his sentence expiry date.
  3. (3) A person who is liable to be detained by virtue of subsection (2) above is, if at large, to be taken for the purposes of section 49 of the Prison Act 1952 (c. 52) (persons unlawfully at large) to be unlawfully at large.
    4. 1250
  4. (4) Subsection (2) above does not prevent the further removal from the United Kingdom of a person falling within that subsection.
  5. (5) Where, in the case of a person returned to prison by virtue of subsection (2) above, the further custodial period ends before the sentence expiry date, subsections (1) and (2) of section 33 above apply in relation to him as if any reference to one-half or two-thirds of the prisoner's sentence were a reference to the further custodial period.
  6. (6) If a person returned to prison by virtue of subsection (2) above falls by virtue of subsection (5) above to be released on licence under section 33(1) or (2) above after the date on which (but for his removal from the United Kingdom) he would have served three-quarters of his sentence, section 37(1) above has effect in relation to him as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of his sentence.
  7. (7) If a person who is released on licence under section 33(1) or (2) above at the end of the further custodial period is recalled to prison under section 39(1) or (2) above, section 33A(3) above shall not apply, but it shall be the duty of the Secretary of State—
    1. (a) if the person is recalled before the date on which (but for his removal from the United Kingdom) he would have served three-quarters of his sentence, to release him on licence on that date, and
    2. (b) if he is recalled after that date, to release him on the sentence expiry date.
  8. (8) A licence granted by virtue of subsection (7)(a) above shall remain in force until the sentence expiry date.
  9. (9) In this section—

On Question, amendment agreed to.

Schedule 19 [Determination of minimum term in relation to mandatory life sentence]:

Baroness Scotland of Asthalmoved Amendment No. 225B: Page 290, line 25, leave out from "orientation" to end of line 28 and insert "if it is committed in circumstances falling within subsection (2)(a)(i) or (b)(i) of section (Increase in sentence for offence aggravated by reference to disability or sexualorientation)."

On Question, amendment agreed to.

Lord Acknermoved Amendment No. 225C: Page 290, line 29, at end insert—

Nothing in this Schedule shall fetter the judge's own discretion in the individual case to set the sentence he thinks is appropriate.

The noble and learned Lord said: My Lords, having regard to what the noble Baroness said, I have quite a simple task. She has maintained that I have all that I need to give the judges what I have asked for in my amendment; that is, that Schedule 19 should begin with the statement: Nothing in this Schedule shall fetter the judge's own discretion in the individual case to set the sentence he thinks is appropriate".

It is clear that the noble Baroness, Lady Anelay— who has not been able, no doubt for good political reasons, to support quite a number of my amendments—was unconvinced that by putting a reference to discretion in paragraphs 7 and 8 of Schedule 19, the discretion which the noble Baroness, Lady Scotland, emphasised the judge has is properly catered for. As the noble Baroness has confirmed that these two paragraphs provide that discretion, surely she can have no objection to making clarity, which she says exists, doubly clear by having this stated at the outset of the schedule. It cannot harm her in any way. She says that the discretion is there. It cannot in any way detract from her submissions. All it does is to transpose paragraphs 7 and 8 into the opening phrase of my amendment. If she does not agree to do that, it seems to me that paragraphs 7 and 8 will merely turn out to be a provision that obliges the judge to comply with the excessive sentences alleged to be minimum sentences in the schedule, and that is contrary to the justice of the position. I beg to move.

Lord Thomas of Gresford

My Lords, the noble Baroness has stressed over and over again, both in Committee and a short time ago, that she seeks clarity and transparency. If so, she should be able to answer my question with a "Yes" or a "No". Is there anything in the schedule which fetters a judge's own discretion in an individual case to set the tariff he thinks is appropriate?

Lord Carlisle of Bucklow

My Lords, if the noble Baroness says that in her view there is a discretion, what is wrong in writing that fact on the face of the Bill? We had the same argument at an earlier stage. The danger is that whatever she may say about them being starting points, the press, for one, will look on them as minimum sentences and comment on the sentences passed in that way. I hope that the noble Baroness will agree on this occasion with what the noble Lord and learned Lord, Lord Ackner, is saying.

Lord Clinton-Davis

My Lords, clarity is all important in my view. I gave the Government the benefit of the doubt when I voted on the last amendment. On this occasion, I do not know why my noble friend cannot accept the amendment moved by the noble and learned Lord, Lord Ackner. It puts the matter beyond any peradventure. Personally, I should have thought that that was highly desirable.

Baroness Kennedy of The Shaws

My Lords, judicial discretion is at the heart of good sentencing. I have recently returned from the United States. There the Attorney-General is seeking to inhibit judicial discretion. A similar debate is taking place. The senior judiciary of the Supreme Court of the United States is of one voice in its concern about this undermining of justice. So I hope that we shall hear clearly—and without any doubt—the Minister say in answering this amendment that judicial discretion is not being interfered with and that at the end of the day that is what should guide judges when sentencing.

Lord Donaldson of Lymington

My Lords, in the case of Pepper v Hart the Law Lords decided—wrongly I think, but that is beside the point—that in resolving any ambiguity or doubts about the meaning of a statute one could have regard to what the Minister had said. The Minister here has said that paragraphs 7 and 8 produce complete discretion. Are we now to have a position of someone outside saying, "Well, we know she said that there was complete discretion, but are we right in remembering that she would not accept an amendment which said exactly the same thing?"? Where will that leave us all?

Lord Morris of Aberavon

My Lords, I have listened very carefully to the arguments on the previous amendment. I heard the views of my noble friend Lord Clinton-Davis. I also gave the Government the benefit of the doubt. I have not so far intervened in the debate, but it seemed to me that the Minister made a most persuasive case to underline the fact that discretion existed. My experience of the judiciary is much more limited; I was only a mere recorder for a period of 20 years. I endorse fully the remarks we have just heard. It is of vital importance that discretion is spelled out on the face of the Bill if that is what the Minister intended in her remarks on the previous amendment.

5.15 p.m.

Baroness Scotland of Asthal

My Lords, my short answer is that paragraphs 7 and 8 spell out discretion on the face of the Bill. However, that discretion, as with discretion in other cases, is to be exercised within the framework and in accordance with the law. No judge has an unfettered discretion to do whatever he pleases; he must apply the law as set out in statute. The statute here is plain.

The judge must use the starting point as the judicial starting point. He then has to look at the mitigating and aggravating factors. I shall read paragraphs 7 and 8 if it assists for Pepper v Hart and other purposes. Paragraph 7 states: Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point". The starting point is set out in paragraphs 4, 5 and 6. Those provisions refer to the matters a court should take into consideration when arriving at that starting point. Paragraph 8 states: Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order". The provision is there on the face of the Bill and available to be used. I know and hear what the noble and learned Lord, Lord Ackner, says about his chosen preference.

Lord Ackner

My Lords, I am very grateful to the noble Baroness for giving way. Is she agreeing that the current position today is what the future will also show? The current position today is that of course a judge does not have an unfettered discretion. Guidelines have been provided by the Court of Appeal. He must have regard to those guidelines. If he imposes a sentence that is, so to speak, repugnant to those guidelines the Court of Appeal, at the suit of the Attorney-General, will then put in force the sentence the judge should have imposed. That is the position today. Is the noble Baroness saying that from a discretionary point of view that is still unaltered?

Baroness Scotland of Asthal

My Lords, it is unaltered, save and except that the guidelines which will bind the judge are contained in the statutory framework which is here in outline. So the framework the court will have to apply is the statutory guidelines contained in Schedule 19. It is not the currently issued guidelines, because of course the whole point of Schedule 19 is to supplement the position because of the change brought about by Anderson. Your Lordships will recall that prior to that case the Secretary of State preserved an ability to alter the tariff imposed. As a result of Anderson that ability for the will of the people, as expressed through their elected Member, has gone. Therefore, it is for Parliament to decide the framework within which that exercise of discretion on behalf of the people of this country by the judiciary on individual cases should be set.

So this is the framework; these are the guidelines. The noble and learned Lord is absolutely right that within the framework, within the statutory guidelines, the judge will still have the duty to exercise his or her discretion in accordance with the needs of the circumstances of the case. Within the guidelines, if judges are minded to depart from the starting points, they will have to state why they have done so. We believe that that will enable all who come to consider the judge's decision better to understand the route that he was taking.

I also tell noble Lords that we hope—I know that this is an aspiration—that that may limit or hamper the ambit of ill-informed, misjudged comment about why the court reached its decision. I invite the noble and learned Lord not to press his amendment.

Lord Ackner

My Lords, the inability or unwillingness of the noble Baroness to accept the terms of my amendment suggests to me that there is an arriére-pensée in relation to the whole of Clauses 7 and 8. In those circumstances, I wish to test the opinion of the House.

5.22 p.m.

On Question, Whether the said amendment (No. 225C) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 115.

Division No.2
CONTENTS
Ackner, L. Methuen, L.
Addington, L. Miller of Chilthorne Domer, B.
Alderdice, L. Monson, L.
Avebury, L. Moran, L.
Barker, B. Morgan, L.
Beaumont of Whitley, L. Morris of Aberavon, L.
Bledisloe, V. Nicholson of Winterbourne, B.
Bradshaw, L. Oakeshott of Seagrove Bay, L.
Carlisle of Bucklow, L. Palmer, L.
Chorley, L. Prys-Davies, L.
Clinton-Davis, L. Rennard, L.
Cobbold, L. Roll of Ipsden, L.
Colville of Culross, V. Roper, L.
Craig of Radley, L. Russell, E.
Darcy de Knayth, B. Saltoun of Abernethy, Ly.
Dholakia, L. Sandwich, E.
Elles, B. Scott of Needham Market, B.
Falkland, V. Sharman, L.
Feam, L Sharp of Guildford, B.
Finlay of Llandaff, B. Shutt of Greetland, L.
Geraint, L. Smith of Clifton, L.
Habgood, L. Stem,B.[Teller]
Habgood, L. Thomas of Gresford, L. [Teller]
Hamwee,B. Thomas of Walliswood, B.
Hannay of Chiswk, L. Thomson of Monifieth, L.
Harris of Richmond, B. Tordoff, L.
Howe of Idlicote, B. Turner of Camden, B.
Hylton, L. Wallace of Saltaire, L.
Kennedy of The Shaws, B. Walmsley, B.
Livsey of Talgarth, L. Walpole, L.
Mackie of Benshie, L. Warnock, B.
Maclennan of Rogart, L. Weatherill, L.
Mar.C. Wedderburn of Charlton, L.
Mar and Kellie, E. Williams of Crosby, B.
Mayhew of Twysden, L. Williamson of Horton, L.
NOT-CONTENTS
Amos, B. (Lord President) Desai, L.
Ampthill, L. Dixon, L.
Andrews, B. Donoughue, L.
Archer of Sandwell, L. Dormand of Easington, L.
Ashley of Stoke, L. Dubs,L.
Ashton of Upholland, B. Elder, L.
Barnett, L. Evans of Parkside, L.
Bassam of Brighton, L. Evans of Temple Guiting, L.
Bhatia, L. Falconer of Thoroton, L. (Lord
Billingham, B. Chancellor)
Blackstone, B. Farrington of Ribbleton, B.
Blood, B. Faulkner of Worcester, L.
Borrie, L. Filkin, L.
Bragg, L. Forsyth of Drumlean, L.
Brennan, L. Gale, B.
Brett, L. Gavron, L.
Brooke of Alverthorpe, L. Gibson of Market Rasen, B.
Brookman, L. Golding, B.
Brooks of Tremorfa, L. Goldsmith, L.
Burlison, L. Gordon of Strathblane, L.
Campbell-Savours, L. Goudie, B.
Carter, L. Gould of Potternewton, B.
Chandos, V. Grabiner, L.
Christopher, L. Graham of Edmonton, L.
Clarke of Hampstead, L. Gregson, L.
Cohen of Pimlico, B. Grocott, L. [Teller]
Corbett of Castle Vale, L. Harris of Haringey, L.
Crawley, B. Harrison, L.
Davies of Oldham, L. [Teller] Hayman, B.
Dean of Thornton-le-Fylde, B. Hogg of Cumbernauld, L.
Hollis of Heigham, B. Pendry, L.
Howells of St. Davids, B. Plant of Highfield, L.
Howie of Troon, L. Puttnam, L.
Hughes of Woodside, L. Radice, L.
Hunt of Kings Heath, L. Randall of St. Budeaux, L.
Jay of Paddington, B. Rendell of Babergh, B.
Jones, L. Rogan, L.
Judd, L. Rooker, L.
King of West Bromwich, L. Sainsbury of Turville, L.
Kirkhill, L. Sawyer, L.
Layard, L. Scotland of Asthal, B.
Lea of Crondall, L. Simon, V.
Lipsey, L. Smith of Leigh, L.
Lloyd of Berwick, L. Stone of Blackhsath, L.
Lofthouse of Pontefract, L. Strange, B.
Macdonald of Tradeston, L. Symons of Vernham Dean, B.
McIntosh of Haringey, L. Taylor of Blackburn, L.
McIntosh of Hudnall, B. Temple-Morris, L.
MacKenzie of Culkein, L. Thornton, B.
Mackenzie of Framwellgate, L. Tomlinson, L.
Mason of Barnsley, L. Turnberg, L.
Massey of Darwen, B. Warner, L.
Merlyn-Rees, L. Warwick of Undercliffe, B.
Mishcon, L. Whitaker, B.
Mitchell, L. Whitty, L.
Morris of Manchester, L. Wilkins, B.
Nicol, B. Williams of Elvel, L.
Patel of Blackburn, L. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.32 p.m.

[Amendment No. 226 not moved.]

Lord Ackner moved Amendment No. 227: Leave out Schedule 19.

The noble and learned Lord said: My Lords, I ask your Lordships to say that they are not content for Schedule 19 to remain part of the Bill and I shall be inviting noble Lords to use the Not-Content Lobby when the vote takes place. Often mistaken and enthusiastic noble Lords keep up the old business of going to the wrong place by mistake.

Schedule 19 is, in the words of the noble Lord, Lord Windlesham, "sentencing by ministerial decree". It is the result of an angry, frustrated action by a Home Secretary who did not understand the requirements of the rule of law. When, in November 2002 the case of Anderson was decided in the Judicial Committee by reason of the human rights legislation, the Home Secretary no longer had any role to play as a politician in deciding how long someone should stay in prison. That is something that this House had been saying year in and year out. As a result, there was an intemperate outburst—

Lord Tordoff

My Lords, I am most grateful to the noble and learned Lord for allowing me to intervene. Perhaps he has confused the Report stage and the Committee stage. The Motion that he is moving is to leave out the schedule, in which case he would wish to vote Content. That would remove the schedule, which has already been agreed.

Lord Ackner

My Lords, I am sorry, but I cannot agree. This is a Motion to persuade the House that they are not content in the continuation of Schedule 19. Perhaps the noble Lord would be kind enough to confirm that I am right because he is so much more experienced than I.

Lord Tordoff

My Lords, I doubt that, but with some reluctance I have to say that I think the noble and learned Lord is wrong. The proposal set out in his amendment is to leave out Schedule 19. I understand what he seeks to do, but he is moving to leave out the schedule and therefore he should advise people to vote Content on that proposal.

Lord Ackner

My Lords, very well. I am always happy to learn from my elders and betters, or perhaps I should say "betters". In those circumstances, I invite noble Lords to go on being content with everything I submit, as has happened in the past.

I was saying to noble Lords that there was an intemperate outburst by the Home Secretary, demonstrating that he had not understood how the rule of law works. That was exacerbated by a ruling in relation to the lawfulness of an immigration law or order which he had promulgated.

The history of this situation bears a little repetition. Your Lordships will know that the sentencing guidelines were in effect invented by the former Lord Chief Justice, the noble and learned Lord, Lord Lane, advising judges on the way of viewing offences according to their nature and providing a set of brackets within which they could consider imposing a sentence, lowering or raising it according to mitigation or aggravation. The judiciary has shown no reluctance to accept assistance and in 1998 the Crime and Disorder Act was passed. That legislation brought into existence the Sentencing Advisory Panel. By that Act, the panel investigated, researched and sought advice from the public. It consisted of a variety of disciplines—although with very few, if any, lawyers— and provided guidance.

The Court of Appeal, which was then laying down sentencing guidelines, was obliged to take into account what was proposed by the panel. If the Court of Appeal itself had been contemplating taking the initiative of laying down guidelines, it would have to consult the panel. That worked smoothly and satisfactorily over a period of some four years, by which time the Court of Appeal had accepted the advice of the panel and imposed the necessary decision on 10 different species of offences.

In 2002, one year before the schedule was produced, the panel made suggestions with regard to what were the appropriate sentencing guidelines for murder, the offence to which Schedule 19 is directed. The Court of Appeal had regard to that advice and was minded to accept it, but first consulted with the Attorney-General, the Lord Chancellor and the Home Secretary, the very one responsible for Schedule 19. They made very minor alterations, which were accepted, and the guidelines were introduced via a practice direction given by the Lord Chief Justice. Everything proceeded swimmingly until the angry reaction of the Home Secretary produced Schedule 19.

It is perhaps worth breaking off at this stage to recall the "holier than thou" homilies to which the public have been treated by the Home Secretary on how to put back trust in the Government; on how essential it was for any government to work effectively to have that trust. The Home Secretary said that the only way to do that was to be "patently honest". Your Lordships may not think that the history I have outlined fits very happily into that expression.

The schedule purports to lay down minimum starting points, and they are at least 50 per cent in excess of the guidelines in the Lord Chief Justice's practice direction. In the period of the year between the Court of Appeal's guidelines and the emergence of Schedule 19—Schedule 17 as it was previously— nothing occurred to suggest that the guidelines which were being followed pursuant to the Lord Chief Justice's practice direction were in any way proving inadequate, not being followed or had any disadvantages about them. On the contrary, it all went swimmingly.

The proposed 50 per cent increase will obviously have an effect, but the Home Secretary has limited his attention to the effect it will have in 10 years time, when the murderers with whom one is concerned would be coming out from prison but for the fact of the 50 per cent increase. He has totally overlooked the fact that sentencing guidelines have to be consistent, and if you up by more than 50 per cent the sentence for murder, you have got to do the same with all other serious offences. There is no question about waiting 10 years for that to happen; that will have to happen forthwith. The effect that will have on the demands on prison accommodation will be disastrous. The schemes to add currently to prison accommodation will be swamped and the position will be quite impossible.

So there has been produced this oddity. Parliament purports to set up the Sentencing Guidelines Council in the Bill—which we considered recently—and then the Home Secretary has pre-empted the Sentencing Guidelines Council by saying, "Before you begin to operate, I will tell you what has to be done in regard to murder cases, and what I am going to tell you will involve the whole of the sentencing pattern which has existed up until now being distorted". It will be distorted by this extraordinary increase.

That is why I suggest that the situation created by Schedule 19 requires the robust action of taking out the entire schedule. Only thus can one return to what Parliament initially proposed—the Sentencing Guidelines Council laying down what should be the appropriate sentences. It is only thus that one can prevent this extraordinary distortion, the result of a distorted approach to the two decisions to which I have referred. For those reasons, I beg to move my amendment.

5.45 p.m.

Lord Thomas of Gresford

My Lords, I have added my name to the amendment. The justification for Schedule 19, we have been told, is that it introduces clarity and transparency in the sentencing process in a way, it is implied, that does not exist at the present time. To illustrate how the practice and procedure of the law develops over a period of time, I should tell your Lordships that when I was first at the Bar it was utter anathema then for prosecuting counsel to talk to witnesses, whether or not they were victims. It was almost a professional foul to do so. I entered at the end of a long tradition where the leading counsel for the defence in a murder case did not speak to his client at all. He communicated with his client through junior counsel and received his instructions from the solicitor. I was a junior to a somewhat elderly silk who took that view and did not speak to his client from start to finish of the case.

Things have moved on dramatically. Over the past 50 years or so it has been customary for leading counsel for the defence in a murder case to have lengthy consultations with his client. In very recent years—within the last two or three—it has become appropriate to talk to defence witnesses. There is now a duty laid upon prosecuting counsel to talk to victims, their families and witnesses. It is quite the reverse. At the beginning of my career, the rationale was that counsel appearing at the Bar would be removed entirely from the emotion of the case and would conduct it with all the forensic skill that they had, unclouded by the views that were pressed upon them by either the prosecution witnesses, the victims or the defence.

We have a position today where it is the positive duty of prosecuting counsel to explain to a victim, family or witnesses why the judge has done what he has done. The noble Baroness told us that she was an officer in, or played a part in, an organisation that is concerned with victims. She said that they do not understand why a particular sentence has been passed. Victims will never really understand why a certain sentence has been passed—particularly in a murder case—at the end of the trial because they are overwhelmed with emotion for what has happened.

So let us consider Schedule 19, which we are now told lays down statutory guidelines. I made the same point in Committee as the noble and learned Lord, Lord Ackner, made a moment ago when I said that it was an oddity that we should have statutory guidelines for fixing a tariff in the same Bill that sets up the Sentencing Guidelines Council. It is curious that the Government have not waited to hear what the deliberations of that council are before setting what the Minister describes as "sentencing guidelines". However, it goes beyond that.

What is now proposed is that the judge should take a mechanistic approach to sentencing. He has the Bill in front of him, which contains a tick-list or shopping list of aggravating and mitigating factors. He ticks them off, asking himself whether he has considered this or that. What on earth do the Government think that a judge does at the present time other than to consider all the aggravating and mitigating factors as they appear to him in a case? What else is he there for but to consider the facts of the case, the circumstances in which the crime was committed and the personal circumstances of the defendant before he sets his tariff?

Why must we put that process into a straitjacket, as I described it in Committee—a tick-list to put into statutory form what anybody making a decision would do anyway? Taking any important decision in one's life, one will set up the factors in favour of the decision on the one side and the factors against it on the other, and come to a conclusion. If one was forced by a statute before one took out one's mortgage to consider one's wages, one would think it ludicrous to be placed in a straitjacket of that sort.

The other aspect of Schedule 19 about which the Government are being very vague is the purpose of the "starting point". They do not call it the "norm", so that sentences would be either larger or smaller but the average would be somewhere around the norm— they call it the starting point. If the Minister, as I hope she will be, is to be followed on the Pepper v Hart principle after the debate we had recently about young people, we learned that one can start by taking anything up to four or five years off for the youth of the defendant. If the starting point is supposed to be a norm, it has suddenly shifted down just because of age to 10 or 11 years. Then one starts from there, taking into account other aggravating or mitigating factors. That is the sort of explanation that we had from the Minister.

I believe that behind the interference in the sentencing process in the schedule—and the oddity of guidelines being promulgated by the Government in statutory form before their own Sentencing Guidelines Council comes into operation—is a future excuse for politicians. When a judge passes a sentence that causes an outcry in newspapers, they can say, "Look at our Bill; just have a look at what we said was the starting point. The judge has gone berserk and ignored it!" An excuse is being built in for the Government to explain away decisions that are not attractive to the public— as appears in the tabloid press.

Since prosecutors today are under the duty to explain to victims and their families why a sentence is passed, why are they not allowed to get on with doing that, while listening to the judge's sentencing remarks? The judge does not simply say, "I pass a life sentence, the tariff is 12 years"—he gives his reasons. Why do we not allow the present system to continue, and throw this political device into the dustbin? I know that there is a certain reluctance on the part of the Front Bench of the official Opposition to go along with throwing the proposal into the dustbin, and I understand their difficulties. But surely, on all sides of the House, we ought to walk into the Content Lobby when the Division is called.

Lord Donaldson of Lymington

My Lords, I support the noble Lord, Lord Thomas of Gresford, in everything that he says, and I shall not repeat it. However, I add one other point. One trouble with primary legislation is that it can never keep up with the times. At the moment—and here I show my bi-partisanship—starting with Michael Howard as Home Secretary and carrying on with the present Home Secretary, we are on a sort of wave of increased custodial sentences. That will not go on; there will be a reversal of the wave, and we will then be hung up on a statutory provision that there is no time to amend. This is not the place for a statutory provision—the Sentencing Guidelines Council is the place for that.

Baroness Kennedy of The Shaws

My Lords, I pick up on the refrain of the noble and learned Lord, Lord Donaldson, that this process has happened in the past decade. We have seen the politicisation of criminal justice and we have seen law and order become an auction. It is the source of regret to me tonight that that auction is displayed by the reticence of those on the Opposition Benches. For fear that the public might see a party in any kind of retreat from parts of the Bill as being soft on crime, people are not standing up to be counted. That is regrettable.

The noble and learned Lord, Lord Donaldson, said that these things go in waves. My concern is that the wave may ride for a very long time yet. When one has politicised criminal justice and law and order, one ends up having a ratcheting up of sentencing because each party wants to be seen as tougher than the other. I know that there is not an awful lot of space to the right of Mr Blunkett, but I am sure that efforts will be made to find that space.

I am worried that we shall see not a swing of the pendulum away from heavier and heavier sentencing, but more and more of it. My regret about that policy is that we know that it does not work. When my noble friend on my Front Bench says, "Every time I speak to a member of the public, they tell me that this is what they want", I say to her, to her noble friends on this Front Bench and to those in the other place that the role of Government is to lead. It is not simply to listen to what the public says, especially on sentencing, but to say, "Hold on a minute, let's have more discussion on the subject and see whether it's really what you want". I have said in this House a number of times that what politicians should do is make the political weather. That is not done by polling or soundbites or by going to the public and asking, "How does this go with you?"—because then one hears precisely what is reflected in the Bill. We in these Houses should do better than that.

I regret considerably that we are going down this road, and I stand with the noble and learned Lord, Lord Ackner, in expressing my concern that we are seeing interference with judicial discretion. As a follow-on from that, we shall see more and more over-crowding in our prisons and more punitive measures. That should be a source of shame to us all, on all sides of the House.

6 p.m.

Lord Mayhew of Twysden

My Lords, I should like to ask the Minister to deal with one short question when she replies. She knows very well, of course—we have all been reminded of it over the course of this Bill—that the Attorney-General has a jurisdiction to ask the Court of Appeal to review a sentence if he considers it to be unduly lenient. Let us take a hypothetical case in which a sentence of, say, one or two years has been passed whereas the starting point under the provisions of the Bill would be 15 years. Would it or would it not be open to the Attorney-General to invite the Court of Appeal to take account of and rely on the 15 years as the starting point as evidence that, in an appropriate case, the shorter sentence must have been unduly lenient? If so, then surely it cannot be denied that that would be to impose a fetter on the discretion of the judge.

Lord Carlisle of Bucklow

My Lords, I have already said, and I do not propose to repeat, why I do not like Schedule 19. I listened carefully to what the Minister said when she accepted that this was the replacement of judicial guidelines by statutory guidelines. Of course I accept that any penalties imposed by the court must be within a framework approved by Parliament. To some extent, she might argue that by setting the maximum sentence for any offence, we are clearly establishing those parameters and indicating seriousness. However, my objection to the clause is based on its excessive detail and its content. As has been said, the statutory guidelines provided in the schedule would in effect almost double the length of sentences currently being passed and served. One must ask whether the Government have considered the ratcheting effect of their proposals.

As I have said, I feel that the proposals are in some way self-contradictory. The schedule provides, for example, that there should be a 30-year starting point, I think, for the murder of a police officer. However, why should that provision deal only with police officers and not also with nurses in hospitals or anyone else? I do not believe that we can put guidelines of this nature into statute although I accept that we can establish a statutory framework within which the courts should work and indicate their own guidelines.

I ask the Minister to answer one specific question when she replies. In the previous debate, she said that she hoped that, as a result of the Government's actions, confidence which had diminished in the judiciary could be restored. Can she give any examples of how confidence in the penalties imposed in murder cases of recent years have diminished the standing of the judiciary? Is she saying that the stated periods of imprisonment within the mandatory sentences are such that the public have lost their confidence in the judiciary? Is that why the Government are doubling the sentences? I think that we are entitled to know that. I think that we are entitled to know what effect the Government think these types of maxima will have on sentencing policy generally.

Baroness Anelay of St Johns

My Lords, I think that it is right on this significant amendment, moved by the noble and learned Lord, Lord Ackner, that I should give a short résumé of why we on these Benches are not able to follow the noble and learned Lord into the Content Lobby. Noble Lords who have been with us through the thick and thin—it has mostly been very thick in content and thin in numbers on this Bill—will appreciate that I have already given a resume on no fewer than seven previous occasions. I shall try not to bore the House once more after this one.

When we looked at the provisions of Schedule 19 we shared very much the deep concerns of the noble and learned Lord with regard to all the points that he raises. However, we also had to look with care at them because we supported the Government in every respect on the fact that the Home Secretary had to find a proper way of responding to the Anderson judgment. When in government my party always supported the view that, in the old death penalty cases, if I may call them that, it was appropriate for the Home Secretary to have the right to continue the imprisonment of those who had committed those offences. Otherwise, because of the years that they had been assigned, they might be released.

So when the Government introduced these measures—most of which were brought forward perforce on Report; the Government had no ability to do so in Committee—we had to respond very rapidly. My right honourable and honourable friends in another place had only about 48 hours to respond to these proposals. At that stage, they were prepared to support the Government to a considerable extent while saying that children should not be included within the provisions. However, the more they examined the proposals in detail, the more concerned they became. Consequently, as noble Lords will be aware, at Second Reading I announced that my party had made what I considered to be, and still consider to be, a very bold decision—one that would indeed have enabled the Government to brief the tabloid press that we had gone soft on crime, an allegation that would have been totally false, but one that would have been easy to present.

We were planning substantially to amend Schedule 19, but to do so as part of a very wide package of changes to these provisions. The package was carefully balanced. It was balanced not only with restrictions on the authority of the Secretary of State, but carefully balanced with a measure—a very small and modest measure, we thought—of parliamentary scrutiny. However, that proposal did not find approval within this House.

We could not accept part of the loaf. It had to be all of it because the other half was as vital as that which the noble and learned Lord has put forward so eloquently today. Therefore, we cannot accept the noble and learned Lord's amendment either today or, if he brings back similar amendments on this matter, at Third Reading. However, that does not mean that we are content with the avenue down which the Government are taking us and all in this country.

Baroness Scotland of Asthal

My Lords, I have listened to everything that has been said on Report, as I listened with great care to everything that was said in Committee. I do not propose to weary the House with all the explanations and reasons that I have given on what feels to be innumerable occasions in Committee, at Second Reading and now on Report. However, I should like to address some of the specific issues raised.

I hear what the noble and learned Lord, Lord Ackner, says about this being an extraordinary distortion as a result of a distorted approach. I say without equivocation that I disagree with him. We have previously explained very fully how we planned to respond to the Anderson case and the history that brought us to that point. I shall not repeat that now. I also wish to say as clearly as I can that the noble and learned Lord's comments about my right honourable friend are not well founded. They are also unfortunate. As I know that the noble and learned Lord always expresses himself with judicious and appropriate care, it is always a surprise, if not a pain, to hear him speak with such lack of temperance.

The reality is that something has to be done to give voice to the fact that Parliament has been enjoined on behalf of the public to decide whether there should be a framework within which the courts should operate when dealing with offences which used to be capital in nature. We no longer have the death penalty but it is right that these offences are still dealt with with the utmost seriousness because of their fatal nature.

I remind the House that my noble friend Lady Kennedy is indeed a very dear friend to my party. I do not disagree with her when she says that the Government should take a lead on this matter. We are taking a lead in this Bill. The provisions in Schedule 19 are not the only provisions in the Bill. When we isolate this debate we should not expunge from our minds all the other sentencing provisions with which we have laboured during the passage of the Bill: cautioning, sentencing plus, sentencing minus, therapy, treatment, opportunities for early release and continuation of community support so that sentences are real. All of that feeds into the matter that we are discussing. I say with due respect to my noble friend that this is not a matter of shame. I hear what she says in relation to Schedule 19. What we have done in the Bill is to try to bring together a holistic response to sentencing. That should be a matter of some considerable pride as it is an aspiration that has been expressed for a long time and is based on the empirical data that we have. It was endorsed by Auld, Halliday and, before them, by Glidewell. Therefore, it is not something about which we should feel shy.

The noble and learned Lord, Lord Mayhew, asked about the Attorney-General's ability to review. That remains. The Attorney-General will have to look—as he always looks—to determine whether the court went so outside that which was proper that he should seek to ask the Court of Appeal to interfere with the exercise of a judge's judgment and discretion. Nothing has changed in that regard. What we have, however, is an ability for the judge in passing the sentence to explain with clarity and certainty the basis on which he made that judgment.

I hear, too, what the noble Lord, Lord Thomas of Gresford, said about judges and the way in which they exercise their discretion. I hope that I have made clear that the best of our judges seek to explain their judgments with clarity and to explain the mitigating and aggravating features that they have taken into account. However, I have to say—we had better not persuade ourselves away from the truth—that that is by no means universal. We want to set a benchmark which says, "This is what every individual can expect". I listened with great care to what the noble Lord, Lord Thomas of Gresford, said. I hope that when he reads his words tomorrow in Hansard, he will not feel a degree of embarrassment at the tone he adopted towards victims and witnesses. Many victims and witnesses have a perfect ability to understand matters. The noble Lord should know—I am glad that he recognises it—that what most people want is a proper and full explanation. They do not always get it. The noble Lord discussed the history of the matter and rightly said that in the past two years practice has changed. It is right that practice will change even further. New rights and new responsibilities will be put in place, and if we get our way on the victims and witnesses strategy, still more will be done. However, what we set out here is a framework, and that is what we have. If we look at the cases—

Lord Thomas of Gresford

My Lords, before the noble Baroness moves on—

Baroness Scotland of Asthal

My Lords, this is Report. I believe that I have been amazingly tolerant but even I come to a stage when I think that I, too, must have the courtesy shown to me which is the entitlement of a person who responds on behalf of the Government on Report. I say that with the greatest respect—

6.15 p.m.

Lord Thomas of Gresford

My Lords, if the noble Baroness criticises me, surely I am entitled to respond.

Baroness Scotland of Asthal

My Lords, the noble Lord is entitled to ask a question. He has asked a question and I have sought to respond. I say with the greatest degree of respect to the noble Lord that it is now my opportunity on Report to respond with propriety. I hope that I shall do so, and do so with courtesy.

Much has been said about differences in the way in which these matters are approached. Reference was made to a great disparity, a 50 per cent difference and a ratcheting up. However, that is not what the figures show. We believe that 70 per cent of the cases will fall within the 15-year band. That compares with the 12 years suggested by the Lord Chief Justice. In those cases it would not be right to suggest that there is a 50 per cent increase. The 15 and 16 years for aggravated cases we think should apply to 30 per cent or less. Generally our 30-year starting point, or whole life starting point, is for the most serious cases. It was said that substantial upward adjustment to 20 or 30 years is sometimes called for. I have said previously why we disagree with that view.

The noble Lord, Lord Carlisle of Bucklow, suggested that the discretion of the judge may be diminished by virtue of this schedule. We do not believe that to be the case. The framework is set. I have referred previously to the benefit that I believe is to be drawn from paragraphs 7 and 8. I hear what the noble Baroness, Lady Anelay, said about the reason for her party's view. I hope that the true reason is that in reality what we have now is a fair framework. These proposals are rational and appropriate. They are a very carefully deliberated response to the House of Lords judgment in the case of Anderson which held that the tariff decision should be made by an independent tribunal. The Government are fully committed to ensuring that the law is compatible with the rights protected in the ECHR. The Government are also fully committed to the continuation of a strong element of democratic accountability in arrangements for sentences of murderers and have brought forward amendments to give effect to that.

Times change but the whole point of the framework is that it sets the starting point and sets out the aggravating and mitigating features so that the flexibility we would expect is available. The noble Lord asked about public confidence in the criminal justice system generally. When I say that generally it is low that is because the indicators and the research that we have demonstrate that that is the case. It is curious that even in those areas where the rate of successful interdiction, arrest and bringing to justice of offenders has gone up, that has not been mirrored in a consequent increase in confidence. We are now seeking to establish why that is so.

One of the things that the framework will achieve is to enable people to understand with greater clarity why decisions are made. It will give us—if I can put it colloquially—the same hymn sheet from which we can all sing in whatever part of the country we happen to be, and the regional variations which are currently not explicable can be better understood and better explained.

We believe that the schedule is an appropriate response to Anderson and that it is well founded. I invite the noble and learned Lord, Lord Ackner, to do what he originally said that he was minded to do; that is, to invite everyone to go through the Not-Content Lobby. I believe that he was right in that, albeit I understand the advice that was given to him, which was only proper.

Lord Ackner

My Lords, I have three brief points to make. First, in response to the criticism levelled against me for my comments on the Home Secretary, I am satisfied that I adhered to the tradition of this House to speak with moderation. I remind the noble Baroness of our recent debate that was devoted almost entirely to his comments, and how no noble Lord spoke in his favour, with the slight exception of the noble Lord, Lord Borrie.

Secondly, the noble Baroness has in no way answered the point that was made by the Liberal Democrats, the Official Opposition and by me: why was the matter not left to the Sentencing Guidelines Council? It was set up, and before it had a chance to act, it was pre-empted with that vast increase.

Finally, the noble Baroness referred to no consultation with anyone, neither the judiciary nor anyone else, before the schedule was produced. That was a conditioned reflex resulting from the Anderson case and the immigration case. I wish to test the views of the House.

6.21 p.m.

On Question, Whether the said amendment (No. 227) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 104.

Division No.3
CONTENTS
Ackner, L. Miller of Chilthorne Domer, B.
Addington, L. Monson, L.
Alderdice, L. Neill of Bladen, L.[Teller]
Barker, B. Newby, L.
Carlile of Berriew, L. Newcastle, Bp.
Carlisle of Bucklow, L. Oakeshott of Seagrove Bay, L.
Chorley, L. Palmer, L.
Clement-Jones, L. Pearson of Rannoch, L.
Colville of Culross, V. Phillips of Sudbury, L.
Craig of Radley, L. Pilkington of Oxenford, L.
Craigavon, V. Rodgers of Quarry Bank, L.
Darcy de Knayth, B. Rogan, L.
Derby, Bp. Roper, L.
Donaldson of Lymington, L. Russell, E.
Erroll, E. Saltoun of Abernethy, Ly.
Falkland, V. Sandwich, E.
Geraint, L. Sharman, L.
Goodhart, L. Sharp of Guildford, B.
Habgood,L. Shutt of Greetland, L.
Hamwee, B. Stern, B.
Hannay of Chiswick, L. Stoddart of Swindon, L.
Harris of Richmond, B. Strange, B.
Hereford, Bp. Thomas of Gresford, L. [Teller]
Hooper, B. Thomas of Walliswood, B.
Hylton, L. Thomson of Monifieth, L.
Kennedy of The Shaws, B. Tordoff, L.
Livsey of Talgarth, L. Wallace of Saltaire, L.
Lloyd of Berwick, L. Walmsley, B.
Maddock, B. Walpole, L.
Mar, C. Warnock, B.
Mar and Kellie, E. Williams of Crosby, B.
Methuen, L. Williamson of Horton, L.
NOT-CONTENTS
Acton, L. Dormand of Easington, L.
Amos, B. (Lord President) Elder, L.
Andrews, B. Evans of Parkside, L.
Archer of Sandwell, L. Evans of Temple Guiting, L.
Ashton of Upholland, B. Falconer of Thoroton, L. (Lord
Barnett, L. Chancellor)
Bassam of Brighton, L. Farrington of Ribbleton, B.
Billingham, B. Faulkner of Worcester, L.
Blackstone, B. Filkin, L.
Borrie, L. Finlay of Llandaff, B.
Bragg, L. Forsyth of Drumlean, L.
Brett, L. Gale, B.
Brooke of Alverthorpe, L. Gibson of Market Rasen, B.
Brookman, L. Golding, B.
Brooks of Tremorfa, L. Goldsmith, L.
Burlison, L. Gordon of Strathblane, L.
Campbell-Savours, L. Goudie, B.
Carter, L. Gould of Potternewton, B.
Chandos, V. Graham of Edmonton, L.
Christopher, L. Grenfell, L.
Clarke of Hampstead, L. Griffiths of Fforestfach, L.
Cohen of Pimlico, B. Grocott, L. [Teller]
Corbett of Castle Vale, L. Harrison, L.
Crawley, B. Hayman, B.
Davies of Oldham, L. [Teller] Hogg of Cumbemauld, L.
Dean of Thornton-le-Fylde, B. Hollis of Heigham, B.
Desai, L. Howells of St. Davids, B.
Dixon, L. Hoyle, L.
Hughes of Woodside, L. Radice, L.
Hunt of Kings Heath, L. Randall of St. Budeaux, L.
Jay of Paddington, B. Rendell of Babergh, B.
Jones, L. Rooker, L.
Judd, L. Sawyer, L.
King of West Bromwich, L. Scotland of Asthal, B.
Kirkhill, L. Simon, V.
Layard, L Smith of Leigh, L.
Lea of Crondall, L. Stone of Blackheath, L.
Lipsey, L. Symons of Vernham Dean, B.
Lockwood, B. Taylor of Blackburn, L.
Lofthouse of Pontefract, L. Tempte-Morris, L.
Thornton, B.
Macdonald of Tradeston, L. Tomlinson, L.
McIntosh of Haringey, L. Trumpington, B.
MacKenZie of Culkein, L. Turnberg, L
Mackie of Benshie, L. Turner of Camden, B.
Mason of Barnsley, L. Warner, L
Massey of Darwen, B. Warwick of Undercliffe, B.
Merlyn-Rees, L. Weatherill, L.
Mitchell, L. Whitaker, B.
Nicol, B. Whitty, L.
Parekh, L. Wilkins, B.
Pendry, L. Williams of Elvel, L.
Plant of Highfield, L. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.32 p.m.

Baroness Blatch moved Amendment No. 228: Before Clause 256, insert the following new clause—

"DISQUALIFICATION FROM WORKING WITH CHILDREN

(1) The following is inserted after section 29 of the Criminal Justice and Court Services Act 2000 (c. 43) (disqualification from working with children: juveniles)—

"29A DISQUALIFICATION FROM WORKING WITH CHILDEN WHERE QUALIFYING SENTENCE OR RELEVANT ORDER NOT IMPOSED

  1. (1) This section applies where—
    1. (a) an individual aged 18 or over is convicted of an offence against a child, and
    2. (b) neither a qualifying sentence nor a relevant order is imposed by a senior court in respect of the conviction.
  2. (2) If a senior court is satisfied, having regard to all the circumstances, that it is likely that the individual will commit a further offence against a child, it must order the individual to be disqualified from working with children.
  3. (3) If a senior court makes 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."
(2A) In relation to a disqualification order made under section 29A, as if the order were a sentence passed on him for the offence of which he has been convicted."

The noble Baroness said: My Lords, in moving Amendment No. 228, I shall speak also to Amendment No. 229. Amendment No. 228 returns 1:o a matter of great importance; namely, the orders introduced by the Criminal Justice and Court Services Act 2000, which disqualify from working with children those people who have committed sexual or violent crimes against children or who have dealt class A drugs to children. I raised that issue in Committee at col. 891 of the Official Report of 14th October. The amendment seeks to address points raised by the Government on that occasion.

At present, offenders can be given disqualification orders only if they commit one of the relevant offences set out in the 2000 Act and are sentenced to 12 months' imprisonment or more. In Committee, I raised the issue of those who commit offences against children but do not receive a 12-month sentence. One hears daily of offenders who receive very short prison terms or even community sentences for very serious offences against children—in particular, for child pornography offences. Such people are clearly unsuitable ever to work with children but, under the law as it stands, there is no means by which they can be given a disqualification order.

In Committee, the Minister resisted my amendments on the ground that automatic disqualification for all sex offenders, or all those sentenced to imprisonment for fewer than 12 months, might include some cases where disqualification might be inappropriate; in particular, minor child-on-child cases—a point made by the noble Baroness, Lady Walmsley. I recognise that the Minister's point has some force. The amendment would not make it mandatory for disqualification orders to be imposed in all such cases; it would require disqualification only where the court considered it likely that an offender would commit further offences against children.

Therefore, as the noble Baroness, Lady Walmsley, said in Committee, the amendment focused on, the propensity of the people concerned".—[Official Report, 14/ 10/03; col. 894.]

I hope that the Minister will accept the revised amendment, which would provide additional protection to children from those offenders who are clearly a potential danger but who, for whatever reason, receive relatively light custodial sentences or even community sentences, possibly as a result of a guilty plea.

I ought to remind the House that I proposed a similar amendment to the Criminal Justice and Court Services Bill on 4th October 2000, which was rejected by the noble Lord, Lord Bassam, speaking for the Government. He said, 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".— [Official Report, 4/10/00; col. 1531.]

I hope that the noble Baroness will not simply repeat the arguments put forward three years ago by the noble Lord, Lord Bassam, which were formulated prior to the introduction of the scheme. His case included the curious argument that such an amendment would, serve only to dilute and weaken the scheme".—[Official Report, 4/10/00; col. 1529.]

I continue to believe that my amendment would strengthen the scheme. The Government promised three years ago that they would revisit the point in the light of the scheme's operation. Again, I hope that the Minister will say that there has been a change of mind on the Government Front Bench.

I should also like the noble Baroness to clarify for the record some of her responses in Committee. In Committee, I referred to the comments made last month in the Court of Appeal by Lord Justice Kay about trial judges failing to impose disqualification orders on offenders on whom such orders are required to be imposed by the 2000 Act. Those comments were made during the course of argument in the Court of Appeal. I have had the opportunity to read the judgment, given on Wednesday 15th October just a few hours after I had made my speech in Committee.

The case concerned was that of Michael Wheeler, the paedophile who groomed two young girls over the Internet. He deliberately waited until very soon after they had turned 13 years old before engaging in sexual intercourse with them. The result was that the maximum sentence for each act of unlawful sexual intercourse was two years rather than life imprisonment. Noble Lords may recall that both the trial and the appeal were the subject of much comment in the press. At the conclusion of the Court of Appeal's judgment, Lord Justice Kay said: The judge's order requiring registration under the Sex Offenders Act remains unaltered. In addition there was a requirement on the judge to disqualify the offender from working with children pursuant to section 28 of the Criminal Justice and Court Services Act 2000. That order was mandatory unless the judge concluded that it was unlikely that the offender would commit any further offence against a child. Where a judge reaches such a conclusion he is bound to explain his reasons. The judge in this case made no such order and gave no explanation for not doing so. We must, therefore, consider the matter ourselves. It is wholly impossible to conclude in the circumstances of this case that the offender will not commit a further offence against children. There is a clear risk that it may happen. Accordingly we are obliged to, and do, make such an order under section 28".

If a disqualification order is not imposed by a trial judge in such a serious and high-profile case as this, where it is manifestly obvious that it should have been, how many other offenders during the past three years have escaped without the ban on working with children being imposed when it should have been? Had the noble and learned Lord the Attorney-General not sought to appeal the length of prison sentence passed on Wheeler, a disqualification order would never have been imposed. As I understand it, the issue of whether a disqualification order ought to have been imposed in Wheeler's case was raised not by counsel for the noble and learned Lord but by the Court of Appeal.

Will the Minister indicate what has come of the inquiries that she and her noble and learned friend have made into those maters and whether there are cases in which disqualification orders have not been imposed due to an error in the Crown Court? I would particularly appreciate clarification from the noble Baroness about the case of the paedophile, Sadowski, which I raised in Committee.

In Committee, I asked the Minister whether it would be possible to impose disqualification orders on those offenders who should have been disqualified but were not due to such errors as obviously occurred in the case of Wheeler. The noble Baroness said: I said that I believed we had received a very recent ruling that would allow the retrospective application of this procedure. I have not yet looked at the ruling myself. The number of cases will still be limited. I would quite like to see the authority myself to verify that it does what we hope it will do. I shall write to the noble Baroness to clarify the matter. I believe that I can reassure her that we can seek to put it right".—[Official Report, 14/10/03; col. 902.]

I have not had an indication of what that investigation found.

I believe that the noble Baroness may have been referring to the case of R v Field, a decision of the Court of Appeal given on 12th December last year and reported in Volume 1 of the Weekly Law Reports of 2003 on page 882. That ruling was concerned not with the imposition of disqualification orders on those offenders who were erroneously not sentenced to them in the first place but with whether the orders could be imposed on those convicted after the commencement date of offences committed before commencement. That was the point about retrospective application with which the court was dealing. The court held that they could be imposed in such cases.

However, that judgment does not address the point I was seeking to make in Committee, which is whether we can now impose the orders on those offenders who have escaped them during the past three years since the 2000 Act came into force, as Wheeler did, because of errors in the trial process. Can the noble Baroness say what the outcome of the Government's reflection on that point has been since the Committee stage?

Can the noble Baroness also put on the record the Government's position regarding disqualification orders being imposed by magistrates' courts? Clause 136 increases magistrates' sentencing powers to allow them to impose a sentence of 12 months' imprisonment. In cases of offences against children, such offenders would have to be sentenced to disqualification orders if they were sentenced by the Crown Court, but magistrates' courts have no powers to impose disqualification orders as the law stands.

The Minister said in Committee, we believe that it would be proper to leave the balance where it is. Given the very serious nature of the disqualification order and its lifelong consequences, we consider it more appropriate to continue to restrict its use to the Crown Court".—[Official Report, 14/10/03; col. GC 898.]

I believe that that is an unfortunate conclusion to arrive at, as it creates a potential lacuna. Someone sentenced to 12 months by the magistrates' court for an offence against a child cannot be disqualified from working with children, but someone receiving the same sentence for the same offence in the Crown Court could be disqualified.

When I pressed the point, the Minister then said: When dealing with this sort of application—we are talking about a lifelong ban—the appropriate level of judicial office to impose that ban will be the Crown Court. In due course it may be deemed appropriate for those cases to be transferred to the Crown Court to be dealt with there".—[Official Report, 14/10/03: col. GC 902.]

I thought this Bill was about making more rational the judicial system and making it possible that where the court has the increased power to award a sentence of up to 12 months, it would be able to apply a disqualification order in appropriate cases. Can the Minister or the noble and learned Lord the Attorney-General give the House an assurance from the Dispatch Box that, in all cases of offences against children tried in the magistrates' courts, the magistrates will be reminded by the Crown Prosecution Service that, if there is any question of a 12-month sentence being passed, they ought to commit the case to the Crown Court for sentence so that a disqualification order can be imposed?

The Government rejected my amendment in Committee. It would have provided a legislative solution to this problem, and it is important that some sort of solution, even an administrative one, is put in place to close that loophole. I invite the Government to give that assurance now, based on the Minister's remarks in Committee that I have just quoted.

I believe that this amendment is clearly needed to address a lacuna in the existing legislation. I also hope that the Minister will be able to provide a very full assurance to the House on the other points I have raised and to set out what action the Government propose to take to rectify the problems that have come to light.

Amendment No. 229, which also stands in my name, raises a point that occurred to me when I read the recent judgment of the Court of Appeal in the case of Michael Wheeler. He was sentenced to a number of consecutive sentences of imprisonment for several offences. Section 28 of the Criminal Justice and Court Services Act 2000 states that an individual convicted of an offence against a child must be disqualified from working with children if, a qualifying sentence is imposed by a senior court in respect of the conviction".

In practice, that means if a sentence of 12 months or more is imposed by the Crown Court.

My Amendment No. 229 raises the issue of consecutive sentences. Let us suppose that an offender is sentenced at the Crown Court to 18 months for three offences against children, but the 18-month sentence is made up of three consecutive six-month sentences or even two consecutive nine-month sentences. Would such an offender be liable to be disqualified from working with children because of that technicality? The sentence imposed in respect of each conviction is less than 12 months, although the overall sentence is substantially more.

When I looked at Section 28 of the 2000 Act, my initial reaction was that it stated that the 12-month sentence had to be imposed in respect of at least one individual conviction. In that case, a person given an overall sentence of 12 months or more, made up of consecutive sentences shorter than 12 months, would not be covered. If that is the case, it is clearly wrong, and the legislation needs to be corrected.

I hope that the Minister will be able to clarify the position when she comes to the Dispatch Box. Unless these concerns are addressed, either by accepting my amendments or by promising that they will be dealt with in full at Third Reading, I give notice that I shall return to these important matters. I beg to move.

6.45 p.m.

Baroness Anelay of St Johns

My Lords, I fully support all that my noble friend has said. I look forward to hearing my noble friend Lady O'Cathain speaking in support of these amendments.

Baroness O'Cathain

My Lords, I obviously support my noble friend on these amendments. I am convinced that the amount of research that she has done, the feeling and the sheer care that she has put into a really appalling situation which has been allowed to develop justifies anybody's support.

We believe and hope that the Minister is sympathetic towards these amendments—to the principle contained in them and the content, if not the actual wording. If they are not perfectly worded, perhaps she will give an indication that she will take them away and the Government will give us a steer on how to continue.

Lord Renton

My Lords, Parliament has a major duty to protect children from the activities of paedophiles. My noble friend Lady Blatch, with her usual persuasive ability, has put forward what I suggest is an unanswerable case in her amendments. She has made it clear that her amendment would allow no discretion on the part of the court. It says that a senior court must order the individual to be disqualified from working with children. Those are very strong and, in my opinion, unanswerable terms. Moreover, proposed subsection (3) states, If a senior court makes an order … it must state its reasons for doing so and cause those reasons to be included in the record of the proceedings". I hope that the Minister will agree that there is no answer to the case which my noble friend Lady Blatch has put forward. If it is a matter of drafting, by all means let the Government put forward better drafting at Third Reading. But we really cannot ignore the case that my noble friend has made.

Baroness Walmsley

My Lords, as the noble Baroness, Lady Blatch, has reminded us, when we debated this matter in Committee, I was supportive of what she was trying to do. There clearly is a gap in the provision for protecting children in this respect.

At that time, as the noble Baroness reminded us again, I hoped that something could be brought forward which focused on the propensity to reoffend against children and that children would be protected by a new provision. The amendment is a very good attempt to solve the problems identified on that occasion. Even if it is not exactly perfect, I hope that the Minister will be able to reassure us that she will address the matter at Third Reading.

Baroness Scotland of Asthal

My Lords, I thank the noble Baroness, Lady Blatch, and join the noble Baroness, Lady O'Cathain, in congratulating her on her ongoing commitment in this very important area. I also thank the noble Baroness, Lady Blatch, for initiating a further debate in this House on disqualification of unsuitable people from working with children. Similarly informative debates have taken place on the matter in the context of the Sexual Offences Bill in another place. I hope that I will be able to give her sufficient comfort for her to be content that we are responding appropriately. However, I will not be able to answer all the points that she raised.

Amendment No. 228 would widen the scope of Part 2 of the Criminal Justice and Court Services Act 2000, to give courts the power to disqualify from working with children those offenders whose sentence did not meet the qualifying sentence threshold set out in Section 30 of that Act. Broadly speaking, the current sentence threshold in the provisions is 12 months or more of imprisonment or detention, or a guardianship or hospital order within the meaning of the Mental Health Act 1983.

The proposed new clause in the amendment provides for the courts, if satisfied that the individual will commit a further offence against a child, to make an order disqualifying him from working with children. They must state their reasons for making such an order and cause those reasons to be recorded in the record of proceedings. I am not absolutely clear whether the noble Baroness intends that the effect of the amendment will be that a court must consider a discretionary disqualification order every time that it sentences for a relevant offence. If so, that would be a little burdensome for the courts. However, I share her concern that underlies the amendment; namely, that the courts should be able to disqualify from work with children all those who have offended sexually or violently against children and pose a continuing risk to them. That is what she is getting at.

I wrote to noble Lords, including the noble Baroness, last week outlining our initial thinking. I am sorry if she did not get that response. I have a copy in my briefing, and the letter was written to the noble Baroness, Lady Anelay, and copied to the noble Baronesses, Lady Blatch, Lady Walmsley and Lady O'Cathain, and the noble Earl, Lord Russell. I hope that the others got their copies. I apologise to the noble Baroness if, for some reason, the letter has not got to her, although I think that the noble Baronesses, Lady Anelay and Lady Walmsley, have theirs. We set out in that letter what we found. A copy has been put in the Library, but I am quite happy to deal with the issue.

The Government will seek to table a relevant government amendment at Third Reading that will address the issue raised by Amendment No. 228. The draft is not to hand now, or I would obviously have been more than happy to share it with the noble Baroness. We would like to leave the existing quasi-automatic scheme for disqualification orders untouched but to consider adding a discretionary extra tier to the scheme, which courts might use in cases where the qualifying sentence threshold was not met. I think that that goes to the mischief that the noble Baroness has identified. I hope that she can be content to wait to see that provision before making a decision.

The noble Baroness raised an issue about the difference between the ability of the magistrates' courts and the Crown Court to deal with the matters. We will work to ensure that the guidance on allocation of courts issued by the Sentencing Guidelines Council advises that cases in which a disqualification order is likely to be made should be allocated to the Crown Court. However, if the magistrates' court dealt with a relevant case and unexpectedly found a disqualification order necessary, it should be able to commit it to the Crown Court under the dangerousness provisions in the Bill. We hope that we will be able to catch that.

I listened with care to what the noble Baroness said about finding an alternative administrative route to make sure that a safety net was there, and that may be the sort of safety net that she would wish to see and we would be happy to try to supply. The Sentencing Guidelines Council is independent, of course, but we will certainly raise the issues, as I am sure will others, to invite better consideration of them.

I also listened with concern to what the noble Baroness said about whether the issues were being raised by prosecutors when dealing with such cases, so that we could apprise the court. The court is sure that that should be done. I am most grateful to my noble and learned friend the Attorney-General, who sits beside me on the Front Bench today, for his affirmation for what is contained in my brief, which is that Crown Prosecution Service prosecutors have been reminded to remind the court of that power. He has reinforced that message himself, because he sees the matter as important, as does the noble Baroness, Lady Blatch.

Amendment No. 229 introduces a provision whereby an offender who meets the qualifying sentence threshold by virtue only of two or more consecutive sentences for relevant offences can be disqualified, in the same way as an offender who gets a qualifying sentence following a single conviction. The noble Baroness told us how she thinks that that would operate. The effect of the amendment might conversely be that, for example, an 18 year-old convicted of three minor charges of assault, including a brawl with a 15 year-old of similar stature, and sentenced to four months' imprisonment for each assault to run consecutively, would be brought within the quasi-automatic provisions for disqualification for life from working with children.

From our previous debate, I know that that is not what the noble Baroness intends; nor is it what the noble Baroness, Lady Walmsley, or any of us would want. I remain unconvinced that, by itself, the amendment is a proportionate response, but add that the amendment that we hope to introduce at Third Reading would remove the need for Amendment No. 229 in cases where the court believed that there was a continuing risk to children. In those circumstances, the court would be able to take effect of the second limb that we seek to introduce in the new amendment, which would enable it to give that safety provision to children in such circumstances. With that reassurance, I hope that the noble Baroness will also feel content.

The question of whether disqualification orders can be made retrospectively was raised on the previous occasion, and the noble Baroness amplified it tonight. I want to clarify that the orders can be made with respect to behaviour that pre-dated the coming into force of the relevant provisions in the Criminal Justice and Court Services Act 2000. However, the orders can be made only at the time of sentencing of the offender; they cannot be made later.

I appreciate the concerns that were raised by the noble Baroness—they were also raised in another place—about the apparent failure of the courts in certain cases to issue disqualification orders in cases where the qualifying criteria appeared to be met. It would be inappropriate to comment on specific cases without the full facts in front of me, but I share the concerns of the House, as expressed by the noble Baroness, that those orders must be made in cases that meet the qualifying criteria. I am urgently considering what further action can be taken to deal with any cases in which it appears that a court may have omitted to consider the making of a disqualification order. There may be considerable difficulties, but we are giving urgent thought to how we can respond to that problem.

In the mean time, to ensure that orders are made in appropriate cases, we have raised the issue with the Crown Prosecution Service and the Judicial Studies Board. They have undertaken to remind prosecutors and sentencers of the disqualification provisions. We will also be considering how best to undertake a review of the operation of the disqualification provisions. I hope that those undertakings will go some way to reassure the House that we take the issue very seriously and that we are trying to ensure that disqualification orders will be made in every relevant case.

The noble Baroness asked specifically about the case of Luke Sadowski. Since she raised the matter, we have made enquiries and are still looking into the case, but the points that I have made address the general issue of the possibility that a court may not make an order in a relevant case.

I have not been able to obtain the kind of detail that would enable me to make a proper response to the noble Baroness, but we will continue to seek it. If and when 1 find such an explanation, I shall certainly share it with noble Baronesses opposite and with the noble Baroness, Lady Walmsley. I hope that the noble Baroness, Lady Anelay, will forgive me if I write directly to the noble Baroness, Lady Blatch, on this occasion and copy the letter to other noble Lords who have participated in the debate. I hope the noble Baroness will not consider me discourteous for not doing it the other way round, but it may ensure that the noble Baroness receives the letter that she deserves.

7 p.m.

Baroness Blatch

My Lords, I am grateful to the Minister for that full answer. I do not hold her personally responsible for my not having received a copy of the letter. I am certain that my noble friend, Lady Anelay, would have discussed the letter with me if she had not taken it for granted that I had received my copy. It is not the first letter in recent weeks that I knew would arrive two or three weeks late, so there are no hard feelings over that.

I hope that the noble Baroness will understand it if I reserve my position until I have seen the amendment, because the terms of the amendment will be important. I understand the Minister's comments on the sentencing guidelines on allocation of court. Since the Bill is about streamlining the service and making it faster and more flexible, it is a great pity that if, for example, the allocation of court were wrong, and the case went to the magistrates' court rather than to the Crown Court, and a 12-month sentence were given, there is not a facility for that sentence to be awarded in that court rather it having then to be referred up to the Crown Court. Again, I will await to hear the detail of any remarks that the Minister makes at Third Reading.

It is deeply distressing that the automatic system is not working. There is now a complete lack of trust. It is extraordinary that reminders have to go out. The Act of Parliament reached the statute book in 2000 and it is only by my tabling the amendments that we have discovered—as the Government clearly have not—that the system is not working. Serious offenders have been found guilty in court, have been sentenced and have walked away without the disqualification order. They are therefore fully free, during the course of their lives and maybe on reform, to go and work with children. That is simply not acceptable. To say that they have been reminded and that the Attorney-General has reinforced that reminder is simply not good enough.

Whatever else we do at Third Reading, we must remedy a situation where the court has failed to apply a disqualification order from working with children in an appropriate case. If it is a matter merely of the judge forgetting, there must be a remedy that can be retrospectively applied. Otherwise, serious offenders, who in the court's judgment have a propensity to offend again, will be allowed to work with children again. I hope that the noble Baroness will come forward with an amendment that will do that.

I shall comment finally on the Sadowski case. I am deeply disappointed that in spite of all the back-up that the Home Office supplies, and I know well of it, it could not have found out between Committee and Report whether Luke Sadowski received a disqualification order and whether it was appropriate in the case. If he did not, why not? I am sure that I would be able to find out that information in a morning. I accept that the noble Baroness still does not have that information and that she will try to get it for me, but it will nevertheless be deeply distressing if we discover that a man like Sadowski, who deserves a disqualification order, does not have one simply because the court failed to apply it.

As I have said, I reserve my judgment for Third Reading. I will look carefully at the amendments tabled by the Minister, but I hope that she will take on board the extra points to which I have referred and in particular my proposal for some remedy in law for the courts' having failed to apply a disqualification order. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 229 not moved.]

Schedule 22 [Drug treatment and testing requirement in action plan order or supervision order]:

Baroness Walmsleymoved Amendment No. 230: Page 301, line 8, at end insert—

  1. "(c) that his dependency upon, or propensity to misuse, drugs is related to his offending behaviour, such that it is relevant and proportionate for the court to require treatment, and
  2. (d) that the option of voluntary treatment provided concurrent to the order would be unsatisfactory."

The noble Baroness said: My Lords, in speaking to Amendment No. 230, I shall speak also to Amendment No. 233. It is the first of three groups of amendments to Schedule 22.

I return to the amendments to Schedule 22 to ensure that the powers to attach drug treatment and testing requirements to action plan and supervision orders would be used by the courts only if alternatives of voluntary treatment had been considered and rejected as unsatisfactory. That would build in safeguards to ensure a more appropriate and proportionate response to young people who use drugs.

I am concerned in principle at the prospect of children being compelled, on pain of the criminal offence of breaching a court order, to undergo treatment, even though they might benefit from it. The voluntary route is by far the best. The amendment would ensure that the serious step of using court compulsion to treatment would be taken only where absolutely necessary, and where voluntary options had already been considered and tried.

The Government have already shown a commitment to interventions that are relevant and proportionate. For example, in Committee in the Commons, the Minister stated: the court would include a treatment requirement in the orders if it was satisfied that that would be relevant and proportionate intervention. That test is very important".

It is surely therefore vital and valid to incorporate such an important test into the legislation that provides for those powers.

Similarly, in relation to voluntary treatment, the Minister in another place stated: It is open to any misuser of drugs—anyone with a problem— to seek voluntary treatment at any time".—[Official Report, Commons Standing Committee B, 11/2/03; col. 976.]

While that statement is perhaps generally true of adult drug users, I must question whether it can fairly be said that every child aged 10 and over has the kind of knowledge and confidence to access a young person's treatment service of the kind that the statement would imply.

I am grateful to the noble and learned Lord the Attorney-General for his recent letter about the increase in resources for drug treatment. While growth in young people's community treatment services has recently been rapid, there are in many areas still few new services and they are often unknown to young people in the area. This is perhaps even more true for those young people who have become disengaged and have started to get into trouble.

As the provider of young people's drug treatment, the Children's Society, which has briefed me, knows that for many children who get involved in offending and drug use their involvement with the youth offending team's drug specialist will be the first time they have become aware of the availability of youth-centred drug services. As a matter of course and good practice, the society believes that the possibility of voluntary treatment should be pro-actively encouraged by both YoT agencies and the court and considered to be the preferred option before the necessity for court compulsion can be shown.

I had the pleasure of an interesting briefing by the National Treatment Agency yesterday afternoon and it is clear that a great deal of progress is being made. However, it had to admit that there is still a long way to go in providing drug treatment programmes that are relevant and appropriate to young people. It also accepted that there are serious challenges in ensuring that these services are well known to and can be easily accessed by young people. In the light of that, I believe that there is a need for the additional safeguards of these amendments. I beg to move.

Lord Hylton

My Lords, at earlier stages of the Bill I supported the voluntary principle as set out in the noble Baroness's amendment. I am happy to do so again and I am convinced that if it can be applied it will lead to more satisfactory and effective treatment.

7.15 p.m.

Lord Bassam of Brighton

My Lords, Amendments Nos. 230 and 233 would additionally require the court to be satisfied that the offender's dependency on or propensity to misuse drugs is related to his offending behaviour and that the option of voluntary treatment is considered unsatisfactory. In the past, the noble Baroness, Lady Walmsley, has suggested that the provisions of the schedule are disproportionate and that a programme of treatment should be imposed only when it is quite clear that there is a definite and problematic habit which is linked to the offence.

We want to take every opportunity to identify and address, as early as possible, dependency on or propensity to misuse drugs, so as to minimise the chances of a young drug user entering a continuing cycle of drug misuse and offending. We believe this to be important regardless of whether or not that dependency or propensity is directly related to the particular offence or offences for which the community order is being imposed.

We all accept that there is a strong correlation between drug misuse and offending among young people. We also know that drug misuse is a serious problem which, if left unchecked, can blight young people's lives and lead to a cycle of drug misuse and repeat offending. The aim of the treatment requirement is to reduce and, if possible, eliminate the young offender's dependency on or propensity to misuse drugs.

Under these provisions, the offender's dependency or propensity has to be such as requires and may be susceptible to treatment. It is likely, therefore, to be an underlying problem which has contributed to the offence for which an order is being imposed. However, not all drug users go on to commit crimes specifically related to their offence. We therefore consider that it would be over restrictive to put such a condition, as proposed in these amendments, on the face of the Bill. For those reasons, therefore, we intend to resist this part of Amendments Nos. 230 and 233.

The schedule ensures that the courts can include a treatment requirement in these orders only if it has been recommended as suitable for the offender by an officer of a local probation board or a member of a youth offending team. Such a recommendation should be made only if the requirement is relevant—I repeat, relevant—to the offender. Clearly, a court will take relevance and proportionality into account in deciding whether to include a treatment requirement in each case.

The inclusion of paragraph (d) in Amendments Nos. 230 and 233 would make it a condition that the court must be satisfied that voluntary treatment concurrent with an order would be unsatisfactory.

Views have been expressed which reflect the concerns of the Children's Society and other organisations about the coercive nature of including a treatment requirement as part of a court order for young people. We understand that their preferred option would be voluntary treatment rather than treatment under the requirement of an order.

However, it is not the case, as has been suggested, that children are being compelled on pain of breaching a court order to undergo the treatment they need. The clause ensures that the court may include a treatment requirement in these orders only if offenders who are 14 or over consent to its inclusion. As I have said, the requirement as to treatment must also have been recommended to the court as suitable and therefore appropriate for that offender.

We agree that treatment is more likely to be effective and successful with the active compliance of the individual concerned. If an offender is already undergoing treatment or is committed to undergoing a treatment programme, this would be taken into account by the supervising officer when considering whether to recommend including a treatment requirement in an order. We anticipate that these provisions will be used primarily for problematic drug-misusing offenders who lead a generally agreed chaotic lifestyle. These individuals would benefit from a more structured, integral programme.

The purpose of this schedule is to provide for treatment to be included as a component of an order so that the offender's drug misuse can be addressed as an integral part of the order. We know that young drug-misusing offenders are likely to have complex problems which require integrated approaches. If treatment were to be undertaken under separate arrangements, the real benefits of this integral approach could be lost. Moreover, there could be less incentive for the offender to remain in a treatment programme. Were an offender to drop out of such separate "voluntary" treatment, there would be no way for the court to ensure that his drug-using behaviour was effectively addressed.

If an offender who has consented to the inclusion of a treatment requirement, as part of an action plan or supervision order, then failed to participate in the treatment programme, or withdrew his consent, this could be taken into account in deciding how best to deal with that offender. Decisions would be taken in the context of a continuing aim to help him address his drug-using behaviour.

We know that young people undergoing drug treatment often lead the chaotic lifestyle to which I have referred and that despite the best efforts of everyone involved there could well be breaches of the drug requirements. We want to help young people with these drug problems and there will certainly not be a "one breach and you are out" policy.

Multi-agency youth offending teams and specialist drug workers who support them are well used to working with young people with multiple problems, including drug misuse, and will help support and encourage them. In addition, guidance to the courts and youth offending teams will make it clear that breach action should be undertaken only as a last resort.

I hope that having heard more background and a description on how we see the provision working, the noble Baroness will feel able to withdraw her amendment.

Baroness Walmsley

My Lords, I thank the Minister for his response. I confess to agreeing with many of the words he uttered and I pay tribute to the Government's intention and objective of helping young people. The difference between us boils down to the fact that I and the children's organisations do not believe that the compulsion element will achieve what is required. Furthermore, we are concerned about the ratcheting up element of the potential for breaching a court order. However, I do not intend to press the amendment on this occasion and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Baroness Walmsleymoved Amendment No. 231: Page 301, line 36, leave out "consents to its inclusion" and insert "has indicated his willingness to comply, and the appropriate consent to inclusion of the requirement has been given

The noble Baroness said: My Lords, in moving Amendment No. 231 I shall speak also to Amendment No. 234. Their purpose is to ensure that prior to the attachment of requirement of drug treatment to a supervision and action plan order, the court has regard to the child's understanding of and willingness to comply with a programme of treatment. The treatment requirements within Schedule 22 could, as they currently stand, be included in an order for any person aged 10 or over. The proviso that the court shall be satisfied that the young person's consent has been obtained if he is 14 or over implies, first, that any child over 14 would automatically be competent to consent on his own to the inclusion of a requirement; and, secondly, that it would not be equally important for the court to establish the views and willingness of a young person under the age of 14 to comply with the requirement.

Both those implications of the current drafting are problematic, and they support the need for the amendments, which would separate and clarify the difference. Our aim would be to ensure that each child who is assessed for such an order has had the opportunity to express his view and intentions in relation to the prospect of treatment, whether or not it is the child or his parents who will need to give express consent to the inclusion of the requirement in the order.

The Government's stated intention in introducing these requirements is to provide helping treatment that will engage the young person in behaviour change. The principle behind my decision to return to this matter on Report is that I believe it is important that the engagement is there from the outset. I am sure that that is the correct approach. I believe it is also the Government's approach in many ways.

Therefore, I cannot see any logical reason for legislating in this way only for those aged 14 and over, should such an engagement be necessary. In fact, the younger the person involved, surely the more important it is for the court to know whether he is being subjected to a process which he does not understand or with which he has no desire or intention to comply. I beg to move.

Lord Hylton

My Lords, when the noble Lord comes to reply, can he say whether the Government wish to see parents agreeing to this kind of order and treatment? I believe that that would greatly reinforce their effectiveness in the 14-to-18 age group and would do so even more if such orders applied to children under the age of 14.

Lord Bassam of Brighton

My Lords, the schedule does not allow the court to include a treatment requirement in either order unless, among other things, the individual, if aged 14 or over, consents specifically to its inclusion. Amendments Nos. 231 and 234 would require offenders aged 14 or over to indicate a "willingness to comply" with the requirement and would also require that "appropriate consent" be given to its inclusion in the order. The schedule already requires the consent of those aged 14 and above to the inclusion of a requirement in the order.

With regard to a "willingness to comply", as has already been mentioned, the court cannot include a treatment requirement unless it has been recommended as suitable for the offender by an officer of a local probation board or a member of a youth offending team. Before making such a recommendation, the probation officer or youth offending team member must take into account the willingness of the offender to comply with the order.

I turn to the need for "appropriate consent" to inclusion of the requirement—that is, consent both to the inclusion of a requirement as to treatment, and testing where applicable, and consent to the treatment itself. That will have to be given in accordance with the Fraser guidelines and the principle of Gillick competence. That will be confirmed in guidance to the courts and to professionals, who will be responsible for the implementation of the provisions.

We do not mean to imply, as has been suggested, that all those aged 14 and over will be competent to give their consent, nor that those under the age of 14 will not be competent. We shall make clear in guidance that the courts should have regard to the consent of an individual, and his parents or guardians where appropriate, whatever the offender's age.

Having said that, we continue to believe that it is right to require the implicit consent of those aged 14 and over to the inclusion of a treatment requirement. We believe that young people should be engaged in that decision. With that engagement from the start, successful participation in a treatment programme can surely only be more likely, as the noble Baroness, Lady Walmsley, suggested.

I do not believe that there is a great deal between us on this issue. I hope that what I have said offers the noble Baroness, Lady Walmsley, and the noble Lord, Lord Hylton, sufficient comfort and that they will feel confident in seeing the amendment withdrawn.

Baroness Walmsley

My Lords, I thank the Minister for his response. On this occasion, I believe that we have to rely on the recommendations of the youth offending team officers in relation to the treatment being not only suitable and relevant to the young person but also in relation to the young person understanding and agreeing with it. It is not so much the suitability but the state of mind of the young person that is most important, and the court must be absolutely clear about that. I am particularly concerned about the 10 to 14 year-old group in this case. However, I do not intend to press the matter at present and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Walmsley moved Amendment No. 232: Page 301, line 37, leave out from beginning to end of line 11 on page 302.

The noble Baroness said: My Lords, in moving Amendment No. 232, I shall speak also to Amendment No. 235. The purpose of both amendments is to remove the testing requirement in action plan and supervision orders that can be applied where a treatment requirement has already been made and to ensure that testing is rooted in treatment and is not seen as an intervention in and of itself.

Paragraphs 1(2)(4E), (4F), (4G) and (4H) of Schedule 22 provide for the addition of testing requirements to action plan and supervision orders where a treatment requirement has already been decided upon for offenders aged 14 and over.

The children's organisations believe that those requirements are entirely unnecessary, given that where drug testing is believed by professionals to be necessary as part of treatment monitoring, it could already be detailed within a treatment plan under the treatment requirement. Failure to comply with treatment, including, therefore, any testing that formed part of the treatment programme, would already result in breach.

My principal concern in returning to this issue is that the addition of testing requirements on top of treatment requirements as separate breachable conditions of sentence will "rack up" the conditions imposed by an order, in turn heightening the risks of the young person's failure to comply with an order.

Drug treatment and testing orders for adults have shown a very high rate of breach—88 per cent of DTTOs made in 2002 were breached, as we heard reported in the media only recently. I am concerned that adding unnecessary requirements to similar orders for young people will be setting them up to fail, when it is in everyone's interests that they are supported to succeed in their treatment. The answer given by the noble Lord, Lord Bassam, in Committee did nothing to convince me that there is no threat to the proportionality of the court's response if it uses those measures. I believe that it would create layers of additional requirements on the young person.

In response to my amendments tabled: in Committee on this matter, the Minister clarified that the intention behind the attachment of testing requirements, where a treatment requirement is already being made, is consistent with the other provisions for drug testing at the charge, pre-sentence and licence stages. However, there is an important difference. In other cases, testing is proposed as a means of identifying possible treatment needs. However, in the case of a young person who is already known and identified as having a drug problem, a court-ordered requirement for testing, concurrent with the treatment regime, is clearly not about identifying treatment needs. In fact, it gives a clear expression at the outset of treatment that there is a lack of belief or trust that the young person will be able to succeed in his treatment. That is the case to such an extent that testing should be made separately a compulsory and breachable requirement.

That is not to argue against the value of testing by the treatment provider in certain cases as a means of monitoring the young person's progress. Treatment providers can, and do, use drug testing to monitor progress and, more importantly, to ensure the safety of the young person where he is being prescribed medication. It should be possible to test where it is considered appropriate as part of treatment.

In Committee, the Minister stated that the testing requirements in these provisions were consistent with those made in drug treatment and testing orders. The evaluation of drug treatment and testing order pilots commissioned by the Home Office found that rates of positive tests were high, although they did not necessarily reflect a failure to progress with treatment. The report of the evaluation stated that for those who are quick to abstain successfully from class A drugs, positive tests can reinforce success. However, it also reported that, frequent testing is expensive and pointless for those who continue to use drugs; and, tests can be destructive to the motivation of those who are reducing their drug use but not managing to stop it completely".

That is taken from Home Office Research Study 212, 2000.

The same evaluation found that older offenders who had been dependent for longer were more likely to do well under the orders because of their stronger desire finally to give up drugs. Given that the young people who will be subject to these new provisions will be on average at least 10 years younger than the average DTTO offender during the DTTO pilots, these findings should be considered an important source of information about their likely impact on the motivation of young people who may be working hard but succeeding only slowly with the difficult process of coming off class A drugs.

I believe that the case has not been made for attaching a separate testing requirement on top of a treatment requirement to an action plan and supervision order. The amendments would reflect the reality of treatment provision. Testing is not and should not be seen as a stand-alone intervention where drug use has already been identified. I beg to move.

7.30 p.m.

Lord Bassam of Brighton

My Lords, Amendments Nos. 232 and 235 would remove the ability of the court to include a drug-testing requirement alongside the treatment requirement for those aged 14 and over as part of a coherent action plan order or a supervision order.

It is worth repeating that the purpose of this provision is not to set up young offenders to fail, as the noble Baroness suggested may happen. Allowing a testing requirement to be included in the orders is necessary to assist the responsible officer or treatment provider in ascertaining whether the treatment the offender is receiving is effective. It is also a highly useful tool for the treatment provider to tailor the treatment according to the needs of the offender.

Testing is integral to the treatment and an indicator of the young offender's progress with the treatment he is receiving. As we have stated in the past, we anticipate that these provisions will be used primarily for problematic drug-misusing offenders who lead a chaotic and disturbed lifestyle. We further anticipate and suggest that the testing requirement will be used primarily in the case of misuse of specified class A drugs which are the drugs which are commonly acknowledged to cause the most harm. As we have also said, we intend to introduce these provisions in limited areas initially so that their effectiveness can be further evaluated.

I fully understand the arguments that have been put forward that this adds another layer to the requirements of the order and therefore another condition which could be breached. However, as we have made clear, we recognise the multiple problems often affecting young offenders such as those who need treatment for their drug misuse in addition to other programmes for their offending behaviour. We also recognise that it will take time for them to become drug free. These considerations will be taken into account when the issue of breach is considered. I assure the noble Baroness, as we propose to make clear in guidance, that an assessment of breach will be made on the basis of the offender's overall progress and compliance with the elements of the order.

For those reasons we believe that the amendments should be resisted. I cannot agree that this is a stand-alone provision. We do not see it in that way, but as part of a cohesive and coherent programme. For those reasons we shall continue to resist the amendments which were similarly moved in Committee.

Baroness Walmsley

My Lords, I thank the Minister for his response. I accept that any demotivating element or feeling that a child has been set up to fail would be an unintended consequence. However, it is a real consideration that should be taken into account. If a testing order is not made an essential element of the action plan, it does not mean that testing could not take place. What it boils down to is the fact that I would rather leave it to the professionals to decide whether it would help a young person to progress. That is the way that it would work best in the interests of a young person coming off drugs. Clearly, we share that objective with the Government. I do not intend to press the amendment. I thank the Minister for his further explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 233 to 235 not moved.]

Schedule 24 [Increase in maximum term for certain summary offences]:

Baroness Scotland of Asthalmoved Amendment No. 235ZA: Page 319, line 34, at end insert—

(4A) In section 62B (failure to comply with direction under section 62A: offences), in subsection (3), for "3 months" there is substituted "51 weeks".

The noble Baroness said: My Lords, in moving Amendment No. 235ZA I shall speak also to Amendments Nos. 235ZB and 235ZC. I hope that I can take these matters very shortly. These amendments increase the maximum penalties for the offences linked to measures in the Anti-social Behaviour Bill to deal with trespasses on land, raves and noisy premises, so as to ensure that they are compatible with the new sentencing framework in the Criminal Justice Bill. I beg to move.

Lord Hylton

My Lords, I am surprised to see an amendment to the Anti-social Behaviour Bill, which is not yet law, incorporated in this Bill. Perhaps the Minister can explain that apparent anomaly.

As regards Amendment No. 235ZC, I understood from our earlier discussions on anti-social behaviour that closure of noisy premises was intended to be a very short-term measure so that an immediate problem could be sorted out and a serious nuisance stopped for a short period. Now it appears that three months is to be extended to 51 weeks. Can the noble Baroness account for that?

Baroness Scotland of Asthal

My Lords, that is in order to make the provisions compatible. I had sought to shorten the debate, but I am happy to explain how each of the amendments operates.

Amendments Nos. 235ZA, 235ZB and 235ZC, to which the noble Lord, Lord Hylton, made reference, make the necessary changes to the maximum penalties available for certain offences in the Anti-social Behaviour Bill so as to ensure that they may be compatible with the new sentencing framework. By adding these offences to Schedule 24 they will have their maximum penalties increased from three months to 51 weeks' imprisonment on the introduction of the new short custodial sentences contained in the Criminal Justice Bill. It simply allows the court to deal with them in an appropriate way and make them subject to those provisions.

Amendments Nos. 235ZA and 235ZB bring the penalties to deal with raves and trespasses on land in the Anti-social Behaviour Bill into line with the penalties for similar offences, which are already listed in Schedule 24. We have tabled them at this stage as it is likely—I put it no higher—that the Anti-social Behaviour Bill will precede this Bill on to the statute book.

Amendment No. 235ZC amends the maximum penalty for the offence of opening premises in contravention of a closure order under Clause 46 of the Anti-social Behaviour Bill. This clause deals with the closure of noisy premises so the two need to dovetail with one another. The synergy is there and will now be reflected in the Bill. I hope, therefore, that we shall not have to return to it for further amendment. I have learnt the lesson from this that short-cuts are never really worth taking.

On Question, amendment agreed to.

Baroness Scotland of Asthalmoved Amendment No. 235ZB: Page 319, line 36, leave out "subsection (6)" and insert "subsections (6) and (7B)

On Question, amendment agreed to.

Baroness Scotland of Asthalmoved Amendment No. 235ZC: Page 321, line 35, at end insert—

"Anti-social Behaviour Act 2003 (c. 00)

In section 47 of the Anti-social Behaviour Act 2003 (closure of noisy premises), in subsection (5)(a), for "three months" there is substituted "51 weeks.

On Question, amendment agreed to.

[Amendment No. 235A had been re-tabled as Amendment No. 236FA.]

Clause 265 [Minimum sentence for certain firearms offences]:

Baroness Scotland of Asthalmoved Amendment No. 235B: Page 149, line 28. after "(ae)" insert ", (af)

The noble Baroness said: These amendments are technical. I shall put them into order because they were previously in another group. We may be transposing the groups. In moving Amendment No. 235B, I shall speak also to Amendments Nos. 236A and 236B, 236D to 236F, 236J, 248A and 248B. I shall attempt to take the issues shortly. Perhaps noble Lords could indicate whether they are comfortable with that position.

Amendments Nos. 235B, 236A and 236B apply the minimum sentence for unlawful possession of prohibited firearms to Brocock-type air weapons, which are being prohibited in the Anti-social Behaviour Bill. The prohibition is necessary because the weapons are vulnerable to conversion to fire live ammunition and have become popular with criminals. They should therefore attract the minimum sentence.

Amendments Nos. 236D to 236F and 248A and 248B extend to Northern Ireland the increased maximum sentence for smuggling prohibited firearms. Amendment Nos. 236D to 236F also apply to the maximum sentence for smuggling Brocock-type air weapons.

Amendment No. 236J will enable the minimum sentence provisions and the maximum sentence for smuggling firearms to be applied to any dangerous firearms that may be prohibited in the future. Section 1(4) of the Firearms (Amendment) Act 1988 contains a power for the Secretary of State to make an order to add specifically dangerous firearms to the list of prohibited weapons in Section 5 of the Firearms Act 1968. Changes to this power are being made in the Anti-social Behaviour Bill and will allow a future order to include some, but not all, of the amendments necessary to apply sentencing provisions in the Criminal Justice Bill to any firearms prohibited in the future. They will enable an order to amend the principal Act—the Firearms Act—but not other enactments.

Amendment No. 236J addresses that issue by enabling an order to make the necessary amendments to the Powers of Criminal Courts (Sentencing) Act 2000 and the Customs and Excise Management Act 1979. I beg to move.

On Question, amendment agreed to.

Lord Monsonmoved Amendment No. 236: Page 149, line 34, leave out from "that" to end of line 36 and insert "in relation to all the circumstances relating to the offence or to the offender it would be unjust to do so

The noble Lord said: My Lords, my noble and learned friend Lord Ackner was hoping that the amendment would come up before seven o'clock. I wish to move the amendment, however inadequately, because I think that the matter is too important not to be discussed.

When we last debated the matter about five weeks ago, I asked the Minister which other first world countries imposed minimum sentences for crimes other than murder: I was well aware that a number of third world countries did so. The noble Baroness was kind enough to write me an extremely helpful and comprehensive letter—as incidentally, to their eternal credit, is the habit of most Ministers in this particular administration—for which I thank her. Her letter listed five first world countries in which minimum sentences apply for crimes other than murder. In alphabetical order those are: Germany, the Republic of Ireland, Russia, Switzerland and the United States of America.

Even if one counts Russia as a first world rather than a second world country—which is open to question, certainly as far as concerns per capita GDP and the treatment of political opponents—I do not think that it is a very good mentor regarding penal policy. Nor, for different reasons, do I think that the USA is a very good mentor, much as I admire it in most other respects. That leaves Germany, the Republic of Ireland and Switzerland. In Switzerland the minimum sentences are six months for burglary and 12 months for drug offences. They are extremely low; it is impossible to imagine lower sentences being imposed ever in the absence of minimum sentence legislation. In Germany the minimum sentences are a little higher but still low: they are one to two years for certain drug dealing offences. Only in the Republic of Ireland is there a particularly severe minimum sentence—10 years for the dealing in drugs of a value of 12,700 euros or more, which is equivalent to about £8,500 to £9,000 sterling.

I realise that the amendment of my noble and learned friend Lord Ackner does not remove the minimum sentence requirement, it merely makes it a little less draconian. Nevertheless, it is better than nothing. I beg to move.

7.45 p.m.

Baroness Scotland of Asthal

My Lords, I say straight away to the noble Lord that I am grateful that he categorised Germany and Switzerland at least as first world countries which do not suffer from the normal difficulties that he identified in relation to others. Of course, we say that those countries are used just as an indicator that this is not outwith that which can be done. There will be regional differences. I would hope that the noble Lord recognises that Ireland has a particular resonance for us, in terms of the common law tradition, the way in which the judiciary is structured and indeed the response to its difficulties. It is similar in that sense to our position. The noble Lord was quite right to identify the sentence in relation to drug matters.

The amendment is identical to one tabled but not moved by the noble and learned Lord, Lord Ackner, in Committee. Its purpose was to ensure that courts have sufficient discretion not to impose the new minimum sentence for certain firearms offences in cases where it would be unjust.

Clause 265 requires the court to impose the minimum sentence unless there are exceptional circumstances relating to the offence or to the offender which justify its not doing so. This is designed to ensure that the minimum sentence is applied as widely as possible, but that it is not used in cases where it would clearly be disproportionate.

The amendment would replace this exceptional circumstance with one that would allow the courts to have regard to all the circumstances relating to the offence or to the offender and to decide not to impose the minimum sentence if it would be unjust to do so.

We understand why the noble Lord put the issue in that way, but we think that the test we have in the Bill will enable the court to exercise its discretion. It is also true—and this has been mentioned throughout the passage of this Bill—that the whole issue of drug crime, which is more and more supported by gun crime, has become a real problem. It is a scourge. We must make an appropriate response. We think that this provision has sufficient safeguards to enable matters to be dealt with appropriately. We ask the noble Lord not to press the amendment.

Lord Monson

My Lords, I am grateful to the noble Baroness for her extremely thorough reply. She mentioned the Republic of Ireland as having the same common law tradition as ourselves, which is indeed the case, but it is significant that it does not have a minimum sentence for firearms offences—only, apparently, judging by the answer in her letter, for serious drug offences. Nevertheless, although I have no idea what the noble and learned Lord, Lord Ackner, would have said were he standing just behind me, I think that it was worth airing the matter and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 266 [Certain firearms offences to be triable only on indictment]:

Baroness Scotland of Asthalmoved Amendment No. 236A: Page 150, line 38, column 1, after "(ae)" insert", (af)

On Question, amendment agreed to.

Clause 267 [Power to sentence young offender to detention in respect of certain firearms offences: England and Wales]:

Baroness Scotland of Asthalmoved Amendment No. 236B: Page 151, line 23, after "(ae)" insert ", (af)

On Question, amendment agreed to.

Lord Bassam of Brightonmoved Amendment No. 236C: After Clause 269, insert the following new clause—

"SENTENCING FOR FIREARMS OFFENCES IN NORTHERN IRELAND

Schedule (Sentencing for firearms offences in Northern Ireland) (which contains amendments of the Firearms (Northern Ireland) Order 1981 (S.I. 1981/155(N.I. 2)) relating to sentencing) shall have effect.

The noble Lord said: My Lords, this group of amendments makes provision for mandatory minimum sentences in Northern Ireland. They also provide technical and consequential modifications necessary to ensure the proper functioning of those provisions in Northern Ireland. They have been tabled following legitimate expressions of concern legitimately raised by local political representatives. My right honourable friend the Secretary of State for Northern Ireland has concluded that the community in Northern Ireland should benefit from those important new measures.

Amendment No. 247A, which is grouped, corrects a minor drafting error from Committee. I beg to move.

On Question, amendment agreed to.

Clause 270 [Increase in penalty for offences relating to importation or exportation of certain firearms]:

Lord Bassam of Brightonmoved Amendments Nos. 236D to 236F: Page 152, line 27, leave out from "of to "prohibition" in line 32 and insert—

  1. "(a) an offence under subsection (2) or (3) above committed in Great Britain in connection with a prohibition or restriction on the importation of any weapon or ammunition that is of a kind mentioned in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or (lA)(a) of the Firearms Act 1968,
  2. (b) any such offence committed in connection with the"

Page 152, line 38, leave out from "of to "prohibition" in line 43 and insert—

  1. "(a) an offence under subsection (2) or (3) above committed in Great Britain in connection with a prohibition or restriction on the exportation of any weapon or ammunition that is of a kind mentioned in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or (lA)(a) of the Firearms Act 1968,
  2. (b) any such offence committed in connection with the"

Page 153, line 5, leave out from "of to "prohibitions" in line 9 and insert—

  1. "(a) an offence under subsection (2) or (3) above committed in Great Britain in connection with a prohibition or restriction on the importation or exportation of any weapon or ammunition that is of a kind mentioned in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or (lA)(a) of the Firearms Act 1968,
  2. (b) any such offence committed in connection with the"

On Question, amendments agreed to.

Lord Bassam of Brightonmoved Amendment No. 236FA: Before Schedule 27, insert the following new schedule—

"SENTENCING FOR FIREARMS OFFENCES IN NORTHERN IRELAND

  1. 1. The Firearms (Northern Ireland) Order 1981 (S.I. 1981/ 155(N.I. 2)) is amended as follows.
  2. 2. In Article 2(2) (interpretation) after the definition of "firearms dealer" there is inserted—
  3. 3 In Article 3(1) (requirement of firearm certificate) for sub- paragraph (a) there is substituted—

4 After Article 52 of that Order there is inserted—

"52A MINIMUM SENTENCE FOR CERTAIN OFFENCES

  1. (1) This Article applies where—
    1. (a) an individual is convicted of—
      1. (i) an offence under Article 3(1)(aa),
      2. (ii) an offence under Article 6(1)(a), (ab), (ac), (ad), (ae) or (c), or
      3. (iii) an offence under Article 6(lA)(a), and
    2. (b) the offence was committed after the commencement of this Article and at a time when he was aged 16 or over.
  2. (2) The court shall—
    1. (a) in the case of an offence under Article 3(l)(aa) committed by a person who was aged 21 or over when he committed the offence, impose a sentence of imprisonment for a term of five years (with or without a fine), and
    2. (b) in any other case, impose an appropriate custodial sentence for a term of at least the required minimum term (with or without a fine)
      • unless (in any of those cases) the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
  3. (3) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this Article to have been committed on the last of those days.
  4. (4) In this Article—
    1. (a) in the case of an offender who is aged 21 or over when convicted, a sentence of imprisonment, and
    2. (b) in the case of an offender who is aged under 21 at that time, a sentence of detention under section 5(1) of the Treatment of Offenders Act (Northern Ireland) 1968;
    1292
    1. (a) in the case of an offender who was aged 21 or over when he committed the offence, five years, and
    2. (b) in the case of an offender who was aged under 21 at that time, three years."

5 After Article 52A there is inserted—

"52B POWER BY ORDER TO EXCLUDE APPLICATION OF MINIMUM SENTENCE TO THOSE UNDER 18

  1. (1) The Secretary of State may by order—
    1. (a) amend Article 52A(l)(b) by substituting for the word "16" the word "18", and
    2. (b) make such other provision as he considers necessary or expedient in consequence of, or in connection with, the provision made by virtue of sub-paragraph (a),
  2. (2) The provision that may be made by virtue of paragraph (l)(b) includes, in particular, provision amending or repealing any statutory provision within the meaning of section l(f) of the Interpretation Act (Northern Ireland) 1954 (whenever passed or made).
  3. (3) An order under paragraph (1) shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly."

6 (1) Schedule 2 (table of punishments) is amended as follows.

(2) For the entry relating to offences under Article 3(1) (purchase, acquisition or possession of firearm or ammunition without firearm certificate.) there is substituted—

"Article 3(l)(aa) Purchase, acquisition or possession of handgun without firearm certificate Indictment 10 years or a fine, or both
Article 3(1)(ab) Purchase, acquisition or possession without firearm certificate of firearm other than handgun (a) Summary 1 year or a fine of the statutory maximum, or both
(b) Indictment 5 years or a fine, or both
Article 3(1)(b) Purchase, acquisition or possession of ammunition without firearm certificate (a) Summary 1 year or a fine of the statutory maximum, or both
(b) Indictment 5 years or a fine, or both

(3) For the entries relating to offences under Article 6(1) (manufacture, dealing in or possession of prohibited weapons) and Article 6(1A) (possession of or dealing in other prohibited weapons) there is substituted—

"Article 6(1)(a), (ab), (ac), (ad), (ae) and (c) Manufacture, dealing in or possession of prohibited weapons. Indictment 10 years or a fine, or both
Article 6(1)(b) Manufacture, dealing in or possession of prohibited weapon designed for discharge of noxious liquid etc. (a) Summary 1 year or a fine of the statutory maximum, or both
(b) Indictment 10 years or a fine, or both
Article 6 (1A)(a) Possession of or dealing in firearm disguised as other object Indictment 10 years or a fine, or both
Article 6(1A)(b),(c), (d), (e), (f) or (g) Possession of or dealing in other prohibited weapons (a) Summary 6 months or a fine of the statutory maximum, or both.
(b) Indictment 10 years or a fine, or both"."

On Question, amendment agreed to.

Schedule 28 [Further provision about new method]:

Baroness Scotland of Asthal moved Amendment No. 236G: Page 328, leave out lines 27 to 31.

The noble Baroness said: My Lords, government Amendments Nos. 236G, 236H, 236J to 236Q, 246A and 246B ensure that the Bill's provisions interact correctly with Scottish legislation. Further details about the effect of each of the amendments can be provided, but they are technical. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 236H to 236T: Page 331, line 37, at end insert—

"Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55)

30A In Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (ineligibility for and disqualification and excusal from jury service), in Part 2, in paragraph (bb), for sub-paragraph (v) there is substituted—

Page 334, line 43, at end insert—

"Firearms (Amendment) Act 1988 (c. 45)

46A The Firearms (Amendment) Act 1988 is amended as follows.

46B In section 1 (prohibited weapons and ammunition), in subsection (4A) after paragraph (b) there is inserted—

(bb) may amend subsection (lA)(a) of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (offenders under 18 convicted of certain serious offences: power to detain for specified period) so as to include a reference to any provision added by the order to section 5(1) of the principal Act,

(bc) may amend section 50(5A)(a), 68(4A)(a) or 170(4A)(a) of the Customs and Excise Management Act 1979 (offences relating to improper importation or exportation) so as to include a reference to anything added by the order to section 5(1) of the principal Act,".

46C In section 27(4) (which relates to Northern Ireland), after "Except for" there is inserted "section 1, so far as enabling provision to be made amending the Customs and Excise Management Act 1979, and".

Page 337, line 20, at end insert— (aa) after subsection (1) there is inserted— (1AA) This Part of this Act, except section 2(9), applies also to a transferred life prisoner—

  1. (a) who is transferred from England and Wales on or after the date on which section 247 of the Criminal Justice Act 2003 comes into force,
  2. (b) in relation to whom paragraph 3 of Schedule 20 to that Act applies by virtue of paragraph 2(a) of that Schedule, but
  3. (c) in respect of whom, under the paragraph so applying, no order has been made,

Page 338, line 6, at end insert— (1A) In subsection (1), the words after paragraph (b) are omitted.

Page 338, line 12, at end insert— (2A) In subsection (3), the words "or to vary" to "one hundred" are omitted.

Page 338, line 24, at end insert— (3A) After subsection (4) there is inserted— (4A) A probation order made or amended under this section must specify as the corresponding requirements for the purposes of this section requirements which could be included in a community order made under section 159 of the Criminal Justice Act 2003." Page 338, line 27, leave out from "made" to end of line and insert "by a magistrates' court under section 159 of that Act and imposing the requirements specified under subsection (4A) above

Page 338, line 28, leave out sub-paragraph (5) and insert—

  1. "(5) For subsection (6) there is substituted—
  2. "(6) In its application to a probation order made or amended under this section, Schedule 7 to the Criminal Justice Act 2003 has effect subject to the following modifications—
    1. (a) any reference to the responsible officer has effect as a reference to the person appointed or assigned under subsection (l)(a) above,
    2. (b) in paragraph 9—
    1. (i) paragraphs (b) and (c) of sub-paragraph (1) are omitted,
    2. (ii) in sub-paragraph (6), the first reference to the Crown Court has effect as a reference to a court in Scotland, and
    3. (iii) any other reference in sub-paragraphs (6) or (7) to the Crown Court has effect as a reference to the court in Scotland, and
  3. (c) Parts 3 and 5 are omitted.""

Page 339, line 43, leave out from beginning to "in" in line 44 and insert—

69A The Criminal Justice (Northern Ireland) Order 1996 is amended as follows.

69B In Article 2 (interpretation) after paragraph (8) there is inserted—

(9) For the purposes of this Order, a sentence falls to be imposed under paragraph (2) of Article 52A of the Firearms (Northern Ireland) Order 1981 if it is required by that paragraph and the court is not of the opinion there mentioned.

69C In Article 4 (absolute and conditional discharge), in paragraph (1), for "(not being an offence for which the sentence is fixed by law)" there is substituted "(not being an offence for which the sentence is fixed by law or falls to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981)".

69D In Article 10 (probation orders), in paragraph (1) for "(not being an offence for which the sentence: is fixed by law)" there is substituted "(not being an offence for which the sentence is fixed by law or falls to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981)".

70 (1) Article 13 (community service orders) is amended as follows.

(2) In paragraph (1) for "(not being an offence for which the sentence is fixed by law)" there is substituted "(not being an offence for which the sentence is fixed by law or falls to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981)".

Page 339, line 48, at end insert—

70A In Article 15 (orders combining probation and community service), in paragraph (1) for "(not being an offence for which the sentence is fixed by law)" there is substituted "(not being an offence for which the sentence is fixed by law or falls to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981)".

70B In Article 19 (restrictions on imposing custodial sentences), at the end of paragraph (1) there is inserted "or falling to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981".

70C In Article 20 (length of custodial sentences), at the end of paragraph (1) there is inserted "or falling to he imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981".

70D In Article 24 (custody probation orders), in paragraph (1) for "other than one fixed by law" there is substituted ", other than an offence for which the sentence is fixed by law or falls to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981,".

Page 340, line 8, leave out "section 228(5)" and insert "section (Persons liable to removal from the United Kingdom)"

Page 342, line 20, leave out paragraph 76.

On Question, amendments agreed to.

[Amendment No. 237 not moved.]

Baroness Scotland of Asthalmoved Amendment No. 237A: Page 360, line 12, at end insert—

"Sexual Offences Act 2003

129A The Sexual Offences Act 2003 is amended as follows.

129B In section 131 (application of Part 2 to young offenders), after paragraph (j) there is inserted—

129C In section 133 (general interpretation), at the end of paragraph (a) of the definition of "community order" there is inserted "(as that Act had effect before the passing of the Criminal Justice Act 2003)".

On Question, amendment agreed to.

Baroness Scotland of Asthalmoved Amendment No. 237B: Page 361, line 22, at end insert—

"Army Act 1955 (3&4 Eliz. 2 c. 18)

In section 61 of the Army Act 1955, for the words from "the like" to "section nineteen of this Act" there is substituted "dismissal from Her Majesty's service with or without disgrace, to detention for a term not exceeding three months,".

Air Force Act 1955 (3&4 Eliz. 2 c. 19)

In section 61 of the Air Force Act 1955, for the words from "the like" to "section nineteen of this Act" there is substituted "dismissal from Her Majesty's service with or without disgrace, to detention for a term not exceeding three months,".

Naval Discipline Act 1957 (c. 53)

In section 34A of the Naval Discipline Act 1957, for the words "imprisonment for a term not exceeding three months" there is substituted "dismissal from Her Majesty's service with or without disgrace, detention for a term not exceeding three months,".

The noble Baroness said: My Lords, Amendments Nos. 237B and 237C are consequential to provisions in the Bill that alter the penalties of various offences in Service Acts. The amendments ensure that the consequential changes are made to the relevant Acts, so that the penalties for similar offences concerning the provision of false information are considered. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthalmoved Amendment No. 237C: Page 361, line 35, at end insert—

"Reserve Forces Act 1996 (c. 14)

In paragraph 5(3) of Schedule 1 to the Reserve Forces Act 1996, for the words "imprisonment for a term not exceeding three months" there is substituted "dismissal from Her Majesty's service with or without disgrace, to detention for a term not exceeding 3 months,".

On Question, amendment agreed to.

Clause 283 [Limit on period of detention without charge of suspected terrorism]:

Lord Lloyd of Berwickmoved Amendment No. 238: Leave out Clause 283.

The noble and learned Lord said: My Lords, this is a free-standing amendment that I suggest is of some importance because it affects the liberty of the subject. Clause 283 amends the Terrorism Act 2000 by increasing from seven to 14 days the period during which a suspected terrorist can be detained without charge. The purpose of my amendment is simply to leave out Clause 283.

In Committee, the Minister replied at considerable length—for which I am sure that the whole House was and remains grateful. However, I regret that [am still not persuaded that such a sudden and dramatic inroad into the liberty of the subject has been justified. The House will remember that in the case of all ordinary offences, the maximum period for which a man can be held without charge is four days. That is so however serious the offence—even including the most serious offences—and however difficult or protracted the investigation. That four days represents less than one third of what is now proposed in the case of terrorist offences.

I asked the Minister to remind the Committee about recent terrorist occurrences on the mainland of Great Britain, since it seemed to me that the number of such incidents would be of great relevance to whether Clause 283 should stand part. She was then unable to give the Committee that information, but this morning I checked the facts with the Centre for the Study of Terrorism at St Andrews under the chairmanship of Professor Wilkinson.

The most recent terrorist incident involving loss of life was in February 1996, at Canary Wharf, where two people were killed. In June 1996, there was an incident in Manchester city centre, where about 200 people were injured—I believe that no one was killed, but I may be wrong. There was then a gap of five years until 4th March 2001 when there was an explosion at the BBC in west London in which one person was injured. In May 2001, a device exploded at Hendon—again, one person was injured. In August 2001, there was an explosion at Ealing Broadway, when seven persons were injured. In the same month, a device was discovered in Birmingham that failed to go off. Since 2001, there have been no incidents of terrorism of any kind on the mainland of the United Kingdom.

So in the eight years since 1996, there have been only two deaths.

Lord Carlile of Berriew

My Lords, I am grateful to the noble and learned Lord. I know that it is difficult to discuss matters that are pending before the courts, but I am sure that he would want to bear in mind that there are such matters, including the incident that led to the death of Detective Constable Oake in Manchester last year, which is alleged to be part of a terrorist incident.

Lord Lloyd of Berwick

My Lords, I am grateful for that intervention and of course shall turn to more recent incidents—especially those subject to current investigation—in due course.

As I said, there has been a gap of five years and a total of two people killed back in 1996. In the three years since 2001, a total of nine people have been injured. All of those were incidents of Irish terrorism. There has not been a single incident of international terrorism, unless one counts the Lockerbie air disaster, about which we could clearly have done nothing.

It may be said that there have been no incidents of terrorism since 2001 because the Anti-Terrorist Squad has been so successful. I am happy to accept that that has been so, but that argument is self-defeating. If the Anti-Terrorist Squad has managed to keep us safe since 2001 with the seven days allowed under the Terrorism Act 2000, why does it suddenly need 14 days now? International terrorism was not invented in 2001.

Why do I stress the absence of any incident of international terrorism? The whole basis of the argument of the Minister when she replied and the whole basis of the speech of the noble Lord, Lord Carlile of Berriew, whom I am glad to see in his seat, was that the nature of terrorism had changed since 2000, when seven days were thought sufficient. It is said to have changed because international terrorism is so much more difficult to prove than Irish terrorism. Indeed, when listening to the Minister and to the noble Lord on the Liberal Democrat Benches, I almost had the impression that, if we were concerned only with Irish terrorism, they would have been perfectly content to continue to accept seven days as the appropriate period for detention. No arguments to the contrary were advanced; all their arguments were based on the threat of international terrorism.

What is so special about the threat of international terrorist activity? It is said that there can be language difficulties in investigating such cases. If a terrorist suspect is arrested in north Norfolk, for example, very few Arabic interpreters would be available locally. But the answer to that objection is perfectly simple: Schedule 8 to the Terrorism Act 2000 gives the Secretary of State a power to designate places where terrorist suspects are to be detained. Surely there would be no difficulty in bringing terrorist suspects to London, where plenty of interpreters would be available to carry the matter forward.

The second difficulty—I refer here to the three difficulties to which the Minister referred in her letter to me—is that of analysing hard drives in computers. That argument was utterly demolished in Committee by the noble Lord, Lord Thomas of Gresford, when he observed—I have no reason to disbelieve him—that it takes far longer than 14 days to analyse the hard drives in computers. So I hope that we shall not hear that argument again.

Thirdly, it is said that, with the advent of chemical and biological weapons, time is needed to analyse substances which may be found on the terrorist's person or in his premises. However, chemical and biological weapons have been with us since at least the atrocity on the Japanese underground many years ago. They are the favoured weapons of international terrorists. So there is nothing new here.

In any event, if they had validity, all the three points on which the Minister relied would have been raised when we were asked to pass the Anti-terrorism, Crime and Security Act 2001. That Act was passed in a great hurry during the immediate aftermath of 9/11. Many regarded it as a profoundly illiberal measure. It is the Act under which eight suspects are still being detained without trial after a period of 20 months. Further, and perhaps more relevant to our present purposes, Part 6 contains detailed provisions relating to chemical and biological weapons.

If the analysis of chemical and biological substances requires 14 days rather than seven days, as is now suggested, why was that point not raised in 2001 when the anti-terrorism Act was passed? Surely that was the appropriate occasion, when the House was addressing the question of terrorism. The opportunity was not taken at the time, no doubt because it was thought that such an amendment was not necessary. Yet here we are, less than two years later, being asked to tack on to the end of an immensely long Criminal Justice Bill a provision relating to terrorism which has nothing whatever to do with the rest of the Bill. It is hard to find anything which is not covered in this legislation, but there is no mention of terrorism until we come to Clause 283.

What has changed since 2001 to make this provision so necessary? I would say: precisely nothing. Certainly there have been no incidents of international terrorism. A number of figures were cited by the Minister on the last occasion. Of the 212 people who were arrested between January 2002 and March 2003, only 16 were detained for six days. That does not suggest any great urgency or major change in circumstances. All those 16—here I address the point raised by the noble Lord, Lord Carlile—concerned a single operation following the discovery in January 2003 of ricin in north London. I wait to be corrected if I am wrong about that. Of the 16, 11 have made appearances in court, four have been charged under Section 57 and one charged with the non-terrorist offence of forgery. Those figures hardly spell out any great need for a change in the law.

So far as I can tell, nothing was said by the noble Lord, Lord Carlile, in his report published at the end of 2002 to suggest that seven days was inadequate. Nothing was suggested in the report of the independent commissioner for the detained terrorist suspects. I suggest that the evidence on which to change the law so radically against the liberty of the individual is quite inadequate. It is simply because the police have said that they would like 14 days rather than seven days, and simply because they seem to have persuaded the Home Office.

As Members of Parliament, surely we must be satisfied of the need for the provision. I have seen the evidence. The Minister was good enough to let me see it, but obviously I cannot pass that on to the House. However, I for one am not satisfied with the evidence on which the Government are relying. Of course terrorism is an ever-present danger and of course we must be for ever vigilant, but let us not become paranoid when the subject of terrorism is mentioned. Above all, let us not over-react. That is what we would be doing by allowing Clause 283 to stand part of the Bill. It represents an over-reaction, out of all proportion to the present danger from terrorism. I beg to move.

Lord Thomas of Gresford

My Lords, your Lordships will recall that in Committee I tabled an amendment to extend the seven-day period to 10 days but withdrew it on the basis that it was merely a very ineffective compromise. We have reflected further— we have, of course, borne in mind the powerful speech of my noble friend Lord Carlile of Berriew on the previous occasion—and have come to the conclusion that we will support the amendment of the noble and learned Lord, Lord Lloyd.

In Committee, the noble and learned Lord asked whether there had been consultation with the district judges who overlook the processes. That theme was taken up by the noble Lord, Lord Clinton-Davies, and finally by me. I asked a series of specific questions and indicated that by the Report stage we would be in a far better position to judge what proper course we should take in the light of the views expressed to us by the Minister and the views of the district judges. I have not received a letter. I do not know whether the noble and learned Lord has. It certainly has not been copied to me and I do not know the result of that consultation.

Lord Lloyd of Berwick

My Lords, I very much regret that the noble Lord, Lord Thomas, has not had a copy of the letter. I have received a letter. It states in the last paragraph that the letter has been copied to myself and to the noble Lords, Lord Hunt, Lord Thomas, Lord Clinton-Davis and Lord Carlile. I am happy to hand the noble Lord my copy of the letter here and now. It will not help him very much.

Lord Thomas of Gresford

My Lords, it is not an unusual situation for someone to hand me a document while I am on my feet. I am informed from behind by those instructing me that it is a very long letter. Perhaps I should reserve further comment until I have read it.

Baroness Anelay of St Johns

My Lords, I rise briefly to express the views of my noble friend Lord Hunt of Wirral. He apologises that he has had to leave. As noble Lords are aware, we had anticipated finishing this business slightly earlier. I share my noble friend's views entirely and so I have no problem in relaying them.

My noble friend makes the point that we share the Government's determination to deal effectively with the threat of terrorism. In Committee, we listened very carefully to all the views put forward. As a result, we have been persuaded by the arguments of the Minister, in part, and, in particular, by the arguments put forward in the very important contribution, as my noble friend puts it, of the noble Lord, Lord Carlile of Berriew, the statutory independent reviewer of the Terrorism Act 2000. We therefore do not support the amendment.

8.15 p.m.

Baroness Scotland of Asthal

My Lords, I hope to help the noble Lord, Lord Thomas of Gresford, with my comments. I shall try not to repeat everything I said—I know that noble Lords will take that as given—and I do not resile from any of those comments.

The noble and learned Lord, Lord Lloyd, is right. Amendment No. 238 would strike out the provision in its entirety from the Bill. It would keep at seven the maximum number of days that a terrorist suspect can be held in detention without charge while investigations continue. That would prevent the police having the long-term counter-terrorism provision they consider essential based on their experience of the practicalities of dealing with suspected criminals.

I listened with great care to the recitation given quite properly by the noble and learned Lord of the difficulties of terrorism that we have faced over the past five years. However, the noble and learned Lord identified the issues upon which we then concentrated when dealing with the acts of terrorism which came primarily from the IRA campaign and which continued throughout that period. It is clear that we were not as successful as we would have liked because the deaths and injuries referred to by the noble and learned Lord occurred. I know the noble and learned Lord will agree that for the individuals and families concerned they were great tragedies indeed. We do not say that the provisions are not necessary to face that form of terrorism, but we abide by the statements we have made before about the need to go further.

The last IRA bombing was in November 2001. Bombs exploded in Henley, Hammersmith, Shepherds Bush and Ealing. The terrorism we face is different. The bombs do not necessarily have to kill to have a serious effect on the life and economy of the country.

There are no other incidents, as the noble and learned Lord, Lord Lloyd of Berwick, rightly said— and we will and do say that that is because the efforts of our security services have been successful. That does not prove that the additional issues are not necessary, because the security services are struggling against great odds. I almost wonder whether the noble and learned Lord is saying that, if we had had a slip between cup and lip and there had been a monstrous incident, we could now justify a further extension. We do not believe that there needs to be that slip between cup and lip before one understands, appreciates or does something about the fact that the ever-present danger has become heightened, graver and more difficult to deal with.

I spoke on a previous occasion about the complexity of the cases, and I shall summarise them quickly. The complexity stems, among other things, from the retrieval and analysis of substances for searches. I hear what the noble Lord, Lord Thomas of Gresford, said about that, but, as your Lordships know, we do not agree. It stems, too, from the requisition and analysis of the hard drives of PCs, in particular, and from mobile phone use and swapping of techniques of whole phones and phone parts such as SIM cards. All those issues continue.

There is a fundamental difference between investigation of international terrorism and investigation of suspects involved with terrorism related to the affairs of Northern Ireland. We know far less about those new people in general, and often know literally nothing on a specific basis when suspects are resident illegally in the United Kingdom. The situation is exacerbated when the case is composed of complex strands of investigation, such as those to which I have referred, making it difficult to complete an inquiry and gather sufficient evidence in the allotted time. But I emphasise again that there are few cases to which that would apply. Those cases will be serious and complex and will involve a combination of difficult and time-consuming investigative factors needed to provide sufficient evidence to proffer charges.

Complex cases are also sophisticated cases, and the police investigation needs to be correspondingly more sophisticated and wide-ranging to analyse and cross-reference the evidence available. That is what creates a different investigative playing field and justifies the need to allow the police an extended period to put the information together when circumstances make that necessary.

The last time that we discussed the matter, I undertook to ascertain from the members of the judiciary involved in the review and approval of extension of detention what those processes are and the level of scrutiny that they involve. I have received a response from the district judge concerned, Judge Timothy Workman, who is the senior district judge and chief magistrate at Bow Street Magistrates' Court, on behalf of his colleagues.

It is right that I respond to the questions asked of me by the noble Lord, Lord Thomas of Gresford, so that we can share the information more widely. The learned judge, Timothy Workman, said that there are 12 judges in total who have been nominated by the noble and learned Lord the Lord Chancellor to undertake the work related to extensions of detention under the Terrorism Act 2000. Three of the 12 undertake the work only when there are problems in meeting demand, and are essentially reserve judges, thus retaining a small core of specialist and experienced judges.

The hearings are conducted in private, at a court convenient to the holding police station, and hearings may be conducted by secure video link, when that facility exists. All suspects have the right to attend the hearing, and it is usual that they do so accompanied by their legal representatives. When that right is not exercised, the judge must satisfy himself that the defending lawyers have provided their clients with the statutory notice and grounds for the application being heard.

The application for an extension of detention is made by a senior officer of at least superintendent rank, who submits a document setting out, first, the nature of the inquiry, secondly, the work undertaken and, thirdly, the work still to be undertaken. It also includes the need for the suspect to be detained, the estimated time of the continuing inquiries and, usually, details from the custody log relating to all events affecting the suspects' welfare, including meals, legal visits and medical examination.

As part of the application process, the superintendent will probably be asked to augment the facts in the document. There is a process by which sensitive information can be heard in a protective environment when that is judged appropriate. After hearing the defence representations, the judge must decide whether he is satisfied that the terrorist investigation is being carried out diligently and expeditiously, and that there is a need for further detentions. If satisfied, the length of the continued detention is considered. Although it will depend on the individual case, Judge Tim Workman has indicated that the general principle has been to continue monitoring by requiring further applications after about 48 hours, at which point judges would expect to be provided with further information on why the detention should continue.

I also asked the learned judge for his thoughts on the proposal in Clause 283 to extend the maximum period of detention without charge from seven to 14 days. He says clearly, if I may respectfully say so with propriety, that because the police have to justify their position to the judge only for periods up to the current maximum of seven days, and because there have been relatively few cases in which the full seven days has been allowed, he is not in a position to offer a specific opinion on the proposals in the amendment. I would not have expected him to say otherwise. However, that does not mean that the additional seven daysare unnecessary. The learned judge went on to comment that he has been made aware that the police have had difficulties in converting information and intelligence into evidence and that that has affected whether it has been possible to prefer charges.

That is the very point that I have been trying to make in our debates. The police need the extra time in complex cases in order to obtain sufficient evidence that could result in an appropriate charge. That is what we seek to achieve.

The statistics that I provided in the previous debate referred to cases that had gone to the current maximum of seven days. Those numbered 16 out of 212 in a 15-month period. Judge Workman expands that to information for up to the six-day period. He says that, since 1st October 2002, the courts had received notification of 226 arrests under the Act. Of those individuals, 128 applications for warrants of further detention were made, of which 42 were made the subject of extensions of six days and therefore the subject of two or three applications before the judge.

I respectfully suggest that those statistics demonstrate the points that I have made previously; namely, that maximum detentions are used in very few cases and only where it can be of benefit to the investigation, and that there is scrutiny and monitoring because maximum extensions are not granted on a single application. The court is given the wherewithal to make a judicial determination as to whether expedition has been used with propriety and whether or not this is justified.

Furthermore, there is no indication that the threat from terrorism will decrease in the coming years. Just because there has not been a major incident does not mean that there is no threat. So far, we have had good levels of detection and disruption, but those individuals whose activities have been disrupted need to be investigated before they can be charged and we return to the issue of the time available.

Terrorism investigations, as I said, are unlike criminal investigations. Let us be in no doubt about that. I shall explain why that is the case. In drug trafficking or money laundering cases, for example, although we cannot be happy that a crime continues to be perpetuated, it can be strategically allowed to continue under strict surveillance in order for the police to build the maximum amount of evidence possible to achieve the best possible outcome in terms of the extent of arrests and prosecution. That is partly possible because for the end-user there is an element of volition. Although a drug-user may now be controlled by his condition, the initial forays into drug use will most likely have happened through choice. An individual who receives or knowingly operates with laundered money clearly does so by choice.

The victim of a terrorist attack equally clearly has no choice. The police, on learning of potential terrorist activity, cannot risk waiting long to build a case. They have no choice but to act to disrupt and detain where that is pressing and then to work further on the prosecution issue. They may have some intelligence-led evidence already but it is essentially at the point of arrest that they can start to investigate thoroughly. Once again I say that this is a balanced judgment. We come down firmly on the basis of extension with the safeguards that I have just mentioned. I emphasise that detaining people, whatever they are suspected of, is a serious matter for a democracy and it is right that such a measure should receive scrutiny. However, at the same time I believe that we have no choice but to give serious consideration to what is being proposed.

Your Lordships will have to decide on balance whether this limitation of liberty is proportionate and justified in a very small number of cases in relation to the potential damage the actions of suspected terrorists could have on our society. We believe that the balance goes in favour of making this extension which will be properly policed by the courts.

Lord Thomas of Gresford

My Lords, before the noble Baroness sits down, perhaps I can ask a question. The letter from Judge Workman sets out the answers to the question that I raised but it also raises another question regarding these hearings in the absence of the defendant and his lawyers. As the noble Baroness will remember, those were commented on at paragraph 105 of the report of the Joint Committee on Human Rights which pointed out that they could well breach Article 5.1 of the European Convention on Human Rights. The committee also pointed out that, Unlike the position in proceedings before the Special Immigration Appeal Tribunal, there is no provision to appoint a special advocate to make submissions on undisclosed material to protect the detainee's interests". Does the Minister think that these provisions may possibly breach that article as the committee thought, and does she have any proposals to deal with that point?

Baroness Scotland of Asthal

My Lords, your Lordships will know that we do not believe that these proposals breach that article. We believe that the proposals expounded by me from the Dispatch Box and contained in documents responding to queries adequately set out why we believe that these provisions are compliant. I hope that when looking at the very careful way in which the proceedings are monitored by the court the noble Lord will agree with me that there is every opportunity to make sure that the interests of the accused person are fully taken on board and that they are properly represented and are heard. Indeed, if I may respectfully say so, I certainly found the detail impressive in that it contained all the species of information that I should have liked to see given to the court to enable it to make an informed judgment on whether the police were being as expeditious as they should properly be. That therefore explains why so few cases are given the extensions but also gives us confidence that the same judges will be as rigorous in monitoring any further extension as they have been in monitoring the seven-day period.

Lord Lloyd of Berwick

My Lords, as before, I am very grateful indeed for the very full reply given by the Minister. I note that she did not answer the point which I specifically asked about the 16 detainees all being detained in respect of a single operation, but perhaps that is not the most important point. If it is, then of course it undermines very much her argument that that is something which is happening all the time.

Lord Carlile of Berriew

My Lords, I am grateful to the noble and learned Lord. I simply rise to correct a misapprehension. The 16 detainees are not all detained in relation to a single incident. Indeed, quite a number of them were detained before that incident occurred.

Lord Lloyd of Berwick

My Lords, of course the noble Lord is right. I was given the figures this morning by the centre for terrorist research in St Andrews. I was given the figures of 11, four and one, which add up to 16—all related to that one ricin incident. But perhaps I am wrong.

The noble Lord, Lord Thomas, is right that detention for 14 days is a gross breach of the European Convention on Human Rights. However, unfortunately, that does not help us, because in this respect we have derogated from the convention.

The Minister rightly says that in the end it is a matter of balance and judgment. However, she gives far too little weight to the fact that somebody who has not yet been charged with any offence known to English law is being held for 14 days and made subject to continuous interrogation. That is not right. Having made that point, I do not wish to press the argument in a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.30 p.m.

Clause 304 [Section 302: interpretation]:

Baroness Scotland of Asthalmoved Amendment No. 238A: Page 172, line 17, leave out "Part 1 of the Sex Offenders Act 1997" and insert "Part 2 of the Sexual Offences Act 2003

On Question, amendment agreed to.

Clause 305 [Criminal record certificates: amendments of Part 5 of Police Act 1997]:

[Amendment No. 238AA not moved.]

Baroness Scotland of Asthalmoved Amendment No. 238AB: After Clause 305, insert the following new clause—

"CIVIL PROCEEDINGS FOR TRESPASS TO THE PERSON BROUGHT BY OFFENDER

  1. (1) This section applies where—
    1. (a) a person ("the claimant") claims that another person ("the defendant") did an act amounting to trespass to the claimant's person, and
    2. (b) the claimant has been convicted of an imprisonable offence committed on the same occasion as that on which the act is alleged to have been done.
  2. (2) Civil proceedings relating to the claim may be brought only with the permission of the court.
  3. (3) The court may give permission for the proceedings to be brought only if there is evidence that either—
    1. (a) the condition in subsection (5) is not met, or
    2. (b) in all the circumstances, the defendant's act was grossly disproportionate.
  4. (4) If the court gives permission and the proceedings are brought, it is a defence for the defendant to prove both—
    1. (a) that the condition in subsection (5) is met, and
    2. (b) that, in all the circumstances, his act was not grossly disproportionate.
  5. (5) The condition referred to in subsection (3)(a) and (4)(a) is that the defendant did the act only because—
    1. (a) he believed that the claimant—
      1. (i) was about to commit an offence,
      2. (ii) was in the course of committing an offence, or
      3. (iii) had committed an offence immediately beforehand; and
    2. (b) he believed that the act was necessary to—
      1. (i) defend himself or another person,
      2. (ii) protect or recover property,
      3. (iii) prevent the commission or continuation of an offence, or
      4. (iv) apprehend, or secure the conviction, of the claimant after he had committed an offence;
  6. (6) Subsection (4) is without prejudice to any other defence.
  7. (7) In this section—
    1. (a) the reference to trespass to the person is a reference to—
      1. (i) assault,
      2. (ii) battery, or
      3. (iii) false imprisonment;
    2. (b) references to a defendant's belief are to his honest belief, whether or not the belief was also reasonable;
    3. (c) "court" means the High Court or a county court; and
      4. 1307
    4. (d) "imprisonable offence" means an offence which, in the case of a person aged 18 or over, is punishable by imprisonment."

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 256, standing in my name, and Amendment No. 238AC, tabled by the noble Lords, Lord Thomas of Gresford and Lord Dholakia.

Amendment No. 238AB would strengthen the civil law to improve protection for victims of crime against civil claims for damages by offenders. As noble Lords know, that issue was the subject of an opposition amendment in Committee. In responding to that amendment, my noble friend Lord Filkin indicated the Government's sympathy for the concerns raised by the Opposition in that area, but emphasised the importance of framing a clear and focused amendment that will genuinely strengthen courts' powers to reject unmeritorious claims. This amendment achieves those aims.

The amendment applies where a claimant has been convicted of an imprisonable offence. If the claimant wishes to sue someone for damages for a trespass to the person, including an assault or a battery, which was committed on the same occasion as the offence, he or she must first obtain the court's permission for the claim to proceed. The court may give permission only if the offender can show that certain conditions, relating to the defendant's perceptions and reasons for committing the act, which amounted to trespass to the claimant's person, are not met, or that in all the circumstances the defendant's act was grossly disproportionate. If the court gives permission, the defendant will not be liable at the trial if he or she can prove that the relevant conditions relating to his or her perceptions and reasons for acting are met, and that in all the circumstances the action was not grossly disproportionate.

As my noble friend Lord Filkin indicated, in drafting the amendment our thinking has been very much along the same lines as that of the Opposition in framing their earlier amendment. However, this amendment improves on that one in several ways—I hope that I can say that with a little modesty, because I did not draft it. It makes the procedure for the court to give preliminary consideration to the claim clearer by creating a formal permission stage. The need for permission will act as a filter to remove unmeritorious cases at an early stage without the defendant having to incur substantial costs.

The amendment provides a clear and strong evidential test—stronger than the "interests of justice" test in the opposition amendment. That means that the defendant will be prevented from relying on the defence of self-defence only if his or her actions have been grossly disproportionate. At present, it is lost if the actions have merely been unreasonable.

It makes clear that the other defences will continue to be available to the victim. For example, it will still be open to him or her to argue that the principle that a claim cannot be based on an illegal act applies. It benefits third parties who are not the direct victim of the offence, but who may have intervened to protect the victim or deter the criminal. It avoids the possible complexities of the opposition amendment relating to corporate bodies and proprietary interests. The courts are familiar with the concept of proportionality and the other issues which they will be required to consider. I am confident that they will be able to develop the law in a firm and sensible way. Amendment No. 256 amends the Long Title to cover the subject area of the amendment.

Amendment No. 238AC, tabled in the names of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, amends the new clause. It would require that when the court is considering the defendant's beliefs about the necessity of taking the action which amounted to trespass to the claimant's person and about the circumstances in which the action was taken, it must consider not only whether the beliefs were honestly held, but also whether they were reasonable.

We do not believe that the amendment is appropriate. There is always the possibility that a vulnerable person may honestly believe that he is in danger, even though, considered objectively, the belief is not a reasonable one. We do not consider that this would deny him the protection of the clause. But that would be the effect of the noble Lords' amendment.

The reasonableness of the defendant's actions will be addressed by the court in considering whether, in all the circumstances, what he did was grossly disproportionate. The amendment would also be confusing and could create practical difficulties. The court would have to consider at the same time both a subjective element—honesty—and an objective element—reasonableness. Therefore, the Government cannot accept the noble Lords' amendment.

The clause tabled by the Government represents a real improvement in the protection given to the victims of crime and others who act on their behalf against unjustifiable claims. On mature reflection, I hope that the noble Lord, Lord Thomas of Gresford. will be persuaded not to move his amendment. I beg to move.

Lord Thomas of Gresfordmoved, as an amendment to Amendment No. 238AB, Amendment No. 238AC: Line 41, leave out from "honest" to end of line 42 and insert "and reasonable belief

The noble Lord said: My Lords, I have heard the explanation given by the noble Baroness for allowing a person to have as a defence an unreasonable belief that the claimant was about to commit an offence. Mantraps were abolished in 1827. The proposed new clause seems to open up the possibility of a person having a defence because he unreasonably believed that his house was about to be attacked, mantraps were set in the garden, and that he had imprisoned someone who, under new subsection (l)(a) was trespassing, and, under new subsection (l)(b), had committed some other imprisonable offence at the same time.

An unreasonable belief goes too far. It should be objectively justified if the defence is to succeed. After all, the proceedings would not begin unless the person bringing the proceedings had been injured in some way. I beg to move.

Baroness Anelay of St Johns

My Lords, I welcome the government amendment, which responds properly and generously to the points made by my right honourable friends in another place, both in Committee and on Report. There is a long history to this discussion. It has been our determination throughout that those who act honestly should be protected. Under this amendment, they would be protected only if they were acting proportionately. We believe that the government amendment achieves that. For that reason I do not support the amendment tabled by the noble Lord, Lord Thomas of Gresford. We are persuaded that where there is a vulnerable person, their honest belief should be sufficient to give them protection.

I have one question for the Minister, which is not fatal to our support for their amendment. My noble friend Lord Hunt points out that when he moved his original amendment (at col. 1011 of the Official Report on 15th October 2003), it covered a victim who was a servant or agent of any person falling within the definition of his subsection (3). His question really was whether, when they drafted their amendment, the Government considered the position of someone who was a servant or an agent. If they did, are such people now covered in the amendment and, if not, why did the Government decide that they should not be brought within its scope? As I said, such an exclusion is not fatal to my support.

Baroness Scotland of Asthal

My Lords, we believe, as I think I said, that if someone goes to intervene or help, they would be covered by these provisions. I hope that that is clear. I know that I was speaking very rapidly to try and encompass the information as quickly as possible. When the noble Baroness looks at Hansard, I hope she will agree that those additional persons about whom she is concerned are covered.

I should like to say a word in response to the noble Lord, Lord Thomas of Gresford. We believe that honest belief incorporates the element of proportionality so the court would be able to ensure that a proper balance in that regard is made. That is why we prefer our construct in terms of the way in which this should be addressed.

Lord Thomas of Gresford

My Lords, I am happy to reply regarding my amendment. The scenario I have in mind is of two people who go into somebody's property to have a fight. That is trespass—an imprisonable offence. The owner of the house believes honestly, but unreasonably, that it is an attack upon his property, takes a gun and shoots them. There is to be no redress for those people under the Minister's amendment. I do not think that is right, but I do not intend to press this. I beg leave to withdraw the amendment.

Amendment to Amendment No. 238AB, by leave, withdrawn.

On Question, Amendment No. 238AB agreed to.

Clause 306 [Orders and rules]:

Baroness Scotland of Asthal moved Amendment No. 238B: Page 173, line 38, at end insert—

section (Early removal of prisoners liable to removal from United Kingdom),"

On Question, amendment agreed to.

Schedule 32 [Further minor and consequential amendments]:

Lord Bassam of Brighton moved Amendments Nos. 239 to 241: Page 377, line 2, leave out paragraph 11. Page 378, line 20, at end insert—

"Crime (International Co-operation) Act 2003

16A After section 4 of the Crime (International Co-operation) Act 2003 there is inserted—

"4A GENERAL REQUIREMENTS FOR SERVICE OF WRITTEN CHARGE OR REQUISITION

  1. (1) This section applies to the following documents issued for the purposes of criminal proceedings in England and Wales by a prosecutor—
    1. (a) a written charge (within the meaning of section 27 of the Criminal Justice Act 2003),
    2. (b)a requisition (within the meaning of that section).
  2. (2) The written charge or requisition may be issued in spite of the fact that the person on whom it is to be served is outside the United Kingdom.
  3. (3) Where the written charge or requisition is to be served outside the United Kingdom and the prosecutor believes that the person on whom it is to be served does not understand English, the written charge or requisition must be accompanied by a translation of it in an appropriate language.
  4. (4) A written charge or requisition served outside the United Kingdom must be accompanied by a notice giving any information required to be given by rules of court.
  5. (5) If a requisition is served outside the United Kingdom, no obligation under the law of England and Wales to comply with the requisition is imposed by virtue of the service.
  6. (6) Accordingly, failure to comply with the requisition is not a ground for issuing a warrant to secure the attendance of the person in question.
  7. (7) But the requisition may subsequently be served on the person in question in the United Kingdom (with the usual consequences for non-compliance).

4B SERVICE OF WRITTEN CHARGE OR REQUISITION OTHERWISE THAN BY POST

  1. (1) A written charge or requisition to which section 4A applies may, instead of being served by post, be served on a person outside the United Kingdom in accordance with arrangements made by the Secretary of State.
  2. (2) But where the person is in a participating country, the written charge or requisition may be served in accordance with those arrangements only if one of the following conditions is met.
  3. (3) The conditions are—
    1. (a) that the correct address of the person is unknown,
    2. (b) that it has not been possible to serve the written charge or requisition by post,
      3. 1311
    3. (c) that there are good reasons for thinking that service by post will not be effective or is inappropriate.""

Page 386, line 21, leave out from beginning to "the" in line 22 and insert—

  1. "(1) Section 74 of the Police and Criminal Evidence Act 1984 (conviction as evidence of commission of offence) is amended as follows.
  2. (2) In subsection (1) (commission of offence by non-defendant) for the words from ", where to do so" to "committed that offence" there is substituted "that that person committed that offence, where evidence of his having done so is admissible".
  3. (3) In subsection (3) (commission of offence by defendant)"

On Question, amendments agreed to.

Schedule 33 [Repeals]:

Baroness Scotland of Asthal moved Amendments Nos. 242 to 246C: Page 390, line 30, at end insert—

ALLOCATION AND SENDING OF OFFENCES

Short title and chapter Extent of repeal
Bankers' Books Evidence Act 1879 (c.11) In section 4, the paragraph beginning "Where the proceedings".
In section 5, the paragraph beginning "Where the proceedings".
Explosive Substances Act 1883 (c. 3) Section 6(3).
Criminal Justice Act 1925 (c. 86) Section 49(2).
Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36) In section 2(2), paragraphs (aa)to (ac), paragraphs (iA) and(iB), and the words from "and in paragraph (iA)" to the end.
Criminal Justice Act 1948 (c. 58) Section 41(5A).
In section 80, (he definition of "Court of summary jurisdiction".
Backing of Warrants (Republic of Ireland) Act 1965 (c. 45) In the Schedule, in paragraph 4, the words "and section 2 of the Poor Prisoners Defence Act 1930 (legal aid before examining justices)".
Criminal Procedure (Attendance of Witnesses) Act 1965 (c. 69) Section 2(5).
Criminal Justice Act 1967 (c. 80) In section 9(1), the words ", other than committal proceedings".
In section 36(1), the definition of "committal proceedings".
Criminal Appeal Act 1968 (c. 19) In section 9(2), the words from "section 41" to "either way offence".
Theft Act 1968 (c. 60) Section 27(4A).
Criminal Justice Act 1972 (c.71) In section 46, subsections (1A) to(lC).
Bail Act 1976 (c. 63) In section 3, subsections (8A)and (8B), and the subsection (10) inserted by paragraph 12(b)of Schedule 9 to the Criminal Justice: and Public Order Act 1994.
Section 5(6A)(a)(i).
Interpretation Act 1978 (c. 30) In Schedule 1, in the definition of "Committed For trial", paragraph (a).
Customs and Excise Management Act 1979 (c. 2) Section 147(2).
Magistrates' Courts Act 1980 (c. 43) Sections 4 to 8, and the cross-heading preceding section 4.
Section 24(1A) and (2).
In section 25, subsections (3) to (8).
In section 33(1), paragraph (b)and the word "and" immediately preceding it.
Section 42.
Section 97A.
Section 103.
Section 106.
In section 128, in subsection (l)(b), the words "inquiring into or", and in each of subsections (1A)(a), (3A), (3C)(a) and (3E)(a). the word "5,".
In section 130(1), the word "5,".
Section 145(1)(f).
In section 150(1), the definition of "committal proceedings".
In section 155(2)(a), the words "8 (except subsection (9))".
In Schedule 3, paragraph 2(a).
In Schedule 5, paragraph 2.
Criminal Attempts Act 1981 (c. 47) In section 2(2)(g), the words "or committed for trial".
Supreme Court Act 1981 (c. 54) Section 76(5).
Section 77(4).
In section 81—
(a) in subsection (l)(a), the words "who has been committed in custody for appearance before the Crown Court or in relation to whose case a notice of transfer has been given under a relevant transfer provision or",
(b) subsection (l)(g)(i),
(c) subsection (7).
Police and Criminal Evidence Act 1984 (c. 60) Section 62(10)(a)(i).
In section 71, the paragraph beginning "Where the proceedings".
Section 76(9).
Section 78(3).
Prosecution of Offences Act 1985 (c. 23) In section 16, subsections (l)(b), (2)(aa) and (12).
In section 23A(l)(b), the words from "under" to "1998".
Criminal Justice Act 1987 (c.38) Sections 4 to 6.
In section 11—
(a) subsection (2)(a),
(b) subsection (3),
(c) in subsection (7), the word "(3),",
(d) in subsection (8), the word "(3),",
(e) subsections (9) and (10),
(f) in subsection (11), paragraphs (a) and (d).
Criminal Justice Act 1988 (c. 33) Section 23(5).
Section 24(5).
In section 26, the paragraph beginning "This section shall not apply".
In section 27, the paragraph beginning "This section shall not apply".
Section 30(4A).
In section 40(1), the words "were disclosed to a magistrates' court inquiring into the offence as examining justices or".
Section 41.
Road Traffic Offenders Act 1988 (c. 53) Section 11(3A).
Section 13(7).
Section 16(6A).
Section 20(8A).
Criminal Justice Act 1991 (c. 53) Section 53.
Schedule 6.
Criminal Justice and Public Order Act 1994 (c. 33) Section 34(2)(a).
Section 36(2)(a).
Section 37(2)(a).
Criminal Procedure and Investigations Act 1996 (c. 25) In section 1(2), paragraphs (a) to (c) and, in paragraph (cc), the words from "under" to the end.
In section 5, subsections (2) and (3).
In section 13(1), paragraphs (a) to (c) of the modified section 3(8).
Section 28(1)(b).
Section 68.
Schedule 2.
Crime and Disorder Act 1998 (c. 37) In section 50(1), the words "unless the accused falls to be dealt with under section 51 below".
In Schedule 3, in paragraph 2, sub-paragraphs (4) and (5), paragraph 12, and in paragraph 13(2), the words from "unless" to the end.
Youth Justice and Criminal Evidence Act 1999 (c. 23) Section 27(10).
In section 42(3), paragraphs (a) and (b).
Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) In section 89(2)(b), the words "trial or".
In section 140(l)(b), the words "was committed to the Crown Court to be tried or dealt with or by which he".
In Schedule 11, paragraph 9."

Page 391, leave out lines 23 and 24.

Page 391, leave out lines 29 to 31.

Page 391, line 34, column 2, leave out "7" and insert "11

Page 392, line 5, at end insert—

"Crime (International Co-operation) Act 2003 In section 9(4), the words "section 25 of the Criminal Justice Act 1988 or"."

Page 392, line 17, column 2, leave out from "it" to end of line 18.

Page 393, column 2, leave out line 14 and insert—

"In section 234—
(a) in subsection (1), the words after paragraph (b),
(b) in subsection (3), the words from "or to vary" to "one hundred", and
(c) subsection (11)."

Page 393, leave out line 21.

On Question, amendments agreed to.

Lord Archer of Sandwell moved Amendment No. 247: Page 404, line 13, column 2, leave out "Section 42

The noble and learned Lord said: My Lords, I had not previously participated in the debates on the Bill for reasons with which 1 will not weary your Lordships. Now I venture to intervene on what may appear a small point but it is a matter of principle and it can occasion real distress.

I should apologise for not having raised this issue earlier in the Bill's proceedings but I was not able to attend at the relevant time. I hope your Lordships will forgive me.

Most citizens are under an obligation to serve on a jury if required. A failure to respond without reasonable cause to a summons is an offence under Section 20 of the Juries Act 1974, punishable by a fine of £100 or, alternatively, as a criminal contempt. However, some citizens are ineligible. Some are disqualified from jury service and the categories are listed in Schedule 1 to the Juries Act 1974. Other categories are excusable as of right, if they so wish, and they, too, are listed in the schedule.

A person who does not fall within those categories may apply for excusal for good reason, and the court may, in its discretion, excuse him under Section 9 of that Act.

I was approached some years ago by members of the Exclusive Brethren, who believe that they are precluded by spiritual authority from serving on juries. They are not alone in that belief; other Christian groups share it. My noble friend Lord Brennan has asked me to say that he has been approached by members of certain contemplative orders who have a similar difficulty. Unhappily, he cannot be present, but had he been he tells me that he would have intervened.

I should make it clear that I do not share that view, but that is not the issue. In this country, we recognise a right to abstain on grounds of conscience from what would otherwise be a duty, not because we agree with the objector, but because we respect a genuinely held belief. I would not argue that the right was absolute in all circumstances. We would need to take account of the mischief that would result from recognising the right. If recognition of abstention from jury service were likely to bring our criminal process to a standstill, that would have to be taken into account.

However, numbers likely to claim exemption would be very small in proportion to the numbers eligible for jury service. Nor would there be a difficulty in testing whether someone were eligible. It is a simple matter to show whether an applicant for exemption is a sincere practitioner of the faith in question, and whether abstention from jury service is a doctrine held by that faith.

It may assist my noble friend if I explain that the Exclusive Brethren are in a special position. Their objection to serving is based on the injunction against taking counsel with unbelievers, so a member who was compelled to serve on a jury would feel unable to discuss the case with the other jurors.

Prior to 1994, those in question applied for discretionary excusal under Section 9 of the Act. On the rare occasions when the appropriate officer refused the application, an appeal to the judge usually secured the exemption. Not only do we pride ourselves as a nation on our tolerance and common sense—and perhaps, in these more enlightened days, on our respect for our human rights obligations—but every experienced criminal judge appreciates that a juror who is reluctant to serve, and who believes that he is precluded by his faith from discussing the case with other jurors, will not be conducive to the course of justice.

However, there were rare occasions when an excusal was refused, and they gave rise to real distress. Whether they also gave rise to injustices, we will never know. The Minister may wish in an idle moment—if she is ever blessed with one—to read the report of ex parte Siderfin in volume two of the Queen's Bench reports for 1990 at page 683. The judge had refused an application for excusal and, in proceedings for judicial review, the court laid down two principles. One was that applications based on conscientious belief were serious matters and should be considered with great care. The other was that, although a religious objection should not be conclusive, the test was whether the belief would be likely to stand in the way of a juror's faithfully and properly performing the duties of a juror. If the Bill reaches the statute book in its present form, I assume that that will again be the position in law.

The Royal Commission on Criminal Justice, chaired by Lord Runciman in 1993, made a clear recommendation in chapter 8, paragraph 57, that, where practising members of a religious sect or order find jury service to be incompatible with their tenets or beliefs, that should entitle them to be excused jury service".

I am aware that Lord Justice Auld more recently took a different view, apparently, as I read him, in the interests of neatness. However, when the Criminal Justice and Public Order Act 1994 reached the statute book, Section 42 amended Schedule 1 to the Juries Act by including in the schedule, among those entitled to excusal as of right, a practising member of a religious society or order the tenets or beliefs of which are incompatible with jury service.

It seemed that the problem was resolved. If the provision has given rise to any difficulties, I have not heard of them. I have discussed the question with successive Ministers and with members of the legal profession. None of them has informed me of a single instance where the provision has been abused.

However, it seems that the Government wish to simplify the provisions and to emphasise the inclusivity of juries. That is rather curious when, in the very same Bill, they propose to curtail the right to jury trial. Compassion is the price to be expended in return for neatness.

Schedule 33 to the Bill, which lists the provisions to be repealed, includes the words: "Criminal Justice and Public Order Act 1994, Section 42". My amendment would remove that section from Schedule 33 and retain it on the statute book, thereby preserving tolerance, compassion and common sense.

There was a moment when my right honourable friend the Home Secretary agreed that Section 42 should be saved, but even he has been subjected to a change of mind, by what process I know not. My noble friend the Minister has been good enough to write to me that there may be some crumb of comfort in store. I appreciate that she wrote to me so fully and carefully with so many demands crowding upon her—we have heard today of a number of letters that she has written in connection with the Bill. I await her reply, but I would do so with a lighter heart if my noble friend were not simply the messenger. Sadly, she does not rule the world. We can only hope that the Leviathans who bestride our world can stop to care about individual conscience and individual liberty. 1 beg to move.

8.45 p.m.

Baroness Scotland of Asthal

My Lords, the pleasure of my noble and learned friend's company is such that no apology is ever needed for his participation in any debate. I am grateful to the noble and learned Lord, Lord Archer, for his amendment, because it gives me an opportunity to make absolutely plain the Government's position on the matter and to reassure my noble and learned friend that compassion for and sensitivity to religious beliefs are not only present, but are truly respected.

We would fail in that duty if there were any suggestion that we were requiring people to undertake jury service against their beliefs. That is not the case. We have listened to the concerns that have been expressed. The approach that we are proposing provides safeguards which will ensure that, in terms of outcome, the new approach will achieve what we all agree is appropriate. That makes unnecessary any form of statutory exemption.

I shall briefly set out the terms of those safeguards. During the debate on another aspect of the jury service provisions in Committee, I referred to the guidance which the Bill requires the Lord Chancellor to lay before Parliament on the jury central summoning bureau's exercise of its functions in relation to discretionary deferral and excusal. The guidance will give consistency, transparency and a structural underpinning to the discretionary system. As I explained to the noble Lord, Lord Hunt, in the course of that debate, the guidance is not yet ready. My noble and learned friend Lord Falconer is planning to issue a draft for consultation before the end of the year on which both he and I would warmly welcome your Lordships' views. We are agreed that it should state that an application for excusal from jury service on grounds of incompatibility with religious belief should always be granted. In other words, a person with theologically founded objections to jury service will never be forced to undertake it. I should make clear that this will include vowed members of religious orders who are currently ineligible for jury service as well as groups such as the Plymouth Brethren. I also assure noble Lords that the summoning bureau will aim to process any request for excusal on these grounds with the minimum of disruption to the applicant.

I hesitate to say so, but that may be even better than that which went before. I hope therefore that I give not only little pleasure and comfort to my noble and learned friend but considerable satisfaction.

Lord Archer of Sandwell

My Lords, what is there left for me to say? I once participated in a philosophy seminar when the proposition under discussion was that you cannot expect to be disappointed because it entails that you did not expect to achieve your objective; and if you do not expect to achieve your objective, you cannot be disappointed when you do not achieve it.

I am grateful to my noble friend for that full reply and for the serious core of hope which it includes. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 310 [Provision for Northern Ireland]:

Baroness Scotland of Asthal moved Amendment No. 247A: Page 175, line 15, leave out "4, 6 to 9, 11 and 11" and insert "3(3), 4, 6 to 9 and 11

On Question, amendment agreed to.

Clause 312 [Commencement]:

Baroness Scotland of Asthal moved Amendment No. 247B: Page 176, line 5. after "313" insert ", (Channel Islands and Isle of Man)"

The noble Baroness said: My Lords, in moving Amendment No. 247B, I shall speak also to Amendments Nos. 247C, 255, 251, 252, 253A and 254. Amendments Nos. 247B, 247C and 255 make provision for extending the sentencing provisions by Order in Council to the Channel Islands and the Isle of Man. The islands have been consulted and have agreed to the amendment.

Amendments Nos. 251, 252, 253A and 254 are drafting improvements to the "Extent" clause and deal in particular with the extent of amendments to the various enactments dealing with the different armed forces. I beg to move.

Lord Monson

My Lords, I am grateful to the noble Baroness for pre-empting what I wanted to say. I merely wanted an assurance that these amendments would not in any way alter the relationship between the United Kingdom government and the self-governing territories of the Channel Islands or the Isle of Man. I am pleased to hear that that is not the case.

On Question, amendment agreed to.

Clause 313 [Extent]:

Baroness Scotland of Asthal moved Amendments Nos. 247C to 252: Page 176, line 23, after "section" insert "and to section (Channel Islands and Isle of Man)

Page 176, leave out line 27 and insert—

sections 67 and (Offences in connection with publication restrictions);"

Page 176, line 29, at end insert—

section 270;

Page 176, line 42, leave out "269 and 270" and insert "and 269

Page 177, line 8, leave out "and 80" and insert "to (Application of Criminal Appeal Acts to proceedings under Part 9)

Page 177, line 11, at end insert—

section (Sentencing for firearms offences in Northern Ireland) and Schedule (Sentencing for firearms offences in Northern Ireland)

Page 177, line 15, at end insert—

(6A) The amendment or repeal of any enactment by any provision of—

  1. (a) Part 1,
  2. (b) section 263,
  3. (c) Part 2 of Schedule 3
  4. (d) Schedule 25,
  5. (e) Schedule 26,
  6. (f) Part 1 of Schedule 28,
  7. (g) Parts 1 to 4 and 6 of Schedule 32, and
  8. (h) Parts 1 to 3, 5 to 7, 9 and 11 of Schedule 33,

Page 177, line 16, leave out subsection (7).

On Question, amendments agreed to,

[Amendment No. 253 had been withdrawn from the Marshalled List.]

Baroness Scotland of Asthal moved Amendments Nos. 253A and 254: Page 177, line 25, at end insert—

(10A) Any provision of this Act which—

  1. (a) relates to any enactment contained in—
    1. (i) the Army Act 1955 (3 & 4 Eliz. 2 c. 18),
    2. (ii) the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19),
    3. (iii) the Naval Discipline Act 1957 (c. 53),
    4. (iv) the Courts-Martial (Appeals) Act 1968 (c. 20),
    5. (v) the Armed Forces Act 1976 (c. 52),
    6. (vi) section 113 of the Police and Criminal Evidence Act 1984 (c. 60),
    7. (vii) the Reserve Forces Act 1996 (c. 14), or
    8. (viii) the Armed Forces Act 2001 (c. 19), and
    1319
  2. (b) is not itself contained in Schedule 23 or Part 8 of Schedule 33,

Page 177, line 26, leave out subsection (11).

On Question, amendments agreed to.

Baroness Scotland of Asthal moved Amendment No. 255: After Clause 313, insert the following new clause—

"CHANNEL ISLANDS AND ISLE OF MAN

  1. (1) Subject to subsections (2) and (3), Her Majesty may by Order in Council extend any provision of this; Act, with such modifications as appear to Her Majesty in Council to be appropriate, to any of the Channel Islands or the Isle of Man.
  2. (2) Subsection (1) does not authorise the extension to any place of a provision of this Act so far as the provision amends an enactment that does not itself extend there and is not itself capable of being extended there in the exercise of a power conferred on Her Majesty in Council.
  3. (3) Subsection (1) does not apply in relation to any provision that extends to the Channel Islands or the Isle of Man by virtue of any of subsections (8) to (10A) of section 313.
  4. (4) Subsection (4) of section 306 applies to the power to make an Order in Council under subsection (1) as it applies to any power of the Secretary of State to make an order under this Act, but as if references in that subsection to the Minister making the instrument were references to Her Majesty in Council."

On Question, amendment agreed to.

In the Title:

Baroness Scotland of Asthal moved Amendment No. 256: Line 4, after "1997;" insert "to make provision about civil proceedings brought by offenders;

On Question, amendment agreed to.