Criminal Justice Bill

HL Deb 14 October 2003 vol 653 cc890-930

11.25 p.m.

Baroness Blatch moved Amendment No. 212K:

Before Clause 263, insert the following new clause—

"CONVICTED CHILD SEX OFFENDERS: 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 CHILDREN: CHILD SEX OFFENDERS

1. (1)This section applies where an individual—
1. (a) is convicted of an offence against a child, and
2. (b) in consequence of the conviction for that offence he is ordered by any court to be subject to the notification requirements of Part 1 of the Sex Offenders Act 1997(c. 51).

(2)Where this section applies, the court must order the individual to be disqualified from working with children." (2)In section 30 of the Criminal Justice and Court Services Act 2000 (c. 43) (sections 28 and 29: supplemental) after the words "section 28 and 29" there is inserted "29A". (3)In section 33 of the Criminal Justice and Court Services Act 2000 (c. 43) (conditions for application under section 32) after subsection (2) there is inserted— (3) 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: In speaking to the amendment, I shall also speak to Amendments Nos. 212L and 212M. All three amendments stand in my name and in the name of my noble friend Lady O'Cathain.

The amendments relate to the system of disqualification orders put in place by the Criminal Justice and Court Services Act 2000. These orders disqualify offenders from working with children for life if they have committed certain sexual or violent offences against children and have been sentenced to 12 months' imprisonment, or more. The imposition of a disqualification order is mandatory in such cases unless the court states that it is of the opinion that it is unlikely that the offender will commit further offences against children. Breach of the disqualification order by working, or attempting to work with children, is a criminal offence punishable by imprisonment.

When that legislation was scrutinised by this Chamber, I made it clear from the Opposition Front Bench that we believed that the scheme set out in the Act could be improved. I am sure that the Minister and those who advise her will have read the debates in this Chamber on 4th and 8th October 2000, on amendments very similar to those before the Committee today. I shall therefore merely outline the effect of the amendments rather than repeat at length the arguments that I put forward three years ago, which are already on the official Hansard record.

Amendment No. 212K would provide that all those convicted of sexual offences against children should be disqualified from working with children, regardless of the penalty received. At present, such offenders are disqualified only if they are sentenced to 12 months' imprisonment, or more. However, I am concerned about those who commit sexual offences against children but do not receive a sentence of 12 months.

In the debate on the Criminal Justice and Court Services Bill on 4th October 2000,1 said: One has to think only of the awful crimes committed by Gary Glitter, who traded in child pornography. He received a sentence of less than 12 months and, because of that, he did not fall into the category of qualifying for a disqualification order".—[Official Report, 4/10/2000; col. 1530.]

That concern remains. As my noble friend Lady Anelay highlighted in the previous debate, one still hears almost daily of offenders receiving non-custodial sentences or very short prison terms of less than 12 months for child pornography offences and other sexual offences against children. Such people are clearly unsuitable ever to work with children, but they cannot be sentenced to disqualification orders.

Three years ago, the noble Lord, Lord Bassam, responding for the Government, said: I appreciate the arguments she is putting forward… 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… T here will be scope for further review". —[Official Report, 4/10/2000; col. 1531.]

The amendment gives noble Lords the opportunity to revisit the issue referred to by the noble Lord, Lord Bassam, three years ago.

Amendment No. 212M is closely related to Amendment No. 212K. It would provide for the automatic disqualification of any offender convicted of an offence against a child and sentenced to imprisonment. In other words, it would remove the 12-month threshold currently in legislation. I moved a similar amendment in this Chamber on 3 1st October 2000, and I adopt the same arguments that I advanced on that occasion. The late Lord Williams of Mostyn responded for the Government. In resisting my amendment, he deployed the same arguments as had the noble Lord, Lord Bassam, four days earlier. In a characteristically generous response, he said: I give the undertaking… that we should want to keep the operation of the scheme under close review. For my own part, I should have thought that alter 18 months or two years … we ought to revisit this matter. I hope that the undertaking that I have given is helpful to the noble Baroness. It is certainly intended to be. On that basis, I invite her to not to press her amendment" .— [Official Report, 31/10/2000; col. 876.]

On that basis I withdrew my amendment. On the same basis I now invite the Minister to say what has become of the Government's reconsideration of this matter.

It really is nonsensical to say that a person convicted of a sexual or violent offence against a child and sentenced to 12 months in prison should be disqualified from working with children for life but that someone convicted of the same offence against a child which is serious enough for them to be sentenced to three, six, nine or 11 months should be free to become a primary school teacher, a social worker or a youth group leader. That is what the statute says at present. The Government indicated in 2000 that they would review its operation in the future. I very much hope that they will start by accepting my Amendments Nos. 212K and 212M.

My Amendment No. 212L is designed to ensure that the Government have considered the possibility of magistrates' courts imposing disqualification orders. The Bill increases magistrates' sentencing powers to a maximum of 12 months, which means they could pass a sentence on an offender which should under the current law mean that the offender should be disqualified from working with children. However, the definition of "senior court" in the 2000 Act—the type of court empowered to impose a disqualification order—does not include a magistrates' court. Do the Government intend to give magistrates' courts the power to impose disqualification orders on offenders who commit offences against children and who are sentenced to 12 months by the magistrates? If not, how will such offenders be disqualified from working with children?

Finally, I should like to draw the attention of the Committee and the Government to a matter directly related to these amendments. It has only just come to my attention but it is of the utmost concern and gravity. I am informed that during the course of argument in the Court of Appeal last Friday in a high-profile case involving a sentence on a child sex offender referred to the court by the Attorney-General as being unduly lenient, Lord Justice Kay made it clear in open court that he was greatly concerned at the fact that some sentencing judges in the Crown Court were not complying with the provisions of the 2000 Act by making disqualification orders on offenders on whom they ought to be made. The learned Lord Justice referred to the fact that some trial judges may believe wrongly that they are able to make those orders only against those who have been convicted of an offence against a child committed when they were actually involved in working with children.

Lord Justice Kay has done the Committee and the public a great service in raising this matter and in making the remarks that he did from the Bench. If what he said is correct—and I have no reason to doubt it—it is truly an astonishing revelation. Something has clearly gone very seriously wrong indeed in the court system if, three years after they came into force, trial judges are under such an astonishing misapprehension about the nature of the disqualification provisions which impose an absolute duty on the court to disqualify from working with children all those convicted of the relevant offences set out in the Act and sentenced to 12 months or more in whatever circumstances. Something has also gone seriously wrong if the Crown Prosecution Service and the advocates who appear in the criminal courts are not reminding sentencers of their duty under the 2000 Act.

I do not know whether the Minister is aware of what was said by Lord Justice Kay last Friday. If she is not, will she undertake to obtain a transcript of what was said and to bring the matter to the attention of the noble and learned Lord the Attorney-General? It is most important that those who work in the Crown Prosecution Service are fully aware of these provisions so that if the sentencer at trial makes a mistake in failing to sentence an offender to disqualification from working with children, it can be corrected.

One occasionally reads in the newspapers that a person has been sentenced to a long prison term for offences against children but the issue of disqualification from working with children is not even mentioned. One naturally assumes, because disqualification is mandatory under the statute, that that could be because of reasons of space in the newspaper. But hearing what Lord Justice Kay said last week I begin to wonder whether that really is the case. To take just one example, I am sure the Committee will recall the terrible case of the paedophile, Luke Sadowski, who in August was sentenced to three years in prison for attempting to procure a nine year-old girl for sex over the Internet. That is an offence that qualifies for the imposition of a disqualification order under the 2000 Act. At the time he was arrested, Sadowski was about to start training as a primary school teacher. Was he disqualified from working with children, as he was required to be by law? That is an important fact that we need to know.

I have checked the newspaper reports, and there is no mention of a disqualification order being made. If ever there were a case in which disqualification from working with children was needed, it was that case. Of course, I do not ask the Minister to provide an instant answer on that, but if she could investigate it and respond in writing I would be most grateful. I would also be grateful if she could investigate the general point of whether it is now possible to impose disqualification orders retrospectively on offenders who ought to have received them at the time of sentence, but did not because the sentencing judge simply failed or forgot to impose the order.

I know that many noble Lords feel strongly about the matter. I tabled the amendments some time ago to try to convince the Government to increase the protection afforded to children by law. What was said by Lord Justice Kay in the Court of Appeal last Friday makes me afraid that even the existing protection is not properly applied. I hope that the debate will ensure that some action is now taken on the issues.

My amendments go with the grain of what the Government say that they wish to see. They strengthen the protection of children who are subjected to or are the object of sexual abuse. One of the amendments exposes a worrying record of applying the law as passed by Parliament. I beg to move.

Baroness O'Cathain

As the amendments are also tabled in my name, I should say that I support them strongly. They were spoken to most ably by my noble friend.

Baroness Anelay of St Johns

I shall be equally brief, and shall merely signal that my noble friend Lady Blatch has performed a valuable service by tabling the amendments, which I hope will find favour with the Government.

Baroness Walmsley

I have some brief remarks. We on these Benches would like to support the amendments. There is very considerable merit in them. A 12-month custodial sentence cut-off seems very arbitrary. As sentencing patterns change and we perhaps move to more community sentences, people might be qualified to work with children who should certainly not be according to the intentions of Parliament at the moment. Therefore we need to look not only at an arbitrary sentence limit, but at the propensity of the people concerned. That is what should worry us most. In terms of child protection, it is the most important factor that we should take into consideration.

If one accepts Amendments Nos. 212K and 212M, there is considerable logic in also accepting Amendment No. 212L, which we also support.

Baroness Scotland of Asthal

I should say straightaway that I am concerned by what the noble Baroness, Lady Blatch, said on the comments made by Lord Justice Kay. I will certainly look into that issue and write to her to get clarity about it. I will immediately raise the matter with my noble and learned friend the Attorney-General, who was in the Chamber but a moment ago. Indeed, he may be listening to the debate in a slightly different place. I shall certainly bring the matter to his attention, because it is very important.

Before dealing with the amendments—I shall go through them to explain how we see the matter—I should say that I do not have a precise answer in relation to the case of Sadowski. We have a BBC indication that the requisite restriction may not have been put on him. I do not know whether that is right. We will certainly have to clarify it through the system and get verification. Members of the Committee will know that, regrettably, sometimes assertions are made that do not always prove true.

Perhaps I may speak briefly about the scheme, by way of explaining where we are now. The scheme, as the noble Baroness rightly observed, was implemented in January 2001, but it is still too early to review its operation properly since it has affected mainly cases where the offence was committed after that date. We now have a ruling that allows its retrospective application, but that is very recent and the number of cases remains limited. If I may, I will write to the noble Baroness about that issue to set out what we know now and how we think it may operate.

I clearly understand that the purpose of the noble Baroness's amendment is to widen the provisions in the Criminal Justice and Court Services Act 2000 to allow the disqualification of certain individuals from working with children and I fully support the sentiment behind the amendment; namely, that children should be protected from those who seek to cause them harm. However, the amendment is not quite right and I shall explain why that is so.

As the noble Baroness has said, Sections 28 and 29 of the Criminal Justice and Court Services Act 2000 provide for individuals convicted of a relevant offence with a qualifying sentence to be disqualified from working with children. A qualifying sentence is defined in Section 30 of the Act and includes 12 months' or more imprisonment or detention, a 12-month or more detention and training order and a hospital order. I acknowledge the remarks of the noble Baroness about the distinction that can be drawn between those who receive 12 months and those who receive marginally less.

However, the scheme is very carefully balanced. As the noble Baroness knows, it is quasi-automatic for adult offenders, thereby increasing the certainty of its application. It is also a life-long ban and imposes potentially significant restrictions on the offender. That is fully justified on the grounds of child protection, which is our paramount concern. However, the severity of the scheme means that we must tread carefully in extending its remit beyond cases where it can clearly be justified. If I may address the amendments of the noble Baroness in turn, I shall seek to amplify why that is so, since each of the amendments is slightly different in its effect, although they could be combined.

The first amendment in the group, Amendment No. 212K, would ensure that anybody who commits any sexual offence against a child and is placed on the sex offenders' register as a result of that conviction, irrespective of the disposal of their conviction, should be disqualified from working with children.

I should stress again that disqualification from working with children is an extremely serious measure which can be justified only on grounds of significant risk. I listened carefully to the noble Baroness, who clearly set out how she thought that risk presented itself. Although a review process exists, the ban is for life and covers all forms of working with children, including voluntary activity such as helping out at one's own child's football club. The degree of restriction placed on the offender is therefore of a different order of magnitude to registration, which is a monitoring and tracking device, and its effect could last long after the registration requirement had disappeared. That renders simple equation with the imposition of registration extremely problematic.

At present, there are situations where a person convicted of a sexual offence against a child would not receive a sentence of 12 months or more and hence would not be already covered by the disqualification scheme. However, I should point out that where a court considers that an offender poses a significant risk of the kind that would justify a disqualification order, a prison sentence of 12 months or more should be awarded.

The amendment before us would make two significant changes. First, it would—

11.45 p.m.

Baroness Blatch

I bow to the noble Baroness's expertise in these matters because she knows much more about the court and judicial system than I do. But I have to say that I personally know of the case of a head teacher who systematically and almost daily over a period of about a year sexually abused a young girl. When he went to court it was deemed that he had probably suffered enough during the time it had taken for the case to come to court and the trial. Eventually, he was given no prison sentence but a rather large fine. Is the noble Baroness really saying that someone like that should be allowed to continue to work with children?

Baroness Scotland of Asthal

No, I am not suggesting that about someone who has habitually sexually abused a child over a significant period. I do not know the particular facts of the case to which the noble Baroness referred, nor whether it was referred to my noble and learned friend the Attorney-General. The noble Baroness says it was before the Attorney-General's reference.

One of the dangers and difficulties—

Baroness Blatch

I thank the noble Baroness for giving way. She will know that according to an amendment we discussed earlier with my noble friend it is not possible to refer such a case as being unduly lenient.

Baroness Scotland of Asthal

I believe that the noble Baroness is wrong. We are talking about an indecent assault on a child, if that is what it was. That is why I say it is difficult to comment because I do not know the offence with which the teacher was charged. However, if as she says it was a sexual assault on a child, that falls within the category of offences which could be referred by the Attorney-General. I have taken the noble Baroness at her word that she understands that the person was charged with a sexual offence.

It may be that there was some inappropriate touching. I really do not know the nature of the offence and therefore it is probably not right for me to comment in detail. However, if it were a sexual abuse and a sexual offence, my noble and learned friend the Attorney-General would be able to look at it. My noble and learned friend indicates to me that he would be happy for the noble Baroness to refer the details of the case to him so that he can write to her about the specific nature of the offence and what may have happened. If that will assist, he will be happy to do so.

Earl Russell

Will both noble Baronesses agree that it is difficult to have a clear opinion on any individual case of which one has not read the transcript? Can anything be done to make transcripts more widely and cheaply available than they are at present?

Baroness Scotland of Asthal

That is a debate for another day. However, the issue of transcripts and what we are trying to do in relation to them has been raised in the victims and witnesses ministerial group that I chair. The matter is under discussion. Technology is moving on and that may help us.

The noble Baroness has given an indication of a case, but that does not take away from what I say. If on the face of these matters the terms are satisfied, there is an expectation that a person who poses a significant risk of the kind which would justify a disqualification order would be sentenced to 12 months or more in prison.

The amendment before us would make two significant changes. First, it would render the scheme automatic for all those required to register. That would catch adults and juveniles alike. It would leave no room for discretion. That would be particularly serious in the case of juveniles, for whom at present there is a presumption against qualification in the Act. I strongly believe that this would be wrong. But even for adults, it could have an unfortunate and undesirable consequence.

Let us take one example. Under the provisions in the current Sexual Offences Bill, an 18 year-old who is convicted of facilitating his 15 year-old sister and her 15 year-old boyfriend having sex would be automatically banned for life from work with children.

Secondly, by including all those required to register, the sentence threshold would be lost. That would affect primarily adults. The aim is that proposals for registration in the Sexual Offences Bill will not provide for registration of juveniles for any offence other than rape or assault by penetration or a couple of other very serious offences unless a sentence of 12 months or more is given. But, even for adults, it could be unjustified, particularly for those like the 18 year-old in my previous example who is only just over the age of majority. To take another example, a 20 year-old indecently exposing himself to a 15 year-old would properly have to register but, once the facts were considered, a lifelong ban on working with children might not be justified. We are talking about making the ban automatic.

It is also important to remember that any person made subject to sex offender registration may also, by way of application to the court, be made subject to a sex offender order or restraining order given at the time of sentence. That, in itself, can impose prohibitions on an offender, such as barring him from working with children. Therefore, any offender who was required to register but did not receive a long enough sentence to be automatically disqualified by virtue of Sections 28 or 29 of the Criminal Justice and Court Services Act 2000 could still be barred from such work by virtue of a sex offender order or a restraining order. That provides a useful failsafe mechanism which allows such cases to be considered in full on their merits, and that is the right way to deal with cases of this kind.

I should perhaps mention a technical defect in the amendment as drafted. The noble Baroness uses Part 1 of the Sex Offenders Act 1997 as the trigger for disqualification. By virtue of Part 2 of the Sexual Offences Bill, which finished its Commons Committee stage on Tuesday, 14th October, the Sex Offenders Act 1997 will be repealed and replaced by provisions in that Bill. If an amendment of this nature were accepted, it would need to be redrafted to make reference to the appropriate sections of Part 2 of the Sexual Offences Bill. However, in view of the more fundamental objections that I have outlined, I invite the noble Baroness to withdraw Amendment No. 212K.

I move on to consider the noble Baroness's second amendment—Amendment No. 212L—which seeks to include magistrates' courts in the definition of "senior court". We do not consider that to be appropriate as the magistrates' court is the most junior of all courts at present. It is therefore not entirely logical to include it in a definition of "senior court". More fundamentally, however, 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.

Finally, Amendment No. 212M removes the duration of 12 months from the qualifying sentences in Section 30 of the Criminal Justice and Court Services Act 2000. As a result, any sentence of imprisonment, irrespective of length, would result in disqualification from working with children. But it is the length of the sentence which, in many cases, reflects the threat which the court considers the offender poses to children. In the view of the court, those given shorter custodial sentences pose a smaller threat, and quasi-automatic disqualification may be inappropriate.

That is particularly the case in relation to offences of violence. Here, the list includes offences such as wounding, causing grievous bodily harm and assault occasioning actual bodily harm. Those are high-volume offences which could cover numerous different kinds of assault, the majority of which, particularly if committed against teenagers, may signify no long-term or, indeed, short-term risk at all on the part of the offender. To remove the 12-month custody threshold in respect of those offences would add to the number of people who simply do not pose a risk to children but who would fall within the disqualification scheme.

Similarly, with regard to the offence of supplying drugs to children -regrettably, we know that most children obtain drugs from their peers—lowering the threshold could greatly widen the net in a way that cannot be justified.

Many noble Lords who have spoken in earlier debates on child issues are very concerned about the "child on child" aspect of these matters and do not want unnecessarily to criminalise children who are in the formative years who may change significantly over a period and who, it is to be hoped, with good help are able to rehabilitate themselves so that they start again.

For example, for non-commercial supply of drugs at a party, custody is possible. While reprehensible, such conduct is unlikely to signify long-term risk to children such as to justify a lifelong ban on working with children. I said at the outset that I understand absolutely why the noble Baroness has tabled the amendments. 1 believe the whole Committee shares her concern to protect children, but the amendments would significantly distort the scheme and render it less effective by spreading its net too wide. We want the courts to be consistent. We definitely want them to be robust in awarding disqualification orders in almost every qualifying case concerning an adult, not to view the scheme as an optional add-on for use in the minority of cases. I, too, have been concerned by what the noble Baroness said. Certainly, I shall anxiously pursue this matter with my noble and learned friends the Lord Chancellor and the Attorney-General to try to get to the bottom of what is happening in this area.

The fact that the scheme is automatic is its strength. It should work well and I should be very unhappy to see it diluted in such a way as to make it less efficacious. Once it has had time to settle down and bed into the culture of the courts we shall be able to assess its effectiveness. We made clear when the scheme was before the House that we intended to review its effectiveness once sufficient cases have had time to work their way through the system, in terms of its use by the courts and its use as a protection measure. It is perhaps too early to make major changes now. However, I understand why the noble Baroness brings it back. We shall consider these issues because I agree they are very important.

Baroness Walmsley

Before the Minister sits down perhaps I may ask for a couple of points of clarification. Early on in her response she indicated that one of her objections to accepting these amendments was that they could mean that an offender would be prevented from volunteering at his or her own child's playgroup, for example. Does that mean that the Minister feels that we should accept less rigorous standards in the voluntary sector than those we should accept in the public sector?

Perhaps I may raise the second point before the Minister responds. The most convincing argument that the Minister made in her response has been the issue concerning automatic bans for juvenile sex offenders. The noble Baroness knows that I have always argued for children to be treated differently. Given what we know about the efficacy of treatment for young sex offenders and the potential for that sort of good quality treatment to change their behaviour completely, I would feel that what the Minister has had to say is very convincing.

Does the Minister intend to say to the Committee that if the group of amendments was amended to take account of what I have just said about young sex offenders having the potential for treatment and changing their behaviour, she might be more inclined to accept a group of amendments that would affect only adults? Perhaps the Minister would clarify that in her response.

Baroness Scotland of Asthal

I am very happy to do so. I was not in the least suggesting that a different standard needs to be applied to the voluntary sector from that which we apply to the statutory sector; absolutely not. I was trying to give the example of the 18 year-old who has facilitated sexual activity by one of his siblings with their boyfriend or girlfriend, all of which is totally consensual as far as the young people are concerned but reprehensible and against the law and therefore the 18 year-old should be registered. But they may feel that they have not done anything so unforgivable that they should not go on to have a perfectly good relationship with their husband or wife and then have children.

If that person is 18 and they did something of that sort, to say that they fall within the category of persons who must never under any circumstances work with children seems a little severe. The noble Baroness will know that among young people there is a different approach to sexual activity at a younger age than that at which many of us would like them to participate. They do not share our abhorrence, worry or concern that we, their parents, have on their behalf about early sexual activity that puts them at risk.

So if we are considering that bracket, the provisions bite too hard. The whole point of making a distinction between the ordinary offence for which less than a year is applied and the 12-month provision is that we can know that the provisions, which will ban people for life—many of us are very comfortable with that ban for life—bite only when there is a serious risk and that we will not catch an 18 year-old who may have been in a fracas with a 15 year-old.

The 15 year-old may be six feet four; the 18 year-old may be five feet two; but one could say that that is a physical assault on a child. Correct; but should that fracas between two teenagers be converted to a life-long ban for the elder teenager never to participate in children's care? The whole point of what we are trying to do is to ensure that those who abuse children—who seek to harm them in what is often a sexual, physical, abusive way—do not get that opportunity. We are not discussing the ordinary bad behaviour between two people who may see themselves as equal but find out that they are not.

That is why we say that the present threshold is about right. I do not hide from the Committee that I have been worried by what the noble Baroness, Lady Blatch, has said—first, about how some courts may be applying it. There may be questions there about what we should do with the Judicial Studies Board and training. I am concerned about what I have heard about cases in which prosecutors and others are properly bringing that to the attention of the courts. I know that my right honourable and learned friend the Attorney-General will share that concern and address those issues, and I shall be happy to write to Members of the Committee about it.

We are at an early stage because, although the provisions were introduced in 2001, there are few cases and we need to get the matter right. I repeat the genuine undertaking given by my late friend Lord Williams of Mostyn and my noble friend Lord Bassam that we will keep the issue under review and will want to return to it once we have a proper idea of where the land lies. I understand everything that has been said about the matter.

Midnight

Baroness Blatch

Before I wind up on the amendment, I should be grateful if the noble Baroness would return to two points that she made, on both of which I must confirm my understanding of what she said—there may be some mistake. Am I right that she said that, although magistrates will in future be able to award sentences of up to one year, if someone commits a qualifying offence—as set out in the 2000 Act—and receives a sentence of one year, because it is given in a magistrate's court, he will not receive a disqualification order; but that, if it were in the senior court, he would? If my understanding of what the noble Baroness said is correct, that seems absurd.

The other point that I should like confirmed or otherwise is that of retrospection. For all those cases that have gone before the courts where a disqualification order should have been applied but has not been, will it be possible to apply one retrospectively? If not, we have an especially worrying situation in which people have received sentences of one year or more for serious crimes of sex and/or violence against children but will be allowed to work with children in a voluntary capacity or otherwise.

Baroness Scotland of Asthal

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.

On the seniority of the court, I am not suggesting for a moment that the magistrates' court will do one thing and the Crown Court another. 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.

We take the issue very seriously—I can take it away and consider it. The noble Baroness will know that there will be a transitional period before the magistrates' court can deal with cases. They will deal with cases up to 51 weeks. Cases up to 52 weeks will go elsewhere. Given the gravity of what we are doing, we think such cases deserve to be dealt with by a more senior judge. There is no suggestion that one approach operates in the magistrates' court and another in the Crown Court. The Crown Court seems more appropriate, because we are talking about denying someone an opportunity for ever. That is an important and necessary, but quite draconian, step.

Baroness Blatch

I am reasonably satisfied on the first point in that the noble Baroness will write to me. It seems not that the department or Ministers will seek to have retrospective orders applied, but that, if it is legally possible, they will be applied in every case where a qualifying offence is committed. I look forward to hearing from the noble Baroness on that point.

I am deeply disturbed by the noble Baroness's response to my point about the magistrates' court. There is a serious lacuna in that, if someone goes before the magistrates' court and receives the maximum sentence allowed under the Bill for a sexual and/or violent offence against a child, and the magistrates' court is not empowered to apply a disqualification order, the case is not necessarily transferred to the senior court. I would like the noble Baroness to reflect on that point and perhaps to return to it at another stage.

The response was less generous than that given by Lord Williams of Mostyn, who led me to believe that there was to be a review. He thought that 18 months to two years would be about the time. We have almost passed that point. It seems that there has not been a review. Had there been one, the department, or certainly the Minister's advisers, would have known about some of the revelations that I made in my speech. It is astonishing not only to find out from Lord Justice Kay last week about the application of the disqualification order measures over nearly two years, but also that it has not been picked up before now. I find that very disturbing.

I mentioned earlier the case of a headmaster who systematically, over a period of around one year, abused a young girl almost daily, was deemed by the courts to have suffered enough and given a fine rather than a custodial sentence. That case predates any attempt to go back to the court. I gave that as a real example of the kind of case where the courts can take a view that a custodial sentence is not appropriate, for one reason or another. If it is not a year, and the particular offence is very serious, it seems that there is a case for a disqualification order. One way or another, we will have to look at the issue.

It is inappropriate for a person who has sexually abused or been violent against a child to work with children in a voluntary or paid capacity. We need to seek ways of ensuring that they do not. The noble Baroness said that the purpose of my amendment was to widen the scheme. I would go further. The purpose of my amendment was to widen the scheme in order to strengthen the protection of children. It was a means to an end. There is a lacuna here that needs to be examined.

Like the noble Baroness, Lady Walmsley, the Minister made some persuasive points about child-on-child crimes and the lesser end of some of the offences mentioned. However, she will know, as I do, that I am talking about very serious sexual and violent crimes against children that are not always dealt with appropriately in the courts. That can be because a judge and/or magistrate can think of very good reasons why the defendant should not be given a particularly long custodial sentence of a year or more. I mention Gary Glitter. He is somebody who should never work with children, but he would not, under the present system and even under the scheme as proposed, have received a disqualification order. In my view, he should have.

I will take this amendment away and consider a way of addressing only the points of concern mentioned by the Minister—the lesser end of child-on-child offences. There is a very powerful argument for looking at many of the other cases that are alluded to and I hope that the Minister will be a little more accommodating if we return with a sensible amendment that picks up her concerns, which she rightly put to me. As to the technical defect, it had been my intention to test the opinion of the Committee. However, I will not do so, because the Minister has given good reasons why we should delay and reflect on this matter until the next stage. However, technical defects have never worried me because if amendments are agreed in this House it is a matter for the powers that be to ensure that the Bill is consistent with the wishes of the House. Although I admit to the technical defect, as a result of what happened in another place it was of less concern to me. In the light of what has been said, and of the promises that have been made, I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

[Amendment No 212L and 212M not moved.]

Clause 263 agreed to.

Schedule 19 agreed to.

Clause 264 agreed to.

12.15a.m.

Schedule 20 [Drug treatment and testing requirement in action plan order or supervision order]:

Baroness Walmsley moved Amendment No. 213: Page 275, 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: I shall speak also to the other five amendments in this group. These six amendments fall into three pairs. The purpose of Amendments Nos. 213 and 216 is to ensure that the power 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. Also, they would build in safeguards to ensure appropriate and proportionate responses to young people.

The children's organisations that have briefed us on these amendments, as well as the Howard League, NACRO and the National Association for youth Justice, believe that any compulsory medical or psychological treatment by court order should be taken as a very serious prospect and recognised as one that incurs many civil and children's rights issues. They and we are concerned in principle at the prospect of children are being compelled on pain of criminal offence of breaching a court order to undergo the treatment that they need.

We are deeply concerned that the provisions contained in Schedule 20 do not include safeguards to ensure that the very serious step of using court compulsion to treatment would be used only when absolutely necessary and when voluntary options had already been considered and tried. In Committee in another place, the Minister said that, the court would include a treatment requirement in the orders if it was satisfied that that would be a relevant and proportionate intervention. That test is very important". —[Official Report, Commons Standing Committee B, 11/3/03; col. 976.]

Surely, it is therefore valid and vital to incorporate such an important test into the legislation providing for the powers.

Proposed government amendments to Schedule 28 include criteria to ensure that residential course requirements in a parenting order should be imposed only when they would be effective in preventing further offending and would be, proportionate in all the circumstances".

It is equally important to have such safeguards in the Bill with regard to compulsory drug treatment for children.

I shall say a few words about voluntary treatment. Although there has recently been rapid growth in young people's community treatment services, there are, in many areas, few new services. Often, they are unknown to many young people in the area. For many children who get involved in offending and drug use, involvement with youth offending team drug specialists will be the first time that they have been made aware of the availability of youth-centred drug services. Children's organisations believe that, as a matter of course and good practice, the possibility of voluntary treatment should be proactively encouraged by youth offending team agencies and the courts and should be the preferred option before the necessity for court compulsion. The amendments would ensure that there were additional safeguards to ensure that voluntary treatment was explored by the courts prior to the attachment of treatment and testing requirements for children and young people.

Amendments Nos. 214 and 217 would ensure that, prior to the attachment of a requirement for drug treatment to a supervision and action plan order, the court would have regard to the child's understanding of and willingness to comply with a programme of treatment. The treatment requirements in Schedule 20 could be included in an order for any person aged 10 or over. The proviso that the court should be satisfied that the young person's consent has been obtained, if he or she is 14 or older, implies that a child over 14 would automatically be competent to consent on his or her own to the inclusion of a requirement and that it would not be equally important for the court to establish the views and willingness of a young person under 14 to comply with the requirement. Children's organisations believe that both those implications are problematic. The amendments would ensure that each child who is assessed for such an order had the opportunity to express his or her views and intentions with regard to the proposed treatment, whether it is they or their parents who will need to give express consent to the inclusion of the requirement in the order.

The schedule raises the question of valid consent, which is already established in statute and common law. For any person under the age of 16, it should generally be presumed that a parental responsibility holder must give consent on behalf of the child. However, under what we know as the Gillick principle, if there is unwillingness or inability to involve parents, the young person may be assessed as competent to give their own consent only if they are mature enough to understand the nature of the situation and the proposed course of action.

I agree with the Minister in another place who said: It is for the court to determine the maturity of the child and to consider both the child's and the parent's response to the inclusion of the treatment provision".—[Official Report, Commons Standing Committee B, 11/2/03; col. 979.]

The Minister made that statement with reference only to those under the age of 14.1 cannot understand why the age for such assessment by the court should be lowered from 16 to 14. The Bill gives the impression that a person of 14 would always be expected to be competent to give consent to the inclusion of a treatment requirement. In doing so, it confuses considerably the existing legal position on under-16s and Gillick competence.

Among such young people, who will, by definition, be involved in offending and heavy drug use, there is a high likelihood that levels of understanding and maturity will be lower than those of many of their peers. We also know that reading and learning difficulties are more prevalent among young offenders as a group, which raises again the likelihood that such a 14 year-old would not be considered competent to consent to the inclusion of the requirement.

By inserting the fact that "appropriate consent" must be obtained, the amendments would ensure that the Government do not create further confusion in the already difficult legal area of young people's consent. The amendment would leave it as a matter for the court and for professional assessors to make judgments about each child's competence to give consent.

Amendments Nos. 215 and 218 are intended to remove the testing requirement in action plan and supervision orders that can be applied where a treatment requirement has already been made. The amendments would also ensure that testing is rooted in treatment and is not seen as an intervention in and of itself. Children's organisations believe that the requirements are entirely unnecessary given that drug testing, where professionals believe it to be necessary as part of treatment monitoring, could already be detailed within a treatment plan under the treatment requirement.

Failure to comply with treatment, including therefore any testing that forms part of a treatment programme, would already result in breach. Therefore, the measure is unnecessary. We are concerned 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 risk of the young person's failure to comply with an order.

These measures are disproportionate and unnecessary. It is of concern that there appears to be no consideration given to the question of proportionality in creating layers and layers of additional requirements on the young person. In human rights terms, the overall level of personal restriction and compulsion required by the sentence must still be consistent with, and proportionate to, the seriousness of the offence of which the young person has been convicted. These testing requirements would add an extra layer and thereby make the whole sentence disproportionate. I beg to move.

Lord Hylton

I agree that something like Schedule 20 is desirable. Nevertheless, I strongly support what the noble Baroness, Lady Walmsley, said about the voluntary principle for treatment. If that can be built in, it would make the treatment very much more effective in the great majority of cases. The words, indicated his willingness to comply, and the appropriate consent". in Amendment No. 214 are of great importance. Perhaps the Government would consider whether, in the case of under 18 year-olds, the consent of the parents should also be required.

Whether or not these amendments are accepted, Schedule 20 will have major resource implications. Can the Minister reassure the Committee that the necessary resources are already available and have already been budgeted for? I hope that is so, but if it is not—there may be a risk there—perhaps the commencement of the schedule could be delayed, as compared with other parts of the Bill. Perhaps, too, the implementation of the schedule could be varied from one area of the country to another as the necessary resources become available.

Lord Bassam of Brighton

Schedule 20 amends the Powers of Criminal Courts (Sentencing) Act 2000 to enable a requirement for drug treating and testing to be included in an action plan order or a supervision order. As drafted, the clause allows the court to include a treatment requirement in the event that it is satisfied that the offender is dependent upon or has the propensity to misuse drugs and that his or her dependency or propensity is such as requires and may be susceptible to treatment.

Amendments Nos. 213 and 216 tabled by the noble Baroness, Lady Walmsley, would further require the court to be satisfied that the offender's dependency or propensity to misuse drugs is related to their offending behaviour and that the option of voluntary treatment is considered unsatisfactory.

We believe that if a young offender has a dependency on or a tendency to misuse drugs, it is important for the courts to have the option of including a treatment requirement in an action plan order or supervision order in order to ensure that the young offender has access to the treatment and support that they need as part of their community sentence. That is the case regardless of whether the dependency or propensity is specifically related to the offence of which they have been convicted.

There is plenty of well established anecdotal evidence that links illegal drug use with offending, but there is also a substantial body of research on the matter. I would point the noble Baroness to Home Office Research Findings 192 and Home Office Research Study 261 entitled Substance use by young offenders, a publication authored by Richard Hammersley, Louise Marland and Marie Reid. This examined the prevalence of substance use and offending among a sample of 293 young people who were clients of 11 youth offending teams in England and Wales. Forty per cent or more of the cohort felt that there was some relationship between their substance use and their offending. A further 44 per cent said that they sometimes committed crimes to get money for drugs or alcohol.

Although not all drug users go on to commit crimes related to their drug use, we think that it is important to take every opportunity to identify and address, as early as possible, dependency on or the propensity to misuse drugs so as to minimise the chances of a young drug user entering a cycle of drug misuse and offending.

The clause as drafted 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 by a member of a youth offending team, and if it was satisfied that a treatment requirement was both a relevant and, to use the term of the noble Baroness, a proportionate intervention.

In respect of the possibility of voluntary drug treatment running concurrently with an order, of course it is open to any drug misuser to seek voluntary treatment at any time. If the offender has done so, and the courts are made aware of previous or continuing treatment, this would be taken into account when considering whether to include a treatment requirement in an order.

However, the purpose of this schedule is to allow treatment to be included as a component: of a community sentence. If an offender consented to treatment as part of an order and subsequently dropped out of that Ireatment, or withdrew their consent, this would be taken into account in deciding how best to deal with that offender in the context of a continuing aim to help them address their drug-using behaviour. If treatment was separate from the order, there would be less incentive for the offender to continue with treatment. If they were to drop out of treatment after the making of an order, there would be no way for the court to then make provision for the drug-using behaviour to be effectively addressed. For those reasons, we would resist Amendments Nos. 213 and 216.

Amendments Nos. 214 and 217 require offenders aged 14 or over to indicate a "willingness to comply" with the requirement and give "appropriate consent" to its inclusion in the order. The schedule as drafted 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 I have already mentioned, at present the court cannot include these requirements unless they have 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 would of course take into account the willingness of the offender to comply with the order. We therefore feel that these amendments do not add anything to the clause as drafted and propose that they should be resisted.

We also resist Amendments Nos. 215 and 218, which seek to remove the ability of the court to include a drug-testing requirement alongside the treatment requirement for those aged 14 and over. Allowing a testing requirement to be included in the orders is necessary to assist the officer responsible for treatment in ascertaining whether or not the treatment the offender is receiving is effective. It is also a useful tool for the treatment provider to tailor the treatment according to the needs of the offender. Treatment without testing could make the treatment order completely irrelevant. The two are very clearly linked.

The best response I can give to the points raised by the noble Lord, Lord Hylton, is that we believe we have got the resources necessary to implement the scheme. The orders will be made on the recommendation of a probation officer or a recommending officer only if they have fully investigated whether the parent and child are supportive of, and in agreement with, the requirement being attached as a condition. We recognise that the issue of consent is important. The parents should be involved and will be consulted as part of the process. I hope that that answers the noble Lord's point.

I understand the points raised by the noble Baroness but we believe that there should be a degree of compulsion. It will not undermine the way in which the orders will work; it will enhance them. Clearly it is most appropriate that the way in which the scheme works should involve the active participation of offenders and a recognition on their part that they face profound problems. Ultimately, it may well be in their best interests that the element of compulsion is there and is retained, but we would hope to achieve our objective without it.

12.30 a.m.

Lord Hylton

Before he sits down, can the Minister say anything about the availability of treatment resources and, depending on that, the implementation of the clause?

Lord Bassam of Brighton

I was perhaps not clear because of the hour of the day and my slight tiredness. We believe that we have the resources in place fully to implement the scheme. So the resources are there, as the noble Lord would wish them to be.

Baroness Walmsley

I thank the Minister for that reply. I was shocked to hear him say early in his response that the clauses as drafted are perhaps the only way of ensuring that appropriate treatment is available; that if it is part of a sentence then it has got to be made available. I question whether there is sufficient availability of youth-focused drug treatment services across the country. If the Minister looks into the matter he will find that many agencies have been highly critical of the availability and quality of this kind of treatment.

The Minister referred to the link between crime and drug use. I am not arguing for one moment that there is no link—we know perfectly well that there is—but there are cases where a young person may test positive for a drug without having a regular and problematic habit which is linked to the offence. It is very important that a programme of treatment should be imposed only when it is quite clear that there is a definite problematic habit which is linked to the offence.

The Minister also referred to young people being expected voluntarily to seek treatment and that this would be made known to the court. It is asking an awful lot of a young person voluntarily to seek treatment, especially given the fact that the availability of such services is as I have described.

Most drug treatment agencies will tell you that it is usually more effective if a person undergoes treatment voluntarily and is willing to comply with the programme. These programmes are not easy to see through to the bitter end; it is a very difficult thing to kick a habit. Therefore, I stick to my guns as far as the need for the voluntary nature of these services is concerned. In the mean time, I will read carefully what the Minister has said and may return to these matters at a later stage in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 214 to 218 not moved.]

Schedule 20 agreed to.

Clause 265 agreed to.

Schedule 21 [Summary offences no longer punishable with imprisonment]:

[Amendment No. 218A not moved.]

Baroness Scotland of Asthal moved Amendments Nos. 218B to 219:

Page 284, line 4, at end insert—

"Magistrates' Courts Act 1980 (c. 43)

74A An offence under section 84(3) of the Magistrates' Courts Act 1980 (making of false statement as to means). "

Page 284. line 12, leave out paragraph 77.

Page 285, line 9, at end insert—

"Criminal Justice Act 1991 (c. 53)

87A An offence under section 20A of the Criminal Justice Act 1991 (false statements as to financial circumstances)."

On Question, amendments agreed to. Schedule 21, as amended, agreed to.

Schedule 22 [Increase in maximum term for certain summary offences]:

Baroness Scotland of Asthal moved Amendments Nos. 219A and 219B:

Page 291, line 2, leave out paragraph 28.

Page 291, line 7, at end insert—

"British Nationality Act 1981 (c. 61)

29A In section 46 of the British Nationality Act 1981 (offences and proceedings), in subsection (1) for "three months" there is substituted "51 weeks"."

On Question, amendments agreed to.

Schedule 22, as amended, agreed to.

Clause 266 agreed to.

Clause 267 [Increase in maximum term that may be imposed on summary conviction of offence triable either way]:

Baroness Scotland of Asthal moved Amendments Nos. 219C and 219D:

Page 151, line 32, leave out from "exceeding" to end of line 41 and insert " 12 months"

Page 152, leave out lines 4 to 8 and insert "12 months"

On Question, amendments agreed to.

Clause 267, as amended, agreed to.

Clause 268 [Enabling powers: power to alter maximum penalties]:

Baroness Scotland of Asthal moved Amendment No. 219E:

Page 152, leave out lines 32 to 36 and insert "to 12 months".

On Question, amendment agreed to.

Clause 268, as amended, agreed to.

Schedule 23 [Enabling powers: alteration of maximum penalties etc.]:

Baroness Scotland of Asthal moved Amendments Nos. 219Fto219J:

Page 296, leave out lines 32 to 40 and insert "twelve months"

Page 297, leave out lines 25 to 33 and insert "twelve months"

Page 298, leave out lines 7 to 15 and insert "twelve months"

Page 298, leave out lines 28 to 36 and insert "twelve months"

On Question, amendments agreed to.

Schedule 23, as amended, agreed to.

Clause 269 [Increase in penalties for drug-related offences]:

On Question, Whether Clause 269 shall stand part of the Bill?

Baroness Walmsley

I oppose the question that Clause 269 and Schedule 24 stand part of the Bill. They are all about changing the maximum sentences from five to 14 years for five Misuse of Drugs Act offences and two others. One is related to customs legislation and the other to ships used for illicit traffic.

We on these Benches have made our views on the issue very clear. Public policy should clearly differentiate between drugs in each of the three classes. Leaving aside the issue of whether it is appropriate to imprison people simply for possession of drugs for personal use, we should be careful not to give the same signals on penalties in relation to class C drugs as we give in relation to class A and B drugs.

I believe that at the root of this clause and schedule is the fact that the Government do not have the courage of their own convictions. On the one hand, they propose to reclassify cannabis as group C; on the other hand, they do not want to appear soft and are, therefore, increasing the penalties for the various offences almost threefold. The danger of the proposals is that there will be a very muddled policy, which will muddy the waters rather than give a straightforward message.

Clearly, dealing in class A drugs is an offence that should expect the harshest of treatment. Dealing in class B drugs is dangerous, but not quite as dangerous as it is with class A drugs. Class C drugs are still dangerous, but not nearly as dangerous as class B drugs. That is the basis of the classification system. If those are the messages that we want to give out to the general public, the maximum prison sentences should follow in graded severity. It is nonsense to increase the maximum prison sentence to what the statule book says could be the punishment for an offence so that it is comparable to a sentence for an offence relating to class A and B drugs. That makes a complete nonsense of the classification system.

The argument is not about whether there should be no prospective penal response but about the level of that response. Clearly, there are certain categories of people to whom society should give a discipline, such as a general practitioner who misuses his or her ability to prescribe, or to someone who not only turns a blind eye but becomes an aider and a better of the use of drugs when running a hostel. However, there is a danger that people dealing in cannabis, benzodiazepine or anabolic steroids will prospectively be in the same league in terms of sentencing as those who deal in crack cocaine or heroin, which are much more dangerous drugs.

We on these Benches believe that it would be much better to remove Clause 269 and Schedule 24 and replace the schedule with a provision setting a maximum of perhaps four years, or a similar sentence. There is nothing cut and dried about that, but it would be a relatively appropriate maximum tariff given that the maximum sentence for trafficking in class A drugs is 14 years.

We are concerned that the penalty appears a disproportionate response to those using class C drugs. Class C drugs are thought to be the least serious category, so why should there be an almost threefold increase in the maximum punishment? We believe that the Government are saying one thing on the one hand then doing another, to be seen to be tough on drugs. That is quite illogical and sends out mixed messages.

12.45 a.m.

Baroness Scotland of Asthal

Of course, I understand the anxiety expressed by the noble Baroness, but we do not believe that there is a mixed message. Those who use and abuse class C drugs and consume them themselves are treated firmly but with a deal of charity, understanding and therapy, and those who deal in drugs and are the purveyors of class C drugs fall into a different category. That is the distinction that is being made—if people traffic in drugs, we will treat them robustly. If people use and abuse drugs, they will fall into a different category.

The noble Baroness will know that what we must fight in this country is the scourge of those who peddle drugs outside our schools and our public places to increasingly younger children. We do not hesitate to make the distinction. In the case of young people of tender years who use and/or abuse class C drugs, there is a whole raft of things that we must do. We must educate them, help them, or restrain them. But for the purveyors of drugs, who wish to feed on the weakness and susceptibility of others, we send them a clear and different message. It is not a confused message, but a clear one. It involves saying, "For you we apply a very different strata".

The Government believe that a 14-year penalty for all class C drugs is needed, first, to deal with the small number of cannabis trafficking cases each year which attract sentences of 10 years or more. Those still exist. I am sure the noble Baroness will be aware of massive trafficking where people earn colossal amounts of money from purveying this drug which, as the noble Baroness rightly said, is still regarded as dangerous. In view of this, there is a strong argument for retaining the maximum penalty for trafficking cannabis at its current level of 14 years' imprisonment, post reclassification, so that the courts can continue to impose substantial sentences in those cases.

Secondly, although serious dealing offences in existing class C drugs—that is, anabolic steroids and the benzodiazepines—are exceptional, nevertheless the provision needs to apply to those class C drugs as well as cannabis because we need to send a clear message that trafficking in any illegal drug will be taken very seriously whatever its classification. Reducing the prevalence of drugs on our streets means that we must tackle the supply at all levels, including by legislative means. I know that the noble Baroness cares passionately about these issues and of the effort that she and a number of other noble Lords put in to try to deal with the needs of children who become subjected to this class and other classes of drugs. We share that passion.

Looking ahead, Schedule 24 will also help the United Kingdom to meet anticipated obligations to comply with measures currently set out in a draft European Union Council framework decision to harmonise drug trafficking penalties and to have maximum penalties of at least 10 years' imprisonment for serious drug trafficking involving any controlled drug where organised crime is involved. Since United Kingdom law does not differentiate between trafficking offences involving organised crime and those which do not—the courts take account of these factors in deciding the level of sentence—in order to satisfy our EU obligations we would need to increase the maximum penalty for trafficking in a class C drug at least to 10 years' imprisonment. Thank goodness we are getting much better at working together with our European and other partners and achieving a higher rate of interdiction than we had previously. It is pleasing to see the success that we have had in recouping substantial assets. We are demonstrating to these offenders that they will not profit from these offences.

I appreciate what the noble Baroness says about other offences but I remind her that if we look at the record for this year it is clear that significant cases have arisen. For instance, this very year a person was sentenced to five years and had to pay a confiscation order of £6,844. There is a bracket of traffickers at the lower end. That does not mean that the court cannot impose an appropriate sentence at the lower end.

As the noble Baroness knows, there is a big difference between someone who supplies a drug quite improperly to a series of friends and others who import drugs and are part of a serious gang. Those are very different categories. We must have an ambit of punishment within which the courts can make that differentiation and say to the international drug trafficker who seeks to take advantage of the weakness of others, "No, we shall not let you do that, and here is the punishment commensurate with your crime". We understand the concept of forgiving the sinner but we still do not like the sin.

Baroness Walmsley

I thank the Minister for her response although I am still not convinced about the illogicality of having the same set of maximum sentences for trafficking all the different classifications of drugs. Of course we accept that drug trafficking is a very serious offence and should be dealt with very seriously, particularly when it concerns class A and B drugs. If we are to have a classification system, it is logical to have a classification of offences and sentences, too. However, I thank the noble Baroness for her response.

Clause 269 agreed to.

Schedule 24 agreed to.

Clause 270 [Increase in penalties for certain driving-related offences causing death]:

Lord Goldsmith moved Amendment No. 219K:

Page 153, line 23, at end insert— (4A) Part I of Schedule 1 to the Road Traffic Offenders (Northern Ireland) Order 1996 (S.I. 1996/1320 (N.I. 10)) (prosecution and punishment of offences) is amended in accordance with subsections (4B) and (4C). (4B) In the entry relating to Article 9 of the Road Traffic (Northern Ireland) Order 1995 (S.I. 1995/2994 (N.I. 18)) (causing death or grievous bodily injury by dangerous driving), in column 4, for "10 years" there is substituted "14 years". (4C) In the entry relating to Article 14 of that Order (causing death or grievous bodily injury by careless driving when under the influence of drink or drugs), in column 4, for "10 years" there is substituted "14 years".

The noble and learned Lord said: Clause 270 increases the penalties available for certain driving offences in England and Wales. Amendment No. 219K, tabled in the name of my noble friend Lady Scotland, makes similar provision for two corresponding offences in Northern Ireland.

The actions of dangerous and irresponsible drivers that result in someone losing a life can be devastating not only for the victims and their families, but for whole communities. Clause 270 proposes an increase in the maximum penalties for offences in England and Wales of causing death by dangerous driving, death by careless driving while under the influence of drink or drugs, and aggravated vehicle-taking where as a result of the driving of the vehicle an accident occurs and death results. That provision implements the decision, announced in July 2002 in the Government's report of the review of road traffic penalties, to increase the penalties as soon as an appropriate legislative opportunity arose.

In Northern Ireland, the communities face the same grave difficulties with road traffic collisions as England and Wales. There is a high degree of concern, as Members of the Committee will know, at the unacceptably high number of deaths on the roads of Northern Ireland. As part of the commitment to improve both road safety and awareness of road safety issues, my right honourable friend the Secretary of State for Northern Ireland has decided to increase the maximum available penalties there from 10 to 14 years for the offences of causing death or grievous bodily injury by dangerous driving, and causing death or grievous bodily injury by careless driving while under the influence of drugs or drink. Those are not exactly equivalent, but cover at least part of the same areas as Clause 270 does in relation to England and Wales.

That will send a clear signal to drivers in Northern Ireland of the seriousness with which the Government regard those types of behaviour, and will raise awareness of the terrible and eminently avoidable consequences. It will also give the judiciary in Northern Ireland wider powers to deal with offenders in a relevant and appropriate manner, allowing them to offer greater protection to the community and to increase public confidence in the criminal justice system. I beg to move.

On Question, amendment agreed to.

Clause 270, as amended, agreed to.

Baroness Scotland of Asthal moved Amendment No. 220: After Clause 270, insert the following new clause—

"INCREASE IN PENALTIES FOR OFFENCES UNDER SECTION 174 OF THE ROAD TRAFFIC ACT 1988 (1)In Part I of Schedule 2 to the Road Traffic Offenders Act 1988 (c. 53) (prosecution and punishment of offences), in the entry relating to section 174 of the Road Traffic Act 1988 (c. 52) (false statements and withholding material information), for columns (3) and (4) there is substituted—

1. (a) Summarily (a) 6 months or the statutory maximum or both
2. (b) On indictment
3. (b) 2 years or a fine or both."

(2) Section 267(4) (increase in maximum term that may be imposed on summary conviction of offence triable either way) has effect in relation to the entry amended by subsection (1) as it has effect in relation to any other enactment contained in an Act passed before this Act. (3) This section does not apply in relation to any offence committed before the commencement of this section.

The noble Baroness said: I shall speak also to Amendment No. 221E. Is that right?

Baroness Anelay of St Johns

The noble Baroness should speak to Amendments Nos. 220 and 256.

Baroness Scotland of Asthal

The amendments are technical. I am sorry.

Lord Bassam of Brighton

This is still the Northern Ireland stuff.

Baroness Scotland of Asthal

I beg the Committee's pardon; I thought that my noble and learned friend the Attorney-General had dealt with that. The amendments refer to the fraudulent obtaining of a driving licence—it is all coming back—and knowingly countersigning a false application for a driving licence, which are presently dealt with under Section 174 of the Road Traffic Act 1988. The maximum penalty for each offence is a fine of £2,500. That penalty does not recognise the potential use of the documents as gateways to organised crime and terrorism; rather they concentrate on the financial value of the document.

Amendment No. 220 raises the maximum penalty available to the court for an offence of fraudulently obtaining a driving licence to two years' imprisonment, aligning it with that available for an offence of fraudulently obtaining a passport. Noble Lords will know from earlier debates in other committees how important those issues are and how much use is made of those documents.

That increased penalty will more accurately reflect the reliance placed upon both documents by many organisations as evidence of identity. Fraudulently obtaining either document will incur a maximum penalty of two years' imprisonment and will serve as a more effective deterrent than a fine or a short period of detention.

In speaking to the amendment, it would perhaps be convenient to speak also to Amendment No. 256 which would extend that increase in penalty to Scotland. I beg to move.

On Question, amendment agreed to.

Clause 271 [Minimum sentence for certain firearms offences]:

[Amendment No. 221 not moved.]

[Amendments Nos. 221A to 221D had been withdrawn from the Marshalled List.]

On Question, Whether Clause 271 shall be agreed to?

Lord Thomas of Gresford

The removal of the clause would erase the firearms offences. Your Lordships will recall last New Year a terrible and tragic shooting in Birmingham which resulted in the death of two young girls. That was immediately followed by the promulgation of a minimum sentence for firearms offences.

I know the spot; I have seen it. It is close to a club in Birmingham where I was involved in another shooting incident some years ago. A person trod on somebody's foot in a bar and was invited out for a fight. When the other man raised his fists, he shot him. That resulted not in a five-year sentence, but in a very lengthy sentence for attempted murder. Where firearms are used in armed robbery, one would expect a sentence of 10 years. On the other hand, one would expect a sentence of rather less than five years in circumstances, which may well have occurred, where the police burst into a club and a gangster with a gun hands it to his girlfriend, who puts it in her handbag and is therefore in possession of a firearm. For her to serve five years for that momentary possession of a gun would seem to be quite beyond what is required.

We therefore come back to the problem which has recurred throughout our consideration of the Bill: why must we have minimum sentences? Instead of making a gesture because of a particular incident, why do the Government not rely simply on the sentencing practices of the judiciary, which would give far more than five years in appropriate cases, while in other cases it can easily be envisaged that very much less would be given?

There is an infinite variety. I wonder how many more times I will have to say that. I would be interested to hear the Minister's explanation of why, in this particular case, a minimum sentence is again required.

Baroness Scotland of Asthal

As the noble Lord has indicated, Clause 271 provides a mandatory minimum sentence for unauthorised possession of a prohibited firearm. That is a key part of the Government's strategy for tackling gun crime and the gun culture. Overall, gun crime remains relatively low. It makes up 0.4 per cent of all recorded crimes. However, we have seen an unacceptable rise in recent years. The terrible shootings recently in Nottinghamshire, Hertfordshire, Berkshire and Liverpool highlight the growing use of guns in crime. That is a disturbing trend which we are determined to reverse.

In 2001–02, firearms were used in more than 22,000 recorded offences in England and Wales. That is an increase of 27 per cent on the previous year. There were 97 fatalities and 558 serious injuries resulting from crimes that involved firearms.

Most gun crime is still criminal damage caused by air weapons, and the Government are addressing that problem with measures on the Anti-social Behaviour Bill, as your Lordships know. But we are also seeing an unacceptable rise in the use of handguns and light automatic weapons and more and more young people carrying or using imitation weapons to gain respect or intimidate others. In 2001–, nearly 10,000 recorded crimes involved a firearm other than an air weapon— an increase of 35 per cent on the previous year. Handguns were used in 5,871 crimes—a rise of 46 per cent. Handguns are now used in 58 per cent of armed crime.

The noble Lord, Lord Thomas of Gresford, asks: why not leave it to the judges? We believe that Parliament has a role to play. Some of this rise is associated with gang culture, which is itself linked to the illegal drug trade. The Government are committed to tackling this, as noble Lords know. We want to deter criminals from using firearms and to ensure they receive appropriately tough sentences on conviction.

Clause 271 inserts a new Section 51A into the Firearms Act 1968, which provides a mandatory minimum sentence for unlawful possession of prohibited firearms. I must stress that this will not affect the maximum sentence in any way. That will stay at 10 years' imprisonment and courts will retain their discretion to impose sentences up to that maximum.

The minimum sentence will apply to offences under Section 5 of the Firearms Act 1968. These include unlawful possession of handguns and automatic weapons, which are commonly used by criminals.

The minimum sentence will apply only to persons aged 16 or over at the time the offence was committed. The minimum sentence for persons aged 18 or over (21 or over in Scotland) will be five years' imprisonment. For offenders aged 16 and 17 (between 16 and 20 in Scotland) it will be three years' detention.

We want the minimum sentence to have the widest possible application. A court will be required to impose the minimum sentence in all cases unless there are exceptional circumstances relating to either the offence or the offender which justify not doing so. This exception is aimed at minor regulatory offences, such as where the holder of a firearms certificate inadvertently forgets to renew his authorities or where a war trophy is discovered in a deceased person's effects. The minimum sentence would be disproportionate in such cases. This measure is aimed at criminals who present a risk to public safety.

Public safety must be paramount. The situation that has led to the recent spate of shootings around the country must be met by effective action. Members of the Committee will know that the mean for these possession offences is not as high as the noble Lord, Lord Thomas of Gresford, believes. It is by no means usual to find that an 18-month sentence for these offences is being imposed. We believe that this is an area which we need to address and this is an opportunity to do so. That is why Clause 271 is part of the Bill.

1 a.m.

Lord Thomas of Gresford

I hear what the noble Baroness says. It seems to me that if an 18-month sentence is currently imposed, that is probably about right for the circumstances of the case, whatever it may be. Where criminals use guns, I do not believe that sentences under five years would normally be imposed. Indeed, the apparent draconian nature of the provision is weakened by the possibility of exceptional circumstances reducing the sentence. Not a great deal has therefore been gained. What is lost is the principle that minimum sentences should not be part of our sentencing policy in this country.

I have made my point and I do not propose to press the matter further.

Clause 271 agreed to.

Clauses 272 to 276 agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 221E to 221H: After Clause 276, insert the following new clause—

"DURATION OF DIRECTIONS UNDER MENTAL HEALTH ACT 1983 IN RELATION TO OFFENDERS

1. (1) Section 50 of the Mental Health Act 1983 (c. 20) (further provisions as to prisoners under sentence) is amended as follows.
2. (2) In subsection (1), for "the expiration of that person's sentence" there is substituted "his release date".

(3) For subsections (2) and (3) there is substituted— (2) A restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect, if it has not previously done so, on his release date. (3) In this section, references to a person's release date are to the day (if any) on which he would be entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if the transfer direction had not been given; and in determining that day there shall be disregarded—

1. (a) any powers that would be exercisable by the Parole Board if he were detained in such a prison or other institution, and
2. (b) any practice of the Secretary of State in relation to the early release under discretionary powers of persons detained in such a prison or other institution.""

After Clause 276, insert the following new clause—

"ACCESS TO PAROLE BOARD FOR CERTAIN PATIENTS SERVING PRISON SENTENCES In section 74 of the Mental Health Act 1983 (c. 20) (restricted patients subject to restriction directions) after subsection (5) there is inserted— (5A) Where the tribunal have made a recommendation under subsection (1 )(b) above in the case of a patient who is subject to a restriction direction or a limitation direction—

1. (a) the fact that the restriction direction or limitation direction remains in force does not prevent the making of any application or reference to the Parole Board by or in respect of him or the exercise by him of any power to require the Secretary of State to refer his case to the Parole Board, and
2. (b) if the Parole Board make a direction or recommendation by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if he had not been removed to hospital, the restriction direction or limitation direction shall cease to have effect at the time when he would become entitled to be so released.""

Alter Clause 276, insert the following new clause—

"DURATION OF DIRECTIONS UNDER MENTAL HEALTH (NORTHERN IRELAND) ORDER 1986 IN RELATION TO OFFENDERS

1. (1) Article 56 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (further provisions as to prisoners under sentence) is amended as follows.
2. (2) In paragraph (1), for "the expiration of that person's sentence" there is substituted "his release date".
3. (3) For paragraphs (2) and (3) there is substituted—

(2) A restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect, if it has not previously done so, on his release date. (3) In this Article, references to a person's release date are to the day (if any) on which he would be entitled to be released (whether unconditionally or on licence) from any prison or juvenile justice centre in which he might have been detained if the transfer direction had not been given; and in determining that day any powers that would be exercisable by the Sentence Review Commissioners or the Life Sentence Review Commissioners if he were detained in such a prison or juvenile justice centre shall be disregarded." After Clause 276, insert the following new clause—

"ACCESS TO SENTENCE REVIEW COMMISSIONERS AND LIFE SENTENCE REVIEW COMMISSIONERS FOR CERTAIN NORTHERN IRELAND PATIENTS In Article 79 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (restricted patients subject to restriction directions) after paragraph (5) there is inserted—

1. (5A) Where the tribunal have made a recommendation under paragraph (l)(b) in the case of a patient who is subject to a restriction direction—
1. (a) the fact that the restriction direction remains in force does not prevent—
1. (i) the making of any application or reference to the Life Sentence Review Commissioners by or in respect of him or the exercise by him of any power to require the Secretary of State to refer his case to those Commissioners, or
2. (ii) the making of any application by him to the Sentence Review Commissioners, and
2. (b) if—
1. (i) the Life Sentence Review Commissioners give a direction by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any prison or juvenile justice centre in which he might have been detained if the transfer direction had not been given, or
2. (ii) the Sentence Review Commissioners grant a declaration by virtue of which he would become so entitled, the restriction direction shall cease to have effect at the time at which he would become so entitled. ""

On Question, amendments agreed to.

Clauses 277 and 278 agreed to.

Schedule 25 agreed to.

Clause 279 [Fine defaulters: disqualification]

Baroness Scotland of Asthal moved Amendment No. 222:

Page 159, line 22, leave out from "produce" to end of line 23 and insert —

1. "(a) any such licence held by him together with its counterpart; or
2. (b) in the case where he holds a Community licence (within the meaning of Part 3 of the Road Traffic Act 1988 (c.52)), his Community licence and its counterpart (if any)."

The noble Baroness said: Clause 279 re-enacts with appropriate modifications the fine default provisions of the Crime (Sentences) Act. Where, under this clause, a court disqualifies a person from holding or obtaining a driving licence, it must require him to produce any British driving licence held by him. Amendments Nos. 222 and 223 ensure that we cover Community driving licences as well as British ones. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 223:

Page 159, leave out lines 27 and 28 and insert— ""counterpart"—

1. (a)in relation to a driving licence, has the meaning given in relation to such a licence by section 108(1) of that Act; and
2. (b)in relation to a Community licence, has the meaning given by section 99B of that Act. "

On Question, amendment agreed to.

Clause 279, as amended, agreed to.

Clause 280 agreed to.

Clause 281 [Sentencing: repeals]:

Baroness Scotland of Asthal moved Amendment No. 223A:

Page 160, line 7, leave out "to 82" and insert "and 81".

The noble Baroness said: Amendments Nos. 223A, 244A and 247D are all technical amendments. I beg to move.

On Question, amendment agreed to.

Clause 281, as amended, agreed to.

Clause 282 agreed to.

Schedule 26 [Amendments relating to sentencing]:

Baroness Scotland of Asthal moved Amendments Nos. 224 to 225:

Page 302, line 29, leave out paragraph 4.

Page 305, leave out lines 23 to 36.

Page 306, line 6, leave out from "from" to end of line 8 and insert ""to be dealt with" onwards there is substituted "or the Crown Court to be dealt with under—

1. (a) Part 2 of Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000 (breach of certain youth community orders), or
2. (b) Part 2 of Schedule 7 to the Criminal Justice Act 2003 (breach of requirement of community order).""

On Question, amendments agreed to.

Baroness Scotland of Asthal moved Amendment No. 225A:

Page 308, line 42, at end insert—

"Repatriation of Prisoners Act 1984 (c. 47)

1. 39A The Repatriation of Prisoners Act 1984 is amended as follows.
2. 39B In section 2 (transfer out of the United Kingdom), in subsection (4)(b), for sub-paragraph (i) there is substituted—
1. "(i) released on licence under section 28(5) of the Crime (Sentences) Act 1997 or under section 235 or 236 of the Criminal Justice Act 2003; or".
3. 39C In section 3 (transfer into the United Kingdom), subsection (9) is omitted.
4. 39D (1) The Schedule (operation of certain enactments in relation to the prisoner) is amended as follows in relation to prisoners repatriated to England and Wales.
1. (2)In paragraph 2, for sub-paragraphs (1A) and (2) there is substituted—
2. "(2) If the warrant specifies a period to be taken into account for the purposes of this paragraph, the amount of time the prisoner has served shall, so far only as the question whether he has served a particular part of a life sentence is concerned, be deemed to be increased by that period.
3. (3) Where the prisoner's sentence is for a term of less than twelve months, Chapter 6 of Part 12 of the Criminal Justice Act 2003 shall apply as if the sentence were for a term of twelve months or more.
4. (4) In this paragraph— "the enactments relating to release on licence" means section 28(5) and (7) of the Crime (Sentences) Act 1997 and Chapter 6 of Part 12 of the Criminal Justice Act 2003; "sentence", means the provision included in the warrant which is equivalent to sentence.".
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5. (3) Paragraph 3 is omitted. "

The noble Baroness said: All the amendments in this group are technical. 1 know that some noble Lords may want to hear a word about Amendment No. 230. That amendment clarifies the reference to community orders in Section 1 of the Criminal Justice and Court Services Act 2000. It also places the new suspended sentence order, under which offenders undertake requirements in the community, under the provision describing the role of the national probation service.

I believe that I wrote about these amendments to noble Lords who participated in the Committee stage. If it is not in the Library, a copy of that letter will be placed there for noble Lords' further consideration if they would find that of use. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 226 to 230:

Page 309, line 8, leave out paragraph 42 and insert—

"42 In section 36 (reviews of sentencing), in subsection (2), for the words from "erred in law" onwards there is substituted—

1. "(a) erred in law as to his powers of sentencing; or
2. (b) failed to impose a sentence required by—
1. (i) section 51A(2) of the Firearms Act 1968;
2. (ii) section 110(2) or 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000; or
3. (iii) any of sections 216 to 219 of the Criminal Justice Act 2003. ""

Page 311, line 17, at end insert—

"Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9)

58A In section 10 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (life prisoners transferred to Scotland)—

1. (a) in subsection (1)—
1. (i) in paragraph (a), sub-paragraph (I), and the succeeding "or", are omitted, and
2. (ii) after paragraph (a) (ii) there is inserted "or
3. (iii) subsections (5) to (8) of section 28 (early release of life prisoners to whom that section applies) of the Crime (Sentences) Act 1997 (c. 43) (in this section, the "1997 Act") apply by virtue of an order made under section 28(2)(b) of that Act (while that provision was in force) or an order made under section 254(2) of, or paragraph 3(1)(a) of Schedule 18 to, the Criminal Justice Act 2003;", and.
4. (iii) for "28(2)(b) or 82A(2) or paragraph" there is substituted "82A(2), 28(2)(b) or 254(2) or paragraph 3(1 )(a) or".
2. (b) in subsection (5)(b)—
1. (i) for "the Crime (Sentences) Act 1997" there is substituted "the 1997 Act", and
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2. (ii) after the words "Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)" there is inserted "section 254(2) of, or paragraph 3(1)(a) of Schedule 18 to, the Criminal Justice Act 2003."."

Page 311, line 21, leave out "subsection 3(c)" and insert "in paragraph (c) of the definition of "conviction" in subsection (5)"

Page 312, line 37, leave out from "for" to end of line 38 and insert ""a community punishment order" there is substituted "an unpaid work requirement""

Page 313, line 43, leave out from beginning to "subsection" and insert—

1. "(1) Section 31 (duration and conditions of licences) is amended as follows.
2. (2) In subsection (3), for the words from "except" onwards there is substituted "except in accordance with recommendations of the Parole Board".
3. (3) Subsection (4) is omitted.
4. (4) In"

Page 313, line 45, at end insert— 68A In section 32 (recall of life prisoners while on licence) for subsection (5) there is substituted— (5) Where on a reference under subsection (4) above the Parole Board directs the immediate release on licence under this section of the life prisoner, the Secretary of State shall give effect to the direction."

Page 313, line 45, at end insert— 68B (1) Schedule 1 (transfers of prisoners within the British Islands) is amended as follows. (2) In paragraph 6, after sub-paragraph (3) there is inserted— (4) In this Part of this Schedule— the 2003 Act" means the Criminal Justice Act 2003; custody plus order" has the meaning given by section 174(4) of that Act; intermittent custody order" has the meaning given by section 176(2) of that Act. (3) In paragraph 8 (restricted transfers from England and Wales to Scotland)—

(a) for sub-paragraph (2)(a) there is substituted— (a) sections 232, 235, 237 to 241 and 243 to 249 of the 2003 Act (release on licence of fixed-term prisoners) or, as the case may require, sections 102 to 104 of the Powers of Criminal Courts (Sentencing) Act 2000 (detention and training orders) or sections 28 to 34 of this Act (life sentences) shall apply to him in place of the corresponding provisions of the law of Scotland;

(aa) sections 62 and 64 of the Criminal Justice and Court Services Act 2000 (which relate to licence conditions) shall apply to him in place of the corresponding provisions of the law of Scotland;

(ab) where a custody plus order or intermittent custody order has effect in relation to him, the provisions of Chapters 3 and 4 of Part 12 of the 2003 Act relating to such orders shall also apply to him (subject to Schedule (Transfer of custody plus orders and intermittent custody orders to Scotland or Northern Ireland) to that Act); and",.

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

"(a) sections 232, 239 to 241 and 243 to 249 of the 2003 Act (duration and conditions of licences for fixed-term prisoners) or, as the case may require, sections 103 and 104 of the Powers of Criminal Courts (Sentencing) Act 2000 (detention and training orders) or sections 31 to 34 of this Act (life sentences) shall apply to him in place of the corresponding provisions of the law of Scotland;

(aa) sections 62 and 64 of the Criminal Justice and Court Services Act 2000 (which relate to licence conditions) shall apply to him in place of the corresponding provisions of the law of Scotland;

(ab) where a custody plus order or intermittent custody order has effect in relation to him, the provisions of Chapters 3 and 4 of Part 12 of the 2003 Act relating to such orders shall also apply to him (subject to Schedule (Transfer of custody plus orders and intermittent custody orders to Scotland or Northern Ireland) to that Act), and' and.

(c) for sub-paragraphs 15) to (7) there is substituted—

(5) Section 31(2A) of this Act (conditions as to supervision after release), as applied by sub paragraph (2) or (4) above shall have effect as if for paragraphs (a) to (c) there were substituted the words "a relevant officer of such local authority as may be specified in the licence".

(4) In paragraph 9 (restricted transfers from England and Wales to Northern Ireland)—

(a)for sub-paragraph (2)(a) there is substituted — (a) sections 232, 215, 237 to 241 and 243 to 249 of the 2003 Act (release on licence of fixed term prisoners) or, as the case may require, sections 102 to 104 of the Powers of Criminal Courts (Sentencing) Act 2000 (detention and training orders) or sections 28 to 34 of this Act (life sentences) shall apply to him in place of the corresponding provisions of the law of Northern Ireland, sections 62 and 64 of the Criminal Justice and Court Services Act 2000 (which relate to licence conditions) shall apply to him in place of the corresponding provisions of the law of Northern Ireland;

(ab) where a custody plus order or intermittent custody order has effect in relation to him, the provisions of Chapters 3 and 4 of Part 12 of the 2003 Act relating to such orders shall apply to him (subject to Schedule (Transfei of custody plus orders and intermittent custody orders to Scotland or Northern Ireland) to that Act); and",.

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

"(a) sections 232,239 to 241 and 243 to 249 of the 2003 Act (duration and conditions of licences for fixed term prisoners) or, as the case may require sections 103 and 104 of the Powers of Criminal Courts (Sentencing) Act 2000 (detention and training orders) or sections 31 to 34 of this Act (life sentences) shall apply to him in place of the corresponding provisions of the law of Northern Ireland

(aa) sections 62 and 64 of the Criminal Justice and Court Services Act 2000 (which relate to licence conditions) shall apply to him in place of the corresponding provisions of the law of Northern Ireland;

(ab) where a custody plus order or intermittent custody

order has effect in relation to him, the provisions of Chapters 3 and 4 of Part 12 of the 2003 Act relating to such orders shall apply to him (subject to Schedule (Transfer of custody plus orders and intermittent custody orders to Scotland or Northern Ireland) to that Act); and",.

(c) for sub-paragraphs (5) to (7) there is substituted— (5) Section 31(2A) of this Act (conditions as to supervision after release), as applied by sub-paragraph (2) or (4) above shall have effect as if for paragraphs (a) to (c) there were substituted the words "a probation appointed for or assigned to the petty sessions district within which the prisoner for the time being resides".

(5) In paragraph 15 (unrestricted transfers general provisions), sub-paragraph (5) is omitted. "

Page 313, line 45. at end insert— 68C In Schedule 2 (repatriation of prisoners to the British Islands) paragraphs 2 and 3 are omitted.

Page 317, line 22, at beginning insert "the court is of the opinion"

Page 317, line 25, at end insert—

"93A In section 106 (interaction of detention and training orders with sentences of detention in a young offender institution), subsections (2) and (3) are omitted."

Page 317, line 25, at end insert— 93B After section 106 there is inserted— 106A INTERACTION WITH SENTENCES OF DETENTION

(1)In this section— the 2003 Act" means the Criminal Justice Act 2003; "sentence of detention" means—

1. (a) a sentence of detention under section 91 above, or
2. (b) a sentence of detention under section 219 of the 2003 Act (extended sentence for certain violent or sexual offences: persons under 18).

(2) Where a court passes a sentence of detention in the case of an offender who is subject to a detention and training order, the sentence shall take effect as follows—

(a) if the offender has at any time been released by virtue of subsection (2), (3), (4) or (5) of section 102 above, at the beginning of the day on which the sentence is passed, and

(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released by virtue of subsection (2), (3), (4) or (5) of section 102.

(3) Where a court makes a detention and training order in the case of an offender who is subject to a sentence of detention, the order shall take effect as follows—

(a) if the offender has at any time been released under Chapter 6 of Part 12 of the 2003 Act (release on licence of fixed-term prisoners), at the beginning of the day on which the order is made, and

(b)if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released under that Chapter.

(4) Where an order under section 102(5) above is made in the case of a person in respect of whom a sentence of detention is to take effect as mentioned in subsection (2)(b) above, the order is to be expressed as an order that the period of detention attributable to the detention and training order is to end at the time determined under section 102(5)(a) or (b) above.

(5) In determining for the purposes of subsection (3)(b) the time when an offender would otherwise be released under Chapter 6 of Part 12 of the 2003 Act, section 236 of that Act (power of Secretary of State to release prisoners on licence before he is required to do so) is to be disregarded.

(6) Where by virtue of subsection (3)(b) above a detention and training order made in the case of a person who is subject to a sentence of detention under section 219 of the 2003 Act is to take effect at the time when he would otherwise be released under Chapter 6 of Part 12 of that Act, any direction by the Parole Board under subsection (2)(b) of section 237 of that Act in respect of him is to be expressed as a direction that the Board would, but for the detention and training order, have directed his release under that section.

(7) Subject to subsection (9) below, where at any time an offender is subject concurrently—

(a) to a detention and training order, and

(b) to a sentence of detention, he shall be treated for the purposes of the provisions specified in subsection (8) below as if he were subject only to the sentence of detention.

(8)Those provisions are—

(a) sections 102 to 105 above,

(b) section 92 above and section 226 of the 2003 Act (place of detention, etc.), and

(c) Chapter 6 of Part 12 of the 2003 Act.

(9)Nothing in subsection (7) above shall require the offender to be released in respect of either the order or the sentence unless and until he is required to be released in respect of each of them .""

Page 328, line 39, leave out from beginning to "(loss" and insert—

"109A The Child Support, Pensions and Social Security Act 2000 is amended as follows.

110 (1) Section 62"

Page 329, line 1, at end insert—

"110A In section 64 (information provision), in subsection (6)(a), after "community orders" there is inserted "(as defined by section 170 of the Criminal Justice Act 2003)". "

Page 329, line 3, at end insert—

" 111A In section 1 (purposes of Chapter 1 of Part 1 of the Act), in subsection (2)—

(a)in paragraph (a), after "community orders" there is inserted "(as defined by section 170 of the Criminal Justice Act 2003)", and

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

"(d) giving effect to suspended sentence orders (as defined by section 181 of the Criminal Justice Act 2003)."

On Question, amendments agreed to.

Baroness Scotland of Asthal moved Amendment No. 230ZZA:

Page 329, line 3, at end insert—

" 111B (1) Section 62 (release on licence etc: conditions as to monitoring) is amended as follows.

(2)For subsection (3) there is substituted—

"(3) In relation to a prisoner released under section 236 of the Criminal Justice Act 2003 (power to release prisoners on licence before required to do so), the monitoring referred to in subsection (2)(a) does not include the monitoring of his compliance with conditions imposed under section 242 of that Act (curfew condition). "

(3)In subsection (5) after paragraph (e) there is inserted ", and (f) a sentence of detention under section 217 or 219 of the Criminal Justice Act 2003". "

On Question, amendment agreed to.

Schedule 26, as amended, agreed to.

Clause 283 [Interpretation of Part 12]:

Baroness Scotland of Asthal moved Amendment No. 230ZZB

Page 160, line 41, after "more)" insert "except in Chapter 7"

On Question, amendment agreed to.

Clause 283, as amended, agreed to.

Baroness Anelay of St Johns moved Amendment No. 230ZA: After Clause 283, insert the following new clause—

"DUTY OF PROBATION OFFICERS TO CONSULT WITH MAGISTRATES

It shall be (he duty of the chief officer of each probation area—

(a) to establish consultation arrangements with local magistrates' courts committees and local communities,

(b) to assist the probation service in the performance of its duties of reducing offending, and

(c) to supervise offenders in the community."

The noble Baroness said: I tabled this amendment after receiving representation from the Magistrates' Association. The clause would re-establish local consultation between the probation service and magistrates. The statutory probation liaison committees were killed off following the introduction of the Criminal Justice and Court Services Act 2000. The amendment also introduces an obligation for local probation areas to consult local committees, which are generally considered not too well informed about the work of the probation service.

When this new clause was tabled in another place by one of the Ministers' honourable friends, Mr Graham Allen, we considered carefully whether the duty needed to be put on a statutory footing. The Minister's answer in another place persuaded us that Mr Allen was right to table this new clause and seek a statutory basis for the re-establishment of this local consultation. The Minister at that time referred to guidance which was issued last year. However, the Magistrates' Association has pointed out to us that their experience is that this new clause is still needed despite the well meaning nature of the guidance. I beg to move.

Lord Bassam of Brighton

We well understand the amendment tabled by the noble Baroness and the concerns that have prompted it with the demise of the statutory probation liaison committees following the introduction of the Criminal Justice and Court Services Act 2000.

However, I assure the noble Baroness that joint working continues to be a priority for the National Probation Service. These arrangements were put in place and cemented in guidance issued last year by the probation service, the Lord Chancellor's Department, the Magistrates' Association, the Justices' Clerks' Society and the Association of Justices' Chief Executives and entitled, Working Together—The National Probation Service and the Courts. That guidance promotes communication, understanding and mutual confidence between the courts and the probation service and emphasises that joint working imposes a number of obligations on sentences and probation staff to achieve these ends. It suggests that something like the old probation liaison committees could provide a forum to review working jointly and to plan future events to lead and improve such work.

The purpose of joint working is to achieve better outcomes for all areas in the criminal justice system. This forms part of a wider, long-term communication strategy for sentencers developed by the National Probation Directorate, which aims to engage sentencers both at the local and national level with the work of the probation service. Elements of this include meetings and direct contact with sentencers, the production of information leaflets and videos on new initiatives and seminars and conferences.

Surveys are also being conducted on sentencers as well as the general public to research perceptions of the probation service and its work with offenders, and the issues raised by those will inform future priorities.

We have also set up the new local criminal justice boards, which were introduced in April this year. They bring together the CPS, courts, prison, probation and police services, magistrates and youth offending teams and encourage joint working toward a set of common aims and targets.

The probation service has also developed closer links with the local community. The modernisation of the service has made it more responsive to local needs. The new local probation boards have a more diverse membership and are more closely representative of those local needs. The boards are accountable for delivering a service that reflects local concerns.

The introduction of crime and disorder reduction partnerships has placed a joint duty on local authorities and the police to work in co-operation with other agencies, including the probation service, to formulate and implement a crime and disorder strategy for their area. The partnerships are required to undertake an audit of crime and disorder in their area and to liaise widely with the community on the results to verify that they have identified people's real problems. They then develop and implement a strategy to tackle priority problems.

The need for strong and effective liaison between probation, sentencers and the local community is well understood and taken, but the arrangements that we have identified effectively meet that need. For those reasons, although the new clause is well meaning, it is unnecessary, because we have the appropriate networks and joint working arrangements in place, as I described. I hope that with that, the noble Baroness will feel able to withdraw her amendment.

Baroness Anelay of St Johns

The Minister has described why the Government feel that my amendment is unnecessary. He referred to the guidance issued last year. The point made by the Magistrates' Association is that that guidance is insufficient and that there is still a need for local consultation on a statutory basis. Without that, the process will not be effective. I feel that I have a duty to the Magistrates' Association and its representations and I beg to test the opinion of the Committee.

1.17 a.m.

On Question, Whether the said amendment (No. 230ZA) shall be agreed to?

Their Lordships divided: Contents, 10; Not-Contents, 12.

Division No 5
CONTENTS
Anelay of St Johns, B.	Hodgson of Astley Abbotts, L.
Attlee, E.	ShuttofGreetland, L.
Blatch, B.	Thomas of Gresford, L.
Bridgeman, V.[Teller]	Tordoff, L.
Cope of Berkeley, L.[Teller]	Walmsley, B.

NOT-CONTENTS
Andrews, B.	Goldsmith, L.
Bassam of Brighton, L. [Teller]	Gould of Potternewton, B.
Campbell-Savours, L.	Grocott, L. [Teller]
Davies of Oldham, L.	Lea of Crondall, L.
Farrington of Ribbleton, B.	Scotland of Asthal, B.
Gibson of Market Rasen, B.	Warner, L.

1.26 a.m.

The Chairman of Committees (Lord Brabazon of Tara)

As it appears that fewer than 30 noble Lords have voted, in accordance with Standing Order 58 I declare the Question not decided and, pursuant to Standing Order, the House will now resume.

House resumed.

House adjourned at twenty-seven minutes past one o'clock.