Sitting of 14 October 2003

Preamble
The House met at half-past Two o'clock
PRAYERS
[MR. SPEAKER in the Chair]
PRAYERS

  PRIVATE BUSINESS
  MERSEY TUNNELS BILL (By Order)
  Order for further consideration, as amended, read. To be further considered on Tuesday 21 October.

Oral Answers to Questions
  FOREIGN AND COMMONWEALTH AFFAIRS
  The Secretary of State was asked—
  FOREIGN AND COMMONWEALTH AFFAIRS

    European Union
    Mr. Wayne David: If he will make a statement about the EU's political relationship with countries that will border the expanded European Union. [131998]
    The Minister for Europe (Mr. Denis MacShane): We want the European Union's new neighbours to develop positive political and economic links with the EU, and in my visits, including a recent one to Ukraine, I encouraged them along those lines. The British
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    Government took the lead a year ago to propose that the EU upgrade its relationships with its new neighbours and we shall pursue that policy energetically.
    Mr. David: I thank the Minister for his reply. Does he agree that the new European security strategy, outlined by High Representative Solana, shows a positive step forward on the basis of real security for the new Europe? Does he also agree that the new developing political geography of Europe offers great opportunities for the countries entering the EU, enabling a better and more positive relationship with countries to the east?
    Mr. MacShane: My hon. Friend is right. Mr. Solana's policy document on security is an important step forward, bringing Europe and the United States together. He is also right—and I can confirm it—that all my visits to new neighbours in eastern Europe show that the younger, reforming, modernising, progressive, intelligent, business-oriented politicians all look to the European Union and reject the strategy of saying no to Europe that we hear occasionally in the House.
    Mr. Julian Brazier: Could I suggest that the Minister would do better to respond to the substantive question rather than make cheap jibes? The plain fact is that practical measures are what matters for countries bordering the future EU. What steps are the Government taking to ensure that the Polish-Ukrainian border is not closed by the Schengen arrangements, which would have a disastrous effect not only on the Ukrainian economy but on that of the Soviet Union?
    Mr. MacShane: I do not want to make cheap jibes, but that country is called Russia now. If the hon. Gentleman visited the Polish-Ukrainian border, he would see both Warsaw and Kiev making concrete efforts to ensure that local border arrangements are in place to allow local trade to continue. The British Government and the EU have helped our partners to establish adequate border arrangements. Or my visit to Kiev last month, the issue highlighted by the

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    hon. Gentleman was not raised. We must maintain trade and a border that allows Ukrainian and other reforming neighbours to look to the EU for future political relationships.
    Huw Irranca-Davies: Having spent a good part of my spare time during the summer reading a 600-page tome on the history of Europe, may I ask whether the Minister agrees that the expansion of the EU, and, I hope, the inclusion of other countries in future, is nothing to be scared of? Rather, it is a matter of back to the future.
    Mr. MacShane: I commend my hon. Friend's summer reading and wish that Conservative Members read something on Europe other than the Daily Mail with its isolationist, anti-European traditions. My hon. Friend, who is referring to the excellent book by Professor Norman Davies, is right. Our historic chance in the present House of Commons is to make enlargement work and show our new European neighbours that the EU is a force for good, for progress and for stability and security in this troubled world.
    Mr. Richard Spring: Does the Minister agree that, in view of Turkey's stalwart support for our defence interests over many decades and its position as a bridge between two continents, every encouragement should be given to make Turkey ready for EU accession? Does he also agree that an important aspect of that task is resolution of the problem of Cyprus? What measures does the Minister propose to advance that?
    Mr. MacShane: I could not agree more with the hon. Gentleman and I am glad that there is one narrow area of terrain over which we see eye to eye. He is quite right. The Government want Turkey to look west and prepare itself for EU membership. A major contribution to that would be for Turkey to put pressure on the northern Cypriot-Turkish communities and leaders, so that a united Cyprus can enter the European Union on 1 May next year. Under the Annan plan, that would mean that one of its two leaders would be a Turkish Cypriot, Turkish would become an official language of the Union and Turkey would be dealing and negotiating with a partner that understood her language and culture. It is in Ankara's interests to do everything now to support a united Cyprus, under the Annan plan, joining the European Union.

    Middle East
    Mike Gapes (Ilford, South): If he will make a statement on prospects for a comprehensive peace settlement in the Middle East. [131999]
    The Secretary of State for Foreign and Commonwealth Affairs (Mr. Jack Straw): With partners in the European Union, the United States, Russia and the United Nations, we continue to work for a comprehensive settlement based on the quartet road map. That sets out clearly what needs to be done to establish two states, Israel and Palestine, which can then live side by side in peace and with security. However, prospects for a comprehensive settlement have been set back recently
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    by severe internal dissension within the Palestinian Authority, unlawful actions by Israel including assassinations and the building of the security wall on Palestinian land—and, above all, by continued terrorism by rejectionist groups.
    Mike Gapes: Today, we have seen a report that secret negotiations have been going on for two and a half years between leading Palestinian and Israeli politicians, including Yossi Beilin, Yasser Abed Rabbo and Amram Mitzna. Will my right hon. Friend take this opportunity to welcome all contacts between Israelis and Palestinians designed to get out of the useless and terrible cycle of violence and back to politics, negotiation and compromise?
    Mr. Straw: I will indeed, and I commend the courage of all of those involved, especially Yossi Beilin and Yasser Abed Rabbo, whom my hon. Friend mentioned. The plan provides a realistic two-state solution, on the basis of land for peace. It is similar to that which was negotiated at Taba, under a different Israeli Cabinet and Government, and it deserves support. The fact that it may not receive support illustrates one of the profound frustrations of the current situation, in which solid majorities in both communities are desperate for peace and security, but neither side's political leaders know how to get there at present. We recognise our duty to assist them in every way we can, but the auguries are not encouraging at the moment.
    Mr. Crispin Blunt: On the security wall, is the Foreign Secretary familiar with the Israeli military order issued on 2 October, which closes all the land between the security wall and the 1967 border? The order states that free access to the closed zone will only he allowed to Israelis, defined as Israeli citizens, Israeli residents and anyone allowed to immigrate to Israel. However it requires Palestinian residents of the closed zone to obtain permits to live in their homes, farm their land and travel. Is not such behaviour by the Israeli Government not only outrageous, but self-defeating in terms of achieving peace? Will the Foreign Secretary make his concerns known directly to the Israeli ambassador?
    Mr. Straw: I have already said that we regard the building of the wall on Palestinian land as unlawful. No one can have any objection to any sovereign state building a wall or fence along its international border, but that is wholly different from building a wall or fence on someone else's territory. It is Palestinian land, and the building of the wall will have many of the consequences that the hon. Gentleman mentioned. Anybody who is unconcerned about the building of the wall and its effects needs to look at a map of the route that it has taken. We have indeed made our concerns well known, both to the Israeli ambassador and to the Israeli Government.
    James Purnell: I welcome the efforts that my right hon. Friend has made to prevent

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    funding from reaching Hamas. Is Syria continuing to fund terrorist groups and what more can be done to reduce such funding?
    Mr. Straw: I am grateful to my hon. Friend. Following a lead given by Germany and ourselves, we were able to secure an asset freeze against Hamas across the European Union, in addition to action that we have taken in this country under the Terrorism Act 2000. However, we remain concerned about the overt and covert support given to rejectionist terrorist groups by the Government of Syria. It is unacceptable and is not in Syria's long-term interests.
    Mr. Alan Duncan: Following what the Foreign Secretary has just said and as my right hon. Friend the Member for Devizes (Mr. Ancram) can confirm from his days as a Northern Ireland Minister, the hard and unpalatable truth of conflict of that nature is that it makes sense to develop direct contacts with organisations deemed to be terrorist. Even with the collapse of the road map—or, even more crucially, because of it—it may be useful to talk to Hamas and Islamic Jihad. Will the Foreign Secretary comment on newspaper reports that efforts by the UK and EU to maintain a dialogue with such organisations have been terminated? Will he confirm that any successful path to peace requires dialogue and discussion at all levels and with all parties involved in the dispute, however uncomfortable that might feel?
    Mr. Straw: Of course, if we are to resolve a conflict, we have to bring the parties who wish to resolve it to the negotiating table. That is what we did in Northern Ireland, and we have also assisted the Norwegian Government to do that in respect of Sri Lanka. However, there is no point in having a dialogue with groups that make it clear that they have murderous intent and which are seeking simply to blow up any prospect of peace. There was every opportunity for Hamas, Islamic Jihad and Hezbollah to support the road map for peace and their own Palestinian Authority when that was promulgated at the end of June. They failed to do so, and displayed a wilful desire to disrupt and undermine the elected Palestinian Government. However, their planting of terrorist bombs in Jerusalem on 19 August was the single most important cause of the breakdown of progress on the road map.
    Richard Burden: I welcome what my right hon. Friend has said about the security wall. It is not only illegal—it runs counter to the road map and to the Geneva accords announced yesterday. Given that, and the fact that Israel is continuing to build the wall, what can be done in practice to put pressure on the Sharon Government to cease that work? If construction continues on the route that is currently planned, peace agreements will be made irrelevant. We must not allow that to happen.
    Mr. Straw: As I have made clear, we disagree with the Israeli Government's decision to build the wall. We consider its building on Palestinian land to be unlawful and unacceptable, but it must be understood that the decision to build the wall was not an abstract one. It arose from a profound sense of fear among people in
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    Israel and from their belief that they have to protect their security. That does not make the decision lawful or justifiable in our view, but it does explain it. If we want to see an end to such actions and to get the road map back on track, the first and essential precondition is for Hamas, Islamic Jihad and the other rejectionist terrorist groups to announce a ceasefire and give up the idea that it will be possible to help the Palestinians to achieve a peaceful and secure future through the sort of terrible and rejectionist terror that those groups adopt. I also make it clear that the rejectionist terror adopted by Hamas and Islamic Jihad undermines very significantly the 90 per cent. or so of people in the occupied territories who support the Palestinian Authority and who want a peaceful route through.

    Iraq
    Mr. George Osborne: When he last discussed the situation in Iraq with the US Secretary of State. [132000]
    Ross Cranston: If he will make a statement on the UN's role in Iraq. [132001]
    Jim Knight: If he will make a statement on the numbers and dispositions of troops from countries other than the UK and the USA operational in Iraq. [132004]
    The Secretary of State for Foreign and Commonwealth Affairs (Mr. Jack Straw): I discuss Iraq with Colin Powell almost daily, including this morning. The security situation, especially in Baghdad and the Sunni triangle, remains unsatisfactory, but there has been good progress in many other respects, with ambassador Bremer reporting last week that there are now 40,000 police in post and 400 courts in operation, and that electrical power generation is above the pre-war average. Universities, schools and hospitals are all working, with significant increases in pay for teachers and doctors. In addition, 14,000 km of irrigation canals have now been cleared, and the country has a free press and effective local government in most areas. In addition to the US and UK forces, 16,000 troops from 30 nations, including 11 EU and accession states, are operating on the ground.
    On the role of the UN, a new draft Security Council resolution, co-sponsored by the US, Spain, the Cameroons and the UK, was published in New York at 2.30 pm our time. A copy has been placed in the Library and made available to the Opposition Front-Bench spokesmen. The aim of the resolution is to confirm the goal of transferring power to the Iraqis as soon as possible and, among other things, to enhance as far as practical the UN role in the process through a partnership between the coalition, the UN and, in particular, the Iraqis. I very much hope that it will attract support in the Security Council.
    Mr. Osborne: What the Foreign Secretary says is welcome news, but does he agree that attempts to reconstruct Iraq continue to be overshadowed by the controversy surrounding the decision to go to war? I know that he is a keen student of political diaries, so what does he make of the diary of the former Foreign

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    Secretary, the right hon. Member for Livingston (Mr. Cook), and his claim that the Prime Minister no longer believed by March that Saddam Hussein had weapons of mass destruction that he could fire within 45 minutes?
    Mr. Straw: My right hon. Friend is a man for whom I have very great respect—
    Mr. David Cameron: But—
    Mr. Straw: But he was simply and completely wrong about that.
    Ross Cranston: My right hon. Friend knows, as he was intimately involved in its drafting, that UNSCR 1500 conferred a legitimacy on the Iraqi governing council. He also knows that the Arab League has added to and bolstered that legitimacy. He knows, too, that resolution 1500 said that the establishment of the council was a step towards a democratic Iraq. Can my right hon. Friend give the House the benefit of his thinking about the timetable—perhaps the draft resolution says something about it—for, first, the completion of a constitution and, secondly, the holding of elections?
    Mr. Straw: The draft resolution places responsibility for coming forward with a time scale, for both the drafting of a new constitution and the holding of democratic elections under that constitution, on the governing council working in co-operation with the coalition provisional authority and, as circumstances permit, the special representative of the Secretary-General. The resolution requires that the time scale should be produced by the governing council by 15 December this year. That is a reasonable time scale to expect, and one that should ensure that more rapid progress is made to the achievement both of the constitution and of elections.
    Jim Knight: Last year, I was able to visit Kabul and see the good work of the international security assistance force—ISAF—in restabilising and rebuilding that city. It is clear that a number of countries, which are not included in the impressive list of those involved in Iraq, have useful skills and experience to offer. Can the Foreign Secretary give us some indication as to whether there is any willingness among nations such as Finland, France and Germany, which have such useful skills, built up in Kabul, in Kosovo and so on, to help out with that important work in Iraq?
    Mr. Straw: We welcome all nations with the capabilities and commitment to join us on the ground in Iraq and, as I have indicated, 30 have done so already, including 11 EU and accession states. Both France and Germany have made it clear that they will not be putting any troops into Iraq; they could have done so, if they had wished to, under existing resolutions. I am not aware that Finland has proposals to do so, but the
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    resolution—if it is passed—should create an even better climate, in which states that may have been reluctant to provide troops in the past could then do so.
    Dr. Julian Lewis: Does the Foreign Secretary think that it would ever be sensible or practicable for coalition forces in Iraq to hand over power while Saddam Hussein remains at large?
    Mr. Straw: I do not make that a precondition for transfer of power, nor does the resolution. The precondition for a transfer of power is that there should be an effective, operating sovereign Government in Iraq with security forces at their disposal. One of the good things that has happened in the past six months is the build-up of security forces: there are now 40,000 police officers and many more are in training, and there are at least 20,000 other security officers. Battalions of the Iraqi army are also in training.
    Mr. Menzies Campbell: Does the Foreign Secretary agree that any multinational force under unified command, which the current draft resolution envisages, must be answerable to, and obliged to report to, the Security Council? Can he tell the House what objections Her Majesty's Government have to a transition to democracy in Iraq wholly managed by the United Nations?
    Mr. Straw: The multinational force needs to be authorised by the United Nations and, indeed, that is proposed in the resolution. In any event, the authority for the occupying powers the—United States and the United Kingdom—derives from Security Council resolution 1483. On managing the transition, the simple fact is that the UN has never sought an exclusive role in respect of Iraq; what it seeks is a partnership. The resolution takes account of both the wish of the UN to be more heavily involved and the reluctance of the UN secretariat under Kofi Annan to put too many more of its own officials into the field until they are satisfied about security. Meanwhile, the responsibility has to rest with the governing council and the coalition provisional authority, but working, as the resolution says, in many respects as far as is practicable in other words, at the call of the Secretary-General of the United Nations—with the UN.
    Mr. Peter Kilfoyle: To consolidate support in the House for the initiatives that the Foreign Secretary has adumbrated today, does he not think that it is now time for the Government to apologise for the dodgy dossier, which misled the House on Iraq in the first place?
    Mr. Straw: No, because that dossier the one published on 24 September last year—has been shown, after very careful scrutiny by the Intelligence and Security Committee, to be accurate in all material respects, as were the contents of the dossier published in February.
    Mr. Michael Ancram: I welcome the new draft resolution, and I hope that, this time, it will secure the support of the Security Council, including from France.

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    On a slightly different matter, has the Foreign Secretary discussed with Secretary Powell the information on the basis of which the Prime Minister told the Liaison Committee on 8 July that he had
    "absolutely no doubt that we will find evidence of"
    weapons of mass destruction
    "programmes"—
    later explained by his official spokesman as
    "including concrete evidence of the product of these programmes as well".
    Where is that evidence, which has apparently so far eluded the international survey group? Or should we put as much faith in the Prime Minister's assertions on weapons of mass destruction as in his now totally discredited assertion—as we learned—yesterday that he had nothing to do with the naming of Dr. Kelly?
    Mr. Straw: I think that that is one of the more incredible observations that I have heard from those on the Conservative Front Bench, given their position on 18 March. I think I am going to buy the right hon. Gentleman a pair of open sandals and a false beard, and he can join the Liberal Democrats.
    Ann Clwyd: I want to pay tribute to the chief police adviser in Iraq, who is British, and the role being played by Britain in retraining the Iraqi police. The visible evidence of police on the streets of places such as Baghdad sends a very important signal to the Iraqi people, but at the same time the chief police adviser says that he cannot continue to operate unless he gets more personnel. When does my right hon. Friend intend to strengthen the number of British advisers and support staff for that post?
    Mr. Straw: When I saw the report this morning in respect of the comments by Deputy Chief Constable White, I asked for them to be investigated, and I am still pursuing that. Meanwhile, I can tell my hon. Friend that I understand that, from this week, DCC White will be supported in his work by six Ministry of Defence police officers. However, my investigations into his anxieties continue, and I will place before the House the results of those inquiries and write to my hon. Friend about them.
    Mr. Douglas Hogg: Will the Foreign Secretary tell the House his best estimate of the cost of the United Kingdom involvement in Iraq, by which I mean incurred cost, promised costs and anticipated costs? Can we have a total figure? If the Foreign Secretary does not have one to hand, a letter put in the Library would be most helpful.
    Mr. Straw: I have not got the figure to hand, but I will do better than asked: I will publish a written ministerial statement on the record. I was very pleased to announce yesterday that we will make available a further €550 million at the forthcoming donors' conference in Madrid at the end of next week.

    Uganda
    Valerie Davey: What plans he has for the United Kingdom to have a mediation role in resolving the conflict in northern Uganda. [132003]
    The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Chris Mullin): We do not consider that there is a role for UK mediation at this stage, nor has the Ugandan Government requested it. We are, however, providing support to a number of civil society groups engaged on peace issues, including the Acholi religious leaders, who we believe are best placed to act as mediators. We will continue to work with our development partners in urging both the Government and Lord's Resistance Army to demonstrate their commitment to dialogue. We welcome President Museveni's reaffirmation of his readiness for dialogue during his independence day speech on 9 October.
    Valerie Davey: May I thank my hon. Friend for his and the Government's commitment to northern Uganda? In the light of the increasingly violent and volatile situation reported again only this week, can he say what opportunity remains for the international community to take some action?
    Mr. Mullin: My hon. Friend is right to draw attention to what is an extremely serious situation in northern Uganda. The prospect of peace in Sudan, which the LRA often uses as a safe haven, will make it easier to put pressure on that organisation. We are also anxious to encourage dialogue between the Government of Uganda and the LRA, which is rather difficult given that the LRA does not have negotiable demands. That is the only way forward, however, because, as my hon. Friend knows, a military solution has been tried, and it has not worked—it has only led to a great deal more suffering. We continue to remain closely engaged with both the Ugandan Government and the Acholi leaders, and our high commissioner is in northern Uganda today.
    Richard Ottaway: Does the Minister agree that, in effect, the conflict in northern Uganda is between the Islamic values of the Sudan and the Christian values of Uganda? What we are seeing there is a microcosm of the conflict between the two religions that we find elsewhere in the world.
    Mr. Mullin: I had not heard that explanation of the difficulties in northern Uganda. It is a very serious and complex situation, but it would be difficult for followers of any religion to justify the terrible atrocities that the LRA has been carrying out against innocent people in northern Uganda.
    Mr. Tom Clarke: I have just returned from a visit with the all-party group on the great lakes region and genocide prevention, and I declare the appropriate interest. May I say that there was a great regard for the role of my right hon. Friend the Foreign Secretary in seeking to influence Uganda

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    and Rwanda in particular towards peace? That influence was never more necessary if genocide and conflict is to be avoided.
    Mr. Mullin: I am grateful to my right hon. Friend for his kind remarks. We all understand that a great deal more work remains to be done before we see peace and the rule of law restored to that area, but there has been some progress.
    Michael Fabricant: The Minister is right, of course, to condemn the LRA. He will be aware that it has abducted something of the order of 20,000 children in northern Uganda over the last five years. He will also be aware, however, that President Museveni has requested that signals intelligence and other intelligence aid be provided to the Government and army of Uganda to assist them in their fight to protect the people of Uganda from that terrible terrorist organisation. What precisely are the Government doing, or what will they do, to assist President Museveni and the people of Uganda?
    Mr. Mullin: We have already done a great deal as regards helping Uganda to recover from the dreadful situation that President Museveni inherited when he took office some years ago, and he is the first to acknowledge that. I do not think that the hon. Gentleman will expect me to get involved with the precise details of any military assistance that we are giving to Uganda, but I repeat what I said earlier: ultimately, there is no military solution. Some way will have to be found of establishing contact with the LRA and of putting an end to this dreadful rebellion. The military solution has been tried, but it has not worked.

    Afghanistan
    David Cairns: What assessment he has made of the size of this year's poppy harvest in Afghanistan. [132005]
    The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Bill Rammell): The United Nations Office on Drugs and Crime has not yet published the results of its 2003 poppy cultivation survey in Afghanistan. However, we would expect the results to be broadly similar to last year, with a small increase in both production and cultivation likely. That is in line with expectations based on previous experience in Thailand and Pakistan and our own expectations. We want to do more, however, to engage the international community in countering narcotics in Afghanistan. To that end, we will be organising a major international conference in Kabul in early 2004.
    David Cairns: I am grateful for my hon. Friend's answer and look forward to the publication of that report later this month. Does he agree that two things need to happen? First, there must be targeted assistance to Afghan farmers to wean them off this horrible crop, and secondly and more importantly—ISAF's mandate must now be extended beyond Kabul, which, as we have heard, is relatively secure, and out to the provinces and regions of Afghanistan, which is where the poppies are actually grown and where the will of the
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    warlords, not that of the international community, holds sway? We can only smash the trade once and for all if we do that.
    Mr. Rammell: I thank my hon. Friend for that question and pay tribute to his long-standing work in this area. He is absolutely right that, as well as the other activities that we undertake, we need to pursue the matter of alternative livelihoods. If we are to persuade farmers in Afghanistan to move away from poppy production, they will need an alternative source of livelihood, so we need to work on that. I also agree with my hon. Friend about the security situation beyond Kabul. Clearly, the security situation has been better in Kabul, and yesterday's announcement at the Security Council, for which we pushed strongly, to extend 1SAF's remit beyond Kabul to the outlying regions is significant, and indicative of a step change in our efforts that will undoubtedly help to beef up our counter-narcotics activity.
    Bob Spink: What help will the Government give to neighbouring countries such as Kazakhstan to cut off the supply route of the drugs?
    Mr. Rammell: The hon. Gentleman raises an interesting point because we have a 10-year strategy to eradicate poppy production in Afghanistan, but if that simply results in cultivation in other countries, we need to address that issue. The matter is being examined in great detail by the cross-departmental Whitehall international drugs taskforce. We are also committing significant funding to some neighbouring countries to help the effort.
    Mrs. Jackie Lawrence: The Minister will be aware that one of the main drug smuggling routes is north through Osh in the Kyrgyz Republic. At the conference that he mentioned, will he discuss ways in which the UK could help the Kyrgyz Republic to tackle its border security problems and give advice, help, training and assistance with its communications system to help the Kyrgyz Government to close their border to drug smuggling, which inevitably has an impact on Europe and the UK?
    Mr. Rammell: My hon. Friend raises a valid and interesting point. We clearly need not only to tackle poppy cultivation in Afghanistan but to consider carefully how drugs are taken abroad and what the trafficking routes are. Interdiction at border areas—the Kyrgyz Republic is a key area—is important and we need to do more to cut off those routes.

    European Constitution
    Mr. David Atkinson: What the Government's policy is on the proposed incorporation of the European charter of fundamental rights in the draft European constitution. [132006]
    The Minister for Europe (Mr. Denis MacShane): The draft EU constitutional treaty explicitly states that the charter does not extend EU competences and makes it clear that the charter applies primarily to the EU institutions. The charter would apply to member states

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    only when they are implementing EU law. The Government will reach a final decision about incorporation of the charter in the context of the intergovernmental conference.
    Mr. Atkinson: Does the Minister recall that his predecessor, the hon. Member for Leicester, East (Keith Vaz), told the House that the EU charter of fundamental rights would have no more legal significance than a copy of the Beano? Why does it now form article 6 of the EU draft constitution and threaten to undermine the Human Rights Act 1998 in this country and the authority of the European Court of Human Rights in Strasbourg and the European convention on human rights? Will Britain veto the EU charter of fundamental rights at the intergovernmental conference?
    Mr. MacShane: I read the Beano many years ago— I especially read about the character Dennis the Menace. However, I must say that Desperate Dave—or Desperate Dan—from Bournemouth is at the end of his wits. Article 9 of the charter of fundamental rights supports the family, article 10 supports the right to religion, article 16 supports the right to conduct a business and article 17 supports the right to own property. When I was reading the Beano, the Conservative party supported property, believed in business, loved the family and went to church. Now that we have European rules to introduce that into our law, it should support the sound and conservative charter. Conservative Members have been overtaken by malevolent forces that have driven them toward a fanatical anti-European position, which does them no credit at all.
    Mr. Terry Davis: But given that it is more than two years since Members drew the Government's attention to the risk of conflicting judgments by two courts based on the same facts affecting human rights, when will they get to grips with the issue?
    Mr. MacShane: My right hon. Friend, who refers to the European Court of Human Rights and who plays a distinguished role at the Council of Europe, is right to draw attention to the fact that there are now three ways in which such law is declared: in the European Court of Human Rights, by our incorporation of the European convention on human rights into British law and as a result of the charter of fundamental rights. It is important to realise that the charter applies to EU institutions. It will not replace the French or German constitution. It is clear that the horizontal articles—this is technical language—under articles 51 and 52 maintain the rights of countries to carry on their own business in terms of national law. I am certainly not going to stand at the Dispatch Box and condemn an important set of principles that the vast majority of European citizens—except perhaps those on the Conservative Benches—will welcome and support.
    Mr. Michael Ancram: Does not the incorporation of the charter of fundamental rights constitute a fundamental change to the relationship between the European Union and its member states? By
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    the Government's own criteria, should not its inevitable incorporation, which they now appear to support, trigger a referendum to secure the consent of the British people before it is ratified?
    Mr. MacShane: No.
    Mr. Ancram: I am astounded by that answer from someone who proclaims himself a European. Why cannot the Minister agree with French Premier Raffarin, who this week said:
    "a real European cannot not want a referendum",
    or President Chirac, who said that a referendum
    "would be the only legitimate way",
    or the Spanish, Portuguese, Danes and the Irish, who are going to allow their people to decide? Why do the Government have such contempt for the intelligence of the British people that they will not allow us to decide? Why do they not come clean and allow us to have a referendum now?
    Mr. MacShane: It is a pleasure to hear the right hon. Gentleman pray in aid France in an argument for the first time during his tenure of office as shadow Foreign Secretary. President Chirac has not made up his mind. The majority of EU nations do not intend to hold referendums at the moment. However, there is a fundamental divide between those of us who will defend the right of Parliament and the House of Commons to debate and ratify international treaties and those who want to tear up 500 years of British parliamentary history to hold their populist plebiscite. The right hon. Gentleman can splutter as much as he wants, but until he removes the malevolent forces that have made the Conservative party a byword for hostility to Europe—even if today he praises France in passing—his party will not be taken seriously ever again.
    Mr. George Foulkes: Surely everyone, including the shadow Foreign Secretary, should welcome the extension of human rights provision to the United Kingdom, especially for those who are being persecuted? Will the Minister admit, however, that that will offer no protection for Tory MPs invited by their Chief Whip for career development interviews?
    Mr. MacShane: Article 11.52.4 says:
    "Insofar as this Charter recognises fundamental rights … these rights shall be interpreted in harmony with those traditions."
    The trouble is that the Conservative party once believed in human rights and the rule of law internationally, and supported Europe. It is the malevolent forces that now control it that make the right hon. Member for Devizes (Mr. Ancram) stand on his head because he is a closet European. It is time he came out of his closet and let his party reconnect with the British people, who will never vote for the manic anti-Europeanism that the Conservative party represents.
    Mr. Richard Shepherd: But there is a serious point, which the Minister touched on, concerning the competence of the European Court of Human Rights, as opposed to judgments that will be

    15
    made on the European constitution's charter of fundamental rights. Which one will prevail when it comes to the areas of direct conflict of competence?
    Mr. MacShane: That point was well raised by my right hon. Friend the Member for Birmingham, Hodge Hill (Mr. Davis). To anyone who knows how Europe works, the answer is fairly clear. The European Court of Human Rights hands down its judgments from Strasbourg. The European Court of Justice will be charged with implementing and upholding European Union law. As I said, the charter of fundamental rights applies to EU institutions. It will not tear up domestic constitutions, domestic law and so on. If the hon. Gentleman thinks that France, Germany or almost any EU member state with its own constitution will allow those to be overridden or abolished, he does not understand how Europe works. We want a charter of fundamental rights incorporated on terms that we are happy with, in a way that upholds the principles and values that the House has always held dear.
    Ms Gisela Stuart: The charter of fundamental rights will protect religious institutions and the relationship between church and state. Assuming that the IGC can find a formulation that would allow the British Government to accept the incorporation of the charter, can my hon. Friend confirm that we would consequently and subsequently see no further reference to God or Christianity in the preamble? That would be not only inappropriate, but unnecessary.
    Mr. MacShane: There is no reference to God or Christianity in the preamble. There is a reference, I think, to the important religious and humanist traditions that have shaped our common European home. The Government believe that we should leave it at that.

    Iran
    Mr. David Ruffiey: What recent discussions he has had with the Government of Iran about their civil nuclear programme; and if he will make a statement. [132007]
    The Secretary of State for Foreign and Commonwealth Affairs (Mr. Jack Straw): I spoke most recently to the Iranian Foreign Minister about nuclear matters on 3 October. The United Kingdom Government have frequent contact with the Government of Iran on this subject, and we have made clear our serious concerns. We have also made clear our wish that Iran should maintain complete transparency about its nuclear programme, and comply fully with the demands set out in the International Atomic Energy Agency board of governors resolution on 12 September.
    Mr. Ruffley: The IAEA has imposed a strict deadline of 31 October by which Iran must fully disclose the nature and extent of its uranium enrichment programme, yet the Iranian ambassador to the agency has refused to recognise that deadline as binding. Will
    16
    the Foreign Secretary therefore confirm that if Iran does not comply, he will continue to rule out the threat of military sanctions of any kind against Iran?
    Mr. Straw: We wish to see the matter resolved peacefully. I will not predict what will happen, except to say that we have adopted a consistent approach in respect of Iran. It was partly through our action that we were able to secure a consensus resolution 34:1—a tough resolution—in the IAEA board in mid-September. Dr. el-Baradei, the head of the agency, is going back to Iran to ensure that the Iranians comply with the demands made by the board. We look forward to his report to the IAEA board, which is to be made on 7 November.
    Mr. Jon Owen Jones: On the subject of consistency, the British position with regard to Iran may be consistent, but how is it consistent for the United States to threaten action against Iran for developing nuclear power, while at the same time covertly helping Israel develop marine-launched nuclear weapons?
    Mr. Straw: The Government of the United States supported the IAEA resolution that was passed in mid-September, which, with the full support of the US Government, recognised the basic and inalienable right of all member states to develop atomic energy for peaceful purposes. That is not the issue here.
    Mr. Mark Prisk: Given the recent reports that Russia is supplying various elements of nuclear technology to Iran, what representations have the Government made to ensure that we do not find ourselves on a collision course with Russia, and to ensure that Russia is making a positive contribution to a crucial issue?
    Mr. Straw: I had positive and constructive discussions about exactly that matter with my Russian opposite number, Igor Ivanov, in a bilateral meeting at the United Nations General Assembly in New York three weeks ago. Russia voted for the IAEA resolution in mid-September. We are working very closely with our European Union partners, the United States and Russia to ensure that that consensus is maintained.

    Liberia
    Mr. Russell Brown: If he will make a statement on the situation in Liberia. [132008]
    The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Chris Mullin): Liberia has suffered more than a decade of bloody civil war. There is now a comprehensive peace agreement; Charles Taylor has gone; and UN peacekeepers have been deployed. The new transitional national Government is being inaugurated today. We welcome those important steps, but there is still much work to be done.
    Mr. Brown: I thank my hon. Friend for that response. I hope that he agrees that the degree of US military force

    17
    that we witnessed during August was welcome. Is there anything that he can do to urge the Bush Administration to remain committed to the peace process in Liberia?
    Mr. Mullin: My hon. Friend is right that the presence in August of United States troops, albeit mainly offshore, was very helpful in stabilising Liberia. We are in no doubt that the Americans remain committed. Indeed, they have made a substantial contribution to the costs of the humanitarian effort and of funding some of the other peace forces that are involved in the UN operation that has already started.
    Sir Sydney Chapman: The Minister will know that 15,000 UN troops are stationed in Liberia and that under the peace agreement elections should be held by 2005. Is it the intention to keep those troops, or a goodly proportion of them, in Liberia until the elections have been held?
    Mr. Mullin: So far, there are only about 4,500 UN troops in Liberia, but their number should go up to about 15,000 by March next year. The intention is that all or most of them should be kept there until the country has stabilised.
    Hugh Bayley: What progress has been made on Kofi Annan's proposal to set up a college of peacekeeping studies in west Africa? Given that the plague of violence in west African states has spread, does my hon. Friend agree that the situation would be much better if the Economic Community of West African States was in a position to provide the region with peacekeeping troops of its own? What help will the British Government give to the initiative?
    Mr. Mullin: The Kofi Annan proposal is going ahead; I believe that it will be based in Ghana. My hon. Friend is right that it is a very important initiative, because the conflicts in west Africa are ultimately a west African problem that can best be solved by the intervention of well-trained west African troops. He can be assured that we shall support the initiative.

    Diamond Trade
    Mr. Stephen O'Brien: If he will make a statement on the role of the United Nations in ending the illegal trade in diamonds in Africa. [132009]
    The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Bill Rammell): The United Nations has helped to break the link in Africa between illicit sales of rough diamonds and armed conflict through a combination of embargoes on the diamond trade and the deployment of peacekeeping operations in countries such as Angola, Liberia and Sierra Leone, as well as through several resolutions in support of the Kimberley process certification scheme for rough diamonds—a scheme that this Government pushed for strongly.
    Mr. O'Brien: The Minister will have read the UN report on the illegal exploitation of natural resources in the Democratic Republic of the Congo that was published a full year ago in October 2002. Does he agree
    18
    that the trade in so-called dirty diamonds is one of the greatest evils blighting large parts of the African continent? Can he therefore assure the House that if there is any evidence of a British person being involved in that evil trade, firm and effective action will immediately be taken to deal with that person and that trade?
    Mr. Rammell: I share the hon. Gentleman's concern about the diamond trade—that is why we have initiated and supported the Kimberley diamond process certification scheme. I believe that he refers to the Democratic Republic of the Congo expert panel on natural resources. If substantiated evidence comes forward, we shall investigate it and take action. We remain willing to investigate the panel's allegation when such evidence becomes available. I understand that further information and analysis is expected in the panel's next report in late October. One of the worries about the process is the time it takes the United Nations committee to come up with substantiating evidence.
    Mrs. Gwyneth Dunwoody: The Minister knows that attempts to stop the trade will be strongly supported in the House. However, does he agree that it is vital that the genuine trade of African countries that produce diamonds and are utterly dependent on that is not damaged? Such damage is unacceptable.
    Mr. Rammell: I understand and share my hon. Friend's concern. That is why the Kimberley process certification scheme has been structured as it has, with the participation of the African states. It ensures that the legitimate diamond trade can continue to provide resources and funds to help rebuild those countries that so desperately need it.

    European Constitution
    Ann Winterton: If he will consult the people of the United Kingdom on the draft European constitution. [132010]
    The Minister for Europe (Mr. Denis MacShane): Yes.
    Ann Winterton: It appears that only Ministers believe that the European Union constitution will not affect the sovereignty and integrity of the United Kingdom as a nation state. Most people believe the opposite. When will the Government, who have not hitherto shied away from referendums, stop being so arrogant, hold a referendum on this vital issue and let the people decide?
    Mr. MacShane: Most people who have examined the draft constitutional treaty, including most of those on the continent, accept that it constitutes a good result for Britain. I congratulate the Convention members who took part in the process. I am confident that the final constitutional treaty that is brought to the House will strengthen the role of the nation state and Britain's standing in Europe. However, I also firmly believe—that is why I was elected to the House—that Parliament should debate and determine such matters.
    Dr. Nick Palmer: Does the Minister agree that, in practice, we cannot reject the proposed

    19
    constitution without casting doubt on the European Union's ability to operate in its expanded form, and that rejection would therefore call into question our membership of the European Union?
    Mr. MacShane: Clearly, my hon. Friend has a point. However, the rules exist and if the constitutional treaty is not ratified by any one of the 25 member states, we shall carry on as before. Undoubtedly, all the incoming states—our friends—want the constitutional treaty to be ratified and operated. One of the saddest aspects of the debate is the way in which the malevolent forces that control the Conservative party's European politics have sent their key henchmen into east Europe to campaign against enlargement. We want an enlarged Europe that works. The constitutional treaty, when it is finally negotiated, should therefore be brought to the House, where I hope that hon. Members will overwhelmingly support it.
    Angus Robertson: Will the Minister for Europe confirm that only five days remain for European Union member states to table amendments to non-institutional questions in the planned European Union constitution? What questions will the United Kingdom Government table? Will they involve fishing or will the UK Government allow it to become entrenched as an exclusive competence in the European Union?
    Mr. MacShane: The hon. Gentleman mentions fishing, which is of great concern to his constituents, every time the wider issues of Europe are raised. However, he is wrong. We are in an intergovernmental conference—a solemn treaty negotiation between 25 independent, sovereign nation states. Until the last moment, Governments can table whatever matters they want to be decided. That is why it is important to work constructively with our partners and drop primitive anti-Europeanism, which causes great dismay to parties throughout Europe that expect Britain to be a leader in Europe, helping to run it.
    Mr. Chris Bryant: May I urge my hon. Friend not to listen to the rabid rantings of the
    20
    Conservatives, and in particular of the Leader of the Opposition, who last week gave a good performance as Neville Chamberlain on acid—
    Mr. Speaker: Order. The hon. Gentleman is out of order.

    Zimbabwe
    Sir Nicholas Winterton: If he will make a statement on the current situation in Zimbabwe. [1320111
    The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Chris Mullin): The situation in Zimbabwe continues to deteriorate. Last month saw the closure of the only independent daily newspaper, and last week saw the arrest of up to 200 trade unionists for peacefully demonstrating. As this year's meagre crop runs out, half the population will depend on food aid. The Zimbabwean people continue to struggle with hyper-inflation, mass unemployment, and shortages of cash, food and fuel. The source of the problem is clear: bad governance and bad policies. We will continue to support all those working for peaceful change in Zimbabwe and a return to democracy, accountable government and respect for human rights.
    Sir Nicholas Winterton: I thank the Minister for that very full reply. Does he not think, however, that the disaster of Zimbabwe is going to become the forgotten tragedy of Africa, particularly as the Inter-Parliamentary Union—which has apparently decided not to hold its conference here next year—is to permit people on the list of those who are not supposed to travel internationally to attend its next conference? Is that not an absolute disaster? What will the Government do to save the people of Zimbabwe from further suffering?
    Mr. Mullin: With all due respect, there is not the slightest danger of Zimbabwe becoming a forgotten tragedy. Hardly a day goes by when the subject does not pass through my in-tray one way or the other, and we continue to pursue the issue very seriously indeed, as I hope I made clear in my original reply. As for the IPU conference, it was due to be held here but it is now not going to be, as a result of the Government sticking firmly to their policy.

Member Sworn
The following Member took and subscribed the Oath:
Sarah Teather, for Brent, East.

Ministry of Peace
3.33 pm
John McDonnell: I beg to move,
That leave be given to bring in a Bill to establish a Ministry of Peace with the function of promoting conflict resolution and the avoidance of military conflict.
The Bill aims to establish a Ministry of Peace, a new Government Department whose sole purpose would be to focus the resources of Government on the promotion of peace and the eventual abolition of war. Let me explain briefly the genesis of the Bill. The history of the last millennium can be viewed as a search by humanity for peace and security. At first, that search was individual, pursued by individuals entering society to seek security and protection under nations, in the context of what the philosopher Thomas Hobbes described as
"the war of all against all".
The next stage of this ceaseless search for peace was the societal attempt to gain safety from aggression between nations through the construction of treaties. Far from avoiding conflict, the treaty system produced the greatest war the world had experienced, which was fought at such human cost in the trenches of Flanders.
From the battlefields of the first world war came the next stage in the pursuit of peace the foundation of the League of Nations. That first halting attempt to construct a permanent international structure for securing peace floundered in the face of fascist aggression and the ambiguity of the support of the League's founding nations. Nevertheless, it placed on the post-second world war agenda the potential for creating global structures for peace, resulting in the launch of the United Nations, with the aim, made explicit in its founding charter, of saving succeeding generations from the scourge of war. Tragically, since that time, 120 wars have been fought in which more than 25 million people have been killed and 75 million injured. Increasingly the victims of war are non-combatants.
That stark evidence demands that, in this new millennium, humanity move on to a new stage in its search for peace. The first inkling of this new approach has tentatively emerged over the past decade from the intensive deliberations of the thousands of organisations and individuals who participated in the construction of the Hague agenda for peace and justice in the 21st century.
The Hague appeal recognised that the traditional approaches to preventing war and creating the conditions of permanent peace had largely failed, with disastrous consequences. A fundamentally new approach needs to embrace the roles of individuals, civil society, national Governments and supranational institutions, in creating the conditions for guaranteeing peace. Above all else, the Hague appeal is a proclamation that war is not some elemental, climactic force that can defy all control, but something which, being created and prosecuted by mankind, can therefore be eliminated by mankind.
The Hague peace process has engaged in a forensic examination of the root causes of war, and a discussion and promotion of the concrete actions that could be

23
taken to prevent and, ultimately, eliminate war. That approach advocates the use of "soft power" paths, early intervention to identify the possible sources of conflict, and the use of education, negotiation, coalition building and reconciliation as the means of conflict resolution, which ultimately results in the replacement of the law of force with the force of law.
The Hague process urged the reform of supranational bodies such as the United Nations to enable the realisation of their global potential for securing permanent peace. In September, a draft statute was published to promote a United Nations commission for peace and crisis prevention, with the remit of strengthening the UN's role
"in the peaceful resolution of conflicts and supporting the worldwide strengthening of peace work, peace education and peace research."
In that context, we need to consider the reform not only of international structures, but structures of national Government to respond to this new peace agenda. To their immense credit, the Government have already gone some way in restructuring to promote conflict prevention and resolution. In a little publicised measure in 2001, the Government set up United Kingdom global and African conflict prevention pools. That initiative brought together the conflict prevention work of a series of Government Departments under an interdepartmental committee of Ministers to increase the Government's overall impact in reducing the number of people around the world whose lives are affected by violent conflict.
This Bill builds on that Government initiative. It proposes that we take the next step in strengthening the Government's role in promoting peace by giving greater authority and profile to this work through the establishment of a Ministry of Peace. This is a paving Bill, giving the Government the authority of Parliament to undertake a comprehensive consultation on the potential for establishing a Ministry of Peace. It proposes that the Government report back to Parliament within a designated period, following consultation with statutory bodies, relevant nongovernmental organisations, religious groups and the general public.
A Ministry of Peace would perform the following core roles. First, it would provide within Government an expertise in non-violent conflict resolution, through which Government could be advised on how policies can be developed across Government to reduce the potential for conflict. Secondly, it would provide and coordinate the application of Government resources to foster greater understanding in Britain and the world of how war can be avoided and peace achieved.
Let me give some practical examples of what a Ministry of Peace could accomplish. If we are to achieve peace, we must understand conflict—how it occurs, and how it can be prevented. A Ministry of Peace would support and promote a renaissance of research in this country into the causes and impacts of conflict, monitoring potential areas of conflict and advancing
24
practical techniques to avoid outbreaks of violence before they arise. That includes identifying the potential for conflict over the scarcity or maldistribution of natural resources, the impact of human rights abuses as a cause of conflict, the potential for reducing and eliminating the arms trade and demonstrating the potential of a variety of techniques for conflict resolution and effective community peace-building activities.
A Ministry of Peace would examine how we can undermine the culture of conflict that has grown up in our society at every level, so that Government could use their resources to educate our children and raise the consciousness of our communities and our international partners to ensure that mediation becomes the automatic response to a problem rather than violence, in the playground or on the battlefield. Our domestic and international policies would be prefaced and tested by the central question of whether they reduce conflict and violence or increase the risk.
Establishing a Ministry of Peace would put the pursuit of peace at the heart of Government. In future, Prime Ministers and Cabinets would be required demonstrably to consult the Ministry of Peace in the event of an impending military conflict, and Ministers across Government would draw on its expertise in the negotiation of international treaties and agreements.
The Bill envisages the establishment of a commission for peace to mobilise the depth of commitment in society, consisting of independent experts in the field drawn together to provide the Ministry of Peace with support and advice on best practice, monitor its activities and report to Parliament on its performance. A peace audit commission could thus engage members of our community in this venture for peace.
If nothing else, the war in Iraq demonstrated starkly the need for a new way to resolve the world's conflicts. Yes, the idea of a Ministry of Peace is idealistic, but it is not unrealistic. The concept is catching the wind of political interest in the United States Congress—a similar Bill has been promoted by Dennis Kucinich—and in the peace movement across China and Japan, and elsewhere. A debate is taking place among the people as well as in Governments.
Given cross-party support for the Bill, we could begin the process of transforming the modern world's first imperial power into the world's leading peace power. Too much depends on our success for us to fail. I urge Members to support the Bill.
Question put and agreed to.
Bill ordered to be brought in by John McDonnell, Mr. Elfyn Llwyd, Mr. Alex Salmond, Mr. John Randall, Dr. Rudi Vis, Alan Simpson, Jeremy Corbyn, Mrs. Alice Mahon and Mr. Kelvin Hopkins.

MINISTRY OF PEACE
John McDonnell accordingly presented a Bill to establish a Ministry of Peace with the function of promoting conflict resolution and the avoidance of military conflict: And the same was read the First time; and ordered to be read a Second time on Friday 21 November, and to be printed [Bill 163].
Orders of the Day
  Crime (International Co-operation) Bill [Lords]
    New Clause 1

      DRIVER LICENSING INFORMATION
      'Information held in any form—by the Secretary of State under Part 3 of the Road Traffic Act 1988 (c. 52), or (b) by the Department of the Environment under Part 2 of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I.1)), (licensing of drivers of vehicles) may be disclosed for the purposes of the Schengen information systems (within the meaning of section 81)';— [Caroline Flint.]
      Brought up, and read the First time.
      3.45 pm
      The Parliamentary Under-Secretary of State for the Home Department (Caroline Flint): I beg to move, That the clause be read a Second time.
      Mr. Speaker: With this it will be convenient to consider amendment No. 33, in clause 57, page 38, line 25, at end insert
      'or in any other State in which the offender has temporarily resided'.
      Caroline Flint: As we embark on today's business, I hope that we have all recovered from the party conference season. The insertion of the new clause after clause 81 will provide the necessary statutory authority for the Driver and Vehicle Licensing Agency and Driver and Vehicle Licensing Northern Ireland to enter data required for Schengen purposes on the UK's national section of the Schengen information system. That will ensure that the UK meets the requirements of its Schengen application in relation to the SIS.
      The statutory gateway already contained in section 71 of the Criminal Justice and Court Services Act 2000, allowing disclosure of information held by the Secretary of State for the purposes of part 3 of the Road Traffic Act 1988, is not sufficient for the UK's Schengen obligations. It allows information to be disclosed for use by constables only and, in limited circumstances, for further disclosure by them. Furthermore, section 71 does not extend to driving licences issued in Northern Ireland.
      Mrs. Gwyneth Dunwoody: I would be very interested to know when the decision was taken to include such greatly expanded information, which carries with it considerable implications. Anyone holding a licence for any vehicle in the United Kingdom now runs the very real risk of that information being transmitted to a foreign Government without their permission.
      Caroline Flint: It is necessary to legislate through insertion of the new clause because the sharing of data on driving licences for the purpose of the SIS is not within the scope of existing legislation. There is no power to disclose information that has been collected under statute—in this case, the 1988 Act—for purposes not covered by statute. Section 71 of the 2000 Act does
      26
      allow for the disclosure of information held by the Secretary of State for the purpose of part 3 of the 1988 Act, but that is not sufficient for Schengen. That is for use by constables only, with limited provision for further disclosure by constables. Our Schengen obligations are wider than that, encompassing various enforcement agencies in the UK and other states. Furthermore, section 71 does not cover driving licences issued in Northern Ireland. We have therefore drafted a new clause that provides the necessary statutory power to disclose information. Such disclosure is expressly limited to the purposes of the SIS.
      Mr. John Bercow: rose—
      Mrs. Dunwoody rose—
      Caroline Flint: If I may, I should like to finish.
      The SIS is defined in clause 81 of the Bill, and these additional arrangements will be subject to the same data protection arrangements as apply to the national section of the SIS in general. The arrangements will allow the office of the Information Commissioner to inspect all data contained on the UK national section of the SIS to ensure that the processing of personal data is in compliance with processing requirements under the existing legislation. It is the right of any individual about whom incorrect information is placed on the SIS to apply for it to be removed or corrected. It has always been the case that such information would be on the SIS; it was realised only at a late stage that existing statutory provisions were not adequate.
      Mrs. Dunwoody: My hon. Friend is confirming precisely what I said: that this power did not exist and needs to be written into new legislation. At what point was the House of Commons made aware that these commitments under Schengen had been fully accepted? As I understood it, we had not fully accepted them. Is my hon. Friend saying that we now accept all the implications of Schengen? If so, this is a matter of considerable interest. At what point did we decide to ask the House whether this information should be passed on?
      Caroline Flint: As I said, it was realised at a late stage that existing statutory provision was not adequate. [Interruption.]
      Mr. Speaker: Order.
      Caroline Flint: Thank you, Mr. Speaker. It is for that reason that we are introducing the new clause so that we can make good progress in realising the UK's connection to the SIS, which is envisaged for November 2004. Before we receive live data, the UK's implementing of the SIS will undergo a rigorous evaluation, conducted by partner member states. To fulfil the requirements of the evaluation process, we must demonstrate our ability to place the required data on the SIS. It has been clear since the then Home Secretary made a statement in March 1999 that we would opt into those parts of the Schengen information

      27
      system. By introducing the new clause, we hope to meet our obligations in that regard, and I can add nothing further to that picture.
      Mr. Bercow: Will the Minister give way?
      Caroline Flint: No, I have answered the question—[Interruption.]
      Mr. Bercow: I thank the hon. Lady for giving way with her customary courtesy, albeit on this occasion after a little pressure. Further to the interventions of the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), I recognise that the Under-Secretary has a departmental brief to which she wishes to adhere, and I intend no discourtesy, but does she understand that if our profession is ever again to regain public respect, we need public understanding? I appeal to her in the context of new clause 1 and amendment No. 33 to make her speech self-contained and intelligible to members of the public who will be interested to know about the impact on them of what she is describing.
      Caroline Flint: I did try to explain those particular circumstances. As I said, it has always been the case that this sort of information would be on the Schengen information system. As I also said, we realised at a late stage that existing statutory provision did not apply to those circumstances. The aim is to make use of information from the Driver and Vehicle Licensing Agency and from Driver and Vehicle Licensing Northern Ireland to enter data required for Schengen purposes. I have already fully explained that.
      Let me now deal with amendment No. 33, which relates to part 3 of the Bill on driving disqualification. Clause 57(2) reflects the requirement in the EU convention on driving disqualifications to take account, when calculating the period to be enforced in the UK, of any period of disqualification already served in the state of the offence. That is to ensure that the total period of disqualification served does not exceed that originally imposed in the state of the offence.
      The amendment would require that any period of disqualification served in another member state in which an offender temporarily resided be also taken into account in determining the period of disqualification to be enforced in the UK. I hope that I have explained that clearly.
      The amendment is flawed because a disqualification of a non-resident driver by one country does not automatically have effect in another country. Under the EU convention, only the offender's normal state of residence will be notified of a foreign disqualification and be required to enforce it. For the purposes of the convention, the state of residence is the place where the driver is resident for at least 185 days in each calendar year. If an offender is not normally resident in the UK, the authorities here will not be informed of the disqualification. The only consideration, therefore, in determining the unexpired period of a foreign disqualification will be how much of the disqualification the driver served in the state that convicted him.
      A driver who is disqualified abroad may lawfully continue driving anywhere outside the state that convicted him until his own state of residence has
      28
      enforced the disqualification under the EU convention. So the opportunity to serve a period of disqualification as a temporary resident in another state will not arise. Once he has been disqualified by his state of residence, he loses his entitlement to drive anywhere because his licence has been removed. After disqualification takes effect in the UK, the driver will remain disqualified in the UK until the end of the period of disqualification—regardless of whether he resides temporarily in another member state during that period. To that end, I urge support for new clause 1 and oppose the amendment.
      Mr. James Paice: First, in response to her welcome to the Opposition, I welcome the hon. Lady back after her party conference. I did indeed enjoy our conference, which was not at all like the one that I read about in the newspapers. Obviously there were, two conferences going on in Blackpool last week.
      The new clause clearly undermines, as did the interventions of the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), the whole thrust of the legislation, which is to reverse into Schengen without proper parliamentary scrutiny of the issues. That was exposed on Second Reading, and the new clause adds a further small element to the Bill. It is not that important on its own, but the overall issue is of great importance. We are adopting a large chunk of the Schengen acquis without the House having proper opportunity to debate it.
      The Minister described the intent behind amendment No. 33 clearly, and I have some sympathy for her because the muddle on the issue was not of her making. It was the responsibility of the Under-Secretary of State for Transport, the hon. Member for Plymouth, Devonport (Mr. Jamieson), who dealt with the issue in Committee. Instead of clarifying the issue, he confused it even more. He kindly wrote to me and other members of the Committee at the end of June to try to clarify the issue, but the letter served only to complicate it further. The Minister has made a better job today, despite it not being her departmental responsibility, than did the Minister in Committee.
      Mr. Bercow: What was his effort like, then?
      Mr. Paice: I am about to tell my hon. Friend. In Committee, the Minister said:
      "I am advised that disqualification cannot be served in the other country—it can be served only in the state of the offence."
      A few minutes later, he said:
      "I am advised that if a UK resident … was disqualified from driving in France, he would be disqualified everywhere because he would have no UK licence."—[Official Report, Standing Committee A, 17 June 2003; c. 231–21
      In the letter that the Minister sent to members of the Committee, he said:
      "The driver loses his entitlement to drive elsewhere as a result of being disqualified in his State of residence"—
      that is clear—
      "and his licence being taken away during his period of disqualification—but he is not disqualified as such in all other Member States."
      It seems obtuse to make a distinction between not being entitled to drive and being disqualified.
      Mrs. Dunwoody: That is disingenuous. If someone is disqualified in this country, it is well known that they can visit another European state, buy the requisite papers and reappear on British roads with—for example—an Italian licence.
      Mr. Paice: I am grateful to the hon. Lady for her intervention. I actually tried to be helpful to her earlier. Inadvertently, she has been helpful to me, because I seek clarification of the confusion.
      If we are to adhere to a mutual recognition of disqualification to drive across all the signatory states, an issue of common justice arises. It would receive huge public support if someone who had been disqualified for causing death by dangerous driving in one part of Europe were not allowed to return to this country and drive. That is a valid intellectual argument. If that is to happen, that is what should appear in the legislation, but it does not. If I understood the Minister correctly today, she said that if a British person was disqualified from driving in Germany—I use examples of countries for simplicity's sake and not with any malice aforethought—and then moved to France, the disqualification would not apply because France was not their normal place of residence. However, if that person moved back to Britain—perhaps years later—they would have to serve out that disqualification. The person could be disqualified in Germany for six months, live in Germany for three months, thus serving out three months of the disqualification, then live in France for five years, and then finally move back to Britain—their normal place of residence as a British citizen—and serve out another three months of disqualification. There does not seem to be any justice in that.
      4 pm
      I gave the example of a disqualified driver moving to France. Disqualification should continue after such a move. Amendment No. 33 contains the phrase "temporarily resided" for that reason. The Minister gave her definition of residence, but she ignored the fact that some disqualifications can last a long time. Some people may choose to move to a country and become normally resident there before they return to the UK and become normally resident here. I think that the Minister said that the required period was 170 days—
      Caroline Flint: The period is 185 days.
      Mr. Paice: I am grateful to the Minister, but that is still only six months. A person disqualified for three or four years who has stayed only a few weeks in the country of disqualification could fulfil the 185-day requirement in two or three other countries. I do not want to exaggerate, but the Minister seems to be saying that that would not count.
      We need to establish mutual recognition of disqualification among all states. The present confusion has not been helped by the contributions of the hon. Member for Plymouth, Devonport. I am sorry that he is not here to try to explain the matter. However, I hope that the Minister understands my point, which is that a disqualified person could cite one of several countries as his country of normal residence during the disqualified period. The amendment would enable the disqualification
      30
      to run consecutively in whichever country the disqualified person moved to after the offence, and ensure that different approaches are not adopted in different parts of Europe or the signatory states. Otherwise, no one—not the disqualified person, nor any victims—would know the situation with regard to the disqualified person's licence.
      Amendment No. 33 is not the lead amendment in this group, and that means that I will not be able to respond to the Minister's reply other than by way of intervention. However, I reserve the right to divide the House on the matter if I am not satisfied with the Minister's response.
      Mr. David Heath: The hon. Member for South-East Cambridgeshire (Mr. Paice) was right to say that the Under-Secretary of State for Transport, the hon. Member for Plymouth, Devonport (Mr. Jamieson), is not on the Treasury Bench this afternoon, and also to say that that Minister's presence would not have elucidated matters much this afternoon, given his performance in Committee. In parenthesis, it is a pity too that no Scottish Office Minister is here this afternoon, given that we shall be dealing with matters of Scots law later.
      I have no objection to what is proposed in the new clause, and that is why I have tabled no amendment to it. However, it is a little extraordinary that one of the prime purposes of the Bill should be covered by a provision that has been introduced so late. Secondly, I am worried that the new clause is effectively a free-standing provision in this Bill, and that there is no move to amend legislation covering road traffic, freedom of information or data protection. The degree of cross-reference is therefore limited. That structural problem in the statutes may come back to haunt us.
      Thirdly, I am worried that the information referred to in the new clause is not limited. The new clause covers any information held under the Road Traffic Act 1988, irrespective of what that information is. It is possible that that Act could be amended at some date in the future to include spurious information that could not properly be disclosed for the purposes of the Schengen information system.
      Dr. Julian Lewis: Is it the hon. Gentleman's understanding of the new clause that only bits of driver information shall be disclosed as and when required, or that an entire database shall be fed into the system, to be dipped into as and when the Governments of other countries in Europe decide that it would be convenient for them to do so?
      Mr. Heath: I am grateful to the hon. Gentleman for that intervention. The latter must clearly be the case. One of the concerns about the Schengen information system is that it grows exponentially; the database is large, with a huge number of points of access, in terms of both input and output, thereby allowing the grave danger that incorrect information may be held, with the individual citizen having only limited access to proper recourse.
      Dr. Lewis: I am new to this legislation, so I am grateful to the hon. Gentleman for that elucidation. The new clause thus seems to be saying that all the details held about us at DVLA in connection with our driving licences will be available, on tap, to any Government who sign up to the system.
      Mr. Heath: That is my understanding, but the Minister will be able to confirm the point far better than me.
      Sir Robert Smith: My question should perhaps be for the Minister rather than my hon. Friend, but can he tell us whether, if someone feels that the wrong information is held on the Schengen database, there is any way that they can seek redress and clarify the information?
      Mr. Heath: If my hon. Friend looks at the Bill, he will see that there is—through the data protection commissioner.
      Caroline Flint: It is the right of any individual who has incorrect information about them placed on the SIS to apply for it to be removed or corrected.
      Mr. Heath: I thank the Minister for confirming my reply to my hon. Friend the Member for West Aberdeenshire and Kincardine (Sir Robert Smith).
      Can the hon. Lady help me with what may be merely a printing matter? The new clause is set out in slightly odd way. I believe that the words
      "(licensing of drivers of vehicles)"
      should be attached to the Road Traffic (Northern Ireland) Order 1981 rather than to the whole new clause. Can the Minister tell me whether that is the case? I assume that the rest of the provision refers to both (a) and (b), whereas the words in parenthesis apply only to (b) as, by definition, they are contained in the Road Traffic Act 1988.
      On amendment No. 33, the hon. Member for South-East Cambridgeshire and I tried desperately to get this point across in Committee. On re-reading my contribution to that debate, I think that it was even more confusing than the Minister's, so I shall not repeat what I said on that occasion. However, the hon. Member for South-East Cambridgeshire is on to a good point; surely, if we want disqualifications to be transportable across national borders within the EU, it makes sense that, wherever the individual against whom a disqualification applies is resident, the clock, in terms of natural justice, should still be ticking. It does not make sense for a person to move from one country to another and, at that point, for the term of disqualification to be put on hold—pending—until that person either returns to their country of origin or, curiously, moves to the UK, where the clock would start ticking again. That cannot be the Government's intention, so someone, somewhere, is being obtuse. As many people seem to agree with the hon. Member for South-East Cambridgeshire, while few people agree with the Minister, we may be right.
      Our debates have displayed, almost throughout, the desire of the Opposition parties to improve the Bill and to make it work as the Government intend. I hope that
      32
      we shall not engage in a dialogue of the deaf and that the Minister will accept the fact that we are trying to improve her Bill and to make it workable both practically and in terms of natural justice for those who are affected by it. Simply repeating that the Government disagree is not sufficient to answer the argument. The hon. Member for South-East Cambridgeshire has a good point and it would as well if the Government listened to it.
      Caroline Flint: To emphasise a point that I made earlier in relation to new clause 1, I wish to say that there have been a series of House of Lords inquiries into the UK's participation in the Schengen arrangements, and the decision to participate was subject to parliamentary scrutiny. The Bill has provided a further chance to discuss the UK's participation in the Schengen arrangements. So there has been full discussion of the Bill's key provisions, including issues such as cross-border surveillance, which we will come to again later.
      I have been asked about those who are disqualified in the UK from driving who are then resident in another country. Let us say, for example, that they have British driving licences and that they are disqualified, but that they are living in France, the parameter for which is that they do so for at least 185 days in each calendar year. I understand that, in those circumstances, the clock would be ticking and the disqualification would obviously apply when they are living in France as well.
      We are trying to ensure that such things are understood not only where licences are issued and therefore where disqualification comes about, but where, given the days we live in, people reside in another EU country. If someone were temporarily moving around the EU, the disqualification would not apply in the same respect. If someone's UK driving licence is revoked, that will also apply in the country where they are resident. That should prevent them from driving anywhere. Certain procedures have to be gone through to get a licence in another country, and I imagine that that would be quite difficult to achieve. The disqualification will continue to run in the UK if the offender leaves the country to live in another member state. For these purposes, the offender must be resident abroad for at least 185 days in each calendar year.
      Mr. Paice: I appreciate that the Minister is trying to clarify these provisions, but let me pose an example. I appreciate that, if we go too far into examples, we get to specifics, so I shall stick to the example I used in my earlier remarks. Let us suppose that a British citizen commits an offence in Germany and is disqualified from driving by a German court, that he or she then moves to France to live for 180 days—six months—and then returns to Britain. The Minister seems to suggest that that person can drive in France, but that the disqualification, which started in Germany, will be in a state of hiatus until the offender returns to the UK, when the disqualification will be completed. Is my understanding right? I should not refer to this, but I am getting indications that I am right. If that is the case, is it not unjust that that person can continue to drive in France—it could be any other European country—with a hiatus in the period of disqualification, which then resumes when he or she returns to the UK?
      Caroline Flint: If people are disqualified from driving and they have a UK licence, it will be revoked. Yes,

      33
      someone can continue to drive before a foreign disqualification is recognised in the UK, as the disqualification only takes effect 21 days after the DVLA sends its notice of disqualification to the driver concerned. If UK citizens are disqualified in the UK and they move to France and then back to the UK, they are still disqualified in those circumstances.
      Mr. Paice: With respect to the Minister, I am talking not about someone who has been disqualified in this country—the law seems clear about that—but about those who are disqualified for having committed an offence elsewhere. What will happen if they live elsewhere before returning to this country?
      Caroline Flint: My understanding is that if UK citizens are disqualified for offences in Germany, that is notified to the DVLA in this country and their licences are revoked. They are therefore disqualified from using those UK licences in France, as well as if they return to the UK after all, they were UK licences to start with.
      4.15 pm
      Information in relation to drivers' licences is only provided, as for the Schengen convention, for limited purposes. It will only be the information that is on the driving licence. As I said previously, protection exists both in terms of our data commissioner and for individuals if they want to correct information that is there.
      Dr. Julian Lewis: Will the Minister give way?
      Caroline Flint: If I may, I shall continue for a moment.
      In relation to the point raised about Northern Ireland legislation, separate Northern Ireland legislation exists for holding driving licences, and it must therefore be covered in this new clause.
      Mr. Heath: I was not querying for one moment the inclusion of Northern Ireland. I was simply dealing with the printed word in front of us, and given that this is the Report stage, it is the last opportunity to correct it if it is typographically challenged. Will the Minister confirm my view that the words
      "(licensing of drivers of vehicles)"
      should immediately follow the previous reference in parentheses, "(S.I. 1981/154 (N.I.1))", without a comma, and that the comma should come after
      "licensing of drivers of vehicles)"
      to bring it into order? If I am wrong on that, I have misunderstood the construction of the clause. I think that that is logical, however, and given that it is important that we get it right, it would be good to change it. I do not know what we do about changing it other than doing so by manuscript amendment or simply accepting that it is a typographical error.
      Caroline Flint: My understanding is that the new clause is sufficient as it stands, and we do not see any reason to change it for the purposes of our debate this afternoon.
      To return to the scenario in which the Germans regard an offender as normally resident in the UK, they will notify the UK authorities, who will enforce the
      34
      disqualification. If the offender is normally resident in France, the French, not the UK, will enforce the disqualification. If a UK driver is disqualified in Germany and the driver stops off in France, he is not disqualified until the UK legislation bites. The convention does not allow Germany to notify France or France to disqualify the driver. What we are trying to introduce is a system that is understood both in the member state where a disqualification occurs and which also applies to countries where the individual is resident. I urge the House to accept the new clause and to resist amendment No. 33 for the reasons outlined.
      Question put and agreed to.
      Clause read a Second time, and added to the Bill.

    Clause 2

      SERVICE OF OVERSEAS PROCESS: SUPPLEMENTARY
      Mr. Heath: I beg to move amendment No. 1, in page 2, line 25, after 'privileges', insert 'as a party or'.
      Mr. Speaker: With this it will be convenient to take the following amendments: No. 35, in page 2, line 25, after 'a', insert
      'party to proceedings or as a'.
      No. 2, in page 3, line 11 [Clause 3], at end insert—
      '() must be accompanied by any translation provided under subsection 3'.
      No. 3, in page 3, line 23 [Clause 4], leave out from 'Kingdom' to end of line 24 and insert
      'by any method which is in accordance with Rules of Court'.
      No. 4, in page 4, line 19 [Clause 5], at end insert—
      '() must be accompanied by any translation provided under subsection 4'.
      Mr. Heath: This group deals with three separate concepts, so I shall deal with each one separately.
      The first relates to amendment No. 1. The more astute Member will notice that amendment No. 35 is extremely similar in effect, but my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael)—who, as we know, is learned in both Scots and Udal law—has suggested a variation that is in accord with the advice of the Law Society of Scotland. I am indebted to him for that, as it enables us to put two variations to the Minister. I hope that we will have more success than we had on previous occasions when we have discussed the matter.
      The crux of the matter is that it is important to insert in this section of the Bill the concept of a party to proceedings as well as a witness. If I may remind the House, this provision deals with the service of overseas process in this country and the point of the clause is to ensure that the person on whom overseas notice is served is aware of the consequences of that.
      Our difficulty is that the Government do not seem to recognise that there can be any category of a party to proceedings who is not a witness within the proceedings. That is self-evidently not the case. For example, it is clear that under this country's law and that of most countries, defendants cannot be compelled to give evidence as witnesses that would indicate their culpability. It is entirely possible that a defendant could

      35
      be a party to a case but not a witness in that case. The same situation applies if spouses are accused of offences that also apply to their partners because the concept of spousal immunity is recognised by most legal systems in the relevant area.
      The problem is that there are clearly specific privileges that would accrue to defendants or spouses as defendants in such circumstances so that they would not be witnesses. It simply could not be the case that the privileges of a witness could be considered to include the privileges of not being a witness. That is nonsense in the English language, let alone anything else. We disagree not with the Government's intent but with the Bill's drafting. Clause 2 should include a reference to the privileges of a party to proceedings.
      Ministers have previously replied that such a provision is not necessary because anyone who is a party to proceedings is, by definition, a witness, but that is clearly not the case. Their second reply has been that clause 2(1) already deals with the situation, but it does not, because it simply identifies the area under discussion but does not apply to the process or the notice that should accompany that and the extent to which that covers the case.
      I ask the Minister to think again even at this late stage because I want to get the Bill right, which it is not at the moment. The defence that the provision was lifted from previous legislation and that it has never caused any problems is no defence at all. The assertion that it has not caused any problems should be followed by the word "yet", because as sure as eggs is eggs, someone will eventually find that something has been done incorrectly because of a lacuna in the law. That will provide a great deal of employment for lawyers but will be of no advantage to any person who will be affected by the Bill.
      The second and third concepts addressed by the amendments relate not to the service of overseas process—the heading of the group of amendments—but to the service of UK process overseas, which is the reciprocal, yet equally important, case. Amendments Nos. 2 and 4 relate to the translation that would be made available for a person who may be reasonably assumed not to speak English. There is no question about the Government's intent, but the Bill provides that whereas the court will be given a copy of the process in the relevant language, the person on whom the process is served will not. In a sensible world and in normal circumstances, the court would of course send the document to the person on whom the process had been served, but the Bill does not say that that must happen. It would be better if such a provision were included, which is all the amendments would do. Curiously enough, the provision applies elsewhere in the Bill. It is absurd that clause 3 states that a translation should be provided for the court yet includes no requirement for the translation to be provided to the one person involved in proceedings who does not understand the language in which the document was originally produced—English.
      Amendment No. 3 deals with the process of serving a UK notice overseas when that cannot be done by post. Clause 4(1) simply says that that should be
      "in accordance with arrangements made by the Secretary of State."
      36
      As I said in Committee, that dangerously imprecise term allows the Secretary of State to make up almost anything that he or she considers a sensible process. The British legal system has clear rules on that. Rules of court maintain a serving process that is fair to all. It is axiomatic that there should equally be rules of court that allow for service overseas.
      The Minister's objection in Committee was that such a provision could not be drafted to provide the flexibility for all the circumstances in which difficulties might be encountered in the serving process. I accept that we might make the terms more imprecise than the rules of court as they apply in the UK, by both definition and common consent, but the fact that the provision is not to be incorporated other than in guidance gives me cause for concern. Although the Minister has assured us that that will be forthcoming, it is not required by statute.
      The Bill is not satisfactory. Rules of court should apply in an overseas context as they would in a domestic serving process. I hope that the Minister has a good reason why that should not be the case.
      Mr. Paice: I endorse the remarks of the hon. Member for Somerton and Frome (Mr. Heath). I hope the Minister realises that all Opposition parties are intent on making the Bill understandable, as my hon. Friend the Member for Buckingham (Mr. Bercow) said, by those whom it affects, and comprehensive so that it addresses problems that may arise even if the Government think that they will not. The amendments, especially those on translation, are designed to do just that.
      Those of us who have sat on both sides of the House have probably argued at one time or another both that it is necessary and that it is unnecessary to include something in a Bill. It is better to get legislation right first time rather than revisiting or correcting it later. I concur that the amendments are designed to get it right first time. They would not weaken the Bill or make it mean something else. They are simply designed to ensure that it is clearer and covers eventualities that may arise. I hope that the Minister will respond in a similar constructive vein and not simply read out the top line of her brief, which I have no doubt says, "Resist these amendments".
      Caroline Flint: We have considered amendment No. 1 carefully and at length. We remain of the view that as a matter of law it is unnecessary. However, in the light of the concern about the issue, and because the amendment does not do any harm, we are prepared to accept it as drafted. We are satisfied that the amendment adds nothing to the clause as it is currently drafted and, indeed, will not result in a different position from that which currently exists under the Criminal Justice (International Co-operation) Act 1990. I am happy to go on the record stating that to be our considered view.
      When a defendant takes the stand, he does so as a witness. That is the crucial point to keep in mind. There is no reason to read the word "witness" in clause 2(3)(c) as excluding the defendant. The meaning given to "witness" in the "Concise Oxford English Dictionary" is a
      "person giving sworn testimony in a law court or for legal purposes".
      The word may be used in statutory provisions as including defendants. For example, section 51 of the Criminal Justice and Public Order Act 1994 governs

      37
      intimidation of witnesses. The provision, of course, also covers the intimidation of defendants in respect of their evidence.
      I see no reason why clause 2(3)(c) is any different. There is no reason why it should be read as not requiring a notice to be given to a defendant. The notice must be given to persons both where they appear as a party to the proceedings and where they attend as a witness. That is because subsection (1) provides that subsections (2) and (3) apply to both parties and witnesses. Therefore, a notice will always be given to a party to the proceedings, as well as to a witness. However, we need refer to a witness in subsection (3) only because—I stress this point again—when a defendant takes the stand, he does so as a witness in the proceedings.
      4.30 pm
      Two types of privilege afforded to defendants were given as examples in Grand Committee by noble Lords wishing the amendment to be carried: the privilege against self-incrimination and spousal immunity. However, both these privileges are afforded to the party as a witness. It is true that a party could not be compelled to give evidence, whereas a witness could, subject to the right not to incriminate himself. But that is a privilege afforded to the party as a witness. Similarly, for example, under section 80(4) of the Police and Criminal Evidence Act 1984, a spouse who is also charged in proceedings is not compellable. Again, that is a privilege afforded to the party as a witness. We have identified no rights and privileges that would be accorded to a party in the proceedings, in addition to those that he would already be accorded as a witness.
      Clause 2 is different from the 1990 Act only in that it refers to a party to the proceedings, as opposed to a defendant, but that is to cover different Scottish nomenclature of persons appearing before a Scottish court and the fact that some of the proceedings in question are not purely criminal. There is no difference of substance between the 1990 Act and clause 2(3)(c) and, for the reasons that I have given, we are happy to accept the amendment as drafted.
      I assume that amendment No. 35 will not be moved as I have accepted amendment No. 1 and see no merit in the longer variation. We strongly prefer amendment No. 1 and see no reason for introducing the reference to proceedings, as amendment No. 35 does. We do not see that this provides any further clarification.
      We do not consider amendments Nos. 2 and 4 to be helpful or necessary. I have read the Hansard report of discussions on the matter with my predecessor. Subsection (3) of clause 3 refers to all process. Translations must be provided for any process where the person at whose request it is issued believes that the intended recipient does not understand English. All that subsection (4) does is to impose additional requirements where the process relates to a party or a witness. Subsection (4) creates additional obligations, but does not limit the overriding obligation for translation of all types of process to be provided in subsection (3). It would not be necessary to insert a reference to forwarding translations in subsection (4), as that is already provided for in subsection (3).
      Where a translation of the process is required, it is wholly reasonable to expect the court to forward it. That goes for translations relating to parties or witnesses, as
      38
      well as other types of process, such as court judgments. The act of sending the process from the court is not set out in the Bill, which is limited to setting out the requirements for issuing process, the relevant requirement being that a translation is provided. The sending procedure is currently covered by rules of court, which state that where a summons is issued or order made for service outside the UK, it shall be sent by the justice's clerk to the Secretary of State. Updated rules will reflect the options to send it either to the Secretary of State or direct to the recipient, but will otherwise reflect the existing ones. We believe, therefore, that where it is required, translation will be forthcoming and that further amendment is not necessary.
      Mr. Heath: Clearly, there is provision for a translation to be made and for the notice to be transmitted to the person. I understand that. Is the Minister saying that the copy, translated into an appropriate language, will form part of the process? If so, she is right—my amendment becomes unnecessary. It would be helpful if she would confirm that.
      Caroline Flint: I understand that to be the case. I hope that reassures the hon. Gentleman.
      Mr. Heath: It does.
      Caroline Flint: Finally, let me deal with amendment No. 3. As I explained in my letter of 16 July to members of the Committee, we cannot accept the amendment. In the first instance, we do not consider that rules of court are an appropriate method for setting out what the Secretary of State will do. As hon. Members are aware from our discussions in Committee, under the new arrangements for the service of process required by Schengen and MLAC—the mutual legal assistance convention—it will become routine for the majority of procedural documents to be sent directly from the issuing authority in this country, without any involvement of the Secretary of State. When he is involved, however, existing and long-established practices will be followed. Service of process via the Secretary of State is not new: it existed under the 1990 Act and has worked effectively. That was discussed in Committee. The Bill is not designed fundamentally to change our mutual legal assistance system it—builds on existing arrangements, amending them where appropriate to accommodate the new requirements of, for example, Schengen. That is a clear example of an area of mutual legal assistance in which there is no merit in creating additional bureaucracy where the established system has worked very effectively.
      We do not agree that the approach that we have chosen risks successful challenges in subsequent domestic proceedings. Rules of court made under the 1990 Act already set out what constitutes proof of service of summons outside the United Kingdom. They provide that
      "the service on any person of a summons issued under section 2(1) of the Act may be proved in any legal proceedings by a certificate given by or on behalf of the Secretary of State."
      Those rules of court will be updated to reflect the new legislation.
      Authorities issuing process will request personal service, via the overseas central authority, if proof that the recipient has received the process is required. In the

      39
      case of documents bound for recipients in EU and Schengen member states, the issuing authority may itself send the documents to the overseas central authority requesting personal service, bypassing the Secretary of State. Rules governing his activity would therefore not be helpful.
      Service of domestic court process on people residing in the UK is done not by the Secretary of State, but by the court. Service of summonses in the purely domestic context is very different from service on people residing overseas, most importantly because a summons served on someone present in the UK obliges them to attend court. By contrast, a summons served on someone overseas does not impose any obligations to attend, nor does failure to comply result in any sanctions being taken.
      For those reasons, we accept amendment No. 1 and ask that amendments Nos. 2, 3 and 4 be rejected.
      Mr. Heath: I am extremely grateful to the hon. Lady for her response to this group of amendments. We are making real progress in three respects. First, the hon. Lady accepted my amendment No. 1 and implicitly rejected that of my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), which is a little long-winded. Secondly, she accepted the principle of what I was trying to achieve in amendments Nos. 2 and 4. I am most grateful to her for confirming that the translation forms part of the process at the point at which it is provided to the court. I was trying to ensure that it did not become a separate document that was not necessarily transmitted to the intended recipient, which would have made nonsense of the whole provision. Thirdly, in relation to amendment No. 3, the hon. Lady indicated that there would, as I had hoped, be a consequent amendment to the rules of court to deal with the provisions of the Bill, so my amendment becomes unnecessary.
      I consider this to be one of the finest victories that we have achieved in the course of these proceedings and this group of amendments to be one of the best that we will debate today. I am happy to allow amendment No. 1 to be put to the vote and certainly do not intend to press any of the others.
      Amendment agreed to.

    Clause 7

      REQUESTS FOR ASSISTANCE IN OBTAINING EVIDENCE ABROAD
      Mr. Alistair Carmichael: I beg to move amendment No. 37, in page 5, line 43 [Clause 7], at end insert—
      '(8) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.
      Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following amendments: No. 38, in page 13, line 33 [Clause 22], at end insert,
      "other than any item subject to legal professional privilege."
      No. 39, in page 15, line 7 [Clause 26], at end insert—
      40
      '() A court in Scotland may not issue a warrant under section 18 or 22 in respect of any evidence unless the court has reasonable grounds for believing that it does not consist of or include items subject to legal privilege.'
      No. 40, in page 22, line 21 [Clause 37], at end insert—
      '(9) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.
      No. 41, in page 23, line 38 [Clause 40], at end insert—
      '(8) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.
      No. 42, in page 25, line 43 [Clause 43], at end insert—
      '(8) Nothing in this section shall permit the disclosure of any item subject to legal professional privilege.'.
      No. 43, in page 26, line 21, [Clause 44], at end insert—
      '(6) Nothing in this section shall permit the disclosure of any item subject to legal professional privilege.'.
      Mr. Carmichael: Now that we appear to be on a roll, I look forward to a similarly positive ministerial response. Like the amendments tabled by my hon. Friend the Member for Somerton and Frome (Mr. Heath), these amendments may or may not need to be in the Bill, but there is no harm in putting them there. I therefore commend the Minister for her logic on the previous group of amendments and encourage her to be consistent in her approach.
      I associate myself with my hon. Friend's earlier comments about the regrettable absence of Scotland Office Ministers. Some of the matters that we are considering have a significant impact on Scots law and it is unfortunate that no one from the Scotland Office is present.
      Annabelle Ewing: Is it not also a matter for regret that no Labour Back-Bench Member who represents a Scottish constituency is present?
      Mr. Carmichael: It is a matter for regret, but perhaps not of massive consequence. I am sure that the fact that Dover house is in a frenzy of activity, preparing for this evening's reception to honour the Scottish brewing industry, is unrelated to such absence. Having been party to proceedings in Committee and on the Floor of the House, I say in all candour that, given the choice between a brewery reception and today's proceedings, I understand the temptation of attending the former.
      The amendments in the group are perhaps not the most exciting that will be presented in the House. None the less, they are important because they relate to the lawyer-client relationship and the privilege that attaches to it. The importance of privilege in that context cannot be overestimated. It is fundamental to the working of the relationship that both parties are secure in the knowledge that the information that passes from one to the other cannot be disclosed to a third party, other than with the client's consent. If privilege is removed, all clients will have at the back of their minds the question, "Should I be telling my lawyer this?" Once that doubt appears, we are on a slippery slope. It is therefore important to place protection of lawyer-client privilege in the Bill.

      41
      Amendments Nos. 37, 40, 41, 42 and 43 are almost identical. They would all add an extra subsection to the various clauses. They state:
      "Nothing in this section shall permit the disclosure of items subject to legal professional privilege."
      The clauses are 37, which deals with letters of request for assistance in obtaining evidence from abroad; 40, which relates to account information; 43, which deals with information about a person's bank account, and 44, which covers monitoring banking transactions. It is easy to understand that privileged information could be held in all those circumstances.
      The purpose of the amendments is simply to incorporate in the Bill the express protection that the lawyer-client relationship should receive. The genesis of the amendments is the Law Society of Scotland, which raised its concerns with me and other hon. Members who represent Scottish constituencies. The Law Society of Scotland is not known for expressing vexatious concerns about important matters and I therefore hope that the Minister will take it on board that the amendments have that body's imprimatur.
      Amendment No. 38 would amend clause 22, which affects overseas freezing orders. It would place some limit on the extent of the evidence that may be seized and retained under clause 22(1)(b). Under the Bill, courts may issue a warrant that authorises a constable to
      "seize and retain any evidence".
      Again, a provision should be expressly included in the Bill that that which is subject to the lawyer-client privilege should not be capable of seizure under a warrant, or, indeed, that a warrant would not extend to such information.
      4.45 pm
      Amendment No. 39 to clause 26 proposes to insert Scotland into the list of countries to which the clause applies. This is to ensure that Scottish judges would not be able to issue warrants unless they believed that the material seized did not contain items that were subject to the legal professional privilege. Clause 26 currently provides that courts in England, Wales and Northern Ireland may not issue warrants for evidence
      "unless the court or justice has reasonable grounds for believing that it does not consist of or include items subject to legal privilege, excluded material or special procedure material."
      In Scotland, courts do not have excluded material or special procedure material, but they recognise material subject to legal professional privilege. It therefore seems eminently sensible that Scotland should be brought within the ambit of the clause. I look forward to hearing the Minister's comments on the amendments.
      Mr. Nick Hawkins: I support what the hon. Member for Orkney and Shetland (Mr. Carmichael) has just said. I also echo his tribute to the Law Society of Scotland, which has assisted him, me and other colleagues in our consideration of this Bill and other legislation. We are grateful for the work of its director, Michael Clancy, for whom we all share a great deal of respect.
      The hon. Gentleman was perhaps a little bold to say that he was on a roll after the hon. Member for Somerton and Frome (Mr. Heath) had claimed all the
      42
      credit for getting the Government to accept the previous amendments, and been rather churlish about his own amendments.
      Mr. Carmichael: I am quite accustomed to my hon. Friend the Member for Somerton and Frome (Mr. Heath) claiming all the credit, and over the last two and a half years I have learned to ignore it.
      Mr. Hawkins: I am glad that there is such amity on the re-cast Liberal Democrat Front Bench.
      These are important matters, and the hon. Member for Orkney and Shetland will recall that we had a brief discussion about legal privilege in Committee on 10 June, when the issue came up under clause 10(3)(d). On that occasion, we were talking about domestic freezing orders. In the light of the Minister's helpful acceptance of what my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) and the hon. Member for Somerton and Frome said about consistency during our consideration of the previous group of amendments, I hope that she will say that the amendments in this group would do no harm to the Bill and would also add helpful safeguards and consistency.
      I would particularly like to support what the hon. Member for Orkney and Shetland has just said about overseas freezing orders. Given that the Government have already referred, in clause 10(3)(d), to items subject to legal privilege in the context of domestic freezing orders, we definitely ought to have the same safeguards for overseas freezing orders. If I may pick out just one of the hon. Gentleman's amendments, that amendment in particular should commend itself to the Government. I hope that, even if the Minister cannot accept the other amendments in the group, she will accept that one, because it is quite apparent that there should be consistency between domestic and overseas freezing orders. If a legal professional privilege safeguard is already included in clause 10 for domestic freezing orders, the same safeguard should be included for overseas freezing orders.
      We all share the views of the Law Society of Scotland—I am sure that the Law Society of England and Wales holds similar views—about the need for legal professional privilege to be written into the clauses for the protection of clients and the sanctity of the lawyer-client confidential relationship, and it would be of enormous help if the safeguards in all the hon. Gentleman's amendments were added to the Bill. I do not need to say more than that.
      Annabelle Ewing: I support the amendments tabled by the hon. Member for Orkney and Shetland (Mr. Carmichael). The Law Society of Scotland assisted him, and I offer my thanks for the briefing it gave me.
      The amendments deal with the key principle of Scots law on legal privilege. That important principle has been recognised by the European convention on human rights, yet, curiously, no account has been taken of it in the Bill. As a Scottish National party MP, I should add that that is not too surprising, because unfortunately the interests and integrity of Scots law is overridden by

      43
      Westminster time and again. In this period of consensuality, it is aided and abetted by the Labour-Liberal Democrat Scottish Executive in Edinburgh, who seem quite happy consistently to transfer the legislative competence of the Scottish Parliament to Westminster by way of Sewel motions.
      Mr. Carmichael: Can the hon. Lady tell me how many Sewel motions the Scottish National party has opposed?
      Annabelle Ewing: No, not off the top of my head, but I shall let the hon. Gentleman know. There have been some 60 Sewel motions, despite the fact that we were told by one of the architects of the Scotland Bill—the late Donald Dewar—that they would be used only in exceptional circumstances. However, I do not want to take up time on that subject: I mention it in passing for the record. I am happy to lend my party's support for the substance of the amendments. I urge the Minister to listen carefully to what has been said, and to accept the amendments.
      Caroline Flint: I am afraid that I shall disappoint hon. Members. We do not believe that the amendments are necessary, so I cannot accept them. I hope that I can allay the concerns of hon. Members about the protection of legally privileged material.
      There is extensive case law on legal professional privilege, which is a fundamental condition on which the administration of justice rests. In a recent House of Lords judgment, legal professional privilege was upheld as an attribute of the right to legal confidentiality that arises as a matter of substantive law. Legal advice cannot be obtained unless a client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to the client's prejudice. The judgment confirms that such a fundamental right cannot be overridden by general or ambiguous statutory words. An intention to override such rights must be expressly stated or appear by necessary implication. I suggest that nothing in the Bill explicitly or implicitly allows for the disclosure of items subject to legal professional privilege.
      References to legal professional privilege in clauses 7 and 22 are unnecessary for the reasons I have given. Nothing in those clauses would override that fundamental right.
      We consulted the Scottish Executive extensively on the drafting of the Bill, and on our response to the amendments to clause 26. We have good contacts at official level. I understand that the Law Society of Scotland has not approached the Scottish Executive about this matter, so we are confident that the Bill is correct.
      Mr. Carmichael: There is no reason for the Law Society of Scotland to approach the Scottish Executive on matters that are before this House. If approaches are to be made, they should be made to the Home Office or to the Scotland Office. An approach may have been made to the Scotland Office, but we cannot know that because no Scotland Office Minister is present. There is a need to include Scotland in the Bill, because failure to
      44
      do so will surely lead any judge seeking to construe this clause in Scotland to say that Parliament intended the provision to apply to England, Wales and Northern Ireland, but that if it had intended it to apply to Scotland it would have said so.
      Caroline Flint: I understand that the Scottish Law Society has not contacted anyone in my Department about these issues.
      Annabelle Ewing rose—
      Caroline Flint: If I may continue, I shall get to the crux of the issue and explain why I do not think that the amendment should be accepted.
      I was talking about the amendment to clause 26. Search warrant procedure in Scotland differs from that in the rest of the United Kingdom, and the search warrant procedures in the Police and Criminal Evidence Act 1984 do not extend to Scotland. The common law principle of legal client confidentiality would apply to the execution of warrants granted under the Bill.
      In certain circumstances it may be appropriate to have a definition in Scotland that equates to that used in the rest of the UK. That applies to some aspects of mutual legal assistance when requests for assistance are being sent to a variety of jurisdictions, as well as pertaining to international criminal investigations that may originate in both Scotland and England. Clause 10, which implements the new provisions relating to outgoing freezing orders, is one such instance. Clause 10(3)(d), which applies in Scotland, contains the term
      "items subject to legal privilege".
      The appropriate definition relating to Scotland is provided in clause 28(4).
      Let me stress again that the amendment is not required for Scotland, particularly in relation to clause 18, as it would be tautological. The clause gives the sheriff the same powers in relation to granting a warrant as he has in domestic cases under section 134 of the Criminal Procedure (Scotland) Act 1995. He is therefore already required to take into account any question of legal client confidentiality. The amendment would also put Scotland in a different position from the rest of the UK, where search warrant provisions do not include any provisions additional to or different from the provisions in PACE. A sheriff faced with a provision as amended would be entitled to believe that there was a different standard to be applied by him in consideration of the application. That is not the intention of the Bill.
      Amendments Nos. 40, 41, 42 and 43 all relate to chapter 4, which concerns banking information. Customer information cannot relate to legally privileged material—that is, communications between a professional legal adviser and a client in connection with the giving of legal advice, or in contemplation or for the purposes of litigation. Customer information orders can be made only against financial institutions that are defined by reference to the Proceeds of Crime Act 2002, and only in relation to customer information. We do not see how the subject matter of the orders could constitute legally privileged material. All four clauses covered by the amendments relate to orders made against banks

      45
      and other financial institutions to obtain specified information. Any reference to legal professional privilege would be irrelevant in such circumstances.
      For those reasons, I am afraid that we cannot accept any of the amendments.
      Mr. Carmichael: When I was a solicitor practising in the courts I often found myself engaging in arguments or debates about questions of legal or statutory construction. One would ask oneself, "How on earth did Parliament not see that coming? Why on earth did it leave such an ambiguity?" Following my election I know that Parliament usually did see it coming, but that officials told the Minister that action was not necessary, and that was the end of the matter.
      May I clarify the issue of the Law Society for Scotland? I am not sure what point the Minister was trying to make when she said that there had been no contact between the society and the Scottish Executive. We do not know about the Scotland Office, and the Minister tells us that she has heard nothing from her Department. I have here a briefing letter from Michael Clancy. I do not know whether the Minister is trying to suggest that the society does not support the amendments, but that is clearly not the case.
      Caroline Flint: I was not suggesting for a minute that the Law Society for Scotland had not lobbied the hon. Gentleman. I merely said that I understood that no such lobbying had taken place with the Scottish Executive or with officials from my Department dealing with the Bill.
      Mr. Carmichael: The fact remains that that is the society's view, and I hoped that it would be given rather more consideration than the Minister appears to have given it today.
      The Minister was doing so well, but she seems to have lost the track. She has made me not angry, but a little sad and disappointed in her. However, I beg to ask leave to withdraw the amendment.
      Amendment, by leave, withdrawn.

    Clause 27

      EXERCISE OF POWERS BY OTHERS
      Mr. Paice: I beg to move amendment No. 34, in page 15, line 35, leave out 'Treasury' and insert 'Secretary of State'.
      This is a small but important matter. One reason why we tabled this amendment for consideration was to give the Government the opportunity to come back to the House. The hon. Member for Coventry, North-East (Mr. Ainsworth), who dealt with this issue previously as a Minister—he has been elevated to deputy Chief Whip—accepted that the existing brief did not clarify matters as well as he would have liked. In fact, he said:
      "I am not certain to what degree I am prepared to resist"— [Official Report, Standing Committee A, 12 June 2003; c. 121.]
      5 pm
      I previously urged the current Minister not to read out a line about resisting, and she heeded my advice and immediately accepted the amendment tabled by the hon.
      46
      Member for Somerton and Frome (Mr. Heath), so I hope that she will follow the example of the hon. Member for Coventry, North-East, but perhaps her resistance will prove stronger than his did. As a Minister, he undertook to seek further advice from the Treasury about whether it wanted the Government to continue to resist the amendment, and my first request to the current Minister is to give us the benefit of that further advice.
      There is a serious point that I want to reiterate. We did not debate this issue in Committee through an amendment, so this is the first time we have been able to consider amending the Bill in this way. You have much more experience of such matters than me, Mr. Deputy Speaker, but it is surely very rare, if not completely unheard of, for a Bill to include powers for "the Treasury" to grant an order. It is customary for legislation to give powers to "the Secretary of State", because such terminology covers any senior Minister and Cabinet member who is responsible for a Department. Indeed, that procedure is commonplace. We never specify the Secretary of State for a particular Department, so as to allow for future changes; however, this Bill gives power to "the Treasury".
      I argue against doing that, and in two valid ways. First, if by "the Treasury" the Government mean the Chancellor of the Exchequer—or any other Treasury Minister—I see no reason why he should not be classified as a Secretary of State. Perhaps the Minister can say whether there is some legal reason why the Chancellor, despite being in charge of a Government Department, is not considered a Secretary of State. My understanding is that he is so considered—he is certainly paid the same as the other Secretaries of State—so I see no reason why the generic term cannot be used.
      We face another oddity. The Treasury itself is an institution, not a person. In legislation, we carefully give powers to Ministers and to Secretaries of State. They are people—members of the Government acting on the Government's behalf to introduce orders for our consideration. It seems odd to seek to give power to an institution, to a building. If the legislation has to be related to the Treasury—I will take a lot of convincing that that is so—why does it not specify the Chancellor of the Exchequer or, as I said in Committee, the Prime Minister, who is First Lord of the Treasury? I cannot understand why the Bill should refer to a building.
      Dr. Julian Lewis: Since entering this House in 1997, I have never seen a Bill that referred to a ministry rather than to a Secretary of State. The only explanation that I can think of for the failure to refer to a Secretary of State, or to the Chancellor of the Exchequer by his office, is the current state of relations between No. 10 Downing street and the Exchequer.
      Mr. Paice: I cannot deny that the thought crossed my mind, but I am perhaps too nice a person to make such an allegation. [Interruption.] I hear the Government Whip say, "Surely not", and he is probably right. I shall make amends later.
      I am making an important point. On the one hand, we are giving powers to an institution rather than specifying an individual Minister or using a generic term for a member of the Government. On the other hand, we

      47
      seem to be restricting the powers to a specific Department. When we debated the issue in a stand part debate in Committee, it was argued that the Treasury might wish to make legislation about Customs and Excise. I understand that, but that is to presume that, for ever and a day, Customs will be part of the Treasury. That may or may not be the case, but the same argument could be advanced for any other Government institution.
      The issue of whether an area of policy will always be associated with a specific Department is important and is precisely why we do not specify Secretaries of State for individual Departments. We always use the generic term "the Secretary of State", so I cannot understand why, in respect of making an order for the consideration of the House, the Government persist with using the term "the Treasury". The Minister was reasonable earlier when she accepted an amendment, and I hope that she will not resist this one.
      Mr. Heath: The amendments need not detain us long, but the hon. Member for South-East Cambridgeshire (Mr. Paice) has put his finger on what appears to be an anomaly within the Bill. I share his view that given that countless examples of legislation refer to "the Secretary of State" in the generic sense, it is curious that these provisions differ. We have both dealt on many occasions with legislation that encompasses the duties of Her Majesty's Customs and Excise within that generic term. We have considered statutory instruments covering both the police and Customs and Excise that happily specify the Secretary of State.
      The only Minister continually singled out and identified in legislation by title—chaos will be caused in abolishing the position—is the Lord Chancellor. He is not a generic Minister because of the present confused position regarding who is the head of the judiciary. I have no idea why the Treasury has been identified in the provisions. I hope that it does not encompass the Treasury in the sense of something other than the Ministers as such—not only the First Lord of the Treasury and the Chancellor of the Exchequer, but the Lords Commissioners, the Comptroller of Her Majesty's Household and the crew who sit at the far end of the Treasury Bench. If they are to determine the future of the legislation, we have very serious cause for concern.
      The Minister certainly owes us an explanation—her ministerial colleague was unable to provide it in Committee—that is rather more convincing than the simple argument that because there might be a reference to Her Majesty's Customs and Excise, the Treasury has to be specified by name. I express the hope that the enforcement functions of Customs and Excise will eventually not be the responsibility of the Treasury. I have held that view for some time and I would like to see that area of responsibility under an entirely different Department. That is an aside, but the hon. Lady must explain why the Bill is formulated as it is.
      Caroline Flint: My predecessor, my hon. Friend the Member for Coventry, North-East (Mr. Ainsworth), said in Committee:
      48
      "I shall seek further advice from the Treasury about whether it would want us to continue to resist the amendment." —[Official Report, Standing Committee A, 12 June 2003; c. 121.]
      I am afraid, however, that resist I must. We reflected further on the issue, which is connected with Customs and Excise. The power to make orders conferring powers on Customs is properly exercisable by the Treasury—the Department to which Her Majesty's Customs and Excise is answerable. We consulted Customs on that matter.
      Clause 27(1) creates a power to grant certain powers specifically to Customs and Excise. It is correct that the Treasury makes the order. Similar references in other legislation—for example, section 114 of the Police and Criminal Evidence Act 1984—give the Treasury the power to make provisions by order. There are other, more recent precedents for referring to the Treasury when conferring powers on customs officers, including section 7(7) of the Criminal Justice (International Cooperation) Act 1990, as well as more recent legislation on income tax and finance. Precedents exist, and there is little more to say. That is the protocol used.
      Mr. John Gummer (Suffolk, Coastal): Why cannot the Minister accept the amendment? I understand why she says that the provision is reasonable as it stands, but now that the matter has been raised it would not matter if the words were changed to read "Secretary of State". As long as the Treasury continues to have control over Customs and Excise, the Treasury can use the powers. The refusal to accept the amendment leads many of us to suspect that there is something behind it. Why will the Government not give way on this issue when it does not seem to matter very much? Is there something behind it?
      Caroline Flint: No, there is nothing behind it. The issue is straightforward. The phrase "the Treasury" has been used in numerous other pieces of legislation. There is nothing to be gained by muddying the waters and changing the legislation today, and for that reason we will not accept the amendment.
      Mr. Paice: The Minister is being unduly difficult. This is not a major issue, but it is important. I am grateful to her for producing some precedents, but that does not mean that we have to follow them. We have identified what we believe to be a misuse of language and an oddity in the reference to an institution as opposed to an officeholder. The Minister has not answered my question about whether the Chancellor is a Secretary of State.
      My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) suggested that there might be something behind the Government's use of language, and it could be concern on the Chancellor's part that some other Secretary of State might introduce an order affecting Customs and Excise without the Treasury knowing about it. However, the prospect of the present Chancellor not knowing what is going on in another Department is difficult to accept. He seems to know—if not dictate—what happens in every other Department.
      I fear that the Minister has failed to persuade us on this issue. She has not told us why it would be wrong to use the usual term, so I wish to divide the House on the matter.
      Question put, That the amendment be made:—
      The ouse divided: Ayes 191, Noes 300.

      Division No. 323]

      [5:13 pm

      AYES

      Ainsworth, Peter (E Surrey)

      Gale, Roger (N Thanet)

      Allan, Richard

      Garnier, Edward

      Amess, David

      George, Andrew (St. Ives)

      Ancram, rh Michael

      Gibb, Nick (Bognor Regis)

      Atkinson, David (Bour'mth E)

      Goodman, Paul

      Atkinson, Peter (Hexham)

      Gray, James (N Wilts)

      Bacon, Richard

      Grayling, Chris

      Baker, Norman

      Green, Damian (Ashford)

      Baldry, Tony

      Green, Matthew (Ludlow)

      Barker, Gregory

      Greenway, John

      Baron, John (Billericay)

      Grieve, Dominic

      Beith, rh A. J.

      Gummer, rh John

      Bellingham, Henry

      Hammond, Philip

      Bercow, John

      Hancock, Mike

      Beresford, Sir Paul

      Harvey, Nick

      Boswell, Tim

      Hawkins, Nick

      Bottomley, Peter (Worthing W)

      Hayes, John (S Holland)

      Brady, Graham

      Heath, David

      Brake, Tom (Carshalton)

      Heathcoat-Amory, rh David

      Brazier, Julian

      Hendry, Charles

      Breed, Colin

      Hoban, Mark (Fareham)

      Brooke, Mrs Annette L.

      Hogg, rh Douglas

      Browning, Mrs Angela

      Holmes, Paul

      Bruce, Malcolm

      Horam, John (Orpington)

      Burns, Simon

      Howard, rh Michael

      Burnside, David

      Howarth, Gerald (Aldershot)

      Burstow, Paul

      Jack, rh Michael

      Burt, Alistair

      Jackson, Robert (Wantage)

      Butterfill, John

      Jenkin, Bernard

      Calton, Mrs Patsy

      Keetch, Paul

      Cameron, David

      Kennedy, rh Charles (Ross Skye & Inverness)

      Campbell, rh Menzies (NE Fife)

      Carmichael, Alistair

      Key, Robert (Salisbury)

      Cash, William

      Knight, rh Greg (E Yorkshire)

      Chapman, Sir Sydney (Chipping Barnet)

      Lait, Mrs Jacqui

      Lamb, Norman

      Chidgey, David

      Lansley, Andrew

      Chope, Christopher

      Laws, David (Yeovil)

      Clappison, James

      Leigh, Edward

      Clarke, rh Kenneth (Rushcliffe)

      Letwin, rh Oliver

      Clifton-Brown, Geoffrey

      Lewis, Dr. Julian (New Forest E)

      Collins, Tim

      Liddell-Grainger, Ian

      Cormack, Sir Patrick

      Lidington, David

      Cotter, Brian

      Lilley, rh Peter

      Cran, James (Beverley)

      Llwyd, Elfyn

      Curry, rh David

      Loughton, Tim

      Davey, Edward (Kingston)

      Luff, Peter (M-Worcs)

      Davies, Quentin (Grantham & Stamford)

      McIntosh, Miss Anne

      Maclean, rh David

      Davis, rh David (Haltemprice & Howden)

      McLoughlin, Patrick

      Malins, Humfrey

      Djanogly, Jonathan

      Maples, John

      Dodds, Nigel

      Marsden, Paul (Shrewsbury & Atcham)

      Donaldson, Jeffrey M.

      Dorrell, rh Stephen

      Maude, rh Francis

      Doughty, Sue

      May, Mrs Theresa

      Duncan, Alan (Rutland)

      Mercer, Patrick

      Duncan, Peter (Galloway)

      Mitchell, Andrew (Sutton Coldfield)

      Evans, Nigel

      Ewing, Annabelle

      Moore, Michael

      Fabricant, Michael

      Moss, Malcolm

      Fallon, Michael

      Norman, Archie

      Field, Mark (Cities of London & Westminster)

      Oaten, Mark (Winchester)

      O'Brien, Stephen (Eddisbury)

      Flight, Howard

      Opik, Lembit

      Flook, Adrian

      Osborne, George (Tatton)

      Forth, rh Eric

      Ottaway, Richard

      Fox, Dr. Liam

      Page, Richard

      Francois, Mark

      Paice, James

      50

      Paisley, Rev. Ian

      Streeter, Gary

      Paterson, Owen

      Stunell, Andrew

      Portillo, rh Michael

      Swire, Hugo (E Devon)

      Price, Adam (E Carmarthen & Dinefwr)

      Tapsell, Sir Peter

      Taylor, John (Solihull)

      Prisk, Mark (Hertford)

      Taylor, Matthew (Truro)

      Pugh, Dr. John

      Taylor, Sir Teddy

      Randall, John

      Thomas, Simon (Ceredigion)

      Redwood, rh John

      Tonge, Dr. Jenny

      Rendel, David

      Turner, Andrew (Isle of Wight)

      Robathan, Andrew

      Tyler, Paul (N Cornwall)

      Robertson, Angus (Moray)

      Tyrie, Andrew

      Robertson, Laurence (Tewk'b'ry)

      Viggers, Peter

      Robinson, Mrs Iris (Strangford)

      Walter, Robert

      Robinson, Peter (Belfast E)

      Waterson, Nigel

      Roe, Mrs Marion

      Watkinson, Angela

      Rosindell Andrew

      Webb, Steve (Northavon)

      Ruffley, David

      Weir, Michael

      Russell, Bob (Colchester)

      Whittingdale, John

      Sanders, Adrian

      Wiggin, Bill

      Selous Andrew

      Williams, Hywel (Caernarfon)

      Williams, Roger (Brecon)

      Shephard, rh Mrs Gillian

      Willis, Phil

      Simmonds, Mark

      Wilshire, David

      Simpson, Keith (M-Norfolk)

      Winterton, Ann (Congleton)

      Smith, Sir Robert (W Ab'd'ns & Kincardine)

      Winterton, Sir Nicholas (Macclesfield)

      Smyth, Rev. Martin (Belfast S)

      Wishart, Pete

      Spelman, Mrs Caroline

      Yeo, Tim (S Suffolk)

      Spicer, Sir Michael

      Young, rh Sir George

      Spink, Bob (Castle Point)

      Spring, Richard

      Tellers for the Ayes:

      Stanley, rh Sir John

      Hugh Robertson and

      Steen, Anthony

      Mr. Robert Syms

      NOES

      Ainger, Nick

      Challen, Colin

      Alexander, Douglas

      Chapman, Ben (Wirral S)

      Allen, Graham

      Chaytor, David

      Anderson, rh Donald (Swansea E)

      Clapham, Michael

      Armstrong, rh Ms Hilary

      Clark, Mrs Helen (Peterborough)

      Atherton, Ms Candy

      Clark, Dr. Lynda (Edinburgh Pentlands)

      Atkins, Charlotte

      Bailey, Adrian

      Clark, Paul (Gillingham)

      Baird, Vera

      Clarke, rh Tom (Coatbridge & Chryston)

      Banks, Tony

      Barnes, Harry

      Clarke, Tony (Northampton S)

      Battle, John

      Clwyd, Ann (Cynon V)

      Bayley, Hugh

      Coffey, Ms Ann

      Beard, Nigel

      Cohen, Harry

      Bennett, Andrew

      Coleman, Iain

      Berry, Roger

      Colman, Tony

      Best, Harold

      Connarty, Michael

      Blackman, Liz

      Cook, Frank (Stockton N)

      Blizzard, Bob

      Cooper, Yvette

      Borrow, David

      Cousins, Jim

      Bradley, rh Keith (Withington)

      Cranston, Ross

      Bradley, Peter (The Wrekin)

      Crausby, David

      Bradshaw, Ben

      Cruddas, Jon

      Brennan, Kevin

      Cryer, Ann (Keighley)

      Brown, rh Nicholas (Newcastle E Wallsend)

      Cryer, John (Hornchurch)

      Cunningham, rh Dr. Jack (Copeland)

      Brown, Russell (Dumfries)

      Browne, Desmond

      Cunningham, Jim (Coventry S)

      Bryant, Chris

      Cunningham, Tony (Workington)

      Buck, Ms Karen

      Curtis-Thomas, Mrs Claire

      Burden, Richard

      Davey, Valerie (Bristol W)

      Burgon, Colin

      Davidson, Ian

      Burnham, Andy

      Davies, rh Denzil (Llanelli)

      Byers, rh Stephen

      Davies, Geraint (Croydon C)

      Cairns, David

      Davis, rh Terry (B ham Hodge H)

      Campbell, Alan (Tynemouth)

      Dawson, Hilton

      Campbell, Mrs Anne (C'bridge)

      Dean, Mrs Janet

      Campbell, Ronnie (Blyth V)

      Denham, rh John

      Casale, Roger

      Dhanda, Parmjit

      Caton, Martin

      Dobbin, Jim (Heywood)

      51

      Dobson, rh Frank

      Kelly, Ruth (Bolton W)

      Donohoe, Brian H.

      Kemp, Fraser

      Doran, Frank

      Khabra, Piara S.

      Dowd, Jim (Lewisham W)

      Kidney, David

      Drew, David (Stroud)

      Kilfoyle, Peter

      Dunwoody, Mrs Gwyneth

      King, Andy (Rugby)

      Eagle, Angela (Wallasey)

      King, Ms Oona (Bethnal Green & Bow)

      Eagle, Maria (L'pool Garston)

      Edwards, Huw

      Knight, Jim (S Dorset)

      Efford, Clive

      Ladyman, Dr. Stephen

      Ellman, Mrs Louise

      Lammy, David

      Ennis, Jeff (Barnsley E)

      Lawrence, Mrs Jackie

      Farrelly, Paul

      Laxton, Bob (Derby N)

      Fisher, Mark

      Lazarowicz, Mark

      Flint, Caroline

      Lepper, David

      Flynn, Paul (Newport W)

      Leslie, Christopher

      Follett, Barbara

      Levitt, Tom (High Peak)

      Foster, rh Derek

      Lewis, Ivan (Bury S)

      Foster, Michael (Worcester)

      Liddell, rh Mrs Helen

      Foulkes, rh George

      Linton, Martin

      Francis, Dr. Hywel

      Lloyd, Tony (Manchester C)

      Gapes, Mike (Ilford 5)

      Love, Andrew

      Gardiner, Barry

      Lucas, Ian (Wrexham)

      George, rh Bruce (Walsall S)

      Lyons, John (Strathkelvin)

      Gerrard, Neil

      McAvoy, Thomas

      Gibson, Dr. Ian

      McCabe, Stephen

      Gilroy, Linda

      McCafferty, Chris

      Godsiff, Roger

      McDonagh, Siobhain

      Goggins, Paul

      McDonnell, John

      Grogan, John

      MacDougall, John

      Hall, Patrick (Bedford)

      McFall, John

      Hamilton, Fabian (Leeds NE)

      McGuire, Mrs Anne

      Hanson, David

      Mclsaac, Shona

      Harman, rh Ms Harriet

      McKechin, Ann

      Havard, Dai (Merthyr Tydfil & Rhymney)

      Mackinlay, Andrew

      McNamara, Kevin

      Healey, John

      Mactaggart, Fiona

      Henderson, Doug (Newcastle N)

      McWalter, Tony

      Henderson, Ivan (Harwich)

      McWilliam, John

      Hendrick, Mark

      Mahmood, Khalid

      Hepburn, Stephen

      Mahon, Mrs Alice

      Heppell, John

      Mann, John (Bassetlaw)

      Hesford, Stephen

      Marris, Rob (Wolverh'ton SW)

      Hewitt, rh Ms Patricia

      Marsden, Gordon (Blackpool 5)

      Heyes, David

      Marshall, David (Glasgow Shettleston)

      Hill, Keith (Streatham)

      Hinchliffe, David

      Marshall, Jim (Leicester S)

      Hodge, Margaret

      Marshall-Andrews, Robert

      Hoey, Kate (Vauxhall)

      Martlew, Eric

      Hood, Jimmy (Clydesdale)

      Meacher, rh Michael

      Hopkins, Kelvin

      Merron, Gillian

      Howarth, George (Knowsley N & Sefton E)

      Milburn, rh Alan

      Miliband, David

      Hughes, Beverley (Stretford & Urmston)

      Mitchell, Austin (Gt Grimsby)

      Mole, Chris

      Hughes, Kevin (Doncaster N)

      Moonie, Dr. Lewis

      Humble, Mrs Joan

      Morgan, Julie

      Hutton, rh John

      Morley, Elliot

      Illsley, Eric

      Mountford, Kali

      Irranca-Davies, Huw

      Mudie, George

      Jackson, Glenda (Hampstead & Highgate)

      Mullin, Chris

      Munn, Ms Meg

      Jackson, Helen (Hillsborough)

      Murphy, Denis (Wansbeck)

      Jamieson, David

      Murphy, Jim (Eastwood)

      Johnson, Miss Melanie (Welwyn Hatfield)

      Naysmith, Dr. Doug

      O'Brien, Mike (N Warks)

      Jones, Helen (Warrington N)

      O'Hara, Edward

      Jones, Jon Owen (Cardiff C)

      Olner, Bill

      Jones, Kevan (N Durham)

      Organ, Diana

      Jones, Lynne (Selly Oak)

      Owen, Albert

      Jones, Martyn (Clwyd S)

      Palmer, Dr. Nick

      Joyce, Eric (Falkirk W)

      Perham, Linda

      Kaufman, rh Gerald

      Picking, Anne

      Keeble, Ms Sally

      Pickthall, Colin

      Keen, Alan (Feltham)

      Pike, Peter (Burnley)

      Keen, Ann (Brentford)

      Plaskitt, James

      52

      Pollard, Kerry

      Stewart, Ian (Eccles)

      Pond, Chris (Gravesham)

      Stinchcombe, Paul

      Pope, Greg (Hyndburn)

      Stoate, Dr. Howard

      Pound, Stephen

      Strang, rh Dr. Gavin

      Prentice, Ms Bridget (Lewisham E)

      Stringer, Graham

      Stuart, Ms Gisela

      Primarolo, rh Dawn

      Sutcliffe, Gerry

      Prosser, Gwyn

      Tami, Mark (Alyn)

      Purnell, James

      Taylor, Dan (Stockton S)

      Quinn, Lawrie

      Taylor, David (NW Leics)

      Rammell, Bill

      Timms, Stephen

      Rapson, Syd (Portsmouth N)

      Tipping, Paddy

      Reed, Andy (Loughborough)

      Todd, Mark (S Derbyshire)

      Reid, rh Dr. John (Hamilton N & Bellshill)

      Trickett, Jon

      Truswell, Paul

      Robertson, John (Glasgow Anniesland)

      Turner, Dennis (Wolverh'ton SE)

      Turner, Dr. Desmond (Brighton Kemptown)

      Rooney, Terry

      Ross, Ernie (Dundee W)

      Turner, Neil (Wigan)

      Roy, Frank (Motherwell)

      Twigg, Derek (Halton)

      Ruane, Chris

      Tynan, Bill (Hamilton S)

      Ruddock, Joan

      Vis, Dr. Rudi

      Ryan, Joan (Enfield N)

      Walley, Ms Joan

      Salter, Martin

      Wareing, Robert N.

      Sarwar, Mohammad

      Watson, Tom (W Bromwich E)

      Savidge, Malcolm

      Watts, David

      Sawford, Phil

      Whitehead, Dr. Alan

      Sedgemore, Brian

      Wicks, Malcolm

      Shaw, Jonathan

      Williams, rh Alan (Swansea W)

      Sheerman, Barry

      Williams, Betty (Conwy)

      Sheridan, Jim

      Wills, Michael

      Shipley, Ms Debra

      Winnick, David

      Simpson, Alan (Nottingham 5)

      Winterton, Ms Rosie (Doncaster C)

      Skinner, Dennis

      Smith, rh Andrew (Oxford E)

      Woodward, Shaun

      Smith, rh Chris (Islington S & Finsbury)

      Woolas, Phil

      Worthington, Tony

      Smith, John (Glamorgan)

      Wright, Anthony D. (Gt Yarmouth)

      Soley, Clive

      Squire, Rachel

      Wright, David (Telford)

      Starkey, Dr. Phyllis

      Wright, Tony (Cannock)

      Steinberg, Gerry

      Stevenson, George

      Tellers for the Noes:

      Stewart, David (Inverness E & Lochaber)

      Jim Fitzpatrick and

      Vernon Coaker

      Question accordingly negatived.

    Clause 28

      INTERPRETATION OF CHAPTER 2
      Caroline Flint: I beg to move amendment No. 14, in page 16, line 19, leave out from 'means' to end of line 22 and insert
      'the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22nd July 2003'.
      Mr. Deputy Speaker: With this it will be convenient to take Government amendments Nos. 15 to 17 and 19 to 27.
      Caroline Flint: I should like to say a few words about these Government amendments, bearing in mind the fact that we were criticised—I think, unjustly—during earlier debates for not having brought new clause 1 to the House's attention earlier, during proceedings in Committee. So I want to put on record the reason why these technical amendments are being moved today.
      These technical amendments have been tabled to take account of the recent adoption, on 22 July, by the European Council of the framework decision on the execution in the European Union of orders freezing

      53
      property or evidence. Now that the framework decision has been formally adopted, it makes for good drafting in the Bill to refer to the final form of the decision. The Bill currently refers to the relevant framework decision, and secondary legislation would be required to identify the framework decision and the provisions of the decision defining what are listed offences covered by freezing orders and what is the specified information to be contained in a certificate accompanying the orders.
      Under the amendments, the Bill will refer to the framework decision as formally adopted, giving the provisions greater clarity. The relevant definitions in clause 28 and schedule 4 will be amended to refer to the framework decision itself and to the specific provisions in the framework decision that have been formally adopted.
      Amendment agreed to.
      Amendments made: No. 15, in page 16, line 31 [Clause 28], leave out from 'in' to 'of' in line 32 and insert 'Article 3(2)'.
      No. 16, in page 16, line 33 [Clause 28], leave out 'such an order' and insert
      'an order made by the Secretary of State'.
      No. 17, in page 16, line 40 [Clause 28], leave out from 'by' to 'or' in line 42 and insert
      'the form of certificate annexed to the relevant Framework Decision'.—[Caroline Flint.]

    Clause 33

      MAKING, VARYING OR DISCHARGING CUSTOMER INFORMATION ORDERS
      5.30 pm
      Mr. Heath: I beg to move amendment No. 6, in page 20, line 3 [Clause 33], leave out paragraph (a).
      Mr. Deputy Speaker: With this it will be convenient to take the following amendments: No. 7, in page 25, line 7 [Clause 43], leave out 'bank' and insert 'financial institution'.
      No. 8, in page 25, line 26 [Clause 43], leave out 'banks' and insert 'financial institutions'.
      No. 9, in page 25, line 32 [Clause 43], leave out 'bank' and insert 'financial institution'.
      No. 10, in page 25, line 33 [Clause 43], leave out 'bank or banks' and insert 'financial institution or institutions'.
      No. 11, in page 26, line 20 [Clause 44], leave out 'banks' and insert 'financial institutions'.
      No. 12, in page 27, line 9 [Clause 46], leave out paragraph (b).
      Mr. Heath: Amendment No. 6 will be familiar to members of the Standing Committee, and particularly to Conservative Front-Bench Members, who were happy to move a similar amendment in Committee. I hope that they still feel able to support the sentiment involved.
      We have a serious problem with the scope of clause 33(3)(a), which allows that the application for information on monetary transactions may specify as a single entity all financial institutions. Without wishing to spend a lot of time explaining our objections to that,
      54
      it seems to us that framing the provision in that way, so that every financial institution in the country must provide the relevant transaction information, or at the very least, look for it, implies a substantial burden on those institutions, to no great effect, first because the vast majority of them will be irrelevant to the investigation in question, and secondly because if all the institutions provide information, it will be extremely difficult for the investigating authorities to process it. I referred in Committee to the difficulties that the National Criminal Intelligence Service has in current circumstances in dealing with the amount of financial information involved, and such an increase would overwhelm its investigation systems. Moreover, if the evidence on the basis of which a request is made is so flimsy that it is impossible to identify even a class of financial institutions that should properly provide the necessary information, that suggests to me that that evidence is insufficient to be acceptable as a trigger for the procedure in the first instance.
      In addition, as I said in Committee, I think that the drafting of clause 33(3)(b) and (c) covers all eventualities. I asked the Minister in Committee what would be the effect on any proposed investigation that she could envisage if paragraph (a) were missing. She did not give a convincing answer with regard to anything that would fall outside the provisions of paragraphs (b),
      "a particular description, or particular descriptions, of financial institutions"
      or (c),
      "a particular financial institution or particular financial institutions".
      Paragraph (b) allows for a class of financial institutions which, under the extreme circumstances adduced by the Minister—for instance, an anti-terrorism investigation—could be extended to include all financial institutions, so paragraph (a) is otiose. I hope that the hon. Lady will consider further whether including paragraph (a) will not put an unnecessary burden on our financial institutions, which the British Bankers Association identifies as the part of the Bill with which it cannot agree. The Government should think again.
      Amendments Nos. 7 to 11 relate to circumstances in which account information could be sought by British authorities from overseas authorities. In Committee, I drew attention to the fact that, in considering this country, we refer to financial institutions, whereas in considering other countries, we refer to banks. I asked whether there was a reason for that, and whether it would be better to delete the word "bank" from the Bill and replace it with "financial institution", which the amendments would do. The Home Office and the Minister have considered that and I am grateful that the hon. Lady wrote to me to explain the thinking behind the Department's view.
      I hope that I summarise fairly what the Minister wrote. She said that, in relation to a request from an institution in this country, since we have a loose definition of banks but a safe definition, in legal terms, of financial institutions, that is the proper term to use, which I accept entirely. However, she said that, in considering overseas authorities, definitions are necessarily enshrined in those countries' domestic legislation, and nothing to do with what we might care to say in our legislation. Those arguments are absolutely

      55
      right, but I am worried that the use of the word "bank" in the Bill will limit the scope of what could properly be requested from an overseas authority to information from either what a British court would define as a bank, which is a narrow and incomplete definition compared with that of a financial institution, or what an overseas body defines as a bank, which might be a limited subset of all the financial institutions in a country. For example, there are many mutual credit organisations in France that are not banks, by definition, but are nevertheless financial institutions in which people deposit money and to which I hope the provisions would apply.
      The substitution of the word "bank" for "financial institution" when dealing with our requests to overseas authorities limits ab initio what we may ask for, which is an inherently weaker position. I ask the Minister to consider again whether the arguments in her letter hold water.
      Amendment No. 12 relates to provisions for introducing new offences, effectively by negative resolution, through a decision by the Council of Ministers, which would be translated into British law with minimal scrutiny in this country. That is objectionable. The argument made in Committee was that we should not wish to overload this Parliament with scrutiny. When considering overseas requests to scrutinise the bank accounts of citizens of this country, we owe it to them to apply a little more scrutiny than that implied by the provision. The offences might be determined by qualified majority voting in the future, so the Council of Ministers could vote to overrule a British Minister and add offences to the list. The British Government would be required to add offences to the list with which they did not agree because they had been outvoted under QMV and there would be only minimal scrutiny by the House. Many hon. Members, myself included, do not think that that is acceptable. At the very least, a proper process of scrutiny in the House is required so that we constituency Members of Parliament may speak up for constituents who might be affected by such a decision. I make no apologies for taking an apocalyptic view. I do not think that the circumstances that I have described would arise in a reasonable scenario, but they could. It is right that when we legislate for the UK we consider the worst case rather than the best case. That is why the amendment is necessary.
      This group of amendments is important, and it needs careful scrutiny because the process, although necessary, is intrusive. We have no argument with the basic principles of what the Government are trying to achieve, but the House should have careful control of the process. The wording is important because it may reduce the measures' effectiveness by applying too heavy a burden on those on whom they bear, by incorrectly defining the circumstances in which the powers can be used or by allowing an expansion of the powers without the proper imprimatur of the House, which is an important part of our legislative process.
      Mr. Paice: I endorse and support what the hon. Member for Somerton and Frome (Mr. Heath) said. I reminded myself that we debated the earlier version of amendment No. 6, which my hon. Friends and I tabled,
      56
      35 minutes after the Minister started her first day in Committee, having just taken up her responsibilities. She acquitted herself well, but she has had four months to reflect on her answer. I hope she realises that our case on the wide terminology of "financial institutions" has some validity.
      I do not want to repeat the arguments made in Committee or by the hon. Gentleman, but the hon. Gentleman was right to refer to the Minister's justification that all financial institutions may need to be considered in a major terrorism investigation. Nothing in the amendment would remove that possibility. The hon. Gentleman said that clause 33(3)(b) and (c) will allow such an investigation to be carried out. In addition, subsection (2) allows a further application to be made ex parte to a judge in chambers if it is later found that an institution or group of institutions was not covered in a previous application. There is a belt-and-braces approach even if it is necessary for a major investigation to cover every possible definition of the term "financial institutions".
      I wholly endorse the argument that to allow the application to specify all financial institutions at the outset is a scatter-gun approach. It demonstrates a lack of clarity in relation to the person or people being investigated or the information being sought. There could also be a huge waste of resources if all financial institutions are approached. The Minister rightly said in Committee that people will not willingly waste resources—she perhaps has, a slightly higher opinion than me of some of the organisations that serve us—but we should ensure that that does not happen. The amendment is wise, and I hope that the Minister follows her earlier example and accepts it.
      Amendment No. 12 relates to the issue of giving the Secretary of State—an interesting phraseology in the light of the earlier debate—the power
      "to give effect to any decision of the Council of the European Union under paragraph 6".
      Far be it from me to challenge the hon. Gentleman's European credentials. I read that the Liberal party is rowing back slightly from its enthusiasm for Europe, and perhaps the amendment is an example of that. [Interruption.] I do not know whether the hon. Gentleman would like me to put on the record what he just said sotto voce, but I shall refrain from doing so.
      5.45 pm
      The important point is the one that the hon. Gentleman made. It would not be right for the European Union by majority voting to support a proposal, with a British Government perhaps voting against it, and for Ministers to immediately translate something into a serious criminal offence to which all the Bill's provisions applied. There is a need for greater parliamentary scrutiny, and I wholly endorse the hon. Gentleman's amendment.
      This is an important group of amendments. Many of them were covered to some extent in Committee, but they are worth reconsidering. In view of the time that the Minister has had to do so, I hope that she will give them a serious response and a fair wind, as she did in the case of those she accepted earlier.
      Caroline Flint: As hon. Gentlemen said, there was discussion in Committee of the issues raised by the amendments. The substance of amendment No. 6 was

      57
      discussed at some length. I reiterate that we consider it essential to retain the provision to allow a customer information order to specify all financial institutions. Although I am happy to go on the record stating that the circumstances in which the provision might be used would be exceptional, there may be circumstances in which we would want to be able to make such an order.
      For example, as we heard, in a terrorism case in which there is no specific evidence pointing to an account at a particular institution, but in which the seriousness of the offence and the need to trace any accounts are such that we consider a search of all financial institutions to be justified, it may be considered appropriate to obtain an order under the provision.
      On the comments about paragraphs (a), (b) and (c) of subsection (3), we need paragraph (a), which refers to all financial institutions, because paragraphs (b) and (c) refer to particular institutions. In its natural everyday meaning, "particular" is different from "all", so how can "particular financial institutions" be read as covering "all financial institutions"? That is why we need to include paragraph (a).
      The ability to target an order at all financial institutions does not open the door to fishing expeditions, as I argued in Committee. There are safeguards, which were not mentioned by either of the hon. Gentlemen who spoke, unless I did not hear correctly. The Bill gives both the Secretary of State and the court discretion as to whether to make an order. The Secretary of State will consider whether a request meets the conditions of the protocol. If he is not satisfied and the request appears to be a fishing expedition, he may refuse it.
      The order has to be made by a judge, who must act in accordance with the Human Rights Act 1998, thereby taking into account matters such as proportionality. The investigator and the judge must consider whether the number of financial institutions potentially covered by a customer information order balances against the tests set. The CIO application must also be approved by a senior officer, even before the investigator can apply to the judge. That creates yet another safeguard. Those are the steps that must be taken before an order allowing coverage of all financial institutions may be met, and that will occur in pretty rare circumstances.
      As was noted previously, the clause is consistent with the Proceeds of Crime Act 2002. I understand that Opposition Members were against the provisions of that Act and made their views clear while the Bill was proceeding through the House, but we stand by our position as outlined in that Act, which contains the power to make an order specifying all financial institutions. If we can do that for overseas money-laundering investigations, it is logical by extension to make similar provision in the Bill so that we can do so in the case of other serious crimes. Although, as I acknowledged in Committee, I recognise the potential burden of complying with such a request, I am afraid that I must resist the amendment.
      I turn to amendments Nos. 7 to 11. In Committee, the hon. Member for Somerton and Frome (Mr. Heath) asked why the Bill referred to "financial institutions" in respect of incoming requests and "banks" in respect of outgoing requests. I have written to him with an explanation, which I will repeat for the benefit of the House. The protocol obliges us to assist participating
      58
      countries in identifying whether a suspect holds bank accounts. It also allows us to receive assistance from other participating countries in relation to banks and bank accounts. Because the protocol does not define "bank", and because each participating country will define the term differently under its domestic law, as was confirmed by the hon. Member for West Aberdeenshire and Kincardine (Sir Robert Smith), we considered that the provisions on incoming requests must be drafted sufficiently broadly to enable us to assist with all properly made requests from participating countries. There is no single definition of "bank" in UK law. Even if there were, there is no guarantee that it would correspond with what another participating country considers to be a bank under its own domestic law. That is why we have adopted the term "financial institution", which is familiar in UK law and follows the provisions in section 416(4) and (6) and schedule 9 of the Proceeds of Crime Act 2002. There would be scope to limit a search in a particular case in view of the overriding discretion on the part of the Secretary of State to consider requests from other countries under chapter 4.
      In terms of outgoing requests, we are entitled to seek assistance under the terms of the protocol in relation to bank accounts that are held in establishments located outside UK jurisdiction, where the UK legal concept of "financial institution" will not necessarily have any meaning. If we were to use the expression "financial institution" in respect of outgoing requests, a UK judicial authority that requested assistance under clause 43 would have to be satisfied that an account was held at an overseas establishment conforming to the UK concept of "financial institution" and carrying on
      "business in the regulated sector".
      It would not be correct for the Bill to require overseas banks to come within the domestic UK framework. What constitutes an overseas bank for the purposes of the protocol is interpreted in each of the member states' own legal systems. It would not be possible—or, for that matter, sensible—for us to legislate for each country's own domestic law. When making requests to the UK under the protocol, overseas authorities must interpret the term "bank" consistently with the protocol within their own legal framework. For those reasons, we are satisfied that the use of the term "bank" in clause 43 is appropriate.
      Finally, let me deal with amendment No. 12. I am afraid that we cannot accept the deletion that it proposes. That would remove our ability to comply with article 1 of the protocol in the event that its scope was expanded at a future date. When the protocol was negotiated, a number of member states argued that the identification of bank accounts should be possible in relation to all crimes. As many member states do not have central registers of bank accounts, and because the measure was so new and was seen by some states, including the UK, as being potentially intrusive, it was agreed that the scope would be limited to serious crimes. However, member states agreed that it should be possible to extend the scope to allow for advances in technology and for the possibility that experience of the operation of the protocol might prove the value of the measure. Having agreed the terms and signed the protocol, we need to be in a position to comply with it, including the potential to apply article 1 to other crimes. We therefore require a mechanism to extend our legislation accordingly.

      59
      Any decision by the European Council to extend the scope of article 1 would be subject to the usual parliamentary scrutiny arrangements. The subsequent statutory instrument implementing the revised obligations would be subject to the negative resolution procedure, which we believe to be proportionate. The Delegated Powers and Regulatory Reform Committee did not comment on that power. Where it highlighted concerns about the level of scrutiny in relation to designation of non-EU countries as participating countries, we amended the Bill accordingly. We have listened and given further consideration to the concerns that have been expressed, but, for the reasons that I outlined, we cannot accept the amendment.
      Mr. Hawkins: Earlier, the Minister gave the impression that Conservative Members opposed the whole of the Proceeds of Crime Act 2002. I know that she did not intend to do so, as I was the shadow Minister who dealt with that Bill. Will she confirm for the record that we supported many of its important measures, although we had some concerns, which we expressed at the time?
      Caroline Flint: I am happy to confirm that sections of the Act were supported by Members from both Opposition parties represented here today. Given that we must have the scope to investigate suspects' accounts, particularly in the most grave situations involving terrible crimes, we felt that all financial institutions should be covered by that Act, and likewise, therefore, by this Bill.
      Mr. Heath: I am disappointed that the Minister has not acceded to my request. In respect of amendment No. 6, I do not wear her argument. As the hon. Member for Surrey Heath (Mr. Hawkins) pointed out in Committee, one of the problems with having such blanket cover is that there is no way of challenging the procedure, which involves an ex parte application by judges in chamber with no possibility of the institutions that will bear the burden playing any part in the decision. We are therefore right to be extremely cautious about the way in which such an application is made. I recognise, however, that I will not persuade the hon. Lady at this stage.
      On the definition of banks and financial institutions, I would accept the Minister's argument if the word "bank" had a connotation that went wider than the term "financial institution", because it would be logical to use the widest term, which can then be interpreted by the local jurisdiction consonant with its domestic legislation. However, she is saying the reverse—that we must limit the term to that which has a narrower definition even before the application is made. If we are able to understand what the term "financial institution" means within our domestic law for incoming requests, I have every confidence that overseas jurisdictions would be able to do so in terms of their own legislation for outgoing requests. That creates an anomaly whereby we effectively place a self-denying ordinance on the requests that we can make by using a term that is not consistent with the wider definition of "financial institution" that applies overseas. I accept, however, that having had this dialogue we are not going to agree.
      60
      On amendment No. 12, the Minister is being a little disingenuous in saying that were it to be accepted it would be impossible for the Government to make appropriate provision to bring into effect any decision of the Council. Of course it would be possible—I am simply saying that we should not do it via the Secretary of State. It occurred to me after the previous debate that perhaps we should go through legislation crossing out "Secretary of State" and inserting "Treasury": in reality the Treasury makes the decisions, so why not say so in statute? Setting that aside, the mechanism is not entirely appropriate for what the Minister wants to do.
      Clearly, we can make no further progress at this stage. I do not intend to press the amendment to a Division, because that would be pointless. We have made our comments and they stand on the record. If the Bill does not work as the Government hope, we will be able to tell the Minister that we told her so. I beg to ask leave to withdraw the amendment.
      Amendment, by leave, withdrawn.

    Clause 47

      TRANSFER OF UK PRISONER TO ASSIST INVESTIGATION ABROAD
      6 pm
      Mr. Carmichael: I beg to move amendment No. 44, in page 28, line 9, leave out,
      'cannot be withdrawn after the issue of the warrant'
      and insert
      'can only be withdrawn on cause shown and with the consent of the court.'
      As with previous amendments, the genesis of the amendment is the Law Society of Scotland. I had hoped that the hon. Member for Perth (Annabelle Ewing) would be in her place. Earlier, she chided Labour Back Benchers who represent Scottish constituencies for their absence. The hon. Lady, who always tells us that she is prepared to stand up for Scotland, has presumably gone to have her tea for Scotland.
      Mr. Heath: At the Scotland Office.
      Mr. Carmichael: Indeed, she may be having her tea at the Scotland Office tonight.
      The amendment is simple. Clause 47 provides that once a prisoner has given his or her consent in writing to be transferred to another country to help with a criminal investigation, it cannot be withdrawn. The amendment would provide for opportunities to withdraw that consent
      "on cause shown and with the consent of the court."
      It appears draconian that, once written consent has been given and a warrant has been issued, there is no point of return. Surely the Minister accepts that a change of circumstances in the foreign jurisdiction might mean that it is appropriate for consent to be withdrawn. It may also become apparent that consent was given on the basis of false, misunderstood or misleading information.
      The reason for withdrawing consent would have to be of the nature that I outlined because the test of "cause shown" is exacting and consent could not be withdrawn willy-nilly. It would require a substantial reason, and the opportunity would be available in few circumstances

      61
      because it is not simply a question of fulfilling the test of "cause shown"; there will be only a short time between issuing the warrant and departure to the foreign jurisdiction. The amendment does not therefore open the gate especially wide, but it includes an important safeguard. I commend it to the Minister.
      Mr. Paice: I support the hon. Member for Orkney and Shetland (Mr. Carmichael). We supported the thrust of the amendment in Committee when we discussed the need for a safeguard. In my experience, it is rare for legislation to contain such a bold and bald provision, without ifs, buts or caveats, that consent cannot be withdrawn after the issue of the warrant. That appears slightly dogmatic, especially when circumstances could change, both in the country to which the person is about to be extradited and for the individual.
      Under clause 47(4)(a), "the prisoner" may give the necessary written consent to being transferred, but subsequently suffer an extreme illness such as a mental breakdown. We may therefore find not only that the individual's circumstances have changed but that subsection (4)(b), which provides for someone else to act on the prisoner's behalf applies. In the extreme circumstances of someone suffering a mental breakdown, other illness or serious accident—one assumes that the latter will not happen to those in custody, but it is possible—it is unreasonable that there is no mechanism for review.
      As the hon. Member for Orkney and Shetland said, the amendment would not open the door to abuse of the system or drive a coach and horses through the option to transfer prisoners abroad. I would not support it if that were its effect. However, there is a need for a safeguard in the event of circumstances changing so dramatically that it could be shown that, at the time of transfer, the consent might be unreasonable and that the individual might not have given it in the altered circumstances. The person who gave consent on the prisoner's behalf under subsection (4)(b) might have taken a different stance in the different circumstances. I hope that the Minister appreciates the need for some, albeit small, safeguards. As a non-lawyer, the proposal of the Law Society of Scotland appears to me suitable in providing an opportunity for review in extremis. I hope that the Minister will support it.
      Caroline Flint: We debated this issue on several occasions in Committee. We have considered the matter further, but we remain firmly of the opinion that amendment to the clause is not necessary. I hope that I can explain practically our intentions and our reasons for wanting to transfer a prisoner to another European country to help with a UK investigation.
      Clause 47 deals with circumstances in which a transfer is arranged from the UK, at its request, when UK investigations require a UK prisoner's presence, generally in the capacity of witness, in another country to assist with investigations into an offence committed here. For example, a prisoner might have been involved with or known about other people who had offended in the UK by, for example, being party to human trafficking or drug smuggling. Perhaps that prisoner could identify people known to him or her by attending an identity parade in, for example, France. Prisoners might also be able to identify a property that they had
      62
      visited and at which those who had offended in the UK were present. Such events do not happen every day but, given that crime knows no national boundaries and that we are trying to deal with that through co-operation, we need to be prepared for them. I have tried to give a practical example to show reasons for wanting to transfer a prisoner abroad to assist with a UK investigation. I hope that it gives hon. Members, people in the Gallery or those listening outside the Chamber an idea of what we are talking about.
      We envisage that such circumstances will be rare and the provision does not deal with giving evidence abroad in relation to overseas investigations. Section 5 of the 1990 Act will continue to cover that.
      Mr. Carmichael: Would it be competent to raise a bill of suspension in respect of a warrant issued under clause 47?
      Caroline Flint: I shall refer to that point shortly.
      Let me consider the amendment, which deals with the warrant and whether, once a warrant has been authorised, someone can go back on an agreement to be transferred. I stress that the warrant authorises but does not require the prisoner's transfer. It enables the transfer to happen, making it legal. It also enables the prisoner to be held in legal custody for the duration of the transfer.
      There is a process whereby the authorities engage a prisoner in the whys and wherefores of seeking that person's co-operation. It can take several months for the warrant to be authorised. At any point until the warrant is authorised, the relevant individual can refuse to take part. Police officers in such cases deal with prisoners in the same way as they deal with witnesses or suspects in a purely domestic investigation. They would interview a prisoner whose transfer was desirable in the same way as they would interview members of the public with a view to their providing evidence in a UK proceeding. Prisoners who are purely witnesses would be treated like any other witness; they would be interviewed by an officer and asked to sign a written statement. Suspects would be cautioned like any other suspect. The fact that they are prisoners does not result in different treatment.
      The clause requires prisoners, or someone acting on their behalf, to provide written consent to any transfer before it takes place. They will sign a consent form, witnessed by a prison official. Although they are not automatically entitled to legal advice—we discussed that in Committee—prisoners are entitled to seek it before agreeing to a transfer. Indeed, the standard consent form contains a statement which confirms that prisoners have been given the opportunity to seek legal advice. I can provide hon. Members with a copy of the form if that is helpful.
      Once consent has been granted, the practical arrangements for the transfer will be put in place by the authorities concerned. When these arrangements are all in place, the Secretary of State will issue a warrant authorising the transfer of the prisoner a few days before the transfer is scheduled to happen. Once that warrant has been issued, the prisoner will be unable to withdraw his consent. There is a process to be gone through in which a person is entitled to change their mind, but the warrant authorises the activity. It provides the

      63
      framework in writing for proceeding with the transfer. As I have said, the prisoner may change his mind before the warrant is issued.
      Mr. Paice: I appreciate that the process will take only a few days, as the Minister has reminded us. Will she not accept, however, that a prisoner's health could change dramatically, even in a few days? They could have a mental breakdown, or suffer a serious stroke or heart attack. Something could happen quite suddenly that would dramatically change their circumstances, which could jeopardise their ability to make decisions for themselves. Their conditions would therefore not be the same when the warrant was executed as when they gave their consent.
      Caroline Flint: We discussed this matter in Committee. If someone has had a heart attack, broken a leg or had a mental breakdown, the people facilitating the transfer would hardly be in a position to take that person in those circumstances. I mentioned the example of a national emergency in the country of destination. We would not necessarily want to transfer a prisoner into such a situation; indeed, we might not want to send the people taking the prisoner into such a situation either. In Committee, I said that in the event of
      "a national emergency in the country of destination or a person being unwell and unfit to travel … there is an opportunity for the Secretary of State to act. We want to ensure that at the end of the process there is a safeguard, so that we do not undermine all the work that has been done preceding the warrant's authorisation."—[Official Report, Standing Committee A. 17 June 2003; c. 203.]
      There is nothing to be gained by the people investigating a UK offence if the person in question is unable to take part because of ill health or for other reasons. There would be no point in the investigating officers pursuing a case to that end. In refusing to accept the amendment, we are trying to safeguard against a cat-and-mouse game ensuing, at the end of a process which contains built-in safeguards, and work that has been legitimately pursued—including the signing of a form—not being adhered to.
      Mr. Paice: I would like to pursue this matter a little further. I understand the Minister's point that it would not be in the interest of the investigating authority to take someone who would be unable to participate in their investigation. I would point out, however, that clause 47(5) defines the circumstances in which
      "it appears to the Secretary of State to be inappropriate for the prisoner to act for himself, by reason of his physical or mental condition or his youth."
      The fact that the Government have put this in the Bill, and that under clause 47(4)(b), someone else could give consent on behalf of the person in question, implies that the Government are envisaging situations in which a prisoner could be transferred abroad despite a physical or mental condition that might reduce his ability to participate in the investigation. We seem to have that eventuality covered if it arises before consent is given, but if the prisoner's condition should change after
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      consent was given, the situation could not be readdressed. A change to that provision is all the hon. Member for Orkney and Shetland and I are asking for.
      Caroline Flint: My understanding of clause 47(5) is that it acknowledges that the Secretary of State may find it inappropriate that a person should be transferred, by reason of his physical or mental condition or his youth. That provision is in the Bill as a safeguard in terms of the proceedings.
      6.15 pm
      Mr. Paice: I am sorry to have to say this to the Minister, but that is not what subsection 5 says. It defines the circumstances in which the Secretary of State believes that, if the individual cannot make the decision for himself, he can allow another person to give consent on his behalf. It is not to do with a decision that the person would be no use to the investigation, as the Minister suggests.
      Caroline Flint: I think that the provision states that a prisoner may ask someone to act on their behalf in such circumstances. The clause as drafted requires the prisoner—or, as the hon. Gentleman says, someone acting on his behalf—to provide written consent to any transfer before it takes place. I can provide copies of the forms that are currently available for this purpose, which should allay some of the fears that hon. Members raised in Committee about whether people would be informed about what was happening, and whether they would have the opportunity to resist certain procedures if they did not want to take part. They have that right, up to the point at which the warrant is authorised. There are enough safeguards to ensure that the system operates in a full manner which will give the individual rights and which recognises that there might be circumstances such as ill health or events in the country of destination that would make the transfer inappropriate.
      As I have said, when the arrangements are all in place, the Secretary of State will issue a warrant authorising the transfer, a few days before it is scheduled to happen. Once the warrant has been issued, the prisoner will be unable to withdraw his consent, but he may change his mind before the warrant is issued.
      Prisoners in these circumstances are being transferred in order to be of assistance to a domestic investigation, so there would be no merit in transferring a prisoner who was unwilling to co-operate, for whatever reason. It would cost the investigating force a large amount of money, with no benefit to the investigation. Prisoners would not be transferred if ill or otherwise unfit to travel.
      Sir Robert Smith: The implication of what the Minister has just said is that, although she does not want to place in the Bill any process by which the prisoner could change their mind, even after this stage had been reached the authorities could decide that the prisoner was not going to co-operate and that it would not be worth the effort of transferring them.
      Caroline Flint: The suggestion would be that, in order to transfer a prisoner, there would have to be a voluntary agreement to do so. There would be no merit in the investigating officers pursuing such an action if the

      65
      person were unwilling to take part. We want to avoid a situation in which, after months of work, someone decides at the last minute and for no good reason that they do not want a transfer.
      Sir Robert Smith rose—
      Mr. Paice rose—
      Caroline Flint: I shall not give way, because I have answered the question on this matter.
      We want a process that is understood by the investigating officers and the prisoners concerned. These provisions are used in other parts of UK law relating to the transfer of prisoners. Under sections 5 and 6 of the Criminal Justice (International Co-operation) Act 1990, the UK can request that a prisoner held overseas be transferred to the UK, and it can transfer prisoners out of the UK when other countries make requests for prisoners here to be transferred to that country. Clauses 47 and 48 of the Bill implement different arrangements, enabling a country to make a request to transfer a prisoner from its own territory when its own investigations require the presence of the prisoner in another country. These clauses reflect the terms used not only in the 1990 Act, but in the Repatriation of Prisoners Act 1984, section 1(6) of that which prohibits a prisoner from withdrawing consent once granted. That provision is therefore contained in another piece of UK legislation.
      Repatriation—permanently transferring a prisoner from one country to another to serve the remainder of their sentence—is a much more definite and final act than the one that we are talking about in this Bill, which simply deals with the temporary transfer of a prisoner to assist with a specific aspect of an investigation. Having different arrangements in this Bill would call into question the basis of existing related legislation. Finally, the warrant in this section is issued by the Secretary of State, not by a court, so the amendment is incorrect in referring to a power of the court that does not exist. For these reasons, we cannot accept the amendments, and I urge the House to resist them.
      Mr. Carmichael: I would disagree with very little that the Minister has said. She spoke at some length about the safeguards that are in place prior to the granting of the warrant, and I commend her on the thoroughness of her approach to that. Had I had any quibble with the provisions in the clause, I would have tabled an amendment, but I did not. Instead, I tabled a tightly framed amendment relating to the withdrawal of consent after the issue of a warrant.
      I asked the Minister in an intervention whether a warrant issued by the Secretary of State could be the subject of a bill of suspension. Those who advise the Minister did not pick up on that intervention, so I do not expect her to be able to answer it off pat. An answer may be forthcoming even as I speak. It is not unknown for bolts of lightening to hit Ministers in these circumstances.
      If it is possible to suspend a warrant, it is still possible to get round this provision. The bill of suspension is an unnecessarily cumbersome procedure in these circumstances. Is it still a remedy available to citizens
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      affected by this provision? I do not know whether the Minister has an answer for me. One can never say never, but I suspect that if a bill of suspension were not competent, a petition to nobile officium would remain competent. In Scots law at least, there is always a means by which one can find a remedy when no other exists.
      Caroline Flint: The question which the hon. Gentleman alludes to involves a complicated part of Scottish law and I do not have the answer to hand. We may have to consult further on that point to see how it would fit in with the exercise of a warrant to transfer a prisoner. I shall get back to him on that point if that is helpful to him.
      Mr. Carmichael: That would be helpful to me and, no doubt, to others who will deal with this legislation in the courts if and when it makes its way on to the statute book. However, even under subsection (6) as it stands, a prisoner could avoid being transferred. The procedure is exceptionally lengthy, cumbersome and expensive. Surely the sensible thing would be to allow the amendment in the terms that we have proposed to enable consent to be withdrawn on cause shown.
      I cannot say that the Minister has put any argument for refusing the amendment. However, we will clearly not make any progress with it, so with some reluctance and disappointment, and with all the questions that we have at the start of the debate still unanswered, I beg to ask leave to withdraw the amendment.
      Amendment, by leave, withdrawn.

    Clause 82

      FOREIGN SURVEILLANCE OPERATIONS
      Mr. Heath: I beg to move amendment No. 13, in page 55, line 44 [Clause 82], at end insert—
      '() the officer does not seek to stop or question the person under surveillance'.
      Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss Government amendment No. 18 and amendments (a) and (b) thereto:
      Amendment No. 32, in page 56, line 43 [Clause 82], at end insert
      '"Enters the United Kingdom" shall mean when the officer arrives at a port or airport in the United Kingdom or when a train on which he is travelling emerges from the tunnel into the UK.'.
      Mr. Heath: We now come to a group that is again, I am delighted to say, the subject of qualified harmony. By accepting the arguments, as the Government amendment shows, the Minister has avoided the inevitability of the Bill returning from the other end of the corridor with the inclusion of something similar to the original amendment to clause 82 passed in the other place. That would be unfortunate, because I do not think that there was any difference of opinion between the Opposition parties and the Government on the intention, but there was a distinct difference on whether this provision should be included in the clause. The Government felt that it was not necessary—perhaps they still feel that—whereas many others felt that it was extremely important.

      67
      The issue is whether an officer from overseas entering this country while performing a covert surveillance operation should be prohibited from stopping, searching or questioning the person under surveillance. We know that there is no difference between us on the intention that such officers should have no such ability. That was clear in the Schengen handbook and the protocols. The question is whether that should be explicit in the Bill. It was felt by a majority in the other place that it should, but in Committee the view of the Government was that the amendment to that effect passed in the other place should be excised without providing an effective alternative.
      The argument in Committee was interesting. The Government's principal objection was that the other place had framed its amendment in the form of a prohibition. They felt that that was not acceptable in terms of parliamentary draftsmanship and that they would be much happier with a qualification under subsection (4). I set myself the task of finding a form of words that would meet the Government's objection and fulfil our common objective, and that is amendment No. 13. Though I say it myself, it is a brief and elegant way of incorporating the sentiment.
      Subsequently, the Government tabled their own amendment No. 18, which comes to the same thing. I am grateful to the Minister for producing that amendment, as it is extremely helpful to us. However, I have two quibbles with it. They are minor quibbles rather than quibbles of substance. The first is that it is slightly clumsy and long-winded, but that is a matter of style rather than substance. It is perhaps inevitable that I happen to prefer my wording.
      My second quibble is dealt with in my amendment (a) to Government amendment No. 18. The Government's amendment contains a potential pitfall. It would insert the words
      "but no surveillance is lawful by virtue of this subsection if the officer subsequently seeks to stop and question the person in relation to the relevant crime".
      If that is understood to mean during the process of covert surveillance within the United Kingdom, that is fine, but that is not what it says. The word "subsequently" creates a difficulty.
      I shall put a hypothetical case to the Minister. Supposing that a Belgian police officer was investigating a smuggling operation between Belgium and Britain.
      The Secretary of State for the Home Department (Mr. David Blunkett): Chocolate.
      Mr. Heath: All right, the smuggling of chocolate, although I am not sure that that is the most heinous crime even under the current provisions of criminal law. If it pleases the Home Secretary, let us suppose that the person is smuggling chocolate between Brussels and Dover. Under the provisions of the Bill, the Belgian police officer properly undertakes covert surveillance in the United Kingdom. He does not seek to stop and question the person—who incidentally is a British subject—in Dover, and he complies entirely with the legislation.
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      The police officer returns to Brussels and so does the person under surveillance. That British subject commits further acts in Brussels in connection with the smuggling operation for which the officer stops, questions and arrests him. It transpires that the crime committed under Belgian law is part of a conspiracy based in Britain, and should be prosecuted by the British authorities—a huge conspiracy of chocolate smuggling, according to the Home Secretary.
      The person is brought back to Britain to stand trial—but under the wording in Government amendment No. 18, because the officer subsequently stopped and questioned that person, albeit in Belgium and not in London, the evidence that that officer can provide by virtue of the covert surveillance in the United Kingdom is no longer admissible in a British court. That is not the intended consequence. It may be a very fanciful consequence, and a very extraordinary sequence of events might be required to bring it about; but it is nevertheless a possible consequence of the unqualified use of the word "subsequently".
      That difficulty would be entirely removed by the addition of the words "in the United Kingdom", which would make it absolutely clear that the surveillance is invalidated only if the person concerned is stopped and searched here. I put it to the Minister that we could remedy a potential difficulty quite happily by that means. I hope that my argument has been cogent and not too complicated, and I hope that the Minister will either accept my wording or amend the existing wording by means of a Government amendment. In any event, I am glad that we have won the basic argument, and grateful to the Minister for listening carefully to what we have had to say.
      6.30 pm
      Mr. Paice: I, too, welcome Government amendment No. 18. In Committee, the Government were determined, despite behind-the-scenes discussions, to reject out of hand the Lords amendment proposing the removal of a subsection from the Bill, and to revert to the position that obtained when the Bill was presented to the other place—only for wiser heads to prevail later.
      Let me chide the Minister slightly by reminding her that in Committee she said
      "However, I am being asked to withdraw my amendment and allow an imperfect bit of the Bill to go forward."—[Official Report, Standing Committee A, 19 June 2003; c. 267.]
      I suggest that seeking to amend the Bill was tantamount to admitting that she was allowing an imperfect Bill to go forward at the time, but I am glad that the Government have seen the necessity of making the position absolutely clear.
      I understand the Minister's reasons for not liking the original Lords amendment. It was effectively a double negative, making illegal something that was already illegal. The Minister and, in different terms, the hon. Member for Somerton and Frome (Mr. Heath), have come up with wordings that serve exactly the same purpose and achieve the same ends by ensuring that someone being followed by an overseas officer cannot be stopped and searched.
      I have discussed the matter with my colleagues in the other place, to whom the Bill will have to return. I cannot prejudge or commit myself to what they will

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      decide, but I understand that they are content with the Minister's amendment, and I welcome her albeit belated recognition that the position should be stated clearly.
      Amendment No. 32 relates to the definition of United Kingdom territory. It seeks to add to the Bill words used by the Minister in Committee. My hon. Friend the Member for Surrey Heath (Mr. Hawkins) rightly pointed out that where the territory entered by the overseas officer began was open to debate. Did it begin with the beginning of airspace, or with our territorial waters? What would happen if a surveillance officer was in a boat only a mile or so from the shores of Britain, watching the famous chocolate smuggler coming over from Belgium with his chocolate? The boat might be in British territorial waters.
      In reply, the Minister said
      "We will consider the UK to have been entered when the foreign officer arrives at a port or airport or, in the case of Eurostar, when the train leaves the tunnel and enters Kent."—[Official Report, Standing Committee A, 19 June 2003; c. 288.]
      That is a very precise definition. As I implied, there could have been other terminologies—especially in respect of the tunnel, which has led to a situation unique to this country. British territory is normally considered to begin halfway through the tunnel, and we have customs officers operating in France, but there is a debate about the location of the boundary. In Committee, however, the Minister clearly stated that in that instance—probably one of the more common instances—the UK would be considered to have been entered when the train left the tunnel and entered Kent. All we have tried to do is put that into the Bill, which I think is entirely reasonable. I hope that the Minister will accept that hers are the correct words, and that they should therefore be in the Bill.
      The fundamental point is that the words "enters the United Kingdom" are vague and, as I have tried to demonstrate, open to different interpretations. Earlier today, the Minister agreed that the Bill should be clear about what it means. I hope she also agrees she did nod just now—that "enters the United Kingdom" is vague. We now seek to turn her words into clarity in the Bill, and I hope that she will be able—perhaps uniquely—to incorporate her own words in legislation.
      Caroline Flint: The hon. Member for Somerton and Frome (Mr. Heath) had me slightly worried. I thought that I was going to disagree with something with which I hoped to agree. By the end of his speech, however, I realised that we would be able to give him some comfort, particularly in regard to the words "in the United Kingdom".
      I am grateful to the hon. Gentleman, and to the hon. Member for Orkney and Shetland (Mr. Carmichael), for amendment No. 13. We discussed the issue at length in Committee—we discussed what constituted hot pursuit and hot, lukewarm or cold surveillance. Although not convinced at the end of our proceedings, I said that I would see whether we could come up with a form of words that would deal with Members' concerns without making a fool of the law. The Liberal Democrats have obviously been working on their own wording, but I am pleased to say that during the recess our officials were beavering away to produce an acceptable amendment.
      I hope—and I think what has been said so far suggests—that the amendment's response to what was said in Committee makes it clear that when foreign
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      officers conduct relevant surveillance in the UK, that surveillance will no longer be lawful if officers subsequently stop and question the target about the crime. However, we do not think that such a situation is likely to arise. As I said in Committee, the Schengen convention provides explicitly that foreign officers may neither challenge nor arrest the target. To stop and question the target about the crime would not be consistent for the purposes of covert surveillance. There would be no operational advantage, and there would be risks of legal action against the foreign officers.
      If the foreign officers identified themselves to the target, he would have no obligation to speak to them or even to remain in their presence. They would have no power to detain him physically or to force him to answer questions. Indeed, were they to detain or physically restrain him, they might be committing assault, and could therefore be prosecuted or sued for damages by him.
      However, the Government appreciate that the amendment, as an unequivocal declaration in the Bill, would reflect the existing clear understanding between the Schengen states that to stop and question the target within the framework of cross-border surveillance is not acceptable.
      The Government's amendment differs from amendment No. 13 in that, although it would be a distinct part of what will be subsection (4) of section 76A of the Regulation of Investigatory Powers Act 2000, it would be distinguished from the existing conditions specified in the subsection. At present, the subsection provides that relevant surveillance by foreign officers during the permitted period is lawful for all purposes if the conditions in the subsection are satisfied. The amendment removes that cover of lawfulness if the target is subsequently stopped and questioned in relation to the relevant crime, even if all his specified conditions are satisfied.
      There is a further difference in the drafting, in that we have not used the phrase "stop or question". Article 40 of the Schengen convention provides that the foreign officers conducting the surveillance may not challenge the person under observation. We interpret "challenge" as meaning "stop and question", which in our view better reflects the convention's intention. A further amendment has been tabled to Government amendment No. 18, and I am pleased to say that we are able to accept it because it provides clarification. The illuminating example of Belgian chocolate smuggling focused our attention on how the law might be applied, and it is no bad thing to try to create a practical situation to which to apply the Bill. I therefore hope that the House will accept amendment No. 18, as amended by amendment (a), and that hon. Members will not press amendment No. 13 to a vote.
      Let me now deal with amendment No. 32, which, as has been pointed out, looks very familiar because it is very similar to what I said in Committee. It will come as no surprise to the hon. Members for South-East Cambridgeshire (Mr. Paice) and for Surrey Heath (Mr. Hawkins) when I say that I find the amendment very attractive. However, although I support its purpose, it should not be included in the Bill, and I shall try to explain why.

      71
      We had a lengthy discussion in Committee in which we tried to grapple with real-life scenarios. For example, we considered the question of at what point someone travelling by air would be in British airspace, and at what point those travelling by ferry or hovercraft would be in British waters. As I explained in Committee, the term "enters the United Kingdom" will indeed be interpreted as meaning when a foreign officer arrives at a port or airport or, in the case of Eurostar, when the train leaves the tunnel. I said that this was a practical approach. It is a workable definition that provides a point that can readily be identified by officers, who cannot afford to be distracted from immediate operational imperatives by questions about the precise moment at which they enter British airspace or waters. That approach is also in line with the Schengen convention's intention that the foreign officer conducting the surveillance must notify the authorities of the visited state immediately that the border has been crossed. Clause 82(6) uses the phrase:
      "immediately after the officer enters the United Kingdom".
      In the Government's view, in the case of entry by sea or by air, that phrase can be interpreted as meaning as soon as the foreign officer arrives at the port or airport, because only then can he make contact with our own officers.
      However, the underlying approach that I described is a general one. Although we intend that it should be adhered to, it is difficult to find a precise wording that would be appropriate in practical terms. Indeed, that is my difficulty with the proposed amendment: its wording is not precise and it is also too narrow. For example, the precise moment at which a person enters a seaport could appropriately be regarded as when the vessel enters the harbour, when it docks, when the target disembarks, or when he passes through passport control or customs control. Indeed, it is possible that a particular vessel might not arrive at port at all. An incident might occur at the port in question, causing the vessel to be docked for some hours. Foreign officers could use that as an opportunity to connect with their UK counterparts, in order to pick up the surveillance when they disembark. So particular circumstances could arise in which it would be possible and appropriate to regard the five-hour period as commencing before the vessel arrives at the port.
      These practical issues must of course be addressed, but not in the Bill, as I said in Committee. The appropriate place in which to set out the Government's approach, and to explain more precisely what is meant by "enters the United Kingdom", is the Schengen handbook. As was pointed out in Committee, the handbook is a practitioners' document that is constantly updated, and which can therefore be amended from time to time, as appropriate, to take account of evolving experience in operating the convention. What is important is that the definitions and explanations we provide in the handbook are in line with the practical approach that I have described.
      I recognise that the courts' interpretation of the term "enters the United Kingdom" might not be in line with the practical approach that I have described. In the event that the courts ruled that a different approach was necessary, we would need to modify our entries in the
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      Schengen handbook. In that way, the new practicalities would be made clear to our law enforcement agencies and to their counterparts abroad. I am grateful to hon. Members for this opportunity to provide further elaboration.
      Mr. Paice: I am grateful to the Minister for giving way; otherwise, I would not be able to respond to her remarks. In giving her reasons for rejecting my amendment, she has emphasised the huge confusion that will arise and illustrated precisely why we feel that the amendment is necessary. I understand the case that she makes, but it will lead to even more confusion. Who will determine when the clock starts ticking for the five-hour period? If it is the overseas surveillance officers who will make that decision, what is to prevent them from counting the five hours from the point at which they want to start counting? I am thinking in particular of the situation that the Minister describes—of a boat that is just offshore, either in or just outside the harbour. Someone has to start counting the five-hour period, but it surely should not be the person who is supposed to keep to it.
      6.45 pm
      Caroline Flint: The hon. Gentleman outlines the difficulty in establishing in the Bill a precise definition that can cover the practical implications. That is why the handbook is so important, and why the surveillance commissioner has a very important role in monitoring the ways in which the surveillance powers outlined in the Bill are used. We discussed in Committee the question of how to deal with foreign officers who do not comply with surveillance rules. As I said then, each activity undertaken would have to be accountable, and the surveillance commissioner would have to deal with any discrepancies arising. In terms of carrying out their functions in this regard, foreign officers would have to keep in touch with the National Criminal Intelligence Service.
      The hon. Gentleman highlights the difficulty in trying to apply these powers without a practical example to address. I stand by my position: the wording in the Bill is the best way forward and the practitioners of the Schengen handbook will undertake to update or to vary the practical application, subject to the rulings of the courts. The Schengen handbook should reflect practical application, and amendments should be made within that to reflect changes to the practical definitions that may be required in the light of operational experience.
      Mr. Carmichael: I want to be sure that I understand the Minister. The Schengen handbook and NCIS guidance are exactly that: guidance. As I think the hon. Lady said earlier, ultimately it is the courts that will determine whether an act has been carried out within the five-hour limit. Is she really saying that the Government will give best-guess guidance at the moment, but that, if it all goes wrong and they lose a court case, they will change the guidance in future?
      Caroline Flint: No, I am saying that it is difficult, for the reasons that I have outlined, to determine the absolute point at which a person is on UK soil, and to include that definition in the Bill. This issue would therefore better be covered within the Schengen handbook, which is the practitioners' guide. It will be

      73
      constantly updated and can be amended to take account of evolving experience in operating the convention. What is important is that the definitions and explanations that we provide in the handbook are in line with the practical approach that I have described. As I said, the courts' interpretation of the phrase "enters the United Kingdom" might not be in line with this approach. In the event that the courts ruled that a different approach was necessary, we would need to modify our entries in the Schengen handbook.
      After much discussion in Committee, we feel that safeguards are in place; indeed, there are other safeguards as well. As was pointed out in relation to other possible surveillance infringements, the surveillance commissioner will take up and monitor each case. On NCIS guidance, its officers have the power to tell foreign officers to stop at any time—they have the power to tell those officers when to stop surveillance. Indeed, it is NCIS with which foreign officers will need to keep in touch.
      For those reasons, I am pleased to meet hon. Members halfway in respect of issues of surveillance, but we feel that the particular wording in the amendment would create problems for the future without allowing the required flexibility in respect of those powers.
      Mr. Heath: I consider this afternoon to be a minor triumph, and I shall leave the Chamber rather pleased with the progress that we have made in respect of a couple of areas.
      The hon. Member for South-East Cambridgeshire (Mr. Paice) made a valiant attempt to provide precision in an area that remains very imprecise. It seems inevitable that if something can be overturned by the courts, it will eventually be overturned by them. Without the necessary precision, the courts will make an interpretation, which may be adverse to whatever guidance is given.
      As an island state entering the Schengen agreement for the first time, we are almost unique. I say almost unique, because although other member states are not islands, they nevertheless have maritime borders, and I am sure that something similar must occasionally have occurred in respect of the current operation of the Schengen protocols between, say, Sweden and Germany. Nevertheless, we are entering a new area, so it is important to have as watertight a definition as possible. The better the formulation within the handbook, the more likely are we to avoid aborted cases when a court rules evidence as non-admissible on the grounds that provisions have been inadvertently broken.
      It is, of course, in everyone's interest not to break the rules, and it is not in the interest of an overseas officer to stay longer than required, because to do so will be a waste of time. It is not in the interest of the National Criminal Intelligence Service to give advice to those officers, who will want to use the evidence provided by the surveillance operation. Any imprecision would be extremely unhelpful.
      Mr. Carmichael: My hon. Friend is right that it is in everyone's interest to work within the rules, which is why we need to know exactly what the rules are. Leaving
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      it to our best-guess guidance in the handbook and refining it when the courts tell us we have got it wrong is simply not satisfactory.
      Mr. Heath: I have considerable sympathy with my hon. Friend and indeed with the hon. Member for South-East Cambridgeshire. I hope that the Home Office will give careful thought to providing as much precision as possible.
      On the subject of stopping and questioning, I am delighted with the Minister's response, as she would expect me to be. I shall adopt a term used in parliamentary procedure and hardly anywhere else, and say that it would be churlish of me to persist with amendment No. 13 in the face of the Minister's agreement to accept my amendment to her amendment No. 18. I shall formally move my amendment (a) in due course, and in respect of amendment No. 13, I beg to ask leave to withdraw the amendment.
      Amendment, by leave, withdrawn.

    Clause 82

      FOREIGN SURVEILLANCE OPERATIONS
      Amendment proposed: No. 18, in page 56, line 6, at end insert—
      'but no surveillance is lawful by virtue of this subsection if the officer subsequently seeks to stop and question the person in relation to the relevant crime'.—[Caroline Flint.]
      Amendment proposed to the proposed amendment: (a), in line 2, after 'person', insert 'in the United Kingdom'. [Mr. Heath.]
      Amendment No. 18, as amended, agreed to.

    Schedule 4

      TERRORIST PROPERTY: FREEZING ORDERS
      Amendments made: No. 19, in page 67, line 18, leave out from 'means' to end of line 21 and insert
      'the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22nd July 2003'.
      No. 20, in page 67, line 23, leave out 'a prescribed provision' and insert 'Article 3(2)'.
      No. 21, in page 67, line 34, leave out 'a prescribed document' and insert 'the form of certificate'.
      No. 22, in page 71, line 19, leave out from 'means' to end of line 22 and insert
      'the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European on 22nd July 2003'.
      No. 23, in page 71, line 24, leave out 'a prescribed provision' and insert 'Article 3(2)'.
      No. 24, in page 71, line 35, leave out 'a prescribed document' and insert 'the form of certificate'.
      No. 25, in page 75, line 13, leave out from 'means' to end of line 16 and insert
      'the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22nd July 2003'.
      No. 26, in page 75, line 18, leave out 'a prescribed provision' and insert 'Article 3(2)'.
      No. 27, in page 75, line 29, leave out 'a prescribed document' and insert 'the form of certificate'.—[Caroline Flint.]

    Schedule 5

      MINOR AND CONSEQUENTIAL AMENDMENTS
      Amendments made: No. 28, in page 80, line 17, at end insert—
      'The Criminal Justice Act 1988 (c. 33)
      12A The Criminal Justice Act 1988 as follows.
      12B In section 24 (business etc. ocuments), in subsection (4), for "section 3 of the Criminal Justice (International Cooperation) Act 1990" there is substituted "section 7 of the Crime (International Cooperation) Act 2003".
      12C In section 26 (statements in documents that appear to have been prepared for the purposes of criminal proceedings or investigations), for "section 3 of the Criminal Justice (International Cooperation) Act 1990" there is substituted "section 7 of the Crime (International Cooperation) Act 2003".
      12D In paragraph 6 of Schedule 13 (evidence before courtsmartial etc.)—

      (a) in subparagraph (1)—

      (i) for "section 3 of the Criminal Justice (International Cooperation) Act 1990" there is substituted "section 7 of the Crime (International Cooperation) Act 2003", and

      (ii) for "letters of request or corresponding documents" there is substituted "requests for assistance in obtaining outside the United Kingdom evidence", and

      (b) in subparagraph (4), for "letters of request or corresponding documents" there is substituted "requests for assistance in obtaining evidence".'.

      No. 29, in page 83, line 19, at end insert—
      'The Criminal Justice (Evidence, Etc.) (Northern Ireland)
      Order 1988 (S.L 1988/1847 (N.I. 17))
      33A The Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 is amended as follows.
      33B In Article 4 (business etc, documents), in paragraph (4), for "section 3 of the Criminal Justice (International Cooperation) Act 1990" there is substituted "section 7 of the Crime (International Cooperation) Act 2003".
      33C In Article 6 (statements in documents that appear to have been prepared for the purposes of criminal proceedings or investigation), for "section 3 of the Criminal Justice (International Cooperation) Act 1990" there is substituted "section 7 of the Crime (International Cooperation) Act 2003".'.
      No. 30, in page 87, line 20, at end insert—
      '54A In section 27 (Lord Advocate's direction), in subsection (2), for "section 4(2B) of the Criminal Justice (International Cooperation) Act 1990" there is substituted "section 15(4) of the Crime (International Cooperation) Act 2003".'.—[Caroline Flint.]

    Schedule 6

      REPEALS
      Amendment made: No. 31, in page 90, line 19, column 2, at end insert—
      'In Schedule 4, paragraphs 6(2) and 8.'.—[Caroline Flint.]
      Order for Third Reading read.
      6.56 pm
      Caroline Flint: I beg to move, That the Bill be now read the Third time.
      I should like to thank my hon. Friends and both Opposition parties for their positive and co-operative approach throughout the Bill's passage. Our discussions have helped to improve and clarify the Bill, and I hope that the arguments are now more or less settled.
      My thanks go to all hon. Members who contributed to the debates in Committee. I particularly thank the hon. Members for Surrey Heath (Mr. Hawkins), for South-East Cambridgeshire (Mr. Paice), for Somerton and Frome (Mr. Heath) and for Orkney and Shetland (Mr. Carmichael) for their contributions to the constructive spirit in which the Bill has been debated today. I should also like to thank my hon. Friend the Member for Coventry, North-East (Mr. Ainsworth), from whom I took over responsibility for the Committee after his well-deserved promotion. He made a major contribution to the initial stages of the Bill.
      I also thank my hon. Friends the Members for Plymouth, Devonport (Mr Jamieson) and for Nottingham, East and other Labour colleagues who supported us in Committee, and such as my hon. Friends the Members for Brent, North (Mr. Gardiner), for Wirral, West (Stephen Hesford), for Bolton, South-East (Dr. Iddon), for Liverpool, Walton (Mr. Kilfoyle), for Rugby and Kenilworth (Andy King), for Mitcham and Morden (Siobhain McDonagh), for Alyn and Deeside (Mark Tami) and for St. Helens, South (Mr. Woodward). I thank those Labour colleagues most profoundly, as the Bill is the first measure for which I have been responsible and I am now seeing it through to its Third Reading here today.
      My thanks also go to noble Lords in another place—particularly Lord Filkin—for their excellent work in sending us the Bill in such good shape. I hope that when it returns to them, they will be satisfied with the further changes that we have made.
      The Bill, though technical, marks a significant advance in co-operation against serious crime and terrorism within the EU. International crime affects us all. Reduced border controls and the growth of international trade mean that crime is not confined by national boundaries, so our investigation services also have to work across national boundaries and co-operate with EU states and those outside the EU in the fight against crime. We are already working with our EU partners, but the Bill will enable us to work even more closely and more effectively with them, as well as more widely with our partners outside the EU.
      Part of the Bill will make the changes needed to enable the UK to participate in the Schengen agreement. The Schengen arrangements provide a clear framework for effective co-operation, especially for cross-border police operations. It is some time since we first proposed that the UK should participate in the police and judicial cooperation elements of Schengen. With this Bill in place, we will be able to move forward rapidly to make that proposal a reality.
      The Bill is about fighting crime on an international and European level and is also associated with fighting crime at home. We have a record number of police officers, we are tackling antisocial behaviour, and we are assessing the problems that blight our communities—

      77
      particularly drugs and human trafficking, which recognise no national boundaries. The passing of the Bill will partly help to deal with those problems. There is an onus on us all to ensure that our constituents understand how important this Bill is to fighting crime in Europe and internationally, as well as to fighting it in the neighbourhoods that we represent. I commend the Bill to the House.
      6.59 pm
      Mr. Paice: As the Minister reminded us, the Committee stage of the Bill witnessed—not for the first time, because of the way in which we operate—a change of Minister mid-way through proceedings. I congratulated the Minister at the time on her promotion, and I do so again tonight. She has acquitted herself well as a new Minister and I am grateful for her constructive approach to most of our deliberations, although we still have an element of dissent on one or two areas.
      I echo the Minister's congratulations to the hon. Member for Coventry, North-East (Mr. Ainsworth), who has moved on to a more powerful position—greater may not be the right word—as deputy Chief Whip. The Minister will be conscious of his presence all the time. I also echo her comments about the other members of the Committee, including my hon. Friend the Member for Surrey Heath (Mr. Hawkins), the Liberal Democrat Front Benchers and others who participated in making the Bill's passage through Committee mostly constructive.
      I cannot help but recall that a large part of the Bill is a repetition of the Criminal Justice (International Co-operation) Act 1990. The Minister's predecessor reminded us of that frequently in Committee. We were either told that something had to be in the Bill because it was in the 1990 Act or that things had to be changed because the 1990 Act was not quite right. The Government's arguments in Committee had an element of inconsistency, but that is nothing new.
      The Bill seeks to put into statute the undertakings and commitments given by the Government on Schengen and the mutual legal assistance convention. As the Minister rightly said, it addresses several issues of international crime. Perhaps uniquely for a Bill on crime, it does not create a raft of new offences. Most crime Bills create many new offences, but this Bill is largely not about such creation. It is about improving co-operation on international crime, and the Opposition support such moves. We strongly support the provisions on driving disqualifications, on the mutual provision of evidence and, of course, on the issue of jurisdiction for terrorist offences. The latter is a sensible extension of legislation. As I said earlier, we have some reservations on aspects of investigation of banking transactions and cross-border surveillance.
      I welcome the belated recognition of the validity of our argument on confusion, but I remain concerned about the implications for this country, because it is—as the hon. Member for Somerton and Frome (Mr. Heath) remarked—relatively unusual in Europe in being an island nation, although we do have one land boundary with Ireland. There is a bridge between Denmark and Sweden, which provides a comparison to the channel tunnel. We have reservations about how the legislation
      78
      will work and we will watch carefully. The issues of drugs and people trafficking—an horrendous crime, especially when it involves children, which is worsening all the time require cross-border co-operation, and we will always support the Government on measures to address them, as we have done on the issue of terrorism.
      Our reservations are not substantial. The amendment in the other place that the Government overturned has now been put right and I am grateful for that. We will send the Bill back to the other place with our good wishes. The Opposition will not oppose Third Reading, and I congratulate the Minister on the way in which she has handled the first, but not the only, Bill that she will deal with in her job.
      7.5 pm
      Mr. Heath: Like the proverbial month of March, the Bill came in like a lion and went out like a lamb. There was much huffing and puffing in the early stages of consideration of the Bill's consequences for sovereignty and the state of policing. The careful consideration that the Committee gave the Bill was, however, based not on any false fears about its consequences but on an understanding of the importance of international co-operation in fighting crime effectively, on an understanding of the importance of the provisions on extra-territorial jurisdiction in terrorist crime and on a wish to get the practicalities and the details right.
      The approach that pervaded our consideration was based on that constructive principle. We asked how we could improve the Bill, and the areas that gave cause for concern included the issue of reciprocity and whether it was working effectively; the resources available to give meaning to the provisions, and I still have concerns about effective resourcing of our border control services and will wish to return to that issue; and the structure of our border controls, because too often they are the responsibility of different Departments and could be more effectively applied. The same applies to the National Criminal Intelligence Service, and it is unfortunate that the Schengen information system for the UK is called NSIS, which is pronounced in the same way as NCIS. That could cause great confusion and I wish that somebody had thought of that before developing the acronym.
      Proper concerns were expressed about the integrity of our security systems and they have largely been addressed. Concern was also expressed about the resilience of the information bank, and we are still concerned about the amount of information that is held and whether it is sufficiently robust in its accuracy and about who has access to it. The Bill widens powers of the state that are essentially intrusive, so it is right that we have had repeated arguments about the proportionality of intrusion and the problems that it seeks to remedy, and whether the Bill is couched in terms that are legally appropriate.
      We have made progress. By common consent, we have established a dialogue with the present Minister, whom I congratulate on taking up the reins of the Bill halfway through Committee and seeing it to a successful conclusion, and with her predecessor, the hon. Member for Coventry, North-East, for whom I have great respect. He contributed greatly to our proceedings. I also congratulate the Under-Secretary of State for

      79
      Transport, the hon. Member for Plymouth, Devonport (Mr. Jamieson), about whom I was a little rude earlier, but whom we were happy to welcome to the Committee. I know that I get the hon. Member for Nottingham, East (Mr. Heppell) into terrible trouble by complimenting him on all occasions on the sensible way in which he provides support to our Committees, but it is appreciated and makes for better control of Government business than the alternative approach. I commend him for that. I also commend Conservative Front Benchers and my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), who says that I claim responsibility for all his triumphs, although I cannot ever remember that happening. I am tempted to say that I normally try to dissociate myself from most of what he says, but that would be unfair. My hon. Friend has played a very useful role, and I am grateful to him—especially because, as I said on Second Reading, he has experience of serving these overseas processes. As far as I know, that makes him unique in the House. His level of expertise is therefore unmatched.
      We have been well served by all the staff associated with the Bill. We will send back to the other place a Bill that has been marginally improved. I should have liked it to be improved more, but I recognise that it is nevertheless an extremely valuable Bill and that it will do a lot that is necessary when it comes to providing an effective basis for fighting crime internationally.
      I commend the Bill to the House.
      Question put and agreed to.
      Bill accordingly read the Third time, and passed, with amendments.

    DELEGATED LEGISLATION
    Madam Deputy Speaker (Sylvia Heal): I propose to put together the Questions on the two motions.
    Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

    DELEGATED LEGISLATION
      CONTRACTING OUT
      That the draft Contracting Out (Local Education Authority Functions) (England) (Amendment) Order 2003, which was laid before this House on llth July, be approved.

      INTERNATIONAL IMMUNITIES AND PRIVILEGES
      That the draft Vienna Document 1999 (Privileges and Immunities) Order 2003, which was laid before this House on 3rd July, be approved.—[Ms. Bridget Prentice.]
      Question agreed to.

Inner-City Poverty (Leeds)
Motion made, and Question proposed, That this House do now adjourn.—[Ms Bridget Prentice.]
7.11 pm
Mr. George Mudie: I very much welcome this opportunity to debate the real challenges stemming from inner-city poverty in Leeds. The problem is especially severe in my constituency of Leeds, East, although I am sure that those of my colleagues who are present will present their own experiences to the House if time allows.
I thank Mr. Speaker for allowing me to initiate this debate. I also thank my right hon. Friend the Prime Minister for telling the recent party conference that No. 10 is now in listening mode. Many people hope that that is true, although many are cynical about it. I raise this topic in the belief that my right hon. Friend is prepared to open up debate, especially on domestic policy—as long as sensitive matters such as tuition fees are avoided. I hope that the time is right to raise pertinent questions about inner-city poverty, and about how we are dealing with it.
There is no argument about the problems caused by poverty in the inner city. Leeds is one of the most prosperous English cities, but great poverty and deprivation exist there side by side with wealth and material success. The scale of the deprivation is debatable, but a few statistics will give the House an idea of the size of the disparities that exist between communities.
In Leeds, 25 per cent. of households claim some sort of means-tested council benefits. That figure of one in four rises to 40 per cent. of households in some inner-city wards, and reaches 60 per cent. in smaller neighbourhoods. Although recorded crime is decreasing in Leeds as a whole, the rates vary. The lowest level of domestic burglary is 11 per 1,000 households—I am tempted to think that that is in the constituency of my hon. Friend the Member for Elmet (Colin Burgon)—but that figure rises to more than 126 per 1,000 households. Where someone lives therefore has a very clear effect on the burglary and crime rates they experience.
Death rates from heart disease also vary, rising from a low of 180 deaths per 100,000 people to a high of 320 per 100,000. That gives some idea of the effect of diet and poverty. Similarly, the rate of teenage conception—among girls aged between 15 and 17—is zero in some wards, but rises to 102 per 1,000 in other wards.
Figures show that in some schools, 40 per cent. of school leavers achieve the magic five GCSEs at grades A to C. Some schools achieve an average of 70 per cent., but in some inner-city schools the level is as low as 4 per cent. Unemployment averages 3 per cent. for the city. In some wards, the level is 1 per cent., but in some inner-city wards the rate is as high as 12 per cent. The ethnic groups do even worse, with those in the Afro-Caribbean community suffering an unemployment rate of 24 per cent.
Housing is also very important. I am delighted that the Under-Secretary of State, Office of the Deputy Prime Minister, my hon. Friend the Member for Pontefract and Castleford (Yvette Cooper) is to respond to the debate. Although I would prefer her constituency

81
to be called Castleford and Pontefract, I have the greatest respect for her and I hope that she will communicate to her colleagues the seriousness of some of the housing problems in Leeds. My predecessor was Denis Healey, who noted in one of his books that the Harehills area had the second highest population density in western Europe. I think only Milan has a higher density.
In Harehills, the accommodation consists of back-to-back houses or through-terraced houses, with sloping streets and no gardens. Even so, families have raised generations of children there, despite the lack of open space—there is no full-sized football pitch in the area, for example. The housing is disgraceful and a blot on the city, built the century before last for working men. It has been refurbished time and time again, but kids are still being raised and families are trying to lead normal lives there.
I remember Chris Patten when he was Minister with responsibility for the environment coming to a meeting in my constituency—although he did not come to meet me, I hasten to add. He was so intrigued and shocked by what he saw that he had his driver take him round the area twice. He simply could not believe what it was like, but I suppose that the experience was good training for what he eventually encountered in Hong Kong.
North of my area lie two large council estates that were built on either side of the second world war. They have their good pockets, but they are largely unattractive. They need either to be modernised and refurbished, or demolished and replaced. The scale of the problem is tremendous.
I shall refer to this again, but so far nothing has happened to improve the housing deprivation in Leeds. That deprivation exists alongside the quality housing to be found in areas such as Elmet, where there are houses to die for. The disparity shows how different are the communities that exist in the one city.
I want to mention too the bizarre behaviour of the Office of the Deputy Prime Minister in respect of arm's-length management organisations. The Minister is thoughtful and sensitive, and therefore unlike many of her colleagues. The Department forced ALMOs on Leeds city council. I fought the imposition, and lost, but I was a lone voice, and such things happen. The Department said that ALMOs would bring in money to refurbish housing and resolve all the city's housing problems. The council did as it was told, and broke up its housing department into six ALMOs.
Within six months of being set up, the ALMOs were inspected. Some of the officials in the ALMOs did not know the location of the areas that their bodies covered. They were inspected days or weeks after being appointed, and they were found wanting. In its wisdom, the Department has said that the ALMOs will not be given the money needed for capital spending. As a result, no refurbishment will take place. Is that not wonderful?
None of the local government officers I know will have sleepless nights as a result of that. Some will even say, "So be it, it will save us a lot of work." It is not the ALMOs that are being punished, but the poor tenants who live and raise their families in substandard housing. What is the sense in penalising tenants because of the A LMO? In some circumstances, that might make sense,
82
but to inspect the ALMOs within six months of their establishment and penalise them after some doubtful reports is extremely strange and I should love the Minister to raise the matter with her less sensitive colleagues.
Mr. Colin Challen: As my hon. Friend knows, I disagreed with his view about the creation of the ALMOs, but I agree 100 per cent. on his latter point. As a supporter of the concept, I perhaps wrongly did not anticipate that ALMOs would be inspected so soon after their creation. It was an unrealistic target to expect the ALMOs immediately to perform and gain stars so that they could obtain money. No one voted for them on the basis that they would be cheated—if that is the right word—out of their money owing to a bureaucratic inspection regime that they never understood.
Mr. Mudie: My hon. Friend makes a good point and I am glad that he has now seen wisdom. He gives me an opportunity to discuss something about which there are many stories in Leeds—choice-based letting, which is badly harming ordinary people. So far, despite heavy pressure, my area is the only one to refuse to accept that lunatic system for allocating houses, which is causing real distress in Leeds.
In Leeds—except on my patch—people are not offered a house, they have to bid for one. How can a blind lady on the housing list understand such a system? How can she see houses to make a bid? Last week, I visited the house of a poor lass who suffers so badly from Parkinson's that she cannot get out of her house because the stairs are so difficult. The last time she tried to go downstairs she fell. Yet presumably to get another house she has to get out to see the list. As she was in such a bad physical state, she was simply going to pen a letter.
A woman who visited my surgery had raised her kids in a five-bedroomed house but she now lives there alone and wanted a one-bedroomed flat: impossible under choice-based letting because she did not have priority. In another case, a boy and girl at the sensitive ages of 13 and 11 were sharing a bedroom in a two-bedroomed house, yet there was no priority for overcrowding. The system has been forced on people on the ground: if they do not accept it, they will not get the money. We have set up ALMOs and changed our letting system, adversely affecting already disadvantaged people, yet we still do not get the money.
As the time arrangements are propitious, I shall take this opportunity to raise another housing matter: equity release. I have dreamt of, sponsored, fought, argued and cajoled for an equity release scheme in my constituency. We have vacant land and a builder who specialises in building good houses cheaply. We have engineered a system whereby building societies will give mortgages that relate to rents. It is an honest attempt to move people from rented accommodation to homes of their own at very good rates. They can walk into a three-bedroomed semi that costs just above £50,000. Where could anyone get a new, three-bedroomed semidetached house for about £50,000? Houses like that are worth £70,000 the minute people walk through the door, yet the Department would rather spend £15,000 doing up a council house that nobody much wants than give half that sum as a subsidy to persuade people to move from rented housing.

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On a series of points—welfare benefits, recorded crime, death rates, health, education, employment and housing—we can see disparities and problems.
Colin Burgon: I pay tribute to my hon. Friend's standing in Leeds. He is an outstanding Member of Parliament who is well rooted in the locality. I am lucky enough to know his constituency fairly well as I was born on the Gipton estate and taught for about 16 years on the Seacroft estate. Did not both those estates represent radical solutions to the problems that Leeds faced at the time? What gave them cohesion was common employment in engineering and, especially, tailoring. But given that times have changed, does my hon. Friend not agree that we need radical solutions to give people the type of homes that they want to live in and to make those places attractive? Does he agree that local government should be the agency to deliver that, but that unfortunately, far too often, the Government—our Government have been too critical of local government? Does he agree that they should adopt a far more positive role to enable local government to pursue radical solutions, as it did in the 1930s and 1940s?
Mr. Mudie: That was an excellent contribution; my hon. Friend did not even take a breath. My hon. Friend the Member for Leeds, West (Mr. Battle) is a great admirer of Rev. Jenkinson, who designed and steered through the building of a number of such estates. They were seen as a great thing in the 1930s, because they got people out of the slums of inner-city Leeds. The difficulty is that 70 years have passed, and time and people have moved on. We have to move on, too, with solutions that are relevant to people. I cannot understand the Department wanting to put money into rented housing when for half the sum it could put people into owner occupation, bringing money to constituents of mine who would never have thought that they would receive such an amount of capital. Such a sum would not only offer them support but would give them something to hand on to their families.
The Yorkshire Evening Post, thanks to the social awareness and concern of its excellent editor, Neil Hodgkinson, has been running a serious campaign, entitled "Life in Leeds". I have a copy of the paper and when I have held it up for the camera, I shall pass it to the Minister so that she can see how it approached and understood the issue. The paper stated that its campaign was
"A major YEP investigation into the thousands of lives blighted by fear, crime, violence and poverty."
Especially interesting was the headline, "People A City Forgot". That is how the Yorkshire Evening Post started its campaign on two-speed Leeds: inner-city Leeds, with all its deprivation, side by side with the affluent areas. There are four pages of stories from individual people all over Leeds—not only from my constituency but from those of other hon. Members—whose lives are being blighted by conditions in inner-city Leeds.
Mr. John Battle: I am grateful to my hon. Friend for leading this debate and, to some extent, leading our city in the debate, as he led it when he was leader of the council.
84
The economic question in Leeds is massive. Leeds was not just divided in the past; it is still dividing. Unemployment rates in some pockets are increasing, despite the fact that the overall rate is going down. We still give common assent to a trickle-down theory; if the city as a whole does well, we think that that will infiltrate all the nooks and crannies of unemployment. But unless we radically tackle unemployment and the life chances of the people in those corners, nothing will ever happen: the economy will turn down again and they will be completely left out. To echo the comments of my hon. Friend the Member for Elmet (Mr. Burgon), as well as looking at housing, is it not time to look at radical community economic developments, including local provision of neighbourhood services, and radically to decentralise the provision of goods and services? I do not believe that 25,000 people will be working in call centres in 10 years' time. Voice chips will have replaced those jobs and people currently in low-paid work in our inner cities will be looking for alternative employment.
Mr. Mudie: I totally agree with what my hon. Friend says, and I am glad that he put it in those terms because I am trying to make the point to the Minister that we must deal with inner-city problems urgently. Those problems fall into two categories: first, housing and, secondly, employment and skills—in other words, buildings and people—and unless we deal with them urgently, we will fail and we shall pass the existing inner city on to the next Government, who will have no interest in such things.
If we had the political will, there is no reason why anyone should be unemployed in Leeds. Only 12,000 people in the whole city are registered as looking for work, but the city is supposed to gain 30,000 additional jobs in the next eight years. If we set our minds to it, we could improve training and skills. In fact, discussions are going on with the jobcentre, the Regional Development Agency and the hospital, which has a new cancer block, to find out whether we can start such a training scheme.
It is we who are taking the initiative—not the Government—and we are so hopeful, optimistic and ambitious that we are looking to my hon. Friends' constituencies and to Batley and Bradford because we feel that, if we have the political will, we can not only wipe out unemployment in Leeds, but become an economic engine for the surrounding areas.
Mr. Harold Best: I am grateful to my hon. Friend for bringing this subject before the House. I should like to say something about the elements of poverty that exist in the city of Leeds. It is often not understood that poverty exists in the greener areas. I represent a constituency with some of the greenest and most wonderful, spectacular views, but with some of the most horrendous poverty, especially in housing. People tend to forget that Leeds is a two-river city. My constituency includes the River Wharf—a magnificent river—and some of the houses in that area were built earlier than those that my good friend referred to in his part of Leeds, and those houses are in desperate need of repair and rebuilding. We as a Government ought to be tackling such problems as a major priority, and putting people's needs at the centre of our agenda.
Mr. Mudie: I totally agree with my hon. Friend.
I want to return to the Yorkshire Evening Post campaign, which was praised by the Prime Minister, to whom Neil Hodgkinson presented a collection of the articles and analysis concerning the blighted lives faced by ordinary, decent people in Leeds. I have a copy, which I shall give with pleasure to my hon. Friend the Minister at the end of the debate. The Prime Minister is on record as thanking the YEP for its initiative, and he also conceded that
"there is a mountain to climb."
It is very interesting that, only six months ago, the Prime Minister came to Leeds, after five years of Labour Government, and conceded that there is a mountain to climb. If there is a mountain to climb after five years, I wonder how much time we feel we have left to get to the top of it.
The Prime Minister went on to say:
"There are too many people in the city missing out on the new opportunities and prosperity … and there are too many communities—some within a stone's throw of the thriving city centre—still crippled by multiple and inter-linked problems which remain among the deprived in the country."
Those words from the Prime Minister should set the scene for this debate. The disparities and blighted lives that exist in the inner city are acknowledged by the Head of Government. There is no need to bandy statistics about: the problem is agreed, and the debate is about how we are dealing with it and, above all, about how quickly it will be resolved.
Those are the reasons why I asked for the debate. We have been in government for six years. I acknowledge that various excellent initiatives have been taken—I guarantee that we will hear about them—but, as someone who lives in their constituency and spends all the recess and every weekend there, I have to say that they have only marginally improved the lot of my constituents, and my colleagues can speak for their own patches. Indeed, in preparing for the debate and trying to get the balance right and to be absolutely accurate, I spoke to everyone I met in my surgeries and as I went around the community, and they overwhelmingly think that things are getter worse, not better. After six years, I find that very worrying.
The worrying thing is this. In the same papers, the Prime Minister acknowledges the problem, says that there is a mountain to climb, sees the problem first hand in Lincoln Green, but what does he do? As the booklet shows, the Prime Minister lists all the initiatives and the huge sums that are being spent—I fear that the Minister will do the same thing—but the worst thing that people can do is believe their own publicity. We in politics are always told that, and it is true. We cannot feed the hungry with statistics on national prosperity. We cannot tell a kid that he is well off because we have invested £1 million, or even £100 million. If the kid is hungry, he is hungry regardless of what the Government say they are spending.
I should like the Government to listen. I do not exaggerate. I am talking about my constituency, and my constituents are hurting and their lot is not improving after six years. I thought we had a common objective of getting rid of inner-city poverty, but if we are still so far behind after six years, I wonder whether we should not be considering a change in direction.
Mr. Fabian Hamilton: I congratulate my hon. Friend on initiating the debate. As he says, many parts of Leeds are extremely prosperous and unemployment is very low; indeed, my constituency was recently voted, on a league of altered data, one of the wealthiest in the entire country. But there are pockets of unemployment and deprivation that would match those anywhere in Great Britain or the rest of Europe. I am talking mainly about the Chapeltown area, and antisocial behaviour and crime blight the lives of people there, so I congratulate the Home Secretary and the Prime Minister on today's initiative. The problem involves crime related to crack cocaine, heroin and street gangs that use firearms and the most appalling violence against one another, but innocent victims get in the way. Does my hon. Friend agree that one way in which we can most improve the lives of the very poorest—apart from all the issues such as housing, job opportunities and training that he mentions—would be to ensure that the crackdown on crime really works and that the kind of antisocial behaviour that blights people's lives is removed?
Mr. Mudie: I will certainly spell out later the effect of crime on ordinary people in my constituency, but the problem goes deeper than crime. I remember the Prime Minister once saying, "Tough on crime, tough on the causes of crime," but I wonder whether we are getting the balance wrong. We have enough sticks and we are adding more sticks to the armoury, but I wish there were some carrots. I look at some of the kids on the estates and I cannot defend their behaviour. I attack their behaviour and I want them to be dealt with, but I look at the houses they come from, the peer pressure and the parents' behaviour, and I worry for the kids. I was proud to be a member of a Labour Opposition who made such statements, believed them and wanted to operate those policies. All the rhetoric about sticks and prisons came from the other side. That is part of the solution, but locking up a youngster should be the last recourse. I wish we had a more balanced policy of working with youngsters and offering them alternatives to running with their peers, misbehaving and being put under pressure to do drugs. I would like some balance to be put back in our criminal justice policy.
After six years, with a lack of major physical and financial improvements in the lives of my constituents, we should have the humility to accept that a reappraisal of the strategy is required. If that does not happen, when we eventually leave office, we will leave the inner city much as we found it, and, by our policies, we will have failed to empower the bulk of our poorer constituents. We will therefore have failed to let them share in the general prosperity.
I want to propose two things to the Minister. First, I invite her to visit my constituency, walk the streets, talk to the people and see whether I am exaggerating. Throughout the recess, I have been on the streets knocking on doors—not canvassing but speaking to people to find out whether they have anything to say, what their problems are and whether I can be of any help. Last Sunday morning, I met a lady who was washing her car in her drive. I asked her whether she had any problems. I quote her response:

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"Look at the tyre marks on the road. That's where the lads joyride in stolen cars each night. Over there is the barrier to divide the street. That is where they run the cars onto and then burn them out"—
beside her house. She continued:
"Let me show you the back kitchen window where at 6.30 in the morning when I was getting breakfast before leaving for work a brick came through"—
thrown by people who were going to burgle her house whether she was in or not. She continued:
"This is my car that gets damaged regularly. This is my house I hesitate to leave because I fear coming back to a burgled property."
She went on to tell me that when she comes back with her groceries, she hurries inside the house because she fears that people are watching to see how many groceries she has, and that they will come in the house to get them.
What did I say in response? I know the policies and the script, but we live in a verbal world of promises and policies, whereas that lady lives 24 hours a day in reality, and reality is nasty.
In that one street, I met two pensioners who had lived there all their lives. It was a bit cold, but it was a sunny day, and, looking past them, I saw a beautiful back garden alive with flowers. Looking around, however, I saw shattered windows, damage, graffiti, and rubbish thrown in gardens. What did they say to me? They were bewildered at the violence, the neglect and the number of asylum seekers. In that one street, I have more asylum seekers than my hon. Friend the Member for Elmet has in his whole constituency. What does that do to relationships in that street and in that area? Above all, that lovely pair of pensioners, who have lived in Gipton all their lives, feel the indifference of anybody to their concerns. That is what they are faced with in their advanced years.
With another pensioner and his wife—the Minister will be proud of me—I talked about pension credit and heating under the warm front arrangements. Wonderful stuff, to the script—the Prime Minister would be proud of me. As I went to their door, however, the fellow said casually to me that the doctors had sent him to St. James's to see a consultant about tumours on his bladder. He was sent within two weeks—good for the doctor—but the consultant bizarrely sent him back to the doctor. Does anyone on these Benches see any sense in that? The worrying thing was that he sat with me for 20 minutes having a conversation about pension credit and central heating and did not raise it. He only raised it casually, in conversation, as he was showing me out. That was the level of his expectations—he had not come to complain about it; he accepted it as one of those things. That is the stoicism of pensioners and ordinary, decent people who are being put through such things every day, week and month. That is all in one street.
To take a different case, I met a young lad in his 30s whose wife had left him and who was raising three boys. He had been burgled twice—not only burgled; his house had been trashed. He was not in work and was very poor. He wants work, and the issue that I would raise is this: why on earth would he work when somebody in the street will burgle him if he spends his hard earned wages
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on anything? What does he make of it? He is brokenhearted. He does not know what he will do. He has to deal with poverty, bad housing, insecurity and raising three kids with decency.
Again, that was in just one street. The sad thing is that on each of the Sundays on which I was out, although I was in different parts of the constituency, I heard the same tale. After all this time, that should not be happening. My colleagues and I, after all our years in local government, came here to put an end to that. Six years on, under a Labour Government, people are still living like that.
What can we do? Let us understand that we may be spending enough. On that, I have no quarrel with the Chancellor or the Prime Minister. The Chancellor has put record sums into the spending Departments. What I want to know is whether we are spending it efficiently. Is the money coming through to the areas in need and being spent in the relevant way? I am suspicious of the Government's preoccupation with innovation. Anybody with feet in the community and any history of involvement in politics knows that the previous Government deliberately ran down the public services for 18 years. When we came to office, we did not need innovation. We needed more teachers, more doctors, and more police. Those are mainstream things—they are not glamorous or new, but they are what our constituents want. Youngsters would be taught better if we had more teachers, we would sleep safe in our bed if we had more police, people would be better looked after in hospitals if we had more nurses, and we would be seen more quickly by doctors if we had more of them. Those are all great things, but we are told, "No, it must be new; we must have innovation."
Services and morale have suffered over the past few years. Instead of offering money to anyone and any organisation with a new idea, why was it not just piled into mainstream services? Why do we have to dream up a third way—a different way—of delivering public services? In my view, a lot of people are making a good living out of funds designed to get people out of poverty. We saw it over the years with the Tories, but it has been exacerbated. This week, I received a letter from a black and ethnic education group that has been set up, with a manager, project manager and assistant manager listed on the letterhead, all of them receiving good salaries. I would have preferred three black teachers in schools being good role models and providing an additional pair of hands, but somebody in some Department will have said, "No, this is new, it presses all the buttons, why don't we do it?" That has not helped and will not help any black kids—well, it has helped three, because they have got jobs. My people are still poor, but they are better advised on their poverty than they have ever been.
The Government have lost interest in joined-up government. The rhetoric of our first few years has disappeared, as has the thinking behind it. My hon. Friend the Member for Hemsworth (Jon Trickett) knows that each organisation defends its budget and tends to put its own interests in survival before the customer. Our rhetoric was about coming together, pooling funds and deciding how to deal with a common problem it was good rhetoric in which we believed. However, joined-up government has not happened. Each organisation comes to the table to get its nose in the trough and to ensure that it gets money so that it is secure, while the customer comes way down the list.

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The Government should focus more fiercely. If their objective is to get rid of the inner city and the problems that characterise it, each locality should have a coordinated approach. All spending should be examined and it should be determined whether it helps to achieve success. In Leeds, different departments and agencies do things that cut across objectives and, occasionally, damage achievements. My colleagues will understand why I mention the magic words Education Leeds. We were unable to handle our education service, and following some colonial behaviour by the now Home Secretary, our education system was handed over to a private firm that sees politics and politicians as dirty words. It will not speak or listen to politicians and if it does listen, a behaviour pattern is triggered meaning that it does the exact opposite of what has been asked.
My next point is something I do not joke about. The Government will deny it yet it has hampered their chances of achieving proper co-ordination, effective focusing and accountable joined-up thinking. The Government have a dislike and disdain for local government. Right from the start, they have been determined to avoid using it as a key player. Powers have been given to quangos and organisations that were dreamt up to circumvent local government. I talk from personal experience because although you would not believe this, Madam Deputy Speaker, I spent a brief period as a Minister—it was far too long in No. 10's eyes.
I remember my first conversation with the permanent secretary at a dinner. I was responsible for training and enterprise councils, which were considered obnoxious organisations that spent funds along the lines that I suggested. I said that TECs should get in partnership with local government because, given that local government was responsible for the economic area and that skills training was important, the two should work together. I do not know whether I was more surprised by the permanent secretary's attack on local government when he took me outside and said, "You can't do that. You mustn't do that. That is not on the agenda", or by the fact that he dared to speak to me in such a fashion. I thought it strange that a permanent secretary should lecture a Minister that No. 10 did not like local government and say that I should not dare suggest that local government should take an interest in, and be worked with on, the local economy, because I thought that that was central to getting everything right in a vibrant local authority.
Local government has been treated badly right from the start. All one gets from senior figures in the Government is derision of the ability of local councillors in general and local government as a whole. Perhaps someone should whisper in their ears the general view of the competence of Cabinet Ministers and national Government as a whole. That view might be slightly similar to the general view of local government. We need a bit of humility. The fact that local government has not been used as the co-ordinating force to bring everyone together to achieve joined-up thinking has damaged our move toward dealing with inner-city poverty.
Where does this leave us? I do not expect, or want, even such a sensitive Minister as my hon. Friend to spend any time refuting my suggestions. I recognise that it is immodest impertinence for me to make suggestions
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even to a newly declared "listening Government". I would be delighted if the Minister left those parts of my speech alone, because it is not becoming for a Back Bencher of my standing even to put forward those suggestions. However, I want her to think about the reality of the impact that we have made in six years, because it is a serious matter.
When I was leader of the council, I had a good nursery chairman and we had one of the best nursery building and child care programmes in the country—we were years ahead of even Newcastle, although we have always been ahead of Newcastle. I remember saying to my delightfully hard working colleague, "It's not working." She asked me what I meant. I said, "Well, after two or three years of spending a lot of money"—the objective was to get all youngsters into proper child care or nurseries, if their parents wished—"if we want to make it available to everyone, at the present rate we will not do that in our lifetime." She said, "I can't work any harder." I told her that I was not suggesting that she worked harder but that she stepped back. If that is our objective and the mountain that we are climbing—to use the words of the Prime Minister—yet after six years we are still in the foothills, it would be fine to get the oxygen masks off and take a bit of time to think that in the lifetime of even our optimistic Government, we will not get to the top. That might sound flippant, but there are 200,000 people in the inner city in Leeds—they are pensioners, the lad trying to find work and the lass living in fear in a low-paid job.
I did not come into Parliament or politics to attack poverty on the margins. Neither my colleagues nor I came into politics to make poverty more comfortable. I wanted to eliminate poverty, which is do-able, and certainly do-able in a city such as Leeds, given the jobs that we have. I say to everybody concerned that if after six years we are nowhere near that aim and people are still living in such conditions, we must start to look at ourselves. We must have the humility to say that we owe it to the people out there to reappraise what we are doing, how we do it and how fast we do it. It is no joke to live in poverty, it is no joke to live in fear and it is no joke to raise kids yet realise that they will not get the same chances and standard of living as a kid living in a more prosperous part of Leeds—that is what all the figures add up to.
In this new listening Government, I hope that there will be some humility and that we will reappraise what we are doing. If we fail, the people whom we represent and those who look to us as the last hope will never forgive us. When Cabinet Ministers and the Prime Minister look back on our unprecedented majority and power, they must consider the timidity with which we have approached the problem. The Minister might say that we have a lot of policies and that we are not timid, but we are not successful. Too many people are hurting. It would be the greatest crime to have such a majority, such power and such time only to leave office and hand over power at some time in the middle of the century to what will presumably be a right-wing Conservative Government who will have no interest in ordinary people. If that happens, we will have failed not only this generation of ordinary people but also future generations.
7.59 pm
The Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister (Yvette Cooper): I congratulate my hon. Friend the Member for Leeds, East (Mr. Mudie) on choosing to raise the important issue of inner-city poverty in Leeds and on his passionate remarks about his constituency and the lives of the people who live there. He has worked hard for many years to address the problem of poverty. I share his concerns about inner-city poverty and join him in commending the Yorkshire Evening Post for its campaign on the issue. Too often, poverty and inequality are invisible to the majority of people. It is a tribute to a campaigning regional newspaper that it has managed to highlight an issue that newspapers do not always cover. They often do not prioritise poverty and action that tackles inequalities.
I take my hon. Friend's points seriously. I disagree that no progress has been made important progress has been made on a range of issues. However, I agree that there is more to do. Interestingly, our progress on some things has created new challenges in others. Some of the Government's measures to address poverty are universal; they affect constituents across the country. The family income of the worst-off has increased considerably with the introduction of tax credits, increases in child benefit and the overall substantial increases in support for both those in low-paid work, so that work pays, and those without work. As a result, the number of children in relative income poverty fell from 34 per cent. in 1999–97 to 30 per cent. in 2001–02, which is before the most recent increases. The absolute low income fell from 34 per cent. to 20 per cent. That is a result of the Government's policy changes and can mean a difference of hundreds of pounds a month in the pockets of low-income families who would not have received that money under the Tory Government. Those changes have only been possible because of a Labour Government and their commitment to tackling child poverty.
There is still a long way to go, however. The Chancellor is right to establish a review on how to meet the ambitious target of abolishing child poverty over a 20-year period. No such target has been set by a Government before. The truth is that we cannot achieve that target in six years. I feel passionately about child poverty and will argue continually for more to be done to address the terrible problems that cause it. Equally, however, it is not possible to abolish child poverty in six years. We must recognise that even a 20-year target is ambitious. The issues cut across generations as they pass from one generation to another. We know that people who grow up in poverty are more likely to live in poverty later on.
The debate is not just about income. My hon. Friend gave an eloquent account of the lives that his constituents lead. He mentioned housing on estates, the services that people receive, the opportunities they have and their sense of community, including whether they feel safe on the streets. We need to recognise that Leeds faces huge challenges. It is a city of great contrasts and inequalities. In many ways, Leeds is an amazing city. It is a powerhouse for economic growth in the region. My constituency is benefiting substantially from being close to Leeds and its economic growth. Considerable
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regeneration is taking place. It is clear when one drives through the centre that the skyline is crammed with cranes, such is the building and investment in the city.
Some areas are not sharing in the growth, however. Some communities are not keeping up and individuals feel shut out of the growth that is taking place elsewhere, and that problem creates substantial challenges. The Government's approach has been to prioritise regeneration in the most deprived wards in the country. We have argued that we need full employment in every region. We need to promote job growth so that everyone shares in the prosperity generated by the economic growth and the growth in jobs of the past few years. The challenge is how to ensure that every ward shares in that prosperity.
Three wards in my hon. Friend's constituency—Burmantofts, Harehills and Seacroft—fall within the 10 per cent. of the most deprived wards in the country. I understand that Leeds city council estimates that the claimant count in those wards varies from 5.3 per cent. in Seacroft to 6.4 per cent. in Harehills. That is higher than the national average but it is considerably lower than it was 10 or 20 years ago. My constituency has experienced substantial employment growth relative to the terrible experiences of the high unemployment of the 1980s and early 1990s. The number of people in the claimant count has dropped substantially since 1997. In the seven most deprived wards in Leeds, it has dropped by 39.3 per cent. The number of people in work is welcome progress. However, the claimant count has fallen faster in other Leeds wards and Leeds as a whole has experienced a 41 per cent. drop over the same period. My hon. Friend is right that economic growth in Leeds is likely to be sustained for the coming period and employment growth will probably follow.
My hon. Friend is also right that we must address the obstacles that people in some communities face in getting jobs that are, perhaps, just down the road. As a result of the new deal, we have made progress on child care and training, but we need to go further. The social exclusion unit is carrying out a detailed analysis on jobs and enterprise. It is considering the jobs gap between different areas and what we need to do to tackle the obstacles that some areas face so that we achieve full employment in every region.
My hon. Friend the Member for Elmet (Colin Burgon) mentioned the close relationship between housing and the economy, in particular the work and jobs that are available at different times of housing development. The relationship between housing and the economy is important. It is the case in some parts of the country, although I cannot say whether this is true of the estates mentioned by my hon. Friends, that there are complex consequences if economic regeneration is not accompanied by rapid change in the housing market to address the problem of housing stock built for previous generations. Some people who get jobs move out of their estates and the position of those left behind becomes even more difficult. That can result in a complete housing market collapse in those areas. For that reason, we are introducing housing market renewal pathfinders in areas with the most severe problems to tackle low demand, and we are making substantial investment.

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The West Yorkshire Partnership is developing proposals for the regional housing board to fund areas such as Beeston and Harehills. I am worried about some of the housing-related issues that have been mentioned and would be happy to discuss those further. I would, of course, be happy to visit the constituency of my hon. Friend the Member for Leeds, East as well. My right hon. Friend the Minister for Housing and Planning is aware of the issues concerning the Leeds ALMO. Officials are considering that and discussions are under way.
Mr. Battle: We have a problem if the housing policy is to support housing associations. Their rents are structured in such a way that the only people who can afford to live in them are people who are on benefits for ever. People in that accommodation will never be able to get a job, even if we train them, or they will have to move out of the neighbourhood. We must crack that conundrum.
Yvette Cooper: Clearly, such a situation is not the intention of the programme. We are linking programmes around housing policy and economic regeneration more closely than ever before. It has often been the failing of previous programmes that they focused on issues of economic regeneration and jobs, or on housing renewal and improving the physical infrastructure of housing. We must link the two together. That is what the housing market renewal programme is all about. For constituency reasons, I know that that approach is being picked up in west Yorkshire as well. I will be happy to discuss further with my hon. Friend issues related to that.
My other hon. Friends raised various aspects of the matter. Many issues associated with housing would benefit from further discussion with hon. Members, and I know that Members representing Leeds constituencies who are present in the Chamber share these concerns.
Considerable programmes for economic regeneration are under way. Harehills, Burmantofts, Seacroft and Halton are all included in the neighbourhood renewal programme and should be benefiting from the investment of neighbourhood renewal funds, which in 2001–02 were £4.2 million and in 2003–04 were £8.4 Million. Over a five-year period there has been a £35 million programme of investment, which is funding, for example, neighbourhood wardens in Harehills, Burmantofts and Seacroft wards.
I am advised that the wardens are working hard to tackle antisocial behaviour, and I would be concerned if my hon. Friend the Member for Leeds, East thought that they were not making the difference that others believe they are making in other parts of the country. Again, I would happily talk to him further about that, as I know that the neighbourhood warden programmes have been greeted by many communities as a substantial improvement in tackling antisocial behaviour, addressing concerns such as abandoned cars and graffiti, and strengthening people's sense of community.
My hon. Friend referred to issues around the St. James's partnership and the work that the primary care trust is doing as part of the Harehills neighbourhood renewal scheme. The role of local authorities is vital. My hon. Friend suggested that we were not supportive of
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local government's role, but my right hon. Friend the Deputy Prime Minister has championed the role of local government in regeneration, particularly in respect of economic issues, which can be so fundamental, and he is supporting greater powers and freedoms for local government. It is an area where we need to go further, and that is happening.
My personal view is that the programme that is doing most to tackle inner-city poverty and inequality is sure start. As I recall, I visited the sure start programme in my hon. Friend's constituency some years ago. It is a hugely important programme because it addresses inter-generational inequalities. Because it provides support right at the beginning of a family's life and supports them through the years, it is the most radical programme that we have for addressing child poverty. Again, from memory, the work of the sure start programme there seemed to be extremely popular and successful. I would be concerned if my hon. Friend thought differently, and I should like to discuss the matter further with him.
The Government have had an important impact on poverty and inequality. In my constituency I have seen jobs created on derelict pit sites. I have seen the number of families who are applauding the children's tax credit. I have seen the progress of programmes such as sure start and the new deal for communities, the partnerships that are being built and the substantial investment in mainstream services, reflected in the extra doctors, nurses and teachers whom my hon. Friend mentioned.
We have a long way to go, and we must address the inequalities that exist within such short distances as the centre of Leeds. Such inequalities in health, education and opportunity within a single city, as my hon. Friend described, are morally unacceptable in the modern world. The social exclusion unit is examining the progress that we have made so far and the problems that remain.
As my hon. Friend knows, I wrote to him and many of his colleagues a month or so ago about the work of the social exclusion unit. It is conducting a substantial analysis and hopes to have preliminary findings by the beginning of the new year. As part of that work, I am keen to have the views of hon. Members, particularly those living in low-income areas, and I would be happy to meet Members representing Leeds constituencies to discuss in more detail their views about social exclusion issues in Leeds and what should be fed into the work of the social exclusion unit.
We have made considerable progress, but we have much still to do. We still have far to go before we sleep. We will make more progress and sustain the commitment to substantial investment in the lowest-income areas of the country through the neighbourhood renewal fund and the new deal for communities only if we can also allay people's concern about the injustices that remain, and if we can prove that such programmes are making a difference and changing people's lives. I believe that they are changing people's lives substantially, but we must demonstrate that and maintain the argument that politics can make a difference and is doing so.

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We will fail if we do not recognise the scale of the problem, and if we succumb to cynicism. We will fail, too, if we believe that we can solve the problems too quickly and if we raise people's expectations that some of the problems are easy to solve, and then let people become disillusioned. We need to keep the work going
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and our eyes on the prize. If we believe that it is right to invest in regeneration and tackling poverty, we must keep arguing for it. I believe that that is the right thing to do, and I know that my hon. Friends representing Leeds constituencies think so as well.
Question put and agreed to.
Adjourned accordingly at sixteen minutes past Eight o'clock.

Preamble
MR. EDWARD O'HARA[MR. EDWARD O'HARA in the Chair]

Smoking (Public Places)
Motion made, and Question proposed, That the sitting be now adjourned.—[Miss Melanie Johnson.]
9.30 am
Linda Perham: I am delighted to have secured the debate on smoking in public places, a subject about which I and many Members in both Houses care passionately.
I pay tribute at the outset to the many parliamentary colleagues who over the years have campaigned, asked questions, introduced Bills and generally badgered the Government on the matter. In particular, the Under-Secretary of State for International Development, my hon. Friend the Member for Harrow, West (Mr. Thomas), introduced the Smoking (Restaurants) Bill on 14 April and my hon. Friend the Member for North-West Leicestershire (David Taylor), who chairs the all-party group on smoking and health, introduced the Protection from Smoking (Employees and Young Persons) Bill on 24 April 2001.
I thank Action on Smoking and Health, the British Heart Foundation, the British Medical Association, the Cancer Campaigning Group, the Consumers Association and Smoke Free London for their help and information on the subject and two taxi organisations, the Joint Radio Taxi Association and the Licensed Taxi Drivers Association, for campaigning to allow licensed taxi drivers to designate their cabs non-smoking. Many taxi drivers—sometimes it appears all of them—live in my constituency, and I am well aware of how strong their feelings are on the issue. Unfortunately, it was not addressed in the Greater London Authority Act 1999, despite the backing of a majority of London Members of Parliament. Since then, the Greater London Assembly has held an inquiry into the subject and recommended that the appropriate legislation is changed, so that London taxi drivers have the right to work without the threat of smoke fumes.
Will the Minister and, perhaps, colleagues from other Departments make a commitment to review the report led by my colleague Jennette Arnold in the Greater London Assembly to see whether taxis can be brought into line with other forms of public transport, on which smoking is banned?
I have personal reasons for feeling strongly about the issue. I was a victim of childhood asthma and grew up in the 1950s, when my parents and almost everyone else, including people who came to the house, smoked. My condition was made worse by the culture that started with 1930s films, which I believe is what made my parents take up the habit at the age of 14. My parents are now well into their 80s—having given up smoking some years ago, they are, I am glad to say, still going strong.
When I was a child, smoking was allowed on public transport, in workplaces, places of entertainment, restaurants and bars. Now, smoking is banned on most
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public transport, except, as I said, in taxis, and in cinemas and theatres. We are making progress on having smoke-free areas in the workplace and other public places.
Mr. Barry Sheerman: My hon. Friend makes an important point. She, like me, is a campaigner on the issue. Does she find it frustrating that Great North Eastern Railway is introducing a new train design in the coming months that will keep the smoking facilities? That means that the whole train, which travels at 140 mph, is really a smoking train. Does not she find it odd that smoking can be banned on planes, trains and buses, but railway stations and airports are still full of smoke?
Linda Perham:My hon. Friend makes some good points. I pay tribute to his campaigning on this issue and I will mention a contribution that he has made later. There is a problem with trains. Buses, the underground and aircraft are smoke free. I remember the time before there were designated smoking areas when people could smoke on public transport. As he said, stations are also areas where people can smoke and we should deal with that problem. We are making progress, but not enough and not quickly enough to put an end to the thousands of preventable premature deaths and the contraction and exacerbation of thousands more serious illnesses affected by tobacco smoke.
"Smoking kills". That is what it says on cigarette packets. That is what smoking does to a staggering 120,000 people a year in the UK—one in five of all deaths. That costs the NHS £1.7 billion and is a personal cost not just to those who lose their lives, but to their families and friends. According to "Towards smoke-free public places", an excellent report published by the British Medical Association last November, tobacco smoke is a potent cock tail of more than 4,000 chemicals, more than 50 of which cause cancer. Second-hand smoke is now the only proven human carcinogen that is unregulated in the workplace. About 85 per cent. of second-hand smoke is invisible and odourless and is not filtered by conventional ventilation systems.
Second-hand smoke causes at least 1,000 deaths each year and presents particular difficulties to the 8 million people with lung disease, the 2.1 million with angina, the 1.3 million who have had a heart attack, the 300,000 who have had a stroke, the 750,000 pregnant women and the 5.1 million asthmatics, 1.4 million of whom are children. Returning to my own experiences, I remember a photograph taken when I was about 12. It shows me with my shoulders practically level with my ears as I fought for breath. That is partly why I feel so strongly about this issue.
Second-hand smoke puts children at increased risk not only of asthma but of lower respiratory tract illnesses, middle ear infections, sudden infant death syndrome and lower birth weight. It is also connected to reducing children's lung capacity and exercise tolerance at a time when we need to get children to exercise more because of increasing concerns about the health risks of obesity. Indeed, describing children's vulnerability to second-hand smoke, the chief medical officer's annual report 2002 states:

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"Children's lungs are smaller and their immune systems less developed…Children are smaller and breathe faster than adults and so take in more harmful chemicals per kg of weight than adults. Small children often have less choice than adults to leave a smoke-filled room."
As for young people taking up smoking, Action on Addiction estimates that around 450 children a day—more than ever before—are embarking on the slippery slope to smoking slavery.
I come now to smoking in the workplace.
Mr. Sheerman:Before my hon. Friend moves on from children, could I pick up on one point? As Chairman of the Education and Skills Committee I have become aware of the psychological damage done to children. They are constantly told at school and on the news media about the dangers of smoking and how it will kill them and give them cancer. They go home to a smoke-filled environment and see their parents smoking. They worry that their parents will die as a result. That is a serious trauma for children.
Linda Perham:I thank my hon. Friend for making that point, which he brings from his experience of chairing the Select Committee.
In the UK, 3 million workers are regularly exposed to second-hand smoke in the workplace. Less than half of workers are employed in smoke-free workplaces. I pay tribute to my hon. Friend the Member for Huddersfield (Mr. Sheerman) for securing a debate on employee health on 11 March—the eve of national no-smoking day. I had hoped to secure the debate on national no-smoking day itself, but he was fortunate to secure it on its eve. He was supported by interventions from my right hon. Friend the Member for Rother Valley (Mr. Barron)—another tireless campaigner on the matter—and my hon. Friend the Member for North-West Leicestershire, and he made a powerful case for more action to protect workers.
The all-party group on smoking and health met in April, on the eve of a conference on passive smoking in the workplace called, "Don't Choke on the Smoke". That conference was supported by ASH, the Trades Union Congress and the Chartered Institute of Environmental Health. We were told that it could be calculated that, in the UK, passive smoking causes the annual deaths of more than 900 office workers, 165 bar workers and 145 manufacturing workers. In the last category, three times as many people are estimated to die from passive smoking than all other work-related deaths. Seventeen per cent. of bar workers are estimated to die from passive smoking at current exposure levels. Deaths caused by second-hand smoke among office workers add an estimated 9 per cent. to the total occupational mortality rate.
A paper published in the British Medical Journal in July 2002 entitled, "Effect of smoke-free workplaces on smoking behaviour: systematic review", found:
"Totally smoke-free workplaces are associated with reductions in prevalence of smoking of 3.8 per cent.",
and
"3.1…fewer cigarettes smoked per day".
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It continued:
"If all workplaces became smoke-free, consumption per capita in the entire population would drop by…7.6 per cent. in the United Kingdom".
It concluded:
"Smoke-free workplaces not only protect non-smokers from the dangers of passive smoking, they also encourage smokers to quit or to reduce consumption."
Employers bear the costs of workers' smoking, including higher maintenance and cleaning costs, increased risk of fire damage and increased fire insurance premiums. The economic and health costs of passive smoking at work include increased absenteeism due to illness and decreased productivity, and 86 per cent. of the public are in favour of smoking restrictions in the workplace, banks and other public places.
Although the hospitality industry fears that smoking-free workplaces would be expensive, evidence shows that smoking bans do not result in decreased profits. A detailed summary of studies assessing the impact of smoking restrictions on the hospitality industry is regularly updated by the VicHealth Centre for Tobacco Control in Australia. It finds no negative effects on business.
I concede that efforts have been made recently to curb smoking in the workplace, including designating whole buildings or areas as non-smoking. The Department of Health became smoke free only on 1 April 2003 and, unfortunately, the opportunity was lost to introduce a total non-smoking policy in our new building, Portcullis House. I was one of three Labour Members on the Accommodation and Works Committee to vote for that in 2000. Unfortunately we were defeated by the narrowest of margins. That was a great pity. A message could have been sent to the country at large that the new parliamentary building would be smoke free, but we did not take that chance.
Mr. Sheerman:Will my hon. Friend confirm that those of us with offices in Portcullis House were never consulted on that decision? As I understand it—I would like us to nail this one if we can—there was a meeting at which a no-smoking policy was approved, but the meeting was then reorganised, new people attended and the decision was reversed.
Linda Perham:I can speak only from experience on the Committee of which I was a member. It was argued that hon. Members could not be prevented from smoking in their own offices and therefore we could not enforce a total ban. However, there are total bans in other places and I think that, with a brand-new showpiece building, the chance should have been taken to make people aware that we are serious about the message that smoking should not be acceptable in public places.
Mr. Sheerman:We were not consulted.
Linda Perham:I think that that was probably the case. I do not remember my Committee going to every hon. Member on this issue. I can really remember only the discussions that we had in Committee, but the situation is extremely disappointing.

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Some restaurants and pubs are introducing smoke-free areas or banning smoking completely. Pizza Hut did so recently. I shall mention some restaurants and pubs in my local area that are taking a lead. An Italian restaurant in Gants Hill called Don Pietro's has a completely separate non-smoking area, which is extremely popular. I spoke to the owner and manager last week to congratulate them on their initiative and to say that I would mention them in the debate. The JD Wetherspoon chain operates a public house in Barkingside called the Fairlop Oak. I do not agree with the views of its chairman, Tim Martin, on the euro, but I applaud his initiative to provide non-smoking areas in his pubs.
Our local health services have done a great deal towards attacking the problem of smoking. There is a smoking cessation service, with which my parliamentary assistant has been involved, with some success. A scheme was set up in May 2002 to help pregnant women to give up smoking. Each year in my London borough of Redbridge, 960 babies are born to women smokers. There are 40 community advisers across the boroughs of Redbridge and Waltham Forest. In April this year, the "Together" initiative was the first of its kind designed to support smokers at key stages in the giving up process.
Two years ago, Smoke Free London's British Market Research Bureau social research led a spokesperson from the then health authority in my area to say:
"Cancer is the 2nd biggest killer in this area. Banning smoking in public buildings would help reduce this figure".
Research shows that three quarters of residents in Redbridge and Waltham Forest want mainly smoke-free pubs. More than 96 per cent. want smoking restrictions in restaurants and cafés. Another figure from this local survey is that 90 per cent. would agree with a move towards a complete ban in hospitals. The figures are 76 per cent. for sports and leisure centres and 68 per cent. for shopping centres. Furthermore, 95 per cent. agreed that taxi and minicab drivers should have the right to a smoke-free environment.
Voluntary measures are not enough. An increasing number of other countries are forging ahead of the UK in their determination to protect the public from the dangers of environmental tobacco smoke. Closest to home, Ireland will ban smoking in all workplaces from 1 January 2004. Legislation for smoke-free places has been successfully introduced, or is about to be introduced, in Australia, Canada, Italy, the Netherlands, Finland, Norway, South Africa, Hong Kong, Romania and Kashmir, and in more than 100 cities in the United States.
Last year, my daughter was in San Francisco as part of her American studies degree, and my husband and I went out to visit her. It was a delight to know that we could go out for the evening in San Francisco and find a restaurant in which no one would be blowing smoke over us during the meal. It made me think how nice it would be if that were the case in the UK.
In July, the European Union Health Commissioner, David Byrne, proposed a ban on workplace smoking, referring to the fact that more than 500,000 EU citizens die of tobacco-related diseases each year. The Welsh Assembly passed a motion on 22 January in favour of the principle of legal restrictions to control exposure to tobacco smoke in indoor public places.
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What should the Government do? In one of its calls for action in 2003, the Cancer Campaigning Group, which consists of 20 national cancer charities, calls on the Government to introduce effective legislation to create smoke-free public places. In the UK, no single piece of legislation pi-Meets against passive smoking in public places or the workplace. Governments have sought to control exposure to second-hand smoke through a series of voluntary measures. However, current UK health and safety law offers no explicit protection from the health effects of second-hand smoke.
Five long years ago, in the 1998 White Paper entitled "Smoking Kills", the Government recognised that hundreds of people die every year in the UK as a result of high levels of exposure to passive smoke. They also recognised that smoke-free areas offer the best protection and agreed that completely smoke-free places were the ideal.
However, the White Paper did not advocate an outright ban on smoking in public places, but focused on making progress through voluntary measures. Those measures included the tobacco education programme, which was launched in December 1999, and support for helping smokers to quit and to prevent children, in particular, from starting. More recently, funding has been provided for raising awareness of the dangers of second-hand smoke, working with Cancer Research UK and the British Heart Foundation. The British Medical Association proposes a new tax on all tobacco company profits to fund public awareness campaigns on the health risks of passive smoking.
The White Paper proposed two initiatives: the public places charter for clean air, aimed at the hospitality trade, and the introduction of an approved code of practice on smoking in the workplace. The public places charter was introduced in March 2000, and is a voluntary agreement between the Department of Health and the licensed hospitality industry. However, since its introduction, the proportion of smoke-free premises has increased only from 1 to 2 per cent.
The approved code of practice would provide legal guidance to employers on the steps that they should take to comply with their duties under the Health and Safety at Work, etc. Act 1974, which is the principal legislation that covers smoking in the workplace. The code would have a special status under the law—it would not be an offence not to comply with the code, but a code could be introduced as evidence in a prosecution. Compliance with the code would offer some legal protection to employers against claims that they had failed to protect employees from passive smoking.
Considerable effort was put into drafting the code. Yet, despite the Government consultation on it having been completed in 1999 and the Health and Safety Commission recommending its adoption after a further consultation in spring 2000, it has yet to receive final approval, in the face of continuing pressure from Members of both Houses. The code falls far short of legislation to ban smoking in public places, but it goes some way to protecting public health. I call on the Government to publish the approved code of practice

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together with the regulatory impact assessment produced at the time, which I understand provides the economic background for implementing such a code.
Mr. Sheerman:Many of us are worried not only that the code has taken so long hut that international experience shows that voluntary agreements and codes do not work. From 1997, this Government have been timid, timid, timid on this issue—that has been their watchword. When does my hon. Friend think that they will take action to protect people in public places and workers in their workplace?
Linda Perham:That is why I mentioned the initiatives hat have been taken in other countries. I carefully read the report of my hon. Friend's debate from March in preparing for today, and, like now, he did not mince his words in calling for the Government to implement the code, as many Members of both Houses have done in the three and a half years that the process has taken. That is partly why I wanted today's debate—to move the agenda along.
We want to see the code in place. I was involved in campaigning on age discrimination, the result of which was the introduction of a code on age diversity. However, as we know, the problem with voluntary codes is that some people and organisations always say, "Well, it's only voluntary, so I don't have to do anything." The worst must be brought up to the level of the best. Once such a code is in place, if sufficient progress is not made I hope that the Government will consider legislation.
As well as record investment in our health services, the Government have achieved a great deal to promote public health issues, including banning tobacco advertising last year and establishing the first ever post of Minister responsible for public health—my hon. Friend the Minister has recently been appointed to that post. I urge her and her Government colleagues not to drag their feet in working towards enabling the people of this country to live, work and enjoy themselves without suffering the scourge of smoke in public places.
9.58 am
Mrs. Patsy Calton: I congratulate the hon. Member for Ilford, North (Linda Perham) on securing what both the Liberal Democrat party and I consider a very important Adjournment debate. I congratulate her on the quality, number and range of arguments, because the debate is worthy of wide dissemination. I hope that it will not be disregarded because it is the first Adjournment debate after the recess although so few Members have turned up for it. Far more would have turned up had they been aware well in advance that it was going to take place. Even yesterday, notice was given only on a separate sheet rather than on the advance warning blue papers. It is a pity that more Members are not present.
We are in a transition stage in dealing with smoking as a public health issue and people's perception of it. Smokers and the public at large are finding that their attitudes are changing, and slowly—perhaps much too slowly—subjecting others to smoke is becoming as
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unacceptable as drinking and driving. Successive Governments have managed to produce a change in the attitudes, particularly of young people, towards drinking and driving. The same job needs to be done with smoking in public places and elsewhere. I hasten to add that I am not arguing that legislation is unnecessary, and I shall come to that in a minute.
There is now no doubt that smoking kills. Smoking is linked with a range of cancers besides lung cancer. There is no doubt too that passive smoking kills and worsens a range of illnesses and conditions such as asthma and heart disease. There is no doubt that giving up smoking is the single most important thing that any individual can do to improve not only their quality of life but their life chances after doing so. Furthermore, smoke makes people's eyes smart, offends the olfactory organ and destroys quality of life. Providing information about the likely disbenefits, such as low birth weight, is accepted practice with pregnant mothers, and was 20-odd years ago when I was pregnant for the first time. I gave up at the time, as I had smoked for 10 years. Giving up was so difficult that I determined that I would never smoke again; I have not and will not do so. That is why I have a view about why people fight so hard to maintain their ability to smoke whenever and wherever they wish: quite simply, they are addicted, as I was, and are under the influence of a drug that is very difficult to be rid of. That is not true of everybody—some people give up more easily than others—but large numbers of people find it very difficult. I suspect that some of our colleagues are among them.
It is now standard practice that pregnant mothers, and mothers and fathers of young children, are given information that makes it clear that their children may well suffer if they are exposed to cigarette smoke, either in the womb or by being in the presence of smoking. I do not think that we can accept that such information should be available yet not take steps to ensure that children are not exposed. If we know that children are at risk, we should ensure that that risk is lessened in every situation that we can. Low birth weight—one of the factors associated with pregnant women smoking—is also a risk factor for lower achievement at school. Children are being put at risk for the whole of their lives because their mothers smoke. Everything that can be done to encourage people to give up smoking and not to expose themselves to passive smoking should be done to improve both public health and children's individual life chances and quality of life from the word go.
Mr. Sheerman:The hon. Lady is making some extremely good points and speaks compassionately. Does she agree that those of us who hate smoking and campaign on smoking too often come over as do-gooders who know best, and who hector and lecture people? Those who are addicted to tobacco have a severe form of addiction and sometimes that is the wrong approach to the problem.
Mrs. Calton:I agree that reformed smokers are often regarded as public enemy No. 1. As the hon. Gentleman says, we are regarded as do-gooders. I prefer to think of smokers as victims and when I listen to people who, for whatever reason, began smoking and then found it extremely difficult to give up, I think in terms of the drug speaking rather than themselves. It is best to regard

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people who put up such a fight for their right to pollute the atmosphere as victims of a very addictive substance that is extremely difficult for them to get away from.
Case law—Stockport had a famous case a few years ago—indicates that employers are liable if they fail to take action to reduce the risk of workers developing illnesses because of exposure to smoke. Those cases are rarely brought to court because they are expensive and extremely difficult to prove. The code of practice, as we heard from the hon. Member for Ilford, North, has taken a long time to implement, and it is time for it to be finally approved.
The code of practice should be approved for the workplace not only outside the House but inside it. Hon. Members should be consulted. Early-day motion 866 provided a form of consultation and won considerable support from Members, but it is important that they are given the opportunity to make their views clear. Hon. Members should be able to take a lead in designating smoke-free areas and environments.
Many workers are not adequately protected from smoking in enclosed spaces and—this has been mentioned—the public have little or no protection apart from smoke-free areas, which are often next to and influenced by smokers' areas.
I applaud Virgin trains, although few people will hear its users do so. Its timekeeping has improved quite a lot in the past few years and it insists on a smoke-free environment. Like several north-west MPs, I travel up and down on its trains most weeks, and now that smoking is not allowed anywhere on its trains the environment is much improved. I applaud it for banning smoking and for reminding people that they should not smoke on its trains. The issue affects not only those of us with chest infections; the journey is more pleasant and the carriages are not nearly as dirty as they were when smoking was allowed. That is another important issue.
The Liberal Democrats are developing policy in that area. I was interested to hear the hon. Member for Ilford, North tell us about taxi drivers. In fact, the Liberal Democrats used to have only one policy on smoking. At one party conference—I cannot remember which—we decided to ban smoking in taxis. I hasten to add—before anyone else says anything—that that may have been at the time when the whole parliamentary party could have fitted into one taxi, but we live in happier times and we certainly could not all fit into one now.
Liberal Democrats have a health policy paper out for consultation. Smoking is in the prevention of poor health section and we are looking for comments on it. When the paper goes before the party at its conference next spring, we will have extensive, possibly heated, debate about whether it is liberal to ban smoking in enclosed public spaces. No doubt some organisations would support a heated debate given that they believe that they would lose business. As the hon. Lady said, however, the evidence does not support that argument; it supports the argument that making an environment smoke free does not reduce business.
Clearly, in these circumstances I cannot say what our party will do when it makes its decision at conference. I have made my position absolutely clear. I would welcome a ban in enclosed public spaces. That is my
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position, until we have party policy on the matter. I will try to influence the outcomes, but one can never tell about such things.
A number of countries, and states and cities in the United States, have already introduced legislation to ban smoking in restaurants, cafés and bars without, as I understand it, any particular ill effects. Such bans probably contribute to smokers being put in an environment in which it is less and less acceptable to smoke, and must make it easier for them to give up.
Personally, I would ban smoking from all enclosed public spaces, but, as has regularly been pointed out to me, there is no one as sanctimonious as a reformed smoker. I do not believe that people who are addicted to a drug with lethal side effects should be allowed to determine the quality of the environment
10.10 am
Chris Grayling: I, too, congratulate the hon. Member for Ilford, North (Linda Perham) on having secured the debate and kicked off our return this autumn. I am sure that this debate should be thought about in terms of quality, not quantity. This is a valuable opportunity to discuss what I have no doubt will be one of the most important areas of public health debate in the months and years ahead, whatever one's perspective may be.
We have also heard from the hon. Member for Huddersfield (Mr. Sheerman), who has carried out extensive work on the matter through his Select Committee role, and from the hon. Member for Cheadle (Mrs. Calton). I do not doubt that she speaks with great sincerity, although I am not entirely certain how the Liberal Democrat spokesman can avoid speaking for her party in a debate such as this. I await the results of her conclusions with interest.
Mrs. Calton:May I help the hon. Gentleman? It may seem strange, but, in our party, policy is made and confirmed by the party and not by spokespeople. In the absence of written policy, the party will make a decision. Perhaps that is not so in all parties.
Chris Grayling:We shall wait with interest to see what comes out of that exercise, but I want to be slightly more clear-cut this morning.
I shall start by setting out some principles that underlie my contribution. I have a lot of sympathy with the sentiments that have been set out this morning. Smoking is a fundamental health issue in our society. In an ideal world, no one would smoke. All those involved in public health education—in whatever capacity they serve and in all the different ways in which that takes place in our society—should see reducing the number of smokers as a core aim. That is unequivocal. I strongly believe that people who do not want to be exposed to cigarette smoke—I am one of them—should not be forced into a situation in which they are so exposed. I shall touch on that in particular in relation to the workplace.
There is a caveat, and those of us who hold strong views about smoking need to remember one crucial point. Smoking is a legally accepted practice in our society, whether we like it or not, and the provision of adequate protection for those who do not want to

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smoke must be balanced, reasonably, against the interests of those who do. We cannot just forget smokers, even though those who do not like smoking would perhaps sometimes like to do so. Nowhere is that point brought into starker relief than in the debate about whether we should ban smoking in public places, and, particularly, in the debate oil the impact of passive smoking.
In recent weeks both the British Medical Association and the chief medical officer have made contributions and issued warnings about the threat to public health from passive smoking. Some places, such as New York, have decided to take action against passive smoking by banning smoking in public places altogether. Most recently, the Commissioner in Brussels indicated that he is reviewing the issue. I fundamentally disagree that this is a matter for the Commission and very much hope that the Minister and her colleagues will ensure that the interest taken by Brussels is stamped on quickly. This is a matter for national Governments—for her and her colleagues, and their counterparts in other countries—not a Europe-wide issue. The Minister and her colleagues may not be able to resist the pressure, but their counterparts in France very likely will.
The arguments tend to focus strongly on health, and clearly the debate about the health implications of passive smoking is important. However, it is not always easy for politicians to be protagonists in such a debate, because we are not experts or scientists. Like everyone else, we amass and analyse evidence from those who bring professional expertise to the debate. I do not want to take one side or the other in the argument about the specific health implications of passive smoking. It is not necessary to do so, because the matter is clear-cut beyond purely the health situation. The issue is about balancing the freedom of individuals not to suffer unwanted exposure to cigarette smoke against the interest of not turning those people who want to smoke into pariahs in our society.
I wish to be absolutely clear this morning, first and foremost, that I do not want people to smoke and to inconvenience others when they are out and about. However, I do not in any way support a blanket ban on smoking in public places. That may seem slightly odd, coming from someone who is not a smoker, who does not like smoking and who wishes it would disappear. Such a ban would be impossible to define in a legally sound and fair way, and it would create anomalies that my colleagues and I could not personally defend. I shall give some examples.
I intensely dislike smoke-filled pubs and restaurants. I have sat in restaurants wishing that the people smoking at the next table would leave. If one is not a smoker, it is not pleasant while eating a meal to be exposed to smoke from someone sitting at the next table who is.
Mrs. Calton:Surely, it is not just that that is not pleasant. The people in the next seat who are blowing smoke over are passing on something that could kill. It
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is not just unpleasant; it is lethal. Usually, people are not allowed to do things next to others that are likely to cause ill health or, possibly, death at a later date.
Chris Grayling:Obviously, the hon. Lady was not listening to what I said a moment ago. Because politicians are not experts, we are not always best qualified to indulge in the fierce health debate that is taking place at present, and we do not need to. Even if passive smoking turned out not to be a health threat—I am not suggesting that it is not—the debate is more fundamental. Clearly, someone who suffers from asthma or lung problems has a right to sit in a restaurant and not have someone smoking at the next table.
Mr. Sheerman:What is worrying me is that it is taking a long time for the hon. Gentleman to find the courage to say where he and his party stand. People who work in restaurants, pubs and clubs are very vulnerable, and that is particularly true of those who really are at the edge, in rooms where there is constantly a great deal of smoke day after day, year after year. Why should that group of workers be subjected to poisonous fumes that will affect their health and do them great damage? Surely, this is not just about the inconvenience to the hon. Gentleman of going to a restaurant and having someone smoke at the next table.
Chris Grayling:If the hon. Gentleman will allow me to finish my remarks, I will come on to the workplace. Let me deal initially with whether there should be a blanket ban on smoking in public places.
Are we going to make it illegal for someone who owns a bar or restaurant to target their venue specifically at smokers? Will it be illegal for one pub in a high street in which most of the pubs and restaurants have banned smoking to be a smokers' pub? That would be the problem if we introduced a blanket ban. We would be saying, "It is illegal for you to have a pub specifically targeted at smokers." I do not believe that that is sustainable, nor is it justifiable in the context of human rights.
I hear what the hon. Gentleman is saying, but are we going to make it illegal for a rail company, private or public, to decide that it wants to make one sealed or unsealed compartment on its train an area designated for smokers? And in the natural correlation of that, are we going to make it illegal for an airport to provide a smoking room in a passenger terminal? I do not believe that that is sustainable.
How do we define a public place? If people smoke in a park, is that a public space? Are we talking about indoors or outdoors? Are we concerned with arenas where people are getting together for sporting events? What about a deck on a cross-channel ferry, a cliff-top walk on National Trust land or the platform of a railway station which is partly under a canopy and partly open? A law on the matter would be impractical to define and draft, unworkable and probably unenforceable. It is the wrong way of tackling a very important problem.
Mr. Sheerman:Does the hon. Gentleman accept that we have one of the most sophisticated and advanced democracies in the world? That is what we always tell ourselves. Other countries have grappled with the issue,

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come to a balanced decision and banned smoking in public places. With common sense and good legislation, that works. Is he saying that this democracy cannot manage to do that?
Chris Grayling:I am saying that it is not possible to draft a law that is just, fair and practical. However, although I think that a blanket ban would be impractical and wrong in principle, that does not mean that I do not recognise the importance of the issue, or that I do not want action to be taken to protect people.
I would be much happier for the Government to focus their attention on employee protection in the workplace, which I regard as a fundamental issue of rights. With the one caveat that I shall come to in a moment—the entertainment industry—smoking in the workplace is a difficulty that we need to address. I do not see why employees should be forced to sit in a workplace exposed to cigarette smoke day in, day out, when they do not want to do so. They should not feel that to complain about such a position, or to take action, would be to jeopardise their position. That would be fundamentally wrong.
Of course, most responsible employers now operate perfectly reasonable policies that provide space for smokers away from main working areas. I do not like the concept of a large office building with a total ban, which means that anyone who wants to smoke ends up in the car park or the street. There is nothing more unedifying than walking past an office building and seeing a group of people outside on the doorstep smoking. There is nothing wrong with providing a smoking environment that is entirely separate from the main workplace where people can go during the day to have a cigarette if they choose to do so. Frankly, I wish that they would not use that space, but it is wrong for employers not to provide that opportunity.
Not all employers do provide such a space, and that is to be regretted. Sometimes that is through choice, and sometimes it is because of practical difficulties. In too many places, such as small minicab offices, firms of half a dozen people or behind the scenes in the local corner shop, the employee who does not smoke has little choice but to put up with the smoke of colleagues. In my view that is neither fair nor just. There are grey areas, such as the hospitality industry where public pleasure and the working environment go hand in hand, and they are much more difficult to deal with. I shall talk more about that in a moment.
I entirely agree with the hon. Member for Ilford, North. Employment protection seems to be an area on which the Government have put their head in the sand during the past four years. It is four years since the Health and Safety Commission published its draft approved code of practice, and interestingly it said then that there was already sufficient health and safety and welfare law that could be applied to the question of passive smoking. What is needed is for the law to be better understood and followed. It said that the case for more law is not yet convincing because the existing legal framework is sufficient to deal with the issue. We need greater clarification to help employees to understand their rights and employers to understand their responsibilities, and to create the right framework for managing smoking in and around the workplace.
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It is extraordinary that the draft approved code of practice is still sitting on the shelf. I have read it, and it is not perfect. It is too bureaucratic and focuses too much on employers drafting policy documents rather than on doing things. It also fails to reflect the fact that the entertainment industry is a genuinely special case.
Do the Government think that there should be an approved code of practice? If they do, let us see a document based on what they believe to be the next step after the initial draft document. Do they believe, as the Health and Safety Commission put it, that the law should be better understood and followed? Why has the code of practice sat on the shelf for so long? There is no justification for that—I would be fascinated to hear the Minister's justification.
I want to make it clear that although I may have an issue with the practicality of a total blanket ban, we should not put employees in a position where they must be exposed to cigarette smoke. This is a question of fundamental rights. It is very easy to discuss smokers' rights; let us discuss the non-smokers' rights. Why should people be exposed to cigarette smoke in the workplace if they do riot want to be? Of course, nothing is ever that easy. The leisure and entertainment industry is a particular challenge. It has advanced a robust case that it is working to improve the particular difficulties that it faces in protecting employees from passive smoking. Some people say that those efforts have not gone far enough.
The public places charter, which I have read, is a desirable step forward, as the hon. Member for Ilford, North acknowledged. She highlighted the fact that JD Wetherspoon has introduced non-smoking policies in parts of its pubs in her constituency, which is entirely desirable. Step by step, public pressure will make it less commercially viable for organisations to run big, smoke-filled pubs, as they have done in the past.
Can we, however, really reach a situation in which a blanket ban is imposed? I would be mighty reluctant to see us impose an absolute ban on anyone deciding that either part or all of their premises—a private venue—should be designated a smoking area. That approach would be questionable.
Mr. Sheerman:Does the hon. Gentleman not recognise the deep flaw in his argument? He does not want a blanket ban—people who support a blanket ban always worry me because they use it as an excuse for not thinking the issue through clearly. If he does not want a blanket ban, however, what are the implications for protecting workers in public places? If one is serious about protecting workers in public places, that must include pubs, bars, restaurants, clubs, railway stations and trains. If the health of workers is to be protected, smoking cannot occur in any of those places. The hon. Gentleman cannot have his cake and eat it.
Chris Grayling:I fully accept that. As I said, nothing is ever that easy. However, it is not sustainable to say to somebody who owns a pub, "You may not position yourself in the high street as the smoking pub."
When I examined the detail of the public places charter, I realised that it does not contain solutions to all the problems or go far enough on all the issues. It is, however, a positive step forward. It is definitely a

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foundation from which the industry and the Department of Health—it has been signed by both sides—can try to find solutions to a difficult and complicated problem. Although those on the anti side of the argument are wrong to dismiss it, it is not the only acceptable way forward. It is, however, a valuable next step in the debate. I accept the hon. Gentleman's point that the entertainment industry is a difficult issue in what is otherwise a broad-brush picture in which the issues are fairly clear.
Smoking in public places is often a nuisance, it has potential health implications and it should be reduced wherever possible. That is happening. Smoking has disappeared in airlines, on buses, on the London underground and in many public buildings around the country. It is in the hands of the whole public sector, which controls a significant number of public venues around the country, voluntarily to decide to make those areas smoke free in the same way that airlines and the London underground have. They have taken those decisions because that is what their passengers want.
There is already substantial proof that fewer and fewer organisations and people are willing to tolerate cigarette smoke in areas where smokers and non-smokers mix. However, I do not believe that a draconian Bill to ban by law any public venue from specifically targeting smokers would be workable or right. It would be hard to define in legal terms and almost impossible to enforce. Smoking is still a legal activity in this country. We should not go down that road.
By contrast, the Government's inactivity in the debate on employee protection in the workplace represents a real failing on their part. There is no rational reason for them to have taken four years to resolve whether there should be an approved code of practice. Does the Minister plan to bring forward a revised code for debate? Does she think that there is a stronger case for employee rights? What does she plan to do to address smoking in the workplace, an issue that the Government seem to have forgotten since 1999? That is where there is the most pressing need for immediate work to be done. Sadly, I see no evidence that the Government are doing that work.
I agree with many of the sentiments expressed by hon. Members this morning, but, as a society, we have to find a balance between proper and appropriate public health measures and draconian measures that ultimately remove the freedom to undertake activities even in isolation from others. That is what a draconian Bill could do. Let us see action to define employers' and employees' responsibilities and rights in the workplace. Let us encourage, by whatever means possible, those who provide public venues to continue to segregate and to provide spaces, protection and smoke-free environments wherever possible—but let us not, ultimately, be draconian in how we instruct our society to behave.
10.32 am
The Parliamentary Under-Secretary of State for Health (Miss Melanie Johnson):I, too, congratulate my hon. Friend the Member for Alford, North (Linda Perham) on securing this Adjournment debate. It is
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clear from the quality of the contributions that this is an important debate. I entirely accept that had it not been the first debate today it might have attracted a much greater attendance. I reassure my hon. Friend and other hon. Members that I am not concerned about the lack of people here. I know that this is an important debate that contributes to a wider public discussion on the dangers of tobacco smoke. It is a valuable reminder of the need to tackle those dangers.
In the hour that this debate has taken so far, more than 13 people in the United Kingdom have died from smoking. We must remember that all these discussions take place in that context. The vast majority of those people have died from smoking directly, but that is not to belittle the contribution that secondary smoking makes. It is also important to recognise that half all smokers will die of a smoking-related disease. This is an enormously important matter.
The debate gives the Government an opportunity to say what we have been doing to raise awareness of the health dangers of second-hand smoke and to reduce the risk to smokers and all those around them. Smoking kills more people than any other avoidable cause of ill health in the UK. There are 120,000 deaths, as has already been said, and the cost to the NHS of such diseases is £1.7 billion a year. Smoking causes more than 80 per cent. of deaths from lung cancer, and one in seven of all deaths from coronary heart disease is the result of smoking. Tobacco smoke is probably the biggest single cause of health inequalities because it affects not only those who smoke but those exposed to it.
There are many reasons why smoking has been, and continues to be, a top priority for the Government since we came to office in 1997. One of the first things we did was to launch the White Paper "Smoking Kills", which outlined a tobacco control strategy for the country as a whole. It has been echoed in subsequent documents such as the NHS plan, the cancer plan, the national service framework for coronary heart disease, the national service framework for children and others. The cancer plan recognised the major health inequalities that result from smoking and set specific targets to reduce its prevalence among manual workers to bring their smoking rates closer to those in the general population.
I want to say something about the nature of those who are addicted to smoking tobacco and the fact that 70 per cent. of them do not want to smoke. In respect of all the comments made about the evangelism of reformed smokers and about where people are coming from on the issue, we must remember that the vast majority of those who suffer from this serious addiction do not wish to smoke. We have therefore set targets to reduce smoking rates in the population, focusing particularly on young people and pregnant smokers. The targets take into account the impact of tobacco smoke, not only on the health of the smoker, but on those around them. Reducing smoking in the general population will reduce exposure to second-hand or passive smoking.
In June, the Government signed up to the World Health Organisation's framework convention on tobacco control. The framework convention is an international legal agreement agreed unanimously by the 192 member countries of the World Health Assembly. The convention covers all aspects of tobacco control and makes a specific recommendation that

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action be taken to provide for protection from exposure to tobacco smoke. It is the Government's aim to increase provision of smoke-free or non-smoking areas.
On smoking in public places, the Government have always recognised that completely smoke-free places are the ideal. Seven out of 10 smokers do not want to smoke and many people do not want to breathe the smoke of others. Furthermore, many smokers do not want to breathe other people's tobacco smoke. At the time of "Smoking Kills", the Government took the view that a universal ban on smoking in public places was unjustified while we could make fast and substantial progress by other means.
Mr. Sheerman:We all recognise that this Labour Government have very good intentions on the matter, but it is 2003 and we have been in office since 1997. We have had a succession of Under-Secretaries of State for Health and my hon. Friend knows that I have the highest regard for her as a politician and as a Minister. This is an opportunity for her to make her name as the one public health minister anyone will remember for taking a really tough stand on the issue. I hope that she will not make excuses, but will tell us why there has not been much concrete action so far.
Miss Johnson:I am grateful for my hon. Friend's kind remarks and his desire that I should be remembered for achievement on this matter. I disagree with his recollection of the achievements of my predecessors, which are considerable. In the course of dealing with some specific matters, I hope to reply to his remarks.
On smoking in taxis, which was raised by my hon. Friend the Member for Ilford, North, the Department for Transport consulted nationally in 1999–2000 and in March 2001 announced that it recognised the merits of banning smoking in taxis, but that it did not consider the case to be strong enough to make a commitment to legislate. It was satisfied that the voluntary approach of drivers being able to ask passengers not to smoke—in other words, to make the decision per cab—was adequate.
Chris Grayling:I am on the side of Labour Members on this point. It is not always easy for a minicab driver picking up a group of drunken revellers on a Saturday night to persuade them not to smoke. Does the Minister accept that the voluntary code brings with it some serious shortcomings?
Miss Johnson:If I were a taxi driver picking up a group of drunken revellers late at night, I would probably be concerned about other things that could go wrong, but forgive me if I do not elucidate.
Linda Perham:The problem is that taxi drivers feel that they do not have the force of the law behind them. As hon. Members will have seen, many cabs carry a sign saying "Thank you for not smoking", but drivers do not feel that that can be enforced. Rather than a ban, they want the choice to designate their cabs as smoking or non-smoking. They cannot do that at the moment and they feel that an opportunity was missed during the passage of the Greater London Authority Act 1999 as such a provision could have been introduced. That is why they continue to campaign.
Miss Johnson:I understand my hon. Friend's arguments. They appear to be matters for the
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Department for Transport, although I can report on the current state of play. I have travelled in many taxis in which smoking is banned by the choice of the taxi driver. As a non-smoker I can tell whether someone has smoked recently in the cabs by the smell, and most cabs have remained smoke free. There is scope, but I understand my hon. Friend's point about some cab drivers' anxiety.
Children and smoking was the starting point for my hon. Friend's interest in the subject. Teenage smoking is one of the greatest challenges that we face and 82 per cent. of smokers start the habit when they are teenagers. We have taken many measures to tackle teenage smoking, including banning tobacco advertising—something that the previous Government consistently refused to do—and introducing tough enforcement on underage sales. From 13 September 2000, the Government launched an enforcement protocol with local authorities to ensure that existing legislation on underage sales was properly enforced. That is monitored by trading standards officials from time to time. The Government also support proof-of-age card schemes that protect shopkeepers and children alike, and there are tougher new restrictions on the siting of cigarette vending machines, which must be located in a monitored and supervised area.
My hon. Friend also spoke about the effects of passive smoking in the home. In 2002, the International Agency for Research on Cancer conducted an extensive review of the evidence. It concluded:
"There is sufficient evidence that involuntary smoking (exposure to second-hand or environmental tobacco smoke) causes lung cancer in humans."
The overall conclusion was that involuntary smoking is carcinogenic to humans, and the agency is the accepted world authority on carcinogenic risks.
Second-hand smoke exposure causes lung cancer and ischemic heart disease. It also causes serious respiratory illness and asthmatic attacks in children, as my hon. Friend said, and second-hand smoke exposure triples the risk of sudden infant death syndrome. Middle ear disease in children is often associated with exposure to smoke, which also causes pregnant women to give birth to lower birth weight children.
Mr. Sheerman:Although my hon. Friend is expounding a brilliant set of facts, we still have a Government who refuse to ban smacking and smoking in pre-school nursery settings. We have the information, and if we believe it we should surely deliver on it. Campaigners within the Chamber and outside are waiting for her to explain what will be done to protect children and workers in particular, since they are at the forefront of the battle.
Miss Johnson:I will deal with some of my hon. Friend's points shortly. I have the luxury of a little time and I am trying to use it as constructively as possible. I am sure that I will not satisfy him on all those points, but I will come to them.
I will deal with the workplace as that has particularly concerned my hon. Friend, as shown in his recent remarks. The point was made that public opinion is in a transitional state on smoking in confined public spaces—not open spaces but all others—and that is correct. There is a shift in public opinion to banning smoking, but also a division of view among both smokers and non-smokers.

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When the subject arose in a recent discussion, I was struck by the fact that some trade unions, such as Amicus, whose job it is to protect workers, circulated material arguing against a ban on smoking in workplaces, particularly in the entertainment industry, due to a concern about jobs. That is no reason for the Government not to introduce a ban, but some people who might be expected to argue strongly for it are not doing so.
Mr. Sheerman Mr. Sheerman indicated dissem.
Miss Johnson:My hon. Friend is shaking his head but I do not know why.
Mr. Sheerman:I am a member of the union that the Minister just mentioned and I spoke at a recent conference held by the TUC on the matter. The trade union movement has dealt slowly and poorly with that aspect of workers' rights. However, as we both know, in the TUC and across the trade union movement, change is coming fast. If she is not aware of that, she should be. I have not seen the material that she mentioned, but will take it up with the general secretary at Amicus as soon as I leave this Chamber.
Miss Johnson:I am grateful for my hon. Friend's remarks. I suggested that there is a transition in all public opinion and that includes the trade unions.
Existing legal requirements on employers in the workplace come under the scope of the Health and Safety at Work, etc. Act 1974, which states:
"It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safely and welfare at work of all of his employees."
If we are to ensure protection against second-hand smoke in public places, there must be action nationally and locally both to raise awareness of the risks associated with passive smoking and to increase the prevalence of smoke-free environments. The Department of Health will continue to encourage the development of smoke-free policies, working with both employers and communities.
Locally, the Department funds tobacco control alliances across England to work in communities to raise awareness and increase the number of smoke-free environments. Findings from those projects will inform the development of the Department's work. The Department of Health will, in addition to existing action, develop educational and information resources to raise awareness and understanding of the risks associated with passive smoking.
In that context, the Government are still considering the code of practice and I understand hon. Members' frustration. However, the Health and Safety Executive has been asked to examine the costs further, as they affect the small business and hospitality sector.
Chris Grayling:The Government have taken a long time to consider the issue—when will they stop?
Miss Johnson:That is not entirely under my control, but I assure the hon. Gentleman that I acknowledge that
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the process has gone on for some time. It would be good to conclude the discussions, but the time scale is not under my control—it involves parts of the Government over which I have no say.
Linda Perham:I think that my hon. Friend's argument about small business was also advanced in a colleague's reply to a debate secured by my hon. Friend the Member for Huddersfield (Mr. Sheerman) in March. I mentioned the problems that employers have with insurance premiums—the risk of fire and so forth—because of people smoking. I hope that not only small businesses but all businesses will regard attacking the problem of smoking as an opportunity as far as health and safety is concerned, not as yet another bit of red tape.
Miss Johnson:I share my hon. Friend's enthusiasm for the approach that might be taken and I agree with her remarks.
The public places charter—a hospitality industry-led initiative—declared an intention to improve facilities for non-smoking customers and for pubs and restaurants to highlight their smoking policy through universal signage. That was mentioned by several hon. Members, not least my hon. Friend the Member for Ilford, North in her opening remarks. The charter set the target that, by January 2003, 50 per cent. of pubs should have a formal smoking policy in place and available to customers. However, an independent validation showed that by January only 43 per cent. of pubs had the appropriate signage in place, which could mean that smoking is allowed throughout, and a formal written policy available to customers. That obviously fell short of our target. Most pubs still have smoking throughout and only a handful are entirely smoke-free. That is not satisfactory progress.
Later this month, officials from the Department will meet the charter group, which is responsible for the charter, and will consider any positive suggestions for improving health. As more companies recognise the health benefits for their staff and customers of becoming smoke free they will follow suit, but it is true that more motivation and enthusiasm need to be engendered in some to make the progress that is right and proper.
The Government acknowledge that much needs to be done in tackling smoking, but we have an excellent record of doing so—a record that is recognised worldwide. We have put in place a number of measures that have an impact on smoking. We have set up a comprehensive support service for smokers to help the 70 per cent. who want to quit. Cessation aids such as nicotine replacement therapy are available on the national health service. There are dedicated helplines for all smokers, for pregnant smokers and for south Asian tobacco users. The NHS stop smoking service is designed to help smokers to give up with expert professional support.
Among the measures having an impact is the Tobacco Advertising and Promotion Act 2002, which brought to an end billboard, newspaper and magazine advertising of tobacco products. From the end of July this year, virtually all sponsorship featuring tobacco products had gone.
In July, we launched the UK's first television campaign to raise public awareness of the health risks from second-hand smoke. It is estimated that 42 per

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cent. of children live in a house where at least one person smokes and that approximately one third of smokers—more than 4 million people—continue to smoke near children. Smoking near children is linked to cot death, serious respiratory illnesses, asthma attacks and serious breathing problems. As the advert says, every year thousands of children have to go to hospital because of breathing other people's cigarette smoke.
The advert is the first step in a campaign to increase awareness of the risks of second-hand smoke not only to children, but to everyone. We have followed it with more information, newspaper advertisements and billboards highlighting the risks. In addition, the new, larger health warnings on cigarette packets, which became compulsory at the end of September, include the messages: "Smoking harms you and those around you", "Protect children: don't make them breathe your smoke" and "Smoke contains benzene, nitrosamines, formaldehyde and hydrogen cyanide."
We aim to raise awareness of the health risks from second-hand smoke to enable the public to take steps to avoid them. The chief medical officer, in his annual report published earlier this year, drew particular attention to the seriousness of second-hand smoke.
Mr. Sheerman:Will my hon. Friend the Minister talk to the Health Minister in the Irish Republic about the planned introduction of a ban in public places, and will she listen to and learn from him? Will she remind my right hon. Friend the Prime Minister that he said that we are at our best when we are at our boldest? Although there were many good things in her speech, it did not sound bold or like a Government at their best.
Miss Johnson:I shall ensure that we are in touch with developments on the smoking ban in Ireland. In any case, we take a wide interest in what is happening on the issue around the globe, not only across Europe. I shall ensure that we see whether any lessons can be learned from it.
As a result of the tobacco control alliances a number of cities and towns have declared their intention, on a voluntary basis, to create more smoke-free environments and thereby be able to declare themselves smoke free. From 1 April this year, the Department of Health has become entirely smoke free. We offer support and help to staff who want to give up smoking, and encourage others to follow that example.
This autumn we sponsored conferences in each of the English regions so that local organisations could meet to share examples of good practice. The conferences have been chaired by regional public health directors—there is a high-level commitment on the public health side—who have an important role in any event in increasing
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local awareness. Various businesses are getting involved in that initiative. There are speakers at the regional conferences from organisations as varied as the Cambridge Blue pub, Mars in Slough, the Land Registry in Plymouth and Aston Villa football club. It is a fairly disparate collection of interested parties, but that gives the feel of the range of businesses and employers—in the public and the private sectors—that recognise the importance of tackling smoking and responding to the wishes and needs of workers and their customers.
Chris Grayling:Will the Minister give way?
Miss Johnson:I should like to finish if I may. Public attitudes towards smoking and smoking in public places have been gradually changing in the past two decades. The days when cinemas, theatres, underground stations and trains were filled with smoke are in the past, notwithstanding the earlier remarks about GNER. It is in response to such changes in public attitudes that many businesses have moved to provide smoke-free premises. It is particularly noteworthy, as my hon. Friend the Member for Ilford, North commented, that the popular chain of restaurants, Pizza Hut, chose to go smoke free in response to both customers' and workers' wishes. When a restaurant business that is a name recognised throughout the country takes such a step, others should take note and act accordingly.
There has been a measurable shift in the number of smoke-free workplaces since "Smoking Kills" in 1998. Figures from the Office for National Statistics show that in 2002, for the first time, more than 50 per cent. of workplaces were free from smoke—that is up from 40 per cent. in 1996. Perhaps that is not enough, but it is progress. The same publication shows that the number of people wanting to eat in a smoke-free restaurant has been well above 80 per cent. for several years in a row. That statistic should be used to encourage operators of restaurants to respond appropriately to public demand.
Of course, old habits die hard—we know that that is particularly so with smoking—but things are changing, and we are more aware than ever of the risks of smoking and the effect of passive smoking. I recognise that we have some way to go and I encourage those employers and businesses that can make a real difference to show leadership in responding to public and customer demand for more smoke-free places. I am committed to real progress in all aspects of reducing smoking and assure my hon. Friend the Member for Huddersfield, who has urged on me the opportunity to make a name for myself in this regard, that I shall do all that I can to ensure that all partners who can help to achieve this result make more steady progress than they may have made to date towards achieving what we all want to see in the due fullness of time.

Mental Health Services
10.59 am
Mr. Stephen O'Brien: I am grateful to Mr. Speaker for making the time available for this debate on mental health services in the United Kingdom. It is clear to those of us who take an interest in the subject that the debate will be extremely important. The way in which a society treats those least able to play a full role is a measure of how civilised it is.
Mental illness is society's unspoken epidemic. It is rarely discussed. All too often, people regard mental illness as a weakness and stigmatise the individuals who suffer from it. The draft Mental Health Bill, which was published by the Government in 2002, has not helped to alleviate that. The debate surrounding the Bill concentrated on the potential dangers posed by psychiatric patients rather than or the more important issue of the appropriate treatment for all patients. We need to shift the debate away from those rare incidents of violence—important as they are when considered individually—that stigmatise anyone with a mental health problem. Health policies can and must be shaped to support those who suffer from a mental health condition in what can, at times, be an atomised and alienating society.
More than one in five people are afflicted by mental illness during their lifetime. It is therefore fair to say that everyone in society—whether in the context of the family, or in a caring capacity—is affected by mental illness. However, those suffering from such an illness often have the smallest voice in terms of representation and in getting society, and the Government in particular, to wake up to their needs.
This debate is therefore a good opportunity to give the mental health sector, and the people affected by it, a true and loud voice. I therefore welcome the Minister, and hope that she will be able to give answers today that will provide hope to all those following the debate. If she does, that will be in contrast to the lamentable performance—and that is not intended to be a pun on his name—of her predecessor at the virtual Dispatch Box in Westminster Hall, now the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy). In his response to the debate on this subject on 7 May 2003, he did not treat the subject with the seriousness, respect, dignity or importance that it warranted.
I therefore hope that the Minister will be able to put right the deep deficit on the Government's balance sheet in the way that debates in Westminster Hall have been handled. I also hope that—because her predecessor has been moved on—she will be able to make amends for the woeful Government response on that occasion.
It is fair to say that all Governments have moved on since the dark days when we used to talk about mental health patients and the asylum. It is important and necessary to pay tribute to the enormous number of highly professional workers in the mental health sector, and to those who are committed in a voluntary capacity to our mental health services. In our constituencies, we are aware of the enormous debt that we owe to all those who, with deep commitment and long-term dedication, care for many people who are afflicted by mental illness. To those of us who are lucky enough, at this stage in our
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lives, not to believe that we suffer from mental illness, devising the optimum treatment for such sufferers appears baffling.
We must also be careful, however, not to be cowed by the wish for what is increasingly becoming the norm in today's politics—and described by that ghastly word "consensus". Consensus is soggy and invariably ineffective. It is a sort of middle way or third way, which is anathema to getting action. We need action rather than words or comfort blankets in this area, and we have been waiting for that action from the Government. I do not differ from other Opposition parties in saying that we are looking for action, not simply rhetoric and fine words.
Before I move on to more detailed and substantive issues, I should like to talk about a phrase that society generally should stop using. The Government have been wont to use it completely erroneously when talking about the official Opposition and saying, "The lunatics have taken over the asylum". It is disgraceful of them to use such a phrase. I do not use it; I have never used it because it shows such deep disrespect. Yet Ministers and even some Cabinet Ministers have used it. The media have occasionally used it too. Normally I am absolutely against political correctness, but this has nothing to do with political correctness. It is to do with the deep sensitivity and the concern that society should show for people who have a mental illness. I hope that from hereon that wrong, nasty and thoughtless phrase will not be used by any Minister or by anyone in a position of authority.
I say that with some passion because I well remember as a young boy my mother driving me past what was then known as the asylum near Warrington. She was a nurse and she used to say, "Now, Stephen, just remember that those are really poor, afflicted people in there. There are fantastic nurses who look after them. The one thing I hope you will never grow up to do is to call this place an asylum. It is a hospital and a place of care." I have always held that thought with me. She said the same about Fazakerley hospital near Liverpool and Lancaster Moor hospital. It is time that we moved away from some of the language that was relevant a hundred years ago. In view of the compassion and expertise that we have in today's society, mental health sufferers deserve better than some of the loose language that we continue to use. This point matters.
The mental illness spectrum is vast. We must take care to recognise that some mental illness is defined in terms of the potential risk to self, as opposed to a risk or even danger to the public at large. That is a key feature of mental illness, once it is diagnosed correctly and the right medication prescribed. I know from my personal family experience that medication is the key to maintaining a regime of control and dignity in these matters, yet medication is often the one thing that the sufferer does not want to take, which makes the illness even more difficult to treat.
In addition to the range of risk, there is the age spectrum. We have increasing longevity; shortly some 2 million in our society will be over 85. Many of them will, of course, develop Alzheimer's and dementia. Such increasing longevity certainly presents problems and challenges for our society.

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At the other end of the spectrum are young people. Most hon. Members present will be familiar with the organisation YoungMinds. Incidentally, it is disappointing that only three Conservatives, two Liberal Democrats and only the Minister and her Parliamentary Private Secretary are present. It is a shame that this is such an ill-attended debate, particularly on the Government side. YoungMinds describes the unrelenting rise in mental illness among the young. We have all become aware in our constituencies of the marked increase in the number of young male suicides. It is a significant issue revealing both stress and an inability to cope in what I referred to earlier as an increasingly alienating and atomised society. We need to observe that issue carefully and take the right steps.
Other points on the mental illness spectrum are what might be described as stress and forms of depression moving through, say, schizophrenia to what are also called personality disorders. I do not want to get into a debate on this today, which would be straying a bit far from the main topic on the Order Paper, but we need to take a much more clinical and dispassionate view of the difference between mental illness and certain personality disorders. I do not want to go down the rather legalistic route of examining whether, for example, paedophilia—abhorrent as it is in all ways—is a mental illness, a personality disorder or some other form of condition. What matters, and what was so patently missing in the draft Mental Health Bill that we saw a year ago, is a focus on what is treatable rather than simply on what is a danger.
If we look at mental health from the point of view of what is treatable, we can, as part of our responsibility as a civilised society, examine what can make the life and participation in society of certain individuals better, rather than examining the danger to, and protection of, those of us lucky enough not to be afflicted. Our mental approach, our mindset, to mental illness—I hope that I am not being too tautological—should be that we are on the side of the person suffering, helping to give them better prospects in life, rather than being on the other side. Without wanting to apportion blame, I think that being on that person's side has not generally been the mindset to date.
What is the scale of the problem? The number of people off work sick with mental illness has increased by a quarter in a long period of relatively static figures for missing work through sickness. Since 1997—this is not a political point; it just happens to be the date that I have—the number of those claiming disability living allowance because of mental illness has increased by three quarters. The toll of personal distress, and distress for families and carers, is something that we do not cost, but can all appreciate, and we should not be shy of discussing the economic cost to the nation, because it is real.
Another very real factor is not often discussed. When we speak from the very privileged surroundings of a debating forum in which we all expect to have our full mental faculties and when we discuss people who suffer from temporary or long-term mental illness, we should see it as part of our sense of self—our sense of pride and confidence in our country and ourselves as part of a civilised and compassionate society—to address the matter with the priority and care that it deserves.
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More needs to be done on the interactive side, and on how those with mental illness can participate most in day-to-day society. I look to the Minister to give at least an indication about and, I hope, answers on the pathways to work strategy. We must look very carefully at whether people on benefits are capable of being at work. A three-pronged strategy is needed. First, we need to increase doctors' sensitivity and understanding. I am not making any criticism of current practice, but we must increase their diagnostic and other abilities in mental illness, so that they match those in the field of physical illness. Secondly, there must be more flexibility over part-time working. It is quite obvious that many people who have gone through stress and who may be the most capable of being treated so that they can get back to work more easily and earlier may not initially be able to face a full week's work. An environment of flexible part-time working would help.
Finally, we need to do much more—whether we call this joined-up government or joined-up benefits—to link rules. If someone is capable of going back to work part-time, they are therefore no longer incapable. However, if they are no longer incapable, there is a real risk that they will lose their disability living allowance. We need to look carefully at how the rules link. There are often perverse incentives for the professionals, and there is the possibility of adding to the stress and confusion of those trying to overcome problems.
Another point to bear in mind, although I shall not stray too far down this path today, is the need to consider learning disabilities. Although such disabilities are not in themselves mental illness, it is interesting to note that Mencap has said that learning disability leads to an intense, long-term unrelenting frustration, even agony in the sufferer, that can lead to forms of mental illness. Without reservation, I praise Mencap for all that it does; I am sure that I am joined in that by everyone here today. It is an outstanding organisation, which is very well led and has a most remarkable, committed field force with the deepest expertise. I hope that that is not regarded as something that is too easily said. Mencap deserves praise, and it will certainly get it from us today.
We must look carefully at linking learning disability provision with mental illness. The Hebden Green school for learning and physical disabilities in my constituency deals with the families and provides residential opportunities—an issue to which we may have to return. I recommend that the Minister visit that place one day as it is an example of the best practice that makes links in the community.
Before I touch on a couple of other issues, I would like to mention another underlying principle. We have heard from the Government on the matter before, and I would appreciate hearing from the Minister today a genuine update on where the valuing people strategy has got to following the White Paper. My point relates particularly to child and adolescent mental health services. In relation to the valuing people strategy, one of the critical issues that the Minister will have been briefed on may well concern whether we will get the mental health legislation. When will we see the Bill that has been so long under consideration?
As we know, the Government published a draft Mental Health Bill in the autumn of last year, and it was met with near universal condemnation. I do not think

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anyone would seek to correct me on that. The proposals in the Bill that provoked the most concern included measures to introduce compulsory treatment in the community, and proposals for the indefinite detention of people with severe personality disorders. It was a coercive measure and, ultimately, a shockingly dehumanising piece of proposed legislation from the Government.
The Mental Health Alliance, representing a group of more than 50 mental health organisations, said that the proposals would backfire because more compulsory detentions and forced treatment in the community would drive people away from seeking services. Marjorie Wallace, the chief executive of the mental health charity SANE, claimed that the Bill would not address the fundamental problems of mental health provision. The Law Society and the Royal College of Psychiatrists issued a joint statement unequivocally rejecting the Government's proposals for reform of the Mental Health Act 1983. They said that
"in our opinion, the proposals are fundamentally flawed."
Having promised mental health legislation for the 2002–03 parliamentary Session, the Government have failed to publish a final Bill or to give any indication of when legislation will be forthcoming. However, the Department of Health has promised to publish the consultation responses before publishing the new Bill. I hope that we can learn today, as a result of the debate, what the Government's intentions are. That would be helpful for all and not just those in the House. An awful lot of people—notwithstanding the fact that the Chamber is not overflowing today—will be following today's deliberations, and will be looking to see what answers are given.
The Conservative party has made it clear—I rely on the latest position from the shadow Minister who is here today—that if the Government were to introduce the Mental Health Bill as previously drafted, it would oppose it. That is well understood and accepted. We have had a year's consultation with, I hope, all the specialties, and shown a great deal of sensitivity to the various spectrums that I have outlined. We also recognise that the removal of liberty is the last, not the primary resort, so we have to put it on the record that there is a desperate need for a mental health Bill, but it must be the right Bill. It must contain the right provisions.
I call for such a Bill today, and I know that my party has consistently called for it. I ask the Minister to say whether it will be a priority for us in the forthcoming legislative year. All those who take a genuine interest in the subject need to feel that the time and care that they spent in consultation and in trying to influence Government policy was worth while because it will result in a genuine step forward. There should be a legislative move rather than simply the massive, protracted talking shop that is getting us nowhere.
On medical services for mental health, the interface with social services is critical. It is critical not only in emergencies, but in day-to-day life, particularly in relation to housing in residential areas, and the more common aspects of the ways in which people with
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mental illnesses find that they have to live their lives. I refer to people with a relapsing or remitting form of mental illness that is not consistent over time.
There is now a new challenge. When the three district authorities in my parliamentary constituency were under Labour and Liberal administrations—I am glad to say that the situation has changed somewhat dramatically over recent years and we have Conservative administrations—there was a rush to privatise the social housing stock. I am sorry. I said that we must be careful about the use of language so I must be politically correct and use the Government's message. The word is "transfer", not "privatize".
There is now an increasing problem because people with mental illness are no longer able to go to a connection of various agencies and authorities, and there is also the matter of considering what is the appropriate placing, within housing stock, of people with relapsing or remitting types of mental illness. We need to consider that issue carefully. I hope that the Government will have something to say about that.
The perfectly laudable aim of the national service framework for mental health, which sets seven national standards for mental health services, is to drive up quality and reduce variations in services to patients and service users. It is intended to include round-the-clock crisis teams for emergencies, more mental health beds and improved training for general practitioners. As I understand it, there is a genuine attempt to ring-fence mental health money and the various mental health trusts are intended to reflect that.
It is, however, October 2003 and—although I condemn in all other respects the Government's completely ineffective and distorting ghastly target regime—we have had more than three years under their target regime for an assessment of what they believe they have achieved in comparison with the targets that they have set themselves. I refer to the impressive speech made in this Chamber by my hon. Friend the Member for Daventry (Mr. Boswell):
"I turn now to the NHS plan targets. I hope that the Minister will comment on the Department's claims in meeting them. I note that the mental health mapping atlas, which was published in June last year, pointed out that there were particular problems in providing a 24-hour service for mental health crisis resolution teams. Fewer than half the teams then established-52, from memory—were meeting that requirement. We all know that mental illness does not operate on a nine-to-five basis—even if the office does. A problem may become acute in the small hours of the night. It is simply no good fulfilling targets nominally, but not meeting them in substance."—[Official Report, Westminster Hall, 7 May 2003; Vol. 404, c. 221WH.]
The complete lack of any assurance or answer to that point is partly why I was so openly critical of the former Minister and why his performance on that occasion was so disappointing and lamentable. I hope that there will be an answer today.
I hope that there will be a genuine recognition that staff vacancies continue to be a problem. My wife is a nurse and we met when she was doing her psychiatric training at Highgate. It was part of the critical training for all nurses to understand how to nurse psychiatric patients and that led my wife to decide to continue nursing in the oncology and terminal cancer care area, working particularly with old people. Having an understanding of how to nurse psychiatric patients

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becomes a must in terms of the full-scale professionalism that must be devoted to people of that age in those conditions.
There are a huge number of staff vacancies in the nursing, psychiatric and medical areas. I hope that the Minister will tell us what progress has been made since the problem was highlighted in the earlier debate, and before that, by the shadow health team. I hope that we will hear that there has been genuine progress, because there is no point in having fine words and strategies without having enough of the professionals who choose to do a particularly tough type of professional care and work. I am worried that only one third of primary care trusts have completed evidence-based guidelines.
I thank the British Association for Counselling and Psychotherapy for briefing me today, although there is not enough time to go into all its arguments. There is a real concern that, partly because of targets, there is too little flexibility to recognise the huge value that counselling and psychotherapy can add to the provision of mental health services. The Government should be tested by the measures that they set themselves, even if we do not agree that those measures are likely to be effective. The targets have been in place for more than three years. By any test, a target can be assessed as met, not met or, at least after three years or more, whether it is on target, missed or fudged.
We must consider whether the targets focus only on severe mental illness rather than on primary care for mental health. We should also examine the assessment of the effectiveness and desirability of early intervention. In so many walks of life, early intervention is key. I cannot find—I will be grateful to the Minister if she can prove me wrong—where early intervention was measured in the target regime. I come from the world of business, so I know that what one measures is what one gets. If early intervention is not measured, we will not get a real focus on it.
I have two further points and then I will have taken up my full share of time. First, there has recently been a huge campaign about community pharmacies. Thousands upon thousands of my constituents have signed petitions, and, as a result of the enormous pressure brought to bear on the Government and various quangos to recognise the real danger of community pharmacies being lost, there has been movement in the right direction.
I have received the briefing from the Pharmaceutical Services Negotiating Committee, and I am happy to copy it to other Members who are interested, although I would be surprised if it has not been made available to them. It sets out very clearly why, in addition to all the advice that they are able to provide, community pharmacies are so important in recognising early symptoms of mental health problems, identifying signs of relapse, helping with concordance, encouraging good mental health practice and helping to change attitudes towards mental health patients and the perceptions of their problems.
We should not forget the enormous difference made by the footfall of communities through those shops. People can be seen regularly without losing face, and other members of the community can help them. I hope that the Government will not relent and will recognise that, in addition to all the other arguments, those with
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mental health problems benefit enormously from the advice, knowledge and discretion available in community pharmacies.
Finally, a story from my constituency may help. Several of my constituents have used the wonderful Gainsborough road respite unit in Crewe for many years. Crewe is not in my constituency; it is in that of the wonderful hon. Member for Crewe and Nantwich (Mrs. Dunwoody). Sadly, the unit was recently closed despite a prolonged and determined campaign conducted by a number of us. It is so easy to forget how important the respite or drop-in opportunity is for mental health patients. It provides medication and a support group of people whom the patients know and trust. It is as much a part of their treatment and their ability to cope as anything else. If we know anything about mental illness in addition to the professional medication and treatment programmes, we know that people need coping mechanisms and trust so as to surround themselves with confidence, the lack of which is often the deepest undermining aspect of their mental make-up.
The Gainsborough road unit was a marvellous place for people quietly to recharge their batteries. I have received a letter from a constituent, Sheila McKeowen, who is a state registered nurse. She is deeply involved with the unit:
"Last year the Respite Unit for the mentally ill in Gainsborough road Crewe was closed despite all our efforts to keep it open. You intervened on our behalf but unfortunately to no avail. Prior to its closure in May 02 four of us had a meeting with management and were promised in its place a Rapid Response Team and a unit to be run by trained staff and social services. None of this came to fruition.
Since then numerous clients have been admitted to hospital, who would have benefited from a short stay at Gainsborough road. Not only was it residential for 8 people. It was manned by trained staff 24 hours a day. This meant people in distress and alone could phone arty time day or night for advice and reassurance. The problem is psychiatric staff and social services finish work at 5 pm and are unavailable weekends and bank holidays. The only alternative is to phone Leighton and speak to a stranger.
I have been fortunate in having good community support from a psychiatric nurse and an outreach worker for whose services I pay the County Council. In your final letter to me last year you asked me to keep in touch if there were problems. Winsford has a small MIND group."
Mind is another laudable charity, but she points out:
"Other than that there are no facilities for the mentally ill."
She asks us to do all that we can to reverse that desperately distressing situation, which has exacerbated the already tough time endured by those who benefited from the services provided by Gainsborough road.
The Minister should ask mental health trusts and other NHS organisations whose work relates to the provision of mental health services about their strategies to recognise the importance of front-end respite care, because opportunities to use respite units seem to be diminishing.
Finally, I am not calling for the micro-management of that area—we must trust and boost the professionals. It is, of course, up to the Government to find the necessary resources to ensure that the right things to treat all those afflicted by mental illness can be done. There is a responsibility to examine where there are dangers to members of the public, but we should not make that the

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focus of our attention and activity. For the sake of patients, carers and professionals, we should compassionately and professionally examine the full range of treatment available to anybody who is afflicted by mental illness at any time in their life. In a civilised society, people should be able to live participative, dignified, respected and full lives. That is a minimum requirement for us to be proud to live in our country.
11.32 am
Mrs. Patsy Calton:I congratulate the hon. Member for Eddisbury (Mr. O'Brien) on securing this important debate. I was pleased to hear him refer to child and adolescent mental health services because I want to highlight an issue that affects children and their families in my constituency and, indeed, the whole of the metropolitan borough of Stockport.
I know that the Minister is not responsible for child and adolescent mental health services and, given the title of the debate, it will obviously be difficult to get answers today. I have corresponded with other Ministers about the issue in Stockport, where there is currently no specialist child and adolescent mental health service. There are no consultants in what used to be Stockport health authority, which has been subsumed into Greater Manchester health authority.
The correspondence to which I referred involved trying to find out how, despite the lack of child and adolescent mental health specialists, interim services can be provided in Stockport while child and adolescent mental health services are sorted out. Although there are 13 or 14 specialists in the Greater Manchester area, they unfortunately cannot take on work from Stockport. My latest correspondence from a Minister indicates that general paediatric consultants, excellent as they are, have the benefit of a telephone helpline. That might be appropriate for the outback of Australia but not for Greater Manchester, where the distances are not as great.
Unfortunately, child and adolescent mental health services has become an umbrella term not just for mental health conditions but for a range of others that may have associations with mental health but that are not directly mental health-related. For example, I have become particularly interested in autistic spectrum disorders, given the number of my constituents who are affected.
The Government have produced the document "Every Child Matters" for consultation. It includes much that is good and commendable, but I am very concerned that it suggests that all areas are expected to put in place a comprehensive child and adolescent mental health service by 2006. That is more than two years away at the minimum, but children and their families in my area need specialist advice now. They need to know where to go. Unfortunately, they are in the position, not just with medical health advice but with related agency advice, of having to go from one appointment to another—if they can get appointments, which is not always the case. Sometimes they have to wait two or even 18 months, when virtually everyone is aware that early intervention is needed for child and adolescent mental health problems.
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I am not in any way decrying the excellent services that Stockport metropolitan borough council and the local health service provide. I recognise the benefits of the portage service, the social care that is available, the work that is done in education and by community services, the Connexions service and the disability database. The problem is that Connexions and other services are not connected. At present, there is no lead person or professional who points parents and carers and their children to the right place. I am very worried that there may be a two-year period in which little or no improvement is made.
There are bits of excellent service available all over the place, but parents and carers must find it for themselves. It is not clearly laid out for them, and it is almost as though they stumble by accident on to some of the services that they receive. That simply is not right. They should not have to go to their Member of Parliament to find out about such services. If a child is identified as needing multi-agency work, that work should be available from the beginning.
My plea today is that the named person—the lead professional—and full, comprehensive child and adolescent mental health services must be in place well before 2006. Children and their families are suffering and having to cope now. They must get the help and support that they need before another two years have passed. It is in the interest not just of the families and the children but of the whole society that early intervention, which makes such a huge difference, and the wrap-around service that people need should be available to my constituents and others.
11.39 am
Mr. Robert Key: Mental health services in Salisbury and south Wiltshire are very dear to the heart of my constituents. Therefore, I am pleased to be able to take part in this debate, thanks to the foresight of my hon. Friend the Member for Eddisbury (Mr. O'Brien). We are all very grateful to him for securing this debate for our first day back.
I wish to address the broad issue of the provision of mental services, mentioned by my hon. Friend, and the matter of locking up people who have not committed a crime just in case they commit one. That is the most contentious part of the Government's proposals for the reform of mental health services.
I give an example from my experience. A convicted man, who was in prison for some years for manslaughter, was released into Salisbury precisely because he had no connection with the town. There was an enormous police and health service operation to provide surveillance of him from the moment he was let out of the bus. We were briefed in advance that he would be watched and were told that the moment that he broke his bail conditions he would be put straight back inside, so everything would be all right. We thought, "Is this right?" Of course, he broke his bail conditions. He hopped out of the bus, walked up the road, went straight into an off-licence and was immediately rearrested and put back inside. Everyone breathed a sigh of relief. The alternative was to say that, because this man had a diagnosed mental condition and because there was a significant chance that he might reoffend, he should not be let out in the first place. As I understand it, that is what the Government are proposing.

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In a mature democracy, it must always be unacceptable to deprive a citizen of his liberty just in case he reoffends. That is the position that we have to take. The reform of the Mental Health Act 1983 must be consensual because there will always be professional differences of opinion between different branches of psychiatry. If they cannot agree, it is right that such moral and ethical issues should be decided in the House of Commons. We will have to take those decisions on behalf of our constituents, the professionals and those to whom future laws will apply. Indefinite detention is the problem, not the solution, when it comes to mental health services, and I hope that my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) will have something more to say about that matter.
In my constituency, in common with most others, the provision of mental health services over many years has been complex. There is a complicated pattern of delivery in general medical services and, in particular, in mental health services. There was a splendid Nightingale hospital, the Salisbury general infirmary, in the heart of town, and it was an excellent place.
In 1945, the former American field hospital at Odstock, a hutted hospital that had been built in preparation for the liberation of Europe, was handed over to the new national health service. It provided the backbone of local acute services for my constituents for many years; I had my tonsils out there in about 1952 in an American hut. It did not do me any harm; indeed, it did me a lot of good. We were grateful for those facilities and for the generosity of the American people in providing them just after the war when we needed them more than they did. A hospital is still there on the same site, although I am glad to say that hardly any huts—either American-style or Nissen—remain; there is a fine Salisbury district hospital.
A contentious strategic decision was taken not to relocate the old asylum to the new hospital site. The acute provision was to be at Odstock in the new district hospital and the mental health services were given a lower priority. There is nothing new in that; it is the experience up and down the country. Mental health services always get the Cinderella treatment. However, I am delighted that a substantial building programme, which has been planned for more than a decade, is at last coming to fruition and new buildings are opening, although the strain on the mental health team has been enormous. I pay tribute to the magnificent consultant and the team who run the local site. They have been pushed around from pillar to post. They moved to a new office block to administer the service at Century house in Endless street, which is aptly named, and were then told that the premises were too expensive and that the building would be sold to pay their wages for another year. I jest not. That is what happened.
The position of the people providing mental health services has been uncertain. The team has been overstretched and undermanned and the reforms that were introduced in recent years have caused the loss of quite a lot of income from, for example, the county of Hampshire because the service went over the county boundary and provided services for part of Hampshire. That has now stopped so staff have been withdrawn.
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There has been no guidance yet on, for example, how the service can be run to conform to the new European directive on working hours. The staff have no clue as to how that will be met. That matters enormously and even more to the acute provision of mental health services than to general acute provision. The staff do not know how they can possibly afford the new mental health services in the face of such bureaucratic decisions.
The team battles on and there is no doubt that it will settle down on the new site because its dedication is clear to everyone. However, a particular problem remains—the lack of an overall strategy for the provision of mental health services, including health services for young people. The county council has an excellent children's service, which it reorganised. It provides a wonderful service for my constituents and their children, but how does its attitude to mental health provision interface with the primary care trusts and the district hospital? There are elements of the mental health service for young people and the rest of the community at the district hospital when they should perhaps be based with GPs or in a special unit run perhaps by a children's trust. Some people suggest that the way forward is for the various partners to come together in care provision. There is also the overriding problem of respite care and how that interfaces with the different agencies whose mission seems to be very unclear indeed.
I needed to put those matters on the record because this is a great opportunity for the Minister to deal with our points. She is a sensitive Minister and I know that she will do her best. However, I hope that the Government are aware that joined-up government must take account of the provision of children's services not only by her Department, but by county councils and ensure that there is a proper read-across from the acute services provided by district hospitals and GP services supervised by the primary care trusts.
In Salisbury and south Wilshire, we are holding our breath. I shall continue to speak from the heart for those constituents who need our help and I shall continue to champion the cause of the remarkable professionals who run our mental health services. In the dying years of this Parliament, we shall expect the Government to address some of the issues with more vigour than they have shown since 1947.
11.48 am
Mr. Paul Marsden: I add my congratulations to the hon. Member for Eddisbury (Mr. O'Brien) on securing this important debate. He did well to introduce the wide-ranging issues and I associate Liberal Back-Benchers with his kind tributes to many of the mental health organisations, charities and health care professionals. I also echo his concern that not a single Labour Back-Bencher seems to want to contribute to the debate, which is regrettable as the issue is so important.
I congratulate the hon. Member for Salisbury (Mr. Key) on raising constituency issues and the eloquence with which he spoke. I hope that the Minister will deal with those issues. The matters raised by my hon. Friend the Member for Cheadle (Mrs. Calton) may not fall directly within the Minister's remit, but I sincerely hope that she will pass them on to her hon. Friend because the problem is clearly serious.

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I shall direct my comments to the draft Bill, which we have seen some 16 months after the Government promised that they would introduce it. It is long overdue and will replace the Mental Health Act 1983. It is highly regrettable that the Bill seems to have been introduced in a vacuum, as it does not relate to other parts of the health services, such as primary care or housing or social services. It is a mixture of a much-needed updating of mental health legislation and repressive legislation that will lock up people who have personality disorders. I agree with the hon. Member for Eddisbury, as we will add to the stigma that is regrettably attached to those with mental health problems if we allow the Bill to proceed unamended.
The Bill seems to focus primarily on compulsory treatment in the community, and its definition of mental disorder is far too widely drawn and regressive compared with the original 1983 Act. The Bill mentions care plans but does not guarantee that they will be implemented. It also removes the treatability test in the original Act, which is that an order for compulsory treatment can be made only when treatment is likely to alleviate or prevent a deterioration of the medical condition. I cannot understand why that is removed.
The Bill may lead to excessive and inappropriate use of compulsory treatment in community settings, and real damage may be done to the relationship between the health care professionals and their patients, who will have the fear of compulsion hanging over them. There may also be pressure on the professionals to recommend compulsory treatment in the community as a form of defensive medicine. We already have the ongoing problem of disproportionate use of compulsory treatment for patients from ethnic minorities—that will continue and might be made worse by the Bill.
Other vulnerable groups, particularly the homeless, will also be targeted by the Bill. In 1998, the Government published their report on rough sleepers, which found that between a third and a half of the homeless suffer from mental health problems. We should be trying to help those people more rather than locking them up, which will be the practical effect of the Bill. That will also be a distraction to and diversion of existing mental health resources, taking them away from where they are needed—front-line patient care—into more bureaucracy and red tape. We will find more procedures to cover compulsory treatment, which may ultimately be a waste of public money.
The worrying point is that the Government, after being opposed by more than 50 mental health groups led by the Mental Health Alliance, want to go even further. In June this year, The Guardian reported that following a meeting between the Home Office and the Royal College of Psychiatrists, the Government want to give courts the power to detain in hospital people who are deemed to be dangerously mentally ill, even if they are not charged with an offence that is punishable by prison. For example, if someone was stopped for speeding and deemed to meet the criteria, they would be locked up.
That is not my suggestion, but that of Tony Zigmond, the Royal College of Psychiatrists' lead member on mental health reform. He has also said:
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"This new plan is a disgrace and shameful. The government should be hanging its head in shame in how it is treating the mentally ill. If this action was taken against any other group in society it would be called prejudice."
This is not a personal attack on the Minister, because she is new to the issue and I know that she is a fair-minded individual who has a good track record of listening to people. I hope that she will listen now, as there is a danger that this will come across simply as a quick-fix solution to try to grab an easy headline for the writers of certain right-wing newspapers to satisfy their prejudices.
The professionals are overwhelmingly against the current form of the Bill. What was reported in The Lancet belies the Government's approach. It said that at a conservative estimate, six people with dangerous and severe personality disorders would have to be locked up to prevent one of them from possibly acting violently. Five out of six people, who are not violent and are no danger to society or themselves, could be locked up to try to find that one other who might be. That is no way to act in a decent, democratic society.
I shall put that figure in context and get it into proportion. Each year there are approximately 700 tragic homicides. Every life is precious and we want to act where we can to reduce that number. Out of that average of 700, however, only about 39 a year can be attributed to people who have been referred to mental health services in the year preceding the offence. Those 39 may have had mental health problems that led to the violence, but we do not know that for certain. Let us weigh that up against the fact that, as reported in the last health profile in June, in my county Shropshire alone there are on average 31 suicides. Almost as many people commit suicide in one small county in Britain as arguably have mental health problems and commit homicide in the whole country. Yet, to try to satisfy those headline writers, all the attention seems to be focused on the draconian action that the Government should take against those individuals.
Likewise, as has been said, the number of prison suicides has risen under this Government from 41 in 1997 to 94 at last year's count. This year, the number will be more than 100. A person is 13 times more likely to commit suicide in prison than in the wider community. Does that not tell us that something is fundamentally wrong, which the Government should address rather than focusing their attention as they have?
The Liberal Democrats would like to ensure that the treatability test is put back into the legislation. We want to ensure that there is a reciprocal principle so that where compulsion is required—sometimes it is—entitlement to appropriate care and access to that care is also guaranteed. There should be the necessary resources for all the additional administration that will no doubt be created and there should be a guarantee and a right for all patients to nominate a person to act on their behalf, including access to trained advocates. In short, we want treatment and care of the mentally ill to be based on optimising patient advocacy and providing the highest quality care for those who need it. The vision should be about people, not about perceived problems. We want more support for families, carers and mental health professionals, who are overworked and under enormous pressure. The Royal College of Psychiatrists has said that another 600 professionals will be needed to cope with the new legislation.

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My questions on the Bill for the Minister are as follows. When will the final Bill be published? Have the Government listened to the thousands of voices steadfastly opposed to the current drafting? Will they focus the new mental health Bill on the individual patient rather than on the Home Office's perceived problems? Otherwise, the Liberal Democrats, like the Conservatives, will oppose that legislation.
One final thought: we talk about our concerns at a high level and we are concerned about possible effects, but the Government are not tackling the fundamental problems. A gentleman came into my office three or four weeks ago. He was homeless. He readily accepted that he had mental health problems. He had been released from hospital in Yorkshire and was wandering around the country. He had arrived in Shrewsbury and was trying to find a place for the night. There was a complete lack of understanding; there is no joined-up thinking between services. My office spent two hours on the phone trying to secure a roof over the gentleman's head. There was a lack of understanding—the housing office wanted him to walk a mile and a half to fill in forms so that they could put a roof over his head for that night. They then expected him to walk another half mile or so in order, possibly, to secure some travel money. As he was mentally ill, he refused to travel by train. He would take only buses or coaches, so we had to ensure that we could get him back from my office to the Yorkshire hospital the following day. We did that, but we did not do it by filling out forms. We did not do it by saying, as the services seemed to do, "We expect you to walk all the way across town even though you have broken ribs because you slept rough on the streets. I'm afraid we do not take any great interest in your personal well-being." It was easier for me to pay for a bed and breakfast to take him in for the night than to force the services to work together and to appreciate what it is like to be mentally ill. Such problems can be overcome; nevertheless, a helping hand is required. That is what it is all about.
The Government will say, rightly, that there are more resources and I congratulate them on that and on making it a priority. However, they must ensure that the resources get to the front-line services. They must ensure that they start to deliver for the most vulnerable people in society. At present, they are failing those people.
12.1 pm
Tim Loughton: What the debate has lacked in numbers, it has certainly made up for in quality. I reiterate the congratulations to my hon. Friend the Member for Eddisbury (Mr. O'Brien) on returning to this important subject. He was right to say that the former Minister responded woefully to the debate on 7 May, which made it all the more necessary that we keep the subject at the top of the agenda. My hon. Friend struck exactly the right note with his wide-ranging comments—perhaps not surprisingly, as I noticed during his speech that his comments were written on the back of a music score. The way in which society values and looks after people with mental illness is a touchstone of the strengths of that society.
I agree with the hon. Member for Cheadle (Mrs. Calton) about the big problems around the country with child and adolescent mental health services. There are
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big divergences in the level of services provided and early intervention for young people is crucial, because it is a false economy not to get to the root of the problem while an increasing number of young people develop mental illness in those early years.
My hon. Friend the Member for Salisbury (Mr. Key) is absolutely right about coercion. There is a libertarian issue in the proposed legislation. We all agree with his comments about a Cinderella service, although we did not know that he had made such a large personal sacrifice of his internal organs to cement Anglo-American relations in the post-war environment. The details he gave suggest a tonsils-for-tanks approach.
The debate is timely because the Queen's Speech is in a few weeks, and Opposition Members hope that it will include a mental health Bill that reflects all the horror at, and the objections to, the Government's original attempt in draft form 16 months ago. It is also timely to have the debate a few days after world mental health day last Friday, in which I am sure many hon. Members participated.
Part of the Conservatives' intention is to keep mental health high up the agenda, and to raise the profile of a subject that has been far too much hidden away and feared as a taboo. We have held two mental health summits in Westminster and we should be holding a third at the end of the month ahead of the debate on the Queen's Speech. We have been working with the Mental Health Alliance and all its partners to maintain the pressure for the right mental health legislation.
The debate is also timely because, as hon. Members will remember, the extraordinary headline "Bonkers Bruno locked up" appeared in The Sun just three weeks ago. Many of us who saw that headline recoiled in horror at the language used by our most popular tabloid newspaper. Frank Bruno would not have attracted that sort of headline if he had been diagnosed with cancer or had suffered a stroke. Why, therefore, should he be castigated in such disgraceful terms simply because he fell foul of a mental health problem? We must reach the day when people with mental health problems are treated no differently from those who have suffered a stroke or have a condition such as diabetes. Mental illness is just another health problem; it does not make people any less human or less deserving of the help and treatment that is required than if they had a physical ailment.
As my hon. Friend the Member for Eddisbury rightly said, the way we treat people with mental health problems is a test for society. That headline pandered to the "lock 'em up" mentality of certain tabloids, and I fear that the Secretary of State for the Home Department shares that mentality. That is not the answer. We must give the mental health services greater access to funding within the NHS, and further dispel the stigmas that affect one in four people in the UK.
However, that headline did a lot of good, because the readers of The Sun forced the paper to reverse its approach. The following day, it contained an article by Marjorie Wallace, the chief executive of SANE, and the paper has been forced to set up a fund to help people with mental health problems. I welcome that big turnaround in its approach. It could prove to be a

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significant turning point in the way in which people regard mental illness. I wish The Sun well in its conversion, if it now promotes a manifesto for greater understanding of mental health by ordinary people in the UK. In targeting Frank Bruno, The Sun picked the wrong target, and I am glad to see that he is fighting back. I am sure that all hon. Members here today wish him well.
It is important to discuss mental health services because, as the hon. Member for Shrewsbury and Atcham (Mr. Marsden) said, we are not merely updating the 1983 Act. Mental health legislation is still based on the legislation of 1958 and 1959, and it is therefore about 45 years since it was fundamentally reviewed. That is why we must get the new legislation right.
The evidence, however, does not give great cause for optimism. YoungMinds, which was mentioned earlier, launched its new website on mental health day. I congratulate that organisation on the great job that it does in providing information to people affected by mental health problems. One million children have some sort of mental health disorder, yet only 27 per cent. of them will receive assistance from specialist health services. Some 45 per cent. of looked-after children between the ages of 15 and 17 have some sort of mental disorder, and that problem needs to be given greater priority.
I also refer to the campaign by the The Independent on Sunday. A recent article by Sophie Goodchild, which was based on research done by the newspaper and by the Conservative health team, focused on the treatment of people from ethnic minorities with mental health problems. The article revealed some starkly worrying figures. For example, Afro-Caribbean men are seven times more likely than white men to be sent to a medium-secure unit, 51 per cent. of patients in the London psychiatric hospitals surveyed were black, compared with their 17 per cent. representation in the population as a whole, and 28 in every 100,000 black men end up in a secure unit compared with four in every 100,000 white males. Women born in India and west Africa have a 40 per cent. higher suicide rate than those born in England, and Caribbean men are 10 times more likely to be diagnosed as schizophrenic.
I therefore ask the Minister how the Government are addressing the problem with real action. Is it true that the Government suppressed a report by Professor Sashi Sashidharan? She is a member of the Government's mental health task force and produced the report "Inside Out", which concluded that mental health services were institutionally racist, that the issue of ethnicity in mental health services has been marginalised or even ignored and that the problems were getting worse. Perhaps the Minister would like to comment on that.
I have mentioned the campaign by Maca concerning people suffering from mental health problems in the workplace and my hon. Friend the Member for Eddisbury has covered that ground. I would also like to mention the survey by the Royal C allege of Psychiatrists concerning funding, which found that on average among mental health trusts there had been a real-terms reduction in budgets of 0.8 per cent. Out of 45 trusts
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surveyed, three had experienced a reduction of more than 5 per cent. in their budgets, another three had experienced a reduction of between 2 and 4.9 per cent., and 10 a reduction of just under 1 per cent. Those are alarming figures.
We hear about all this new money but it is not ending up at the sharp end treating people with mental health problems where it is required. We carried out an extensive survey of all mental health trusts throughout the country and found—surprise, surprise—that the new money is being used far too much to pay off inherited debts. We found that 73 per cent. of trusts have not yet employed primary care workers, only 22 per cent. have multi-disciplinary assertive outreach teams, only 17 per cent. have early intervention teams, only about half the trusts with crisis resolution teams have 24-hour cover, 85 per cent. of the trusts that we spoke to said that the provision for child and adolescent mental health services is inadequate and that 70 per cent. do not offer women-only day-care facilities. Those provisions are all required by the Government's mental health strategy. Boxes have been ticked, but at the sharp end the services are not there, the coverage is far too patchy and people are not benefiting from the things that we all agree they need.
I come finally to the draft Mental Health Bill. It is a vital opportunity to update 45-year-old legislation. The draft Bill was published 16 months ago, but more than 2,000 consultation responses have still not been published by the Government. Will the Minister tell us when those consultations will be published, and will she confirm that they will be published in full rather than in some abbreviated form? Will she give us a progress report on whether we are going to see the Bill in the Queen's Speech? Will it be the same as the draft Bill, or will it be a properly amended Bill that takes account of the consultations? Will the Bill be examined by a pre-legislative scrutiny committee? A precedent has perhaps been set by the draft Mental Incapacity Bill, and many of us would welcome such consideration given the legal expertise one would be able to call upon from both Houses to inject some sense into the Bill. Perhaps the Minister will show us that the Government really are listening in relation to this important legislation.
We have serious problems with many aspects of the draft Bill and, most of all, with the elements that involve coercion. There is also the duty to provide general assessment that is not a requirement. The treatability test has already been mentioned, and we want to see process and safeguard measures involving advocates, nominated people and the role of carers. There is the issue of continuity of care such as the right to free treatment for mental health, which was in the 1983 Act and is not mentioned in the draft Bill. Some people require special protection: what are the rights for 16 and 17-year-olds who fall down the gap between child and adult services? How will the legislation relate to the Children Act 1989?
There is also the matter of some of the more severe treatments, such as ECT, psychosurgery and high drug dosages. Prescribing standards are not mentioned in the Bill for those and other intrusive treatments, but will it take account of them? Many questions arise from that draft legislation, and we need to get it absolutely right. It is vital legislation that we have the opportunity to produce only once in a generation. I urge the

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Government to introduce a proper Bill. Let us take the coercion out of it. We need a Bill that is all about treating people and helping people with mental health problems—a health Bill—rather than a Bill that is all about locking them up, which would be a law and order Bill. I hope that Minister and her colleagues are listening. If they are not and the Government go ahead with the draft Bill as it was, we will be part of the enormous alliance that wants to kill the Bill and get back on track with real mental health legislation that is about helping people with mental health problems, not just about locking them up and stigmatising them.
12.14 pm
The Minister of State, Department of Health (Ms Rosie Winterton):It is a pleasure to serve under your chairmanship, Mr. Deputy Speaker. The debate has been very interesting, and I congratulate the hon. Member for Eddisbury (Mr. O'Brien) on securing it. It has highlighted the importance of developing modern mental health services for the one in six people at any one time who suffer from a mental health problem.
I shall try to address as many of the points raised in the debate as possible, as well as some aspects of the draft Mental Health Bill. I hope that hon. Members will understand that I cannot go into too much detail about the Bill at this stage, but I shall certainly try to return to it.
I begin by highlighting the fact that the priority that the Government have given to mental health, putting it up there with cancer and coronary heart disease, has been welcomed by all sections, many of whom felt that mental health had been considered a Cinderella service. There has been under-investment in it for many years. Many hon. Members have talked about targets, planning and priorities. The feedback that I get from those who are working on the front line and in the voluntary sector is that we should continue to give mental health the priority that it has at present, because what has happened has made a real difference.
Before there is too much condemnation of targets and priorities, I urge hon. Members to bear in mind the people who are involved. I join the hon. Member for Eddisbury and others who praised the work that is done in this very important sector, not only by many thousands of NHS staff but by those who work in the voluntary sector and by the many thousands of carers who give our society so much support in very difficult circumstances.
One in six people at any one time suffer from a mental health problem and, as the hon. Member for Eddisbury said, suicide is the most common cause of death among young men. We have tried to address that in the strategy that we published recently in an effort to consider the issue and to see what more can be done. Each year, more than 600,000 people with serious mental ill-health problems receive care from specialist mental health services, and many more look after themselves or rely solely upon their GP.
Let me give some background to the national service framework. It was designed with the input of stakeholders and service users. It identified the need for early intervention and crisis resolution, so that people were not put into a hospital situation but, as far as possible, were treated in the community. To fast
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forward delivery of the NSF, £300 million has been made available. It is new investment, over and above the 2001–02 baseline.
There are criticisms about how the funds have been feeding through to front-line services, and the hon. Member for East Worthing and Shoreham (Tim Loughton) talked about that. Hon. Members must bear it in mind that the first year was a planning year that allowed people to get a proper idea of where the money would go and which services needed to be provided at local level. We have absolutely firm evidence that, last year, some £262 million extra was spent. That has resulted in more than 100 crisis resolution teams and more than 200 assertive outreach teams being in place, and in targets for early intervention teams. At the same time, we want to consider whether there are new ways of working in those teams, to break down some of the traditional barriers that have prevented the working together that we need across the professions. The money is getting out there.
We recognise that there are recruitment problems in some areas, but 25 per cent. more psychiatrists and 7 per cent. more nurses are in place. We are considering other issues, including graduate workers, so that we can ensure that the teams operate appropriately.
Tim Loughton Tim Loughton rose—
Ms Winterton:Let me say this, because it may deal with what the hon. Gentleman wants to say. When we feel that the plans are not adequate, we are working with strategic health authorities to ensure that the money is directed towards the targets and priorities that we have set. Although it is important that local people set up ways of working that suit their areas, we are concerned to ensure that, through the SHAs, there is the right service delivery. We will work with the SHAs on an ongoing basis to ensure that that is the case.
Tim Loughton:Will the Minister confirm that, on matters such as crisis outreach teams, the figures that she gave related to a snapshot date, which I believe was 31 March? There are many cases of someone's date of leaving the service being stretched to 1 April and the date for the new person coming into the service being brought forward to 31 March, so that both could be counted in the figures for 31 March, although in reality there was only one person. That is the sort of bogus nonsense on which many of the Minister's figures are based.
Ms Winterton:I reject the assumptions behind the hon. Gentleman's remark. The figure for the money being spent is based on the autumn survey. I need to correct myself in one respect, because in fact the number of consultant psychiatrists has increased by more than 20 per cent. since 1997, the number of nurses has increased by more than 25 per cent. and the number of psychologists has increased by more than 50 per cent. However, we are not complacent. It is important that we continue to ensure that the 24-hour service to which the hon. Member for Eddisbury referred is available. I assure him that, when there are areas of concern, we want to ensure that an efficient, effective and high-quality service continues to be available to people.

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I shall deal briefly with the draft Mental Health Bill before addressing some of the points that were raised. I cannot today give some of the detail on the Bill for which hon. Members asked, but I can say that I worked throughout the summer with the stakeholder groups to ensure that we have the right Bill and I will continue to do so. I know that there are concerns, but in this area we must have a balance. I think that we all agree that there is an overall need to update the 1983 legislation. We need extra safeguards for the people who are detained. We need to ensure that the legislation is updated to make it compliant with the European convention on human rights. At the same time, with regard to stigma and discrimination, we must recognise that we need a system that reassures people that there are safeguards for the wider public. In my discussions with organisations from the Mental Health Alliance, we are reaching a consensus over some of the principles and we are discussing some of the practicalities of how the legislation will work.
I can give a firm reassurance that it is certainly not our intention to increase the number of people subject to compulsion. The definition of mental disorder coupled with the strict conditions that must be met before compulsory powers can be used will ensure that only people for whom compulsory treatment is necessary receive it. The Bill will not oblige doctors to treat patients nor make people use facilities. The conditions for compulsion include the requirement that appropriate medical treatment must be available for the individual patient concerned. That should reassure hon. Members who have raised that point. I hope that, in discussions with the groups involved, hon. Members will receive feedback that suggests that we are making progress in addressing concerns that have been raised through our examination of how the Bill can be put into practice.
I take on board the comments that have been made on children's and adolescent mental health services. We recently announced an extra £240 million for that. I realise that there is slow progress at the moment but we are looking to improve those services as quickly as we can because of the very real problems presented there.
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On stigma, the hon. Member for Eddisbury mentioned pathways to work. He is absolutely right. I am working with the Department for Work and Pensions to see how we can ensure that we give support to people who have been on incapacity benefit for a long time but wish to return to work. We must make sure that we do not write them off as being incapable of doing any more work for the rest of their lives. In many senses, that means, as he said, changing the perceptions of health care workers. Returning to work should be seen as part of getting better and returning to normal life, rather than it being said that being on incapacity benefit is how life is going to be led in the future. It is important to take a cross-Government approach, which is why the social exclusion unit brings together different Departments to examine discrimination against people with mental health problems.
In addition, it is important to get the message over to employers that they need to provide support to people who are in work and suffering from stress problems. Recently I, along with some high-profile people in the private sector such as Lord Stevenson, launched more guidance to employers to ensure that such support can be available. Employers should no longer be frightened of how to cope with someone who says that they are suffering from stress. We need people to come forward and be upfront about their problems, but we also need to ensure that employers have proper strategies in place to deal with them.
The hon. Member for Eddisbury also mentioned losing benefits. There is quite a lot of flexibility in the benefit system at the moment. We are running pilots through pathways to work to look at how we can improve that.
I absolutely agree that there is much more that we can do on the role of community pharmacists, especially in medicines management and respite care, which are very important and must be delivered at local level.
Today's debate has been constructive and has raised many issues, but I hope that I have provided reassurance that we are making progress in the national service framework. Issues still need to be addressed and we are well aware of them, but we are moving to ensure that there is a high-quality service for people with mental health problems and that a mental health Bill will provide greater safeguards to this important group of people while at the same time providing the public with proper security.

Offshore Oil and Gas
12.30 pm
Mr. Bob Blizzard: I am pleased to have secured this debate, particularly at a time when the United Kingdom oil and gas industry is at a crossroads. Oil and gas is not a sunset industry, either in this country or the rest of the world. In energy debates in Westminster Hall and in the main Chamber, hon. Members often argue that we are running out of oil and gas. That is not true in the world. Vast reserves remain and many remain to be discovered. I am sure much more oil and gas will be discovered following advances in technology and innovation.
We are not running out of oil and gas in the UK either. Production reached an all-time high only last year or the year before. We will be a net importer of gas in about five years, but we should also remember that this country is the fourth largest gas producer in the world and the 10th largest oil producer in the world, making us a substantial player on the world stage. We will continue to be so for a good while to come.
There may be as much oil and gas left yet to be extracted as has already been produced to date, which means that we are probably half way through. In the early 1960s when gas and oil were discovered, it was said that reserves would last 20 years. We are still saying that they will last 20 years. What has changed in the meantime is the huge technological advance, which exposes another false perception about the oil and gas industry. It is not a dirty, dinosaur industry but a high-tech industry involving leading-edge engineering solutions. That image needs the well-paid, high calibre jobs that are on offer.
My final introductory point concerns the sheer scale of the industry and the magnitude of its impact on our economy. We all know the huge amount of money that was involved in building the channel tunnel. The oil and gas industry is equivalent to a channel tunnel each year in terms of spend. It supports approximately 265,000 jobs and has generated £190 billion in revenue for the Treasury through taxation since the 1960s.
Why do I say that the industry is at a crossroads? For the past few years there has been little new exploration. Few wells have been drilled. Only about 16 were drilled in the United Kingdom continental shelf last year and some of those were not particularly exploratory. That has to be a concern because if we do not explore we will not find; if we do not find we cannot produce; if we do not produce we will not maximise the extraction of the oil and gas that we need for our own energy needs and for Treasury income through taxation. It has been said time and again that undiscovered fields pay no tax at all.
We also need to maximise extraction for jobs and the economy, especially in oil and gas areas like my own constituency. A recent study of the East Anglia oil and gas area concluded that there were about 6.2 jobs in the local economy for every operating job in an oil company through contractors and the supply chain. That is a telling statistic. Many of the issues relating to low levels of exploration have been focused on by Pilot. Pilot is a model of industry-Government co-operation. More than one incoming American chief
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executive officer to whom I have spoken has complimented us on how accessible our Government are and how they are listened to much more than their Government.
In spite of all Pilot's good work, we still have low levels of exploration. The Chancellor was wise when, earlier this year in the Budget, he announced a review to examine the issues and identify measures to stimulate and encourage more exploration.
It is not the case that nobody is interested any more in exploration in UK waters. It is true that our oil and gas province is in its mature stage and that most—although certainly not all—of the big discoveries have been made. We have a healthy number of new companies—they are often smaller, but are still big companies in themselves—which have been entering the United Kingdom continental shelf with exploration ambitions. Some are showing a keen interest in wild-cat exploration and some are interested in doing more exploratory drilling around the margins of existing fields. It is noteworthy that there are 53 companies involved in the latest licensing round under the new promote rules, which encourage the kind of risk taking that we want to see. I congratulate the Department on coming forward with that promote round.
We could be on the verge of a new era in the North sea. However, a number of obstacles need to be tackled as part of the review. For a start, there is access to infrastructure—the existing platforms and pipelines needed to get new reserves and finds ashore. I have heard of numerous complaints from companies both large and small about unreasonable charges demanded by some of the majors who own the infrastructure. Those charges, based purely on avoidance costs, block developments or delay them while long-winded negotiations take place. That kind of problem discourages the new culture of exploration and risk taking that we want to foster in the United Kingdom continental shelf.
The Department of Trade and Industry has powers to intervene if it receives a complaint but, of course, no one has ever made a formal complaint because people in business—often small players—do not complain to the Government about people with whom they want to continue to have some kind of business relationship. The DTI must not wait for complaints. It must establish an interventionist regime and an independent watchdog to determine fair rates. I urge the Minister to be strong when formulating the proposals under the review. We cannot allow our country's natural assets not to be exploited because of individual companies' positions in the marketplace of infrastructure use. We have tried voluntary codes of practice, but I do not think that they have worked sufficiently, and they certainly have not worked fast enough.
Time and pace are the key issues. If the stacked-up drilling rigs around this country are not commissioned soon, they are likely to move to other parts of the world and it would be prohibitively expensive to try to get them back again. Also, some necessary infrastructure—the hubs and platforms—is getting older. The longer it is left, the more expensive its maintenance becomes, adding to cost in marginal fields. If it is decommissioned, we will lose

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opportunities completely. That is why access to infrastructure must be taken seriously and why the Government must be strong about it.
There are similar problems with access to seismic data. Again, complaints have been made that it is difficult and sometimes costly for smaller companies to obtain such data. In the interests of the whole country, we need a national archive of that information that is open to all. We need a shift away from a culture of confidentiality to a culture of openness and co-operation and we need to recognise that there is a shift going on in the North sea from a small number of dominant players to a diversity of many more smaller companies.
Another, even more basic, obstacle to the exploration that we want to see is that some licences are retained by operators who are, not doing anything with them. I understand that about half the North sea licences were awarded in the first four licensing rounds and, with oil company mergers, about two thirds of those licences are operated by just three companies. We need a robust process whereby operators agree to relinquish licenses for areas where they are not active. That should apply to blocks with no discoveries as well as those where a discovery may not have been developed. Good work has been done on that in Pilot, but such work and discussions must come to a crunch. We must apply a new, tougher regime to all such licences in the national interest to maximise the recovery of oil and gas. Companies that are willing explorers must have early access to blocks; time is of the essence.
Another problem is the alignment of partners. Many potential developments involve several companies, some of which may want to make progress while others do not, because that does not fit their global investment plan. I do not know what the Government can do about that; it is a difficult situation but we need discussions. Some companies are frustrated at not being able to proceed with what they view as an excellent opportunity because another company has different priorities. Time is running out.
Another obstacle is the fiscal regime. The Treasury has set a regime for existing production, much of which is derived from bigger and easier past discoveries. We must have a different regime for future fields and finds, which will be riskier, harder to find and smaller. We can learn lessons from other regimes around the world, where the mature phase has been reached. No tax is payable on undiscovered fields, so the Treasury has an interest in stimulating developments. I emphasise that we must not look at the issue solely in the context of a narrow equation on offshore taxation. We must consider the wider economic benefits that can flow to communities around the country, both locally and nationally, from the employment and supply-chain activity, and the tax that the Treasury can levy on that.
We must concentrate on measures applicable to drilling that would otherwise not take place, possibly including appraisal wells, which occasionally have to be drilled. We are considering not only outer margin wildcat drilling, but sometimes satellite drilling of existing fields, which may require an incentive to make it viable. A fiscal incentive is needed if we are to realise
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the potential and enter a new era with new entrant companies. We must listen to the experiences of those companies and their ideas. We do not have to accept everything that they say, but if we do not listen there is a danger that we adopt a mentality of managed decline.
The other side of the deal must come from the companies, whether new or old, large or small. The gain to the UK from the measures I have described will be jobs and economic activity flowing from discoveries. That will be realised properly only if the work goes to competitive contractors in the UK. It was sad that most of the fabrication of the last big development—the Clair development—went to Norway. Sadly, we now recognise that we no longer have the capacity to fabricate large jackets. However, UK companies are competitive for other parts of the platforms, and I hope that there is no repeat of the Clair scenario for any other big developments. I am sure that my hon. Friend the Minister shares my concern.
The process of the ongoing review is impressive. The DTI, the Treasury and the Inland Revenue have worked closely together and engaged widely and thoroughly with the industry. I cannot believe that the Government can undertake that kind of task every other year. This is the final opportunity to get the taxes and regulations on the industry right for the future to ensure that the new era occurs. Time is of the essence and the window of opportunity will close if we do not act decisively.
The key to maximising oil and gas extraction, which has always been the first aim of all policy through Pilot, is the pace of activity in the North sea. We need a positive announcement in the pre-Budget report. The problem is not that oil and gas are running out. The critical issue is the time left in which to exploit those resources. Time need not run out, and I hope that this timely review will deliver results.
12.45 pm
The Minister for Energy, E-Commerce and Postal Services (Mr. Stephen Timms):I start by congratulating my hon. Friend the Member for Waveney (Mr. Blizzard) on securing this debate. People working in the industry have told me how much they appreciate his support and constructive lobbying.
The Government and the UK oil and gas sector have two main objectives. First, we must ensure that oil and gas resources within the UK continental shelf are fully and effectively exploited. Secondly, we must maintain the UK's pre-eminent position as a centre of expertise for the oil and gas sector.
I agree with my hon. Friend that to maintain that world-class reputation, the Government and the industry must work together. I also agree that Pilot—the oil and gas industry task force—has been an extremely valuable collaboration. In particular, a lot of work has taken place to ensure that the North sea remains vibrant and continues to attract investment from around the world.
My hon. Friend rightly made the point that the region is maturing, but he is also right to point out that there are still a lot of opportunities. The recent success of the Buzzard discovery—the largest UK offshore oil find in the past 20 years—is evidence of that. The scale of the

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find caused some surprise, but, as my hon. Friend said, huge quantities of oil and gas—potentially greater than the amounts that have already been extracted—can still be produced from under the North sea. We must ensure that those opportunities are fully taken up.
We are keen to attract new players to the North sea, and I am glad that a number of the companies that have come here have had some important successes. It was excellent news to hear last month that Venture, which is comparatively new to the North sea, has made a successful discovery at Annabel in the southern North sea. That well has been tested at rates exceeding 50 million cu ft of gas per day and could deliver its first gas in 2004–05. I look forward to receiving a development plan for that field in the near future.
We want to encourage new entrants into the UKCS and to make things easier for those companies that are already here. That is why we have introduced the new master deed through Pilot, which brought in a streamlined system for licence and assets transfers. I was pleased recently to announce consent to the first transaction under the new system, namely BP's sale of its Bacton area assets to Perenco. I hope that others will now take advantage of the new system's benefits.
In the long-term, some 15 other north American companies are undertaking strategic assessments of the UKCS. They include US companies such as Apache, ATP, Challenger Minerals, Palace Exploration, Newfield Exploration and EOG, and Canadian companies such as Talisman, EnCana and CNR. We welcome their interest, which we want to reach fruition.
Mr. Frank Doran: Does my hon. Friend the Minister accept that all those new entrants, which we welcome to the North sea, face the fundamental difficulty—spelled out by my hon. Friend the Member for Waveney (Mr. Blizzard) in his important contribution to today's debate—of the control that the existing operators have over infrastructure? My figures are slightly different from those of my hon. Friend, but I understand that about 60 per cent. of the acreage left for exploration in the North sea is owned by four individual companies. We have reached the stage in North sea development in which the interests of those companies that first developed the North sea are perhaps running counter to the national interest. Most of the new incomers see access to the infrastructure and the unexplored acreage as fundamental, but it is far too expensive.
Mr. Timms:My hon. Friend raises important issues. I know how much his support for industry, particularly that part of it that is based in Aberdeen, is welcomed by leading players in the industry. We need to make much more progress in addressing the problem of fallow fields that are not being exploited at present and I will say in a moment what we are doing in that respect. It is important to stress that we want the major North sea players to continue to take an active role and I am glad that they showed a continuing interest in the 21st offshore licensing round.
My hon. Friend the Member for Waveney talked about the promote licences, which have been very successful. On 18 and 19 November, the Department
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of Trade and Industry and the Petroleum Exploration Society of Great Britain are jointly hosting UK Prospect Expo 2003, where there will be a good deal more information about what it is anticipated will come out of those plans.
My hon. Friends raised the issue of fallow assets. During the last 18 months, the fallow initiative, which has been taken forward through Pilot, has been aiming to stimulate more seismic activity and drilling on blocks and discoveries that have seen no activity for four or more years. We continue to push the industry hard to relinquish fallow acreage because, as my hon. Friends rightly said, we cannot afford to have assets sitting idle—in a number of cases, for a very long period.
There have been some successes. We have targeted more than 300 fallow blocks and discoveries for action and there has been significant renewed activity on more than 60 of them. More than 40 blocks have been relinquished and have been, or soon will be, offered for re-licensing. The next major release of fallow blocks will occur early next year and will contain many blocks from the first to the fourth round of licensing. As a result, I hope that there will be progress in opening some fields that have not been active for some time.
We must continue to work hard to increase exploration levels. Like my hon. Friend the Member for Waveney, I welcome the work being done by the Treasury. We have been looking closely at the two issues highlighted by my hon. Friend—access to existing infrastructure and access to seismic data. I agree with my hon. Friend that the offshore infrastructure on the UK continental shelf is one of our most valuable assets. It provides a basis for the continued exploitation of our offshore reserves, which might otherwise be uneconomic. We have looked closely at the issue through the Pilot working group, which has agreed to a new level of transparency on the deals being done in aspect of access to infrastructure and also on the potential of a new process of intervention by the Secretary of State, who is automatically brought in when negotiations are unsuccessful. The Secretary of State also has access to legislative regulatory powers and to the Competition Act 1998. We have reached agreement on those points through the Pilot working group, and that is an important step forward in addressing the issue that my hon. Friend raised.
My hon. Friend also spoke about access to data, and I agree with him. A great deal of data have been gathered in the United Kingdom during 30 years or more of oil and gas activity. During Offshore Europe in Aberdeen last month, I announced two significant initiatives to improve access to that collection of data. Those initiatives are the result of close collaboration between the Government and the industry through the Pilot forum. I am pleased that UK companies have helped in that process by agreeing to allow the Department of Trade and Industry to publish exploration data after four years, which is full year earlier than previously.
In addition to exploration, we should not forget brown fields. Those that are already in production have the potential to yield prizes in terms of activity, investment and jobs. New approaches and new technology often allow operators to increase recovery

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from a field far beyond the levels originally predicted. I am delighted that in the past couple of weeks Tuscan Energy in Aberdeen has achieved the first oil production from its Ardmore field—formerly Argyll—bringing the UK's first field back into production 11 years after it was abandoned. That is an important illustration of the remaining potential on the UKCS.
Tuscan Energy has successfully redeveloped the field with the use of modern, long-reach drilling technology and production is expected to peak at 40,000 barrels per day in the first quarter of next year. Achieving further production from the field is an important achievement and a tremendous boost for the North sea. That shows just what is possible with new thinking and new technology and it is good news not only for the oil and gas industry, but for the economy as a whole.
Angus Robertson:On new thinking, will the Minister confirm that a number of initiatives are being considered to boost exploration., which is the main issue facing us in the oil and gas industry? When are the Government likely to make public the conclusions of those initiatives and how will they ensure that the initiatives have the desired effect of boosting exploration?
Mr. Timms:The industry is optimistic that the measures that we are discussing will achieve the objective. I have spoken a little about progress on the non-tax issues and in due course my right hon. Friend the Chancellor will make announcements about progress in the Treasury and Inland Revenue. I know from my discussions with the industry in private and when I was at
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Offshore Europe at Aberdeen last month that there is a lot of optimism about what we can achieve with the industry and Government working together.
Another important area is co-operation across the meridian line in the North sea between the UK and Norway. The energy White Paper heralded the forthcoming UK treaty with Norway to facilitate continued supplies of gas and followed last year's Pilot and Kon-Kraft report—Kon-Kraft is the Norwegian counterpart to Pilot—on North sea co-operation, which recommended that a new treaty be put in place to clarify the regulatory framework for a range of commercial projects across the boundary. That includes pipeline projects transporting gas across the meridian line, field developments that straddle that line and the use of host facilities for developing reservoirs from one side of the line, using infrastructure on the other.
The week before last marked a key milestone in the future partnership between the UK and Norway when both Governments signed up to principles that will underpin future cross-boundary oil and gas co-operation between them. These are to be incorporated in a new framework treaty. The agreement of principles to go into that treaty constitutes the most comprehensive energy co-operation yet between Norway and the UK and will facilitate the delivery of 20 billion cu m a year of Norwegian gas to the UK, which is equivalent to 20 per cent. of UK gas demand from 2006 and around the same proportion of Norwegian gas production. That is key to unlocking the remaining reserves within the median corridor and it will set us on the road to realising the $2 billion co-operation prize identified in last year's report. Pilot and Kon-Kraft are holding a joint meeting in London next month where I hope that we can further explore the opportunities for co-operation.
We must work together to maintain the UK as a centre of excellence for the business.

Post Office Closures (Eastbourne)
1 pm
Mr. Nigel Waterson: I am delighted to have this very timely opportunity to raise the subject.
Although the title of the debate refers to Eastbourne, this is a national issue. Government policy has been a direct cause of anything up to half the post office network being rendered non-viable at a stroke. The introduction of direct payments—leaving aside all the other difficulties such as PIN pad design and the problems caused to elderly, disabled and housebound people—has dramatically reduced business and the footfall in many of our local post offices.
The Government accept that 3,000 branches will close. I suspect that that figure is the minimum rather than the maximum. That is set against the background of the Post Office losing upwards of £1 million a day despite still having close to a monopoly in its own business.
Record numbers of post offices have closed under this Government. More recently, the rate of closure has slowed. There are two reasons why, neither of which has much to do with Government benevolence. First, a lot of people who would like to sell their businesses as sub-post offices cannot give them away; they certainly cannot find any buyers because of the gloomy prospects for many sub-post offices. Secondly, a large number of people have been hanging on in the hope of receiving compensation for closing their businesses.
The Government and the Post Office have produced their so-called network reinvention policy, which involves a large bag filled with money to dole out to sub-postmasters and sub-postmistresses who are willing to close their businesses. Rumour has it—I do not know whether the Minister will confirm or deny this—that when there was an initial trawl through sub-post offices who might be interested in funding, the Post Office was appalled at how many of them put their hands up to ask for a share of the fund simply to go out of business. There must, therefore, have been a rethink.
The Post Office has now come up with the area plans system, which I raise on behalf of my constituents. I do not know why we were singled out for this particular honour, but we are the first place in the country to go through that process—we are the guinea pigs. Instead of a programme of piecemeal closures, the Post Office has now decided—I concede that there is some logic behind this—to consider each parliamentary constituency as a unit to try to determine logically whether there are too many post offices and whether they are too close together. At the end of the day, the system will produce closure proposals that have some internal logic.
Sadly, Eastbourne has been on the cusp of those new arrangements, which, until fairly recently, have verged on the shambolic. First, the Whitley road sub-post office was marked for closure, which has now closed. Secondly, out of the blue—I mean that, because it was announced in early August when many people were on holiday—the Post Office announced that it was proposing to close the Upperton road post office, which for most people is the main post office in Eastbourne. It is in the centre of the business district, and it is one that I often use. Incidentally, if it is to be closed because of a
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lack of business, I should point out that I must queue for quite some time to get served every time I go in. The proposal was announced by the Post Office, because Upperton road post office is directly administered as a Crown post office.
Just as the hoo-hah was beginning to die down about that proposal, another Post Office department announced independently that it was going to close three more sub-post offices in my constituency—in Compton street, Church street and Avard crescent. Those closures involved different departments of the Post Office and different consultation exercises that ended on different dates and were conducted by different people.
I am pleased to see that, in part due to my representations, the Post Office has taken a grip of the situation and brought together all the consultations, extending them to the same closing date, which happens to be this Thursday, 16 October. It has also agreed to my request to send representatives to a public meeting in my constituency, which will take place in Eastbourne town hall at 7.30 pm on Thursday. If the Minister has nothing better to do, he is welcome to join us. I shall be at that meeting, as will representatives of the local council. I want to pay tribute to the efforts of Postwatch, the consumer watchdog, which has been proactive in helping the consultation, supporting my efforts to ensure a rational approach from the Post Office and organising and chairing the meeting.
All sorts of petitions have been flying around. Earlier this year, I presented a petition with 8,000 signatures to No. 10 Downing street, but many have signed others, too. I have also been inundated with letters, e-mails and phone calls, so I can assure the Minister that there is strong feeling locally on the subject.
I have already conceded that it makes sense for the Post Office to consider an area as one whole. To use current jargon, it should examine the area and its needs holistically rather than just with regard to individual post offices. However, leaving aside the massive concern of those who want to continue to use the post offices, there are several points to be considered. The first is the question whether the Post Office will take any notice of the strength of local feeling, which runs across the board, including all parties on the local council. The chamber of commerce and the Federation of Small Businesses have also both been involved in lobbying.
The proposed closures, especially that of the Upperton road post office, will directly affect not only elderly people who live nearby and regard the post offices as a convenient place to make purchases and so on, but local businesses. The post office is slap bang in the middle of the town and surrounded by businesses, many of which have written to me to describe how they use the office for bulk mail and other services. Indeed, one of the main reasons why the local borough council previously shut its cash office was that the main post office was available just down the road for at least some transactions.
Another major concern is whether anything can be reversed. The Upperton road office is dealt with differently as a Crown post office, and the Whitley Road post office has already shut, which is very sad. However, the Post Office has not only identified the three other post offices that should close, but has already struck a

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deal with the sub-postmasters. That has not encouraged me to put my posters or petitions on their premises, as they are looking forward to being paid substantial compensation for closing down.
When I met representatives of the Post Office here in Westminster, I asked them whether in principle any of the decisions could be reversed. They assured me that they could, but from the point of view of commercial reality I wonder how right that is. I intend to test the theory to destruction, because one of my constituents is ready, willing and able to take over one of the post offices as a going concern. He has made an offer to the Post Office, but as far as I am aware he has not had any response as of today. I intend to pursue it on his behalf.
Another issue is the need to test the Post Office's business case for closure, especially in respect of Upperton road. It has made broad assertions about losing money. It has quoted and bandied around in the local paper figures that range from £65,000 to £100,000 in losses a year, but it will not give chapter and verse, as it regards the figures as commercially sensitive. However, my information from a mole in the Upperton road post office suggests that the staff are well ahead of their targets for reducing costs and increasing revenues, so much so that they are about to receive a bonus.
Presumably, the decisions have been made without taking any account of the recent announcement that was all over the press in the past week or so that the Post Office had struck a deal with, I believe, the Bank of Ireland, with £100 million being injected into the post office system to provide banking services. The Minister may tell us more about that. Is it really sensible for the Post Office to contemplate closure of so many retail outlets when it is doing its best to reinvent itself as a properly run commercial business?
I should also say in passing that the Post Office seems to believe that most of the business currently done by the Upperton road post office will easily migrate to the Terminus road post office, our other so-called main post office in Eastbourne. That is quite unlikely. In any event, Terminus road is already extremely busy. It has long queues and a great deal of its own business. Again, that issue will be gone into in even more detail at the meeting on Thursday.
There is another major concern. The Post Office said that the great advantage of the new approach—the area plan approach—is, as was put to me in my meeting with the Post Office, that it will not be coming back to Eastbourne. As far as it is concerned, that will be the end of the matter and all the pain will happen at once. The problem is that other local sub-postmasters and sub-postmistresses wanted to take the money but were not offered that particular deal. Their business may already be losing money, or they may be reaching retirement. The Post Office accepts that it cannot guarantee against what it terms force majeure closures. The closures have nothing to do with an act of God but are a direct result of the Government policies that I described earlier.
The situation is that already five of the 19 post offices in the town are set to close—more than one quarter—with no guarantee whatever that other post offices outside the area plan will not be forced to close in due
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course or feel that they have no alternative. In fact, the situation could be much worse. Could one third or one half of all the post offices in the town close?
When the smoke clears and the dust settles, the Post Office's stated aim of providing a post office within one mile of 95 per cent. of the urban population in a place such as Eastbourne could be shot to pieces—partly due to decisions of the Post Office itself and partly due to the Government policy that lies behind all this, but also partly due to the decisions of individual postmasters and postmistresses. I cannot emphasise too strongly to the Minister the consequences, particularly for the very elderly population in parts of my constituency but also for the business community, of such vandalism to a post office system that has served the local community extremely well for a long period. I hope that the Minister will have some words of comfort that I can take to the public meeting in Eastbourne town hall on Thursday.
1.14 pm
The Minister for Energy, E-Commerce and Postal Services (Mr. Stephen Timms):I congratulate the hon. Member for Eastbourne (Mr. Waterson) on securing the debate and on the very close interest that he has taken in the lively discussion in Eastbourne in recent weeks.
I must say that I was sorry to hear the hon. Gentleman run down the post office network in the way that he did when he spoke about it becoming unviable. He is quite wrong about that. The post office network has a very promising commercial future. I want to reassure sub-postmasters in Eastbourne and elsewhere of the Government's commitment to a viable future for the post office network. Of course they recognise, as the National Federation of Sub-Postmasters has, that in urban areas where there have been large numbers of post offices in a small area there is simply no longer the business to sustain so dense a network. For example, more than 1,000 sub-post offices have more than 10 other branches within 1 mile of them. That density can no longer be supported, so we need a rational process to decide which branches should continue and which ought to close.
I am disappointed that the hon. Gentleman has talked about half the post offices or more closing. This process is about ensuring that there is a commercially strong and viable future for the branches that remain. That is why we have invested £500 million in technology to ensure that banking transactions can be carried out at every single post office branch in the country. I join the hon. Gentleman in welcoming the announcement of the joint venture with the Bank of Ireland to allow, within a few months, every post office branch in the country to sell financial services and new products further to develop commercial viability.
I was pleased to hear the hon. Gentleman's comments on the role of Postwatch. I am glad that what he has seen in Eastbourne confirms what Postwatch has told me of the effectiveness of its role in monitoring this process in urban areas. I am also glad that he gave a welcome, if a rather grudging one, for the area-based approach that the Post Office has now introduced. As he rightly said, we are seeing the first example of that in Eastbourne.
At the beginning of his remarks, the hon. Gentleman wondered why the number of post office closures had sharply reduced, especially in rural areas. That has been

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case in the past couple of years, and is precisely ause the Government imposed a requirement on the ffice that there should be no avoidable rural post of closures. That has been very effective, and is a direct consequence of the Government's approach. At the same time, we recognised the need for a sensible rationalisation of the urban network, given the issues about density in urban areas that I mentioned earlier.
The policy goes back to the recommendations of the performance and innovation unit in 2000, which recommended that if the Post Office decided that fewer offices were needed in some urban areas, the Government should consider providing funding to ensure that the sub-postmasters affected could be adequately compensated for the loss of their business. That report was widely welcomed. We accepted all the recommendations made, and following parliamentary approval of the funding last November, Post Office Ltd. initiated the programme that we are debating today.
The network of post offices includes nearly 17,000 branches, which is more than all the banks and building societies in the country put together. The Post Office is ensuring that, in a properly managed way, the post office network will meet the needs of the communities that it serves and fit the business passing through it. There have been reductions in post office usage for all sorts of reasons, past under-investment being one of the most important, but some two thirds of the urban population live within half a mile of two or more post offices, many of which have been struggling to survive. Rationalisation of parts of the network will improve its viability and allow the development of better services, from brighter offices, for customers.
The great danger of not having such a process would be unmanaged decline in which individual sub-postmasters simply decided to shut down and leave. That is what the hon. Gentleman feared might happen in his constituency. I hope that, on reflection, he will agree that the process we have put in place is a much better alternative and that it will avoid the unmanaged decline that he feared. It is important that all of us express confidence in the future of the post office network because it is such a valued feature of our lives in every part of the country, in urban and rural areas.
Mr. Waterson:Of course I agree with the Minister's point about unmanaged decline, but would he like to deal with my central point? No matter how much the Post Office organises an area plan—I see that there is some logic to that approach—it cannot cauterise the situation. It could shut those five offices and still end up with more offices closing in the next year or two.
Mr. Timms:I hope that as a result of the process, which has been designed to achieve this goal, we will achieve a viable network in the future. I have talked about the investment in technology for banking. It is now the case that any customer of Lloyds TSB, Barclays or Alliance and Leicester can withdraw cash from any post office in the country with their cash card. That is a new service, and we have seen rapidly increasing numbers of people taking advantage of it. I use it myself at my local post office; it is an excellent service. We have talked about the new products that the Bank of Ireland joint venture will produce.
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There are no cast-iron guarantees that one can give about the future of any commercial business, but we can look forward with some confidence to a viable network in urban areas as a result of the admittedly rather painful and difficult process we are going through at the moment. I think that the hon. Gentleman will agree that completing that rather difficult exercise now stands us in better stead for having a successful and viable network in the future. I take his point about there not being cast-iron guarantees but there is a high level of confidence in my mind, and among those who work in the Post Office network, that at the end of the process we will have a financially sound network that will continue to serve all our urban and rural areas.
The hon. Gentleman made some points about the rate of closure of offices and the sales of sub-post office branches. I can tell him that in 2002–03 there were nearly 1,500 sales of post offices. The previous year there were about 1.600 such sales. I do not think that there is as significant a depression in the market as he suggested. The hon. Gentleman has talked about the branch at Whitley road in Eastbourne, which has already closed under the terms of the programme. Although nobody is pleased about the closure of any post office, the way in which that was handled meant that the postmaster could inform customers of what was happening, and of alternative offices such as Terminus road, Marine parade and Seaside, all of which are less than a mile from the closing branch.
I am glad that the hon. Gentleman acknowledged that the Post Office has now pulled together the various proposals relating to its operations in Eastbourne. It has produced three proposals for compensated closures under the urban reinvention programme for Avard crescent, Church street, and Grand Hotel buildings. It is also proposing to close its directly operated Eastbourne Crown office and will consider that proposal in conjunction with its wider plan for the area. I should say that I am advised that all those changes, including the Whitley road closure, would amount to five closures out of 22 post offices in the hon. Gentleman's constituency. I think that he referred to a figure of 19.
Mr. Waterson:There is no reason why the Minister should know this off the top of his head, but he will find that there are 19 in the town of Eastbourne. My constituency extends to places such as Willingdon and East Dean where, I am delighted to say, the post offices will remain untouched as long as they remain viable. Out of 19 post offices in the town itself, five will have closed if the plan goes through.
Mr. Timms:I bow to the hon. Gentleman's knowledge of the boundaries of the town. I think that only one post office in his constituency was classified as rural; no doubt he will correct me if I am mistaken on that as well.
There has been a lot of debate and I am glad that the Post Office has extended the consultation period for the Eastbourne Crown post office following the meeting with the hon. Gentleman on 8 September. That is an example of the attention that the Post Office will pay to local opinion and need before reaching its decision. Postwatch and I are satisfied that good processes exist to express local community concerns through Postwatch, and that those concerns can be effective in influencing

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the final decision of the Post Office on individual closures. Under the programme, several closures have been proposed, which, following representations from Postwatch, have been amended or withdrawn.
In Eastbourne there is the issue of the Crown post office as well as the sub-post offices. Crown offices are generally the largest post office outlets in an area and the Crown office network makes substantial losses of around £50 million a year. I think that Eastbourne is unusual in having two Crown offices operating. In the financial year 2002–03, losses for Post Office Ltd. increased to £194 million, before exceptional items. Eastbourne Crown office is making an operational loss of around £65,000 a year, and that figure would increase if all the overheads were added. That illustrates the need for urgent action to maintain the viability of the network.
Consultation on the proposals for the hon. Gentleman's constituency remains open until Thursday and he referred to the public meting being chaired by representatives of Postwatch on that day. He has been influential in securing that meeting and I hope that it will allow further, fruitful discussion of the proposals and give the company the opportunity to consider comments that are raised. Importantly, once decisions on the current proposals have been reached, Post Office Ltd. has no intention to return to Eastbourne with further proposals. The company's view is that, should the proposed changes go ahead, it will have fulfilled its objectives of ensuring that there is the right service in the area for the custom, and that the network can continue to serve Eastbourne on that sound basis.
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An additional element of the programme is the £30 million that the Government have provided for modernising and adapting the offices that remain in the network. The key to improving standards in those offices will be the increased volume of expected business. The grants of up to £10,000—a figure to be matched by the proprietor—for each office expecting to take on a significant number of additional customers will also be an important boost. The Post Office will generally require the receiving offices to improve facilities and increase opening hours so that sub-post offices will maintain the same hours as the associated retail businesses alongside them and improve the service to customers in contrast with the hours being kept in the past.
The proposal is the first ever programme of Government investment in urban sub-post offices. It is a welcome, additional measure to those recommended in the performance and innovation unit report. The Post Office is assessing applications totalling more than £12,000 from branches in Eastbourne that would expect to receive additional custom should proposed closures go ahead. I am sure that the hon. Gentleman will welcome that and agree that it is important that sub-postmasters are given the encouragement to improve and develop their offices.
I am going to leave Westminster Hall immediately to attend the award for this year's best post office, a competition that has prompted enormous enthusiasm on the part of members of the public supporting their post offices. There is an immense commitment to the post office network and the changes that we are making provide a high-level assurance about the prospects of the business going forward.

Paediatric Allergy Services
1.30 pm
Jon Cruddas: I wish to raise a number of issues concerning allergy in the UK. I will talk specifically about paediatric allergy and the lack of allergy services within the national health service.
Allergy is a major public health problem in developed countries. In the UK over the past 20 years, the incidence of common allergic diseases has trebled, giving this country one of the highest rates of allergy in the world. In any one year, 12 million people in the UK—one fifth of the population—are likely to be seeking treatment for an allergy. Allergies range from debilitating conditions such as asthma and hay fever to life threatening conditions such as anaphylaxis.
There are solutions to the problems that face us. However, they require an understanding of the issues from within the NHS and a new strategic approach to the issues of allergy within the Department. A recent report from the Royal College of Physicians stated that
"despite the epidemic proportions of the disease, the health service is failing to meet the most minimal standards of care—far less clinical governance".
Today's short debate gives me the opportunity to raise some points regarding allergy—these are very real concerns to my constituents in Dagenham—as well as to probe the Department about why there are so few specialist allergists to meet the needs of the population in the UK. On a more positive note, however, the debate gives me the opportunity to propose a series of initiatives that might allow the Department to demonstrate an acknowledgement of the problem and a readiness to develop a training programme and infrastructure to improve the care available within the NHS.
At the outset I must declare an interest. My family has had first-hand experience of severe allergy and anaphylaxis. I am a member of the Anaphylaxis Campaign, which is the research and campaigning group raising awareness of issues centred around allergy and anaphylaxis. The campaign's food safety adviser Hazel Gowland is listening to the debate this afternoon.
I want to place on record my own personal debt of thanks first to the Anaphylaxis Campaign and its director David Reading for the support that they offer to thousands of families who have to confront issues of child anaphylaxis every year. From personal experience, I know that their work is critical for many families in terms of offering support and understanding to enable people to deal with the condition. Secondly, I thank the excellent paediatric allergy centre at St. Mary's hospital under Dr. Gideon Lack. As a family, we were fortunate to live close to that hospital. The problems that I will describe are centred around the postcode lottery of being referred, or not, to a specialist paediatric allergy centre.
Thirdly, I am thankful for all the hard work being carried out within the medical community on allergy, especially by all those involved in the Royal College of Physicians working party on the provision of allergy services in the UK. The working party has meant that this summer has seen greater awareness of allergy issues in the public press. The headlines were generated by the
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report by the Royal College of Physicians, "Allergy: the unmet need. A blueprint for better patient care", which was launched in the House of Commons in June.
The Royal College of Physicians has sought to put allergy higher up the health care agenda of the Department of Health and of planners and managers. It has made proposals for an improved allergy service for the British people, which, if taken up, would result in more consultants, a network of accessible centres around the country and better training.
In terms of the nature of allergy in the UK, it is worth considering some of the statistics. One in three members of the UK population?about 19 million people—will develop an allergy at some point in their lives. Asthma, rhinitis and eczema have increased in incidence two to threefold over the past 20 years. Among 13 to 14-year-old children, 32 per cent. report symptoms of asthma, 9 per cent. have eczema and 40 per cent. have allergic rhinitis. The UK ranks highest in the world for asthma symptoms and is also near the top for allergic rhinitis and eczema.
High and increasing trends are also apparent in nut allergy, anaphylaxis and occupational allergy to latex, for example, and allergic reactions to drugs. Anaphylaxis occurs in one in 3,500 of the population each year. Hospital admissions have increased sevenfold over the last decade and doubled over the last four years. Peanut allergy, the most common food allergy to cause fatal or near-fatal reactions, has trebled in incidence over four years and now affects one in 70 children in the UK. Only 10 years ago this was deemed a rare disorder.
Allergic reaction currently accounts for 6 per cent. of general practice consultations, according to the Royal College of Physicians report, 0.6 per cent. of hospital admissions and 10 per cent. of the GP prescribing budget. It is estimated that the cost in primary care, excluding hospital services to the NHS, is around £900 million per annum. Even before the recent increases in allergy were registered, it was estimated that paediatric allergic disease in the USA constituted 28 per cent. of all chronic disorders requiring medical attention and resulting in school absence.
In a nationwide study of children's allergies in the UK, of the 27,507 children surveyed in 1999, 20.4 per cent. were reported to have had asthma in the previous year, and 16.4 per cent. eczema. One or more atopic symptoms were reported in 47 per cent. of all children. Those rates are reflected in acute paediatric care. In a recent survey of accident and emergency admissions at St. Mary's hospital in London, 7 per cent. of children seen as emergencies were diagnosed as having an allergy disorder. Those children required twice the rate of admission and twice the rate of specialist tertiary referral compared with other children attending as emergencies.
Is it any wonder that many experts in the field now talk of an allergy epidemic in this country specifically with reference to allergies in children? The allergy charities are inundated with telephone inquiries from a desperate public. The vast majority of GPs have no training in allergies and few are aware of any of the formal guidelines for allergy management. In many instances, the severity of the symptoms, with attendant high morbidity, has forced the public to look outside the NHS.

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Urgent action is required. However, consider the deficits in current paediatric care. Across the whole country, there are only six centres staffed by consultant allergists who offer a full-time service with expertise in all types of allergy problems. Three are based in London; at Guy's, Royal Brompton and St. Mary's. The others are in Cambridge, Southampton and Leicester. Services are extremely poor in the rest of the country. There is no specialist provision north of Manchester or west of Bournemouth. All six specialist centres provide a high quality multi-disciplinary approach. Moreover, they have an international reputation for research. Five of the six—the exception is Leicester—were developed as academic units with university funding. That is an indication of the lack of tradition within the NHS of allergy support.
Demand is enormous and waiting lists are very high. In Cambridge, for example, the number of patients seen increased by 440 per cent. between 1993 and 2000. Referral rates rise continuously while waiting lists remain unacceptably high for serious disease. This pattern is the same in all six specialist centres. Overall there is only one consultant allergist for every 2 million people in the UK, compared with rates of around one per 100,000 for mainstream specialties such as heart disease.
Allergic diseases comprise a significant percentage of the workload of primary care and the majority of children with allergy problems will have their care provided exclusively by a GP. Yet according to a survey of GPs carried out by the British Society for Allergy and Clinical Immunology, the majority of GPs had received no training in the management of allergic disorders. Only 23 per cent. of respondents reported that they were familiar with any guidelines for the management of an allergic condition. More than 80 per cent. of respondents considered current allergy service provision throughout the NHS poor, with deficiencies being most marked in secondary care and in accessing appropriate specialists.
There are four NHS paediatric allergists in the UK. In Sweden, there are 96 trained paediatric allergy specialists; in Germany, there are 500. Compared with the UK, there are five times the number of paediatric allergists in Greece, and four and a half times the number in Switzerland. In Japan, the paediatric allergy society has 2,000 members. As a consequence, parents who are desperate for treatment for their children seek help from complementary and alternative medicine, which can sometimes lead to potentially dangerous recommendations.
Given the lack of specialist care, many children with different types of allergy such as eczema, rhinitis, asthma and food allergy may be seen consecutively in different settings—general paediatrics, ear, nose and throat, dermatology, chest medicine and the like. That remains a highly inefficient method of delivering health care. As such, the underlying causes of allergic disease are often left undiagnosed. Delivery of care by a paediatric allergist would provide a more rational, integrated and cost-effective service—in effect, a one-stop shop. All the above can lead to so-called steroid loading, owing to no single specialist taking charge of overall management.
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The report by the Royal College of Physicians contains a series of excellent proposals for the way forward. It proposes that each new NHS region should have at least one specialist allergy centre staffed by a multi-disciplinary team covering a population of 5 million to 7 million people. Staffing levels in those centres should include two new additional consultants to cover diagnostic procedures and specialist treatment, a minimum of two full-time allergy nurse specialists, one half-time dietician and one half-time paediatric dietician with specialist training in food allergy and two consultants in paediatric allergy supported by paediatric nurse specialists and dieticians.
The development of services should be gradual, and long-term savings through better-educated GPs and more effective referrals would largely offset the increase in costs. That, in turn, would lead to a more efficient use of allergy services. There would be fewer hospital admissions, less accident and emergency attendance, reduced drug costs and lower levels of illness. Moreover, to create more new consultant posts, it is essential to increase the number of trainees in the specialty. There are only five trainees nationally. Despite the explosion in allergies, the Department of Health has allocated no new funded posts for 2004–05.
In conclusion, it is not melodramatic to talk about an allergy epidemic in this country, especially over the past 10 years. The issues will not go away. All evidence suggests that the number of people affected will continue to rise, especially given the profiles among children. In one sense, it is not surprising that the extraordinary growth over the past 10 years appears to have caught the NHS by surprise. What is lacking, however, is an adequate response from the Department of Health.
Evidence locally suggests that some primary care trusts are considering cuts in the minimal specialist provision that currently exists. The people who work in that area are extraordinarily committed and they know that the situation cannot be resolved overnight. They are, however, looking for a lead from the Department of Health that demonstrates a commitment to the work. They are looking for a commitment to fund new training posts in paediatric allergy over the next 10 years with a corresponding number of consultant posts, support to start investing in regional specialist centres and a commitment to further research, particularly into the early prevention of allergies in children. A willingness by the Minister to meet a representative group of campaigners and medical experts would also be very welcome. Paradoxically, given what I have said, there is a great opportunity for the Government to recognise those problems and to demonstrate that they are moving toward some solutions.
I hope that we will receive such a response from the Minister. It would be a welcome development as, too often in the past, the Department of Health and health managers have been in denial about what is really happening across the country.
1.44 pm
The Parliamentary Under-Secretary of State for Health (Miss Melanie Johnson):I congratulate my hon. Friend the Member for Dagenham (Jon Cruddas) on securing the debate. I am aware both from his remarks and earlier that he has a personal interest in the subject. I welcome the opportunity to outline the Government's policy on allergy services.

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I should say that a friend of my son has a severe peanut allergy. As my son has grown up—he is now 17—I have seen his friend at close quarters, having taken them on holiday, and I am well aware of the issues surrounding allergies for parents and families.
Perhaps it would be helpful for hon. Members if I defined anaphylaxis, an acute, immune reaction requiring urgent medical attention that may occur in children or adults who suffer from severe allergies. The most common cause of anaphylactic attack is a severe allergy to food, although certain drugs such as penicillin, and the venom of stinging insects, such as bees and wasps, can result in an attack. In its most severe form the condition is life-threatening but it can be treated with medication, such as antihistamine, adrenaline inhaler or adrenaline injection, depending on the severity of the reaction. Most parents are normally prescribed a device for personally injecting adrenaline. It looks like a fountain pen and is pre-loaded with the correct dose. It is not possible to give too large a dose when using the device.
The Royal College of Physicians recently published a report called "Allergy: the unmet need. A blueprint for better patient care". The report notes that allergies, including asthma, rhinitis, eczema, food allergy and drug allergy, are becoming increasingly common, as my hon. Friend remarked. It called for improved NHS allergy services across the board and offered useful models of how that could be achieved.
We agree that NHS allergy services need improvement and our substantial extra investment in the NHS will help to deliver service improvements. My hon. Friend will be aware that up to 2002–03, expenditure on the NHS has increased by an average of 5.7 per cent. in real terms each year since the Government came to power. NHS expenditure is set to increase further by an average of 7.4 per cent. in real terms over each of the next five years. Such substantial investment in the NHS is not being wasted. It is producing real results, including significant increases in the number of health professionals, increases in capacity, prescribing of new and better drugs, shorter waiting times and greater choice for patients. There will be further improvements, including expanding capacity, increasing staff and training numbers, and reducing waiting times.
Although the waiting times figures do not relate specifically to allergy, it is worth mentioning that the vast majority of patients receive their first out-patient appointment within 21 weeks. In the quarter ending June 2003—the last for which we have data—82 per cent. were seen within 13 weeks and 99 per cent. within 26 weeks of referral by their GP. At the end of June, the number of patients waiting over 21 weeks for their first out-patient appointment with a consultant had fallen by more than 29,500 over the past year. That is real progress and it is making a difference to all patients, including those with allergies.
I should like to comment on the role of the Food Standards Agency. My hon. Friend mentioned the growing incidence of allergy and there is a question relating particularly to food. The FSA's approach to food allergy and intolerance has three main components. The first is to help those with food allergy by improving understanding of the issue among consumers, all sectors of the food industry, including
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caterers, and local authority enforcement officers. The second is the funding of research to investigate the causes and mechanisms of food allergy, and the third is to encourage fully informative labelling of foods.
The board of the FSA recently agreed a detailed action plan to help food-allergic consumers. The work is concentrating particularly on teenagers and young adults and on the catering sector, as most food allergy deaths occur in that age group when eating away from the home environment. That could create a particular difficulty when selecting food and knowing what is in it.
The agency has put a detailed fact sheet about food allergy and food intolerance on its website to provide food-allergic consumers with information. It is also conducting research into other sources of information about food allergy for consumers, the food industry and enforcement officers, and into the knowledge and understanding of the issue in those sectors.
The agency will work with others to provide further information and training and education to address the gaps identified. It will also work with health professionals and dieticians to help to provide patients with food allergy such information as they need to make safe choices about the foods that they eat.
The FSA also funds research on food allergy and intolerance, with particular emphasis on severe allergies, how often they occur and what causes them. A large programme of research on food intolerance and allergy, costing about £1 million a year, is ongoing.
Part of that research programme is examining the impact of advice issued by the Government in 1998 that, where there is a family history of allergic disease, pregnant women and breast-feeding mothers should avoid consumption of peanuts during pregnancy and lactation. That advice arose from a report issued by the Committee on Toxicity of Chemicals in Food, Consumer Products and the Environment in 1998, which addressed some of the issues behind the possible causation of peanut allergy. In July 2000, the committee issued a further report on adverse reactions to food and food ingredients.
The agency has been working with a wide range of interested parties in the UK and Europe to ensure that food labelling is informative to allow those with food allergy get the information that they need. A new EU directive on allergen labelling has just been agreed in Brussels. It will tighten up existing legislation and will help to ensure that consumers are provided with comprehensive ingredient information to allow those with food allergies to identify products that they must avoid.
The agency has also been addressing consumer concerns about the inappropriate use of "may contain nut" labelling—we have all seen it—which can severely restrict consumer choice. We will shortly seek comments on an alternative phrase for use in labelling.
My hon. Friend said that hon. Members often call for research into various conditions. It is worth saying that the research effort is not confined to the UK Government because there is also an international dimension. The main agency through which the Government support medical and clinical research is the Medical Research Council. The MRC is an independent body that receives its grant in aid from the Office of Science and Technology. The Department of Health

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also funds research to support policy and the delivery of effective practice in the NHS. The MRC spent an estimated £11.9 million in 2001–02 on its respiratory disorders portfolio, which includes allergies.
A number of research studies into aspects of allergy are under way. The national research register, for instance, shows that there is a study under way on peanut allergy in children at Southampton general hospital; my hon. Friend mentioned Southampton. The study is called "The Prevalence of Peanut Allergy in British Children at School Entry Age" and it is funded by the Food Standards Agency. It is due to report in 2005.
"The International Study of Asthma and Allergies in Childhood" was established in 1991. Phase one measured the prevalence of childhood asthma, hay fever and atopic eczema for international comparisons. Phase two began in 1998 and involves more intensive studies in a smaller number of countries. The Department of Health funded the UK contribution to phase two.
We are currently working up a children's national service framework to set standards to improve health services for children. It would clearly be impractical for the NSF to cover every specific condition or problem in detail. However, in illustrating what the NSF standards will mean for children with asthma, the asthma exemplar, which will be published in tandem with the main NSF, is likely to make a general reference to allergy. Consideration will be given to the general issues relating to the problems encountered by allergic children in schools.
My hon. Friend raised the issue of the number of consultants. Consultant numbers in immunology, which includes allergy, have increased by 11 per cent. from 63 consultants in September 1997 to 70 in June 2003. There are, however, ongoing discussions between the British Society for Allergy and Clinical Immunology and the Department of Health, which are aimed at improving the provision of consultant allergists, and I recognise that that is a specific issue.
A small number of specific full-time or full-time equivalent posts are devoted to allergy. The British Society for Allergy and Clinical Immunology handbook
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lists 86 NHS consultant-led clinics in the UK, and the British Allergy Foundation handbook lists an additional 15 clinics. However, only six of those 101 clinics offer services provided by a whole-time specialist allergist. I recognise the problem that my hon. Friend outlined and we are doing what we can to improve the situation. In June 2003, there were 10 consultants in allergy, an increase of four, or 66 per cent., on the September 2000 level. September 2000 was the earliest date at which specific numbers on allergy consultants were collected in the work force census, so I cannot give my hon. Friend a better figure than that.
From 2003–04, the trusts will have an opportunity to create up to five locally funded specialist registrar posts for training opportunities in allergy. Central funding will also be distributed to support the implementation of an additional registrar post in immunology. Trusts will have the opportunity to create up to five locally funded training opportunities. Work is going on to improve the spread and degree of specialism available, but I recognise that we have some way to go given the starting point and the level of need, which my hon. Friend rightly sketched out.
I am not the Minister in the Department who principally deals with allergy, although the Food Standards Agency obviously falls within my remit. I am sure that the Under-Secretary of State for Health, my hon. Friend the Member for South Thanet (Dr. Ladyman) would be happy to meet members of the organisations which my hon. Friend the Member for Dagenham mentioned to discuss the provision of services.
In conclusion, I hope that my hon. Friend agrees that we must take the provision of allergy services and paediatric allergy services very seriously indeed. Our substantial extra investment in the NHS and the action on waiting times will lead to better allergy services for all NHS patients. The work of the Food Standards Agency will give us a greater understanding of the problems caused by food intolerance, and research is under way into the causes of allergy. We are starting from a low base and have some way to go, but the debate has been useful.
Question put and agreed to.
Adjourned accordingly at four minutes to Two o'clock.

NORTHERN IRELAND

  Northern Ireland Tourist Board
  The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Ian Pearson)
  The Northern Ireland Tourist Board's 2001–2 annual report and accounts have been deposited in the Libraries of the House.

  Probation Board
  The Minister of State, Northern Ireland Office (Mr. John Spellar)
  I have today published the Probation Board (Northern Ireland) for Northern Ireland Annual Report for 2002–03. Copies of the report have today been placed in the Libraries of both Houses.

  Labour Relations Agency
  The Minister of State, Northern Ireland Office (Jane Kennedy)
  I have today placed copies of the 2002–03 Labour Relations Agency annual report and accounts in the Libraries of both Houses.

  Youth Justice Agency
  The Minister of State, Northern Ireland Office (Mr. John Spellar)
  The Report on the Review of the Criminal Justice System in Northern Ireland, which flowed from the Belfast agreement, recommended in the area of youth justice that the Lisnevin Juvenile Justice Centre be closed.

  Following a consultation process, the then Minister of State, right hon. Adam Ingram MP concluded that none of the existing juvenile justice centres were suitable. On 29 November 2000 he announced that the best way forward was to construct a new purpose designed facility on land available at Rathgael and that while the new centre was being built, young people already in the system should be transferred to the Rathgael campus. He also announced that Lisnevin would close.

  The development of the Rathgael site is being advanced in two stages and I am pleased to announce in this statement that Phase 1, which involved the extensive renovation and up-grading of the Juvenile Justice centre on that site has now been completed and that the Lisnevin centre has closed.

  The refurbished centre is now fully operational and will provide a step change in the quality of the custodial provision for juvenile offenders in Northern Ireland. It will operate as the sole custodial facility for young people in Northern Ireland, providing a satisfactory interim solution pending the construction of a purpose-built centre on the same site over the next 3 years.

  Northern Ireland Forest Service
  The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Ian Pearson)
  The Key Targets for achievement by the Northern Ireland Forest Service (an Executive Agency of the Department of Agriculture and Rural Development) in 2003–4 are:To publish a statement on forest policy and develop a strategy for implementing the policy.
  To establish 500 hectares of new plantations.
  To replant 750 hectares of land following harvesting.
  To pay out woodland grant scheme and farm woodland premium scheme grants of £1.8 million to encourage the extension of the area of private woodland.
  To pay 90 per cent. of woodland grant scheme and farm woodland premium scheme claims within eight weeks of receipt of a properly completed claim form.
  To retain certification under the UK woodland assurance standard
  To produce 400,000m3 of timber for sale to the wood processing sector.
  To achieve 400,000 paying visitors to forests.

  The Forest Service business plan for 2003–4 will be published and placed in the Libraries of both Houses at a later date.

CONSTITUTIONAL AFFAIRS

  Public Guardianship Office
  The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie)
  My hon. Friend Lord Filkin has today set the following key performance indicators and targets for the Public Guardianship Office for 2003–4:

  KPI 1: To increase the satisfaction of its customers in the delivery of its services.

  Target:

  To achieve a customer satisfaction rating of at least 50 per cent for both professional and lay receivers, as measured by its annual customer survey.

  KPI 2: To increase the proportion of effective visits by the Lord Chancellor's Visitors.

  Targets:

  To maintain a minimum of 6,000 visits per year to include all Receivership Division clients.

  To visit all new receivership clients where the Chief Executive of the PGO has been appointed receiver of last resort.

  To achieve 75 per cent. effective visits over the year.

  KPI 3: To increase the percentage of accounts collected on time and reviewed on time, and will use this process to review the case management regime to ensure that it is meeting the needs or each customer and client.

  Targets:

  To collect 60 per cent. of accounts within two calendar months of the accounting end date, 80 per cent. within four calendar months of the accounting end date, and 100 per cent. within six calendar months of the accounting end date, referring cases to the Court of Protection where necessary or taking other steps to ensure proper accounts are produced on behalf of clients (applies to Protection clients only: i.e. those clients who have an external receiver).
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  To complete the review of 100 per cent. of accounts received or to have requested further information within four weeks (20 working days) of receipt (to apply to both Receivership and Protection clients).

  KPI 4: To deliver an improved service to clients:

  Targets.

  To respond to 95 per cent. of letters, faxes and e-mails within 15 working days of receipt.

  For 95 per cent. of requests for release of funds, the PGO will give directions to the Court Funds Office (CFO) or dispatch direction to an external receiver within 10 working days of receipt.

  To dispatch court orders and directions to applicants, receivers or their representatives in 95 per cent. of cases within 25 working days of their being made.

  For 95 per cent. of complete applications for final directions, the PGO will give directions within 25 working days, to transfer all of clients' assets to personal representatives.

  To register and return 95 per cent. of correctly lodged EPAs, where there are no objections within five working days of the end of the statutory waiting period.

  KPI 5: To demonstrate improvements in efficiency by meeting three financial performance targets.

  Targets:

  To remain within budget.

  To achieve a fee income of £13.1 million.

  To achieve a unit cost per case of not more than £535.

  Land Registration Act 2002—Chancel Repair Liability
  The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy)
  On 14 September 2003 a Transitional Provisions Order relating to the status of chancel repair liability was made under the Land Registration Act 2002. The making of the order follows the reversal by the House of Lords in June 2003 of the Court of Appeal's decision in Wallbank v Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire. The order provides that, for a period of 10 years from the coming into force of the Act on 13 October 2003, chancel repair liability will remain an interest that binds successive owners of land even though it is not protected by an entry in a register kept by the Land Registry. As no land registration fee is payable for applications to protect similar ancient property rights, such as payments in lieu of tithe, Crown rents and manorial rights, the Land Registry intends to waive the fee for applications to protect chancel repair liability for the 10 year period.

TREASURY

  Census 2001
  The Financial Secretary to the Treasury (Ruth Kelly)
  The report "Census 2001 Report for Parliamentary Constituencies", containing results from the 2001 Census, was laid before Parliament and published on 25 September.

  This report contains results from the 2001 Census for the areas covered by the 659 Parliamentary Constituencies in all four countries of the UK. The tables present similar information to that previously published for local authorities on 13 February, for
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  wards on 30 June and for health areas on 31 July. The data are also available on the neighbourhood statistics section of the National Statistics website.

WORK AND PENSIONS

  Housing Benefit
  The Parliamentary Under-Secretary of State for Work and Pensions (Mr. Chris Pond)
  On behalf of my right hon. Friend the Secretary of State for Work and Pensions I am announcing the publication of performance statistics for local authority administration of Housing Benefit and Council Tax Benefit (HB and CTB) for the first quarter of 2003–4. The quarterly statistics for all local authorities in Great Britain were published on 9 October 2003 on the Department for Work and Pensions website at http://www.dwp.gov.uk/asd/other_stats.html and placed in the Library.

  Publishing these statistics is part of our strategy for reforming Housing Benefit and for ensuring that Local Authorities are accountable for their performance in Administration of Housing Benefit and Council Tax Benefit.

  Housing Benefit and Council Tax Benefit performance statistics show that in the first quarter of 2003–4:
  96 authorities reported meeting the standard of processing new claims, on average within 36 days;
  The average reported number of days to process new claims reduced from 59 in the first quarter of 2002–3 to 53 days in the first quarter of 2003–4;
  Authorities in the worst quartile of performance reported processing times between 56 and 153 days;
  106 authorities reported meeting the standard of processing changes in circumstances, on average within 9 days;
  The average reported number of days to process change of circumstances remains at 18 days when compared to the same quarter in 2002–3.

  The statistics are unaudited and are provided quarterly by local authorities to the Department.

  The latest annual audited Best Value performance information for English local authorities is for 2001–2 and was published by my right hon. Friend the Deputy Prime Minister on 12 December 2002 on the Best Value Performance Indicators website at:http://www.bvpi.gov.uk/home.asp. A copy is available in the Library.

  The most recent corresponding data for local authorities in Wales is for 2001–2. These are published on the Audit Commission website at http://ww2.audit-commission.gov.u1c/pis/pi_data_01.shtml. A paper copy of the relevant extract from this site is available in the Library.

  The most recent corresponding data for local authorities in Scotland are also for 2001–2 and are in the Accounts Commission publication "Performance Indicators 2001–2002": "Benefits, Finance and Corporate Issues", a copy of which is available in the Library.

  Pension Credit
  The Secretary of State for Work and Pensions (Mr. Andrew Smith)
  Payment of the new Pension Credit began on 6 October. I can now report the following progress on applications for the new entitlement; figures represent the period up to 6 October 2003.

  There are now around 1.9 million pensioner households on our systems being paid Pension Credit, which represents over 2 million individuals. All those who were receiving Minimum Income Guarantee have now been transferred automatically onto Pension Credit. Of the awards made 1.15 million pensioner households (over 1.3 million pensioners) will get more than they would have before.

  Our direct mail campaign is continuing, supported by a major advertising campaign on TV and in the press which began in September. We have now written to some 1.6 million households and will have written to all pensioner households by June 2004. We are continuing to work with partner organisations, such as Help The Aged, Age Concern and Citizens Advice, amongst others, both at a national and local level, to encourage eligible people to take up their entitlement.

  We have made good use of an advance application period, which began in April, to ensure that our systems and procedures are working as they should and we have recruited extra staff and invested in new infrastructure to meet the additional demands of the new entitlement.

  There is plenty of time for pensioners to apply for Pension Credit. To ensure that pensioners do not lose out, there is a twelve month backdating provision until October 2004. This will allow applications to be backdated to October 2003, where entitlement exists, or to the date entitlement begins if this is later.

  I am placing a chart showing progress so far in the Library. From November onwards, I will provide more detailed monthly progress reports on take up of Pension Credit.

TRANSPORT

  Utility Street Works
  The Parliamentary Under-Secretary of State for Transport (Mr. Tony McNulty)
  Regulations under section 74 of the New Road and Street Works Act 1991 came into force in April 2001. These allow highway authorities to charge utility companies for works in the street which overrun an agreed deadline.

  Following the implementation of these powers my Department appointed consultants, Halcrow, to monitor their effectiveness in reducing disruption on the highway. Copies of Halcrow's first annual report were placed in the libraries of both Houses last autumn.

  Halcrow have now produced their second annual report on these powers: Assessing the Extent of Street Works and Monitoring the Effectiveness of Section 74 in Reducing Disruption. The report consists of two
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  volumes; Volume 1 is the main report and Volume 2 contains accompanying tables and charts. Copies of each have been placed in the Libraries of both Houses.

HOME DEPARTMENT

  Criminal Cases Review Commission
  The Secretary of State for the Home Department (Mr. David Blunkett)
  I am pleased to inform the House that Mr. Ian Nichol has been appointed as a member of the Criminal Cases Review Commission. Copies of the press release relating to this appointment are available in the House Library.

  UK Passport Service
  The Minister for Citizenship and Immigration (Beverley Hughes)
  On 1 September 2003 the Criminal Records Bureau became an independent Agency in its own right and the UK Passport Service was re-established as a separate Agency. The UK Passport Service and Criminal Records Bureau will now operate under separate Framework Documents. The UK Passport Service Framework Document has been published today and copies have been placed in the Library of the House.

FOREIGN AND COMMONWEALTH AFFAIRS

  Intergovernmental Conference (Rome)
  The Secretary of State for Foreign and Commonwealth Affairs (Mr. Jack Straw)
  On 4 October the Prime Minister and I attended the opening session of the Intergovernmental Conference (IGC) in Rome. The Conference has been convened to enable member states to make decisions on a future Constitutional Treaty in order to ensure that an expanded European Union is both more effective and more accountable. Its starting point is the draft Treaty produced by the Convention on the Future of Europe, placed before the House this August as Command Paper 5897.

  On 9 September we issued a White Paper (Cm 5934) setting out the Government's approach towards the IGC. As we said in that White Paper, the draft Treaty is a good basis for starting the IGC negotiations. It consolidates existing Treaties into a clearer and more comprehensible text, but one which does not alter the fundamental constitutional relationship between the member States and the Union. It provides for the more efficient decision making processes which will be needed in an enlarged Union of 25 members. For example, it proposes a new position of full-time Chair of the European Council, which will make the Union more efficient, by ending the frequent changes of direction and priority inherent in the rotating Presidency system. It also reinforces the role of national Parliaments in the European Union, and the application of the principle of subsidiarity.

  We do not regard the draft treaty as perfect: as for many other member sates, there are some points in the text which we want to change and others which we need to examine in more detail. Final decisions at the IGC are

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  by unanimity and, as our White Paper stated, we will only accept a final text which makes it clear that issues like tax, defence and foreign policy remain the province of the nation State.

  This first detailed session of the IGC, attended by Foreign Ministers, agreed that, when the Council of Ministers is legislating, its proceedings should be as open as possible. It also agreed that the provision in the draft Treaty for establishing a legislative Council, which we opposed, would be dropped.

  The European Council of 16 and 17 October will continue discussion of the draft Treaty. In the meantime Foreign Ministers met in the context of the General Affairs and External Relations Council, on 13 October. We hope for agreement on a final text in sufficient time to allow for signature of a treaty, as provided in the conclusions of the Thessaloniki Council, as soon as possible after 1 May 2004. In the interim we will of course continue to keep the House informed of progress, including through Ministerial appearances at the IGC Standing Committee.

  Iraq: Export Licence Application
  The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Bill Rammell)
  Following consultation with the Foreign and Commonwealth Office and the Ministry of Defence, the Department of Trade and Indus try recently approved a further licence to export military list goods to Iraq. The arms embargo against Iraq remains in place under United Nations Security Council resolution 1483 (2003), with the exception of arms and other related material required by the Coalition Provisional Authority to serve the purposes of this and other related resolutions. Accordingly, Her Majesty's Government consider it appropriate to grant exemptions for the export of sub-machine guns and pistols that are to be used by private security firms contracted to provide close protection for employees of the Coalition Provisional Authority (CPA) in Iraq. The export is consistent with the consolidated EU and national arms export licensing criteria. Future applications will continue to be assessed on a case by case basis against the UN embargo and consolidated criteria, taking into account the circumstances prevailing at the time.

  Council of the European Union
  The Minister for Europe (Mr. Denis MacShane)
  The forthcoming business in the Council of the European Union is as follows:

  Date

  Location

  Event

  October

  2–3

  3–4

  7

  Brussels

  Justice & Internal Affairs

  9–10

  Rome

  Defence (Ministerial Informal)

  13–14

  Brussels

  ECOFIN

  13–14

  Brussels

  Transport, Telecom & EnergyCouncil

  16–17

  Brussels

  General Affairs and External Relations Council (GAERC)

  20–21

  Brussels

  Agriculture & Fisheries Council

  24–25

  Brussels

  EUROPEAN COUNCIL

  27–28

  Brussels

  Employ ment, Social Policy, Health and Consumer Affairs

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  Date

  Location

  Event

  27

  Brussels

  Education, Youth & Culture Council

  Brussels

  Justice & Internal Affairs (Informal Council)

  Brussels

  Environment Council

  November

  4

  Brussels

  ECOFIN

  6

  Brussels

  EU-Russia Summitt

  6

  Brussels

  Justice & Internal Affairs (Informal Council)

  6–7

  Catania

  European Conference on Employment

  17–18

  Brussels

  General Affairs and External Relations (GAERC)

  17–18

  Brussels

  Agriculture & Fisheries Council

  18

  Milan

  European Conference on Immigration & Labour Market

  24–25

  Brussels

  ECOFIN

  24–25

  Brussels

  Education, Youth & Culture Council

  27–28

  Brussels

  Justice & Internal Affairs (Informal Council)

  28

  Brussels

  EU & Western Balkans JHA Ministers Meeting

  December

  1–2

  Rome

  Euromed Meeting

  1–2

  Brussels

  Employment, Social Policy Health and Consumer Affairs Council

  1–3

  Rome

  Informal Public Administration Ministerial

  4–5

  Brussels

  Transport, Telecom & Energy Council

  5–7

  Rome

  Closing Conference for the European Year of the Disabled

  8–9

  Brussels

  General Affairs and External Relations Council (GAERC)

  9

  Brussels

  EU and Western Balkans Foreign Ministers meeting

  12–13

  Brussels

  EUROPEAN COUNCIL

  15–17

  Brussels

  Agriculture & Fisheries Council

  16

  Brussels

  ECOFIN

  22

  Brussels

  Environment Council

  January

  8

  Brussels

  Agriculture & Fisheries Council

  16–17

  Brussels

  Employment & Social Policy (Ministerial Informal)

  16–17

  Ireland (venue tbc)

  Informal Employment and Social Policy

  19

  Brussels

  Eurogroup

  20

  Brussels

  ECOFIN

  22–23

  Ireland (venue tbc)

  Justice & Home Affairs (Ministerial Informal)

  26–27

  Brussels

  General Affairs and External Relations Council (GAERC)

  February

  10

  Brussels

  ECOFIN

  19

  Brussels

  Justice & Home Affairs (Ministerial Informal)

  23–24

  Brussels

  General Affairs and External Relations Council (GAERC)

  23–24

  Brussels

  Justice & Home Affairs (Ministerial Informal)

  26

  Brussels

  Education, Youth & Culture Council

  March

  2

  Brussels

  Environment Council

  4–5

  Brussels

  Employment, Social Policy, Health & Consumer Affairs Ministerial

  8–9

  Brussels

  Transport, Telecom & Energy Council

  9

  Brussels

  ECOFIN

  11

  Brussels

  Competitiveness Council

  22–23

  Brussels

  General Affairs & External Relations (GAERC)

  22–23

  Brussels

  Agriculture & Fisheries Council

  25–26

  Brussels

  EUROPEAN COUNCIL

  31

  Brussels

  Justice & Home Affairs (Ministerial Informal)

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  Date

  Location

  Event

  April

  16–17

  Brussels

  GYMNICH

  23–24

  Brussels

  Economic & Financial Affairs

  26–27

  Brussels

  General Affairs & External Relations (GAERC)

  26–27

  Brussels

  Agriculture & Fisheries Council

  29–30

  Brussels

  Justice & Home Affairs (Ministerial Informal)

  British Council Art Exhibitions
  The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Chris Mullin)
  The British Council, although not a Government Department, receives a substantial grant-in-aid from the Foreign and Commonwealth Office. The Council regularly organises or sponsors exhibitions overseas of works of art loaned from National Galleries and private collections in the United Kingdom. It provides certain assurances or guarantees in respect of loss or damage while these works are on loan.

  In the six-month period ended 30 March 2003 the British Council provided such assurances to 4 national lenders and undertakings to 171 private lenders. The value of the contingent liabilities that remained outstanding as at 30 March 2003 in respect of national lenders was £300,000 and £3,703,862 in respect of private lenders.

  Following a recent review, HM Treasury, the Foreign and Commonwealth Office and the British Council have agreed to a revision of the Government art indemnities arrangements for artworks loaned to British Council exhibitions overseas. The revised scheme, which comes into effect on 1 April 2004, has three main features. The maximum total liability available to the Council at any one time will be £50 million (compared with the current £70 million). The £50 million limit does not include "high value" exhibitions (i.e. single exhibitions valued at £30 million or over), which are treated separately. In the case of "high value" exhibitions the Council will submit proposals to the UK's Public Diplomacy Strategy Board and HM Treasury for approval at least two years in advance. For all exhibitions the Council will have to show evidence of having approached the Government of the host country for cover and of having sought sponsorship for commercial insurance.

INTERNATIONAL DEVELOPMENT

  IRAQ: Reconstruction
  The Secretary of State for International Development (Hilary Benn)
  At the Donors' Conference on Iraq, in Madrid on 24 October, the UK will make a total financial commitment towards Iraq's reconstruction of £544 million for the three years from April 2003, including the funding that we have provided so far and our share of proposed European Community spending in Iraq. £248 million is humanitarian and reconstruction assistance already committed by DFID and other Government Departments (£9 million of which is our share of the EC commitment), and £296 million will be for the period up to March 2006 (£29 million of which is 10WS
  our share of currently proposed EC spending). We expect to channel a substantial proportion of this spending through Multi-Donor Trust Fund arrangements being established by the World Bank and the United Nations, and to continue to support bilateral and multilateral programmes in Iraq. This funding does not include the costs of maintaining security in Iraq, towards which we are making a major contribution. Nor will it involve any reduction in DFID's planned development expenditure for low income countries. We remain committed to deliver £1 billion of bilateral assistance for Africa in 2005–6, and to increase the proportion of bilateral spending on low income countries to 90 per cent. by the same time.

DEFENCE

  Afghanistan
  The Parliamentary Under-Secretary of State for Defence (Mr. Ivor Caplin)
  On 3 October 2003, following the expiry of the call-out order made last October, I signed a new call-out order—made under the Reserve Forces Act 1996—to allow reservists to continue to be called out in support of stabilisation and reconstruction operations in Afghanistan. The new order is effective until 30 September 2004.

  Over 230 reservists were called out under the order made last October. We are most grateful for their continuing commitment and the invaluable contribution they and their employers make to this operation.

  I have also authorised the Military Secretary to call out special members of the reserve forces, known as sponsored reserves, who are involved with the heavy equipment transporter contract. They will support operations in Iraq, with about 10 reservists deployed at any one time.

TRADE AND INDUSTRY

  British Energy
  The Secretary of State for Trade and Industry (Ms Patricia Hewitt)
  On 1 October, British Energy announced that it had formally agreed with creditors the terms of its proposed restructuring announced on 28 November last year.

  In the light of the company's announcement, I have confirmed the Government's support for the plan by entering into the Government Restructuring Agreement (GRA) with British Energy. This is an overarching agreement recording the conditions of the Government's commitment to British Energy to proceed with the restructuring and making that commitment legally binding. It entails the Government agreeing that, when the restructuring takes place (Restructuring Effective Date), it will enter into the following principal agreements with British Energy:

  CONTRIBUTION AGREEMENT, which details the mechanisms by which the British Energy group will make contributions to the Nuclear Liabiities Fund (NLF) for the purpose of discharging its liabilities.

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  NUCLEAR LIABILITIES FUNDING AGREEMENT, which provides for the mechanisms by which Government will meet its commitment to underwrite the NLF to the extent that British Energy's contributions are not sufficient to meet the costs, as and when they fall due, of decommissioning British Energy's power stations and discharging other uncontracted nuclear liabilities.
  HISTORIC LIABILITIES FUNDING AGREEMENT, which details the mechanisms by which Government undertakes to discharge British Energy's payment obligations under certain of its existing contracts with BNFL with respect to the management, reprocessing and storage of historic spent fuel, i.e. fuel loaded into British Energy's reactors prior to the Restructuring Effective Date.
  OPTION AGREEMENT, which details the mechanisms by which Government may exercise an option to acquire the British Energy stations at the time when British Energy plans to shut them, either to prolong their operation where it is economically advantageous to do so or decommission them within the public sector.

  These agreements are within the terms of the support for British Energy which I announced to the House on 28 November last year. They are summarised in more detail in British Energy's announcement of 1 October, which I have placed in the Libraries of both Houses. This announcement also gives more details of the conditions of the formal agreements to the proposed restructuring, which include the acceptance of the restructuring terms by a sufficient number of British Energy's significant creditors.

  The restructuring will only be implemented once all these conditions are met. Other conditions include the receipt of State Aid approval from the European Commission. The Commission announced on 23 July 2003 that it was opening a formal investigation procedure into the Government's proposed restructuring aid to British Energy. The period for third party comments to the Commission has now closed and the Government are continuing to work with the Commission to complete the investigation as swiftly as possible.

  Also, if the Government are not satisfied that British Energy will be viable in all reasonably foreseeable conditions, or if there is a material adverse change in British Energy's position, the Government have reserved the right to withdraw their support for the restructuring.

  This would include withdrawal of the Government's secured credit facility, which the Government are otherwise continuing to make available to British Energy at its current level of up to £200 million. Drawings under the credit facility can be made up to the date of the European Commission's decision on the Government's proposed restructuring aid, or 30 September 2004, whichever is earlier. Repayments under the credit facility have to be made by the earlier of the Restructuring Effective Date or 30 September 2004.

  British Energy's announcement is a significant step forward in the implementation of its restructuring plan. However, there are significant milestones ahead, and the Government's contingency plans to fund the administration of the company should any of the restructuring conditions not be met or the restructuring fail for any other reason, will, therefore, remain in place. This means that whether or not the solvent restructuring plan is implemented the nuclear power stations will
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  continue to generate electricity and employ staff and customers' lights will stay on. Government's overriding objectives of ensuring the safety of the nuclear power stations and the security of electricity supplies to the grid and consumers will be met.

  I understand that in November British Energy will be making copies of the key agreements signed on 1 October available for public inspection. When this takes place, I will also place copies of those agreements in the Libraries of both Houses.

DEPUTY PRIME MINISTER

  Planning and Compulsory Purchase Bill
  The Minister for Housing and Planning (Keith Hill)
  I have today published for consultation draft regulations and policy statements on regional and local planning arrangements, and on development control processes. The regulations and guidance underpin the provisions of the Planning and Compulsory Purchase Bill, currently before the House. They are issued for consultation, subject of course to any changes made to the Bill by the House.

  The draft regulations set out detailed procedural matters in relation to regional and local planning matters and development control. We are also publishing draft revised rules for procedures for major infrastructure projects.

  Planning Policy Statement 11 (PPS11), which will supersede PPG11 when the Planning Bill comes into effect, sets out the how Regional Spatial Strategies (RSS) should be prepared and revised under the new statutory framework. In particular it places a new emphasis on community involvement and partnership working, integration with other strategies, making the RSS more regionally specific and on the delivery of policies

  Planning Policy Statement 12 (PPS12) sets out the Government's policy on the preparation of the local development documents that will comprise the local development framework for a local planning authority or for a minerals and waste planning authority. It explains the actions that need to be taken in preparing the local development documents, which will deliver the spatial strategy for the area and the new, streamlined arrangements for dealing with the formal stages of the process. It emphasises the need for community involvement and explains how local planning authorities should prepare sound development plan documents, which will be independently tested before adoption by the authority.

  The Government also published today for consultation draft guidance on development control matters.
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  The Government will be publishing consultation drafts of other planning policy statements in due course, in particular Planning Policy Statement 1, setting out the principles underlying the planning system in England.

  The public consultation on the draft guidance and regulations will run until 16 January. The secondary legislation will be laid before Parliament as soon as
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  possible after the Planning Bill receives Royal Assent. We are planning for both the guidance and secondary legislation to come into effect at commencement of the Act.

  I am today placing copies of the documents in the House library. They will also be available on the website of the Office of the Deputy Prime Minister.

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

Late Payment of Commercial Debt
Lord Harrisonasked Her Majesty's Government:
How successful their late payment legislation has been, and whether more can be done to help small businesses with late payment of commercial debt.
Lord Davies of Oldham: My Lords, late payment can have a crippling effect on the cash flow of businesses. The 1998 legislation provides a framework for tackling it. It allows businesses to charge interest on overdue invoices at 8 per cent above the Bank of England base rate, and to claim compensation of up to £100; SME representative bodies can also challenge unfair payment terms. Late payment was top of one list of business concerns in 1997; it is now ninth.
Lord Harrison: My Lords, I congratulate the Government on the successful introduction of the late payment on commercial debt legislation. Nevertheless, I raise a disturbing report that I have had from the Forum for Private Business, which suggests that contracts commissioned by Defra two years ago during the outbreak of foot and mouth disease have not been paid, and nor has the statutory interest. Does my noble friend agree that it is imperative that all government departments observe the legislation, the cornerstone of which is that right to statutory interest?
Lord Davies of Oldham: My Lords, the target for all government departments is 100 per cent payment on time. Defra is just below the present figure of 95 per cent, and it must bear responsibility for that. No doubt my noble friend will pursue the issue with the department. There have been some difficulties in particular areas, as he indicated. A senior official in Defra's procurement division will attend a meeting of the Better Payment Practice Group on 21st October, when the issue will be discussed.
Lord Razzall: My Lords, does the Minister accept that, in his Answer to the noble Lord's timely Question, he has somewhat led with his chin by suggesting that the issue has moved from the number one concern to number nine? That leaves eight matters still of significant concern to the SMEs. Does he accept that the most significant of them is the increased burden of regulation on SMEs and that, notwithstanding the good work of the task force that the Government set up after they came into office, significantly more work needs to be done in that area?
Lord Davies of Oldham: My Lords, I agree with the noble Lord's latter point that there is more work to be
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done. I do not think that I led with my chin in indicating that the issue of debt had dropped to ninth in concern. In fact, I would be excessively naïve if I thought that medium and small enterprises had no concerns.
Lord Borrie: My Lords, does my noble friend agree that the 1998 Act was based on a false assumption that small firms that are owed money will be willing to sue for interest larger firms with which they have an ongoing relationship? That was expecting an impossibility, as the years since have rather proved. Should the Government not think of other methods to ensure that late payment of debts comes to an end?
Lord Davies of Oldham: My Lords, my noble friend has a point. Small firms will not want to alienate large firms with which they have contracts. However, he should recognise that there has been significant improvement since the passing of the 1998 legislation. That has been recognised by the leaders of organisations representative of small businesses. The legislation permitted those organisations to challenge non-payment in court, and not simply to leave it to the small enterprises themselves.
Lord Skelmersdale: My Lords, in the Minister's answer to the supplementary question of the noble Lord, Lord Harrison, he said that no doubt the noble Lord would pursue the matter with Defra. As the matter has now been put at the Minister's feet, will he accept not only that he would have more clout in pursuing the matter with Defra, but that he should get on and do it?
Lord Davies of Oldham: My Lords, I thought that I had indicated that that was exactly what we were doing. I suggested that Defra had responsibility for its own performance with regard to the objective and the target. However, the group that monitors performance of government departments has put the issue on its agenda, and a senior Defra official will attend to respond to challenges made at that meeting.
Baroness Greengross: My Lords, I am very concerned about the crippling effect of late payment on many voluntary organisations. They face real difficulties because of the late payment of invoices and contract moneys due, specifically from local authorities. One charity of which I know is owed £1.68 million out of an annual turnover of £12 million. Half that amount relates to the past financial year. That is obviously unacceptable, and I seek reassurance from the Minister that the late payment legislation will be tightened up to address the problem, which is growing.
Lord Davies of Oldham: My Lords, the noble Baroness clearly identifies an important case. In terms of the general position with regard to voluntary organisations and charities, particularly in relation to local authorities, the target set for government bodies is also a target for local authorities. Of course, each local authority is responsible for its performance, but

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the Government have made it absolutely clear that we expect public authorities to get as close to 100 per cent timing and performance as possible.
Baroness Miller of Hendon: My Lords, does the Minister accept that in this matter the Government should be leading the way in paying their bills and not have any bills outstanding for any period of time? We were amazed to hear that 95 per cent of Defra bills are paid on time. However, that is not what the newspapers say. What does the 5 per cent represent? How many bills are not paid? Do the Government offer to pay the statutory interest for late payment without being asked by the individual who is owed the money?
Lord Davies of Oldham: My Lords, the House will recognise that the payment of some bills is problematic because the submission can be the subject of dispute. Where public money is involved, it is absolutely right that the department concerned makes sure that it is being charged exactly and precisely for services rendered. However, the noble Baroness is right. The Government set the target at 100 per cent because that is what we expect government departments to achieve. In some departments, we are very close to or hitting that target. Defra, if I may return to it, is just below the government department average, which is 95 per cent. That is an improvement on the 91 per cent of five years ago, before the legislation. The legislation is having its effect and we are making progress.

Comprehensive Disability Bill
2.44 p.m.
Lord Ashley of Stokeasked Her Majesty's Government:
What consideration they have given to the case for a comprehensive Bill on disablement.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, the Secretary of State for Work and Pensions will publish a draft Bill later this year which will take forward our manifesto commitment to extend basic rights and opportunities for disabled people. I am sure that my noble friend will in due course share his views with the House on whether he regards such a Bill as comprehensive.
Lord Ashley of Stoke: My Lords, I thank my noble friend for that response, which is fine as far as it goes, but has she heard reports, as I have, that the Government have no intention of including the new disability Bill in the Queen's Speech, on the flimsy ground that it will require extensive consultation? She knows that we have been consulting on those issues for more than four years. We do not need any further consultation. Is my noble friend aware that if the Bill is not brought forward in the Queen's Speech, it will be very damaging to many disabled people, who certainly
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do not yet have full rights now and suffer discrimination? It will also be damaging to the Government because of the backlash from millions of disappointed disabled people. The idea of a draft Bill at this stage is preposterous.
Baroness Hollis of Heigham: My Lords, my noble friend's views on the preposterousness of a draft Bill are not widely shared. I have had it put to me that a draft Bill which exposes the issues and brings a range of viewpoints into play would be highly desirable.
I shall address the substance of my noble friend's point, which is about the status of the proposed legislation. My right honourable friend the Secretary of State has already made it clear that legislation will be passed by the end of this Parliament.
Lord Campbell of Croy: My Lords, does the Minister agree that there is a need for further reduction and elimination of barriers which obstruct disabled people and that such a Bill should cover mental disablement as well as physical? I declare an interest, being disabled myself from World War II.
Baroness Hollis of Heigham: My Lords, we certainly expect such a Bill to increase or widen the definition of disability as well as covering public sector duties and access to premises, private clubs and so on. The issue of mental health, as the noble Lord will understand, is difficult, but the definition of disability at the moment is that a condition is long-standing and has a substantial, adverse impact on the ability to perform day-to-day duties. If somebody with a mental health problem or learning difficulty fits that definition, he already comes within the existing DDA.
Lord Carter: My Lords, a Joint Select Committee which 1 chair is examining the draft of the mental incapacity Bill. 1 understand also that the Department of Health is considering a mental health Bill. Those two Bills, alongside the disability Bill, which my noble friend has mentioned, would form a troika. If they were all on the statute book by time of the next election, that would be a considerable achievement.
Baroness Hollis of Heigham: My Lords, I would welcome that too. My noble friend presses me on the form of scrutiny of such a draft Bill. The Government have not yet made their decision, but one possibility is clearly a Select Committee. The other is a Joint Committee of both Houses. I am sure that, whatever happens, your Lordships would wish to be involved in the scrutiny process.
Baroness Gardner of Parkes: My Lords, does the Minister agree that legislation is one thing but example is another? Does she recall that I have previously raised in this House the difficulties that Portcullis House presents to disabled people? She has had correspondence with its managers and they have assured her that they will try to make it more amenable for disabled people and, in particular, for disabled people to be able to work there. Their only reply was

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that you could be "accompanied" around it. If you were working there, you certainly could not have another paid person to accompany you to open the doors and deal with the obstacles for disabled people. Is the Minister able to update us on whether there has been any progress in improving the comparatively newly built Portcullis House?
Baroness Hollis of Heigham: My Lords, my understanding is, but I shall check again, that as result of the perfectly proper pressure from the noble Baroness, the door handles, for example, are being changed, so that people who are in a wheelchair or have a disability can more easily open the doors. Issues such as that have been taken on board. I know that the architects have carried out the equivalent of a disability audit of that building in response to the pressure from your Lordships' House.
Lord Addington: My Lords, do the Government agree that it is about time that we allowed any new commission or following-on body to get away from an individual-case, reactive approach to ensuring that the law is enforced and to have the power to take on a more far-seeing and preventive approach to any disability issue?
Baroness Hollis of Heigham: My Lords, I am not sure whether the noble Lord is pressing for the DRC to take up wide-ranging issues such as that. It is a difficult issue, because it could very well cut across the role of, for example, the Health and Safety Executive. I shall give an example. Approximately one-third of people on incapacity benefit have either a mental health or a learning difficulty—largely mental health depression and stress. One could seek to deal with issues of discrimination on the basis of the DRC. What seems to me more helpful—and this issue, too, has been raised in your Lordships' House—is to have the Health and Safety Executive working with employers, as it is doing, putting out new guidance and strengthening the enforcement proceedings, first, in order to avoid the problem arising and, secondly, to ensure appropriate rehabilitation strategies.
Lord Higgins: My Lords, will the Government comment on the first legislative review of the Disability Rights Commission and will they do so in advance of the publication of the draft Bill?
Baroness Hollis of Heigham: My Lords, if the noble Lord is referring to the comments of the DRC on inclusion proposals, even before changes that will take place in October 2004, we have already implemented approximately 70 per cent of the recommendations of the Disability Rights Taskforce. Given the proposals that are coming through in October 2004 in terms of the employment directive which, as the noble Lord will know, covers 1 million employers, 7 million people and 600,000 disabled people, together with the proposed draft legislation, I am confident that we will be addressing the DRC's concerns.
Baroness Masham of Ilton: My Lords, is the Minister aware that a growing number of elderly
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disabled people require help in the home with such basic things as having a bath? Is she also aware of the incredible cuts in the use of the taxi card for people who cannot use public transport? That certainly is the case with Westminster City Council.
Baroness Hollis of Heigham: My Lords, I do not want to be unhelpful, but the degree to which local authorities respond to the day-to-day needs of disabled people is wide of the Question, which is about a comprehensive disability Bill. However, if the noble Baroness would like to write to me about any particular local authority, I shall do my best to make inquiries and respond to her.

CAP: Export Subsidies
2.52 p.m.
Lord Hyltonasked Her Majesty's Government:
Whether they will propose further reduction in European Union agricultural export subsidies, in particular the phasing out of subsidies on sugar and milk exports over the next four years.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the WTO Doha Declaration in 2001 committed all members to negotiations aimed at reductions of all forms of export subsidies for agricultural products, with a view to phasing them out. The Government remain fully committed to this objective, although the timetable remains a matter for negotiation and I am unable to commit to precise end-dates at present. The UK continues in the forefront of those seeking liberalisation of agricultural markets.
Lord Hylton: My Lords, I am grateful for the Answer. Does the Minister agree that two-thirds of the subsidies are accounted for by sugar and milk? Does he also agree that they distort trade far more than tariffs or import levies; that they often exceed the aid given to individual developing countries; and that they destroy the livelihoods of poor people? Therefore, will the Government give a lead to the rest of Europe on this matter?
Lord Whitty: My Lords, the UK has been at the forefront of the EU's position to move to greater liberalisation in this and other areas. Indeed, we were instrumental in ensuring that the EU offered to cut all agricultural export subsidies by 45 per cent with a view to phasing them out entirely. That did not reach the point of negotiation in Cancun, but it was a significant shift in the EU's position.
The situation on sugar is particularly complicated. It is true that sugar and dairy products account for two-thirds of Europe's export subsidies, although relatively little of that—none in sugar—accrues to United Kingdom producers.
The Earl of Onslow: My Lords, how can the Minister say that Britain is in the forefront of this when

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Mr Chirac and Mr SchrŐder went to Berlin, stitched up the whole arrangement and ensured that no progress was made on reform of the CAP for 10 years? It is all very fine and large for Ministers to say that the British Government are in the forefront—they are not. We get stitched up on this particular issue by the French and Germans every time.
Lord Whitty: My Lords, that is a completely erroneous interpretation of the events of recent months. Let us look at the facts. We had the most dramatic change in the CAP for decades, which shifted the bulk of subsidies away from production and towards environmental and social benefits. That was a major contribution which meant that the EU could enter negotiations in Cancun having made that move.
That move did not include export subsidies, nor was it ever going to include export subsidies. However, as I have said, the EU was prepared to make a move in the WTO context on export subsidies. The fact that we did not reach agreement was not because the EU was unable to move.
Lord Tomlinson: My Lords, does my noble friend agree that approximately 50 per cent of the present EU budget goes on the common agricultural policy? In an increasingly regulated world trade order, which we all want and can see as desirable, is it not the fact that the CAP as a whole and American agricultural subsidies stand in mockery to the goals of a regulated world trade system?
Lord Whitty: My Lords, that has been the position of successive British governments for a long time. The point I was making in response to the noble Earl was that we have succeeded in achieving a major reform of the CAP. It did not go as far as we would like, but it was substantial and in multilateral talks it put the European Union in a position to lead towards greater liberalisation of world markets. It is true that the EU has the largest number of direct export subsidies and it is important that we commit ourselves to phasing those out as rapidly as possible. My noble friend referred to the United States. It is also true that there are other ways of subsidising exports. Direct export subsidies, food aid and export credits are used by the United States to equal effect of those in the European Union.
I fully accept that we need to make progress on this front. However, the EU as a whole, at the behest largely of the United Kingdom, has moved substantially in that direction.
Baroness Miller of Chilthorne Domer: My Lords, does the Minister agree that export subsidies in the milk sector are doubly damaging? They are damaging to the developing countries on which the products are dumped and damaging to our small family dairy farmers who, instead of being encouraged by governments to produce value-added products—such as yoghurt and cheese—still produce low-value
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products such as milk powder. Will the Minister do his best to ensure that those farmers are enabled to produce value-added products?
Lord Whitty: My Lords, reform of the CAP went less far in relation to dairy and in relation to livestock and arable farming—although further than it has gone on sugar. It is important that we get closer to a market situation in dairy and that the British dairy industry in particular makes its money from value-added products. However, as regards export subsidies, we do not export a significant amount of liquid milk and we tend to export milk products and skimmed milk. The subsidies we receive in that area come from that side of milk production and not from liquid milk. In negotiations on the EU agricultural policy, it was disappointing that the dairy reform—removing quotas, export subsidies and price support—did not go further.
Baroness Byford: My Lords, does the Minister agree that the detail and the phasing-out is the biggest challenge faced by the Government and the EU? I want to raise the problem of sugar. We are concerned that some of the ACP countries which now have favourable conditions may be the losers in some way. How are Her Majesty's Government going to approach that problem?
Lord Whitty: My Lords, that is why I said that the problem surrounding sugar is more complex than simply removing the export subsidy and the guaranteed high European price. Removing the guaranteed price and the export subsidy will have an effect on the world price which will not necessarily be to the benefit of sugar producers. One is then in danger of shifting the burden from the poorest to the poor, or among the poor. That is perhaps why sugar is the least reformed part of the CAP because the development effect is differential.
It will take time to reform the sugar regime, but we must make a start on it. It is one of the most objectionable aspects of the EU's CAP and it hits many developing countries, both those which benefit from access to what is basically the British part of the EU market and those which do not.
Lord Carter: My Lords, in considering this subject, should we not remember that, at present, virtually every dairy farmer in the UK is producing milk at a loss and has been doing so for a number of years? I declare an interest as president of the Royal Association of British Dairy Farmers. I entirely agree with, and support, the thrust of the Government's policy. However, would my noble friend care to speculate on the effect on the UK dairy farmer if, in fact, export subsidies on milk products were phased out?
Lord Whitty: My Lords, as I said, as far as concerns the British dairy farmer, the export subsidies received are not for liquid milk, which we hardly export. Therefore, the phasing out is not relevant to the liquid

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milk price. Clearly the phasing out will not happen overnight. The reduction in export subsidies will take place in a phased way as part of a total reform of the dairy policy. In the short term, if people continued to produce to quota and if there were no subsidised export markets, then obviously the price would go down further. However, it would probably hit the intervention price and therefore make no significant difference to the income of dairy farmers. But this must be part of a planned phasing out of the totality of the dairy regime.
Lord Mackie of Benshie: My Lords, I wonder whether the Minister—
Noble Lords: Next Question!
Lord Mackie of Benshie: No, my Lords.
The Lord President of the Council (Baroness Amos):
My Lords, I think it is time for us to move on to the next Question.

Traffic Regulation: National Trails
3.1 p.m.
Lord Bradshawasked Her Majesty's Government:
Following the Railways and Transport Safety Act 2003, what progress is being made in promoting a traffic regulation order banning mechanically propelled vehicles from using national trails such as the Ridgeway.
Lord Whitty: My Lords, the Government believe that a comprehensive and integrated management plan, jointly implemented by the local authorities, is the only way to solve the problems on the Ridgeway. My right honourable friend the Minister of State for Rural Affairs has met MPs, Peers and local authorities several times to try to gain support for that. Exercising the Secretary of State's power to make a traffic regulation order would be a last resort, should that local co-operation not succeed.
Lord Bradshaw: My Lords, I thank the noble Lord for that reply, but I must express extreme disappointment. When that Act was a Bill, this House voted for an amendment to it which I believe expressed our total frustration at the lack of progress by local authorities in passing traffic regulation orders, which the police, with so many other government priorities, are in no position to enforce. We asked the Government to consider bringing forward within a year a comprehensive traffic regulation order, which would be seen by some in the countryside as a measure of relief from some of the other rather oppressive measures which the Government have in mind.
Lord Whitty: My Lords, the traffic regulation order pre-existed the Bill to which the noble Lord refers, and it is always to be used as a last resort when other
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elements have failed. The problem in relation to the Ridgeway—the specific focus of this Question—is that different parts of it have a different status. In some areas, it is a BOAT—a byway open to all traffic; in others, it consists of pathways; and, in a small part, it is also a metalled surface or a RUPP—a road used as a public path. Therefore, different rules apply to different parts of it and that means that local solutions are required in some areas. However, my right honourable friend Alun Michael is attempting to bring together all the enforcement authorities and, if that fails, will consider, as a result of the Bill to which the noble Lord refers, the possibility of intervening with a traffic regulation order.
Baroness Byford: My Lords, first, when will the Government do that? It is a year since we debated this very important matter. My noble friend Lord Astor, who cannot be here, particularly wished me to raise this issue because the House of Lords clearly voted for action and nothing has happened. Secondly, is the traffic regulation order time-limited? In other words, can it run only for a certain length of time? If that is the case, are the Government giving any thought to extending the time period?
Lord Whitty: My Lords, the traffic regulation order would apply to a specific part of a right of way, or whatever, for a limited period, but it would be renewable. Therefore, I do not believe that we need to change the law in that respect. To touch on the wider issue to which the noble Baroness referred, further consultation is to take place on the total approach to motorised traffic in this area, and the use of traffic regulation orders by the Secretary of State from on high needs to be retained as an important power. However, it is also important that the local authorities, including the police authorities, regard this as an important area in which the law should be enforced.
Lord Berkeley: My Lords, given the assurance from Ministers in, I believe, June or July, that, if necessary, they would bring in these orders within a year—my noble friend has just said that they would be used as a last resort—how long a consultation period would be required before the orders were introduced? Can they be put in place concurrently with the wider consultation on the national ban that my noble friend has just mentioned or must one precede the other?
Lord Whitty: My Lords, the consultation to which I referred related to the overall issue and not to the use of the traffic order. Therefore, in that sense, they could be carried out or put in place concurrently.
The Earl of Onslow: My Lords, would not Defra's time be far better taken up with ensuring that this problem, which is universally agreed to be a proper problem, is dealt with rather than banning fox hunting? The latter, which is a waste of the department's time, is considered by an awful lot of

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people to be very useful and beneficial to the countryside. However, I am absolutely certain that the noble Lord cannot get his mind round that question.
Lord Whitty: My Lords, there are also an awful lot of people who think the opposite to the noble Earl. The subject of the Question poses a problem for particular parts of the country and it is an issue on which the House and Parliament have legislated. Therefore, it is important that we take seriously the powers which the recent Act gives us to deal with what, I agree, is a very disturbing problem to many people who try to use our highways and byways.
Lord Avebury: My Lords, I welcome the close interest taken by the Minister, Alun Michael, in this problem. However, does the Minister agree that the lengthy discussions which he has held with local authorities, MPs and other interest groups demonstrate how hard it is to obtain an agreement piecemeal in the manner that he suggests? Meanwhile, is he aware, as I am sure he must be from the photographs sent to Ministers by Friends of the Ridgeway, of the enormous damage being done by the irresponsible users of four-by-fours? Will the Minister come forward with any alternative proposals or will he accept the amendment which my noble friend moved when the Act was a Bill?
Lord Whitty: My Lords, although it is true that obtaining co-operation between the various authorities has at times been difficult, in this respect 1 believe that some progress has been made in dealing with the Ridgeway. There are issues of damage to the fabric of the Ridgeway, some of which are being addressed by that group. But, of course, it is not always the case that motorised vehicles are illegal. In some parts of the Ridgeway, the presence of motorised vehicles is illegal, but most of the Ridgeway is open to some degree to motorised traffic. Therefore, it is people's behaviour and the way that those vehicles are used which may be anti-social or illegal. Therefore, it is not a straightforward issue.

EU Investment Services Directive
3.8 p.m.
Lord Hodgson of Astley Abbottsasked Her Majesty's Government:
What is now their policy on the draft Investment Services Directive, following the outcome of the meeting in Brussels on 7th October,
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Mclntosh of Haringey): My Lords, the Government voted against the presidency text for a Council common position on the proposed Investment Services Directive at ECOFIN on 7th October. The Government will continue to work to improve the
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proposed directive, including working through the European Parliament and with the financial sector and other member states.
Lord Hodgson of Astley Abbotts: My Lords, I am very grateful to the Minister for his reply. I begin by congratulating him on his attempt to make a silk purse out of a sow's ear. However, on reflection, does he recognise that the meeting was a stitch-up, which the Government fell for? It was a stitch-up between the smaller European financial sectors to gang up at the expense of the City of London. Does the Minister further recognise that, as a result, there will be a considerable cost to the people of Britain, both in terms of the higher cost to British industry in raising funds and to private individuals in buying and selling shares? Finally, will the Minister comment on the remarks in the financial Times, which described the results of the meeting as "scandalous", "retrograde" and,
"a shot in the foot"?
Lord Mclntosh of Haringey: My Lords, as I am required to do so, I shall answer the first two questions. I have not attempted to conceal the fact that this was a defeat for the Government. We would have wanted this matter not to have been pressed to a vote by the Italian presidency. We think it was a mistake for them to do so. We believe that there was room for compromise and for agreed solution, which would have been better for financial markets in this country. There is no disguising that fact.
However, this is not entirely the end of the matter. Under the co-decision procedure, the European Parliament can push for amendments to the Council, a common position. There is some hope that it might do so in the light of the fact that the first reading in the European Parliament produced a text which was better than the presidency text adopted by a majority vote last week.
Lord Woolmer of Leeds: My Lords, while agreeing that it is important that the outstanding directives are not rushed through without proper and careful consultation, is the Minister aware of the reported views of the chairman of the Financial Services Authority that the timetable for implementation of the huge amount of legislation involved is unrealistic, will impose very substantial costs and raise major difficulties in the industry? Will he raise that at ECOFIN in November and seek to ensure that revised guidance is provided to the Committee of European Securities Regulators when they seek to implement the single market financial regulations?
Lord Mclntosh of Haringey: My Lords, I pay tribute to the work of my noble friend as chairman of the sub-committee carrying out an inquiry into the EU Financial Services Action Plan? Yes, he is right: Callum McCarthy expressed the view that there are too many of these directives going through to be assimilated. We have considerable sympathy with that view and continue to express it to our colleagues in the

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European Union. But they are not all as threatening as the noble Lord, Lord Woolmer, thinks. For example, the prospective directive, on which the noble Lord, Lord Hodgson, expressed grave doubts in an important debate in this House two years ago, and which removes barriers to integration in European social securities markets, is now approaching conclusion on a basis which is very acceptable to this country and has been improved by the action of the British Government.
Lord Lawson of Blaby: My Lords, the Minister has clearly agreed that this is a very serious matter indeed. He called it a defeat for the Government. It was not the Government's fault but it was a big defeat. Did the Government consider invoking the so-called "Luxembourg compromise" on this matter? Indeed, what is the Government's position on the Luxembourg compromise?
Lord Mclntosh of Haringey: My Lords, we have always supported the Luxembourg compromise. There are powers which the presidency has and which, unwisely in this case, the Italian presidency used to force a matter to a vote, in our view prematurely. But I do not think we would have been helped by the Luxembourg compromise.
Lord Tomlinson: My Lords, does my noble friend not agree that the Investment Services Directive is a salutary example to many Members of this House of why they should not have a knee-jerk reaction to the proposal from the Convention on the Future of Europe about extending co-decision powers to the European Parliament? This is one case where we shall depend on it, and perhaps people should be a little more cautious about attacking such extensions in future.
Lord Mclntosh of Haringey: My Lords, I am reluctant to generalise from the Question which is specifically about the Investment Services Directive. The Investment Services Directive has many positive features, many of which have been introduced as a result of pressure from this Government. However, we remain unhappy about Article 25 on pre-trade transparency and the provision in the directive for the treatment of execution-only business. So, we do have concerns but I do not think it would be appropriate in answer to this Question to seek to address the wider questions raised by the noble Lord, Lord Tomlinson.
Lord Newby: My Lords, does the Minister accept that the Government were taken by surprise by the Italian proposals on this directive and were outmanoeuvred in the Council? Can we have an assurance from the Minister that in all future discussions and measures under the Financial Services
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Action Plan the Government will give these issues top priority at both ministerial and official level? Such a priority was seriously lacking in this case.
Lord Mclntosh of Haringey: My Lords. I do not accept that there was a lack of priority given to this issue by the Government. Certainly, I assure the noble Lord, Lord Newby, that we shall give these matters top priority. However, I believe that the phrases "outmanoeuvred" and "taken by surprise" are not appropriate here. The point is that any presidency, and in this case the Italian presidency, has the power to force the matter to a vote. Normally, sensible presidencies do not do that; they seek a compromise which is acceptable towards all parties and pay attention to the fact that the United Kingdom has, rightly, the largest financial services market in the European Union, and that should be given priority.
Lord Jenkin of Roding: My Lords, has the Minister noticed the appeals that were made by some of the trade associations, reported in the Financial Times, that part of the problem could be averted if officials would avoid gold-plating regulations and interpreting them a great deal more strictly than in other member countries in the European Union?
Lord Mclntosh of Haringey: My Lords. I have seen those reports. I do not think that that criticism applies in this case. The financial services industry in this country is not unanimous in its views on any defects in the Investment Services Directive. Yes, the larger investment banks are opposed to it, but some other banks and smaller financial houses are not so opposed. I do not think that the criticism raised by the noble Lord, Lord Jenkin, is appropriate in this case.

Household Waste Recycling Bill
Read a third time, and passed.

Criminal Justice Bill
3.16 p.m.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to. House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 215 [Meaning of "specified offence " etc.]:
Lord Dholakia Lord Dholakia moved Amendment No. 195AA:
Page 126, line 32, leave out "a specified offence" and insert "of a serious sexual or violent nature"
The noble Lord said: Chapter 5 provides measures for dealing with dangerous offenders. The Halliday report criticised the existing disparate set of provisions

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for sexual and violent offenders and identified a need for a more coherent sentencing structure to deal with this type of offender.
These measures are designed, it seems, to replace the existing structure of automatic life sentences, longer than normal prison sentences and extended sentences. Thus, Schedule 26 provides for the repeal of Sections 80, 85 and 109 of the Powers of Criminal Courts (Sentencing) Act 2000. In their place Clause 215 states that where an offence is a "serious offence" with a maximum of life imprisonment and the court regards the offender as a significant risk to the public, and the seriousness of the offence is such as to justify a life sentence, the court must impose a sentence of imprisonment for life. Clause 216 contains a similar provision for offenders under 18.
Clauses 215 and 216 also provide that where a sexual or violent offence is a serious offence, with a maximum sentence of at least 10 years, and the court takes the view that the sentence it might otherwise pass would not be sufficient to protect the public from the significant risk that the offender presents,
"the court must impose a sentence of imprisonment for public protection".
That is a kind of indeterminate and reviewable sentence, release from which is governed by Schedule 15.
We are concerned that under Clause 215 Schedule 12 could be extended to cover other offences. The assessment of "dangerousness" under Clause 220 could fetter the discretion of the courts in making an extremely important decision for the public safety. We are not persuaded that these hoops would make sentencing any better or easier to understand. It should be for the courts to review the decision taken under Clause 221. The wide power of the Parole Board to extend sentences, even if ECHR-complaint, is undesirable and not in the interests of justice and democracy.
The intention behind the amendments is to try to open up discussion of what kind of offences will trigger those provisions and to advance our view that the list should be limited to serious or violent offences. A cursory glance at the list will show the Committee that a whole range of what are in our view non-serious offences is included.
The amendment is grouped with Amendments Nos. 195AB, 197A and 197B. They raise an issue of significant public importance. People have strong views about the best way to deal with dangerous offenders. In the course of debate on the amendments, we shall be able to probe the Government's thinking on the subject. We should have an honest debate about sentencing; but equally it is important to identify what works and is good and effective for both defendants and victims.
Perhaps the most important change would be made by the amendment requiring that the offence be serious. Our intention is to debate what sort of offences should trigger the dangerous offenders provision and to consider what thought has been given
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to the subject since the relatively recent amendments made by the Powers of Criminal Courts (Sentencing) Act 2000.
The second question is whether it is appropriate to define "serious sexual and violent offences" by means of a list of offences. These are probing amendments, so it will be useful to hear the Minister's thoughts on those matters. I beg to move.
Lord Thomas of Gresford: This group of amendments raises the question of the best way to use public resources in the criminal justice system. A basic criticism of Chapter 5 of Part 12 is the high cost involved in putting it into effect.
For example, it requires a massive increase in the material required for the sentencing court: the gathering of information about the circumstances of the offence; the pattern of behaviour of the defendant; and any further information about him that can be made available. There will then need to be submissions and argument in court about whether there is a significant risk of serious harm to members of the public occasioned by further offences set out in the list in the schedule. Those offences may be quite different from the offence for which the defendant stands before the court to be punished.
The scheme also envisages a significant lengthening of terms of imprisonment. The Committee will know from our many debates on the subject that imprisonment is extremely costly. It means more imprisonment by reason of the number of life sentences that will be imposed and by the new sentence of imprisonment for public protection, under which it is envisaged that imprisonment of a defendant will continue indefinitely until the Parole Board orders release. There is then the cost of extending the Parole Board and its bureaucracy to cope with what will be a massive increase in its workload.
The provisions then envisage that after the completion of sentences of imprisonment a defendant will serve a period on licence. The cost of supervising licences—presumably by the probation service—of both those released from life sentences or sentences imposed for public protection and those subject to extended sentences of up to five years for violent offences or eight years for sexual offences must also be considered.
So where will the money come from to pay for more court days, more judge time and the increased workload of defence and prosecution lawyers, to build new prisons to accommodate those prisoners who will be held for longer, to extend the Parole Board and to expand the probation service? I suggest, from cutting back on rehabilitation schemes, on which the emphasis should always lie.
The purpose of this group of amendments is to try to introduce some common sense to the scheme, so that not everyone who appears in court will have to go through the period of assessment of risk to the public. The list in Schedule 2 is simply a complete list of all violent offences in Part 1 and sexual offences in Part 2 that may attract a sentence of two years or more.

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Is it indeed the Government's intention that the sentencing court should automatically carry out the process of assessment of risk to the public whenever there is a conviction for one of those offences? There are more than 60 violent and more than 40 sexual offences listed in the schedule. Or will it be for the prosecution to draw the schedule's provisions to the court's attention? Clause 220(3) makes it mandatory on a second conviction for one of the scheduled offences for the court to assume—presume—risk to the public, so that the burden of establishing that it would be unreasonable to make such an assumption falls on the defence.
The provisions contain a huge extension of legal work in court, imprisonment, Parole Board involvement and probation service work supervising licences—all very costly. We suggest that the emphasis is in the wrong direction.
Lord Carlisle of Bucklow: I strongly support what the noble Lord, Lord Thomas, said. The effect of the clauses taken together is bound to mean a substantial increase in the use of life imprisonment and in sentences of indeterminate length. In themselves, they are bound to increase the prison population. What is more, they are likely to have a knock-on effect on the length of sentences given for other offences of that nature.
I wonder whether the Government have really thought through the vast increase in the prison population that that could cause. I invite the Minister to tell us what estimate they have of its effect on the prison population, on cost and, as the noble Lord, Lord Thomas, says, on services such as the probation service.
While I am on my feet, perhaps I may raise another matter. If I understand the provisions correctly, if someone has committed a specified offence—which, as the noble Lord, Lord Thomas, said, is one of a numerous list to be found in the schedule—and, in the view of the court, it is a serious offence, the court is bound to consider whether there is a risk of serious harm to members of the public because of the possible repetition of that offence and, if it finds that there is, must sentence the person to life imprisonment if that is the maximum sentence. Equally, as I understand it, the court must make a public protection order if the maximum sentence is one of two years.
I am not sure about what is meant by Clause 216.1 ask this in genuine ignorance. Is it limited to offences for which the maximum would otherwise be 10 years' imprisonment? I ask that because Clause 216(2) states that if,
"the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life",
and if the court,
"considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life".
It then refers to,
"a case not falling within subsection (2)".
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Since a serious offence is described as one of the specified offences, and many specified offences hold a maximum sentence of less than 10 years—for example, assault occasioning actual bodily harm, with a maximum of merely five years—does that mean that someone convicted of assault occasioning actual bodily harm could be the subject of a public protection sentence, which would be an indefinite sentence subject merely to release by the Parole Board? I think that I am wrong in what I ask, but I would be grateful for clarification from the Minister.
3.30 p.m.
Lord Campbell of Alloway: Briefly, I wholly support what has been said by the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Carlisle. There seems to be a most serious misunderstanding on the part of the Government on a much wider, general plane. The provision will result in a vast increase in the prison population. It is wrong for the Government to take any steps, even if they could be justified on any other grounds—frankly, I do not think that they are in this case. Until we have more prisons or acceptable prison statistics, and overcrowding has been addressed, the Government ought not to introduce that sort of legislation at all. Unless the Minister can give some form of concrete assurance that something will be done about the prisons which can accommodate the proposals, the Government should withdraw.
Baroness Kennedy of The Shaws: I, too, add my voice to those expressing concern about these parts of the Bill. The current position of Britain's prisons is nothing short of a scandal. The idea that the Government are adding to the shame of British prisons seems extraordinary. Sometimes when I ask how we can be travelling this road, I am told that the rationale is that we can empty the prisons only of people at the lesser end, and we can increase community service for offenders as an alternative to prison only if we are seen to be tough on those who commit serious crimes. The veneer is that we are tough in order to be kind.
That rationale is not good enough. Politicians should make the political weather. They should explain to the public why we need to reduce the numbers of people going to prison. The idea that we can justify that only by becoming punishers of an extreme kind at the serious end is ridiculous. This is about trying to justify what is sensible, rather than giving the strong, good argument that people with problems, such as drug addicts and alcoholics, need alternatives. Rather than arguing from a position of justice and strength, the argument will be, "Look at us, you cannot accuse us of being soft. Here we are being tough at the other end of the scale".
I ask the Government to take account of the fact that the provisions will ratchet up sentencing everywhere because the sentencing culture will become one of increase. Even if sentences are increased only at the serious end of crime, it will ratchet up sentencing everywhere. That is why the thinking is so profoundly wrong.

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I wish to speak in particular about how such legislation affects the morale in prisons. It has not been taken into account that the increases will introduce to prisons the sense of hopelessness that comes with such incredibly long sentences, nor how it makes it difficult for prison officers to try to manage prisons.
I hope that the Government will think again on the matter. I do not believe for one minute that the public will be persuaded. The public are prepared and open to a much more nuanced, considered argument about what ought to happen to offenders and how they should be dealt with in our prison system.
Lord Hylton: The noble Lords, Lord Thomas of Gresford and Lord Carlisle, have rightly drawn attention to the financial and organisational costs that this chapter of the Bill will impose. The Government seem to be asking Parliament to write a blank cheque for unknown costs that might not be honoured because they will produce retrenchment and cuts in other parts of the Prison Service.
I shall concentrate on the human costs of the legislation—initially, from the prisoner's point of view. If he or she is faced with a long, fixed-term or indeterminate sentence, with no possibility of release, why bother to change? Why not just stay the same, and in a violent and dangerous condition?
Whole-life tariffs are likely to lead to individual despair and, very often, to suicide. The noble Baroness, Lady Kennedy of The Shaws, was right to ask about the legislation's effect on prison staff. Prisons will be severely tempted to become just warehouses of people. Staff will be able to shrug their shoulders and lay aside any attempt to get close to a prisoner, to help him forward or to help him to improve himself. The legislation is totally retrograde.
Lord Ackner: I wish to make the following point since the words "ratchet up" have been used, but I shall seek to develop it later. Schedule 17, to which we shall come in due course, ratchets up by 50 per cent or thereabouts the existing sentences for murder. They were the subject matter of guidelines issued by the Lord Chief Justice through a practice direction last year, after the Sentencing Advisory Panel had asked that the subject be addressed and the Lord Chief Justice had agreed the matter with the panel. He then communicated the resulting view to the Home Secretary, the Attorney-General and a third category. They made very slight alterations, and that was that.
As the Committee knows, Schedule 17 was produced as a conditioned reflex action by the Home Secretary to learning that, as a politician, he was no longer entitled to any say in how long convicted murderers should stay in prison. The figures that he has laid down—from whole life, to 30 years and then 15 years on the subjectively chosen categories of murder—increase those guidelines by about 50 per cent. The Home Secretary has totally overlooked the fact that the guidelines are part of a sentencing practice that covers all associated crime.
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If the sentence for murder is increased by 50 per cent, the same approach has to be adopted for all other serious crimes. That has been totally overlooked by the Home Secretary. He talked about the delay factor, which applies in murder cases because those convicted would have had to do some time before their extended sentences came into operation. So, all serious offences have to go up by 50 per cent. That will render prisons totally inadequate to house those subject to those sentences and the cost of the measure will run into millions of pounds.
In Schedule 17, the Home Secretary has automatically ratcheted up by about 50 per cent the sentences for murder and all serious crimes in the teeth of sentencing guidelines that were issued by the Lord Chief Justice as a practice direction after having consulted with and got the concurrence of the Home Secretary and the Attorney-General.
Lord Carlile of Berriew: I agree with what was said by my noble friend Lord Thomas of Gresford and others about the merits of the clause. However, I wanted to add one point that relates to Clauses 215 and 216 and I hope that this is an appropriate time to make it.
If we have this new and, in my view, artificial category of serious offences for offences that already attract very significant sentences by judges exercising their daily judicial discretion, we will lengthen trials and the Crown Court process very considerably. No defendant faced with the possibility of a judge making a decision such as that provided for in Clause 216(1 )(b) as a result of the categorisation of a serious offence in Clause 215, would risk pleading guilty. No lawyer would advise him to take that risk.
We are not allowed to plea bargain in the Crown Courts of England and Wales—officially, at least. However, it is possible that the provisions would actually lead to a new form of illegitimate plea bargaining by counsel going into the judge's room to ask whether the defendant poses a significant risk to members of the public as provided for in Clause 216.
The Government, quite rightly in my view, complain about the length of time taken over Crown Court trials and that not enough people plead guilty. The Government constantly remind us, as do judges, of the discounts available to people who plead guilty. The introduction of these two sections, including the category of serious offences in Clause 215, will be completely counter-productive and will clog up the courts with serious cases. Do the Government want that?
3.45 p.m.
Baroness Scotland of Asthal: I will deal first with that last point made by the noble Lord, Lord Carlile. He said that the provisions may lead to lengthening sentences and an additional element of gaming. Of course, we expect—and my experience would promote the idea—that lawyers will continue to do that which they have always done with honour and integrity and advise their clients properly. If their clients disclose to

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them that they are guilty, I am sure that lawyers would continue to tell them that they must plead guilty. I hope that the noble Lord, Lord Carlile, was not seeking to suggest any impropriety in that regard.
Lord Carlile of Berriew: I am amazed that the noble Baroness could even imagine that I was. She knows from her own experience that, every day in the courts, defendants deny offences and their lawyers give them advice on their prospects of acquittal. The nature of the advice given to those clients depends upon the statutory provisions that this Parliament imposes on the courts. No responsible lawyer, in giving advice, would fail to give account to the full range of statutory provisions, including those relating to sentences.
I remind the noble Baroness that it is commonplace in murder cases for defendants to be advised— completely properly and honourably by their counsel whether to plead guilty, according, in part, to their prospects of acquittal of murder and conviction of the alternative of manslaughter.
Baroness Scotland of Asthal: I hear what the noble Lord says. Perhaps this is not the appropriate moment to enter into a detailed debate with him on those issues. However, in relation to dangerousness, the whole point of Clauses 215 and 216 is the protection of the public. In some cases, the assessment of dangerousness will be critical. It is not proposed that these provisions will extend improperly the investigation of those issues.
To take up the points made by the noble Lord, Lord Thomas of Gresford, the increase in the information that would be before the courts will enable them to come to a better informed judicial assessment about the precise nature of the offender and the offending pattern of behaviour and seek to address those properly. I say this as clearly as I can: by introducing these provisions, it is not the intention of the Government to accelerate or exacerbate the prison population. However, we do intend to ensure that a just result is available when dealing with these matters.
Of course, I accept what the noble Lord, Lord Dholakia, said about the nature of Amendments Nos. 195AA, 195AB, 197A and 197B because they are probing amendments. I will therefore not deal with their precise detail, but I will deal with them generically. The alternative definitions put forward in the amendments would create a higher threshold for the dangerousness provisions, thus potentially jeopardising the safety of the public. We will accordingly resist them. All sexual and violent offences listed in Schedule 12 carrying maximum penalties of 10 years or more are sufficiently serious to attract this sentence. The decision about whether the sentence of public protection will be passed will still be dependent on whether the court considers that the definition of dangerousness is met in each individual case.
Amendments Nos. 195AB, 197A and 197B have been crafted so as to restrict the automatic assumption of dangerousness to offenders with one or more previous convictions for offences of a serious sexual or violent nature. We have considered the matter
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carefully, and we think that any offender who appears before a court for a second sexual or violent offence must be considered a threat to the public, regardless of whether the offences were of a serious nature. Restricting the provisions to offences of a serious sexual and violent nature could result in dangerous offenders being sentenced to a determinate rather than indeterminate sentence, thus causing an unnecessary risk of harm to the public. It is for that reason that the amendments should be resisted.
The Bill provides a valuable safety net. to ensure that all offenders convicted of two relevant offences are assumed to be dangerous, prior to the passing of the sentence. We also hope that it will have a deterrent effect on offenders convicted of a single relevant offence, as they will know that, if they commit a second relevant offence, they will also be assumed to be dangerous. However, the clause allows the court to disregard the assumption of dangerousness in cases in which it considers it, on the basis of all the evidence, to be unreasonable. We will still have the safely net provided by the proper exercise of judicial discretion.
Amendments Nos. 195AC and 195AD would remove certain violent offences from the list. It may be right to take the opportunity to say that including an offence on the list of specified offences does not automatically mean that conviction of one of those offences will result in the passing of one of the new sentences for dangerous offenders. In all cases in which an offender is convicted of a trigger offence, it will be up to the court to decide whether the offender poses a significant risk of serious harm to members of the public through the commission of further specified offences. If the court considers that the offender does not pose such a risk, it may not pass one of the new dangerousness sentences. We are talking about violent and potentially life-endangering offences that carry severe penalties, ranging from three years' imprisonment for affray to 10 years for rioting. It is right that the court should have the option to impose such a sentence on those convicted of such offences to protect the public from potentially dangerous offenders in cases in which it is necessary. For those reasons, I cannot accept the amendment.
The noble Lord, Lord Thomas of Gresford, and others asked about the cost and the position of the Parole Board. The Parole Board will no longer deal with release decisions relating to prisoners who are serving determinate sentences of 12 months or more— the non-dangerous offenders. It will deal only with dangerous offenders, which will, we hope, balance its workload. The courts already assess dangerousness under Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 and current extended sentences. It is right that those provisions should provide a helpful element of clarity, distinguishing offences that need greater attention from those that are less serious.
My noble friend Lady Kennedy of The Shaw 5 asked about the effect on prisons. The noble Lord, Lord Hylton, also referred to the Prison Service. It is right for me to share with the Committee the feelings of many working in the prisons about the changes that we are making. It is not just a matter of lengthening

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sentences. The Committee will know that prisons up and down our country are asked to do some things differently. Prison officers have told me, when I have had the advantage of meeting them, that they welcome the changes, including the increased use of risk assessment, from the moment at which the prisoner arrives in prison, and the increase in case management—we will continue with that—so that, once we have assessed the risks for the prisoner, we can assess the sort of things that we need to do with him. We now have a better case management and progression process with regard to discharge. We have the New Deal elements going in. People are considering the sorts of job that the prisoners can do and are planning their discharge in a better way. Jobcentre Plus is going into many of our prisons and making a difference. When I visited Bristol prison recently, I got from the prison officers a clear indication that they welcomed the emphasis that we put on trying to rehabilitate prisoners through drug treatment and the other things that are being done to mitigate the problems.
I say to my noble friend that, far from depressing prison officers, the things that the Government are doing seem to be cheering them up. We have got balance. In these provisions, we are trying to maintain a proper balance.
The noble and learned Lord, Lord Ackner, my noble friend Lady Kennedy of The Shaws and the noble Lord, Lord Hylton, talked about the ratcheting-up effect. The noble Lord, Lord Thomas of Gresford, may also have spoken about that. The upward effect on the prison population is balanced out by the automatic release provisions at the halfway point for other sentences of 12 months or more. The structure that we have put in place for rehabilitation, custody minus, custody plus and the intermediate sentences gives us a balanced portfolio.
The noble Lord, Lord Carlile of Berriew, made some points about Clause 216. Clause 216 applies to serious offences that carry a sentence of 10 years or more. Indeterminate sentences are available only for offences carrying sentences of more than 10 years, including life. The life sentence is available only for offences carrying life imprisonment. Clause 218, which relates to extended sentences, covers offences carrying sentences of two years or more but under 10 years. All the provisions are designed to deal with those who are or may become a danger to the public and need specific and special attention, if the public are to be kept safe. We think that we have got the balance right, and we do not believe that the provisions will lengthen trials, as some fear, or that they will have the overall impact of ratcheting up other sentences.
The Committee will know that murder and other serious offences tended to be in one category. The Sentencing Guidelines Council will have an important role in setting the boundaries for the other offences. The way in which the system is integrated will enhance the sense of security, give the courts a better grasp of the facts needed to come to an informed decision and enable us to discharge with a greater degree of
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certainty and security those who are not a serious threat to the public and do not create any concern about dangerousness. We will be able to monitor more effectively those who present such a danger.
I hope that, with that explanation, noble Lords will not pursue the amendments.
Lord Thomas of Gresford: The noble Baroness has been good enough to reply to many of the points that I made, but I would be glad to know whether the Government have made any assessment of the additional pressure that there will be on prison spaces. By how much is the prison population expected to rise? If that assessment has been made, will the noble Baroness say how much this will cost and where the money will come from? If it has not been done, why has it not been done?
Baroness Scotland of Asthal: As I have said on several occasions, the provisions cannot be considered in isolation. They must be set against the other provisions that will relieve some of the pressure on the prisons. In my answer, I mentioned charging with conditions, custody minus—the new enhanced form of suspended sentence, along with other conditions— custody plus and intermediate sentences. All those measures should have a direct effect on what we seek to do.
Contrary to the noble Lord's fear and to what my noble friend Lady Kennedy said about rehabilitation, Members of the Committee will know that the whole thrust of what we have done is to make it clear that every intervention with any individual who comes into contact with the criminal justice system has a meaning. From the moment a person first offends or first appears before the criminal justice service, he or she will have an intervention which will include an opportunity for rehabilitation, restoration and restitution. It is to be hoped that then there will be a situation in which only those who absolutely need to be in prison because of safety and security reasons are there.
All those factors have been taken into account. The Government have made an assessment. We appreciate that additional resources will be needed in relation to probation and that we will have to fashion things differently. I have also made it clear on a number of occasions that we accept the provisions will be staggered over a period of time in order to ensure that they work well. In the Bill, we are seeking to provide the framework which will apply. We will be able therefore to do that which we all aspire to do; namely, to have those who can be rehabilitated rehabilitated, and to have those who need a significant period in custody to come to a realisation of the seriousness of their offences to have an opportunity to do that. Subsequently, if and when offenders are released, they will have a programme that will enable them to make the best use of their release and rehabilitation back

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into the community. It is to be hoped that they will not reoffend and cause further difficulty, pain and anguish to members of the public.
Lord Campbell of Alloway: Is the noble Baroness aware that, in error, she failed to answer the crucial question posed by the noble Lord, Lord Thomas of Gresford, which goes to the heart of the question of the prison population. I do not need to repeat it; I took the point with others. Has there been that assessment? Has there or has there not? That is one question. If there has not, why not? That is the other question. It is crucial to a determination of the matter which concerns so many of us who have spoken today.
Baroness Scotland of Asthal: I apologise to the noble Lord, Lord Campbell of Alloway, if he considers that I have not answered the question. In fact, I have answered the question now on three occasions. We have made assessments. We have taken into account all those matters. We believe that these provisions are deliverable within the context of the assessments that we have made.
Lord Carlisle of Bucklow: The noble Baroness has been very kind in dealing at length in answer to the question that I asked her about the clause. Is she saying that, under Clause 218, if a person is convicted before the magistrates' court of assault occasioning actual bodily harm—which she will know can cover a broad range of offences, however low in the order of assault occasioning bodily harm it is—and if it is thought that there is the possibility of a further offence being committed, the court must make an extended sentence order? Is that the position?
Baroness Scotland of Asthal: The emphasis is not "must" make an extended sentence order. The court has a discretion to consider the level of dangerousness presented by the offender and it must make that assessment. It does not mean that the court must impose an extended sentence on the offender, but it must consider the issue of dangerousness.
Lord Dholakia: I thank the Minister for her reply. As I said earlier, these are probing amendments. Certainly, we shall study in greater detail what she said, consider the implications and perhaps come back on this matter on Report. I thank Members of the Committee who have spoken about the impact of such policies on prisons. This morning a number of Members of the Committee were at the preview of a Channel 4 production on the impact of long and life sentences on people. We are faced with a desperate situation, which must weigh heavily when one looks at the provisions that the Government are making in this clause.
Despite what the Minister said, the situation does not sound very promising. Despite all the positive initiatives that she has spoken about, the prison
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population is still unacceptably high at 72,000 plus. As one very senior prison officer said to me this morning:
"If only we could control the prison population".
In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 195AB not moved.]
Clause 215 agreed to.
Schedule 12 [Specified offences for purposes of Chapter 5 of Part 12]:
[Amendments Nos. 195AC and 195AD not moved.]
Schedule 12 agreed to.
Clause 216[Life sentence or imprisonment for public protection for serious offences]:
The Deputy Chairman of Committees (Lord Geddes):
Before calling Amendment No. 195B, I should advise the Committee that if it is agreed to I cannot call Amendment No. 195C due to pre-emption.
Baroness Anelay of St Johnsmoved Amendment No. 195B:
Page 127, line 7, leave out from "a" to end of line 9 and insert "substantial risk of his committing further specified offences involving a significant risk of serious harm to members of the public"
The noble Baroness said: In moving Amendment No. 195B, I shall speak also to Amendments Nos. 195C to 195H and Amendments Nos. 196 and 197. Amendment No. 195B is also supported by the noble Lords, Lord Dholakia and Lord Thomas of Gresford, Amendment No. 196 is supported by the noble Lord, Lord Dholakia, and Amendment No. 197 is supported by the noble Baroness, Lady Walmsley.
The purpose of the amendments in this group is to develop in detail the arguments of principle which have so clearly been put during debate on the previous group. Perhaps I may remind Members of the Committee that throughout this part of the Bill, I have agreed to an unusually large grouping of amendments in order to assist the Government with their business on the Bill. We have reached yet another highly contentious part of the Bill, as evidenced by our debate. I undertake that where I do not have to speak because all has been said, I shall try to restrain myself, which is why I did so in the previous group of amendments.
Much of the underlying principle has been laid out well. I note that if Members of the Committee continue to feel as strongly on other groups of amendments, in order that we complete Part 12, we will be here at 7 a.m. That is not to curtail discussion. It is merely to give an example—I notice that the Government Chief Whip is on the Front Bench—that there is insufficient time for this part of the Bill on the Floor of the House.
All my amendments relate to Chapter 5, which contains the sentencing framework for dangerous offenders. Amendment No. 195B is identical to an amendment tabled in another place by my honourable friend. It relates to the precise wording of the definition by which the possibilities of a life sentence or the new sentence of imprisonment for public

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protection are to be triggered. Before imposing such a sentence, Clause 216 states that the court must first be of the opinion that,
"there is a significant risk to members of the public of serious harm".
as a result of the offender committing further specified offences.
The way in which the court is to make that assessment is set out in Clause 220, to which reference was made briefly in the previous debate. In another place, there was some discussion about the wording of the provision and whether it provides a clear and precise enough definition of the threshold. The then Minister, Mr Hilary Benn, stated that there was,
"not a big difference for the purposes of interpretation".— [Official Report, Commons Standing Committee B, 11/2/03; col. 930.],
between the terms "significant" and "substantial".
I beg to disagree. In its helpful briefing, Justice stated:
"… the term 'significant'… is not sufficiently precise in view of the grave consequences of a finding. What approximate level of probability, on a scale from 1 to 100 is 'significant'? It would be preferable, and more closely in tune with human rights law, if the term were 'substantial'".
I agree. That also reflects the position taken by some of the other interested organisations which have briefed Members of the Committee. I am sure that the last thing the Home Secretary would wish for is that the courts declared the legislation incompatible under the Human Rights Act 1998. Do the Government believe that the test set out in the Bill is both appropriate and Convention-compliant? What consideration have they given to this matter over the past eight months since it was raised in another place?
Amendment No. 195C relates to the phrase, "members of the public". The threshold for a life sentence or indefinite detention for public protection is crossed if "members of the public" might be exposed to harm from the offender. My amendment suggests a different form of words,
"any person or class of person".
I have tabled this simply because, when I first read through the Bill, I felt that the phrase "members of the public" is potentially too vague a test.
Let us consider the following situation. A person is convicted of attempting to murder their spouse, with a history of domestic violence against that spouse and a previous spouse, but with no previous relevant convictions. Clause 220(2) would apply and there would be no presumption that such a person posed a risk to the public. Indeed, the court would not be obliged to take into account the history of domestic violence, which is a matter pertinent to Amendment No. 195H. Could the court conclude, when applying the test set out in the Bill, that such a person poses a risk to members of the public? Is that the Government's intention here? As I have said, could they be a risk to the public because the two people to whom they have been violent are both members of the public? How far does the definition go?
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Amendments Nos. 195D and 195E probe the extent to which the Bill will alter the existing arrangements for repeat serious sexual and violent offenders. I am sure that the Minister and her Bill team were not in the least surprised to see this amendment. The previous arrangements were set out by both Houses in the Crime (Sentences) Act 1997 and consolidated into Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. That is, of course, the "two strikes and you're out" life sentence for a second, serious offence such as manslaughter, rape or armed robbery. That provision is to be repealed by this Bill. I would be grateful if the Minister could clarify the position in relation to offenders who would have received a life sentence under that provision. Will such offenders still receive life sentences or the new sentence of imprisonment for public protection purposes under the provisions set out in this Bill?
As I read it, it would be possible for an offender convicted of two serious armed robberies, to whom a presumption in Clause 220(3) would therefore apply, then to contend that it is unreasonable for the court to consider that offender as posing a risk of serious harm to members of the public generally and therefore he or she should not receive a life sentence or a public protection sentence. What would happen in such a case?
Amendments Nos. 195F and 195G raise similar issues, the first in relation to over 18 year-olds and the second to those aged under 18. Those convicted of what the Bill terms "specified offences" other than "serious offences" will not be eligible to receive life imprisonment or public protection penalties. To that end, Clauses 218 and 219 provide for the imposition of extended licence periods on such offenders where it is necessary for public protection. These offenders could not be convicted of specified offences such as Section 20 wounding, violent disorder or possessing indecent photographs of children.
Subsection (4) of both the relevant clauses specifies that the period of a licence extension is limited to five years for violent offences and eight years for sexual offences. The maximum period for violent offences remains the same as set out in existing legislation and the noble Baroness further explained in her response to my noble friend Lord Carlisle of Bucklow the implications of that; they need not be repeated.
My amendments have been tabled to ask the Government whether these restrictions are necessary. Why not simply allow the courts to impose an extended licence period up to the maximum sentence for the offence, which is what subsection (5) in both clauses provides for, and leave it at that? What are the reasons for imposing further restrictions on the court's powers?
Finally—this is a large group of amendments and we have only one other mega-group of amendments to deal with—Amendments Nos. 195H and 196, by changing "may" to "must", would oblige the courts to take into account patterns of offending behaviour and information about the offender when considering whether those who commit specified offences, but

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have no previous convictions or are aged under 18, cross the dangerousness threshold. The Bill specifies that the circumstances of the offence must be taken into account, but that the court will then have discretion on the other two elements to which I have referred. Are these also not highly relevant, in particular in the case of juvenile offenders? Why do the Government use "may" rather than "must" here?
I should point out that Amendments Nos. 196 and 197 were specifically tabled in response to a request and briefing from the Children's Society. Amendment No. 197 concerns the treatment of juvenile offenders who have been convicted of one of the offences specified for the purposes of Chapter 5. I shall welcome the Government's views on all these matters. We have not been able to hold before today the meeting proposed by the Government on the treatment of children throughout the Bill, so these amendments are essentially probing in nature, although the rest are not necessarily so. With regard to issues surrounding children, however, of course I am not in a position to proceed further today. We must not only hear from the Minister, but also take the opportunity, together with other noble Lords, to meet the Government. I beg to move.
4.15 p.m.
Lord Renton: While supporting the amendments of my noble friend Lady Anelay, so far as they go, I feel bound to point out to noble Lords that Chapter 5, dealing with so-called "dangerous offenders", breaks new ground in our system of justice. Up to the present and for hundreds of years, imprisonment has been imposed for offences already committed. Of course, when an offender has committed one offence, there is always the risk that he will commit another. However, sentences have always been regarded as providing protection to the public in respect of an offence already committed because it is the hopeful assumption that, if the sentence is severe and realistic enough, no further offence will be committed.
In Chapter 5, and especially in Clause 216, we find that imprisonment is to be imposed not only for offences already committed, but also because of the risk of another offence which may never be committed. That could lead to imprisonment for life for a person aged 18 years or over. It may be that I am not imaginative enough, but looking at this as a matter of principle and in the light of the long experience of our courts, it is something that we should be very reluctant to bring about by legislation.
As I said at the beginning of my remarks, to an extent, the amendments proposed by my noble friend bring a little sense and justice into this matter, and for that reason I support them. But I ask noble Lords to consider this matter still further, in particular since in a later clause we find that people who have not yet reached the age of 18 can be dealt with in a somewhat similar manner. We must be careful.
Lord Carlile of Berriew: I, too, support these amendments on the grounds that almost anything that mitigates the rigour of these clauses is to be welcomed.
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When she responds, will the Minister explain to the Committee why the Government no longer trust the judges9 When they came into office, I was foolish enough to hope that the new Government would give the judges the tools the) needed to have a full range of sentences available, and then trust them to pass appropriate sentences subject to the normal appellate procedures. The Committee will know that where a serious offence is committed and the judge passes a seriously inadequate sentence, an appeal is available to the Crown. The number of Attorney-General references to the Court of Appeal has increased exponentially as the years have gone by and in 2002 there were in excess of 100 relating to sentences which the Crown Prosecution Service considered inadequate.
The Government have taken the opportunity to increase maximum sentences—there are many offences for which the maxima have been increased— but there is very little evidence indeed that judges have passed inadequate sentences Many of the references made to the Court of Appeal have resulted in it rejecting the prosecution's appeal against the sentence passed by the judge.
These clauses refer to offences for which judges have considerable powers of imprisonment. Clause 215(2) defines a "serious offence" as one punishable by imprisonment for life or imprisonment in excess of 10 years Why is it not enough for the judge to exercise his discretion within those maxima?
I am not exaggerating when I say that much of sentencing law is becoming a macabre parlour game which judges are required to play when trying to thread their way through sentencing provisions which remove their discretion. If one takes the example of violent robbery, how is a judge, applying the provisions of Clause 216 with intellectual rigour, to conclude that because a person has committed a violent robbery once there is not a significant risk of that person committing a violent robbery in the future? This is not three and out or two and out; it has the potential of being one and out.
I regret to say that these provisions have all the hallmarks of Kafka by the rules of cricket. I urge the Government to return to a system which is good enough to give the judges the equipment they need when sentencing but does not impose unrealistic obligations on them which will result in the Court of Appeal Criminal Division trying to weave its way through these provisions to do substantial justice, and Ministers once again attacking the judges, not on their merits but on the basis that bad laws have been introduced.
Lord Waddington: I doubt whether these clauses break new ground in the way suggested by my noble friend Lord Renton. In the old days judges could pass a sentence of preventive detention. What happened then was that the very fact that a person had committed a number of offences meant there was a risk of him committing further offences, and therefore the judges were entitled to pass a sentence of preventive detention. So to that extent these clauses are better than that old law because at least some assessment of

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risk has to be made. An assumption is not made that there must be a risk simply because there have been a number of previous offences.
I agree entirely with my noble friend that "substantial risk" is a much better form of words than "significant risk". "Significant" means anything that is not insignificant. "Substantial" means "great". I believe that there should be a great risk rather than a risk which is not insignificant.
Baroness Scotland of Asthal: It may be necessary for me to say a word or two about the history. I have listened to what was said by the noble Lord, Lord Renton, and I feel that there may not be a proper understanding of the root from which these provisions have sprung.
The Committee will know that a disparate set of provisions for the sentencing of dangerous offenders has been added to the statute book over a period of years. There are provisions for extended supervision periods for sexual and violent offenders and, where public protection issues are apparent, the court may impose longer than commensurate custodial sentences for offences that would otherwise not warrant them. That is the structure that we have now, which can be found in various Acts.
The creation of a new sentence specifically designed for offenders who have been assessed as dangerous by the courts was a recommendation of the Halliday report. The report identified a lack of disposal for offenders who had committed offences which do not carry life but who, nevertheless, have a high risk of committing a further offence that would cause serious harm to the public. Consultation on the Halliday report found strong support from the police and probation services for new sentences specifically designed for dangerous offenders. They welcomed a sentence which would limit the premature release of dangerous offenders.
So, in answer to the concern raised by the noble Lord, Lord Renton, and others—the noble Lord, Lord Waddington, is right to remind the Committee that the previous position was somewhat more complex—that is the root of what we are trying to achieve under Clause 216. We are trying to make sense of that which went before and to produce coherence in the way in which it is applied.
I hear what the noble Lord, Lord Carlile, says. Time and time again I have heard the refrain, "Why do we no longer trust the judges?" I cannot recall how many times I have said this but I am very happy to say it again: we do trust our judges. They are deserving of our admiration and our support. The judges in this country are among the very best in the world and I give no quarter to anyone who says differently. We are right to be proud of them.
On each and every amendment dealing with issues on which noble Lords want to be more restrictive—I know that the noble Lord, Lord Carlile, has been with
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us in part but not on each and every occasion and so has not had the benefit of listening to me say this over and over again, which I am happy to do—
Baroness Anelay of St Johns: Perhaps the Minister would indicate whether she is referring to the noble Lord, Lord Carlile of Berriew, or to my noble friend Lord Carlisle of Bucklow.
Baroness Scotland of Asthal: I am referring to the noble Lord on the Liberal Democrat Benches. I tend to get confused as to which noble Lord is "Bucklow" and which one is not. Perhaps I should say that the noble Lord, Lord Carlile, who sits comfortably on the Liberal Democrat Benches, is not always with us and the noble Lord, Lord Carlisle, who sits on the Tory Benches, is almost never without us. We very much rejoice at his presence in all our deliberations.
So that is the history. In this case, it is quite clear that, once again, we will be totally dependent on our judges to exercise their discretion in determining, in accordance with the structure, whether or not a defendant is dangerous. The Bill sets the framework. What we ask our judges to do—and they do it splendidly—is to exercise that discretion so that justice can be done. I hear what the noble Lord says about Kafka. I am sure that he enjoys the rhetoric, but that is far from the reality.
Let me now turn to the amendments and deal with the points raised by the noble Baroness, Lady Anelay. I say straightaway that the Bill is compliant. The Government are content that its provisions comply with all propriety to the ECHR.
Amendment No. 195B seeks to alter the threshold of dangerousness which must be met in order for a life sentence of imprisonment for public protection to be passed by the courts. The alternative test proposed by Amendment No. 195B would require the court to focus upon the risk of the offender committing a further specified offence involving a risk of serious harm to the public. As my right honourable friend in another place said, there cannot be a possibility of significant risk to the public if there is no risk of a further offence being committed. However, this does not mean that the risk of reoffending should become the basis of the assessment of dangerousness, as is proposed by Amendment No. 195B. Rather, the central element of the test of dangerousness should be the risk to the public of serious harm through the commission of a further offence.
The whole purpose of the test is to establish whether an offender is dangerous or no. In making such a judgment, the court must focus primarily on the degree of risk of harm that any future offending may pose as opposed to the risk of reoffending itself.
Amendment No. 195GA also attempts to alter the threshold for the test of dangerousness. This amendment would raise the threshold by requiring the courts to establish that the risk to members of the public of serious harm occasioned by the commission by the offender of further offences was a substantial risk rather than a significant risk. We think that

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"significant" is the proper test. The court will then be put on inquiry whether it is satisfied about the dangerousness. It can exercise its discretion and make that judgment. It is the assessment of the risk and the risk to the public that we are trying to direct attention to.
4.30 p.m.
Lord Waddington: What does significant mean? Am I not right that significant means "not insignificant"? It is a very small test to pass.
Baroness Scotland of Asthal: We do not think it is a small test, we think it is an appropriate test. I appreciate that noble Lords opposite are saying that they wish to set a very high threshold by saying that the risk should be substantial. If there is a significant risk to the public, we think that that gives rise to the court addressing the risk and determining whether it is appropriate or proper in a particular case for these extended or different provisions to prevail. It does not oblige the court to do so; it just raises the issue that it has to consider.
Baroness Kennedy of The Shaws: May I point out to my noble friend the Minister the irony of a former Home Secretary, who was no pussycat, let me tell you, when it came to law and order, and was known to be tough on crime—I say that respectfully about the noble Lord, Lord Waddington—putting his restraining hand on the shoulder of a Labour Government?
Baroness Scotland of Asthal: I thank my noble friend for pointing that piece of history out to me—it would obviously have escaped me had she not done so.
Lord Alexander of Weedon: If I apologise to the Minister, perhaps I may make a rather more prosaic point than the eloquent one just made. My memory is that in the days when we were allowed to use Latin in court, it was said that anything was significant which was more than de minimis. Does the Minister subscribe to that view?
Baroness Scotland of Asthal: I think we could bandy words on that, too. I think "significant" means important. "Significant" is certainly different from "substantial". I have already said that I accept that by substituting "substantial" for "significant", noble Lords are seeking to raise the threshold to a higher level. I have sought to say that if there is a significant risk of harm, that puts the court on inquiry to exercise its discretion. The decision made by this Government is that that is the appropriate test and it is the appropriate entry into the consideration. There is clearly a difference between what noble Lords opposite would like and what the Government propose.
Lord Thomas of Gresford: With respect to the Minister, she says there is a great difference, but we do not understand where the Government stand. She has
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used the words "the degree of risk". She was invited by the noble Baroness, Lady Anelay, to give on a scale of 1 to 100 what she regarded as significant What is it— 10, 20, 30? What degree of risk, to use the Minister's own words, is she referring to?
Baroness Scotland of Asthal: I have been harried on a number of occasions about trusting the judges. A significant risk is one which is significant. It will be a matter for the judge to determine when considering that risk whether it is present or not.
As I have said for the fourth, if not the fifth, time: there is a difference between "substantial" and "significant". I have accpted that "substantial" is greater than "significant". We think that if there is an important issue— if there is an important risk, a significant risk—that should put the court on inquiry to consider whether this person should properly be described, according to the criteria, as "dangerous". That is the difference between the way in which the Government put it and the way in which other Members of this House have put it.
It is invidious to use a scale from 1 to 10. What if I say "significant" is at 6 and substantial at 9, while other people say "significant" is at 5 and "substantial" at 7? There is no point in bandying words in that way. It is a bit like an elephant —it is difficult to describe but you know one when it is charging at you. I do not think that the courts will have any difficulty in making those definitions.
Lord Carlisle of Bucklow: Would the Minister agree that it is important for the following reason? These are offences for which, in any event, the court can, if it wishes and thinks proper, pass a sentence of life imprisonment. If it finds that there is a significant risk, the Bill goes on to say that it "must" pass a sentence of life imprisonment. Surely, therefore, if you have the difference between the discretion of a judge in deciding whether life imprisonment is right and the requirement that the court "must" impose lite imprisonment, the test that should be passed must be a substantial one rather than merely significant.
Baroness Scotland of Asthal: The noble Lord is right to point out the importance of this. If the court is satisfied that there is a significant risk that the individual will go on and commit offences causing serious harm to the public, I hope that noble Lords will agree with me that that is a very important decision for the court to take. It would have to be satisfied on evidence that that risk really was significant. Only if it was so satisfied would the court then deal with that matter.
Noble Lords will know as well as I do how jealously our judges properly look at these issues in order to be just and to be fair. Nothing in these provisions would inhibit the court from so doing. We think that it would be an appropriate course to take. When we consider the interests of the public protection, it is right for an offender who has committed a sexual or violent criminal offence and poses a significant risk to members of the public of serious harm to be deemed by

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the court to be dangerous. We do not wish to place the public in a position of greater risk from potentially dangerous offenders by raising this threshold unnecessarily.
Amendment No. 195C suggests a minor drafting change to the definition of dangerousness for the purposes of passing the new sentence of public protection. The terminology in the test, as currently drafted, is consistent with the drafting throughout of Chapter 12. We believe that "members of the public" is the appropriate phrase to use—it is better and easily understood. We do not think it would cause unnecessary difficulty.
Amendment No. 195D seeks to retain a reference to provisions in the Powers of Criminal Courts (Sentencing) Act 2000 for a life sentence to be passed where a second serious offence has been committed. Amendment No. 195E makes a small drafting change in conjunction with Amendment No. 195D. The life sentence provisions referred to at Section 109 of the Powers of Criminal Courts (Sentencing) Act are repealed by the Bill, but the principles behind them are incorporated into, and extended by, the automatic assumption of dangerousness in Clause 220(3).
Under the new provisions, any offender who has been convicted of a second sexual or violent trigger offence in Schedule 12 will be assumed to be dangerous by the court unless, on the basis of all the evidence before it, the court considers the assumption to be unreasonable. Where an automatic assumption of dangerousness is made, the offender must be sentenced to either the extended sentence or the sentence for public protection. Release from both of these sentences is dependent upon thorough risk assessments, and offenders may be detained for as long as they pose a risk of harm to the public.
Therefore Amendments Nos. 195D and 195E should be rejected because the automatic assumption of dangerousness provisions provide a higher level of public protection than the automatic life sentence provisions, as they apply to a far greater range of sexual and violent offences. Those amendments would also be unhelpful in retaining a reference and preserving the effect of a repealed provision.
Amendments Nos. 195F and 195G would remove the maximum time limits for periods of extended supervision that may be added to the new extended sentences for dangerous offences. The amendments cannot be accepted because they would provide for indeterminate extended supervision periods that could have no practical effect due to the legal principle that no sentence may exceed the maximum penalty of the offence for which it is being imposed. The extended sentence is available, in the case of adults, only for offences carrying a maximum penalty of less than 10 years. Therefore the maximum extended supervision period that may be added must be less than 10 years, illustrating the impracticality of Amendment No. 195F. However, I know that the noble Baroness, Lady Anelay, is simply putting those skittles up to understand how the Government will deal with and dispose of them.
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Similarly, although the extended sentence for dangerous juvenile offenders may be passed for offences carrying higher penalties, the length of the maximum extension period must be specified in order to provide legal clarity. Therefore, I hope that the noble Baroness will understand why it is impossible for us to accept Amendment No. 195G.
Amendments Nos. 196,195Hand 197 would require the courts to take into account additional information about the offender, the pattern of behaviour of which the offence forms a part and the offender's welfare and rehabilitation needs when undertaking the assessment of dangerousness. While the Government are wholly committed to upholding the welfare of children, that must be balanced against the need to protect the public. The objective of the dangerousness assessment is to establish whether the offender poses a significant risk of serious harm to the public. In order to determine whether the risk is present, the court is required to take into account all the information about the nature and circumstances of the offence. It may also take into account additional information about the pattern of behaviour of which the offence forms a part, and the offenders themselves.
Requiring the court to take into account all additional information concerning the pattern of behaviour of which the offence forms a part and the offenders, including their welfare and rehabilitation needs, as is suggested by Amendments Nos. 196, 195H and 197, would detract from the purpose of the dangerousness assessment. The additional information may not be relevant for the purposes of assessing risk, and its inclusion could undermine the relevance of any significant risks posed, thus potentially jeopardising the safety of the public.
We believe that Amendment No. 197 is unnecessary, too, because there is already provision in the Children and Young Persons Act 1933 which requires courts to have regard to the welfare of juveniles when sentencing them. That is there, and nothing that we say here will detract from that.
We have tailored sentences to meet the requirements for juveniles. The court will not be obliged to pass an indeterminate sentence for a serious offence, but will have the option of an extended sentence. That comment relates to the whole piece—it does not compel but requires courts to consider and make assessments and to exercise judicial judgment whether any or all of those terms are met.
4.45 p.m.
Lord Ackner: Will the Minister help me? This is a genuine cri de coeur, because I find that my recollections become daily more atrophied. However, the noble Lord, Lord Carlisle of Bucklow, may be able to help me.
Some 25 years ago, was there not a departmental committee set up by the Home Office and presided over by the noble Lord, Lord Carlisle of Bucklow? I know that I was unofficially asked to go on it, but the Lord Chief Justice in his wisdom put someone else there instead. The committee produced something

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called a "reviewable" sentence, which meant that, when there was a suspicion about the balance of the person and that he might commit further offences, a determinate sentence was passed as was appropriate, but it was made reviewable every two or three years, and the decision was made by a committee.
My recollection is a little clearer as regards an inquiry that took place five, six or seven years ago, under a silk on my circuit called Peter Fallon QC, into a case in which someone who was let out at the end of a determinate sentence killed again. My recollection is that Peter Fallon QC made a recommendation similar to the need for a reviewable sentence of the kind that emanated from the Home Office some 25 years ago but which has been totally neglected. Had that option been considered by the Home Secretary or the Home Office, it might have solved many of the difficulties that have arisen.
Lord Carlisle of Bucklow: The noble and learned Lord, Lord Ackner, is partly right and partly wrong. I did chair a committee that reviewed the parole system. He is right in believing that he was not a member of it and that the Lord Chief Justice named the judge who was a member. We were limited to considering parole, however, and what we recommended was what has been the position since—that all those sentenced for up to four years should be released automatically at the halfway stage. Those people would be under supervision for the rest of their sentence to the two-thirds point, in the normal way. They would be liable to be returned to prison if, at any time during the whole period of the original sentence, they committed any other offence. Beyond the four-year point, we recommended that they should be reviewed regularly by parole. We did not suggest a two-year review as such.
Lord Ackner: I do not want to fall out with my noble friend, but I am referring to something that occurred well before that. The person who sat was David Croome Johnson. I may have been wrong about the chairmanship, but the committee produced a reviewable sentence. I am quite clear that Peter Fallon QC adopted something similar. I wondered whether that option had been given any thought, as it is obviously a potential solution to the type of problem that we are discussing.
Lord Dholakia: Before the Minister answers that question, does she consider that the sentences proposed under this clause represent a massive leap in the restriction of children's liberty and introduce a mandatory element for a wider range of offences? It is hard to see how these new sentences meet the UK's obligation under the United Nations Convention on the Rights of the Child. Is the Minister aware that the UNHCR expressed concern about the increasing use of custody for children, especially young children, and their treatment in captivity?
Baroness Scotland of Asthal: I say to the noble and learned Lord, Lord Ackner, that I have certainly seen no evidence of atrophy although 1 confess that daily I see evidence of my own.
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I cannot tell the noble and learned Lord whether the particular report to which he referred has been taken into account. I certainly undertake to ascertain whether it has. The Committee will know that the Halliday report took into account all that had gone before, reviewed the known position and the research and made recommendations on that basis. Therefore, I would be surprised if those reports did not form part of the considerations and deliberations that Halliday entered into. That is why I said in answering the earlier group of amendments—but it is equally important as regards this group—that the whole purpose of this clause was founded on the recommendations of the Halliday report. It identified a specific lacuna in terms of dangerousness; namely, that there are those who should properly be dealt with for the offence for which they come before the court but who constitute an element of dangerousness to the public which needs to be taken into account before they can be safely discharged into the community. We suggest that the new sentence seems to achieve that relatively well.
Lord Ackner: Fading memory is beginning to clear slightly. The committee was under the chairmanship of Lord Butler, the then Home Secretary, I think. I should have thought that my noble friend Lord Renton might remember that but it certainly existed and I shall provide the Minister with something about it directly.
Lord Renton: Before we depart from this group of amendments, will the noble Baroness look at those parts of Clause 216—we find the same problem arising later—where the court, instead of being given a discretion, must impose a sentence of imprisonment for life? No discretion is given to the court even though the offender may be only just 18 years old. Will the noble Baroness give an undertaking to reconsider that imposition upon the court when quite honestly she knows, as we all know, that no two cases are the same? The circumstances vary enormously. The amount of guilt varies enormously. The prospect of future commission of offences varies enormously. To leave the court without a discretion—which the courts have always had for serious matters—is not the way that we should legislate.
Baroness Scotland of Asthal: Before I answer the noble Lord, Lord Renton, I wish to respond to the point made by the noble Lord, Lord Dholakia, about restricting children's liberty and our duties under the UNCRC and the recommendations that are made. We have taken those issues very much into account. The Committee will know that, thankfully, the provisions will refer to very few juveniles. We have tried to establish the right balance. The noble Lord will have seen from our other provisions regarding children that we seek to draw a distinction between the way in which we treat juveniles as opposed to adults. We have tapered the provisions so that the court will have an opportunity to consider the rare cases—mercifully,

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they are rare cases—where children of a relatively young age are found guilty of the kind of offences that we are discussing. We believe that we have sufficient safeguards in place.
I turn to the question of the noble Lord, Lord Renton. When looking at the provisions of Clause 216, it is important to remind ourselves what subsection (2) actually provides. A number of things have to be established. Subsection (2) states:
"if—
(a) the offence is one in respect of which the offender would apart
from this section be liable to imprisonment for life—
that is the first criterion— "and
(b) the court considers that the seriousness of the offence, or of the
offence and one or more offences associated with it, is such as to
justify the imposition of a sentence of imprisonment for life".
Those are significant, or rather substantial, hurdles over which one must leap before the court, being so satisfied, then must impose a sentence of imprisonment. Under Clause 216(2), the court has to exercise its discretion in relation to (2)(a), then in relation to (2)(b). Only if the court is satisfied that (a) and (b)—it is not a case of "or" but "and"—are satisfied must it then impose the imprisonment. If the court finds that (a) and/or (b) are not so satisfied, it has the opportunity not to impose life imprisonment. Then, of course, all the other ways of dealing with the offender are open to the court. We believe that the provision is clear and that it is a perfectly sound way of dealing with the matter.
Baroness Anelay of St Johns: I am grateful to the Minister for her careful response to a whole host of questions on this large group of amendments. I address the skittles point first—I refer to the elegant term that the noble Baroness used to describe my amendments. Some of them were indeed skittles but not all. I thank the noble Baroness for her response on Amendment No. 195C. I accept her assurances with regard to it and I shall not return to it on Report. I shall consider her responses to Amendments Nos. 195D to 197, particularly, as I signalled earlier, those responses that concern children. I shall, of course, report back to the Children's Society and take a sounding on its response to the noble Baroness's comments.
I thank all those who supported these amendments. We are trying to introduce the word "substantial" and make it clear. The Minister took the noble Lord, Lord Carlile of Berriew, to task for his rhetoric. My experience of his rhetoric so far on this Bill is that it tends to illuminate the reality of the world in court. I am grateful to him for that rhetoric.
On Amendment No. 195B I believe that there is a disagreement between us on the appropriateness of the drafting. I am convinced that Justice is right and that the correct word is "substantial" not "significant". I can have no better proof of that than to be supported on the matter by my noble friend Lord Waddington. With him behind me on the matter, I know that I am
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not being soft on crime. I wish to seek the opinion of the Committee.
4.58 pm.
On Question, Whether the said amendment (No. 195B) shall be agreed to?
Their Lordships divided Contents, 137, Not-Contents, 120.

Division No. 1

CONTENTS

Ackner, L.

Hunt of Wirral, L.

Addington, L.

Jenkin of Roding, L.

Anelay of St Johns, B.

Jopkng, L

Arran, E.

Kennedy of The Shaws. B.

Ashcroft, L

Kimball.L.

Astor, V.

King of Bndgwater, L.

Attlee, E.

Knight of Collingtree, B.

Avebury, L.

Lamont of Lerwick, L.

Barker, B.

Lang of Monkton, L.

Beaumont of Whitley, L.

Linklater of Butterstone, B.

Biffen, L.

Liverpool, E.

Bowness, L.

Livsey of Talgarth, L.

Bradshaw, L.

Lucas, L

Bndgeman, V.

Lyell, L.

Brooke of Sutton Mandeville, L.

McColl of Dulwich, L.

Brougham and Vaux, L.

Mackie of Benshie, L.

Bumham, L.

Maclennan of Rogart, L.

Byford, B.

Maddock B.

Caithness, E.

Mancroft, L.

Campbell of Alloway, L.

Mar and Kellie, E.

Carhle of Bernew, L.

Marlesford, L.

Carlisle of Bucklow, L.

Masham of IIton, B.

Carnegy of Lour, B.

Methuen, L.

Cavendish of Furness, L.

Miller of Hendon, B.

Clement- Jones, L.

Monson, L.

Colville of Culross, V.

Montrose, D.

Colwyn, L.

Mowbray and Stourton, L.

Cope of Berkeley, L. [Tellei]

Moynihan, L.

Craig of Radley, L.

Naseby, L.

Craigavon, V.

Newby, L.

Crickhowell, L.

Northesk, E.

Cumberlege, B.

Northover, B.

Denham, L.

O'Cathain, B.

Dholakia, L.

Palmer L.

Dixon-Srruth, L.

Park of Monmouth, B.

Eden of Winton, L.

Patten, L.

Elliott of Morpeth, L.

Pearson of Rannoch, L.

Elton, L.

Phillips of Sudbury, L.

Flather, B.

Plumb, L.

Fookes, B.

Reay, L.

Fowler, L.

Redesdale, L.

Gardner of Parkes, B.

Renfrew of Kaimsthorn, L.

Garel-Jones, L.

Renton, L.

Geddes, L.

Rodgers of Quarry Bank, L.

Gilmour of Craigmillar, L.

Rotherwick, L.

Glentoran, L.

Russell-Johnston, L.

Gray of Contin, L.

Saltoun of Abernethy, Ly.

Greenway, L.

Scott of Needham Market, B.

Griffiths of Fforestfach, L.

Seccombe, B. [Teller]

Haskins, L.

Selborne, E.

Hayhoe, L.

Selsdon, L.

Henley, L.

Sharp of Guildford, B.

Higgins, L.

Sharpies, B.

Hodgson of Astley Abbotts, L.

Shaw of Northstead, L.

Hooper, B.

Sheppard of Didgemere, L.

Howe, E.

Shrewsbury, E.

HoweofAberavon, L.

Shutt of Greetland, L.

Howe of Idlicote, B.

Skelmersdale, L.

Howell of Guildford, L.

Smith of Clifton, L.

795

Soulsby of Swaffham Prior, L.

Trefgarne, L.

Stewartby, L.

Trumpington, B.

Strathclyde, L.

Ullswater, V.

Swinfen, L.

Waddington, L.

Taylor of Warwick, L.

Wakeham, L.

Thomas of Gresford, L.

Walmsley, B.

Thomas of Gwydir, L.

Weatherill, L.

Wilcox, B.

Thomas of Swynnerton, L.

Williams of Crosby, B.

Tordoff, L.

Williamson of Horton, L.

NOT-CONTENTS

Acton, L.

Islwyn, L.

Ahmed, L.

Jay of Paddington, B.

Allenby of Megiddo, V.

Jones, L.

Amos, B. (Lord President)

Judd, L.

Andrews, B.

King of West Bromwich, L.

Archer of Sandwell, L.

Kirkhill, L.

Ashton of Upholland, B.

Lea of Crondall, L.

Bach, L.

Lipsey, L.

Barnett, L.

Listowel, E.

Bassam of Brighton, L.

Lofthouse of Pontefract, L.

Berkeley. L.

Macdonald of Tradeston, L.

Bernstein of Craigweil, L.

McIntosh of Haringey, L.

Billingham. B.

McIntosh of Hudnall, B.

Blackstone, B.

MacKenzie of Culkein, L.

Borrie, L.

Mackenzie of Framwellgate, L.

Brennan, L.

Mar, C.

Brett, L.

Marsh, L.

Brooke of Alverthorpe, L.

Mason of Barnsley, L.

Brookman, L.

Massey of Darwen, B.

Campbell-Savours, L.

Merlyn-Rees, L.

Carter, L.

Morris of Manchester, L.

Christopher, L.

Murray of Epping Forest, L.

Clark of Windermere, L.

Newcastle, Bp.

Clarke of Hampstead, L.

Patel of Blackburn, L.

Clinton-Davis, L.

Pendry, L.

Cobbold, L.

Peston, L.

Cohen of Pimlico, B.

Pitkeathley, B.

Corbett of Castle Vale, L.

Plant of Highfield, L.

Crawley, B.

Ponsonby of Shulbrede, L.

Davies of Coity, L.

Prys-Davies, L.

Davies of Oldham, L.[Teller]

Puttnam, L.

Dean of Thornton-le-Fylde, B.

Radice, L.

Desai, L.

Ramsay of Cartvale, B.

Dixon. L.

Rea, L.

Donoughue, L.

Rendell of Babergh, B.

Dormand of Easington, L.

Richardson of Calow, B.

Dubs, L.

Scotland of Asthal, B.

Eatwell, L.

Sheldon, L.

Evans of Parkside, L.

Simon, V.

Evans of Temple Guiting, L.

Smith of Gilmorehill, B.

Farrington of Ribbleton, B.

Smith of Leigh, L.

Faulkner of Worcester, L.

Stone of Blackheath, L.

Filkin, L.

Strange, B.

Gale, B.

Symons of Vemham Dean, B.

Gibson of Market Rasen, B.

Taylor of Blackburn, L.

Golding, B.

Temple-Morris, L.

Goudie, B.

Tenby.V.

Gould of Potternewton, B.

Thornton, B.

Graham of Edmonton, L.

Tomlinson, L.

Grocott, L. [Teller]

Truro, Bp.

Harrison, L.

Turnberg, L.

Haskel, L.

Turner of Camden, B.

Hayman, B.

Warnock, B.

Hilton of Eggardon, B.

Warwick of Undercliffe, B.

Hollis of Heigham, B.

Whitaker, B.

Howarth of Breckland, B.

Whitty, L.

Howells of St. Davids, B.

Wilkins, B.

Howie of Troon, L.

Williams of Elvel. L.

Hughes of Woodside, L.

Wilson of Dinton, L.

Irvine of Lairg, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.9 p.m.
The Deputy Chairman of Committees: As previously explained to the Committee, now that Amendment No. 195B has been agreed to I am unable to call Amendment No. 195C due to pre-emption.
[Amendments Nos. 195C to 195E not moved.]
On Question, Whether Clause 216, as amended, shall stand part of the Bill?
Lord Monson: I want to touch on an aspect of the matter that, to the best of my knowledge, has not so far been discussed.
Like the noble Lord, Lord Renton, and a great many others as the previous Division testifies, I am uneasy about the clause. I am uneasy about subsections (3) and (4) in particular. As I interpret them as an admitted layman, they seem to provide that an individual who might be expected at present to spend, for example, four or five years in prison after remission could in the future spend 10 or 20 years there for exactly the same crime if he is deemed to be dangerous. I am sure that most of us feel unhappy about the idea of keeping people behind bars, no longer because of what they have done, but because of what they might just possibly do in the future. That is exactly what will happen if men—and it will almost always be men—are kept in prison after they have served a period of years that the trial judge, as matters stand, has deemed appropriate and adequate—I stress the word "adequate"—for the purpose of deterrence and retribution. In other words, they will no longer be fairly punished for the crime or crimes of which they have been convicted; they will henceforth be held in preventive detention.
The Government may well be right in their argument that de facto preventive detention is the lesser of two evils and that the clause is therefore necessary. The noble Baroness has, as usual, made her case for the clause extremely effectively. However, if individuals are to be detained in prison after their normal release date, for the purpose not of punishment but of prevention, is it not right that their detention should be made as comfortable as possible, consistent with security?
For obvious reasons, open prisons are a non-starter for that kind of individual, but within a necessarily secure prison, should not such detainees, as they might fairly be described, be entitled, for example, to superior accommodation, better food, more family visits, a chance to earn money at the market rate and so on? If so, should not such entitlements, contingent of course on good behaviour, be enshrined in statute rather than merely left to the discretion of prison governors, always assuming that the prison governors have the power to exercise such discretion, which may or may not be the case?
I apologise for bouncing the matter on the Minister, but she is extremely quick on her feet. I would therefore be grateful if she would indicate, without in any way committing either herself or the Government,

797
whether she agrees that there is force in my argument, in which case it may not be too late to take the matter forward on Report.
Lord Thomas of Gresford: I support the sentiments expressed by the noble Lord, Lord Monson. We on these Benches are unhappy with the provisions of Clause 216 because of the forensic exercise that has to be carried out. Reference is made to preventive detention as a familiar sentence from the past. We were used to dealing with that, but it was very much at the discretion of the judge to make such an order.
The provisions before us bring about the following: the advocate addresses the judge on the basis that he should not accept that there is a significant risk that the person in question will re-offend. The judge then comes to an opinion; he forms no more than an opinion. On the basis of that opinion, having heard argument on both sides, he comes to a conclusion. If that conclusion is adverse to the defendant, he must— there is no discretion—sentence him under Clause 216 to life imprisonment. The defendant receives life imprisonment not for what he has done, but for the judge's opinion of what he might do in the future. To us on these Benches, that is fundamentally wrong and we will address it further on Report.
5.15 p.m.
Baroness Scotland of Asthal: I am happy to explain Clause 216 further, because I appreciate that the noble Lord, Lord Monson, does not quite understand how the provisions come into play. I note that he was supported by the noble Lord, Lord Thomas of Gresford.
As I pointed out earlier, Clause 216 provides the new offence of imprisonment for public protection of sexual and violent offenders, aged 18 or over, who have been assessed to be dangerous. It is just those who are perceived as being dangerous who will be subject to the provisions.
Sexual and violent offenders who have been assessed as dangerous and who have committed "a serious offence" that carries a sentence of 10 years or more, as defined by Clause 215, must be sentenced either to imprisonment for public protection or to a discretionary life sentence. At the moment, all offenders other than those who have been sentenced to life imprisonment must be released after they have served two-thirds of their sentence, regardless of whether they continue to pose a serious risk to the public. There will be those who pose that risk, but they will be discharged.
The new sentence will ensure that such offenders cannot be released until their risk is considered manageable in the community. It therefore provides for indeterminate custody for that small group of offenders for whom a determinate sentence would not provide a sufficient guarantee of public safety. However, that must be seen in the context of everything that we are trying to achieve in prisons; that is, first, to address the nature of the underlying
798
offending behaviour and, secondly, to try and rehabilitate, if rehabilitation is possible, some of the more serious offenders through training, education and opportunities. I have mentioned that once an offender is in prison, there will be an assessment of the nature of his difficulties and the risks that he poses so that, while he is in prison, we can seek to address those problems.
I obviously take account of the concerns expressed by the noble Lord, which were echoed by the noble Lord, Lord Thomas of Gresford. He said that if such offenders are to stay in prison for a very long time we should look seriously at how they are accommodated and the kind of conditions that we make available to them. I reassure the noble Lord that we intend to make sure that all prisoners benefit from the risk assessment procedure. If we are able to roll it out, and we hope to be able to do so over a period of time, the Prison Service will have the kind of tools necessary to make the assessment which will help to bring about change, but which will also identify those people who may not be as amenable to change as we would like and who therefore continue to pose a risk to members of the public.
Noble Lords will know that, tragically, there have been occasions when people have been released from custody and have re-offended in a relatively short compass. We wish to reduce the number of cases in which that happens. The only way we can do that is by instituting appropriate risk assessments on behalf of all the criminal justice agencies to try to limit the prospect of that happening. I understand the concerns of the noble Lord, but we consider the provisions to be helpful.
Lord Monson: I am grateful to the noble Baroness for that explanation. I believe I understand entirely what the Government are trying to do and the noble Baroness has made a good case for it. I merely ask that those who are kept on in prison beyond the normal time at which they would expect to be released, for the purposes of prevention rather than punishment, should be kept in as comfortable conditions as possible consistent with security.
Baroness Scotland of Asthal: We share that aspiration and we intend to do all we can to make sure that each prisoner is appropriately housed, bearing in mind the risks that they pose and the needs that they may have.
Clause 216, as amended, agreed to.
Clause 217 agreed to.
Clause 218 [Extended sentence for certain violent or sexual offences: persons 18 or over]:
[Amendment No. 195F not moved.]
Clause 218 agreed to.
Clause 219 [Extended sentence for certain violent or sexual offences: persons under 18]:
[Amendment No. 195G not moved.]
Clause 219 agreed to.
Clause 220 [The assessment of dangerousness]:
[Amendments Nos. 195GA to 197B not moved.]
Clause 220 agreed to.
Schedule 13 [Scottish offences specified for the purposes of section 220(4)]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 198:
Page 255, line 21, leave out from "Act" to end of line 22 and insert "(detention of woman in brothel or other premises)"
The noble Baroness said: In moving Amendment No. 198, I shall speak also to Amendments Nos. 199 and 200. All of these are minor drafting changes to the sexual and violent offences listed in Schedules 13 and 14 that may trigger the new sentences for dangerous offenders. These amendments are consequential to the changes in the Scottish and Northern Irish legislation. I beg to move.
On Question, amendment agreed to.
Schedule 13, as amended, agreed to.
Schedule 14 [Northern Ireland offences specified for the purposes of section 220(4)]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 199 and 200:
Page 259, line 11, leave out paragraph 66.
Page 260, line 19, at end insert—
"87A An offence under Article 20 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (assault with intent to commit buggery).
87B An offence under Article 21 of that Order (indecent assault on a male)."
On Question, amendments agreed to.
Schedule 14, as amended, agreed to.
Clause 221 agreed to.
Schedule 15 agreed to.
Clauses 222 to 228 agreed to.
Clause 229 [Power of court to recommend licence conditions for certain prisoners]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment
No. 200A:
Page 132, line 33, leave out "particular" and insert "reasonable"
The noble Lord said: We seek to make a small amendment to Clause 229, replacing the word "particular" on page 132, line 33, with the word "reasonable". The amendment is clear. We believe that a court should not be able to insert any particular condition into the licence granted to an offender, but that that condition should be reasonable. I beg to move.
Viscount Bridgeman: I want to speak to Amendments Nos. 203A and 204A in the names of my noble friends Lady Anelay and Lord Kingsland. Clauses 235 and 236 contain the key provisions that the Government propose should operate in future to govern the early release of fixed-term prisoners. In some key respects, particularly for those prisoners serving long sentences of imprisonment, they represent a major departure from the current arrangements. My
800
noble friend has tabled the amendments in order to enable Members of the Committee to consider these changes so that the Government can justify their proposals to the Committee and to the wider public.
The present arrangements for the release of fixed-term prisoners are contained in the Criminal Justice Act 1991. That Act provided that those prisoners serving custodial sentences of up to four years, commonly called "short-term prisoners", should serve half their sentence in prison and the remainder on licence. Since 1999, the Government's home detention curfew scheme has allowed short-term prisoners to be released on electronic tags up to three months before the half-way point. Thus, someone serving a sentence of two years could serve up to 12 months but might serve only nine months before being released on an electronic tag.
The arrangements are different for prisoners serving four years or more—long-term prisoners. Currently, they serve at least half their sentence in prison before becoming eligible for parole and are released automatically on licence after serving two-thirds. Thus, at present, someone sentenced to six years, for example, if he were refused parole, could serve up to four years before being released.
The Bill makes a fundamental alteration to these arrangements for long-term prisoners. Clause 235 abolishes the concept of parole for long-term prisoners and provides that all those serving custodial sentences of 12 months or more should be released at the half-way point. Clause 236 also extends the home detention curfew scheme by applying it to all prisoners, not just those serving fewer than four years, and increasing the extra discount that may be given to a maximum of 135 days, which is a little more than four months.
The result of all this is that any prisoners serving a sentence of four years or more can expect to spend a good deal less time in custody than they do at present. The important point is that these are almost invariably prisoners who have committed serious offences. I ask the Committee to consider the following three examples. Offender A is convicted of wounding with intent to cause grievous bodily harm after "glassing" his victim in a drunken pub brawl. He is sentenced to six years' imprisonment. Although he could have been sentenced to imprisonment for public protection, the court is satisfied that he does not impose a significant risk to the public.
Under current arrangements, he would have to serve a minimum of three years before applying for parole and if this is denied would be released only after four years. As a long-term prisoner, he would not be eligible for home detention curfew. Under the Bill's provisions, he would be released automatically after serving three years and could be released on home detention curfew after serving two years and eight months. The potential difference made by the Bill in A's case is that he could serve up to one year four months less of his six-year sentence in custody than at present, serving two years eight months rather than four years.

801
Consider offender B: a serial burglar with a long record who is convicted of a number of burglaries at the homes of old and disabled people. He is sentenced to eight years' imprisonment. Because no violence is involved, he is convicted of the ordinary offence of burglary and so cannot be sentenced to imprisonment for public protection. Under the current arrangements, this offender would serve a minimum of four years before applying for parole and if this is denied, he would be released only after five years and four months. As a long-term prisoner, he would not be eligible for home detention curfew.
Under the Bill's provisions, this burglar would be released automatically after serving four years and could be released on home detention curfew after serving three years and eight months. Thus, the potential difference of the Bill in offender B's case is that he could serve up to one year eight months less of his eight-year sentence than at present, serving three years and eight months rather than five years and four months.
Finally, consider the case of offender C: a notorious drug baron who is convicted of importing a massive quantity of heroin and is sentenced to 12 years' imprisonment. Because this is not a violent or sexual offence, there is no question of the court imposing a public protection sentence. Under the current arrangements, he would have to serve a minimum of six years before applying for parole and if this is denied, he would be released only after eight years. As a long-term prisoner, he would not be eligible for release on home detention curfew.
Under the Bill, offender C would be released automatically after serving six years and could be released on home detention curfew after serving five years and eight months. So, the potential difference made by the Bill in C's case is that he could serve up to two years and four months less of his 12-year sentence than at present, serving five years and eight months rather than eight years.
These three examples and the sentences passed are all realistic and in all of them the Bill could make a massive difference to the amount of time spent in custody. I am particularly concerned about the Bill having the effect that drug dealers and serial burglars, as well as those violent and sexual offenders who receive determinate sentences, will serve less time in custody.
I believe that these provisions deserve the clearest justification from the Government. Many thousands of offenders, some of them convicted of very serious crimes indeed, will be released from prison much earlier as a result of what the Government are proposing; namely, the reduction from serving two-thirds to serving half of the sentence, with the added reduction if the offender is released early on the tagged
802
curfew. That decision alone flies in the face of the previous Home Secretary's commitment, given to another place on 29th November 1999:
"We have no plans or intention whatever to provide for electronic tagging to facilitate the early release of serious … offenders. Let me make that clear, with a full stop—none whatever".—[Official Report, Commons, 29/11/99; col. 27.]
The Bill allows precisely that: it cuts the maximum time that many serious offenders, such as drug dealers and serial burglars, will spend in prison, as well as allowing their release even earlier on electronic tags. I hope that, in his reply, the Minister will explain the reasons behind that course of action.
5.30 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): In
rising to respond to these amendments, having joined as a late substitute the government team on this Home Office Bill, I want to make a declaration of interest before I begin. My step-daughter is a prison governor, but unfortunately I have not had the benefit of discussing these measures with her.
Perhaps I may set out, if I can, both why we believe that the new arrangements in these clauses are appropriate and how they go to the heart of what the Halliday report was trying to do. I shall then turn to the specific questions raised by the noble Viscount, Lord Bridgeman, concerning their potential effect.
The provisions for custodial sentences of 12 months or more are a central part of the wholesale reform of the sentencing framework. Amendment No. 203A seeks to alter the release provisions for those sentences so that they would not all incur automatic release at the halfway point. Instead, release from sentences of four years or more would take place at the two-thirds point of the sentence; in other words, the amendment would reinstate the present parole thresholds.
The introduction of sentences of 12 months or more with automatic release at the halfway point builds upon the recommendations of the Halliday report. It provides a new custodial sentence that is intended to be transparent and effective so that all parties who need to do so can better understand the thrust, purpose and impact of sentencing policy.
Therefore, the automatic release provisions will make the effect of the sentence simpler for the public and practitioners to understand. It should also, most significantly, assist post-release planning, giving the correctional services the necessary information to put in place a coherent package of interventions for the second half of the sentence. The new sentence also provides for requirements to be attached to the whole second half of the sentence. Currently, after a person has been released—for example, at the two-thirds point—any conditions fall away at the point at which he would have reached three-quarters of his sentence.
The differentiation in release provisions for sentences of over and under four years is justifiable under the current sentencing framework in terms of public protection as potentially dangerous offenders may be serving longer custodial sentences.The

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Committee will well know why. However, because the Bill introduces sentences for all dangerous sexual and violent offenders, release from which will be dependent upon a recommendation by the Parole Board, the determinate sentence of 12 months or more to which the amendment applies will be available only to non-dangerous offenders.
Therefore, there is no public protection justification for retaining the differential release provisions suggested by Amendment No. 203A, as, I believe, by inference from what he said, the noble Viscount. Lord Bridgeman, well understood. Because the amendment would also forgo all the benefits associated with the new sentences of 12 months or more, we believe that it is undesirable. In other words, the benefits put in place far better release planning and a far more consistent and longer-term supervision regime during the full second half of the sentence that was originally imposed. And, of course, there is a full right of recall to prison if all or any of those conditions are breached.
We are making this change because we believe that prison is certainly about punishment and it is sometimes necessarily about retribution, but it must also be about seeking to reduce the risk of reoffending. Therefore, the purpose of the proposal that half the sentence be spent in prison followed by up to a half outside, with conditionality on that half outside, is to try to put in place better planning between the prison and the probation service in an attempt to settle the offender back into society and reduce the likelihood that he will reoffend.
No one is Panglossian on this issue, assuming that that will automatically happen. But we believe that there is some logic to these arrangements, which involve better planning and impose conditionality of release on licence. For the totality of the second half, which will be longer than the current position for a person released early, the framework will be better than trying to supervise tightly people who have offended and attempting to get them to obey the norms of society and undergo a successful resettlement. I hope that the Committee has borne with me during that digression.
Amendment No. 200A would make a minor drafting change to the provisions which give the court the power to recommend licence conditions for offenders sentenced to imprisonment for 12 months or more. Clause 229 requires the Secretary of State to have regard to the court's recommendations. However, given the period of time that may have elapsed between sentence and release, it was considered inappropriate for the court to give anything other than a recommendation.
The kind of conditions that may be recommended are not specified on the face of the Bill but may include educational provisions, requirements to attend programmes or undertake unpaid work, varying according to the needs of the individual offender. Amendment No. 200A does not change the effect of the clause and, I suggest, does not improve the drafting. For those reasons, we do not wish to accept it.
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Amendment No. 204A attempts to enhance public protection by ensuring that offenders serving custodial sentences of four years or more may not be released early on home detention curfew, or HDC, if I may use that abbreviation. We suggest that this amendment is also unnecessary because sufficient safeguards are already in place to ensure that potentially dangerous offenders are not released early on HDC. Those who are given the new sentences for dangerous offenders will not be eligible for HDC and all other offenders must be thoroughly risk-assessed before they may be granted early release.
The noble Viscount, Lord Bridgeman, gave three examples in which he sought to question whether we genuinely wished to release early in the circumstances that he described. If I heard him correctly, the offender in his first example, who had wounded with intent, had clearly committed a violent offence and therefore the provision would not apply in that situation. In his examples B and C, if I heard him correctly, the offenders had not committed violent or sexual offences. Therefore, in that sense, the noble Viscount is right: he is in play in debate on this issue.
We consider the measure to be justified in those circumstances—both providing release at the halfway point and also, although it is a limited discretion, making the discretion available to a prison governor to allow HDC if he believes that the circumstances warrant it—for exactly the reasons that I sought to outline previously. Such discretion is not focused essentially on the good of the burglar or the good of the drugs baron. There is an attempt to make it more likely that there will be a supervisory regime for, in the case of the drugs baron, the full second six months of his sentence. That drugs baron, or the person who has offended, will be on licence in the community but subject to recall to prison at any time if he breaches the terms of the licence.
We believe that that will give a stronger process of control on licence than the current situation and, we hope, will focus the efforts of the probation service on trying to ensure that the person is supervised. We consider it right and proper that the Bill is pitched in this way, consistent with the Halliday recommendations. The aim is for the offender to change his ways and to reduce the risk that he will reoffend. For those reasons—I hope that my explanation has been helpful—we believe that the current measures pitch the issue correctly.
Viscount Bridgeman: On a personal note perhaps I may say how helpful I found the noble Lord's step-daughter on a recent visit to Wandsworth Prison. She made the visit most interesting.
I turn to the amendments. I am grateful to the Minister for his explanation. However, we feel that it did not address the point that I sought to make, which is of a general reduction in prison sentences. In view of the fact that this is contrary to what was said by the previous Home Secretary, I should like to test the opinion of the House.
Lord Thomas of Gresford: As this is my amendment, perhaps I may reply and the noble Viscount,

805
Lord Bridgeman, can divide the Committee in a moment. The magic and mysterious music murmuring around the Chamber made it very difficult for me to concentrate on the full force of the Minister's reply to my amendment. I shall read what he had to say and decide what I shall do when I have understood it. In the mean time, I beg leave to withdraw the amendment
Amendment, by leave, withdrawn.
Clause 229 agreed to.
Clause 230 [The Parole Board]:
Lord Filkinmoved Amendment No. 201:
Page 133, line 6, leave out "Part" and insert "Chapter".
The noble Lord said: Government Amendments Nos. 201 and 202 rectify minor technical inaccuracies with the Parole Board provisions in Part 6. The functions of the Parole Board under Part 12 ought, for consistency with other provisions, to be references to functions under Chapter 6 of that part. I hope that that is clear. That explains why the government amendments are necessary. I beg to move.
Lord Thomas of Gresford: Amendment No. 202A deals with the procedures of the Parole Board. The purpose of the amendment is to omit subsections (5) and (6), which are very important.
As part of its constitution the Parole Board has a person who has held high judicial office and a psychiatrist. However, in practice, when reviewing licences it is my experience that a number of members who are not identified meet on a daily basis without either a legally or medically-qualified member. It appears to follow a procedure which is opaque, to say the least.
I declare an interest: I was involved in a case— fortunately it is over so I can refer to it—in which the Secretary of State was subject to judicial review. We discovered that it was impossible to find out what were the rules of the Parole Board in reviewing a licence. There is nothing on the web. So far as we could find out, nothing is published and there is a total lack of transparency.
The hearings depend upon written reports, which are not disclosed to the person on licence. He has no right to be present or to be represented. In the specific case with which I was concerned a person on licence was arrested and charged with three offences. As a result, the Parole Board revoked his licence and returned him to prison. One of the charges was dropped. He was acquitted on the second charge and the third charge was due to be heard the day after the Parole Board was to determine his appeal against the revocation of his licence.
Naturally, his solicitor asked the Parole Board to adjourn so that the result of the third offence could be determined. The Parole Board refused that request. The board sat the day before his final hearing and turned him down so that he remained in prison. He was acquitted the following day so all three charges were disposed of. The solicitor went back to the Parole
806
Board and asked it to reconsider its decision, and was told, "We are functus officio. We cannot hear the matter any further". At that point judicial review proceedings were commenced. In due course, before the hearing, although the application for leave was resisted, leave was granted—without, I should say, counsel for the applicant being called upon—and the Home Secretary withdrew.
Through that experience I discovered that it was impossible to find out how many members of the Parole Board were sitting, who they were, why they took this extraordinary decision to refuse an adjournment and why they refused to rehear the matter when all the matters at issue had been resolved. With that experience in mind I came to look at Clause 230(5) and (6).
Subsection (5) gives power to the Secretary of State to,
"make rules with respect to the proceedings of the Board, including proceedings authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times".
It does not give any further detail. Subsection (6) refers to giving the board directions.
If one turns to Clause 299(2) to see what is the rule-making power, one discovers that this particular subsection is the only exception to the general rule. Clause 299 states that,
"The power, [to make rules] unless it is a power to make rules under section 230(5), is exercisable by statutory instrument".
So, for some reason which I do not understand, the rules in Clause 230(5) are not to be made by statutory instrument and therefore are presumably to remain as opaque and as lacking in transparency as they are at present. That is completely unacceptable. I fail to understand how it can be compatible with the convention. Although it is not the lead amendment in this group, I shall beg leave to move my Amendment No. 202A in due course.
5.45 p.m.
Viscount Colville of Culross: Before the Minister replies, perhaps I may add a word to the points made by the noble Lord, Lord Thomas. I am glad to say that it is no longer my job to defend decisions of the Parole Board. However, there is a point on rules and directions on which he has rightly focused.
The last time this situation arose was after the United Kingdom lost a case at Strasbourg about discretionary life sentences. It was held that it was no longer acceptable for the Home Secretary to decide when such people should be released. Therefore, the Parole Board was turned into a tribunal in order to make that decision in lieu of the Home Secretary. For that purpose there had to be rules. They were the same sort of rules to which the noble Lord, Lord Thomas, referred, but they were eventually made.
Can the Minister ensure that we do not have a repetition of what happened on that occasion? The Act was to come into force at the beginning of October. The Parole Board asked the Home Office, "Where are the rules?" Nothing happened. We did not ask just out

807
of curiosity. A number of people had to be trained in order to carry out hearings of the kind to which the noble Lord has just referred. They included not just lawyers but also people from a multiplicity of other disciplines. As I said, we asked: "Where are the rules?". But nothing happened.
So in the end, a group of my colleagues and I sat down and wrote down the rules ourselves. We sent them to the Home Office and said, "This is the best we can do. We will have to train the members of the Parole Board on the basis of these rules because you will not produce any". That is what we did. In the end, some time in the middle of September, the rules were produced and bore a marked similarity to the draft that we sent to the Home Office. I believe they have worked perfectly well since, but they are not a statutory instrument.
Not only are there more rules here, we have directions. I can tell the Committee that to ensure that such things are properly understood by members of the Parole Board and of panels who have to sit on cases such as those to which the noble Lord, Lord Thomas, has referred, one needs time in advance to train people so that they can consider the implications. It is no use leaving it until the last minute. I ask the noble Lord, Lord Filkin, to ensure that on this occasion there is plenty of lead time. Otherwise it will simply not work. There is now a great deal to build on. There are the discretionary lifer rules—which, I think, would be a useful starting point.
I should like to draw attention to just one matter. If the Home Secretary is to give directions under subsection (6)(b), having regard to,
"the desirability of preventing the commission by",
prisoners,
"of further offences",
to what on earth else will he have regard? In taking account of any considerations, he must be considering that desirability- although that is an odd word to find here. I hope that the draftsman will reconsider that.
However, my main point is that we must not have a repetition of what happened before: all those provisions must be put in place—it would be much better if they were transparent—much sooner than happened last time. I shall forgive the noble Lord, Lord Filkin, if he cannot say anything about the matter today, because I gave notice of it only about 25 minutes ago; but perhaps he can consider it and let me know what is the situation.
Lord Filkin: In responding to extremely interesting speeches to Amendment No. 202A, which was debated in another place and which would remove the Secretary of State's power to make rules and directions concerning the operation of the Parole Board, let me first make some general remarks before turning to more specific points raised by the noble Lord, Lord Thomas of Gresford, and the noble Viscount, Lord Colville of Culross.
First, on the provision in subsection (5) enabling the Home Secretary to set down directions, as was highlighted during debate in another place the Home
808
Secretary is responsible for CriminalJustice policy and is accountable to Parliament for all aspects of that policy. He is also responsible for the supervision of all offenders on licence—and, again, is answerable to Parliament in respect of their release arrangements. Because of that, it is entirely proper that he should be able to set down the considerations to be taken into account when determining whether to grant early release.
Having said that, that does not give the Home Secretary unfettered discretion to set down excessive or unreasonable criteria to be met before release can be granted. All directions must be compliant with Article 6 of the European Convention on Human Rights. The rules have no influence on the determination of applications for early release. Instead, they offer a procedural framework for the Parole Board when sitting in a quasi-judicial capacity in the form of an oral hearing. The Parole Board is always fully consulted in drawing up such rules.
Of course, that was not the thrust of the issue raised by the noble Lord, Lord Thomas of Gresford. In short—he will bear with me if I slightly oversimplify it—it was that, given that it is operating in a quasi-judicial capacity, one would expect the Parole Board's rules to be known and apparent. He is right on that. I am advised that they are published, but we shall clearly need to consider how they are published and whether they are sufficiently transparent and accessible. If there is a need for greater transparency, we undertake to put that in place.
Turning to the powerful points made by the noble Viscount, Lord Colville: yes, we will ensure that we will make the rules in time; that training is provided for their implementation; and that we consult the Parole Board. I am told that that is already under way. The noble Viscount is absolutely right: the issues affect people's liberty and they have every right to expect that the processes by which decisions are made are comprehensible and open to account.
Having made those two general commitments and, aware that I am—how shall I put it?—speaking on another's Bill, it is better that I put in writing to those Members of the Committee and others any further points on those issues that go to the heart of what they have raised, so that we provide as much clarity as possible before Report. At this point, I suggest that the opposition amendments are not pressed.
On Question, amendment agreed to.
Lord Filkin Lord Filkin moved Amendment No. 202:
Page 133, line 7, leave out "Part" and insert "Chapter".
On Question, amendment agreed to.
Lord Thomas of Gresfordhad given notice of his intention to move Amendment No. 202A:
Page 133, line 26, leave out subsections (5) and (6).
The noble Lord said: 1 do not propose to repeat what I said earlier. I am most grateful to the noble Viscount, Lord Culville of Culross, for his support and am interested to hear that it is possible to read the rules. I had been under the impression that one reason

809
that the Secretary of State did not proceed further in the case to which I referred was that there was an unwillingness to disclose the rules to the defence. The order that the judge made on the application for leave was that such disclosure should be made on my application.
We were tempted to press the matter to a Division, but I have heard what the Minister said and await with interest—and within the next two weeks—his further response that will make absolutely clear what is the Government's position on the issue. It is only with that in mind that, for the moment, I shall not move the amendment.
[Amendment No. 202 A not moved.]
Clause 230, as amended, agreed to.
Schedule 16 agreed to.
Clauses 231 to 233 agreed to.
6 p.m.
Clause 234 [Persons extradited to the United Kingdom]:
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 203:
Page 136, line 13, after "extradition" insert "and surrender"
The noble Lord said: The amendment concerns Clause 234, which is entitled "Persons extradited to the United Kingdom".
Some Members of the Committee may be unaware that in parallel with the Bill the Government are pushing through a new Extradition Bill. In its way, it is as long and complex a piece of legislation as the Bill before us: witness the fact that we have spent nine days in Grand Committee discussing its details.
We have been extremely grateful: first, to the noble Lord, Lord Filkin; and latterly, to the noble Baroness, for the courtesy and attention that they have given to the many amendments tabled. I hope that, in the same spirit, they will forgive me when I say that my noble friend Lady Anelay and I were somewhat horrified to be told that the Government are now to table 158 amendments to the Extradition Bill between now and the end of the week for Report, which begins next Wednesday. If this House is to carry out its proper role of revising and consultation, that is a jolly short period in which to deal with 158 amendments. However, we shall let the matter lie for the moment.
It is important, in the interests of public confidence and clarity of intention, that the Criminal Justice Bill and the Extradition Bill march in step. The objective of my amendment is to help to achieve that cohesion.
The Extradition Bill proposes wholesale revision of our extradition laws. It is argued that the present legislative framework gives too many opportunities for the wrongdoer unfairly to delay his extradition. The force of that argument is accepted on all sides of the Committee. But the Extradition Bill makes a further significant step. It divides the countries with which we have extradition arrangements into two categories, each being afforded completely different
810
treatment. Extradition to category 1 territories, which are expected broadly to be EU partner countries, will be governed by a concept wholly new to English law: the European arrest warrant.
Under the European arrest warrant, individuals who commit one of 32 groups of offences carrying a custodial sentence of more than 12 months are, on the say so of a "judicial authority"—any category 1 territory, not a judicial authority in the United Kingdom—whisked away without any effective protection from the United Kingdom's judicial system. Some of those offences are curiously ill-defined, such as computer-related crime, and others are not crimes in the United Kingdom in any case.
We can argue about whether that is the right policy to pursue. Indeed, we did so at length in Grand Committee. Concerns were expressed about the absence of habeas corpus in many continental European jurisdictions, and that pursuant to the investigative judicial system prevalent on the Continent, as opposed to the adversarial one in this country, there is a risk that the warrant may be used for fishing expeditions as opposed to the prosecution of crime. Concerns were also expressed about the judicial integrity of some of the countries that will shortly join the European Union.
We could argue about those issues, but they are not the point of my amendment. The new extradition system for category 1 territories does not correspond in any way to the meaning of the word "extradition" as understood by the man in the street. To him, extradition means a judicial process involving home and overseas judicial authorities, with appropriate checks and balances. Under this proposal there are no checks and balances. But perhaps we should not be surprised, because the European arrest warrant is contained in a Council framework decision in which paragraph 5 of the preamble reads:
"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition"—
"abolishing", my Lords—
"between member states and replacing it by a system of surrender between judicial authorities".
A sample of the warrant to be used is included later in the document. Paragraph (i) of the sample warrant refers to:
"Contact details of the person to contact to make necessary practical arrangements for the surrender".
The Government propose surrender, not extradition. They should now make that clear in the Criminal Justice Bill. That is why my amendment seeks to insert the words "and surrender" into Clause 234. My amendment is about honesty and clarity with the public. It is proposed in a spirit of helpfulness to the Government. The Prime Minister has said that he now wishes to get away from spin and to focus on reality. Here is a chance for his Government to begin to do so. I beg to move.
Lord Filkin: 1 thank the noble Lord, Lord Hodgson, for taking us back to old, familiar territory. Several Members of the Committee, including the noble Lord, Lord Hodgson, and the noble Baroness, Lady Anelay, worked on the Extradition Bill, on which there was a good Committee process. I am slightly surprised that we are having a warm-up act today for issues that no doubt—if what the noble Lord advertises is true—will be a substantial process during further consideration of the Bill in your Lordships' House. For those reasons, such a debate would be better saved until that point.
I shall respond to the central thrust of the noble Lord's argument. Amendment No. 203 seeks to add reference to "surrender procedures" to the provisions concerning the existing legislation on extradition. Although I accept that the Opposition may not be wedded to the exact wording of the amendment, it is worth pointing out that, as drafted, it has an adverse effect on the provisions. Paragraph (a) should be read in conjunction with the definition of "extradition arrangements" at the end of subsection (3). If those extra words were inserted, that would no longer make sense, as "extradition and surrender arrangements" is not a term given meaning to by Section 3 of the Extradition Act 1989.
That leads us to the wider point that "surrender" is not a term used in legislation in this context. The 1989 Act talks only of "extradition", as does the Extradition Bill currently being considered by Parliament. I recognise the Opposition's contention, which we have discussed previously, that the Extradition Bill, and specifically Part 1, which implements the European arrest warrant, is concerned with surrender rather than extradition.
I am sure that the noble Lord, Lord Hodgson, has previously pointed to the use of the word "surrender" in the framework decision on the European arrest warrant. However, I repeat the Government's explanation that it is the Extradition Bill and not the framework decision that will govern the law in the UK.
The dictionary definition of extradition is,
"to send back an alleged criminal for trial in the country where the alleged crime was committed".
That is what our existing legislation is about. It is also what the Extradition Bill is about. Extradition will take place, as it does now, only after due judicial process, including extradition under the European arrest warrant.
It is the existing extradition legislation, as listed in the clause, that governs our procedure now and uses the phrase "extradition arrangements". If, as we hope, the Extradition Bill is passed into law, that legislation will apply, with references to extradition and not surrender. I assure Members of the Committee that, regardless of which Bill receives Royal Assent first, as we hope both will, we will ensure that they are compatible and that any cross-references are correct.
812
The clause will apply to extradited prisoners in the future, including those extradited by virtue of the European arrest warrant system, in the same way that it would apply under our existing extradition law.
Having had the pleasure of debating the issues previously with the noble Lord, Lord Hodgson, I am not so optimistic to think that on this occasion, by some happy coincidence, I will necessarily have persuaded him. But I invite him to think that there will be a better opportunity to discuss the issues when we come to the Extradition Bill, rather than now. For that reason, without asking the noble Lord to spike his future thunder, it might be a good time to debate them then.
Lord Hodgson of Astley Abbotts: I will not, in any case, spike my future thunder. We shall hold that back until Wednesday week and Monday fortnight. The wording is not the point. I agree with the Minister that we are not wedded to the wording; it is the principle of honesty and openness about extradition proposals. I have no doubt that the Government will get their Extradition Bill—I do not know what its form will be, but they will get it. Had the Minister said that he would consider the issue of clarity and introducing the word "surrender" to the clause, I would have been prepared to rely on him to do that and to come back with an amendment later. Since he is not prepared to do that, I wish to test the opinion of the Committee.
6.9 p.m.
On Question, Whether the said amendment (No. 203) shall be agreed to?
Their Lordships divided: Contents, 87; Not-Contents, 118.

Division No 2

CONTENTS

Ackner, L.

Elton, L.

Allenby of Megiddo, V.

Flather, B.

Alton of Liverpool, L.

Fookes, B.

Anelay of St Johns, B.

Fowler, L.

Arran, E.

Freeman, L.

Astor, V.

Gardner of Parkes, B.

Attlee, E.

Glentoran, L.

Biffen, L.

Griffiths of Fforestfach. L.

Blatch, B.

Hayhoe, L.

Bowness, L.

Henley, L.

Bridgeman, V.

Higgins, L.

Brooke of Sutton Mandeville, L.

Hodgson of Astley Abbotts;, L.

Brougham and Vaux, L.

Hooper, B.

Burnham, L.

Howe, E.

Byford, B.

Howe of Aberavon, L.

Campbell of Alloway, L.

Howell of Guildford, L.

Carlisle of Bucklow, L.

Hunt of Wirral, L.

Carnegy of Lour, B.

Hylton, L.

Cavendish of Furness, L.

Jenkin of Roding, L.

Colwyn, L.

Kimball, L.

Cope of Berkeley, L. [Teller]

King of Bridgwater, L.

Crickhowell, L.

Knight of Collingtree, B.

Cumberlege, B.

Lamont of Lerwick, L.

Denham, L.

Liverpool, E.

Dixon-Smith, L.

Lyell, L,

Eden of Winton, L.

McColl of Dulwich. L.

Elliott of Morpeth, L.

Mancroft. L.

813

Marlesford, L.

Renton of Mount Harry, L.

Miller of Hendon, B.

Seccombe, B. [Teller]

Montrose, D.

Selbome, E.

Moynihan, L.

Selsdon, L.

Mutton of Lindisfame, L.

Sharples, B.

Naseby, L.

Shaw of Northstead, L.

Newcastle, Bp.

Skelmersdale, L.

Northbrook, L.

Stewartby, L.

Stoddart of Swindon, L.

Northesk, E.

Strathclyde. L.

O'Cathain, B.

Swinfen, L.

Park of Monmouth, B.

Thomas of Gwydir, L.

Pearson of Rannoch, L.

Truro, Bp.

Plumb, L.

Ullswater.V.

Reay, L.

Waddington, L.

Rees, L.

Wade of Chorlton, L.

Renton, L.

Wakeham, L.

NOT-CONTENTS

Acton, L.

Hogg of Cumbernauld, L.

Ahmed, L.

Hollis of Heigham, B.

Amos, B. (Lord President)

Howe of Idlicote, B.

Andrews, B.

Howells of St. Davids, B.

Archer of Sandwell, L.

Howie of Troon, L.

Ashton of Upholland, B.

Hughes of Woodside, L.

Bach, L.

Irvine of Lairg, L.

Barnett, L.

Islwyn, L.

Bassam of Brighton, L.

Jay of Paddington, B.

Berkeley, L.

Jones, L.

Bernstein of Craigweil, L.

King of West Bromwich, L.

Billingham, B.

Kirkhill, L.

Blackstone, B.

Lea of Crondall, L.

Borrie, L.

Lipsey, L.

Boston of Faversham, L.

Listowel, E.

Brennan, L.

Lockwood, B.

Brooke of Alverthorpe, L.

Lofthouse of Pontefract, L.

Brookman, L.

Macdonald of Tradeston, L.

Brooks of Tremorfa, L.

McIntosh of Haringey, L.

Campbell-Savours, L.

McIntosh of Hudnall, B.

Carter, L.

MacKenzie of Culkein, L.

Christopher, L.

Mallalieu, B.

Clark of Windermere, L.

Manchester, Bp.

Clarke of Hampstead, L.

Mar, C.

Clinton-Davis, L.

Masham of Ilton, B.

Cobbold, L.

Massey of Darwen, B.

Cohen of Pimlico, B.

Merlyn-Rees, L.

Colville of Culross, V.

Morris of Manchester, L.

Corbett of Castle Vale, L.

Murray of Epping Forest, L.

Dahrendorf, L.

Nicol, B.

Davies of Coity, L.

Palmer. L.

Davies of Oldham, L. [Teller]

Patel of Blackburn, L.

Desai, L.

Pendry, L.

Dixon, L.

Peston, L.

Donoughue, L.

Pitkeathley, B.

Dormand of Easington, L.

Plant of Highfield, L.

Dubs, L.

Ponsonby of Shulbrede, L.

Evans of Parkside, L.

Puttnam, L.

Evans of Temple Guiting, L.

Radice, L.

Falconer of Thoroton, L. (Lord

Ramsay of Cartvale, B.

Chancellor

Randall of St. Budeaux, L.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Faulkner of Worcester, L.

Rogan, L.

Filkin, L.

St. John of Bletso, L.

Gale, B.

Scotland of Asthal, B.

Gibson of Market Rasen, B.

Sheldon, L.

Golding, B.

Simon, V.

Goldsmith, L.

Smith of Leigh, L.

Goudie, B.

Stone of Blackheath, L.

Gould of Potternewton, B.

Symons of Vemham Dean, B.

Graham of Edmonton, L.

Taylor of Blackburn, L.

Grocott, L. [Teller]

Temple-Morris, L.

Harrison, L.

Thornton, B.

Haskel, L.

Tomlinson, L.

Hayman, B.

Turnberg, L.

Hilton of Eggardon, B.

Turner of Camden, B.

814

Warnock, B.

Wilkins, B.

Warwick of Undercliffe, B.

Williamson of Horton, L.

Whitaker, B.

Woolmer of Leeds, L.

Whitty, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.20p.m.
Clause 234 agreed to.
Clause 235 [Duty to release prisoners]:
Lord Filkin Lord Filkin moved Amendment No. 203ZA:
Page 136, line 33, leave out from "(1)" to end of line 35 and insert "is subject to section (Restrictions on operation of section 235(1) in relation to intermittent custody prisoners)"
On Question, amendment agreed to.
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 203A:
Page 136, line 39, at end insert "(where that sentence is less than four years), or two-thirds of his sentence (in any other case)"
The noble Viscount said: For the reasons already given, I beg leave to divide the Committee.
6.21 p.m.
On Question, Whether the said amendment (No. 203A) shall be agreed to?
Their Lordships divided: Contents, 110; Not-Contents, 109.

Division No 3

CONTENTS

Addington, L.

Freeman, L.

Allenby of Megiddo, V.

Gardner of Parkes, B.

Anelay of St Johns, B.

Glentoran.L.

Arran, E.

Gray of Contin, L.

Astor, V.

Hayhoe, L.

Attlee, E.

Henley, L.

Barker, B.

Higgins, L.

Biffen, L.

Hodgson of Astley Abbotts, L.

Blatch, B.

Hooper, B.

Bowness, L.

Howe, E.

Bridgeman, V.

Howe of Aberavon, L.

Brooke of Sutton Mandeville, L.

Howell of Guildford, L.

Brougham and Vaux, L.

Hunt of Wirral, L.

Burnham, L.

Hylton, L.

Byford, B.

Jenkin of Roding, L.

Carlile of Berriew, L.

Kimball, L.

Carlisle of Bucklow, L.

King of Bridgwater, L.

Carnegy of Lour, B.

Knight of Collingtree, B.

Cavendish of Furness, L.

Lamont of Lerwick, L.

Colwyn, L.

Linklater of Butterstone, B.

Cope of Berkeley, L. [Teller]

Liverpool, E.

Craigavon, V.

Livsey of Talgarth. L.

Crickhowell, L.

Lyell, L.

Cumberlege, B.

McColl of Dulwich, L.

Dahrendorf, L.

Mackie of Benshie, L.

Denham, L.

Maddock, B.

Dholakia, L.

Mancroft, L.

Dixon-Smith, L.

Mar and Kellie, E.

Eden of Winton, L.

Marlesford, L.

Elliott of Morpeth, L.

Methuen, L.

Elton, L.

Miller of Chilthome Domer, B.

Flather, B.

Miller of Hendon, B.

Fookes, B.

Montrose, D.

Fowler, L.

Moynihan, L.

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Murton of Lindisfarne, L.

Sharp of Guildford, B.

Naseby, L.

Sharples, B.

Newby, L.

Shaw of Northstead, L.

Newcastle, Bp.

Shutt of Greetland, L.

Northbrook, L.

Skelmersdale, L.

Northesk, E.

Smith of Clifton, L.

Northover, B.

Stewartby, L.

Oakeshott of Seagrove Bay, L.

Strathclyde, L.

O'Cathain. B.

Swinfen, L.

Park of Monmouth, B.

Thomas of Gresford, L.

Pearson of Rannoch, L.

Thomas of Gwydir, L.

Plumb, L.

Thomas of Walliswood, B.

Razzall, L.

Tordoff, L.

Reay, L.

Ullswater, V.

Rees, L.

Waddington, L.

Rennard, L.

Wade of Chorlton, L.

Renton, L.

Wakeham, L.

Rodgers of Quarry Bank, L.

Walmsley, B.

Seccombe, B. [Teller]

Warnock, B.

Selborne, E.

Watson of Richmond, L.

Selsdon, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Hilton of Eggardon, B.

Ahmed, L.

Hogg of Cumbemauld, L.

Amos, B. (Lord President)

Hollis of Heigham, B.

Andrews, B.

Howells of St. Davids, B.

Archer of Sandwell, L.

Howie of Troon, L.

Ash ton of Upholland, B.

Hughes of Woodside, L.

Bach, L.

Irvine of Lairg, L.

Bamett, L.

Islwyn, L.

Bassam of Brighton, L.

Jay of Paddington, B.

Berkeley, L.

Jones, L.

Bernstein of Craigweil, L.

King of West Bromwich, L.

Billingham, B.

Kirkhill, L.

Blackstone, B.

Lea of Crondall, L.

Borrie, L.

Lipsey, L.

Boston of Faversham, L.

Lockwood, B.

Brennan, L.

Lofthouse of Pontefract, L.

Brooke of Alverthorpe, L.

Macdonald of Tradeston, L.

Brookman, L.

McIntosh of Haringey, L.

Brooks of Tremorfa, L.

McIntosh of Hudnall, B.

Campbell-Savours, L.

MacKenzie of Culkein, L.

Carter, L.

Mallalieu, B.

Christopher, L.

Manchester, Bp.

Clark of Windermere, L

Massey of Darwen, B.

Clarke of Hampstead, L.

Merlyn-Rees, L.

Clinton-Davis, L.

Morris of Manchester, L.

Cohen of Pimlico, B.

Murray of Epping Forest, L.

Corbett of Castle Vale, L.

Nicol, B.

DaviesofCoity, L.

Patel of Blackburn, L.

DaviesofOldham, L.[Teller]

Pendry.L.

Desai, L.

Peston, L.

Dixon, L.

Pitkeathley, B.

Donoughue, L.

Plant of Highfield, L.

Dormand of Easington, L.

Ponsonby of Shulbrede, L.

Dubs, L.

Puttnam, L.

Eatwell, L.

Radice, L.

Evans of Parkside, L.

Ramsay of Cartvale, B.

Evans of Temple Guiting, L.

Randall of St. Budeaux, L.

Falconer of Thoroton, L. (Lord

Rendell of Babergh, B.

Chancellor)

Rogan, L.

FarringtonofRibbleton, B.

Scotland of Asthal, B.

Faulkner of Worcester, L.

Sheldon, L.

Filkin.L.

Simon, V.

Gale, B.

Smith of Leigh, L.

Gibson of Market Rasen, B.

Stone of Blackheath, L.

Golding, B.

Symons of Vernham Dean, B.

Goldsmith, L.

Taylor of Blackburn, L.

Goudie, B.

Temple-Morris, L.

Gould of Pottemewton, B.

Thornton, B.

Graham of Edmonton, L.

Tomlinson, L.

Grocott, L. [Teller]

Truro, Bp.

Harrison, L.

Tumberg, L.

Haskel, L.

Turner of Camden, B.

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Warwick of Underdiffe, B.

Wilkins, B.

Whitaker, B.

Williamson of Horton, L.

Whitty, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.30 p.m.
Clause 235, as amended, agreed to.
Lord Filkin Lord Filkin moved Amendment No. 203AA:
After Clause 235, insert the following new clause—
"RESTRICTIONS ON OPERATION OF SECTION 235(1) IN RELATION TO INTERMITTENT CUSTODY PRISONERS
(1) Where an intermittent custody prisoner returns to custody
after being unlawfully at large within the meaning of section 49 of
the Prison Act 1952 (c. 52) at any time during the currency of his
sentence, section 235(1) does not apply until—

(a) the relevant time (as defined in subsection (2)), or

(b) if earlier, the date on which he has served in prison the
number of custodial days required by the intermittent
custody order.

(2) In subsection (l)(a) "the relevant time" means—

(a) in a case where, within the period of 72 hours beginning
with the return to custody of the intermittent custody prisoner, the Secretary of State or the responsible officer has applied to the court for the amendment of the intermittent custody order under paragraph 6(1)(b) of Schedule 9, the date on which the application is withdrawn or determined, and

(b) in any other case, the end of that 72 hour period.

(3)Section 235(1) does not apply in relation to an intermittent
custody prisoner at any time after he has been recalled under
section 243, unless after his recall the Board has directed his
further release on licence."
On Question, amendment agreed to.
Clause 236 [Power to release prisoners on licence before required to do so]:
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 203B:
Page 137, line 3, at end insert—
"( ) In exercising his powers under this section the Secretary of State shall have regard to the matters specified in section 135(1)."
The noble Viscount said: In speaking to Amendment No. 203B, standing in the names of my noble friends Lady Anelay and Lord Kingsland, I shall speak also to Amendments Nos. 204B and 204C, which are probing amendments. Clause 236 re-enacts, with some amendments, the provisions enacted in the Crime and Disorder Act 1998 that allow the Home Secretary to order the early release of prisoners on home detention curfew before their usual automatic release date. It allows prisoners to be released from custody up to 135 days—more than four months— before the half-way point of their sentences. Thus, if the Bill becomes law, someone sentenced to, for example, two years' imprisonment, might be released on the scheme by the Secretary of State after serving less than eight months in custody. The amendments in this group relate to the operation of that provision within the sentencing framework provided for in the Bill.
Amendment No. 203B requires the Secretary of State, when exercising his early release powers under Clause 236, to have regard to the purposes of sentencing

817
set out in Clause 135(1), which were considered by the Committee in an earlier debate. The amendment gives the Government the opportunity to state the criteria by which the Secretary of State intends to operate the home detention curfew scheme in the future, particularly in relation to long-term prisoners. Will the Secretary of State bear in mind what is set out in Clause 135 when he makes the decision to release a particular prisoner? In particular, what would happen in a case where the trial judge had passed a deterrent sentence or a long determinant sentence with the aim of protecting the public—for example, on a drug dealer or a serial burglar?
Would the Secretary of State take the sentencing decision and the aims of the sentence, as set out by the sentencer, into account when deciding whether to release the prisoner early on home detention curfew or would the release be dictated by other factors? I hope that the Minister will comment on the way in which the Government envisage the aims of the sentencing provisions contained in Part 12 interacting with the early release provisions.
Amendment No. 204B probes the way in which the new sentence of intermittent custody will interact with home detention curfew. Under Clause 176, intermittent custody may be imposed for periods up to 51 weeks. The maximum number of "custodial days"—that is, the actual time spent in prison—is 90 days. During that 90-day period, the prisoner may be released temporarily on licence under Clause 176. It is plain from Clause 236(1)(b), to which Amendment No. 204B relates, that prisoners sentenced to intermittent custody may also be released on the home detention curfew scheme.
How do the Government intend that the two systems should operate together? What will be the difference in restrictions between release on licence under the intermittent custody sentence and release on the HDC scheme? Will offenders end up spending more time under restriction when they are theoretically "released" on the HDC scheme? Someone serving a sentence of intermittent custody might spend only one or two days per week in prison, while, on home detention curfew, the offender would spend the equivalent of at least three-and-a-half days under curfew each week. I would welcome the Government's view on how the two systems will work in practice.
Finally, Amendment No. 204C would require the Home Secretary to inform the victim of the offence when the offender is released on home detention curfew. When we debated a previous group of amendments, moved by my noble friend Lady Anelay, she reminded the Committee that the home detention curfew scheme is not mentioned by sentencers when sentence is passed. If the victim is in court, he or she will be left with a false impression of when the offender will be released. Even if HDC is mentioned in the future, the victim will never know precisely when the Secretary of State is going to exercise his power to release any given prisoner.
The amendment would therefore at least allow the victim to know how long the offender has actually served in prison, rather than entertain false notions based on a "headline" sentence which will never actually be served. I recognise that in some situations—for example, where revenge attacks are possible—it would be inappropriate to inform the victim that an offender had been released on home detention curfew. But surely, in general, victims ought to know that a decision to release an offender early on HDC has been made; a possibility about which they may, through no fault of their own, be entirely unaware. I look forward to the Minister's comments on these amendments. I beg to move.
Lord Carlisle of Bucklow: A few weeks ago the Government had acquired a reputation for excessive spin. In terms of this Bill, it appears to have moved very quickly from excessive spin to excessive stealth. Clause 176 introduces the concept of weekend imprisonment, which I welcome, but without any real announcements at all. In Clauses 235 and 236, effectively, we are doing away with the parole system as we have known it for many years. Instead of everyone serving a sentence of four years or more being eligible for consideration for parole at the half-way stage, under Clause 235 that half-term remission shall be automatic without the Parole Board having any say.
Amendment No. 203B, moved by my noble friend, applies to Clause 236, under which the Secretary of State is given the power to release at any moment any prisoner serving a fixed term of imprisonment— provided that it is a term of more than eight months— up to 135 days before the halfway stage. What is the cause of this sudden change of attitude? The parole system, which stood the test of time for many years, was accepted as a sensible way of releasing an offender back into society. One can only assume that the immediate release of prisoners at the half-way stage of a short sentence, rather than the present four-year sentence, is to help provide space in prisons for additional prisoners which will arise as a result of the clauses that we have had on serious offences, which we have considered, and those on murder, which we will consider shortly.
However, what concerns me far more is the power now being taken by the Home Secretary to add another 135 days' release, apparently at will, for any prisoner whose sentence is long enough. Looking at the example cited by my noble friend Lord Bridgeman, if a man is serving five years in prison, in future he will come out automatically after two-and-a-half years and, if the Home Secretary so wishes, he can be released 135 days before that halfway point.
Before he replies, can I humbly remind the Minister that the basic reason why the parole system came into disrepute for a time both in the public eye and in the eye of the judiciary—and was the cause of the subsequent review—was the fact that people given identical sentences by the courts were being released at different times? Conversely, two people serving

819
different sentences could come out on the same day. In any event, the period of the release bore little relationship to the sentence passed.
Here we shall have a situation where sentence is passed and then the Secretary of State, apparently of his own volition and without being required to give any reason, will be able to say that prisoners A, B and C will serve 18 months of their three-year sentences, while prisoner D is to be let out 135 days earlier. One can only assume again that the power is there is to be used if required for the purpose of helping to reduce overcrowding in prisons and to make room for the additional prisoners that the rest of this Bill will produce.
Like my noble friend Lord Bridgeman, I should like to hear from the Minister what is the philosophy behind the intention to provide a power for the Secretary of State to release prisoners sentenced by the court 135 days before the time that they would normally be released. The date of release is therefore no longer to be dependent on prisoners serving half of their sentences, but to be dependent on serving half the sentence less anything up to 135 days on the whim of the Home Secretary of the day.
6.45 p.m.
Lord Filkin: As I am sure Members of the Committee know, the home detention curfew scheme—HDC—has been in operation since 1999. It is a process and a system which has been reasonably well tested in practice over that period.
Amendment No. 203B seeks to require the Secretary of State to take into account the purposes of sentencing, as set out in Clause 135, when considering prisoners for early release under the HDC scheme, while Amendment No. 204B would make those serving intermittent custody sentences ineligible for release under that scheme. Amendment No. 204C seeks to make it a statutory requirement that the Secretary of State must inform victims of crime of his decision to release prisoners on HDC unless there are exceptional reasons for not doing so.
HDC is a well-developed scheme which primarily concerns the promotion of resettlement, a key element in the purposes of sentencing. The scheme is based on individual risk assessments of prisoners carried out by prison governors. We think that the amendments should be resisted because they would seriously reduce the scope for governors to make reasoned judgments and release suitable prisoners.
Because the schemes have been in operation for some time, it has been possible to evaluate the judgment of prison governors. The evidence shows that they do appear to be well informed and skilled at making those judgments, when considered as regards the extent to which the HDC scheme is abused, or where there is failure as a consequence.
All prisoners released on HDC are in any event due to be released into the community within a short time. HDC provides a managed return to society for prisoners in the vital first few months of their release, while providing protection to the public. This applies
820
equally to prisoners serving longer sentences as to those low-risk prisoners whom the courts have determined are suitable for intermittent custody.
We think there is an equally good reason why it should be tried and used for prisoners who have been serving long sentences. Those sentences will come to an end and it is in the interests of civil society generally to try to maximise the resettlement of such prisoners back into the community in ways that reduce the likelihood of reoffending. That is how HDC bites: it provides a technological means of enforcing movement restrictions according to the risk assessment before there is full release.
We further think that Amendment No. 204B should be rejected because preventing release under the scheme would have an unfair impact on intermittent custody prisoners. Potentially they could serve longer sentences than custody plus prisoners with the same custodial period.
There is already statutory provision for the victims of serious crimes to be informed of release arrangements. These apply to those released on HDC as they do to any other method of release. In addition, probation areas have the discretion to provide information to the victims of other crimes as well.
At the risk of repeating myself, I want to emphasise that HDC is primarily a tool to facilitate resettlement and it is with this in mind that the Secretary of State will make a decision as to eligibility, ruling out those offenders who are judged to be high risk.
I shall speak in a little more detail about the issue of informing victims of a decision to release prisoners on HDC. A statutory duty already exists in Section 69 of the Criminal Justice and Court Services Act 2000 for the National Probation Service to contact all victims of sexual and violent crimes where the offender was sentenced to imprisonment for 12 months or more. Victims are asked whether they wish to make representations about whether the offender should be subject to certain conditions or requirements upon final release, and whether the victim wishes to receive information about release arrangements.
Where resources allow, probation areas have the discretion to offer the contact scheme to victims not included in the standard list of offences where it is appropriate. An additional statutory duty contained in the HDC provisions would duplicate the existing provisions, but would also widen the requirement to contact victims of any crime, irrespective of its seriousness.
I turn now to the relationship between HDC and intermittent custody. HDC operates by kicking in on the days that the offender would otherwise be held in custody. He will therefore be on curfew on those days, while on the other days of the week he will be on his intermittent custody licence, with its conditions. So, in that sense, the person serving the sentence will benefit from being on HDC; otherwise he would have been caught.
The noble Lord, Lord Carlisle of Bucklow, has asked about these changes to the parole system. The short answer to that is that the Halliday report, which

821
looked into these issues, set out a system of automatic release at the halfway point as part of a process of trying to increase the likelihood that there would be stronger supervision arrangements in place over the second half of the sentence. The most specific example of an immediate benefit is that anyone released at the halfway point will be under the terms of the licence restrictions right throughout the second half of his term. Under current arrangements, after the three-quarter point has been passed, there is no effective control. In particular, for those serving long sentences, one can see that this system strengthens the ability of the Home Secretary to control a person under a form of governance.
The noble Lord also asked about the 135 days' release. The maximum HDC curfew point is currently 135 days. That came into force on 14th July through an affirmative order, which was discussed in this House and in another place. That does not necessarily mean that it will satisfy the noble Lord, Lord Carlisle, but at least it was considered in this Chamber at that point.
I hope that those comments on these amendments are helpful to noble Lords. They will put into the record the arguments for, at least, further reflection.
Lord Carlisle of Bucklow: I am grateful for and accept the explanation why the Government have decided to change the system from one in which a prisoner is merely eligible for parole at the half-way stage to one in which he is automatically released from the second half of the sentence.
I still do not understand—with respect, I do not believe that the Minister answered the question— where the 135 days comes in. Surely that must mean that, as a result of whoever's whim it is, people given the same sentence will find themselves serving different lengths of time in prison.
Lord Filkin: I do not want to give the impression that I am avoiding the question, but I genuinely believe that I would give a better answer if I write to the noble Lord, Lord Carlisle, on that issue setting out the full argumentation. Perhaps he will bear with me in that respect.
Viscount Bridgeman: I am grateful to my noble friend Lord Carlisle of Bucklow for his support and to the Minister for his reply. We shall read Hansard carefully in anticipation of the Minister's letter. We may need to revisit this issue from a slightly different perspective on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin Lord Filkin moved Amendment No. 204:
Page 137, line 5, leave out "aged 18 or over"
The noble Lord said: In moving the amendment on behalf of my noble friend Lady Scotland of Asthal, I shall speak also to Amendment No. 205. The amendments seek to extend the provisions for early release on home detention curfew to under-18s.
822
Under-18s were originally excluded from the scheme because of concern that electronic tagging might not be appropriate for young offenders. Before making a judgment on that question, the Government wished to await the evaluation of the curfew order pilots with electronic monitoring for 10 to 15 year-olds. The pilots have now been evaluated and the disposal has been made available throughout England and Wales.
In the years since the home detention curfew was introduced for over-18s, the use of electronic monitoring for under 18 year-olds has become increasingly widespread. For example, eligible offenders subject to a detention and training order of eight months or more are released one or two months early on an electronic tag.
Detention training orders are subject to a separate set of legislative provisions under Section 91, but the Government see no good reason why Section 91 offenders who are under 18 and meet the eligibility criteria should not also be released on an electronic tag. The amendments respond to ongoing litigation and reflect amendments recently made by order to current legislation.
Amendments Nos. 204CA to 204CF amend the method of calculation of the period spent on home detention curfew, which is tapered according to the length of the sentence. The tapering mechanism as currently drafted is not consistent with the 1991 Act as it significantly reduces the maximum curfew period available for different sentence lengths. For example, under the 1991 Act, a prisoner serving a 12-month sentence would serve three months in custody and three months on home detention curfew. As the clause is currently drafted, such a prisoner would serve four-and-a-half months in custody and one-and-a-half months on curfew. The amendments will correct this position and provide curfew periods consistent with the maximum curfew periods currently achieved through the Criminal Justice Act 1991.
Amendment No. 204MA prevents prisoners who have been recalled to prison for failing to comply with the curfew condition from being re-released on HDC during the current sentence. It is not appropriate for prisoners who have breached their curfew to be immediately eligible for consideration for release on HDC for reasons that I hope are self-evident. The amendment prevents this possibility. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 204A to 204C not moved.]
Lord Filkin Lord Filkin moved Amendments Nos. 204CA to 204CF:
Page 137, line 13, leave out "8" and insert "6".
Page 137, line 15, leave out "6" and insert "4".
Page 137, line 16, leave out "three-quarters" and insert "one-half".
Page 137, line 18, leave out "56" and insert "42".
Page 137, line 20, leave out "42" and insert "28".
Page 137, line 21, leave out "three-quarters" and insert "one-half".
On Question, amendments agreed to.
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 204D:
Page 137, line 23, at end insert—
"( ) the court has recommended to the Secretary of State that subsection (1) should not apply in the interests of justice,"
The noble Viscount said: In moving Amendment No. 204D, I shall speak also to Amendments Nos. 204E to 204M and to Amendment No. 204N, all of which are tabled in the names of my noble friends Lady Anelay and Lord Kingsland.
The amendments are tabled in order to probe the precise scope of the expanded home detention curfew provisions contained in Clause 236. A number of categories of prisoner are already excluded by statute from the HDC scheme, such as those liable to deportation and registered sex offenders. The amendments seek to add to those excluded categories and to ascertain the arrangements by which a variety of types of prisoner will be released on the modified HDC scheme provided for in the Bill.
Amendment No. 204D would allow the court to specify when sentencing that a prisoner should not be released early on the HDC scheme. In the case of those offenders from whom the court considers the public need protecting but who might otherwise qualify for the HDC scheme, would not this enable victims and the public to feel sure that an offender would not be released up to four months earlier than the standard release date? This might be a particularly important safeguard in the case of those serving very long sentences indeed, to which the next three amendments in the group relate.
Amendments Nos. 204E, 204F and 204G would exclude from the HDC scheme those offenders sentenced to terms of at least seven, 10 or 14 years respectively. Such offenders are presently excluded from the HDC arrangements by virtue of the fact that the scheme applies only to short-term prisoners serving less than four years. However, they will be eligible for release on HDC if the Bill is enacted because the restriction of the scheme to short-term prisoners is not replicated in Clause 236.
The amendments simply pose the question of whether all prisoners serving determinate sentences— perhaps those serving sentences of 14 years or more for very serious offences such as drug trafficking, armed robbery, manslaughter or even terrorist crimes— ought to be eligible for early extra release on the HDC scheme. Can the Minister say whether Clause 236 will allow those already serving such sentences—of whom there must be many in Her Majesty's prisons—to be released early on HDC, or will it apply only to those sentenced after commencement?
Does the Home Secretary intend to operate any separate policy in relation to those sentenced to long terms of imprisonment or who have committed the most serious offences, or will the same eligibility criteria apply regardless of whether the sentence is 12 months or 12 years?
As regards Amendments Nos. 204H, 204J and 204K, can the Minister clarify whether any special policy will be put in place in respect of those who have
824
been sent to prison after committing an offence against a child or a drug trafficking offence, particularly if they have been sentenced to long terms of imprisonment for very serious crimes?
Will he also comment on the scope for the early release of those who have been convicted of the specified violent or sexual offences referred to in Clause 215 but who have been sentenced to ordinary determinate terms of imprisonment rather than detention for public protection or extended sentences? What criteria will govern the release of such prisoners, who may have committed very serious crimes?
Amendment No. 204L would prevent the release of a prisoner on HDC if the Secretary of State's view was that it was more likely than not that the prisoner would re-offend while on HDC. I sincerely hope that this is indeed the position at the moment in relation to those who are risk assessed after being released early on HDC and that the Minister can confirm that the amendment is reflected in the Secretary of State's policy.
Will the Minister also comment on the risk assessment for those serving short prison sentences who are released on the presumptive HDC scheme introduced last year who, as I understand it, do not have to go through precisely the same sort of checking as those who are released on the standard scheme? Will the Minister, in responding to the amendment, also comment on the risk assessment process more generally, and how successful it has been in preventing the release of those who might reoffend while on HDC?
I commend Amendments Nos. 204M and 204N to the Minister as alternatives to government Amendment No. 204MA, which was debated in the previous group. Amendment No. 204N would prevent the release of a prisoner who had on any occasion— whether during his present sentence or a previous one—been released on the home detention curfew scheme. While I welcome the Government's decision to include Amendment No. 204MA, I simply ask the Minister why the Government think that someone who has breached the licence conditions of a previous early release on HDC so drastically that he or she has been recalled to prison is a fit person to benefit from the scheme a second time.
Amendment No. 204M is on a similar point. Why should a person who has previously been released early on HDC and has committed a further serious offence, justifying a new prison sentence, be released early on HDC a second time? I should be grateful for clarification of the Government's position on these points. I beg to move.
7 p.m.
Viscount Colville of Culross: I do not know what the noble Lord, Lord Filkin, will do about these amendments, but I should be very grateful to be enlightened either by him or the noble Viscount, Lord Bridgeman, on Amendment No. 204L. This seems to be another of these occasions on which we are enacting power for the Secretary of State, without advice from

825
anybody, to refuse to give somebody his liberty. Presumably he will have to give reasons for this. Is this consistent with the European Convention on Human Rights and therefore the Human Rights Act? I seriously doubt whether it is but, at any rate, it certainly deserves consideration.
Lord Filkin: I should like to read some general principles into the record and turn to the specifics later on.
Amendment No. 204L requires the Secretary of State to exclude prisoners who are likely to commit an offence during the curfew period from release under the scheme. The well established risk assessment process carried out by prison staff already takes into account the likelihood of reoffending. In fact, it is, self-evidently, one of the central focuses for making that judgment. Governors do not, nor should they, release prisoners if they consider that there is a significant risk that the prisoner will reoffend during the curfew period. It is impossible for the risk assessment process to guarantee a successful curfew, but governors have proved themselves to be effective assessors of risk. The vast majority of curfewees—if I can use that expression—complete the curfew period without any problems at all. Less than 3 per cent of curfewees are reported to reoffend during the curfew period.
The noble Viscount, Lord Bridgeman, also asked the question the other way round. In a sense it was a comment on the risk assessment and on preventing the early release of people who should not be released early. It is almost impossible to know what people who had not been released might have done if they had been released. I am not being flippant—all we know is what happened to those who were released. Again, one would expect that governors, mindful of their duties, would be prudent and cautious on early release as the statistics I have given bear out.
Amendment No. 204M seeks to prevent prisoners previously released on HDC being released on the scheme at any time in the future. The amendment would limit the scheme to prisoners who had never previously been released on HDC, even where they had completed the curfew period successfully. We consider that the risk assessment process adequately takes account of the previous criminal history of prisoners and persistent offenders, and that it would be unduly harsh to limit eligibility to first-time offenders.
Amendment No. 204D seeks to establish a right for the sentencing court to prohibit an offender's future release on HDC,
"in the interests of justice".
The amendment would mean that sentencers could direct, at the point of sentence, that an offender must not be released on HDC. Suitability for HDC might therefore be determined months or even years in advance of a prisoner's release date and would remove the discretion of the Secretary of State—or, more specifically, the governor—in the decision-making process.
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HDC assessments are purposely undertaken near to the potential date for release so that the most relevant and up-to-date information is taken into account. That feels right. For example, behaviour in custody, success in addressing offending behaviour and domestic circumstances are all matters which are most appropriately considered near to the release date. In some cases it is only near to the release date that they can be considered. The seriousness of the original offence and the previous criminal record are also taken into account and should be taken into account.
Amendments Nos. 204E, 204F and 204G seek to limit the maximum eligible sentence length to 14, 10 and seven years respectively. The amendments would, in varying degrees, limit access to early release for longer sentence prisoners. This would reduce the resettlement opportunities for such prisoners and would have a detrimental impact on prison population projections.
Resettlement opportunities are the central focus. HDC is intended to make resettlement more likely. People who are serving long sentences will come out at some point in time—that is a fact. The issue is how to maximise the success of that. The discretion is with the governors, they have to make the judgment. It is not a question of whether to impose a custodial sentence— that has already been decided by the court—but whether to grant abatement. It is wise to give them that discretion across the full span of offences. No doubt they will be even more mindful of people who are serving longer sentences and have had repeated criminal convictions when they exercise that judgment.
Amendments Nos. 204H, 204J and 204K seek to exclude broad categories of offenders on the basis of offence committed rather than the risk presented at the point of release. For the same reasons, we think that the assessment of the risk of reoffending at the point of release is the right point at which to make the decision. It is good that it is not unduly fettered.
Amendment No. 204H seeks to exclude prisoners who have committed an offence against a child within the meaning of Part 2 of the Criminal Justice and Court Services Act 2000. But many of the offences listed in that part are sexual offences which already render prisoners statutonly ineligible in these circumstances. Offences involving child cruelty fall under the administrative presumption against release, which was introduced on 14th July 2003. So I hope that gives strong comfort to the noble Viscount, Lord Bridgeman.
Amendment No. 204J seeks to exclude prisoners serving sentences for offences involving the production and dealing in class A drugs. Amendment No. 204K seeks to exclude prisoners serving sentences for violent and sexual offences listed in Schedule 12. This would exclude those not given extended sentences for these offences.
Prisoners subject to the registration requirements of the Sex Offenders Act 1997 are already excluded from HDC. Other sexual offenders and some violent offenders are subject to the administrative presumption against release.

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Amendment No. 204N—the last amendment in this group, noble Lords will be relieved to hear—seeks to exclude prisoners who have previously been released on HDC and have been recalled for breaching the curfew conditions.
The reason the Bill removes the exclusions set out in the 1991 Act is that it was considered that previous HDC breaches, which may have taken place a number of years ago, would unnecessarily limit access to HDC for otherwise suitable prisoners. One trusts that prison governors are not foolish. For someone who has previously breached an HDC, the burden of the governor's consideration as to whether that person is likely to breach in the future must be a material consideration. But we do not think there should be an automatic exclusion because there could be circumstances in which a governor quite wisely decides there has been a change of behaviour sufficient to justify the release.
I was also asked whether the amendments are compatible with the ECHR and our own Human Rights Act. They are indeed, although if it would be helpful I would be delighted to write in more detail to the noble Viscount, Lord Colville, on that point, with copies to those on the Opposition Benches.
I was asked about the risk assessment process. Governors consider a range of issues before deciding to grant release, such as current offences, previous criminal history, behaviour in custody and success in addressing offending behaviour. They also judge the risk of breaking the curfew or of reoffending during the curfew period. Each individual case is different, and the risk assessments and process reflect that. Those convicted of drug dealing offences are not considered for release under the presumptive scheme, and governors may refuse release if there are compelling reasons for doing so.
] fear that I am in danger of boring the Committee. Let me conclude by saying that 90 per cent of offenders have successfully completed HDC without any problems, and less than 2 per cent have been reported as reoffending on HDC. I hope that clarification is helpful.
Viscount Colville of Culross: I am grateful to the Minister for saying that he will write to me. I am interested only in the point in relation to Amendment No. 204L, because it is different from the others. If he could tell me about that, it would be quite enough.
Lord Filkin: I was threatening not a very long letter, but a focused letter on that specific point.
Viscount Bridgeman: I am grateful to the Minister for undertaking to write to the noble Viscount, Lord Colville, as the question was addressed jointly to me. I am also grateful for a comprehensive reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 204E to 204 M not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 204MA:
Page 137, line 34, at end insert—
"(ff) the prisoner has been released on licence under this section during the currency of the sentence, and has been recalled to prison under section 244(1 )(a),'
On Question, amendment agreed to.
[Amendment No 204N not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 205:
Page 138, line 11, leave out paragraph (a).
On Question, amendment agreed to.
Clause 236, as amended, agreed to.
Clauses 237 to 239 agreed to.
Clause 240[Licence conditions]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment
Nos. 205A to 208:
Page 139, line 37, after "(6)" insert "and section (Licence
conditions on re-release of prisoner serving sentence of less than
12 months)"
Page 140, line 1, after "include" insert—
"(i)"
Page 140, line 5, at end insert "and
(ii) such other conditions of a kind prescribed for the purposes of this paragraph as the Secretary of State may for the time being consider to be necessary for the protection of the public and specify in the licence."
Page 140, line 31, leave out from "licence" to end of line 32 and insert "at any time while a curfew condition required by section 242 is in force"
Page 140, line 36, after "subsection" insert "(2)(b)(ii) or"
On Question, amendments agreed to.
Clause 240, as amended, agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment
No. 208A:
After Clause 240, insert the following new clause—
"LICENCE CONDITIONS ON RE-RELEASE OF PRISONER SERVING SENTENCE OF LESS THAN 12 MONTHS
(1) In relation to any licence under this Chapter which is granted to a prisoner serving one or more sentences of imprisonment of less than twelve months and no sentence of twelve months or more on his release in pursuance of a decision of
the Board under section 243 or 245, subsections (2) and (3) apply instead of section 240(2).
(2) The licence—

(a) must include the standard conditions, and

(b) may include—

(i) any condition authorised by section 62 or 64 of the Criminal Justice and Court Services Act 2000 (c. 43), and

(ii) such other conditions of a kind prescribed by the Secretary of State for the purposes of section 240(4)(b)(ii) as the Secretary of State may for the time being specify in the licence.

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(3) In exercising his powers under subsection (2)(b)(ii), the
Secretary of State must have regard to the terms of the relevant
court order.
(4) In this section "the standard conditions" has the same

meaning as in section 240."
On Question, amendment agreed to.
Clauses 241 and 242 agreed to.
Clause 243 [Recall of prisoners while on licence]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment
No. 208B:
Page 141, line 42, at end insert—
"(4A) In the case of an intermittent custody prisoner who has not yet served in prison the number of custodial days specified in the intermittent custody order, any recommendation by the Board as to immediate release on licence is to be a recommendation as to his release on licence until the end of one of the licence periods specified by virtue of section 176(l)(b) in the intermittent custody order."
On Question, amendment agreed to.
Clause 243, as amended, agreed to.
Clauses 244 to 252 agreed to.
Clause 253 [Interpretation of Chapter 6]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment
No. 208C:
Page 146, line 36, at end insert—
""intermittent custody prisoner" means a prisoner serving a sentence of imprisonment to which an intermittent custody order relates;"
On Question, amendment agreed to.
Clause 253, as amended, agreed to.
7.15 p.m.
Lord Lloyd of Berwick Lord Lloyd of Berwick moved Amendment No. 209:
Before Clause 254, insert the following new clause—
"AMENDMENT TO MURDER (ABOLITION OF DEATH PENALTY) ACT 1965
In section 1 (1) of the Murder (Abolition of Death Penalty) Act 1965 (c. 71) (abolition of death penalty for murder), for the word "sentenced" there is substituted "liable"."
The noble and learned Lord said: We come to a very important and, I suspect, very contentious part of the Bill.
Nearly 40 years ago, the sentence of capital punishment was abolished and a sentence of imprisonment for life was substituted. Nearly 15 years ago, a Select Committee of this House was set up to consider the definition of the crime of murder and, in particular, whether the sentence of life imprisonment should be mandatory or discretionary. The chairman of that Select Committee was Lord Nathan, whom I believe to have been a much respected Member of the House. Many distinguished Members of the House sat on the committee, including my noble and learned friend Lord Ackner, and the noble Lords, Lord Windlesham, Lord Harris, and Lord Campbell of Alloway.
The committee heard a great deal of evidence about how the mandatory sentence had worked in practice. The evidence came from judges, academics and from many others, including the noble Viscount, Lord
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Colville of Culross. With only one dissenting voice, the committee reached the conclusion that the sentence for murder should not be mandatory.
The reasoning was simple. Everything that was intended to be achieved in 1965 by making the life sentence mandatory could be equally well achieved, and perhaps better, by making it discretionary, so that the sentence of life imprisonment could be reserved for the really serious cases—that is to say, cases that on any view deserved a life sentence. In that way, murder would be brought into line with other very serious crimes that carry a maximum sentence of life imprisonment.
The amendment would give belated effect to the recommendation of the Nathan committee. The report was debated in the late 1980s, and almost everyone who spoke in the debate spoke in favour of the committee's recommendations. If the amendment were passed, the rest of Chapter 7 of Part 12 of the Bill, including Schedule 17, would fall to the ground.
The argument in favour of making the life sentence mandatory is, of course, that murder is a uniquely serious crime. That is the argument which is always advanced but I hope to persuade the Committee that that is not so. Even if the crime of murder were confined to the deliberate taking of another life— which it is not—the seriousness of the crime would still vary greatly from one case to another. No one would argue, for example, that a life sentence is always appropriate in a case which is in truth a case of what is often called "mercy killing".
The Committee will perhaps remember the case of the Maw sisters in the 1980s on which the Nathan Committee commented. They were found guilty of killing their father, and there was no question but that the killing was deliberate. However, the sentence of three years which was imposed on the Maw sisters was generally regarded as being too heavy, not too light, because of the circumstances of the particular case. So deliberate killing of another does not of itself make the crime of murder uniquely serious.
However, the crime of murder is not confined to the deliberate taking of another life. The intention to cause the victim serious harm— as all the lawyers present will know only too well—is enough. If the mandatory sentence for murder were abolished— which is the purpose of this amendment—judges could then distinguish between an intention to kill and an intention to cause serious harm falling short of an intention to kill but which happens to result in death. They could then make the punishment fit the particular crime of murder instead of imposing the same punishment on all. That is why the judges who gave evidence to the Nathan Committee, and others, were overwhelmingly opposed to the mandatory sentence of life imprisonment for murder.
Let me give an example from my own experience because I always find that one example carries more weight than any amount of theoretical argument. Members of the Committee may remember the Clegg case. Clegg was a private soldier in the Parachute Regiment serving in Northern Ireland. He tried to stop

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a car after it had been driven through a checkpoint. He fired after the car had passed him and killed one of the passengers who happened to be a joyrider. On the facts as found by the noble and learned Lord, Lord Hutton, then Lord Chief Justice of Northern Ireland, Clegg was found guilty of murder. That verdict was inevitable even though Clegg had acted in the course of his duty.
Clegg then appealed to the House of Lords and his conviction was upheld—a decision of which I was a party. It was not open to us to reduce the conviction to one of manslaughter so there was, as the law now stands and stood then, no alternative to a sentence of imprisonment for life. Fortunately, there was a rehearing on the facts and on that rehearing the conviction was quashed. So in that sense and in that sense only the story could be said to have had a happy ending.
But the point of referring to the case is simply this: to my mind it was quite wrong that Clegg should have had to be sentenced to imprisonment for life for a crime which would otherwise have carried a short, perhaps very short, sentence of imprisonment. To have to impose a life sentence in such a case makes a mockery of the sentencing process, and may even paradoxically reduce the deterrent effect of a true life sentence, as the Nathan Committee pointed out. It is the very opposite of honesty in sentencing to which I believe this Government are committed.
So let us not hear any more about murder being a uniquely serious crime. Some murders are, of course, as serious as any crime could be but others emphatically are not. To have to impose the same nominal sentence for all simply makes no sense. I hope that when she replies the Minister will not rely on that old, old cliche that to abolish the mandatory sentence for murder would send out the wrong signal. If she says that, I should be very interested to know to whom the signal is intended to be sent and by whom it is intended to be received. I beg to move.
Lord Ackner: I am a co-proposer of the amendment and I should like to add a little to what has been said. It is often thought that the mandatory life sentence was a compromise which induced the legislature to drop the mandatory death sentence. It is often thought that to alter that would be going back on that compromise. Those who say that are wrong about what happened.
I shall read from the report of the Nathan Committee at page 32. It stated:
"During the debates on the Murder (Abolition of Death Penalty) Bill in 1965, there was a strong body of opinion in Parliament that the sentence for murder should be discretionary. The opposition to the mandatory sentence was led by the then Lord Chief Justice, Lord Parker of Waddington, who moved an amendment at the Committee Stage to make the sentence discretionary. His amendment was accepted by 80 votes to 78. Eleven Peers who held high judicial office voted. All but one were in favour of the amendment. The exception was the Lord Chancellor, Lord Gardiner, whose opposition was in accordance with Government policy. In the face of Government opposition and disquiet among the sponsors of the Bill, Lord Parker proposed alternative amendments on Report which maintained the mandatory life
832
sentence, but gave the court power to recommend a minimum period of time which, in its view, should be served. These amendments were accepted without a division in either House".
There is this constant reference to murder being a uniquely heinous crime. Lord Hailsham, a former Lord Chancellor, dealt with that point in his speech in R v Howe in the House of Lords in 1987. He said:
"Murder, as every practitioner of the law knows, though often described as one of the utmost heinousncss, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors murders to the almost venial, if objectively immoral, 'mercy killing of a beloved partner".
The report continues:
"Some cases of murder will be less grave than some cases of attempted murder, or of manslaughter, or of causing grievous bodily harm with intent. The organisation JUSTICE has examined in some detail over 200 cases over the last 30 years and concluded that the circumstances giving rise to murder vary infinitely so that the relative heinousness of the crime covers the whole spectrum from the tragic mercy killing to the most sadistic type of sex murder of young children".
The noble and learned Lord who was then Lord Chief Justice, who gave evidence before the committee, made the point—it is very important— that, in discretionary life cases, the seriousness of the offence is often greater. The report recorded that:
"The opinion of the Lord Chief Justice is that the problem of dangerousness arises in a more acute form in relation to offences other than murder. Rapists and arsonists may be much more likely to commit the same sort of offences than a murderer; and they are dealt with by passing a life sentence or a sentence which is somewhat longer than would have been necessary without the element of risk. The abolition of the mandatory sentence would involve only a slightly increased risk.
In so far as a mandatory life sentence is justified by the special problems of estimating the chances of future violence by those who have killed once, the existence of the special defences such as diminished responsibility and provocation"—
as Members of the Committee know, they reduce murder to manslaughter—
"introduced in earlier times for different purposes, undermines the logic of the sentence by excepting from its scope just those offenders who are most likely to prove dangerous for the future".
The Home Secretary has now lost his power to decide how long a murderer should remain in prison. That happened as a result of a decision of the legal committee of this House, which advised that it would be contrary to European jurisprudence for a politician to have any say in sentencing. Subsequently, a decision of the European Court of Human Rights said just that. What we seek—that the sentence on murder should be discretionary—will no longer take away from the Home Secretary something that he possesses. That is gone already, which was really the political justification for maintaining that the sentence be mandatory, with discretion not entering into it.
I therefore submit that it is quite out of date to hang on to that anomaly. It is wrong from the point of view of evaluating the nature of the crime. A consistent approach—leaving the judges to decide the appropriate sentence—should be allowed to stay. I make it perfectly clear, as did the report, that there would be very lengthy sentences in the really serious

833
cases and, in some cases, there would be whole-life sentences so that the murderers never came out of prison. I support the amendment.
7.30 p.m.
Lord Thomas of Gresford: The noble Baroness, Lady Kennedy of The Shaws, talked earlier about the duty of a government to lead and educate public opinion. However, on the question of a mandatory life sentence no government have yet had the guts to lead and educate the public on the realities of murder cases, about which the noble and learned Lords have spoken so movingly.
Those of us who regularly practise in the courts know only too well that there are great differences between cases. For example, the noble and learned Lord, Lord Lloyd of Berwick, referred to the case of Clegg, a soldier. As he spoke, my mind was taken back to a case where I was on one side and Lord Williams of Mostyn—I have been thinking about him very much recently, for obvious reasons—was on the other. That involved the miners during the miners' strike who dropped a concrete block and killed a taxi driver in a taxi taking a worker to work. In all sorts of cases, the degree of culpability differs. Judges are well used to distinguishing a killing caused through depravity from one caused through weakness or a domestic quarrel that is over in a flash, and so on.
The noble and learned Lord, Lord Ackner, referred to the fact that the mandatory life sentence distorts the law. The law of provocation is a highly difficult and complex area that always causes problems. It causes many trials to take place where the facts are gone into at length over many days, simply to establish whether the jury is satisfied that the defendant was provoked into what he was doing and that the provocation was such that a reasonable man would have been so provoked, and therefore the crime is reduced from murder to manslaughter. The problems that have arisen with the law of provocation, particularly with people who suffer physical or mental disability, distort the law entirely.
Again, issues are discussed at length about the intention of a particular person. We have no distinction in this country between an intent to kill and one to cause some really serious injury. Those distinctions exist in other jurisdictions, where differences of sentence can then be passed.
The Liberal Democrats have for many years strongly supported the abolition of the mandatory life sentence. We are wholly behind the amendment.
Lord Clinton-Davis: I was much moved by the speeches of the noble and learned Lords who spoke to the amendment. They made a very powerful case. I do not think that I have considered carefully the consequences of the provision. The noble and learned Lord, Lord Lloyd, said that Chapter 7 would be abrogated, as I understand it. I had not realised— perhaps it is my fault—that that would be the case.
834
We are considering a vital amendment at 20 minutes to eight. The whole Committee should consider carefully what has been said. I therefore ask the noble and learned Lords if they would be prepared at this late stage to come back to the issue on Report. 1 ask that because they have raised a most important issue. I do not know how many people have spoken tonight— maybe three or four—but I am not sure that the issues on which they have embarked have been carefully considered. We need to do that, because what has been said is of immense importance to the credibility of this place.
I therefore ask the noble and learned Lords whether they are prepared to do that, because we should not go into the Lobby lightly about this issue. What has been said today should be considered by my noble and learned friends very carefully, but I am sure that the consequences are of enormous importance. For that reason, I beg the noble and learned Lords to say today that they are prepared to return to the matter on Report.
Lord Renton: I am sure that the noble Lord who has just spoken is quite right in saying that this is a very important matter and that the final decision should be taken by your Lordships not tonight, but on Report. I should confess that I voted and spoke against the 1965 Act. That may be because I had already done what very few living people have done: I prosecuted and defended in a number of murder cases as long ago as 1938 and 1939, because I was the so-called circuit junior of the south-eastern circuit. Also, during my four and a half years as a Home Office Minister, where the late Lord Butler of Saffron Walden was the Home Secretary throughout, the death penalty was still in existence. He had to deal with those matters on his own. He bravely never tried to pass the buck to any of us or to any of his civil servants. He took the responsibility himself of deciding whether the death penalty should be imposed.
Those of us who were against the abolition of the death penalty were worried because we felt it almost certain that the number of murders would increase, and I am sorry to say that they have increased. Although they fluctuate a bit, they are now of a numerical character that never existed when there was a death penalty. However we must take things as we find them and not as they are. There is no question of the death penalty being restored. As has been so lucidly articulated by the noble and learned Lord, Lord Lloyd of Berwick, supported by the noble and learned Lord, Lord Ackner, the question is whether the Home Secretary should have the discretion to decide the lengths of the time to be spent in prison.
I must confess that I have, I hope, learnt to live with the times, in spite of the views which I used to hold and which I have already described. There is a lot to be said for what the noble and learned Lord has described. I will be interested to hear what the noble Baroness, Lady Scotland of Asthal, has to say about that, but I am sure that both Houses of Parliament—and the Bill provides the opportunity—should now apply their minds to whether the Home Office should have

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discretion, as the noble Lord, Lord Thomas of Gresford, also suggested, or whether the rather rigid results should be prolonged.
That is a very important matter. I hope that we do not decide on it tonight. I hope that it will come up again on Report as the noble Lord has suggested.
Lord Borrie: It is appropriate that in 2003, nearly 40 years after the 1965 Act abolished capital punishment, the matter of a mandatory life sentence should be questioned. We must all be grateful to the noble and learned Lords for introducing their amendment. They have both made powerful and eloquent speeches. The most powerful part of the speech of the noble and learned Lord, Lord Lloyd, was his indicating how false, how dishonest, how unreal and how unhelpful to the public is the mandatory life sentence, which in so many circumstances does not mean what it says and is not intended by the judge to mean what he has to say. That is an unreality with which we have lived over all these years, for reasons which we can partially understand from the history that the noble and learned Lord, Lord Ackner, has described. The reasons are political in part, such as the need to reassure the public, many of whom were not happy about the abolition of capital punishment. Surely, therefore, it is timely.
I support my noble friend Lord Clinton-Davis in asking that the proponents of the amendment do not push it tonight. If it were carried, there would be some unfortunate outcomes, including our then being unable to discuss the controversial detail, which deserves to be discussed, of the principles set out in Schedule 17 of what different types of murder justify different types of minimum starting points for sentencing and whether someone other than the judge—namely, Parliament—should become involved with detail of this sort. That is worthy of discussion, these many years on since 1965, as well as the points that have been so usefully and helpfully raised by the noble and learned Lords.
7.45 p.m.
Baroness Scotland of Asthal: 1 add my voice to those who commend both the noble and learned Lords, Lord Lloyd and Lord Ackner, on their erudite presentation of the matter, but I hope that they will forgive me for saying that in the comments which they made with such passion they have been reciting a view that has been recited repeatedly since 1965. We therefore have a dividing line on which way the argument falls.
If I repeat some of the issues that we have raised in the past, I should make it clear that I do so because they do not lose their poignancy or their importance. In discussing the issue, it is important for all of us to bear in mind the victims who are subject to those offences and their families. It is true—and a number of noble Lords will have heard it themselves—that for those families who have lost a loved one, life really does mean life, because the people whom they love will never return.
Perhaps I may with some temerity trespass on those issues which are perceived to be mercy killings when a member of a family makes a decision, perhaps with the
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victim, to terminate the life of that loved one and to put him "out of his misery". Members of the Committee will know that even such killings do not necessarily meet with universal approval within the family of the victim. There can be great pain, great resentment and great anger. It would be to fail to recognise the delicacy of these situations if we did not put the issue against that back-cloth.
Members of the Committee will also know that when talking to the families of such victims there is a feeling bordering on rage as regards the failure to recognise that the life which has been taken away should be mirrored by a life sentence for the perpetrator, albeit that there is an understanding that the whole-life tariff may not necessarily be served in custody but in part on licence in the community. I was pleased to note in the elegant remarks of the noble and learned Lords, Lord Lloyd and Lord Ackner, a recognition that, historically at least, murder has occupied a special place in our criminal law. I understand what the noble Lord, Lord Thomas of Gresford, says: that many would have wished that not to be the case.
The special status of the offence arises not only from the tragedy of loss of life, but also from the murderer's intention that the victim should die, or at least should suffer serious harm. Those characteristics of the offence obtain whatever the circumstances in which it occurs. The sentence of mandatory life imprisonment reflects this unique nature of the offence and the fact that the public rightly regard it as a particularly abhorrent crime. It is a consolation to relatives in such cases that society marks its disapproval of the crime of intentionally depriving another of his life by imposing a life sentence.
Since 1965, Parliament has on numerous occasions discussed these issues and had an opportunity to decide whether to abolish the mandatory life sentence for murder. There has not been any occasion when the majority of both Houses has been in favour of doing so.
There is a clear distinction between the mandatory life sentence for murder by adults and discretionary life sentences. The former is characterised as a mandatory sentence automatically imposed by law as a punishment reflecting the unique gravity of the offence. The discretionary life sentences, on the other hand, are justified primarily by considerations of the offender's character, mental state or age, and his resulting dangerousness.
This distinction between the mandatory and discretionary sentences has been recognised and confirmed in a number of human rights cases. Most recently, appeals in the case of Lichniak & Pyrah found that the mandatory life sentence was compatible with the convention rights. The court also noted in its judgment that,
"section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965 represents the settled will of Parliament".
and,
"it may be accepted that the mandatory life penalty for murder has a denunciatory value, expressing society's view of a crime which has long been regarded with peculiar abhorrence".

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If I may respectfully say so, that Judicial Committee of your Lordships' House had a particularly strong court. Sitting in the House, determining this matter, were the noble and learned Lords, Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry. Members of the Committee will know that that was a strong court indeed. They spoke and what they said chimed very much with what the country seems to desire.
As your Lordships will be aware, offenders are not lightly prosecuted for murder. There are a number of partial defences to murder—such as diminished responsibility or provocation—which result in commuting the charge to one of manslaughter. This ensures that those who are convicted of murder will have committed a uniquely serious crime. This ensures, too, that those who are convicted of murder will have committed this crime in circumstances where the court feels it was justified to so mark it. The Law Commission is currently examining the operation of partial defences to murder—taking up the point made by the noble Lord, Lord Thomas of Gresford— provocation and diminished responsibility, including the proposed introduction of a partial defence of self-defence where an excessive amount of force was used. The intention is to complete the review early next year. I therefore understand what the noble and learned Lord, Lord Ackner, said about those issues.
I agree, too, that there is a great variety in the nature and facts which give rise to murder. The framework which we have set in place, which we will discuss later, enables a court to make that distinction when differentiating between those who may fall into the category such as the noble and learned Lord, Lord Lloyd, mentioned in terms of mercy killings, and those at the other end, who the noble and learned Lord, Lord Ackner, acknowledged may be subject to a whole-life tariff. That distinction is there to be seen.
The death penalty for murder was abolished on faith that the criminal justice system would continue to treat the offence with the utmost gravity. That was clear. We believe that loss of the mandatory life sentence for murder would undermine public confidence in the criminal justice system's ability to deal appropriately with these most serious crimes. This Government have sought to lead. But it is only right to say that in leading we have also sought to listen: to listen to what victims and witnesses say; to listen to what perpetrators say; and then to craft something which will meet the needs of justice.
I hope that Members of the Committee will understand why I feel unable to agree to this amendment. It is not because it would expunge Schedule 17. The truth is that members of the public just would not understand. They would not understand because the fact that the life sentence exists is at least an acknowledgement that a life was removed. It is not dishonest because, as noble Lords will know,
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even if people are released after a specific time, they remain on licence. We have the opportunity to differentiate between the different categories.
Lord Ackner: Does the noble Baroness accept that now that the Secretary of State's role has been removed the procedure in relation to murder will be exactly the same as the procedure in relation to the discretionary sentences? At the hearing and after the pronouncement of the verdict, or the plea, in the discretionary case the judge is expected to say what is the length of time that the person should be in prison in order that the penal side—that is, the punishment and deterrent side—of the sentence should be satisfied. The judge will say what that period is; 20 years, 15 years, whatever it may be. Of course, at the conclusion of that period, the Parole Board will consider the issue of risk in relation to whether the person can be safely released.
Exactly the same situation will apply in a murder case. In both manslaughter and murder cases, the judge can say, "I do not specify the penal side of this sentence because I do not think there is one that I should specify", thereby indicating that it is a whole-life sentence. The same will apply to a murder case, where it is appropriate.
Therefore, the public do not see any difference at all. The removal of the Secretary of State's final discretion has made the procedure virtually identical. In those circumstances, it is difficult to see that the reaction of the public can in any way be different. In each case, whether it is discretionary or whether it remains mandatory but without the interference of the Secretary of State, the judge will lay down the penal side of the sentence if he considers it appropriate to do so. If he does not consider it appropriate, in both those cases he will say the same. Therefore, does the noble Baroness agree that the concern about the public is a little difficult to follow?
8 p.m.
Baroness Scotland of Asthal: The noble and learned Lord will not be surprised if I say that I am unable to agree. The situation may be similar but it is not the same. The noble and learned Lord will know that in Schedule 17 and the clauses in this part of the Bill we are seeking to set a framework within which the courts will be able to exercise their discretion. Therefore, we are setting the bench-marks.
The maintenance of the mandatory life sentence will continue. Of course, the court will determine the length of the determinate part of any given sentence. But if one looks at the starting points that we have indicated—the 15 years, the 30 years and the basis upon which a whole-life tariff should be considered— there is the voice of Parliament. Parliament is setting down the parameters, although not through the exercise of the Home Secretary's discretion on a case-by-case basis. But, in terms of setting the structure within which these offences will be judged, Parliament's voice will be clear.
We are not proposing that Parliament should dictate to the judiciary how they exercise their discretion within the boundaries set, but the

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boundaries are none the less an important part of the response. If noble Lords consider the way that the courts—we shall come to this when we reach Schedule 17—will respond to sentences in relation to murder and life imprisonment and those in relation to other serious offences, they will see that there is a very clear distinction. 1 do not believe that anything I have said thus far militates against this proposal. The removal of the Secretary of State's individual discretion has been, and will be, replaced by a statutory framework which will give expression to Parliament's will.
Lord Thomas of Gresford: There is a weakness in the argument put forward by the noble Baroness. When a mandatory life sentence is passed following a murder conviction, the public know perfectly well that it does not mean life. They know perfectly well that there will be a release at some point in the future and that the whole thing is up in the air.
To suggest that murder is unique because there is a death is wrong because there is a death in manslaughter cases. The family is just as distressed by what happens in a manslaughter case with the loss of a relative, and so on. I recall that I prosecuted a case in which a woman received an absolute discharge for killing her husband and living with the body for 20 years. She suffered from severe provocation and that was the final decision of the court. On the other hand, in other manslaughter cases in which I have been involved, life sentences have been passed. I should have thought it impossible to envisage a situation where a judge would not pass a life sentence, meaning a life sentence, in a case where there had been a depraved killing involving not only an intention to kill but also a desire to kill. It is impossible to consider that a judge would not pass a life sentence in a case where there had been a desire to cause grievous bodily harm, resulting in a killing.
The point is that every case is different. It is for the judge, who hears the facts, sees the witnesses, sees the photographs and understands the whole case, to determine what is just for the individual defendant in the particular case, bearing in mind all the issues, including how the family feel and the fact that a life has been lost, and so on. Therefore, I do not believe that the unique quality of a murder case is anything like a sufficient justification for the mandatory life sentence.
Lord Lloyd of Berwick: I am grateful to those who have spoken in favour of the amendment. I listened with great care to what the Minister said by way of reply. I shall of course read it, but I hope that she will forgive me if I say that, for the moment, I do not find her reply completely satisfying. However, I bear in mind the point made by the noble Lord, Lord Clinton-Davis, which was supported by other noble Lords. This is a very important issue and perhaps tonight is
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not the time to vote on it. However, I shall certainly bring back the matter on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage begin again no later than 9.8 p.m.
Lord Ackner: Before the Committee adjourns, I made reference to a report that deals with a particular type of sentence. I have found the command paper. It is the report of the Committee on Mentally Abnormal Offenders, Command Paper 6244.
Baroness Farrington of Ribbleton: Perhaps it would be helpful at this stage if the noble and learned Lord, Lord Ackner, could write to my noble friend. She could then reply to him and place a copy in the Library.
Lord Ackner: That is much more convenient. All I am doing is indicating to the Committee the details of a report to which I referred. I shall not talk about its merits; I merely give the information. The nature of the sentence to which I made reference is to be found on pages 71, 72 and 73. As I suggested to noble Lords, they are cases of reviewable sentences. That is all I wish to add.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Employment (Northern Ireland) Order 2003
8.10 p.m.
Baroness Ambosrose to move, That the draft order laid before the House on 8th September be approved.
The noble Baroness said: My Lords, I beg to move that this House approve the Employment (Northern Ireland) Order 2003, a draft of which was laid before this House on 8th September 2003.
The Order in Council is designed to assist in resolving employment disputes and to improve the operation of the tribunal system in Northern Ireland. It introduces a set of statutory minimum procedures that parties will be obliged to follow before a dispute is dealt with by either an industrial tribunal or the Fair Employment Tribunal (Article 15 and Schedule 1). The procedures comprise a straightforward series of steps; namely, a written statement or grounds for disciplinary action, a meeting to discuss the issue and an appeal process.
The new dispute resolution procedures are aimed at encouraging early dialogue between employer and employee in the workplace, with a view to resolution without resorting to the tribunal system. However, where the procedures fail to resolve the matters at

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issue, the tribunal system needs to be capable of continuing to process meritorious cases judicially and fairly. That is achieved first by improved case management and secondly by the imposition of reasonable penalties (Parts 2 and 3). These may be imposed on those bringing misconceived or hopeless cases, on representatives who behave inappropriately and where there has been a failure to follow the statutory procedures. Tribunals will, therefore, be able to focus attention on cases most meriting their attention.
The order also provides for the use of questionnaires in equal pay cases (Article 30) and sets out statutory rights to paid time off for trade union learning representatives (Article 31). All of those provisions correspond to measures introduced in Great Britain by the Employment Act 2002. They have been the subject of extensive public consultation in Northern Ireland, which elicited a very positive response. Members of the Northern Ireland Grand Committee warmly welcomed the draft order when they debated it in July this year.
In conclusion, the employment order is a balanced package aimed at improving employment relations. It aims to ensure that tribunals are better placed to handle cases which cannot be resolved in the workplace and to give them an expeditious and fair hearing. I commend the order to the House.
Moved, That the draft order laid before the House on 8th September be approved.—(Baroness Amos.)
Lord Glentoran: My Lords, first, I welcome the noble Baroness, Lady Amos, to the Dispatch Box on what I believe is her first occasion as your Lordships', and the Government's, spokesman on Northern Ireland. Suffice it to say—I am sure the noble Baroness will not mind me saying this—I wish it were otherwise. Having said that, I assure her that she will have the co-operation and support of me and my party in dealing with Northern Ireland affairs. In this House in recent times we have not played party politics with Northern Ireland. We have striven to reach agreement as to what is the best way forward for the people of Northern Ireland. There will be times when we shall disagree, and that also I hope she will accept. Certainly, we shall accept that.
I now turn to the order. I welcome it in principle. It certainly brings Northern Ireland a step further forward. It closes certain gaps between legislation in Northern Ireland and the United Kingdom. I welcome the advances in dispute resolution. Having spent nearly 30 years in manufacturing industry at one level or another and, at the end, at a fairly senior level, anything that can improve dispute resolution must be right.
One key issue about the order is that it creates a time space in which dispute resolution can and may have a second opportunity for—if I may put it like this— resolution at the coal face on the shop floor, which I am sure that your Lordships will agree is the right place. Tribunals are all very well, but any dispute
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between management, employees and trade unions that can be solved at the works will always lead to a better future for that business.
I am slightly concerned about the trade union learning representative. I certainly do not challenge the idea or concept, but I turn to the order. I have not read the order in great detail; I have actually skipped it all; although I have read Hansard from the other place and understand from the officials whom the noble Baroness agreed should brief me earlier on this matter—I thank her and them for that—that it has been through Committee in the other place; so it has been well scanned.
What I do not like—and do not like in legislation per se—is a Bill being enacted that creates a position that is not really defined. As I understand it, the learning representative is not defined in any way. Will the noble Baroness assure me that that provision will be covered by codes of practice of some sort? Depending on the size of the business, whether it is a five man business or a 10,000 person business—perhaps in Northern Ireland that is too high; the last time that I looked the largest employer was employing about 5,000 people— there is a difference as to how much time and what sort of emphasis should be placed on a trade union learning representative.
On the other end of that, I also wonder what other situations will be opened up. If you have a learning representative, he will be selling learning and education to the workforce—with which in principle I have no argument—but in due course its members will say to him, "I work my 39", or 38, "hour week; I do 10 hours of overtime and"—and, as some of my some of my workforce do, "I enjoy my shooting on Saturdays", and so on. "When do you expect me to go and do some more education?" I can see that evolving into employees wanting time off for education or employers being forced to give time off for trade union members to go on education courses of their own.
I say. "Of their own", because most companies— most sensible companies—are always striving to improve the education and standards of skills—in whatever field: be it engineering skills; computer skills; or whatever. I should be interested to hear a little about how the Government see the learning representative transmitting his role into the workforce and the workforce transmitting that into reality in today's world at no cost to small business.
That brings me to my last concern, which Jane Kennedy covered reasonably well in the other place: there should be no on-costs for small businesses as a result of the order. I should like confirmation of that if the noble Baroness can provide it.
However, in principle and overall, we support the order as a whole.
Lord Shutt of Greetland: My Lords, I, too, welcome the Lord President, the noble Baroness, Lady Amos, to her role as Government spokesperson on Northern Ireland. The late Lord Williams of Mostyn certainly made Northern Ireland a special place within his portfolio of interests. I hope that the noble Baroness

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will follow his approach of inclusiveness and consulting and speaking to everyone who followed Northern Ireland affairs in the House. I hope that that way of working will continue as we all strive to solve the difficult issues in Northern Ireland. My colleagues and I wish the noble Baroness well in that work. We offer the support that we can give from time to time in trying to solve some of those difficult issues.
I welcome the order. There has been much consultation on it. We were promised further consultation on a code of practice. Consultation is all about conciliation on the substance of the order. I am delighted that this is one area on which what is being done in Northern Ireland will mirror the approach in the rest of the United Kingdom.
Lord Rogan: My Lords, I congratulate the noble Baroness, Lady Amos, and wish her every success in her new position as Lord President and Leader of the House. I welcome her to the Northern Ireland scene. I declare an interest as the owner and director of several Northern Ireland companies.
Businesses throughout Northern Ireland, and the Ulster Unionist Party, generally support the provisions of the Employment Order. Fair and effective mechanisms must exist to deal with disputes in the workplace; after all, a happy workplace is a productive one. Apparently, the number of industrial tribunals throughout the United Kingdom has tripled in the past five years. We must do all that we can to avoid getting into a situation where every grumble and disagreement ends up at a tribunal hearing. Tribunals do not make for happy or productive workplaces.
We welcome the statutory dispute resolution procedures, set out in the order, to be followed by employers and employees. They will go a long way to enhancing the possibility of resolving disputes without resort to a tribunal or the courts. Furthermore, by cutting out unnecessary and trivial hearings, the dispute resolution procedures will also represent a significant saving to businesses and the public purse.
I welcome the inclusion of the award of costs provision, which will continue to be the principal defence against vexatious claims. Although we recognise that reasonable time off for trade union learning representatives will be of significant benefit for individuals, their union colleagues and the workplace environment as a whole, the notion of "reasonable time" is vague. As the noble Lord, Lord Glentoran, mentioned, we must ensure that that provision does not put any undue strain on the resources of small employers who cannot afford continually to shoulder the absence of employees.
The Ulster Unionist Party shares the concerns of the Labour Relations Agency about the effect that the introduction of a fixed time limit will have on how the agency offers and resources the individual conciliation service. The agency foresees significant practical difficulties in providing an effective conciliation service within such a tight timescale. Will the relevant documentation and key witnesses, for example, be available in a short period of time? Moreover, we are
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also concerned about the costs to small business, especially when other costs are being imposed on the small businesses of Northern Ireland, such as the huge increase in employers' liability insurance.
The Labour Relations Agency is also concerned that its code of practice on disciplinary and grievance procedures, which is universally accepted and acknowledged as representing good practice, was not fully considered by the Government. Do the Government intend to retain the standards contained in this code of practice? In conclusion, we are happy to support the order and hope that the Government's ambitions in introducing it will be satisfied.
Lord Brooke of Sutton Mandeville: My Lords, I also take pleasure in the noble Baroness the Lord President undertaking responsibility for Northern Ireland affairs in your Lordships' House. It is a compliment to the Province that she undertakes those responsibilities, but I join my noble friend Lord Glentoran in his implicit tribute to the late Lord Williams of Mostyn for his conduct on Northern Ireland affairs in your Lordships' House, which I am sure the whole House would agree was exemplary.
I have a curious personal pedigree in these matters of Northern Ireland legislation in fair employment. In 1989, I succeeded my noble friend Lord King of Bridgwater, whose legislative package during his time as Secretary of State included the 1989 Fair Employment (Northern Ireland) Act. By chance, the Lords amendments being taken to that Bill in the Commons during the summer of 1989 occurred during a curious week when my noble friend Lord King remained the Secretary of State for Northern Ireland before becoming secretary State for Defence. The then Secretary of State for Defence, the late Lord Younger, could not give up office until he had concluded entertaining the first Russian Minister of Defence ever to visit this country. I therefore sat on the Front Bench in the other place in my former role while my noble friend Lord King dealt with your Lordships' amendments to that Bill.
My second involvement was rather more direct. I chaired the Select Committee on Northern Ireland Affairs in the other place in the last Parliament, and, in 1999, we undertook a review of the working of the Fair Employment (Northern Ireland) Act at the time of its 10th anniversary. I recall the view of Ken Livingstone who was then a member of the Northern Ireland Affairs Select Committee, who confessed that he had originally thought that the 1989 Act had simply been a sop to critics of prior practice. He acknowledged that in the ensuing decade it had made a real difference.
As the late Lord Williams of Mostyn used to remind us, the role of this House in the scrutiny of orders during the time that the Assembly is suspended is an important one in substitution for the Assembly. Because of that emphasis, I have a greater interest in the Explanatory Memorandum than in the order itself as a guide to the reactions in the Province to the substance of the order. Paragraph 11 on page 13 of the Explanatory Memorandum refers in detail to the four

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consultations that have taken place—one by the Department for Employment and Learning in conjunction with the Office of the First Minister and Deputy First Minister and the other three issued by the Department for Employment and Learning.
The first three consultations clearly took place while the Assembly was, in principle, sitting, culminating in the fourth consultation, which took place between April and June this year—which indicates that, by that time, there was no chance of the Assembly playing any role because it had been suspended. Paragraph 6 on page 2 of the Explanatory Memorandum describes a favourable reaction overall to the four consultation documents within the Province, as the noble Baroness said in moving the order.
Against that background, I turn to paragraphs 20, 24 and 26, on pages 14 and 15 of the Explanatory Memorandum. I have two questions and a comment. My first question is about paragraph 20, which deals with the equality impact assessment. Line 5 states:
"This should help to reduce the growing pressure on the tribunal system, further assisting those with substantive cases to secure justice".
I should be grateful if the noble Baroness could say a word about the "growing pressure" to which the Explanatory Memorandum refers and, especially, about the scale of the problem.
I have a comment, rather than a question, on paragraph 24. Line 5 states:
"Small business will see a particular impact as this sector's common lack of detailed disciplinary and grievance procedures has made it particularly vulnerable to a tribunal system that places considerable weight on process. This group"—
small business—
"will be a net gainer".
On the basis of the Select Committee's report on the first 10 years of the working of the Fair Employment (Northern Ireland) Act 1989, I can recognise the potential truth of that observation and of that conclusion.
My last question relates to paragraph 26 of the Explanatory Memorandum. My noble friend Lord Glentoran raised the question of how learning experience would be secured. I use that word to embrace the total process. Line 5 of that paragraph says:
"Employers will incur costs in terms of paid and unpaid time off amounting to perhaps £0.5 million a year, but they should see benefits in the form of increased productivity, innovation, job satisfaction and thus retention".
My question about the paragraph relates in particular to the reference to "increased productivity". The memorandum states that employers should see benefits in the form of increased productivity. I would be interested to know the basis for the Government's confidence in that increased productivity. In general, the Government, despite their best intentions and their best efforts—I pay tribute to both—have had some difficulty raising productivity in the past six years faster than the previous government did over the prior six years.
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Overall, I join my noble friend Lord Glentoran in welcoming the order.
8.30 p.m.
Baroness Park of Monmouth: My Lords, I have no questions about the order. I merely wish to take the opportunity to join everyone else in warmly welcoming the noble Baroness the Lord President of the Council to the Northern Ireland scene. I know that she already has some knowledge of the Province, and I hope that she will be able to spend time there. I also hope that we may look forward to meeting the Secretary of State with her and under her auspices, as we did in the past, from time to time, under her very great predecessor.
Baroness Amos: My Lords, first, I thank all noble Lords who have spoken and have welcomed me so warmly to the Northern Ireland portfolio. I entirely share the sentiments expressed with respect to the late Lord Williams of Mostyn. He was a very special person.
I was a regular visitor to Northern Ireland in a previous job. I look forward to working with noble Lords on Northern Ireland. I assure noble Lords—in particular, the noble Lord, Lord Shutt of Greetland— that I will carry on the practice followed by my predecessor of bringing noble Lords together for regular meetings about Northern Ireland issues. I welcome the comment made by the noble Lord, Lord Glentoran: it is not the politics that matter, it is the future of the Province.
Several specific questions were asked about the order. I shall try to answer them. I appreciate the welcome given to the order around the House. The noble Lords, Lord Glentoran and Lord Rogan, asked, in the context of time off for union learning representatives, who will decide what "reasonable time" means? Practical guidance on what constitutes "reasonable" will be provided by a code of practice. The current Labour Relations Agency code on time off for trade union duties and activities has worked well and has reduced the scope for disagreement. It may require to be revised to reflect the new right to paid time off for union learning representatives.
The noble Lord, Lord Glentoran, also asked whether there was an inference that employers would be required to give employees paid time off to pursue learning activities. The answer is "no". It is entirely a matter for discussion between employer and employee as to whether the learning activities covered by paid time off were in the employee's own time. In respect of the question about costs for small employers, the assessment of the regulatory impact of the proposals confirms that the projected costs to Northern Ireland businesses would be minimal.
The noble Lord, Lord Rogan, asked a wider question about the burden on small employers. The order aims to ensure that by adopting very simple and straightforward procedures employers will be able to resolve an increased number of disputes internally, thereby avoiding the expense of tribunal proceedings.

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With respect to the noble Lord's question about how long the fixed period would be, that is a matter for the regulations. It is envisaged that the regulations will set a maximum length, which could be in the region of three months. It is an area for discussion with the Labour Relations Agency and it is one on which the department would wish to consult.
As regards the Labour Relations Agency's concerns about resourcing, also raised by the noble Lord, Lord Rogan, in a debate in another place on 17th September, my honourable friend indicated her willingness to meet with the agency to discuss any concerns. I can confirm that a meeting has now been arranged for 12th November.
The code of practice on disciplinary and grievance procedures was raised by the noble Lord, Lord Rogan. The standards laid out in the current Labour Relations Agency code of practice continue to represent good practice. However, the new statutory minimum procedures are aimed particularly at small firms which may have few or no procedures in place. The department will be working closely with the agency over the coming months to ensure that the code of practice is revised to reflect the new statutory minimum procedures.
The noble Lord, Lord Brooke, asked specifically about pressure on the tribunals system. The number of applications to industrial tribunals rose by more than 60 per cent between 1991 and 2001, while applications to Northern Ireland's Fair Employment Tribunal went up by a staggering 185 per cent in the same period. I appreciate that in certain cases recourse to a tribunal is the most appropriate means of addressing a problem, but they spend a great deal of time on cases where no attempt has been made to resolve the issue in the workplace. That is why the dispute settlement procedure is one we are promoting.
On the question of increased productivity, I hope that noble Lords will agree that a more skilled, talented and well-educated workforce is better placed to increase work output. However, I entirely accept the point behind the question posed by the noble Lord, Lord Brooke, about how we are going to measure that. If I can find out any more information, I shall come back to the noble Lord. That covers the questions I have been asked. I commend the order to the House.
On Question, Motion agreed to.

Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003
8.40 p.m.
Baroness Hollis of Heighamrose to move, That the regulations laid before the House on 10th September be approved [27th Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move that the draft Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 laid before the House on 10th September 2003 be approved. The word "miscellaneous" used here is appropriate.
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The regulations before us today make a number of diverse amendments to seven of the many sets of regulations which govern both the old and new child support schemes. This package is largely made up of amendments to regulations governing the new child support scheme and to "transitional" regulations which relate to the transfer of cases from the old scheme to the new arrangements. A small number of cases, linked to new cases—that is, where someone has multiple partners—have already moved from the old to the new scheme. But the bulk transfer of cases will take place in due course once we are satisfied that the new arrangements are working well.
In addition, this package includes a number of amendments to the old scheme. Most of the amendments reflect that the world has moved on in the time since we made regulations for the new scheme. The introduction of the new state pension credit is one example of this. Finally, some of the amendments in this package make minor technical corrections to reflect what was intended in the new child support scheme.
I shall not go into great detail, but given that the other place has not yet looked at these regulations, perhaps it may be helpful if I set out some of the more important changes.
One of the changes to the old scheme to which I referred a moment ago is consequential on the introduction of the state pension credit which replaces the minimum income guarantee, the title given to income support for people aged 60 or over. In the old child support scheme it is possible, in prescribed circumstances, to seek a "departure" from the standard formula for making a maintenance assessment. The amendment made by Regulation 2 to the Departure Direction and Consequential Amendments Regulations provides that recipients of state pension credit shall not have, or be the subject of, a departure in the circumstances which previously excluded recipients of the minimum income guarantee; that is, a straight word substitution. This is for the sound reason that a person who receives a state pension credit will, like those on minimum income guarantee, be treated as having no "assessable income" for the purposes of making a maintenance assessment. Therefore a '"departure" would be futile as it would have no effect on the amount of maintenance payable. This amendment mirrors not only the minimum income guarantee position, but also the treatment of persons in receipt of income support and income-based jobseeker's allowance.
Regulation 3 makes a number of amendments to the old scheme's Maintenance Assessment Procedure Regulations. One of the amendments I would like to bring to the attention of noble Lords takes account of the changes made to remove residential allowances in income support or income-based jobseeker's allowance, and of changes in terminology in relation to "care homes". This has arisen as a result of both Department of Health and Scottish legislation. As noble Lords may be aware, a parent with care is required to apply for a maintenance assessment if income support or income-based jobseeker's

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allowance is claimed by, or is payable to or in respect of, her. If, without good cause, she does not co-operate with the CSA, the agency may make a "reduced benefit direction" that lowers the amount of her benefit.
The amendment ensures that the reduced benefit directions are suspended if the parent with care is in a residential care home or independent hospital or, in Scotland, is provided with a care home service or independent care service. This suspension is necessary because parents with care are normally left with what used to be known as the "pocket money" rate of income support, and what we now call the "personal allowance" rate of some £17 of income support when they move into such accommodation or receive such services. This rate of benefit would clearly not sustain a reduced benefit direction.
The amendments made by Regulation 4 are to the Child Support Maintenance Assessments and Special Cases Regulations which relate to the old scheme. They are mostly technical and relate to changes made by other legislation. To give just one example, to correspond with the treatment of minimum income guarantee, as I mentioned earlier, recipients of state pension credit will be treated as having no assessable income for child maintenance purposes.
The amendments to the new scheme Maintenance Calculation Procedure Regulations made by Regulation 5 are consequential to changes made to income support or income-based jobseeker's allowance and upon changes in terminology relating to "care homes", the changes to which I have already outlined. However, in the same way that we have made adjustments in Regulation 3 to the old scheme, here we are making adjustments to the new child support scheme.
Similarly, Regulation 6 makes several amendments to the Maintenance Calculations and Special Cases Regulations which relate to the new child support scheme. The most noteworthy change is in cases where a non-resident parent has to pay maintenance under child support rules to one child or children, and maintenance under a court order for another child, both at the same time. The amendment ensures that the payment made in respect of the qualifying children that fall within child support rules is never less than the flat rate of maintenance of £5 a week. This provides consistency with other new scheme provisions that prevent liabilities from falling below the flat rate amount.
The transitional regulations make provision for how and when old cases will convert to the new scheme. They allow changes in liability to be phased in over a period of five years in specified cases. Phasing is intended to allow both parents with care and non-resident parents time to adjust their household budgets. It is crucial to the success of the new scheme that phasing is allowed to work properly, and the CSA fully intends to enforce these phased liabilities. Otherwise, obviously, someone's liability could go up by far more than their wage increase that year; on the other hand, a parent with care could equally find a very substantial drop in the child support around which
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they had budgeted, for example, their return to work. So the phasing works for both parties, preventing both substantial increases and decreases.
The several amendments made to the transitional regulations made by Regulation 7 ensure that the provisions in this complex area work as we intend them to. For example, in the old child support scheme, a non-resident parent can apply for an allowance in their "exempt income" in recognition of a property or capital settlement made before April 1993. The transitional regulations provide that when a case with such an allowance is converted to the new scheme, that allowance becomes a "relevant property transfer". In other words, if the non-resident parent is supporting the parent with care through support for the property, this should be appropriately taken into account.
However, in the new scheme, a maintenance calculation can be "varied" to take account of a pre-1993 transfer. I say "varied" because the language under the old scheme is "departures" and the language under the new scheme is "variations". One amendment made by Regulation 7 makes it clear that a non-resident parent cannot have both a relevant property transfer and a variation in respect of the same pre-1993 property or capital transfer at the same time. Without this amendment, the non-resident parent would have two separate adjustments to his weekly liability—in effect, a double benefit; he would get the benefit twice over—in respect of the same pre-1993 transfer. This was never intended and we need to clarify the wording.
The amendment made by Regulation 8 is consequential to the relevant property transfer amendment to the transitional provisions made by Regulation 7, to which I have just referred. It amends the variations regulations to ensure consistency with the position in the transitional regulations.
Those are the most significant changes in the package. As I have tried to describe, several of them relate to terminology in terms of replacing minimum income guarantee with pension credit; others reflect the new arrangements for financing people in care homes; and others relate to retirement pensions, to going beyond the £5 income and to rectifying any possibility of a double consideration for property transfer. I shall be happy to cover other of the amendments—which are, for the most part, technical it noble Lords so wish.
I draw to your Lordships' notice that we are a little late, with some of the regulations before us today amending the regulations concerning child support arrangements as a consequence of earlier changes made to other legislation State pension credit, for example, was introduced. just over a week ago. I apologise to your Lordships but I hope that you will agree that it is important that we get the amendments right.
The regulations before us today underpin our continuing commitment to making sure that child support works for both parents and their children. As I said, they are miscellaneous regulations. I accept that they are quite hard to decipher as they stand because they regulate changes in regulations to regulations. I

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have produced a "health warning" version—a kind of keeling schedule—which I hope will make the situation alitle clearer. I only regret that I did not have that bright idea a few days ago and send it to your Lordships earlier.
I am satisfied that the regulations are compatible with the European Convention on Human Rights and I commend them to the House.
Moved, That the regulations laid before the House on 10th September be approved [27th Report from the Joint Committee].—(Baroness Hollis of Heigham.)
8.49 p.m.
Lord Higgins: My Lords, the history of the Child Support Agency is a long-running saga. One of the advantages of transferring from another place to this House is that one no longer has to deal with Child Support Agency constituency cases.
This subject does not often create headlines but I was rather struck by an article in the financial supplement of the Mail on Sunday which described the present situation as the mother and father of all mix-ups. Underneath that rather exotic headline was a remarkably good, well researched article by a Mr Stephen Womack on the present state of play in child support matters.
The situation is enormously complicated, as was apparent from the noble Baroness's as always very helpful remarks, by the fact that we are running two systems side by side. Some of the provisions in the regulations relate to the transitional arrangements— some to one system and some to the other. This complication is bound to give more scope for those who are playing the system, one way or another, in trying to avoid paying the amount they are due to pay in child maintenance.
The noble Baroness spelt out a number of changes, some of which are purely terminological. Every time the Government change this or that aspect of the social security system, there will be more and more changes in the Child Support Agency system. I do not think this is helpful for those trying to administer it, nor is it helpful for the agency with regard to its computer programmes and so on.
I still do not fully understand some of the complications. For example, I would have thought that for a war widow, the question of child support does not necessarily arise. Perhaps the noble Baroness could clarify how that will operate. Similarly, there is a change in the occupational pension definition to cover a new type of pension. I am not at all clear about the relevance of that.
The noble Baroness has, in her usual helpful way, provided me and, I imagine, the Liberal Benches, with a new set of documents which show how the various changes in these regulations will affect earlier ones. We do not have a provision for delegated legislation in the same way that we do for consolidation of primary legislation. However, it is now getting so complicated here that if the kind of document which the noble Baroness has produced for us, which shows the
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changes in italics, could be made available to those who, one way or another, are involved with the Child Support Agency, that would be of great benefit.
In the context of these changes, I am not at all clear how the system will operate. As I understand it, around 1 million cases operate under the old scheme. At the same time, there is a constant inflow of cases being dealt with under the new scheme. One of the problems that we pointed out when the primary legislation was being debated was that the absent parent was likely to find himself in a better position under the new scheme than the old one. Therefore, there will be constant pressure to accelerate the move—my goodness, it has not been accelerated much so far—from one system to the other, but that will be to the detriment of the parent with care.
I am sure the noble Baroness is right in saying in her opening remarks that we want a smooth transition, but the changes will take place, as I understand it, over a period of five years. We have had a delay in making the change anyway because of the repeated delay— although foul-up might be a better expression— regarding the introduction of the computer. This means that the overall timescale is now stretching out further and further. Meanwhile, a good many people are still under the old system.
I was fascinated to read an extremely helpful evidence-taking session by the House of Commons Work and Pensions Committee on 2nd July. At that stage, the chairman of the committee seemed somewhat to despair, especially in relation to the evidence that had come from the trade union concerned. He said:
"My heart sank because we were back to cases being stockpiled, management systems failing, delays occurring and staff wastage figures still unacceptably high… I cannot understand how we got here. This is the second time around".
In particular he drew attention, as the evidence session generally did, to the problems arising from the computer system, and the continued problem of non-payment. The latest figures provided were for November last year. They tell us that 384,000 parents with care are entitled to receive child maintenance; 70,000—more than 20 per cent—receive no payment; and 193,000 receive less than they are entitled to. All that suggests that the system is seriously failing to operate as it should.
There is one point in relation to the evidence on which it would be helpful to have a view. I refer to the issue of the computer system. Apparently, it costs 20 per cent more to process each claim than it did before the introduction of the new system, which was supposed to simplify it. The report said that there was,
"a mix of IT difficulties … and cultural problems associated with the shift to the new arrangements".
I am not clear what those cultural problems are, but perhaps the Minister could give us some indication.
It is important for us to understand, in the mass of figures that are being introduced, whether the main stockpile is going up or down. Is the number of cases coming in greater or less than the cases being dealt

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with? From the figures that I have studied, I am not clear what the situation is with regard to the very substantial backlog.
Finally, will the Minister clarify the situation on sanctions? Given the figures that I quoted earlier, I am not clear how many cases are now being dealt with by an earnings deduction order. It seems unlikely that we should have failure to pay on the scale to which I referred, if that mechanism were being used effectively.
With regard to the evidence to the Commons committee, how satisfied should we be and how satisfied are the Government about the sanctions imposed on those who are not paying? In the course of the passage of the primary legislation, we spent some time debating whether driving licences should be withdrawn. At the time, I believed that to be rather a sledgehammer to crack a nut. However, so far only two driving licences have been removed and only 11 cases have been brought. It seems extraordinary that we legislated for that and debated a clause at length in this House, if that kind of sanction, whatever one's views on the merits of it, is to be introduced. Will the Minister bring us up to date on that?
Apparently, the sanctions have operated so poorly that £2 billion has been written off so far. That is obviously a considerable failure of the system, which one would have thought would have begun to operate a little more effectively than it has, after 14 years. I have always conceded that the original legislation was seriously deficient in dealing with both new and old cases. However, 14 years on, one would have thought that the situation would have been rather better than it is.
The complexity being introduced by the order, on top of all the other complexities, means that the chance of the system operating effectively and of the agency managing to cope effectively is bound to be greatly diminished. I am grateful to the Minister for her help; we are all on the same side on the issue and we all want the system to work effectively, but it is in a pretty sorry state at present.
9 p.m.
Earl Russell: My Lords, first I should like to thank the noble Baroness—and, through her, her officials— for the issue of what I may best describe as the Keeling guidance. This is an extremely helpful document.
Regulation is a form of legislation by crossword puzzle. What we normally get is the insertions in the crossword without the blank squares and without the clues. That is slightly confusing. I agree with the noble Lord, Lord Higgins, that the measure will be very, very helpful not only to us here—the stately progress of the Criminal Justice Bill has given me occasion to examine it with rather more care than I might otherwise have been able to do—but also to many people outside this House. I support his suggestion that it be made more widely available. I hope that that precedent will be followed.
The regulations are what I might best describe as sandpaper regulations. They smooth the rough corners of the joints not only between the old
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regulations and the new but also between the new and other legislative developments, such as the pension credit and the new-found doctrine of equality between widows and widowers. Where one is dealing with sandpaper regulations I do not think that it is an occasion for examining all the original pieces of wood whose corners are being smoothed. I do not think that it is an occasion for discussing policy. The Minister and I have done that at great length. I think that it was—on both sides, I hope—an extremely high level of discussion and there is no point in doing it again now.
We have discussed how far the Act is capable of working. Again, I do not think that we have anything to add to that now. We have discussed the delay in the Act and the computers. Again, I do not think that there is any need to add anything to that now. If one looks only at the sandpapering of the joints—which is what these regulations are about—I see no reason for criticism. In fact, so far as I can see, it has been extremely well and competently done. There is a spit and polish about this which I find on the whole reassuring.
There are one or two matters that I should like to raise as questions. I should like to know how the provisions for residential care under Regulation 5, and in other cases, affect women's refuges. There is a possibility of legislation being introduced on women's refuges so there may be another occasion on which to raise the matter. However, this is something that one tends not to think about because it does not come in the categories that anyone is thinking about when they prepare regulations. Therefore, I hope that the question is not redundant.
I should like to welcome the provision for equality between war widows and war widowers. In answer to the question of the noble Lord, Lord Higgins, about how that could apply, I say that people are capable of having children by more than one partner. That has been known. I am indeed the product of such a thing myself. I should like to congratulate the Government on the provisions for the training allowance.
I should also like to raise a general question regarding how far we should go ahead with the making of affirmative regulations because it is possible that at some stage something controversial might be done under the power. I can see that something controversial could have been done under these powers, but I see nothing in the contents of these particular regulations which would call for them to be affirmative. I think that we should perhaps consider the suggestion that the noble Lord, Lord Skelmersdale, made at the very beginning of the Delegated Powers Scrutiny Committee, as it then was. Where something under the affirmative procedure gave rise to no controversy, he suggested that it might be possible to let it go through on the nod. With that thought, I hope that the Minister will forgive me for leaving the matter.
Baroness Hollis of Heigham: My Lords, I am very grateful that noble Lords found the Keeling guidance helpful. I will take the matter away and see whether, under regulations in not only this field but others, it

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can be generalised. I accept that, when we start amending regulations in terms of amended regulations, it is a jigsaw without a picture on the box. That is part of the difficulty.
The noble Lord, Lord Higgins, talked about the complexity involved in making changes described aptly by the noble Earl, Lord Russell, as sandpaper changes. The situation is not possible to resolve. By definition, one has to adjust and adapt the language of any piece of legislation and subsequent regulations that refer to income in any form whenever one changes the format of the income, particularly benefits or tax credits. Our staff are well aware of what pension credit is—minimum income guarantee with a savings credit—and will not find themselves baffled by it. Obviously, we have to protect the legal basis of our assessments in such a way.
The noble Lord asked a couple of specific questions about the regulations. The first was on war widows under Regulation 6 and so on. That says that a non-resident parent receiving a war widower's pension should be treated like a war widow and as a result have a flat-rate liability. The numbers are very small, but the question is one of equity. Since introducing the provision, the rights of men to a war widower's pension have been established. That is why the change is necessary.
The noble Lord's second point was on pensions under Regulation 6(2)(e). My understanding is that we are adding schemes that, because of their statutory basis, do not need to go through IR approval. In other words, they are additional schemes that have a statutory basis and are not covered by the existing IR approval basis. Some additional police and local authority schemes come into that category. I am happy to write to him further on that if he would like.
The general points that the noble Lord raised were about the computer being a mess. I think that people believe that we have a simpler computer because we are simplifying the system. That is not the case. Given the pathway into child support through Jobcentre Plus and the £10 payment to the parent with care back on to their income support or income-based JSA, we need an interface that we have never needed to establish before between the old income-support computer—it dates from the 1980s—and the new system. The system is extremely complex. As I understand it, the DWP systems are larger than the tax self-assessment computer and several times larger than the biggest banking system, which belongs to Lloyds-TSB. That may give some idea of the complexity.
That is not to seek to diminish the very real teething problems that we have experienced as we have gone along. However, to get those in proportion, the Standish Group said in 2001 that only about 16 per cent of public and private major computer schemes were on time, that the average cost-run in all schemes was about 75 per cent, and that the average over time applied to more than 50 per cent. Although I would not wish to say that, by those standards, the CSA
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computer was a success, none the less its performance is not out of line with what we know to be the case with very large and complex computer schemes.
Lord Higgins: My Lords, as I understand it, the Government propose the so-called migration from one scheme to another to take place in one big bang. That seems to be the case from the evidence given to the Select Committee. Is the computer system capable of suddenly taking on a million extra cases all in one go? It seems rather hazardous, given the amount of data involved in those cases.
Baroness Hollis of Heigham: My Lords, the noble Lord's point is very acute and well taken. The Secretary of State has not yet made and will not make a decision on when we bring the existing cases over. Clearly, they have to be migrated in terms of the system before we actually bring individuals on to the system. There may well be a case for what I would call a more incremental approach, but those and similar options are being explored. The important point—and we have the support of all the voluntary organisations to which I have spoken—is that we ensure that as we bring new cases on, they have the smoothest possible transition. It may well be that the proposal of the noble Lord is one way to do that, but no decisions have yet been made on that. We are still ironing out some of the teething problems with the new cases.
I turn to the second point raised by the noble Lord, which concerns sanctions. He asked about the deduction order. Although it is not necessarily a sanction, many people choose to pay by a deduction from earnings, in the same way as the noble Lord may pay his bills by direct debit. He was right in his point about driving licences. It is the case from the latest figures that I have that only about two licences have been taken away. The point to bear in mind is not that we wanted to take driving licences away, but that we wanted to make non-resident parents, particularly the self-employed with the white van, pay up. And they pay up, when they realise that they may lose their driving licence and therefore their livelihoods. Sometimes, there are cases where people are £40,000 in arrears. They have five children and are ducking and weaving. They clearly appear to have the resources to pay some of those sums. We have found that the threat of removal of a driving licence sometimes focuses minds wonderfully in generating a willingness to work with the agency in tackling questions of arrears and coming into the system.
The noble Lord asked about the two billion of moneys written off. Yes, that is the total money not collected nominally. I am not making excuses, but we need to disentangle it. Some of that money—maybe a third or a quarter—would have come from NRPs who are now dead or who are overseas and untraceable. Although the money is on the books, we are unlikely to be able to obtain it for fairly obvious reasons.
Another portion of the money—something of the order of a third, but I do not wish to be held to account in my statistics—is again nominal moneys. Under the old scheme that I wanted to drop, but not under the

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new scheme, if a non-resident partner did not reply fairly quickly, we introduced a punitive assessment, which might well have been two or three times more than his true assessment based on his income. The arrears also reflect that figure. There is then the real chunk of moneys which we should collect and which we are seeking to collect and to pursue, but one needs realistically to disentangle some of those figures.
The noble Earl, Lord Russell, asked a specific question about women's refuges. The sanctions that apply to lone parents who have failed to co-operate apply only where no good cause has been established. If a woman has moved to a refuge, it appears aprima facie case that she has done so from a well-founded fear of distress and violence. Therefore, "good cause" should apply. I have had no evidence that our "good cause" provisions have produced hardship or unfairness, let alone threats or danger to women.
I shall make two final points. We obviously have teething problems with the computer and we all agree that we should adjust that and make sure that the system is robust before we introduce the new cases.
We should also emphasise just how successful is the new policy. I was there when an NRP received a cold call informing him that he would be required to pay maintenance. He was receiving JSA and we told him that under the new scheme he would be paying five pounds per week. He then said that he was looking for a job and asked what he would have to pay when he found one. He had one child, Alicia. The young woman to whom he was talking told him that he would pay 15 per cent of his net pay. He said, "Oh, fine. That's okay". He then went off to look for a job.
It is clear that a lot of the hassle that we have suffered in the past, legitimate or otherwise, from NRPs who do not know what they should pay and distrust the figures that we had arrived at, which may have been wrong in the first place, seems to be disappearing as a result of the transparency of the new scheme. The anguish, distress and protests of clients are about the speed and reliability of the computer and not about the formula itself. As one member of staff said to me, "When we've got the computers sorted, we'll fly". I am sure that that member of staff was right.
We are now clearing thousands of cases each week. In response to the noble Lord's question about inflow and outflow, the number of new cases cleared in September was greater than the corresponding number of old-scheme cases cleared in September last year. We are clearing new cases as fast as they are coming in—apart from the difficult ones which have relations linked to the old scheme and take longer to resolve. More than one half of applications are reaching a maintenance calculation compared with only one-third under the old scheme. Cases that in the past took up to 18 months to bring to enforcement procedure are moving to enforcement within three months. The poorest families are starting to benefit in real terms from the child maintenance premium.
We are beginning to see some of the policy consequences that your Lordships supported when the Government introduced the scheme. We have a
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long way to go and we are not yet ready to take the mainstream old cases on to the new system. We will do so when we are confident that the system and the computer are robust. However, I am sure, and all the evidence shows, that the policy reforms were decent, proper and will ultimately ensure that more money goes to more children, which is what we all want.
On Question, Motion agreed to.

Criminal Justice Bill
9.16 p.m.
House again in Committee.
Clause 254 [Determination of minimum term in relation to mandatory life sentence]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 209A:
Page 147, line 5, after first "sentence" insert "for an offence committed before or after the commencement of this section"
The noble Baroness said: Here we are again. We have debated 10 groups so far and we have only another 20 to go before we are allowed to go to bed by the Government Chief Whip.
In moving Amendment No. 209A, I shall speak also to Amendments Nos. 210A and 210B. For the avoidance of doubt, I make it clear from the beginning that these amendments and those which follow in the next group to Schedule 17 are today all probing amendments. I am trying to clarify some of the details of the Government's proposals on the new statutory minimum term for murderers.
Amendment No. 209A would make it clear on the face of the Bill that the new sentencing regime for murder contained in Chapter 7 of Part 12 would apply to offences that have been committed before as well as after commencement. Clause 254(1) provides that the new system will apply when the court passes a life sentence after the commencement date. But of course the murder could have been committed many months or years before that date. The clause is silent on whether it will apply to offences committed before commencement. No provision similar to that is present in Clause 270(5), which states that the penalty of 14 years for causing death by dangerous driving will apply only to offences committed after the commencement date. Amendment No. 209A therefore gives the Government the opportunity to make clear how the new system is intended to work in such cases.
Amendments Nos. 210A and 210B seek to probe the wording of Clause 254(5). That subsection specifies that when considering the seriousness of an offence of murder, the court must have regard not only to what is set out in Schedule 17 but also to,
"any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 17".
The amendments seek clarification of what kinds of guidelines issued by the Sentencing Guidelines Council the Government may have in mind. When the Government state that the court must have regard to

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guidelines relating to "offences in general", do they mean that the court will have to consider a single set of generic guidelines relating to the general arrangements for the sentencing of all offences? Or do they mean that the courts will have to consider a number of guidelines each relating to a particular type of offence? What is meant by "offences in general"?
In what circumstances do the Government envisage that the guidelines issued by the Sentencing Guidelines Council in respect of offences in general will be incompatible with what is set out in Schedule 17? Those are the matters on which I should be grateful for some clarification.
In addition, what appears to be an error in the Explanatory Notes has been brought to my notice. It may simply be an omission from the Bill or it may be the way that the Explanatory Notes have been written. Paragraph 560 of the notes states that subsection (5), to which I have just referred, will enable the court to take into account,
"any additional guidelines that may be issued by the Lord Chief Justice or by the Sentencing Guidelines Council".
But, of course, Clause 262 states that the definition of "guidelines" in Chapter 7 of Part 12 is the same as in Clause 165(1)—namely, guidelines issued by the Sentencing Guidelines Council. Therefore, what is the purpose of that reference to the Lord Chief Justice? Was it simply a googly thrown in in error and not expunged later or is there something really relevant in that? I beg to move.
Baroness Scotland of Asthal: I hope that I shall be able to give the noble Baroness the assistance that she seeks. I shall not recite what each amendment says because I understand that they are all probing.
I believe that the concern raised in Amendment No. 209A is already provided for in the Bill. The issues of retrospectivity and the compatibility of transitional cases with convention rights were considered in the drafting of these provisions. Paragraphs 9 and 10 of Schedule 18 provide for judicial determination of tariffs under Clause 254 where the offence was committed prior to the commencement. But they stipulate that the court may not set a minimum term higher than it believes the Secretary of State would have set under the former arrangements. We believe that that is compatible with Article 7 of the convention. I hope that that sets the noble Baroness's mind at rest in relation to that amendment.
Amendments Nos. 210A and 210B would alter Clause 254(5)(b) to provide that the court, in setting a minimum term, must have regard to the general principles and any guidelines. The amendments would allow courts, in setting tariffs, to follow principles set out in general guidelines which were not compatible with Schedule 17. I understand that that is not what the noble Baroness wants, but she does want an answer. Therefore, the current drafting seeks to achieve clarity. It is not probable that the Sentencing Guidelines Council will wish to issue guidelines that are counter to legislation. Therefore, we do not anticipate a direct conflict between the mandatory life principles and any guidelines issued by the council.
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However, the council will, on occasion, want to issue guidelines which cut across a range of criminal offences. In some cases, those might be properly applicable to murder tariffs; for example, the council might issue guidance on guilty pleas. Schedule 17 provides that the court may take into account guilty pleas when setting minimum terms. In other cases, the position might be more confusing; for example, the council might issue guidance on mitigating factors in criminal cases generally. It is possible that some of the content of such guidance would cut across the Schedule 17 principles were they to be applied to murder. Therefore, while the council might well never intend the guidelines to apply to murder, we wish to make it absolutely clear on the face of the Bill that courts should consider the Schedule 17 principles as paramount should there be any confusion.
Our intention is that Schedule 17 principles must be the overriding principles in setting minimum terms for murder cases. Therefore, I am unable to accept the amendment. I hope that the noble Baroness will see how the two fit together and why we have set out the provision in the way that we have.
Amendment No. 252ZA would remove the provisions allowing for the commencement of the new minimum term arrangements two weeks after Royal Assent. That would result in Chapter 7 becoming subject to Clause 305(3), which states:
"The remaining provisions of this Act come into force in accordance with provision made by the Secretary of State by order".
The introduction of the new arrangements would be delayed. That means that in the interim there would be no provision for adults convicted of murder to have their tariffs determined in a manner compatible with their convention rights.
That is the reason why we think that the amendment is not necessary. There are about 600 prisoners who have been convicted but have not yet received a tariff, so as a result of the Anderson judgment, this substantial number must be dealt with quickly and efficiently out of consideration for the human rights of the offender and to bring some closure for the family and friends of the victim. The longer we wait to bring in compatible arrangements for tariff setting the greater the number of those awaiting tariffs will grow. That will also increase the burden to be placed on the court system, which is substantial in any event.
I am grateful to the noble Baroness for bringing to my attention what is stated at present in guidelines. There may be a historical reference to the Lord Chief Justice not being superseded. I need to check that because I am also not clear as to whether they anticipate the position on the transitional arrangements where the Lord Chief Justice may have guidelines which would bite unless and until the new provisions come in. So, there may be that lacuna. However, it seems that it is one of the two. I shall certainly clarify that and write to the noble Baroness.
Baroness Anelay of St Johns: I am grateful to the noble Baroness. She has given clarity. Even though there may not be agreement among the Committee on

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the Government's objective or on how they are trying to achieve it, as she knows, we agree with much of what the Government are trying to do, but unfortunately— for them not for us—just not all of it. I am grateful to the noble Baroness for taking us further forward. I accept entirely what she said with regard to Amendment No. 209A and indicate now that I shall not return to that on Report. The noble Baroness has given assurances on compatibility with Article 7, which I accept.
I am intrigued by her explanation about the way in which the SGC guidelines indeed cut across Schedule 17 when they are not specifically aimed at it, but that Schedule 17 would override those issues. Again, I give notice that I shall not return to that on Report. I am grateful to the noble Baroness for saying that she will look at the reference to the Lord Chief Justice to see whether it is necessary for transitional purposes or whether it is just hors de combat. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
{Amendments No. 210 to 210B not moved.]
Lord Lloyd of Berwick Lord Lloyd of Berwick moved Amendment No. 211:
Page 147, line 29, leave out subsection (6).
The noble and learned Lord said: In this group of amendments I do not want to say more on the question of whether any of the clauses in this chapter should stand part because they stand or fall with my earlier amendment. Therefore, everything that needs to be said has been said.
Amendment 211 relates to Clause 254(6) which provides that:
"The Secretary of State may by order amend Schedule 17".
My objection to that subsection is twofold. It seems to give back to the Secretary of State very similar powers to those of which he has lost as a result of the decision of the House in the case of Anderson. I feel as certain as I can be of anything that a minimum sentence imposed under Schedule 17 amended pursuant to powers under Clause 254(6) will also be challenged in the courts on the grounds that such powers are inconsistent with the provisions of the Human Rights Act.
The second ground is similar to the objection advanced—at an earlier stage in relation to Clause 148. It will be remembered that under that clause, the Secretary of State was to have been given power to increase the sentencing limits of magistrates. There was then objection from all sides of the House to which, in the end, the noble Baroness gave way. So, happily, Clause 148 is no longer part of the Bill.
I say exactly the same about Clause 254(7), which seems to give the Secretary of State very similar powers to those which, as the noble Baroness conceded on the previous occasion, he is not entitled. I beg to move.
Lord Cooke of Thorndon: If I understand the Bill correctly—and I may well not have—I support what the noble and learned Lord, Lord Lloyd of Berwick, said.
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Taken as a whole, the sentencing directions in the Bill are detailed to a degree perhaps unprecedented anywhere else in the English-speaking world. They could certainly hardly be supported by any strict adherent to the separation of powers. Overall, they could be seen—I repeat that I may not have fully understood them—as an approach to a take-over bid by Parliament and the executive of functions naturally belonging to the judicial branch of government. Problems under the European Convention could well arise.
In all the complexity, I shall concentrate on one point Schedule 17(8) contains a provision that could be the saving of the legislative scheme. It states:
"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order".
That appears to introduce a considerable measure of elasticity and enable the particular circumstances of a case to be taken into account. However, in the main provisions of the Bill, Clause 254(6) states:
"The Secretary of State may by order amend Schedule 17"—
which is an apparently unfettered and overriding power. I respectfully ask the Minister whether that is, as it appears to be, intended as a avenue for a significant transfer of the judicial function to the executive. If not, why is Clause 254(6) unlimited?
Lord Thomas of Gresford: I do not propose to repeat what I said on the earlier amendment before the break. I wish to ask a series of questions on this group. First, why have the Government chosen to introduce the provisions in Chapter 7 before the Sentencing Guidelines Council has even been created, much less had an opportunity to consider and to advise on the appropriate level of recommendation?
Secondly, why do the Government seek to ratchet up the minimum sentence? We heard a lot about that from the noble and learned Lord, Lord Ackner, who pointed out that the recommendations are to be ratcheted up by at least 50 per cent.
Thirdly, why is it necessary to remove judicial discretion at all? We have no degrees of murder in the United Kingdom. There is no distinction in sentencing between a killing where the intention is merely to inflict serious bodily harm as opposed to deliberately taking life. For that reason, one would have thought that the very widest judicial discretion is required in setting minimum terms. Judges recognise human depravity on the one hand, and human weakness on the other. There are many grades in between which they are trained to assess and to consider.
The imposition of what are effectively degrees of murder, as proposed in the schedule, is arbitrary. There seems no real reason why the murder of a policeman would attract 30 years as the minimum term, whereas the murder of a security guard would attract 15 years as the minimum term. I recall a case where a security guard in Hong Kong was executed by the robbers of a jewellery store. That sort of situation exists in this country. I do not understand why there should be a 15-year difference between two such separate situations.

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Setting out a shopping list of aggravating and mitigating factors, compiled somewhere in the Home Office, is an insult to advocates, who, one would hope, would put forward mitigating factors—and, if prosecuting, aggravating factors—fully before the judge. There is no way in which he will not understand the particular circumstances of a case. Must he go through the checklist in Schedule 17 and give a plus for so much and a minus for something else in working out the appropriate sentence?
The noble and learned Lord, Lord Cooke, referred to the way in which the doctrine of the separation of powers is impinged upon in the proposals. It is surprising that a politician such as the Home Secretary should take it upon himself to introduce to such a Bill sentencing provisions of the nature that we are discussing, when his experience of courts is probably nil and his experience of the situations that give rise to the sort of cases that come before the courts is almost certainly minimal. Yet he and his department seem to feel that they can impose particular standards on people who have devoted their professional lives to such cases.
It appears that this is populism and vote-catching; it is not giving to the people of this country the careful and proper lead to which the noble Baroness, Lady Kennedy, drew our attention earlier. The whole purpose of the court system is to dispense even-handed justice between people who have committed crimes, to take away concepts of vengeance and vendetta and to try to return stability to society. Simply reflecting the popular will, which is what these provisions do, is no way to carry out the proper function of a Home Secretary. That is why we on these Benches oppose the whole of Chapter 7 in the way that is set out in these amendments.
Lord Borrie: On the scheme of the Bill, I find a great deal to commend in the way in which the purposes of sentencing are set out in Clause 135 and, if that is approved, those purposes of sentencing are approved by Parliament. Then, the Sentencing Guidelines Council, with its rightly mixed membership—it does not consist entirely of judges—lays down from time to time principles that judges will follow. Thirdly, there is the final independent discretion of the individual judge in the individual case to consider all the circumstances of that particular case over which he presides.
The real difficulty, however, is where the lines are drawn between each of those three parts of the scheme. We come to what I regard as the real difficulty in Schedule 17. One has to ask whether Parliament, in approving something like Schedule 17, should go down to the level of detail of particularity included in dividing up all the different possible circumstances in which murder is committed.
I freely draw on points made by a Liberal Democrat in the House of Commons—Mr Simon Hughes, their official spokesman—when he said that "invidious" distinctions are made in Schedule 17 between, for example, the murder of a child and the murder of a disabled person, or, alternatively, between the murder of a police officer on the one hand which is
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particularised, and the murder of some other equally important official acting in the public interest. That particularity, with which noble Lords may or may not agree depending on how one feels about those circumstances, is in tremendous detail in Schedule 17.
The point drawn out by the noble and learned Lord, Lord Lloyd of Berwick, on this amendment is that all of that particularity could be approved by Parliament if we agree. It could then—just like that—be amended at any point by the Secretary of State. Therefore, Parliament does not have the control. 1 am not suggesting that Parliament should have that degree of control over the particular differentiations between one type of murder and another, but certainly the Secretary of State should not.
Baroness Anelay of St Johns: The debate has ranged so widely that it may help the Committee if I introduce amendments on these issues that were in later groups, rather than tax the patience of the Committee by debating separate groups, especially in the light of what the noble Lord, Lord Borrie, has just said. The noble Lord draws our attention to the fact that the Government need to justify the different categories of murder that they have set out. With the leave of the Committee, I will refer to Amendments Nos. 212, 212B, 212C, 212D and 212F. All of those properly come within this particular response. I hope that gives the noble Baroness time to find the relevant parts in her own notes.
I can be very brief about Amendment No. 212, which is supported by the noble Baroness, Lady Linklater, the noble Earl. Lord Listowel, and the noble Baroness, Lady Stern. It refers in particular to the position of children and young people who are convicted of murder.
The Children's Society has briefed noble Lords on the matter. In another place, my right honourable friend Oliver Letwin and his colleagues made in clear in their debates on the Bill that we objected in the strongest terms to the inclusion of young people in Schedule 17. The Question whether Schedule 17 shall be agreed to is in the grouping.
There is a mandatory minimum term on conviction of murder for young people. Amendment No. 212 would ensure that, in cases involving children and young people, the discretion of the trial judge in setting the minimum custodial term in open court was retained under Section 60 of the Criminal Justice and Court Services Act 2000. The amendment would remove persons under the age of 18 from the provisions of Clause 254 and ensure that decisions on the length of detention in cases involving children were based on an assessment of the individual case.
At Third Reading in another place, the Home Secretary gave an undertaking to review the application of Clause 254 to children. As I mentioned earlier today, the Government offered a meeting on Monday this week about children in general that was, unfortunately, not able to go ahead. I hope that the Minister will give some indication of the Government's further thinking on those issues.

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I move even more directly towards the comments made by the noble Lord, Lord Borrie. The intention of Amendments Nos. 212B to 212E is to probe for the rationale behind the Government's categorisation of the seriousness of offences as "exceptionally" or "particularly" high. Why have some former death penalty offences been, apparently, downgraded from the whole-life tariff? Paragraph 4 lists offences that, the Government say, constitute the most serious murders and, therefore, qualify for the whole-life tariff. Amendment No. 212B would add to the Government's list murders that would, in the past, have been considered to be death penalty offences. Why have they been omitted from paragraph 4? If there is a reason, the Committee and the general public should know what it is.
Amendments Nos. 212C and 212D are consequential: they simply delete the parts of paragraph 5 that I transferred to paragraph 4 as part of the probing amendment. Amendment No. 212B would also delete paragraph 4. Paragraph 5 imposes a starting point of 30 years, instead of life. Amendment No. 212E would delete paragraph 6, which provides for a starting point of 15 years for all murders not caught by the definitions in paragraphs 4 and 5.
As other noble Lords have said, we have an odd situation in which the Government are saying, "Although murder is murder, some murders are worse than others, and we will tell you what they are". They have not explained to us why they have decided that particular murders fall into particular categories. Before we take decisions on Report about how we might respond to the Government's proposals in Clause 254 and Schedule 17, we need that explanation. The Government have not yet made a cogent case for subjecting those convicted of murder to the new starting points.
I have tabled other amendments giving possible solutions to the problems with Schedule 17. It is right, at this stage, that I do not move those amendments. 1 need to reflect properly on what the noble Baroness says in response to the noble and learned Lord, Lord Lloyd of Berwick, on Schedule 17. The Government have kindly offered a meeting later this week about sentencing, so I will have time to reflect on what the Government say tonight and at the meeting. I can take account of all of that and come back with a new package of amendments on Report, particularly as my first attempt to provide some kind of negotiated peace settlement failed so spectacularly last week, when the noble and learned Lord, Lord Ackner, told me that everything was perfect and there would be no movement at all.
9.45 p.m.
Lord Lloyd of Berwick: First, I apologise for referring to Clause 254(7), which does not exist, instead of Clause 254(6). My amendment is narrowly drawn, but the debate has gone wider. The fact that I have not addressed the wider questions about
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Schedule 17 does not mean that I approve of it in any way. I do not. I entirely agree with what has been said by Members of the Committee on that point.
The point on my amendment was put much more clearly by the noble Lord, Lord Borrie, than it was put by me. It is for the reasons which he advanced more clearly than me that I suggest that Clause 254(6) should be left out.
Baroness Walmsley: I should like to add my voice to those already supporting Amendment No. 212, which is aimed at ensuring children under the age of 18 are removed from the provisions of Clause 254 and that it will remain at the discretion of the trial judge to set the minimum term in open court. Section 60 of the Criminal Justice and Court Services Act 2000 makes provision for that. On these Benches, we believe that that should be retained at all costs.
The starting point is that children should be treated separately and not simply as young adults. If they were, why should we bother with the youth justice system at all? The truth is that in using every criterion of civilised, sensible, informed and humane behaviour within our criminal justice system we recognise that children are not simply small adults. A different system, different criteria, different knowledge and different expertise, with a common humanity, dictates a different approach. This includes the Sentencing Advisory Panel whose advice to the Court of Appeal on minimum terms in murder cases was that Ministers should not set tariffs for juveniles sentenced to detention during Her Majesty's pleasure and that there should be a sliding scale related to age.
Part of the just and realistic sentencing of children is the recognition that they are, by definition, immature, both emotionally as well as socially and, often, physically as well. Therefore, they will change, mature and develop in a number of crucial ways as they grow up. A 15 year-old is simply not the same person when he is 17 years-old. All of us who have had children know that. Every parent has experienced the change that children go through during their teenage years. Most institutions in our society are predicated on that self-evident fact. Therefore, it seems entirely unreasonable to pass a sentence of 15 years, which is rigid and takes no account of that change.
Let us think, for example, of the difference between a 15 year-old and a 30 year-old. To inflict such a penalty without being able to take account of such change or development, and its implications for differences in levels of dangerousness, understanding, remorse or contrition and without bothering to take account of notions of forgiveness or redemption, is unacceptable.
There are very few children who commit murder each year. Their offences are so different that there are no detectable or useful patterns or guidelines which could give a rationale to a blanket approach. All that the children have in common is that they are deeply damaged individuals, usually from deeply damaged families. They are almost always victims, too. That is not an excuse, but it aids understanding of the situation with which we are faced.

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Unless the trial judge can take into account the individual facts of the case and the age of the defendant, he or she will be denied justice. Article 37 of the UN Convention on the Rights of the Child is relevant here, as is Section 44(1) of the Children and Young Persons Act 1933, where it states that the welfare of the child should be paramount. We shall be coming to issues about that later in Committee.
The Sentencing Advisory Panel's advice to the Court of Appeal was that consideration should be given to the release of the child as soon as it is realistic to do so. As soon as the point has been reached where the child could safely be released, that should not be delayed. That, in turn, depends on the assessment being made in each case. I hope that the promised review of this clause in relation to children has happened and that the Home Secretary and the Minister can reassure us that common sense and humanity about children has prevailed.
The Earl of Listowel: I speak to Amendment No. 212 standing in my name and to illustrate, in another way, what the noble Baroness, Lady Walmsley, said. I recently visited a residential school for children with emotional and behavioural difficulties. The school has an excellent reputation in the field and had just had a highly favourable Ofsted report. The young woman who guided us through the classrooms had been in the habit, when she arrived, of punching out at staff and had broken the glasses of one staff member. Today she is entrusted to show around VIP visitors. A former pupil, a bright young Asian man, hailed the principal from across the lawn. This boy, once so wild, is now managing a BMW dealership. We heard of a deeply troubled girl who had recently returned to visit the school. She is now a grown woman, living with her husband, a steady professional man, and her young children. These individuals had managed to put their emotional and behavioural difficulties behind them; they had changed.
Children and young people who commit serious crimes are often also themselves vulnerable and poorly developed for their age. The principal of the school explained that swings were provided to be used by the 17 and 18 year-olds in the school. This child's play area was sited out of the view of children not attending the school and reflected the fact that those children and young people who have not had a full childhood need to experience their infancy at whatever age they are permitted to enjoy it.
On the same visit I enjoyed a game of Pelmanism with two seven year-old girls in the new junior school. Both had long, curly fair hair. They beat me at the game, perhaps because they had had more practice. I hope very much that, with the help of the school, they will be able to get to the root of their behaviour and experience achievement and recognition of that achievement, enabling them to become more at peace with themselves. But if they fail and if, heaven forbid, they harm someone else, I hope that the judge will be free to look at their actions and circumstances as a whole and determine the necessary sentence without undue government interference.
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With regard to Schedule 17, the Minister conceded earlier that the length of custodial sentences for serious offences will increase significantly as a result of the introduction of starting points, as set out in the schedule. What of those who do respond well to rehabilitation and no longer pose a threat to the public? Are they to be kept in prison, unproductive and weighing down the taxpayer, removing resources from other prisoners and perhaps becoming hardened, embittered and irredeemably institutionalised? Only this morning, prison officers at HMP Grendon told me that they had had to remove therapeutic services from lifers and offer them to those who had committed less serious offences because, as I think I understood, of the pressure of prisoner numbers.
I shall not trouble the Committee any longer at this hour. I look forward to the Minister's response.
Lord Hylton: As a mere layman, I find Schedule 17 deeply undesirable. Be that as it may, however, Clause 254(6) surely confers almost unprecedented powers on the Secretary of State, whether he is minded to make the law more severe or more lenient, whichever way it might fall out. For those reasons, I strongly support the amendment moved by my noble and learned friend Lord Lloyd of Berwick.
Lord Chan: I rise to add a small point which is relevant here. I support all that has been said by the noble Baroness, Lady Walmsley, and by my noble friend Lord Listowel. The younger the offender, the greater is the ability and the potential for change. That should be taken into account.
10 p.m.
Baroness Scotland of Asthal: It may be appropriate if I respond first to the amendment tabled by the noble and learned Lord, Lord Lloyd, referring to Clause 254(6). I shall try to deal with that issue as briefly as I can. Perhaps I may say to the noble Lord, Lord Thomas of Gresford, that in speaking to the last group of amendments, I said much that would respond to the comments he has made. At this hour perhaps we may take it as read that I have repeated those words and I shall confine myself to this one issue.
Of course I understand the concerns that have been expressed by my noble friend Lord Borrie and by the noble and learned Lord, Lord Lloyd, echoed by the noble and learned Lord, Lord Cooke, and the noble Lord, Lord Hylton, that these provisions give the Secretary of State very wide powers. The order-making power—which is what this is—will be subject to the affirmative resolution procedure. Its purpose is to enable the Home Secretary to make amendments as appropriate. The schedule is very detailed. However, we cannot foresee all the mitigating or aggravating factors that may arise in the future that should properly be included. We recognise that there may be a need to respond to new circumstances which we cannot now envisage. Many circumstances have come to the fore in the past five or 10 years which appear to be significant, either by way of mitigation or by way of aggravation, and which should properly be included.

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I hear what my noble friend Lord Borrie and others say about the particularity with which this issue has been looked at, and the comments of the noble Lord, Lord Thomas, about the somewhat mechanistic approach he described. The schedule describes the process that a judge goes through when trying to determine the appropriate sentence. He has to look at the circumstances of the offence, the aggravating features and what is said in mitigation before he arrives at a settled position.
Many noble Lords will have heard, as I have, of judges going through a similar exercise when determining the nature of sentence and explaining to the defendant and the public the way in which he has arrived at it. The judge will say, "I take into consideration the fact that this was a premeditated offence. I also bear in mind that at the time the victim was a person of tender age and/or mental incapacity", and so on. So, as the judge heads towards sentence, one sees that these are precisely the kind of issues that are expounded. We are not doing anything very unusual.
The other complaint is that this is micro-management—or, as the noble Lord, Lord Carlisle of Bucklow, would say, that we are teaching our granny to suck eggs. But there is a real issue of continuity, consistency and clarity, and anyone looking at these provisions will know the factors of aggravation and mitigation that have been taken into consideration. That should, we hope, assist in preventing ill informed comment.
The provisions will be subject to continuing parliamentary scrutiny under the affirmative resolution procedure.
Lord Lloyd of Berwick: I thank the Minister for giving way. Unless I have misunderstood it, Schedule 17 goes much further than setting out the process through which judges already go. Surely it sets out the starting points for particular types of murder—whole life, 15 or 20 years, whatever it may be. Subsection (6) enables the Secretary of State—at the stroke of a pen virtually—to change those starting points. I find that astonishing.
Baroness Scotland of Asthai: Let me make plain that at this moment it is not thought that it will be necessary to utilise this power. However, that is only because we cannot foresee every circumstance that might merit such a change. We know from the past five or 10 years that things do change. It must be right to allow the Home Secretary to bring an appropriate order before both Houses of Parliament and for Parliament to debate the issue and determine whether the proposals put forward by the Home Secretary are sound and acceptable.
Your Lordships will know, too, that I have said very clearly in dealing with the amendments spoken to before we adjourned that the Government feel very strongly that they should be entitled to express the will of the people and Parliament by setting the framework. The framework is what is included in
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Schedule 17, setting out, first, the different starting points and, secondly, the mitigating and aggravating circumstances which the court may bear in mind. That, we say, Parliament is entitled to do.
Let me turn to the amendments in the names of the noble Baroness, Lady Anelay, the noble Earl, Lord Listowel, and the noble Baroness, Lady Walmsley. I come first to Amendment No. 212, which proposes to exclude juveniles from the conditions to which the setting of the minimum term is subject. In fact, because the Bill also repeals the provisions in Section 82 of the Powers of Criminal Courts (Sentencing) Act 2000, which provides for juveniles to be given tariffs by the trial court, the amendment, as it stands, would leave juveniles without any right to receive judicially determined tariffs. I do not believe that that is what the noble Baroness intends.
I understand that the intention behind the amendment is to exclude juveniles from the application of the new principle. We think it is desirable and necessary to include juveniles in these provisions. It is very rare for murders to be committed by very young juveniles. Since 1998, figures have been kept for juvenile murders, divided into categories of 10 to 11 year-olds, 12 to 14 year-olds and 15 to 17 year-olds. The most recently available statistics show no murders since then by 10 to 11 year-olds, three murders since then by 12 to 14 year-olds and 15 to 17 year-olds committed 78 murders. Those figures show where the balance comes. It is mostly the 15 to 17 year-old age group that we are considering.
Cases such as the James Bulger killing are, thankfully, very rare. In the case of older juveniles, we do not think it right that there should be a very substantial disconnection around the age of majority. We would be worried, for instance, if the new principles were seen to apply to an 18 year-old, perhaps immature for his age, but not to a 17 year-old, perhaps mature for his age, where they have committed similar crimes.
We undertook, in another place, to review the principles in relation to juveniles. I am very grateful for all the views that have been expressed today about these matters, and we will be considering them very carefully. Our current thinking is that it is unlikely that we will want to remove juveniles from the framework altogether for the reasons that I have given. We believe that suitable provision can be made for the special needs of this group while including them within the scope of the scheme.
I was very much looking forward to the meeting which we were all due to have on these matters. I know that we will address these matters again later. I hope that under the circumstances the noble Baroness and noble Lords will feel able to withdraw this amendment. We are looking at this and will listen to what noble Lords have to say before we come to a final view. It would not be right to indicate that we have come to a final view yet because that would not accurately reflect the position.
Amendment No. 212A would limit the power of the Secretary of State to amend Schedule 17 on future occasions by ensuring that he may do so only where the

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Sentencing Guidelines Council has issued revised principles. We are not really able to accept the amendment. We believe that murder occupies a special place in the criminal justice system, that the offence is of a very serious nature—the most serious known to our criminal law—and the public rightly expect the authorities to ensure that the arrangements for sentencing for the offence afford adequate punishment for the guilty and adequate public protection.
I do not want to pre-empt a wider debate on the new scheme, as we shall come to that later. The Government remain fully committed to the continuation of a strong element of democratic accountability in the arrangements of the sentencing of murderers. Parliament is asserting, on behalf of the public, a legitimate role in relation to extremely serious crimes. It has been our concern in framing the principles to ensure that the element of democratic accountability remains.
I listened with great care to the comments of the noble Lord, Lord Thomas of Gresford. It sounded very much as if he was suggesting that these matters are for lawyers alone, that no one else need worry their heads about them and that, basically, they could be left safely in their hands. He seemed to be saying that, if one has the advantage of having a Home Secretary not burdened with a legal education, he in particular should not interest himself too keenly in these matters. I will say very gently to the noble Lord that his viewpoint is not shared by the general public. They believe that they have a view, and that their views have a right to be listened to and respected.
The amendment would not meet the need for Parliament to set the framework dealing with murder. An order made under Clause 254(6) is subject to the affirmative resolution procedure. The amendment would give rise to an odd situation: the principles are in primary legislation, and we would not accept that Parliament would need the authorisation of the Sentencing Guidelines Council before setting in legislation other sentencing issues such as maximum penalties and legislation. Parliament is the paramount authority; it would be very unusual for a specialist body such as the Sentencing Guidelines Council to have the final say in the use of Parliament's powers. That is the situation that the amendment would create, but I do not believe that it is what the noble Baroness, Lady Anelay, wants. She wants a discussion, but that is what her amendment would bring about, and I must resist it strenuously.
I move on to Amendments Nos. 212B, 212C, 212D and 212E, in relation to Schedule 17, to which I believe the noble Baroness, Lady Anelay, referred. The first three amendments would add to the category of murders with the starting point of a whole life tariff. The noble Lord, Lord Kingsland, and the noble Baroness would add the categories of,
"murder of a police officer or prison officer… murder done for gain"
and,
"murder intended to obstruct or interfere with the course of justice".
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I understand that the noble Baroness is picking those out to tease out how that will be dealt with.
We considered those points carefully, and it is a difficult task to weigh the factors that should affect the seriousness of the crime. I am grateful to the noble Baroness for her comments, but we do not believe that the amendments would strike the right balance.
The Government also regard with complete condemnation and repulsion murders that might be described as committed in cold blood to further a criminal career, and we recognise the need to protect. However, our conclusion was that the very heaviest penalties must bear on those who have committed multiple murders with features of special gravity; who have shown that they are capable of killing children to gratify their instincts; who consider themselves justified in taking others lives to further their ideological beliefs; and who, having previously been in prison for murder, have killed again. We believe that those must be considered the most dangerous and incorrigible offenders. For that reason, we attach the whole life tariff in relation to that category.
The murders to which the amendments refer will attract a 30-year starting point. That will produce substantially longer tariffs than have often been the case. Leon Brittan, in his 1983 statement on murder tariffs, said that murderers of police officers should serve at least 20 years. In practice, as the noble Baroness and noble Lords will know, that has tended to receive a tariff of between 20 and 25 years. Therefore, setting the starting point at 30 years enables the court to increase that tariff, if it deems that the nature of the offence is so grave. If for some special reason the court believes that the starting point is not appropriate, the court can adjust it as it deems necessary.
We have provided a very significant increase. I understand what the noble Baroness said about trying to balance putting one offence in one category and another somewhat differently. I hear what my noble friend Lord Borrie said about the making of those decisions being almost invidious. However, we think that it is important to make those decisions because of the need for clarity. I am sure that the Committee will have heard what I have heard on many occasions, particularly since entering my present post in June. I have heard people say that they do not understand how the system operates, what the judge takes into account, how judges make up their minds and why they reach certain decisions which treat the public so poorly. That is what the public appear to be saying. We need to provide clarity. The Government have sought to do that.
This measure constitutes a framework and a starting point. It is not, as so many have described it, a mandatory imposition of a sentence on a group of offenders who have committed a species of offence. It enables the court to tailor 1.he particular sentence to the particular facts but it gives the court a bracket within which to work.

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Amendment No. 212E would strike out the lowest starting point of 15 years, which will apply to the majority of murders. We believe that there is a clear need to set a lower starting point. For one thing—
Baroness Anelay of St Johns: In my attempt to telegraph my amendments I did not make clear to the Minister the purpose of Amendment No. 212E to which I referred when speaking to the Bill team earlier this week. Its purpose is not suddenly to catapult these people into the higher bracket but to try to tease out why we should not leave that matter to the discretion of the judge. The Minister said that the Government intended the measure to be a framework and a starting point. That makes me think of the words of the noble and learned Lord, Lord Lloyd of Berwick, and his concern that the order-making power that is given so readily to the Secretary of State could mean that the framework and the starting point become totally outwith that which is described to the Committee tonight.
Baroness Scotland of Asthal: I understand that concern. However, as the noble Baroness will see, we have given a great deal of thought to how we should structure the measure. It has not been done lightly. The noble Baroness will know of the intense work that was entered into during the preparation for Halliday and as a result of Halliday. In trying to achieve a statutory structure which gives voice to those different elements, we believe that we have the right framework which draws a balance between parliamentary setting of the boundaries and judicial discretion. We do not envisage the measure being changed easily, but we appreciate that if empirical data and different circumstances result in the matter being re-examined there must be an opportunity for Parliament to have its say.
I know what is usually said about affirmative resolutions and the affirmative procedure—that you have a choice. You can either strike the measure down or let it go. If I have correctly gauged the flavour of this Chamber on this Bill, I know precisely the course that noble Lords on the Benches opposite and others might take if an order were to come forward with which they did not feel generally content. As for the operation of the affirmative resolution procedure in this setting, I am fairly confident that both Houses would have an opportunity to have their say. I am grateful that the noble Baroness is not seeking to say that the starting point of 15 years is necessarily wrong, simply that she does not want the current or any other Home Secretary to be able to change it without—
Baroness Anelay of St Johns: Again I have not made myself clear enough. I was trying to signal that I have a general unhappiness with the whole setting of mandatory tariffs in the sense we are discussing, if that is not a contradiction in terms. I was trying to be as
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gentle as I could in pointing out to the Government that perhaps some cases should be left to the discretion of the judiciary.
Baroness Scotland of Asthal: We say that the issues are left to the discretion of the judiciary. I do not have to remind the Committee of paragraph 8 of Schedule 17, which sets out quite clearly that:
"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order".
That gives the widest possible judicial discretion to do justice on the facts of the case, having taken into account the factors set out in the paragraphs that precede it and paragraphs 9 and 10. We would say that the balance was clearly there. I think that I have dealt with all the amendments.
The Earl of Listowel: I thank the noble Baroness for answering most of the questions on the amendment that we asked, but there was one area to which I do not think that she had an opportunity to reply. She has said that the consequences of the proposals will be that persons convicted of serious offences are likely to have longer terms in custody as a result. I hope that I understood that correctly. I am very concerned about that because, as recently as a year ago, guidelines on such sentences were decided on by the Sentencing Advisory Panel. Why the sudden leap in increases in sentences for serious crimes?
I am particularly concerned when I think of the numbers of such people who have been through the care system—more than 50 per cent, I expect, have had experience of foster or residential care. In at least the case of residential care, those people have been grossly let down over many years. Steps are being taken, but we have an awfully long way to go. Will such people actually be punished and penalised? Of course they have a large element of self-determination, but there is also a large element of societal neglect in their cases. I would appreciate an assurance from the Minister on that.
I want to express my disappointment that children will be included in the clause. However, I will look at how that works out technically, as the noble Baroness alluded to technical problems that would mean that it was important to include them.
Baroness Scotland of Asthal: In relation to the offences, I am not saying that the tariffs will automatically be higher in all cases. We are saying that the Bill now sets a clear framework. I have tried to describe how the provisions will interact to enable the court to make the right type of decision for the right type of offence. We say very clearly that the expectation will be that, if someone commits a multiple child murder in sadistic circumstances, the expectation for such an offence will be a whole-life tariff.
On the previous occasion that we debated the matter, I said that there were cases that demanded a whole-life tariff because of their particular seriousness and nature. The noble and learned Lord, Lord Ackner, did not dissent from that, and it is clear that the noble

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and learned Lords who heard the Myra Hindley case did not either. It is the judgment that was clearly made in the case of Hindley, and there may be very few cases to which the tariff should justly be attached. However, the fact that it should be attached is clear.
Of course I hear all that the noble Earl says about the numbers of people who have been in care who appear in criminal statistics. Members of the Committee will know that that is why we are working together, right across the piece, with health and all other agencies—inter-governmental and outside agencies—to provide the support and framework that will mitigate the damage caused to and by children who are removed from their homes because of lack of care, neglect or otherwise.
Noble Lords will know that I share passionately the concerns of the noble Lord about the work that must be done. That does not detract from the fact that some of those children, for whatever reason, then tragically find themselves within the category of persons who are, frankly, dangerous and who have to be cared for in a location of some security until it is safe and satisfactory for them to be released into the public again. The Bill incorporates provisions which would affect the kind of children about whom I speak.
Lord Thomas of Gresford: The noble Baroness refers to the framework for sentencing. I see it as a strait-jacket that is put together by people without hands-on experience of the courts, be they Home Office civil servants or the Home Secretary today who becomes the Foreign Secretary tomorrow. Contrast that with the judges of this country. No experienced judge is appointed to a criminal court nowadays who has not had 25 years of daily attendance at courts, hearing all kinds of offences and dealing with all kinds of people.
There is flexibility. The noble Baroness referred to changes. There are changes that happen quickly in time, and there are changes between one part of the country and another part of the country. For example, if one looks at recent history, who would have thought two years ago that terrorism of the kind that we are now facing would be such an important part of our lives? Who would have thought 20 years ago that drugs would become such an important part of society's ills? Who would have thought that there would be race riots in some of the cotton towns in Lancashire, or that there would be invasions of rural areas from urban areas in other parts, or terrorism in Wales? All kinds of changes come quickly forward.
The judge, with his or her experience of the courts and the system, is in a position to take on board changes that are happening all the time—it is a continuous process—and can, as a result, weigh what is, in the particular place and time, an important mitigating factor or an important aggravating factor. Those of us who are experienced in the criminal system all know how from time to time, in various parts of the country, the courts take upon themselves condign punishment of a certain type of offence. That is the kind of role for which courts are designed. Therefore, a strait-jacket from Parliament, from people without
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experience, must be compared with a flexible system of experienced professionals who know what they are doing. There is no comparison at all.
Lord Lloyd of Berwick: Mine is the first amendment in the group. I hope that the Minister will consider again the order-making power under Clause 254(6), just as she considered again the order-making power under Clause 148 and was eventually persuaded that that order-making power was not justifiable; nor is it justifiable here.
The Minister protested that the power would not be used very often. We have heard that argument over and over again in recent legislation brought before this Chamber. We have it heard it over and over again from the noble and learned Lord the Attorney-General. It is not an argument which is good enough for the Chamber. If they are sufficiently important, those matters ought to be addressed by primary legislation and not by the order-making power. However, having made that point, and giving notice that I shall want to bring forward the amendment on Report, I beg leave to withdraw.
Amendment, by leave, withdrawn.
10.30 p.m.
[Amendments Nos. 212 and 212A not moved.]
Clause 254 agreed to.
Schedule 17 [Determination of minimum term in relation to mandatory life sentence]:
[Amendments Nos.212B to 212E not moved.]
[Amendment No 2I2F had been withdrawn from the Mai shalled List.]
Schedule 17 agreed to. Clause 255 agreed to Clause 256 [Appeals]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 212FA:
Page 148, line 2, at end insert —
"(2) In section 8 of the Courts-Martial (Appeals) Act 1968 (c.20) (right of appeal from court-martial to Courts-Martial Appeal Court) after subsection (1) there is inserted—
"(1ZA) In subsection (1) above, the reference to a sentence fixed by law does not include a reference to an order made under subsection (2) or (4) of section 254 of the Criminal Justice Act 2003 in relation to a life sentence (as defined in section 262 of that Act) that is fixed by law. ". "
The noble Baroness said: In moving Amendment No. 212FA, I shall speak also to Amendments Nos. 212FA to 212FD, 212HZA to 212HZD and 212HA to 212HG. These are all technical drafting amendments. They arise as a consequence of Clause 262 which interprets the scope of the minimum term provisions as including courts martial. Courts martial have similar powers and disposals to the general criminal courts in England and Wales and are therefore included in the minimum term scheme. Generally, these amendments make the requisite statutory changes for the provision in respect of minimum terms in general, criminal courts to be reflected in courts martial.
I can give a more detailed explanation but I am sure Members would not wish me to weary the Committee.
On Question, amendment agreed to.
Clause 256, as amended, agreed to.
Clause 257 [Review of minimum term on a reference by Attorney General]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 212FB: Page 148, line 12, at end insert—
"(2) Each of the following sections (which relate to the review by the Courts-Martial Appeal Court of sentences passed by courts-martial)—

(a) section 113C of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),

(b) section 113C of the Air Force Act 1955 (3 & 4 Eliz. 2
c. 19), and

(c) section 71AC of the Naval Discipline Act 1957 (c. 53),
is amended as follows.

(3) After subsection (3) there is inserted—
"(3A) Where a reference under this section relates to an order under subsection (2) of section 254 of the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence), the Courts-Martial Appeal Court shall not, in deciding what order under that section is appropriate for the case, make any allowance for the fact that the person to whom it relates is being sentenced for a second time."."
On Question, amendment agreed to.
Clause 257, as amended, agreed to.
Clause 258 [Life prisoners transferred to England and Wales]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments
Nos. 212FC and 212FD:
page 148, line 15, leave out "a relevant order" and insert "one or more relevant orders"
Page 148, line 29, leave out from beginning to "an" in line 30 and insert "in the case of an offence which appears to the court to be"
On Question, amendments agreed to.
Clause 258, as amended, agreed to.
Clause 259 [Further provisions about references relating to transferred life prisoners]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 212G:
Page 148, line 40, leave out subsection (1).
The noble Baroness said: In moving Amendment No. 212G, I shall speak also to Amendment No. 212H. Clause 258 makes provision for the courts in England and Wales to determine the minimum terms for offenders who have been convicted of murder outside the United Kingdom and the other British islands and who consent to be transferred to serve their sentence in England and Wales. Clause 259 sets out the procedure for making such a determination. These two probing amendments seek clarification of that procedure.
First, in relation to subsection (1), I would be grateful if the Minister could explain why the determination is to be made without an oral hearing. Secondly, will she explain the purpose of the order-making power in subsection (7), which at first glance seems to be very wide indeed—particularly as the
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Committee has just debated its concerns about wide order-making powers. Why do the Government need this one too? I beg to move.
Baroness Scotland of Asthal: I hope that 1 can give the noble Baroness the explanation that she seeks. The legislation provides for a determination of tariff to be made on the papers by the High Court, and there is provision for an offender to appeal against that decision. We are alive to the implications of the Easterbrook judgment, and believe that our arrangements are compatible with Article 6—on appeal it will be possible for the offender to have an oral hearing. That applies to transitional cases and to transferred-in prisoners.
Given the practical situation, we believe there is fairness and common sense in the proposal to make tariff determinations on the papers. Around 600 prisoners who have been convicted have not yet received a tariff. To process all those on the basis of an oral hearing would take a very long time. There should not be undue delay in giving those prisoners a decision on what their tariff will be. Once a determination is given, that minimum term will not be raised on an appeal by the offender, although, of course, that could happen on an appeal against an unduly lenient sentence by the Attorney-General.
The clause struck out by the second amendment is a precedented provision. It appears in Sections 89 and 90 of the Proceeds of Crime Act, and it was used there for the same reason that we are proposing it now. It is a general rule-making power to set up procedures for appeals, and it prevents the need to make complicated amendments to the Criminal Appeal Act 1968.
I cannot yet give fuller details to the noble Baroness of what procedures might be proposed for these determinations and appeals. Officials are working with colleagues in the Lord Chief Justice's office to develop procedures that will deal with these issues fairly and expeditiously. I hope that, with that reassurance, the noble Baroness will feel content.
Baroness Anelay of St Johns: I thank the noble Baroness for her reassurances, which I accept. I shall not return to these matters on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 212H not moved.]
Clause 259 agreed to.
Clause 260 [Duty to release certain life prisoners]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 212HZA and 212HZB:
Page 149. leave out lines 22 to 27 and insert—
"( 1A) This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner's sentence is a reference to the part of the sentence specified in the order."
Page 149, line 28. after "(lB)(a)" insert—
"(a) for the words from the beginning to "applies" there is substituted "this section does not apply to him", and
(b)"
On Question, amendments agreed to.
Clause 260, as amended, agreed to.
Clause 261 agreed to.
Schedule 18[Mandatory life sentences: transitional
cases]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 212HZC to 212HG:
Page 267, line 10, leave out "a mandatory life sentence" and insert "one or more mandatory life sentences"
Page 267, line 11, at end insert "(whether or not he is also serving any other sentence)"
Page 267, leave out lines 12 to 14 and insert—
""life sentence" means a sentence of imprisonment for life or custody for life passed in England and Wales or by a court-martial outside England and Wales;
"mandatory life sentence" means a life sentence passed in circumstances where the sentence was fixed by law."
Page 267, line 16, after "who" insert "in respect of any mandatory life sentence"
Page 267, line 23, after "must" insert "in relation to the mandatory life sentence"
Page 267, line 33, after "prisoner" insert "in respect of the sentence"
Page 268, line 20, after "who" insert "in respect of any mandatory life sentence"
Page 268, line 25, at end insert "in relation to the mandatory life sentence"
Page 270, line 13, leave out paragraph 16 and insert—
"16 (1) In relation to an existing prisoner, section 28 of the Crime (Sentences) Act 1997 (c. 43) has effect subject to the following modifications.
(2) Any reference to a life prisoner in respect of whom a
minimum term order has been made includes a reference to—

(a) an existing prisoner in respect of whom an order under
paragraph 3(1)(a) has been made, and

(b) an existing prisoner serving a sentence in respect of which
paragraph 3(3) applies.

(3) Any reference to the relevant part of the sentence is to be
read—

(a) in relation to a sentence in respect of which an order
under paragraph 3(1)(a) has been made, as a reference to the part specified in the order, and

(b) in relation to a sentence in respect of which paragraph
3(3) applies, as a reference to the notified minimum term as defined by paragraph 3(4).

(4) In subsection (IB) (life prisoner serving two or more
sentences), paragraph (a) is to be read as if it referred to each of
the sentences being one—

(a) in respect of which a minimum term order or an order
under paragraph 3(1)(a) has been made, or

(b) in respect of which paragraph 3(3) applies.

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16A In section 34(1) of the Crime (Sentences) Act 1997 (c.43) (interpretation of Chapter 2 of that Act), in the definition of "life prisoner", the reference to a transferred prisoner as defined by section 258 of this Act includes a reference to an existing prisoner who immediately before the commencement date is a transferred life prisoner for the purposes of section 33 of that Act. "
On Question, amendments agreed to.
Schedule 18, as amended, agreed to.
Clause 262 agreed to.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment
No. 212J:
Before Clause 263, insert the following new clause—
"REVIEW OF UNDULY LENIENT SENTENCES (INDECENT PHOTOGRAPHS OF CHILDREN)
Part IV of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) shall apply to any case in which sentence is passed on a person for any of the following offences—

(a) offences under the Protection of Children
Act 1978 (c. 37);

(b) offences under Article 3 of the Protection of
Children (Northern Ireland) Order 1978
(indecent photographs of children);

(c) offences under section 160 of the Criminal
Justice Act 1988 (c. 33) (possession of indecent photogiaph of child);

(d) offences under Article 15 of the Criminal
Justice (Evidence, etc.) (Northern Ireland)
Order 1988 (possession of indecent
photograph of child);

(e) attempting to commit, or inciting the commission of, any of the offences described in paragraphs (a) to (d). "

The noble Baroness said: In moving Amendment No. 212J, I shall speak also to Amendments Nos. 252A and 257A. The amendments would apply to child pornography offences the powers available to the Attorney-General under the provisions of the Criminal Justice Act 1988 to apply to the Court of Appeal for the review of unduly lenient sentences. The amendments would extend to England, Wales and Northern Ireland, and Amendment No. 252A would ensure that the new powers came into force 14 days after Royal Assent.
Three years ago in the Criminal Justice and Court Services Act 2000, Parliament raised the maximum sentence for possession of indecent photographs of children from six months' to five years' imprisonment and the maximum for taking, making or distributing such photographs from three years' to 10 years' imprisonment. Those changes had full cross-party support. They were a response to the huge increase in the trade in child pornography that unhappily has accompanied the technological advances made in recent years—in particular, with the arrival of the Internet.
The Criminal Division of the Court of Appeal issued a guideline judgment in the case of R vOliver at the end of last year giving guidance to sentencingjudges on the length of sentences to be imposed for these offences

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using five levels of seriousness to describe the images involved. However, noble Lords will be aware that in many cases offenders who have committed many serious offences are, indeed, still receiving what appear to be lenient sentences. I could give examples but at this late hour shall desist.
My amendments would allow the noble and learned Lord the Attorney-General to apply for unduly lenient sentences in such cases to be reviewed by the Court of Appeal. The question arises as to why these very serious offences are not already included within the scope of the powers to which I have referred. Perhaps it may be simply that when Parliament enacted the powers in Part IV of the 1988 Act, the fact that the maximum sentences for the two classes of offence were six months and three years respectively meant that it was considered then that there was very little possibility of persuading the Court of Appeal that a sentence within the available range was not merely lenient but unduly so due to the relatively limited sentencing powers of the Crown Court at that time.
The position has now changed. The maximum sentence for possession is now nine times what it was in 1988. The maximum sentence for taking, making or distributing is more than three times higher. The range available to sentencing judges and to the Court of Appeal is much broader and in many cases non-custodial sentences are, I am told, being imposed for very serious offences indeed despite that increase in the maximum penalty.
We have talked much today about what is of interest to the public. It is very clear that these matters are of great concern to the public. Surely, those who contribute to the abuse of children by making and possessing these images should face prosecution and be punished severely. I believe that the amendment would put the Attorney-General in a better position, one which he should find to his advantage and to the advantage of the public. I beg to move.
The Attorney-General (Lord Goldsmith): I start by saying something which I am sure will be readily accepted, but which is important to say. On these Benches we share the abhorrence referred to by the noble Baroness, Lady Anelay, at the conduct to which these offences refer. Children deserve and will receive this Government's continuing protection. That is why, as the noble Baroness said, with cross-party support the maximum sentence for these offences was significantly increased in the Criminal Justice and Court Services Act 2000. Should it be the case, or should it appear to be the case, that further measures are necessary to suppress this mischief, we shall not shrink from taking them.
As the noble Baroness said, the increase for the particular offences in terms of maximum penalty was substantial: from three to 10 years' imprisonment and from six months' to five years' imprisonment respectively for the two offences. The offence which previously had been a summary only offence became one triable on indictment. As the noble Baroness also said, since those higher maximum penalties came into
882
effect in January 2001, there has been the important guideline judgment on sentencing by the Court of Appeal in the case of R v Oliver, Hartree and Baldwin. That set out the sentencing guidelines for the offences taking into account the revised maxima which had been introduced.
The guidelines will be very helpful in ensuring that the courts are clear on what is expected of them when it comes to sentencing for this kind of offence.
It is perhaps not generally known that although the unduly lenient sentence power provides an opportunity for me. on behalf of the public, to propose public policy considerations to the Court of Appeal when it is setting sentence guidelines or frameworks, that is not the only opportunity that I have. Following a particular guideline case, I agreed—at his request— with the Lord Chief Justice to provide counsel instructed by me to put forward public policy considerations in cases where, although there was no unduly lenient sentence application, there was a desire by the Court of Appeal to set a general guideline. That happened in relation to dangerous driving offences in the case of Cooksley.
So that is an opportunity to assist in setting sentences appropriate for the offence, taking into account public concerns when the Court of Appeal comes to do its job. That guideline judgment was delivered only late last year. So far, we have no formal statistical evidence about the overall pattern of sentencing in such offences since that case, but we have no reason to believe that the sentencing for those offences since then is especially lenient. It is perfectly possible—this frequently happens—that it is taking a little time for guidelines from the Court of Appeal to have full effect in the lower courts. But prosecutors who have been consulted are not aware and have no concern that the increased sentencing powers are being exercised inappropriately by the courts.
So it has not seemed to the Government that there is any case for adding those offences to the unduly lenient sentence scheme. Of course, it is possible for the Secretary of State to do so by means of secondary legislation, so the present amendment is by no means the only opportunity at which the matter can be considered; and we can keep it under review.
I turn to what may be a slightly delicate matter for me to raise in this context, which is the question of the additional burden that adding to the powers puts on me and my deputy. The way in which such cases are dealt with involves not just advice for the prosecuting counsel who has been involved and the local CPS, not just independent advice from independent Treasury counsel, which we always have commissioned; the matter is also considered in my office.
Ultimately, every decision to refer a sentence as unduly lenient involves the personal consideration of the Attorney-General—myself—or of my deputy, the Solicitor-General. Adding additional categories of cases to those which we can refer risks adding a burden to the work that is put on us, but also on the Court of Appeal. The Court of Appeal from time to time expresses concern about the burden on it. It takes each

883
case referred by me seriously: it wants to ensure that they are properly considered, which means that a Court of Appeal must be set up.
Baroness Blatch: Does not the noble and learned Lord agree that if it is felt that an unduly lenient sentence has been awarded in the case of the three offences set out by my noble friend, the burden on the Attorney-General—indeed, on any part of the system—should not be an argument against my noble friend's amendment?
10.45 p.m.
Lord Goldsmith: I entirely agree that the burden on me is completely irrelevant. The burden on the Court of Appeal is a different matter. The Court of Appeal has a heavy job of dealing with cases: appeals against sentence; appeals against conviction. The more cases that are put in to the system on the resources given to the Court of Appeal, the slower justice may be for many.
One must balance those with the degree of concern that exists and the degree of need to refer particular categories of cases. The unduly lenient sentence power does not apply to anything like the majority of offences that can be tried or sentences passed. That is why I started by emphasising the Government's view— particularly given the increase in the sentence agreed and passed in the light of the guideline judgment provided by the Court of Appeal—that there does not appear to be a need to add these offences to the existing categories of cases that can be referred.
That points to the fact that further offences should be added only where there is a proven need to do so. That is why I referred to the question of the burden on all involved. There are many offences that one might desire to add to the existing scheme—indeed, many have been mentioned in the Committee—but there is no apparent need to add those offences at present.
We will monitor closely the operation of the increased sentencing powers for those offences. We will not hesitate to take action if a need to do so becomes apparent. That does not depend upon primary legislation, because there is an existing power under which it can be done by the Secretary of State through secondary legislation, as has been done on previous occasions. Those are the reasons for the Government's view that this is not the right moment to add the offences to the scheme. I invite the noble Baroness not to press the amendments.
Baroness O'Cathain: The noble and learned Lord seems to think that there is some merit in the approach and to realise the reasoning behind it, but he says that now is not the time. Does he think that things will get worse? When will be the time? Having listened to the noble and learned Lord very carefully, I get the strong impression that he feels there is a lot of merit in the approach. Why can he not adopt it now?
Lord Goldsmith: There is a balance. When the important power to refer unduly lenient sentences to
884
the Court of Appeal was introduced, it was thought that very few cases would be referred. The Committee may recall that the power was introduced at the time of the Ealing vicarage rape, which is what caused its creation. Before then, we had no ability to ask the Court of Appeal to review a sentence.
The jurisdiction has grown. Very important cases have been referred. I mentioned dangerous driving, and I have personally argued cases relating to child sex abuse, rape and gun crime. They provide an opportunity to take important issues to the Court of Appeal. But there is always a balance to be struck as regards which offences to include. A general right of appeal on every sentence would result in a considerable burden. I do not say that it is an issue for me, but it would be an issue for the courts system and others who must deal with it.
There has been a significant increase in the maximum sentence, and the Court of Appeal has laid down clear guidance for the lower courts to follow. I do not understand there to be any criticism of that guidance. If it is followed, the result will be appropriately tough sentences for this very serious crime and there will be no need to refer cases to the Court of Appeal as unduly lenient. That is the reason for it. It is intended to strike a balance between cases where there is a prudent need to add at this stage and those where there is not.
Lord Thomas of Gresford: The noble and learned Lord has described well the system whereby advice comes from the prosecutor, through the C PS, who takes professional advice on sentence levels and argues the case before the Court of Appeal. Does the noble and learned Lord the Attorney-General e\cr go to Parliament to ask Members of Parliament for their views or to the Home Secretary to ask him what he thinks he should do, or is the matter just left to the professionals?
Lord Goldsmith: Why do I think that I have now returned to a previous group of amendments? The category of power that is used is a particular one. In the vast majority of cases with which I am concerned, I am aware from previous cases what the appropriate tariffs are However, there are occasions on which it is appropriate to examine other considerations. When I ask instructed counsel to argue about the tariffs in relation to dangerous driving, for example, it is appropriate to understand what the statistics are, what are the concerns from government departments relating to the levels of crime and deaths on our it roads, and what are the views of the public. Yes, there are parliamentarians who have expressed strong views about those issues as well, which it would be appropriate to take into account when considering how to address the Court of Appeal about the appropriate sentences to be passed.
Lord Thomas of Gresford: Will the noble and learned Lord tell us whether it is the views of the MPs, the newspapers and the Home Secretary that prevail or his own view—the professional view that he takes, having regard to previous cases and guideline cases in the past?
Lord Goldsmith: I hope that the noble Lord will forgive me, but this is plainly a debate about another amendment. The amendment to which I have been asked to respond is a very proper and important proposal in relation to a particularly serious crime. The Government are being asked to consider whether to add it to the unduly lenient sentence power. It is not right to hijack that important debate by returning to matters that the noble Lord has debated at some length with my noble friend Lady Scotland.
Baroness Anelay of St Johns: I am grateful to the noble and learned Lord the Attorney-General for his careful response. He started by saying that he shares our abhorrence of the conduct of people that results in the sentences we are discussing. I entirely accept that: he has made that clear throughout his distinguished career at the Bar as well. However, he says that, although he has some sympathy with the amendment, the time is not right or that there is no evidence to prove that this power of referral is needed. I am intrigued by that because in one breath the noble and learned Lord says, "The power is not needed. There is no evidence, so it won't happen", and in the next breath says, "Of course, we shouldn't mention this but were the power to be there we might end up with the Court of Appeal being over-burdened because of work". That argument does not work both ways.
Lord Goldsmith: I am obliged to the noble Baroness. I have been taken to task for referring to personal burdens so I am very anxious not to mention the point too much. I will talk about myself instead. I receive a large number of requests to consider references, many of which are not sent to the Court of Appeal at all because 1 do not think that they are appropriate. They come from prosecutors but also from members of the public. If we expand the category of the offence, all cases will receive applications. Each has to be carefully considered and each has a resource implication attached. Even in cases that are not sent, there is a burden.
Baroness Anelay of St Johns: Some burdens are worth it and child-protection is one. I wish to test the . opinion of House.
10.59 p.m.
On Question, Whether the said amendment (No. 212J) shall be agreed to?
Their Lordships divided: Contents, 24; Not-Contents, 39.

Division No 4

CONTENTS

Addington, L.

Montrose, D.

Anelay of St Johns, B.

Northesk, E.

Attlee, E.

O'Cathain, B.

Blatch, B.

Onslow, E.

Bridgeman, V. [Teller]

Russell, E.

Byford, B.

Selborne, E.

Chan, L.

Shutt of Greetland, L.

Cope of Berkeley, L. [Teller]

Skelmersdale, L.

Elliott of Morpeth, L.

Strathclyde, L.

Hodgson of Astley Abbotts, L.

Thomas of Gresford, L.

Lyell, L.

Tordoff, L.

Mar.C.

Walmsley.B.

NOT-CONTENTS

Acton, L.

Harris of Hanngey, L.

Andrews, B.

Harrison, L.

Ashton of Upholland, B.

Hayman, B.

Bassamof Brighton, L.

Hogg of Cumbernauld, L.

Berkeley, L.

Hunt of Chesterton, L.

Billingham, B.

Hylton, L.

Brookman, L.

Jones, L.

Campbell-Savours, L.

Macdonald of Tradeston, L.

Clark of Windermere, L.

Mclntosh of Hudnall, B.

Davies of oldham, L. [Teller]

Massey of Darwen, B.

Desai, L.

Pendry, L.

Evans of parkside, L.

Pitkeathley, B.

Evans of Parkside, L.

Ramsay of Cartvale, B.

Farrigton of Ribbleton, B.

Rooker, L.

Gibson of Market Rasen, B.

Scotland of Asthal, B.

Golding, B.

Smith of Leigh, L.

Goldsmith, L.

Stone of Blackheath, L.

Gordon of Strathblane, L.

Thornton, B.

Gould of Potternewton, B.

Warner, L.

Grocott, L. [Teller]

Whitaker, B.

Resolved in the negative, and amendment disagreed to accordingly.

Business of the House
11. 10 p.m.
The Countess of Mar: The guidance in the Standing Orders states that it is a firm convention that the House should adjourn at 10 o'clock. Given the effects on the Hansard writers, bar staff and other staff working in the House, may I ask the Chief Whip what time it is intended that the House should resume?
Lord Grocott: Your Lordships will know that it was signalled in the business for this week that we would sit late tonight. It is also well known that the advice for the House to rise at 10 o'clock set out in the Companion is not an iron rule for the precise reason that we need to have flexibility. I think that that is understood on all sides.

887
Tonight it is intended to move as rapidly as we can to the end of Part 12.1 am hopeful that we shall be able to achieve that and I shall resume my place as quickly as possible. However, one must learn to be flexible in this job because one has responsibility without power.
Lord Cope of Berkeley: I fully accept that the rising time of 10 o'clock is a convention and not a firm rule of our Standing Orders. At the same time, however, noble Lords know that that convention has been broken extremely frequently, in particular over recent weeks. We sat until midnight last night and, if we are to achieve the target just suggested by the Captain of the Gentlemen-at-Arms, then we shall sit until at least that time tonight. I think that it is extremely unsatisfactory for both Members and the staff that we should so frequently break the rule.
This particular Bill is enormous, covering two volumes. What is more, it has a large number of government amendments to it. I accept that some of those take on points that were suggested by the Opposition or by outside comment, but some are wholly the result of the Government rewriting their own Bill, having rethought it since it was originally introduced.
So far the Bill has been considered for seven-and-a-half days, but given that it is such a large Bill, it deserves more time than it has been allocated. Furthermore, if, as rumour suggests, it is to be seriously altered even further by the addition of new material at the Report stage, then the time presently allocated to it will not be sufficient.
I have made these points to the Government on other occasions, but it is right to share them with the Committee at this stage of our deliberations and at this time of night.
Lord Shutt of Greetland: I am not convinced that the work of the House is at its best at 12 minutes past 11 o'clock, but word has been given about our business tonight; as that word has been given, it had better be kept. Nevertheless, working into the early hours is not a good way of doing business and I hope that it will not be repeated on subsequent occasions.
Earl Russell: Convention is a two-way street. What the noble Countess said is true, and what the noble Lord, Lord Grocott, said is also true. If the Government wish the House to rise earlier, that creates an obligation to introduce business whose bulk is proportionate to the number of hours allocated to its consideration,
In that context, may I ask the Minister how many Bills originating from the Home Office have been placed before this Session of Parliament, and how many pages those Bills add up to? If the noble Lord, Lord Grocott, is not instantly provided with the answer, I think it should be put down for Written Answer because that information should be made available to the House.
The Earl of Northesk: I wish to intervene briefly and I apologise to the Government Chief Whip; I know
888
that he wants to get on with the business. There is a serious issue here and I wish to make a simple point. In my life in this House, I talk to everyone and I have to say to the Government Front Bench that the staff are utterly fed up with being given a perception of when the House is going to rise, and then finding that that perception has been taken away. The Government really do have to get a grip on this issue.
Lord Grocott: In response to the last point, I make every possible effort to ensure that the people who serve us so well in this House are kept informed at all stages. I regard that as one of my principal functions and responsibilities. So far as it is within my power— which is incredibly limited—to know how long it will take to deal with groups of amendments, I keep everyone informed as much as it is within my capacity to do so.
I do not have to hand the precise answer to how many pages and clauses have been in Home Office Bills in this Session. However, what I do have reserved for emergencies in the back of my brain is the size of this Session's programme in comparison with other Sessions, and it is not excessive.
This really is not the time for this debate. I have debated the issue with the noble Lord, Lord Cope, on many occasions through the usual channels. The remedy is within the House's hands. I shall let your Lordships into a secret: I do not like staying here until one or two o'clock in the morning. I should like to rise much earlier than 10 o'clock. I do not believe we can give legislation effective scrutiny sitting late at night. The remedy is within the hands of the House and it is very simple: there should be agreement that the overwhelming majority of Bills should be considered in Committee. However, they should be considered in a committee as it is understood in every other organisation—legislative or otherwise—of which I have had experience; a committee which does not consist of the whole parent organisation in its normal form.
If two more Bills of moderate size had gone to Grand Committee in this Session, we would have risen easily by 10 o'clock on any occasion we needed to. What is more, we might have had slightly longer recesses. Believe me, that is something which not only I would vote for, but which the two trade unions of which I am honoured to be a member are strongly in favour that their members should vote for.
Lord Cope of Berkeley: But the Chief Whip will also acknowledge that far more Bills have gone to Grand Committee this year than in any previous Session. That was a part of the deal which led to the 10 o'clock arrangement, the 7 o'clock on Thursday arrangement and the whole package. The agreement about sending Bills to a Grand Committee has been kept, over and above what was agreed at the time.
The Earl of Onslow: I have been in the House for 33 years. What seems to have happened is that although there may not have been any more business this year, yet again the end of the Session is getting fuller and fuller and the beginning emptier and emptier. There is

889
nothing new in that. When we were in power, noble Lords opposite moaned quite a lot about a similar subject.
But it seems to have got worse. The reason for that is that we are not having the State Opening until 26th November, which is phenomenally late in my experience. The concentration at the end of the Session has got much worse, and it is that which is causing the problem, not necessarily the number of Bills before us. That is the Government's fault. It is not the fault of the Opposition and other Members of your Lordships' House, who are trying to do the job that they come to this splendid place to do.
The Earl of Northesk: I would welcome some response to the observation I made. Notwithstanding the obligation of the House to get government business through—I understand that that is our responsibility—I beg the Government Front Bench to realise that that can happen only under circumstances where you treat the staff of the House fairly. If you tell them there is an expectation that they will be going home at 10 o'clock, and then consistently break that rule, you betray your contract with them. If you want to live that way as employers, fine, but it is wrong.
Lord Tordoff: My Lords, I would like to press the point that my noble friend Lord Russell has made. It seems to me that the problem is not so much that we are getting more Bills but that the Bills are getting bigger. They are now three Bills in one. It is not unusual for Bills to run to 300 or 400 clauses. That is the difference between what is happening now and what happened 10, 15 or 20 years ago. That is what is taking the time of this House. The Chief Whip needs somehow to feed back through the Government's system the fact that we will deal with Bills for as long as it is necessary to deal with them properly but, for heaven's sake, can we have one Bill at a time and not three in one all the time?
The Countess of Mar: My Lords, I am grateful for the Chief Whip's response to my initial question to him. The whole House was asked to vote on the 10 o'clock adjournment, and we agreed to the 10 o'clock adjournment. The agreement that we continue beyond the 10 o'clock adjournment seems to have been between the Front Benches. There has been no consultation whatever with the Back Benches. I think that I voice the opinion of many Back-Benchers—and perhaps some Front-Benchers—who are deeply unhappy with this.
I echo what the noble Earl, Lord Northesk, has said about the provision of staffing, particularly the Hansard writers; they have to find a Hansard writer every 10 minutes. It is extremely difficult for them if they do not know what time the House is going to adjourn. Many of the Bar staff have families and children; they are expected to provide service here and to care for their children and families at home. This is unreasonable, in view of the fact that it is a Standing Order that the House do adjourn at 10 o'clock.
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It is a firm convention, but what is a firm convention if it is not firm? We have overridden it time and time again. This is the third time that I have got up in your Lordships' House: the first time I moved the amendment, and I have asked twice what time it is intended that the House do adjourn. I gather that tonight we are expected to go on into tomorrow morning, until 2 o'clock. This is unreasonable, and it is unreasonable to expect us to do our business efficiently at such an hour.
Baroness Gibson of Market Rasen: My Lords, I was not going to speak in this debate because I am very new to the House in relation to many of your Lordships, having been here only three years. However, I am finding this debate rather strange.
I joined the House in May 2000; between May and when we broke up in July, I do not think there was any evening when I went home before 10 o'clock, and this was long before any agreement had been reached about not going beyond 10 o'clock. I remember that once we went right through the night, until 7 o'clock in the morning, and even had to pay for our breakfast. A beautiful cooked breakfast was provided but I thought having to pay about £5 for it was a bit thick, considering that we had done many hours' work. If I were still in industry, I would have objected very strongly.
I absolutely agree with the noble Lord, with whom I have not had the pleasure of discussing this previously. I believe that we have to be fair to staff in the House. But there is no difference to the situation that prevailed before we decided we would leave at 10 o'clock.
The Countess of Mar: My Lords, may I interrupt the noble Baroness? There has been a vote in the House that we do adjourn at 10 o'clock—that is the difference.
Baroness Gibson of Market Rasen: My Lords, the difference also was, as I understood it—I may be wrong and I am sure the Chief Whip will tell me if I am—that this was not written in stone. It was explained to all of us at that time that there might be occasions on which we would have to stay longer. I agree with the noble Lord who said that the Bills are long—I have moaned about that to the Chief Whip. But I think we are getting this a little out of proportion. We should get on with debating the Criminal Justice Bill now and then have the debate about the hours another time.

Criminal Justice Bill
11.25 p.m.
Baroness Blatch 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

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(1)This section applies where an individual—

(a) is convicted of an offence against a child, and

(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
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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

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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
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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.

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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.
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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

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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.
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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.

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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
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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.

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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
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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

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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.
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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 Baroness Walmsley moved Amendment No. 213: Page 275, line 8, at end insert—

"(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

(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

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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
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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

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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
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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 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 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 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 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 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
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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

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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.
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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 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 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—

(a) Summarily (a) 6 months or the statutory maximum or
both

(b) On indictment

(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
916
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.

917
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.
918
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 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) Section 50 of the Mental Health Act 1983 (c. 20) (further
provisions as to prisoners under sentence) is amended as follows.

(2) In subsection (1), for "the expiration of that person's
sentence" there is substituted "his release date".

919
(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—

(a) any powers that would be exercisable by the Parole Board
if he were detained in such a prison or other institution, and

(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—

(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

(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) 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) In paragraph (1), for "the expiration of that person's
sentence" there is substituted "his release date".

(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—
920

(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—

(a) the fact that the restriction direction remains in force does
not prevent—

(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

(ii) the making of any application by him to the Sentence Review Commissioners, and

(b) if—

(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

(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 Baroness Scotland of Asthal moved Amendment No. 222:
Page 159, line 22, leave out from "produce" to end of line 23 and insert —

"(a) any such licence held by him together with its counterpart; or

(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 Baroness Scotland of Asthal moved Amendment No. 223:
Page 159, leave out lines 27 and 28 and insert— ""counterpart"—

(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

(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 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 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—

(a) Part 2 of Schedule 3 to the Powers of Criminal Courts
(Sentencing) Act 2000 (breach of certain youth community orders), or

(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 Baroness Scotland of Asthal moved Amendment No. 225A:
Page 308, line 42, at end insert—
"Repatriation of Prisoners Act 1984 (c. 47)

39A The Repatriation of Prisoners Act 1984 is amended as follows.

39B In section 2 (transfer out of the United Kingdom), in subsection (4)(b), for sub-paragraph (i) there is substituted—

"(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".

39C In section 3 (transfer into the United Kingdom), subsection (9) is omitted.

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.

(2)In paragraph 2, for sub-paragraphs (1A) and (2) there is
substituted—

"(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) 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) 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.".

922

(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 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—

"(a) erred in law as to his powers of sentencing; or

(b) failed to impose a sentence required by—

(i) section 51A(2) of the Firearms Act 1968;

(ii) section 110(2) or 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000; or

(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)—

(a) in subsection (1)—

(i) in paragraph (a), sub-paragraph (I), and the succeeding "or", are omitted, and

(ii) after paragraph (a) (ii) there is inserted "or

(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.

(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".

(b) in subsection (5)(b)—

(i) for "the Crime (Sentences) Act 1997" there is substituted "the 1997 Act", and

923

(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) Section 31 (duration and conditions of licences) is amended as follows.

(2) In subsection (3), for the words from "except" onwards
there is substituted "except in accordance with recommendations
of the Parole Board".

(3) Subsection (4) is omitted.

(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—

(a) a sentence of detention under section 91
above, or

(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 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 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 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
928
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.

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