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Criminal Justice and Immigration Bill

Volume 470: debated on Wednesday 9 January 2008

As amended in the Public Bill Committee, considered.

[Relevant documents: Letter from the Chairman of the Joint Committee on Human Rights to the Minister of State, Ministry of Justice, of 29th October 2007; and the Department’s replies to the Chairman of the Committee of 25th November and 10th December 2007.]

New Clause 36

Amendment of section 127 of the Criminal Justice and Public Order Act 1994

‘(1) Section 127 of the Criminal Justice and Public Order Act 1994 (c. 33) (inducements to prison officers to withhold services or breach discipline) is amended as follows.

(2) In subsection (1), for paragraph (a) substitute—

“(a) to take (or continue to take) any industrial action;”.

(3) After subsection (1) insert—

“(1A) In subsection (1) “industrial action” includes the withholding of services as a prison officer and any other action likely to affect the normal working of a prison.”

(4) In subsection (4), after paragraph (a) insert—

“(aa) holds any post, other than as a chaplain or assistant chaplain, to which he has been appointed for the purposes of section 7 of the Prison Act 1952 (appointment of prison staff),”.’.—[Mr. Straw.]

Brought up, and read the First time.

With this it will be convenient to discuss amendment (a) to the proposed new clause, in subsection (3), leave out from ‘officer’ to end of subsection.

Government new clause 37—Power to suspend the operation of section 127 of the Criminal Justice and Public Order Act 1994.

Government amendments Nos. 169 and 170.

On a point of order, Mr. Deputy Speaker. Could you confirm that the series of debates that we are about to have on these amendments must be concluded by 2.43 pm?

That is absolutely correct, and any time that we take up now will be taken out of that time, so I suggest to the House that we get on with it.

On Monday, for an hour, I gave a statement, in the course of which I obviously took questions, to set out why the Government have reluctantly felt compelled to come forward with these amendments to the law, which are to be included in the Bill. Let me now set out some of the background. I am of course ready to take interventions from either side of the House, as I always do.

In the 1970s, 1980s and early 1990s, there was, for a variety of reasons, serious industrial action—often not direct strike action but other kinds of industrial action—within the Prison Service, which made the management of the Prison Service extremely difficult and placed public safety at risk, as well as placing the welfare of prisoners in serious jeopardy. The Government of the day did two things. In 1993, they went to court to seek an injunction restraining prison officers under the existing law, which they succeeded in obtaining. Then, in what became the Criminal Justice and Public Order Act 1994, they moved amendments, which became sections 127 and 128 of that Act, to prohibit industrial action by prison officers. At that time, as we were reminded yesterday—and it has been a point that the Prison Officers Association has raised—the Labour Opposition spoke and voted against those amendments. However, I want to make it clear that in doing so, my right hon. Friend the Member for Cardiff, South and Penarth (Alun Michael) did not give an undertaking to repeal section 127 and made it clear that there could be circumstances in which we would accept that such a restriction on industrial action in the Prison Service should be on the statute book. He said:

“It could be argued that when there are people who have special responsibilities—the police are in such a category and it may be argued that prison officers are as well—and therefore there are difficulties about taking specific forms of…industrial action, there should be a guarantee against that. If that is desired, such people should be given something in return—for example, a right that guarantees fairness in any negotiations.”—[Official Report, 13 April 1994; Vol. 241, c. 335.]

He referred to agreements that existed at the time in respect of the fire service. It is also the case that our former Prime Minister, when he was Leader of the Opposition, gave undertakings in general terms about what was regarded as anti-trade union legislation in that Bill and elsewhere. I have to say to my hon. Friends that there were particular things in the measure as originally proposed by the Conservative Government that were plainly totally unacceptable and raised the temperature. They included measures that would have resulted in the certification officer being able to certify the Prison Officers Association as an independent trade union. It was only under pressure from the Labour Opposition that those matters were sorted out.

I also want to make it clear that when I became shadow Home Secretary in the summer of 1994 and considered, in full consultation with the shadow Cabinet of the day, whether we should repeal that legislation, I decided that, without more such legislation, we should not, because of the very special circumstances that apply in respect of the running of a prison, which, I suggest, are similar to those of the services to the state and to the community provided by the police and the armed forces. I say to the House, and remind my colleagues, that at no stage did anybody, be it the then Leader of the Opposition, me or anybody else, ever give undertakings that section 127 would be repealed, nor was it in any manifesto, either in 1997 or 2001. Indeed, on three occasions I had to make use of the injunctive power under section 127 to avoid a very serious situation within the Prison Service. I have no recollection of that ever being the subject of complaint from anyone in the House. However, we were concerned to do what my right hon. Friend the Member for Cardiff, South and Penarth said, by ensuring that reciprocal arrangements were put in place to balance the fact that prison officers were not able to take industrial action. First, we sought to bring into force part of the 1994 Act, which could easily have been brought into force by the Conservative Administration, but was not, to set up an independent pay review body in place of the previous ramshackle arrangements for settling prison officers’ pay.

My right hon. Friend has suggested that in the summer of 1994, he took a decision on behalf of the Opposition, and the Labour party, that there would be no abolition of section 127. However, a letter of 6 July from Mr. Tony Blair MP to the Prison Officers Association says clearly:

“An incoming Labour Government will want to put this situation right”—

that is, the issue of the Criminal Justice and Public Order Bill—

“and ensure, once again, that prison officers are treated in the same way and with the same working rights as other public servants, and recognises the status of the Prison Officers Association as an independent Trade Union”.

I believe that the POA and the labour and trade union movement generally interpreted that accurately as a Government commitment to restore the trade union rights of the POA, which means the right to withdraw one’s labour.

I understand what my hon. Friend says, but the simple fact is that I made the judgment during the period between summer 1994 and 1997. I do not recall any pressure—except from the Prison Officers Association, which I explained I could not accept—to include a specific commitment to repeal section 127, and no such commitment went into the manifesto. I do not recall any suggestion at the so-called clause 5 meetings that take place with the national executive, or at meetings of the shadow Cabinet of the day, that we should have such a specific commitment, nor was one made.

Winding forward, I have set out—as did Paul Boateng on my behalf in 2000—how we have sought to negotiate a voluntary agreement and a comprehensive package of reforms of industrial relations in the Prison Service to obviate the need for reliance on section 127. That is what Paul Boateng told the House on my behalf in summer 2000. We introduced the pay review body and the then Home Secretary, my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett), took the matter forward with the then Prisons Minister, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins). There was then a series of intensive negotiations with the POA about establishing a new, comprehensive voluntary agreement in return for a suspension and/or repeal of section 127.

My hon. Friend the Member for Wythenshawe and Sale, East, who led those negotiations, has authorised me to say that throughout the negotiations with the POA it was made clear at every stage that the voluntary agreement to which we could assent had to include a comprehensive and legally binding undertaking by the association not to take industrial action. It was only in respect of that that the Government moved, by an order under the Regulatory Reform Act 2001, to repeal section 127 of the Criminal Justice and Public Order Act 1994. When that repeal occurred, it was made clear—initially in the other place because that was where it was dealt with, and subsequently in this House—by my hon. Friend the Member for Bradford, South (Mr. Sutcliffe), who had taken over as Prisons Minister, that

“If the POA gives notice to terminate the agreement with no alternative arrangements being in place, the Secretary of State would ask Parliament to reintroduce statutory constraints such as existed prior to disapplication of Section 127.”—[Official Report, 4 September 2006; Vol. 449, c. 1897W.]

That is absolutely fundamental to this part of the story, which is why I ask all my right hon. and hon. Friends, as well as the House more generally, to support the introduction of what will be a reserve power in the event that we cannot reach a further voluntary agreement.

By the time that the POA had signed up to the 2005 joint industrial relations procedural agreement, or JIRPA, it had voluntarily accepted that whatever else happened in the Prison Service, there could not be industrial action because of the risk to public safety and, I have to say, to the welfare of prisoners. We saw on 29 August the serious risk to prisoners if there is industrial action or a strike: they are literally locked in their cells with no idea when the next meal or exercise is coming, and the quite large number of prisoners with health needs have no idea when their medication will next turn up.

The POA accepted that, but now in a round robin to MPs it says that it signed up to the agreement only under duress—its exact words. But that is not the case. It did not sign up to it under duress, but voluntarily. Indeed, I think that the matter went to a delegate conference. The association examined every single word in that agreement. It signed it and accepted the case voluntarily that I am now making to the House, which is that we have to have arrangements for dealing with industrial disputes in the Prison Service other than the possibility of industrial action because of the risk to the public and the dangers to the welfare of prisoners.

May I remind the right hon. Gentleman that I was the Prisons Minister at the time of the Wandsworth strike? I therefore approach this matter as one who had to deal with a strike by prison officers. I agree with the analogy made between prison officers and police officers, but I fail to see why we should ever have contemplated relying on a voluntary agreement with the POA. Either now or in the future, there needs to be a statutory prohibition in force that is in no way the subject of a voluntary agreement.

I understand the right hon. and learned Gentleman’s point of view. However, the POA came along and said—I paraphrase and summarise, but entirely accurately—that it was ready for a voluntary agreement. It accepted that the voluntary agreement would be comprehensive. It accepted the terms of the voluntary agreement, which I shall read out in a second, and it also knew all the way through the negotiations that the deal it had signed up to consisted of clear, legally binding and enforceable undertakings not to take industrial action of almost all kinds, and that we would only seek the repeal or suspension of section 127 on that basis. When we sought that repeal, absolutely categorical undertakings were given to the other place, and to this House, in the terms I have read out, that should notice of termination of the agreement be given over a period of a year, as it has now been, we would bring back those powers.

We were given notice of termination last May, which runs out on 8 May this year. I was asked why I have introduced this legislation now. In practice, because of the time it takes a large Bill to go through the Lords, this is the last possible moment, more or less, for legislation to go through in normal time. The only alternative would have been to wait until 8 May and then introduce emergency legislation. In such circumstances, I would have been asked by the Opposition what the emergency was, given that we had known about this possibility for a year. My view was that it would be quite false to suggest at that stage that there was some kind of emergency when there was not.

Moreover, I also had to take into account the following. On 29 August, at 45 minutes’ notice, the POA decided to take 24-hour strike action to protest against the phasing of its pay award. I understand its anger. However, in doing what it did, it broke the undertakings that it had already given, because the agreement was current at that time.

I appreciate that the matter is difficult, especially for our side. However, we have accepted that the police and the armed forces cannot go on strike. Anyone who had to deal with the strike, as I did, on 29 August, would have had any doubts that they may have harboured about the need for restrictions on industrial action by prison officers removed by what happened. Only as a result of obtaining an injunction and talking matters through with Colin Moses and with great help from third parties did we manage to persuade the prison officers to call off their strike during that afternoon.

Notwithstanding that, there was a total breakdown of order in Lancaster Farms’ Buttermere wing, which houses unstable and potentially violent young offenders, aged 15 to 18. They had been locked in their cells, with only a dozen governor-grade officers on duty to cover the whole youth offender institution, which has a total of 500 young prisoners. It became very clear that those young prisoners were rioting in their cells. I saw the damage and spoke to the staff who had to try to deal with it. The prisoners had completely wrecked their cells, pulled out all the sanitary ware, started fires and so on. Members of the POA outside the gates were asked to come back to help to restore order and they failed to do so. I have to take that into account.

Notwithstanding all that, the moment we had notice from the POA that it would terminate the agreement in May, my right hon. Friend the Minister with responsibility for prisons got in touch with the Trades Union Congress and asked it to appoint someone to be an intermediary to help us to resolve the matter and facilitate negotiations for a new joint industrial procedure agreement. That is an important point, especially for my hon. Friends, but I hope for all hon. Members. Ed Sweeney, who is well known from Amicus to many people, and is now the chairman of ACAS, was appointed to undertake the work.

Ed Sweeney reported on the matter. I decided that I should wait until he had reported to both sides before coming to the House. Copies of his report are available on the website and I know that many colleagues have read it. He lays down a road map for far better industrial relations in the Prison Service. He does not propose at this stage to have no statutory protection against industrial action. Paragraph 4.16 of the report says that, of course, he is aware of the POA’s rights and its position. It states:

“This is a clear policy position from POA. However, given the state of employment relations in the Prison Service, I do not believe at this point in time it will be possible to meet this policy position of the POA. Employment relations in the Prison Service actually mitigate against meeting this policy consideration as does the absence of any form of minimum cover arrangements.”

He goes on to say that there are minimum cover arrangements in, for example, the fire service and the ambulance service, and that they have worked satisfactorily. He suggests that, after a successful agreement and two years of stability, discussion should take place between the Prison Service and the POA with a view to establishing minimum cover arrangements instead of a statutory ban. I committed myself to that in the House on Monday.

I apologise to my right hon. Friend for not being able to remain for the rest of the debate, but I have an Adjournment debate in Westminster Hall on police pay—another uncontentious issue.

The whole House will understand the circumstances in which my right hon. Friend found himself in August. That is why mediation by the TUC, with Ed Sweeney bringing all sides together and developing a process through agreement, was welcomed by all parties. However, we now have the memorandum, dated 4 January, from Ed Sweeney. It reads:

“Dear All,

As you know, a couple of weeks ago I sent you a draft copy of my proposals”—

we have now seen the report—

“arising from the review that I have been undertaking over the past few months and we are due to meet on January 24.”

The parties have only just seen the proposals. A meeting will take place on 24 January, yet we are now souring the process by precipitate action in introducing the new clause, which builds on the distrust that already existed before September in the POA and the Prison Service generally about the Government’s intentions. Does my right hon. Friend believe that it was wise to introduce the new clause now? Would it not have been better, if necessary with the agreement of all parties in the House, to introduce emergency legislation if no resolution was found through discussion?

The action is not precipitate—far from it. The parties had the draft, which is exactly the same as the final version, of the Ed Sweeney report before Christmas. The POA has been left in no doubt about the Government’s intentions. Its members knew the position when it negotiated the agreement. They knew what my hon. Friend the Member for Bradford, South had said. They heard exactly what I said before the Select Committee on Constitutional Affairs on 9 October, when I made it clear that reintroduction of section 127 was under active consideration. I have also discussed the matter with them and I am due to meet them next Monday. There is no reason for the new clause to sour relations.

On the August strike, was not one of the problems with the voluntary agreement the fact that the union expected the Government to honour their side of the bargain? When they clearly did not, by phasing in the pay review, it believed that the Government had broken the agreement and that is why it took strike action. Do the Government not bear some responsibility for what happened?

I understand that that is the POA’s case. I do not want to make points about the matter, but it has always been clear that pay review body reports would be accepted apart from in exceptional economic circumstances. However, the POA made the point that the hon. Gentleman raised.

I thank the Secretary of State for being so generous in giving way.

We are considering a serious issue. As a trade unionist, I am worried about the speed at which the Secretary of State is trying to push the new clause through. We have 58 minutes to debate the union rights of the prison workers of this country. Surely there must be another mechanism. Loads of Members from all parties wanted to discuss the matter. Is not 58 minutes an insult to prison officers?

I do not believe that it is an insult. Were we starting from scratch, the hon. Gentleman’s point might be justified, but the new clause is no surprise.

First, I want to emphasise the point that breaching the agreement angered the POA. At no time was there an agreement about phasing awards from the board.

Secondly, with respect to the Secretary of State, he was serially unavailable to speak to the POA in the months after August—[Interruption.] That is what Colin Moses told me. If I am wrong, I withdraw the remark. However, we are taking precipitate action, which is unlikely to assist matters. We are all concerned about that.

I shall give way again, but I want to make one point before concluding. I happened to be on holiday in August. The day I got back—the day before the strike—I asked my then diary secretary to phone the POA because we needed a meeting with its representatives. They were telephoned and they will admit that they failed to get the message, but I have always made myself available to the POA.

My last substantive point before giving way is that the new clause provides for reserve powers, which can be introduced by order. If we do not have an agreement by 8 May, they would come into force in any event. However, subject to that, they would be introduced and turned off by order. [Interruption.] I have just been reminded that I had a telephone call with Colin Moses on 9 July and saw him informally before that, as well as holding a meeting at the end of August. There has never been an issue about his access to me. The POA accepts that.

I emphasise to my hon. Friends that the new clause provides for a reserve power. I said on Monday that I would prefer it if we never had to use it, and that remains my intention. We will work with Mr. Sweeney, the Trades Union Congress and other facilitators to do everything that we can to gain a new agreement. When people both inside and outside the House know the history, they will accept that what we have said has been entirely consistent and honourable. What we propose is the minimum required to protect the public and the welfare of prisoners.

Everyone will recognise that my right hon. Friend would not ask for such powers lightly. Obviously, industrial action taken by prison officers could cause a great deal of difficulties and worse. But does he also recognise the concern that if such powers are agreed to, another Government might use that as an excuse and a justification for taking away the right of people in the emergency services—firefighters, ambulance workers and the rest—to take such action? That is the reason for my hesitation about being able to support him.

I understand my hon. Friend’s concern, but the wording is very specific. In relation to the fire and ambulance services, these days no Government would be justified in doing what he fears, because there are proper minimum cover arrangements, and in practice there are no strikes or serious industrial disputes in those areas. That is the truth of it. He and I were in opposition for 18 years against the Conservative Government, and if and when the Conservatives come to power they will do what they want to do, regardless of what we do.

The Secretary of State mentioned Ed Sweeney’s plan as being a road map. In the view of the prison officers and many Labour Members, however, the wording of the second part of new clause 36(3) is actually a road block. The reference to

“any other action likely to affect the normal working of a prison”

would be a catch-all, whereby people would be guilty of a criminal offence for any simple thing, if such action is defined by the management. Will he remove that provision, alter it, or define clearly what it means?

It is not why it did not work, with great respect. In the hope of being helpful, while I cannot give an undertaking now as to the terms I am certainly ready to sit down and consider ways in which that provision can be tightened, with a view to bringing forward amendments in the other place.

The prison officers at Lancaster Farms were grateful to the Secretary of State for visiting them, talking to them and listening to their concerns, but morale is very low at both Lancaster Farms and Lancaster Castle. Staff are losing the right to strike and to industrial action, but what are they getting in return? The solution must be to recognise the difficult and dangerous job that they do, to give them our full support, and to give them adequate financial compensation.

I accept the concerns expressed, and I was pleased to meet prison officers, who are dedicated staff, as I have spelled out on many occasions—and I mean it. But they are not losing the right to strike—the POA voluntarily signed up to legally binding undertakings not to take industrial action; it accepted the case that I am now making. It did not have to sign up to it; it did sign up to it.

It is withdrawing from it, but it knew precisely what the arrangement was if it withdrew from it—we would have no alternative but to reinstate the equivalent of section 127.

For all the reasons that my right hon. Friend has given, I am sure that we all want a successful reintroduction of the voluntary agreement. As has been pointed out, however, the new clause relates to all industrial action, not simply that affecting the safety, welfare, security or health of prisoners. Given that other Governments could use that provision, will he guarantee that in the event of the reserve powers being taken, there would be a specific vote in the House before they were ever exercised?

I am ready to give this very clear undertaking. If the powers have to be brought in on Royal Assent, the issue of the affirmative procedure would not arise, because it would have been the subject of considerable debate backwards and forwards in any case. But if, as I hope that we can achieve, they start off as reserve powers, I am ready to ensure that amendments are made to this part of the Bill in the other place, whereby the reintroduction of those powers could take place only through the affirmative procedure. I am happy to consider the reverse situation, whereby they would be turned off, but I do not think that anyone would want that. Once they exist as reserve powers, or have been turned off, their reintroduction could only take place through the affirmative procedure.

I am grateful to the House for listening to me. I have taken a lot of interventions, which I hope has been helpful. I commend the new clause to the House.

I shall try to take as little time as possible because I suspect that other hon. Members might wish to contribute to the debate.

The Secretary of State seemed to show little understanding of why the Prison Officers Association is so angry about his statement on Monday. It was taken by surprise by his statement, in the same way that he claims to have been taken by surprise by its wildcat action last year. Far from the Government being entirely consistent, as he claimed, part of that anger arises because the Government’s explanation of the history of the legislation and the action that they are now taking has not been straightforward.

On Monday, and again today, the Secretary of State denied that the Labour party had fought tooth and nail against the legislation that outlawed strike action. He took umbrage at the suggestion. We have already heard about the letter from Tony Blair when he was shadow Home Secretary, shortly before he became leader, to the Prison Officers Association. Mr. Blair made it clear in that letter that

“we have strongly opposed the Criminal Justice and Public Order Bill on a number of Clauses which represented a wholly unwarranted attack on the working rights of prison officers”.

What is the difference between fighting tooth and nail against such measures and strong opposition? As has been admitted, the Labour party originally opposed the legislation.

On Monday, the Secretary of State also said, and he has repeated, that no undertakings were given to repeal section 127. Again, Tony Blair’s letter is explicit. In 1994, he told the Prison Officers Association:

“An incoming Labour Government will want to put this situation right”.

It was not just Tony Blair as shadow Home Secretary who was making those promises; Labour Opposition spokesmen were going around the country making such undertakings, giving the impression to members of the POA that section 127 was not only being resisted but would be repealed. The right hon. Member for Kingston upon Hull, East (Mr. Prescott), when he was shadow Employment Secretary in 1994, won great applause, as the record shows, at what was no doubt a Labour party conference, when he talked about the Labour party’s decency agenda. He said:

“we will revert and give Prison Officers the right as employees in an employment situation doing a decent and responsible job”.

Is it not absolutely clear that the unions were given the impression that section 127 would go? It does the Justice Secretary no good at all to seek to suggest otherwise now.

It is surprising that the Prison Officers Association should have been moved to issue a note yesterday saying:

“It seems to us that despite repeated guarantees, the Labour Party in Government cannot be trusted to honour their promises”.

Of course, the Opposition have known that for some time, but it comes to something when a union is forced to issue such a statement.

The fact is that whatever the subsequent justifications, the Labour party opposed the legislation originally, and promised to repeal it. It did not do so fully until three years ago, when it replaced it with a voluntary agreement, which the country was assured would deliver the same protection for prisons as had been delivered by the no-strike provisions. Now, three years later, the Secretary of State is forced into the humiliating position of having to come back and reintroduce provisionally that same legislation.

I am listening carefully to the hon. Gentleman, but does he accept that at the time of the repeal, a little less than three years ago, the clearest undertakings were given that if we faced the circumstances that we do today, we would reinstate section 217 or its equivalent?

The question I put to the Justice Secretary on Monday, which he did not answer, is why the Government repealed the legislation in the first place. Is it not clear that it was a mistake to do so? If it was not a mistake, why are the Government now coming before the House, after giving 48 hours’ notice, to reinstate legislation that they had previously removed? The Government have not yet satisfactorily explained why they took that action in the first place.

The scrutiny committee was clear that the protection afforded was not to the same standard as a no-strike agreement. The unions thought that they had a deal. The quid pro quo for having a no-strike agreement was that there would be a pay review and that any award would be honoured. Today, the Secretary of State justified the staging of the review—in part, the cause of this grievance—by saying that there were “exceptional economic circumstances”, which is why the award could not be honoured in full. Conservative Members have been constantly told that we are living through a golden economic age with successive years of economic growth. Now it appears, in the words of the Justice Secretary, that there are “exceptional economic circumstances”, which means that this award and that of the police cannot be paid. We are apparently living in such dire economic straits that the awards cannot be honoured. That breach of the deal that the Prison Officers Association believed it had has driven its anger about current arrangements. As I said on Monday, the POA is also concerned about the conditions in prisons over which the Government have presided.

While I accept my hon. Friend’s analysis, does he agree that it simply reinforces the proposition that we should never allow a voluntary agreement and that there should always be a statutory prohibition on prison officers taking industrial action—simply because they cannot be relied on to keep to voluntary agreements?

Indeed, as my right hon. and learned Friend says, the statutory ban would have afforded greater protection for the public and the wildcat action could not have taken place. Presumably, the fact that the Government have come before the House to reinstate the ban demonstrates that they agree with my right hon. and learned Friend that it is indeed necessary to have statutory protection.

On Monday, the Justice Secretary said, and I agree with him, that

“it cannot be acceptable for prisoners to be locked in their cells for an indeterminate period”—[Official Report, 7 January 2008; Vol. 470, c. 40.]

Anyone who has visited prisons will know of the great difficulties that prison governors have in dealing with inmates locked up for whole days with only a few staff on account of the wildcat action. Prisons must be places of safety; there is no place in them for such industrial action.

We are aware that locking up prisoners for long periods is rumoured to be about to happen this summer on account of the budgetary situation in the Prison Service. I would be happy if the right hon. Gentleman were to correct me, but I understand that there are proposals to have lockdowns in prisons for entire weekends, during which prisoners will be confined to their cells as there are insufficient staff to look after them. I thus find it surprising to hear the Justice Secretary talking about the unacceptability of locking prisoners up for long periods.

We will support the Government in the reintroduction of this power—

Of course it is no surprise, as we introduced the power and it was clearly a mistake to rescind it in the first place. I would like to congratulate the Secretary of State on his conversion to Thatcherite trade union reforms and on his recognition of the protections they afford the country. When the Prime Minister invited Lady Thatcher to Downing street for tea just a few months ago, we could hardly have thought that it would yield such impressive results. I suggest that the Justice Secretary invite my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) in for a cup of tea in order to advise him further on how to introduce more of such legislation.

The fact is that the proposed reserve power actually goes further than section 127. The new clause does not just make industrial action by prison officers unlawful, as it applies to

“any other action likely to affect the normal working of a prison”.

We have now reached a position of future uncertainty because of how the Government have reneged on the pay award. They have mishandled the situation in prisons and allowed them to become overcrowded, so damaging relations with the POA that it is necessary for them to assume this power again. Being forced into that situation is an indictment of the Government’s handling of this matter, so I am not surprised that the Secretary of State looked so sheepish about it both on Monday and today.

Any doubts about my view of the new clause have been reinforced by the reminder that this is Thatcherite legislation. In fact, some of what it does goes beyond Thatcherism.

We all recognise that operating a prison is exceptional and that it is not like running a factory. There have to be differences in how the trade unions can operate because we cannot allow prisons to be left unstaffed. Prisons have dangerous and violent people within them as well as people with all sorts of mental health problems. There are also many vulnerable people, particularly in some of the young offender institutions. We expect prison officers to keep those people secure, keep them safe and ensure that they are fed, receive appropriate medication and so on.

If we are to achieve that as efficiently as possible, we need good industrial relations within prisons, as the Secretary of State has acknowledged. We need the Prison Officers Association and other unions in the prison system to feel that they can act as trade unions, which is part of having good industrial relations. Recent history, however, has been exactly the opposite, as prisons have had very poor industrial relations. That is one of the reasons why Ed Sweeney’s report was undertaken and why both the Government and the POA signed up to it. That report, however, was published only on Monday this week. I realise that my right hon. Friend said that drafts have been seen, but the report was published only on Monday, as I say, and at exactly the same time that he made his statement announcing the amendments to this Bill.

The Sweeney report was set up in the context of poor industrial relations and the need to secure a new voluntary arrangement to replace JIRPA—the joint industrial relations procedural agreement—from which the POA had given notice that it was withdrawing. We can argue about how good JIRPA was and how well it worked. The fact is, though, that it did not work; otherwise, there would not have been any withdrawal from it. The Sweeney report points to some of the issues that the POA raised about JIRPA and how far it allowed the union to raise relevant industrial relations issues as opposed to allowing management to rule them out. Irrespective of arguments about JIRPA, everyone accepts that we need a new and better agreement.

My right hon. Friend says that he does not want to use the powers in the new clauses, but—because of the timing as much as anything else—the POA now undoubtedly sees the new clauses as having been designed to hold a gun to their head in negotiations that have not begun. I know that that is not my right hon. Friend’s view, but having spoken to its representatives yesterday afternoon I can assure him that it is the POA’s view, and I think that that will make it much more difficult for us to reach the sort of agreement that we want to reach.

A particular problem is the wording of the new clause, which is why I tabled amendment (a). As has already been pointed out, it does more than just reinstate section 127 of the 1994 Act. My right hon. Friend says that the wording of the definition of industrial relations in the new clause is the same as that in the JIRPA, but I consider that there is a distinct difference between putting that wording in a voluntary agreement and putting it in the law.

Is not the obvious difference the fact that while under the JIRPA people who took action that was slightly out of order would be guilty of a disciplinary offence, under the new clause they would be guilty of a criminal offence? Those to whom we look to lock up criminals would become criminals themselves.

That is quite possible. Another possibility is that the wording will become the subject of interpretation by courts. I do not think any of us can be certain what the consequences of that will be: what it might mean in terms of a new definition of industrial action and, once it has happened in this context, into what other contexts it might spill.

As I said to our hon. Friend the Member for Blaydon (Mr. Anderson), although I will not give an undertaking on the precise wording until we have reached an agreement, I am prepared to consider points that are raised, and I understand the point that has been raised so powerfully by both my hon. Friends.

That is helpful. I think that the wording should be examined and, hopefully, changed before it is put into law. Anyone who has read Sweeney’s report will know that he had many good points to make about changes to the arbitration system allowing both sides to raise issues, and about binding arbitration. It is very important for the arbitration to be binding on both sides.

The hon. Gentleman says that we need to be sensitive about the rights of prison officers, and I understand that, but we also need to be sensitive about the rights of prisoners. Will the hon. Gentleman cast his mind back to what happened at Strangeways in the early 1990s, when a number of prisoners on rule 43 were effectively attacked in the prison? That is what happens when order in prisons breaks down. We must bear it in mind that prisoners are very vulnerable, and are at risk from other prisoners. We cannot tolerate circumstances in which order in prisons cannot be maintained.

We all appreciate that order in prisons must be maintained. The issue for me is the timing as much as anything. If we had reached a point at which negotiations were breaking down and it was clear that no voluntary agreement would be reached, I would understand the Government’s saying that something must be done; but doing it at this moment and in this form will make it far more difficult to reach the sensible agreement that we want to be reached between the Department and the prison officers.

I do not think that new clause 37 helps. My hon. Friend says that the power will be introduced by order, but my reading of the new clause suggests that it would come into force on Royal Assent. The new clause concerns the ability to suspend the provisions, and my right hon. Friend has said that he will consider allowing that to be done by means of an affirmative resolution. Some of us would be rather happier if the implementation took place by means of an affirmative resolution in the first place, rather than on Royal Assent with the suspension being implemented by means of a negative resolution.

I think that we are in danger of shooting ourselves in the foot by passing a measure that will make it far more difficult to reach the voluntary agreement that we all need. I hope that my right hon. Friend will think again, because I cannot support the new clause in its present form.

It is a pleasure to follow the hon. Member for Walthamstow (Mr. Gerrard), who talked a great deal of common sense. He spoke of the danger of our shooting ourselves in the foot. I suspect that the foot is well and truly shot already by the actions that have been taken, and in particular by the circumstances that have led to what the Lord Chancellor has done today.

The problem is not, in fact, what is proposed. We would all prefer a voluntary agreement to a statutory agreement if it could be made to work, but wildcat action took place, and that cannot be ignored. As I said on Monday and am happy to repeat, I do not believe that strike action is ever proper in a prison environment, and that is the end of it. The other side of the coin is that avoiding industrial action, and ensuring that we have an environment in which it is inconceivable, requires proper negotiating machinery and proper, binding arbitration on issues of grievance, and it requires management and Government who listen to what the people in the service are saying. It is transparently obvious that that has not been the case for a good many years.

The hon. Member for Arundel and South Downs (Nick Herbert) spoke of a cosy little teatime chat between the Lord Chancellor and the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). The two of them could reminisce for a long time about the various deficiencies of the prison system under their respective stewardships, although it might be a rather one-sided conversation. I seem to remember that the right hon. and learned Member for Folkestone and Hythe was somewhat reticent when asked questions about the system, and famously found it difficult to give a response. The fact is, however, that we have had a significant problem with industrial relations in our prisons for a long time—in England and Wales. I made that point on Monday. Ed Sweeney’s report makes it absolutely clear that the same does not apply in Scotland. We must ask ourselves in all humility what the Liberal Democrat-Labour Administration in Scotland were able to do—[Interruption.] It was a Liberal Democrat Minister of Justice, as the hon. Member for Hemsworth (Jon Trickett) may recall. We must ask ourselves what that Administration were able to do that eluded Ministers in this House with the same responsibilities, because we have clearly reached a point at which there has been a breakdown in trust.

I said on Monday, and I say again now, that I believe that the staging of the pay award was a key component. If we do not treat the public services fairly by providing an independent assessment of pay, we must clearly expect a degree of resentment. All I have said to date is that I wish we were not starting from here. But we are starting from here, and I recognise the Lord Chancellor’s difficulty. He must deal with a prison system in which there is recent experience of strike action, and that is not acceptable. However, the timing is most unfortunate. The fact that we are legislating today when the Sweeney report was published only on Monday, containing very positive proposals for improving the situation, is extremely regrettable. My fear is that it will poison the well in terms of future negotiations, and we will not secure the successful outcome that we all want.

I am concerned to hear the Lord Chancellor tell his hon. Friends that he did not really mean what the new clauses and amendments say, and that he will rewrite them before the Bill goes to another place. That is yet another example of why it is wrong to legislate on Report on important matters of this kind, and expect us to rubber-stamp the legislation in the context of a very abbreviated time scale when it should be subjected to proper reflection, consideration and scrutiny before moving to the other place. It seems, however, that we must wait until the Government have done their work in the other place and brought the Bill back to us with revised wording which we hope will deal with some of the issues of scope identified by the hon. Member for Walthamstow, and perhaps with the issue of the commencement on Royal Assent—which may or may not be helpful, depending on the circumstances that apply when the Bill reaches its final stages in both Houses.

However, I have to say to the Lord Chancellor that, if there were an affirmative procedure, that would not be a problem in any case. In those circumstances, we would not need to make commencement automatic on Royal Assent. We could bring forward the affirmative procedure at that point in order to bring it into action if it is considered to be necessary to do so.

Although I am prepared to accept for the purposes of today that the Lord Chancellor has to bring forward these proposals, I think that it is intensely regrettable that they are here. It speaks of failure of management and failure of the negotiating machinery between the Government, the management of the Prison Service and the work force. It suggests that industrial relations are at an unacceptable level in a key public service. My message to the Government is: they really must do better.

We are very short of time so I will make some quick points. This is an industrial relations issue. Of course, it is necessary for the Secretary of State for Justice to see it in the context of the security of the Prison Service. He rightly talks about the statutory position. My recollection is that the Prison Act 1952 makes the prison officer a constable, but the real position is that the Prison Officers Association is different from the trade unions for the police and the Army. The trade unions for the police and Army have always been subject to limitation on their actions and in relation to strikes. For most of its existence over 70 years, the POA has been a normal trade union with all the normal trade union rights.

In the early 1990s, there were a lot of industrial difficulties. There are still industrial difficulties in the prison system, but it was the courts that decided that prison officer trade unions were not to be allowed to operate as normal trade unions. It is an irony that the 1994 Act, introduced by the then Conservative Government, restored some of the rights that they had lost.

There was another event, as well as that legislation and the court case. That was the inquiry into the Strangeways disaster. It is important to put on the record a couple of the decisions made by the report produced by Lord Justice Woolf and Judge Stephen Tumim. They decided that there was no need to abolish the trade union status of the prison officers. They said:

“We take the view that industrial action by prison officers should not be made unlawful at this stage.

Conditions in prisons have significantly contributed to the present hostile state of industrial relations, just as they have contributed to souring relations between staff and prisoners.”

That is important at a time when prisons are full and getting fuller. The report went on to say:

“We are encouraged to take this view because we found from the Inquiry’s visits to establishments that those places with satisfactory conditions and constructive regimes appeared more likely than other, less well endowed prisons, to have satisfactory industrial relations.”

Therefore, the message from that report is, “If you sort out the prisons, you will sort out the industrial relations.” I know it is not quite as easy as that, but I have a strong view, which is shared by most of my colleagues on the Labour Benches—

It being two hours after commencement of proceedings on the programme motion, Mr. Deputy Speaker put forthwith the Questions necessary for the disposal of business to be concluded at that hour, pursuant to Order [this day].

The House proceeded to a Division—

I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.

Clause read a Second time, and added to the Bill.

New Clause 37

Power to suspend the operation of section 127 of the Criminal Justice and Public Order Act 1994

After section 127 of the Criminal Justice and Public Order Act 1994 (c. 33) insert—

“127A Power to suspend the operation of section 127

(1) The Secretary of State may make orders suspending, or later reviving, the operation of section 127.

(2) An order under this section may make different provision in relation to different descriptions of prison officer.

(3) The power to make orders under this section is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”—[Mr. Straw.]

Brought up, read the First and Second time, and added to the Bill.

Clause 175

Commencement

Amendment made: No. 169, in page 120, line 31 [Clause 175], at end insert—

‘( ) sections (Amendment of section 127 of the Criminal Justice and Public Order Act 1994) and (Power to suspend the operation of section 127 of the Criminal Justice and Public Order Act 1994).’—[Mr. Straw.]

Amendment made: No. 170, in title, line 9, after ‘criminality;’ insert

‘to amend section 127 of the Criminal Justice and Public Order Act 1994 and confer power to suspend the operation of that section;’.—[Mr. Straw.]

New Clause 6

Reasonable force for purposes of self-defence etc.

‘(1) This section applies where in proceedings for an offence—

(a) an issue arises as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and

(b) the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances.

(2) The defences are—

(a) the common law defence of self-defence; and

(b) the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) or section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (c. 18 (N.I.)) (use of force in prevention of crime or making arrest).

(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) and (5) also apply in connection with deciding that question.

(4) The degree of force used by D is not to be regarded as having been reasonable in those circumstances if it was disproportionate in those circumstances.

(5) In deciding the question the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

(6) Subsection (5) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).

(7) This section is intended to clarify the operation of the existing defences mentioned in subsection (2).

(8) For the purposes of references in this section to what D believed, it is immaterial whether—

(a) any belief of D’s was mistaken, or

(b) (if it was mistaken) the mistake was reasonable.

(9) But subsection (3) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.

(10) In this section—

(a) “legitimate purpose” means—

(i) the purpose of self-defence under the common law, or

(ii) the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b);

(b) references to self-defence include acting in defence of another person; and

(c) references to the degree of force used are to the type and amount of force used.’.—[Mr. Straw.]

Brought up, and read the First time.

With this it will be convenient to discuss the following: amendment (a) to the proposed new clause, in subsection (8)(a), leave out from ‘mistaken’ to end of that paragraph.

New clause 8—Amendment of the Criminal Law Act 1967

‘(1) The Criminal Law Act 1967 (c. 58) is amended as follows.

(2) In section 3 (use of force in making arrest, etc.), after subsection (1), insert—

“(1A) Where a person uses force in the prevention of crime or in the defence of persons or property on another who is in any building or part of a building having entered as a trespasser or is attempting so to enter, that person shall not be guilty of any offence in respect of the use of that force unless—

(a) the degree of force used was grossly disproportionate, and

(b) this was or ought to have been apparent to the person using such force.

(1B) No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General.

(1C) In this section “building or part of a building” shall have the same meaning as in section 9 of the Theft Act 1968 (c. 60) (burglary).”.’.

New clause 9—Amendment of the Criminal Law Act (Northern Ireland) 1967

‘(1) The Criminal Law Act (Northern Ireland) 1967 (c. 18 NI)) is amended as follows.

(2) In section 3 (use of force in making arrest, etc.), after subsection (1), insert—

“(1A) Where a person uses force in the prevention of crime or in the defence of persons or property on another who is in any building or part of a building having entered as a trespasser or is attempting so to enter, that person shall not be guilty of any offence in respect of the use of that force unless—

(a) the degree of force used was grossly disproportionate, and

(b) this was or ought to have been apparent to the person using such force.

(1B) No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General.

(1C) In this section “building or part of a building” shall have the same meaning as in section 9 of the Theft Act (Northern Ireland) 1969 (c. 16 NI)) (burglary).”.’.

Government amendment No. 102.

Amendment No. 125, in page 120, line 2, clause 174, at end insert—

‘(aa) section [Amendment of the Criminal Law Act (Northern Ireland) 1967];’.

Government amendments No. 103 and 113.

The purpose of our provisions is to amend and clarify for the better the law on self-defence. This is a matter of considerable public concern. The House will know of my experiences on four separate occasions of seeking to apprehend someone—there was one burglar and three street robbers. Anyone who has been involved in such circumstances, or who knows of someone who has, will know that on such occasions there is no time to make a careful, fine judgment about the balance of the law. One does these things instinctively. Where people act reasonably, in good faith, the law should clearly be on their side.

I hope and believe that there is general support for new clause 6. I know that there will be a debate about the proposed changes involving something being deemed wholly “disproportionate”, but I am afraid that we cannot accept them.

Before I give way to the hon. Lady and to other Conservative Members, I want to place on record my appreciation of the way in which they have brought this matter forward. We are dealing with an issue of considerable public concern. My judgment has always been that, interestingly, it is very rare for a case to become a decision for a court—normally it would be for the jury—where any reasonable person would regard it as unfair. The number of such cases that go to court are very few. In an informal trawl in 2004, the Crown Prosecution Service found 11 cases in the previous 15 where people had been prosecuted for attacking intruders, and seven of them related to household burglaries.

I shall give way in a moment, first to the hon. Lady and then to the right hon. Lady.

Something that worries me, hon. Members on both sides of the House and members of the police force is that there have been more occasions when someone has acted reasonably, in good faith and on the spur of the moment, but a police investigation has none the less taken place. Such an investigation may drag on for months, with all the anxiety that that involves. Two years ago, the CPS and the Association of Chief Police Officers produced an excellent joint leaflet that gave guidance about that.

I shall give way in a moment. Although such guidance is helpful, it is not the law. The purpose of our proposed changes is to draw on the best and most positive of case law, and to clarify the law.

I am grateful for the Secretary of State’s openness in meeting to discuss the text. The leaflet to which he referred weakly states that if the intruder dies, the victim of the crime could be accused of

“acting with very excessive and gratuitous force and could be prosecuted.”

Let us consider the wording in new clause 6, in particular subsection (1)(b) and subsection (4). There is general agreement on both sides of the House that we need enhanced legal protection and greater clarity in the wording of the law. I submit to him, given that the wording is the same as it was in my private Member’s Bill, that our new clauses 8 and 9 are much clearer in that regard.

This has been the subject of considerable debate, but it ultimately comes down to a matter of judgment.

May I just deal with the issue of “grossly disproportionate” force, which I have thought about a lot? I am sure that the hon. Lady and other Conservative Members will say, “Hang on a second”. They will do so because as a result of Brendon Fearon seeking compensation over the Tony Martin case, the Labour Government introduced amendments in the Criminal Justice Act 2003 to create a test in respect of any claim by a criminal against a victim who had assaulted or damaged them in some way. Such a claim could be sustained only if the force used against the criminal was grossly disproportionate. The issue is whether that part of the civil law can be imported into the criminal law. I have been clearly advised, and I accept, that that is not possible, not least because of the European convention on human rights—not because of the Human Rights Act 1998.

I say as gently as possible to the hon. Gentleman that I have three interventions to take first, but I look forward to his contribution. The advice that I have received, which I accept, is that such a move would be outwith the ECHR, and I remind Conservative Members that whatever views they have about the Human Rights Act, they have accepted that we should remain subject to the ECHR.

I am most grateful that the Justice Secretary has brought up the name of my constituent, Brendon Fearon, who was involved in the Tony Martin case. It might be apposite to remind the House that when I introduced a private Member’s Bill on this matter, which was taken up ably by my hon. Friends the Member for Vale of York (Miss McIntosh) and for North-West Cambridgeshire (Mr. Vara), Brendon Fearon said how very useful he believed the proposed changes would be, and that if what is currently enshrined in civil law were to be enshrined in criminal law, he, as a professional criminal and a recidivist, would find it deeply deterring.

I am not grateful to Mr. Fearon—[Interruption.] I was Home Secretary when the Tony Martin case arose. It was a difficult one, although I think that few people argue with the jury’s verdict in those exceptional circumstances. I do not regard Mr. Fearon on an equal footing with the judicial Committee of the House of Lords or even with the European Court of Human Rights in Strasbourg. I shall now give way to the right hon. Member for Maidstone and The Weald (Miss Widdecombe).

The Lord Chancellor has to accept that his new clause is a restatement of the existing law. As the law envisages that there are perfectly clear cases in which disproportionate force may be legitimate, surely by saying that only in cases of “grossly disproportionate” force should prosecutions lie we are well within the scope of article 2 of the European convention on human rights. I find it difficult to see how we would fall foul of the convention if new clauses 8 or 9 were to be adopted, particularly in the restricted circumstances to which they apply, which concern householders and closed premises when a victim is under a particular difficulty because they are unable to get away, temporise or disengage.

To some degree, we may end up arguing about the size of the head of a pin. In the rare cases where such a prosecution reached court, it would be for a jury to decide behind closed doors whether it thought that the force used was acceptable. I put on the record the advice that I have received, which I accept. That is an issue between us.

The new clause seeks to clarify the law in a positive way. It is drawn from the best of existing case law, but everyone knows that not even good lawyers can always access that with ease. We have sought to put on the face of the Bill the circumstances that should be taken into account by the court not only when it decides guilt or innocence, but earlier down the track when it decides whether to initiate an investigation. Proposed new subsection (5) states that in deciding whether someone is guilty of an offence,

“the following considerations are to be taken into account…that a person acting for a legitimate purpose”—

that is, to prevent a crime or apprehend a criminal—

“may not be able to weigh to a nicety the exact measure of any necessary action; and…that evidence of a person’s having done only what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.”

In other words, if that person honestly and instinctively thought that their action was reasonable, that would weigh heavily with the court, leaving aside the issue of whether it was proportionate or grossly disproportionate.

My final point is that proposed new subsection (8) means that in terms of what the defendant believed it is immaterial whether the belief was mistaken and, if it was mistaken, whether the belief was reasonable. I commend the proposals to the House.

I want to allow the House time to debate what is proposed, so if I may, on this occasion I shall sit down early and invite the Opposition spokesmen to speak.

In accepting Government new clause 6, I want to explain why we do not believe that it goes far enough and why new clauses 8 and 9 remain the approach that the House should adopt.

The private Members’ Bills introduced over the past few years by my hon. Friends the Members for Vale of York (Miss McIntosh), for Newark (Patrick Mercer) and for North-West Cambridgeshire (Mr. Vara), all of whom are present today, sought, as we do, to give greater clarity to the law not by introducing the concept of people acting reasonably but by permitting them, when protecting themselves or their property against a trespasser, to use a degree of force provided that that force was not grossly disproportionate and as long as it should not have been apparent to the person that such force was grossly disproportionate.

The Secretary of State spoke about cases in which victims of crime had their premises, homes or commercial premises entered, which led to their being in fear and using force—sometimes lethal force. The consequence of that use of force was not only an initial police arrest but a subsequent investigation and often a prosecution. The fact that the jury usually acquits the defendant does not remove the great stress that any such actions cause. It is common ground between the Opposition and the Secretary of State, who has recognised that the law inadequately protects the interests of the householder or shopkeeper, that some restatement is needed.

My hon. Friend has hit on an important point. The Lord Chancellor said a moment ago that it is up to the jury to decide. My hon. Friend is right that many such cases should never go to court. How can someone, in the middle of the night and on the spur of the moment, make a judgment in seconds when the law is so complicated? New clause 6 is very complicated. The great virtue of my hon. Friend’s proposed alternative is that it simplifies and clarifies the law, and that is why it should be accepted.

My hon. Friend is right. The point at issue is that when someone enters a premises—a home or a shop—they cross a physical line. Historically, we have regarded our homes as our castles. People who respond to burglars, fearful of the situation, might feel the need, on the spur of the moment, to use some force in repelling that individual. They make a split-second decision. No codification will help them in making a judgment about the correct level of force to use in those circumstances.

In his speech to the Labour party conference, the Justice Secretary said that he would like to

“review the balance of the law”

in this area. Does my hon. Friend agree that the Government’s new clause does not amend or review the balance of the law? It simply tinkers with the existing state of affairs. The Opposition new clauses would achieve what the Secretary of State said he would achieve and would amend the balance of the law.

I agree. As my hon. Friend the shadow Attorney-General pointed out, the Secretary of State’s amendments merely restate case law. It is important that Parliament sends out a clear and unambiguous signal to the owners of homes and premises that the law will be on their side should they have to use force where they are fearful of the actions that a trespasser might take. I do not see how restating existing case law will send out a clear and unambiguous signal from this House.

Will my hon. Friend confirm that the Secretary of State has opposed changing the law for the past decade? He decided that the law should be changed only when he needed an eye-catching announcement for his Labour conference speech in the run-up to the bottled election. Does not that explain why new clause 6 does not change the law at all? Is not Parliament being taken for a patsy when it is asked to debate new clause 6? Should we not pass new clauses 8 and 9 instead, as they will change the law in the way we have sought for the past decade?

I am in a dilemma about how generous to be to the Lord Chancellor. Today he has repented of many sins, such as the Government’s repeal of the legislation forbidding strikes in the Prison Service and his opposition to our constant demands that the law in this area be restated. However, my hon. Friend is right to say that the right hon. Gentleman made his party conference pledge precisely because he felt that it would be an eye-catching initiative. I think that he has had great difficulty in persuading his Department that there should be any change in the law to match that pledge.

We have been here before. Precisely the same thing happened with the previous Prime Minister, Tony Blair, who stood at the Dispatch Box and agreed with us that the law needed to be changed. A few months later, however, after a review had been conducted, he said that we needed only a codification, but by then the signal had been sent out and the press headlines obtained. In fact, no real change was made to the law.

The Justice Secretary shakes his head in disapproval. Before my hon. Friend is too kind to the right hon. Gentleman, will he agree that two audiences are being addressed? At the Labour party conference, the right hon. Gentleman was addressing the press, whereas today he is talking to his Back Benchers. [Hon. Members: “Where are they?”] If they were here, and as he well knows, they would oppose any change that gave people the right to protect themselves in the circumstances that have been described.

I note that Labour Back Benchers are giving the Justice Secretary no protection at all today. He may need greater assistance from them.

Parliament must send a clear and unambiguous signal on these matters, and that is why we have suggested that the wording of the law should be changed so that a degree of force would be permitted, provided it was not “grossly disproportionate”.

The hon. Gentleman has not mentioned proposed new section (1A)(b) of new clause 8, which uses the phrase

“this was or ought to have been apparent to the person using such force.”

Does he agree that the problem is that that leaves in place the very problem that arose from the Martin case? The central problem with the Court of Appeal judgment was that it said that a mistaken belief that danger was threatened could be judged subjectively, but that the degree of danger had to be assessed objectively, using the criterion of reasonableness. New clause 8 does not deal with that problem at all.

The purpose of the phrase

“ought to have been apparent to the person using such force”,

which is used in new clauses 8 and 9, is to make it clear that we believe that there needs to be an objective test. The matter cannot be left to a test that is entirely subjective. No one who has taken part in the House’s deliberations on these matters has suggested that the law should have protected Tony Martin from the consequences of the action that he took. Our new clauses would not do that either, but the Government appear to believe that putting into statute a codification of existing case law will somehow assist people faced with a threat in their homes.

Whether such a codification would be of any use to people in the heat of the moment is open to question. The present Secretary of State for Innovation, Universities and Skills was asked about that in March 2003, and he said:

“Some sort of codification of what level of force is permissible is likely to be of only academic interest to people who suddenly find themselves under attack. Such a code is not likely to be the sort of thing one carries around in one’s mind in case it is needed.”—[Official Report, Westminster Hall, 4 March 2003; Vol. 400, c. 211WH.]

That underlines the point that no codification is needed. We have had guidance from the Home Office, but no sort of codification will help people suddenly faced with an attack in their home.

Does my hon. Friend agree that the law is so unambiguous that the Government were forced—three years ago, when the matter came up in deliberations on a private Member’s Bill that I was taking through the House—to issue a wholly risible document that contained illustrations to show how it would work? Now it seems that we need another clarification. Would not the simplest thing be for them to accept new clauses 8 and 9 and use the phrase “grossly disproportionate”? That would clear the whole thing up.

I completely agree. What good do the Government think that the proposed clarification will do? Indeed, the Secretary of State did not suggest in his speech to the Labour party conference that there would just be a clarification. He said:

“The law on self-defence works much better than most people think, but not as well as it could or should.”

Surely that is a direct admission that the current law is not working, yet he says that he merely wants to restate it.

The hon. Gentleman quotes me very accurately, and that is the burden of my position. All hon. Members accept that the number of such cases going to court is tiny, and that there have been only a handful over the past 15 years. The problem that we face has to do with unnecessary and gratuitous investigations at a much earlier stage.

I believe that we need to clarify the law, but that we must choose the best case law, rather than a compendium thereof. Highlighting that case law, as proposed in new clause 6, will be very effective. It will lead to a change in the way the law works, and that is precisely what I was seeking when I made my party conference speech.

I should like to make two other brief points. First, the hon. Member for Arundel and South Downs (Nick Herbert) must be aware that the Joint Committee on Human Rights—one of whose members is a Conservative peer—has said that, in the criminal law, the “grossly disproportionate” use of force is outwith the EU convention on human rights. Secondly, he needs to deal with the very important point raised by the hon. Member for Cambridge (David Howarth). That hon. Gentleman has suggested—rightly, I think—that new clause 8 would give a court less flexibility in defending a victim of crime than would our new clause 6, under which the relevant tests are subjective.

First, I believe that the Joint Committee on Human Rights was looking at the Bill introduced by my hon. Friend the Member for North Thanet (Mr. Gale). It contained a different test, and did not use the wording employed in our new clause 8 or in the earlier private Member’s Bill. My hon. Friend the Member for Beaconsfield (Mr. Grieve), the shadow Attorney-General, has dealt already with the human rights arguments. At the Labour party conference, the Secretary of State wanted to do more than merely suggest that the law would just be clarified. His words make it clear that the law would be rebalanced, but that is not happening with this Bill. If merely restating case law would amount to greater protection for householders, engender greater confidence or prevent police from arresting and investigating people when they should not, why has not the existing guidance—which the Government introduced after the last review, instituted by Tony Blair—succeeded in achieving that? The Secretary of State apparently accepted the burden of those arguments just a few months ago, but what he now proposes is simply inadequate to send the clear and unambiguous signal, which the Opposition have consistently requested, to the country as a whole that the law is on their side.

Does my hon. Friend agree that Ian Blair, the present Metropolitan Police Commissioner, got it right when he said on this issue:

“I thought reasonableness was quite a difficult concept at 4 o’clock in the morning in your kitchen, whereas something as stark as gross disproportionality did seem to me to be clearer.”?

On that occasion, Sir Ian did get it right and I am grateful to my hon. Friend for reminding us of that.

I refer the House to the Library research paper on the new offence as it was introduced in the private Member’s Bill. It stated:

“The Bill’s new test of force which is not grossly disproportionate is likely to be more generous to defendants than the test of reasonable force.”

Therein lies the difference between us. The Government are merely seeking to restate existing law in the belief that somehow that will be of comfort or assistance to people under attack in their own homes. We wish to send the clear and unambiguous signal that the law is on the side of the defendants, and that is why, if we have the opportunity, we wish to press the issue to a Division.

The Secretary of State has not delivered on the promise that he made at the Labour party conference, and it is important that the country understands that.

Will the hon. Gentleman deal briefly with the point made by the hon. Member for Cambridge (David Howarth)? Does he not accept that the objective test in new clause 8 is more flexible and more restrictive for a defendant than our subjective test in new clause 6?

No, I do not accept that and I am happy to rely on the advice of the Library, which says that the new test is likely to be more generous to defendants. If one uses the words “grossly disproportionate”, an objective test is the right approach.

The Government are now advancing a different argument and suggesting that the Opposition seek a lower level of protection than the one that they propose. That is plainly nonsense.

The hon. Gentleman is confusing two different aspects of the problem. One is the test of reasonableness or disproportion, including the word “gross”; the other is the mistaken beliefs of the defendant, and whether the court accepts them and does not investigate them, which is what the Government’s new clause would appear to propose. Or should the court investigate the reasonableness of the beliefs, which is what the Conservatives’ amendment would appear to propose? That is why the Secretary of State is correct in what he says.

We think that the balance that we have achieved between the two components of the offence is right, and we are happy with it. I am also happy with the assessment of the Library that our test would be more generous to defendants. The right test is an objective one. I do not think that it is credible that the Liberal Democrats and the Government should rest their opposition to our proposal on the new argument that somehow it would provide less protection than is currently the case under the law. The Library is clear that that is not the case and we have consistently been clear that it is not.

The Secretary of State advanced an entirely different argument earlier, when he said that our provision would somehow be struck down by the human rights legislation. The suggestion was that it would provide protection that was somehow outwith the law, but that argument will not wash. He has been caught out. He undertook a grandstanding exercise at the Labour party conference in search of headlines. It served him well, but he has not subsequently been able to deliver, and we will continue to point that out.

I am sorry that the hon. Member for Arundel and South Downs (Nick Herbert) seems incapable of understanding the point made by my hon. Friend the Member for Cambridge (David Howarth); it was not answered by the Library note, which was on a totally different matter.

The Conservatives do, however, have a genuine sense of grievance that the fox of which they have long been in pursuit has been comprehensively shot by the Lord Chancellor. I have been party to the many debates that we have had on the subject, courtesy of the hon. Members for Newark (Patrick Mercer) and for Vale of York (Miss McIntosh) and others, and I have heard the stonewalling from the Government, who said that in no circumstances were they prepared to accept that a change in the law was necessary. For them now to reverse that position takes some brass neck. However, I am prepared to accept that the Lord Chancellor is making the change for the best of reasons.

Let us start with our shared perceptions. All parties have always shared the view that there is a problem with the way in which people in the circumstances that we are discussing are investigated and, occasionally, prosecuted. We also agree that it would be a completely inappropriate interpretation of the law, or of the duties of the police, if a person who had defended themselves, or their family, friends or property, came under suspicion, unless they had behaved entirely improperly in defending what was theirs. There have been too many occasions, although not a great number of them have come before a court, on which people have felt that when they took perfectly proper action to defend themselves against criminal offences, they came under suspicion and were investigated by the investigating and prosecuting authorities. They should have been getting the support of those authorities, rather than finding themselves in difficulties with them.

I am delighted that a Liberal Democrat is taking such a line. If the hon. Gentleman believes that people should have the right to use force when they are being burgled, does he agree that if the intruder is armed with a weapon, the householder should, reasonably, be able to retaliate with some form of weapon?

I think that the hon. Gentleman has just explained what proportionality means; I thought that we understood that. I do not know why he is surprised at the line that I take, as I have taken it consistently for 10 years in the House, but perhaps he has not yet had the opportunity to study Hansard with sufficient care.

The Government are reversing from their previous position, and are saying that there is an issue to address. I do not think that the defect lay in the law in the first place. I still believe that, with one exception, which I shall come to, and which concerns the point made by my hon. Friend the Member for Cambridge, the law is perfectly competent to deal with the circumstances that we are discussing; it is, on occasion, the investigating and prosecuting authorities who are incompetent, and who misdirect themselves. I have no objection to restating and reinvigorating the law on that point to prevent mischief from occurring, if that is sensible, and that is the line that I have consistently taken when dealing with private Members’ Bills on the subject.

The hon. Gentleman is something of an expert on the subject, given his experience with private Members’ Bills. He wants to remove the current prevalence of investigations, and prevent every single case from being taken to court. Surely basing the law on the concept of “grossly disproportionate” will send a strong signal to the police as regards the Association of Chief Police Officers guidelines, and surely that will mean that very few such cases—only the most extreme ones—will go to court. That, surely, is what we are trying to achieve.

I am grateful to the hon. Gentleman, but it is a fact that very few such cases go to court. The problem is not the number of cases that go to court; it is the number that are investigated, and the cases in which there is a fear on the part of the householder, or whoever is involved, that they will be prosecuted. That is what is unacceptable in the eyes of Members of all parties.

I wish that the Conservatives would accept that they have won the argument. The Lord Chancellor has come round to their point of view and has come forward with a formulation that I think actually works. However, if they will persist with new clause 8, I have to say that I think that there are two problems with it. The first is that it would replace one test, that of reasonableness, with another, the test of what is “grossly disproportionate”. Both are still subjective, in the sense that interpretation is required—in the first case by the investigation and prosecution authorities, who have to decide whether to bring the case, and in the second by the jury, who have to interpret the word “grossly”.

That does not take us much further. Of course there is a difference in mood between the two, in the sense that, in common parlance, one would expect “grossly disproportionate” to constitute a higher test than what is reasonable, but in reality it leaves a blurring of the edges, which is not acceptable. Where I part company with the hon. Member for North-West Norfolk (Mr. Bellingham), with whom I often agree on such matters, is that, as I have said repeatedly, I do not believe that the purpose of statute law is to send signals. We do not use this place as a means of semaphore; we use it as a means of providing workable law. The problem with new clause 8 is that it replaces a test that is subjective in the eyes of the prosecution and the court with another test that is subjective in the eyes of the prosecution and the court. That is what worries me.

The hon. Gentleman has just contradicted himself. He said earlier that he was minded to support new clause 6 precisely because it sends a signal to the police not to conduct prosecutions. Now he is saying that he will not support new clause 8 because it is being used to send a signal. Does he not understand that new clause 6 simply sends a signal, whereas new clause 8 would genuinely change the law to protect the householder? The hon. Gentleman should therefore support new clause 8, as it represents a change of the law, not a signal.

Quite the reverse. That is the difficulty that I have with the Conservatives’ position. I do not think that they have read new clause 6 properly and compared it with their own new clause 8. My view is that new clause 6 provides a more stringent safeguard for the householder than does new clause 8.

That brings me to my second objection, which is the point raised by my hon. Friend the Member for Cambridge. Let us go back to the Tony Martin case. Let us set aside for the moment the person of Tony Martin and the circumstances of that case, and consider the point of law that was exposed by the Court of Appeal. The Court of Appeal distinguished between an error made by that person as to whether he was under attack, and an error made about the danger that was posed by that attack. In the first instance, the statement is subjective.

My hon. Friend is on the right lines. The Court of Appeal said that if the question were simply whether the defendant believed that he was under attack, what the defendant believed would be accepted. But when the question was whether the danger posed by the attack was serious, the question would become a matter of reasonableness for the jury to decide, which is quite different.

I wish I had not allowed my hon. Friend to intervene. That is what I was saying. The point is exactly as he makes it. The first test is whether the defendant believed he was under attack. The answer is yes or no. The second test as to the gravity of the attack, and therefore the response, must be tested objectively in terms of reasonableness. That is still the situation under new clause 8, but under the Government’s proposals in new clause 6, let us consider subsections (5) and (8).

Subsection (8) is crucial. It states:

“For the purposes of references in this section to what D believed, it is immaterial whether—

(a) any belief if D’s was mistaken, or

(b) (if it was mistaken) the mistake was reasonable.”

In other words, where a person meets an intruder in his house in the middle of the night and may be entirely mistaken about what the intruder is about to do to him, provided that he reacts in an appropriate way, even if it is not reasonable in the cold light of day, he is protected by the law. Under the Conservative amendment, he would not be protected by the law. That is the distinction that I am trying to make.

I do not want to get involved in an exercise in semantics, but subsection (4) of new clause 6, which states:

“The degree of force used by D is not to be regarded as having been reasonable in those circumstances if it was disproportionate in those circumstances”,

qualifies subsection (3). As a result, the suggestion that in some way the Government have magicked in a wholly subjective test, is wrong. I would have been surprised and rather shattered if the Government had gone that far, and I would have suggested that it was far too far to go.

New clause 8 is far more simply worded and clearly provides that

“this was or ought to have been apparent to the person using such force.”

It focuses on the degree of force used, and whether it was grossly disproportionate. That is a much simpler and more straightforward way of viewing it than the convolutions that, the more the interventions have gone on, seem to be coming from those on the Liberal Democrat Benches.

The hon. Gentleman says that he does not want to get involved in semantics. I am sorry, but in that case he is in the wrong place. This is what we are about. We are about trying to construe a new piece of legislation here. While he continues in his present position, he will have to grin and bear it, and go through the process of deconstruction of clauses.

I do not agree with the hon. Gentleman. I look at subsection (4) and I see that it is qualified by subsections (5) and (8), which gives that latitude in terms of the state of mind of the person under attack at the time, and allows them to believe something that is wholly wrong, provided that they genuinely believed it at the time and can show that to the court. I look at new clause 8 and I see a quite different test—that it should have been apparent to the person that he was using “grossly disproportionate force”, a term that is undefined. So the householder is still left in the quandary: “Is what I am doing grossly disproportionate? Will a court find at the end of the day that what I did was grossly disproportionate? I don’t know. It’s the middle of the night, I have a golf club in my hand, do I give him a thwack or not?” That is the real problem.

On that basis, I prefer new clause 6. It is a better formulation. It provides that latitude in law, but at the same time better defines the law. I do not accept that this is a signal, because it goes further than that and changes the ground rules for the legislation that applies. That will be of benefit to householders. New clause 8 may be of benefit, but not as much benefit as the Conservative party appears to think. Its determination to press the new clause to a vote in competition is absurd under the circumstances—grossly disproportionate, I might say.

I congratulate the hon. Member for Somerton and Frome (Mr. Heath) on his sterling performance, but I disagree with most of what he said. I hope that the House welcomes this debate, and I am trying to find the head of the pin on which the Secretary of State for Justice was dancing so that I can join him there.

I hope that the Opposition Front-Bench spokesmen will press new clauses 8 and 9 to a vote. In supporting the Opposition’s arguments, I want briefly to show why new clause 6 is defective. As the shadow Attorney-General has said, the law should be simple, precise and easy to apply, and that is why the Secretary of State has had the hindsight to come forward with the new clause, which I welcome. However, as the shadow Justice Secretary has said, it simply does not go far enough.

I want to focus on the two tests. One is the test of force—we are arguing about whether force is grossly disproportionate or disproportionate, so it is a matter of semantics—and the other is reasonableness. The main reason why new clause 6 is defective is that it does not give enough guidance. It would be helpful if the Minister could clarify for the House how the joint Association of Chief Police Officers/Crown Prosecution Service statement is to be amended.

I believe that new clause 8, in particular, is clearer and would make it easier for a jury or court to reach a decision. New clause 6(1)(b) contains the phrase “reasonable in the circumstances”, but what would those circumstances be and who would judge? Would the reasonable man on the jury decide, or would the reasonable prosecutor decide whether a prosecution would be brought? Furthermore, subsection (4) states:

“The degree of force…is not to be regarded as having been reasonable in those circumstances”.

Again, the Secretary of State’s argument is flimsy and unconvincing in that regard.

The right hon. Gentleman is such a nice person; perhaps that is why he chose the word “nicety” for subsection (5)(a). However, “nicety” is not even as clear as the current joint statement, one of whose sentences starts:

“So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment”.

I do not believe that new clause 6 brings anything extra to that. Subsection 5(b) states:

“only reasonable action was taken by that person for that purpose”—

presumably, self-defence. New clause 6 is simply too weak.

I shall reflect on what the hon. Lady has said, but this has been the subject of a huge amount of work. There is an honest argument about whether new clause 6 or new clause 8 is more effective. A point was missed by Conservative Front-Bench Members as they sought to undermine new clause 6. There seems to be an agreement across the House that that new clause should be the basis of the law for the apprehension of a criminal in all circumstances, save in respect of the apprehension of a burglar. On three occasions I have been involved in the arrest of a street robber; in such circumstances, new clause 6, not new clause 8, would apply. I advise the hon. Lady not to be too destructive of new clause 6, because it seems that she accepts it as well.

With the greatest respect, the right hon. Gentleman has to accept that a robbery in an open space, in a public place on a street, is completely different from being attacked in the privacy of one’s own home or business.

I do not think that we should have a competition, but I speak from direct experience. Another guy—an elderly gentleman—and I were rolling around in the middle of a carriageway holding a robber whom I had luckily knocked down. He was shouting and screaming for other people of a like mind to join in. I do not think that that was necessarily either a less good or a safer situation than some circumstances—although not all circumstances—in which someone apprehends a burglar. It depends entirely on the precise circumstances of the case. However, no one who has been in the situation that I have described would think that it is easy.

I simply conclude by saying that I rest my case. I commend new clauses 8 and 9 to the House. The prospect of seeing the Secretary of State for Justice embracing or mauling a street robber is too graphic to consider. However, I hope that the right hon. Gentleman will take on board the basis and wording of new clauses 8 and 9 and marry them together with clause 6. Our clauses are clearer, simpler and easier to interpret.

Members might well believe that I come to this issue entirely on the basis of the Tony Martin case. Tony Martin is a constituent of mine and the case was nearly 10 years ago, when the current Lord Chancellor was Home Secretary. Although I have every sympathy for Tony Martin, I should make it clear that one single case is not a good basis for changing the law. However, the case triggered an unprecedented public debate on householders’ rights and the conclusion was that the law was a complete muddle. There were too many investigations taking place and too many cases going to court. In the heat of the moment, when a householder has to react and take a split-second decision, he needs to know that the law is broadly on his side. The vast majority of the public who have been commenting on this issue feel strongly that burglars and intruders should leave the vast majority of their rights outside the building that they break into or intrude on.

Of course, there will be exceptions to that rule. That is why, in essence, the three private Members’ Bills on this subject were based on the concept of gross disproportionality. The first of those Bills was introduced by my hon. Friend the Member for North Thanet (Mr. Gale), the second by my hon. Friend the Member for Newark (Patrick Mercer), and the third by my hon. Friend the Member for Vale of York (Miss McIntosh)—not forgetting my hon. Friend the Member for North-West Cambridgeshire (Mr. Vara), who tried to bring in a Bill but found that there was no time for it. I sat through many of those debates, and in each and every case the Government were incredibly negative, although they had plenty of time to respond positively. Sadly, they are taking action only after a great deal of persuasion and public debate, having eventually realised that the public mood was running against them.

I accept that new clause 6 is a small improvement, but it is incredibly complicated and convoluted. One has to read it about 10 times to make sense of it. As a lawyer, I find it difficult to understand how intelligent lawyers in the Department have come up with a clause that is quite so verbose and complicated. New clauses 8 and 9 have the great virtue of simplicity. The law needs clarifying and changing, and I urge the House to support our new clause. I look forward to hearing what my hon. Friend the Member for Newark has to say.

It is unprecedented, Mr. Deputy Speaker, that I should take precedence over my hon. Friend the Member for Newark (Patrick Mercer), so I will keep my remarks extremely brief.

We are debating new clause 6 because the Secretary of State for Justice, who has always opposed changing the law in this area, sought an eye-catching initiative at the last Labour party conference, when we were gearing up for a general election. He sat down with his advisers and said, “What can we do to get ourselves on the front page of the newspapers?” They said, “Why not bring forward this policy, which you have always opposed?” The new clause simply restates the law. That is made explicit in subsection (2), which has the gall to cite

“the common law defence of self-defence”,

to remind people that there is such a thing, and then to restate the defences in existing legislation. Subsection (5) merely adds into what is already a matter of precedent factors that the courts can take into account. The key difference between new clause 6, which does not change the law at all—

Order—with apologies to the hon. Member for Newark (Patrick Mercer).

Question put and agreed to.

Clause read a Second time, and added to the Bill.

It being three and a quarter hours after the commencement of proceedings on the programme motion, Mr. Deputy Speaker proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour, pursuant to Order [this day].

Clause 174

Extent

Amendments made: No. 102, page 119, line 46, at end insert—

‘(da) section (Reasonable force for purposes of self-defence etc.);’.

No. 103, page 120, line 22, at end insert—

‘(10) Nothing in this section restricts the operation of section (Reasonable force for purposes of self-defence etc.) and paragraph 20A of Schedule 33 in their application in relation to service offences (within the meaning of that paragraph).’.—[Mr. Hanson.]

Schedule 33

Transitory, transitional and saving provisions

Amendment made: No. 113, page 299, line 17, at end insert—

‘Reasonable force for purposes of self-defence etc.

20A (1) Section (Reasonable force for purposes of self-defence etc.) applies whether the alleged offence took place before, or on or after, the date on which that section comes into force.

(2) But that section does not apply in relation to—

(a) any trial on indictment where the arraignment took place before that date, or

(b) any summary trial which began before that date,

or in relation to any proceedings in respect of any trial within paragraph (a) or (b).

(3) Where the alleged offence is a service offence, that section similarly does not apply in relation to—

(a) any proceedings before a court where the arraignment took place before that date, or

(b) any summary proceedings which began before that date,

or in relation to any proceedings in respect of any proceedings within paragraph (a) or (b).

(4) For the purposes of sub-paragraph (3) summary proceedings are to be regarded as beginning when the hearing of the charge, or (as the case may be) the summary trial of the charge, begins.

(5) In this paragraph—

“service offence” means—

(a) any offence against any provision of Part 2 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or Part 1 of the Naval Discipline Act 1957 (c. 53); or

(b) any offence under Part 1 of the Armed Forces Act 2006 (c. 52);

“summary proceedings” means summary proceedings conducted by a commanding officer or appropriate superior authority.’.—[Mr. Hanson.]

New Clause 25

Bail conditions: electronic monitoring

‘Schedule (Electronic monitoring of persons released on bail subject to conditions) makes provision in connection with the electronic monitoring of persons released on bail subject to conditions.’—[Mr. Hanson.]

Brought up, and read the First time.

With this it will be convenient to discuss the following:

Government new clause 26—Credit for period of remand on bail: terms of imprisonment and detention.

Government new clause 27—Credit for period of remand on bail: other cases.

Government new clause 28—Credit for period of remand on bail: transitional provisions.

Government new clause 29—Sentences of imprisonment for public protection.

Government new clause 30—Sentences of detention for public protection.

Government new clause 31—Extended sentences for certain violent or sexual offences: persons 18 or over.

Government new clause 32—Extended sentences for certain violent or sexual offences: persons under 18.

Government new clause 33—The assessment of dangerousness.

Government new clause 34—Further amendments relating to sentences for public protection.

Government new clause 35—Release on licence of prisoners serving extended sentences.

Government new clause 45—Restriction on power to make a community order.

Government new clause 46—Bail for summary offences and certain other offences to be tried summarily.

Government new clause 47—Release of fine defaulters and contemnors under Criminal Justice Act 1991.

Government new clause 48—Early release of certain long-term prisoners under Criminal Justice Act 1991.

Government new clause 49—Recall of certain prisoners released under Criminal Justice Act 1991.

Government new schedule 3—‘Electronic monitoring of persons released on bail subject to conditions.

Government new schedule 5—‘Offences specified for the purposes of sections 225(3A) and 227(2A) of the Criminal Justice Act 2003.

Government new schedule 6—‘Credit for period of remand on bail: transitional provisions.

Government new schedule 7—‘Bail for summary offences and certain other offences to be tried summarily.

Government amendments Nos. 156 to 158, 219, 159, 161, 162, 220 to 221, 163, 222, 164 to 166, 223 to 225, 227, 167, 168 and 160.

This group of amendments gives effect to recommendations made by my noble Friend Lord Carter of Coles in his review of prisons published in December, as hon. Members will know. My noble Friend recommended a package of measures to increase the capacity of the prison estate and to develop a more sustainable approach to the use of custody. As the House will recognise, we will always ensure that there are sufficient prison places for serious, dangerous and violent offenders whom the courts judge necessary to commit to custody. In response to Lord Carter’s review, my right hon. Friend the Lord Chancellor announced in his statement of 5 December plans to increase prison capacity by 15,000 places by 2012.

The need to provide prison places is paramount, but we also need to ensure that both prison and probation resources are properly focused on where they are most needed. My noble Friend Lord Carter put forward five particular measures to help to manage the use of custody. In summary, they are: the reform of public protection sentences to allow greater flexibility in the use of those sentences; the reform of bail legislation to ensure that remand in custody is reserved for serious and dangerous defendants; allowing defendants who comply with the terms of their curfew while on bail to be credited for doing so when sentenced; aligning the release arrangements for prisoners serving sentences under the Criminal Justice Acts of 1991 and 2003; and restricting the availability of community sentences for those convicted of non-imprisonable offences.

I hope that I may briefly detain the House with a little detail about each of the provisions. With regard to imprisonment for public protection, new clauses 29 to 35 and new schedule 5 reform public protection sentences as provided for in the Criminal Justice Act 2003. I hope that I can assure the House that those sentences remain a major plank of the Government’s public protection policy. However, while those sentences have met their objectives, they have given rise to a number of issues. In particular, the way in which they currently operate means that a very high number of offenders are being channelled into the IPP sentence, many of whom have short tariffs. Indeed, around 30 per cent. of tariffs are less than two years. In visits to prisons during the past few months, I and other colleagues have met many people in the prison system who believe that a difficulty exists when the concept of an indeterminate sentence is coupled with a short tariff. Sentences with such short tariffs are very difficult for the Prison Service to manage. They often put an unprecedented strain on the service, and on the Parole Board, and its workload.

The statute must be reformed, and I am grateful to my noble Friend for bringing forward suggestions to that effect. Indeed, Anne Owers, the chief inspector of prisons, has said that the sentences are not targeted on the right offenders. The chairman of the Parole Board has also said that there is a case for review. The changes we propose will not affect availability of IPPs for serious dangerous offenders. The courts will still be able to give IPPs where they are needed, but the current legislation is too prescriptive.

I see that the minimum notional sentence is two years. That suggests to me that the IPP, under these provisions, can be imposed in respect of relatively trivial trigger offences. Would it not be better to have a higher notional minimum period, so that the IPP is imposed only on offenders who have committed quite substantive, serious offences?

There will be a two-year custodial sentence, which might mean a four-year sentence in due course. I hope that helps to assure the right hon. and learned Gentleman on that point.

The changes we propose will increase judicial discretion as well as imposing a seriousness threshold on public protection sentences. As the right hon. and learned Gentleman mentioned, the provisions on the seriousness threshold will ensure that the threshold will be that the offence must justify a minimum of two years’ custodial time. We shall also remove the rebuttable presumption of risk where there is a previous conviction for violent or sexual crime.

Courts will obviously regard previous records as highly important in determining the risk presented by the offender, and we are ensuring that the legislation clarifies that the court is not being asked to ignore previous convictions. It is also important, as my noble Friend Lord Carter of Coles said, to allow courts greater discretion so that where conditions for an IPP are met, the court may impose an IPP, extended sentence for public protection or other sentence that it finds appropriate. We are also changing the structure of extended sentences so that offenders will be subject to automatic release halfway through the custodial part, rather than leaving such halfway release to the discretion of the Parole Board, as happens currently.

New clause 46 examines the reform of the Bail Act 1976 and would change the law on bail for offenders charged with the least serious imprisonable offences. As the law stands, the grounds for refusing bail differ according to whether the offence is imprisonable. If it is imprisonable, the court will deal with an application for bail in accordance with part 1 of the schedule. If that is not possible, part 2 applies. The amendment would insert a new part 1A into the schedule to set out the grounds on which bail may be withheld when the offence is imprisonable but summary only.

How can we trust the Opposition parties on criminal justice when, in Committee, the Liberal Democrats voted to remove the punishment of offenders from the Bill and the Tories abstained?

My hon. Friend, who loyally served on the Committee, draws attention to the fact that we had a debate on the purposes of sentencing and the involvement of punishment. I appreciate the reminder of those debates in Committee, but I would like to continue considering the Bail Reform Act because I do not want to spark debate with the hon. and learned Member for Harborough (Mr. Garnier) and the hon. Member for Somerton and Frome (Mr. Heath) on those matters.

The new part in the schedule will also apply to some cases that involve criminal damage when the court is clear that the value involved is less than £5,000. The court treats such offences as if they are summary only. The effect of the new clause is that some of those charged with offences to which the regime in part 1 currently applies would become subject to a new regime. That would result in bail being granted unless the offender posed certain clear risks.

Broadly, offenders charged with less serious imprisonable offences would be treated in the context of bail more like those charged with non-imprisonable offences. However, the amendments contain important safeguards, which allow the court to refuse bail if it believes that, if released on bail, the defendant would commit an offence through conduct likely to result in physical or mental injury to any person, or in any person fearing such injury.

Approximately 200, if the measure is passed.

The broad definition will allow the courts to remand a defendant to protect the public from violence when it is clear that the circumstances of the offence or the defendant’s history make it necessary or appropriate.

New clauses 26 and 27 and new schedule 6 would enable the sentencing court to direct that up to half the time spent on bail under an electronically monitored curfew could be credited against a subsequent custodial sentence in a similar way to that in which remands in custody are already credited. That could also give us approximately 200 places.

In those circumstances, prisoners would need to spend at least nine hours a day subject to electronically monitored curfew to qualify for the credit and would not receive full credit for each day of the curfew. Sentences would also be required to take account of the defendant’s compliance with the curfew condition and have discretion to direct that all parts or none of the available time would be credited against the sentence.

In new clause 25 and new schedule 3, we have taken the opportunity to clarify the legislative framework for applying electronic monitoring to support bail conditions imposed by the courts on adults and those aged 17.

New clause 48 would equalise parole arrangements. It amends the early release provisions in part II of the Criminal Justice Act 1991 for prisoners sentenced to four years and more for any offence other than a sexual or violent offence. It is intended that such prisoners will be subject to release arrangements identical to those for fixed-term prisoners who are currently sentenced under the Criminal Justice Act 2003.

Under new clause 48, prisoners who are convicted of offences other than sexual or violent offences would be released automatically on licence at the halfway point of their sentence. They would no longer be required to apply to the Parole Board for discretionary release at the halfway point or wait until the two-thirds point before becoming eligible for automatic release. They will be on licence and liable to recall until the point at which their sentence expires, which compares with existing arrangements whereby the licence expires at the three-quarter point of the sentence.

Does the Minister not understand the outrage among members of the public at prisoners being automatically released halfway through their sentence, and then going out to commit more and more offences? Most of the public whom I survey and speak to in Shipley want prisoners to serve their sentence in full, not to have their sentence commuted to half. Does he not understand that basic objection that most people have to the proposals? Will he confirm that, under the proposals, people will be released however poorly they behave in prison?

The hon. Gentleman indicates that he is against the principles of the Criminal Justice Act 2003. The policy that he advocates would ensure that many more people were in prison, that many more people were serving longer sentences, and that many more prison places would have to be found, over and above the number already planned. I am not sure that the official Opposition Front-Bench team share his view.

We are ensuring that we bring into line the Criminal Justice Act 1991 with the sentencing provisions of the 2003 Act. That will strengthen the provisions, as it will ensure that people are on licence to the end of their sentence, not just up to the three-quarter point. That gives the public additional protection. The new arrangements will enhance public protection, because placing all such prisoners on licence, and making them subject to probation supervision for the whole of the second part of their sentence, will make them liable to recall at any time if their behaviour gives cause for concern.

New clause 45 will restrict the use of community orders to imprisonable offences. Courts increasingly use a community order, instead of a fine, for lower-level offending, which diverts probation resources from dealing with more serious offenders, where they are most needed. The option of a community order would no longer be available for all low-level, non-imprisonable offences, removing some 6,000 community orders per year. That would restore the position that obtained before the Criminal Justice Act 2003 for some types of community penalty.

Taken together, the changes that I propose will ensure additional capacity in our prisons for serious, dangerous and violent offenders. Along with the steps being undertaken following my noble Friend Lord Carter of Coles’s report on prison building capacity, including the extra places to 2012, and the three new titan prisons of 2,500 places each, those changes will contribute to building a sustainable, modern prison and criminal justice system that both protects the public from dangerous offenders and ensures fairness in our operations. I commend the new clause to the House.

The Minister, in his characteristically disarming way, advances some propositions that, had we the time, deserve rather better scrutiny. Discussion on this group of amendments will have to be concluded by, I think, 5.13 pm. There is not therefore much time to discuss the merits or demerits of Lord Carter’s recommendations, which have been—I was going to say—spatchcocked into the Bill at this late stage. Whichever expression one cares to use, the detail of the new clauses and Government amendments betrays a worrying pattern.

The genesis of the new clauses and amendments is the Government’s mismanagement, which is not only of the prison estate. It is no longer controversial to say that the prison estate is woefully, and I would suggest, dangerously and inhumanely overcrowded, and that all the promises made by the Prime Minister, Secretary of State and Minister of State about a new building programme for prisons will not deal with the issues faced. The prison overcrowding is easy to see, because we can see that there are two or even three people in one-man cells, and because the Government introduced the end of custody licence programme last June to release 25,500 people over a 12-month period. What one has not been able to see—it is difficult to assess—is the equivalent overcrowding or overstretching of the probation and community punishment system. It is clear—the Minister confirmed it in a written answer last year—that each qualified probation officer now has to supervise between 20 and 80 individual offenders. If that is not the equivalent of overcrowding, I do not know what is.

It is not just a matter of supervision. Because they are responsible for so many people, probation officers cannot ensure proper compliance with the original order, so enforcement is not taking place either.

That is also true. The two issues—prison overcrowding and overstretching of the probation service—come together very neatly in the ECL system. Prisoners who have not been adequately rehabilitated or made ready for resettlement out of prison are being released early. Some might say, “So what? It is only 18 days”, but with short sentences, it is during the last 18 days that the most important work takes place—drug rehabilitation, introduction to job centres, housing associations and other sources of accommodation, introduction to the national health service and so on. If that does not happen, the probation service is then required to catch these people, who are essentially being thrown out of the back of the aeroplane without a parachute, and look after them.

I am extremely grateful to my hon. and learned Friend, who I would not want to understate his case. I think he would agree that a further problem of massive overcrowding is that it exacerbates the phenomenon of the churn, whereby prisoners are shunted from one institution to another, often prematurely, or out of prison altogether, before they have had the opportunity to complete the training or education programme on which they have rightly embarked.

My hon. Friend is quite right. Churning, or the constant movement of prisoners from prison to prison, is one of the fundamental problems that we have to face up to at the moment. The Government are responsible because they have so mismanaged our prison estate that prisons are woefully overcrowded. Roughly, the prison population now stands at about 81,500—[Interruption.] I hear 79,000 being mentioned from a sedentary position. I hope that the Minister can tell us that that population is the result of planned sentencing and sentencing progression rather than panic measures. In fact, there are some panic measures in this group of amendments.

In the brief period that remains, let me return to the new clauses and amendments in the group. New clause 26—I leave aside new clause 25, which simply introduces one of the Government’s many new schedules—deals with the courts’ requirement to give credit for periods of remand on bail. It affects the way in which a court comes to consider the appropriate custodial sentence. One of the greatest concerns of the public is that the current system leads to dishonesty in sentencing. People do not seem to understand that when a person is sentenced to two years in prison, that actually means that he will be in custody only for one year. It provides yet another example of how the Government, in order to overcome the difficulties of prison overcrowding, are guilty of promoting an untruth.

Subject to some exceptions, provided for in subsections (8), (9), (10) and (11), the court will be required to act in this way. When a man has been convicted—I say a man because it usually is a man—the court will place him on remand and on a tag, pending sentence. The Minister says that some people spend up to nine hours on curfew, supervised by means of a tag. That may be true, but as a recorder who has made orders relating to curfews I can tell him that most curfews last from, say, 6 or 7 pm until 6 or 7 am the following day. They are adjusted to allow people to go to and return from work, for instance, but they are designed to prevent people from wandering around the streets at night causing trouble.

For most or at least a good part of that time, the individual concerned may well be in bed. He will certainly be at home, or at an address of which the court has been notified. That cannot be considered the equivalent of having spent time in prison awaiting sentence, but the new clause directs the court to take all that time—described as “the credit period”—into account in reducing the custodial sentence. I am afraid that the public will find that rather difficult to understand. If someone has committed an offence that crosses the custody threshold—an offence that is serious enough to warrant a custodial sentence—it will cause a great deal of scepticism, undermine public confidence in the justice system and make the Government look increasingly ridiculous if the court is then required to say, “By the way, all the time that you have spent at home in bed is time that can be taken away from your custodial sentence.”

May I reinforce what my hon. and learned Friend is saying? He will know that under the sentencing guidelines, which are contained in statute, the court must impose a period of imprisonment only if it is the only appropriate sentence in view of the gravity of the offence. The new clause undermines that statutory guideline.

I am afraid that the Government have completely lost touch with their earlier legislation. They have completely lost touch with the philosophy behind the Sentencing Guidelines Council, they have completely lost touch with the Court of Criminal Appeal—if they ever were in touch with it—and they are now making things up as they go along. New clause 26 is an example of that.

I have made the points that I wished to make about the new clause to the best of my ability. Plenty more could be made, but time does not permit me to make them. Sentencing is probably the most difficult aspect of criminal justice practice: it is difficult enough without the Government fiddling around in this way.

I entirely agree with my hon. and learned Friend. I think that my constituents will find it unacceptable for time spent on bail to be taken off sentences. Does he agree that measures of this kind are basically an admission of failure from the Government? They are casting around for ways of clearing spaces in prisons, simply because they refused to accept—although everyone warned them—that we needed more prison places. These measures have nothing to do with logic, what is right or what will protect the public. The Government are simply thrashing around looking for some means of ending the mess that they have got themselves into.

My hon. Friend is quite right. I have made the point repeatedly for the last two years, since I started doing this job. Other members of the Opposition justice and home affairs team have made the same point, and I know that my hon. Friend has as well, as a constituency Member and as someone who takes an interest in issues of this kind. However, it seems to have no effect on the Government’s thinking. We might just as well talk to the air for all the good that it does to the public.

The trump card that the Government think they can play is “Lord Coles suggested it”—I mean Lord Carter of Coles.

I apologise to Lord Carter of Coles for getting his title wrong. I know that we all enjoy a joke from time to time, but we are now debating hugely serious issues that are being rattled through without proper consideration.

Let me now deal with new clause 29, which I shall seek to use as a symbolic issue on which to divide the House. This whole group of new clauses troubles us, and contains issues that we think should be the subject of far more scrutiny and consideration. We trust that the other place will be able to give those issues that scrutiny and consideration.

New clause 29 deals with sentences of imprisonment for public protection. I have visited, I think, 31 or 32 prisons since my right hon. Friend the Leader of the Opposition appointed me to this job just before Christmas in 2005. The category of prisoner that causes prison governors, managers of prisons and prison officers the greatest difficulty is adult prisoners who are on indeterminate sentences for public protection and who have got beyond their tariff. They are extremely difficult to manage. Their expectation when they were sentenced—most people do not listen to the sentence that they are being given—was that they would be released at or shortly after the minimum tariff.

The problem is that, because of the Government's mismanagement of the system, the overcrowding in the system and the churning that my hon. Friend the Member for Buckingham (John Bercow) spoke about, the individuals on IPP sentences cannot get on to the relevant courses to demonstrate to the Parole Board or the licensing system that they have reached a state of behaviour that allows them to be released back into the community.

I respect the hon. and learned Gentleman’s judgment on that issue. I have indicated in my comments today and during discussions with prison governors and others that I share the points that he has made. That is the very reason we are making the changes today. Our aim is to ensure that we have a minimum tariff in due course, rather than a low tariff—in some cases, it is as low as 28 days.

I know that that is precisely what the Minister has said, but he is looking down the wrong end of the telescope. He fundamentally misunderstands the problem that he has got himself into. The answer is not to dilute the IPP system, but to ensure that that system works. If one overcrowds the prison system, one is required to do what the Government are doing, which is to require courts to increase the minimum tariff for IPPs. The better answer, and the answer that the Government could have come up with if they had not messed up the prison system, is to make available sufficient course places, rehabilitation places, and places on anger management and other necessary courses that IPP prisoners need to go on in order that they can demonstrate to the assessors that they are safe to be released. However, they are stuck because of the mismanagement and the consequent overcrowding. In order to relieve overcrowding, the Government will have to take these measures, which I believe are viewed from the wrong end of the telescope.

The condition that the Government set in new clause 29 is that the minimum tariff of two years, which is the equivalent of a determinate sentence of four years, should be the hurdle below which a sentencing court cannot go. We are going to be left with people who may continue to represent a danger to the public being given determinate sentences of two or three years because the actual offence that they committed does not warrant more than that. They will be releasable after the 50 per cent. point, or even at some stage between the 50 per cent. and the 100 per cent. point; they will get released.

The advantage of the indeterminate prison sentence system is that, even if prisoners have a low tariff, as long as they have demonstrated themselves to be unfit to be released because they still represent a danger to the public, they can be kept in. The court will, of course, take account of the nature of the original sentence, but it will also have in mind public protection by looking at the character of the information surrounding that individual. The Government are doing away with that. Therefore, people who have committed what I would loosely call, putting it in quotes—I do not want to be misunderstood—“less serious” sexual offences and “less serious” offences of serious violence, if it is possible to have such things, will be given determinate sentences of under four years and they will be released at the end of that period. They will then be free to go out into the public and to repeat—

I am listening carefully to what the hon. and learned Gentleman has to say; of course, he has a lot more experience than most of us of how this works in practice. Does he not believe that if new clause 29 were brought into effect, sentencers would make this adjustment: if they felt that there was a danger of someone being released inappropriately, they would increase the tariff in order to compensate for what the Government had put in place?

Would that that were possible. Someone might, for example, commit a non-invasive sexual offence against a child—grossly inappropriate sexual behaviour against a child, short of some invasion of his or her body—and that might be a first offence. In looking at that offence alone, the court might take the view that a custodial sentence of under two years is appropriate. However, whereas a court might currently be able to give an IPP for that one offence, it would not be able to do so under the new regime that this Government wish to push forward in order to cope with overcrowding. That is the danger we face, and that is the problem that the Government have given us, the public, and themselves as managers and legislators.

It is a pleasure to turn and look at you again, Mr. Deputy Speaker—rudely, I was looking in the other direction. I cannot stress too highly how important it is that those convicted of such offences should be susceptible to IPPs even if the original offence is subject to a relatively low tariff. The same applies to new clause 30 and, to some extent, to new clauses 31 and 32, which address extended sentences for both those under 18 and those over 18. Under new clauses 31 and 32, if a court goes for an extended sentence of imprisonment the term has to be at least four years. We are causing too great a limit to be placed on the discretion of the sentencer in dealing with such serious cases. It gets worse, because under proposed subsections (6) of both those new clauses we would give the Secretary of State the power by order to amend proposed new subsections (2A) and (2B) of section 227 of the Criminal Justice Act 2003

“so as to substitute a different period for the period for the time being specified in”

those subsections. Therefore, whereas the Government want at present to say that the custodial term would be at least four years, it will be open to a Secretary of State to come to a different conclusion.

We will not have a proper opportunity to debate this provision on the Floor of the House; it will go through as a statutory instrument. That is, I gather, the modern way of dealing with criminal justice legislation. Not only did we not have any time to debate the Bill, but we are not even permitted to have a serious debate about any amendments to the Government’s provisions.

On new clause 33, what the Minister did not make at all clear to me the necessity for proposed new paragraph (aa) to section 229(2) of the 2003 Act, as specified in subsection (2)(b) of the new clause. Why is the information about the dangerousness of the individual concerned to be restricted to activities relating to a conviction

“in any part of the United Kingdom”?

A foreign national defendant might have led an entirely blameless life in the United Kingdom until his conviction, but he might have a string of convictions for dangerous behaviour in other parts of the world, which the court ought to be entitled to take account of. The Government must explain why they think that provision is necessary.

I will not be able to deal with all the amendments and new clauses in this group, as my doing so would be unfair on other Members who have things to say. However, I also point out that new clause 35 has huge hidden implications. It blithely deletes subsections (3), (4), (5) and (6) of section 247 of the 2003 Act. I remind Members that the Bill that led to that Act was the flagship Bill of the 2001 Parliament, which was going to solve all our criminal justice ills. Huge sections of that Act have yet to be brought into force, and many sections have been repealed before being brought into force, but this is yet another example where matters relating to the release on licence of prisoners serving an extended sentences are to be addressed.

The title of new clause 45 is:

“Restriction on power to make a community order”.

I do not understand the logic behind the proposal, and nothing that the Minister said made it easier to understand the Government’s case. Clearly, it is not possible to give a community sentence to someone who has committed an offence where the penalty is fixed by law, for example, murder or some of the firearms offences, which I believe carry minimum periods of imprisonment of five years. I am looking at my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright) here. Clearly, someone cannot be given a community sentence in such circumstances.

Again, this issue goes back to overstretching the probation service. The reason the Minister says that he is pushing this proposal is that people have been given community sentences when they ought to have been given fines and because people are in some way being placed in a position where the probation service would be further overstretched. Why do the Government not manage the criminal justice system properly, plan and have a strategic vision, instead of looking down the wrong end of the telescope?

New clause 47 deals with the release of fine defaulters and contemnors under the Criminal Justice Act 1991, and is clearly designed to alleviate prison overcrowding. That is the wrong way to look at the development of the criminal justice system. The Government should work out the appropriate thing to do with particular sorts of offences and offender. They should not empty the prisons because they have failed to plan for the consequences of their sentencing policies since 1997.

New clauses 48 and 49 are interesting. New clause 48(2)(1A) states:

“As soon as a long-term prisoner has served one-half of his sentence, it shall be the duty of the Secretary of State to release him on licence.”

I am surprised that the Secretary of State thinks that that is an appropriate duty for him to have. One surely ought to have some regard to the details of the character and offence of the individual prisoner in question.

New schedules 3, 5 and 7 are very lengthy additions to the Bill. They were introduced this week, and although they are, to some extent, dependent on the new clauses that we have just been rushing through, they deserve greater attention than it is appropriate for me to give them this afternoon, given the time constraints. Thus, I shall say no more about them, save to invite Members of the other place to give them a thorough grilling when the Bill reaches there.

I hope that the sceptical view that I have brought to the discussion of these new clauses and new schedules gives the House not only an indication of my deep concern at the way in which the Government have brought the Bill and these new aspects of it to this place, but an understanding of my concern about the substantive underlying nature of these provisions. I regret to say that the Justice Secretary and his Ministers are diluting a pledge to be “tough on crime, tough on the causes of crime”, and are doing so in a wholly incomprehensive and illogical fashion. I could get cross about this. I could scream and shout, but it does not do my ulcers any good and it certainly does not do the attention of the House any favours. I shall stop now, and invite those hon. Members who are as concerned as I am to consider carefully the new clauses and amendments. I trust that if the opportunity is there, they will vote with the official Opposition against new clause 29, which I have picked as a useful symbol of our expression of deep concern about the mishandling of the Bill and of this aspect of it.

Nothing better illustrates some of the arguments that we attempted to put forward when we discussed the programme motion in the initial stages of the debate than this group of new clauses and amendments. A large number of Government changes have been tabled for consideration on Report. In little more than half an hour’s time, we will be required to divide on them. It is quite impossible to scrutinise such serious matters in this way. We are effectively giving a licence to the unelected House to do the job that we are elected to do—to deal with matters of life, liberty and criminal justice. That is all a result of the intransigence, it would appear, of the Government Whips in not providing sufficient time for us to do the job properly. It is a disgrace, and we cannot repeat that often enough. There is no possibility of going through the new clauses methodically, as we would have done had they been before us in Committee. We could have dissected them line by line and had the opportunity to produce amendments.

Another disadvantage in the process is that there has been no consultation, so far as I am aware, with authorities, institutions and persons outside the House.

That is entirely right. I am grateful to the right hon. and learned Gentleman for making that point. This is not a good way of making law. It is not the way in which the House is supposed to operate. I hope that we have emphasised that point sufficiently this afternoon.

Let me come to the general tenor of the new clauses and amendments, as I cannot deal with the detail. They contain a number of constructs that are intended to remove people from the overcrowded prison system. The Minister knows perfectly well that I agree that we have too many people in our prisons. My argument, which I have made many times, is that if we ran our penal system properly a great many people who are in the prison estate would not be there taking up places that ought to be used for those who need to be in prison for protection of the public. Sadly, the amendments do not for one moment answer the needs of the service by taking out those with mental illness, who need secure accommodation that enables them to be treated properly. It is a national disgrace that such people are kept in prison cells. The amendments do not deal with alcoholics or drug addicts who find themselves in prison and do not get the proper treatment that they need. The amendments do not deal with the children in our prisons—it is a most inappropriate way of disposing of them—who do not get the developmental help that they deserve. All those factors mean that the system is not capable of providing the basic elements of rehabilitation that we ought to expect the Prison Service to achieve.

We are dealing with a dysfunctional system. The Government are attempting to paper over the cracks by introducing an array of manoeuvres to get people out of the estate almost randomly. They are not based on any real, assessed need, but purely on various mechanistic bases that enable the prison population to be reduced. For that reason alone, I do not think that that is the right way to manage the service.

There is a second element to the problem. What is the effect of releasing prisoners—I mean the ones who should be in prison, rather than the ones who should not—into the care of the probation service? The hon. and learned Member for Harborough (Mr. Garnier) is right to draw attention to the deficiencies that exist at present. The probation service is under-resourced and overstretched, just as the Prison Service is. It struggles to cope with its current work load, and it will certainly struggle with the additional burden that the proposals being considered today will impose on it.

Does the hon. Gentleman agree that a consequential problem is that the probation service is no longer able to supervise community service orders? As a result, the public have lost trust in them, and want custodial penalties to be imposed instead. The greater the burden loaded on to the probation service, therefore, the less attractive to the public the CSO option will become.

Again I am grateful to the right hon. and learned Gentleman, as he has touched on a very important point. Both elements of the National Offender Management Service are overstretched at present. As a result, prisons do not do the job in terms of rehabilitation and deterrence that people fondly imagine that they do, and the probation service is unable to provide a satisfactory alternative that enjoys the public confidence.

I am full of admiration for the work that probation officers do, but I recognise the constraints under which they work. Those constraints are extreme, and they are getting worse. The Government have hugely underestimated what is needed to provide an adequate service. Even if the probation service had sufficient resources to do the job that the Government expect it to do, the problem of how to manage offenders in the system would remain. That management task will be made immeasurably more difficult by the proposals that we are considering at present. The complexities presented by the movement of prisoners out of the prison estate, or their recall back into it, will be made much worse by the announcement that the Justice Secretary slipped out in a ministerial statement yesterday. In that statement, he made it clear that he is effectively abandoning the National Offender Management Service IT system that was supposed to provide the co-ordination between the prison and probation services.

The NOMS system was supposed to track movements around the prison estate and ensure that absurdities such as prisoners getting lost or ending up in the wrong place would not overtake the probation service as well. The Justice Secretary has decided, however, that the original IT specifications were much too ambitious, were escalating beyond his Department’s control and could no longer be afforded. He has therefore determined that the system will work only in prisons and that it will not extend to the probation service.

The Justice Secretary did not in the first instance ask the probation service what it needed to fulfil its task. In fact, it needs a very sophisticated IT system, because in some ways, probation work is more difficult than prison work. For example, prison staff can at least hope that a prisoner’s location—that is, his or her cell—is known, whereas probation officers cannot know as much about their charges. As a result, we have an inadequate system that will not now be improved. When NOMS was set up, we were given a set of high expectations that have been shown to be entirely imaginary, and I fear that we will end up with a system that is grossly under-resourced.

I regret that the Secretary of State was not able to make a verbal statement to the House on these matters, as I suspect that many people will not have read his written statement. Even if they have read it, I doubt that they will have understood it. I heard the right hon. Gentleman speak on the radio last night about his proposals, and he was finding it very difficult to answer some simple questions about how NOMS would develop. If he gets the opportunity to speak again—and the time constraints under which we are working mean that our expectations on that front must remain limited—I hope that he will set out how he intends to put right the difficulties that he has created by his decisions.

We are right to question the Government’s judgment on this issue, not on the basis of reducing the prison population—they are right about that—but in respect of how they are choosing to do it, the lack of resources they are prepared to put into it and in the arbitrary nature of many of the proposals before us today.

The hon. and learned Member for Harborough (Mr. Garnier) focused on new clause 29, and I will carefully consider the points that he made. However, I do not want to see circumstances in which IPPs are artificially extended beyond the normal tariff for an offence simply in order to address the points that he made. I fully understand his point about the lack of opportunities within the prison system to satisfy the Parole Board and others of suitability for release and the need to arrange such matters much more satisfactorily. I am not sure that knocking the provision out would help that process; it may indeed hinder it. That is why I shall consider carefully before advising my hon. Friends on which way to vote if the hon. and learned Gentleman divides the House on the matter. However, I agree with the principle that he set out. We have a chaotic system that is dishonest in its treatment of offenders and the public reaction to that. We should and must do very much better in future.

I support strongly what my hon. and learned Friend the Member for Harborough (Mr. Garnier) said about the difficulties of sentencing in the criminal courts. I entirely agree that sentencing is one of the most difficult tasks of the trial judge, and it has become enormously more complicated in recent years. That makes the process on which we are embarking today thoroughly undesirable, because these amendments, which we are having to discuss in a sharply compressed period, make very substantial changes. They should not have been tabled on Report. For a start, they place Mr. Speaker in an impossible position, in that a variety of difficult issues are grouped together in such a way that the House cannot seriously discuss them. As they were tabled on Report and not in Committee, they have not been the subject of extensive external consultation—at least, not of which I am aware—or, put differently, the result of any such consultation has not come to the attention of right hon. and hon. Members.

Does my right hon. and learned Friend agree that it is precisely on such subjects that the House should have the most extensive debate, because they affect people in the courts and in the carrying out of the laws that we pass in this House?

Absolutely. When we deal with sentencing it is very important that we consult with interests outside this House, not least those who are responsible for the imposition of sentences, so that we may hear the professional view of the likely consequences of our actions as legislators. I am against the process on which we are embarking, and I hope that the other place treats this group of amendments with gravity and does not hesitate to send it back to this House for further consideration.

That said, I have only three points to make, because—as others have said—there is no way in which we can subject the individual amendments to proper consideration today.

On new clause 26, my hon. and learned Friend the Member for Harborough is right to say that it is bizarre that we will allow credit to be given for time when the person is asleep against the period that the court thinks he should be serving in prison. The statutory requirements in the relevant sentencing legislation are quite plain: sentences of imprisonment must be imposed only when they are absolutely necessary. It is absurd to dilute that requirement by saying that if the person is asleep at the material time, they are entitled to have that taken into account when a reduction of the period of imprisonment is considered. It is absurd.

That is one of the better descriptions of it that I have heard. I am grateful to my hon. Friend, who always has a felicitous choice of phrase.

I strongly suspect that I might not be entirely in agreement with all my right hon. and hon. Friends on new clause 29. I hasten to say that that causes me no disquiet. I am referring to sentences of indeterminate imprisonment, or imprisonment for public protection. My hon. and learned Friend the Member for Harborough is entirely right to say that those who are serving IPPs at the termination of the tariff period are the most difficult group of prisoners to manage.

IPPs are inherently unjust, because they do not give any kind of certainty about the term that a person should serve. I am well aware of the rationale behind such sentences, which is that they are for the protection of the public, in that a person will not be released until the responsible authorities think that they are safe to release, but it is difficult to judge when a person is safe to release. In the current climate, I suspect that many of the relevant authorities are guarding their back, and are not releasing people because of the uncertainty that necessarily arises. A lot of people are serving, or are likely to serve, terms of imprisonment that are excessive, given what they have done.

It is good of the Justice Secretary even to condescend to come into the Chamber, let alone to interrupt me when I was addressing the Chair. May I say what a pleasure it is to see the Secretary of State? As I was saying, Mr. Deputy Speaker, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) is entirely right that the Parole Board is making increasingly defensive decisions, particularly on the occasions on which it simply does not have the opportunity to examine the applicant for the licence release in life sentences. The problem with IPPs is that the individual concerned cannot even get in front of an examiner to persuade them that he is fit to be released.

Yes. That is a slightly different point, but it is an important one. Partly because of overcrowding—[Interruption.]

Order. I must say to the hon. and learned Member for Harborough (Mr. Garnier) that that is not the way we should behave in the House.

May I just follow up what my hon. and learned Friend said with regard to courses? There is a serious issue to address. Because of overcrowding and strained resources, many prisoners who have been given an IPP are not able to get on, or to complete, the training course that would enable them to be considered for release. In the prison system, unless individuals have gone through the training period, the question of their release at the end of the notional period cannot arise. That is a serious injustice, and it has actually taken place. It has given rise to decisions by the divisional court with regard to prisoners who have not had such training periods. If IPPs are to continue—and I have serious doubts about whether they should—they should be imposed only for those offences that can truly be categorised as serious.

In the past, the classes of offence have been set out in schedules. The problem is that within the class there are many offences that sound serious but which, in truth, in a particular case are not serious. The only way in which one can determine whether an offence is truly serious in a particular case is with reference to the notional term of imprisonment imposed as the tariff. For that reason, I find the two-year notional term—the minimum term—far too low. That sentence can be imposed in respect of fairly minor offences, and I do not want to see someone who is convicted of a fairly minor offence facing an IPP. If I have to contemplate the system at all, I would want to drive up the threshold so that only those people who have committed serious offences are subject to an IPP.

The last point that I want to make, which was made in part by the hon. Member for Somerton and Frome and by my hon. and learned Friend the Member for Harborough, relates to the probation service. Any of us who practise in the criminal courts—I have practised for many years in the criminal courts and I still do; I make no attempt to conceal that—know well that many prisoners should not, in general terms, be in prison. One of the reasons for that is that the public have no real confidence in the alternatives. My hon. Friend the Member for Shipley (Philip Davies) would probably never have any confidence in the alternatives, but that is by the bye.

The public need to have confidence in the alternatives, particularly in what I used to refer to as community service orders. They have no confidence now partly because community service orders are not seen to be sufficiently vigorous, and partly because in many cases they are not enforced at all, so there is no proper compliance. One of the reasons for that is that the probation service is grossly overwhelmed. It has too many people to supervise.

One of the consequences of some of the amendments in this grouping is that the probation service will be even more overwhelmed. The bizarre effect of that will be that it is unable to perform what it needs to perform in respect of people ordered to serve a community sentence order, there will be yet less public confidence in community service orders, and there will be greater public demand for people to be sent to prison for periods of custody.

May I put it to my right hon. and learned Friend that the problem with some community service orders is not merely that they are, as he rightly puts it, insufficiently rigorous, but that they are insufficiently rehabilitative in their character? Does he agree that one of the problems that bedevils in particular our young offender institutions is that there are about 12,000 young people in them, the great majority of whom go into them uneducated, untrained, unqualified, unemployed and unwell, and come out uneducated, unqualified, untrained, unemployed and unwell?

My hon. Friend is entirely right. One of the great tragedies of the whole penal system is that an extraordinarily high proportion of prisoners are educationally or otherwise inadequate. One of the purposes—not the only purpose—of prison is to rehabilitate, by providing basic training in this and that. That is largely frustrated by overcrowding. Although I am a strong proponent of education and training in prison, it must be acknowledged that it is not being provided. My hon. Friend is right when he says that rehabilitative programmes, which would be extraordinarily useful, are not being incorporated in community service orders.

I return to my general theme. I am extremely uneasy that we should be contemplating such a raft of very serious changes on Report, without proper discussion, without a Committee stage and without external consultation. This is precisely the sort of thing that the House should not be doing. I would be very surprised if the higher judiciary and others did not say in due course, when these matters come to the Court of Appeal, that this place has been failing in its duty.

I welcome you to the Chair, Madam Deputy Speaker, for our interesting but short debate within the time available before the programme motion kicks in .

A number of points have been made, many of which go wider than the amendments, but which are obviously still related to them. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the hon. and learned Member for Harborough (Mr. Garnier) and the hon. Member for Somerton and Frome (Mr. Heath) have contributed in their usual helpful way to some of the issues.

There has been some consultation on the changes proposed by my noble Friend Lord Carter, for which we are legislating today. The previous Lord Chancellor, the noble Lord Falconer, commissioned Lord Carter to consider the whole question of prison population and pressure issues in May 2007. Between then and my right hon. Friend the Lord Chancellor producing the report on 5 December, Lord Carter engaged in significant consultation with the judiciary, with interested parties, with the Prison Service and the National Offender Management Service, and with my right hon. Friend and me.

The package of measures, which the legislative proposals before the House today deal with in part, was about not just some of the measures relating to IPPs, bail credits and sentencing in the amendments and new clauses, but a much wider set of proposals that cover some of the points raised by the right hon. and learned Member for Sleaford and North Hykeham, the hon. and learned Member for Harborough and the hon. Member for Somerton and Frome. They will be aware that Lord Carter has not just dealt with the new clauses before us today but has announced recommendations, which we have accepted, to build additional prison capacity, so that by the end of 2012-13 we will have some 96,000 net places in the prison system in England and Wales, three titan prisons of 2,500 in London, the midlands and the north-west and emergency accommodation in Norfolk, for example, at the RAF base at Coltishall.

We will consider the possibility of a prison ship following Lord Carter’s recommendations, and, importantly, in reply to the right hon. and learned Member for Sleaford and North Hykeham, we will consider improving and extending community-based sentences, and tackling some of the confidence issues in those sentences. Under the youth provision orders in the earlier clauses of the Bill, we are looking at increasing confidence in such sentences by putting together a generic youth order that deals with drug and alcohol treatment, learning and the matters that the hon. Member for Buckingham (John Bercow) mentioned in his helpful interventions. So the Carter package considers a range of measures, including new build and those before the House today.

I will reflect on the matters that have been raised today, but I want to make a couple of particular points. The hon. and learned Member for Harborough referred to bail credit and said that it was not like for like with the potential for remand in prison, because the loss of liberty was not the same as having time for credit on curfew at home. As I said in my opening remarks, the offender gets credit for only half the time spent on curfew, rather than the full time. We recognise that there is a difference between remand and curfew, but it is important to ensure that individuals can maintain their life. It is important that we consider the use of sentences in the community on curfew before potential sentencing in full.

The hon. and learned Member for Harborough and I must have an honest disagreement about IPPs. I thought he would welcome our proposals. In Committee and elsewhere we recognised that the provisions, however well meaning they were in the past, do not serve a proper purpose now, for the very reasons that he mentioned, including the availability of courses and prisoners’ ability to be helpfully trained to come to terms with some of the offending behaviour that has led them to be sentenced in the first place. We need to address that properly; it is an important measure to bring before the House. The hon. and learned Gentleman has argued that we look at the issue through different ends of the telescope, but the Government’s end of the telescope—a minimum period for IPPs—allows for planning and proper investment, for offending behaviour to be addressed and for the assessment to be made. That is why I support the minimum tariff that we proposed in the amendments.

There are 3,100 prisoners on IPPs; the proposal will have absolutely no bearing on them. How will the Government deal with the sclerosis that they are suffering from in the rehabilitation and release-from-IPP system?

I hope that the hon. and learned Gentleman will know that we have put in extra resources to provide courses so that those who are now at minimum tariff or post-minimum tariff get the support to ensure that they get through the courses required to assess their suitability for release. If the proposals are passed by both Houses, that will have an impact of well over 1,000 places in respect of IPP. It is important that we introduce the measure.

The hon. and learned Gentleman mentioned concerns about those who do not meet the tariff threshold. In the legislation and elsewhere, a number of measures such as violent offender orders, sex offender orders and the multi-agency public protection arrangements framework, will look at the impact of individuals who do not meet the tariff threshold proposed in the Bill.

The hon. and learned Gentleman also mentioned sub-paragraph (aa) that would be inserted by new clause 33(2)(b). It reads as follows:

“may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted in any part of the United Kingdom”.

Its purpose is to enable the courts to examine previous convictions, and not be debarred from looking at them just because the statutory presumption of risk was removed.

The hon. and learned Gentleman also made a valid point about overseas convictions. The courts are not prevented from considering foreign convictions if there is proper evidence of them. I shall consider the point after this debate to see whether there is merit in considering it further.

A number of points in the Carter proposals are valid and important. They will help the prison population and make much more efficient use of resources for probation and prison.

Finally, I refute suggestions that the probation service remains underfunded. We have increased funding dramatically and support the service strongly. I hope that this year we will increase for next year the budget figures by more than 2 to 3 per cent.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

It being four and a half hours after the commencement of proceedings on the programme motion, Madam Deputy Speaker proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour, pursuant to Order [this day].

On a point of order, Madam Deputy Speaker. I am probably interrupting you wholly unnecessarily. Earlier in the debate—I am not sure whether you were in the Chair at the time—I said that the Opposition wish to test the opinion of the House on new clause 29, which is grouped with new clauses 26 to 35. Could that clause please be separated from the other new clauses?

I was informed by the previous occupant of the Chair of the hon. and learned Gentleman’s wish to divide the House on that. However, Standing Orders require that when the time is reached I put the Question that was being debated—new clause 25. This is now a single question relating to the whole group of Government new clauses and schedules.

New Clause 26

Credit for period of remand on bail: terms of imprisonment and detention

‘(1) The Criminal Justice Act 2003 (c. 44) is amended as follows.

(2) In section 237 (meaning of “fixed term prisoner”), in subsection (1B), after “Armed Forces Act 2006)” insert “or section 240A”.

(3) In the italic heading before section 240, after “custody” insert “or on bail subject to certain types of condition”.

(4) After section 240 insert—

“240A Crediting periods of remand on bail: terms of imprisonment and detention

(1) This section applies where—

(a) a court sentences an offender to imprisonment for a term in respect of an offence committed on or after 4th April 2005,

(b) the offender was remanded on bail by a court in course of or in connection with proceedings for the offence, or any related offence, after the coming into force of section (Credit for period of remand on bail: terms of imprisonment and detention) of the Criminal Justice and Immigration Act 2008, and

(c) the offender’s bail was subject to a qualifying curfew condition and an electronic monitoring condition (“the relevant conditions”).

(2) Subject to subsection (4), the court must direct that the credit period is to count as time served by the offender as part of the sentence.

(3) The “credit period” is the number of days represented by half of the sum of—

(a) the day on which the offender’s bail was first subject to conditions that, had they applied throughout the day in question, would have been relevant conditions, and

(b) the number of other days on which the offender’s bail was subject to those conditions (excluding the last day on which it was so subject),

rounded up to the nearest whole number.

(4) Subsection (2) does not apply if and to the extent that—

(a) rules made by the Secretary of State so provide, or

(b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection.

(5) Where as a result of paragraph (a) or (b) of subsection (4) the court does not give a direction under subsection (2), it may give a direction in accordance with either of those paragraphs to the effect that a period of days which is less than the credit period is to count as time served by the offender as part of the sentence.

(6) Rules made under subsection (4)(a) may, in particular, make provision in relation to—

(a) sentences of imprisonment for consecutive terms;

(b) sentences of imprisonment for terms which are wholly or partly concurrent;

(c) periods during which a person granted bail subject to the relevant conditions is also subject to electronic monitoring required by an order made by a court or the Secretary of State.

(7) In considering whether it is of the opinion mentioned in subsection (4)(b) the court must, in particular, take into account whether or not the offender has, at any time whilst on bail subject to the relevant conditions, broken either or both of them.

(8) Where the court gives a direction under subsection (2) or (5) it shall state in open court—

(a) the number of days on which the offender was subject to the relevant conditions, and

(b) the number of days in relation to which the direction is given.

(9) Subsection (10) applies where the court—

(a) does not give a direction under subsection (2) but gives a direction under subsection (5), or

(b) decides not to give a direction under this section.

(10) The court shall state in open court—

(a) that its decision is in accordance with rules made under paragraph (a) of subsection (4), or

(b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.

(11) Subsections (7) to (10) of section 240 apply for the purposes of this section as they apply for the purposes of that section but as if—

(a) in subsection (7)—

(i) the reference to a suspended sentence is to be read as including a reference to a sentence to which an order under section 118(1) of the Sentencing Act relates;

(ii) in paragraph (a) after “Schedule 12” there were inserted “or section 119(1)(a) or (b) of the Sentencing Act”; and

(b) in subsection (8) the reference to subsection (3) of section 240 is to be read as a reference to subsection (2) of this section and, in paragraph (b), after “Chapter” there were inserted “or Part 2 of the Criminal Justice Act 1991”.

(12) In this section—

“electronic monitoring condition” means any electronic monitoring requirements imposed under section 3(6ZAA) of the Bail Act 1976 for the purpose of securing the electronic monitoring of a person’s compliance with a qualifying curfew condition;

“qualifying curfew condition” means a condition of bail which requires the person granted bail to remain at one or more specified places for a total of not less than 9 hours in any given day; and

“related offence” means an offence, other than the offence for which the sentence is imposed (“offence A”), with which the offender was charged and the charge for which was founded on the same facts or evidence as offence A.”

(5) In section 241 (effect of direction under section 240 of that Act) after the words “section 240”, in each place where they occur (including in the title), insert “or 240A”.

(6) In section 242 (interpretation of sections 240 and 241), in the title and in subsection (1), after “sections 240” insert “, 240A”.

(7) In section 330 (Parliamentary procedure for subordinate legislation made under that Act), in subsection (5)(d), after “section 240(4)(a)” insert “or 240A(4)(a)”.’.—[Mr. Hanson.]

Brought up, and read the First time.

Question proposed, That the clause be read a Second time.

The House proceeded to a Division.

New Clause 27

Credit for period of remand on bail: other cases

‘(1) The Criminal Justice Act 2003 (c. 44) is amended in accordance with subsections (2) and (3).

(2) In section 246(4) (exceptions to power to release prisoner on licence before required to do so), in paragraph (i), after “section 240” insert “or 240A”.

(3) In section 269(3) (part of mandatory life prisoner’s sentence to be specified for purposes of early release provisions), in paragraph (b), before “if” insert “or under section 240A (crediting periods of remand on bail spent subject to certain types of condition)”.

(4) In paragraph 2 of Schedule 2 to the Criminal Appeal Act 1968 (c. 19) (sentence on conviction at retrial), in sub-paragraph (4), for the words from the beginning to “custody:” substitute “Sections 240 and 240A of the Criminal Justice Act 2003 (crediting of periods of remand in custody or on bail subject to certain types of condition:”.

(5) In section 82A(3) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (part of discretionary life prisoner’s sentence to be specified for purposes of early release provisions), in paragraph (b), before “if” insert “or under section 240A of that Act of 2003 (crediting periods of remand on bail subject to certain types of condition)”.

(6) In section 101 of that Act (detention and training orders: taking account of remand etc.)—

(a) in subsection (8) for “in custody” substitute “—

(a) in custody, or

(b) on bail subject to a qualifying curfew condition and an electronic monitoring condition (within the meaning of section 240A of the Criminal Justice Act 2003),”; and

(b) in subsection (9) for “in custody” substitute “as mentioned in that subsection”.

(7) In paragraph 2(1) of Schedule 7 to the International Criminal Court Act 2001 (c. 17) (provisions of law of England and Wales affecting length of sentence which are not applicable to ICC prisoners), for paragraph (d) substitute—

“(d) sections 240 and 240A of the Criminal Justice Act 2003 (crediting of periods spent on remand in custody or on bail subject to certain types of condition: terms of imprisonment and detention).”’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 28

Credit for period of remand on bail: transitional provisions

‘Schedule (Credit for period of remand on bail: transitional provisions) (which, for the purposes of certain repealed provisions which continue to have effect in relation to persons convicted of certain offences, makes provision similar to that made by sections (Credit for period of remand on bail: terms of imprisonment and detention) and (Credit for period of remand on bail: other cases)) has effect.’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 29

Sentences of imprisonment for public protection

‘(1) In section 225 of the Criminal Justice Act 2003 (c. 44) (life sentence or imprisonment for public protection), for subsection (3) substitute—

“(3) In a case not falling within subsection (2), the court may impose a sentence of imprisonment for public protection if the condition in subsection (3A) or the condition in subsection (3B) is met.

(3A) The condition in this subsection is that, at the time when the offence was committed, the offender had been convicted in any part of the United Kingdom of an offence specified in Schedule 15A.

(3B) The condition in this subsection is that the notional minimum term is at least two years.

(3C) The notional minimum term is the part of the sentence that the court would specify under section 82A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of imprisonment for public protection but was required to disregard the matter mentioned in section 82A(3)(b) of that Act (crediting periods of remand).”

(2) After Schedule 15 to that Act, insert the Schedule set out in Schedule (Offences specified for the purposes of sections 225(3A) and 227(2A) of the Criminal Justice Act 2003) to this Act.’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 30

Sentences of detention for public protection

‘In section 226 of the Criminal Justice Act 2003 (c. 44) (detention for life or detention for public protection), for subsection (3) substitute—

“(3) In a case not falling within subsection (2), the court may impose a sentence of detention for public protection if the notional minimum term is at least two years.

(3A) The notional minimum term is the part of the sentence that the court would specify under section 82A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of detention for public protection but was required to disregard the matter mentioned in section 82A(3)(b) of that Act (crediting periods of remand).” ’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 31

Extended sentences for certain violent or sexual offences: persons 18 or over

‘(1) Section 227 of the Criminal Justice Act 2003 (c. 44) (extended sentence for certain violent or sexual offences: persons 18 or over) is amended as follows.

(2) In subsection (1)—

(a) in paragraph (a) the words “, other than a serious offence,” are omitted, and

(b) after paragraph (b) insert “, but

(c) the court is not required by section 225(2) to impose a sentence of imprisonment for life.”

(3) In subsection (2) —

(a) for “The court must” substitute “The court may”, and

(b) for the words from “that is to say” to the end substitute “if the condition in subsection (2A) or the condition in subsection (2B) is met.”

(4) After subsection (2) insert—

“(2A) The condition in this subsection is that, at the time the offence was committed, the offender had previously been convicted in any part of the United Kingdom of an offence specified in Schedule 15A.

(2B) The condition in this subsection is that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least 4 years.

(2C) An extended sentence of imprisonment is a sentence of imprisonment the term of which is equal to the aggregate of—

(a) the appropriate custodial term, and

(b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences.”

(5) In subsection (3) for “subsection (2)” substitute “subsections (2B) and (2C)”.

(6) After subsection (5) insert—

“(6) The Secretary of State may by order amend subsection (2B) so as to substitute a different period for the period for the time being specified in that subsection.” ’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 32

Extended sentences for certain violent or sexual offences: persons under 18

‘(1) Section 228 of the Criminal Justice Act 2003 (c. 44) (extended sentence for certain violent or sexual offences: persons under 18) is amended as follows.

(2) In subsection (1)(b)(ii) the words from “or by section 226(3)” to the end are omitted.

(3) In subsection (2) —

(a) for “The court must” substitute “The court may”, and

(b) for the words from “, that is to say” to the end substitute “if the condition in subsection (2A) is met.”

(4) After subsection (2) insert—

“(2A) The condition in this subsection is that, if the court were to impose an extended sentence of detention, the term that it would specify as the appropriate custodial term would be at least 4 years.

(2B) An extended sentence of detention is a sentence of detention the term of which is equal to the aggregate of—

(a) the appropriate custodial term, and

(b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences.”

(5) In subsection (3)—

(a) for “subsection (2)” substitute “subsections (2A) and (2B)”, and

(b) paragraph (a) is omitted.

(6) After subsection (6) insert—

“(7) The Secretary of State may by order amend subsection (2A) so as to substitute a different period for the period for the time being specified in that subsection.” ’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 33

The assessment of dangerousness

‘(1) Section 229 of the Criminal Justice Act 2003 (c. 44) (the assessment of dangerousness) is amended as follows.

(2) In subsection (2)—

(a) the words from the beginning to “18” are omitted,

(b) after paragraph (a) insert—

“(aa) may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted in any part of the United Kingdom,”, and

(c) in paragraph (b) for “the offence” substitute “any of the offences mentioned in paragraph (a) or (aa)”.

(3) Subsections (3) and (4) are omitted.

(4) Schedules 16 and 17 of that Act are omitted.’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 34

Further amendments relating to sentences for public protection

‘(1) In section 231 of the Criminal Justice Act 2003 (c. 44) (appeals where previous convictions set aside), for subsection (1) substitute—

“(1) This section applies where—

(a) a sentence has been imposed on any person under section 225(3) or 227(2),

(b) the condition in section 225(3A) or (as the case may be) 227(2A) was met but the condition in section 225(3B) or (as the case may be) 227(2B) was not, and

(c) any previous conviction of his without which the condition in section 225(3A) or (as the case may be) 227(2A) would not have been met has been subsequently set aside on appeal.”

(2) In section 232 (certificates for purposes of section 229)—

(a) in the heading for “section 229” substitute “sections 225 and 227”,

(b) in paragraph (a)—

(i) for “the commencement of this section” substitute “the commencement of Schedule 15A”, and

(ii) for “a relevant offence” substitute “an offence specified in that Schedule”, and

(c) for “section 229” substitute “sections 225(3A) and 227(2A)”.

(3) Section 234 of that Act (determination of day when offence committed) is omitted.’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 35

Release on licence of prisoners serving extended sentences

‘(1) Section 247 of the Criminal Justice Act 2003 (c. 44) (release on licence of prisoner serving extended sentence) is amended as follows.

(2) In subsection (2)—

(a) the word “and” at the end of paragraph (a) is omitted, and

(b) paragraph (b) is omitted.

(3) Subsections (3), (4), (5) and (6) are omitted.’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 45

Restriction on power to make a community order

‘(1) After section 150 of the Criminal Justice Act 2003 (c. 44) (community sentence not available where sentence fixed by law etc.) insert—

“150A Community order available only for offences punishable with imprisonment or for persistent offenders previously fined

(1) The power to make a community order is only exercisable in respect of an offence if—

(a) the offence is punishable with imprisonment; or

(b) in any other case, section 151(2) confers power to make such an order.”

(2) For the purposes of this section and section 151 an offence triable either way that was tried summarily is to be regarded as punishable with imprisonment only if it is so punishable by the sentencing court (and for this purpose section 148(1) is to be disregarded).”

(2) Section 151 of that Act (community order for persistent offender previously fined) is amended as follows.

(3) Before subsection (1) insert—

“(A1) Subsection (2) provides for the making of a community order by the court in respect of an offence committed by a person aged 16 or over (“the current offence”) in cases where—

(a) the current offence is punishable with imprisonment, but the court would not otherwise form the opinion required by section 148(1); or

(b) the current offence is not punishable with imprisonment.”

(4) In subsection (1)—

(a) at the beginning insert “Where the current offence is punishable with imprisonment,”.

(b) for paragraph (a) substitute—

“(a) the offender was aged 16 or over when he was convicted;”;

(c) in paragraph (b) for “he” substitute “the offender”.

(5) After subsection (1) insert—

“(1A) Where the current offence is not punishable with imprisonment, subsection (2) applies where—

(a) the offender was aged 16 or over when he was convicted; and

(b) on three or more previous occasions the offender has, on conviction by a court in the United Kingdom of any offence committed by him after attaining the age of 16, had passed on him a sentence consisting only of a fine.”

(6) In subsection (3)(a) after “(1)(b)” insert “or (1A)(b) (as the case may be)”.

(7) In subsections (4), (5) and (6), for “subsection (1)(b)” insert “subsections (1)(b) and (1A)(b)”.

(8) In section 166 of that Act (savings for powers to mitigate etc.), in subsection (1)(a), after “148” insert “or 151(2)”.’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 46

Bail for summary offences and certain other offences to be tried summarily

‘Schedule (Bail for summary offences and certain other offences to be tried summarily)—

(a) imposes a duty on a magistrates’ court considering whether to withhold or grant bail in relation to a person under 18 accused of an offence mentioned in Schedule 2 to the Magistrates’ Courts Act 1980 (c. 43) (offences for which the value involved is relevant to the mode of trial) to consider the value involved in the offence; and

(b) amends Schedule 1 to the Bail Act 1976 (persons entitled to bail: supplementary provisions).’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 47

Release of fine defaulters and contemnors under Criminal Justice Act 1991

‘(1) Section 45 of the Criminal Justice Act 1991 (c. 53) (fine defaulters and contemnors) is amended as follows.

(2) In subsection (2) after “(3)” insert “, (3A)”.

(3) In subsection (3)—

(a) for “the following subsections” substitute “the following subsection”, and

(b) in the substituted text, subsection (2) is omitted.

(4) After subsection (3) insert—

“(3A) In section 36 above—

(a) in subsection (1) for “on licence” there shall be substituted “unconditionally”, and

(b) subsection (2) shall be omitted.

(5) Subsection (4) is omitted.’.—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 48

Early release of certain long-term prisoners under Criminal Justice Act 1991

‘(1) Part 2 of the Criminal Justice Act 1991 (c. 53) (early release of prisoners: offences committed before 4th April 2005) is amended as follows.

(2) In section 33 (duty to release short-term and long-term prisoners), after subsection (1) insert—

“(1A) As soon as a long-term prisoner has served one-half of his sentence, it shall be the duty of the Secretary of State to release him on licence.

(1B) Subsection (1A) does not apply to a long-term prisoner if the offence or one of the offences in respect of which he is serving the sentence is specified in Schedule 15 to the Criminal Justice Act 2003 (specified violent offences and specified sexual offences).”

(3) In that section, in subsection (2) after “a long-term prisoner” insert “to whom subsection (1A) does not apply”.

(4) In section 35 (power to release long-term prisoners etc.) after subsection (1) insert—

“(1A) Subsection (1) does not apply to a long-term prisoner to whom section 33(1A) applies.”.

(5) In section 37 (duration and conditions of licences)—

(a) in subsection (1), for “(1B) and (2)” substitute “(1B), (2) and (8)”, and

(b) after subsection (7) insert—

“(8) This section does not apply in relation to a long-term prisoner to whom section 33(1A) applies (provision as to the duration and conditions of licences for such prisoners being made by section 37ZA).”

(6) After section 37 insert—

“37ZA Duration and conditions of licences under section 33(1A) etc.

(1) Where a long-term prisoner is released on licence under section 33(1A), the licence shall (subject to any revocation under section 254 of the 2003 Act) remain in force for the remainder of the sentence.

(2) Section 250(1), (4) and (8) of the 2003 Act apply in relation to a licence under section 33(1A) of this Act as they apply in relation to a licence under Chapter 6 of Part 12 of the 2003 Act in respect of a prisoner serving a sentence of imprisonment for a term of twelve months or more.

(3) A person subject to a licence under section 33(1A) must comply with such conditions as may for the time being be specified in the licence.

(4) The reference in section 254(1) of the 2003 Act to a person who has been released on licence under Chapter 6 of Part 12 of that Act includes a reference to a person released on licence under section 33(1A).

(5) In this section, “the 2003 Act” means the Criminal Justice Act 2003.”—[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 49

Recall of certain prisoners released under Criminal Justice Act 1991

‘(1) Before section 51 of the Criminal Justice Act 1991 (c. 53) insert—

“50A Prisoners recalled under section 254 of Criminal Justice Act 2003

(1) This section applies to a person who is—

(a) released on licence under any provision of this Part, and

(b) recalled to prison under section 254(1) of the 2003 Act (recall of prisoners while on licence).

(2) Nothing in the following provisions of this Part (which authorise or require the Secretary of State to release prisoners) applies in relation to the person—

(a) section 33;

(b) section 33A;

(c) section 34A;

(d) section 35;

(e) section 43(4).

(3) Sections 254(2) and (6) and 255A to 256A of the 2003 Act (which authorise release on licence etc) apply in relation to a person to whom this section applies.

(4) The provisions of Chapter 6 of Part 12 of the 2003 Act specified in subsection (5) apply in relation to—

(a) a licence under that Chapter granted to a person to whom this section applies, and

(b) a licence under section 36 of this Act granted to such a person.

(5) The provisions of the 2003 Act specified in this subsection are—

(a) section 249 (duration of licence), as modified by subsection (6) below;

(b) section 250(1), (4) and (8) (licence conditions), as modified by subsection (7) below;

(c) section 252 (duty to comply with licence conditions).

(6) Section 249 of the 2003 Act applies—

(a) as if the reference in subsection (1) to a fixed-term prisoner were a reference to a person to whom this section applies, and

(b) as if for subsection (3) there were substituted—

“(3) Subsection (1) has effect subject to section 51(2) to (2D) of the Criminal Justice Act 1991.”

(7) Section 250(4) of the 2003 Act applies as if the reference to a prisoner serving a sentence mentioned in that subsection were a reference to a person to whom this section applies.

(8) In relation to a person to whom this section applies, subsections (2) to (2D) of section 51 of this Act (treatment of consecutive and concurrent terms etc.) apply as if any reference in those subsections to this Part of this Act included the provisions of the 2003 Act mentioned in subsections (3) and (5).

(9) Except as provided by subsections (6)(b) and (8), nothing in this Part applies in relation to the duration and conditions of—

(a) a licence under Chapter 6 of Part 12 of the 2003 Act granted to a person to whom this section applies, or

(b) a licence under section 36 of this Act granted to such a person.

(10) In this section, “the 2003 Act” means the Criminal Justice Act 2003.”

(2) The savings made by paragraph 19 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No.8 and Transitional and Saving Provisions) Order 2005 (S.I. 2005/950) in respect of sections 249 and 250 of the 2003 Act do not apply in relation to a licence granted under Chapter 6 of Part 12 of that Act, or under section 36 of the Criminal Justice Act 1991 (c. 53), to a person to whom section 50A of the Criminal Justice Act 1991 (c. 53) applies.

(3) In subsections (2) to (4), “the 2003 Act” means the Criminal Justice Act 2003 (c. 44).’. —[Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 3

‘Electronic monitoring of persons released on bail subject to conditions

21 The Bail Act 1976 (c. 63) has effect subject to the following amendments.

22 In section 3 (general provisions) for subsection (6ZAA) substitute—

“(6ZAA) The requirements which may be imposed under subsection (6) include electronic monitoring requirements.

The imposition of electronic monitoring requirements is subject to section 3AA (in the case of a child or young person), section 3AB (in the case of other persons) and section 3AC (in all cases).

(6ZAB) In this section and sections 3AA to 3AC “electronic monitoring requirements” means requirements imposed for the purpose of securing the electronic monitoring of a person’s compliance with any other requirement imposed on him as a condition of bail.”

23 (1) Section 3AA (electronic monitoring of compliance with bail conditions) is amended as follows.

(2) In the heading to the section, for “Electronic monitoring of compliance with bail conditions” substitute “Conditions for the imposition of electronic monitoring requirements: children and young persons”.

(3) For subsection (1) substitute—

“(1) A court may not impose electronic monitoring requirements on a child or young person unless each of the following conditions is met.”

(4) For subsection (4) substitute—

“(4) The third condition is that the court is satisfied that the necessary provision for dealing with the person concerned can be made under arrangements for the electronic monitoring of persons released on bail that are currently available in each local justice area which is a relevant area.”’

(5) In subsection (5), for “such a requirement” substitute “electronic monitoring requirements”.

(6) Subsections (6) to (10) and (12) (which are superseded by section 3AC) are omitted.

24 After section 3AA insert—

“3AB Conditions for the imposition of electronic monitoring requirements: other persons

(1) A court may not impose electronic monitoring requirements on a person who has attained the age of seventeen unless each of the following conditions is met.

(2) The first condition is that the court is satisfied that without the electronic monitoring requirements the person would not be granted bail.

(3) The second condition is that the court is satisfied that the necessary provision for dealing with the person concerned can be made under arrangements for the electronic monitoring of persons released on bail that are currently available in each local justice area which is a relevant area.

(4) If the person is aged seventeen, the third condition is that a youth offending team has informed the court that in its opinion the imposition of electronic monitoring requirements will be suitable in his case.

3AC Electronic monitoring: general provisions

(1) Where a court imposes electronic monitoring requirements as a condition of bail, the requirements must include provision for making a person responsible for the monitoring.

(2) A person may not be made responsible for the electronic monitoring of a person on bail unless he is of a description specified in an order made by the Secretary of State.

(3) The Secretary of State may make rules for regulating—

(a) the electronic monitoring of persons on bail;

(b) without prejudice to the generality of paragraph (a), the functions of persons made responsible for such monitoring.

(4) The rules may make different provision for different cases.

(5) Any power of the Secretary of State to make an order or rules under this section is exercisable by statutory instrument.

(6) A statutory instrument containing rules under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) For the purposes of section 3AA or 3AB a local justice area is a relevant area in relation to a proposed electronic monitoring requirement if the court considers that it will not be practicable to secure the electronic monitoring in question unless electronic monitoring arrangements are available in that area.

(8) Nothing in sections 3, 3AA or 3AB is to be taken to require the Secretary of State to ensure that arrangements are made for the electronic monitoring of persons released on bail.” ’.— [Mr. Hanson.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 5

‘Offences specified for the purposes of sections 225(3A) and 227(2A) of the Criminal Justice Act 2003

Offences specified for the purposes of sections 225(3A) and 227(2A)

Part 1

Offences under the law of England and Wales

1 An attempt to commit murder, a conspiracy to murder or an incitement to murder.

2 Manslaughter.

3 An offence under section 4 of the Offences against the Person Act 1861 (c. 100) (soliciting murder).

4 An offence under section 18 of that Act (wounding with intent to cause grievous bodily harm).

5 An offence under section 1 of the Sexual Offences Act 1956 (c. 69) (rape) or an attempt to commit such an offence.

6 An offence under section 5 of that Act (intercourse with a girl under 13).

7 An offence under section 16 of the Firearms Act 1968 (c. 27) (possession of firearm with intent to endanger life).

8 An offence under section 17(1) of that Act (use of a firearm to resist arrest).

9 An offence under section 18 of that Act (carrying a firearm with criminal intent).

10 An offence of robbery under section 8 of the Theft Act 1968 (c. 60) where, at some time during the commission of the offence, the offender had in his possession a firearm or an imitation firearm within the meaning of the Firearms Act 1968 (c. 27).

11 An offence under section 1 of the Sexual Offences Act 2003 (c. 42) (rape) or an attempt to commit such an offence.

12 An offence under section 2 of that Act (assault by penetration) or an attempt to commit such an offence.

13 An offence under section 4 of that Act (causing a person to engage in sexual activity without consent), or an attempt to commit such an offence, if the offender was liable on conviction on indictment to imprisonment for life.

14 An offence under section 5 of that Act (rape of a child under 13) or an attempt to commit such an offence.

15 An offence under section 6 of that Act (assault of a child under 13 by penetration) or an attempt to commit such an offence.

16 An offence under section 8 of that Act (causing or inciting a child under 13 to engage in sexual activity), or an attempt to commit such an offence, if the offender was liable on conviction on indictment to imprisonment for life.

17 An offence under section 30 of that Act (sexual activity with a person with a mental disorder impeding choice), or an attempt to commit such an offence, if the offender was liable on conviction on indictment to imprisonment for life.

18 An offence under section 31 of that Act (causing or inciting a person with a mental disorder to engage in sexual activity), or an attempt to commit such an offence, if the offender was liable on conviction on indictment to imprisonment for life.

19 An offence under section 34 of that Act (inducement, threat or deception to procure sexual activity with a person with a mental disorder), or an attempt to commit such an offence, if the offender was liable on conviction on indictment to imprisonment for life.

20 An offence under section 35 of that Act (causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement etc.), or an attempt to commit such an offence, if the offender was liable on conviction on indictment to imprisonment for life.

21 An offence under section 47 of that Act (paying for sexual services of a child), or an attempt to commit such an offence, if the offender was liable on conviction on indictment to imprisonment for life.

22 An offence under section 62 of that Act (committing an offence with intent to commit a sexual offence), or an attempt to commit such an offence if the offender, was liable on conviction on indictment to imprisonment for life.

Part 2

Offences under the law of Scotland

23 Culpable homicide.

24 An attempt to commit murder, a conspiracy to murder or an incitement to murder.

25 Rape or an attempt to commit rape.

26 Assault where the assault—

(a) is aggravated because it caused severe injury or endangered the victim’s life, or

(b) was carried out with intent to rape or ravish the victim.

27 Sodomy, or an attempt to commit sodomy, where the person against whom the offence was committed did not consent.

28 Lewd, indecent or libidinous behaviour or practices.

29 Robbery, where, at some time during the commission of the offence, the offender had in his possession a firearm or an imitation firearm within the meaning of the Firearms Act 1968 (c. 27).

30 An offence under section 16 of the Firearms Act 1968 (c. 27) (possession of firearm with intent to endanger life).

31 An offence under section 17(1) of that Act (use of a firearm to resist arrest).

32 An offence under section 18 of that Act (carrying a firearm with criminal intent).

33 An offence under section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) (unlawful intercourse with a girl under 13).

Part 3

Offences under the law of Northern Ireland

34 An attempt to commit murder, a conspiracy to murder or an incitement to murder.

35 Manslaughter.

36 Rape or an attempt to commit rape.

37 An offence under section 4 of the Offences against the Person Act 1861 (c. 100) (soliciting murder).

38 An offence under section 18 of that Act (wounding with intent to cause grievous bodily harm).

39 An offence under section 4 of the Criminal Law Amendment Act 1885 (c. 69) (intercourse with a girl under 14).