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Commons Chamber

Volume 475: debated on Tuesday 6 May 2008

House of Commons

Tuesday 6 May 2008

The House met at half-past Two o’clock


[Mr. Speaker in the Chair]

Private Business

Transport for London Bill [Lords]

Read the Third time, and passed.

Oral Answers to Questions


The Secretary of State was asked—


1. How many repeat abortions there were in (a) Kettering, (b) Northamptonshire and (c) England in the last three years; and if he will make a statement. (203357)

The number of repeat abortions in Kettering and Northamptonshire combined in the past three years was as follows: 508 in 2004; 546 in 2005; and 599 in 2006. The number of repeat abortions in England in the past three years was as follows: 56,645 in 2004; 58,068 in 2005; and 59,687 in 2006.

Are not those figures truly appalling? Given that a third of all abortions are repeat abortions, what steps will the Government take to bring down those horrendous figures?

We are working very hard to ensure that women have access to abortion services as soon as possible, because evidence shows that the risk of complications increases the later in the gestation. We have made investment to improve early access, and primary care trust performance in this area has been measured as part of the Healthcare Commission’s annual health check. The latest data for 2006 show that progress is being made to increase early access; some 65 per cent. of national health service-funded abortions took place at under 10 weeks.

Unfortunately, a good proportion of the numbers that the Minister has just given to the Chamber relate to teenage pregnancies—I believe that 19 year olds are the age group that has the highest number of abortions in the country. Could she tell us what she has done in the wake of last summer’s Government-funded advisory report entitled “Sex, Drugs, Alcohol and Young People”, which concluded that British teenagers were in the grip of a sexual health crisis fuelled by a “celebrity culture” that condoned alcohol abuse, drug addiction and promiscuity? Can she say what her Department is doing to tackle those three issues referred to in the report’s recommendations?

My hon. Friend raises a very serious issue in relation to teenage pregnancy, and, all across government, Departments must take responsibility for dealing with it. Of course, sex education and contraception are paramount, so that we do not have teenage pregnancies and their consequences, which affect not only the girl, but the family and all concerned for the rest of their lives.

I am sure the Minister would agree that the number of repeat abortions is extremely disappointing, bearing in mind the likely impact on the health of the ladies involved. She will also be aware—perhaps she will agree with me—that for some people the number of repeat abortions is a good reason to tighten up on abortion laws and deny women the right to choose. Does she agree with me that, while it is regrettable that there are so many repeat abortions, that should still be permissible?

Again, the hon. Lady raises very serious issues, which this House will be considering shortly and in respect of which it is always this House’s decision to make. We need to re-examine the role of contraception and, in particular, that of long-acting reversible contraception, which I know many primary care trusts are pushing—it is for all PCTs to examine that option. National Institute for Health and Clinical Excellence guidelines on long-acting reversible contraception show that if 7 per cent. of women switched from the contraceptive pill to long-acting methods, thus doubling the proportion of usage to 15 per cent., the NHS could save £100 million by reducing the number of unplanned pregnancies.

That might be all right for mature women, but does not the Minister share my concern that the giving out and the encouraging of the giving out of the morning-after pill to teenagers is an incentive, almost, to promiscuity?

I would have to disagree with the hon. Gentleman. This is such a complex and serious issue, and it is for parents, those in education and all Departments to address it. It is in all our hands to try to prevent teenage pregnancies and to provide help. As I mentioned, the consequences, not only for the young woman, but for her family and for the young father, must be taken into account. Fathers and young men should be taking much more responsibility than they do at present, but that can come about only with good, positive education.

Premature Babies

In 2005, there were 435 premature births in England and Wales with a gestational age below 24 weeks; some 383—or about 88 per cent.—of those babies died before they reached their first birthday. No further information is currently available.

I thank my hon. Friend for that reply. She will be aware of the debate taking place on viability. Does she agree that, when considering this issue, population-based data, such as EPICure 2, are the most reliable available?

The House will be fully aware that we will shortly discuss those serious issues. The British Association of Perinatal Medicine, the British Medical Association, the Royal College of Nursing and the Royal College of Obstetricians and Gynaecologists issued a joint statement in April stating that there is no evidence of a significant improvement in the survival of pre-term infants below 24 weeks gestation in the UK in the past 18 years.

Although there are studies that claim to show improvements in individual hospitals, does the Minister agree that the reason the organisations that she has just cited are of the view that there has been no reduction in the threshold of viability below 24 weeks is that the best research, which looks at every birth rather than a selected sample—more findings have recently emerged—has failed to show any reduction since 1995? That is a good argument for keeping the time limit as it is.

I am sure that the Minister is aware that the EPICure 2 study averaged out every birth in the UK, wherever they took place and whether they were in a hospital with a neonatal unit or not. Does she agree that if a woman goes into premature labour in a hospital with a good neonatal unit, to which the baby is immediately transferred, the outcome for that baby is likely to be much improved?

The hon. Lady is consistent in her arguments: I am equally as consistent in saying that the evidence shows the contrary.

New Deal for Carers

3. What progress has been made in developing the new deal for carers; and if he will make a statement. (203359)

6. What progress has been made in developing the new deal for carers; and if he will make a statement. (203362)

7. What progress has been made in developing the new deal for carers; and if he will make a statement. (203363)

We have already given councils in England an extra £25 million to allow them to provide emergency cover for carers. We have committed to a further £25 million a year for the next three years. We are progressing work on the information helpline, which will give carers access to reliable information and enable them to access services and support for themselves and the person they care for. Finally, work on the revised national carers strategy is progressing well and we will publish the new 10-year strategy shortly.

I thank my hon. Friend for that reply. The fact that so many Labour Members have asked similar questions shows the high level of concern about this subject. What are my hon. Friend and his Department doing to help carers who are trying to balance work with their caring responsibilities?

My hon. Friend is right to raise this issue. We are seeing many changes in our society, with an increasing number of people struggling to bring up children while also caring for an elderly or disabled relative. An increased number of people have to balance their work responsibilities with child care and caring for an adult. That is why we have introduced, for the first time, the right to request flexible working for those who have caring responsibilities and we want to raise awareness of that right. Many employers acknowledge the importance of providing the necessary flexibility for, and supporting, employees who have difficulties with, for example, an ageing relative. One of the issues that the new carers strategy will address is the balance between working responsibilities and caring for an older relative.

My hon. Friend will be aware that many people do not recognise themselves as carers, even though they are looking after an adult child or an elderly parent, because that is just “what you do” when the need arises. Therefore, many people will not be aware of the facilities now available to support carers or of the new rights and support that will be available in the future. How will he ensure that the message about the good news—including that yet to come—will be put across to the people who need it most?

My hon. Friend is right. In an ageing society, in which people are living longer, and in a health and social care system in which an increasing number of people want to stay in their own homes rather than go into institutionalised care, more responsibilities will be placed on family members. An increasing number of people, who previously have had no experience of the health and social care system, suddenly find themselves having contact with that system because of an ageing parent. One of the challenges is to raise the status, value and recognition of carers in our society. We should support families who want to take responsibility for looking after an elderly relative or a disabled son or daughter, but we must ensure that people are fully aware of the range of available support.

May I welcome the consultation’s emphasis on young carers and the role that they play? The young carers whom I met recently say that they often feel isolated and weighed down with responsibility. They miss school and can miss out on a social life. What specific help will be targeted on that group?

My hon. Friend is absolutely right. We do not want any children to have their childhood stolen as a result of fulfilling inappropriate caring responsibilities. It is not for politicians to stop children wanting to love a parent who may be dependent because of illness. None of us should want to stop that, nor will we ever be able to do it, but we must ensure that no child is expected to fulfil inappropriate caring responsibilities. That is why for the first time we have made it clear to adult services that, when they assess the needs of an adult with an illness or a social care need, they must make sure that they are not leaving a child in that position. It is also why the forthcoming strategy must look into expanding the number of support groups for young carers. One thing that children and young people say is that it is much easier for them to talk to other young people in the same situation as themselves than it can be to talk to other teenagers, who find it alien.

Does the Minister agree that many adult services departments would like to extend the support that they offer to carers but are constrained by resources? Does he recognise that the recent local government settlement has made it very difficult for some local authorities to maintain even the level of support that they currently give?

If one looks at the local government settlement, one sees that there are specific grants to meet social needs and that £500 million has been set aside for the social care reform grant. In 1999, this Government introduced to local authorities the first ever annual carers grant: no such grant existed before, and it is clear that an unprecedented amount of money is going into supporting carers. However, we accept that there is a lot more to do, and that is why we will announce in the next few weeks a new 10-year strategy to enhance the support that we give to carers. It is also why we are going to hold an extensive public consultation on the future of the care and support system. It will look at the consequences of an ageing society and changing demographics, and seek to redefine a new, fair settlement for the funding responsibilities of the state, the family and the individual.

May I ask about another specific group—elderly carers? In my constituency, many people of considerable age spend a great deal of time looking after equally elderly relatives and friends. What plans do the Government have to support that group? The financial settlement to which my right hon. Friend the Member for North-West Hampshire (Sir George Young) referred means that the respite care and other support that they desperately need is not coming through. In future years, there should equal funding increases for both health and social care. That would be an example of joined-up government.

I feel another Opposition spending commitment coming on—I hope that the shadow Chancellor has been consulted. However, the hon. Gentleman makes the serious point that, in an ageing society, more people will end up caring for a husband or wife who will often suffer from dementia. That is why the national dementia strategy to be published later this year will be so important. The consultation with carers will inform the development of that national strategy, and as part of that we have spoken to thousands of carers up and down the country. They have said that their priorities are income and access to short respite breaks, but it is not just the amount of respite that is important. Quality also matters because carers will not use the respite care available to them if they do not feel confident about it. Moreover, carers have told us time and again that they need better information and advice to help them make the incredibly difficult decisions involved in getting the care and support that they need. The 10-year strategy will address all those issues. We will not be able to change everything overnight—no hon. Member would expect that—but we will be looking to make significant progress over the next three years.

Given that the Minister today announced that the updated strategy will be with us within weeks, and that he has also announced emergency respite care provisions, and given that he originally announced the new deal for carers more than two and a half years ago—and re-announced it five times—where is the £2.8 million for the carers information service that was promised? Where is the £4.7 million expert carers programme that we were promised? Those matters really do concern my constituents in Eddisbury, and indeed those in the neighbouring constituency of Crewe and Nantwich. It is important to recognise that if the Minister cannot give us an answer to those questions, perhaps the Prime Minister is out of touch, as the Minister said on an earlier occasion.

Desperate, Mr. Speaker. There was no annual carers grant, nor even any distinct recognition of the fact that carers had their own needs, under the previous Government. [Interruption.] I will answer the hon. Gentleman directly: in the summer, the first expert carers programme training courses will begin. Later this year, the website for carers, offering them the kind of information that they tell us they need, will be up and running. Early next year, we will launch the carers telephone helpline, so that carers can ring one number and get high-quality information and advice. That builds on the unprecedented levels of resources that have gone to local authorities, year on year, to expand services and support to carers.

Carers in my constituency say that what they need most is better quality respite care; that would give them more frequent chances to get a break from caring, which many of them really need if they are to avoid stress and health problems. What specific plans are there to improve the quality of respite care?

My hon. Friend has done a tremendous job of championing the needs of carers since she became a Member of the House, and she continues to do so. She makes an important point. People who care for an ageing parent, a husband or a wife who has—[Interruption.] That is how important Opposition Members think the subject is. People who care for an ageing parent, a husband or a wife who has dementia, for example, have to feel confident that if they allow that person to go somewhere for a week or more, the quality of care and their safety will be guaranteed. We must therefore not only expand the range of respite care places available, but do more to improve quality, through regulation and inspection, and through the decisions that local authorities make about where they purchase respite care from. At the heart of that will be a greater use of individual or personal budgets, which will mean that we can give people much greater control over where they get the respite care from.

Finally, we should not forget the unprecedented level of investment that the Government are making over the next three years specifically to expand respite care for parents of disabled children; that is entirely separate to the extra commitment that we will make for those caring for adult relatives.

Hospital Beds

I am very grateful for the Minister’s response. To reduce the rate of the superbug clostridium difficile, there must be a hospital bed occupancy rate of 85 per cent. or less. Kettering general hospital had the worst C. difficile rate in the whole country. It has a hospital bed occupancy rate of 92 per cent. Would not the Minister agree that the way to solve the problem is to build a new hospital in my constituency in order to reduce the bed occupancy ratio in Kettering?

I am afraid that I have to correct the hon. Gentleman’s figures. My information from the local trust is that the bed occupancy rate in Kettering general hospital in the latest year for which figures are available was 81 per cent., whereas at Northampton general hospital it was 85.6 per cent. It is interesting that, according to the figures, although the occupancy rate in Northampton was higher, it has been even more successful than Kettering in reducing C. diff rates. In Northampton’s case, they went down by 61.3 per cent. between 2006 and 2007; in Kettering, they went down by 64.1 per cent. in the same period—a great achievement by his local hospital.

Without getting drawn into the relative merits of various claims for new hospital building, will the Minister look carefully at the arguments in favour of reducing occupancy rates? As I understand it, in France there is a presumption that a 70 per cent. occupancy rate is the tipping point beyond which the gains begin to be overtaken by hospital infections, re-admissions and staff turnover. May we have a similar independent study in the UK that would identify the tipping point at which we move from efficiency to absurdity?

We had such a report a few years ago, which stated that the optimal bed occupancy rate was 82 to 85 per cent. The latest figures available suggest that the rate has come down to below 85 per cent. on average, which we welcome. It is coming down slightly all the time, although we do not think it is our job to dictate to local hospitals how to run their affairs. If one examines the latest bed occupancy rates and superbug rates, there is no correlation between them. Other issues are much more important in the way in which hospitals manage disease outbreaks.

The Minister will be aware that Professor Barry Cookson of the Health Protection Agency has advocated an occupancy rate of about 85 per cent., yet about 50 per cent. of hospitals are running at above that level. He also highlighted the potential risk to patient safety if that level is exceeded. Despite a promise in the NHS plan that there would be 7,000 extra beds, there has been a reduction in beds of about 13 per cent. since 1997. With so many hospitals often in a state of crisis because they are completely full, is it not time for an urgent review of the number of beds in the system and the way in which those beds are used, to ensure that we do not put patient safety at risk?

Again, I must correct the hon. Gentleman. In the past there was a stronger correlation between bed occupancy rates and infection rates, but as infection rates and bed occupancy rates have come down, we have looked into the matter in great detail in the past two or three years and we cannot find the correlation that the hon. Gentleman points to. There are hospitals with a higher bed occupancy rate than 85 per cent. that have very good records on infection and other matters. What is much more important is how well the hospital is managed and what its overall anti-disease measures are, rather than the bed occupancy rates. Although we have said and I repeat that we think the optimal level is between 82 and 85 per cent., we do not think it is sensible to dictate to well performing hospitals that may have bed occupancy rates over 85 per cent. that they should bring those rates down. That is for them to manage, and it is for them to be answerable to their local communities.

A bid has been made by Stockport primary care trust for a community hospital in Shaw Heath, in one of the most deprived wards in my area. It is an exciting and innovative project. Does my hon. Friend agree that a community hospital on the site would enable better use of NHS beds at Stepping Hill, and at the same time would tackle health inequalities in the area?

I certainly would, and I was going on to say in response to the hon. Member for North Norfolk (Norman Lamb), who speaks for the Liberal Democrats, that one of the reasons for the decline in beds in acute hospitals is that more and more people are staying in community hospitals and then being cared for in their own homes, which I think is welcomed by Members in all parts of the House. My hon. Friend will be pleased to know that I am informed that the board of the North West strategic health authority is meeting tomorrow to make a final decision on the community hospital for which she has been a long and doughty campaigner. We think the scheme is a visionary and innovative one that meets national and local health objectives and will enhance community health services. I congratulate my hon. Friend on her successful campaign.

The Minister may well argue that other measures are important, but there is no doubt that an internal policy review from the Department of Health showed that reducing bed occupancy to a maximum of 85 per cent. could save about 1,000 cases of methicillin-resistant Staphylococcus aureus—MRSA—a year. The aim should undoubtedly be nearer 82 per cent. Does the Minister agree that while bed occupancy rates remain unacceptably high, consequences on the scale that we saw at Maidstone and Tunbridge Wells remain a real threat?

What was wrong in Maidstone and Tunbridge Wells was a totally incompetent management. As I have pointed out, there has been no correlation in the past two or three years between bed occupancy rates and infection rates. I would have expected that, rather than making the same old points time and again, the hon. Lady might have welcomed the fact that the latest national figures show a 30 per cent. reduction in MRSA rates and a 23 per cent. reduction in C. difficile rates in the past year. She should congratulate the Government on our action, rather than constantly criticise us.

Care Standards

In recognition of the challenges presented by an ageing society, the Government are committed to fundamental reform of the adult social care and support system. We intend to hold a national consultation, which will lead to the publication of a Green Paper, to identify options for a new system that will be fair to all and sustainable for the long term.

I understand that the first consultation meeting on the Green Paper will take place next week. Will the Secretary of State ensure that one of the key considerations will be the interface between the national health service and social services, particularly when assessments are required for conditions such as incontinence or for the care package? Will the Secretary of State make a point of asking Members of the House for their experience around that interface? Perhaps he could publish a list of Labour and Opposition Members interested enough to respond to that consultation.

My hon. Friend is right; the interface will be a crucial element of the exercise. We need to knit adult social care, local authorities and the NHS much more closely together. That is happening in many parts of the world, and my hon. Friend should take credit for what he has done in Nottingham. In the meantime, £510 million is available for the adult social care grant and it is specifically to encourage much greater integration in the next three years. The review is more long term, but we have immediate action and resources to back it up.

One of the issues in respect of standards of care relates to people with dementia. Is the Secretary of State aware of the butterfly scheme, which is being trialled in Leeds? It was the brainchild of my constituent Mrs. Barbara Hodkinson, and it has been extremely successful in allowing patients to be identified without stigmatisation and allowing their care needs to be addressed. Does he agree that we should roll the scheme out nationally? Will he or the Minister with responsibility for care come to Leeds to speak to Mrs. Hodkinson and Sister Christine Tall, who implemented the scheme, to see whether it could improve standards for dementia sufferers nationally?

I am aware of the important butterfly scheme in Leeds, and I would be pleased to nip over from Hull to Leeds to see it. It is an important part of how we can make progress, deal with the issue and use best practice to develop our strategy on that debilitating disease.

There tends to be a lack of uniformity in the care provided by child and adolescent mental health services and in the standardisation of and access to services across the UK. Is it not time that we had a more standard service so that young people who are at the difficult transition into adulthood and face mental health problems, and their parents, could access a service that catered for people aged up to 25, rather than 16, 17 or 18?

My hon. Friend is absolutely right; a review on that specific issue is under way at the moment. The Green Paper and the public debate cannot be only about adult social care for older people, which was the subject of the 2006 Wanless review; they have to embrace the entire adult population. That is not least because, as I know from my own constituency casebook, many people are alive today who would previously probably not have survived childhood. Such people need far greater care. That must be integrated into the social care system and it is a very important part of the review.

In seconding the proposition made by the hon. Member for Bridgend (Mrs. Moon), may I put it to the Secretary of State that the requirement for joined-up and continuing care is marked among those on the autistic spectrum? The right hon. Gentleman will know that I and others are looking at provision for children and young people from birth to age 19. However, there is also a significant issue for the Government in respect of assisting people well beyond age 19—sometimes throughout life—as they negotiate the difficulties that they encounter. Such people have the opportunity, if helped, to contribute to the country through employment. However, they do need some help.

The hon. Gentleman has taken a huge interest in these issues and is doing some very good work on speech and language therapy. I completely agree with him. This whole area would probably not have been very high up the political agenda as recently as 10 years ago, but it is now much more of a crucial issue. That is why announcements on it will be made very shortly, not least for the reason that he touched on—that there is such a huge waste of talent out there because we consign these young people to being the passive recipients of benefits for the rest of their lives instead of using the opportunity to make them active citizens in our society.

Children’s Health

Improving outcomes for children is a priority across the range of responsibilities of the Government. The recently published children’s plan set out how the work is focused towards achieving a long-term vision of England as the best place in the world for children to grow up.

Ten years ago there were no children’s centres in Brent; now we have 12. That has vastly improved the well-being of children and young mums. By 2010, there will be a children’s centre in every constituency. In the meantime, however, does my hon. Friend agree that baby and toddler centres like the one that my constituent, Sarah Green, is fighting for should be kept open by primary care trusts and local authorities?

My hon. Friend is right. The importance of these centres in the early years is paramount, not only for children but for parents. We are very proud of our Government’s initiative in introducing them and increasing support in the community. This morning, I saw on Beavers Lane estate in Hounslow a hub where all the integrated services are working closely together. That makes a huge difference to the future lives of children, who will be our young people, and their parents. All health professionals are to be congratulated. I urge people in my hon. Friend’s local area to take note of this.

Does the hon. Lady agree that children’s health starts with a happy and successful birth, and that it therefore makes no sense at all for the Government to press primary care trusts all over country, including those in West Sussex, to close and diminish the number of maternity services, particularly at Princess Royal hospital in Haywards Heath—an area of exceptional growth with an enormous new population expected? It makes no sense whatever to downgrade valued and cherished maternity services at an excellent hospital.

The hon. Gentleman has raised this issue with me before in Adjournment debates in Westminster Hall, and he has campaigned strongly for his area. However, what is happening is not to downgrade but to improve. The Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists would agree that we want children to have the best possible start in life, and the first few minutes are critical, for obvious reasons. As we know, this is happening with the consent of clinicians and the local community. I am sure that the hon. Gentleman will continue to engage with his constituents on this important issue.

Does the Minister agree that under-age binge drinking is a growing and alarming health problem for children? Police, ambulance workers and accident and emergency workers would certainly agree with that. Why has so little progress been made in the past eight years in cutting the amount of alcohol that school-age children drink, and what confidence can we have in the Government having more success in that area in the future?

The evidence shows that we are making improvements as regards this very difficult issue, which the hon. Lady rightly raises. It is a serious issue for all of us in this House to address because, as was said in questions and answers earlier, the consequences are so severe. In particular, our hard-pressed health professionals do not wish to have to spend their professional time and resources dealing with it. All of us, across Government and across this House, should take it very seriously.

Patient Data

Data held electronically can be secured using encryption and other measures not applicable to old paper-based systems. The health service’s national programme for IT has particularly high levels of security because of the sensitivity of data held, and individual health organisations are responsible for complying with data protection rules.

Three hundred thousand patient prescription forms have been lost, junior doctor job applications have been found on the internet, a laptop with thousands of patients’ details has been stolen, and child benefit information affecting millions has gone missing. Does the Minister accept that patients do not have faith in the Government’s plans to put their personal details on an NHS database?

No. As I have already explained to the hon. Gentleman, the level of security on the national NHS IT system is second to none in the world. In fact, we get regular complaints from people saying that it is too secure, because it does not enable them to exchange the information that they need to make sure that patients are cared for properly. I also have to tell him that child benefit is not the responsibility of our Department. None the less, we do take data losses extremely seriously.

Since the problems experienced by Her Majesty’s Revenue and Customs, the chief executive of the national health service has reminded the managers of every trust in the country of their legal responsibility to comply with data protection rules. They are now obliged to publish quarterly reports on any serious data losses and to say what action they have taken to ensure that such losses do not happen again. The vast majority of the data losses that have happened, including the ones the hon. Gentleman referred to in his question, would not have happened under the level of security used by the national NHS system for IT.

Does my hon. Friend agree that the major problem we have with the NHS database is not the database itself, which is secure—probably more secure than the local bank—but the people who misuse it by downloading information and then carelessly leaving it in the backs of cars? Millions of our constituents have had their records stored electronically for decades, and it is about time we moved away from this negative debate about it, took the issue out of party politics, and recognised the work that it can do to help people, particularly those with chronic illnesses.

My right hon. Friend, who has done a number of reports on this issue and knows a great deal about it, is absolutely right. I regret that all too often in the debates we have about the subject, we lose sight of the enormous benefits of the good exchange of data on patient care. Patients get quicker, more reliable and much safer care, while the NHS saves a lot of money through not using the old, expensive and cumbersome paper-based systems.

My right hon. Friend is right. In an organisation that employs 1.3 million people—the biggest organisation in the world, I think, after the Indian railways and the Chinese red army—it is impossible to conceive of a situation in which some human failure could not lead to data loss. That is why it is important that every NHS employee is aware of their responsibilities. It is also important that those in hospital management are aware of their responsibilities, and make those clear to staff.

Psychological Services

10. What the average waiting time was for access to primary care psychological services in the most recent period for which figures are available. (203368)

Information about average waiting times for access to primary care psychological services is not collected centrally, but we are investing significantly in improving access to psychological therapy over the next three years, with funding rising to £173 million in 2010-11, to train 3,600 therapists and to treat up to 900,000 people.

In June last year, when I raised this question with the previous Secretary of State, she was good enough to agree that waiting times were far too long. For many of my constituents, the waiting time for such vital services is still 16 months or longer. Does the Minister agree that such a wait can allow conditions that would otherwise have been treated to get worse, and will he take urgent steps to deal with the issue?

The history of this country’s approach to access to mental health services in primary care is not a happy one, but I am proud of the fact that we are the first Government since the national health service was created to say that people in every community should have universal access to psychological therapy according to clinical need. The health service must concern itself as much with mental well-being as with physical well-being. Over the next three years, we will be investing an unprecedented amount in access to psychological services, which is every bit as important as the extension of GP hours and conventional primary care. We can be proud of the fact that we are the first Government since the creation of the health service to ensure that people have access to universal psychological services, recognising that mental well-being is every bit as important as people’s physical health.

Community Hospitals

11. What assessment he has made of the contribution of community hospitals in (a) England and (b) Leicestershire. Community hospitals can provide care closer to where people live. The local health service makes decisions about how services are organised, but the Government are providing £750 million over five years for new community hospitals and new community services throughout the country. (203369)

The Minister states that the Government want people to be treated closer to home, which I applaud. However, in Leicestershire as elsewhere, the primary care trust is considering closing down or reducing services in community hospitals, especially in Lutterworth in my constituency, and possibly in Ashby. Will the Minister explain to me and to my constituents in the Lutterworth area—and, indeed, to Leicestershire PCT—how treatment closer to home is deemed desirable, yet services in Lutterworth are being reduced, which will mean people having to travel to Leicester or Rugby for treatment?

It is not the job of Ministers in Whitehall to second-guess the decisions of local primary care trusts, but I am sure that the hon. Gentleman’s PCT has listened carefully to his comments. However, my information from the PCT is that there are currently no proposals such as he describes for Lutterworth, and it has decided not to go ahead with any consultation about Lutterworth in the first round of consultation on community hospitals in Leicestershire. Contrary to his suggestion, the PCT is trying to do exactly what I described earlier: moving more services out of the big acute hospitals in Leicester and elsewhere into community hospitals, and from community hospitals into people’s homes, because that is what people want. It may be decided locally that some services are best provided by one community hospital, or by district nurses or others who go into people’s homes. That is a matter for the local PCT. If the hon. Gentleman does not like its proposals, he should speak to its representatives. If the local elected councillors do not like them, they have a democratic forum in the overview and scrutiny committee to refer them to the national independent review panel, which examines any objections to the sort of reorganisation that he describes.

GP Surgeries

The Government are working to make it easier for people to see their GP in the evening and at weekends. We are also investing £250 million in new GP-led health centres in every health care area of England, open 12 hours a day, seven days a week, and in extra GP surgeries in poorly served areas.

My constituency has benefited from a great deal of investment, especially at Priory Road health centre in Parks. Does my hon. Friend share the concern of my constituents at the Queen’s Road medical centre, who are unsure whether they will have a GP surgery in future, as it is considering moving to north Swindon? What hope can he give my constituents that they can see a doctor without having to make a complicated bus journey?

I understand that the problem to which my hon. Friend refers concerns two branches of a practice, which it does not believe are adequate to provide the sort of care that their patients expect. However, it is the duty of all primary care trusts to ensure that GPs and primary care services are adequate for an area and that there are no big gaps, especially in areas such as those that my hon. Friend mentioned, which I know quite well. I hope that when the local primary care trust considers the proposals, it will work closely with my hon. Friend, and also with my hon. Friend the Member for North Swindon (Mr. Wills), to ensure that all patients in the city of Swindon are well served by expanding GP services.

The Opposition believe that the most accessible health care services are those tailored to local needs and priorities, not those that are centrally imposed. In the debate on 23 April about GP services and access, the Secretary of State said that primary care trusts that did not want GP-led health centres would be able to use the resources to provide primary care services more appropriate to their local patients’ needs. Does the Minister stand by his boss’s statement that primary care trusts can say no to GP-led health centres?

No, my right hon. Friend did not say that. There is good flexibility in the proposals that we put to primary care trusts. Labour Members are interested in making it easier for people to see their GP. It is astonishing that the Conservative party’s policy now is to hand over policy to the doctors’ union, the BMA, and allow it to decide—[Interruption.] Yes, I am sorry, but the Leader of the Opposition said in a speech 10 days ago that the BMA should be able to decide when surgeries could open and where they were located. The Conservatives even launched a website so that doctors could sign their petition.

Topical Questions

The responsibilities of my Department embrace the whole range of NHS social care, mental health and public health service delivery, all of which are of equal importance.

May I ask my right hon. Friend why, in connection with the consultation on the framework for the registration of health and adult social care providers, which is due to end shortly, he has decided to exclude non-urgent patient transport services from the services that will come under the remit of the Care Quality Commission? Those services—including taking people who need dialysis to hospital, for example—are a seamless part of the health and social services that we provide, so it seems perverse that they should not be included. Would the Secretary of State consider, at this late stage, including those services within the remit of the proper standards of care regulation?

This matter is out to consultation, and the consultation finishes on 7 June. Our view is that it is in the interests of good regulation that we should split away the high-dependency patient transport service from the non-urgent, as my hon. Friend the Member for Stoke-on-Trent, North (Joan Walley) rightly says. There is an issue about the balance of regulation, and we thought that that was the best idea. The issue is out to consultation. My hon. Friend will obviously make her views known, as will others, and we will consider them at the end of the consultation period.

T3. I declare an interest as honorary vice-president of the Royal College of Midwives. What steps have the Government taken to ensure that there are sufficient places for student midwives and midwifery educators in England to meet the Department’s target of 4,000 more NHS midwives by 2012? It is a simple question; I hope that I can get a good, positive answer. (203421)

The hon. Gentleman is a hero of the Royal College of Midwives, let alone a patron. He raises an important point. We wish to recruit 4,000 new midwives. Some of them will return to practice, but a large group will require extra training places. We are working on that, and I believe that there might be an announcement around the time of the annual conference of the Royal College of Midwives.

T6. Will the Secretary of State tell us what impact health can have on reducing crime and on ensuring that youngsters get good qualifications and do not spend a lifetime on benefits? Does he agree that early intervention by the health service, particularly through the nurse-family partnership, sets young people on the way forward, and—to ensure the topicality of this question—may I also ask him whether he welcomes those initiatives being applied to Nottingham? (203424)

The nurse-family partnership is undergoing a £30 million expansion, which includes Nottingham. The most important point in what my hon. Friend said about the link between crime and health relates to mental health. I believe that the recruitment of 3,600 psychological therapists, based on the pilot in east London and Doncaster, will have a startling effect on the mental health problems that have previously consigned many youngsters to less fulfilling lives than those of those fortunate enough not to suffer from such problems.

Just weeks ago, the Secretary of State’s Department received a report from an expert group on clostridium difficile infection that said:

“We consider that, more than any other factor, it is the failure to implement the existing guidelines described in the 1994 report that has contributed to the recent rise.”

Can the Secretary of State explain why, 11 years into a Labour Government, existing guidelines from before 1997 have not been implemented?

No, of course I cannot cover the course of 11 years in this answer. What I would say is that there was a period at the end of the 1990s when, if the problem had been tackled, we could have seen the elimination of MRSA before it took root, as happened in many other European countries. However, there has been a 30 per cent. reduction in MRSA since this time last year and a 23 per cent. reduction in clostridium difficile. The important elements are hand washing, isolation with cohort nursing, and the responsible prescription of antibiotics. We are acting on all three.

The complacency of the Secretary of State’s answer explains exactly why there is a wreckage of the Labour party across the country following last Thursday’s election results. Perhaps he can explain why, 11 years into a Labour Government, the report says that half the hospitals in England have C. difficile infection rates 10 times those reported in other countries. People know that the experience of Labour government has been of a top-down, target-led, bureaucracy-obsessed culture that is preventing the NHS from delivering high-quality care, and which has led directly to an inability to focus on patient safety. Will the Secretary of State explain that?

The hon. Gentleman’s problem is that people have long memories. They remember waiting lists such that people waiting for fairly routine operations wrote to ask whether their place in the queue could be bequeathed in their will to their children or their nephews, because the queues sometimes lasted four or five years. They remember the lack of capital investment in hospitals and equipment, they remember that there were too few doctors and nurses, and they remember that the health service was on its knees when we came to power in 1997.

May I commend my right hon. Friend’s decision to move services into the local community? I want to draw his attention to a consultation that I held about my local primary care trust’s proposal to open a cottage hospital in Eltham, to which the response rate was more than 10 per cent. More than 1,400 people responded, virtually 100 per cent. of whom were in favour of having a cottage hospital in the middle of our community, bringing services into the heart of Eltham. I commend the Secretary of State’s approach, and I commend my PCT’s proposal to him.

I am happy to be commended on that proposal. I believe that the consultation taking place in London about what kind of health service people want is revealing that the majority of people see the sense in the review conducted by NHS London. They see cottage hospitals and polyclinics—I see, today, that the public in London have overwhelmingly said that polyclinics are a good thing—as a sign that we are going in the right direction.

T4. Will the Secretary of State tackle more vigorously the waste of medicines in the NHS, which is enormous and scandalous? Will he look specifically into the issue of repeat prescriptions going uncollected by patients in pharmacies? That problem needs ministerial intervention, and could be tackled by better liaison between prescribing doctors and pharmacists. The current situation is completely unacceptable and an enormous waste of public money, and it needs his attention urgently. (203422)

I will look into this issue personally. There is evidence that there is a great deal of waste involving medicines and prescription, but I would not say that it is as bad as in some other European Union countries: France is one example. Nevertheless, any waste needs to be addressed. We have a target, over this comprehensive spending review period, of making 3 per cent. year-on-year efficiency savings. One part of achieving that should be tackling the waste of medicines.

The hepatitis C action plan for England was published four years ago, but a report that has just been published by the all-party group on hepatology shows that there are still big gaps between the diagnosis and treatment of hepatitis C. Will my right hon. Friend look at the report and do what he can to improve, in particular, the treatment of carriers who have been diagnosed with hepatitis C?

I will, but it says here—in my brief—that the results of the audit are encouraging and show marked improvement since 2006. The results indicate that progress made in implementing the action plan has been sustained. Nevertheless, I accept my hon. Friend’s point, and we will look to see how much we can improve the situation.

T5. With abortion at near industrial levels—there were nearly 200,000 in England and Wales last year—does the Secretary of State accept that although the original Act, as amended by the Human Fertilisation and Embryology Act 1990, set out a range of medical reasons for abortion, it is increasingly, and in far too many cases, being used for social reasons? Does he agree that that has to stop? (203423)

I struggle to understand the definition of “industrial” in this context. This is a matter for all Members of Parliament to address individually. I personally, as an individual, believe that that legislation has stood the test of time, and I would not want to see any change to it.

Can my right hon. Friend tell us when he is likely to publish the outcome of the review of prescription charges that he announced in July last year?

We are likely to publish in the summer—a period that I accept can, in political terms, stretch from April to December. However, I expect publication to take place in what could be called the summer by most reasonable people’s definition.

T7. Having had the worst hospital-acquired infection rates in the whole country in 2006, Kettering general hospital has now halved its rates of infection for C. difficile and MRSA, and met all its major NHS targets this year. In congratulating all those who work at the hospital on this tremendous achievement, will the Secretary of State encourage the strategic health authority to look favourably on Kettering general hospital’s application for foundation trust status, which is due to be submitted shortly? (203425)

I think that the hon. Members for Kettering (Mr. Hollobone) and for Wellingborough (Mr. Bone) should go and have a cup of tea together and compare notes, because we are getting a different picture of what is happening in the health service in their area from each of them. The hon. Member for Kettering has raised an important point, and we should congratulate all the health service workers in his hospital on such a fantastic result. The issues are clear: they involve good hand-washing policy, good isolation facilities with cohort nursing, and the responsible prescription of antibiotics. There are a lot of other things that I could talk about, but those are the three most important messages, and they have obviously been hammered home in the hospital in the hon. Gentleman’s constituency.

Can the Secretary of State explain why existing GP practices are being excluded from the new GP posts being established in areas that are under-doctored? Is this another attempt to privatise the NHS?

After a battle to get to the Dispatch Box, may I say to the hon. Gentleman that existing practices are not being excluded? He is absolutely wrong on that point. I did have a representation from a social enterprise to say that it was being excluded. The first contract went to a social enterprise, and I have no doubt that the majority of the contracts will go to existing GP practices. Those practices are not being excluded. They are, however, being asked to go through a rigorous process, because if we are spending £250 million of taxpayers’ money in under-doctored areas—some of the poorest areas in the country—we want to ensure that patients and the public in those areas get the service to which they are entitled.

T8. Given that there were more than 4,000 stillbirths in England and Wales last year, why is there still no national stillbirth strategy? (203426)

The hon. Gentleman has raised a point that I have raised myself in response to questions that I have been asked while going around the country. We should be looking at the situation across the country, because I hear that some places deal with such issues brilliantly, while other places could learn from those centres of excellence. Whether we turn that into a national strategy, with all that that entails, or whether we simply seek to spread the best practice, the hon. Gentleman is right to raise this issue; indeed, I have raised it myself.

Audiologists have expressed concern about the potential hearing impairment brought about by young people wearing personal music centres plugged into their ears. Does the Secretary of State agree that there is a serious likelihood of hearing impairment affecting those young people at a much earlier stage of their lives, and that there should be an inquiry into what action can be taken to prevent the danger of hearing impairment being brought about by those items of social fashion?

The hon. Gentleman has an interest in this subject. I believe that he was the chair of the all-party group on noise—[Interruption]of which he has made quite a bit in this Chamber over the years. I do not think that this issue can be near the top of our agenda, but it does need to be looked at. I increasingly find that people, not just young people, have developed problems—sometimes mental health problems—because they live in an environment of constant noise. In the workplace, for example, noise levels can be huge. Some people think that playing a radio station featuring the inane chatter of a disc jockey all day is good for calming the nerves, whereas actually it does the opposite—[Interruption.] The hon. Gentleman has started me off—but yes, I do think that we should look into that issue.

Points Of Order

On a point of order, Mr. Speaker. Today’s Order Paper gives notice of a written statement entitled “New investment in Headley Court”. We warmly welcome the news, but we question why it was given to the weekend press in advance of the statement. Defence Ministers are becoming serial offenders when it comes to manipulating politically sensitive material that should first appear before this House. The media had advance knowledge of the answers to the question asked by my hon. Friend the Member for Woodspring (Dr. Fox) on 11 March and to my question of 12 March on the number of medically unfit servicemen. I appreciate that a beleaguered Government must media-manage as best they can, but I would welcome your guidance, Mr. Speaker, on how Defence Ministers can be persuaded not to use our armed forces, and abuse this House, in a way that I fear is becoming routine.

The only thing I can say to the hon. Gentleman is that the House should be the first to be told of these matters.

On a point of order, Mr. Speaker. A recently filed freedom of information request returned a 92 per cent. bed occupancy ratio at Kettering hospital. The Health Minister, however, provided a different figure. Is it not disturbing, Mr. Speaker, that the Government are putting different figures to Members?

Let us not extend Health questions. I did, after all, run into three minutes’ injury time—and the hon. Gentleman is trying to extend that even further.


Motion made, and Question put forthwith, pursuant to Standing Order No. 83A(7) (Programme Motions),

That the following provisions shall apply to the Criminal Justice and Immigration Bill for the purpose of supplementing the Orders of 8th October 2007 and 11th October 2007 in the last Session of Parliament and 9th January 2008 (Criminal Justice and Immigration Bill (Programme), Criminal Justice and Immigration Bill (Programme) (No. 2) and Criminal Justice and Immigration Bill (Programme) (No. 3)):

Consideration of Lords Amendments

1. Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion at this day’s sitting.

2. The proceedings shall be taken in the order shown in the first column of the following Table.

3. The proceedings shall (so far as not previously concluded) be brought to a conclusion at the times specified in the second column of the Table.


Lords Amendments

Time for conclusion of proceedings

Nos. 9, 301, 327 and 86 to 91

An hour and a half after the

commencement of proceedings on

consideration of Lords Amendments

Nos. 285, 115, 173 and 117 to 149

Four and a quarter hours after the commencement of those proceedings

Nos. 116, 1 to 8, 10 to 85, 92 to 114, 150 to 172, 174 to 284, 286 to 300, 302 to 326, and 328 to 348

Six hours after the commencement of those proceedings, or 10 p.m., whichever is the later.

Subsequent stages

4. Any further Message from the Lords may be considered forthwith without any Question being put.

5. The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—[Ms Diana R. Johnson.]

Question agreed to.

Orders of the Day

Criminal Justice and Immigration Bill

Lords amendments considered.

I must draw the House’s attention to the fact that privilege is involved in Lords amendments Nos. 92 to 95, 304 to 306 and 173. If the House agrees to any of these amendments, I shall ensure that the appropriate entry is made in the Journal.

Clause 10

Abolition of suspended sentences for summary offences

Lords amendment: No. 9.

With this we may discuss Government amendment (a) to the words so restored to the Bill, Lords amendment No. 301, Government motion to disagree thereto, Government amendment (a) to the words so restored to the Bill, Lords amendment No. 327, Government motion to disagree thereto and Government amendment (a) to the words so restored to the Bill.

Thank you, Mr. Speaker. I was listening so intently that I almost forgot my part in the script.

May I say what a pleasure it is to return once again to the Criminal Justice and Immigration Bill? I am pleased to see in their places both the hon. and learned Member for Harborough (Mr. Garnier) and the hon. Member for Enfield, Southgate (Mr. Burrowes). Today provides an opportunity to return to the discussions we have had on this important Bill since the beginning of the parliamentary Session—discussions that are now reaching their denouement. I should also like to welcome the hon. Member for Eastleigh (Chris Huhne) to his Front-Bench position for the later stages of our proceedings on the Bill.

Having noticed the hon. Member for Somerton and Frome (Mr. Heath) in his place, I want to pay tribute to him. When we started our consideration of the Bill in Committee, the hon. Gentleman and the hon. Member for Cambridge (David Howarth) were the Liberal Democrat Front-Bench spokesmen. Since then, there has been a change in Front-Bench responsibilities, but I wanted to put on record at this late stage my thanks to the hon. Member for Somerton and Frome for his consideration in Committee and on the Floor of the House. I hope that he will recognise that although there were major disagreements between us, some movement has taken place on some issues, and indeed that I have been able to accept some of his positive suggestions. I hope that the hon. and learned Member for Harborough and the hon. Member for Enfield, Southgate will also recognise that changes have been made in response to some of their suggestions.

That brings us up to today, when we will have a full debate on a number of key issues. The amendments before us return us to the matter of ending suspended sentence orders for summary-only offences. As you are aware, Mr. Speaker, I am inviting the House to disagree with the Lords amendment, which would altogether remove from the Bill the proposals in clause 10. On reflection—I know that there was an ordered and considered debate in the other place—I believe that that legislation is necessary, for reasons that I hope briefly to set out.

There is an honest disagreement between the hon. and learned Member for Harborough and myself—and, indeed, between the other place and myself—in respect of the use of suspended sentence orders for summary-only offences. On reflection, I think that it is an inescapable conclusion, on the basis of sentencing figures, that the courts are now using the new suspended sentence orders for substantial numbers of cases that would previously have received non-custodial sentences.

As you will be aware, Mr. Speaker, I am very much in favour of non-custodial sentences when appropriate. I hope shortly to introduce a campaign to support greater use of such sentences in the community at large, because they have a place in our society and are an important part of the overall armoury of sentences. However, if we look carefully at the use of the new suspended sentence orders, we see that a substantial number of cases are now being drawn into the framework that would previously have involved non-custodial sentences. That is important, and although it has already been considered in another place, I think we should reflect on it closely here today.

Let me take the hon. and learned Member for Harborough and the hon. Member for Enfield, Southgate back a few years. As they will observe, there has been a huge growth in the use of suspended sentence orders by the courts since their introduction in April 2005. However, I am sorry to say that there will be no equivalent drop in the use of immediate custodial sentences. I conclude that whatever changes were intended in April 2005, suspended sentence orders are not, in most cases, being imposed instead of sentences to immediate custody.

The Minister said that there had been no equivalent drop in immediate imprisonment, but does he not agree that in the case of summary offences there has been a drop?

I am grateful to the hon. Gentleman for his intervention. Let us look at the figures for magistrates courts alone. The immediate custody rate remained stable, at about 4 per cent., between 2005 and 2006. However, the use of suspended sentence orders increased from just under 0.5 per cent. in 2005 to 1.7 per cent. in 2006. Some 7,081 suspended sentence orders were made in 2005, compared with 23,274 in 2006, 12,397 of which—this returns me to the point made by the hon. Member for Cambridge—were for summary offences, compared with 4,007 in 2005. According to my ready reckoning, that amounts to an increase of some 8,300 over the period, and indicates some difficulty over the way in which suspended sentence orders have operated. If we examine particular offences, we see that such orders are gaining ground at the expense of non-custodial outcomes.

In the context of people who may face a prison sentence as a result of the Bill, we should consider, in broad terms, whether a community-based non-custodial sentence is more effective than a custodial sentence in helping to prevent reoffending in the long term. We must inevitably conclude that whatever the original motivation for the introduction of suspended sentence orders in April 2005, they are leading to greater use of custody at the expense of non-custodial outcomes. That is clear from a comparison between the figures for 2004, before the new suspended sentences were available, and the 2006 data.

Let me give two examples of summary offences that have given rise to a substantial number of suspended sentences. The first is common assault. Suspended sentence orders accounted for 7 per cent. of all sentences in 2006, compared to fewer than 2 per cent. in 2005. Over that period, community sentences and immediate custody remained stable. Fine, we may say; I very much encourage greater use of community sentences where appropriate. However—this is a key issue for us today—fines also fell by two percentage points, as did conditional discharges. That is for the offence of common assault.

An equally serious offence that I know causes hon. Members a great deal of concern is drink-driving, a summary motoring offence. When I look at the 2006 figures in detail, I see that suspended sentence orders accounted for 3 per cent. of all sentences, compared with 1 per cent. in 2005; the difference, of two percentage points, is a considerable number of cases. Over this period, community sentences fell by two percentage points and immediate custody fell by one percentage point. Fines and conditional discharges on both issues remained stable.

If those involved at the time recall the debates on the Criminal Justice Act 2003, they will know that the Act, quite rightly, treats the suspended sentence order as a custodial sentence. The courts must believe that there is an offence that justifies a custodial sentence before they can give a suspended sentence. Indeed, I recall having a discussion about that issue in Committee prior to Christmas. On any reading of the situation, it is clear that something has changed, or the figures would not show that movement from community disposals to suspended sentence orders.

There have been arguments that offences coming before the courts are now more serious, thereby lifting substantial numbers of offences into the custody bracket. I do not believe that changes to the seriousness of offences have caused that. I am not aware of any evidence that would show that that has occurred and it seems very unlikely that such a change would coincide exactly with the availability of the new suspended sentence. More tellingly, the use of immediate custody for summary-only offences in the magistrates courts has been stable at around 2 per cent. for the past 10 years up to and including 2006. That argues against a change in seriousness. It seems implausible that a change in seriousness would result in offences moving from community disposals to suspended sentence orders, but not in offences moving to immediate custody. It is much more likely that, faced with a new range of sentencing options, courts have not maintained the previous custody threshold.

There may well be training issues that are important in this sphere. I know that the Magistrates Association, including in submissions in our initial hearings—they now seem like 1,000 light years ago, but they were actually in October—spoke about the need for examination of further training and support for magistrates. We should be able to look at that. Training will be important, but it boils down to the fact that courts have not maintained the previous custody threshold. It is easy to say that courts should go through a simple process where they label an offence as being on one side or the other of the custodial threshold in complete isolation from consideration of sentencing options. In practice, as every hon. Member will know, this is a grey area where a prison sentence might or might not be appropriate for an offender. With such offenders, it is hard for the courts to consider the question in isolation from the available options.

It is important that we have pre-sentence reports, which can influence a sentencing decision by suggesting whether particularly suitable community punishments are available in a particular case. I have been keen to look at strengthening that area, including through the announcement recently of an additional £40 million for probation services to look at how they can support pre-sentence reports for sentencing decisions. I hope hon. Members will recall that the £40 million was money that we were able to secure from the Treasury to help to give strength to probation areas to look at how we can influence the greater use of community penalties in our communities and our courts. Even with that extra resource, however, and taking into account the issues mentioned and the discussions we will shortly have on the strengthening of the community sentence, it is still important that the pre-sentence report can influence a sentencing decision.

Handing down a suspended sentence must, intuitively, differ from handing down an immediate custodial sentence, where the offender has no chance to avoid prison. I consider that introducing a freely available suspended sentence, which was intended to be a useful tool to the courts as an alternative to custody, has had the effect of blurring the level of the custodial threshold. We had that debate in Committee, and it was also discussed in another place. Let me be honest about this: perhaps I and my colleagues in Government could and should have foreseen that, and maybe we should have considered it when the measures were previously before the House.

I have looked at the statistics over the past two years—I have given them to the House this afternoon, and the 2005-06 figures show that the immediate custody rate has remained stable at 4 per cent. but the use of suspended sentence orders has increased by 7,000 to 23,274 over the same period—and they tell me that there is a difficulty that we need to address. I hope that the proposed legislation before us addresses it, which is why I am arguing against the suggestion from another place to remove the measures altogether.

In any event, we believe that if suspended sentences are no longer available for summary offences, courts will impose immediate custodial sentences in those cases where they are clear that they have no alternative, and in other cases they will use community disposals. I believe that if they do not have the option of passing a suspended sentence, but instead have to choose between sending somebody to prison—with all the difficulties there will be for their family, their employment, their housing and their potential drug or alcohol behaviour—or finding a suitable alternative community sentence, magistrates and sentencers will look to use community disposals in a more productive manner. Under those circumstances, I believe that the custodial threshold is likely to revert to somewhere close to its previous level. Again, let me be honest: I might be wrong, and we might need to reflect upon this. That is why we have considered an amendment of our own to assist another place in the examination of these issues, in the event that what I have said proves not to be the case.

However, I simply put myself in the position of a magistrate or sentencer who is faced with the possibility of sending an individual to jail, rather than giving them the suspended sentence order. At a time when, admittedly, we have crowded prisons with difficult conditions, sentencers will be faced with a choice of putting somebody in prison—for, perhaps, a short period—when deep down they will know that a custodial sentence will potentially be more detrimental than a community sentence.

We plan to increase discussion on these matters shortly, and to promote the use of community sentences. There are a number of available options to help support the greater use of community sentencing. With proper support from probation, greater help with pre-sentence reports and effective focus on what works for the individual to help prevent reoffending, a sentencer choosing between a marginal custody threshold and a community sentence would rather give the individual concerned the benefit of the doubt by giving them a strong community sentence aimed at dealing with their offending behaviour.

There is unanimity between the major parties on this; the hon. and learned Member for Harborough has shared my views on the matter. We need to look at what works in preventing reoffending. In the circumstances under discussion, the sentencer examining the options is not going to be able to use the suspended sentence order, and the choice between custodial sentence and community sentence has very real consequences for the future reoffending rate of the individual before the court, because short custodial sentences ultimately lead to a greater reoffending rate than short community sentences. There is a clear correlation. I know the hon. and learned Gentleman supports that view, as we have debated this matter on many occasions.

The fears that have been expressed in another place about raising the custody threshold will not be met with the stark reality of individuals facing a court decision and the difference between prison and a community sentence. That is my firm belief, and I am of the view that if I do not restore clause 10 to the Bill as proposed, the courts will continue to impose suspended sentence orders where they would previously have used community orders.

The challenge for the official Opposition—I know that there is a debate on this issue with my colleagues in the Liberal Democrats—is to make the judgment, which is a very fine one, as to whether we follow the use of suspended sentence orders, as previously planned, or whether we make the change today. I hope and believe that colleagues in the Liberal Democrats will reflect carefully on this issue. I came to know the hon. Members for Somerton and Frome and for Cambridge during consideration of the Bill in Committee—I am sure that the hon. Member for Eastleigh, who is also on the Liberal Democrat Front Bench today, will reflect on these matters, too—and they have discussed this issue and pressed me, the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle), and my right hon. Friend the Secretary of State for Justice, the Lord Chancellor, to look at greater use of community sentences for short sentences.

I am of the firm view that if we delete clause 10 today, it will lead to greater use of custody sentences, rather than community sentences. Again, there is a fine judgment to be made, and we are willing to reflect on it, as the later amendments will show. However, and without wishing to pre-empt what the hon. and learned Member for Harborough and the hon. Member for Cambridge, who leads for the Liberal Democrats, will say, I believe that they have some sympathy with this point; they know that the community sentence is a positive and a difficult sentence—one that will still be difficult for the offender.

My hon. Friend makes a very valid point. In some cases, it is more difficult for the offender, because they have to come to terms not just with their behaviour but with some of the demons that may well have driven them to it, whether they be drugs or alcohol. They may have to come to terms with doing pay-back work in the communities that they live in or perhaps with providing reparations to people whom they have worked with. There could also be a range of other options that constitute difficult sentences for them to undertake, but which may well—this is the key point, which I ask Members to bear in mind when they vote on the motion—mean that they keep their job or may keep their family together, in due course; help them get off the drugs or alcohol that caused them that difficulty in the first place; or help them to come to terms with their offending behaviour in a much more enlightened way than a short custodial prison sentence would. I say that with all due respect to my colleagues in the Prison Service, for which I am also responsible.

That is a debate that we must have across the board. Today’s proposed change regarding suspended sentence orders is about whether we look at the facts—the facts are that custody remains stable and the use of community sentences and fines has dropped—and whether or not we support another place in removing this provision from the legislation.

Let me be open and honest—I always try to be honest in these matters, as you know, Mr. Deputy Speaker—and say that the proposals before the House today will, in the longer term, save 400 prison places. There are two key related issues. It is no secret in this House that the prison population has been under pressure for some weeks and months, or that we are undertaking a massive £2.5 billion building programme over the next five to six years. It is no secret that we are going to increase the number of prison places to 96,000 by 2012-13, or that we are looking at trying to support community sentences in a much more effective way. However, it is also no secret that the next few months will be challenging, and that we have predicated our projected figures for the use of prison places on the fact that clause 10 will be in the Bill, and that those 400 prison places will be saved over the next couple of years by the actions taken through clause 10.

I know that the hon. and learned Member for Harborough may well say that we should have built earlier, and that we should have done this and done that, and I know that there will be lots of arguments about those issues

That is for another day, dare I say it. The key point is that however we have reached where we are—this week marks the first anniversary of the Ministry of Justice—throughout the planning that we have undertaken since June last year, from the publication of this legislation, through its Commons Committee stage and its passage through another place and back into the House of Commons, there has been discussion about those 400 people who would not go to prison if this clause is in place.

May I welcome you to the Chair, Mr. Deputy Speaker? You will know that if we were to remove clause 10, 400 people who are not in prison could be in prison over the next couple of years. I believe that we will have to face that problem. We would have to build a whole prison for those additional places. We would be talking about an additional 400 places, additional costs, prison officers, support staff and a prison-building programme if we were to remove clause 10.

Irrespective of the case that I am making, the facts show that, to date, the suspended sentence order has not worked in the way in which we intended it to do, the use of custodial sentences as opposed to community sentences is more detrimental in short-term cases and an additional 400 people will be in prison as a result of the removal of this measure from the Bill. All that drives me to believe that it should be kept in the Bill, as proposed.

Let it not be said that I am somebody who will not listen on behalf of the Government, because some very valid points have been made in the debate to date—[Interruption.] I missed that.

I shall not say that I do not intend to listen.

I began my introduction to this group of amendments by saying that I believe that a strong case has been made and that it can be proved by the facts, the general direction of Government policy and the impact on prison places. However, I recognise that discussion has taken place in another place about the clause’s impact and that both there and in Committee there was debate as to whether what I say will happen will happen. I do not base that only on what has been said in another place; I have to listen to the evidence brought forward by the magistrates courts and the Magistrates Association, which have again said that they believe that they may well up-tariff rather than down-tariff if this measure goes ahead.

I believe that I am on strong ground and that we have a good case to make, but I am also aware that doubts have been expressed as to the precise impact of the clause and I want, as far I am able, to acknowledge those concerns in a real and positive way. If hon. Members were to look at the Order Paper, they would see that in the light of those concerns, I have proposed amendments that provide for a power to suspend the amendments to section 189 of the Criminal Justice Act 2003 made by the clause; that is to say, it would restore the power to impose a suspended sentence order in summary-only cases if it should appear necessary to do so. Again, I hope that that is helpful.

If I did decide to bring forward an order in circumstances that allowed me to impose suspended sentence orders in summary-only cases again, such an order would be made by an affirmative procedure and would also allow the clause to be reactivated in due course. I hope that the power in the Government amendments will give us the opportunity to take forward what will be a useful measure; it will test whether my contentions work and it will give the Government the power to put down an affirmative procedure and allow the clause to be reactivated in due course if that were not to prove the case. Again, I cannot envisage such a situation, but I need to reflect upon whether or not the clause would have unanticipated consequences.

The amendments that I have tabled would provide a swift response, should those unanticipated consequences arise, and would introduce the affirmative procedure, so it would not simply be a question of the Minister making a decision and hon. Members having to pray against the clause. The affirmative order-making power would allow both the removal of the suspended sentence order policy, which we have already debated, and reactivation in due course, if that were required.

The amendments are not a concession but a clarification, and I hope that they will give sufficient comfort to the hon. and learned Member for Harborough and to the hon. Members for Cambridge and for Eastleigh. In the event of the consequences predicted in Committee, we could take swift action to rectify the situation. The Government’s second amendment has the same purpose and is aimed at enabling service courts to keep in step with the policy applicable in magistrates courts.

I have spoken for more than half an hour to ensure that I make the case for the original change in clause 10. I have backed my case up with figures that show that sentencing over the past three years has been as I have described. We need to examine in detail the possible consequences of removing the clause, not just for prison places—a key factor—but the impact on the 400 individuals who might be sent to prison instead of receiving a community sentence, or on reoffending.

I hope that I have also shown that we recognise the concerns expressed in the other place. We have empathised with those concerns and tabled amendments accordingly. If the action that I have outlined does not turn out to be satisfactory, the amendments will allow us to make changes. I look forward to hearing from the hon. and learned Gentleman. I hope that he reflects on what I have said and I hope that his party and the Liberal Democrats will support the amendments that I have tabled.

The Minister is nothing if not disarming. During the course of his 36-minute speech, he told us on three occasions that he was honest—even that he was open and honest. I have never suggested—or even thought—that he was anything other than honest. It may be that the instructions he receives from his masters cause him to say things that he would prefer not to say, but I salute him for the way he performs sometimes disagreeable duties. This must be one of those difficult occasions.

It is necessary to deal with the substantive issues before us and to respond to the Government’s invitation to disagree with the other place. We wish to sustain the objection to clause 10 and to retain the power of magistrates courts in summary cases to impose a suspended sentence if appropriate. It is not always appropriate to order that a defendant be given a suspended sentence. Sometimes it is more appropriate to impose an immediate custodial sentence although, on most occasions for summary offences, it is most appropriate to impose a community sentence or an even lighter sentence. I am afraid that the Government are in something of a muddle, not least because they are seeking to undo something that they put into law only with the Criminal Justice Act 2003.

If you had plenty of spare time, Mr. Deputy Speaker—and I do not think that you have—you would be able to look at the 2003 Act and see how little has remained on the statute book in the way promised by the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett). My memory may be defective, but I suspect that about half that legislation is either not in force any more or has never been implemented. Other parts have been amended, so the Government’s approach to the 2003 Act, which was said to be the best thing since sliced bread for the courts service and the criminal justice system, has been somewhat chaotic.

Right at the end of 2005, the Government implemented the power in the 2003 Act enabling magistrates to give suspended sentences in summary-only cases. The criminal courts could not use the power until 2006, and the fact that this Bill was introduced into the House in the autumn of 2007 means that the system had been in operation for barely a year before the Minister wanted to change it.

I am not sure that I am convinced by the evidence that the Minister produced. Even if his figures are correct, I am not sure that they help his argument. It may be true that common assault cases have led to more suspended sentences in the magistrates courts, and that the numbers of fines and conditional discharges for such cases have fallen. It may also be true that the proportion of suspended sentences handed down in drink-driving cases may have risen from 1 per cent. in 2005 to 3 per cent. in 2006, but I am not at all sure that any of that helps the Minister’s case.

Suspended sentences are either a useful weapon in the sentencer’s armoury, or they are not. I plead guilty to being a sentencer. I have been a Crown Court recorder for the past 10 years or so, and in appropriate cases I frequently make use of suspended sentence orders. They are an especially useful weapon: the sword of Damocles hangs over the defendant, keeping him out of prison in the immediate term and allowing him to continue to support family and dependants—and, with any luck, to keep his job. One benefit of the 2003 Act was that it allowed a court to attach to the suspended sentence order requirements that are akin to those attached to community sentences. That combination is very useful, as it can act as both spur and deterrent to the defendant.

I have been listening carefully to the hon. and learned Gentleman. He spoke of weapons in the armoury, but does he accept that magistrates courts would benefit from having that armoury broadened?

Yes, I think I do. I am not sure which part of my remarks that intervention touches on. No doubt the hon. Gentleman will help us further later. There is a confusion in the Government’s case, and I am not entirely sure whether the hon. Gentleman shares that confusion.

The suspended sentence will still be available to magistrates in either-way cases. Let us say that someone is charged with aggravated vehicle-taking—that is to say, with taking a vehicle without consent and causing criminal damage. If the value of the damage is more than £5,000—if the car is damaged to the tune of £5,001—that is an either-way matter. In that case, the magistrates can give a suspended sentence. However, if by some chance the defendant causes less than £5,000 of damage, the magistrates cannot give him a suspended sentence, although to all intents and purposes the nature of the offences and the effect of the damage on the victim are pretty much the same. An arbitrary number decides whether or not the magistrates have the power that the Government wish to take away from them.

We need to be pretty clear on that point. Suspended sentences are to be removed simply for summary-only offences; as I understand it, they are being left in place for either-way offences and for the Crown courts. Why are suspended sentences being taken away only for summary-only offences? The Government’s argument was set out fairly concisely in the letter from the Minister, which I received by e-mail this afternoon—I am grateful to him for that. I would be the first to admit that the letter does not contain a single factual inaccuracy, but it does not quite deal with the whole story. The whole story began to be revealed, at least in part, towards the end of the Minister’s remarks today—in about the 28th, 29th or 30th minute of his speech—when he mentioned prison figures. Of course, the basis of the Government’s argument has nothing whatever to do with wanting to improve the justice system and everything to do with wanting to prevent further chaos within the prison estate.

It is very nearly a year since the Department was set up and since the new Lord Chancellor took office. Since then, there have been any number of quick fixes designed to reduce the prison population, including early release from custody under the ECL, or end of custody licence, scheme. At some stage—I cannot remember whether it was before or after the Department was set up—there was the introduction of home detention curfew, and the Criminal Justice Act 2003 introduced automatic release at the halfway point in a custodial sentence. Despite all those measures, panic or otherwise, the prison population has gone up and up. It now stands at a record. When the Government came to office, the prison population was about 61,000; it is now 82,500.

You will remember, Mr. Deputy Speaker, that when ECL was introduced at the end of June last year the Government promised that they would release 25,500 prisoners early in order to reduce the overall prison population. I do not know how they managed it, but as a consequence of what they have done, the prison population has gone up.

We are now considering another measure, introduced in the Bill last year in spite of all the evidence from practitioners, sentencers and others who take an interest in and have knowledge of the subject, that the Government think will free 400 prison places. I am willing to make a small wager that even if the measure passes into law and magistrates are denied the power to give suspended sentences for summary-only offences the prison population will not decrease, and those 400 prison places will soon be filled by other people. I advise the House not to put much faith in the Minister’s suggestion that the measure is a good idea because it will free up 400 prison places.

The point that I am making is that whatever the rights and wrongs of the decision and whether or not it is linked to prison places, the consequence of removing clause 10, as proposed in another place and supported, I understand, by the hon. and learned Gentleman, is that those extra 400 prison places will be required in the next 12 to 18 months. That will add pressures to the prison population rather than alleviate them, whether as a deliberate policy or simply as a consequence.

I am grateful for the Minister’s intervention. It cannot be gainsaid that whatever the Government do in relation to sentencing and in attempting to relieve the overcrowding in prisons, which is at an all-time high, nothing seems to relieve the problem, and the measure will not do so, either. The Government have been hoist by their own petard. They wish to look tough in the eyes of the British public and to look capable of dealing in a hard way with those who commit crimes, but they are not. All they have done is fill the prisons, and the offending and reoffending percentage rates continue to be in the high 70s and 80s, whether those are custodial or community sentences.

In order to convince us, the Government—at the same time as removing the power of magistrates in summary cases to award suspended sentences—would have had to propose a much more robust and respectable community sentence system. They have not done so. There is no point in their dismantling one part of the system if they do not replace it with something better in the community sentence system.

It is a mistake to confuse a suspended sentence and a community sentence. The two are entirely different, although they may have certain elements in common. As the Minister has candidly, openly and honestly accepted, the suspended sentence is part of the custodial regime. It is not the equivalent of a community sentence and one should not be given a suspended sentence unless one has crossed the custody threshold.

If the Minister says that magistrates are passing sentences of suspended custody for offences which in the past would have attracted a community sentence, the answer, as he half-admitted in his remarks, is not to throw away the suspended sentence power but to improve the training of magistrates. The Government should pass fewer Bills and devote their time and energy to making existing legislation work, not least because the thing that they now seek to destroy has been in force only since 2006.

If we are not careful, we shall be able to describe the Bill as a piece of order, counter-order and disorder. In the light of the Bill, the poor old Criminal Justice Act 2003 will look even more ridiculous and abused than it is already. The Government need to be more confident in the ability of magistrates to use their discretion properly and to deliver the appropriate sentence in relation to the facts of the case, in relation to the offender, in relation to the victim and in relation to the wider needs of the public to see justice done.

Simply getting rid of the power of magistrates to award a suspended sentence in summary-only cases is not the answer; it is the result of a panic decision. Having made a bad decision, the Government do not have the self-confidence to realise that they have made a mistake and to stop. They should not reinforce failure but move on, in their new, post-Thursday listening mode. I know the Minister enjoys everything that I say, although he does not always remember it the following day. Even if the Government do not listen to what I say, I suggest with the greatest diffidence that they listen carefully to what the other place has said. They should have a think about it, rather than box themselves into a corner. At this early stage of the implementation of the 2003 Act, they should permit magistrates to continue to give, in the appropriate cases, suspended sentences of imprisonment for summary-only offences. I make that suggestion candidly, with honesty and openly. I hope that the Minister’s mind is sufficiently open to listen to my helpful suggestion, which I present to him with much respect but little hope—

If the Under-Secretary demonstrated her point by leaping to the Dispatch Box and saying, “Goodness me! I wish that I’d thought of that before. If only I had not wasted parliamentary time by trying to get clause 10 in the Bill and keep it there,” we would all be much happier. However, I suspect that whether I have spoiled the consensus or not, the Minister and the Under-Secretary will be nailed to this particularly feeble tree. I rather wish that they were not.

I start by referring to the issue on which the hon. and learned Member for Harborough (Mr. Garnier) touched. Let us all be open and honest: I should say that I agree with him. He was absolutely right to say that we need greater resources for the training of magistrates. One of the things I have detected from the regular reports I get from the bench on which my wife has served for many years is the huge variability of the training and the inconsistent messages coming from the trainers. I certainly agree with the hon. and learned Gentleman that one tool at the Government’s disposal is to improve the training of magistrates. It is critical that we create an environment in which the appropriate community sentences, with the proper pre-sentencing reports, can be applied. I am thinking especially of the type of cases about which many of us hear regularly in our constituencies.

Only last week, I saw a photograph of the new Mayor of London watching two young men scrubbing walls as part of a community sentence, although I cannot remember the details. If a magistrates bench determines that such a punishment is appropriate—not to humiliate, but to deal with the issue of reparation, which has an influence on young people in respect of how they respond to society’s penalties—then there is merit in that.

I want greater examination of the results of any studies by the House of the changes, to ensure—if the theory is correct—that we see some positive results. The issue is not simply the number of prison places, although I understand why the hon. and learned Gentleman might perceive that to be in the Government’s mind. At the end of the day, our task here is to create an environment that helps in the overall campaign to reduce crime in our society. All the evidence that I have seen suggests that the extended use of community sentences has its place. It is not an appropriate tool to apply universally, but where it is applied, particularly in the case of some young people, it can have the desired effect.

If I may go off at a slight tangent, the other day I came across a case involving an attempt to apply universally a community penalty by a chief constable through a response to a fixed penalty notice. I have to tell my right hon. Friend the Minister that it happened to be the chief constable in his area, who has a notorious view of some motoring offences. He was dealing with a mature gentleman who was deeply offended by the fact that for going a couple of miles an hour over the speed limit he was being treated in the same way as some young people who had been committing offences that could have had far more serious consequences. In all cases, whoever is issuing the penalty needs carefully to consider the particular circumstances around the case. As my right hon. Friend knows, I have always taken a much tougher line than the Government on drink-driving issues, and I would caution against taking what might be perceived as a more lenient approach. In some areas of the country, there has been a steady move towards winning the battle of hearts and minds over drink-driving, and we need to ensure that we are not perceived to be taking a softer line in that respect.

I have discussed reparation with a number of young people in my constituency from different parts of society, in organised youth groups and in informal environments. We can undoubtedly learn a lot more by engaging with young people about how they respond to community sentences involving a degree of reparation, and I commend that to the Government.

As for the removal of clause 10, I recognise that this debate is being conducted, on all sides, in an honest and open manner that is helpful in this area of law-making, where nobody can claim to have 100 per cent. of the answers. As my right hon. Friend explained, the sentencing statistics show an unexpectedly heavy use of the suspended sentence but no commensurate drop in the use of the immediate custodial sentence, which implies that the courts are regarding the new suspended sentence as a heavy community sentence and therefore as an attractive sentencing option. It should not be seen in those simplistic terms. We should ensure, by improving the training of our magistracy and broadening the range of tools in their armoury, that the downward pressure on crime is continued. I would urge that, with the constraints that my right hon. Friend has described, we seek to move the Bill forward with clause 10 intact.

This is one of those debates where nearly everyone agrees about the objectives but disagrees about how to get there. As I understand it, the objective is to ensure that magistrates use community sentences to the maximum degree appropriate and that people are not sent to prison as the consequence of breaching a suspended sentence. First, the question is whether the Government are right in their prediction of what would happen were clause 10 to be implemented. Secondly, even if they are right in predicting the direction in which the prison population goes as a result of clause 10, have they chosen the best possible way of achieving that end?

The sentencing guidelines for magistrates courts included in the Judicial Studies Board publication on this matter are very clear. Perhaps I should declare an interest; my wife is a magistrate, so I get to read such books more often than hon. Members may think. Suspending a sentence is done after a decision has been taken to impose a custodial sentence, and the process has to work in that order. If the guidelines are followed, it would not be possible for a court to do what the Minister said that it would eventually do, which is to compare the effects of a custodial sentence and a community one. According to the guidelines, courts should not do that. First, they have to decide whether the offence is so serious that only imprisonment is appropriate. Only after that can they decide whether to suspend the sentence or not.

To the extent that courts are following the guidelines, it follows that clause 10 and the abolition of the right to suspend sentences on summary conviction will have the effect of raising the rate of imprisonment. If a decision has been made to imprison and a suspension of sentence is not available, the sentence will be immediate imprisonment. The Government’s case is that magistrates are not following the guidelines, or that they are changing the threshold at which they decide that people should be imprisoned as a result of the Criminal Justice Act 2003. The Government assert that if the position established by the 2003 Act, which came into force in 2005, is changed back, the situation will reverse. The question is whether that is right, and I am not entirely convinced that it is.

Consistency is an important matter for legal decision makers; they do not like doing inconsistent things. Sentences are influenced not just by the case in question, but by a sense of fairness with regard to the run of cases that have been considered. Magistrates sit for a day a fortnight and they do not consider dozens of cases per week. They look back over a large chunk of time when comparing their current decisions with previous ones. When trying to be fair about in-out decisions, and in maintaining consistency over the previous year, there is a severe risk that removal of the power to suspend prison sentences for summary cases will mean an increase in immediate imprisonment. It will not result in the change in the other direction that the Minister predicted. That is a matter of judgment and no one can be sure about the effects—the Minister is right about that—but I fear that the risk exists.

The Government have issued the Opposition with the challenge, today and in the House of Lords, to explain the figures that the Minister presented. How is it that, on summary conviction in the magistrates court, the introduction of the new suspended sentence order has not resulted in a commensurate drop in immediate imprisonment? There are many possible explanations, and not all are excluded by the evidence before us. We are making the decision quickly, on the basis of one year’s figures.

What other possible explanations exist? We have heard one, which is that the seriousness of offences has increased. That is unlikely and not the only possible explanation. Another explanation is that prosecutors are raising the level at which they charge—“up-charging” in the ugly jargon of the profession. That is possible in driving cases—for example, moving up from careless driving to more serious offences. However, we do not know whether that is the case.

What the hon. Gentleman suggests is unlikely to be the case. Prosecutors often reduce the charge to be more sure of a guilty plea rather than go to the expense, time and trouble of a contested trial on a more serious charge.

As the hon. and learned Gentleman says, that happens most of the time, but we do not know whether that effect has been reversed or whether the normal pressure to do what he outlines has been lessened.

It is also possible that general public concern about violent crime has caused a change in sentencing behaviour. Recorded crime is falling—and has been falling for the past 15 years—but violent crime has not reduced commensurately. Indeed, sometimes violent crime increases—certainly anxiety about violent crime is growing.

Let me propose a third explanation, which the Government should consider. The use of the suspended sentence is concentrated on re-sentencing for community orders. What happens when an offender is given a community order, a programme to attend, unpaid work to complete and supervision to undergo but fails to fulfil the conditions? The offender returns to the magistrates court to be re-sentenced. In the past, magistrates have had little choice; they have re-sentenced with a different community order and sometimes a fine, which is difficult, but now they have the option of a suspended sentence.

If that explanation is correct, the problem is concentrated in one area and does not apply across the range in all summary cases. Magistrates may not be concentrating sufficiently closely on the tariff argument in that specific matter. When re-sentencing, a court does not pay as much attention as it does when originally sentencing on the structured approach that the Judicial Studies Board recommends. I would like the Government to consider whether that is the explanation, and if so, to examine whether their approach is right.

My other point follows from something that the hon. Member for Ellesmere Port and Neston (Andrew Miller) said about what is happening in the Crown court and the magistrates courts when sentencing for indictable offences, rather than summary-only offences. The same figures that the Minister cited on summary offences show an ever bigger increase—indeed, an enormous increase—in the use of suspended sentences in magistrates courts for indictable offences from 2005-06. Such cases are not ones for which suspended sentences were previously unavailable. The explanation is not that courts are using a sentence that they could not use before—they could—but there has been an enormous increase, of three to four times. There has been an even bigger proportional increase—indeed, a massive increase—in the use of suspended sentences on indictment in the Crown court. In the Crown court, that increase has come at the expense of community orders, whereas in the magistrates courts, it has come at the expense of fines.

The explanation for what is happening cannot have anything to do with the availability of suspension, so it must be about something else. One possibility is to do with the new form of the suspended sentence order that was introduced under the Criminal Justice Act 2003. The 2003 Act allowed far more flexibility to order something else in addition to a suspended sentence, which was agreed on all sides to be a good thing. The whole panoply of sentencing options that a court has under a community order—the supervision, work, curfews, restrictions and so on—are, under the 2003 Act, also available to a court on a suspended sentence.

The Government might have created too attractive a sentencing option. Courts say to themselves, “This is a good thing that we haven’t been able to do in the past on a suspended sentence”—it used to be a bare suspended sentence, with little additional action. However, under the 2003 Act, the suspended sentence, with all the other things happening, has become more attractive. In addition, a suspended sentence looks like a good way of getting an offender to do what they are supposed to do. Instead of just saying, “You’ve got a community order—you’ve got to turn up for this and that,” there is also the threat of imprisonment hanging over the offender’s head. That makes a suspended sentence more attractive.

That is more likely to be what is happening than simply something to do with summary offences. If that is the case, the remedy cannot just be the abolition of the power on summary offences, nor can it be to remove the power of suspension or all the other attractive options that go with it under the 2003 Act, which would be a retrograde step. The only option that covers all the ground is training and the reiteration of guidance, to ensure that judges are aware of the problem caused if they ignore the structured approach to sentencing that has been agreed by the Judicial Studies Board, under which they should use the suspended sentence order, attractive though it is, only in cases where they have decided to imprison.

There is also a strange psychological problem, in that all the other, community order-type options do not seem to go naturally with a suspended sentence, which is a sentence that says, “Go to jail.” When people are in jail, they do not normally get all the other options. There is a problem with how courts are thinking about suspended sentence orders as a whole.

Another reason why the better option is guidance and training is related to the Government’s policy towards the moving of the tariff. It is possible to say that the tariff has moved in the wrong direction on summary convictions and that we want to move it back—I am not too sure that it will, however—by removing the option. However, by maintaining the current position for magistrates courts sentencing on indictable offences and for Crown courts sentencing on indictment, the Government appear to be saying that it is fine in those circumstances for the change in the tariff to continue in the wrong direction. I do not think that can be right. Magistrates courts are being sent two conflicting messages: that in summary cases the tariff has moved the wrong way, but that in indictable cases it has not. That does not make sense. For that reason, and in order to have a coherent approach to the whole problem, which has arisen because of the success of the new suspended sentence order, the only way to deal with the issue is through training and guidance.

Is there not another way of looking at the matter? The hon. Gentleman and I have both mentioned the sensible aspect of the 2003 Act that allowed requirements to be added to the suspended sentence as though it were a community sentence, although it is not. The reason why those on suspended sentences end up going to prison is, as often as not, because they breach or fail to comply with the requirements of the probation aspect of the suspended sentence, not because they commit a further offence. However, that is also a problem with community sentences. We need to see from the Government a real earnest to ensure that those who are subject to requirements will be properly supervised and monitored. That is where the breakdown comes; it is not in the sentencing process, but in the monitoring of requirements.

There are always challenges in that area. One difficulty with the new suspended sentence order is that when a case comes back, when someone has not fulfilled their requirements, they are already seen as being over the threshold for imprisonment. There is then a kind of automatic idea that the next step should be imprisonment rather than a repeat order or other sentence. For all those reasons, the Government might not be right in their prediction of what will happen if clause 10 is reinstated. Even if they are right, to some extent, they are not dealing with the problem in the best possible way. Given the risk that things might go into reverse in the wrong conditions, I prefer the Lords’ approach to the Minister’s.

I am grateful for our short debate, and I must respond to the point that the hon. Member for Cambridge (David Howarth) has just made. I am genuinely disappointed that he takes that view, because his colleague, the hon. Member for Somerton and Frome (Mr. Heath), said on Second Reading:

“I welcome clause 10 on the abolition of suspended sentences for summary crimes. I understand that I differ from Conservative Front Benchers in that respect, but it seems quite wrong that suspended sentences are used in the magistrates courts as a substitute for immediate sentences of a different kind, which was certainly not the Government’s intention.”—[Official Report, 8 October 2007; Vol. 464, c. 88.]

I thank the Minister for giving way. This is an instance in which the new procedure, in Committee, of having a kind of Select Committee investigation before going into the Bill, has proven valuable, because it was only at that stage, when we listened to the concerns of the Magistrates Association, that we started to wonder whether the measure was wise. This is about judgment and prediction. The difference is not one of values, between the parties, but one of prediction.

I am grateful for the hon. Gentleman’s intervention. I simply felt that a wider audience was needed for the initial comments, from the Front Bench, of the hon. Member for Somerton and Frome.


I remind the House that clause 10 amends section 189 of the 2003 Act so as to abolish the power of the court to suspend a custodial sentence when it is passing a sentence of imprisonment for a summary-only offence. Our contention is that since the introduction of suspended sentence orders, in 2003, the courts have been using the new suspended sentence in substantial numbers of cases in which non-custodial sentences would previously have been given. Once the option of passing such sentences for summary offences has been abolished, the courts will, by and large, revert to giving community penalties.

I accept that the other place will disagree with our view—indeed, it voted to remove the clause from the Bill on Report—but I still believe that the Government are correct in their contention. But, as I have mentioned, it is important that we create an opportunity to test the water on this matter, which is why I have tabled an amendment that will allow Ministers to reflect on what happens and to assess the contention of the Opposition, and of the hon. Member for Cambridge, that the trend in the use of suspended sentence orders will continue. If that happens, we need to have the power to make amendments accordingly.

I can see what the Minister is trying to do, in having one more shot in relation to the lifting of the order, but why will he not accept the logic of his own suggestion and simply listen to the evidence that has gone before? Why will he not allow the suspended sentence on summary-only cases to continue for a while? That practice has only been in place since 2006, which hardly gives it enough time to be properly assessed. I would suggest that, rather than trying his reverse procedure, he should leave things as they are and let us all assess the position in a couple of years’ time.

As I said to the hon. and learned Gentleman in my opening remarks, we have had some time to assess the situation to date. That assessment shows that the immediate custody rate remains stable at 4 per cent., whereas the usage of suspended sentences increased from 0.5 per cent. in 2005 to 1.7 per cent. in 2006—an increase in actual sentences from 7,081 to 23,274. That big rise has coloured the Government’s opinion on the operation of those sentences.

My contention all along has been that the evidence base is there for us to consider and that we need to take action on it. I have said to the hon. and learned Gentleman openly, honestly and candidly that the impact of the Bill not being amended in the way that I am seeking to do today would involve an additional 400 places. I remind him, if I need to do so, that that is the equivalent of a small prison and would involve considerable expenditure and staffing costs, at a time when there are prison pressures that are being considered and examined.

The hon. and learned Gentleman mentioned the 2003 Act, and I should like to point out that 92 per cent. of the 329 substantive sections of the Act are now either wholly or partly enforced. So, while I am amending the 2003 Act through clause 10 of the Bill, this is not the widespread massacre that he initially suggested. We are doing this having considered the number of suspended sentence orders passed and the impact of the original proposals from 2003 on prison population issues, yes, and on the individuals concerned, who might well face prison rather than an alternative sentence. The honest debate that we have had today relates to up-tariffing.

The Earl of Onslow has said that there could be an explanation of the use of suspended sentences, in that there was an increase in the seriousness of the mix of cases before magistrates courts. I am not aware of that, and I do not believe it to be the case. It seems implausible to me that any such increase in seriousness would coincide solely with the availability of the new order. In my consideration, the new order is the key to this deliberation. As I have said, however, I am willing to consider reviewing this matter if the pressures prove to be wrong.

In support of clause 10, I pray in aid not only the original Second Reading speech by the hon. Member for Somerton and Frome but the chief executive of the National Association for the Care and Resettlement of Offenders, Paul Cavadino, who has said that

“restricting suspended sentences to more serious offences should help to avoid the ‘boomerang’ effect of these sentences which is boosting the prison population.”

There are, without a shadow of a doubt, challenges with the prison population, but our prime focus today is to make more effective use of the sentencing options by removing this measure from magistrates courts.

My hon. Friend the Member for Ellesmere Port and Neston (Andrew Miller), whom I thank for his contribution, spoke on a range of issues in support of the community sentence. He also mentioned the question of training, and of support for magistrates to help them understand the sentences more fully. There is merit in that suggestion, but I am sure my hon. Friend will recognise that the Sentencing Guidelines Council already sets out clear guidelines on custodial thresholds, and it would be a vast job to train a large number of men and women from the magistracy to take that matter forward. I am happy to look further into that, but our clear objective is to get this legislation through, monitor its progress and allow the Government to have the mechanisms they wish. If the case put by the hon. Member for Cambridge, the hon. and learned Member for Harborough and the other place comes to pass, the Government can review the matter in due course.

With that, I commend the Government’s position to the House.

Question put, That this House disagrees with the Lords in the said amendment:—

The House proceeded to a Division.

It being more than one and a half hours after the commencement of proceedings on consideration of Lords amendments, Mr. Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that hour, pursuant to Order [this day].

Government amendment (a) to the words so restored to the Bill agreed to.

Lords amendment No. 301 disagreed to.

Government amendment (a) to the words so restored to the Bill agreed to.

Lords amendment No. 327 disagreed to.

Government amendment (a) to the words so restored to the Bill agreed to.

Clause 105

Extension of powers of non-legal staff

Lords amendment: No. 86

Motion made, and Question put, That this House disagrees with the Lords in the said amendment.—[Mr. Hanson.]

Amendment (a) in lieu of Lords amendment No. 86 agreed to.

Amendment (a) to Lords amendment No. 88 agreed to.

Lords amendment No. 88, as amended, agreed to.

Amendment (a) to Lords amendment No. 89 agreed to.

Lords amendment No. 89, as amended, agreed to.

Lords amendments Nos. 87, 90 and 91 agreed to.

Schedule 26

Hatred on the grounds of sexual orientation

Lords amendment: No. 285.

With this it will be convenient to take amendments (a) to (c) in lieu thereof.

The question before us is an important one. The purpose of the offence that we are considering is to protect a group that is targeted for hatred, abuse and even worse, merely on grounds of sexuality. But we also need to protect freedom of speech—as we have made clear from the beginning of the passage of this Bill—where that does not threaten safety and public order. That balance was much in our minds as the Bill was drafted. Before the offence was drafted, I consulted representatives of a wide range of interests on all sides of the argument, and encountered many passionately held views.

The balance between protection from the incitement to hatred for a particular group of people and the protection of freedom of speech was in our minds as we drafted the offence, and has been a constant theme in our consideration of the Bill over these long months. Those who have participated in debates or read Hansard will be able to confirm that.

We debated thoroughly the question of freedom of expression before we sent these offences to the other place for consideration. Across the Chamber, we agreed that we should seek to limit freedom of expression only where this was necessary and proportionate to the aim of public safety and public order. The House concluded that there were substantial safeguards in the system to ensure that the offence as drafted did not overstep the mark and that we had got the balance about right. Not every hon. Member agrees, and those who do not will get their say, but votes of the House have indicated that that was the collective view.

Since then, the Joint Committee on Human Rights and the Equality and Human Rights Commission have both given a view, and they agree that we have got the balance about right.

We all agree that no one should be abused for their lifestyle, but the Minister keeps mentioning balance. An elderly pensioner couple, a bishop of the Church of England, a Roman Catholic archbishop, a leading Muslim figure and a leading author have been investigated by the police, and when that happens people worry about the nature of our society. We must maintain that essential freedom of speech while avoiding the harm and upset that neither she nor I wants to see.

I agree about the need to strike an appropriate balance. I began my remarks by saying that there was general agreement across the House about the need to get the balance between these difficult issues right. The hon. Gentleman refers to incidents involving public order offences with a threshold much lower than what we are considering today. I shall deal with the differences between those thresholds later in my remarks, so I hope that he will bear with me. I shall keep his comments in mind, and I want to reassure Members of this and the other place that the Government want to get the balance right.

I believe that we are more or less there. I shall deal specifically with the question of thresholds, as the threshold for the offence proposed in the Bill is higher than the thresholds for the public order offences that have been examined by investigating officers. It is important to note that the thresholds for the latter are much lower, but I shall set out the Government’s position in a bid to be as helpful as possible in reassuring those who have concerns.

The Government have said repeatedly that we believe that no additional wording is necessary to safeguard free speech. We have listened to other opinions, and I have consulted. We have tried to take all that into account in the drafting of the provision. We do not want to include in the offence anything that is unnecessary, as that would not make the offence any clearer. Instead, the proposed wording would introduce confusion, which we should avoid in respect of an offence of this sort.

Amendments (a) to (c) are likely to generate confusion. As a public authority, the Attorney-General is already bound by the Human Rights Act 1998 to have regard to the convention on human rights when considering whether to give her consent to a prosecution, so to put on the face of the Bill another requirement that she should do so would be to repeat something that she has to do already. It could also give rise to difficulties with statutory interpretation: when the courts or others look at the legislation, they will ask why Parliament inserted a provision that was already implicit in it. For those reasons, I have concerns about accepting amendments (a) to (c); they do not add anything substantive to the Bill.

I know, however, that those who tabled the amendments are looking to reassure people. My hope is that we can do the same in a slightly different way that does not cause the legal issues or problems with statutory interpretation that the formulations chosen for amendments (a) to (c) do.

The cases cited by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) did not reach the Attorney-General. They did not come under her discretion, and the convention on human rights did not apply, as they were dealt with at a much lower level, by the police. One reason to put something explicit on the face of the Bill is to ensure that the need to have regard for religious freedom and freedom of conscience is taken into account at all levels.

I understand what the right hon. Lady says, but I am not one who thinks that putting things that are otiose on to the face of a Bill necessarily adds to its clarity. There are better ways of achieving the same end, and I hope that she will agree that what I am about to suggest in that regard will do the job. We all want people to be reassured, and the offence must be as clear as it can be. In addition, we all want the people obliged to investigate incidents and to decide whether they should be prosecuted to be absolutely clear about where the threshold is and what behaviour is caught by the offence.

In other words, I do not believe that the safeguards proposed in the amendments would help the police and those others at the lower levels to whom the right hon. Member for Maidstone and The Weald (Miss Widdecombe) referred to interpret and use the offence appropriately. In fact, they add cause for confusion about an offence that we have from the beginning tried to make as clear as possible, and that is, as currently drafted, very clear.

We have looked carefully at some of the examples cited in which the police have allegedly been over-zealous in investigating incidents; the hon. Member for South-West Bedfordshire (Andrew Selous) and the right hon. Member for Maidstone and The Weald (Miss Widdecombe) referred to some of them. I think that we would all agree that those cases involve a delicate balance, and the police need to act sensitively and proportionately. That is a matter for training, guidance and awareness, rather than a matter of putting words in the Bill that do not make the offence clearer.

The hon. Lady is trying to deal with the issue moderately and reasonably, and we are grateful for that, but would it not give a little extra reassurance and confidence if people lower down the food chain, if I might put it that way, were prohibited from taking the initiative and taking the sort of actions that can destroy a life? The people cited by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) experienced great distress. It is not impossible to envisage people being driven to the end of their tether by that sort of thing. All that we ask is that we try to prevent by anticipating.

I understand the hon. Gentleman’s point, and I understand the concerns that those who are investigated by the police for any offence may have, and the impact that such investigation can have on their day-to-day lives and reputations. I do not believe that we will solve the problem by putting in the Bill a requirement, in terms, that the Attorney-General consider particular issues, when it is implicit that she has to consider them anyway. That does not go directly to the heart of the issue, which is the understanding or otherwise of those who are responsible for investigating offences. However, I believe that we can take actions that would address the issue.

I fully accept the Minister’s point that the Attorney-General is, by implication, required to take into account the matters that I set out in my amendment (c), but the Bill will be read not only by the Attorney-General, but by chief officers of police, who will instruct subordinate officers on how to approach the issue. I accept that the issue is very delicate, but the greater the clarity in the Bill, the greater the clarity of the guidance that senior officers will give to inspectors, sergeants and police constables.

I agree that clarity is tremendously important, but I do not agree that the hon. and learned Gentleman’s amendment, or the Liberal Democrat amendment (a) for that matter, would provide that clarity; I think that they would do the opposite. Let me suggest how we might move forward with what ought to be a more targeted way of dealing with the concerns that hon. Members raise. First, some of the incidents mentioned by the hon. Member for South-West Bedfordshire and the right hon. Member for Maidstone and The Weald were investigated under current public order legislation, which deals with

“threatening, abusive or insulting words or behaviour”.

That is a much lower threshold than the one we suggest for the offence that we are considering. The wording of our proposed offence follows that of the religious hatred offence, which is committed when someone uses words or behaviour that are threatening and intended to stir up hatred. That is a much higher threshold, and that is an important difference to bear in mind when considering the issues. That threshold allows much less room for subjective judgment than, say, the phrase, “abusive or insulting words”.

I agree that the threshold for the offence that we are considering is much higher, and appropriately so, but I hope that the Minister will say how she will deal with the fact that clearly there is either too low a threshold, or prosecution is too readily used, in cases that come under sections 4A and 5 of the Public Order Act 1986. I share the concerns that Conservative Members have raised, although I have a different perspective on the matter. Will there be new guidance?

I am doing my best to come on to what I propose, but I keep giving way to Opposition Members—and I will continue to do so, if they wish me to. The hon. Gentleman has to give me a little more leeway, so that I can get on to the safeguard that I am proposing. I just wanted to make the point that we are not talking about an equality of threshold; there is a much higher threshold for the proposed offence than there is in respect of the public order offences that gave rise to some of the examples that caused concern. It is important that we bear that in mind.

It is a high threshold that we have adopted because we understand the concerns that we have heard about freedom of expression. We recognise the importance of defending freedom of expression and we want, therefore, to be as clear as possible about what the offence will cover and what it will not cover. I cannot think of words or behaviour that are threatening and intended to stir up hatred that should be regarded as acceptable for freedom of expression reasons. Some in the Chamber may be able to think of examples, but the threshold is very high.

Amendment (b) deals with guidance. I said in the House on Report that we intend to issue guidance about the offence, which we hope will be useful for all criminal justice agencies and for all those who seek to implement and use the legislation. The guidance will also be available to the public.

We understand from the Crown Prosecution Service that it intends to issue guidance to prosecutors on commencement of the new offences by way of a policy bulletin and legal guidance. Legal guidance provides prosecutors with an online source of information on legislation and policy on a range of legal issues, and is accessible to the public on the CPS website. That ought to be available to anybody who might feel concerned about the way in which the offence would work and the way in which the CPS would enforce the provisions once they are on the statute book, should they get there.

In addition, the CPS published its refreshed policy statement and guidance for prosecuting cases of homophobic or transphobic hate crime on 27 November. The policy statement explains the way in which the CPS deals with cases with a homophobic element. That covers crimes with a homophobic motivation, rather than incitement to hatred, but it is useful guidance in this context.

We have also spoken to the police, who intend to issue guidance as part of the updating and revision of the Association of Chief Police Officers hate crime manual. Currently, that deals only with crime that has a hate motivation, but it is intended to expand that to deal with crimes of incitement to hatred. I believe, and the right hon. Member for Maidstone and The Weald may agree or she may not—she will have her chance to do one or the other later—that that is much more likely to be read by the typical bobby on the beat who might be investigating such complaints, and it is probably a much better level at which to pitch the promotion of understanding of the offence, what it means, what the threshold is, what is allowed and what is not allowed.

Neither we nor the Attorney-General will give operational guidance to the police. It would be inappropriate for us to do so, but our guidance will cover the purpose and need for the offence as we have described them during the Bill’s passage through the House. On the important issue of freedom of speech, the guidance will also cover the need to ensure the balance between the convention rights and protecting targeted groups from hatred. We expect to issue such guidance to coincide with the coming into force of the new legislation.

It will be for the police to offer operational guidance on the matters that they will face in dealing with the offence. The CPS gives operational advice to prosecutors, and the police and other criminal justice agencies will take this into account when they are investigating crimes. Any advice must take into account the European convention on human rights, because both the CPS and the police are bound by the Human Rights Act to act compatibly with those rights.

I know the House is keen to find a way through on the issue across all parties, and I am keen to do so, too. The Government are, therefore, ready to table an amendment when the Bill returns to the other place tomorrow afternoon that places on a statutory footing a duty on the Secretary of State to issue the guidance to which I referred. As I said, the guidance will cover the purpose and construction of the offence, what it covers and what it does not cover. We will ensure that the guidance is properly publicised to all interested parties.

In conclusion, we have a clearly defined offence that would bite only on words or behaviour that is both threatening and intended to incite hatred against gay and lesbian people because of their sexuality. We do not believe that it needs further embellishment to protect freedom of speech. The real protection in the offence is the very high threshold required to make it out, in conjunction with clear guidance and understandable—

I am not concerned about the need to issue guidance on the legislation because it is narrow and the threshold is high. Before she concludes, however, can the Minister give reassurance about whether there would be new guidance, with or without a duty to do so, on the conduct of potential prosecutions or investigations relating to sections 4A and 5? With respect to unnecessary arrests or investigations by the police, the mischief is in that area. The hon. Lady has not said whether she can do anything to prevent that from happening again.

I can give the hon. Gentleman the assurance that I will be happy to talk to the law officers about that. Today I am concerned with giving assurances about the offence that we are discussing. When hon. Members raise concerns about any offence not working properly or not being investigated according to how it is generally believed it should be, an issue is raised about whether existing guidance should be changed. I will be happy to get back to the hon. Gentleman about that point.

To conclude, I should say that we are ready to provide for statutory guidance to try to provide reassurance, and to introduce a Government amendment to that end. On that basis, I invite the House to disagree with the Lords amendments and reject amendments (a) to (c), because of the additional problems that accepting them would cause in respect of statutory interpretation of the role of the Attorney-General’s office.

I am grateful to the Minister for how she has explained the Government’s position on the Lords amendment. However, I am afraid that I cannot agree with her approach. Let me try to explain why.

Although this is a free-vote matter for my party, we on the Conservative Front Bench support the principle of this legislation. I strongly support it; we all agree that gay people can live in fear and are subject to violent attacks, and that hateful lyrics broadcast against them, for example, have no place in a civilised society. We all agree that there is a legitimate case for making sure that gay people are protected from such activities. Our difficulty has been to make sure that, in framing a criminal law, a proper balance is achieved between the desirability of outlawing such acts and ensuring that what Stonewall, whose work on promoting this legislation I commend, has described as “temperate comment” is not outlawed.

Although it is true that the clause is rightly limited to intentional acts and threatening words and that merely abusive or insulting words are excluded, the real concern is that there have been many examples of clumsy policing and of arrests in relation to other, similar legislation. That gives rise to greater concern in this House that this legislation may be abused. A related concern is that there may be a chilling effect and that people may feel constrained about what they say.

Does the hon. Gentleman accept that what he has described relates to offences that have a much lower threshold and that the high threshold in respect of this offence is the main protection?

The concern is to ensure that the police and prosecutors have a clear understanding of the intention of the House in framing this law. One of the problems has been that in our debates until now it has not always been clear exactly what kinds of words would be outlawed. It is important that we establish such clarity in this House and that we make sure that the proper guidance goes to the police and others, so that the law is properly enforced.

If the law is not properly enforced, and if we pass a law that is abused and even results in arrests—even if no charges are brought—that law will be brought into disrepute. That would not help anybody, least of all the gay community. We all agree that we need to strike the right balance and that the right guidance needs to go to police officers to ensure that temperate comment is not caught by the legislation. In that sense, there is not an enormous amount between my party and the Government. However, we have to discuss the right way to achieve that clarity.

We tabled two amendments in lieu of the Lords amendments. They set out an approach slightly different from that taken in the House of Lords. As the Minister said, the first is to require the Attorney-General, in consenting to a prosecution, to have particular regard to freedom of expression and other articles drawn from the European convention on human rights. The second, related requirement is that guidance must be issued to chiefs of police and Crown prosecutors, drawing their attention to that requirement.

Those are hardly onerous requirements; they are perfectly reasonable safeguards to ensure that those fundamental principles of freedom of expression are considered by the relevant authorities. I did not understand the precise objection to the inclusion of the wording of those articles in the amendment. I see no legal difficulty in repeating them and in requiring the Attorney-General, in considering prosecutions, to have particular regard to them. The advantage would be that the House made plain its intention to hold free speech highly and to stipulate that free speech be properly considered before any prosecution. The Minister herself talked about issuing guidance. Why, then, does she not accept our amendment, which would require such guidance? Our difficulty is that the Minister is now talking about tabling another amendment, which we have not seen. However, our amendment is perfectly reasonable and could be considered.

In the absence of Government support for our approach, we have the approach taken by the Lords in their amendment No. 285, which is similar to that taken in a cross-party amendment tabled in this House at an earlier stage. I should say that the amendment is in no sense a wrecking amendment. The protection for free speech that it seeks would not undermine the fundamental protections to be given to gay people.

Does the hon. Gentleman not see that if we agreed to the Lords amendment, we would have to explain to gay people why they seem to deserve less protection than religious groups?

We need to remind ourselves that the purpose of the amendment is to say what will and will not be subject to the criminal law. The amendment does not weaken the protection for gay people, but it makes clear that the kind of temperate comment to which Stonewall referred will not be caught by the legislation.

I would rather that people did not make such comment. I do not wish to indicate to people any kind of licence to make such comment, whether it falls within the criminal law or not. However, we are not here to legislate for matters of taste; we are deciding whether comment should fall within the scope of the criminal law. All the amendment seeks to do is say that for the avoidance of doubt, criticism of sexual conduct and urging people to refrain from certain sexual conduct should not of itself be taken as threatening or intended to stir up hatred. That is a perfectly reasonable safeguard.

Does not the hon. Gentleman believe that the terms of the threshold that we have set in the proposed legislation provide that clarity? Temperate language cannot be caught by the offence; it is pretty clear that only words and behaviour that are threatening and intended to stir up hatred are caught.

I do not see the harm in ensuring that that is clear in framing the legislation. When certain forms of abuse were discussed at the pre-legislative scrutiny stage, in Committee and in the other place, it was not clear, and in some cases Ministers would not answer, as to whether particular hateful lyrics fell within the scope of the Bill. Therefore, Parliament’s intention was not clear, and that is why it is necessary for us to be absolutely clear now. The Minister did not say anything about amendment No. 285 and why it would in any way upset the protection that is being afforded.

The amendment introduces confusion. It says that

“the urging of persons to refrain from”

certain sexual conduct

“shall not be taken of itself to be threatening”,

but if a group of skinheads says, “Gays had better stop that activity”, that is urging them to refrain, but it is also rather threatening, the implication being, stated or unstated, “Or else.” The exemption would apply to urging people to refrain from certain activity rather than to being directly threatening, but in context the former can be threatening. The amendment would merely introduce confusion where there was less confusion to start with.

The hon. Gentleman is right about context, and the courts will have to have regard to that. What we are trying to establish, and to find some way of writing into the Bill, is what happens when, for instance, religious groups express in a temperate and reasonable way their hostility to the conduct of gay people, as opposed to gay people themselves. I would rather that those groups did not do so. I object to such hostility, and I wish to debate with people the grounds for such criticism. However, we should all agree that merely temperate criticism should not fall within the scope of the Bill, and the amendment seeks to clarify that it will not. Unless the Government accept a similar amendment—whether our own proposals to have regard to the importance of free speech, or this amendment or some variant of it—religious groups and others will continue to worry that they will be unable to express sincerely held views.

Does my hon. Friend agree that the amendment that has been sent to us from another place addresses the concerns expressed by the hon. Member for Oxford, West and Abingdon (Dr. Harris)? It clearly states that

“urging persons to refrain from…such conduct…shall not be taken of itself to be threatening”.

In other words, it makes it explicit that context is what matters, and that urging somebody to refrain—as, say, a cleric might—would not “of itself” be an offence. The hon. Gentleman’s point is well covered by the amendment.

My right hon. Friend is exactly right. That is why the amendment is helpful, not unhelpful, and would offer the reassurance that is sought.

We should remind ourselves that the Bill by no means commands universal support in the country or, indeed, among gay people. Some object to it in its entirety, believing that it amounts to an unnecessary restraint on free speech. I do not agree. There is a place for properly drafted legislation to extend this protection, but it is important that it is clear.

I agree with the hon. Gentleman about temperate and moderate language, but the problem is that that phrase does not appear anywhere in the amendment sent to us by the Lords. It would allow any sort of language to be used in such circumstances. All the work is being done by the phrase, “of itself”. Can he explain in what walk of life or in what circumstances words are used without a context?

Surely the point is that “of itself” is exactly the safeguard that my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) suggested. It would not allow any words to be used—it simply says that those words alone could not amount to the commission of a criminal offence. Yes, indeed, they would have to be considered in context. That is why I cannot understand what the objections to the amendment are. I repeat that it is not a wrecking amendment—it proposes a perfectly sensible approach. The alternative approach is contained in the amendments tabled by us and by the hon. Member for Cambridge (David Howarth), which would have a similar effect. I suspect that there is less disagreement between us on this matter than it might appear.

I hope that the Government will say more about the guidance that they intend to bring forward. Should the House disagree to the Lords amendment, this matter will go back to the other place tomorrow, so there is very little time for it to hear more about that guidance. The more that the Government can say about the precise scope of the legislation and the kinds of words that they intend to be outlawed, the more they will be able to reassure people about its scope. That is what they need to do.

I am genuinely confused. I can see that the hon. Gentleman is opposing the Lords amendment as it stands and has tabled his own amendments, but is he saying that he is willing to negotiate via what the House of Lords does if and when the Government put their amendment back to it tomorrow? Is not that the best way forward? It would of course be useful if we saw what the Government intend to say, but I wonder if that is the best strategy to take forward instead of outright opposition.

It will be a matter for the other place as to what it does, and it will have to decide on that tomorrow. We have not seen what the Government intend to bring forward. My name and that of my hon. Friends has been added to that of the Justice Secretary in relation to disagreeing to the Lords amendment because we wish to table our own amendments. If the Government will not accept our amendments, my view is that we should agree to the Lords amendment, and it will then be for the Government to persuade the Lords that it is wrong and to say more about the guidance that they have pledged to bring forward.

We must strike the right balance. I am persuaded that this protection is necessary, and I believe that we are now very close to securing it. However, I want the Government to take on board the fact that concern remains about the inadequacy of guidance and uncertainty in the law. I think that the Minister accepts that, because otherwise she would not have suggested that she was going to come forward with guidance. Until we have seen that, it is necessary to support the Lords amendment and, while it will be a free vote, that is what I personally will do.

I agree with the hon. Member for Arundel and South Downs (Nick Herbert) that this is a vital measure, not only for symbolic reasons but for reasons to do with individual people’s lives. Homophobic hatred creates an atmosphere in which far too frequently the result is terrible violence against people simply because of their sexuality—and sometimes because of their apparent sexuality. We are therefore dealing with an immensely important matter.

I agree with the Minister, however, that the starting point for the discussion is the narrowness of the offence itself. The way in which the offence has been defined means that the only words that count are those that threaten or which are intended to stir up hatred, so there is already substantial protection in the drafting. That is not the case for racial hatred, where those conditions do not apply. However, there is still the problem of absurd police investigations, and some people may feel that their right to express a view in a moderate and temperate way has been interfered with by existing law. Let us not forget that the examples we have considered occurred not under the Bill but under existing public order legislation.

The question is how to deal with the problem. It is apparent from the debate so far that there are three different ways of doing so. We need to consider which of those ways, or which combination, to adopt. One is the Lords amendment, the second is guidance and the third is the procedural safeguards of the sort put forward by us and the Conservatives.

Is there not a slight flaw in the hon. Gentleman’s argument? Does it not come down to the issue of in whose mind there is an intention to cause threatening behaviour—the person who feels offended or the person speaking? That has been dealt with in different ways in the past.

For this criminal offence, the intention has to be in the mind of the offender because that is where intentions in criminal law generally have to be. That has been an issue in previous debates on other matters, but not with regard to this particular offence in the Bill. There is a serious problem with the drafting of the first way proposed to deal with the problem: the Lords amendment.

Before my hon. Friend leaves that point, I want to explore with him the issue of immoderate or intemperate language. There is scope for some division of view on, for example, someone who from a religious standpoint argues strongly, using emotive language, that he believes homosexuality to be sinful and likely to result in some form of divine punishment, which might be seen as threatening. I think my hon. Friend and I are at one in what we want to achieve, but is he satisfied that references to moderate or intemperate language—given that he suggested a moment ago that it might have been better to include them in the Bill—will not exclude strongly felt views expressed with no kind of intention to pose a definite threat, still less to instil hatred?

If my right hon. Friend waits for a minute, he will see that I do not think that dealing with the problem by talking about what language is acceptable will ever work. Substantive control, as opposed to procedural control, has fundamental flaws, which is why the Conservatives are in a contradictory position. They are putting forward two contradictory ways of dealing with the problem.

To return to the point made by the hon. Member for Arundel and South Downs (Nick Herbert), one of the problems with the Lords amendment is the statement

“for the avoidance of doubt”.

I do not think there is much doubt about what the provisions mean. Including a provision with the words “for the avoidance of doubt” automatically suggests that there is something to be doubtful about. In the past, such provisions have been inserted in legislation when the courts have said things that are contradictory or unclear. Parliament then says, “For the avoidance of doubt, this interpretation is the correct one.” There is not yet any court interpretation of the legislation for there to be any doubt about because it has not been passed yet.

The second problem with the Lords amendment are the words “of itself”—as if words can ever float free of context. Words are always used in context, and it is the context that tells us what is going on. Among the Conservatives, there seems to be a naive belief in an abstract notion of language, whereby words have their own existence outside of human beings, human minds or human forms of life. There is no such thing as a context-free sentence—it makes no sense. Every time the Conservatives try to explain how their provision would work, they run into that problem.

The third problem with the Lords amendment relates to context and how people use words. Urging someone to refrain from particular sexual conduct sounds okay, but it can easily become a code or euphemism for something that, in context, really is threatening. We have seen that in, for example, the way the British National party used religion as an indirect way of attacking people on the basis of race. Society never stands still, and the meanings of words never stand still. Contexts change and words that might appear at one stage to be innocent will not be so at a later stage. The provisions are dangerous, and the problem lies in attempting to solve the problem by saying that there are some permitted words and some unpermitted ones. Such an approach will always run into the problem that words do not have abstract meanings; they have meanings only in social contexts.

The second way we have been offered to solve the problem is through guidance. The Minister offers us, through the Crown Prosecution Service, guidance to prosecutors on how the provisions should be used. That is not an inconsiderable offer, but it would be even better if the duty to provide guidance were included in the Bill.

The CPS will provide guidance in any event. What I am offering the House—I apologise for not having the wording—is statutory guidance from the Secretary of State for everyone in addition to the other guidance that has been produced.

I thank the Minister for that. In a different context, I remember a long debate—about half a day—during consideration of the Companies Bill of what the meaning of “statutory guidance” was. There are two sorts of statutory guidance: when the power to issue guidance comes from a statute, and when there is a duty to issue guidance and it has some sort of legal force. I am interested in the Minister’s offer, and I think that it is a way forward, but I need to see the detail. If the guidance lacks legal force, that is a problem.

The third method of dealing with the problem is procedural. Our amendment (a) and the subsequent Conservative amendments (b) and (c) propose to deal with the problem in that way. Ours would require the prosecution authorities—at the moment, the Attorney-General, but I hope that under the constitutional renewal Bill many Attorney-General powers will be transferred to the Director of Public Prosecutions because these should not be political matters—to

“have particular regard to the importance of the right to freedom of expression provided by the European Convention on Human Rights”

in deciding whether a prosecution should proceed. That is in addition to the guidance, and it is an attempt to create a trickle-down effect. It says that the prosecuting authorities must take a firm view on freedom of expression, which should eventually reach down to the level of the police.

The Under-Secretary said that that sort of thing has no effect, but it does. First, it has a possible administrative effect by diverting the authorities’ attention in a specific direction. Secondly, it has a legal effect because it provides a hook—perhaps not a strong hook, but stronger now, given what happened in the BAE case—for some form of judicial review. If there is no effect, the Government should explain why the Human Rights Act 1998 includes a similar provision on the balance between freedom of expression and privacy. That provision was included on behalf of the press, but it is a suitable model for protecting people who are not the press. I therefore believe that the procedural way forward provides a better balance. If the opportunity arises for a vote on the amendment, I request that one be held.

Amendment (c) would work in a similar way, although I do not believe it is as good. It lists many human rights—

Absolutely. However, the problem is that the amendment mysteriously misses out some rights. We want to concentrate on the right to free expression. If one lists many rights, the question arises why they are not all listed. The one that is missing is the right to life. Dealing with homophobic hatred means protecting some people’s lives. If rights are to be listed, one may as well include those that are important from the victim’s point of view.

It is odd that, although the amendment lists the rights in exactly the same terms as they appear in the Human Rights Act and the European convention on human rights, it cannot bring itself to specify their source. Perhaps I am making more of a political point than a serious point for today, but it is peculiar and perhaps emblematic that the Conservatives can use in an amendment the terms of several human rights, but cannot bring themselves to mention the words “Europe” or “human” in doing that. Nevertheless, that amendment’s approach is correct—the procedural approach is the best.

I was muttering because I was dismayed at the poverty of the hon. Gentleman’s argument, which surprises me. His amendment (a) and my amendment (c) try to achieve the same outcome. I would not have thought that he needed to waste much time making offensive remarks when our amendments are designed to achieve the same purpose. We need to be concerned about why the Government find neither our nor his approach appropriate.

I accept that point. Amendments (a) and (c) try to deal with the problem seriously and they require a serious response from the Government. I do not believe that the Government’s answer—on the one hand, the approach is unnecessary; on the other, it would have no effect—is convincing.

The necessity derives from the need to tackle the problem of the absurd investigations. There is also an effect—it may not be as great as some people wish, but it is a definite effect. The choice for the House in tackling the problem of balance is the substantive words approach, but I do not believe that that works; or the guidance alone approach, which is not yet sufficient, although it has a certain promise, especially when the detail is produced; or the procedural approach. I am a little confused by the Conservative party’s stance, which appears to favour the substantive approach on the one hand and the procedural route on the other. The Conservatives must decide between the two. Nevertheless, I hope that hon. Members will find an acceptable way forward that is also acceptable to the House of Lords.

I always find such debates difficult because whenever the House of Commons tries to quantify or qualify free speech, it moves in a dangerous direction.

I yield to no one in my abhorrence of acts of hatred and crimes committed against individuals for their beliefs or practices—whatever those beliefs or practices, so long as they are legal. Homosexual conduct is rightly not stigmatised as criminal any more. Nevertheless, some people, particularly in the Christian Churches but also in other faiths, strongly believe that that conduct—not the people—is wrong and sinful. Whatever one’s personal view of those beliefs, they are sincerely held. When they are articulated, sometimes with force, vehemence and clarity, they can have the effect of inciting undesirable, nasty people to do thoroughly nasty things, yet it is important that the law should not be brought to bear on those who utter the words, and do not do so because they wish to incite.

I assure the hon. Gentleman that the offence would not apply in those circumstances because the potential offender—the person who uses threatening words or behaviour—has to intend to incite hatred. The circumstances that he describes would not, therefore, be caught by the offence.

I do not for a moment impugn the Under-Secretary’s good intentions and I would like to see the guidance to which she has referred. It is a pity that she could not produce it this afternoon—I do not criticise her—but if it is to be produced tomorrow in the other place, why could it not be produced this afternoon in this place?

There is the difficult matter of who is to decide what constitutes the intentions. We had a similar discussion on the low-level cases, to which my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) referred. Some people have heard rather simplistic preachers and decided that they were speaking from hatred when they were preaching from what I would call over-simplistic philosophies.

Such preachers and bishops have been investigated for offences with a much lower threshold. The public order threshold is threatening, abusive or insulting words, which is much lower than threatening words or behaviour intended to incite hatred. Does the hon. Gentleman not understand and accept that?

Yes, I understand the Under-Secretary’s point, but I believe that we are considering an imperfect way of dealing with the problem. I was brought up on Voltaire’s maxim:

“I disapprove of what you say, but I will defend to the death your right to say it”,

and that of Dean Swift:

“He lash’d the vice, but spared the name”.

We have moved a long way from those propositions in the Bill and in much other legislation that we have passed in recent years. I am worried lest people who do not intend to do anything other than proclaim their heartfelt beliefs fall foul of the measure. I repeat that I do not doubt the Under-Secretary’s good intentions, integrity or belief that she has found a solution, but I beg leave to remain unconvinced by it.

Given the zealousness with which some police officers have pursued those who do exactly as the hon. Gentleman describes, does he not accept that, despite the guidance and the high threshold, both of which the Minister has talked about, there is a danger that prosecutions will be started? The impact of those prosecutions will be to silence people who, according to the Minister, should not be silenced and whom the law is not intended to silence.