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.

CRIMINAL JUSTICE AND IMMIGRATION BILL (PROGRAMME) (NO. 4)

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.

TABLE

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.

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.

I beg to move, That this House disagrees with the Lords in the said amendment.

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.

More difficult.

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—

You will probably agree with me.

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.

Empathy.

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—

You are spoiling the consensus!

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.

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.

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.

They are all listening to us now.

Absolutely.

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.

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

I beg to move, That this House disagrees with the Lords in the said amendment.

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.

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 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—

As does the convention.

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.