[2nd Allocated Day]
[Relevant Documents: The Second Report from the Justice Committee, Session 2008-09, The Coroners and Justice Bill, HC 185, and the Government’s response, HC 322, and the Eighth Report from the Joint Committee on Human Rights, Session 2008-09, Legislative Scrutiny: Coroners and Justice Bill, HC 362.]
Further consideration of Bill, as amended in the Public Bill Committee.
New Clause 11
Guidance on offences that involve hatred on grounds of sexual orientation
‘(1) The Director of Public Prosecutions, in consultation with the Attorney General, must issue guidance to prosecutors explaining the operation of the offences under Part 3A of the Public Order Act 1986 (c. 64) that involve hatred on the grounds of sexual orientation.
(2) Chief constables must ensure that the contents of the guidance to prosecutors issued under subsection (1) are made known, in an appropriate form, to officers in their force.
(3) When considering whether to consent to a prosecution for an offence falling within subsection (1), the Attorney General must have particular regard to—
(a) guidance issued under subsection (1), and
(b) the importance of the rights to freedom of expression, freedom of thought, conscience and religion, respect for private and family life and freedom of assembly and association provided by the European Convention on Human Rights.’.—(David Howarth.)
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 37—Incitement to hatred on grounds of sexual orientation: association with child sex offences
‘(1) The Public Order Act 1986 is amended as follows.
(2) After subsection 29B (1) insert—
“(1A) “Threatening” in subsection (1) extends to words, behaviour or written material which asserts or implies an association between sexual orientation and a propensity to commit child sex offences under Part 1 of the Sexual Offences Act 2003 (c. 42).”’.
Amendment 1, in page 34, line 5, leave out Clause 58.
We now come to a short debate about the aspects of the Bill involving homophobic hatred. The offence of using threatening words or behaviour with intent to stir up hatred on grounds of sexual orientation was created by the Criminal Justice and Immigration Act 2008. Anyone who knows anything about the lives of gay people in this country knows why the provision was necessary and important.
Homophobic bullying and intimidation are distressingly common occurrences. Recent research shows that one in eight lesbian or gay people have experienced hate crime in the past three years. The problem is not only distressingly common but can have lasting deleterious effects on the lives and well-being of the victims. I hope that no one in this debate will question the need for the provision; if they do, I hope that they will be honest enough to say so openly.
This debate focuses on a particular aspect of the 2008 Act. Some religious groups have said they are afraid that the new law will catch them because their religion strongly disapproves of homosexuality, and their representatives or preachers want to continue to say so publicly. It is important, however, to stress what the 2008 Act says and what the new crime is. The Act says:
“A person who uses threatening words or behaviour, or displays written material which is threatening, is guilty of an offence if he intends thereby to stir up hatred on the grounds of sexual orientation.”
That means that the words have to be both threatening and intended to stir up hatred. It is not enough for the words to be insulting or offensive; they have to threaten. Nor is it enough that the words may have the effect of stirring up hatred; they have to be specifically intended to do so.
The crime is difficult to prove at the best of times. If a charge was brought against a saintly religious leader whose intention was to save souls, I cannot see how anyone might think that that offence had been committed.
Will the hon. Gentleman give way?
This is a very short debate. Usually I give way freely but, if hon. Members will forgive me, I will not be able to do so with the same freedom in this debate.
The problem is not what the law says, but the fact that some rather odd investigations have been started—not under the provisions that I have mentioned, which are not yet in force, but under different ones. That has given rise to a great deal of anxiety and I am sure that we will hear about the cases in the course of the debate. However, it is important to realise that those cases are brought under entirely different provisions. It is right to say that people should not have to suffer unreasonable and unfounded investigation.
Cases in which people have been exposed to this sort of intrusive investigation, even though no prosecutions have been brought, have been those where the existing laws have been stretched even further to warrant the police coming and knocking on their doors. Should not the hon. Gentleman bear that in mind when considering whether this legislation, which is very specific, may be a mistaken encouragement to others in authority to do likewise?
That is why it is very important that we have specific legislation to give guidance to the authorities about how they implement the new laws. The offence that is usually referred to, as in the cases of Miguel Hayworth and Stephen Green, concerns section 5 of the Public Order Act 1986, whereby it is a crime to use threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. In my view, that provision is in itself a violation of freedom of speech. It seems to allow prosecution merely for insults, and for insults that are merely likely to cause distress but have not necessarily done so.
And without intention, as my hon. Friend says. That is why yesterday I would have supported his amendment, which we never reached, to remove the word “insulting” from that provision. That answers the point made by the hon. and learned Member for Beaconsfield (Mr. Grieve).
The provisions regarding hatred on the grounds of sexual orientation are not the same—insult is not enough; likelihood of distress is not enough—but some people are anxious about the possibility that the police and the Crown Prosecution Service will not recognise the difference. I accept that that anxiety exists and that we should do something about it—the question is what. There are two proposals on the table.
The first is to do what the 1986 Act already says following the so-called Waddington amendment, which went through after extensive ping-pong between this House and the other place last year, when the Government eventually gave way. I thought they were wrong to do so, and divided the House right at the end of that process. They did it because they were up against a deadline on another provision in the Bill about industrial action in prisons. However, they made it clear that they were with me in spirit, if not in the Lobby.
The Waddington amendment is sometimes called the free speech amendment, but it completely fails to mention freedom of expression. It says:
“For the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.”
There are many problems with the Waddington amendment. First, it is not aimed at the problem that it is supposed to solve. The problem lies not in the content of the law—a point that it seems to admit itself by using the phrase,
“For the avoidance of doubt”—
but in a possible mistaken interpretation of the law by the police and the CPS. If the police pay no attention to the wording of the offence itself, why should we believe that they will pay attention to the wording of the Waddington amendment? Secondly—this is the most important criticism—it either achieves nothing at all or is attempting to do something that we should oppose. If it really is
“For the avoidance of doubt”,
it adds nothing to the law at all, but if it is read in a different way, as a “deeming” provision, it is entirely unacceptable.
A “deeming” provision is a statutory section that tells courts to ignore reality but to treat one thing as another. Last year, we passed about 85 “deeming” provisions. In the Energy Act 2008, for example, we deemed a place where uranium was enriched to be premises owned or used for the purposes of the Crown, so that the Official Secrets Act would apply even when the place was owned by someone else. It is very common for us to do this. The difficulty with the Waddington amendment is that it can be read as deeming discussion of sexual conduct and so on not to be threatening or intended to stir up hatred even when the words actually were threatening and were intended to stir up hatred. That is particularly worrying in the case of urging persons to modify such conduct, which is what the amendment refers to. Such urging could certainly be done in a threatening way and with the necessary intent. There is a danger that the Waddington amendment could be read in a deeming manner so that a person doing such urging in a threatening way, with intent, would not count as having done so.
Proponents of the Waddington amendment put a lot of weight on the phrase “of itself”, but that phrase has at least two possible meanings. It could mean—this is the hopeful interpretation—something like, “But if the way this was done indicates threats or intentions, the provision does not apply.” “Taken of itself” might mean that, but it could mean something rather different, such as, “Ask only whether the acts complained of are within this provision, and ignore the context.” That would mean that “of itself” was an excluding phrase, rather than an including one. The latter interpretation would fit closely with the interpretation of the Waddington amendment as a deeming provision, which is a grave danger. That is why the Government are absolutely right to propose removing the Waddington amendment from the legislation. It is either useless or dangerous. I do not, however, think that the Government are right to offer nothing in its place, which is where new clause 11 comes in.
New clause 11 would meet head-on the problem of mistaken interpretations that lead to fruitless and distressing investigations. It would do so by requiring the Director of Public Prosecutions to issue guidance to prosecutors on the meaning of the offence, and crucially, it would require chief constables to make the content—or for those Members who were here yesterday, the gist—of that guidance known to police officers. New clause 11 would also introduce a real free speech element by requiring the Attorney-General, whose consent is necessary for any prosecutions to go ahead, to have regard to all the relevant rights and freedoms in the Human Rights Act before giving that permission.
The hon. Gentleman is placing enormous reliance on guidance to be issued by the authorities—the Crown Prosecution Service or the police. I have an extract from the guidance on prosecuting cases of homophobic and transphobic crime, issued by the Crown Prosecution Service in November 2007. It describes homophobia and transphobia as
“terms used to describe a dislike of LGBT people or aspects of their perceived lifestyle. In other words, homophobia and transphobia are not restricted to a dislike of individuals; the dislike can be based on any sexual act or characteristic that the person associates with an LGBT person, whether or not any specific LGBT person does that act or has that characteristic. That dislike does not have to be as severe as hatred. It is enough that people do something or abstain from doing something because they do not like LGBT people.”
Surely that is hugely wide-ranging. Parliament has no say in this matter, and we could be faced with a situation where such an interpretation means that anyone who expresses a dislike of this kind of behaviour would be caught by the CPS under its interpretation of the law.
But that guidance has nothing to do with this aspect of the Bill because it has not yet been brought into force. I am proposing guidance specifically about that aspect; the word “homophobia” does not exist in the provisions we are talking about. Furthermore, the guidance would have to be issued after consultation with the Attorney-General. That means that there will be accountability to this House over what that guidance says, through the Attorney-General or the Solicitor-General.
The effect of the second part of the new clause would be that the Attorney-General would also have to have regard to all rights of freedom of expression before a prosecution was brought. That would feed back through the system and create at least some hope of a judicial review of a decision to go ahead with a prosecution, which there would not normally be. New clause 11 is far more focused on the real problem than the Government’s provisions and would help in a much less dangerous way, but it is capable of meeting genuine anxieties that have arisen in religious communities. It is necessary to do something of this nature rather than, as the Government suggest, do nothing at all.
May I bring my hon. Friend back to the fact that there are complaints, which I recognise as genuine, about misguided police investigations and the questioning of individuals who express an honest view? Although I disagree with that view, I absolutely accept their right to express it. Would not a combination of the production of guidance and reform of section 5 of the Public Order Act 1986 to remove the word “insulting” not only deal with worries about clause 58 but solve those problems?
I am very glad that my hon. Friend has brought me back to his proposal to remove the word “insulting” from section 5 of the 1986 Act, because that would be a very important reform and I hope that the Government will take it up at some point.
Finally, I wish to speak to new clause 37, which is in my name and that of my hon. Friend. It is an attempt to ensure that a particularly despicable form of homophobic intimidation comes within the meaning of “threatening” in the Act. That is the disgusting technique employed by certain political groups including the British National party, alleging that gay people have a propensity to be paedophiles and commit offences against children. That particular form of intimidation is not just unpleasant but literally life-threatening. I therefore hope that the Government will accept new clause 37 as well as new clause 11.
I hope later formally to press amendment 1 and to have the opportunity to vote on it. It has been signed by 14 other hon. Members of all parties.
We have heard from the hon. Member for Cambridge (David Howarth) about new clause 11, and it is gratifying that Liberal Democrat Front Benchers recognise that there is a need for some reassurance about free speech on the statute book. Sadly, I do not feel that the new clause would work, and I shall say why later if I have time. Having heard the hon. Gentleman’s explanation, I still do not understand why they oppose so vehemently the inclusion of a simple free speech clause, which is much more likely to be read and followed by police and prosecutors than page after page of guidance. Either the Liberal Democrats are serious about protecting free speech or they are not, and I cannot understand why they played such an important role in securing a free speech clause in the case of the religious hatred offence, but oppose a much narrower free speech clause in the case of the homophobic offence.
The so-called Waddington free speech clause has now been law for 10 months, although by a quirk of how this place works the incitement law itself has not yet come into effect. If the offence had been in operation, and there was evidence that the free speech clause was being abused in the unacceptable way that the Government and the Liberal Democrats claim it could be, their case would be significantly stronger. However, I do not think that anybody really believes that such abuses are possible.
The wording of the free speech clause simply does not lend itself to the drastic and repugnant misuse that is alleged. Even Stonewall, which the Liberal Democrats often cite in evidence, does not appear to think that it does. Its briefing note, which came to all of us, stated that clause 58
“could mean that a very small number of people of extreme views attempt to avoid prosecution”.
I am sure that a very small number of people could do that using all sorts of methods, including the Human Rights Act 1998, evidence laws and other provisions that we consider essential to protect civil liberties and that we would never dream of repealing. Stonewall does not say that the freedom of speech provision would prevent convictions, thereby contradicting the Justice Secretary. It does not say that it will prevent prosecutions, but only that a small number of extremists will attempt to use it to get out of a prosecution. I do not think that they would succeed and I suspect that Stonewall does not think that, either. Stonewall has been candid. Its members know that a free speech clause does not seriously undermine their intention for the new offence.
Whenever the House legislates, we engage in a balancing act. In the case that we are considering, on one side of the scales, we have freedom of speech, freedom of religion and the pressing need for reassurance about the prevention of potentially widespread abuses of civil liberties. On the other side, according to Stonewall, we have a tiny number of extremists who might point to the free speech clause when they are charged, but almost certainly without success. The organisation does not, therefore, make a strong argument against a free speech clause.
Indeed, Stonewall’s director, Ben Summerskill, said in evidence to the Public Bill Committee that considered the Criminal Justice and Immigration Act 2008:
“We would have no difficulties if the provisions as drafted indicated the mindfulness of those who created them for the importance of free speech.”––[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 80, Q179.]
A free speech clause simply indicates Parliament’s mindfulness of the importance of free speech.
What does the free speech new clause say? Let us have it again—it is worth hearing. It says that
“for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself”—
whether that has two meanings may emerge in debate—
to be threatening or intended to stir up hatred.”
It simply makes it clear that discussion or criticism of sexual conduct is not caught by the homophobia law.
The religious hatred free speech clause, for which the House voted in January 2006, goes much further. It protects
“expressions of antipathy, dislike, ridicule, insult or abuse”
against religion. I do not understand how anyone could support a clause, which allows expressions of antipathy, dislike, ridicule, insult or abuse against religion, but oppose a provision, which allows mere discussion or criticism of sexual conduct. That defeats logic. I do not understand why the Government would insist on repealing only the weaker of the two provisions, when they claim to oppose both.
Let me try to explain why there is a difference. The religious saver specifies that abuse and ridicule are not covered by the offence. It is tautological but they are not. The Waddington amendment does not exclude ridicule or abuse, because they are already excluded, but purports, according to one interpretation, to allow the exclusion of intentional threatening incitement as long as it refers only to practice. That is the difference, and the hon. Gentleman must explain whether he understood the comments of my hon. Friend the Member for Cambridge (David Howarth) when he outlined the potential effect of new clause 11.
I shall deal with that at the end of my remarks.
The religious free speech clause deliberately narrows the definition of the offence whereas the homophobic free speech provision does not. It simply clarifies what is already outside the scope of the offence. It is not a defence but a signpost, so that those involved at the early stages of the criminal justice system—police and prosecutors— have it drawn to their attention clearly and simply that certain legitimate activities are outside the definition of the offence. That way, if vexatious complaints are made, the police and prosecutors can simply point to the free speech provision and dismiss the complaint, instead of spending time and taxpayers’ money pursuing pointless complaints and trampling on the civil liberties of innocent people in the process.
It is also worth emphasising that the Waddington amendment refers to criticising not sexual orientation, but sexual conduct. I repeat: it does not create a defence. I welcome the support of Liberty—often paid-up members of the Liberal Democrat tendency—for amendment 1. It speculates that clause 58 might possibly remove a defence, but the explanatory notes have got it right. The Ministry of Justice officials who drafted the notes state in paragraph 372:
“The removal of the section will not affect the threshold required for the offence to be made out.”
Clearly, if removal of the free speech clause will not affect the threshold of the offence, its inclusion will not affect the threshold, either. We are tinkering. If it is not necessary to change, it is necessary not to change—a favourite phrase of the hon. Member for Buckingham (John Bercow). The explanatory notes are more accurate and fairer than the Justice Secretary was to those who tabled the free speech clause. On Second Reading, the Justice Secretary alleged that those tabling it intended to make a conviction difficult.
When Lord Waddington moved the amendment, he said that he wanted to make it plain
“that I did not in Committee, and do not now, seek to weaken the protection that the Government’s proposal is designed to give gay people. I have never set out to narrow the scope of the provision. My intention has been absolutely clear: to make clear what both the Government and I agree is outside the scope of the provision.”—[Official Report, House of Lords, 21 April 2008; Vol. 700, c. 1365.]
I hope that the Secretary of State will accept that it is not our intention to provide help to those who use threatening language intentionally to stir up hatred against anyone. “For the avoidance of doubt” means just that. It does not change anything; it just makes clear what is already there. The Office of Public Sector Information’s online statute law database lists 588 legislative uses of the phrase “for the avoidance of doubt”—from the Children Act 1975 to the Crossrail Act 2008—so there is hardly anything unusual about it.
We need free speech about sexual conduct to be put beyond doubt. Joe and Helen Roberts, the Bishop of Chester, Iqbal Sacranie, the Roman Catholic Archbishop of Glasgow, and Lynette Burrows—I could go on—are all names synonymous with vexatious complaints to the police and with heavy-handed police intervention against people whose actions were not inciting hatred against anyone.
Now that the free speech provision is on the statute book, I wonder whether we should not look at things the other way round. Will removing it send the signal that discussion or criticism of sexual conduct is caught by the new offence? The Church of England—my own Church—seems to fear that it might. Its briefing says:
“If it is argued that it is necessary for the effective operation of the law that the amendment should be removed, the implication would be that such discussion or criticism could in itself constitute an offence, and to this we would be strongly opposed.”
I am sure that that is right, and I strongly endorse what the hon. Gentleman says.
Someone else who has spoken out is the actor Rowan Atkinson, who just a few days ago addressed a Committee Room packed with Members of the House of Lords about the chilling effect of the law. He said that he did not think that he would be prosecuted because of jokes or drama about sexual orientation, but he also said:
“I dread something almost as bad—a culture of censoriousness, a questioning, negative and leaden attitude that is encouraged by legislation of this nature but is considerably and meaningfully alleviated by the free speech clause.”
He said that it
“would provide succour and reassurance to those of us in the creative world.”
My union, Unison, has sent out a briefing that says that the free speech clause is a “Tory wrecking amendment”. Unison is entitled to that view, but I do not think that it is being fair. The majority of the sponsors of my amendment are not Tories—although I welcome support from everyone—and even Stonewall does not believe that it is a wrecking amendment.
Let me turn to new clause 11, because I said that I would explain why it is not up to the job of meaningfully protecting free speech. For a start, it focuses mainly on the decision to prosecute, but we are not concerned about prosecutions at this point. None of the cases that I listed earlier resulted in a prosecution. The liberties of those people were breached not by the Attorney-General authorising a prosecution, but by decisions earlier in the criminal justice process.
There is some merit in that, but it is not a particularly strong point.
New clause 11 reminds the Attorney-General about human rights law, but human rights law applies to the police, prosecutors and the Attorney-General anyway and, to judge from the list of cases that I gave earlier, precious use it has been. New clause 11 also proposes guidance, but that will be issued anyway, without the need for a new clause. New clause 11 does not even say that guidance must deal with free speech; it just says that guidance must deal with
“the operation of the offence”.
Presumably that will include pointing out that the religious hatred offences have a free speech clause, whereas the homophobic offence does not.
Experience has shown that guidance is the problem, not the solution. When two six-foot police officers in body armour interrogated pensioners Joe and Helen Roberts for 80 minutes after they had phoned the council to complain about its gay rights policies, the officers were almost certainly acting in accordance with the guidance issued in March 2005 by the Association of Chief Police Officers and the Home Office. The guidance is called “Hate Crime: Delivering a Quality Service” and in paragraph 2.2.6 it tells officers:
“The perception of the victim or any other person is the defining factor in determining a hate incident. The apparent lack of motivation as the cause of an incident is not relevant as it is the perception of the victim or any other person that counts.”
So a hate crime is to be treated as a hate crime even if it is not a hate crime—I need to think through that one. Paragraph 2.5.1 says:
“If, as victims of hate crimes or incidents, individuals experience indifference or rejection from the police this in effect victimises them a second time.”
I would hate to be a police officer trying to navigate my way through that lot. Some obviously believe that the answer is to come down like a ton of bricks on people about whom complaints of homophobia have been made, regardless of whether they have broken any laws.
I do not believe that we can leave it up to guidance to protect the precious civil liberty of freedom of speech. The existing wording asserted by Parliament less than a year ago provides clarity and reassurance; we must keep it. We must remove clause 58 from the Bill. I hope that we will have the opportunity to vote in a few minutes’ time, as I shall press the amendment.
As this is a short debate, I shall try to keep my remarks as short as possible. The hon. Member for Cambridge (David Howarth) has raised an important issue, and I think that there is common ground between us that the right to freedom of speech and expression must be protected. It must be protected in terms of how a statute would be interpreted in court, but it also has to be interpreted, to use an expression often used in the past by the hon. Member for Oxford, West and Abingdon (Dr. Harris), against the chilling effect that a statute can have if it is mistakenly applied by those in authority. As the hon. Member for North-West Leicestershire (David Taylor) rightly highlighted, there are, unfortunately, quite a number of examples in which laws—not this law, but others that in many ways stretch even further—have been applied in an oppressive way against perfectly respectable people. We have to keep that in mind when we come to legislate.
The hon. Member for Cambridge says that he considers that the law drafted last year—without Lord Waddington’s saving clause—would be sufficient and all right if we simply had guidelines. I have to say to him that I have some anxiety about using guidelines in that way. I accept that guidelines may be of some utility, but the fact of the matter is that if guidelines are disregarded and a legal process against an individual starts to get ratcheted up, there is nothing to stop it until the matter gets into the courts; and by then, as we know, a great deal of damage has been done in many cases to the individuals concerned in terms of stress, their reputation and the anxiety they are placed under—all quite needlessly. It thus seems to me that it would be sensible for the House to consider whether having a saving clause would help.
Now, Lord Waddington, as well as having been a past Home Secretary, and, I believe, a man of moderate views—[Interruption.] Yes, a man of moderate views, I suggest to my hon. Friend the Member for Buckingham (John Bercow). Lord Waddington has also been a lawyer. When I listened to the comments of the hon. Member for Cambridge, it prompted me to look again at the saving clause to see whether it contained the mischief of being a deeming provision along the lines that he identified. He has clearly raised a serious issue for the House to consider. I have to say, however, that having looked at the provision and read it over and over again, I do not see that it can have the possible effect that he has suggested. The reason for that is the appearance of the two words “of itself” in its penultimate line which refers to something that
“shall not be taken of itself to be threatening or intended to stir up hatred”.
It seems to me that those words make it absolutely plain that if a person carries out a discussion or criticism of sexual conduct or practices that is accompanied by threatening language, those words “of itself” would immediately take that person outside the scope of the saving clause. I have to say that I just do not agree with the hon. Gentleman’s analysis that the saving clause could be used to justify people coming forward and using hateful terminology, language and threats.
The more I listen to that argument, the more I take the view that a saving clause is required, so let me explain briefly to the House why I think this is so important. First, it will provide comfort and reassurance to people that they can continue to express their views. One of the things we are experiencing at the moment in this country is that people of moderate views on any side of an argument are increasingly deterred from expressing their views at all, but those who are full of extreme opinion, whether they be at one end of the spectrum or the other, are not deterred in any way by the law and, in fact, have a free field for themselves. That is not good for the health of our democracy or our civic life. We also need to consider that when Parliament enacts legislation in this way, groups and individuals will undoubtedly attribute to it meanings that Parliament may not have intended.
I thought it worth looking at Stonewall’s briefing, because I have a high regard for Stonewall and its campaign for gay rights. To support its analysis of why the new offence was needed and why it opposed the saving clause, it presented a number of examples. One involved rap lyrics expressing great hatred, such as “Hang lesbians with a long piece of rope”. Quite apart from the fact that I would expect that to be caught by existing law, I feel completely comfortable with the idea of enacting legislation of the kind that we passed last summer, which will criminalise it.
Stonewall says that another example of the sort of thing that it would like halted is a website which describes, in referring to homosexuality generally,
“young people who are being drawn into a lifestyle characterised by disease, degradation, death and denial.”
When I was talking recently to my hon. Friend the Member for Rutland and Melton (Alan Duncan), who is a very old friend of mine—we have known each other since university—I said to him that I did not think that his life had been characterised by any of those phenomena. Most people reading the website would consider it to be utterly wacky. I have to say, however, that if it is Stonewall’s opinion that such material should be criminalised, the House needs to approach the matter with some caution.
I am afraid that, just as with incitement to religious hatred, messages are sent out from this place that are latched on to by pressure groups wishing to prevent other people from expressing legitimate views, even if those legitimate views are in fact nonsensical. We cannot have a working democracy without the underpinning of freedom of speech, which also requires tolerance of opinions that we may consider to be bonkers or which we may dislike. As long as hatred is not stirred up, which is the mischief that we have been trying to address—as long as the civil order of society is not being undermined—we must tolerate such opinions. Indeed, as politicians, we tolerate them all the time.
For those reasons, let me simply say that I am unpersuaded that Lord Waddington’s amendment is in any way mischievous. I believe that it is sensible. As we need some saving clause in an extremely difficult piece of legislation in which the balance that we strike will always pose a problem, I can think of no good reason for us to get rid of it on the basis of the arguments that I have heard this afternoon. I therefore intend to support the retention of Lord Waddington’s amendment, and encourage my hon. Friends to do so as well.
I respect the hon. and learned Gentleman’s position on matters of free speech. He is right to criticise Stonewall’s view that that material would be caught. That is not our view, and I do not believe that it is the Government’s view. I hope that they will make that clear in due course.
Does the hon. and learned Gentleman agree that if we are to solve these problems, we must make it clear, in statute and in the minds of the police, that there is no right not to be offended? We need to get rid of the idea of insult, especially unintentional insult—as in section 5 of the Public Order Act 1986—from our statute book, and also to ensure that guidance throughout makes it clear to the police that they cannot take seriously complaints of insult which is not direct abuse. Does the hon. and learned Gentleman agree with that?
Yes. I apologise to the hon. Gentleman for the fact that, in the time allowed, I have not dealt with that point.
The question of insulting behaviour raises an important issue. I am not sure that I can do full justice to it in this short debate, but if the hon. Gentleman wishes to revisit it, I shall be happy to discuss it carefully with him. I can see that there may well be merit in getting rid of an expression that, I think, carries a number of connotations in wider legislation and that may be undesirable. There is, however, an issue that I think we cannot completely avoid. In some cases, insult, particularly if it takes place in a public arena, can reach a point at which it becomes incitement to a breach of the peace. We must guard against that possibility, but subject to that, I am sympathetic to what the hon. Gentleman has said.
For the present, we have quite a simple issue to deal with. We have a piece of legislation, passed on to the statute book last summer, that has not yet been brought into operation and that has not yet been given the chance to see whether it works. I do not see anything in Lord Waddington’s amendment to justify its deletion at present. Its support goes much wider than people with a religious viewpoint. It extends across a wide spectrum of those who have deep anxieties about the erosion of freedom of speech, including within the theatrical world, as has been shown by Rowan Atkinson.
For those reasons, although I am mindful of the mischief that we are trying to address and I want the incitement of hatred on the grounds of sexual orientation to be prohibited, I believe the amendment does nothing to prevent that from happening that and does a great deal to ensure that the legislation that we pass is balanced. For those reasons, I support the amendment.
The hon. and learned Member for Beaconsfield (Mr. Grieve) and the hon. Member for Oxford, West and Abingdon (Dr. Harris) are right: Stonewall’s example in the briefing is wrong about what would be caught by this part of the law.
Amendment 1 deals with freedom of speech, but it is important that we remember that we are also talking about the freedom of gay people to live their lives free from hatred and bigotry. When we debated the offence of stirring up hatred on the basis of sexual orientation last year, we had a long discussion about freedom of expression and were rightly concerned about getting the balance right.
We need to protect groups that are the target of threatening behaviour intended to stir up hatred. We must also ensure that those who have concerns about some types of sexual behaviour are free to express their arguments and concerns in a reasonable way. They do not need to fear that they will be caught by the criminal law. Last year, we had a very lively debate and the Government took the view that no additional provision was needed to ensure freedom of expression. The offence that we are talking about has a very high threshold and a number of safeguards are built into the system to ensure that the offence cannot be used in any way that disrupts the balance between those two concerns.
The Joint Committee on Human Rights, in its report published last week, reaffirmed its view that we have the balance right, as did the Equality and Human Rights Commission at about the same time. Last May, this House agreed, by a very large majority, that we had got the balance right. However, as the hon. Member for Oxford—the hon. Member for Cambridge (David Howarth) rather; I must get my university towns in the right order—pointed out, the other place inserted a measure for the avoidance of doubt. We all agreed with the principle that the offence should not be misused. As I say, those safeguards have already been built into the offence. The additional provision was and still is unnecessary. It serves only to make the offence less clear; it muddies the waters. This House rejected the amendment and I ask it to do so again today.
In last year’s debates, the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle), said that we would return to the issue, so it should come as no surprise to any hon. Member, including those who have put their names to amendment 1, that we are now seeking to repeal the so-called freedom of speech saving provision.
Does the Minister recall the comment made by the distinguished lawyer, Lord Thomas of Gresford:
“Freedom of speech is not derived by clauses inserted into every statute for the avoidance of doubt.”—[Official Report, House of Lords, 21 April 2008; Vol. 700, c. 1373.]
There may be doubt in Lord Waddington’s mind, but I do not think that there is doubt more widely. The measure was carried, on a pathetic turnout, by 81 votes to 57, and it is time we got rid of it.
The hon. Gentleman, as always, puts the argument so eloquently that I simply endorse what he says.
It was again evident from the debate that there are strong and divided views about where the correct balance lies. I remind the House, however, that the offence covers only behaviour that is threatening and is intended to stir up hatred. I think all Members will agree that that type of behaviour cannot be acceptable under any circumstances. It should not be protected by freedom of speech, and any provision that implies otherwise should not be on the statute book. That is why I invite the House to reject amendment 1.
Does my hon. Friend agree—I assume she does, as she will have signed off the information given by the Government at the time of this debate—that if the removal of the free speech clause will not affect the threshold of the offence, logically its retention cannot affect the threshold of the offence either, and that the clause is being used not as a defence but as a signpost to help police and prosecutors deal with allegations more speedily and effectively?
I will come on to the guidance in a moment, but let me just point out a key difference to my hon. Friend. Last May, this House voted on and rejected by a majority of 202 a Lords amendment inserting a saving into the sexual orientation offence. By contrast, in January 2006 we accepted, by only one vote, a Lords amendment inserting a freedom of speech saving into the Racial and Religious Hatred Bill. The saving for the religious hatred offence is the settled will of the House, whereas the saving for the sexual orientation offence is not the will of the House, which is what I ask Members to endorse today.
Of course the House can change its mind, and we will discover in the Lobby in 20 minutes or so whether the House has changed its mind, but I think that the fact that this was introduced last year for an offence that has not yet been put on the statute book is a pretty persuasive argument for believing that that was the House’s view at that time.
We had long debates about the guidance and about what guidance should be issued. There is a clear need for guidance, as there always is when any new offence is introduced. The Ministry of Justice will provide short explanatory guidance about the offence. The Crown Prosecution Service will issue guidance for prosecutors, and the Association of Chief Police Officers will revise its hate crime manual to include guidance on all incitement to hatred offences. All the guidance will be available before the offence comes into force. However, I am quite persuaded by the argument put by the hon. Member for Cambridge, and I would like to reflect on it. Therefore, although I ask him to withdraw new clause 11, I invite him to take up the opportunity of meeting the Director of Public Prosecutions to consider whether it would be appropriate to make the guidance statutory.
I fully understand the motivation behind new clause 37, but I believe that it is unnecessary. Allegations about offences, and specifically about child sex offences, are a very easy and damaging way of stirring up hatred on the grounds of sexual orientation. Such allegations are damaging and distasteful and should be challenged, but we believe that it is not necessary to mention them specifically in the offence. In many instances, allegations linking sexual orientation with child sex offences will be threatening as well as distasteful, and will be caught by the offence. However, when the circumstances mean an allegation is not threatening, it will not be caught, and we think that is right.
I believe the Minister said in response to the Liberals that she will consult the Attorney-General on prosecuting guidelines. May I invite her to extend her consultation to those of us who feel extremely concerned about these issues, because we fear that the guidance will be as misleading as the CPS guidance to which I referred?
I have invited the hon. Member for Cambridge, who moved the new clause, to discuss that with the DPP, and I think that that is the appropriate thing for him to do. I do not think that it is necessarily appropriate to extend that to the whole House, but hon. Members can make their views known to the Attorney-General and the DPP as they think fit.
On new clause 37, does the Minister agree with us that whenever any linkage of homosexuality with paedophilia is intended to stir up hate it should, by definition, be considered threatening? Is she saying that even if such a linkage is made in the context of a deliberate attempt to incite hatred, rather than, for example, academic discourse, it would not be, in some circumstances, considered threatening and therefore would not be an offence? That is a matter of concern to us, so will she agree to reflect on it a little further?
I have to reject the hon. Gentleman’s argument, because the word “threatening”, in this context, has to have its normal English meaning. We do not think that it is right to stretch that to include words or behaviour that it would not naturally cover, because it would muddy the waters. I am concerned that if we were to go down the road he suggests in new clause 37, those who make such allegations could shift their grounds to similar but equally damaging allegations—for example, saying that gay people are responsible for HIV/AIDS. Although I understand the concerns that he is trying to address, I do not think that the new clause is the way to address them. I therefore hope that he will not press it to a Division, but will join us in the Lobby to reject amendment 1.
I support amendment 1, but irrespective of which side of the argument one stands on today, it is regrettable, given the widespread concern about free speech in this country, that we are restricted to one hour in which to discuss the issues. If the Government had respect for the public’s worries about free speech, they would have allowed rather longer.
We have heard a great deal, especially from those on the Liberal Democrat Benches, about how arrests, persecutions and inquiries were somehow nothing to do with the law, but were all to do with a misguided application, as though some PC Plod somewhere had decided to knock on the door—
I remind the hon. Gentleman of his reply to me.
In the Lancashire case, a couple were questioned by the police for an hour and 20 minutes. They had asked the local council whether they could distribute Christian literature alongside the council’s literature on civil partnerships. There was an outcry, and Lancashire police stood their ground and said it was a proper intervention. The local council also stood its ground and said that it was a proper intervention under the law—not under this Bill—that it was then invoking. It was only when the couple sued—or commenced suing; there was a settlement—that the police and local council decided that they had got it wrong. When that is the attitude of senior police and authorities, who are responsible for implementing the law that this place passes, we sometimes need very simple, straightforward clarifications that almost hit them on the nose, so that they actually understand what Parliament intends.
I agree with the hon. Lady and I would point out that taking the word “insulting” out of section 5 of the Public Order Act 1986, which covers causing harassment, distress and alarm through words or behaviour that are threatening, abusive or insulting, will achieve exactly what she wants. That is the change in the law that she rightly requests, because that is the provision under which the couple were wrongly pursued. It is not a surprise that the police would not give way, because the statute includes the word “insulting”. Does she agree that that is the way forward?
I do not agree that that is the only way forward, because that addresses one law. Today, we have to address this law. The chief constable of North Wales, who can be a little zealous sometimes—that is why I am pleased that he is now in charge of hunting—defended six police officers arresting a man who had used a rather vulgar term for a lesbian to a third party. That is the state that we live in. We do not live in a moderate state that is restrained in its application of the law.
Out there in the country, in case Ministers are completely oblivious to it, there is a swelling unease about freedom of speech. Certain sections of the community believe that they would have to overcome a higher threshold before they would be protected from the sorts of allegations that are frequently made. The religious hatred and sexual orientation laws, and myriad other laws that seek to bring equality, have an oppressive heart. The face may be liberalism, but the heart is oppression. We need amendment 1 to ensure that the Bill contains the clearest possible explanation—hammered home and spelled out—so that there can be no doubt in the mind of anyone responsible for interpreting and implementing the law that the ordinary exercise of free speech is not caught by it.
We have free speech in this House that is not commonly enjoyed by many of the people on whom we pass laws. We enjoy a protected position, but people out there—teachers in faith schools, priests in pulpits, ordinary people expressing a particular opinion—now feel afraid to speak freely. There can be no possible objection to Parliament stressing that free speech is not at risk from this Bill. That is all that amendment 1 seeks to do and I commend it to the House.
I am delighted that so many colleagues have taken their places to listen to my short contribution. I am in a very unusual position. I am speaking against the Government for the first time since I became a Member in 2001 and face the prospect of voting against the Government on a three-line Whip, which I have never done before.
In a sermon in 2006, the Roman Catholic archbishop, Mario Conti, restated the Church’s long-held policy that homosexual relationships should not be given the same value as married, heterosexual relationships. As it happens, I do not agree with the archbishop. I am glad that my hon. Friend the Deputy Leader of the House of Commons is in his place. He will remember a conversation that we had a couple of years ago, in which he said, “Tom, the only remotely left-wing thing about you is that you quite like poofs.”
I have a long history of support for gay rights in this House. It is a matter of some regret that I have to speak against what the Government are trying to do tonight by removing the so-called Waddington amendment. If one speaks to almost any constituent one will realise that there is clearly public concern that a person who voices an opinion that is not considered to be politically correct could end up being questioned by police.
If they are not avidly tuned into the BBC Parliament channel right now, police officers throughout the country will take a keen interest in this debate, the outcome of which will have a major impact on their already massive work loads. If the Government get their way, officers will have every right to roll their eyes heavenward as they resign themselves to having to deal with an increased volume of correspondence from people who interpret every harsh word uttered as a broken bottle thrown.
When Archbishop Conti delivered his speech, a formal complaint was made against him by Patrick Harvie, a Green Member of the Scottish Parliament, who said that the archbishop’s restatement of Church policy was an incitement to homophobic hatred. I assume that Glasgow’s chief constable, being a sensible chap, can put that complaint into the bin, but we are making sure that police officers will have to deal with more vexatious actions simply because we are eliminating a provision that any member of the public would consider to be eminent common sense.
One hour having elapsed since the commencement of proceedings on consideration, the proceedings were interrupted (Programme Order, 23 March).
The Deputy Speaker put forthwith the Question necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Amendment proposed: 1, in page 34, line 5, leave out Clause 58.—(David Taylor.)
Question put, That the amendment be made.
The House proceeded to a Division.
I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.
New Clause 19
Removing immunity of government departments from prosecution
‘(1) Section 63 of the Data Protection Act 1998 (application to Crown) is amended as follows.
(2) In subsection (5) for “a government department” substitute “the Crown Estate Commissioners”.’.—(Mr. Bellingham.)
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 38—Failure by a government department or public authority to comply with an assessment notice
‘(1) If a government department or public authority has failed to comply with an assessment notice the Commissioner may certify in writing to the court that the public authority has failed to comply with that notice.
(2) Where failure to comply is certified under subsection (1), the court may inquire into the matter and, after hearing any witness who may be produced against or on behalf of the government department or the public authority, and after hearing any statement that may be offered in defence, deal with the failure to comply as if it were a contempt of court.’.
Amendment 23, clause 153, page 98, line 20, leave out ‘within subsection (2)’.
Amendment 78, page 98, line 24, at end insert—
‘(1A) If a data controller has failed to comply with an assessment notice as requires steps to be taken, the Information Commissioner may certify in writing to the court that the government department or public authority has failed to comply with that notice.
(1B) For the purposes of this section, a data controller which, in purported compliance with an information notice—
(a) makes a statement which it knows to be false in a material respect, or
(b) recklessly makes a statement which is false in a material respect,
is to be taken to have failed to comply with the notice.
(1C) Where a failure to comply is certified under subsection (1A), the court may inquire into the matter and, after hearing any witness who may be produced against or on behalf of the public authority, and after hearing any statement that may be offered in defence, deal with the authority as if it had committed a contempt of court.
(1D) In subsections (1A) to (1C), “the court” means the High Court or, in Scotland, the Court of Session.’.
Amendment 24, page 98, leave out lines 25 to 29.
Amendment 133, page 98, line 25, leave out from second ‘is’ to end of line 29 and insert ‘not an excluded body’.
Amendment 79, page 99, line 19, at end insert—
‘(6A) Non-compliance with any assessment notice will be treated as a contempt of court.’.
Amendment 80, page 101, line 6, leave out ‘without the approval of the Secretary of State’ and insert
‘until the code has been approved by a resolution of each House of Parliament’.
Government amendment 25
Amendment 81, clause 155, page 109, leave out lines 7 and 8 and insert—
‘(4) The code must not be issued by the Commissioner until a statutory instrument containing the draft code has been approved by a resolution of each House of Parliament.’.
Amendment 82, page 109, line 10, after ‘must’, insert ‘not’.
Amendment 83, page 109, line 13, after ‘is’, insert ‘not’.
Amendment 84, page 109, leave out lines 21 to 27.
Amendment 85, page 109, line 30, after ‘under’, insert ‘annual’.
Government amendments 152 and 153
Amendment 86, schedule 18, page 183, line 1, leave out sub-paragraph (2) and insert—
‘(2) In subsection (1) for “he may serve” to the end substitute “he may serve the data controller, or a data processor, with a notice (in this Act referred to as an ‘information notice’) requiring the data controller, or data processor, to furnish the Commissioner with specified information relating to the request or to compliance with the principles.”’.
Amendment 87, page 183, line 5, after ‘(1)’, insert
‘“data processor” refers to a third party handling data on behalf of—
(a) a government department, or
(b) a public authority designated for the purpose of this section by an order made by the Secretary of State, other than an excluded body, as set out in section 41A(12);’.
Amendment 88, page 185, leave out line 21.
In addition to new clause 19, which stands in my name and those of my hon. and learned Friends the Members for Beaconsfield (Mr. Grieve) and for Harborough (Mr. Garnier) and my hon. Friends the Members for Enfield, Southgate (Mr. Burrowes), for Epping Forest (Mrs. Laing) and for Crewe and Nantwich (Mr. Timpson), I plan to discuss our amendments 78 to 88. I also want to comment on Government amendment 25.
Our new clause 19 would remove the immunity of Government Departments from prosecution, because the Government’s record on handling, storing and transporting confidential data is appalling. I am afraid that the Ministry of Justice is one of the worst offenders. A computer hard drive containing the details of up to 5,000 employees of the National Offender Management Service in England and Wales was lost by the private firm, EDS. Despite the loss having occurred in July 2007, the Justice Secretary was not told until September 2008. In August last year, the names and addresses, details of convictions and even jail release dates of almost 130,000 people were lost when a computer memory stick went missing. It was being used by an employee of a private contractor working for the MOJ. The Information Commissioner said at the time that the data were a “toxic liability”, and described the loss as “deeply worrying”.
The Ministry of Defence is another serial offender. Some time ago, the Defence Secretary of the time was forced to revise upwards the estimate of the number of laptops stolen from his Department in the previous four years from 347 to 658. Furthermore, in January last year, the then Defence Secretary revealed that an MOD laptop, which contained the details of 600,000 people, had been stolen from the boot of a naval officer’s car in Birmingham. The computer contained unencrypted lists of names, addresses, bank and driving licence details, national insurance and national health service numbers and so on—an appalling security lapse.
In 2007, Her Majesty’s Revenue and Customs had the so-called discgate scandal, in which 25 million records were lost. In November that year, the Chancellor of the Exchequer admitted that two CDs containing child benefit data had been lost in transit to the National Audit Office. Also in November that year, HMRC lost the personal details of 15,000 Standard Life pension holders, after a CD was lost in transit by an external courier.
Many other Departments have lost data, including the Department of Health, the Department for Work and Pensions and the Department for Communities and Local Government. Many of the subsequent inquiries revealed lax security procedures, confused chains of command and, above all, no proper accountability. Many Departments have a serious cultural problem, which is simply not being addressed.
Last year, the Secretary of State for Energy and Climate Change, who was then the Minister for the Cabinet Office, amid great fanfare launched new guidelines called “Data Handling Procedures”. He promised
“a culture that properly values, protects and uses information”.—[Official Report, 25 June 2008; Vol. 478, c. 26WS.]
He also announced stronger accountability mechanisms within all Departments, but unfortunately those changes have delivered no substantial improvements. In fact, they have delivered little. Proper sanctions are needed. The Bill contains no sanctions, and we feel strongly that immunity of Departments from prosecution should be removed. Only by applying such sanctions will permanent secretaries and civil servants make the prevention of loss of data a key priority. We need to send a strong signal to all Departments and agencies that cavalier and unprofessional attitudes to our personal data and privacy will not be tolerated. I hope that the Minister will accept our new clause.
I turn to our amendments 78 and 79. Amendment 78 is almost identical to new clause 38, which was tabled by the hon. Members for Hendon (Mr. Dismore) and for Oxford, West and Abingdon (Dr. Harris). The official Opposition, and particularly my hon. Friend the Member for Epping Forest, have said for some time that it is essential that the Information Commissioner be given more power to control and monitor holders of data. That is why we support the principles behind clause 153. However, the clause has one glaring gap, as it does not provide any enforcement powers. If the assessment notice is made, and its subject refuses to comply, the Bill does not allow for any immediate sanction.
Under our amendments 78 and 79, the Information Commissioner will be able to go to the county court, which must decide whether the assessment notice was properly issued, and whether there was a reasonable excuse for non-compliance. If the court decides for the commissioner, it will order the data controller to comply with the assessment notice. Failure to do so will result in the data controller being in contempt of court. We feel strongly that there is no point having an assessment notice regime without proper sanctions for non-compliance. As Sir Mark Walport and the Information Commissioner, Richard Thomas, said in their submission to the Committee:
“There are also no meaningful sanctions for failure to comply with the requirements of an Assessment Notice: this needs strengthening in order for it to be taken seriously.”
I hope that the Minister will accept amendments 78 and 79.
I am grateful to the hon. Gentleman for his comments about new clause 38. As he says, the Information Commissioner recommends such a proposal. The sanction comes at the end of a long chain of warnings and efforts to ensure compliance. If we get to the end of that long chain, something has obviously gone seriously wrong. Some effort is required to make compliance happen, and a contempt of court order can be absolved by compliance.
I am grateful to the hon. Gentleman for making that point, on which he can expand when he makes his speech.
Amendments 80 to 85 relate to clause 155, which sets up the data-sharing code of practice. They would ensure that there is an affirmative resolution of both Houses before the commissioner issues the data-sharing code. Given that the Secretary of State is removing the key data-sharing provision, clause 154, from the Bill, why is it necessary to have a data-sharing code? Is that not a little suspicious and illogical? Surely the Secretary of Sate’s credibility in the matter would be reinforced if he also withdrew clause 155; otherwise, people will conclude that if the power to set up a data-sharing code is left in the Bill, the Government will return at some stage with their totally unacceptable data-sharing proposals. However, if the Secretary of State does decide that the data-sharing code proposals must stay in the Bill, surely it makes sense to accept our amendments 80 to 85.
I turn to our amendments 86 to 88. In Committee, we discussed at length the apparent anomaly that the assessment notice regime applied to the public sector only. May I refer again to the submission to the Committee by Sir Mark Walport and Richard Thomas, the Information Commissioner? The submission pointed out:
“As we stated in the report, distinguishing between public, private and voluntary sectors makes little sense, especially as more information is shared across sectors whose boundary lines are forever shifting.”
The Information Commissioner went on to say:
“Private and third sector bodies frequently carry out work for public sector ones. It is common for charities, for example, to carry out functions on behalf of local government. As it stands, we could inspect the local council but not the charity.”
I argued in Committee that as a consequence of the private sector’s ever greater involvement with Government Departments, agencies and local government, there was an increased blurring of the barriers between the public and private sectors. I gave a couple of examples. The Crown Prosecution Service and the Solicitor-General have a large contract with what was LogicaCMG that covers the provision, support and maintenance of hardware and software applications used by the CPS, including the management of a number of large databases such as the witness management system and the graduated fee scheme for counsel.
Another example relates to the Department for Business, Enterprise and Regulatory Reform, which manages a large number of public sector databases but also has a number of private sector contractors. In fact, of its 166 databases, 75 are maintained by the Department but 90 are run by private sector contractors. Obviously, there is substantial blurring between the two sectors. Amendments 23 and 24 would bring the private sector into the assessment notice regime. The Minister has argued that such an extension to the private sector would place extra burdens on business and conflict with the Hampton principles. My party believes passionately in reducing the burdens on business, so it is hard to ignore the Minister’s concerns; she also raised various points about powers of entry. She feels that a more co-operative approach between business and the Information Commissioner would be desirable.
However, I submit that there is a compromise solution. Amendments 86 to 88 would extend the less severe and substantially less burdensome information notice regime to the private sector. Crucially, the information notices in schedule 18 do not confer powers of entry, so why does the Minister not accept the amendments as a way to extend the Information Commissioner’s powers to the private sector in a much less onerous manner? I urge the Minister to accept that argument. She has said clearly that she does not want the assessment notice regime to be extended to the private sector, and she has given her reasons for that, but surely our compromise solution would make a great deal of sense.
I turn to Government amendment 25. We argued in Committee as powerfully as we could that clause 154—it was clause 152 at the time—should be deleted. In response, the Minister gave numerous reasons why the clause was needed. We had a vote and lost it. Then we heard that the Government were in the process of climbing down—unfortunately, that was announced in the Sunday press, rather than in Committee or on the Floor of the House. The Secretary of State then tabled his amendment.
I am grateful to the Minister, and I do not want to be churlish. We had a vote and the clause stood part of the Bill when we came out of Committee, and we felt that we had to vote against it at the time. We are delighted that we helped win the argument and feel vindicated, and we should not be churlish. However, our relief and joy is coloured and tinged by our ongoing and grave concerns about the Government’s record and policy on data.
I mentioned earlier the Government’s appalling record on storing and handling data. We are concerned not only by the Government’s incompetence; of far greater concern are the fundamental flaws in their entire data policy. Only today we heard reports that ContactPoint, the Government’s child protection database, is in disarray. It was designed to help protect Britain’s 11 million children, but its launch has been delayed again after local authorities discovered loopholes in the system that was to hide the details of the most vulnerable young people in this country. ContactPoint has been described as almost entirely illegal by the Joseph Rowntree Reform Trust, and a spokesman for the Department for Children, Schools and Families said that it was working to resolve the problem.
You couldn’t write the script, and it gets worse. A recent report by Ross Anderson, professor of security engineering at Cambridge, concluded that at least 11 of the Government’s databases could be illegal. He went on to point out that the Government are spending a staggering £16 billion a year on data gathering and plan to spend another £105 billion on it in the next five years. Furthermore, almost every one of those database projects has signally failed to remain on budget.
In 2002, the then Prime Minister Tony Blair launched Connecting for Health, a massive £6.2 billion database for medical records; since then, the costs have more than doubled to £12.7 billion, two of the four contractors have pulled out and the launch has been put back to 2015. At the time, the then PM said:
“If I live in Bradford and fall ill in Birmingham, I want the NHS to be able to treat me”.
However, as Ross Clark, author of “The Road to Southend Pier: One man’s struggle against the surveillance society” said, thank goodness Mr. Blair did not fall ill in Stafford. As the Healthcare Commission made clear in its report, it was the Mid Staffordshire NHS Foundation Trust’s obsession with targets and data that critically undermined clinical judgment and the treatment of patients. The problem is that time and again the Government’s default position when faced with a crisis is to announce yet more databases and more infringements on our civil liberties.
There is no doubt that there is a serious terrorist threat in this country, but the Government’s response to the 7 July bombings was to announce that they would bring in an ID register—never mind that none of the bombers had ever tried to hide their identities. We obviously have serious problems with crime being out of control, and the Government have to do their best to combat it, but they are going to expand the national DNA database even though the overwhelming majority of crimes are committed by a small proportion of the population who are already on the DNA database.
Only yesterday morning, the Minister of State, Ministry of Justice, the right hon. Member for North Swindon (Mr. Wills), was opining in an extraordinary manner on the Sean Hodgson case. He pointed out that Mr. Hodgson would never have been released or won his freedom if it were not for DNA testing and databases. Of course Mr. Hodgson was released only because of DNA testing, but that had absolutely nothing to do with DNA databases; all that was needed was one DNA sample from him that did not match any of the key exhibits. The right hon. Gentleman was getting completely carried away. The problem is that when it comes to a crisis, the Government’s default position is to react in the only way they know: to announce yet further extensions of databases.
I should like to quote from the former Director of Public Prosecutions, Sir Ken Macdonald, who was referring to the proposed communication database when he said:
“We need to take very great care not to fall into a way of life in which freedom’s back is broken by the relentless pressure of a security state.”
Of course we welcome the Government’s withdrawal of clause 154. However, as I mentioned, our joy is tempered and coloured by that appalling catalogue of failings. We need not only a cultural change, but a fundamental change of Government. We welcome what the Government have done, but there is still a long way to go.
As the hon. Member for North-West Norfolk (Mr. Bellingham) intimated, the most important amendment in this group is amendment 25. The hon. Gentleman gloated a little, so perhaps I will be allowed to: I was glad that one of my amendments—the one to remove clause 154—had been signed not only by the representatives of the Joint Committee on Human Rights, but by the Government. I am glad that they have promoted my modest amendment into Government amendment 25.
The Government are entirely right to withdraw the data-sharing proposals, which were far too broad for the problem that they were meant to solve. As Ministers repeatedly said, some data sharing can be beneficial. No one denied that; the question was about the power that had been created to deal with that particular point. The Bill proposed—and continues to propose until amendment 25 goes through—to allow orders from the Secretary of State to permit data sharing between any people anywhere in the world, for the purposes of furthering any Government policy. The orders were capable of overriding the Data Protection Act 1998, the Human Rights Act 1998 and any other relevant legislation. That final point, especially the possibility that the data-sharing orders would override the Data Protection Act, was the key problem and the point at which the Government rightly decided to give way. Clause 154—or clause 152, as it was—was never proportionate and never had adequate safeguards.
The hon. Member for North-West Norfolk is right to point to the context—one in which Governments collect vast amounts of data and then use them badly, incompetently or in many cases, as Ross Anderson from the university of Cambridge observed, illegally. The Government need to be aware of that context when they return to the data-sharing proposal. As I understand it, they intend to do that not in this Bill but at a later point. I urge them to consult properly, not only with the usual suspects but with all the organisations that felt deeply that clause 152—now clause 154—was the wrong way to go, including the British Medical Association and all the Opposition parties. Otherwise, their next attempt to write a clause to do with data sharing may well turn into a colossal waste of time, as this one has proved to be.
With that small amount of gloating over, let me turn to the amendments.
The hon. and learned Gentleman requests more, but I am sure that that is enough for the time being.
I want to speak briefly to amendments 23 and 24, which are similar to amendment 133, tabled by members of the Joint Committee on Human Rights. As the hon. Member for North-West Norfolk said, they seek to extend to the private sector the Information Commissioner’s new inspection powers under the new assessment notice procedure. As things stand, assessment notices have two problems, the first of which—it was mentioned by the hon. Member for Hendon (Mr. Dismore)—is that there is no enforcement mechanism for the new assessment notices. The obvious way to solve that is the application to court route, because that is more challengeable and more open than a warrant route. I therefore support amendments, such as new clause 38, which attempt to change that situation.
The other problem addressed by the amendments is the coverage of the assessment notice system. For reasons that remain obscure, but which might have had something to do with the lobbying by the CBI and business interests that broke out when my hon. Friend the Member for Cardiff, Central (Jenny Willott) and I moved amendments in Committee, the assessment notice procedure is confined to the public sector, and even within that it is confined to directly controlled organisations and does not cover even private organisations carrying out public functions under contract. That is unacceptable. Private organisations control vast amounts of data, and there is constant concern about how they use them. The Information Commissioner is clear that there are more complaints about the use of data by private sector organisations than use of data by the public sector. Sometimes the Government’s defence in response to examples of their incompetence in dealing with data such as those cited by the hon. Member for North-West Norfolk is to say, “Well, the Government are no worse than the private sector at this sort of activity.” That is a somewhat feeble defence, but it illustrates the point that these problems are not confined to the public sector.
As I understood it in Committee, the Government’s case for leaving out the private sector is that it collects data voluntarily, which makes it different from the public sector in that regard. I cannot accept that, for three reasons. First, there are the reasons given by the hon. Member for North-West Norfolk, which are dealt with in amendments 87 and 88. There are many examples of private organisations working under contract to the Government and which have collected information from the Government that the Government got on a non-voluntary basis.
Does my hon. Friend agree that the number of people who are getting caught out by that is increasing? For example, people who are facing unemployment in the current economic crisis have had their information passed to private sector companies for assistance with getting back into work. Given that they number 2 million and rising, every day there are more and more people whose data, not voluntarily given, has been passed to the private sector.
Yes, that is the case. One has to take into account the interaction of different Government policies. The more the Government want to use the private sector and the voluntary sector to a greater extent in the delivery of services, the worse the problem will get.
The second reason I do not accept the Government’s point is illustrated by the recent controversy about Google Street View, where Google supplements its maps with photographs of every house and building in many towns and cities. That demonstrates that private organisations, even when acting purely as such and not working for the Government, do not confine themselves to data they acquire voluntarily. My house is on Street View; Google did not ask me about it, and I am sure that it did not ask anybody else.
Thirdly, what worries people about data is what can be done with them, especially data they gave voluntarily at some point in the past without realising how they could be used at some future point—for example, data about which websites someone has visited or which products they have bought from a shop. Bringing all those forms of data together using sophisticated data-mining techniques and analysis can reveal vast amounts about people that they did not intend to reveal, even though technically they voluntarily allowed the data to be handed over to private organisations.
Liberal Democrat Members think that there is an overwhelming case to extend the scope of the assessment notice system beyond the public sector, as narrowly defined. That view is also taken by the Information Commissioner. After all, the assessment notice system introduced by the Bill is a very gentle form of preventive intervention, not the full panoply of the law. Given that, and given the other options that the Information Commissioner has, there is a strong case for the broader extension of these powers. I urge the Government to resist the lobbying that has been going on and to look at the point of principle from the position of ordinary members of the public who are worried about what is being done with the data they handed over.
I rise briefly to speak to the two amendments tabled in my name and those of the hon. Members for Hendon (Mr. Dismore) and for Ealing, Southall (Mr. Sharma), as members of the Joint Committee on Human Rights. As we have heard, amendment 133 is analogous to amendments 23 and 24.
The CBI told the Public Bill Committee that there were not sufficient safeguards to protect the privacy of individual data controllers in the private sector, but we concluded, after examination, that the safeguards already in the Bill are significant; indeed, they provide greater protection than other compulsory powers of entry, search and seizure in the Bill. For instance, an assessment notice must specify the time at which a search or other inspection will take place and the time within which an individual data controller must comply. Rights to appeal against the term of any notice are provided, and there is express protection for legally privileged material. Those are all safeguards that we had called for in respect of other Bills when the Government had said that they would put them only in secondary legislation. In this case, they are in the Bill and yet the CBI is still concerned.
We thought that the CBI’s objections were insufficient, and possibly even invalid, and reinforced the point, which has just been made, that there is a significant amount of contracting out of public functions to private data controllers. There should therefore be no exemption or lower degree of protection in respect of the powers of the Information Commissioner in those cases, at the very least. I would be grateful if the Minister addressed those arguments.
Our other point relates to new clause 38. The Information Commissioner has called for the power of sanction, and we consider the additional powers for the commissioner to be a human rights-enhancing measure. We noted the Government’s view that it would be unusual for a Department or other public body to ignore an assessment notice or fail to comply with its terms, but there is no reassurance in the Bill that that will not be the case, which is why we tabled the new clause. I hope that the Minister will respond to that point.
I am speaking a little sooner than I expected, but there we are. I begin with Government amendment 25, which is at the heart of this grouping on data sharing and data protection, and the associated consequential amendment 153. They will remove from the Bill the power to establish new information-sharing gateways by secondary legislation. The proposal in clause 154 for information-sharing orders stemmed from a recommendation of the independent data-sharing review, conducted by the commissioner, Richard Thomas, and Sir Mark Walport, the director of the Wellcome Trust. They recommended changes to the legal framework for data sharing, in part to support better public service provision. To counterbalance that power, the review recommended that there should be a transparent and consistent mechanism ensuring greater scrutiny while reducing the scope for confusion.
Following the spirit of those recommendations, clause 154 included a raft of safeguards to ensure an appropriate level of public and parliamentary scrutiny. However, in Committee and elsewhere, we heard and understood the concerns that hon. Members and others expressed about the information-sharing gateway proposal, including that the power was open to misuse. It is important to make it clear that it was never the Government’s intention to allow indiscriminate information sharing, regardless of any protections set up by the Data Protection Act.
After a thorough consideration of the views expressed by Members of this House and by such outside organisations as the British Medical Association, which I met to discuss this very point, we have concluded that a more in-depth analysis of the features of an information-sharing power was needed. It is therefore right that we withdraw clause 154 from the Bill while we undertake that further work. That is a good example of how scrutiny in this place works, and although those who spoke for the Opposition parties had a small go at gloating, they did not go overboard. I appreciate that and I am grateful to them. We accept the humble pie that they proffered to us.
The Government are clear that there are many benefits to sharing data, as I said in Committee. To deliver high-quality public services, Departments need to share personal information in a secure and appropriate fashion. Through such data sharing we can improve opportunities for the most disadvantaged, provide customer-focused public services, reduce the burden on businesses, implement policies effectively and detect fraud. We do not underestimate the risks attached to information sharing, nor will we let them blind us to the potential benefits. I assure the House that in taking the matter forward we will consider carefully the views expressed by all interested parties.
The other Government amendment in this group, amendment 152, requires a brief explanation. New section 41A of the Data Protection Act 1998, inserted by clause 153 of the Bill, provides the Secretary of State with the power to designate, by order, those public authorities subject to the assessment notice regime. As our published delegated powers memorandum makes clear, we intended that that order-making power be subject to the negative resolution procedure. However, owing to an oversight we omitted to amend section 67 of the Data Protection Act, which determines the level of parliamentary scrutiny for all delegated powers in that Act. The amendment makes good that omission.
Let me now move on to the other amendments that relate to assessment notices. They deal with three issues: the scope of the assessment notice regime, the sanctions for non-compliance and their relationship with civil penalties under section 55A of the Data Protection Act. Amendments 23 and 24, in the name of the hon. Member for Cambridge (David Howarth), and amendment 133, tabled by my hon. Friend the Member for Hendon (Mr. Dismore), deal with scope. Assessment notices constitute an important step towards improving public trust and confidence in the handling of personal information by public sector data controllers. They will create a formal system based upon the current arrangement of spot checks undertaken on Government Departments by the Information Commissioner, which aim to raise the awareness and compliance of public bodies with data protection principles.
Clause 153 represents the statutory base for the commitment made by the Prime Minister in November 2007, after the loss of the data from Her Majesty’s Revenue and Customs to which the hon. Member for North-West Norfolk (Mr. Bellingham) referred, to provide the Information Commissioner with the power to spot check Departments. That power is therefore a specific answer to a specific issue. As the clause stands, it is already possible to include certain private or third sector data controllers within the scope of assessment notices. That would be in cases where those data controllers appear to the Secretary of State to exercise functions of a public nature, or are providing, under a contract made with a public authority, any service whose provision is a function of that authority.
There are sound arguments for applying a higher level of scrutiny to public sector bodies. Data controllers in the public sector handle a variety of sensitive personal information that is necessary to fulfil their responsibilities, such as providing health and social services, fighting crime, and detecting fraud. Most of the information handled by public sector data controllers, or those working on their behalf, is vital to determine entitlements, responsibilities, and obligations. That citizens must provide their personal information to access essential services is, in this context, a defining feature of the relationship between the citizen and the public authority.
For the private sector, the ability of the public to choose to go somewhere else is a powerful driver, encouraging businesses to look after personal information. Extending assessment notices to the private sector could, as a result, act as a significant additional regulatory burden. While I remain to be persuaded of the case for applying the assessment notice regime to all data controllers, we will continue to consider the points made by the Information Commissioner and by some Members of this House in support of those amendments. However, any move to include all data controllers within the scope of assessment notices would need to be carefully considered. We consider that clause 153 strikes a fair balance between the need to enhance the Information Commissioner’s powers and the potential impact of those changes in view of the wider regulatory framework.
Amendments 78 and 79 and new clause 38 deal with the issue of non-compliance. Specifically they seek to deal with non-compliance with an assessment notice as if it were a contempt of court. Again, I remain to be persuaded that a bespoke sanction for non-compliance with an assessment notice is needed. In practice, it is difficult to envisage a public sector body refusing to comply with an assessment notice, considering the bad publicity that would ensue from such a notice. That said, the Information Commissioner made it clear that he would like some kind of penalty or sanction for refusal to comply.
Of course, the Information Commissioner already has a range of enforcement powers available to him for a failure to comply with the Data Protection Act. Information notices can be used alongside assessment notices if he reasonably requires information to assess compliance with data protection principles. If he discovers a breach of those principles during an assessment, he can issue an enforcement notice to compel the data controller to comply with data protection obligations. He also has powers to apply for a search warrant under schedule 9 to that Act. Arguably, any greater powers would be disproportionate and inconsistent with broader Government policy about the investigatory powers of regulators. Again, however, I am prepared to reflect carefully on the arguments that have been made as the Bill makes further progress.
Amendment 88 would remove the proposed exemption from liability for a civil monetary penalty for serious breaches of the data protection principles in cases where information about such a breach comes to light following the issue of an assessment notice. Those monetary penalties, which are provided for in section 55A of the Data Protection Act, will apply in cases of deliberate breach and when a data controller is aware that there is a risk of serious breach but fails to take reasonable steps to prevent it.
By contrast, as I have indicated, assessment notices are a valuable tool to raise compliance levels and to educate public bodies that are being assessed. That is why they do not require the existence of suspicion of non-compliance, or actual non-compliance, with the data protection principles. They are random spot checks. Given the nature of the assessment notice regime, we do not consider it appropriate for information gathered through that process to render a data controller liable to a civil monetary penalty. In any case, the commissioner can still employ his other enforcement tools as and when required throughout an assessment. For example, if he discovered a breach of the Data Protection Act during an assessment, he could still take enforcement action. As I have said, he could issue an enforcement notice under section 40 of that Act.
New clause 19 would limit the existing Crown immunity under the Data Protection Act so that Government Departments would be open to prosecution under it. As the hon. Member for North-West Norfolk will know, Crown immunity means that emanations from the Crown are not ordinarily liable to prosecution for offences created either in statute or in common law. That includes Government Departments, and the limitation on the prosecution of Departments includes the offences in that Act.
That is not to say, however, that Departments are not subject to adequate sanctions for breaches of data protection principles. They can still be subject to enforcement notices, claims for damages in a civil court or civil monetary penalties. That last point is particularly important because it means that financial penalties can be imposed on Government Departments. That range of other sanctions and penalties is sufficient for me to remain unconvinced that disapplying the normal rules on Crown immunity would make any material difference.
Amendments 80 to 84 would make the Information Commissioner’s codes of practice on assessment notices and data sharing subject to the affirmative resolution procedure. The assessment notice code of practice is not subject to any parliamentary procedure, whereas the data-sharing code is subject to the negative resolution procedure. Given the scope of those codes, I believe that we have probably got the level of parliamentary scrutiny right. They are not on a par with, for example, the codes of practice issued under the Police and Criminal Evidence Act 1984. However, if we have misjudged the level of scrutiny for those two codes of practice, I am pretty confident that the Delegated Powers and Regulatory Reform Committee in the other place will be quick to tell us that. We will, of course, consider carefully any recommendations that it makes.
Amendment 85 would require the Information Commissioner to conduct an annual review of the data sharing code of practice. The Bill already obliges the commissioner to keep the code under review, and he is required to update it if he becomes aware that its content could result in the UK being in breach of any of its community or international obligations. My concern is that the amendment could prevent the code from being revised quickly once a breach has been identified. It might be a little too rigid in calling specifically for an annual review. The Bill will give the Information Commissioner scope to reconsider and review the code as and when he sees fit. We believe that that is right, given that his role as the independent data protection regulator is to provide the most up-to-date guidance to facilitate data controllers’ compliance with the Data Protection Act.
Finally, amendments 86 and 87 deal with information notices. Section 43 of the Data Protection Act provides the Information Commissioner with the power to issue a data controller with an information notice. That can require a data controller to provide the commissioner with specified information in a specified form, to assess compliance with the data protection principles. The commissioner can issue a notice to any data controller as long as he reasonably requires information to determine their compliance. Failure to comply with an information notice is a criminal offence. The amendments would extend the commissioner’s power to issue an information notice to data processors as well as data controllers. The meaning of a data processor is limited to those handling data on behalf of Government Departments and designated public authorities.
The structure of the Data Protection Act places the responsibility for personal information on the data controller, not the data processor. Introducing a power to serve a notice on a data processor could shift the regulatory balance of the Act. All data being processed by or on behalf of an organisation must be covered by the data controller’s registration. It is the responsibility of the data controller to obtain the information that the commissioner requires. I fear that the amendments would represent a significant change to the data protection regime, so the matter might be better suited to consideration in the review of the European directive that is under way. I therefore hope that the Opposition will not press those amendments.
The hon. Member for Cambridge expressed concern about the Information Commissioner and Google Street View. I have to say that I could not find my street on it, but that might be because I am sometimes technologically illiterate when it comes to such things. I understand that the commissioner is keeping the situation under review, and of course anyone can request to have their image removed. I understand that Google is quite surprised by how few people have so far asked to have their image removed, but that is another matter.
Has the Minister asked the Information Commissioner to consider the implications for public services of some of the issues that have arisen from Google Street View? I know that it has been online for only a couple of days, and I have to confess that it is quite intriguing to play with, but I understand that in one case, a woman fleeing domestic violence was photographed outside her new house. There are therefore implications for the police, councils and so on. Has she asked the commissioner to look into that?
The hon. Lady makes a good point, and she is quite right. Although it may be fun playing about with these things on computers, there are potentially sensitive issues attached to them. I shall certainly ensure that the Information Commissioner takes up that point when he reviews the situation.
I wish to respond to some of the points that the hon. Member for North-West Norfolk made. He asked why we needed a data-sharing code of practice if we are dropping the data sharing order-making power. Of course, the code will be wider than the order-making power and contain practical guidance on the sharing of personal data and other guidance that promotes good practice in data-sharing. It will ensure that the availability of practical and up-to-date guidance about how to share personal data is in accordance with the requirements of the Data Protection Act.
The hon. Gentleman also asked about extending information notices to the private sector and suggested that his amendments might be seen as a compromise. Information notices already extend to private sector data controllers because they can be served on any data controller. I hope that that answers those points.
Although I cannot commend any of the amendments that my hon. Friend the Member for Hendon, and the hon. Members for North-West Norfolk and for Cambridge have tabled, I want to offer an assurance. We will continue to listen carefully to the arguments for extending the scope of assessment notices and providing some form of sanction for non-compliance. I do not want to raise expectations, but I also do not want to give the impression that clause 153, as drafted, represents the last word on the matter. I hope that, if and when we make further changes to that provision, the hon. Member for North-West Norfolk will remember that I said it here first.
We are sorry to learn that the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle) is not well. She has an inner ear infection—anyone who has had one knows how incredibly painful and horrible it is. We therefore wish her a speedy recovery and speedy return to her place in the Department.
The Minister has given her usual courteous and effective explanation of the Government’s position. I accept her comments about Government amendment 25 and we are grateful for her remarks. Furthermore, her response to the new clause and amendments that we tabled was reasonably encouraging. There will be ample opportunity to revert to those matters in another place. We have a top Tory legal team in the Lords and they will revert to the issues. I am sure that they will be encouraged by her comments, and I therefore beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Amendment made: 25, page 101, line 12, leave out clause 154.—(Bridget Prentice.)
Amendments of the Data Protection Act 1998 (c. 29)
Amendments made: 152, page 182, line 26, at end insert—
‘4A In section 67 of that Act (general provision about orders etc under the Act) in subsection (5)(a) insert at the appropriate place— “section 41A(2)(b),”.’.
Amendment 153, page 182, line 29, leave out ‘(except in Part 5A)’.—(Bridget Prentice.)
With this it will be convenient to discuss the following:
Amendment 21, page 61, leave out lines 41 and 42 and insert—
‘(d) the relative cost-effectiveness of different sentences in relation to preventing re-offending;’.
Government amendment 143.
Amendment 22, clause 104, page 62, line 4, leave out subsections (2) and (3) and insert—
‘( ) The guidelines must state the appropriateness of imposing different types of sentence for the offence with reference to characteristics of the offender and to characteristics of the offence, including the seriousness of the offence in terms of its effects on victims and the impact different sentences would have on victims.’.
Government amendments 144 to 146.
Amendment 43, clause 108, page 65, line 12, leave out ‘follow’ and insert ‘have regard to’.
Amendment 74, page 65, line 12, leave out ‘follow’ and insert ‘take account of’.
Amendment 75, page 65, line 15, leave out ‘follow’ and insert ‘take account of’.
Amendment 73, page 65, line 17, leave out from ‘court’ to end of line 18 and insert
‘is of the opinion that it would be unfair to the offender to do so.’.
Government amendments 147 and 148.
Amendment 76, clause 110, page 67, line 14, leave out ‘must’ and insert ‘may’.
Amendment 77, page 67, line 17, at end insert—
‘(aa) the number of places available and unfilled in the prison system at the date of the assessment,’.
Amendment 44, page 67, line 28, at end insert—
‘(6) Whilst the courts may have regard to the availability of correctional resources, for the avoidance of doubt the courts must not pass a sentence that is wholly determined by resource assessments which are expressly intended for the guidance of the Secretary of State in planning for and providing such custodial or community sentences as he advises Parliament, and it considers, necessary in the light of such assessments.’.
Amendment 161, page 67, line 28, at end insert—
‘(6) The Secretary of State must monitor any resource assessment published under this section and must ensure that, so far as reasonably practicable, adequate resources as determined by the resource assessment are made available for the implementation of the guidelines.’.
Government amendments 149 and 150.
We now deal with the provisions on sentencing, especially on the Sentencing Council and sentencing guidelines. I support the basic idea in the Bill. It has been a long time coming and various methods and versions were proposed, but the underlying idea was always the same: we should provide for strengthened national powers for a body that includes judges and non-judges and lays down guidelines for sentencing. The underlying idea all along has been more consistency in sentencing and more understanding of the sentences that are passed. So far, so good. I believe that hon. Members of all parties accept that.
The difficulty has always arisen with going beyond the simple aim of extra consistency with extra understanding. The Government have got into trouble by trying to make one of the leading goals of the Sentencing Council and sentencing guidelines simply to save money by various means, including the fairly laudable one of making the criminal justice system more predictable. The problem is that that creates an incentive to make the guidelines far too rigid, to the extent that one could end up with the position in some United States jurisdictions, where the guidelines are so rigid that there is no judicial discretion. The Government have rightly moved from the rigid model, but also have to admit that the benefits that it would have brought in financial predictability have been somewhat compromised.
I am not against going beyond aiming for consistency in the sentencing guidelines. My overriding concern is not the total amount that the Government spend on sentencing, but the direction of the criminal justice system. I especially want the guidelines to help further the aim of turning the criminal justice system around so that its main purpose is to reduce reoffending by imposing sentences that work, as opposed to those that simply sound tough.
I am fortified in my view by not only members of my party, but members of other parties in the House and members of the Justice Committee. Reducing reoffending should become a central aim of sentencing. Other matters cannot be ignored, but when reducing reoffending is ignored, the result is inevitably that crime is higher. There are more victims. The Government are right that victims and concern for them should be at the heart of the criminal justice system, but that must include potential victims. Only by reducing reoffending—most offending is committed by those who have done things in the past—do we genuinely put victims, especially potential victims, at the heart of the system.
I endorse the hon. Gentleman’s comments. I signed amendments 20 and 21 because it is a weakness not to specify the purpose of the Sentencing Council. I agree that, if it is about anything, it must be about reducing reoffending. Does the hon. Gentleman recall that, when we took evidence about what victims want, we were told that, other than wanting the offence that victimised them not to have happened, they wanted it not to happen again? Not only potential victims, but those who are already victims would therefore endorse the view that the priority should be reducing reoffending.
I thank the right hon. Gentleman for that important point. Sometimes, we in politics misunderstand what the public tell us about crime. We often think that they are telling us to be tougher and harder for the sake of it, but I do not believe that they are. When the public demand tougher sentencing, they want it to produce the result that the right hon. Gentleman outlined: to reduce reoffending. We must ask ourselves whether tougher sentences would achieve that. If the evidence shows that they would not, our duty is to ensure the imposition of sentences that do. We are perfectly capable of making those decisions, but bound to take into account what the public want from sentencing. As the right hon. Gentleman said, they want to reduce the risk of becoming a victim of crime in future. That is the point of amendments 20 and 21.
We know more about what works and what does not in sentencing than might be supposed from reading the newspapers. Sentencers should therefore be encouraged to use the knowledge that has been accumulated and is accumulating about what works. The best way of achieving that is not through individual sentencers learning more about the evidence, but through the guidelines.
For example, we know that short prison sentences do not work in reducing reoffending. On the other hand, restorative justice works—it is approximately a quarter more effective than other sentences. We know that from randomised controlled trials—the best evidence that one can collect. We know that short, sharp shocks and scaring-people-straight programmes—taking youngsters to jail and saying, “Look, here’s a prisoner, this will happen to you”—do not work. Indeed, in the “Scared Straight!” case, such a programme made things worse. The evidence shows that they increase crime.
Surely the hon. Gentleman’s point is rather less absolute and is, in fact, a relative one. The point is not that short sentences never work nor that effective community sentences always work. There is no doubt—the reoffending data are made public—that offenders are less likely to reoffend if they have received an effective community punishment than they are if they have served a short sentence. However, offenders are also less likely to reoffend if they have served a very long sentence—not that I am recommending that. My last point, which is about the dilemma facing the courts and policy makers, is that in almost every case where a short sentence is given out by the courts, it is given because the offender is one of those who has been given a community sentence and has failed to stop his reoffending. That is the dilemma for the courts and that is why they are bound to resort to short sentences.
I agree with the Secretary of State that the debate is not about absolutes; it is about tendencies and risks. However, the rational approach to sentencing must always be to use all the information that we have. All I am saying is that that information should be built into the sentencing guidelines.
The Secretary of State is right in his analysis of the effect of some short sentences and the effect of longer sentences, but we also need to bear in mind something that might be missed if one takes what he said at face value. Those who get longer sentences tend not to be the chaotic characters who get short sentences; rather, they tend to be armed robbers or professional criminals. They are therefore altogether better able to look after themselves in prison and outside it, subject to being caught, whereas short-term repeat offenders are, by and large, chaotic characters who commit crimes to fuel a drug habit. By their very nature, they are less susceptible to the injunctions of the criminal justice system. The Secretary of State’s facts were correct, but the inferences that we draw from them need to be carefully studied.
That is an important point. In cases of domestic murder, for example, the chances of reoffending are usually very low, which will skew the statistics that the Secretary of State used.
We know that for the type of offender that the Secretary of State was talking about—those with chaotic lives who sometimes find that they are sent to prison because the courts lose patience and cannot think of anything else to do with them—drug and alcohol treatment programmes are more effective, although not always effective, when delivered in the community than they are when delivered in prison. The reasons are obvious. Alcohol treatment, for example, is clearly the best way of dealing with violent offenders, even though some would say that all violent offenders must always be sent to prison. Alcohol and drug treatment programmes are far cheaper when delivered in the community than they are when delivered in prison. We could run more of them, and therefore prevent more crime, if we allocated our resources properly.
We know that what works best for those whom we have to put in prison—the Justice Secretary is right: there are some people whom we have to put in prison—in reducing reoffending are training, education and work programmes. In fact, it turns out that those programmes are cheaper and more effective in prison than they are outside it, for various reasons. That tells us the direction in which prison policy should go, not just the direction in which sentencing should go.
All I am saying is that we need a dynamic system in which whatever we know from the results of research is built into the process of drawing up the sentencing guidelines. That is all that amendment 20 aims to achieve.
One issue in this debate is costs and the extent to which they should be a relevant consideration in criminal justice policy. Let me make it plain that I have absolutely no objection to considering the relative costs of sentences in deciding what should be in the guidelines. It seems obvious that if two sentences are equally effective in reducing reoffending, we should use the cheaper one, because we can do more of it and prevent more crime in the long term. However, I hope that the Government will make it clear that that is the not the same as making sentences in individual cases respond solely to cost, because not only individual cases would be affected. In fact, given the disparate nature of sentencing, doing that would probably not be cost-effective, either.
It is also important to distinguish between the total resources available to the criminal justice system and the relative costs of different sentences. Sentencing guidelines should take into account relative costs, but that does not mean that they should take into account the total resources available to the system. That is the Government’s business. It is for the Government to ensure that the resources are available to make sentencing in the criminal justice system work. As I understand it, that is the spirit of amendment 44, which has been tabled by Government Back Benchers.
I am sorry. There are a number of amendments to a similar effect.
Overall, there has always been a tension between the courts on the one side, asserting their independence to pass sentences that they think are just, and the Government on the other side, trying to have a criminal justice policy. The methods that we have used so far to try to bring the two together have inherent problems of their own. Sentencing guidelines cause the problem, which I am sure the hon. and learned Member for Harborough (Mr. Garnier) will highlight, of reducing the discretion available to judges. Judges will plainly resent that. On the other hand, if we have only unguided judicial discretion, people in the Secretary of State’s position will have to make resource provision for a vast number of sentences that are never used. That would massively increase the cost in the system and mean that resources were not being put to their best use for reducing crime.
There might be an even better way forward than the Bill, which is for the evidence that I suggest should be built into the sentencing guidelines process to be built into the Department’s policy-making process, too. If the Sentencing Council and the Department were working from the same evidence about what worked and if they had the same goal of putting what works to reduce reoffending at the heart of the system, the co-ordination of what sentencers do with what the Government do would be more automatic than it is in a system in which one side tries to tell the other what to do.
However, perhaps that is a counsel of perfection. I concede that the Bill is, on the whole, a step forward, but I ask the Government to reconsider in detail how what works to reduce reoffending can be built into the system.
I want the Sentencing Council to be a success and I want it to be effective, and I know that my right hon. Friend the Lord Chancellor wants that, too. My concern is that the Bill as drafted does not offer any certainty that the Sentencing Council will be effective. There is no certainty that it will address in sentencing guidelines the need to reduce reoffending or to change the attitudes of courts by ensuring that that is at the front of their minds.
I am not so concerned about the courts’ ability to deal with the very serious cases of murder or with criminal gangs and so forth—those matters can be left for judges to decide—but I do not think that judges have demonstrated an ability to understand the need to intervene on prolific low-level offenders or the need to nip offenders in the bud. There is considerable amount of evidence, in work funded by the Esmée Fairbairn Foundation, that taking judges out to see the work of community sentences can be very effective in improving the standard of sentencing.
In the Public Bill Committee I offered three propositions and I very much hope that my right hon. Friend the Secretary of State will take them seriously. If he does not accept the two amendments proposed by the hon. Member for Cambridge (David Howarth), I hope that he will think further and perhaps introduce amending provisions in the other place.
The first of my three propositions is that people should be appointed to the Sentencing Council on the basis of their capacity to evaluate evidence on the effectiveness of sentences. I suggested amendments in Committee to put that directly into the Bill. At the moment, the council looks too much like a comfortable judges’ club. The question of effectiveness that the hon. Member for Cambridge underlined in moving the amendments is absolutely critical to whether the Sentencing Council is going to be a valuable addition or not.
Secondly, I believe that the Sentencing Council should be given a clear purpose, which is absent from the Bill. We discussed that in a very good debate in Committee and I hope that my right hon. Friend will take it on board and set out what the Sentencing Council is for in a new clause in the other place.
My final point is the need to clarify clause 103, which specifies five principles to which the council must have regard. The reference to
“their relative effectiveness in preventing re-offending”
appears only in the second half of the fourth of those items. That would be made more explicit if we lifted it up the agenda by accepting amendments 20 and 21. If my right hon. Friend will not accept those propositions today, I urge him to make it absolutely clear in the Bill that this place expects the Sentencing Council to add value to the work of the courts and to attach great priority to advising the courts on what works in reducing reoffending.
I want briefly, if I may, to discuss some of the amendments tabled by the Government and by the Liberal Democrats, but also to concentrate on my own amendments 43 and 44, which, to my mind at least, describe the difference between us and the Government in a fairly effective way. Amendment 43 deals with whether the sentencer should “follow” or “have regard to”—or as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) would prefer, “take account of”—the directions of the Sentencing Council.
There is no difference.
As my right hon. and learned Friend says truthfully and entirely sensibly, there is absolutely no difference between what lies behind his amendments and mine. Amendment 44 deals with the resource implications of resource assessments and how they should affect the discretion of sentencers—a point brought out by the hon. Member for Cambridge (David Howarth).
Let me deal briefly with the other amendments and then come back to my own. Just before doing so, however, I declare an interest in that as a recorder, I will have to be guided by the Sentencing Council, just as I am already guided by the Sentencing Guidelines Council at the moment. I have some understanding in a practical sense of the effect of these types of arrangements—[Interruption.] It looks like the hon. Member for Cambridge is laughing at one of his own jokes.
I do not think that there is much difference between us about the importance of the need to reduce reoffending. Both in Committee and this evening, we have all suggested that reduction of reoffending is a highly important aim of the criminal justice system, and it has to be a priority. In our paper published last March—it was written by my hon. Friend the Member for Arundel and South Downs (Nick Herbert) and me and was entitled “Prisons with a Purpose”—we outlined our plans for the reform of the prison system and of the non-custodial sentencing system. At the heart of our paper was a section dealing with what we called “the rehabilitation revolution”. We wanted to see far greater emphasis placed in the prison and non-custodial sentencing system on the rehabilitation of offenders—so that they do not reoffend. This is now largely uncontroversial—[Interruption.] The Minister of State, Ministry of Justice, the right hon. Member for Delyn (Mr. Hanson), says that it was before; it is just a question of getting on and doing it. He and his hon. Friends have had 10 years to do their best; we look forward to having an opportunity, if the electorate so decides.
I gave evidence to the investigation called by the Centre for Social Justice, which is chaired by my right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith), who asked Jonathan Aitken to produce a report on the current state of our prisons and what needs to be done to improve them. That report was published, Mr. Deputy Speaker, as you may know, earlier this week or over the weekend. I am happy to say that a good deal of what is in the document coincides with or is drawn from my own evidence to the investigation and from our document “Prisons with a Purpose”.
The document produced by the Centre for Social Justice is a very big document, but it is worth reading. I am sure that both the Secretary of State and the Ministers of State have it on their reading list. [Interruption.] I am grateful to the Secretary of State. Irrespective of our party differences, there is a mine of information in it. Some of the conclusions arrived at will not surprise Ministers, but I hope that some of them perhaps will. The Conservative party’s attitude to the criminal justice system has, if I may say so, taken—
That is the expression used by my hon. Friend, and I would say that the truth that was always there has simply been revealed—but perhaps this is a distinction without a difference.
On judicial discretion, I am not asking for a judicial free-for-all. I have a proper understanding, I hope, of the sentencing exercise. I said it before in Committee and I will say it again now: sentencing is probably the most difficult thing that a judge has to do in the criminal justice system. Yes, judges—and magistrates, such as the right hon. Member for Cardiff, South and Penarth (Alun Michael)—have to consider issues of fact and of law, but I would suggest that the sentencing is the most difficult and complicated aspect of the work of the criminal courts. Yes, guidance from the Court of Appeal criminal division and from the Sentencing Guidelines Council, or the Sentencing Council, and indeed from Parliament is always helpful—indeed, more than helpful; it is very useful.
We accept that judges have to sentence within a range of sentences laid down by statute or by the guidance of the higher courts and by the Sentencing Guidelines Council. Where I think we—that is to say, the Government and the Conservative party—differ is on the tightness of the link between the sentencing guidelines and the independence of the judge or the magistrate to apply the sentence that is just in the case before him.
The right hon. Member for Cardiff, South and Penarth said today and in Committee that he was not so much worried by the sentencing of serious criminals who get the longer sentences; he was more concerned about the way in which low-level persistent offenders are dealt with. I think that he is right to have that worry, because unless we stop such people reoffending, they constitute a continual public nuisance. They are an expense, and they cause untold misery to the householders, owners of businesses, shopkeepers and so forth who are predominantly the victims of acquisitive crime committed with the aim of feeding a drug habit.
It seems to me—and I do not think that this is a novel opinion—that drug addicts commit crimes rather than criminals’ becoming drug addicts, although my view is changing somewhat following the report on Wellingborough prison which was published this morning. Unfortunately, the findings in that report are not peculiar to Wellingborough. What Dame Anne Owers, the chief inspector of prisons, discovered about the incidence of drug taking, drug dealing and drug use in prisons is not restricted to that particular prison. There is not a single prison in England and Wales that does not have a drug problem to a greater or lesser extent.
Let us all agree that we want to reduce the incidence of reoffending. Let us all agree that Parliament has a perfect right, and indeed a duty, to set out the ranges of sentences for particular offences. Let us all agree that the Court of Appeal criminal division has a role to play, and that magistrates and judges should be given sufficient independence and discretion to enable them to do justice in the cases before them.
Although I understand what amendments 20 and 21 are about, I suggest that it is already covered by clause 103(11), and in particular by paragraph (d), which deals with
“the cost of different sentences and their relative effectiveness in preventing re-offending”.
Although I listened with interest to what the hon. Member for Cambridge had to say, I am not sure that his concerns need to be translated into the Bill. However, Government amendments 143, 144, 146 and 148 move us into more interesting territory. Of itself, amendment 143 does not strike me as objectionable. It seems to say, while using slightly different words, what is currently said in subsections (1) to (4) of clause 104, which the Government intend to delete. Amendment 146, of itself, is not objectionable; on the face of it, the provisions that would replace clause 104(8) appear to be common sense. Amendment 148 simply refers to the offence range rather than the category of case, and is not of itself objectionable. Government amendments 149 and 150 follow on from the earlier amendments, and they, too, are not of themselves objectionable.
Nevertheless, I ask the Government to accept that without amendment 44—tabled by, among others, my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) and me—there is at least the possibility of an improper connection between money and justice. The amendment states
“Whilst the courts may have regard to the availability of correctional resources”
—that is the jargon—
“for the avoidance of doubt the courts must not pass a sentence that is wholly determined by resource assessments which are expressly intended for the guidance of the Secretary of State in planning for and providing such custodial or community sentences as he advises Parliament, and it”
—Parliament, that is—
“considers, necessary in the light of such assessments.”
When deciding what should be the maximum sentence for robbery, burglary, murder, rape or any other criminal offence, Parliament will need to understand that increasing the maximum sentence or providing a minimum sentence will cost a certain amount of money, and will require additional prison places, probation officers or other facilities to deal with the offenders concerned. Having understood that, however, and having decided on the basis of that information and advice what the appropriate maximum sentence, minimum sentence or range of sentences should be, Parliament should not descend into the courtroom, either directly or via the Sentencing Council, to tell judges precisely what to do. I believe that without amendment 44 or a similar provision, we shall be in danger of moving Parliament and the Executive into the courtroom in an improper constitutional fashion.
Amendment 43 is also connected with my fear that we are in danger of intruding in the courtroom in a way that I find wholly objectionable. It deals with what I call the “follow” or “have regard to” argument. As the law stands, sentencers are obliged to “have regard to” guidance from the Sentencing Guidelines Council, but are not obliged to follow it slavishly. That works well. While I accept that sentencers, be they magistrates or Crown court judges, must explain their reasons for acting outside a particular guideline in a particular case, I do not think that anyone has been surprised by, or unjustly dealt with by, judges having regard to or taking account of the guidance as opposed to following it. The Government, however, require judges and magistrates to follow the sentence advice in the guidelines—indeed, almost to cut and paste it into their sentences.
As I have said before, only the judge or magistrate has the facts of the case before him—the facts relating to the victim, and the facts or the local knowledge in relation to the effect of the crime on the local community; that is particularly true of magistrates—along with some understanding of the antecedents and the earlier life of the defendant or defendants before him or her. That, I suggest, renders the judge or magistrate best placed to deal with the sentence.
Are not the local circumstances one of the most important considerations for a sentencing judge to take into account? A particular class of crime often becomes prevalent locally. In such circumstances, a sentencing judge may well consider it necessary to propose a sentence that is different from, and perhaps more severe than, the general category or bracket specified in the sentencing guidelines.
My right hon. and learned Friend is entirely right. What he has said is doubtless based on his experience both as a Home Office Minister and as a practising member of the criminal Bar.
We all know from what happens in our constituencies, be they urban or rural, that certain crimes become fashionable from time to time. There may be an epidemic of house burglaries, of car crime or of drug retailing on the streets. The courts need to be able to deal with that in the way that is most appropriate to the locality concerned. The advantage of the administration of local justice through magistrates courts and Crown courts is that those courts can respond directly and immediately to local circumstances. It seems to me that, while the Sentencing Guidelines Council—and the Sentencing Council, as it will become following the Bill’s enactment—have a role to play, they should not be allowed to overplay it, and to inhibit the sort of activities that my right hon. and learned Friend has described.
There is a danger in the approach implied in both the question and the answer. It is a twofold danger. First, in order to demonstrate that society will not put up with whatever may be happening in a locality, excessive reliance may be placed on the theory of deterrence and a sentence may be passed that does not have the deterrent effect that it was assumed it would have. Secondly, the process of signalling to society that the courts are not going to put up with the offence may draw them into prison sentences that are themselves ineffective. We should look for ways of making that sort of declaration that do not involve us in impractical sentences.
I am grateful to the right hon. Gentleman for his intervention, but it is not a question of either/or—it is both/and. Local judges and magistrates should be able to take account of local conditions and from time to time deal with criminal campaigns through exemplary or extended sentences, but of course they want to be effective. Judges are not in the business of passing sentences that either are not obeyed, if they are community sentences, or that do not help to reduce reoffending. Unfortunately, some defendants are beyond education and understanding the effect of their offences. I say in parenthesis that I happen to be a great supporter of restorative justice, which the hon. Member for Cambridge mentioned, but it is vital that judges and magistrates should be allowed within a wide remit to conduct this most difficult exercise, which is to do justice to the defendant, society as a whole, the victim and the victim's family, and to play their part in the reduction of reoffending.
While I dare say the Government see themselves as entirely well motivated, they are being too dirigiste, statist and centralist in this aspect of criminal justice policy. Therefore, I urge them, even if they do not accept my amendments 43 and 44 today, to think rather more carefully. In any event, I will ask at the appropriate time, if I catch your eye, Mr. Deputy Speaker, to test the opinion of the House on amendment 43.
I shall address my remarks to amendment 161. They follow on to some extent from some of the remarks made by the hon. and learned Member for Harborough (Mr. Garnier). He said that the measure includes the requirement that the guidance of the Sentencing Council be followed. On amendment 44, he talked about not wishing to allow resources to determine the sentence, but resources are key to what is happening.
Amendment 161 would amend clause 110. That clause requires the Sentencing Council to publish resource assessments in respect of its guidelines. In those resource assessments, the council will be expected to say what it thinks the guidelines will do in respect of the demand for prison places, the resources that are required for probation provision and for the provision of youth justice services. The question is: once the Sentencing Council has produced those reports about resource assessments, what happens to them? There is nothing whatever in the Bill to indicate that the Government will have to pay any particular attention to them, yet they are key if the recommendations of the Sentencing Council on sentences are to be put into effect. Amendment 161 therefore says that the Secretary of State must monitor those resource assessments and, as far as he practically can, ensure that there are adequate resources to ensure that the guidelines produced by the Sentencing Council can be put into practice.
The concept of the Sentencing Council has been widely welcomed. I do not have any difficulties with it. Many people outside this place have welcomed it, but what will happen if the recommendations from the Sentencing Council go in a particular direction that the council itself says will impact on prison places and probation services? As the Minister knows, some of us have already told him we have concerns about the resources that are available now and will be available in the next two or three years to, for example, the probation service. Probation representatives are telling us that they are concerned about the effects of their current budgets on front-line services.
I give just one example. The special domestic violence courts were introduced in 2005-06. A domestic violence programme is focused on changing attitudes and the behaviour of participants in that programme. It teaches people non-controlling behaviour. Courses run for a few months and involve individual sessions, group sessions and relapse-prevention meetings. They seem to be the sort of courses that we want to support, but we hear that there are considerable waiting lists for people to get on them: the waiting times vary from 13 to 42 weeks, depending on the area. The maximum wait for getting on a course varies from 33 to 208 weeks. If we are saying that we expect a course to be effective, but there is a waiting time of four years for someone to get on it, that hardly suggests that we are matching the resources to the programme we believe would be effective. Those are the issues that need to be considered in bringing the new regime into effect.
I am not suggesting for one moment that it will be a simplistic exercise; it obviously is not going to be easy always to do this, but if we do not look at what the Sentencing Council has to say about the resource requirements, and we do not consider what can be done to provide those resources, we will end up with more examples like the one I have just cited. There will be recommendations to the courts about what they should do in respect of sentencing, and the court will follow those recommendations, but then we will find gaps in, say, the probation provision to make those sentences work. I hope that when he replies to the debate the Minister will address that point and look at what might be done to make that link between the recommendations and the resources that are needed to put them into effect.
I rise merely to express my anxiety about this House creating a regime that is unduly prescriptive. I agree with my hon. and learned Friend the Member for Harborough (Mr. Garnier) that sentencing is one of the most difficult functions of the judiciary and it has been enormously complicated by the volume of legislation that we have passed over the past 10 years and, if one is honest, many years before that. For example, indeterminate sentences of imprisonment for public protection and extended sentences of various kinds are extraordinarily difficult for the judges to determine. My own feeling is that they are also largely unjust in their implication and I dislike them very much. I also feel that Parliament needs to be—
I do not think there has been sufficient time for a full evaluation of the effectiveness of IPPs, but I can say that, when I go around prisons, which I do regularly, I am struck by the difference in attitude between those prisoners who are on determinate sentences and those on IPP sentences. Those on IPP sentences have now got the message that they will not come out and they will be on a long licence unless they stop their propensity to offend. That must be a good thing for the public and a good thing for them.
That is a fair point, but there is another way of looking at this. When there is an indeterminate sentence and the release date is ultimately dependent not on the trial judge but on those who are assessing whether the person constitutes a risk, the natural attitude of those who make that decision is to guard their own back, and the result can be that many people are held in prison much longer than the index for offences justifies and much longer than a proper assessment of the risk would also justify.
I do not know how many prisons the Justice Secretary has been to since he took up this new post, but it is my experience from having been to about 50 prisons in the last three years that IPP prisoners are the most difficult for the Prison Service to manage. They remember the tariff, but they find it difficult to comprehend that they have an unending or an indefinite sentence. That is why they become fractious and that is why prison governors tell me—whether they tell the Secretary of State this, I do not know—that they are very concerned about the management of such prisoners. I appreciate that the Criminal Justice and Immigration Act 2008 adjusted the IPP minimum tariff, but it is a very troublesome sentence.
I agree with that. Many years ago, when I was an Under-Secretary at the Home Office, I was responsible for trying to determine when it was proper to release people from the special hospitals. We used to get advice from doctors and others on the safety—or otherwise—of the particular prisoner or patient, and no doubt that is still the norm. It was extraordinarily difficult to make that judgment, and I am sure that many officials—and, I suspect, clinicians—were guarding their back, thinking of the criticism that would come in the national press were they to recommend the release of somebody who went on to commit a crime. I think this is true of IPPs and extended sentences, and I fear that lots of characters are being held in our prisons now because people are unwilling to take that chance. I think we have to take that chance, unless we are going to detain people for unconscionably long periods of time.
There is a further reason why some IPP prisoners are in prison for longer than they ought to be, which is that they cannot get on the necessary course to satisfy the conditions that would enable them to be released. That problem too tends to make them fractious, because they nurse a sense of grievance that the prison is preventing them from fulfilling those conditions.
I think that that, too, is an important point, and I entirely agree with it. However, I shall move on from what is a somewhat narrow point—it might not even be within the scope of the amendment, but thank you, Mr. Deputy Speaker, for permitting that brief digression—and say that of course I accept that this House has to establish the appropriate brackets of the sentence. That is right; we have always done that, and we should continue to do so. However, my own view is that the imposition of sentences is very much a matter for the trial judge, guided by the appellate court. I think it is difficult to do justice unless we accept that the trial judge or trial magistrate is the person best placed to determine a sentence within the brackets established by Parliament. I therefore agree with my hon. and learned Friend the Member for Harborough that we should not put in statute the requirement that a judge should follow the guidelines set out by the council, hence my amendments. I believe the requirement should be that the judge take account of, but not feel obliged to follow, the prescriptive guidelines.
I accept that the council guidelines can bring about greater consistency. That is important, and to that extent I welcome the Bill’s proposals. It is true that the council’s guidelines—this is one of the points made by the hon. Member for Cambridge (David Howarth)—can bring to the notice of the judiciary sentences and alternatives that work, because not all judges go to all courses as assiduously as they should, and I have no doubt that the guidelines, the annual reports and the other material published by the council can inform the courts of what is available and what works.
I think, too, that it would be appropriate for the council’s guidelines and other published material to set out the cost implications of various sentence options; that seems to me to be entirely right. I also think that the council guidelines should stress the importance of non-custodial sentences. Whenever I have been to prisons—like my hon. and learned Friend the Member for Harborough, I have been to a large number of them in my life, both as a barrister representing defendants and as Prisons Minister—I have been conscious of the very many people who are in prison largely because of their own inadequacy or an addiction, and who could probably be dealt with other than by being kept in custody.
Confidence in the penal system is important. Confidence should be not just national but local, hence the intervention of my hon. and learned Friend, who said that areas often suffer an epidemic of certain classes of crime, and a local judge may well form the view that a particular approach to sentencing is right given the particular local circumstances. I shall be very sorry indeed if the guidelines regime precludes a judge taking that local approach.
May I make one further point, which will be deeply unpopular, especially to the hon. Member for Cambridge, and which will probably nowadays be regarded as deeply politically incorrect? I do not believe that the criminal justice system should be primarily focused on the victim. I get very concerned when I hear people say that the victim’s interests are paramount. I do not believe that. I think that the purpose of the criminal law is to do justice, and that does not necessarily mean following either the wishes or the interests of the victim. The interests, or at least the plight, of the victim must be taken into account; the victim is very often a witness and needs to be treated with great courtesy, be kept fully informed and be made aware of all relevant decisions. But actually the criminal law is seeking to create a system of punishment, deterrence, retribution and ways and methods of avoiding the repetition of crime. That is not about the victim, and the anxieties and distress of the victim can often cause judges to do things that are not right. When there are victim statements and so forth in court, I personally regard that as an irrelevance. That is not a popular view, and it is probably not shared by many Members. However, I strongly feel that we need to distinguish between the courtesies and respect that one owes to the victim and the fundamental purpose of the criminal law, which is to administer the interests of the state, and not necessarily to reflect the interests of the victim.
I rise to support amendment 161, which stands in the name of my hon. Friend the Member for Walthamstow (Mr. Gerrard) and which I have also signed. Let me explain the background to this amendment, because I know that some Members have argued it may be irrelevant.
Amendment 161 arises out of discussions with the trade union group that brings together the various trade unions representing workers in the justice field. The issue that arose time and again is that when Government wields the end, they should also wield the means. The amendment is in some respects intended to assist the Secretary of State in arguments with other Departments, and possibly the Treasury itself, because there has been a consistent pattern in the justice sector in this House: many Members have welcomed various approaches by the Government, particularly the development of sentencing policy—and innovative sentencing policy—but we have had difficulty extracting additional resources. Although there has been a significant increase in resources in this field, it has not matched the level of demand. That was demonstrated in the report by the Centre for Crime and Justice Studies published in December, which showed an increase in resources, but also a massive increase in demand and work loads. This legislation will develop the Sentencing Council and enable it to set out various guidelines, but unless the resources are made available we will pass legislation that will have limited effect—in fact, it could cause more frustrations within the justice system and therefore be less beneficial.
I shall give one example, which has become crucial in recent months. We have met the Secretary of State, and the National Association of Probation Officers, the trade union representing probation officers, has undertaken a survey. It demonstrates that as a result of a reductions exercise—a savings exercise—that is going on, a large number of staff are losing their jobs. We were hoping that this would not involve front-line staff, but it looks as though it will. The situation means that probation officers are having to ponder a quandary when they go before a court and recommend, as a part of their report, a particular approach on sentencing, be it a community sentence, a prison sentence or a particular innovative sentence—I am thinking particularly of sentences associated with restorative justice. They are having to consider whether they should be advising the court, in their professional capacity, that although a given approach might be the best course of action, the resources are not available, particularly within their locality, to implement the sentence. That puts an onus on the probation officer that causes them a considerable dilemma.
Amendment 161 seeks to remind the rest of government, as much as this Secretary of State, that if we are to develop the Sentencing Council and it is to be effective, we must ensure, as the amendment says, that as “far as reasonably practicable” the resources “are made available”. If we do not do that, we will undermine the credibility of this part of this Bill, which we, across the House, have supported. Even if we do not press the amendment to a vote, I urge the Government at least to take the spirit of the amendment back in their discussions with other Departments, in particular the Treasury. If we will the ends, we must will the means, and if we do not do so in this instance, we will undermine the credibility of this legislation.
This debate has been very interesting and well informed, and I shall try to conclude it in that spirit. It might be helpful if I were first to give some background to the proposals in the Bill for a Sentencing Council—I claim some authorship for those. In the mid-1990s, there was, as those of us who were in the House at the time will recall—a number are present on the Labour Benches—concern about the unrelenting rise in crime that had taken place under the Conservatives. Hon. Members may recall that recorded crime doubled between 1980 and 1995. The Conservative campaign guide of 1994 sought to point out that although recorded crime had risen, crime as calculated by the chosen measure of the Conservative Government—the British crime survey, which they had established—had risen by “only 50 per cent.” Both sets of data were true, but even a 50 per cent. rise was alarming.
Thus, following the appointment of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) as Home Secretary in 1993, there was a big shift in the penal policy of the Conservative Government against what he regarded as the liberal and wet approach conducted by all his Conservative predecessors with, probably, the single exception of Lord Waddington; there was great concern about increasing the number of prison places and much else besides.
One of the things that I examined at the time was the question of consistency in sentencing. With great assistance from the statisticians in the House of Commons Library, I published a paper in 1996 called “Honesty, Consistency and Progression in Sentencing”, and its conclusions found their way into the Labour manifesto and then into the Crime and Disorder Act 1998, which was piloted through this House by my right hon. Friend the Member for Cardiff, South and Penarth (Alun Michael). I proposed a modest change: that a sentencing advisory panel should be established. He will recall how tentative we were about moving into territory that previously had been within the exclusive ambit of the judiciary.
What the data that the House of Commons Library statisticians had produced and that I had published showed was that there was no necessary connection between crime levels—or the rates of growth or decline in crime—and local sentencing rates, be they the custody levels, the proportion of offenders sentenced to custody, or average sentence lengths. Of course I accept what both the hon. and learned Member for Harborough (Mr. Garnier) and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said about the fact that the court has to have discretion for all sorts of reasons, not the least of which is that there may be what the hon. and learned Gentleman has described as a local “epidemic” of crime and the court may wish to set out imperatives as to why that is not acceptable locally—no one argues about that. The argument is about areas where there are apparently random differences in sentencing that bear no direct relationship either to local crime levels or to reoffending rates.
What I was seeking to do was better to inform the sentencing process, without encroaching on the necessary independence and discretion of sentencers, so we established the Sentencing Advisory Panel. As a result of a major study into sentencing, which I got going towards the end of my period as Home Secretary, which my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett) continued and which reported in 2001-02, we then had the Criminal Justice Act 2003—it established the Sentencing Guidelines Council. More recently, in the light, not least, of the pressure on prison places, the Carter inquiry was established and it reported in early December 2007.
Alongside Lord Carter’s report was published further statistical evidence called “Local Variation in Sentencing in England and Wales”. It was produced by my Department, but it never got quite the attention that it deserved—I say that because it contains extremely interesting data. It looks at the variations in custody rates, average sentence lengths and the use of determinate and indeterminate sentences. It showed that all those things varied “significantly” across the 42 criminal justice areas in England and Wales. It also suggested:
“The range in custody rates in magistrates’ courts and ACSLs”—
average custodial sentence lengths—
“in the Crown Court narrowed between 2003 and 2006, suggesting that sentencing practice became more consistent across the CJAs over this period.”
I suggest that that was partly as a result of the work of the Sentencing Guidelines Council.
The document also suggested that there was little in the way of linkage, stating:
“Variation in sentencing amongst the CJAs was not well explained by local crime rates, although there was a weak relationship between recorded crime rates and magistrates’ court custody rates for theft and handling stolen goods offences.”
“No statistically significant relationships existed between changes over time of recorded crime and sentencing in magistrates’ courts and Crown Court centres by CJA.”
Against the background of the relative partial success of the Sentencing Advisory Panel and the Sentencing Guidelines Council, Lord Carter recommended that I should establish a judicially led working group to look more closely at whether we could have better machinery for advising and guiding the judiciary on sentencing. Lord Justice Gage kindly accepted the invitation to chair this sentencing commission working group, and his report was produced late last year.
What I sought to do is to replicate, of course in more detail, the key recommendations of his report. I note what the hon. and learned Member for Harborough said about the need for proper judicial independence, but he also said that we had to avoid a judicial free-for-all. I have said very much the same thing and I made it clear in my statement on 5 December 2007 on Carter. I assume that the hon. and learned Gentleman knows Lord Gage and many of the other distinguished members of the working group, so he will know that they would not have made the recommendations if they thought that they would fetter the proper discretion and independence of the judiciary.
We have tabled amendments 143 to 146 to clause 104 and amendment 148 to clause 108 because those provisions were criticised in Committee—[Interruption.] I welcome the hon. Member for Mid-Sussex (Mr. Soames) to the Opposition Front Bench. It is good to have him here to listen to this important debate. We have responded to the criticism that was made on both sides in Committee that the original provisions were too dirigiste. Therefore, clause 104 will no longer make it a requirement on the Sentencing Council to subdivide all offences into categories of offence, but it will have the discretion to do so. If it does, we invite it to subdivide the offence categories in much the same way as they are currently subdivided. We also make it clear that aggravating and mitigating factors can be related to the offender as well as to the offence, and that is the important effect of amendment 144.
Clause 108 sets out the duties of the court in respect of the sentencing guidelines to be found in clauses 103 and 104. Here, too, we have sought to add greater flexibility to the system. Generic offences such as burglary, robbery and theft cover a range of behaviours and, therefore, the Sentencing Guidelines Council has subdivided them into categories. Where they are divided and there are aggravating or mitigating factors, they can be within the overall range of the guidance for the offence and not just in that particular category of offence. I suggest to the hon. and learned Member for Harborough that that will give sentences a considerable degree of flexibility.
The hon. and learned Gentleman suggested that he would divide the House on amendment 43. Currently, the council will be asked to follow sentencing guidance and he suggests that instead it should “have regard” to it. Those words are in the 2003 Act. I was abroad at the time, so I claim no authorship and I cannot remember whether the Opposition thought that it was wonderful. In any event, especially in the area of the law, we have to learn from experience. The hon. and learned Gentleman would not suggest that the criminal justice process or law is fixed in the concrete in which it was embedded back in 1997—at least I hope not.
Of course not. Lord Justice Gage very kindly invited me and the right hon. Member for Knowsley, North and Sefton, East (Mr. Howarth)—who was also a member of the working party—to a briefing by him last summer, just before publication of his report. He made it clear that he was not producing a grid, or Minneapolis, system, and it was clear that he intended there to be a fair degree of discretion. However, what he told us then is not exactly replicated in the word “follow”.
It is common ground that none of us wants a Minneapolis system or any other kind of American grid system, and that is not proposed. The Gage report said:
“A majority of the Working Group”—
the chairman was part of that majority—
“recommends that the test for departures from the guidelines be made more robust by providing that the court may only pass a sentence outwith the guidelines if it is of the opinion that it is in the interests of justice to do so. A minority of the Working Group recommends that there should be no amendment to the statutory tests contained in the Criminal Justice Act 2003.”
Earlier in the report, the working group considered the responsibilities that should be imposed on the Sentencing Council, but—critically—the reader is referred to annexe C where the working group proposes a change to sections 172 and 174 of the 2003 Act. The working group suggests the wording:
“Every court must…in sentencing an offender, apply any guidelines which are relevant to the offender’s case unless it is of the opinion that it would be contrary to the interests of justice to do so”.
The draftsman of the Bill has, as faithfully as possible, replicated that recommendation, so clause 108(1)(a) states:
“Every court must…in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case unless…the court is satisfied that it would be contrary to the interests of justice to do so”.
There are better lawyers than me here, but I defy anybody to explain what is the difference between “must apply” and “must follow”.
What the courts have been doing since the 2003 Act is apply the guidelines by taking account or having regard to them. If the Secretary of State is reducing this debate to a semantic discussion about the meaning of the word “follow”, we have been wasting our time. I have a suspicion that “follow” means something more directional than “take account of”.
It is the hon. and learned Gentleman who has made it a semantic debate, because he tabled amendment 43, which proposes that “follow” be replaced by “have regard to”. There is a difference, and although I am not in favour of casuistry, I am in favour of semantics, because words are all we have, and they have meaning. There is a difference between “have regard to” and “follow” or “apply”. My point is that in clause 108(1)(a) we are seeking to apply or to follow—not have regard to—what Lord Justice Gage and his colleagues explicitly recommended.
They wanted a closer connection between the guidelines and what the courts were doing.
I remind the hon. and learned Member for Harborough and the right hon. and learned Member for Sleaford and North Hykeham of two things. First, the changes proposed in the other Government amendments that I moved offer considerably more flexibility than the arrangements in the original Bill, as the hon. and learned Gentleman correctly suggested in Committee. Secondly, there is a very clear exception for the courts. Judges in court have great flexibility to refer to the whole of the sentencing guidelines when they judge that aggravating and mitigating factors make that appropriate. If they think that a sentence is outwith those guidelines, they are entitled to pass it if they believe that it would be contrary to the interests of justice to stay within the guidelines.
Does the Secretary of State accept that, when he advocates the use of the word “follow”, he is giving judges less discretion than they would have if the amendments tabled by my hon. and learned Friend the Member for Harborough (Mr. Garnier) and me were accepted?
I accept that to a degree, although there is not much difference. I am seeking to implement what Lord Justice Gage recommended when he pointed out that most of the working group had said that the test for departing from the guidelines should be made “more robust”. The people making that recommendation are not inexperienced in these matters.
The hon. Member for Cambridge says that that is not “follow”, but something different. I say to him that it is “follow”, but the suggested alteration to the current section 172 of the Criminal Justice Act 2003 uses the verb “apply” rather than “follow”. I am perfectly happy to trade “follow” for “apply” because I do not know what the difference between those words is. I believe that they amount to the same thing.
First, and above all, the Government are trying to ensure respect and proper protection for the independence and autonomy of sentencers when they pass their sentences. That is critical: we need to provide considerable discretion, but we must also ensure that that discretion is exercised in a structured way that the public and other sentencers can understand. We are not fettering the judiciary, but we are saying that there should be a carefully moderated body of guidance. That guidance will be moderated by the process of drafting by the Sentencing Council and by the consideration that it will be given—not in the partisan bear pit of the House of Commons but in the more bipartisan Justice Committee.
When the guidance is finally endorsed by the Sentencing Council, perhaps following amendment, it will become the framework that sentencing judges and magistrates will be expected to follow. It will give them a great deal of flexibility, although they will have to make judgments about the starting point. For example, the existing robbery matrix offers considerable flexibility. Judges and magistrates have to make judgments about additional aggravating and mitigating factors—they can decide that those factors cover the whole of the range laid down for a sentence and not just one category of case within an offence range—and they can depart from the whole thing, if they consider that to be necessary and in the interests of justice. My hope is that we shall end up with greater consistency, which would be in the interests of justice, and of the public.
The right hon. and learned Member for Sleaford and North Hykeham made an interesting point about whether victims—and, by implication and to a degree, the public— had a role in the criminal justice system. I have great respect for the right hon. and learned Gentleman, who paid me the honour yesterday of supporting—
He was not quite my only friend, but they were few and far between. I was very grateful for his support, not least for where it came from and the level of information that lay behind it.
The right hon. and learned Gentleman’s view that victims do not have a proper role in the criminal justice system is, however, one that I respect but disagree with profoundly. One reason for our success in raising the confidence of those who experience the criminal justice system very considerably over the past dozen or so years—and it is also a factor in ensuring that, far from rising by 50 per cent., the level of crime as measured by the British crime survey actually went down by 39 per cent.—is the fact that we have sought to place the victim at the heart of the system. I am unapologetic about that.
My hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Walthamstow (Mr. Gerrard) mentioned resources. If I may, I invite them not to press their amendment to a vote, but I accept the burden of the argument—that on a number of occasions Parliament has been invited to endorse new approaches to sentencing, only to find that the resources have not been made immediately available.
As a response, the Government have inserted proposals in the Bill that amount to virtually the same thing as amendment 161. Clauses 110 to 115—but, in this respect, clause 115 is the most important—contain duties placed on the Sentencing Council to assess the
“impact of policy and legislative proposals”
I accept that when enthusiastic Ministers—and I can claim to have been one on a number of occasions—have bright ideas about new sentences, those bright ideas need to be checked for their effectiveness and for their cost. When we seek to translate those ideas into legislative form, we must also be able to tell Parliament where the money will come from.
Another hon. Gentleman on the Opposition Front Bench asks me to name the triumphs. I could name a number of them, but I shall name just one. According to the Conservative campaign guide of 1994, crime rose by 50 per cent. between 1979 and 1994. Under this Labour Government, crime has fallen by 39 per cent., which makes this the first Government since the war to achieve a fall in crime.
Will my right hon. Friend bear it in mind that part of that success was due to giving the youth justice system a clear purpose to reduce offending and reoffending? Will he deal with the amendments suggesting that the Sentencing Council should be given similar clarity of purpose?
I am glad that my right hon. Friend intervened with that remark, because it brings me to my last point. This is a parliamentary debate, and it is a good process. When I looked at the provisions on the Sentencing Council, I was a little surprised—even though I claim authorship of them—to find that although the purpose of the Sentencing Council was embedded in the clauses, it was not explicitly stated. Its purpose is to issue sentencing guidelines. I am happy to consider what my right hon. Friend has suggested, and to consider whether it would not be appropriate specifically to mention the importance of victims in clause 103(11), where we set out the matters to which the council must have regard. At the moment, we mention in subsection (11)(c)
“the need to promote public confidence in the criminal justice system”;
by implication, that includes victims, but they are not mentioned explicitly. I promise my right hon. Friend that I will examine both those matters before, and during, the Bill’s passage through the other place.
I will be brief, but perhaps I should first gently point out to the Secretary of State that crime has fallen in every western European country since 1995, except Belgium, so his claims for the unique success of his policy are a little odd.
I draw the Secretary of State’s attention to what the hon. Members for Hayes and Harlington (John McDonnell) and for Walthamstow (Mr. Gerrard) said about the problems in the probation service, which mean that no matter what is said in this place, certain sentences will not be available to the courts. Probation officers will have to tell the courts that some sentences are not available in the area. The ideal is what is proposed by the Conservatives in amendment 44, which deals with the relationship between total resources and sentences. However, in reality, if the resources are not provided, we end up with the position that the hon. Member for Hayes and Harlington talked about.
I am in a bit of a dilemma on amendment 43, although the discussion between Labour and Conservative Front Benchers about the meaning of “apply”, as opposed to “follow”, helped me to conclude that there is not much difference between what they said. However, to the extent that the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) is correct, and that what the Government propose is meant to be slightly more restrictive than what the Conservatives propose, I come down, in the end, on the Government’s side. That is not because I agree with what they are doing in the Bill, which is to say that we should follow guidelines that are mainly still about punition and the seriousness of the offence.
In an ideal world, the guidelines would say more about reducing reoffending and would be properly designed to draw the courts’ attention to sentences that they would otherwise probably not impose. The right hon. and learned Member for Sleaford and North Hykeham is absolutely right: judges are not fantastically well informed about criminology, although perhaps they ought to be. In that ideal world, the guidelines should be followed, because it would mean that judges had to think about other sentences, and would have to give reasons before moving from them towards a more traditional, comfort-zone sentence.
On the amendments that I tabled, I was glad to hear what the Secretary of State said right at the end of his remarks; I take what he said to the right hon. Member for Cardiff, South and Penarth (Alun Michael) to have been said to me, too, because we signed the same amendments. On the basis that the Secretary of State will consider what we said, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 143, page 62, line 2, leave out subsections (1) to (4) and insert—
‘(1) This section applies to sentencing guidelines relating to a particular offence.
(2) The guidelines must, if the Council considers it appropriate given the nature of the offence, describe, by reference to one or both of the factors mentioned in subsection (3), different categories of case involving the commission of the offence which illustrate (in so far as it is possible to do so by reference to those factors only) the varying degrees of seriousness with which the offence may be committed.
(3) Those factors are—
(a) the offender’s culpability in committing the offence;
(b) the harm caused, or intended to be caused or which might foreseeably have been caused, by the offence.
(4) The guidelines must—
(a) specify the range of sentences (“the offence range”) which, in the opinion of the Council, it may be appropriate for a court to impose on an offender convicted of that offence, and
(b) if the guidelines describe different categories of case under subsection (2), specify for each category the range of sentences within the offence range which, in the opinion of the Council, it may be appropriate for a court to impose on an offender in a case which falls within the category.
(4A) The guidelines must also—
(a) specify the sentencing starting point in the offence range, or
(b) if the guidelines describe different categories of case under subsection (2), specify the sentencing starting point in the offence range for each of those categories.’.
144, page 62, line 29, at end insert ‘or the offender’.
145, page 62, line 42, leave out from first ‘the’ to end of line 43 and insert ‘offence range.’.
146, page 62, line 44, leave out subsection (8) and insert—
‘(8) The sentencing starting point in the offence range—
(a) for a category of case described in the guidelines under subsection (2), is the sentence within that range which the Council considers to be the appropriate sentence for cases within that category—
(i) before taking account of the factors listed in the guidelines under subsection (5), and
(ii) assuming the offender has pleaded not guilty, and
(b) where the guidelines do not describe categories of case under subsection (2), is the sentence within that range which the Council considers to be the appropriate sentence for the offence—
(i) before taking account of the factors listed in the guidelines under subsection (5), and
(ii) assuming the offender has pleaded not guilty.’.—(Bridget Prentice.)
Sentencing guidelines: duty of court
Amendment proposed: 43, page 65, line 12, leave out ‘follow’ and insert ‘have regard to’.—(Mr. Garnier.)
Question put, That the amendment be made.
Amendments made: 147, page 65, line 19, leave out ‘Subsection (3) applies’ and insert ‘Subsections (3) and (3A) apply’.
148, page 65, line 27, leave out paragraphs (a) and (b) and insert—
‘(a) where the offence-specific guidelines describe categories of case under section 104(2), to decide which of the categories most resembles P’s case in order to identify the sentencing starting point in the offence range, and
(b) in all cases, to impose on P in accordance with the offence-specific guidelines a sentence which is within the offence range.
‘(3A) In a case where a decision is made under subsection (3)(a), the range of sentences specified in the guidelines under section 104(4)(b) for the category concerned is to be disregarded when determining whether the court has discharged the duty imposed by subsection (1).’.—(Bridget Prentice.)
Interpretation of this Chapter
Amendments made: 149, page 70, line 40, at end insert—
‘“the offence range” has the meaning given by section 104(4)(a);’.
150, page 71, line 11, at end insert—
‘“the sentencing starting point”, in relation to the offence range, has the meaning given by section 104(8);’.—(Bridget Prentice.)
New Clause 12
Special counsel in proceedings concerning witness anonymity orders
‘(1) On any application for a witness anonymity order, the court must consider whether the appointment of special counsel to assist the court in deciding whether to grant the order would contribute significantly to the fairness of the proceedings, and must apply to the Attorney General for the appointment of such counsel if it decides that such an appointment would so contribute.
(2) No witness anonymity order may be granted where the court has applied to the Attorney General for the appointment of special counsel under subsection (1) until the Attorney General makes such an appointment, and if the Attorney General refuses to appoint special counsel on such an application by the court, the application for the witness anonymity order shall be refused forthwith.’.—(David Howarth.)
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 13—Effect of order on disclosure obligations—
‘A witness anonymity order takes precedence over any obligation of a prosecutor to disclose material to the defence, and, accordingly, no such obligation shall require a prosecutor to reveal the identity of the witness or information that might enable the witness to be identified.’.
Government amendment 142.
Amendment 155, clause 63, page 37, line 16, leave out ‘(8)’ and insert ‘(8A)’.
Amendment 141, page 37, line 40, at end insert—
‘(8A) The condition in this subsection is that the Director of Public Prosecutions has given his consent to the application.’.
Amendment 58, clause 71, page 41, line 20, at end insert
‘and must be made as early as is reasonably possible.’.
Amendment 140, page 42, line 5, at end insert—
‘(7A) The court has the power to appoint special counsel to represent the interests of the defendant in his or her absence, if it appears to the court to be appropriate to do so in circumstances of the case.’.
Amendment 59, page 42, line 7, at end insert—
‘(9) For the purpose of considering an application for a witness anonymity order the court may appoint an independent counsel to assist the court and, without limiting the directions that the court may make, the court direct the independent counsel—
(a) to enquire into the matters that are set out in sections 72 and 73 and any other matter that the court may deem relevant, and
(b) to report his findings to the court.
(10) Where an independent counsel has been appointed, the party who applied for a witness anonymity order shall make available to the independent counsel all the information that is relevant to the proceedings that is in the possession of that party.
(11) Where an independent counsel has been appointed, provision shall be made by order for the fees for the professional services of the independent counsel together with reasonable expenses to be determined and paid from money appropriated by Parliament for that purpose.’.
Amendment 60, clause 72, page 42, line 11, leave out ‘satisfied’ and insert ‘sure’.
Amendment 61, page 42, line 11, leave out ‘C’ and insert ‘D’.
Amendment 160, page 42, line 15, leave out ‘serious damage to property’ and insert
‘damage to property serious enough, either in itself or cumulatively (taken with other threats to property or to the welfare of persons), for a reasonable person with the resources of the witness to be intimidated into refusing to give evidence’.
Amendment 62, page 42, line 19, leave out subsection (4) and insert—
‘(4) Condition B is that the making of a witness anonymity order would not deprive the defendant or (where there is more than one defendant) any defendant of a fair trial.’.
Amendment 63, page 42, line 23, after first ‘not’, insert
‘and could not reasonably be expected to’.
Amendment 64, page 42, line 25, at end insert—
‘(5A) Condition D is that there is no reason to believe that the witness has a motive or a tendency to be dishonest, having regard to all the circumstances of the case and (where applicable) to the witness’s previous convictions or the witness’s relationship with the defendant or if more than one with any defendant, of any associates of the defendant or if more than one, any defendant or with any witness to be called in the proceedings and to any other consideration that may be relevant to the issue as the court may think appropriate.’.
Amendment 19, page 42, leave out line 30 and insert—
‘(b) that there would be damage to property serious enough, either in itself or cumulatively (taken with other threats to property or to the welfare of persons), for a reasonable person with the resources of the witness to be intimidated into refusing to give evidence,’.
Amendment 65, clause 73, page 42, line 33, leave out ‘C’ and insert ‘D’.
Amendment 66, page 42, line 39, at end insert—
‘(aa) the principle that witness anonymity orders are justified only in exceptional cases;’.
Amendment 67, page 42, line 39, at end insert—
‘(aa) the gravity of the offence;’.
Amendment 68, page 42, line 42, at end insert
‘and whether there is other evidence that corroborates the witness’s evidence’.
Amendment 69, page 43, line 6, leave out paragraph (e).
Amendment 70, clause 75, page 43, line 44, at end insert—
‘(6) For the purposes of considering whether to discharge, vary or further vary the order the courts may appoint an independent counsel to assist the court and, without limiting the directions that the court may make, the court may direct the independent counsel—
(a) to enquire into any matter that may be relevant to any issue set out in subsections (1) and (2), and
(b) to report his findings to the court.
(7) Where an independent counsel has been appointed, the party who applied for the order to discharge or to vary or further vary the existing order must make available to the independent counsel all the information in relation to the proceedings that is in the party’s possession, and where the court is acting on its own initiative the independent counsel shall be provided with all such information as the court may think appropriate.
(8) Where an independent counsel has been appointed, provisions shall be made by order for the fees for the professional services of the independent counsel together with reasonable expenses to be determined and paid from money appropriated by Parliament for that purpose.’.
Amendment 71, clause 77, page 45, line 9, at end insert—
‘(4A) For the purposes of considering whether to discharge or vary the order the appeal court may appoint an independent counsel to assist the appeal court and, without limiting the directions that the appeal court may give, the appeal court may direct the independent counsel—
(a) to enquire into any matter that may be relevant to any issue as is set out in subsection (2), and
(b) to report his findings to the appeal court.
(4B) Where an independent counsel has been appointed, the appeal court may direct that the independent counsel shall be provided with such information as the appeal court shall deem appropriate.
(4C) Where an independent counsel has been appointed, provisions shall be made for the fees of the independent counsel together with reasonable expenses to be determined and paid from money appropriated by Parliament for that purpose.’.
Government amendment 131.
We come to the anonymous witnesses part of the Bill. Members will recall that the anonymous witness provisions in the existing law passed through the House in one day last year, and through the other place in two days. At that point, we were promised proper consideration of the provisions in a full debate, in a full Bill. We are now left with a Report stage, effectively on that Bill, of 21 minutes, which is entirely unsatisfactory.
Let me go through three of the main problems that subsist in the provisions. The first is dealt with by new clause 12; it is that the Government have resisted putting in the Bill the mechanism under which independent or special counsel are brought in to advise or help the court as it decides whether to make a witness anonymity order. One of the problems is that an anonymous witness might be prejudiced against the defendant in a way that would become clear only if the defence were able to cross examine them with the benefit of knowing who they were. The person might seem to be only a witness to some external fact in the world at the time of the crime—to something that they saw or heard, rather than to what they thought the defendant did or said. The issue of possible prejudice against the defendant might not be obvious at the time, but that person—even if apparently only a witness to an external event—might turn out to be associated with an enemy or rival of the defendant.
In such circumstances, making a witness anonymity order might well be the wrong thing to do, but that point would not come out unless someone other than the prosecution had access to all the papers and could ask pertinent questions. Given the circumstances, that job clearly could not be done by the defence; that raises the possibility and in many cases the necessity of appointing special counsel to assist the court to do it.
In addition, there might well be cases in which the judge was uncertain whether to grant an order, because the status and credibility of the witness were unclear. In such a case the judge might be tempted to deny a witness anonymity order when further inquiries by independent counsel would have revealed that there was nothing to worry about. In such a case, independent counsel would strengthen the case for such an order.
I am not claiming that special counsel should be appointed in all cases. In the Mayers case, the Lord Chief Justice said that there were cases in which special counsel would help and cases in which they would not. The test that I suggest in new clause 12 for the appointment of special counsel is based on the words of the Lord Chief Justice in that case:
“whether the appointment of special counsel…would contribute significantly to the fairness of the proceedings”.
All I suggest is that the appointment of special counsel should be thought about—no more than that—in every case.
New clause 12 also deals with a possible problem with how the system works now. Special counsel are not appointed by the court, but by the Attorney-General after an application from the judge. So far, special counsel have always been appointed when requested, but what happens if the Attorney-General refuses? There is no provision for that situation, but new clause 12 settles the matter by saying that if the judge asks for special counsel and the Attorney-General delays or refuses, there cannot be a witness anonymity order at that time.
The second problem is more technical and is dealt with by new clause 13. It is the problem of what happens in multiple-defendant cases when a defendant, rather than the prosecution, asks for a witness anonymity order. The Bill says that the other defendants should not discover the identity of the witness, but adds that the defendant has to tell the prosecution the identity of the witness. The problem is that the prosecution have duties of disclosure to the other defendants and it is possible that the identity of the witness, who was supposed to be anonymous, would be revealed indirectly to the other defendants via the prosecution’s duties to disclose. Nothing in the relevant legislation—the Criminal Procedure and Investigations Act 1996—definitively rules out that possibility. In Committee, the Minister said that there was no problem because the witness anonymity order took precedence over any duties to disclose, but nothing in the Bill says that and new clause 13 simply puts into it what the Minister said in Committee.
The third problem identified in Committee has resulted in amendments 160 and 19. It is the problem of what to do about cases in which the witness is not threatened with personal injury—there is no threat to life or limb—but there is a threat to property not linked to such injury, such as a threat to burn down a lock-up shop or to damage a parked car.
The debate in Committee was initially about whether property damage should be included at all. There are doubts about whether property threats that are entirely separate from threats of personal injury meet human rights standards. As the debate developed, however, it became clear that there were plausible circumstances on particular estates where such threats, in combination with a general atmosphere of threat and intimidation, would be all too effective in intimidating potential witnesses. The issue then became how the Bill dealt with that problem and whether it properly captured the real-life situation. The Bill as it stands simply talks about serious damage to property, but the question is what that means. Does it mean merely expensive property? If the test relates merely to how valuable the property is, it would tend to favour rich witnesses over poor ones. In any case, that test is not related to the main issue, which is intimidation, not the seriousness of the damage in terms of the value of the property.
Amendments 160 and 19 are tabled in a spirit of compromise to try to clarify the situation. They suggest that the threat to property counts as serious enough if it means that a reasonable person in the position of the witness is intimidated into not giving evidence. The seriousness of the damage to the witness’s property would be judged in terms of their resources, so that damage to the modest property of an impoverished witness would be taken more seriously than damage to the valuable property of a very rich witness.
I want to let my hon. Friend know that in our report, the Joint Committee on Human Rights is wholly with him on what he has said on having, if not statutory clarification, at least guidance on the threshold of what serious damage to property is on human rights grounds, and on the need for special counsel.
I will be brief, because we are really up against the knives. I fully endorse what the hon. Member for Cambridge (David Howarth) said about the restricted timetable. I would repeat what I said yesterday, when we had an even more egregious example of ridiculous timetabling, with the result that seven and a half separate subject areas were denied debate.
This group of amendments is divided into two parts, the first of which relates to the need for special advocates. The hon. Gentleman and I advanced that in Committee. My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) has tabled amendments that reflect not only what we discussed in Committee but what was discussed last July during the passage of the Criminal Evidence (Witness Anonymity) Act 2008. When we debated these provisions under the emergency legislation last summer, the Government promised that they would much more closely examine the process and procedure for the appointment of special advocates or counsel in cases of this type. There have now been several cases that have gone to the Crown court and, to a lesser extent, to the magistrates court, in which applications for witness anonymity orders have been sought. Of that number, many have been granted, while some have not. However, if I remember correctly our deliberations in Committee, the Government were unable to tell us in how many cases the courts, using their own inherent powers, granted leave for a special advocate to appear on behalf of the court itself or to assist one or other of the parties.
That is an important omission, and the last few minutes of debate on Report are inadequate to deal with the matter. If the hon. Member for Cambridge or my right hon. and learned Friend the Member for Sleaford and North Hykeham are inclined to press their amendments to a Division, we will support them.
I shall deal briefly with the two technical Government amendments in this group. Amendment 142 refines the anonymity provisions to take into account those rare situations where the duty of non-disclosure imposed by an investigation anonymity order may come into conflict with a duty to disclose an anonymous informant’s identity that happens to arise by virtue of some other legislation or the common law. Indeed, the hon. Member for Cambridge (David Howarth) alluded to that. The new provision is intended to clarify in what circumstances disclosure of information in pursuance of a conflicting duty to disclose would amount to an offence. Government amendment 131 simply extends the provisions of the Criminal Evidence (Witness Anonymity) Act 2008, which are to be repealed following the commencement of the replacement provisions in this Bill.
I shall now deal, at least in part, with the amendments and new clauses tabled by the hon. Member for Cambridge, and if I can in the time remaining, I shall at least refer to some of the amendments tabled by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). On new clause 12, as the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle), explained in Committee, there is no evidence that the current non-statutory arrangements are not working well. The hon. and learned Member for Harborough (Mr. Garnier) asked how many cases there had been. There have been two since the enactment of the emergency legislation where the court asked the Attorney-General to appoint special counsel, and the request was granted in both cases. As the House will be well aware, special counsel is already available in anonymity applications under the common law. We do not see any reason to change that.
New clause 13 follows a similar new clause tabled in Committee and it relates to the effect of trial anonymity orders in relation to disclosure obligations under the Criminal Procedure and Investigations Act 1996. As the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston, made clear in Committee, a trial anonymity order overrides prosecution obligations to disclose material to the defence to the extent the trial court thinks fit in any particular case. We therefore consider the new clause unnecessary.
Clauses 62 and 63 make it clear who can apply for an investigation anonymity order. It would not be appropriate for the Director of Public Prosecutions to have to consent to every investigation anonymity order application, first because the orders are an investigative tool that should be available to the police, and secondly because the police and any prosecuting authority specified in the Bill are capable of deciding whether to exercise the powers or not without reference to the DPP. The orders are not linked to trial anonymity orders; they are an independent tool. It might not be appropriate for the prosecuting authority, in the form of the DPP, to be party to an investigative order that would be pursued by the police. There will, however, be close co-operation between the police and the Crown Prosecution Service in any case, under the guidelines.
The hon. Member for Cambridge also tabled amendments 160 and 19, which would alter the nature of the test that in clause 72 the court applies when assessing whether an anonymity order is necessary to prevent any serious damage to property. My concern is that such a change would make the value of the property relative to the total wealth of the witness relevant in considering whether the witness’s fear is reasonable.
I would think it odd to suggest that someone’s personal wealth should somehow affect how intimidated they might reasonably feel if their house were deliberately burned down. I believe that the amendment is unnecessary because the clause will require the court to have regard to any reasonable fear on the part of the witness that there would be serious damage to property if they were identified. The intimidating effect of damage to property is therefore already captured.
On the series of amendments tabled by the right hon. and learned Member for Sleaford and North Hykeham, we are not far apart on the principles behind some of the things that he wants, but the sort of detail that he requests in his amendments is not appropriate in primary legislation. We believe that the criminal procedure rules are the right venue for dealing with such detail. As an intermediate measure pending the making of those rules, the judiciary issued a practice direction on 28 July last year. The relevant passage stated:
“An application for a witness anonymity order should be made as early as possible and within any period directed by the court.”
The criminal procedure rule committee is currently working on detailed provision for the procedures governing applications for witness anonymity orders. In the meantime, we are content for the courts to operate in accordance with the practice direction.
I assume that the intention behind amendment 60 is to require the court to be satisfied to the criminal standard—that is, beyond reasonable doubt—that the conditions for making a witness anonymity order have been met. We debated that in detail during the passage of the emergency legislation. There are many contexts in criminal legislation in which a court is required to be “satisfied” that applicable conditions are met. It is the function of the court to exercise its judicial judgment about that. It will either be satisfied or it will not, and I believe that that is the right term to use. It is commonly applied by the courts in this country.
Amendment 62 would redraft condition B to replace the reference to anonymity being consistent with a fair trial with a reference to anonymity not depriving the defendant of a fair trial. I agree with the right hon. and learned Gentleman that it is of paramount concern that defendants receive a fair trial, but we believe that the current wording guarantees that they will. The amendment would also replace the reference to “the defendant” with a reference that explicitly covers multi-handed cases. I am happy to confirm that the Bill already covers such cases. When the court considers granting an anonymity order, it must have regard to the impact on all the defendants, and the term “the defendant” in clause 72(4) is to be construed accordingly.
Amendment 63 would mean that in deciding whether condition C is met, the court must believe not only that a witness would not be prepared to testify without an order but that he could not reasonably be expected to do so. In other words, it would add a new objective criterion for condition C to be satisfied. My starting point is that clause 72(5)(a) essentially reproduces section 4(5)(b) of the emergency legislation, which is working well in practice. I would therefore need to be persuaded that such detail is needed in an amendment. In applying the consideration in clause 73(2)(f) of whether it is reasonably practicable to protect the witness by measures other than the anonymity order, the court is likely to consider whether it is reasonable to expect the witness to testify. It will also be able to take into consideration such other matters as it considers relevant, including the reasonableness of the witness’s fear. We therefore do not consider it necessary to change the current framework.
Amendment 64 would make the witness’s honesty, which is currently set out in clause 73(2)(e) as a consideration that the court must have regard to, a fourth condition for making a witness anonymity order. Again, we debated that subject during the passage of the emergency legislation. The amendment is unnecessary because it goes to the question of whether the defendant will have a fair trial. That, of course, is already catered for in condition B.
On that basis I cannot accept the amendments, but I hope that I have clarified to some extent the Government’s position on them. I hope that hon. Members will not press their amendments and that they will support the Government amendments.
I am not satisfied with the Government’s responses. On property, the Under-Secretary gave an example of a house in a personal injury case, whereas I referred to property unrelated to personal injury. In those circumstances, the wealth of the witness is immensely important.
I am afraid that the current guidelines maintain that independent counsel is exceptional, but that is not enough. They are also confused about the role of independent counsel, who are there to work for the court, not—
Debate interrupted (Programme Order, 23 March).
The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.
The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Investigation anonymity orders
Amendment made: 142, page 36, line 4, at end insert—
‘( ) A person who discloses such information as regards another person as is described in subsection (1) may not rely on subsection (8) in a case where—
(a) it might have been determined that the person was required or permitted to withhold the information (whether on grounds of public interest immunity or on other grounds), but
(b) the person disclosed the information without there having been a determination as to whether the person was required or permitted to withhold the information.
Disclosure for the purposes of seeking such a determination is not a contravention of an investigation anonymity order.’.—(Bridget Prentice.)
Examination of accused through intermediary
Amendment made: 129, page 51, leave out lines 27 to 38 and insert—
‘(7) Any examination of the accused in pursuance of a direction under subsection (3) must take place in the presence of such persons as Criminal Procedure Rules or the direction may provide and in circumstances in which—
(a) the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the accused and to communicate with the intermediary,
(b) the jury (if there is one) are able to see and hear the examination of the accused, and
(c) where there are two or more accused in the proceedings, each of the other accused is able to see and hear the examination of the accused.’.—(Bridget Prentice.)
Amendment made: 131, page 228, line 34, at end insert—
‘Section 10(1) to (7).’. —(Bridget Prentice.)
‘Section 10(1) to (7).’. —(Bridget Prentice.)
Queen’s and Prince of Wales’s consent signified.
I beg to move, That the Bill be now read the Third time.
This is an important Bill, which has been much improved by the process of scrutiny in the House. Let me record my thanks, and those of my right hon. Friend the Secretary of State and the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle), to all the Opposition Members for their constructive approach. The hon. and learned Member for Harborough (Mr. Garnier), the hon. Member for North-West Norfolk (Mr. Bellingham), and the hon. Members for Cambridge (David Howarth) and for Cardiff, Central (Jenny Willott) have been ready to engage in debate in a helpful and positive way.
I commend the valuable and thoughtful contributions from my right hon. Friends the Members for Cardiff, South and Penarth (Alun Michael) and for Knowsley, North and Sefton, East (Mr. Howarth) and my hon. Friends the Members for Bridgend (Mrs. Moon), for Stafford (Mr. Kidney) and for Hendon (Mr. Dismore). Let me also thank the hon. Member for North-West Norfolk for the kind words and good wishes that he sent to my hon. Friend the Member for Liverpool, Garston. She was very disappointed not to be here to participate in debates on matters that are her policy responsibility. However, I am sure she will be pleased that we have seen the Bill through this evening.
I thank all the officials who have been involved in the many different parts of the Bill. I thank the Public Bill officials, the Chairs of the Public Bill Committee, Hansard and the Public Bill Office—and, of course, my hon. Friend the Member for Wrexham (Ian Lucas) and his counterparts, who, through the usual channels, ensured that the Bill had a smooth passage both in Committee and on the Floor of the House.
My right hon. Friend the Secretary of State and I said, on Second Reading and subsequently, that we would listen to those expressing legitimate concerns about a number of provisions in the Bill, and that we were open to constructive suggestions for improving those provisions. We have listened, and we have responded.
There were fears that the provisions in respect of certified coroners’ investigations were drawn too widely and did not provide for sufficient judicial oversight. We have narrowed the criteria for certification of an investigation, and have removed from the Secretary of State the decision whether a certified inquest should proceed without a jury. As the Bar Council and the Criminal Bar Association have acknowledged, those and other changes to clause 11 have
“fundamentally recast the proposals for certified investigations”.
There was concern about the scope of the power to make information-sharing orders. We have now withdrawn clause 154, and will consider carefully the views expressed by all interested parties. There was also concern about the possibility that the Sentencing Council would be required to operate within too rigid a structure for the formulation of sentencing guidelines, and that the requirement for sentencers to follow the guidelines was too inflexible. We have recast those provisions so that both the council and the sentencers will have greater flexibility.
Another worry was that the provisions in part 1 did not go far enough in monitoring the actions that coroners recommended to prevent future deaths, and that senior coroners were being unfairly denied the opportunity to apply for the post of deputy chief coroner. Again, we have listened and responded. As the Bill approaches the end of its Commons stages, we will continue to listen, to reflect and, when we are convinced by the arguments, to respond.
Although it is understandable that much of our deliberation has been focused on the provisions that divide us, we should not lose sight of the many other provisions that have attracted cross-party support. Too little has been said about the reforms of the coroner and justice systems, and the beneficial impact that they will have on bereaved families, victims and witnesses.
One of the matters about which nothing was said—because my amendments were not reached—was the question of complaints against coroners. Will the Minister assure me that the Bill, if enacted, will allow individuals to complain not necessarily about the decisions of coroners, but about the behaviour of coroners who have left families, as in the Marchioness case, or a family—as in the Jeremiah Duggan case—with no confidence in their work?
I will come to the charter for the bereaved in a moment. For me personally, it is one of the most important parts of the Bill. It puts the bereaved families at the heart of the coronial system. I have met the Marchioness victims and talked with many other bereaved family organisations. There will be an opportunity for families to appeal to the chief coroner if they feel that a coroner has been wrong in a decision. In addition, the charter will for the first time give bereaved families the opportunity to know what standard of service they should expect from coroners. I am glad that the hon. Gentleman intervened because I wanted to ensure that that was on the record. In modernising this ancient office, which has not been touched for the best part of over 100 years, we are putting the needs of bereaved families at the forefront of coroners’ investigations.
One of the other issues that was discussed at great length in Committee but that unfortunately we did not have an opportunity to debate on the Floor of the House was that of the disparities between funding in different coroner areas. There are concerns that the Bill does not tackle that strongly enough. Will the Minister give more thought to the possibility of allowing the chief coroner extra powers and some more teeth to be able to tackle problems arising when not enough funding is provided in a local coronial area?
The chief coroner will have a number of powers in setting the national standards and making sure that there is consistency across England and Wales. I spoke to the Local Government Association conference this morning. We will work closely with local authorities to ensure that resources are in place for coroners to be able to carry out their duties properly. As a result of the reforms, there may be fewer inquests for coroners to deal with: because of the introduction of medical examiners, who will look at the death certificates, many cases that presently go to a coroner may not need to do so. Resources may thus be freed up in that way.
The proposed charter will ensure that the next of kin is notified quickly when a death is reported to the coroner and it will be explained to them why a post-mortem is necessary. It will ensure that family members are given regular updates on the progress of a coroner’s investigation, and enable inquests to be held closer to the home of the deceased’s family. It will also ensure that family members have, on request and wherever possible, access to all documents relevant to the inquest and that they will be able to participate fully in the inquest proceedings. It will also confer new and accessible rights of appeal against coroners’ decisions. I hope that that answers the proper questions that were asked by the hon. Member for North Southwark and Bermondsey (Simon Hughes) on that matter.
Sitting above the locally delivered coroner service will be the new chief coroner providing strategic leadership, setting and monitoring national minimum standards, managing the operational response to unusual circumstances which crop up from time to time, and ensuring excellent training arrangements.
The death of a loved one is traumatic at any time. Where that death is violent or unnatural, it is all the harder to come to terms with. At such times, bereaved families want answers to the inevitable questions surrounding the death of their loved one and want to be treated with understanding and compassion. Coroners and their staff have a difficult task to perform, and many provide an excellent service to the bereaved. These reforms will help to ensure that all bereaved families have the high standards of service that they are entitled to expect.
This morning when I spoke to the Local Government Association, I said that the Bill was putting bereaved families at the heart of the coroner service and that that was the most important thing it could do. André Rebello, secretary of the Coroners’ Society of England and Wales, who spoke after me, said that it does something else: it gives those families fairness and justice. He is absolutely right.
Victims and witnesses who come into contact with the criminal justice system are equally entitled to receive a high standard of service. The prevention and detection of crime and bringing offenders to justice is not the job just of the police or the prosecutors or the courts. They need the co-operation and support of the wider public. If a member of the public has a poor experience as a witness, who can blame them for not wanting to stick their neck out on a second occasion? So we must put the needs of victims and witnesses at the heart of the justice system. The provisions in the Bill are directed to that end.
The law should only allow a murder charge to be reduced to manslaughter in appropriate and clearly defined circumstances. Those who intentionally incite hatred against gay people by using threatening words or behaviour should not be able to excuse their actions on freedom of speech grounds. Those witnesses who bravely come forward to give information about a gang-related homicide should be able to do so in the knowledge that their identity will be protected. Vulnerable and intimidated witnesses should be given all necessary assistance to help them to give their best evidence in court. Victims and the wider public should have confidence that there is consistency in sentencing across the country.
The Minister is a neighbouring MP and she knows that in this context one issue that often comes our way is the need for the protection of witnesses, even to the extent of having to provide a safe place for them or their business to move to. Will she give an assurance that those systems that involve the police, sometimes the Court Service and often local government, are now robust enough to deliver as quickly as is necessary that safety and protection that our constituents periodically need?
Of course I agree with the hon. Gentleman about how important that is, and I think the witness protection programme is sufficiently robust to deal with exactly that.
I visited one of my local schools earlier this week. It has been doing some work on knife and gun crime, which the hon. Gentleman knows is very important in our constituencies. The people at the school referred me to the Children’s Commissioner survey published last week, which showed that 37 per cent. of young people are afraid to come forward as witnesses in gun or knife crime-related situations. They conducted a survey in their own school, which revealed that 88 per cent. of them felt they would be fearful of being witnesses. This Bill changes that for such young people, and that is hugely important for them. Victims should not have to suffer a second time when they see the person who inflicted pain and suffering on them, perhaps by killing a loved one, being able to cash in on their notoriety. That, too, is dealt with in the Bill, and will be part of helping victims feel they are at the centre of the justice system.
It is through these measures that the Bill will help to deliver justice: justice for victims; justice for witnesses; justice for bereaved families; and justice for the communities we represent. It is for that reason that I hope Members will wholeheartedly give the Bill a Third Reading, and I commend it to the House.
May I begin by thanking the Minister for her kind words about the way in which the Opposition have engaged with this Bill, and by joining my hon. Friend the Member for North-West Norfolk (Mr. Bellingham) in sending good wishes for a speedy recovery to the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle), who cannot be here with us this evening?
As with every plum duff, this Bill has some good points that persuade us—just—to allow it to pass through to the other place, where its more hopeless, useless and egregious provisions can be removed or amended. I want to remind the House of a passage from a Government Green Paper published yesterday, as it tells us a lot about how this Government think, and what motivates them in coming to this House with legislation. The passage is from paragraph 4.2 of “Rights and responsibilities: developing our constitutional framework”, published yesterday by the Secretary of State. It reads as follows:
“The possible range of approaches to a Bill of Rights and Responsibilities represents a continuum. At one end, it might take the form of a declaratory and symbolic statement. At the other lies a set of rights and responsibilities directly enforceable by the individual in the courts. Along the continuum there are options including some form of statement of principles which, endorsed by Parliament, might inform legislation—as well as public authority and court decisions—while not necessarily giving rise to enforceable individual rights. Ultimately, different categories of principles, rights and responsibilities could have different legal effects, so that a Bill of Rights and Responsibilities could encompass a range of legal effects and mechanisms for enforcement.”
That is pretty vacuous, but if one were to substitute “Bill of Rights and Responsibilities” with “Coroners and Justice Bill”, one would have an equally apt description of the vacuity behind much of the thinking that has created this Bill.
We welcome the reform of the coronial system in part 1 of the Bill, subject to our deep concerns about the fact that clause 11 remains; we have no doubt that the other place will give that a thorough investigation. We also welcome other aspects of the Bill, outside part 1, that deal with anonymity in investigations. As I said in Committee, we take on board and fully understand the need for anonymity in the stages of investigation into many of the gangland attacks and offences that take place on the estates in our inner cities.
We also welcomed the revival, if that is the correct expression, of the Criminal Evidence (Witness Anonymity) Act 2008 in respect of witness anonymity orders, which chapter 2—clause 70 and those following—provides for, subject to a number of matters of detail. We welcomed the measures on vulnerable and intimidated witnesses and the extension of live video links for the giving of evidence by vulnerable or frightened people. We have had discussions and disagreement this evening about the way in which the Sentencing Council will be required to arrive at conclusions and recommendations, and whether they should be followed or taken account of. However, as a matter of general principle, we do not object to the existence of a sentencing council; indeed, we have understood its positive features since 2003. We were prepared to welcome other matters, including those relating to the exploitation of criminal memoirs.
We are not only disappointed with the content of some of the provisions on important subjects such as murder—the Government’s refusal to accepts amendments to do with developmental maturity in cases involving diminished responsibility, and in respect of youngsters as well as adult killers—but we are deeply concerned about the way in which the Government have refused to remove the issue of sexual infidelity from the loss of control provisions in clauses 41 to 43. They deal with what used to be called provocation.
The Bill has contained some good things, some less good things and some plainly dreadful things, one of which the Government did recognise through the withdrawal of what was clause 152 and what became clause 154. That was an appalling clause, but it was all of a piece with their attitude to individual rights and the relationship between the state and the citizen. Each time they come forward with a provision to increase the power of the state, to diminish the rights of the individual or to create some new criminal offence, they say that it is only a small reduction of liberty or a small new offence, but that it is strictly necessary in this particular case. When these things are looked at individually, they may not look too bad, but this is—
If I may finish the sentence, the Secretary of State may have as much time as he wishes—[Interruption.] Well, he is very good at asking long questions. He is also very good at giving long answers—[Interruption.] I forget the name of the Whip’s constituency, but I do hope that his constituents realise what a valuable contribution he makes to our deliberations.
This is a salami-slicing approach to our rights and liberties. Consider the catalogue of infringements engineered by this Government—when one reconstructs the salami, one is left with bad meat.
It is a no; that is right. Well done! I am delighted. It is almost a no that this Bill will get a Third Reading. The other place will not suffer the same time constraints and will not be bullied by Government business managers, and I am sure that it will produce a far better Bill.
Yesterday, the Government’s timetable motion allowed only the clause 11 discussion to take place. All the other stuff on homicide, assisted suicide and other aspects of the coronial system had to fall by the wayside, and that is not a good way to construct legislation. Today, we were not able to complete all the timetabled business. Is that because the Government did not want those issues discussed? Did they not have the self-confidence to allow that discussion? Either way, we are left with a duff bit of plum duff, a curate’s egg. I hope that the other place will not feel in the least bit inhibited by the Government’s attitude to civil rights or the proper way to deal with legislation, and I trust that when the Bill comes back to this place in a few months, it will be greatly improved.
May I also send my best wishes to the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle)? I hope that she recovers quickly from her illness.
The Minister was right to say that several parts of the Bill have received all-party support. She was also right to say that it is a better Bill than when it was introduced, especially after the removal of the information-sharing provisions. As I said yesterday, the jurors’ inquest provisions are slightly better than they were when we started. However, as we made clear yesterday, they have not improved enough. They still permit the exclusion of juries in cases in which it is essential that they are involved, and they still far too easily exclude the families involved.
The rest of the Bill has scarcely been scrutinised at all and it is scandalous that we should pass the Bill in its present form. Several of the matters that we have discussed tonight are still not right. The data commissioner, for example, still has insufficient powers, especially over the private sector. The Sentencing Council provisions are still biased in favour of an old-fashioned, backward-looking view of the criminal justice system. The anonymous witness provisions are still seriously flawed. They fail to recognise the importance of special counsel and the Government have not responded to the penetrating debate in Committee about threats to property and how they should be handled in this legislation. We have not even reached the provisions for criminal memoirs and, although they are fine in principle, many of the details are confused and will cause serious difficulty if they reach the statute book in their present form. Above all, however, what happened yesterday means that the Bill cannot be passed in its present form. The motion before us says that “the Bill be now read a Third time”, and it is the word “now” to which I object. Virtually none of the provisions on coroners were reached. Amendments to do with the duties of coroners, the make-up of inquest juries and how the medical examiner system would work and be governed were simply not discussed. There are serious problems in all those elements of the Bill.
Even more important—and for me this is crucial—is the issue of the law on murder. The Bill reforms the whole law on murder, and the defences against it, but discussion in Committee revealed important weaknesses in the Government’s approach to what is the most serious of crimes. We put forward an entirely different approach that took into account the Law Commission’s original recommendations—which the Government ignored—and what was said in Committee. Those proposals have not been discussed at all.
In many respects, the law on murder—what counts as murder—remains too narrow for some cases and too broad for others. What counts as murder does not respond fully to what the public would understand by the word “murder”. Many deaths that the law would see as murder would be counted as accidental by most people, yet many other deaths are counted by the law as only manslaughter when most people would regard them as murder. That aspect of the law, which the Law Commission attempted to reform, has not been reformed at all by the Bill.
The Government’s diminished responsibility reforms are retrograde. They introduce far too much detail and specificity into a defence whose main function is to allow the jury to do justice. The introduction of an over medicalised form of defence—as the hon. and learned Member for Harborough (Mr. Garnier) said, it does not include any consideration of developmental immaturity in young people—is only part of the problem. Other difficulties include the fact that the Bill uses far too strict a notion of causation, with the result that the Government are restricting a defence that should not be restricted.
The Bill proposes that the notion of provocation to murder should be replaced by a defence of loss of control, but that is entirely unsatisfactory. In Committee, it became clear that the Government were jamming together two different types of situation. In one, a person can claim to have been justifiably angry at the victim of the homicide, with the result that the charge can be reduced to manslaughter. It is right in such cases that the defence—it is a sort of “blame the victim” defence—should be as narrow as possible. The test of loss of control remains perfectly proper in those cases, but the Bill confuses them with cases in which the defendant’s fear of what might happen, rather than his anger, is at issue.
Cases in the latter category include those that involve abused wives, but the Government have insisted, in the way that the Bill has been drafted, on maintaining a requirement for loss of control in those cases. I do not think that justice can be done if loss of control is included in such cases. Many of us came to the conclusion that cases based on anger and on fear should be entirely separate, yet the Government have not allowed any debate on that. I think that we are on the edge of a historic mistake in the law on murder, and it has all come about thanks to the procedural foul-ups in the way that the Government set up the debate.
The Bill is still seriously defective. In one regard—the proposed secret, juryless inquests—it is objectionable, but it has not been scrutinised enough. I cannot vote for, and must vote against, a motion that includes that word “now”.
I should like to speak briefly in support of the aspects of the Bill, as amended, that have an impact on Scotland. Of course, some of the matters raised in the debate, and some amendments—some pursued, some dropped—were contentious, but they affect only England and Wales, although there are minor provisions affecting Northern Ireland. I want to speak about the amendments, tabled for the first time yesterday, on fatal accident inquiries into overseas military deaths.
For the past 41 years, the bodies of service personnel stationed in Scotland who suffered a military death overseas have been repatriated, but there have never been legal proceedings in Scotland. All bodies returned to the UK were returned to England, where coroners’ courts undertook their duty of helping families to understand the circumstances of the death of loved ones. I have attended coroners’ inquests in Oxfordshire, and I pay tribute to coroners who have spent time trying to get to the bottom of tragic circumstances.
The Ministers involved, both here and in Edinburgh, have recognised that the current situation is no longer tenable. It is not fair that the English and Welsh legal system should carry all responsibility for inquiring into the background of overseas military deaths, while the Scots legal system—an excellent legal system—plays no part. I am pleased that there has been a confluence of interest in getting the situation resolved. It has been a technical process, and there are issues between the legal systems. However, a mechanism has been agreed for the repatriation of bodies and the transferral of cases, should that be necessary. In truth, we do not know how the mechanism will operate, although it was agreed in good faith. I hope that the proceedings will never be needed. Of course, we hope that nobody dies overseas in military service, but at a time when the UK military has a very fast tempo of military operations, sadly there are too-frequent deaths. Unfortunately, it is to be expected that the amendments, now part of the Bill, will move into operation.
People have listened in recent months and years to the families of service personnel, whether it be to those involved in the recent tragic case of Nimrod XV230, to Rose Gentle or to many other service families in Scotland, who have said that the burden and stress put on their families by having to travel far to coroners’ inquests down south was very difficult. The changes will remedy all that. We will look closely at how the system operates in practice.
Those are the only measures in the Bill that relate to Scotland; all the other matters of contention—data sharing, murder and assisted suicide—relate entirely to England and Wales. There are also some provisions that pertain to Northern Ireland. The only measures in the Bill that apply to Scotland relate to fatal accident inquiries into overseas military deaths, and that is why the Scottish National party will support the Government tonight.
There are elements of the Bill with which I profoundly disagree, and I shall have no hesitation in following the advice of my hon. Friend the Member for Cambridge (David Howarth) this evening. I want to touch on the matters that were not debated yesterday on Report—the changes to the coroner system. I have no doubt that the system could be improved further, but I respect the Government’s intentions in changing the architecture of the coroner system, and in making significant improvements to its operation.
My interest in the subject was sparked largely by the experiences of a constituent of mine, Mr. Alick Moore, who sadly lost his son on 15 October 2004 in a diving accident. Mr. Moore and his family had to wait four and a half years for an inquest to be held, with very little information on the protracted investigations of the Health and Safety Executive and the police into the circumstances of his son’s death. There was little apparent co-ordination, and a very unsatisfactory conclusion at the end. That, and the treatment that Mr. Moore received at the inquest, persuaded me that serious questions need to be asked. I have been in a long correspondence on the subject with various authorities, including the Attorney-General and the Under-Secretary of State for Justice, the hon. Member for Lewisham, East (Bridget Prentice). I should like to say how grateful I am for the way in which she addressed the concerns raised by Mr. Moore in her most recent letter to him. I know that he very much appreciates the care she took in responding to the points that he put.
I hope that the outstanding questions—work-related deaths—will be resolved in the further stages of the Bill, if it passes to another place. The work-related death protocol has been ineffective in ensuring proper co-operation between the investigating authorities, particularly the HSE and the Crown Prosecution Service. I am dismayed that the wait that Mr. Moore had to experience is so often seen as the norm. My question to Ministers is whether they believe the Bill will cure that chronic problem of delay in investigation and delay in inquests being held.
It is essential that the investigative period is substantially reduced in order to provide comfort to the bereaved family at an early stage, and so that at the time of the inquest they have clear and conclusive reasons for a prosecution being pursued or not. The key point that Mr. Moore would want to raise with the Minister is how we reduce that very long and entirely unacceptable period between the death and the results of any investigation.
Other issues include the degree to which bereaved families are represented in court. In work-related deaths, corporate respondents to the inquest are often well and expensively represented. The family do not have that opportunity. We should look at whether, within the guidance and the funding of the inquest system, we can provide for families to be properly represented where there are questions that need to be put on behalf of the family about the circumstances of death.
One of the things that my constituent found most difficult about the circumstances that he faced was the point-blank refusal of the coroner to communicate effectively with him until the inquest was completed, and even after that time, when he was not prepared to give any reasons for reaching his conclusions, having set aside what had already been accepted as a partial liability on the part of the company involved. That is unsatisfactory.
I hope the charter for the bereaved that the Under-Secretary mentioned will deal with some of those issues. Clear guidance must be given to coroners on the extent that they can communicate with and have a dialogue with bereaved families without prejudicing the conduct of the inquest. That seems to me to be a crucial point if we are to provide a proper service to bereaved families.
Despite my deep reservations about other parts of the Bill, I think the Government are moving in the right direction in the reform of the coronial system. I wish we had had a separate coroners Bill that dealt with that, rather than with all the other excrescences that have been added. Although I shall join my hon. Friend the Member for Cambridge in the Lobby this evening against the Bill, I very much hope that reform of the coronial system will survive parliamentary scrutiny and will be improved in another place, and that we shall see a real improvement in the services offered to families in future.
I share the views expressed by my hon. Friend the Member for Somerton and Frome (Mr. Heath), and the views that my hon. Friend the Member for Cambridge (David Howarth) expressed about the Bill. I share the frustration of colleagues who found that they were unable to debate so much of what they wanted to debate yesterday.
I return to the subject on which I intervened on the Minister. One of the things that will be a tribute both to the Minister and to the Government and that I hope will survive in the other place is a better system of protection of witnesses. When Tony Blair was Prime Minister, he made it clear that he was committed to changing the justice system so that victims and witnesses were better protected, and the Secretary of State for Justice and his team have said the same.
One of the tests of whether the Bill becomes decent legislation after scrutiny by the House of Lords is whether all those who would like to give evidence but are frightened feel that they can do so. The Minister replied positively to me about that. But whatever the shape of the Bill when it finishes its passage through both Houses, information about the protection given needs to be clearly, simply and urgently disseminated—in particular that the witness protection service works, and works well. I am still dealing with a family who have not yet had a satisfactory resolution, because of the witness protection service’s difficulty in achieving it, following a domestic violence case of great seriousness several years ago. Clearly, that is not a satisfactory state of affairs.
The coroner’s court in my constituency has a good reputation, but that has not always been true of other coroners’ courts around the country. The Minister shared with me her knowledge of the frustration of those such as the recently deceased and much lamented Eileen Dallaglio, who fought for so long to get what they regarded as justice for their children or relatives who died in the Marchioness disaster. As a result of their complaints, the right hon. Member for Kingston upon Hull, East (Mr. Prescott) was eventually extremely helpful in providing a public inquiry. One of the reasons that a public inquiry was needed was that the coroner system, through delay, insensitivity and not allowing the families to take part in the process and get answers to the questions that they rightly wanted to ask—not just about the causes of death following that sinking in the Thames more than a decade ago, but about personal matters such as what happened when hands were chopped off bodies, which was unacceptable—had failed those families.
The Minister and her colleagues are well aware of the concern, expressed in cases that we are still dealing with, about what happens when a British citizen dies abroad and the investigation by the domestic authorities of a foreign country is thought to be inadequate. Sometimes the matter comes back to be considered by coroners’ courts in this country—I am not talking about service deaths, which have been long debated. That issue is rightly a cause for concern among Members of Parliament, and by the time the Bill becomes law I hope that we will be able to say with confidence to our constituents that wherever a British person died, we will have a system that, at home or abroad, ensures the best possible investigation, answers to questions and a sense of closure, with justice. The Minister and her colleagues desperately want that, as do I and my colleagues.
In the three minutes remaining for scrutiny of the Bill—[Interruption.] It is unbecoming for Government Whips who have conspired—I choose the word carefully—to ensure inadequate scrutiny, to protest from a sedentary position when a Member wants to discuss the Bill. They should recognise what has happened.
The Joint Committee on Human Rights spent a lot of time scrutinising the Bill. We were pleased by the speed with which the Minister replied to our letters. It must also be noted that the Government were willing to provide extra days in Committee, and that they provided two days on Report, when the Criminal Justice and Immigration Bill got only one day—[Interruption.] The Government Whip, the hon. Member for Wrexham (Ian Lucas), says that it was him—congratulations. However, is it not a pity to spoil it all with the programme motion, whereby important chunks of the Bill were not scrutinised? Ministers have done an excellent job—
So much was done well by the Government, it is a pity that they failed on the fundamental question of Members being able to amend and debate important parts of the criminal law such as murder. To fail at that hurdle is unfortunate. In a spirit of compromise, I ask whether the Government will reflect on whether programme motions can better be used, in consultation with the Opposition parties, to ensure that if there is failure, we all fail, rather than us having sometimes unseemly rows about the failure to scrutinise. That does not look good, particularly given what the Prime Minister has said about the importance of the House being able to scrutinise. The Bill involves important matters, and those who have not been in Committee feel that this is their only chance to get stuck in. We have had good debates about some of the other issues. I urge the Secretary of State, who is listening, to think about what I have said and talk to his colleagues about it.
Debate interrupted (Programme Order, 23 March).
The Speaker put forthwith the Question already proposed from the Chair (Standing Order No.83E), That the Bill be now read the Third time.
Bill read the Third time and passed.