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Legal Aid, Sentencing and Punishment of Offenders Bill

Volume 534: debated on Tuesday 1 November 2011

[2nd Allocated Day]

[Relevant Documents: The Third Report from the Justice Committee, on the Government’s proposed reform of legal aid, HC 681, and the Government’s response thereto, Cm 8111.]

Further consideration of Bill, as amended in the Public Bill Committee

New Clause 30

Abolition of certain sentences for dangerous offenders

‘In Chapter 5 of Part 12 of the Criminal Justice Act 2003 (sentencing: dangerous offenders) omit—

(a) section 225(3) to (4) (imprisonment for public protection for serious offences),

(b) section 226(3) to (4) (detention for public protection for serious offences),

(c) section 227 (extended sentence for certain violent or sexual offences: persons 18 or over), and

(d) section 228 (extended sentence for certain violent or sexual offences: persons under 18).’.—(Mr Kenneth Clarke.)

Brought up, and read the First time.

With this it will be convenient to discuss the following:

Government new clause 31—Life sentence for second listed offence.

Government new clause 32—New extended sentences.

Government new clause 33—New extended sentences: release on licence etc.

Government new clause 34—Power to change test for release on licence of certain prisoners.

New clause 3—Determination of minimum term in relation to mandatory life sentence—

‘In Schedule 21 of the Criminal Justice Act 2003—

“(a) Substitute paragraph 5(2)(g) with—

“(g) a murder that is racially or religiously aggravated or aggravated by sexual orientation or disability,”

(b) Substitute paragraph 5A(10)(b) with—

“(b) the fact that the victim was at greater risk of harm because of age or disability,”.’.

Government new schedule 4—‘Life sentence for second listed offence etc: new Schedule 15B to Criminal Justice Act 2003 Offences listed for the purposes of sections 224A, 226A and 246A.

Government new schedule 5—‘Life sentence for second listed offence: consequential and transitory provision.

Government new schedule 6—‘New extended sentences: consequential and transitory provision.

Government new schedule 7—‘Release of new extended sentence prisoners: consequential provision.

The new clauses and schedules relate to the abolition of sentences of imprisonment for public protection, known as IPP sentences. They were introduced in the Criminal Justice Act 2003 and have been in operation since 2005. Since their introduction, there have been numerous problems with them. The Government’s policy is that they must be replaced, and we have brought forward proposals to do so. My proposals to replace them with tough determinate sentences have inevitably aroused criticism from both the right and the left—the story of my life, as I complained yesterday. We are replacing a regime that did not work as it was intended to with one that gives the public the fullest possible protection from serious, violent and sexual crime.

The sentences in their present form are unclear, inconsistent and have been used far more than was ever intended or contemplated by either the Government or Parliament when the sentence was first created. The right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett), who is in his place, was very much involved in their introduction. I have no idea exactly what his view is now, but I am sure that he never imagined that thousands of people would be detained in prison indefinitely under these sentences. The debates at the time contemplated only a few hundred people.

I shall be extremely brief, given the time. It would be helpful, following the Secretary of State’s meeting with me and my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins), if he assured the House that reconsideration of the detail will take place in the House of Lords. There is no difference between those of us who accept that the original intention has not been followed through and those who think that the changes that my right hon. Friend the Member for Blackburn (Mr Straw) introduced have not fully bitten as intended, but the propositions before us this afternoon do not meet the specific need that was identified back in the early 2000s by my right hon. Friend the Member for Blackburn, and which I carried into being.

Order. I remind the right hon. Gentleman that he may have finished, but he should not take so long in future.

I am grateful to the right hon. Gentleman, and I will remember the need for extreme brevity. I am grateful for the discussion with the right hon. Members for Sheffield, Brightside and Hillsborough and for Wythenshawe and Sale East (Paul Goggins), and I will follow up the account by the right hon. Member for Wythenshawe and Sale East of the experience in Northern Ireland. We all acknowledge that where we are is not where anyone intended us to be. That is why we are addressing how to deal with serious and violent offenders.

I am sure that the words of the right hon. Member for Sheffield, Brightside and Hillsborough will be noted in the House of Lords. He speaks here with great authority. We will reflect on what is said by those who say that of course we have not got it quite right.

Normally I would give way, and if we had a full day of debate, I would have expected to give way to Members on both sides of the Chamber—[Interruption.] It is not my fault. Let me first finish explaining the general case. I will then try to give way as generously as I can. It would be quite possible to take so many interventions that they filled the remaining time, but I have no intention of doing so.

I remind the House that in June the Prime Minister announced that the Government intended to replace IPP sentences. He and I had agreed on that. We had originally proposed in our Green Paper greatly to restrict the number by raising the threshold above which IPP sentences were given. The sentencing parts of the Bill were received extremely well in public consultation because those who responded were largely those involved in the criminal justice system, but we received many representations saying that IPP sentences should abolished completely, which is why we have moved on.

I said that I would give way when I had finished my general points, and I will do so in a few moments.

I was referring not just to my opinion and that of the right hon. Member for Sheffield, Brightside and Hillsborough. I shall remind the House of some of the people who have said similar things. Louise Casey, the Commissioner for Victims and Witnesses, whose appointment to deal with problem families has been welcomed, said that she was pleased there would be a review of indeterminate sentences as they

“often leave victims in a horrible situation of not knowing when a criminal may be released from prison”.

She welcomed the proposal that tougher determinate sentences will be sought instead. Tim Godwin—as we all know, he was acting Metropolitan Police Commissioner until recently, and is now deputy commissioner and the criminal justice lead for the Association of Chief Police Officers—said he welcomed the review of IPP sentences and its focus on robust alternatives that will ensure the public is protected from the most serious offenders, as it is a source of frustration for victims and their families as to what a sentence actually means.

I cannot resist adding that the shadow Justice Secretary has suddenly taken up an extraordinarily far right position on this issue at the last moment. I have looked up what position he took, or at least what position Liberty took when he was its chairman in 2002, when indeterminate sentences were first introduced. At that time Liberty, under his chairmanship, denounced IPP sentences as

“a convoluted sleight of hand”

which aids neither accessibility of law for transparency in the sentencing process. His successors at Liberty have not changed their mind. I said yesterday that tomorrow he would press an amendment that has mandatory sentences for 12-year-olds. Old Fabians must be spinning in their graves as the former chairman of the Fabian Society takes up a totally opportunist position.

What is wrong is that indeterminate sentences are unfair between prisoner and prisoner. The Parole Board has been given the task of trying to see whether a prisoner could prove that he is no longer a risk to the public. It is almost impossible for the prisoner to prove that, so it is something of a lottery and hardly any are released. We therefore face an impossible problem.

As I have said, IPP sentences are piling up, and they have been handed down at a rate of more than 800 a year even after the changes made in 2008. At the moment, more than 6,500 offenders are serving those sentences, of whom more than 3,000 have finished what the public regard as their sentence—the tariff for what they have done. If we do not do anything about it, the number of IPP sentences will pile up to 8,000 or 9,000 by 2015—10% of the entire prison population. Sometimes, their co-accused who committed the same crime and were given a determinate sentence were released long ago. That is unjust to the people in question and completely inconsistent with the policy of punishment, reform and rehabilitation, which has widespread support. Only Opposition Front Benchers are still in favour of a punishment that leaves a rather randomly selected group to languish indefinitely in prison, for their lifetime if necessary.

I will now take some interventions, and then go on as quickly as I can to describe the much better, more sensible and tough regime with which we are going to replace IPP sentences.

I actually agree with doing away with IPP sentences. It is costing about £70 million per annum to keep those who are beyond tariff in prison, so I welcome the right hon. and learned Gentleman’s announcement as far as it goes.

I am very grateful, and I really would be astonished if I had managed to make myself more radical than the right hon. Gentleman. No one ever regarded me as a liberal Home Secretary, but I am commending perfectly sensible, common-sense ideas.

Has the Secretary of State been listening to police officers such as the one in my constituency who has written to me to say that IPP sentences are working? He gives the case of an individual who set fire to a house, causing danger to others, who clearly presented a serious risk to the public. That police officer states:

“IPPs are a very useful tool for the Courts and I respectfully suggest that they should be retained and any issues with how they are implemented be looked at instead.”

That is a police officer serving on the front line.

I do not claim rank for Mr Godwin, but I quoted what he has said on behalf of ACPO. Of course there are always dissenting views—I have never presented any proposal on anything that has had 100% approval—but the overwhelming majority of responses from those involved in the criminal justice system suggested that IPP sentences should be repealed. Those are not people who wish to be soft on crime, but they believe that IPP sentences have not worked as intended, as we have already heard in today’s exchanges, and need to be replaced. To reassure policemen, such as the one that the hon. Gentleman mentions, that a tough new regime will give them protection, I will spell out elements of the new regime.

Is not the fact of the matter that indeterminate sentences have a very low reoffending rate, and that most members of the public rather like the idea that people are not released from prison until it is safe? What will my right hon. and learned Friend do to ensure that people who are released go through all the necessary treatment and programmes to address their offending behaviour before they are released?

My hon. Friend’s last point is perfectly fair, and I am about to make some points that should reassure the great bulk of the public. Of course we must have in place a very effective method of dealing with all those who commit the worst sexual and violent offences. No one is suggesting that we do not need an effective regime for that.

For the very serious offenders, the ones who are among the worst of the likely inhabitants of Her Majesty’s prisons, there will be a new mandatory life sentence. That will apply in cases in which the offender has committed, on two consecutive occasions, two very serious sexual or violent offences, when each of which has been serious enough to merit a determinate sentence of 10 years or more.

I was criticised from the left in another place, and probably will be here, for introducing a new mandatory life sentence. We have only one at the moment, which is for murder, and everybody accepts it. As I have said, however, the new mandatory sentence is mainly intended to reassure those who, like my hon. Friend, are worried that the worst offenders might occasionally get out. We are talking about very serious offenders, most of whom would get a life sentence anyway if they had committed two offences meriting determinate sentences of 10 years or more. I do not think that many such people would avoid a life sentence, but as hon. Members can see, a life sentence in the new clause is subject to a caveat—the offender will receive a mandatory sentence unless their circumstances or the circumstances of the offence

“make it unjust to do so”.

The most important sentence for serious offenders will be discretionary life—the ordinary life sentence—which is already the maximum sentence for the most serious crimes in the calendar. That is the right penalty when the maximum penalty is life and the offence is serious enough. The British criminal justice system has always had that indeterminate sentence and I have never quite understood why it was thought necessary to create another one parallel to it. However, as I am now agreeing with those who introduced that sentence in the first place, I will not go into it.

My new clauses make no changes to discretionary life. Both I and those who advise me anticipate that once IPP sentences are no longer available, much more use will again be made of discretionary life sentences. The worst people will go back to having life sentences, which we know works perfectly effectively and well. They will be under licence for life if they are ever released, before which there will be a Parole Board process.

Will the right hon. and learned Gentleman explain the practical difference between an offender who is given an IPP for, say, a minimum tariff of five years, who will then be released by the Parole Board on proof of meeting certain conditions, and someone who is given a discretionary life sentence with a tariff of five years who is released by the Parole Board on exactly the same conditions? What is the difference?

Well, there are differences in the regime, the sentence planning and so on, but not very many. I will go back to the point about the regime that we want to introduce for people with extended determinate sentences, but the right hon. Gentleman makes my point. What is wrong with saying that the courts should use the ordinary life sentence? They will use a life sentence when they judge that a case is so serious, and when future risk is so high, that it is the only proper sentence.

For other offenders, we are introducing a new extended determinate sentence. The offender will receive a custodial sentence plus a further long extended period of licence set by the court. Those will be quite long determinate sentences, and the offenders who receive them will serve at least two thirds of them. In serious cases, offenders must apply to the Parole Board for release, and the board may keep them inside until the end of the determinate sentence.

I shall just finish explaining this point and then answer questions.

The new sentence can be given for any sexual or violent offence, provided that the court thinks the offender presents a risk of causing serious harm through reoffending, and that the offence meets the four-year seriousness threshold that is currently in place for IPP sentences and extended sentences for public protection. The new sentence can also be given when the offender does not reach the four-year threshold, but has previously been convicted of an offence listed in proposed schedule 15B. I will cut out further detailed explanation, but that means that any offender who would previously have received an IPP will be eligible for the new sentence if he has not received either the mandatory life or the tougher, discretionary life sentence.

I very much agree with what my right hon. and learned Friend is trying to do, but he is writing what is the likely practice of the court into the statute book. He mentioned the Parole Board and new clause 34, which causes me concern. He appears to be giving to himself and the Executive the power to direct a court when dealing with existing IPP prisoners, because the Parole Board is regarded in law as a court, and he will give directions to it under new clause 34.

I shall come to the Parole Board before I conclude my remarks, but we are not taking away its power: nobody who previously had an IPP will be released, even at the two-thirds point, unless they have first satisfied the board.

The most obvious difference between life sentences, which will now be used more widely, and IPP sentences is that, in the case of life imprisonment, licences are for life and subject always to recall, whereas IPP sentences are not. However, as I said, criminals who complete an extended determinate sentence must then serve extended licence periods, during which time they will be closely monitored and returned to prison if necessary. The courts have the power to give up to an extra five years of licence for violent offenders and eight years for sexual offenders on top of their prison licence.

There are further protections. Some people believe—the Labour Front Bench team certainly affect to believe—that we are exposing people to risk by making this much overdue change. We are also introducing—not in the legislation, but I undertake to introduce them—compulsory intervention plans for dangerous offenders while they are in prison, so that they are supported to change their ways and not commit more crimes when they are eventually released. By the end of sentence, offenders should therefore have undergone interventions—made in a more certain and organised way than at present—to address their offending behaviour.

There is rightly concern that those currently serving IPP sentences should be supported in progressing through their sentences and achieving release on licence. However, we will be using our best efforts to improve the progression of these prisoners through sentence, including with improvements to assessment, sentence planning and delivery, and parole review processes. We continue to monitor outcomes to ensure further improvements in this area.

There are yet further protections available to the court. We do not believe that our proposed changes put the public at risk or weaken our risk-management regime. Most sexual or violent offenders sentenced to 12 months or more in custody will fall under the multi-agency public protection arrangements framework, which means that the relevant authorities will work together to co-ordinate assessments of risk and risk-management plans for the offender once they have been released on licence. Robust risk-management systems are now in place for a range of offenders. Court orders are also available to manage the risk of serious sexual and violent offenders who appear to present a risk at the end of their sentence. Violent offender orders and sex offending prevention orders place restrictions on these offenders, and if they breach those orders, they can be sent back to prison.

In the sentencing Green Paper, we raise the question of whether the Parole Board’s test for release in these cases is the right one, because only a tiny number of people ever emerge from prison at the moment—the rate is less than 5% a year—and we are acquiring people who are still in prison years after they finished the tariff that the judge imposed on them. This is a question that we will explore further. The amendments give the Secretary of State a power to change the release test used by the Parole Board, which is set in statute for IPP prisoners and for prisoners serving the new extended sentence. The power will be subject to the affirmative procedure. We will consult carefully and see what happens to the Parole Board and the courts once we have made the present form of sentence extinct for former prisoners.

The trouble now is that someone who has finished his tariff has to stay in prison unless he can persuade the Parole Board that it is safe to let him out. [Interruption.] That is it; that can be difficult, sitting in a prison cell, although we are going to produce some management plans. On the other hand, if we are keeping someone in beyond their tariff, it is certainly arguable that we should have some positive reason for fearing that there is a risk that he is going to offend when he leaves. We have to reflect—we will consult on this—on whether we have been giving the Parole Board an almost impossible task. It is no good pretending that it can come to a scientifically certain conclusion in each case. None of us would like to say, if we met a range of prisoners, which were now reformed and which would offend again. The Parole Board gets it wrong now: some of those it releases offend again, while some of those in prison are never going to offend again, if we can actually get them out. We will consult on whether the current release tests for IPP sentences and the new extended indeterminate sentence ensure effective public protection while allowing everyone to be satisfied—as far as they can ever be satisfied in this world—that the offenders can now be safely managed in the community.

Some 40% of discretionary and mandatory lifers are post-tariff. They have to prove that it is safe to release them. Can the Secretary of State please explain what the difference is in substance between someone on a life sentence who has to satisfy the Parole Board that it is safe to release them and someone on an IPP?

Because the judge, in full knowledge of the circumstances of the offence and the offender, has decided that such a serious offender should get life imprisonment, it is—

It is not. What I think the right hon. Gentleman is saying—I will listen to him in a moment—is that he proposes to defend what is left of the last Government’s proposals, the author of which acknowledged quite early in my speech that they plainly needed to be changed. If I get the chance, I will listen to what the right hon. Member for Blackburn (Mr Straw) is trying to argue, but he seems to be reassuring us that life sentences fulfil that requirement for the very worst people—that they are looked at carefully before being let out again—and those people will be on licence for life: once they start going in for aberrant behaviour, they can be recalled to prison and punished once more.

Apart from the very outlying people on the right and the left, I hope that I have satisfied everybody. It is high time that we reformed indeterminate sentences. Personally, I am amazed that they have survived judicial review and challenge in the courts thus far, but if something was not done, they would not survive very much further, which would lead to unfortunate consequences if a court suddenly started ordering us to release such prisoners and decided that they were being held unlawfully. I have recently described them as a “stain on the system”. I said that at a private meeting in the House of Lords—although it soon found its way into the press—but it is my opinion. What we are putting in place is protection for the public: far more rational, certain, determinate sentences, which is much more in line with how we think the British system should behave.

I will, of course, be followed in this debate by the right hon. Member for Tooting (Sadiq Khan). I have already expressed my amazement at his position, and I have found some other quotations from him in my time. I cannot understand how he can match up to his present position. For example, when we both started in July last year, his leader—the current Leader of the Opposition—said:

“I don’t think we should try to out-right the right on crime,”

and said that I was

“opening up an opportunity for us to redefine part of the debate about criminal justice.”

Only a few weeks ago, addressing the Howard League, the right hon. Member for Tooting said—in a lecture that I thought put him in a very convoluted position between his conscience and where he is at present—that

“our big challenge is to communicate that punishment and reform can and should go hand-in-hand…To deliver this calls for an honest debate”.

The right hon. Gentleman, the shadow Justice Secretary, is a radical lawyer from south London—he is more radical than I am—and he is trying to “out-right” me in what is an absurd and hopeless case. What we are putting in place is an altogether rational and sensible system.

I thank the Justice Secretary.

“Public safety remains our primary concern and indeterminate sentences will always be appropriate for the most serious crimes”—

not my words, although I agree with them entirely, but those of this Government’s Green Paper, “Breaking the Cycle”, which was published in December 2010. How things have changed in just 11 months: instead of what was said then, at the last minute—and after interference from No. 10 Downing street—there was suddenly no mention of indeterminate sentences when the Bill was published in June, more than four months ago. At the last possible moment—at one minute to midnight—we are presented with new clauses that propose the total abolition of indeterminate sentences.

That is compounded by the ludicrous timetabling of today’s proceedings, whereby, because of the earlier ministerial statement and the knife that will halt proceedings on the new clauses at 6 pm, we are left with only 73 minutes in which to debate them for the first time. This is no way to go about passing legislation that is supposed to protect the public from some of the most serious and violent offenders. Why are the Government scared of debate? The Justice Secretary should be ashamed.

Of course, responsibility for these new clauses and the consequences that will flow from them lies not with the Justice Secretary; it can be placed firmly at the door of No. 10. From what we can see, the Justice Secretary is no longer in charge of his own Department. Back in June, it was the Prime Minister—without the Justice Secretary being present—who presented the Government’s justice policy. I have a huge amount of respect for the Justice Secretary, but I am afraid he has become the mere puppet of a Prime Minister who appears no longer to have confidence in his abilities. I might be the shadow Justice Secretary, but he is a shadow of his former self.

The new clauses appear to have been conjured up, but it is not just their timetabling that is rushed. Their incoherence smacks of rushed drafting as well. They have had no pre-legislative scrutiny. The proposals did not form part of the Second Reading debate, and they were not debated at all in Committee. Now, we have less than half an hour in which to discuss them on the Floor of the House on Report, which rides roughshod over public concerns.

The right hon. Gentleman seems to be using his time to complain about not having enough time. Before he develops any conspiracy theories, may I make my position clear? I have spoken out against indeterminate sentences in the House before. The Green Paper proposed to restrict them, and I explained why. The announcement in June was made after the most careful discussion with the Prime Minister. We both agreed it, and the idea that I have been forced into accepting the abolition of indeterminate sentences is complete nonsense. The consultation process encouraged me to believe that serious people in the justice system were prepared to go for total abolition, and I leapt at the opportunity, as should the right hon. Gentleman, as a former chairman of Justice and of the Fabian Society. I cannot imagine where he thinks he is taking the labour movement to.

We now know that, when this Government review policy, it means that they abolish it. This is the same Justice Secretary who signed off the Green Paper last December.

Not for the first time, the Government will have to leave it to colleagues from all parties and none in the other place to perform the scrutiny that this Bill deserves. The Justice Secretary is presenting us today with a blueprint that will risk more crime, more victims, and more serious and dangerous offenders being out on the streets. It is as simple as that, and he knows it. No amount of smoke and mirrors can disguise the fact that, by abolishing indeterminate sentences, he is risking the safety of communities in each and every constituency.

“Many dangerous criminals will be released, including repeat offenders, regardless of the risk they pose to the public.”

Those are not my words, but those of the right hon. Member for Arundel and South Downs (Nick Herbert), now the Minister for Policing and Criminal Justice, back in 2008, when he was commenting on the changes to indeterminate sentences that we made when we were in government. We made changes to them, but this Government are now proposing to abolish them altogether. What happened to the party that believed in law and order?

I spent a few minutes this morning finding recent cases in which judges had given an indeterminate sentence to a convicted offender to protect the public. I will not give the names of the offenders or the victims, as I do not want to cause the victims further distress. A South Wales police press release from September this year bears the heading “Indeterminate prison sentence for convicted rapist”.

It goes on:

“A Cynon Valley man described as a ‘dangerous individual’ has been given an indeterminate sentence for the rape of two women and wounding of another…D, who the judge described as a dangerous individual, will not be considered for parole for six years. D’s victims have released the following…statement: ‘Our lives will never be the same after the trauma D has put us through. We were physically, mentally, financially and emotionally abused and controlled by him. We are satisfied with the court’s decision to give him an indeterminate sentence and relieved that no-one else will suffer like we have.’”

In this October’s online version of the Birmingham Mail was the headline, “Teenager jailed for stab attacks on father and son in West Heath”. The article stated:

“A teenager has been given an indeterminate sentence for stabbing a father and son while they tried to protect a ‘petrified’ youngster who sought refuge in their Birmingham home…Judge William Davis QC said: ‘You stabbed both the householder and his son causing both of them significant injury. It is a very serious offence because two people were attacked on their own door step and one of them left perilously close to death.’ The judge said he believed J to be a ‘dangerous young man’. After sentencing”,

the victim said,

“I am extremely pleased the judge recognised the seriousness of the offence. It shows the public that carrying knives will not be accepted in society today.”

This month’s North-West Evening Mail contained the headline, “Caustic soda brute loses appeal against sentence”, and continued:

“A ‘dangerous and manipulative’ thug, who scarred a teenager for life by pouring caustic soda on her face, has been told by top judges he deserved his indefinite jail term…On Thursday G challenged his indefinite jail terms, with his lawyers also arguing the minimum five years he was ordered to serve before applying for parole was ‘excessive’. But his appeal was thrown out by judges sitting at London’s Criminal Appeal Court, who described G as a ‘very dangerous man’ who should not be released from prison until the Parole Board considers it safe to do so…Sentencing him, the crown court judge said he was a ‘controlling, manipulative, emotionless and uncaring man’ who was a danger to women…The appeal judge”,

Mr Justice Spencer,

“said: ‘The judge was quite correct to conclude that the appellant should not be released until the Parole Board deems it safe for him to be released.’”

Can the right hon. Gentleman think of any good reason why, given the remarks he has provided about the sentences, that the perpetrators would not have been given a life sentence? Normally, people like that would get a life sentence. Since there have been IPP sentences, some people have got them, but in the cases the right hon. Gentleman describes, judges will go back to the normal practice of giving a life sentence.

They will not. The right hon. and learned Gentleman’s proposals require there to have been a first offence, and the schedule provides for sentences of 10 or more years. The person found guilty will have to have come back for a second offence and be found guilty of an offence that also requires a sentence of 10 or more years. In all these cases—the right hon. and learned Gentleman knows this—the Government will have taken away from the judge who has heard all the evidence and knows the facts of the case the power to give the IPP sentence.

There is no qualification for a life sentence. People can be sent down for a life sentence for their first offence if it is serious enough and demonstrates the danger posed to the public. We are not introducing any qualifications at all to the power to give life imprisonment.

I could not have demolished the arguments better than the right hon. and learned Gentleman just has. He makes the exact point for me. Under the proposals we are presented with today, our judges will be stripped of the power to prevent the most serious criminals from being released and going on to be a danger to society. We can imagine a scenario—and an horrific one at that—of someone committing a serious and violent assault being caught, charged and found guilty. Under the Government’s new proposals, I accept that they might receive an extended determinate sentence and be eligible for release after two thirds of their sentence, should the Parole Board be satisfied. However, even if the Parole Board were not satisfied after two thirds of the sentence had elapsed, there would be nothing to prevent release at the end of the full sentence handed down by the judge. Dangerous individuals would be released at the end of their extended determinate sentence irrespective of whether they posed a risk to the public. Under the new proposals, judges will be able to do absolutely nothing about that. They will be powerless to deprive the offender further of his liberty in order to keep the public safe. I should be happy for the Justice Secretary to intervene on that point, but he apparently does not wish to do so.

The right hon. Gentleman clearly did not understand my question. He gave some dreadful descriptions of dreadful cases, featuring what—when the full circumstances are known—are clearly some of the worst examples of violence and sexual offences that could be found. The point is, however, that such people will receive life sentences, because such sentences are available to the court, and they will not be released until someone is satisfied that they are no longer as great a risk as they were. They will be subject to licence for the rest of their lives, and it will be possible to recall them if they start behaving in any sort of threatening way. The life sentence fills the gap that the right hon. Gentleman claims I am creating. We are not changing the position at all.

I realise that the Justice Secretary has not practised law recently, but if a judge could deliver a life sentence for such offences now, he or she would do so. It is because judges have the power under the IPP sentence to deliver indeterminate sentences to protect the public that they deliver those sentences. I am afraid that the Justice Secretary is not right.

A critical weapon will be absent from a judge’s arsenal, preventing that judge from handing down the most appropriate sentence. The judge will simply not be able to sentence the offender with the condition that only when the authorities are satisfied that he is not a risk to society will he be released. I know that that will free up prison places and save the Government money, but taking risks with public safety is plain wrong, which is why we will oppose new clause 30.

Public safety will also be compromised by the proposed “two strikes and you’re out” sentences. That is a great media soundbite and a sure-fire way of making the Government seem tougher than they really are, and it is precisely the kind of thinking that lies behind the inclusion of the words “punishment of offenders” in the Bill, but policies relating to public safety cannot be determined by a public relations strategy.

We do not have to scratch very far beneath the surface to see that the Government’s plans are riddled with problems. Not only are they a rehash of failed Conservative policy from the 1990s, but they introduce a worrying amount of risk—risk that will undermine public safety. Through their “two strikes” policy, the Government absolve themselves totally of any responsibility to identify the serious, violent offenders who are most likely to reoffend. That should be done at the time when the first sentence is handed down for the commission of a heinous crime. It was for the purposes of precisely this scenario that the previous Government created indeterminate sentences, but this Government are making no effort to protect the public from those who are most likely to commit further serious and violent crime following their release. They will address the problem only once the offender has committed a second crime.

The right hon. Gentleman has cited cases, and appalling cases at that, in which he feels that an indeterminate sentence is appropriate. Can he give any examples of cases in which he thinks that an indeterminate sentence has not led to justice—in which people have been locked up for many years, perhaps longer than they should have been?

I shall come to the challenges posed by IPP sentencing. I accept that criticisms could be made about cases of people who should perhaps have been released and have not been. The hon. Gentleman has made a fair point. However, I do not think that the Government should risk the possibility that their policy will create countless additional victims, pain and misery that could be prevented if they took seriously their responsibility to keep the public safe. It should also be noted that the threshold for the handing down of a mandatory life sentence for the second offence is higher than that required for an indeterminate sentence. As a result, there is a risk that some of the most dangerous and serious criminals will not even be covered by the “two strikes” proposals. All that points to the need for some kind of indeterminate sentence that judges could use only in the most serious circumstances.

The 2008 reforms helped to deal with some of the problems that were inherent in the Criminal Justice Act 2003, and I pay tribute, as did the Justice Secretary, to the work of my right hon. Friend the Member for Blackburn (Mr Straw) for the work that he did at that time. If the Government think that further reform is required, they can take many positive lessons from Northern Ireland’s successful introduction of indeterminate custodial sentences. I know that the Justice Secretary has corresponded with Northern Ireland colleagues, and has had discussions with my right hon. Friends the Members for Wythenshawe and Sale East (Paul Goggins) and for Sheffield, Brightside and Hillsborough (Mr Blunkett) on this very matter. He has said nothing, however, about why he believes the Northern Ireland experience does not contain lessons for England and Wales; instead, he simply dismissed that possibility out of hand.

I am on record as saying that I want IPP sentences to be reformed so that they work as originally envisaged. I am happy to work on a cross-party basis to achieve that, so that IPP sentences protect the public from the most serious violent reoffenders. What I am not willing to do is play hard and fast with public safety.

I have also previously said that we need to look at the backlog of prisoners who have served their minimum tariff but are still in prison. That involves addressing the shortage of suitable courses and programmes to support those on indeterminate sentences. This problem has been exacerbated by the cut of about 25% in the Justice budget. One thing I will not support, however, is any watering down of due process before release of those who have served their minimum tariff. Instead, this Government have decided that indeterminate sentences should be discarded lock, stock and barrel, and there is now no mention at all of how they will deal with the backlog.

It is accepted that the Government’s plans will involve an even greater role for the already over-stretched Parole Board on release decisions and increased amounts of licensing, and I foresee serious problems ahead. There will be more call on the already over-stretched programmes and courses to support the rehabilitation of serious and violent offenders. The Justice Secretary must be clear with the House if, as a result of his bungled last-minute sentencing proposals, the extra resources required by the Parole Board and the prison service in order for them to be effective will not be forthcoming. If that is the case, he must explain how he expects the service to deliver more with the same budget.

All this is happening at the same time as the prison population is at crisis point, with more overcrowding, fewer programmes to support rehabilitation, and less power to the judges. The Justice Secretary’s claims that his reforms would “restore public confidence” and bring “common sense to sentencing” are laughable. How does he believe that abolishing indeterminate sentences, and replacing them with extended determinate sentences and “two strikes” sentences, will provide greater clarity? Perhaps he might also wish to explain to the public why he feels that it is “common sense” to restrict the power of judges to prevent the most serious and violent criminals most at risk of reoffending from being released from prison.

Nor do the Justice Secretary’s proposals seem to chime with his desire, which I share, to increase the amount of discretion on offer to judges. A judge’s role is to make a judgment, within certain parameters, based on the facts of the case, not simply to do as the Justice Secretary of the day instructs. Last week when appearing before the Home Affairs Committee the Justice Secretary reiterated his opposition to moving towards more mandatory sentences, yet just a week later we are presented with increased mandatory life sentences and the removal of the option of a judge handing down an indeterminate sentence if the circumstances permit.

I urge the House to reject new clause 30. We should leave IPP sentences on the statute book so that judges can continue to give indeterminate sentences to protect the public in appropriate cases.

Unlike the Front Benchers, I will try to keep my speech brief so as to allow other Members to contribute.

The Government are making a serious mistake by getting rid of indeterminate sentences, and I believe the decision will come back to bite them on the bottom. The vast majority of people serving indeterminate sentences have committed crimes such as manslaughter, other homicide and attempted homicide, other violence against the person, rape, other sexual offences, robbery and arson. Why on earth would we want a Government who think it is perfectly acceptable to let those people out of prison before they are deemed safe to be released out among the public?

The shadow Secretary of State has hit the nail on the head. The Secretary of State started off in his post by saying that the most important thing for him was reducing reoffending. Well, we are talking about the crown jewel in the criminal justice system for dealing with reoffending. [Interruption.] I know that the Liberal Democrats do not believe that—they are soft on crime so I would not expect them to accept it. By the end of last year, 206 people who had served indeterminate sentences had been released from prison and 30% of them had committed more than 15 previous offences. Many of these people were not just dangerous offenders, but persistent offenders. How many of those 206 had committed another offence by the end of last year? The answer is just 11, or about 5%. The Secretary of State would give his right arm for reoffending rates of that order across the criminal justice system, so why on earth does someone who is supposedly committed to reducing the reoffending rate want to scrap the best-performing part of the criminal justice system on reoffending? This beggars belief. It comes back to the point that his real motive is not about reducing reoffending or protecting the public; it is about reducing the prison population. That is the only thing that he has ever been interested in, and this measure is all the proof we ever needed that that is his only motivation. It is absolutely appalling that a Government supposedly dominated by the Conservative party—the party of law and order—could be letting dangerous offenders out of prison before they are deemed safe to be released.

I wish to give a couple of examples of the people we are talking about from my local area of Bradford. Toffozul Ali was a convicted killer who was locked up indefinitely for a sudden and sustained knife attack in Bradford. Ali shook hands with his victim, Darren Jones, before stabbing him from behind, causing wounds to his arm, chest and knee. Ali already had a conviction for manslaughter for stabbing an Asian man to death when he was only 16, and he was branded a public danger and sentenced to an IPP. This Government seem to think it is fine that he can be released from prison before he is deemed safe to be released from prison—it is an absolute disgrace. Martin Ellerton was locked up indefinitely for stabbing his father to death, and he confessed to a six-year crime spree involving more than 630 offences of burglary and theft. These are the types of people we are talking about. The Secretary of State seems more concerned with their rights than with those of the people in places such as Shipley, who want to be protected from these people.

Stephen Ayre was a convicted killer who abducted and raped a 10-year-old boy in my constituency when he was unnecessarily released from prison. The father of that boy has gone through the trauma of that to call publicly for the Secretary of State to rethink his proposals on indeterminate sentences, saying:

“I would not wish what we’ve been through on anyone. The system failed my son six years ago. But Ken Clarke’s changes will only make things worse.”

I guarantee that people will be released from prison who otherwise would not have been and I guarantee that those people will go on to commit serious offences. What will the people who voted for this measure think about that, given that they will have created unnecessary victims of crime?

Does the hon. Gentleman realise that the new proposals mean that it is possible for somebody to receive an extended determinate sentence, to go on no courses or programmes, to sit in their cell for the duration of the sentence and still be released at the end of their determinate sentence?

I have a lot of sympathy with what the shadow Secretary of State says. The point is that, at the moment, these people are released only when they are deemed safe to be released. Under a determinate sentence—irrespective of whether or not people are safe to be released, whether or not they have gone through the programmes they need to go through to address their offending behaviour and whether or not they have behaved well in prison—they will be released back out to the public. That is an absolute disgrace, as is debating this issue in just 73 minutes, with 30 minutes for speeches by Back Benchers. I will give up at that point to make room for other people, but the Secretary of State should be ashamed of himself as this will measure create further unnecessary victims of crime.

I apologise for diverting the House to a rather different part of the debate, but my new clause 3, which I am pleased has support from Members across the House, is extremely important to a group of victims and their families—those for whom disability has been the motivation for murder or other violent crimes against disabled people. My new clause would apply the same minimum tariff in cases of murder in which disability has been a motivating factor as currently applies in similar cases with a sexual, racial or religious motivation. It would also shift the application of the aggravating feature of disability from being a matter of the victim being seen as vulnerable to a matter of the victim being at greater risk of harm, thereby firmly placing the obligation on the perpetrator.

I am delighted to support this new clause. Does the hon. Lady agree that although this might seem like an obtuse issue to hon. Members in the Chamber it is attracting great attention outside within the disabled community? Does she also agree that there will be utter incomprehension if we fail to make progress on this issue, which should be a simple matter of human dignity and equality?

The hon. Gentleman is absolutely right and he has raised this issue in the House and with the Lord Chancellor before. Many disability organisations and the families of victims of such crimes have contacted him and me to express their very deep concerns. I am particularly indebted to the Disability Hate Crime network, to Katherine Quarmby, an independent journalist, and to the Royal Association for Disability Rights. I am also especially indebted to Christine Oliver, the sister of Keith Philpott, who was a learning disabled victim of murder, for taking the time to talk to me about her family’s experience in relation to my bringing the new clause before the House.

I am sorry to intervene but, for the benefit of the debate on the other subject, may I assure the hon. Lady on behalf of the Government that we agree with her and my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard)? I am advised that the new clause is defective in its drafting—I can tell her why—and I can assure her that we will table amendments in the other House to give effect to what she is asking for. We also propose to cover the transgender issue. I think that will help us to get on with the debate.

I am extremely grateful to the Lord Chancellor, as will be the many disabled people and their families who have been in contact with me. I am delighted that a Government amendment will be brought forward in the other place and I shall not detain the House further.

The hon. Member for Stretford and Urmston (Kate Green) must be delighted that so brief and concise a speech has produced so immediate, thorough and satisfactory a response. I welcome what the Government are doing about this.

I want to be brief so I shall resist the temptation to go into the extraordinary intellectual journey that the right hon. Member for Tooting (Sadiq Khan) seems to have undertaken. I shall also resist the temptation to go into the habit of the previous Government of releasing people from prison at any moment when the jails seemed to be rather full without any reference to sentence planning or, for that matter, to the annual criminal justice Bill to which new clauses were always added on Report as far as I can recall—a practice I rather deplore because, as in this case, it denies us the opportunity to give new clauses proper scrutiny. I want to make it quite clear that the continuance of what I regard as a blot on the system—the use of indeterminate sentences—is something that I do not support. I therefore welcome the Lord Chancellor’s action to remove such sentences from our system, and I believe that view is widely shared in the criminal justice system.

People are concerned about the possibility of serious criminals re-entering society and committing other very serious offences, but how can they conclude that the best thing to do with such people is to put them in prison without our having any idea how long they might stay there? Surely, it is better to have a much clearer idea that they will be in prison for a long time and that if they are ever released, it will be under licence for life. I do not see why it should be preferable for the public to be told, “Well, we’ve put the chap in prison, but we’re not really sure when he’ll come out and a board that you know very little about will decide whether it’s safe.” I think most members of the public would be quite suspicious of that and would rather hear that there was a clear and long sentence. I am suspicious of mandatory sentences, but as a means of giving reassurance on how the courts might be expected to behave in the sort of cases we are discussing, the mandatory sentence we are discussing can be justified, especially as it is very carefully worded with appropriate provision for justice.

However, all this is only part of the story. None of it is any use unless we have proper sentence planning and proper offender management. Proper sentence planning is virtually impossible under the indeterminate sentences for public protection system, especially for those on shorter terms. People have not been completing the courses that they need to have completed to satisfy the Parole Board that they could be released. That system is untenable. We need effective sentence planning—and more determinate sentences are a better way of achieving that. We need proper offender management for offenders who are eventually going to leave prison. The Justice Committee has regularly stressed that the concept of offender management needs to include proper control. It should not be a system in which people are handed from one agency to another without a continuous process of supervision.

The trouble with the procedure in the new clause is that we do not have the opportunity to probe the details by tabling a probing amendment. I asked the Lord Chancellor earlier about new clause 34. I think that it is well intentioned in that it is an attempt to deal with existing indeterminate public protection prisoners, but I am bound to question it because it gives to the Executive the power to direct the Parole Board on what should be done with an individual. That is a direction to a court—there have been court cases that have ruled that the Parole Board must be regarded as a court. So it is an odd way of proceeding and one that we might have amended in Committee had we been able to consider the measure. If there is an opportunity, I hope that I can hear a little more about why the measure has been introduced as a new clause tonight.

I endorse the remarks of my right hon. Friend the Member for Tooting (Sadiq Khan) and the hon. Member for Shipley (Philip Davies). The hon. Member for Shipley, addressing the Lord Chancellor and his hon. Friends, said that the measure would lead to a number of dangerous offenders coming out of prison before it was correct to let them out. That, of course, is one of the key drivers of this policy. It is not about prison reform. The whole purpose of the measures put before the House last December was to cut the prison population by 6,500. The Lord Chancellor then ran into huge difficulties because he could not get his own side, our side or the judges to accept the 50% tariff for an early guilty plea and many other changes. I do not know the number exactly, but I do know that The Times quoted a Ministry of Justice spokesperson last Friday as saying that the changes would lead to a cut in the prison population of 2,500.

The Secretary of State seemed to want to have it both ways. He damned the concept of the indeterminate sentence for public protection and suggested that it was a stain on the system. He also tried to reassure the House and the public by saying, “Don’t worry, we are going to do exactly the same thing, but it is going to be called a mandatory life sentence.”

May I correct the right hon. Gentleman? The impact statement will show the Bill as amended. Other things being equal, with no changes in the crime level—which depends far more on how long a recession we have, the levels of youth unemployment, how successful we are in dealing with drugs and how far we get with prison reform—the Bill will reduce the prison population by 2,300. The measure we are now debating will have no effect on the prison population in the period to 2015. The reduction in the prison population is achieved by measures already discussed and approved in the Public Bill Committee.

It would have been helpful to have the impact statement before the House today rather than tomorrow. If the right hon. and learned Gentleman is saying—picking up the point made by the hon. Member for Shipley—that no prisoner who cannot be released until he has proved that he is not a danger to the public will not be released in the future, what on earth are these convoluted changes for?

The original design of the legislation in 2003 was unsatisfactory because it led in some cases to tariffs that were ludicrously short—in one case, 27 days. That was never the intention of my right hon. Friend the Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) and it was causing a major problem. I, with the approval of the House, sought to change the law. It is worth Government Members remembering, as my right hon. Friend the Member for Tooting pointed out, that we got no assistance whatever from the Conservative Opposition at the time. Their complaint was that we were going soft by introducing this change. It was absolutely extraordinary. I do not remember the right hon. and learned Member for Rushcliffe (Mr Clarke), now the Lord Chancellor, standing up either in the House or outside suggesting that there was an alternative. We made that change and, interestingly and wholly contrary to what was said, it has led to a stabilisation of the numbers on indeterminate public protection sentences. According to the Lord Chancellor’s statistical bulletin, in the most recent year the number of such sentences rose by only 3% over the previous year and the number of those receiving IPP sentences was 958 for the year ending March 2011, compared to one short of 1,000 for the year ending March 2010. The changes that were introduced are working.

Yes, it is right that we should look in more detail at the Northern Ireland experience to see what other changes can be made, but it is entirely wrong for the Secretary of State to try to set up a new system that will lead either to the release of dangerous people who are serious and persistent offenders, thousands of whom are in prison for violent offences and sexual offences—in the main—or make no difference at all.

If the hon. and learned Gentleman will excuse me, I will not.

The Lord Chancellor has been anxious to please the whole prison reform lobby—people who, bluntly, do not speak for the public, and rarely speak for the victims either in my experience, but even they will not be satisfied. Meanwhile, the public and innocent victims will be put at risk.

I declare an interest as a former barrister and a former criminal prosecutor, who has worked on several murder trials.

I assure my hon. Friend the Member for Shipley (Philip Davies) that I am not soft on crime, but I support the Government in their reform of this untenable, shocking and wrong system. With great respect to the right hon. Member for Blackburn (Mr Straw), he should hang his head in shame for being party to the Criminal Justice Act 2003 and the Criminal Justice and Immigration Act 2008, both of which were useless pieces of legislation that introduced something that the Prison Reform Trust, the Institute for Criminal Policy Research, the Nuffield Foundation and the criminal justice joint inspectorate described as

“one of the least carefully planned and implemented pieces of legislation in the history of British sentencing.”

The flip-flops of the shadow Justice Secretary would put a kangaroo to shame. It is entirely right to reform a system that was underfunded, worked poorly and is manifestly wrong in the circumstances of a 21st-century country. I will speak only briefly but I remind the right hon. Member for Blackburn of the comments in the House of Lords on the 2003 and 2008 Acts, when the Lords addressed IPPs in the cases of the Crown v. James and the Crown v. Lee. In a decision that effectively lambasted the then Secretary of State, Lord Hope of Craighead said:

“There is no doubt that the Secretary of State failed deplorably in the public law duty…He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods…that it was no longer necessary for the protection of the public that they should remain in detention.”

I could go on to quote from the judgments of Lord Carswell and Lord Brown of Eaton-under-Heywood, but I shall pause there.

I have made it clear that I am not soft on crime, as others have suggested. The debate has sadly been too short, but the new clause should certainly be supported by the House.

I share the concerns expressed by hon. and right hon. Members on both sides of the House, but I am grateful to the Lord Chancellor for the meeting he and his ministerial colleague held with my right hon. Friend the Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) and I. I am also grateful for the Lord Chancellor’s assurance earlier that he would still be thinking hard about the provisions as they go from this place to the House of Lords.

I want again to assert briefly that the Northern Ireland experience was instructive, and if the Lord Chancellor was prepared to reflect on it, it would strengthen the flawed prospectus he has given us. The experience in Northern Ireland was based on a tragic case involving Trevor Hamilton, who murdered Attracta Harron when she was on her way home from mass in December 2003. My right hon. Friend the Member for Delyn (Mr Hanson) remembers the case well because he dealt with the issues too. Hamilton had been released at the halfway point of a seven-year sentence for rape, indecent assault and threats to kill. The public were outraged that such a dangerous individual could be released with no control whatever by the public authorities.

The framework in Northern Ireland is based on two key principles. The first is absolute judicial discretion, with no presumptions about previous offences, such as there were in the 2003 Act—so complete judicial discretion. Secondly, judges have to go through a very clear process. Does the offence justify a life sentence? If it does, that is what the offender gets. If it does not, the judge must consider an extended sentence, which can give some degree of control over the release date, but the offender must eventually be released at the end of the extended custodial period. If that is not sufficient for public protection, only then can the judge give an indeterminate sentence.

The result is instructive. The Northern Ireland Justice Minister, David Ford, has sent us a report, for which I commend him—the report should be put in the Library. There has been no significant change in the number of life sentence prisoners. There have been 68 extended sentences and eight indeterminate sentences in three and a half years. That system is in control and it offers the public protection.

There are real risks with what the Lord Chancellor is proposing. If he is right and judges suddenly start to impose more life sentences, he will simply have replaced one problem with what he described as the original problem. He will have replaced indeterminate sentences with life sentences, which will bring all the issues relating to resources and parole that he faces currently. The most serious thing is that under his proposals all dangerous offenders not given a life sentence will have a definite date for release, which is a risk too far for this or any Government to take. It will leave a gap, bridged in Northern Ireland by the indeterminate sentence not as a first or a second option but as a complementary third option.

I am glad that the Lord Chancellor is listening. I hope he heeds that lesson and that when he takes his legislation to the other place he will make further amendments.

I am in favour of the Government’s decision to scrap IPP sentences in this instance. Liberty, among others, has said that IPPs could be a back-door measure to introduce life sentences for a huge range of offences. They were intended to be given only sparingly but of course they have been used far more frequently than expected. In March 2011, there were 6,550 IPP prisoners, half of whom served 240 days beyond their tariff, at a cost to the Exchequer of about £68 million. That is quite apart from the whole question of whether they were being held unlawfully, which worries many of us.

As it stands, the IPP regime has been a costly mistake. Furthermore, the indefinite legal limbo created by IPP sentences has in many instances undermined rehabilitation, leaving prisoners and their families uncertain when, if ever, release will be granted. Like the Lord Chancellor, I wonder why those sentences have not been challenged in the courts. I have campaigned on the matter for a long time. In February, I introduced a ten-minute rule Bill seeking the abolition of IPP sentences, so I am pleased about the Government’s decision.

New clause 32 would mean that prisoners serving an extended sentence of at least four years in custody, who have a prior conviction for one in a list of serious offences, will be required to serve two thirds of their sentence, instead of being considered for release at the halfway point. I argued for such a provision when I introduced my Bill, so I am pleased that it has been introduced. However, like the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), I have concerns about new clause 34. I have grave concerns about interference in individual parole decisions. That proposal must be looked at in the other place. We do not have time to debate it properly today and I am sure that many Members, whatever their views, would have appreciated a sensible timetable.

I shall correspond with the right hon. Gentleman and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). The new clause was tabled at my request so that we can contemplate changing the test for release by statutory instrument. I shall explore whether it gives rise to the problems described. I certainly have no intention at the moment of intervening in individual cases and making judgments about IPP prisoners.

That is certainly reassuring, but had we had a decent amount of time to discuss the proposals we could have probed them earlier. There is also some confusion about new clause 33, which will no doubt be picked up in the other place.

I know that I have done nothing for my street credibility, and even less for the Lord Chancellor’s, but I believe that the IPP system has been brought into disrepute. It is only right that we do away with it, and to that extent I agree with what the Government seek to do.

I shall be brief. I support the Government’s amendments. We need a system that does not try to predict risk, but sentences according to the seriousness of the offence. The right hon. Member for Wythenshawe and Sale East (Paul Goggins) made some very interesting points that deserve consideration, but now is the time for change. The current system is not sustainable. We are not dealing with the risk that these people pose and a system of determinate long sentences would be a far better service to the victims of crime, who are too often left in the dark about what happens in cases—

Debate interrupted (Programme Order, 31 October).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.

New clause 30 read a Second time.

The Deputy Speaker the put forthwith the Questions necessary for disposal of the Business to be concluded at that time.

New Clause 30 added to the Bill.

New Clause 31

Life sentence for second listed offence

‘(1) In Chapter 5 of Part 12 of the Criminal Justice Act 2003 (sentencing: dangerous offenders), after section 224 insert—

“224A Life sentence for second listed offence

(1) This section applies where—

(a) a person aged 18 or over is convicted of an offence listed in Part 1 of Schedule 15B,

(b) the offence was committed after this section comes into force, and

(c) the seriousness condition and the previous offence condition are met.

(2) The court must impose a sentence of imprisonment for life unless the court is of the opinion that there are particular circumstances which—

(a) relate to the offence, to the previous offence referred to in subsection (4) or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(3) The seriousness condition is that the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for 10 years or more, disregarding any extension period imposed under section 226A.

(4) The previous offence condition is that —

(a) at the time the offence was committed, the offender had been convicted of an offence listed in Schedule 15B (“the previous offence”), and

(b) a relevant life sentence or a relevant sentence of imprisonment or detention for a determinate period was imposed on the offender for the previous offence.

(5) A life sentence is relevant for the purposes of subsection (4)(b) if—

(a) the offender was not eligible for release during the first 5 years of the sentence, or

(b) the offender would not have been eligible for release during that period but for the reduction of the period of ineligibility to take account of a relevant pre-sentence period.

(6) An extended sentence imposed under this Act (including one imposed as a result of the Armed Forces Act 2006) is relevant for the purposes of subsection (4)(b) if the appropriate custodial term imposed was 10 years or more.

(7) Any other extended sentence is relevant for the purposes of subsection (4)(b) if the custodial term imposed was 10 years or more.

(8) Any other sentence of imprisonment or detention for a determinate period is relevant for the purposes of subsection (4)(b) if it was for a period of 10 years or more.

(9) An extended sentence or other sentence of imprisonment or detention is also relevant if it would have been relevant under subsection (7) or (8) but for the reduction of the sentence, or any part of the sentence, to take account of a relevant pre-sentence period.

(10) For the purposes of subsections (4) to (9)—

“extended sentence” means—

(a) a sentence imposed under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 or under section 226A, 226B, 227 or 228 of this Act (including one imposed as a result of section 220 or 222 of the Armed Forces Act 2006), or

(b) an equivalent sentence imposed under the law of Scotland, Northern Ireland or a member State (other than the United Kingdom);

“life sentence” means—

(a) a life sentence as defined in section 34 of the Crime (Sentences) Act 1997, or

(b) an equivalent sentence imposed under the law of Scotland, Northern Ireland or a member State (other than the United Kingdom);

“relevant pre-sentence period”, in relation to the previous offence referred to in subsection (4), means any period which the offender spent in custody or on bail before the sentence for that offence was imposed;

“sentence of imprisonment or detention” includes any sentence of a period in custody (however expressed).

(11) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.”

(2) Schedule [Life sentence for second listed offence: new Schedule 15B to Criminal Justice Act 2003] (new Schedule 15B to the Criminal Justice Act 2003) has effect.

(3) Schedule [Life sentence for second listed offence: consequential and transitory provision] (consequential and transitory provision) has effect.’.—(Mr Djanogly.)

Brought up, and added to the Bill.

New Clause 32

New extended sentences

‘(1) In Chapter 5 of Part 12 of the Criminal Justice Act 2003 (sentencing: dangerous offenders), after section 226 and the italic heading “Extended sentences” insert—

“226A Extended sentence for certain violent or sexual offences: persons 18 or over

(1) This section applies where—

(a) a person aged 18 or over is convicted of a specified offence (whether the offence was committed before or after this section comes into force),

(b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences,

(c) the court is not required by section 224A or 225(2) to impose a sentence of imprisonment for life, and

(d) condition A or B is met.

(2) Condition A is that, at the time the offence was committed, the offender had been convicted of an offence specified in Schedule 15B.

(3) Condition B is that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least 4 years.

(4) The court may impose an extended sentence of imprisonment on the offender.

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

(a) the appropriate custodial term, and

(b) a further period (the “extension period”) for which the offender is to be subject to a licence.

(6) The appropriate custodial term is the term of imprisonment that would (apart from this section) be imposed in compliance with section 153(2).

(7) The extension period must be a period of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further specified offences, subject to subsections (8) and (9).

(8) The extension period must not exceed—

(a) 5 years in the case of a specified violent offence, and

(b) 8 years in the case of a specified sexual offence.

(9) The term of an extended sentence of imprisonment imposed under this section in respect of an offence must not exceed the term that, at the time the offence was committed, was the maximum term permitted for the offence.

226B Extended sentence for certain violent or sexual offences: persons under 18

‘(1) This section applies where—

(a) a person aged under 18 is convicted of a specified offence (whether the offence was committed before or after this section comes into force),

(b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences,

(c) the court is not required by section 226(2) to impose a sentence of detention for life under section 91 of the Sentencing Act, and

(d) if the court were to impose an extended sentence of detention, the term that it would specify as the appropriate custodial term would be at least 4 years.

(2) The court may impose an extended sentence of detention on the offender.

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

(a) the appropriate custodial term, and

(b) a further period (the “extension period”) for which the offender is to be subject to a licence.

(4) The appropriate custodial term is the term of detention that would (apart from this section) be imposed in compliance with section 153(2).

(5) The extension period must be a period of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further specified offences, subject to subsections (6) and (7).

(6) The extension period must not exceed—

(a) 5 years in the case of a specified violent offence, and

(b) 8 years in the case of a specified sexual offence.

(7) The term of an extended sentence of detention imposed under this section in respect of an offence may not exceed the term that, at the time the offence was committed, was the maximum term of imprisonment permitted for the offence in the case of a person aged 18 or over.”

(2) Schedule [New extended sentences: consequential and transitory provision] (new extended sentences: consequential and transitory provision) has effect.’.—(Mr Djanogly.)

Brought up, and added to the Bill.

New Clause 33

New extended sentences: release on licence etc

‘(1) Chapter 6 of Part 12 of the Criminal Justice Act 2003 (sentencing: release and recall) is amended as follows.

(2) In section 244(1) (duty to release prisoners on licence) (as amended by Schedule 13 to this Act) after “243A” insert “, 246A”.

(3) After section 246 insert—

“246A Release on licence of prisoners serving extended sentence under section 226A or 226B

(1) This section applies to a prisoner (“P”) who is serving an extended sentence imposed under section 226A or 226B.

(2) It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the requisite custodial period for the purposes of this section unless either or both of the following conditions are met—

(a) the appropriate custodial term is 10 years or more;

(b) the sentence was imposed in respect of an offence listed in Part 1 of Schedule 15B or in respect of offences that include one or more offences listed in that Part of that Schedule.

(3) If either or both of those conditions are met, it is the duty of the Secretary of State to release P on licence in accordance with subsections (4) to (7).

(4) The Secretary of State must refer P’s case to the Board —

(a) as soon as P has served the requisite custodial period, and

(b) where there has been a previous reference of P’s case to the Board under this subsection and the Board did not direct P’s release, not later than the second anniversary of the disposal of that reference.

(5) It is the duty of the Secretary of State to release P on licence under this section as soon as—

(a) P has served the requisite custodial period, and

(b) the Board has directed P’s release under this section.

(6) The Board must not give a direction under subsection (5) unless—

(a) the Secretary of State has referred P’s case to the Board, and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that P should be confined.

(7) It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the appropriate custodial term, unless P has previously been released on licence under this section and recalled under section 254 (provision for the release of such persons being made by section 255C).

(8) For the purposes of this section—

“appropriate custodial term” means the term determined as such by the court under section 226A or 226B (as appropriate);

“the requisite custodial period” means—

(a) in relation to a person serving one sentence, two-thirds of the appropriate custodial term, and

(b) in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2).”

(4) Schedule [Release of new extended sentence prisoners: consequential provision] (release of new extended sentence prisoners: consequential provision) has effect.’.—(Mr Djanogly.)

Brought up, and added to the Bill.

New Clause 34

Power to change test for release on licence of certain prisoners

‘(1) The Secretary of State may by order provide that, following a referral by the Secretary of State of the case of an IPP prisoner or an extended sentence prisoner, the Parole Board—

(a) must direct the prisoner’s release if it is satisfied that conditions specified in the order are met, or

(b) must do so unless it is satisfied that conditions specified in the order are met.

(2) An order under this section may—

(a) amend section 28 of the Crime (Sentences) Act 1997 (duty to release IPP prisoners and others),

(b) amend section 246A of the Criminal Justice Act 2003 (release on licence of extended sentence prisoners),

(c) make provision in relation to any person whose case is disposed of by the Parole Board on or after the day on which the regulations come into force (even if the Secretary of State referred that person’s case to the Board before that day),

(d) make different provision in relation to IPP prisoners and extended sentence prisoners, and

(e) include consequential provision.

(3) An order under this section is to be made by statutory instrument.

(4) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(5) In this section—

“extended sentence prisoner” means a prisoner who is serving a sentence under section 226A or 226B of the Criminal Justice Act 2003;

“IPP prisoner” means a prisoner who is serving one or more of the following sentences and is not serving any other life sentence—

(a) a sentence of imprisonment for public protection or detention in a young offender institution for public protection under section 225 of the Criminal Justice Act 2003 (including one imposed as a result of section 219 of the Armed Forces Act 2006);

(b) a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003 (including one imposed as a result of section 221 of the Armed Forces Act 2006);

“life sentence” has the same meaning as in section 34 of the Crime (Sentences) Act 1997.’.—(Mr Djanogly.)

Brought up, and added to the Bill.

New Schedule 4

‘Life sentence for second listed offence etc: new Schedule 15B to Criminal Justice Act 2003

In the Criminal Justice Act 2003, after Schedule 15A insert—

“SCHEDULE 15B

Offences listed for the purposes of sections 224A, 226A and 246A

Part 1

Offences under the law of England and Wales listed for the purposes of sections 224A(1), 224A(4), 226A and 246A

The following offences to the extent that they are offences under the law of England and Wales—

1 Manslaughter.

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

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

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

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

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

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

8 An offence under section 1 of the Protection of Children Act 1978 (indecent images of children).

9 An offence under section 56 of the Terrorism Act 2000 (directing terrorist organisation).

10 An offence under section 57 of the Terrorism Act 2000 (possession of article for terrorist purposes).

11 An offence under section 59 of that Act (inciting terrorism overseas) if the offender is liable on conviction on indictment to imprisonment for life.

12 An offence under section 47 of the Anti-terrorism, Crime and Security Act 2001 (use etc of nuclear weapons).

13 An offence under section 50 of that Act (assisting or inducing certain weapons-related acts overseas).

14 An offence under section 113 of that Act (use of noxious substance or thing to cause harm or intimidate).

15 An offence under section 1 of the Sexual Offences Act 2003 (rape).

16 An offence under section 2 of that Act (assault by penetration).

17 An offence under section 4 of that Act (causing a person to engage in sexual activity without consent) if the offender is liable on conviction on indictment to imprisonment for life.

18 An offence under section 5 of that Act (rape of a child under 13).

19 An offence under section 6 of that Act (assault of a child under 13 by penetration).

20 An offence under section 7 of that Act (sexual assault of a child under 13).

21 An offence under section 8 of that Act (causing or inciting a child under 13 to engage in sexual activity).

22 An offence under section 9 of that Act (sexual activity with a child).

23 An offence under section 10 of that Act (causing or inciting a child to engage in sexual activity).

24 An offence under section 11 of that Act (engaging in sexual activity in the presence of a child).

25 An offence under section 12 of that Act (causing a child to watch a sexual act).

26 An offence under section 14 of that Act (arranging or facilitating commission of a child sex offence).

27 An offence under section 15 of that Act (meeting a child following sexual grooming etc).

28 An offence under section 25 of that Act (sexual activity with a child family member) if the offender is aged 18 or over at the time of the offence.

29 An offence under section 26 of that Act (inciting a child family member to engage in sexual activity) if the offender is aged 18 or over at the time of the offence.

30 An offence under section 30 of that Act (sexual activity with a person with a mental disorder impeding choice) if the offender is liable on conviction on indictment to imprisonment for life.

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

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

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

34 An offence under section 47 of that Act (paying for sexual services of a child) against a person aged under 16.

35 An offence under section 48 of that Act (causing or inciting child prostitution or pornography).

36 An offence under section 49 of that Act (controlling a child prostitute or a child involved in pornography).

37 An offence under section 50 of that Act (arranging or facilitating child prostitution or pornography).

38 An offence under section 62 of that Act (committing an offence with intent to commit a sexual offence) if the offender is liable on conviction on indictment to imprisonment for life.

39 An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult).

40 An offence under section 5 of the Terrorism Act 2006 (preparation of terrorist acts).

41 An offence under section 9 of that Act (making or possession of radioactive device or materials).

42 An offence under section 10 of that Act (misuse of radioactive devices or material and misuse and damage of facilities).

43 An offence under section 11 of that Act (terrorist threats relating to radioactive devices, materials or facilities).

44 (1) An attempt to commit an offence specified in the preceding paragraphs of this Part of this Schedule (“a listed offence”) or murder.

(2) Conspiracy to commit a listed offence or murder.

(3) Incitement to commit a listed offence or murder.

(4) An offence under Part 2 of the Serious Crime Act 2007 in relation to which a listed offence or murder is the offence (or one of the offences) which the person intended or believed would be committed.

(5) Aiding, abetting, counselling or procuring the commission of a listed offence.

Part 2

Further offences under the law of England and Wales listed for the purposes of sections 224A(4) and 226A

45 Murder.

46 An offence under section 1 of the Sexual Offences Act 1956 (rape).

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

48 (1) An attempt to commit an offence specified in the preceding paragraphs of this Part of this Schedule (“a listed offence”).

(2) Conspiracy to commit a listed offence.

(3) Incitement to commit a listed offence.

(4) An offence under Part 2 of the Serious Crime Act 2007 in relation to which a listed offence is the offence (or one of the offences) which the person intended or believed would be committed.

(5) Aiding, abetting, counselling or procuring the commission of a listed offence.

Part 3

Offences under service law listed for the purposes of sections 224A(4) and 226A

49 An offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 as respects which the corresponding civil offence (within the meaning of the Act in question) is an offence specified in Part 1 or 2 of this Schedule.

50 (1) An offence under section 42 of the Armed Forces Act 2006 as respects which the corresponding offence under the law of England and Wales (within the meaning given by that section) is an offence specified in Part 1 or 2 of this Schedule.

(2) Section 48 of the Armed Forces Act 2006 (attempts, conspiracy etc) applies for the purposes of this paragraph as if the reference in subsection (3)(b) of that section to any of the following provisions of that Act were a reference to this paragraph.

Part 4

Offences under the law of Scotland, Northern Ireland or a member State other than the United Kingdom listed for the purposes of sections 224A(4) and 226A

51 An offence for which the person was convicted in Scotland, Northern Ireland or a member State other than the United Kingdom and which, if done in England and Wales at the time of the conviction, would have constituted an offence specified in Part 1 or 2 of this Schedule.

Part 5

Interpretation

52 In this Schedule “imprisonment for life” includes custody for life and detention for life.’.—(Mr Djanogly.)

Brought up, and added to the Bill.

New Schedule 5

‘Life sentence for second listed offence: consequential and transitory provision

Part 1

Consequential provision

Mental Health Act 1983 (c. 20)

1 In section 37 of the Mental Health Act 1983 (powers of courts to order hospital admission) in subsection (1A), after paragraph (b) insert—

“(ba) under section 224A of the Criminal Justice Act 2003,”.

Criminal Justice Act 1988 (c. 33)

2 In section 36 of the Criminal Justice Act 1988 (reviews of sentencing) in subsection (2)(b)(iii) after “section” insert “224A,”.

Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

3 The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.

4 In section 12 (absolute and conditional discharge) in subsection (1) before “225(2)” insert “224A,”.

5 In section 130 (compensation orders against convicted persons) in subsection (2) before “225(2)” insert “224A,”.

6 In section 146 (driving disqualification for any offence) in subsection (2) before “225(2)” insert “224A,”.

7 In section 164 (interpretation) in subsection (3)(c) after “section” insert “224A,”.

Criminal Justice Act 2003 (c. 44)

8 The Criminal Justice Act 2003 is amended as follows.

9 In section 108 (offences committed by defendant when a child), at the end insert—

“(4) Subsection (2) does not prevent the admission of evidence of a previous conviction for the purposes of establishing whether section 224A applies.”

10 In section 142 (purposes of sentencing: offenders aged 18 and over) in subsection (2)(c)—

(a) after “weapon)” insert “, under section 224A of this Act (life sentence for second listed offence for certain dangerous offenders)”, and

(b) for “(dangerous offenders)” substitute “(imprisonment or detention for life for certain dangerous offenders)”.

11 In section 150 (community sentence not available where sentence fixed by law etc) at the end of paragraph (ca) (but before the “or”) insert—

“(cb) falls to be imposed under section 224A of this Act (life sentence for second listed offence for certain dangerous offenders),”.

12 In section 152 (general restrictions on imposing discretionary custodial sentence) in subsection (1)(b) before “225(2)” insert “224A,”.

13 In section 153 (length of discretionary custodial sentences: general provision) in subsection (1) before “225” insert “224A,”.

14 In section 163 (general power of Crown Court to fine offender convicted on indictment) before “225(2)” insert “224A,”.

15 Before section 224 insert—

“Interpretation”.

16 After section 224 (and before section 224A) insert—

“Life sentences”.

17 After section 226 insert—

“Extended sentences”.

18 Before section 231 insert—

“Supplementary”.

19 (1) Section 231 (appeals where convictions set aside) is amended as follows.

(2) Before subsection (1) insert—

“(A1) Subsection (2) applies where—

(a) a sentence has been imposed on a person under section 224A,

(b) a previous conviction of that person has been subsequently set aside on appeal, and

(c) without that conviction, the previous offence condition in section 224A(4) would not have been met.”

(3) In subsection (1) for “This section” substitute “Subsection (2) also”.

(4) After subsection (2) insert—

“(3) Subsection (4) applies where—

(a) a sentence has been imposed on a person under section 224A,

(b) a previous sentence imposed on that person has been subsequently modified on appeal, and

(c) taking account of that modification, the previous offence condition in section 224A(4) would not have been met.

(4) Notwithstanding anything in section 18 of the Criminal Appeal Act 1968, notice of appeal against the sentence mentioned in subsection (3)(a) may be given at any time within 28 days from the date on which the previous sentence was modified.”

20 After section 232 insert—

“232A Certificates of conviction

(none) Where—

(a) on any date after the commencement of Schedule 15B a person is convicted in England and Wales of an offence listed in that Schedule, and

(b) the court by or before which the person is so convicted states in open court that the person has been convicted of such an offence on that date, and

(c) that court subsequently certifies that fact,

that certificate is evidence, for the purposes of section 224A, that the person was convicted of such an offence on that date.”

21 In section 305(4) (interpretation of Part 12) after paragraph (ba) insert—

“(bb) a sentence falls to be imposed under section 224A if the court is obliged to pass a sentence of imprisonment for life under that section,”.

Coroners and Justice Act 2009 (c. 25)

22 In section 125(6) of the Coroners and Justice Act 2009 (sentencing guidelines: duty of court) after paragraph (d) insert—

“(da) section 224A of that Act (life sentence for second listed offence for certain dangerous offenders);”.

Part 2

Transitory provision

23 (1) In relation to any time before the coming into force of section 61 of the Criminal Justice and Court Services Act 2000 (abolition of sentences of detention in a young offender institution, custody for life etc), Part 12 of the Criminal Justice Act 2003 (sentencing) has effect with the following modifications.

(2) In section 224A (life sentence for second listed offence)—

(a) in subsection (2), after “imprisonment for life” insert “or, in the case of a person aged at least 18 but under 21, custody for life”, and

(b) in subsection (3), after “more” insert “or, if the person is aged at least 18 but under 21, a sentence of detention in a young offender institution for such a period”.’.—(Mr Djanogly.)

Brought up, and added to the Bill.

New Schedule 6

‘New extended sentences: consequential and transitory provision

Part 1

Consequential provision

Juries Act 1974 (c. 23)

1 In Part 2 of Schedule 1 to the Juries Act 1974 (persons disqualified from jury service) in paragraph 6(d), before “227” insert “226A, 226B,”.

Rehabilitation of Offenders Act 1974 (c. 53)

2 In section 5 of the Rehabilitation of Offenders Act 1974 (sentences excluded from rehabilitation under that Act) in subsection (1)(f), before “227” insert “226A, 226B,”.

Criminal Justice Act 1982 (c. 48)

3 In section 32 of the Criminal Justice Act 1982 (early release of prisoners) in subsection (1)(a), before “227” insert “226A or”.

Road Traffic Offenders Act 1988 (c. 53)

4 In section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence imposed as well as driving disqualification) in subsection (4) after paragraph (d) insert—

“(da) where section 226A of that Act (extended sentence for certain violent or sexual offences: persons 18 or over) applies in relation to the custodial sentence, a period equal to two-thirds of the term imposed pursuant to section 226A(5)(a) of that Act after that term has been reduced by any relevant discount;

(db) where section 226B of that Act (extended sentence for certain violent or sexual offences: persons under 18) applies in relation to the custodial sentence, a period equal to two-thirds of the term imposed pursuant to section 226B(3)(a) of that Act after that term has been reduced by any relevant discount;”.

Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

5 The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.

6 In section 76 (meaning of “custodial sentence”) in subsection (1)(bc) after “section” insert “226B or”.

7 (1) Section 99 (conversion of sentence of detention to sentence of imprisonment) is amended as follows.

(2) In subsection (3), omit the words from “; and” to the end.

(3) After that subsection insert—

“(3A) Where the Secretary of State gives a direction under subsection (1) above in relation to an offender serving an extended sentence of detention imposed under Chapter 5 of Part 12 of the Criminal Justice Act—

(a) if the sentence was imposed under section 226B of that Act, the offender shall be treated as if the offender had been sentenced under section 226A of that Act, and

(b) if the sentence was imposed under section 228 of that Act, the offender shall be treated as if the offender had been sentenced under section 227 of that Act.”

(4) In subsection (5)(c), after “section” insert “226B or”.

8 In section 100 (offenders under 18: detention and training orders) in subsection (1) after “226” insert “, 226B”.

9 In section 106A(1) (interaction of detention and training orders with sentences of detention), in paragraph (b) of the definition of “sentence of detention”, after “section” insert “226B or”.

Criminal Justice and Court Services Act 2000 (c. 43)

10 The Criminal Justice and Court Services Act 2000 is amended as follows.

11 In section 62 (release on licence etc: conditions as to monitoring) in subsection (5)(f), after “226” insert “, 226B”.

12 In section 64 (release on licence: drug testing requirements) in subsection (5)(f), after “226” insert “, 226B”.

Sexual Offences Act 2003 (c. 42)

13 In section 131 of the Sexual Offences Act 2003 (young offenders: application), in paragraph (l), before “228” insert “226B or”.

Criminal Justice Act 2003 (c. 44)

14 The Criminal Justice Act 2003 is amended as follows.

15 In section 153 (length of discretionary custodial sentences: general provision) in subsection (2) before “227(2)” insert “226A(4), 226B(2)”.

16 In section 156 (pre-sentence reports and other requirements) in subsection (3)(a) after “226(1)(b),” insert “section 226A(1)(b), section 226B(1)(b)”.

17 In section 235 (detention under sections 226 and 228) after “226” insert “, 226B”.

18 In the heading of that section after “226” insert “, 226B”.

19 In section 327 (arrangements for assessing etc risks posed by certain offenders: interpretation) in subsection (3)(b)(vi) after “section” insert “226B or”.

Offender Management Act 2007 (c. 21)

20 (1) Section 28 of the Offender Management Act 2007 (application of polygraph conditions for certain offenders released on licence) is amended as follows.

(2) In subsection (3)(a) after “section” insert “226A or”.

(3) In subsection (3)(f) after “226” insert “, 226B”.

Part 2

Transitory provision

21 (1) In relation to any time before the coming into force of section 61 of the Criminal Justice and Court Services Act 2000 (abolition of sentences of detention in a young offender institution, custody for life etc), Chapter 5 of Part 12 of the Criminal Justice Act 2003 (sentencing: dangerous offenders) has effect with the modifications in sub-paragraphs (2) and (3).

(2) In section 226A (extended sentence for certain violent or sexual offences: persons 18 or over), at the end insert—

“(12) In the case of a person aged at least 18 but under 21, this section has effect as if—

(a) the reference in subsection (1)(c) to imprisonment for life were to custody for life, and

(b) other references to imprisonment (including in the expression “extended sentence of imprisonment”) were to detention in a young offender institution.”

(3) In section 226B (mandatory extended sentence for certain violent or sexual offences: persons under 18), in subsection (7), for “18” substitute “21”.

22 (1) In relation to any time before the repeal of section 30 of the Criminal Justice and Court Services Act 2000 (protection of children: supplemental) by Schedule 10 to the Safeguarding Vulnerable Groups Act 2006, that section has effect with the modification in sub-paragraph (2).

(2) In subsection (1), in paragraph (dd) of the definition of “qualifying sentence”, after “226” insert “, 226B”.’.—(Mr Djanogly.)

Brought up, and added to the Bill.

New Schedule 7

‘Release of new extended sentence prisoners: consequential provision

1 Chapter 6 of Part 12 of the Criminal Justice Act 2003 (sentencing: release and recall) (as amended by Chapter 4 of Part 3 of this Act) is amended as follows.

2 In section 237 (meaning of “fixed-term prisoner” etc), in subsection (1)(b), before “228” insert “226B”.

3 In section 238 (power of court to recommend licence conditions), in subsection (4), after “Sentencing Act” insert “or section 226B”.

4 In section 240ZA (time remanded in custody to count as time served), in subsection (12)—

(a) in paragraph (a), after “or section” insert “226B or”, and

(b) in paragraph (b), after “or section” insert “226A or”.

5 (1) Section 250 (licence conditions) is amended as follows.

(2) In subsection (4)—

(a) before “227” insert “226A or”, and

(b) before “228” insert “226B or”.

(3) After subsection (5) insert—

“(5A) In respect of a prisoner serving an extended sentence imposed under section 226A or 226B whose release is directed by the Board under section 246A(5), a licence under—

(a) section 246A(5) (initial release), or

(b) section 255C (release after recall),

may not include conditions referred to in subsection (4)(b)(ii) unless the Board directs the Secretary of State to include them.”

6 In section 255A (further release after recall), in subsection (7)(a) (meaning of “extended sentence prisoner”) after “section” insert “226A, 226B,”.

7 (1) Section 260 (early removal of prisoners liable to removal from UK) is amended as follows.

(2) After subsection (2) insert—

“(2A) If a fixed-term prisoner serving an extended sentence imposed under section 226A or 226B—

(a) is liable to removal from the United Kingdom, and

(b) has not been removed from prison under this section during the period mentioned in subsection (1),

the Secretary of State may remove the prisoner from prison under this section at any time after the end of that period.

(2B) Subsection (2A) applies whether or not the Parole Board has directed the prisoner’s release under section 246A.”

(3) In subsection (5), after “244” (but before “, 247”) insert “, 246A”.

(4) In subsection (7), before paragraph (a) insert—

“(za) in relation to a prisoner serving an extended sentence imposed under section 226A or 226B, has the meaning given by paragraph (a) or (b) of the definition in section 246A(8);”.

8 (1) Section 261 (re-entry to UK of offender removed early) is amended as follows.

(2) In subsection (5)(b) for “or 244” substitute “, 244 or 246A”.

(3) In subsection (6), in the definition of “requisite custodial period”, before paragraph (a) insert—

“(za) in relation to a prisoner serving an extended sentence imposed under section 226A or 226B, has the meaning given by paragraph (a) or (b) of the definition in section 246A(8);”.

9 In section 263 (concurrent terms), in subsection (4), before “228” insert “226B or”.

10 (1) Section 264 (consecutive terms) is amended as follows.

(2) In subsection (6)(a) (definition of “custodial period”), before sub-paragraph (i) insert—

(zi) in relation to an extended sentence imposed under section 226A or 226B, means two-thirds of the appropriate custodial term determined by the court under that section,”.

(3) In subsection (7) before “228” insert “226B or”.

11 In section 265 (restriction on consecutive sentences for released prisoners), in subsection (2), before “228” insert “226B or”.’.—(Mr Djanogly.)

Brought up, and added to the Bill.

New Clause 18

Rules against referral fees

‘(1) A regulated person is in breach of this section if—

(a) the regulated person refers prescribed legal business to another person and is paid or has been paid for the referral, or

(b) prescribed legal business is referred to the regulated person, and the regulated person pays or has paid for the referral.

(2) A regulated person is also in breach of this section if in providing legal services in the course of prescribed legal business the regulated person—

(a) arranges for another person to provide services to the client, and

(b) is paid or has been paid for making the arrangement.

(3) Section [Regulators and regulated persons] defines “regulated person”.

(4) “Prescribed legal business” means business that involves the provision of legal services to a client, where—

(a) the legal services relate to a claim or potential claim for damages for personal injury or death, or

(b) the business is of a description specified in regulations made by the Lord Chancellor.

(5) There is a referral of prescribed legal business if—

(a) a person provides information to another,

(b) it is information that a provider of legal services would need to make an offer to the client to provide relevant services, and

(c) the person providing the information is not the client;

and “relevant services” means any of the legal services that the business involves.

(6) “Legal services” means services provided by a person which consist of or include legal activities (within the meaning of the Legal Services Act 2007) carried on by or on behalf of that person; and a provider of legal services is a person authorised to carry on a reserved legal activity within the meaning of that Act.

(7) “Client”—

(a) where subsection (4)(a) applies, means the person who makes or would made the claim;

(b) where subsection (4)(b) applies, has the meaning given by the regulations.

(8) Payment includes any form of consideration (but does not include the provision of hospitality that is reasonable in the circumstances).’.—(Mr Djanogly.)

Brought up, and read the First time.

With this it will be convenient to discuss the following: Amendment (a), after first ‘paid’ in (1)(a), insert

‘will be paid, has made an agreement to be paid,’.

Amendment (b), after ‘pays’ in (1)(b), insert

‘will pay, has made an agreement to pay’.

Amendment (c), after first ‘paid’ in (2)(b), insert

‘will be paid, has made an agreement to be paid,’.

Amendment (e), at end of (4)(b), insert—

‘(2A) A breach of the provisions of this section shall be an offence, punishable on summary conviction by a fine not exceeding the statutory maximum or on indictment for a term of imprisonment not exceeding two years, or a fine, or both.’.

Government new clause 19—Effect of the rules against referral fees—

‘(1) The relevant regulator must ensure that it has appropriate arrangements for monitoring and enforcing the restrictions imposed on regulated persons by section [Rules against referral fees].

(2) A regulator may make rules for the purposes of subsection (1).

(3) The rules may in particular provide for the relevant regulator to exercise in relation to anything done in breach of that section any powers (subject to subsections (5) and (6)) that the regulator would have in relation to anything done by the regulated person in breach of another restriction.

(4) Where the relevant regulator is the Financial Services Authority, section [Regulation by the FSA] applies instead of subsections (1) to (3) (and (7) to (9)).

(5) A breach of section [Rules against referral fees]—

(a) does not make a person guilty of an offence, and

(b) does not give rise to a right of action for breach of statutory duty.

(6) A breach of section [Rules against referral fees] does not make anything void or unenforceable, but a contract to make or pay for a referral or arrangement in breach of that section is unenforceable.

(7) Subsection (8) applies in a case where—

(a) a referral of prescribed legal business has been made by or to a regulated person, or

(b) a regulated person has made an arrangement as mentioned in section [Rules against referral fees](2)(a),

and it appears to the regulator that a payment made to or by the regulated person may be a payment for the referral or for making the arrangement (a “referral fee”).

(8) Rules under subsection (2) may provide for the payment to be treated as a referral fee unless the regulated person shows that the payment was made—

(a) as consideration for the provision of services, or

(b) for another reason,

and not as a referral fee.

(9) For the purposes of provision made by virtue of subsection (8) a payment that would otherwise be regarded as consideration for the provision of services of any description may be treated as a referral fee if it exceeds the amount specified in relation to services of that description in regulations made by the Lord Chancellor.’.

Amendment (a) to new clause 19, leave out subsection 5.

Amendment (b), leave out from ‘services’ in (8)(a) to end of paragraph (b) and insert

‘but only where the consideration was proportionate and reasonable in the circumstances.’.

Government new clause 20—Regulation by the FSA.

Government new clause 21—Regulators and regulated persons.

Government new clause 22—Referral fees: regulations.

Government amendment 139.

New clauses 18 to 22 seek to prohibit the payment and receipt of referral fees in personal injury cases by regulated persons, namely solicitors, barristers, claim management companies and insurers.

I pay tribute at the outset to the work of the right hon. Member for Blackburn (Mr Straw) in pursuing the case for a ban on referral fees. I know that there are some differences between us about the detail of how we should implement the ban—we will come to his amendments in due course—but those differences of detail should not obscure our agreement in principle on tackling this important issue. I acknowledge his efforts in this regard.

I must also mention the consistent campaign by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) as Chair of the Justice Committee, who has also been a very keen supporter of the ban. I note that last week his Committee formally welcomed our commitment to the ban, which will be implemented by these clauses. I should also acknowledge the work of the Transport Committee, chaired by the hon. Member for Liverpool, Riverside (Mrs Ellman), before whom I was privileged to appear last month.

My right hon. and learned Friend the Secretary of State for Justice announced the Government’s intention to ban the payment and receipt of referral fees in personal injury cases by way of a written ministerial statement to the House on 9 September 2011.

I strongly believe that the current arrangements under which lawyers and others are able to pay and receive fees for referring work have led to both higher costs and the growth of an industry that pursues claimants for profit. By introducing the new clause, the Government are taking decisive and much needed action to remove these incentives.

Right hon. and hon. Members will be aware that Lord Justice Jackson recommended that referral fees should be banned as part of his comprehensive package of recommendations to make the costs of the civil litigation more proportionate and this recommendation was echoed by Lord Young in his report “Common Sense Common Safety”. The Bill already includes provisions to implement the other key elements of those recommendations. The referral fees ban under our new clause will complement the wider Jackson reform already in the Bill by further reducing the costs of personal injury litigation and deterring frivolous or unnecessary claims from being pursued in the courts.

The new clause creates a regulatory offence for any breach of the prohibition. It will be for the appropriate regulators, for example the Law Society, the Financial Services Authority or the claims management regulator, to enforce the prohibition. The regulators will also be responsible for taking appropriate action against regulated persons for any breaches. We have thought carefully about how to ensure that all the main players, including insurers, are captured by the ban, which is why there is a separate clause, new clause 20, giving the Treasury powers to make regulations allowing the FSA to enforce the ban under its existing regulatory powers.

There have been calls from some people, but not most people, for the payment and receipt of referral fees to be made a criminal offence. Not least among those who have called for that is the right hon. Member for Blackburn, who has tabled amendment (e) to that effect. We considered the matter carefully but believe that creating a criminal offence would be a very blunt instrument in this case. One would have to prove beyond reasonable doubt that consideration had changed hands for the referral of a potential claimant, but the grounds for determining whether something was or was not a referral fee could be blurred. It would be very difficult to convict in many cases on the basis of the complexity of those arrangements. That is why we consider a regulatory offence to be more appropriate, whereby the principle of what is happening can be looked at by the regulator and a view can be taken.

I am conscious that a criminal offence would impose additional costs on the police and the courts in investigating and enforcing a ban. I believe that a regulatory prohibition covering all the main players in the sector, including lawyers, claims management companies and insurers, is the most appropriate and effective response to the issue. I am confident that the industry regulators are best placed to investigate and enforce the regulatory ban.

As my hon. Friend has indicated, I strongly support the action he is taking, but is it not the case that in many of those circumstances a criminal offence may well have been committed by way of a breach of the Data Protection Act 1998? The problem then is that custodial sentences are not available for someone who is doing that on a large scale and making a great deal of money by releasing personal information and committing a criminal offence.

My right hon. Friend makes a good point. It is not one that is covered by the Bill, but it is something that the Government are looking into, and I hope that there will be further developments on that in due course.

I thank the Minister for the generous compliment he paid me, for which I am most grateful. There are plenty of situations relating to financial institutions in the widest sense when conduct might be the subject of a regulatory breach enforced by the regulators, but in more severe cases it could also be a criminal offence. It is a matter of belt and braces. Frankly, I do not understand why he is suggesting that those are alternatives when one complements the other.

The reason is that criminalisation would be too blunt an instrument. If we take the example of the straight payment of a fee for a referral, I can see how straight criminalisation would work, but we should appreciate that when that was last banned in 2004 it was a weak provision through which a coach and horses could be driven. What if an insurance company provides insurance to a solicitor in payment for referrals, rather than a straight fee? What if a trade union gives its cheap work to a firm of solicitors in consideration for the solicitors getting its better work? What if a claims management company provides a variety of services to a solicitor in payment for a referral? The point I am making is that the circumstances could be very varied and complex and the straight criminal option would not be appropriate. It would be the principle that counts and it would have to be a regulator that looks to the principle.

We are primarily concerned with removing incentives under the current system with regard to personal injury claims, which is why we are banning referral fees in that area. However, the Lord Chancellor may in future extend by regulation the prohibition on referral fees to other types of claim and legal services and other providers of legal services should the need arise and if the case is made for such an extension.

Is the Minister not concerned that that might introduce an element of uncertainty? Although I note what he says about the possibility of extending the provisions to other structures in future, is he not aware that alternative business structures will now be set up by large companies to get around the provisions? How will he address that?

Alternative business structures will be set up by the Solicitors Regulation Authority, probably before or just after the end of this year, so the hon. Lady makes an important point. At that stage, claims management companies will be able to purchase solicitors, and vice versa, which means that it would indeed be possible, as we discussed in the Transport Committee, for a claims management company to own a solicitor and effectively act as the advertising arm of a firm of solicitors. However, the important difference is that the claims management companies will then be regulated by the SRA, which will give consumers a significant amount of comfort.

Referral fees are one of the symptoms of the compensation culture in this country. The Government are determined to put an end to them while at the same time addressing the underlying cause of recoverability of no win, no fee success fees.

Following what my right hon. Friend the shadow Secretary of State for Justice said earlier this afternoon, I rise to discuss proposals that have not been given due scrutiny in Parliament. We are all aware that the Government were bounced into taking action on referral fees only by the sustained campaigning by my right hon. Friend the Member for Blackburn (Mr Straw). In their haste to cover up their inaction and disregard of the abuses of the insurance industry, they have failed to consult on their proposals, which are incompetent, ineffective and will lead to problems further down the line. Indeed, it was reported this week that a judicial review has already been launched citing that lack of consultation.

Referral fees are paid by one party to another in exchange for what are essentially sale leads. They are analogous to brokers’ fees, commission for salespeople, marketing agreements or, in the most basic sense, advertising, because each of these represents part of the cost of sales. Every non-monopolistic industry has a cost of sales. Let me take the example of the insurance industry, an industry with which the Minister has more than a passing familiarity. Admiral is the UK’s leading specialist motor insurance company. Last year it received net insurance premium revenue of £288 million, but its total net revenue was £639 million, part of which was made with referral fees. It spent £151 million on the acquisition of insurance contracts and other marketing costs, including brokers’ costs, paying insurance websites and expensive advertising. Those costs drive up premium costs and the desire to make profit also drives up premium prices—Admiral made £283 million in profit last year on its net revenue of £639 million. That is how it works in the insurance industry.

It works in a similar way when law firms pay independent brokers, some of which are known as claims management companies, another area with which the Minister has more than a passing familiarity. They will pay referral fees in order to get leads for their practice. The lawyers often do this because, frankly, they are not very good at sales, marketing or advertising. However, the problems arise in the behaviour that that encourages. Although there are reputable and decent claims management companies out there that bring together those who want help with those who can provide it, there are also many claims farmers, often based overseas, that abuse the system, send unsolicited spam to people’s e-mail accounts and mobile phones and abuse their data.

It is right to deal with people who act in such a way, but the claims management regulator, which until a few weeks ago was the Minister, but which I understand is now the Secretary of State, has proven singularly unable to do so. An internal review of claims management regulation from the Ministry of Justice, dated 25 October 2011—just last week—states:

“It is evident that many of the more objectionable practices of Claims Management Companies such as cold calling in person, unauthorised marketing in hospitals and using exaggerated marketing claims have been reined in as a result of action taken under CMR.”

Nothing could make clearer what delusions have set in with claims management regulated by the Minister, because we all know from personal experience that the opposite is true and that such abuse is still out there at large and, if anything, is increasing. Our constituents are harassed by claims farmers, and their objectionable messages, but the Department that he has mismanaged for the past year and a half believes it is doing an excellent job. That is why we must take corrective action.

I note what my hon. Friend is saying about the claims regulatory authority, but my experience at the tail end of the miners compensation scheme was that it was effective in driving out of the industry some of the more unscrupulous claims management companies, which were often just front companies that wound up as soon as they had passed the claims on. I caution my hon. Friend not to be too harsh on it.

I am grateful for my hon. Friend’s intervention. I am sure that some companies have been driven out of business, but the everyday experience of hon. Members, and certainly of our constituents, is that the industry is not properly regulated, which is why corrective action must be taken. However, the proposals in the Government’s new clauses are, I fear, insufficient. They are riddled with inconsistencies and loopholes, which is another symptom of the haste with which they were prepared.

I will deal with the point that the Minister dealt with. New clause 19(8) states that a payment is

“to be treated as a referral fee unless”

it can be shown

“that the payment was made…as consideration for the provision of services, or…for another reason”.

The Minister’s impact assessment explains what that means. Claims management companies may adapt their business models so that they are not reliant on referral fees paid by lawyers, or they may move into alternative types of business such as marketing or advertising. That is staggering to those of us who recognise that it is precisely that marketing and advertising, whether on daytime TV adverts or via spam messages, that lead to perceptions of a compensation culture.

What is the point of the new clauses? The truth is that they are an afterthought to a package of changes in the Bill, some of which we will debate tomorrow, that have far more bite but a different purpose. The changes to conditional fee agreements mean that losing defendants—wrongdoers—and their insurers will benefit at the expense of winning claimants—victims—and that is the real objective of the Government’s legislation. Tomorrow, we will seek to overturn those provisions.

As Bob and Sally Dowler have told us; as the lawyers that brought Trafigura to justice have told us; as victims of asbestosis, who have been fighting insurers that simply do not want to pay out to hard-working and long-suffering people; as those who have been unfairly dismissed or subject to harassment in the workplace have told us; and as Christopher Jeffries, who was persecuted by the media last Christmas, as he wrote in The Guardian this very day, has told us, the changes are unacceptable. The Government’s proposed changes, which they had thought about and on which they had taken instructions from the insurance industry, are in the Bill, but very little thought has gone into the new clauses before us today, and none would have gone into them had it not been for my right hon. Friend the Member for Blackburn.

In summary, we believe that there is merit in a ban on referral fees as part of a package to stop the abuses that I have talked about. That is why I tabled amendments not just to clamp down on those fees, but to make the payment and solicitation of referral fees in road traffic accident personal injury cases a criminal offence. My right hon. Friend has tabled amendments to new clause 18, and I hope that he will press them to a vote. If he does so, I hope that hon. Members on both sides of the House will join him in the Lobby if the Government still refuse to accept the criminalisation of referral fees.

We sought to make unsolicited text messages and phone calls regarding personal injuries a criminal offence. We would have strengthened the rules against the sale of personal data. We would have restricted whiplash claims by placing a lower limit on the speed at which a vehicle must be travelling before damages may be paid. We would have outlawed third-party capture, another dirty secret of the insurance industry. I freely acknowledge that we plagiarised some of that from my right hon. Friend’s private Member’s Bill.

If the Government had had the courage of the conviction in the Minister’s speeches earlier in the year, we would have got to the heart of the perception of a compensation culture. In doing so, we would have done what the Government are now failing to do. The new clause alone will have little effect. We believe that it deserves further scrutiny, and we hope that amendments in another place will toughen it up, if that does not happen tonight. We also hope that amendments to make these practices criminal offences will be accepted. We therefore have no intention of voting against the new clauses; we simply regard them as not going far enough.

The Minister’s incompetence in getting to grips with claims farmers who engage in unscrupulous practices and his Department’s failure even to recognise the scale of their failure to regulate effectively have got us here. These are symptoms not of a litigation culture, as he would have us believe, and of the rhetoric that goes along with the cuts in legal aid to the poorest, as well the neutering of no win, no fee agreements which will affect almost everyone except the super-rich and will prevent access to justice, but of regulatory incompetence by the Minister’s Department. Indeed, he has now surrendered responsibility for that regulation.

I commend my right hon. Friend’s amendments to the House. We accept the new clauses as far as they go, but it is about time the Government stopped using their rhetoric as a mask for preventing victims from obtaining justice and used it to ensure that the abuses that we all put up with day to day from fraudulent and criminal practices are stamped out.

I shall be brief. I welcome the Government’s action to address referral fees. There is no doubt that consumers have paid a significant price. I hope that we can clamp down heavily on other things, such as unsolicited text messages and spam, which we have all experienced, through other measures such as those on data protection.

I would like the Minister to deal with just one point. The industry has been pressing for these changes, and consumers in particular want to understand what guarantees, if any, they will have that when the changes have taken effect they will see a difference in the prices they pay for services.

As a preliminary, I wish to draw the House’s attention to the fact that against my name on the amendments relating to referral fees there is an R, which indicates that I have a declarable interest. It arises from three engagements that I undertook for fees on matters relating to referral fees and the motor insurance industry generally. They were on 28 September, 12 October, and earlier today. In respect of the first two, I have made a declaration to the Registrar of Members’ Financial Interests, who told me that because I have not yet received payment, the time for these is not yet running. The declaration for my engagement this morning will be made tomorrow.

I tabled amendments to new clauses 18 and 19 and, as my hon. Friend the Member for Hammersmith (Mr Slaughter) indicated, in the absence of a sudden Pauline conversion from the Government Front Bench between now and when the question is put, I shall press amendment (e) to new clause 18 to a vote.

According to the AA, over the year to March 2011, there has been a 40% increase in motor insurance premiums. In many areas of the country, mine included, although it is by no means the worst, the increase has been even higher. As a number of colleagues of all parties have pointed out, that has very severe social consequences.

May I say that I am extremely grateful for the wide support that my Motor Insurance Regulation Bill has had throughout the Chamber? Motor insurance is the only insurance affecting an individual that is compulsory, and in certain areas and for certain categories, particularly younger drivers, premiums are now so high as to place motor insurance out of reach altogether. A driving licence is often a necessary qualification for taking a job. In any case, people in areas that are not blessed with a high level of public transport, which means most places outside inner urban areas, need a motor vehicle to go about their business. The increase in premiums, and the fact that they are much higher in some areas than others, is leading to some people not being able to work or move around.

The increase is also unquestionably leading to an increase in criminality, both through people going around uninsured and, increasingly, through people deciding to borrow a friend’s address with a lower-premium postcode. People also fail to disclose relevant information about themselves, to enable them to become insured. It cannot serve any public purpose that we have ended up with such a dysfunctional system.

I readily concede that that has happened because of a nexus of factors going back a number of years. The operation of the conditional fee system was introduced in the Access to Justice Act 1999 for good a reason: it was thought that it would improve access to justice. To some extent that has certainly been true, but as we all know, it has had the unintended consequence of generally —I am not talking the Trafigura case or one or two others—creating an imbalance in the equality of arms between parties on either side of a legal action. It has gratuitously encouraged the so-called compensation culture.

That, in turn, has been compounded by the costs of the road traffic accident electronic portal being too high. In a recent statement, the Minister said that the figure that was introduced when I was Secretary of State had been agreed in the Civil Justice Council. It was agreed to by both sides, which was why I did not interfere with it. I believe there is now widespread agreement that the current fee, of at least £1,200 for claims under £10,000, is at least twice as high as it should be. It is leading to lawyers advertising as two firms at the end of my street in Blackburn do: they have great banners across their windows saying, “Bring your claim in here, we’ll pay you up to £650 in cash for it.” They can do that and still make a profit out of the £1,200, because the actual costs of running the portal are about £100.

Claims for whiplash, which I have described as an invention of the human imagination, undiagnosable except by dodgy doctors employed by claims management companies, have got completely out of control. The level of whiplash claims is not related to the level of accidents or physical injuries. Accidents are reducing, as is the possibility of being injured in an accident, because cars and road engineering are much safer. It is related principally to the density of claims management companies operating in a particular area. The evidence of that is incontrovertible.

I concede to my hon. Friend the Member for North Durham (Mr Jones) that the regulators have acted properly on claims management companies in some ways, but the regulatory system established under the Compensation Act 2006, during our Administration, has not had sufficient resources to control the trebling in the number of claims management companies that has taken place in recent years.

Another change that took place was in the 2004 solicitors conduct rules, which allowed solicitors to pay referral fees that were previously banned. I will come back to that point when we deal with the enforcement of a ban on referral fees.

I very much welcome all the effort that the right hon. Gentleman has put into this matter. I hope that in talking about referral fees, he will recognise that although he has devoted a lot of his effort to motor insurance, the same problems affect the cost to consumers in numerous other areas, such as employment law, conveyancing and divorce—all areas in which quite large sums change hands.

I absolutely agree. I began this journey because of constituents’ concerns about motor insurance, and my private Member’s Bill specifically concentrates on that, but I accept entirely what the right hon. Gentleman has been saying for such a long time and what his Justice Committee said in the report that it published two weeks ago—that the ban on referral fees must be extended beyond personal injury cases.

I am anxious for the right hon. Gentleman to reflect on his point about the change in the solicitors rules in 2004. It is important that the House considers the fact that up until that time, referral fees were banned by the Law Society. It was the intervention of the Office of Fair Trading that resulted in the Law Society changing that rule and recommending the creation of a marketplace, which he has rightly described as later becoming a full-scale scam.

I said earlier today outside the House that I believe the reason why the OFT has decided rather late in the day to hold an investigation into market conditions in the motor insurance industry is that it is deeply embarrassed by the position that it took in 2004. In no sense could it be said that referral fees encourage fair trading. They are essentially a fraud on the consumer. Lord Justice Jackson, in his magisterial report, completely demolished the OFT’s case in favour of referral fees.

The other body that should examine its processes is the Legal Services Board. I accept readily the reason why the Secretary of State felt obliged to wait for its consideration of referral fees, but its consumer panel released the most extraordinary report stating that referral fees worked in the public interest. If we examine the basis of its research, we find that a third of the people whom it surveyed had received compensation for things like whiplash.

On any objective consumer evidence, and there is plenty of it, it is perfectly plain that the public collectively do not like what they are learning about how the wider insurance industry operates. They reckon they are being defrauded, and that is absolutely true. In motor insurance, for example, a conservative estimate is that at least £2 billion of the total premium income of £9 billion is additional costs caused by the merry-go-round of referral fees.

My right hon. Friend is correct that in 2004, referral fees were put on a legal footing. However, many years before that it was quite clear that referral fees were being paid in various guises. My hon. Friend the Member for Bassetlaw (John Mann) and I raised the scandal that was going on in the miners’ compensation scheme. When we were arguing for that practice to be banned, the Government of the time did not do a great deal about it.

The Government should have done, and as I have sometimes said in respect of that period, my alibi is that I was abroad. I am the last to suggest that the problem has been created by the current Government. I accept that although the Labour Government did many wonderful things, the consequence of a number of things, some of which we introduced and some of which, such as the OFT report, were forced on us, has been the creation of a dysfunctional system.

The fact that this has become an issue for middle England is quite ironic, but I am angry that when my hon. Friend the Member for Bassetlaw and I raised it in respect of poor mining communities, people did not think it was a great priority. Does my right hon. Friend agree that it is ironic that if we had tackled the problem at that time, the scandals in the motor industry that he has outlined would have been put to bed years ago?

That might be so—it is good to know that my constituency is representative of middle England.

Similarly unacceptable practices take place in motor repairs. In bottom-line referrals, accident management companies require repairers to give them a discount of up to 25%. The repairers then increase their prices to take account of that bottom-line referral fee. Royal and Sun Alliance outrageously practised a type of subrogation whereby it set up an internal subsidiary, which contracted repairers for, say, £1,000 for a repair, and then added 25%, which was charged to the main company—RSA Ltd—which then charged the at-fault insurer. Product mandating is another unacceptable practice. Deals are struck with, for example, paint manufacturers, and repair companies are required to use specific brands of paint. That has led to a 67% increase in the cost of paint since 2003.

We must act on all those matters, and I hope the Minister will say briefly what will happen on the RTA portal if he gets the chance. I know that he has indicated that he hopes to take action, but is he sympathetic to what I suggest in respect of whiplash and many other matters?

I come now to the issue between the Minister and me. I welcome new clause 18, and I am grateful to the Secretary of State and the Minister for introducing it. However, for my hon. Friend the Member for North Durham (Mr Jones), the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and I, there are two issues. First, in my judgment, the breadth of the ban must go wider than personal injury claims. It could be excluded in one or two discrete areas, but in the generality of cases, as the right hon. Gentleman said—he has a great deal of experience—abuse also happens elsewhere.

Secondly, on the question of whether there should be a criminal offence, I noted what the hon. Member for Cardiff North (Jonathan Evans) and my hon. Friend the Member for North Durham said about what happened before 2004, and in a sense, they have made my point. My understanding is that the prohibition on solicitors charging referral fees was in the solicitors conduct rules and that it was not a criminal offence. Those rules changed; it was not that a criminal offence was abolished. I am glad that the Secretary of State proposes to make greater use of the regulatory authorities, and I would not for a moment suggest that that is unnecessary, because it is very necessary. However—this is where, with respect, I found his argument least convincing—there are many other areas of regulation, including, for example, of financial institutions, when conduct that is in clear breach of regulations leads to both a fine or penalty by civil regulatory authorities and a criminal offence. That is particularly true given the vicarious liability requirements imposed by section 7 and others of the Bribery Act 2011.

I applaud what the Secretary of State is doing as far as it goes, but for the life of me, I simply do not understand why, given that he recognises the inadequacy of the 2004 regulatory system and many other things, he does not back that with the criminal law.

I refer the House to my entry in the Register of Members’ Financial Interests.

Given the right hon. Gentleman’s wide experience, can he detect any pattern in relation to those matters where an action by a regulated body constitutes something that could lead both to regulatory action by the regulator and to criminal sanction under the statutes? If so, it would be interesting to know which side of the line the new clause and the matters to which it refers lie.

The hon. and learned Gentlemen may have noticed that I need to research that point, but I have in the back of my mind a number of cases where breaches of regulations are dealt with both by the regulator and in criminal proceedings. He is experienced in the law and will know that plenty of criminal offences are also civil wrongs of some kind in common law or by regulations.

The right hon. Gentleman has an arguable case on the merits of a back-up criminal offence, but will he concede that the system proposed by the Government can be made to work, because it combines the regulatory framework with the criminal offence behind it, particularly if there is a custodial sentence? The data protection offence, which lies behind the Government’s proposal, is already a criminal offence.

Christopher Graham, the distinguished Information Commissioner, made the point that one reason why the penalty for breach of section 55 of the Data Protection Act needs to be increased—as it is by sections 77 and 78 of the Criminal Justice and Immigration Act 2008 to a maximum of two years imprisonment or an unlimited fine—is to send a message to people in those industries that they could end up in prison if they go in for an egregious breach. Of course, other breaches of data protection rules could mean that an organisation loses its licence, but in extremis, we need criminal proceedings for a criminal offence.

My view is that the same must apply in respect of breaches of the law banning referral fees. My amendment (e) would produce exactly the same penalty—it is entirely proportionate—as applies under sections 77 and 78 of the 2008 Act, which I hope the Government bring into force quickly given that they are already on the statute book. With that, and because I know that many others wish to speak, I thank Members on both sides of the House for the support that they have given to my campaign, and commend the amendment to the House.

It is a great pleasure to follow the right hon. Member for Blackburn (Mr Straw), who put his case so comprehensively and convincingly.

I should like to speak briefly in support of the Government’s position and to ask a question of clarification. Clearly, referral fees and how they work have contributed enormously to the insurance costs of people in Blackburn, East Hampshire, middle England—wherever that is—and everywhere else, and change is needed. We had a strange mini-debate in the Public Bill Committee evidence-taking session on whether there was a compensation culture in this country. Some Opposition Members suggested that there was not and cited the noble Lord Young of Graffham in defence of their case, which is rather a tricky one to argue. Anyone who has received those annoying automated phone calls and text messages, or who has even a glancing familiarity with daytime television, can say that it is intuitive and self-evident that there is a compensation culture.

I understand that one of the original reasons for introducing referral fees was to allow an online market to develop—it was said that that would be a good thing because it might increase competition and access to justice. I shall come back to the online market element in a moment, but the claim that referral fees improve access to justice is at best grossly exaggerated. It might well be that approaching a solicitor with such a case was foreboding 20 years ago, but it is not now, following the development of no win, no fee cases and so on.

It is difficult to say exactly how big the claims management company sector is, but it might be of the order of £0.5 billion, which is enormous. There is nothing wrong with making money, but from a public policy perspective, we must draw a distinction between activities that add value to the individual and those that just take a share of the value chain and ultimately push up costs for everybody else. That is combined with the natural distaste that we have for selling people’s cases as some kind of commodity. The hon. Member for Stretford and Urmston (Kate Green) referred to the ability of industry players to shape-shift. I think that the new clause would effectively prohibit subcontracting, but not, of course, mergers and acquisitions, which would simply create a new form.

I want, however, to talk specifically about the online marketplace. There is a sliding scale with referral fees: at one extreme, we have ambulance chasers, insurance companies and garages selling hot leads, while at the other end of the scale, we have a Google search, for which, in a sense, a referral fee is also paid. Somewhere in the middle are the trade unions, with the Labour party having, of course, enjoyed significant income from referral fees. However, I want to talk about the online aspect. Presumably, nobody would object to a Google search fee as a marketing cost, but it is in the nature of these industries—we see it with cost comparison websites, for example—that consolidated intermediaries emerge who pay the search engines a certain amount of money, but then charge the customer, which in this case would be the law firm, a greater amount of money. Does that count as a referral fee? Given that technology for consumer targeting improves over time, it might be possible, on social media for example, to identify people likely to have had a recent accident. That would involve a much higher marketing cost per contact, but would it count as a referral fee?

I hope that the Minister can clarify exactly how the regulations are intended to work. Obviously, that would be a matter for the regulator, but I am keen to hear the Government’s intention.

I welcome tonight’s discussion about action on referral fees. In March, the Transport Committee produced a report in which we investigated the reasons for the 40% increase in premiums for private motor insurance. We identified referral fees as one of the reasons. The others included cold calling, inflated bills, high accident rates among young people, fraud and uninsured driving. However, I seek clarification on two areas from the Minister, although some of these points have been raised in earlier contributions.

The first issue is the scope of the Government’s proposals. The Committee’s report referred to the merry-go-round of referral fees and identified not only solicitors, but credit hire firms, vehicle repairers, medical experts and management accident firms. I am not clear from the Minister’s explanation of the new clause whether all, or some, of these organisations will be included in the proposals. If we are looking at referral fees as a reason for the greatly increased costs of motor insurance premiums, it is not good enough to look only at solicitors; we have to look at all these other areas as well.

The second area relates to how companies would be prevented from finding ways of avoiding the new legislation. When the Committee conducted its first inquiry on this issue, we received evidence that if referral fees were banned claims management companies would buy solicitors’ practices and, under the plans for alternative business structures, it could be normal for non-legally qualified individuals to do so. On the face of it, it seems that there would be an easy way of avoiding the legislation. I have not heard anything in detail about how that would be addressed. The Minister is correct that he was asked that question when he came before the Committee two weeks ago, but we received no clear explanation of how the issue would be addressed.

Those are the points that I wished to raise tonight. I know that I shall have other opportunities to look more broadly at the rising costs of motor insurance, but tonight, in this debate on action to be taken over referral fees, I ask for further explanation about how the Government’s proposals will deal with those two important points.

I, fortunately, have not been the victim of a car crash or accident at work, although, judging from the volume of texts, e-mail messages and voice calls to my mobile and home phone one might believe that I was confined to a hospital bed or wheelchair. This is one of the aspects that have to be combated in legislation. I therefore support what the Government are doing in trying to prevent this type of activity, although I would like clarification from the Minister on three issues.

My hon. Friend the Member for East Hampshire (Damian Hinds) alluded to the first matter: the definition of “referral fee” and the potential for people to get around it. That is rather important, particularly given that it has been suggested that we make it a criminal offence. While the definition lacks clarity, it will be difficult to make it a criminal offence.

The second important issue is fairness for the individual. If a victim of an accident—for example, someone who has suffered a spinal injury—goes along to their high street solicitor for advice and help, the firm might decide to give that help and advice and start the case, but somewhere along the line it might determine that it does not have the expertise necessary and refer it to an expert solicitor who deals with nothing but such claims. How will the first solicitor be recompensed for their work, if they cannot claim a referral fee? I would like clarification on that point, because, quite clearly, that would require a great deal of professional work for which the solicitor might not receive any recompense. That needs to be clarified.

Surely, the firm would get paid for the costs it had incurred. Indeed, it would not pass on the file until its costs had been paid. Does the hon. Gentleman accept that a further defect of referral fees is that they might skew the judgment of the first solicitor advising the client on the best firm to go to? The solicitor might make a decision on the basis not of which is the best firm, but of which is likely to pay the biggest referral fee.

The other problem is that if solicitors did not believe that they would get paid for the work, they might hang on to the case and take it to conclusion, despite not being an expert. That presents a huge risk to the individual, who possibly has a case.

I agree entirely with my right hon. Friend the Member for Blackburn (Mr Straw). To put it slightly differently, the hon. Gentleman is quite right that firms might want to hang on to work even after it goes beyond their expertise, so an inducement to pass it on might work. I am not saying that in favour of referral fees, but it does happen, and we have to be aware of it.

He is absolutely right about the definition of referral fees. When the Minister announced, rather hastily, in response to my right hon. Friend, that the Government were banning them, he admitted that he could not define “referral fee”. The hon. Gentleman is absolutely right, therefore, that a number of problems still need to be resolved, but those are questions that he should be putting to his Front Bench team. He should be asking why they have not sorted out these matters, including on his point about text messages.

As I said, I hope to get clarity at the conclusion of the debate, because this is clearly a problem. I would like these illicit text messages and such like to be criminalised, because they are clearly an abuse of the law. Indeed, as my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) said, they should be criminalised already under the Data Protection Act, because they constitute an abuse of personal data.

I seek clarity on a third issue: the effect on claims management companies of banning referral fees. I sought advice from Accident Advice Helpline, which is based in my constituency. It informs me that only one in six of its 36,000 cases last year were referred to solicitors, with the rest being screened out. Of those, 70% led to a settlement, with 15% dropped owing to “no involvement”. I could go through all the details of the data, but the reality is that Accident Advice Helpline screens the cases, which costs money. If Accident Advice Helpline does not do that, other solicitors will have to do it, at a cost to themselves. I would therefore like some clarity on what the effect will be and how it is proposed that those companies will be funded so that they do not fall foul of the regulations.

I, too, am keen to ask the Minister some questions, similar to those put by the hon. Member for Harrow East (Bob Blackman).

I completely share other hon. Members’ concerns about securing much better protection for the consumer, but given that the amendments have been introduced rather hastily I hope that the Minister will assure us that there will be a level playing field for different business types and, in particular, that access to independent legal advice from independent solicitors will be protected for claimants.

I therefore seek a fuller explanation from the Minister of how it is intended that referral fees will be defined. Specifically, to what extent does he see marketing activity by solicitors and others as covered—or not covered—by the provisions? For example, as has already been suggested, if a high street solicitor takes on some work, but realises that he or she does not have the expertise to pursue the case and therefore refers it to another solicitor and arranges some form of fee sharing, how is it intended that this should be treated under the provisions? Some solicitors have grouped together to pool their marketing budgets. Is the intention of the Minister’s amendments to outlaw pooled marketing completely or to cover it in regulation? It would be useful to have some clarification on that.

I welcome what the Minister said in answer to my earlier intervention about alternative business structures, but I am curious to know what his assessment is of the possibility that more and more large claims management companies will seek to handle all such business in-house and will stop using the services of other legal firms or legal experts. Has he made any assessment of the possibility of the provision of such services being concentrated in a way that reduces consumer choice and independent advice, and will he say what steps he might take to address that?

I welcome the banning of referral fees, and I congratulate the Minister and the Government on doing it. The scandal is that, frankly, it should have been done years ago. My hon. Friend the Member for Bassetlaw (John Mann) and I campaigned hard to expose the scandal surrounding the miners compensation scheme, which created a feeding frenzy not just for solicitors but for claims management companies. As I have said before—and to answer the hon. Member for Harrow East (Bob Blackman)—I frankly do not care if they all go bust, because they are not needed in this process. If people need legal advice, they go to a solicitor. Claims management companies have acted like parasites on the access to justice model that we have had in this country for many years.

I find it ironic that my right hon. Friend the Member for Blackburn (Mr Straw) said that I was referring to Blackburn as a middle-England constituency, because I was not. The fact of the matter is that my hon. Friend the Member for Bassetlaw and I, along with one or two other Members, argued hard about the scandal surrounding the miners compensation scheme. One of the key points was referral fees and the amount of money received not only by solicitors but by unscrupulous trade unions and unscrupulous claims handling companies. The issue was regulated in 2004, with referral fees being made legal. However, in the case of the miners compensation scheme it was quite obvious that referral fees were being paid and that the Law Society was turning a blind eye—I always refer to the Law Society as the best trade union in the world, because it does such a good job of protecting its self-interest.

In the case of the miners compensation scheme, it was an absolute scandal that claims managing companies were springing up like the morning dew, but then disappearing as soon as they had, as it were, harvested the claims in an area, which they did in two ways. There was no internet in those days—many communities do not have access to the internet—so the companies used cold calling to target poor widows and people who were seriously ill, in many cases claiming to be solicitors. Many of my constituents signed up with claims management companies, but anyone who asked them which firm of solicitors they were with would be referred to the claims management company. It came as a great surprise when it was pointed out that the company in question was not legally qualified.

However, the claims management scandal surrounding the miners compensation scheme could not have continued were it not for solicitors being implicated. I find it ironic that the Law Society and solicitors should more or less stand back and say, “This problem’s got out of hand because of these nasty claims management companies”, because they have also been part of the system and have fed the process. Do I think that there is any need for claims management companies? No, I do not. Indeed, some companies involved in the miners compensation scheme lasted only 12 months, because they were wound up once they had harvested an area. Banning referral fees is a welcome step forward. Would I criminalise the practice? Yes, I would, because the principle that those who are injured in any way should receive compensation is right, yet those seeking access to justice—I am not talking about “the consumer”—are not helped by claims handling companies, which just feed off the process.

We in the Labour Government introduced the claims regulation authority. I disagree with my hon. Friend the Member for Hammersmith (Mr Slaughter), speaking from the Front Bench, because I believe that was the right step forward. I pay tribute to Kevin Rousell and others who helped to set that organisation up, because they introduced regulation for the first time in an area where there was none at all, as well as seeing off some of the most unscrupulous claims handling companies that were feeding off the back of the miners compensation scheme.

However, I suppose I have some issues with the referral fee being banned, and I would like to give an example: the scandal of the Durham Miners Association and its association with Thompsons solicitors, which I have referred to in the Chamber before. One could argue that a referral was not paid in that case. However, the way the scam worked—I have described it before as a “scam”, and I shall continue to do so—was that people had to pay a £20 fee to join the Durham Miners Association. They then had to sign an agreement whereby if they were successful, 7.5% of their compensation was paid back to the Durham Miners Association, even though every penny of the fees in such cases were paid by the Government.

I want some clarity from the Minister on whether such cases would be covered by the provisions dealing with referral fees, because although there was no direct payment by the Durham Miners Association to Thompsons solicitors, there was, in fact, in the sense of the firm getting the cases, because on no occasion were its would-be clients told that they could have gone to any other solicitor and received the same advice and support for absolutely nothing. I would therefore like the Minister to clarify whether that practice will be outlawed under these proposals, because that case involved a lot of people being misled. I was pleased that, following pressure from the claims regulation authority and others, Thompsons had to pay back quite a lot of money—I think the total came to several million pounds—to claimants from whom money had been taken. Indeed, when they heard that they were paying fees for absolutely nothing, many of my constituents were shocked. I would therefore like some clarification on that issue.

The other issue on which I would like some clarification is the role of the Law Society and its regulations. As I have said, we have all known that the scandal has gone on for many years, including before 2004, but if the change is to be robustly enforced, the Law Society has to send the clear message to its members that it will not sanction such practices.

Another issue on which I would like clarification is that of selling insurance. The scandal of the miners compensation scheme related to referral fees being paid to industrial injuries claims companies such as IDC of Ashington. Many of my constituents thought that that was a firm of solicitors, but in fact it was selling on the claims to individual solicitors firms. Part of its scam was that people had to buy the insurance policy that went with the service. The claims handling company was getting a fee from the solicitors, as well as a payment from the insurance premiums.

I congratulate the Minister on banning referral fees, but he must ensure that the multitude of scams that existed to hide the way in which referral fees were being paid before 2004 does not re-emerge. If this is going to work, he must ensure that those who dream up inventive ways of charging referral fees are looked into. I suggest that he talk to the claims management regulator, because it will have seen most of the scams that came to light in relation to the miners compensation scheme. My right hon. Friend the Member for Blackburn has also highlighted some of the scams, or inventive ways in which people can get round the regulation of referral fees. I welcome the ban on referral fees, and I wish the Minister’s proposals well. I would, however, issue a word of warning in that he will need to look out for the various scams that people will come up with in order to get round it.

Like the hon. Member for North Durham (Mr Jones), I had coal mines in my constituency. There were three working mines there, and I saw evidence of the scandal that he described. It was absolutely dreadful in many ways. Today, I want to ask for clarification of the Government’s intentions in two areas. One relates to the broadening of this issue beyond personal injury. New clause 18 provides for the Lord Chancellor to make regulations specifying wider ranges of legal businesses. I hope that there is a clear intention on the Government’s part, probably involving consultation, to move on to all the sectors in which referral fees have the potential to distort or damage competition or to undermine the position of the consumer. I would like a clear indication that the Government are going to examine a number of other areas.

Secondly, the Minister was very helpful earlier on the question of custodial sentences for breaches of the Data Protection Act, and I hope that that means that the Government have moved on from their position of saying, “We’ll have to wait until the end of the Leveson inquiry.” That represented a complete misunderstanding of the situation. The question of custodial sentences for data protection offences is not primarily about the issues that have been raised in the Leveson inquiry about the media; it is about the everyday circumstances of our constituents whose personal information is abused by the organisations that hold it. That matter ought not to have to wait until the completion of an inquiry into a wider range of issues. I hope that the Minister’s earlier helpfulness will be repeated in implementing a measure on which the House has already decided—namely, that there should be a custodial penalty in such cases.

We have had a good, far-ranging debate this afternoon. Given that another important debate needs to be completed by 8 o’clock, I am sorry to say that I shall have to make my way quickly through the points that have been raised. I am pleased to hear at least a grudging agreement in principle with our ban on referral fees from the hon. Member for Hammersmith (Mr Slaughter). I thank my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) and all the other right hon. and hon. Members for their support for our desire to implement the ban. I am pleased that the debate today has been about how that should be done, not about whether it should be done.

The hon. Member for Hammersmith asked why we had not consulted on banning referral fees, and I can tell him that Lord Justice Jackson made 109 recommendations, and it would not have been practical to consult on them all at once. It also made good sense to await the outcome of the Legal Services Board’s work in this area. Many respondents to our consultation on implementing Lord Justice Jackson’s recommendations included their views on referral fees. Those views, along with the work undertaken by the LSB and the Transport Committee, have been carefully considered. The hon. Gentleman clearly raised some serious issues relating to the regulation of claims management companies, but they were not directly relevant to the Bill. I must point out that, in the past year, the Ministry of Justice has cancelled 349 authorisations of CMCs, whereas in the last year of the Labour Government, it cancelled only 35.

The hon. Member for North Durham (Mr Jones) asked a number of important questions. If he does not mind, I will write to him about those issues. I can say, however, that under the Compensation Act 2006, it is an offence to provide regulated claims management services unless authorised or exempt. The hon. Gentleman will not be surprised to learn that the exemption applies to trade unions, and that is part of the problem that he rightly highlighted. I was present at the debate that he held on that subject several years ago.

The hon. Member for Hammersmith covered several other matters, but he essentially spoke to tomorrow’s debate, and we will deal with those issues then. My right hon. Friend the Member for Carshalton and Wallington asked about some important aspects relating to the consumer. The Chairman of the Transport Select Committee, the hon. Member for Liverpool, Riverside (Mrs Ellman), rightly mentioned that share premiums had risen by 40% in the last year alone. This is of course a matter of concern, and we have discussed it with the Association of British Insurers. It has said that if the proposals are effected with the other changes to recoverability of success fees in after-the-event insurance, it would hope to see a fall in insurance premiums. I certainly hope that that is a credible position.

As I said at the outset, there is broad support across the House for a ban on referral fees, although there is some disagreement on how best to implement the ban. The right hon. Member for Blackburn (Mr Straw) spoke to his amendments with typical passion, but I would like to set out briefly why the Government cannot support them. Amendments (a) to (c) to new clause 18 seek to capture within the prohibition all arrangements to pay or receive referral fees, even when a payment has not yet been made. These amendments might have been tabled in support of his amendment to make the payment and receipt of referral fees a criminal offence. However, I am concerned that capturing an agreement to pay referral fees when payment might not have occurred would be very difficult to enforce. A solicitor’s accounts, for example, might well show that a particular payment had been made that could, on the face of it, be a referral fee. However, it is unlikely that agreements, which in some cases might be no more than verbal agreements, could be so readily identified without time-consuming investigation. In any event, we do not think that it is necessary to provide for this eventuality, first because such agreements would be unenforceable under subsection (6) of new clause 19 and, secondly, because whatever might be agreed, the payment of the referral fee would still be prohibited. So, in practice, it is unlikely that a party would enter into an agreement to pay a referral fee when payment would be a breach of the prohibition and the agreement would not be enforceable.

I have already dealt, in moving the new clause, with the arguments against amendment (e), which seeks to create a new criminal offence. I should just reiterate that the Government are fully committed to ensuring that the ban will work effectively.

When I made my point about the banning of referral fees being backed by the criminal law, the Lord Chancellor did not say that he agreed with me, but he did say, on 13 September:

“We are now considering the way in which to put this into practice, but it is likely to be in the form recommended”—[Official Report, 13 September 2011; Vol. 532, c. 879.]

—that is, a criminal prohibition as well as a regulatory one. He appeared to have an open mind about that, so what has changed since then?

I have just confirmed with my right hon. Friend the Lord Chancellor that, in the next sentence of that quote, he said that he had not committed to creating a criminal offence.

I can assure the right hon. Member for Blackburn that we have thought long and hard about how to achieve this, and I am aware of the concerns raised in the Justice Committee’s recent report on referral fees and the theft of personal data. The Committee’s Chairman made the point again today that the penalties for breaching section 55 of the Data Protection Act were not sufficient. The Government are keeping the question of whether to introduce custodial penalties for section 55 offences under review, and we will respond to the Justice Committee’s report in due course. However, the issue of how to deal with people such as rogue motor garage workers or nurses who are breaking the law by breaching the Data Protection Act is separate from that of how to introduce a new ban on regulated bodies to prevent them from paying referral fees, which they are currently permitted to do. I strongly believe that our ban, which will stop lawyers, claims management companies and insurance companies from paying and receiving referral fees, will remove the incentives for selling personal data from the whole system. That is because there will be no one for the rogue garage, for instance, to sell the data to, as all the people in the system who can make any profit out of handling claims will be prevented from paying referral fees. My hon. Friend the Member for East Hampshire (Damian Hinds) well set out the complexity involved in this instance.

The right hon. Member for Blackburn has also tabled an amendment to alter the way in which legitimate payments for services are defined. The effect of amendment (b) to new clause 19 would be that payments for services would be permitted only if they were

“proportionate and reasonable in the circumstances.”

The Government recognise that there are some completely legitimate practices that involve payments between lawyers and third parties, such as obtaining medical reports, which should continue. However, clause 19 aims to prevent the exchange of referral fees under the guise of those services. The onus would be on the regulated person to show it was made for the provision of services. The effect of subsection (9) of the Government’s new clause 19 would be to enable the Lord Chancellor to make regulations specifying the maximum amount that may be paid for certain services, without it being treated as a referral fee. Therefore amendment (b) is unnecessary.

I must say that I am convinced of the need to have the power to make further regulations, should the need arise. My right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) rightly brought up the question of extending the scope, and I can tell him that there are no current plans to extend the scope beyond personal injury, although, as he says, this is provided for in the Bill and might be relevant in due course.

We are repeatedly warned that the industry will find ways to circumvent the ban, and payments for services are one way in which it might do this, so having the power to set up regulations is, I agree, correct. I hope I have reassured the right hon. Member for Blackburn that we have the mechanics in place to stop these referral fees continuing to be paid under the guise of payments for services. I urge the right hon. Gentleman not to press his amendments.

Question put and agreed to.

Clause accordingly read a Second time.

Amendment proposed to new clause 18: (e), line 16, at end insert—

‘(2A) A breach of the provisions of this section shall be an offence, punishable on summary conviction by a fine not exceeding the statutory maximum or on indictment for a term of imprisonment not exceeding two years, or a fine, or both.’.—(Mr. Straw.)

New clause 18 added to the Bill.

New Clause 19

Effect of the rules against referral fees

‘(1) The relevant regulator must ensure that it has appropriate arrangements for monitoring and enforcing the restrictions imposed on regulated persons by section [Rules against referral fees].

(2) A regulator may make rules for the purposes of subsection (1).

(3) The rules may in particular provide for the relevant regulator to exercise in relation to anything done in breach of that section any powers (subject to subsections (5) and (6)) that the regulator would have in relation to anything done by the regulated person in breach of another restriction.

(4) Where the relevant regulator is the Financial Services Authority, section [Regulation by the FSA] applies instead of subsections (1) to (3) (and (7) to (9)).

(5) A breach of section [Rules against referral fees]—

(a) does not make a person guilty of an offence, and

(b) does not give rise to a right of action for breach of statutory duty.

(6) A breach of section [Rules against referral fees] does not make anything void or unenforceable, but a contract to make or pay for a referral or arrangement in breach of that section is unenforceable.

(7) Subsection (8) applies in a case where—

(a) a referral of prescribed legal business has been made by or to a regulated person, or

(b) a regulated person has made an arrangement as mentioned in section [Rules against referral fees](2)(a),

and it appears to the regulator that a payment made to or by the regulated person may be a payment for the referral or for making the arrangement (a “referral fee”).

(8) Rules under subsection (2) may provide for the payment to be treated as a referral fee unless the regulated person shows that the payment was made—

(a) as consideration for the provision of services, or

(b) for another reason,

and not as a referral fee.

(9) For the purposes of provision made by virtue of subsection (8) a payment that would otherwise be regarded as consideration for the provision of services of any description may be treated as a referral fee if it exceeds the amount specified in relation to services of that description in regulations made by the Lord Chancellor.’.—(Mr Dunne.)

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

New Clause 20

Regulation by the FSA

‘(1) The Treasury may make regulations to enable the Financial Services Authority, where it is the relevant regulator, to take action for monitoring and enforcing compliance with the restrictions imposed on regulated persons by section [Rules against referral fees].

(2) The regulations may apply, or make provision corresponding to, any of the provisions of the Financial Services and Markets Act 2000 with or without modification.

(3) Those provisions include in particular—

(a) provisions as to investigations, including powers of entry and search and criminal offences;

(b) provisions for the grant of an injunction in relation to a contravention or anticipated contravention.

(c) provisions giving Ministers or the Financial Services Authority powers to make subordinate legislation;

(d) provisions for the Financial Services Authority to charge fees.

(4) The regulations may make provision corresponding to the provision that may be made by virtue of section [Effect of the rules against referral fees](7) to (9) (but as if the reference to the Lord Chancellor were a reference to the Treasury).

(5) The power to make regulations under this section is subject to section [Effect of the rules against referral fees](5) and (6).’.—(Mr Dunne.)

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

New Clause 21

Regulators and regulated persons

‘(1) In relation to a referral of business within section [Rules against referral fees](4)(a)—

(a) a regulator is any person listed in column 1 below;

(b) a regulated person is any person listed in column 2;

(c) a regulator in column 1 is the relevant regulator in relation to the corresponding person in column 2.

1. Regulator

2. Regulated person

the Financial Services Authority

an authorised person (within the meaning of the Financial Services and Markets Act 2000) of a description specified in regulations made by the Treasury

the Claims Management Regulator

a person authorised by the Regulator under section 5(1)(a) of the Compensation Act 2006 to provide regulated claims management services

the General Council of the Bar

a person authorised by the Council to carry on a reserved legal activity within the meaning of the Legal Services Act 2007

the Law Society

a person authorised by the Society to carry on a reserved legal activity within the meaning of the Legal Services Act 2007

a regulatory body specified for the purposes of this subsection in regulations made by the Lord Chancellor

a person of a description specified in the regulations in relation to the body

(2) In relation to a referral of prescribed legal business of any other kind—

(a) a regulator is any person listed in column 1 below and specified in relation to business of that kind in regulations made by the Lord Chancellor;

(b) a regulated person is any person specified in accordance with column 2 in relation to business of that kind;

(c) a person specified under paragraph (a) in relation to business of that kind is the relevant regulator in relation to a person specified in accordance with the corresponding entry in column 2 in relation to business of that kind.

1. Regulator

2. Regulated person

the Financial Services Authority

an authorised person (within the meaning of the Financial Services and Markets Act 2000) of a description specified in regulations made by the Treasury

the Claims Management Regulator

a person who is authorised by the Regulator under section 5(1)(a) of the Compensation Act 2006 to provide regulated claims management services and is of a description specified in regulations made by the Lord Chancellor

an approved regulator for the purposes of Part 3 of the Legal Services Act 2007 (approved legal activities);

a person who is authorised by the regulator to carry on a reserved legal activity and is of a description specified in regulations made by the Lord Chancellor

a licensing authority for the purposes of Part 5 of that Act (alternative business structures)

a person who is licensed by the authority to carry on a reserved legal activity and is of a description specified in regulations made by the Lord Chancellor’.—(Mr Dunne.)

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

New Clause 22

Referral fees: regulations

‘(1) This section applies to any regulations under sections [Rules against referral fees], [Effect of the rules against referral fees], [Regulation by the FSA] and [Regulators and regulated persons].

(2) The regulations are to be made by statutory instrument.

(3) The power to make the regulations includes power to make consequential, supplementary, incidental, transitional, transitory or saving provision.

(4) A statutory instrument containing the regulations may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.’.—(Mr Dunne.)

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

New Clause 23

Removal of Limit on certain fines on conviction by magistrates’ court

‘(1) Where a relevant offence would, apart from this subsection, be punishable on summary conviction by a fine or maximum fine of £5,000 or more (however expressed), the offence is punishable on summary conviction by a fine of any amount.

(2) Where a relevant power could, apart from this subsection, be exercised to create an offence punishable on summary conviction by a fine or maximum fine of £5,000 or more (however expressed), the power may be exercised to create an offence punishable on summary conviction by a fine of any amount.

(3) For the purposes of this section, an offence or power is relevant if, immediately before the commencement day, it is contained in an Act or an instrument made under an Act (whether or not the offence or power is in force at that time).

(4) Nothing in subsection (1) affects—

(a) fines for offences committed before the commencement day,

(b) fines that may be imposed on a person aged under 18, or

(c) fines that may be imposed on a person convicted by a magistrates’ court who is to be sentenced as if convicted on indictment,

and nothing in subsection (2) affects a relevant power to the extent that it relates to such fines.

(5) The Secretary of State may by regulations—

(a) make provision disapplying subsection (1) or (2),

(b) make provision for a fine or maximum fine in relation to which subsection (1) is disapplied to be increased instead in accordance with the regulations, and

(c) make provision for a power in relation to which subsection (2) is disapplied to be exercisable to create an offence punishable on summary conviction by a fine or maximum fine of a higher amount specified or described in the regulations.

(6) Subsection (7) applies in relation to a relevant offence that, immediately before the commencement day, is punishable on summary conviction by a fine or maximum fine expressed as a proportion of an amount of £5,000 or more (however that amount is expressed).

(7) The Secretary of State may by regulations make provision for the offence to be punishable on summary conviction by a fine of that proportion of a higher amount specified or described in the regulations.

(8) Regulations under this section may not include provision affecting—

(a) fines for offences committed before the regulations come into force,

(b) fines that may be imposed on a person aged under 18, or

(c) fines that may be imposed on a person convicted by a magistrates’ court who is to be sentenced as if convicted on indictment,

or provision affecting a relevant power to the extent that it relates to such fines.

(9) Regulations under this section—

(a) may make different provision for different cases or circumstances,

(b) may make provision generally or only for specified cases or circumstances, and

(c) may make consequential, incidental, supplementary, transitional, transitory or saving provision.

(10) The power under subsection (9)(c), and the power under section 115 to make provision in relation to this section, include power to amend, repeal, revoke or otherwise modify any provision which, immediately before the commencement day, is contained in an Act or an instrument made under an Act (whether or not the provision is in force at that time).

(11) Regulations under this section are to be made by statutory instrument.

(12) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(13) If, immediately before the commencement day, the sum specified as level 5 on the standard scale in section 37(2) of the Criminal Justice Act 1982 (standard scale of fines for summary offences) is greater than £5,000, the references in this section to £5,000 have effect as if they were references to that sum.

(14) For the purposes of this section, an offence is relevant whether it is a summary offence or an offence triable either way.

(15) In this section—

“the commencement day” means the day on which subsection (1) of this section comes into force;

“Act” includes an Act or Measure of the National Assembly for Wales.’.—(Mr Blunt.)

Brought up, and read the First time.

With this it will be convenient to discuss the following:

Government new clause 24—Power to increase certain other fines on conviction by magistrates’ court.

Government new clause 25—Power to amend standard scale of fines for summary offences.

The new clauses are designed to remove the upper limits on the fines that can currently be imposed in magistrates courts. Raising the upper limits on fines gives sentencers greater flexibility to identify the most effective punishment appropriate to the offences and offenders before them, particularly when combined with other disposals such as suspended sentences when offenders are close to the custodial threshold.

The Government believe that financial penalties, as long as they are set at the right level, can be just as effective as community payback or curfews in punishing offenders and deterring them from further offending. Fines hit offenders where it hurts: in their pockets. They also have the advantage of not affecting opportunities for employment or having an impact on family responsibilities, and hence can prevent further acceleration into a criminal lifestyle. Moreover, they do not impose a further burden on the already hard-pressed taxpayer or on society as a whole. Not only are fines punitive; they provide reparation for society, and serve as part of offenders’ restoration to all of us.

That is why courts already have flexibility to impose fines in cases that have passed the community sentence threshold. It is entirely right for them to be able to consider the circumstances of the offences and of the offenders before them, and, having weighed up the various purposes of sentencing, to decide that a fine will provide an appropriate level of punishment and deterrence without needing to consider a community order. Courts already have wide discretion to make use of fines in appropriate cases, and the Government want to support and encourage that.

We particularly wish to ensure that magistrates, who issue the vast majority of fines, have the powers that they need to set fines at levels that are proportionate to the most serious offences that come before them for trial. These clauses therefore make two key changes to the way that fines operate in the magistrates courts. The first is to replace all upper limits of £5,000 or more for fines available on summary conviction. At the moment, where an offence is triable on summary conviction only, magistrates do not have the option of committing the case to the Crown court for sentence and are constrained in their ability to fine by the statutory maximum fines. For the most serious offences tried by magistrates, that is generally £5,000, although for certain offences where the financial gain from offending is substantial—for example, in some environmental offences—the maximum fine can be as high as £50,000.

For less serious offences, we believe that it is right to retain the differentials between the punishments. However, we wish to give Government and Parliament more flexibility to amend these maxima as the need arises.

If my hon. Friend will forgive me, I need to conclude my remarks and allow the Opposition to respond.

The second change these clauses propose is to give the Secretary of State a power to increase the current maximum fine amounts for levels 1 to 4 on the standard scale of fines for summary offences. These amounts are currently £200, £500, £1,000 and £2,500. The new power would be to increase these so as to keep them in the same ratio to one another as at present. There is already a similar power to change them in line with changes in the value of money, so the new power would be an extension of that. We intend to consult on the right level at which to set these new maxima.

That should form part of a wider review of sentences served in the community, so I want to use this debate to notify the House that we are entering a review process, which we intend will in due course lead to a formal public consultation on community sentences. For too long, community sentences have failed to punish offenders properly for their actions, and the Government are committed to changing that. We are already taking action, including through this Bill, to strengthen community orders, but we want to go much further and deliver a step change in the way sentences operate. They must, of course, address the problems that have caused the offending behaviour in the first place—the drug abuse, the alcoholism, the mental health problems—but they must also punish properly and send a clear message to society that wrongdoing will not be tolerated. We want to see a clear punitive element in every sentence handed out by the courts.

We will consult on further reforms to ensure that community sentences effectively punish and rehabilitate offenders. That should include consulting on what constitutes effective delivery of the principles of sentencing, punishment and rehabilitation, as I have mentioned, but also on protection of the public, restoration and how the whole package can produce the most effective deterrent to crime. A part of this consultation will be on the new maxima at levels 1 to 4 in the magistrates courts.

The Government want offenders to be in no doubt that the courts have the powers they need to punish their crimes. Once the victim’s compensation has been addressed—and if an offence presents no wider issues of reparation or public protection—if a court believes that a fine would be the best way of punishing an offender and deterring future offending, then we want to ensure that there are no barriers to courts setting the fine at the appropriate level.

To sum up, these new clauses would remove the £5,000 cap on fines that magistrates can impose, so that they are able to use their discretion and set fines that are proportionate to the offences before them. That will also improve the efficiency of the court system, by removing the need for magistrates to send cases to the Crown court when they feel the current maximum fine is not a severe enough punishment for the offenders before them. For offences with caps set at less than £5,000, we propose to retain the current structure of differential maxima, with a power to increase them as necessary.

I urge Members to support the measures.

I thank the Minister for his clear account of the effects of these proposals, but I wonder why they are being introduced at this stage. He may wish to explain that. They are not controversial. We do not intend to oppose them as we think their measures are sensible, and we are glad that the Government are, for once, in favour of judicial discretion. They made certain concessions in Committee, one of which was not withdrawing magistrates’ powers to impose longer custodial sentences. We believe the magistrates system serves this country extremely well—this year marks its 650th anniversary. However, although these are sensible changes to current magistrates powers, we are concerned about the fact that, once again, they are part of a package of new measures.

I will not take up any more of the House’s time as we shall shortly come on to discuss two very important and significant new provisions in the criminal law, of which we have had very little notice as they have been introduced at a very late stage. I therefore simply ask again why we have had to wait until Report stage for the measures currently under discussion to be introduced. We do not oppose the proposals, however, as we consider them to be sensible and uncontentious.

How nice it is to hear the hon. Member for Hammersmith (Mr Slaughter) in conciliatory mood. The Minister has made a perfectly good case for increasing the level of fines available in magistrates courts. He gave several reasons for doing so, and I would add to them the giving of further encouragement to magistrates to deal with cases themselves wherever that is possible, rather than referring them upwards to the Crown court. This is part of a general increased empowerment of magistrates to deal with cases.

The Minister has mentioned the wider issue of community penalties and non-custodial sentences, and the review and consultation that will address them. I hope that proves to be a fruitful process. There is a danger that he is giving two signals at once, however. He is hoping to give the necessary signal to the public that many offenders consider community sentences to be more demanding and rigorous, and much less congenial, than very short terms of imprisonment. Some offenders who have appeared before the Justice Committee have said they committed further offences because it was easier to spend the time in prison than to continue with a community sentence. The Government must also give a signal to the judiciary that it should make the maximum use of the available range of penalties, on the basis of what is most likely to reduce reoffending. If a rigorous, well-supervised and policed community sentence is more likely to reduce reoffending, the judiciary should be encouraged to choose that option. I hope people do not find the signals too confusing, that we end up with a well-supported system of community penalties, and that people have confidence that for many offenders such penalties reduce reoffending more effectively than prison does.

Although I support the Government’s proposals, it would make sense to remove the upper limit on financial penalties imposed by magistrates courts. The proposals do not relate to levels of compensation, so if magistrates are asked to sentence for, say, a theft of £5,000-worth of goods, they will still have to refer the matter to the Crown court for sentence if they do not have the power to award more than £5,000 compensation. I therefore wonder whether the Government would be willing to look at the levels of compensation in the future, to see if there is any scope for lifting the upper limit of compensation awards that magistrates courts can impose.

I am grateful to have this brief opportunity to respond to the points raised. Let me see if I can do justice to the grudging support of the hon. Member for Hammersmith (Mr Slaughter). I am certainly profoundly grateful that we found him in a positive mood, and the fact that he welcomes these measures gives the answer to his questions. They are appropriate measures; that is why they are being welcomed across the House.

My right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) is absolutely right that many defendants consider a proper combination of community sentences to be much more onerous than custody—and I want to increase the opportunities for that to be seen as much more onerous than custody. My hon. Friend the Member for Shipley (Philip Davies) is not present, but I remember him citing an example from the Daily Mail about a judge who threw the book at an offender because he thought he could not send him to prison: he gave the offender a combination of community sentences that were much more onerous than the custody would have been.

We want to get to a place where we can get a better balance on sentencing, to make sure that we actually punish people in the most appropriate way and give sentences greater flexibility. That is what this measure will do. I will write to my hon. Friend the Member for Dartford (Gareth Johnson), who made an entirely proper point. I want to make it absolutely clear that compensation comes first—

Debate interrupted (Programme Order, 31 October).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.

Question agreed to.

New clause 23 accordingly read a Second time, and added to the Bill.

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).

New Clause 24

Power to increase certain other fines on conviction by magistrates’ court

‘(1) Subsection (2) applies in relation to a relevant offence which, immediately before the commencement day, is punishable on summary conviction by a fine or maximum fine of a fixed amount of less than £5,000.

(2) The Secretary of State may by regulations make provision for the offence to be punishable on summary conviction by a fine or maximum fine of a higher amount specified or described in the regulations.

(3) Subsection (4) applies in relation to a relevant power which, immediately before the commencement day, can be exercised to create an offence punishable on summary conviction by a fine or maximum fine of a fixed amount of less than £5,000 but not to create an offence so punishable by a fine or maximum fine of a fixed amount of £5,000 or more.

(4) The Secretary of State may by regulations make provision for the power to be exercisable to create an offence punishable on summary conviction by a fine or maximum fine of a higher amount specified or described in the regulations.

(5) Regulations under this section may not specify or describe an amount exceeding whichever is the greater of—

(a) £5,000, or

(b) the sum specified for the time being as level 4 on the standard scale.

(6) Regulations under this section may not include provision affecting—

(a) fines for offences committed before the regulations come into force,

(b) fines that may be imposed on a person aged under 18, or

(c) fines that may be imposed on a person convicted by a magistrates’ court who is to be sentenced as if convicted on indictment,

or provision affecting a relevant power to the extent that it relates to such fines.

(7) Regulations under this section—

(a) may make different provision for different cases or circumstances,

(b) may make provision generally or only for specified cases or circumstances, and

(c) may make consequential, incidental, supplementary, transitional, transitory or saving provision.

(8) The power under subsection (7)(c) includes power to amend, repeal, revoke or otherwise modify any provision which, immediately before the commencement day, is contained in an Act or an instrument made under an Act (whether or not the provision is in force at that time).

(9) Regulations under this section are to be made by statutory instrument.

(10) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(11) If, immediately before the commencement day, the sum specified as level 5 on the standard scale in section 37(2) of the Criminal Justice Act 1982 (standard scale of fines for summary offences) is greater than £5,000, the references in this section to £5,000 have effect as if they were references to that sum.

(12) In this section “Act”, “the commencement day”, “relevant offence” and “relevant power” have the same meaning as in section [Removal of limit on certain fines on conviction by magistrates’ court].’.—(Mr Blunt.)

Brought up, and added to the Bill.

New Clause 25

Power to amend standard scale of fines for summary offences

‘(1) The Secretary of State may by order substitute higher sums for the sums for the time being specified as levels 1 to 4 on the standard scale in section 37(2) of the Criminal Justice Act 1982 (standard scale of fines for summary offences).

(2) The power under subsection (1) may not be exercised so as to alter the ratio of one of those levels to another.

(3) In section 143 of the Magistrates’ Courts Act 1980 (power to alter sums including standard scale of fines for summary offences), in subsection (3)(b), after “subsection (1) above” insert “or section [Power to amend standard scale of fines for summary offences] of the Legal Aid, Sentencing and Punishment of Offenders Act 2011”.

(4) In section 37 of the Criminal Justice Act 1982 (standard scale of fines for summary offences), in subsection (3), at the end insert “or section [Power to amend standard scale of fines for summary offences] of the Legal Aid, Sentencing and Punishment of Offenders Act 2011”.

(5) An order under this section is to be made by statutory instrument.

(6) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(7) An order under this section does not affect fines for offences committed before the order comes into force.’.—(Mr Blunt.)

Brought up, and added to the Bill.

Before we embark on the next debate, may I draw attention to Mr Speaker’s request, made earlier this afternoon, for brevity from the Front Benchers and Back Benchers in these debates so that all the important matters before the House for decision today can be properly considered?

New Clause 27

Reasonable force for the purposes of self-defence etc

‘(1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for the purposes of self-defence etc) is amended as follows.

(2) In subsection (2) after paragraph (a) omit “and” and insert—

“(aa) the common law defence of defence of property; and”.

(3) After subsection (6) insert—

“(6A) In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.”

(4) In subsection (8) for “Subsection (7) is” substitute “Subsections (6A) and (7) are”.

(5) In subsection (10)(a) after sub-paragraph (i) omit “or” and insert—

(ia) the purpose of defence of property under the common law, or”.’.—(Mr Blunt.)

Brought up, and read the First time.

I shall certainly be following Mr Speaker’s direction, and I hope that we will dispose of this matter in as short an order as we disposed of removing the limit on magistrates’ fines.

The question of how far one can go to defend oneself crops up again and again in the letters Members of Parliament receive from their constituents, and of course it is always a controversial issue in the press and the media. It usually arises because a hard-working, law-abiding home owner or shopkeeper has been forced to defend themselves against an intruder and has ended up being arrested for it. Being confronted by an assailant in one’s home, on the street or anywhere else can be a terrifying prospect. It is essential that the law in this area is clear, so that people who use reasonable force to defend themselves or to protect their properties can be confident that the law is on their side.

There will always be occasions when the police need to make an arrest to enable a prompt and effective investigation, especially if they turn up at an address and somebody is dead. We are working with the Home Office on new guidance for the police to ensure that arrests are made only where necessary, but these provisions should give people greater certainty that the law itself is on their side and they will not be prosecuted or convicted if they have only used reasonable force.

Will the Minister advise the House how the provisions change the common law doctrine and principle of a person being able to protect his or her property using force and the doctrine of self-defence, where reasonable force is used to defend oneself? I asked the Lord Chancellor that yesterday and he told me to wait until today for the answer—I am all ears.

The right hon. Gentleman should listen out for the next passage of my remarks, as I hope it will give him and the rest of the House satisfaction.

On the specific provisions, the new clause is not designed to sweep away the fundamental premise that somebody can use reasonable force in self-defence. In my view, that aspect of the law is entirely sensible. Allowing somebody to use unreasonable or disproportionate force would be very dangerous indeed, as it would effectively sanction vigilantism or violent retribution. Instead our proposals are designed to clarify what “reasonable” force means in practice. The new clause will amend section 76 of the Criminal Justice and Immigration Act 2008 to make it clear that a person can use reasonable force to defend property in addition to defending themselves, other people or preventing crime, and that they are under no duty to retreat from an offender when acting for a legitimate purpose, although if they had a chance to retreat, the court may still consider it when deciding whether the force used was reasonable in the circumstances. We did not consult on these measures because of the limited nature of the amendments, but that should not detract from their importance in reassuring householders and small shopkeepers who use reasonable force to defend themselves and their properties that the law is on their side.

Does the Minister not accept that the law works perfectly well as it is? Some years ago, I defended someone who had chopped off someone’s ear with a samurai sword and the jury acquitted him, saying that he had used reasonable force in the circumstances.

I cannot comment on that individual case—[Interruption.] The shadow Justice Secretary tempts me down that road, but I will resist. The much clearer message that will be sent if the House chooses to accept the Government’s proposals will mean that the position should be crystal clear to householders and shopkeepers on the force that they are entitled to use. That is the purpose of these provisions. We are seeking to reassure the public, and this all sits as part of our desire to have a society that can exercise its rights and properly defend those rights, and that does not feel that people have to pass by on the other side, particularly when their lives and property are at risk.

May I suggest to the Minister that legislating is not all about giving out signals and that it is about making law? I have no axe to grind personally with the Minister, who is a perfectly decent man and who engaged with us in Committee on many matters, above and beyond his brief. However, he may have wished to circulate a photocopy of the Crown Prosecution Service guidance on self-defence and the prevention of crime. Any fool can read and understand it, as it says simply, under the heading of “Reasonable Force”:

“A person may use such force as is reasonable in the circumstances for the purposes of: self-defence; or defence of another; or defence of property”.

It goes on to describe a further two matters. Providing a copy of that would have done, rather than using legislative time.

I am very grateful—[Interruption.] I am not embarrassed in the least. This measure forms part of the coalition agreement. We are delivering on that, sending a clear message and putting the law beyond doubt. Having things buried away in guidance to prosecutors, given that reassurance is needed for home owners and shopkeepers, is a distinctly sub-optimal way of proceeding on an issue such as this. When viewed in conjunction with the Home Secretary’s plans to strengthen the code of arrest for the police, we hope that these measures will help to fulfil the commitments in the coalition agreement on this issue. We must take together the instructions to Crown prosecutors, the legislation that I hope will go on to the statute book as a result of these Government measures and that code of arrest for the police, and I can therefore happily commend these proposals to the House.

First, may I say, for the avoidance of doubt, that Labour Members do not intend to oppose new clause 27 or the consequential amendments, even though it is simply a rehash of an existing law and this valuable parliamentary time could have been used to discuss contentious issues that have caused real concern for many of our constituents? It was the previous Government, through section 76 of the Criminal Justice and Immigration Act 2008, who placed the common law of self-defence into statute.

Since that time, there have been a number of calls, especially from those on the right, to “tighten” the laws on self-defence because they think that is good politics. Back in February 2010, the Prime Minister argued that the law needed further tightening to benefit the home owner against the burglar. Indeed, the Conservative party manifesto said that it would

“give householders greater legal protection if they have to defend themselves against intruders in their homes.”

The Conservatives have floated on a number of occasions the issue of reasonable force and changing the law to allow anything other than actions that are grossly disproportionate. Back in December 2009, the shadow Home Secretary, now Minister of State, Department for Work and Pensions, the right hon. Member for Epsom and Ewell (Chris Grayling) committed a future Conservative Home Secretary to changing the law so that convictions against householders would happen only in cases where the actions involved were “grossly disproportionate.” But despite all the spin, that change has not materialised. The new clause will not allow home owners to use grossly disproportionate force or disproportionate force. It will not even strengthen the law. That is because expert opinion and evidence on the issue of self-defence for home owners is pretty unanimous.

It is widely accepted by those at the coal face that the law on self-defence works pretty well and it is unclear in many quarters why the law would need strengthening. The Director of Public Prosecutions, Keir Starmer QC, has said:

“There are many cases, some involving death, where no prosecutions are brought. We would only ever bring a prosecution where we thought that the degree of force was unreasonable in such a way that the jury would realistically convict. So these are very rare cases and history tells us that the current test works very well.”

That approach is further reinforced by what has happened in recent months. That is why the Minister, whom we all like, is embarrassed by having to move the new clause and why his right hon. and learned Friend the Justice Secretary, whom we all love, has disappeared from the Chamber. Recent cases involving home owners such as Vincent Cooke in Cheshire, Peter Flanagan in Salford and Cecil Coley in Old Trafford, in which intruders were killed, have demonstrated that when reasonable force is deemed to have been used, the Crown Prosecution Service has not brought any charges, so the current law works. I see that a note is desperately being passed to the Minister—it is probably a sick note from the Justice Secretary.

Paul Mendelle QC, a previous chairman of the Criminal Bar Association, said:

“The law should always encourage people to be reasonable, not unreasonable; to be proportionate, not disproportionate.”

He went on to add that the current law worked perfectly well and was well understood by juries. Just yesterday he argued in The Guardian that the two areas of change proposed by the Government are nothing of the sort. By amending section 76 of the 2008 Act so that there is no duty to retreat before force they are restating the current law. I think it is called rearranging the furniture: things might look different, but nothing of substance will have changed.

I understand the import and effect of the right hon. Gentleman’s criticisms, but what was done by section 76 if not precisely what the Government are doing—namely putting the common law on a statutory footing?

I am glad that the hon. and learned Gentleman welcomed the Labour Government’s section 76, but it is because we have already done that that there is no point in doing it again. I appreciate that he would like to seek the glory for doing so, but we have already done it. There is no need to reinvent the wheel.

The right hon. Gentleman did not do this and neither did his Government. In seeking to codify the common law, they left out the defence of defending property. All the Government are doing now is making good a lacuna left by the Labour Government.

With the greatest respect to the hon. and learned Gentleman, he is wrong.

Far from requiring retreat, the current law allows that even the first blow can still be reasonable force in self-defence. It is unclear what including the defence of property in the 2008 Act will add to the law as it does not differ from existing interpretations. The right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who speaks for Plaid Cymru, has given examples from the CPS guidance written in plain English. Perhaps he is suggesting that we should publish the CPS guidance and deliver it to every household in England and Wales, but I think that would be a waste of time. The Minister seems to believe that voters—home owners—will read the Bill to seek clarification of the law.

Using legislation as a public relations stunt is no way to run a Government, especially when measures are introduced at the eleventh hour. Not only have the clauses on self-defence not been subjected to scrutiny or consultation, but it is not clear how much they will add to legislation on self-defence. The Government’s own impact assessment confirms that there will be no impact on the MOJ, so what we have today is not the Conservatives’ manifesto pledge—that is another broken promise, by the way—or a strengthening of the law, as it has been spun as being, but a simple restatement of the policy on self-defence, which had already been restated excellently back in 2008. For those reasons, we will not oppose the measures.

It is often said in parliamentary circles that amendments, especially those moved by Opposition Members, are otiose, although I venture to suggest that few people outside this Chamber use that word, let alone know what it means: namely, that something is pointless. I start on the basis that this is pointless and I shall develop my argument point by point, if I am allowed to do so.

No, like the right hon. Gentleman, I have the highest regard for the right hon. and learned Gentleman and I presume that this evening he is exercising his own right to self-defence by not being here. He has withdrawn from the Chamber and the possibility of being dealt a few blows that could actually hurt him. I say that not in a rude or pejorative fashion but in a semi-jocular way.

Yesterday, I asked the right hon. and learned Gentleman to answer the very question I also asked the Minister: what would be the exact difference in the law after this measure was introduced? Answer came there none from the right hon. and learned Gentleman, except, “Hang on until tomorrow and all will be revealed.” In the past few minutes, the Minister has revealed all and, blow me, I am underwhelmed! I listened intently but reason or logic came there none and changes less still, so I am still none the wiser. “Could it be,” I ask myself, “that the Government are speaking to an audience outside the Chamber?” Surely not; surely, they are not actually addressing an audience outside the Chamber such as the tabloid groups. No, never, that could not be right—I have dismissed that idea.

Currently, a householder may use reasonable force to defend him or herself or another, or in the prevention of crime, which includes defending a person’s property. The new clause therefore does nothing. The use of force in self-defence is governed by common law and the use of force in the prevention of crime is governed by section 3 of the Criminal Law Act 1967. In both cases, the test to be applied is whether the force used was necessary and, if so, whether the degree of force used was reasonable in all the circumstances.

Whether the force used can be considered reasonable is decided according to the circumstances and the danger that the householder perceived him or herself to be in. The beauty of that law is the fact that it is so open, because circumstances change and one looks at the circumstances of each case. We have heard about someone having his ear sliced off and I can tell hon. Members about a case I defended in which, in a public house in north Wales, two families who were not very friendly met up. One was a family of poachers and the other of gamekeepers. Three members of one family jumped on top of one member of the other family in the toilets and the only way in which the lad, who was by himself, felt he could defend himself was by squeezing one of the others’ testicles in the most awful way. It left some permanent damage by the way, so it was not altogether a laughing matter—certainly not for the man involved. Anyway, the question for the court was whether the force used there and then was reasonable in all the circumstances and the court said, yes. So every case is decided on its merits; that is the beauty of the law of self-defence.

I deduce therefore that the only possible justification for the change is to provide some form of clarification and/or, possibly, that somebody is addressing somebody outside. Section 76 of the Criminal Justice Act 2003 clarifies the operation of the common law and section 3 defences as listed in the 1967 Act. The 2003 Act did not change the current test that allows the use of reasonable force and neither, I suspect, will new clause 27.

Nor, indeed, can the Government argue that the law surrounding reasonable force is badly understood by the judiciary—professional or lay. The existing position with regard to property is set out clearly in layman’s terms in the CPS guidance “Self-defence and the prevention of crime”. It says:

“Reasonable force. A person may use such force as is reasonable in the circumstances for the purposes of: self-defence; or defence of another; or defence of property; or prevention of crime; or lawful arrest.

In assessing the reasonableness of the force used, prosecutors should ask two questions:

was the use of force necessary in the circumstances, i.e. Was there a need for any force at all? and

was the force used reasonable in the circumstances?”

The existing law works well and is well understood; 99% of the time it is well applied in courts and I do not know of any great tide of concern that the law needs further clarification.

Of course I agree with almost every word that the right hon. Gentleman is saying, but does he not agree that if the Government first enact section 76 of the Criminal Justice and Immigration Act 2008 they might as well make it complete by including the defence of property? If they are going to bother with section 76 at all, they should make it complete and include the defence of property.

I hear what the hon. and learned Gentleman says, and I suppose that that is right, but I come back to my earlier point that the whole process is otiose. I understand what he is saying, and he has logic on his side. We talk about logic, but parliamentary time is short. Yesterday we had to leave out consideration of a raft of important matters relating to social welfare and social justice. None of them was discussed. Yet we have time this evening to talk about something that is unnecessary. So although I respectfully disagree with the hon. and learned Gentleman, he has logic on his side. However, the new clause is not the right vehicle for clarification of the law.

Quite why the measure is being introduced now is rather baffling. I can only presume that it is to please the tabloids and that this Government, like the last, want to convince voters that they are not soft on crime. Those on the right of the Justice Secretary’s party have made clear their aspirations to amend the law on reasonable force for some time now. As far back as 2009, the then shadow Home Secretary, the right hon. Member for Epsom and Ewell (Chris Grayling), said that any future Conservative Government would push for prosecutions, and convictions, only where courts judged that the action taken had been “grossly disproportionate”. That would have stood the law on its head. A huge amount of jurisprudence would have emanated from that decision. No doubt the hon. and learned Member for Torridge and West Devon (Mr Cox) and I would have profited from it, but it would have been a bad step in my view. The Conservative party wound back somewhat after that was said.

I am glad that such an extraordinary change to the law has not occurred, at least not yet. As Michael Wolkind QC, who represented Tony Martin, who was found guilty of murder and wounding with intent under the existing law, has said, allowing householders to use force that is not “grossly disproportionate” would amount to “state-sponsored revenge”.

Indeed, an outsider looking in might be forgiven for suspecting that hundreds of people were being prosecuted every year under the current law. But an informal trawl by the CPS suggested that between 1990 and 2005 there were only 11 prosecutions of people who had used force against intruders in houses, commercial premises or private land. So that is what we are dealing with and it leads one to question why we are talking about it tonight.

As the chair of the Bar Council Paul Mendelle QC said—it has been mentioned by the right hon. Member for Tooting (Sadiq Khan), but it will stand repetition—

“The law should always encourage people to be reasonable, not unreasonable; to be proportionate, not disproportionate.”

Paul Mendelle also commented in the same article written in The Times that the present law worked well and was well understood by juries. Again, I ask why we are doing this.

Changes to the law should not be brought about to produce good sound bites. The common law of self-defence already makes it perfectly clear that a householder is able to use reasonable force against an intruder in defence of himself or herself or his or her property. Amending the existing law for no gain in matters of substance will serve only to increase vigilantism and is not a good use of parliamentary time. It could lead to people using excessive force because they think they might be above the law—“An Englishman’s home is his castle” and all that kind of thing. I do not know. It might give out all the wrong signs, not the signs that Ministers on the Treasury Bench hope and suspect they are giving out.

I believe that the new clause has more to do with internal party politics than with policy. We are using valuable parliamentary time to play this out. The amendment is otiose and serves only to play to the drum beat of the tabloid press. I have a lot of time for the Justice Secretary, who is a man of great integrity, but I fear that in introducing the new clause he is dancing to the tune of the tabloids.

I will turn to the remarks of the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) towards the end of my speech, but first let me say how grateful I am to the right hon. Member for Tooting (Sadiq Khan) for his kind personal remarks. I was marginally upset that I did not leap the amorous threshold that my right hon. and learned Friend the Justice Secretary did, but I am grateful for the limited extent of his affection compared to that for my right hon. and learned Friend.

I was amazed at the chutzpah of the right hon. Member for Tooting in lecturing the Government about a public relations stunt and spin. It took me a moment to pick my jaw back up off the Bench as I listened to him. There is a clear answer to the right hon. Gentleman. He properly stood up for the legal system as it now sits. As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) said, it is an inconsistent message if we have changed section 76 of the Criminal Justice Act but have not applied it to property, so let us make the position absolutely clear to everyone that not only in the code for crown prosecutors and in the common law but in statute law, as passed by the House, property is included. That is a clear reason for making this change.

The right hon. Gentleman said that presumably the change was for an audience outside the Chamber. Yes, it is. It is all very well for sophisticates such as us, who understand the word “otiose”—used by the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd)—but the issue goes right to people’s hearts. They feel that they are entitled to defend their home or their shop, and we owe it to them to make it crystal clear that we absolutely support them in defending themselves, their families and their property. The proposals make that absolutely clear. We need to understand that when something is so central to how everybody feels about their home, shop or place of business we must send a clear signal from this place about whose side we are on.

I am sorry to interrupt the Minister’s flow, but I have a simple question. Once the law is on the statute book, will a home owner have more rights, fewer rights or the same rights as they have now?

The home owner will have much greater reassurance about exercising their rights. [Interruption.] It is all for well for the lawyers on the Opposition Benches to cackle and say that the provision will not make any strict legal difference; it makes a profound difference in the reassurance that people will feel about operating in defence of their property and their life, which is why I am happy to commend the new clause to the House.

Question put and agreed to.

Clause read a Second time and added to the Bill.

New Clause 26

Offence of squatting in a residential building

‘(1) A person commits an offence if—

(a) the person is in a residential building as a trespasser having entered it as a trespasser,

(b) the person knows or ought to know that he or she is a trespasser, and

(c) the person is living in the building or intends to live there for any period.

(2) The offence is not committed by a person holding over after the end of a lease or licence (even if the person leaves and re-enters the building).

(3) For the purposes of this section—

(a) “building” includes any structure or part of a structure (including a temporary or moveable structure), and

(b) a building is “residential” if it is designed or adapted, before the time of entry, for use as a place to live.

(4) For the purposes of this section the fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser.

(5) A person convicted of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 5 on the standard scale (or both).

(6) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (5) to 51 weeks is to be read as a reference to 6 months.

(7) For the purposes of subsection (1)(a) it is irrelevant whether the person entered the building as a trespasser before or after the commencement of this section.’.—(Mr Blunt.)

Brought up, and read the First time.

With this it will be convenient to discuss the following:

Amendment (a) to new clause 26, line 7, at end insert—

‘(2A) The offence is not committed where the building has been empty for six months or more and where there are no significant steps being taken to refurbish, let or sell the building at the time of the trespass.’.

Amendment (c) to new clause 26, line 22 leave out subsection (7) and insert—

‘(7) For the purposes of subsection (1)(a) no offence is committed if the person initially entered the building as a trespasser before the commencement of this section.’.

Government amendment 140

The Government are very concerned about the harm that squatters can cause. Residential and non-residential property owners have contacted Ministers repeatedly about the appalling impact that squatting can have on their homes and businesses. These are not media scare stories; they are very real and stressful events for victims whose properties have been occupied.

It is not just a question of the cost, length of time and incredible hassle involved in evicting squatters. Properties can be left in a terrible state after the squatters have been evicted and owners may face hefty cleaning and repair bills. While the property owner is literally left picking up the pieces, the squatters have gone on their merry way. They might even be squatting in somebody else’s property.

The current law already offers some protection to both non-residential and residential property owners. Squatters may be guilty, in certain circumstances, of offences such as criminal damage and burglary. There is also an offence under section 7 of the Criminal Law Act 1977 that protects certain residential property owners. It applies when a trespasser fails to leave residential premises on being required to do so by or on behalf of a “displaced residential occupier” or a “protected inten