I beg to move, That the Bill be now read a Second time.
Our laws need to keep pace with our changing society, and our law enforcement response needs to stay ahead of the changing threat. We have achieved a lot in the past two years. Our police reforms are working—crime is down 10%, and the front-line service is being protected. However, we need to do more to ensure that there is an effective, national response to the threat from serious, organised and complex crime. At the same time, the civil and criminal justice system that we inherited is just not equipped to deal with the challenges of today. Our courts need to be tough on wrongdoing, our non-custodial sentences need to command public confidence and our judiciary needs to reflect contemporary society. The Bill will address all those issues.
Together, the Bill’s provisions will bring our justice system into the 21st century, ensure a focused, effective crime-fighting response to the threats that we face today and better prepare us to fight crime and secure our borders. Over the past two years, the Government have already implemented the most radical reforms that law enforcement has seen in a generation, but there remains a fundamental paradox in policing that we need to correct. While Governments over the years have focused on local policing, they have consistently neglected the threat from serious, organised and complex crime. That threat is far-reaching. It involves about 30,000 individuals across the country and 7,500 organised crime groups, at an estimated annual cost to the economy of up to £40 billion.
However, the real cost of organised crime can be seen in the communities that it terrorises and the lives that it wrecks—the young people whose lives are cut short by drug addiction; the women who are trafficked and forced into prostitution; the children who are denied a childhood through sexual abuse and exploitation; and the elderly and vulnerable who are robbed of their savings through fraud.
In 2011, we set out the first truly comprehensive strategy to combat the threat from organised crime, “Local to Global”. The Bill will establish the agency that will spearhead our operational response by cutting crime and protecting the public. Whereas the law enforcement effort is currently patchy and fragmented, the National Crime Agency will bring a decisive, intelligence-led response to organised crime.
The Home Secretary will be aware that the Serious Organised Crime Agency has a network of offices around the world where it does an excellent job in combating narcotics and serious crime. Can she confirm that under the new arrangements those excellent networks and offices will be kept open, even though they may be more streamlined and even more cost-effective?
I am grateful to my hon. Friend for reflecting on the valuable and important work that SOCA does around the world. The international network will continue to be maintained. There may obviously be changes over time, depending on requirements and where the intelligence leads us, but it is intended that the international network, which is widely respected because it does such good work, will continue under the National Crime Agency.
I support the restructuring of the landscape of policing but I am a bit concerned about the budgets. When the head of the National Crime Agency gave evidence to the Home Affairs Committee he said that the agency would have a budget of £400 million. As the Secretary of State knows, SOCA’s last budget was £400 million, and that of the National Policing Improvement Agency £392 million. The difference is £400 million. Where will the additional money from the merging of those two organisations end up?
The right hon. Gentleman will know that not all parts that were under the NPIA are going into the NCA. Other sections of the NPIA are effectively going into parts of other organisations—some will come to the Home Office; the College of Policing that we have set up will look at standards and training. It is not possible simply to take the two budgets, add them together and say, “Where is the money going?” The money for the National Crime Agency will come from the precursor agencies, but as for other bodies, we will obviously have to look carefully at its budget at a time when forces and others are having to take cuts.
I want to say again how well regarded SOCA is. When the Home Affairs Committee looked at drugs policy around the world it was clear wherever we went that there was huge respect for SOCA, its brand and the work it does to counter narco-trafficking. One recommendation in the Committee’s report on drugs was that we should try to preserve the badge of SOCA—perhaps as a serious overseas crime arm or something—so that we would not have to explain to lots of countries why we had changed its name. Will the Home Secretary look at that idea?
I thank my hon. Friend for once again reiterating the good work that SOCA does, and I recognise that there is a brand issue. SOCA is being brought into the National Crime Agency and there will be a serious organised crime command within that agency. What the international parts of the NCA are called, and how they are configured with other commands in the NCA, are currently under discussion.
The National Crime Agency will be a visible, operational crime-fighting agency. It will have four commands—I have just referred to that issue—that will allow it to lead the national response on organised crime, border policing, economic crime and child exploitation. It will fulfil the coalition commitment to create a dedicated border policing command, ensuring a joined-up response to those who seek to enter the UK illegally or in order to do harm. It will be home to the national cybercrime unit, bringing together existing capabilities to keep the public safe from online threats.
The NCA will hold the single authoritative intelligence picture of organised crime affecting the United Kingdom, underpinned by strong powers and duties to ensure it can share relevant information across law enforcement bodies. Part 1 of the Bill will give the National Crime Agency the ability to task and co-ordinate the law enforcement response to organised crime. Individual police forces will continue to play an important role in tackling criminal gangs, but the NCA will ensure its resources are used in the most effective way.
To ensure the right operational response at the right level, the Bill also provides for co-operation and tasking between the NCA and police forces. I would expect agreement to be reached locally about which agency is best placed to take action against a given criminal group. Where—exceptionally—agreement cannot be reached, the Bill provides the necessary backstop powers for the NCA to direct the provision of assistance or that a particular task be undertaken.
The NCA will be operationally focused with an experienced crime fighter at its head. The Bill provides for clear governance arrangements, with an operationally independent director general answering directly to the Home Secretary for delivering the agency’s strategic priorities. Keith Bristow, the NCA’s first director general, has made it clear that to undertake his role effectively he will need an open and responsive relationship with police forces and police and crime commissioners. The Bill will ensure this by requiring that the devolved Administrations and key figures in law enforcement are consulted on the NCA’s annual plan and its strategic priorities. From the director general downwards, NCA officers will need to be equipped with the necessary powers to do their job, so the Bill provides for NCA officers to be designated with the powers of a constable, customs officer and immigration officer.
Given the vital crime-fighting role that NCA officers will have, it is inconceivable to me that their work should be disrupted through industrial action. Although my preference is to reach a no-strike agreement with the relevant unions, the Bill includes a back-stop statutory prohibition on industrial action. Few would wish to contemplate the police being able to strike, and I am pleased that in the other place no one argued against applying the same restrictions to operational NCA officers.
Before moving on to other aspects of the Bill, I want to touch on a possible future role for the NCA in respect of counter-terrorism policing. The House will be aware that the other place voted to remove what was clause 2 of the Bill, which enabled counter-terrorism policing functions to be conferred on the NCA by order. The debate in the other place was about the level of parliamentary scrutiny that should be given to such a decision, not whether the NCA should take on counter-terrorism policing in the future.
I have been clear that no decision on this issue has been taken and that none will be taken until after the NCA has been established and following a detailed review. However, the creation of a national crime agency with a national remit to combat serious, organised and complex crime invites the question whether it should take on national functions in respect of counter-terrorism policing. I do not come to this question with any preconceived ideas about what the answer should be, but it was prudent, in my view, for the Bill as originally introduced to have included a future-proofing provision.
I also recognise the points raised in the other place about possible future decisions on counter-terrorism policing and sensitivities in Northern Ireland. Indeed, the original clause, as drafted, provided strong protection for the Chief Constable of the Police Service of Northern Ireland in relation to counter-terrorism policing in Northern Ireland. I will continue to reflect on the debate in the other place before deciding how best to proceed, and I am sure that the House will want to come back to this issue during the later stages of the Bill’s consideration.
As well as establishing the NCA, we need to ensure that both the NCA and its law enforcement partners have the powers they need to fight organised crime in all its manifestations. In combating fraud and other economic crimes, the Bill confers on the Serious Fraud Office and the Crown Prosecution Service the ability to enter into deferred prosecution agreements with organisations alleged to have committed economic wrongdoing. These agreements will enable prosecutors to impose tough financial penalties and other sanctions on organisations for wrongdoing as an alternative to protracted court proceedings with uncertain outcomes.
To support the fight against immigration crime, part 3 of the Bill extends to the UK Border Agency’s financial investigation teams certain surveillance and property interference powers available under the Regulation of Investigatory Powers Act 2000 and the Police Act 1997, as well as asset seizure powers under the Proceeds of Crime Act 2002. Under the law as it stands, there is an artificial distinction whereby these powers are available to Border Agency staff investigating customs offences, but not to those investigating immigration offences.
On the Proceeds of Crime Act, we need to ensure that our ability to seize money and assets derived from criminal conduct is not undermined by legal loopholes. I can therefore announce that we will table amendments to the Bill that will restore the civil recovery scheme to the position it was commonly understood to be in prior to the Supreme Court’s decision last summer in the case of Perry. In its judgment, the Court held that the scheme only applied to property within the jurisdiction of the UK courts. This judgment significantly weakened the reach of the Proceeds of Crime Act, and it is right that we should take action to prevent those who engage in criminal conduct here from being able to put their ill-gotten gains beyond the reach of the UK courts.
As well as strengthening enforcement at the border through the NCA and UKBA, the Bill will ensure that we can make the most effective use of resources by closing a long-standing loophole in the immigration system. Part 3 of the Bill removes the full right of appeal against refusal of an application for a visa as a family visitor. I know this provision has caused a number of hon. Members some disquiet.
It has indeed caused a great deal of disquiet and is a repeat of what happened when the Conservatives were last in office. Is it right and proper that someone refused permission to come here for a family visit is denied the right of appeal? In effect, that means that the immigration officer would decide on the application and be the jury. As I understand the position, at least 50% of such appeals are successful. Is that why they are being abolished?
No. What I say to the hon. Gentleman and others who have concerns is that this is the only visitor category that retains a full right of appeal. As a result, I think we see some abuse in this system. It is better to focus the resources available for the immigration appeals systems on those appeals, such as on the refusal of asylum, that could have a far greater impact on the lives of the individuals concerned.
May I ask the Home Secretary to expand on two things? First, will she expand on her suggestion that initially the right of appeal in visitor cases extended beyond families, because that is simply not true? I introduced it as Home Secretary, and it was only ever applied in respect of family visitors and not more widely, as I remember. Secondly, can she explain what she means by the word “abuse”? Like many hon. Members on both sides of the House, I have plenty of appeal cases, and the purpose of the appeal is to filter out those appeals that are genuine from those that may be an abuse. Since at least a third of appeals are successful, however, there is no possible argument for abandoning this right of appeal.
The right hon. Gentleman is right that the family visit route is the only visit route that has this right of appeal. Of course, it is not being abused in all cases. I mention the word “abuse”, because what often happens in the system at the moment with these appeals is that a decision is taken by immigration officers on the basis of the evidence available to them at the application stage. When the appeal goes forward, further evidence is introduced, and it often does not have the same degree of attention and consideration given to it as is given by immigration officers to the evidence given to them in the application process. What we see is not an appeal against the decision of the immigration officer. In many cases—I would say in most cases—an appeal is heard on the basis of different evidence.
Our constituencies differ. Over the past 30 years, I have dealt with hundreds of visitor appeals, and I have to say to the right hon. Lady that what she is being told by her officials is very different from my experience. In the vast majority of cases that go to appeal, the initial evidence has been made available by the applicant, here and abroad, to the entry clearance officers. It is the fact that that evidence has not been properly treated by the immigration officers that then leads to appeals. I ask her to look at the evidence base on which she is relying.
I say to the right hon. Gentleman that in many cases the appeal process for family visit visas is being used just as a means to present fresh evidence into the appeals system in support of the application, and that is not the point of an appeals process. There is another point for individuals who go through the appeals process: if fresh evidence is available, they should make a fresh application. It takes less time for a fresh application to be considered than for an appeal to be considered. With a fresh application, people will on average be able to have a decision within 15 days, rather than eight months with the appeals process.
In all fairness to the applicants, the Home Secretary should withdraw the word “abuse”. Is it not true that the independent commissioner for the UK Border Agency continues to show concern about applicants being turned down for not sending in documents that they were never told in the first instance were required? If she continues to say the applicants are abusing the system, then in all fairness she must say that UKBA entry clearance officers are abusing the system. Does she not agree that the system does not need to be abolished, but to be made to work more sensibly?
Let me say to all hon. and right hon. Gentlemen who have raised this issue that analysis of a sample of 363 allowed family visit visa appeal determinations in April 2011 showed that new evidence produced at appeal was the only reason for the tribunal’s decision in 63% of those cases. In only 8% of cases was new evidence not at least a factor in the allowed appeal. If people have new evidence, they can make a fresh application. It will be heard and considered, and a decision will be given to them in far less time than it takes to go to appeal. A system of appeal is about appealing against the original decision, not appealing against the original decision plus bringing forward extra evidence.
I really think I have answered questions about this issue, which I am sure will continue to be a matter for debate during the Bill’s progress.
Just as we are bringing the law enforcement response into the 21st century, so this Bill will ensure that our courts and our laws can meet the challenges of today’s society. Part 2 will enable the courts to deal robustly with wrongdoing and will ensure confidence in the system of non-custodial sentencing. For serious offenders —particularly those who use violence—a prison sentence will usually be the appropriate punishment, but where a custodial sentence might not be appropriate, the public must have confidence in the alternatives. A community order that is not perceived as a credible sanction or a fine that is not paid simply brings the criminal justice system into disrepute.
The provisions in part 2 will change that. For the first time, the courts will be required to include a punitive element in every community order. They will also be able to impose a new electronic monitoring requirement, which makes use of global positioning system technology to monitor an offender’s whereabouts. This will protect the public by deterring crime and assisting with detection. Alongside that, the Bill provides for courts to defer sentencing after conviction to allow time for restorative justice. We know that around 85% of victims who participate in restorative justice conferences are satisfied.
I warmly welcome the provisions relating to restorative justice. Will my right hon. Friend remind the House that restorative justice will work properly only if the victim is involved and consents to it? In many serious cases, restorative justice will not be the right option.
My hon. Friend makes an important point. It is essential that the victims are comfortable with going through the restorative justice process. The figures show that around 85% of victims who participate are satisfied with the response, but it is important that no victim should feel that restorative justice is being in any sense imposed on them. It must be something that they are willing to go through—he is indeed right about that. Restorative justice can also support rehabilitation by helping offenders to realise the consequences of their wrongdoing. This provision will help to put victims at the heart of justice.
At the same time, we are strengthening the ability of the Courts Service to exchange information with Her Majesty’s Revenue and Customs and the Department for Work and Pensions, so that the courts have the income and benefits data they need to set fines at a level that properly reflects the means of the offender and supports the enforcement of those fines. We are also making it clear that the courts can take account of an offender’s assets when determining the level of a fine, which will ensure that criminals who seek to disguise their wealth are made to pay their dues.
Finally, the provisions in part 2 will bring the judiciary into this century by ensuring that it reflects the communities it serves. Progress has been made in recent years, but it has been slow. Just over one in five judges in our courts are female, and the proportion of black and ethnic minority judges hovers at around just 5%. We need to do better, particularly at the upper echelons of the judiciary. The Bill therefore includes a number of provisions to encourage progress in this area, including provision for part-time and flexible working in the Supreme Court and Court of Appeal. At the same time, we are providing that where there are two candidates of equal merit, preference may be given to a candidate from an under-represented group.
I am most grateful to the Home Secretary for giving way to me a second time. I warmly support what she is proposing. Some of us have been campaigning on the issue for a number of years. I think this will have an effect and will change the nature of the judiciary in this country. I hope, however, that one other issue will also be followed up. I see the Lord Chancellor sitting next to the Home Secretary, and I want to raise the issue of feedback. When in the past ethnic minority and women candidates have applied and been turned down, they have not received effective feedback on how to develop their career in the judiciary. It is not just about changing the law; it is about changing the practices of the Judicial Appointments Commission and the Ministry of Justice to make sure that people have this information.
The right hon. Gentleman raises what I think is an important point, and I can assure him that the Lord Chancellor has heard what he said, and will reflect on those comments and look into that particular issue.
As we bring our courts into the 21st century, our laws must follow suit. Part 3 provides—
Before my right hon. Friend moves on from part 2, may I ask her for a quick bit of advice? Does she agree that the single family court idea is a very good one? Does she agree that one crucial part of family law is the need for more mediation? Can she assure us that mediation will be built into the system in as many places as possible?
I thank my hon. Friend for those remarks. The introduction of the single family court is an important measure. I believe that it will get over previous problems with variations in approach and application, which is significant. It has long been my view that, as far as possible, we should encourage mediation—I know it is being looked at by the Ministry of Justice—and it could be a way of reducing the antagonism and bitterness that, sadly, happen all too often when matters get into the courts rather than being dealt with beforehand through mediation.
Before my right hon. Friend moves on from part 2, does she agree that it is bizarre that in 2013 we have this Victorian situation whereby each county court represents its own individual personality? I welcome the changes in the Bill, but will she lean over and ask her right hon. Friend the Justice Secretary whether we will move quickly on this issue to improve justice in the county courts and to cut costs?
Yes, we will do everything we can to improve efficiency in the system and we will look at the whole issue of individual county courts versus a national county court system, as it were. This is part of the Bill. My hon. Friend makes a valuable point about the personalities of county courts.
Part 3 provides for a new drug-driving offence. Over the past 40 years, the drink-driving laws have played an important role in making our roads safer. There is already an offence of driving while impaired through drugs, but it is difficult to secure a conviction, given the need to prove impairment. Drugs were a contributory factor in about 3% of fatal road incidents in Great Britain in 2011, resulting in 54 deaths. This compares to 9% or 166 deaths from drink-driving. We need to adopt the same robust approach to drug-driving as we do to drink-driving.
In that case, I should have waited before intervening. I first raised the issue of drug-driving at Prime Minister’s Questions on behalf of my constituent Lillian Groves, who was killed outside her home property by a driver under the influence of drugs. The Prime Minister met Lillian’s family, and on their behalf, I would like to thank him, as well as Home Office, Justice and Transport Ministers, for the speed with which they have enacted the change in law that the family was looking for.
I thank my hon. Friend for his comments, and I commend him for the campaign he has led on this issue, following the death of his constituent Lillian Groves. He has been resolute on this issue, and I am pleased that we have been able to find a vehicle through which to bring forward this new offence so quickly. The Bill introduces an offence of driving with a concentration of a specified controlled drug in the body in excess of the specified limit for that drug.
I thank the Home Secretary for giving way to me a second time. Much depends on what the aim is and how the specified limit should be set. Will she confirm that the aim is to set a level for drugs that is equivalent to the current legal alcohol limit in the blood of 0.08%, and to measure the drug concentration that would indicate the same level of impairment? Is my understanding correct?
My right hon. Friend the Transport Secretary and I are currently considering the controlled drugs to be covered by the offence and the limits that should be set for such drugs for driving purposes. As a Government, we have taken a robust, zero-tolerance approach on illicit drugs through the drugs strategy. As we consider the detail of this policy, we will want to send an equally strong message that people simply cannot take illegal drugs and drive.
I particularly commend the provisions on drug-driving. Given the problems I have seen as a practitioner, I am aware of the difficulty of proving the offence. Has consideration been given to further extending provisions beyond controlled drugs to include the impact of psychoactive substances, not least legal highs? We know of the impact they can have in terms of impaired driving, so has consideration been given to broadening the nature of the offence in this provision?
As I said in response to my hon. Friend the Member for Cambridge (Dr Huppert), the Secretary of State for Transport and I are looking at what should be covered by this offence, taking into account the drugs that can be identified and the levels that should be set for them. The Department for Transport is taking expert advice on what it is possible to identify within the bloodstream and within people’s bodies at the time that tests are taken.
I know that legitimate concerns have been expressed about the impact of this offence on those who take controlled drugs on prescription—for long-term pain relief, for example—but we have no intention of preventing people from driving where they are taking medication in accordance with medical advice, so the Bill includes provision for a medical defence. We will also want to take into account views expressed in response to the required consultation on the draft regulations, but I believe we must take a strong stand against those who would put other lives at risk by driving under the influence of drugs.
The Bill also delivers on our coalition commitment to ensure that the law is on the side of people who defend themselves when confronted by an intruder in their home. Few situations can be more frightening than when someone’s own home is violated. Faced with that scenario, a person will do what it takes to protect themselves and their loved ones. They cannot be expected dispassionately to weigh up the niceties of whether the level of force they are using is proportionate in the circumstances. If the intruder is injured, perhaps seriously, in such an encounter, the householder should not automatically be treated as the perpetrator where, with hindsight, the force used is considered to have been disproportionate. Clause 30 will ensure that, in such a context, the use of disproportionate force can be regarded as reasonable, while continuing to rule out the use of grossly disproportionate force.
I know this change in the law will be particularly welcomed by my hon. Friends the Members for Newark (Patrick Mercer), for Thirsk and Malton (Miss McIntosh) and for North West Cambridgeshire (Mr Vara), who have campaigned on this issue for a number of years. I congratulate them on having successfully brought this issue to the attention of Parliament and the public.
Let me now deal with clause 38, which would remove the word “insulting” from the offence of using threatening, abusive or insulting words or behaviour in section 5 of the Public Order Act 1986. This was added to the Bill in the other place. I respect the view taken by their lordships, who had concerns that I know are shared by some in this House about section 5 encroaching upon freedom of expression. On the other hand, the view expressed by many in the police is that section 5, including the word “insulting”, is a valuable tool in helping them to keep the peace and maintain public order.
There is always a careful balance to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offence with their actions. The Government support the retention of section 5 as it currently stands, because we believe that the police should be able to take action when they are sworn at, when protesters burn poppies on Armistice day and in similar scenarios. We have always recognised that there are strong views in both Houses. Looking at past cases, the Director of Public Prosecutions could not identify any where the behaviour leading to a conviction could not be described as “abusive” as well as “insulting”. He has stated that
“the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions.”
On that basis, the Government are not minded to challenge the amendment made in the other place. We will issue guidance to the police on the range of powers that remain available to them to deploy in the kind of situation I described, but the word “insulting” should be removed from section 5.
I thank my hon. Friend.
Finally, let me give the House notice of another set of amendments that we will table in Committee. Members will recall that on 16 October, when I made a statement on our extradition arrangements, I indicated that I would present legislation as soon as parliamentary time allowed to make two key changes to the Extradition Act 2003. The first would introduce a new forum bar to extradition, and the second would transfer to the High Court the Home Secretary’s responsibilities for considering representations on human rights grounds. I have decided that we should seize the opportunity provided by the Bill so that we can give effect to the changes as soon as possible.
I am grateful to the House for allowing me to explain those key provisions. The Bill will build on our reforms of the policing landscape by delivering an effective national response to serious and organised crime and securing our borders, while also strengthening public confidence in the justice system. Its provisions are timely and important, and I commend it to the House.
Order. A time limit will be announced after the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) has finished her speech. Members who are preparing the length of their speeches in their heads should think in terms of not much more than 10 minutes.
The Home Secretary has made some big promises about the Bill today. She has said that it will transform the fight against organised crime—indeed, to hear her speak one would think that there was no fight against organised crime before the Bill was drawn up—and that it would solve the problem of economic crime, transform punishment and rehabilitation, stop illegal immigration, and save money, all at the same time. One might think that this Bill alone would persuade all dangerous criminals to stop in their tracks and embark on a life of charity work.
You will forgive Labour Members, Mr Deputy Speaker, if we express a bit of scepticism about the claims that the Home Secretary has made—although we support many of the measures in the Bill—because we have heard such promises about her legislation from her before. When she stood before us to present one Home Office measure, she told us:
“With a strong democratic mandate from the ballot box, police and crime commissioners will hold their chief constable to account for cutting crime.”—[Official Report, 13 December 2010; Vol. 520, c. 708.]
That “strong democratic mandate” turned out to be 15% of the public voting and 3.6% voting Conservative. Introducing the terrorism prevention and investigation measures, she promised that
“public safety is enhanced, not diminished, by appropriate and proportionate powers.”—[Official Report, 7 June 2011; Vol. 529, c. 69.]
As a result of those measures, terror suspect Ibrahim Magag is now on the run, and unless the Home Secretary has any more information with which to update the House, we must assume that she, and we, still have no idea where he is. He was last seen getting into a black cab.
The Home Secretary told us:
“it’s clear… that we can improve the visibility and availability of the police to the public.”
She also said that
“lower budgets do not automatically have to mean lower police numbers”.
The result has been 15,000 fewer police officers, and Her Majesty’s inspectorate of constabulary has concluded that the police are less visible and less available too. So we start with a certain caution about the promises that the Home Secretary has made. The Bill does not live up to the billing that she has given it. Even when the intentions are good, there are areas in which the detail does not stack up, and Labour Members believe that she is still missing an opportunity to change course on some of the wider policies that are making it harder for the police to keep the public safe.
Parts of the Bill are very valuable. We believe that more can and should be done to strengthen the fight against serious and organised crime, and that more can and should be done to introduce greater diversity into the judiciary. I welcome the points that the Home Secretary has made about that. We also support stronger action against drug-driving. People who drive dangerously, and even kill and maim, on our roads because they have taken illegal drugs and cannot control their cars should be caught and prosecuted. We also think it right for gang injunctions to be imposed by the youth courts; and it is certainly about time we did away with the offence of scandalising the judiciary. My hon. Friend the Member for Darlington (Jenny Chapman) will comment on many of those justice issues when she responds to the debate.
Let me say a little more about the central reforms in the Bill. The central measure is intended to strengthen the Serious Organised Crime Agency and to rename it. In fact, the vast majority of the National Crime Agency’s work will be what SOCA does now. We agree that SOCA should be strengthened: it has done very important work, but given the changing patterns of national and international crime, it should have more powers and scope. The valuable work that it has done so far, which the Home Affairs Committee has looked at, includes achieving a conviction rate of more than 90%, and bringing to justice people involved in the organising of illegal immigration, drug trafficking, slavery and cybercrime. However, the police need to do more in certain key areas in which action by individual forces alone is not sufficient, including serious organised crime—which can cost up to £40 billion a year—and people trafficking. The number of international and cross-border crimes has been growing. Economic crimes cost an estimated £38 billion a year, and new offences such as cybercrime are becoming increasingly complex to handle.
Does my right hon. Friend agree that one of the worrying things about SOCA, despite its success in many respects, was that it seized less than it cost overall? It is important not just to create organisations such as the National Crime Agency, but to benchmark them to ensure that they meet the expectations of the public and Parliament.
I agree with my right hon. Friend. Evidence given to his Home Affairs Committee by the new head of the National Crime Agency suggested that it did not necessarily expect to increase the amount that it seized, so we shall want to monitor its work closely. As my right hon. Friend says, it is likely that more action will be expected. We think that more can be done overall by all police forces, particularly in regard to matters such as the proceeds of crime and child exploitation. The recent Savile case shows quite how much needs to done throughout society to increase protection and prevention.
We agree that more action is needed in each of those areas, and the Bill provides an opportunity to ensure that more action is taken, but if we look at each area in turn it is not clear to us that the Home Secretary’s proposed measures will be sufficient. She has said, for example, that the National Crime Agency will be able to do more to deal with international crime, but in fact its hands will be tied. She wants to pull out of European co-operation on justice and home affairs. She is keen to opt out of the European arrest warrant, and wants to ditch the sharing of data with other European police officers on sex offenders who travel across borders. The arrest warrant has been used to bring back 39 people suspected of serious child sex offences, 65 people suspected of drug trafficking and money laundering, and 10 people suspected of human trafficking. Those are the very criminals whom the National Crime Agency is supposed to pursue.
It would be helpful if the Home Secretary, or the Minister who responds to the debate, told us how many of the police officers and crime experts who are currently working on international and cross-border crime support the plans to opt out of European co-operation, and how many of them think that the work of the National Crime Agency will be easier or harder if the Government opt out.
On the basis of the right hon. Lady’s rationale, I assume that she will be very pleased by the introduction of the single family court. There will be a single point of entry between the courts, and judges will work together in those courts so that the child cases to which she has referred can be dealt with better and faster.
I think that the reforms of family courts will have a great many benefits. They are the result of independent reviews, and a considerable amount of work over some time, to establish how those courts can be improved, particularly from the point of view of the children involved. We certainly support measures in the family courts that can improve support for children, including child protection.
There are clearly problems on the international front in regard to the work that the NCA will do. Let me now deal with some of the issues on the domestic front. The Home Secretary has said that she wants to strengthen national action against serious crimes, but, as was pointed out by the Chair of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz), the new National Crime Agency faces increased responsibilities with a budget 20% lower than that of the Serious Organised Crime Agency. It will supposedly do everything that SOCA did while picking up new responsibilities from the National Policing Improvement Agency, doing extra work at Britain’s borders, and expanding work on tackling cybercrime and on tackling economic and financial crime. It is going to do this with, by my assessment, a cut in the budget of at least £80 million—as the Home Affairs Committee Chair has suggested, the budget cut could be considerably more.
The detail of how the NCA will work remains confused. We still do not know how it will relate to the new police and crime commissioners, who will not be consulted on the NCA’s strategic priorities but whose forces will have to respond and do what the NCA says. Legally, the Bill provides for the NCA to direct chief constables over resources and priorities in their areas, but can a police and crime commissioner who disagrees sack the chief constable? How will this be resolved? What will the relationship be between the NCA, the UK Border Force and the UK Border Agency? Will the NCA be able to task border officials in the way that it will be able to task chief constables, or is the border command to be simply a co-ordinating committee? Questions are also unanswered in relation to the economic command. What will the relationship be with the Serious Fraud Office and with the City of London police on economic crime? Will the NCA be able to set tasks for the SFO, or is the economic command just another co-ordinating committee?
None of those things is clear. The Home Office has promised that many of the questions would be answered by the framework document, yet it still has not been published. Under pressure from their lordships, the Home Secretary has finally published an outline framework document, but it is hardly illuminating; all it gives is a list of bullet points. For example, it contains the heading:
“Accountability to the Home Secretary”.
Under that heading the bullet point simply reads:
“How that accountability relationship will be supported by Home Office officials”.
That is all it says, so this is not a framework document; it is simply a Home Secretary to-do list.
Again, we are being given a lack of detail, even though we know that detail matters. The Home Office’s failure to provide the detail in debates in this House on previous legislation has caused considerable problems; one such example was the failure on detail that meant that £350,000 had to be spent reprinting the ballots for the Welsh police and crime commissioner elections.
Big policy areas are also not being addressed here. The Child Exploitation and Online Protection Centre is being absorbed into the NCA, despite the reservations of many experts. More importantly, the Home Secretary is missing the opportunity to strengthen the work on child protection and tackling sexual exploitation at a vital time, and to set up an overarching review, led by child protection experts, into how Jimmy Savile was able to get away with terrible abuse of children over many years.
The Home Secretary also referred to the counter-terror measures raised in the House of Lords, where her proposal to transfer counter-terror from the Met to the NCA has raised considerable alarm. I welcome her saying that she will consider the points raised on whether that should be done in primary legislation rather than in secondary legislation. The former Met commissioner Lord Blair said:
“in my lifetime no change more significant than this in the policing arrangements to protect our nation has ever been contemplated…Such a decision deserves primary legislation”.—[Official Report, House of Lords, 27 November 2012; Vol. 741, c. 115.]
Former Met commissioner Lord Condon has said:
“This is a hugely important matter that deserves primary legislation rather than an affirmative order…History tells us that more than 80% of terrorist incidents in this country happen in London.”—[Official Report, House of Lords, 27 November 2012; Vol. 741, c. 116.]
Of course, even more of the counter-terror problems will lie with the Met now that the Home Secretary has removed relocation from control orders.
May I just correct the right hon. Lady on one point she made? She said that this Bill dealt with my “proposal” to move national responsibility for counter-terrorism policing from the Met to the NCA. I made it clear in my speech that I have no preconceived idea on this matter, but as we set up a national crime agency to deal with serious, organised and complex crime it is right that the question be asked, when that agency is up and running, about where it is appropriate for counter-terrorism policing to lie. That will take place after a proper review. As I say, I have no preconceived idea about this, so it is not the case that this Bill deals with a specific proposal.
I must then say to the Home Secretary that she does not need to legislate for it now. If she has genuinely not made a decision, why take pre-emptive legislative powers for a decision she has not yet taken and a review she has not yet done? She will know that the nature of the Home Office means that Home Office legislation is always being introduced, and there will be plenty of opportunity for primary legislation and a proper debate in this House and in the other place. How are Members of this House and Members of the House of Lords, where, as she knows, there is considerable expertise on counter-terror and on policing, supposed to debate a hypothetical proposition—she now says she has not yet made it—and a decision she has not yet reached? It would be far better to respect the expertise in the other place and the views of this House by not legislating now on this matter, by holding a proper review, and by having that genuine debate on it and then coming back to the House with proper proposals in primary legislation, if she so concludes that it is the right thing to do.
We will also wish to discuss other areas of the Bill in Committee. I hope that the Home Secretary will also now accept the Lords amendments on the regulation of bailiffs, adding safeguards to prevent abuse. We also hope that she will support our proposals to go even further with stronger powers for immigration officers to tackle illegal immigration. She has raised the issue of the forum bar, on which she wishes to introduce amendments, and we hope that extensive discussion can take place on that. We have discussed it briefly when she has made statements to the House before and we are keen to work with her on how to make that bar effective. As she knows, some legislation is already on the statute book on this issue, but all sides have found it difficult to work out how to make the detail work. We therefore look forward to those discussions.
We also wish to discuss stronger checks and balances for the NCA through the Independent Police Complaints Commission. The safeguards in respect of the IPCC looking at the NCA are astonishingly weak in the Bill, and we hope the Home Secretary will strengthen them. She will also know from the points that hon. Members have made that there is concern about visa appeals. The point she needs to consider is that in a third of cases looked at by the inspector the entry clearance officer had not considered the evidence properly. That was not about new evidence; the entry clearance officer had not considered the existing evidence properly. So there is a serious concern about the quality of the initial decision making.
We also want to deal with the issue of section 5 of the Public Order Act 1986. I hope that before that comes up in Committee the Home Secretary and her Ministers will be able to provide the House with an assessment of the impact of section 5 on different groups, particularly vulnerable and minority ones. Many people have said that the existing section 5 has formed some kind of protection for them, so it would be helpful to know that before we reach that point in Committee.
Like the Home Secretary, I have always questioned whether there was a case for removing this measure in the first place. If she has carried out further analysis and believes it can be removed while maintaining protection for groups that might be discriminated against or where the police need to have the flexibility to respond effectively, we would be keen to see that evidence before we get to Committee. It is important to ensure that we protect freedom of speech, but it is also important to ensure that we can protect vulnerable groups from unfair discrimination.
Has the right hon. Lady seen the letter from the Director of Public Prosecutions highlighting the fact that there has been no prosecution using this provision that could not have been achieved in other areas? There is a big difference between insulting and abusive action, and if there is no risk to prosecutions free speech can be safely defended in this case.
I am aware of the points the DPP has made, but I simply ask, because this is important, that the Government undertake an equality impact assessment on the impact on different groups, in order to be sure that they are doing the right thing before this matter reaches Committee.
It is not clear what the Labour party’s official position is. This consultation has gone on for more than a year, and everybody knows the arguments one way and the other. The Labour party opposed clause 38 in the other place, so what is it going to do in Committee?
As did the Government in the other place, and we look forward to their evidence on this measure’s impact on different minority groups.
The problem with the Bill is that it will not deal with the wider difficulties facing policing and the perfect storm of the Home Secretary’s making that we now face. At a national level, she has abolished the NPIA without any clue about what to do with its functions. We now have the National Crime Agency, the College of Policing, NewCo—the new IT company—police and crime commissioners and police and crime panels, but we have no clear view of how any of them will work together. The Bill does not set out how that clarity should be provided.
At the same time, the Home Secretary is cutting 15,000 police officers—the very people who need to do the job of fighting serious and organised crime in every community. The number of young police officers as new entrants has dropped by 50%, yet the most experienced officers are going too. Half of all police forces do not have a permanent chief constable and the officers left in the middle are facing a crisis of morale, with 95% saying that they believe that the Government and this Home Secretary do not support them.
Fewer criminals are being arrested and fewer are being prosecuted, international co-operation is being undermined and counter-terror powers are being weakened; now there is confusion over these reforms. I hope that the Home Secretary will make further improvements to the Bill, but, more importantly, I hope that she will rethink her wider policy on policing and crime before it is too late.
I want to support some of the many excellent provisions in the Bill, and in particular the inclusion of drug-driving as an offence on which the police can act at the roadside in a proportionate and simple manner. There have been many such cases of which I have been made aware and I congratulate my hon. Friend the Member for Croydon Central (Gavin Barwell) on having campaigned on the issue with great success.
I am disappointed that the Government have not taken the opportunity to go slightly further and consider road traffic offences more generally, including the laws on those who drive while medically unfit. Of course, the problems caused by drug-drivers and those who drive while medically unfit are incredibly similar from a public safety point of view. In both cases it is an offence to drive, but the law is not effective in preventing the problem.
Arguing for the drug-driving offence in another place, Lord Henley recognised that although being unfit through drugs is an offence, it is not prosecuted often enough because of the difficulty the police have in trying to prove that the driver is sufficiently impaired. That has hampered the police in taking drug-impaired drivers off our roads and the new provision will give the police a proportionate power to do so and punish them appropriately for endangering the public.
I do not consider those who drive while unfit for medical reasons in the same category as drug-abusing drivers; nor do I believe that they should necessarily be punished as severely as they might be under the Bill. Drugged and drunk drivers have made a decision to incapacitate themselves, whereas those driving while unfit for medical reasons might not have done. The effect on our roads is the same, however, as that driver is incapacitated while driving a vehicle that can kill.
The police should have the power to take a licence away or prevent someone they believe to be unfit to drive from doing so until it can be established otherwise. We know that 1,100 casualties and 50 deaths are caused every year by drug-driving, but I cannot quote the number of casualties on our roads caused by people driving while they are medically unfit—for example, because their eyesight is impaired—because we do not record the figures. In my short time as a Member of this House, however, several tragic cases have been brought to my attention.
One such case was brought to me by one of my constituents, whose niece, Natalie Wade, died on the way to buy her wedding dress, mown down by a driver who categorically knew he was unable to see appropriately to drive but continued to do so. He refused to recognise his obligation to report that to the Driver and Vehicle Licensing Agency, which is what we require medically unfit drivers to do. Hon. Members might also be aware of the case of a lady called Cassie McCord, who was killed by a driver with impaired eyesight who had been stopped three days earlier by the police. The police were unable to prevent him from driving, he continued to do so and she died when he ran her over only three days later.
We do not stop such people driving but we need to avoid these preventable deaths. The very least we could do is allow the police to do their job, and when they recognise that individuals are clearly unfit to drive for whatever reason—drug-driving or medical impairment—we should allow them to act.
The hon. Lady is making an extremely good point and she is absolutely right to say that we must focus on the level of impairment, not the cause. If it is a question of road safety, we must focus on a solution whereby people who are unfit to drive for medical reasons or because of drugs or alcohol that they have recently consumed should be unfit because they have reached a threshold of impairment, not because of the cause of that impairment.
Someone who is apprehended by the police because their driving is impaired by alcohol can have their vehicle taken from them at the roadside, and the new provisions will go a long way towards ensuring that that happens more often with drug-driving and that we can prosecute drug-drivers more readily and more easily. If a person fails a roadside sight test, however, such as that which one needs for a driving licence, it is impossible for the police to take their keys and require them to have an eye test. Perhaps we could extend the scope of the Bill—I hope in Committee that we can take the provision one step further and consider those who are medically unfit to drive, for whatever reason.
My earlier ministerial responsibility in the Home Office tempts me to say a great deal about the Bill, which I recognise as a classic Home Office Christmas tree Bill. If time allowed, I would want to say more about why I believe clause 30 to be completely unnecessary, given the repeated assurances of the police and Crown Prosecution Service that if householders act instinctively and honestly in defending themselves they will always find the law on their side. I would also want to say a little more about my views on clause 38, although the Home Secretary has confirmed the Government’s position on that. I welcome that decision—[Interruption.] I gather that my welcome is welcomed, but I doubt that the sky will fall in as a result of the Government’s decision. We shall see.
In the time available, I want to focus on two particular areas. The first concerns clause 31 and schedule 15, which deal with non-custodial sentencing. I support part 4 of schedule 15, which deals with electronic monitoring. Tagging continues to play an important part in the criminal justice system, but there is a case for extending electronic monitoring beyond that and including location monitoring. In certain cases, the technology is available, at a cost that is coming down all the time, to allow individuals who pose a threat to others or the wider community to be monitored. I hope that the Home Secretary and other Ministers will take the new power when it is enacted and use it imaginatively to enhance public protection.
I have less problem than some of my good friends in the House of Lords with making it mandatory for community sentencing to have a punitive element. The Home Secretary is right. If victims and the public at large are to be expected to have confidence in community sentencing and if we are to ensure that prison is reserved for the serious and dangerous offenders, the public will expect a punitive element to that sentencing. Great care should be exercised, however, and it is important that the Minister should offer assurances tonight and in Committee about the care that is being taken to ensure that the punitive element is purposeful and offers protection for vulnerable offenders, particularly those who suffer from mental health problems. It is entirely possible for a punitive element to be rehabilitative at the same time. When we make such provisions, we need to trust the sentencers to ensure that they get the balance right between all the different principles of sentencing in each individual case.
I welcome part 7 of schedule 15, which could be renamed the Corston clause. It requires that special provision should be made for female offenders. We have talked about that for a long time and Baroness Corston did some amazing work in her report. She, like many others, continues to advocate that provision and part 7 gives legislative enforcement to her recommendations.
I am strongly in favour of part 2 of schedule 15, which covers the deferral of sentence to allow for restorative justice. We are all increasingly agreed that if an apology, explanation or some form of reparation can be offered to a victim of a crime that helps them to rebuild their lives following the trauma that they have had to face, we should all support that. That is at the heart of what restorative justice is all about. More detail is needed, and I hope that in Committee Members will have the opportunity to explore in more detail what might be required to use the provisions in the Bill as a launch pad for further development.
The Bill sets a time limit of up to six months for the deferral. That is too vague. I draw the Home Secretary’s attention to the Northern Ireland Youth Conference Service, which requires a deferral of four weeks only. Within that four-week period, a restorative justice conference must take place and a plan must be drawn up and brought back to the court. I can tell the Home Secretary that in 97% of cases, that task is performed and completed within the four-week period. There is a 70% victim participation rate and a 90% victim satisfaction rate. I commend that to the Home Secretary and I hope that in Committee the time scale issue can be given closer attention. It should be made clear in the Bill that victims have a right to attend a restorative justice conference. It should not be left to local discretion or priority; it should be clear in the legislation.
The Minister for Policing and Criminal Justice will need to say more about how he intends to make sure that consent is obtained, particularly if deferral is being considered at the end of a trial which has been difficult, when emotions are raw and an understanding of restorative justice may not be at the forefront of people’s mind, especially if someone has been the victim of a crime. We need a better understanding of how consent is to be obtained, because the consent of the victim is crucial to the process.
The Minister also needs to make it clear, perhaps in the Bill as well, that restorative justice is not just for minor offences or for cases on the cusp of custody. Restorative justice offers extensive capability and opportunity, right across. I confess that I was sceptical about whether restorative justice could be used in, for example, serious sexual offences, but having met and heard a victim of rape speak about her restorative justice process and how it had helped her to rebuild her life, I think we should set no limits on the use of restorative justice if the victim of the crime feels that it can be helpful to them in rebuilding their life.
We need to understand how the deferral process interacts with other objectives which the court might have—for example, setting time limits on delay. We could not have a court that was making good use of restorative justice being penalised because that was leading to delay in the outcome of the court process. We await further detail from the Minister about how that will happen.
My final point in relation to schedule 15 and the restorative justice element, about which I hope we will see more detail as the Bill is considered by a Committee, is that all this must be underpinned by appropriate training and quality standards for restorative justice right across the country. The Restorative Justice Council, to which I pay tribute for the tremendous work that it has done over a number a years, is leading this work, and I know that Ministers respect and appreciate the work that it is doing. I look forward to hearing assurances from the Minister that the Restorative Justice Council will have the resources, status and support necessary to make sure that at long last restorative justice can be brought from the margins of our criminal justice system firmly into the mainstream.
The other issue that I wanted to touch on in my brief remarks relates to part 1, the creation of the National Crime Agency. I am not against the creation of the National Crime Agency. I want to see a powerful agency co-ordinating and leading the fight against organised crime, but having read the Bill, I do not see the great advantage—the great move on—that the legislation is going to bring about, over and above what we have already. Of course we want an agency that can defeat organised criminal gangs and take their criminally gained assets away from them, but we already have that with the Serious Organised Crime Agency. The Home Secretary was completely wrong to dismiss the efforts of previous Governments, as if they had never made any attempt to counter organised crime. That is nonsense, and if the right hon. Lady is honest with herself, she knows that.
When the Serious Organised Crime Agency was launched in 2006, it had two key issues to address in respect of its organisation. One was to bring the staff together from four different organisations and later from the Assets Recovery Agency. The second was to build operational relationships with the police. Anybody who has followed this over the years knows that it has not been plain sailing all the way, but a huge amount of progress has been made. There should be much greater ministerial acknowledgement of that and the good work that the Serious Organised Crime Agency has done—a base from which the National Crime Agency can begin to build in the future.
There are three specific issues that I want to touch on. The first is about the so-called super-affirmative order. I firmly support its removal from the Bill, which happened in the other place. There is a judgment and a decision to be made about who should be in the lead on counter-terrorism. It rests with the Metropolitan police, and if there is to be a change, the Home Secretary should come to the House and argue for and justify that change. I find it ironic and incomprehensible that the Home Secretary, who thinks that enhanced terrorism prevention and investigation measures and any decision about extending beyond 14 days the period of pre-charge detention should be allowed only through primary legislation, was proposing to give herself through secondary legislation such a key strategic decision. I encourage her to leave the Bill as it is and not to be tempted to seek secondary authorisation through the Bill.
Clause 4 sets out the operational relationships between the National Crime Agency and other organisations. This should be extended to key strategic relationships, not least with police and crime commissioners now that they are established in England and Wales.
My final point is about the Child Exploitation and Online Protection Centre, which I was proud to launch in 2006—a unique partnership between children’s organisations, law enforcement and those who operate in the internet industry. When the consultation began, which the Home Secretary started, many feared that the National Crime Agency would mean a downgrading of the Child Exploitation and Online Protection Centre. We have had firm assurances and the explanatory note, and the Home Secretary herself has spoken about the four commands, one of which is the child exploitation and online protection command. I have yet to be convinced of why that requirement should not be in the Bill. If there is to be a change, it should not be left to a Minister or to the director general of the National Crime Agency. If there is to be any change to CEOP, it is this House that should have the final word.
It is always a pleasure to follow the right hon. Member for Wythenshawe and Sale East (Paul Goggins). He made a characteristically thoughtful speech and we have much to learn from it. I agree with a great deal of what he said, particularly in relation to restorative justice. Like him, I have been to a great many prisons in England and Wales. I have been to about 65 of the 142 that we have in this country and in Wales. Where there was restorative justice, there was a great deal of satisfaction for the victims of those crimes, as well as better behaviour from the criminals. It is important that we get the right people involved in restorative justice, but I commend it as a principle.
The right hon. Gentleman mentioned the Home Office’s proclivity for producing Christmas tree Bills. I would rather flippantly say that the Home Office has produced more Christmas trees than Norway over the past 30 years or so, and the Bill is another fine example. I do not want to denigrate this particular Christmas tree, even though we are well beyond 6 January, because one aspect of it is particularly to be commended. That is the bit that I invented. I refer to clause 32. It is the shortest clause in the Bill and it reads:
“Schedule 16 makes provision about deferred prosecution agreements.”
The right hon. Gentleman, when dealing with restorative justice, referred obliquely to the second shortest clause in the Bill, clause 31, but that is 300% longer than the clause that I am talking about.
Neither the Home Secretary nor the shadow Home Secretary thought it appropriate to talk about deferred prosecution agreements, and why should they? They have plenty of other things to talk about in detail—[Interruption.] I am sure the Home Secretary would like me to correct what I said. Yes, she did mention the subject in passing. I shall mention it in the few minutes left to me, but in rather more detail than she had time to do. Before doing so, I declare my interest as a practising member of the Bar.
Corporate economic crime damages the British economy in monetary and reputational terms, and we are not dealing with it effectively. That is not to say that everything in the past has been hopeless or a waste of resources, but it is time for us to do things better.
Since our Government came into office in May 2010, we have made structural changes to improve our strategic capability. We have a new director of the Serious Fraud Office in David Green, a relatively new chief constable of the City of London police, Adrian Leppard, and there is a new focus on economic crime in the Crown Prosecution Service and the Financial Services Authority, which is soon to change its name. During my two or so years in government, it seemed to me that we needed to do something more and that we should think seriously about introducing deferred prosecution agreements, which are an American procedure.
DPAs will be not a substitute for either investigations or prosecutions of companies, but an additional and much-needed weapon in the prosecution’s armoury that provides the flexibility to secure appropriate penalties and better outcomes for victims. They are modelled on a long-established system in the United States, but they will be adapted to suit our criminal justice system with far more judicial oversight. In the United States federal courts, DPAs are concluded and promulgated with little, if any, judicial oversight, but when I spoke to judges in America last spring, it seemed to me that those judges were beginning to chafe at the inadequate role that they play in this aspect of the American criminal justice system. The first thing that I learned when I was in America was that we need to engage our judges in this new means of dealing with economic crime.
We are not talking about non-prosecution agreements or other forms of non-criminal—and therefore civil—action to deal with economic crime; we are simply talking about deferment. The right hon. Member for Wythenshawe and Sale East talked about the deferment of penalties; this is about the deferment of prosecutions of corporate entities, companies, partnerships and unincorporated associations.
Law enforcement agencies say that they do not have the tools that they need to tackle increasingly complex economic crimes. Serious Fraud Office investigations can last up to three and half years, with a cost to the agency of approaching £1.5 million, but they do not guarantee success and they leave victims waiting far too long for reparation. A suspect company is disadvantaged by a lengthy and expensive investigation that takes the focus of its management, which is often new, away from the company’s core functions and frequently leads nowhere, save to collateral damage to innocent third parties. On this point, I often cite the example of Arthur Andersen, which became involved in the Enron scandal in the early part of this century. The company collapsed as a consequence of its prosecution by the United States Department of Justice. Some 100,000 people lost their jobs, and pensioners and suppliers to the business were affected. It did not really help that the Supreme Court quashed the convictions some time later because the company had gone and irreparable collateral damage had already been caused to innocent people.
DPAs will allow prosecutors to tackle economic crime—the crimes that will be susceptible to DPAs are set out in paragraphs 15 to 27 of schedule 16, but essentially they are fraud, bribery, money laundering, market fixing and so forth—more effectively and efficiently, but without losing sight of the aims and needs of justice. In appropriate cases, companies will be prosecuted regardless of whether the facts come to light following a police investigation, through self-reporting or via a whistleblower.
A prosecution against a company will be initiated, but continued to trial only if tough requirements, such as the payment of financial penalties and compensation for victims, the recovery of ill-gotten gains and compliance with measures to prevent future offending, policed by independent monitors, are not adhered to within a given period of deferral or suspension. The agreement, and then its precise terms, will have to be formally approved by a senior judge before being announced in open court, which is different from what happens in the United States. The process in this country will very much form part of the criminal justice system and will not permit private deals made behind closed doors.
Prosecutors will come to know of a company’s conduct through investigation by the authorities, via a whistleblower from within the company, or following self-reporting by the company’s board. Discussions will then follow between the prosecutors and the lawyers for the company. Those will initially be confidential. They might take days or even weeks, but they will continue until the picture is clear. The prosecutors will then consider the facts. On the basis of the information in front of them, they will decide to do nothing; to hand the case over to a foreign jurisdiction, if appropriate; to prosecute, if that is in the interests of justice; or to enter into a deferred prosecution agreement.
Unlike the position in the United States, it will not be open to the prosecution and the company simply to agree between themselves the penalty, the compensation, the monitoring regime and the length of the deferment. The draft agreement must be put to a senior judge in chambers at a private hearing to which the press and the public are not admitted. The judge will need to be persuaded that it is in the interests of justice for there to be a DPA, and that its terms are fair, reasonable and proportionate.
Although the judge will not be able to order the prosecution to prosecute to trial, he can, in an appropriate case, refuse to sanction a DPA or its terms. The parties would then need to renegotiate the terms in the light of the judge’s criticism, or the prosecution must consider whether it ought to prosecute in the normal way. In reality, it is unlikely that the parties will go before a judge in a case when only a full prosecution is merited, or with terms that suggest either oppressive or feeble conduct by the prosecution, but the judge must approve the DPA before the case goes any further. If the agreement is approved, the judge moves into open court, the company is publicly identified and the terms of the DPA are promulgated to the world at large. Those terms will be reportable by the press. They will appear on the SFO or CPS websites, and they will be known to the world’s stock exchanges.
If a company fails to comply with a DPA after it has been announced, depending on the nature of the breach, the prosecution may either take the matter back to court, and apply to terminate the agreement and bring a prosecution, or it may apply to vary the terms, such as by increasing the extent of monitoring or the length of the deferment period. If the company complies and shows that it can be trusted to conduct its affairs within the law before the end of the deferment period, the parties may apply to vary the terms, such as by bringing the DPA to an early conclusion or removing the monitor.
DPAs will achieve justice through appropriate penalties and the recovery of the proceeds of crime. When sanctioned by a judge, they will provide benefits for victims without the unpredictability, expense, complexity or time associated with a lengthy criminal court process and trial. A DPA will bring certainty and a speedy resolution. It will enable a company, especially if it is being run by a new board, to clear the decks and make a clean start. DPAs will enable commercial organisations to be held to account, but without the collateral damage that I identified earlier.
Most importantly, given that DPAs will be concluded in open court, the public will know about the wrongdoing admitted by the commercial organisation and its consequences. There will be no question of companies burying their wrongdoing in their annual accounts. Experience from the United States shows that even well-known British companies enter into DPAs with a realisation that they are different from plea bargains or civil recovery orders.
The Director of Public Prosecutions and the director of the Serious Fraud Office will issue a code of practice for prosecutors, which will be publicly available, to guide the decision-making process behind DPAs It is also proposed that the Sentencing Council, the statutory body made up of judges, practitioners and academics that publishes sentencing guidelines, will produce guidelines for economic crimes in the near future so that prosecutors, judges and lawyers acting for errant companies will be able to enter into and conclude DPAs with clarity and certainty about the relevant penalties.
DPAs will not be a “get out of jail free” card. The courts cannot send a company to prison but, under a DPA, it would have to admit its wrongdoing and agree to stringent and wide-ranging terms that are tailored to the facts of the case. The agreements are a means of bringing errant companies publicly to justice swiftly, effectively and economically, and it is time that we brought them into our criminal justice system.
In conclusion, I thank all those in the Attorney-General’s Office who worked with me on this proposal, especially my former private secretary, John Peck, as well as all those in the Ministry of Justice who helped me to bring it forward. I also thank the Home Secretary and the Justice Secretary for getting the provisions into the Bill.
It is a pleasure to follow the hon. and learned Member for Harborough (Sir Edward Garnier) and to commend the measure that now appears in the Bill.
Ever since the principles of British policing began to be established two centuries ago, there has been a natural and inherent tension between the demand of the British public that policing should be local and the reality that many of the threats that individuals face arise nationally and internationally. The history of British policing in part reflects an effort to try to square the circle of the demand for local control and the reality of national and international threats. When there were 125 police forces in England and Wales alone, the circle was squared by the Metropolitan police having a dual function not only as the force for Greater London, extending far beyond Greater London’s boundaries, taking in a third of Surrey, big chunks of Essex and Hertfordshire, but as a national force as well. For the 30 years following the seminal Police Act 1964, there was a further squaring of the circle by successive Governments, effectively detaching the police from local influence by ensuring that police authorities had very little in the way of democratic representation and the Home Office reigned supreme.
Over the past 20 years that has changed. A succession of measures, in which I was involved partly, has led to increasing local involvement in policing—first when I started the abolition of the role of the Home Secretary as the police authority for London; then with the gradual strengthening of the powers of the Mayor for London as the police authority; and much more recently with the establishment of police and crime commissioners. Taken together, those things mean that the accountability of those for our territorial police forces will increasingly be based on local considerations. That being so, there is a greater danger than ever before that national and international concerns could be marginalised. It is for that reason that I welcome the establishment of the National Crime Agency—the result of gradual development that began in 1992 and of many changes under Labour’s Administration. For those who have a weak stomach, as it were, I should say that it is inevitable that the Bill should give powers of tasking to the new director general of the National Crime Agency by which he or she can issue orders, effectively, to local police forces. Without that ultimate power, there will be an imbalance in the priorities that territorial forces can set.
I also happen to believe that there is a very strong case indeed for handing over counter-terrorist policing to the National Crime Agency, as the London police focus becomes more and more local. If that is to happen, however, it is essential that it is by way of primary legislation, not by way of super-affirmative orders. I care about the Minister’s reputation, so I tell him to stay away from super-affirmative orders. They can lead only to a vale of tears. Some Labour Members have gone down that vale and have been only too delighted to have been hooked out and extracted by right hon. and hon. Friends.
My point is this: the establishment of the police and crime commissioners is a matter of party controversy, and we will see whether they are embedded or whether there is some change. In any event there has been an increasing focus on giving local people greater say over local policing, and I strongly support that, but it means that national and international priorities—the threats that lead to quite a lot of local crime—could be marginalised. That is why there is a powerful case for a National Crime Agency and the kind of powers of direction that are inherent there. As I say, we have to go a stage further and accept that there will be two levels of policing—a national police service and the local police services—and ultimately the national police service, the National Crime Agency, will have the power to direct the local police services to ensure that national priorities are met.
On the reform of the courts, I welcome the unification of the county courts, which makes complete sense. I particularly warmly welcome the establishment of a single family court. That arises from the review of family justice under David Norgrove, which I established with support from the then Opposition. I am really pleased that, thanks not least to Mr Norgrove’s great acuity and sensitivity about the way in which the system needs to reformed and further changed, it looks as though the review will have important and beneficial consequences.
I changed the law on self-defence back in 2008. I understand why the Justice Secretary was faced with a blank in his proposed speech to party conference and thought he needed to say something on this issue. I doubt very much whether it will make any difference at all, because the practice and the law have already changed satisfactorily, but I certainly will not oppose the measure and I do not think my right hon. Friends will either.
The next issue is the right of appeal on applications for visitor visas. I ask the Minister and his colleagues to look again at the arguments that have been advanced to them by Home Office officials. No one—I say this without any levity at all—has greater affection for Home Office officials than do I. I went to great lengths in my memoirs—available in all good bookshops—to defend and to celebrate officialdom, not least in the Home Office. I never sought to blame officials when it is Ministers who set policy and implement it. However, the truth is—I may give away a secret, but too bad—that it is inconvenient for there to be a right of appeal in visitor cases. There was a lot of resistance to it when I introduced the right of appeal in 1998, and I can disclose that throughout the rest of my ministerial career, about once every two years there was a proposal from other Ministers, once I had left the Home Office, to abolish the right of visitor appeal. I blocked it, whatever position I was in. That is why it survived.
Another secret missing from my right hon. Friend’s memoirs is the fact that when I was entry clearance Minister he was one of my biggest customers. The important point about that is that the element of discretion—the need to look again at the decision—is absolutely vital, whether it is a Minister saying that they will overturn the decision or whether it goes to appeal. With the reluctance of immigration Ministers to exercise discretion, it is vital that people get the chance to look again.
The truth is that my right hon. Friend had to make those ministerial decisions because visitor appeals had not been introduced at that stage. Ministers will end up with a lot more demands on their plate, among other things, if they take the route of abolishing visitor appeals.
Does my right hon. Friend agree that this provision is more important than it was when he introduced it, because a number of our constituents will not be able to satisfy the current price of bringing a husband, for example, into the country, and it is therefore likely that there will be many fathers who can never even see their children in this country?
I entirely accept what my hon. Friend says.
Like the Joint Committee on Human Rights, I have looked at the analysis put forward by the Home Office, and I am afraid that I am sceptical about the evidence, which collides with my experience and, I believe, that of my right hon. and hon. Friends and Government Members who have large immigration case loads. It is rare, in my experience, for constituents and their relatives abroad not to have produced the evidence first time round. Much more frequently, they produce the evidence and it is then overlooked. Time and again, my office and I face the situation where the evidence has been submitted and it has been overlooked by the entry clearance officer or has got lost. It may appear to the tribunal to be new evidence, because for sure it is new evidence to the entry clearance officer, but it is not correct to draw the conclusion that that evidence has never gone before immigration officers. Even if that is the case, the fact that a third of appeals are upheld shows that there is important merit in having such a right of appeal. To argue—I hope that the Minister does not do this—that it would be just as satisfactory to re-submit an application is, frankly, disingenuous in the extreme. I have seen constituents re-submit applications in respect of non-family cases, where there is no right of appeal, and all that happens is that the application is turned down again and they have wasted their money.
My final point relates to judicial appointments. I strongly support the proposed changes in respect of diversity. The apparently prosaic change to allow for the number of judges to be counted by full-time equivalents and not by full-time numbers will make a very important contribution to the employment of the part-time judges, typically female, at every level. Also very important are the tipping-point provisions to allow for the Judicial Appointments Commission to take into account somebody’s gender or colour if two candidates are of equal merit.
I am afraid that I am running out of time.
I depart from the Government on their proposals for very senior appointments—to the Supreme Court, for the Lord Chief Justice and for the heads of division. Initially the Bill included a proposal by the former Lord Chancellor by which the Lord Chancellor would sit on the appointments panel for those very senior appointments. That has been withdrawn from the Bill in place of consultation. The current arrangements, which include consultation, do not work. It is entirely legitimate for the Lord Chancellor to have a role—not the decisive role, but a role—in these very senior appointments, because what the Supreme Court is doing has very clear political consequences and what the Lord Chief Justice and heads of division are doing has very clear Executive and administrative consequences. The current Lord Chancellor may not wish to sit on the appointments panel—that is his choice—but it is important for the benefit of future holders of that office that the power should be available, and I ask the Minister to look at that again.
It is a pleasure to follow the right hon. Member for Blackburn (Mr Straw), a former Home Secretary who always brings a refreshing frankness to the proceedings. I do not agree with him on his last point. I think that the Government were right to move away from the idea of the Lord Chancellor sitting on the panel that makes the crucial appointments to the top of the judiciary. I do not think we would ever have been able to persuade anybody that that did not represent an excessive direct involvement of a politician in the process of choosing judges, notwithstanding the fact that the Lord Chancellor is involved at the end of the process.
The right hon. Member for Wythenshawe and Sale East (Paul Goggins) described the Bill as a typical Home Office—or, in this case, Home Office and Ministry of Justice—Christmas tree, but it does not contain quite as many unwanted gifts as previous such Christmas trees. Indeed, it contains many welcome things, and I want to concentrate on those that relate to the work of the Justice Committee.
I should say in passing that I very much welcome the Government’s acceptance of clause 38, which relates to the Public Order Act 1986. I noted Labour Front Benchers’ dithering on this matter, if it is indeed dithering; perhaps they will retain their past position of wanting to keep the law as it is—I do not know. From a free speech and civil liberties point of view, bearing in mind the clear statement by the Director of Public Prosecutions about what can be done without having the word “insulting” in the law, the Government have sensibly accepted an overwhelming decision in the other place.
It is what coalition is about.
I welcome the drug-driving provisions, which I am very glad to see in the Bill, but I will turn first to family justice issues and the single family court, which I strongly welcome. There is still a problem about openness in the family courts, and the lack of it helps to feed very strong views among fathers about how private law cases are decided and among families about how public law cases are decided. That creates, or strengthens, a sense that wrongful decisions may be taken, and people do not understand the reasons for decisions. We have had some advances through anonymised judgments being brought forward, but it remains a problem.
In 2005 and 2006, my predecessor Committee argued for openness provisions of the kind that were eventually legislated for, but when they were on the statute book and we took further evidence for our 2011 report, we did not find a single witness who was happy with them. In the face of that, we were right to say that the Government cannot proceed on this basis, and they are right not to do so. However, we cannot simply abandon the issue. We have to look at more ways of spreading understanding and recognition of what goes on in the family courts and having them exposed to the pressure that public justice—open justice—applies everywhere else. There are compelling reasons why that cannot be done in the same way in the family courts, but we have to take account of the fact that the absence of transparency presents a problem.
On the delegation of functions to legal advisers, the Committee felt strongly that there must be clear supervision by a district judge of any judicial function that is being carried out by a legal adviser.
Fine collection is one area where the Committee said that improvement was still needed. We recognise that some improvement has taken place, but there certainly needs to be more. We welcome the chasing of old debts and recognise that there is potential benefit from the private sector being drawn into this activity. However, there is not merely a loss of public revenue when fine collection is not achieved; there is a serious undermining of the justice system when people see that fines have not been paid and that those involved have got away with it.
The self-defence provisions are probably not legally necessary, but they may have some beneficial impact as regards how the police view cases of this kind. Someone who has been attacked in a terrifying way—whose house has been frighteningly invaded—deserves to be treated as a victim of a crime and have the respect accorded to such a victim even while there is some consideration as to whether there was any grossly disproportionate response on their part. The underlying purpose of the change in the law must be to get that recognition. I do not think that it will actually change the way in which any cases are decided; if I thought that it would, I would worry that it had gone too far.
My hon. and learned Friend the Member for Harborough (Sir Edward Garnier) referred to deferred prosecution agreements, on which he has done a great deal of work. My Committee took evidence from the Director of Public Prosecutions on such agreements. He saw them as an additional tool for prosecutors, but not in any way a replacement for bringing cases to court in many circumstances. However, there are clearly cases in which it would be to everyone’s benefit to take action that did not involve a long drawn-out court case, but that none the less provided restitution for the victims of fraud and perhaps enabled the continuance of a business under new management. The alternative, as my right hon. and learned Friend vividly described in referring to the Arthur Andersen case, can involve a massive loss of jobs and many other adverse consequences that are in no one’s interest.
I want to talk about the provision for non-custodial sentences, and the requirement for a clear element of punishment in such sentences. I do not disagree with that principle, but we should remember that many offenders regard community sentences as more arduous than prison sentences. On more than one occasion, ex-offenders appearing before the Justice Committee have told us that they have committed further offences because they were sick of the requirements of their community sentence and thought that a short spell in prison would be much easier. That might seem counter-intuitive—it might not be what most of us would imagine—but for plenty of criminals, a long and arduous community sentence that places requirements on them, whether it appears punitive or not, is more exacting. They would rather be sitting in prison getting three meals a day and not having a great deal to do.
This provision must not result in our administering a measure that is not the most effective way of changing someone’s life and preventing them from reoffending. We are trying to ensure that there are no more victims of a particular person’s crimes, and to turn around the way in which they behave. We should measure what we are doing in accordance with that aim. More often than not, the challenging requirements that the provision will place on the person to face up to the consequences of what they have done—through restorative justice, for example—to face up to a victim when that is possible, and to make effective reparation to society will be more punitive in practice than a prison sentence. We need to have an understanding of that process.
That leads me to the subject of restorative justice, which has great potential; I am glad that there is provision for it in the Bill. We all recognise that it cannot be forced upon victims, but the level of satisfaction among victims that we have seen in evidence to the Committee has been very encouraging indeed. There is also a growing public view that it makes sense for criminals to be faced with the consequences of their crimes and with the harm that they have done to others, and required to change their lives as a result.
The right hon. Member for Wythenshawe and Sale East referred to a provision that was added to the Bill in the Lords, relating to non-custodial sentences for female offenders. The Justice Committee is embarking on an inquiry into women offenders, and we have already expressed the view on more than one occasion that more needs to be done to ensure that courts have at their disposal appropriate and effective means of dealing with women offenders. Indeed, our report on the probation service, which we produced in July 2011, stated:
“The probation service’s approach—where resources tend to be directed towards dealing with offenders who present the highest degree of risk—can fail adequately to support women offenders. The approach recommended by Baroness Corston for the provision of holistic services that address all women’s needs is still a long way from being realised.”
The Government now need to include in the Bill a reminder that more needs to be done in that respect.
This Home Office and Justice Bill provides an us with an opportunity to welcome an unusually large number of provisions. There are others that will be pored over in detail in Committee. The effective implementation of the provisions on fines and on non-custodial facilities for women offenders, for example, will add to our ability to do what we are supposed to be doing, which is using the criminal justice system to stop people becoming the victims of crime in the first place.
As with most Bills, there are aspects of this one that are to be commended, and others that we can argue about. The Bill contains several measures for which the justification is utterly unclear. In introducing the changes to community orders and to the law of self-defence, the Government seem to be ignoring the importance of judicial discretion, and the changes to immigration law seem very harsh. In my contribution today, I will set out the reasons for my opposition to some provisions in the Bill. I would also like to say, however, that the proposals on single family courts, on drug-driving and on judicial appointments are all excellent. The devil will be in the detail, of course, but so far so good in those areas.
Clause 28 provides for the relaxation of the ban on televising court proceedings by granting the Secretary of State the power to revoke the current rules by order, with the agreement of the Lord Chief Justice. Under the current law, section 41 of the Criminal Justice Act 1925 bans the taking of photographs, portraits and recordings of judges, jurors and witnesses in all civil and criminal proceedings. By removing that ban, I hope that clause 28 will broaden public engagement with the administration of justice, as well as increasing understanding of the judicial process.
Caution must be exercised, however, to ensure that proper parliamentary scrutiny is given to the detail of these plans. It is unclear to me why clause 39 should provide for any secondary legislation setting out the specific circumstances in which the Government intended to allow filming to be subject to the negative resolution procedure, hence greatly limiting the scope for debate on the topic in this place. Many groups, including Liberty, have expressed concern about the possible repercussions that could emanate from allowing for the filming of civil and criminal proceedings in their entirety. That could well lead to additional anxiety for witnesses—and in certain circumstances to some witnesses being less inclined to appear in court—as well as to the alteration of testimony.
The impetus behind the provision is, of course, welcome, but for the reasons that I have set out, the details of the Government’s plans in this area should be set out in primary legislation. If, however, the televising were limited to the judgment, as is the case in Scottish courts, that would add useful transparency and provide assistance to law commentators, to students and to practitioners.
By contrast, the proposed changes to the law on self-defence in clause 30 seem to have no justification. I do not like falling out with the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith)—the esteemed Chair of the Justice Committee, of which I am a member—but I take a different view from him on this. He will know that, under the common law, defendants are able to use reasonable force against an intruder. That defence was put on to the statute book by section 76 of the Criminal Justice and Immigration Act 2008.
The law states that a defendant may use against an intruder an amount of force that he or she believes to be reasonable and proportionate at the time, even if a court subsequently considers that that belief was misplaced. The law as it stands evidently provides sufficient defence for homeowners. Indeed, data from the Crown Prosecution Service show that, between 1990 and 2005, the service prosecuted only 11 cases in which a defendant had been charged under the current law. However, if clause 30 is allowed to go through unamended, it will allow for a defendant to use an amount of force that he or she acknowledges to be disproportionate at the time, provided that the force used is not “grossly disproportionate”.
I have prosecuted and defended many cases involving self-defence, as have other Members, and the existing law has been regarded as perfectly adequate hitherto. If ever I saw a change to the law that would open the door to vigilantism, this is it. In my surgery on Friday last, a farmer came to see me. He was a responsible, middle-aged man, and he told me that three individuals had tried to break into one of his barns to steal a quad bike. There is too much of that kind of thing going on in rural Wales at the moment—but I digress.
The farmer said, “I have a shotgun. What would have happened if I’d aimed and shot above their heads?” I had to put him right on that and he said, “But isn’t there a change in the law?” That is where we are: people think that we are upping the ante. If the purport of the clause is to raise the bar for the police and the CPS in the first place—Justice Ministers have told me that that is the case—I suppose that there is some logic to it, but it could well be dangerous, as my example shows. Ministers do not think that it will change anything in the court and hope that it will lead to the bar being raised in the first place, but as I have said, there is a grave danger that people will take the law into their own hands and believe that it is open season on individuals who roam on their property. The Law Society says that it will end up with greater litigation and that the present law is workable and acceptable.
Clause 31 would put into effect the provisions of schedule 15, which provide for a number of changes to courts’ means of dealing non-custodially with offenders. Part 2 of the schedule would allow courts to defer sentencing so that the offender and victim can partake in restorative justice. This is most welcome. All we need to do, as the right hon. Member for Wythenshawe and Sale East (Paul Goggins) has said, is look at the Northern Ireland model and make sure that the resources are there. It is an excellent step forward and I am pleased with it.
Recent polling conducted by Make Justice Work suggests that 70% of victims believe that they should have the opportunity to communicate with the offender so as to show them the impact of their actions. I think that that is probably right. However, the findings of a poll conducted by the British Crime Survey showed that 69% of victims who were offered a meeting with their perpetrator said no to the opportunity. The onus is now on us as individual politicians and the Ministry of Justice to increase public confidence in any proposed scheme.
The changes introduced in part 7 of schedule 15 are likewise welcomed. If passed, part 7 would ensure that all contracts made between the Secretary of State and probation trusts would require the trusts to make specific provision for female offenders, thus taking into account the particular needs of this demographic group. I pay due regard and tribute to Baroness Corston for the work she has done. The provisions in part 7 were included as a result of a successful non-Government amendment on Third Reading in the other place. I hope that the Government will accept these vital measures in this place.
Other changes proposed by schedule 15 are less welcome. Part 1 would amend section 177 of the Criminal Justice Act 2003 to guarantee that courts imposing community orders must include a mandatory punitive element. This could mean electronic tagging, exclusion orders and so on. I am at a loss to see why the Government are going further down the road of electronic tagging. Actually, I find it baffling, because the Government’s own impact assessment, published in March 2012, acknowledged that the measures could lead to an increase in reoffending as a result of rehabilitative requirements being sacrificed to make way for punitive requirements.
Part 4 of schedule 15 relates to electronic monitoring, on which the Government’s own impact assessment, dated 4 January 2012, suggests that
“the UK evidence points towards a more neutral impact on re-offending”.
It does not work. The current spending on electronic monitoring is £120 million and, as a result of this Bill, it will rise to £360 million for something that does not work—and this from a Government who seek “more for less”. Conversely, the impact assessment observes:
“Research on supervision suggests that the supervisory relationship between the offender and the case manager plays an important role in securing compliance and promoting desistance.”
Why, therefore, are the Government now seeking to privatise that so that trained professionals will not deal face to face with offenders, which is the proper way of doing it? The Government have also proposed major changes to the probation service and I am concerned about the effects they will have.
Clause 20 would revoke a restriction listed in the Senior Courts Act 1981, thus providing for the transfer of immigration judicial review applications from the High Court to the upper tribunal.
The right hon. Gentleman will know that the Scottish Parliament passed a legislative consent motion allowing this House to legislate on its behalf, but clauses 20 and 21 were introduced at a later stage without any consultation with Scottish Ministers. This has caused great upset in the legal fraternity in Scotland, particularly those who are acting and operating in our judicial system and with particular regard to referrals to the Court of Session. Does he agree that the Government should have consulted Scottish Ministers before including clauses 20 and 21 in the Bill?
Absolutely. We always thought that the devolved Administrations were part of the respect agenda and that the Government would consult them. I find it astonishing that that has not happened with regard to such an important matter.
On clause 20, the Immigration Law Practitioners’ Association and Liberty argue that no case has been made for the change, which will impact on almost all immigration and asylum applications. Crucially, the upper tribunal stands charged with not having demonstrated its ability to deal with the UK Border Agency’s conduct in the same way as the High Court has done. ILPA cites examples of UKBA failing to respond quickly to the upper tribunal’s orders and its failure to adequately plead its case as problems that plague many cases.
As a result, the Joint Committee on Human Rights has recommended that the Government insert further provisions into the Bill to make sure that immigration and nationality cases in which human rights such as life, liberty and freedom from torture are at stake continue to be decided by the High Court. I hope that the Government will reconsider that point.
Clause 34 would remove the right of appeal against the refusal of a visa to visit a family member, except on grounds of human rights or race discrimination. I will not retread the ground very well and adequately covered by the right hon. Member for Blackburn (Mr Straw) and others. I fully agree with them and hope that the Government will reconsider the provision, because it could be harsh in the extreme. I also agree with the Law Society and the JCHR, which argue that the measure cannot be passed in the light of the poor quality of so many decisions made by UKBA, as evidenced by the high number of successful appeals against refusals.
There it is—as always, there are some very good things, but there are some pretty poor things as well, and one hopes that many of them will be improved and some deleted in Committee.
It is a pleasure, as always, to follow the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), although, as will become apparent, I disagree with some of the points he raised. I also declare an interest as a non-practising solicitor.
I wish to direct most of my comments to clause 30, which deals with self-defence by householders in their own homes and by business people whose businesses are part of the accommodation in which they also live—principally, shopkeepers.
As far as I am concerned, this is unfinished business. As the Home Secretary said in her speech, I and a couple of other Government colleagues have in the past tried to change the law to make sure that what is proposed by clause 30 is enacted. I promoted a private Member’s Bill in December 2006, as others had done before me. It had cross-party support, including from the present Attorney-General and my hon. and learned Friend the Member for Harborough (Sir Edward Garnier), the former Solicitor-General, as well as from distinguished Members on the Labour Benches, particularly the right hon. Member for Birkenhead (Mr Field) and—dare I say it?—a very distinguished person in yourself, Mr Deputy Speaker. I therefore congratulate the Home Secretary on introducing this measure.
At present, the test for a householder is to use reasonable force in self-defence, which, I contend, is difficult to define and not easy to enforce. A higher test is required that allows the use of force as long as it is not grossly disproportionate. That will benefit not only the general public but the police and the Crown Prosecution Service, because it will provide them with much clearer guidelines within which to operate.
The example given by the right hon. Member for Dwyfor Meirionnydd would not exempt a person from being prosecuted. We are talking about individuals acting in the heat of the moment. The test is reasonableness—not with the benefit of hindsight, but as it appears at the time.
To lie in wait with a shotgun is not to act in the heat of the moment; it is premeditated. That is not what clause 30 allows.
The only people whom clause 30 will not benefit are the criminals who break the law in the first place.
In considering the clause, it is important to reflect on some statistics. The crime survey for England and Wales for 2010-11 estimates that there were 745,000 burglaries during that period. In approximately 205,000 of those instances, the victims were at home, were aware that the offence was being committed and saw the offender. In approximately 75,000 cases, force or violence was used against the victim.
Those who support the present test often say that it is for a court—a judge and jury—to decide on the facts. However, it can take up to a year, or possibly longer, for a case to reach the courts. During that time, the individual has to put up with the stress and anxiety, especially those who are subsequently found innocent. It cannot be right that people who are going to be found innocent, along with their families, have to endure that anguish. It is therefore important that the law is clarified for people who act honestly and instinctively in self-defence.
The public should know that the law is on their side. Sometimes, it is right and proper that we speak up for the victims of crime and the general public who are on the receiving end of the violence, the figures for which I have just given. Let there be no doubt that we are talking about victims of crime—law-abiding householders, shopkeepers and military personnel living in barracks, because the clause covers the military as well.
It is not surprising that leading and prominent members of the police force support raising the test. The former Metropolitan Police Commissioner, Lord Blair, said on his first day in office, when asked about this issue:
“I thought reasonableness was quite a difficult concept at 4 o’clock in the morning in your kitchen, whereas something as stark as gross disproportionality did seem to me to be clearer.”
He was right. At 4 o’clock in the morning, a householder who is confronted by an intruder is frightened—indeed, he is likely to be petrified. His response will be instant and he will have no regard to reasonableness or otherwise.
Lord Blair’s predecessor, Lord Stevens of Kirkwhelpington, did not mince his words either, saying that
“householders should be presumed to have acted legally, even if a burglar dies, unless there is contrary evidence”.
The present commissioner, Sir Bernard Hogan-Howe, told the BBC that he agreed that homeowners need better protection than is available at present:
“I think, probably, there’s an argument at the moment for making sure that that bar gets higher, and that the homeowner has better protection, and the burglar is put more on notice that they’re at risk if they choose to burgle someone’s home while they’re in it”.
It is important to note that the higher bar is reflected in the guidance for police when arresting people. The test for individuals who claim to have been acting in self-defence was updated only two months ago:
“The changes are driven by the coalition commitment to protect householders and others from unnecessary arrest when they use force in the belief that they are acting in self-defence. The amended Code…sets out that, in order to establish grounds to suspect a person of committing an offence, officers should consider facts and information which tend to indicate the person’s innocence as well as their guilt.”
The Crown Prosecution Service guidance also uses a higher level:
“You are not expected to make fine judgements over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self defence.”
It goes on to say:
“If you have acted in reasonable self-defence, as described above, and the intruder dies you will still have acted lawfully.”
Given that the guidance for the people who implement the law—the police and the Crown Prosecution Service—refers to a higher test than that laid down in the present law, it makes sense for us to clarify the law and make it easier to implement, rather than for the implementers to rely on guidance.
There is considerable public demand for this measure. When I introduced my private Member’s Bill in 2006, one of my local newspapers, the Cambridge Evening News, conducted a survey that found that more than 90% of the people who responded were in favour of raising the bar of the test. An ICM poll conducted by The Sunday Telegraph in December 2009 found that 79% of those who took part favoured changing the test from reasonable force to grossly disproportionate force.
A change in the law is not only necessary; it will send out a powerful message. It will tell law-abiding citizens that the law is on their side and not on the side of criminals. It will also show that an Englishman’s home is still his castle.
It is a pleasure to follow the hon. Member for North West Cambridgeshire (Mr Vara). He has obviously campaigned hard on that issue and I commend him for his efforts. I am glad that the measure will be contained in this legislation.
Earlier today, the Home Affairs Committee held a conference to launch our new inquiry into leadership and standards in the police. I am pleased to see three members of the Committee here this evening: my hon. Friend the Member for Kingston upon Hull East (Karl Turner) and the hon. Members for Cambridge (Dr Huppert) and for Rochester and Strood (Mark Reckless). We listened carefully to some of the leaders of our police service, including Hugh Orde, Bernard Hogan-Howe and the new chief executive of the college of policing, as well as leaders from abroad, such as the commissioner who heads the Royal Canadian mounted police and the former president of Interpol. It is clear that in order to get effective leadership, there must be effective structures. I am therefore glad that, with the creation of the National Crime Agency, we at last have a body for the head of the NCA, who was appointed 15 months ago.
At that conference, it was interesting to hear the acceptance from all sides of the police service of the need for the Government, the Opposition and those in the police service to sit together and talk about the future of policing. With the Bill, we have an opportunity to streamline a number of the structures that have operated in policing for a number of years. The Labour Government can be praised for the resources that they gave the police, but we would be the first to admit that we did not really spend the necessary time examining the structures and ensuring they were fit for purpose.
What the Government have proposed is a revolution in policing—the abolition of SOCA and the National Policing Improvement Agency, the creation of the College of Policing and police and crime commissioners, and the abolition of police authorities. When on taking office the Home Secretary announced the changes, she talked about uncluttering the landscape. We will probably have more organisations rather than fewer at the end of the process, but I would be the first to accept them if they were fit for purpose, acted upon Parliament wanted and did the job effectively.
My first concern about the new landscape is that it is not complete. We thought that by now we would have a Constable—perhaps “Dedham Vale”—but instead we have the tail-end of a “Guernica”. The good intentions are there, but it is not complete. I thought that after two years, we would have the end of the landscape and the jigsaw would have been completed, but it has not. I urge Ministers to come rapidly to a conclusion about how the landscape will look in the end. The Home Affairs Committee, including its members who are in their places, has scrutinised and monitored what the Government have been doing, but we cannot decide on the structures. That has to be up to the Government. All that the House and the Committee can do is scrutinise and monitor what the Government are doing and give our recommendations on whether the system will work.
We need a conclusion on whether responsibility for counter-terrorism will remain with the Met or form part of the National Crime Agency. Why? Because we were promised a review of that at the end of the Olympics. The Home Secretary specifically said that she would not make a decision until the Olympics were over. I urge the Government to make progress, because it is not in the Met’s interests, and certainly not in the interests of Keith Bristow and his new colleagues at the NCA, that they should delay.
Like the former Home Secretary, my right hon. Friend the Member for Blackburn (Mr Straw), I would probably be minded to move responsibility for counter-terrorism into the NCA. It would fit well there, as the NCA will be a national organisation dealing with national and international issues. However, I know that there is resistance to that from the Met. I have discussed it with a number of officers, who feel strongly that responsibility should stay with the Met, because it has within it the expertise needed to deal with the matter.
It is also important that we know the name of the new chair of the College of Policing. Perhaps the Minister for Policing and Criminal Justice will tell us that. It has a chief executive, and we heard from him today. He has ambitious plans for what he hopes will eventually be a royal college of policing. Professionalism is vital to the future of our police service, but it is also important that the Government get on and appoint the chair. I know that someone was recently nominated, but that person has not been appointed, for a variety of reasons. If there is a shortlist of additional candidates, I urge the Minister to interview them, as I think he will be doing this week, and then let the Home Affairs Committee have the name of whoever is going to be in charge of the organisation, which is vital for the future of this country’s police service.
It is also important that we deal with the issue of appeals. I do not know whether the Minister will remember this, but when he was Minister for Immigration, he promised in a debate in the House a meeting with myself and colleagues who had an interest in immigration. Actually, I think I put it to the Home Secretary that she should meet us, but she passed it on to him. He, of course, has now left the post, and I hope he will pass the message on to the current Minister for Immigration.
Those of us who deal with a lot of immigration cases want the issue of appeals dealt with. That is not just Opposition Members—I see the hon. Member for Croydon Central (Gavin Barwell) in his place, and I reckon that he has many immigration cases at his surgery on a Friday evening. The last thing he wants is for us to be in limbo, having to ask people to apply again because there is no right of appeal for family visitors.
I put to Ministers a simple solution. I know that things have to change. I do not accept that there is abuse in the system, but it is a lengthy system and I know that they want to save money. I and others have suggested in the past that we have an administrative review of the decisions made by entry clearance officers. New evidence necessary to ensure that a case can be dealt with satisfactorily could go to somebody in a hub in London—it is quite possible for cases to be reviewed in London. I say to Ministers that the change will affect the settled British community, the diasporas that the Prime Minister and other Ministers feel strongly about bringing on-side. Unless we do something about the problem, British citizens trying to get relatives over for weddings and other family events will suffer.
It is always a pleasure to speak to the right hon. Gentleman about these issues. There is a problem when more information is required in a case, and I understand the Government’s advice that people should reapply. Would not an alternative approach be for entry clearance officers to be able to specify what extra information they would like and make a decision once they have received it? I have seen a number of cases in which they asked to see specific documents part-way through the process.
I agree, and my biggest regret from when I was the Minister responsible for entry clearance 10 years ago is that I did not introduce that approach. I left it to the system, and I was wrong to do so. If we had a system that allowed new information to be accepted, we would be able to save the taxpayer a huge amount of money and save those who are seeking to bring people into this country a lot of anguish.
Does the right hon. Gentleman agree that if the motivation for the change is financial, another option may be to increase the fee payable for appeals? I understand that would put some people off and might significantly reduce the number of appeals, but the possibility of entry clearance officers’ decisions being reviewed by a judge might help to ensure that decisions are made better than if the right of appeal is removed.
That is an option. I would not be enthusiastic about putting up fees, but people do not mind paying fees if they get results and cases are dealt with quickly. If that can be guaranteed, it is certainly an option. The hon. Gentleman’s intervention and that of the hon. Member for Cambridge (Dr Huppert) have shown us that it is quite possible to put forward alternative measures to abolishing the right of appeal. I hope that the Government will consider them.
I wish to say a couple of things about the parts of the Bill that I welcome. One is the establishment of the forum bar, which the Home Affairs Committee recommended when we examined extradition. Following the whole Gary McKinnon saga and the marvellous work of the hon. Member for Enfield, Southgate (Mr Burrowes), who campaigned so passionately for his constituent, we put forward the idea of the forum bar, and now it will legislated for. We are delighted about that.
I am less delighted by the Home Secretary’s wish to give all the rest of her extradition powers to High Court judges. If we have Ministers, we should allow them to make decisions. I am not sure why people wait so long for ministerial office, then get there and want to hand all their powers over to judges. I actually think it is a good idea that Members of Parliament and others should be able to make representations to Ministers if there are exceptional cases. That will not be the norm—Gary McKinnon and Richard O’Dwyer’s cases were not the norm. They were exceptional cases that got to the Home Secretary’s attention only because of the work of people such as Janis Sharp, Gary McKinnon’s mother; the hon. Member for Enfield, Southgate; and Richard O’Dwyer and his mother Julia. They were able to bring those cases to Parliament’s attention, and we should ensure that Ministers keep those powers rather than give them away.
I have been watching how the hon. Member for Croydon Central has pursued the campaign concerning drug offences when people are driving. Given the circumstances of his constituent, it must be a great relief to him and his faith in parliamentary democracy that a case he has raised so frequently in meetings with Ministers over the past year or so has ended in the fruition of a clause in a Bill that will change the law. What satisfaction it must give him as a constituency MP to know that he, along with other Members, has been a part of changing the law. I welcome what the Government are doing, and they are quite right to ensure that that change takes place.
I was never a great fan of the Judicial Appointments Commission introduced by the previous Government. Perhaps because both Lord Chancellors under whom I served—the noble Lord Irvine and the noble Lord Falconer—were, in my view, exceptional people, I thought that they could make better decisions about the diversity of the judiciary than a quango. I was right: they would have made better decisions and the judiciary would today have been quite different. I welcome what the Government are doing; it is a message to those who make such decisions that the judiciary needs to look not as Parliament did when I was first elected but as how it is today—Parliament looks like the country and so must the judiciary. Obviously, people must pass the merit test. Nobody wants jobs given away because someone happens to like the person sitting in front of them, or because they are a particular gender or race. Jobs are given to people who are qualified and able to do them effectively.
I will end with a comment made earlier today by Lord Wasserman, the Government adviser on some of the policing reforms. As the House knows, the Home Affairs Committee has been trying to get Lord Wasserman to appear before it, and he came before the Committee today as part of our international conference. He spoke most eloquently and I was quite taken by his comments. He suggested that the Government look at how police and crime commissioners have operated, and that the Committee hold an inquiry into that at the end of the year—obviously, the Committee will decide whether it wants to do that. The Minister has escaped; he has got political asylum from immigration and gone to policing. He survived the little problem of a few years ago, when I understand from The Sunday Times he ended up in the Cherwell. I did not see the Attorney-General in the Chamber making up with him; he was here earlier, but he is not present at the moment.
The Minister has one of the most exciting jobs in government: the chance to finish off the new landscape of policing. I know my right hon. Friend the Member for Delyn (Mr Hanson) enjoyed being policing Minister, but the way to really enjoy the job is to ensure the jigsaw is completed and that we get a police service that fits the structure. We have the best police service in the world. Let us ensure that the organisations that are there to serve it really work.
It is always a pleasure to follow the Chair of the Home Affairs Committee, and doubly so since he was so kind about me in his speech. He speaks with great authority on all these issues, and although he tempts me towards the issue of appeals in relation to family immigration, I hope he will understand if on this occasion I rise to speak specifically to clause 37, which deals with drug-driving.
On 26 June 2010 my constituent, Lillian Groves, was killed outside her house. She was just 14 years old. The driver of the vehicle that knocked her down was driving a car that was not licensed in his name. He had no insurance to drive that vehicle, was driving at 43 miles an hour in a 30-mile-an-hour zone, and a half-smoked joint of cannabis was found on the car’s dashboard. When the police found him he was not at the scene of the accident as he had gone some distance down the road.
I hope the House will not mind if I pause for a second to reflect on what Lillian might have done in the rest of her life, the people whose lives she would have touched, the children she might have had, and the contribution she might have made to our local town. It is not just the loss of her life, but the impact her death has had on her friends and, most particularly, her family. Lillian was taken to hospital and pronounced dead some hours later. Sadly, the blood of the vehicle’s driver was not tested immediately, and only after Lillian died did the police conduct a test. Cannabis was found in his blood. The family have never been told the level that was found although the Crown Prosecution Service told them that it was not sufficient to warrant a charge of causing death by careless driving while under the influence of drugs.
The driver was sentenced to just eight months in jail. He served just four months and was released. He lives locally to the family, so for the rest of their lives they will be faced with the knowledge that every time they go to the local shops there is a danger that they will bump into this individual who has never spoken to them, apologised or shown any remorse at all for what he has done.
To my mind, those of my constituents, and I hope all Members of the House, that family did not receive justice in any sense of the word, and I want to pay tribute to Gary and Natasha—Lillian’s parents—and Michaela, her aunt. A number of Members, including the Chair of the Home Affairs Committee and the Home Secretary, have been kind to give me credit for the campaign I have run, but I do not feel that I deserve that at all as I am just doing my job. Those who deserve credit in this instance are Lillian’s family. They took a terrible situation that no parent would ever want to endure, and rather than be consumed by anger—as I fear many of us would be—they wanted to turn it into something positive and see a change in the way that we as a society deal with this issue so that other families do not have to experience their anguish.
Lillian’s family found a powerful and useful friend in our local paper, The Croydon Advertiser, and in particular an excellent young reporter called Gareth Davies who worked with them to put together a campaign for what they have called “Lillian’s law”. They came to see me at my surgery to ask for my support, and the package they were looking for contained four items. First, they wanted a change in the law itself. As the Home Secretary mentioned in her speech, although it is currently an offence under section 4 of the Road Traffic Act 1988 to drive while impaired by drugs, it is extremely difficult to secure convictions under that legislation because it is difficult for the prosecution to prove impairment. There is no equivalent to the law on drink-driving whereby if someone has more than a certain level of a drug in their blood, that is held to be evidence of impairment. The law is not weighted in the same way. The first thing, therefore, was to change the law, which is what clause 37 does.
I hope the House will not mind if I mention a couple of other things that the family are also looking to see happen. The second point is to have a device, equivalent to a breathalyser, initially for use in police stations but in the longer term for use at the roadside. At the moment, the police conduct a field impairment test, the suspect can be taken to the police station and a doctor must be called to conduct a blood test. That is expensive and time consuming and there is therefore a disincentive to conduct such tests. It is important to get devices in place that allow tests to be carried out that are equivalent to those for drink-driving. I am pleased that the Government have recently given type approval for devices for use at police stations, and I understand—perhaps the Minister will confirm this—that the intention is to approve a device for use at the roadside by 2014.
The third issue was to look at sentencing and to ensure appropriate punishment for those convicted of such offences. The Bill would provide a level of sentence equivalent to that for drink-driving. The fourth thing, which can only happen once the three other pieces of the jigsaw are in place, is to look at an enforcement campaign similar to that of the 1980s on drink-driving. There was a time when lots of people drove under the influence of drink—to a degree, it was the cultural norm. It took that enforcement campaign in the 1980s to change attitudes, and I think we now need a similar campaign about driving under the influence of some drugs that, sadly, are all too prevalent in society today.
When the family came to see me at my surgery, I was faced with the challenge of what to do and how to help them. As usual, the House of Commons Library was a great place to start, and I began researching the law and previous efforts to change it—and to be fair to the last Government, they looked at this issue. It was a difficult and complicated matter, however, as several different Departments were involved: the Home Office, in relation to the police’s responsibilities; the Ministry of Justice, in relation to the criminal offence; and the Department for Transport.
I decided to raise the profile of the issue and ask about it in Prime Minister’s questions. I want to put on the record my thanks to the Prime Minister, because he agreed to meet the family and invited them to 10 Downing street to see him. I guess they found in him one of the few Members of the House who sadly could understand exactly what they had been through in losing a child. The staff at No. 10 have worked closely with all three Departments to get the change in the law before us today through as rapidly as possible.
I want to ask a couple of questions about the detail. The hon. Member for Cambridge (Dr Huppert) alluded to this matter in a question that he asked the Home Secretary earlier about what the limits for specified drugs might be. Proposed new section 5A(9) in clause 37(1) provides that specified limits could be zero. Paragraph 562 of the explanatory notes, which are always a great source of guidance, contains the wonderful sentence:
“New section 5A(9) provides that specified limits could be zero, though this does not mean that limits would in fact be set at zero.”
One can make of that what one will.
Lillian’s family feel strongly that the level for illegal drugs should be set at zero. As a matter of principle, they feel that people should not be taking these substances and therefore should not be driving under their influence. There is the strong counter-argument, however, that we should be led by science, as the hon. Member for Cambridge tried to point out, that we should try to discover what level of an active substance in the blood stream leads to the same level of impairment as the blood alcohol limit and that we should set the limits that way. Clearly, as the Bill tries to do, we also have to consider prescribed medications that have the same active substances as some illegal drugs.
I commend my hon. Friend for his leadership in driving through this important change. I want to ask about the sentencing impact. Assuming its safe passage, this proposal will have as its outcome a sentencing maximum of 12 months. If someone is impaired by being over the limit, whether in relation to drugs or alcohol, plainly that is inherently careless, but only if they were charged with causing death by careless driving while under the influence would their case get to the High Court for a much heavier sentence, which is what many of these people deserve.
As usual, my hon. Friend makes a good point, and I will explore those issues once I have dealt with the limits.
A decision needs to be made about whether the levels should be based as far as possible on the scientific evidence of similar levels of impairment to that caused by alcohol or whether there is a case, as the family believe, for zero limits for some of the most serious substances. As I understand it, the Government have set up the Wolff panel to consider the detail. They themselves are finding this a highly complex and difficult area and are taking a bit more time than originally envisaged to do this work, but I would be grateful for any guidance that the Minister could give in his winding-up speech about the timing of the panel’s report.
It is a fascinating balance. I have seen comments from the Wolff panel suggesting that alcohol is far and away the most dangerous substance that people can take, so although I support the aim in the Bill of reducing impairment, perhaps more work still needs to be done on drink-driving as well.
The hon. Gentleman makes a powerful point.
I am conscious of the time and of the fact that other Members wish to speak, so I will end by addressing the point about sentencing raised by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes). The explanatory notes make an interesting point. They state that the sentencing has been set at the same level as for driving under the influence of alcohol. Paragraph 560 of the notes states that these are
“the penalties set out in Schedule 2 to the Road Traffic Offenders Act 1988 as increased, for England and Wales, by certain provisions of the Criminal Justice Act 2003 which are not yet in force”.
Will Ministers give some guidance on what the provisions of this Act passed nine years ago are and why neither the previous Government nor the current one have yet brought them into force?
Paragraph 567 also makes an important point that I think answers the point made by my hon. Friend the Member for Enfield, Southgate. It reads:
“Paragraph 2 amends section 3A of the 1988 Act so that if the person had a controlled drug in the blood or urine in excess of the specified limit for that drug, the person could be charged with the more heavily penalised offence in that section of causing death by careless driving”.
I believe that that means—I would be grateful if Ministers could confirm this—that the limits will apply to both offences and that in a case such as Lillian’s, if the driver’s cannabis level is above the limit subsequently set, the more significant charge could be brought against the individual.
In conclusion, I pay tribute to Lillian’s family for their work in advancing this cause. The House will know that Lillian is far from the only individual whose life has sadly been cut short by a drug-driver. No doubt, sadly, other Members will have examples from their own constituencies, but for me it has been a great privilege to speak up on behalf of this wonderful family, who want to ensure that other people do not go through the agony that they have experienced. I thank my right hon. Friend the Prime Minister and all the Ministers responsible for bringing the Bill before the House.
It is a great pleasure to follow the hon. Member for Croydon Central (Gavin Barwell) and I congratulate him on his work in bringing his provision to this point. Before I entered the House, I served as a lay magistrate for 16 years and in cases of people driving under the influence of drugs, was always struck by the complete uncertainty about how we applied the law, compared with the dead certainty in relation to people driving under the influence of alcohol. I therefore welcome the clarity that this provision starts to bring.
I would like to talk about several aspects of the Bill. They are by no means the only elements that have come up this evening, but I want to focus on the issues relating to diversity and sentencing. I endorse the comments of my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) in welcoming the amendment inserted in their lordship’s House specifically to introduce a focus on the position of women within the criminal justice system. That provision did not have Government Front-Bench support in the House of Lords, but, given that last week in his oral statement about transforming rehabilitation the Justice Secretary specifically said, in response to a question from me, that he accepted that the specific circumstances and needs of women had to be addressed, I hope, now that this provision has been passed in their lordship’s House, that Ministers will see no reason not to adopt it.
I was pleased to see provisions on judicial diversity and to hear the Home Secretary highlight them in her opening speech. As she said, there has been progress on the diversification of the judiciary, but much more needs to be made. The provisions in schedule 13, on the tie-break and the possibility of full-time equivalent appointments to the senior judiciary, are welcome. In particular, however, I want to comment on the duty now on the Lord Chancellor to encourage diversity in the judiciary contained in paragraph 10. That is certainly a welcome exhortation, but it is important that it not be left at mere words and that substantive progress be made. Willing the end is not the same as willing the means.
It is clear where some of the barriers and blockages lie. As right hon. and hon. Members have commented, women and ethnic minorities are particularly poorly represented in the judiciary. That is not so much the case in the tribunals and lay judiciary, so it speaks in part to difficulties that the Bar and solicitor professions have in developing a pipeline to find more diverse members of the judiciary. I would be interested to hear what work Ministers envisage doing with the Judicial Appointments Commission and the professions to start to strengthen professional routes for women, minorities and other groups with protected characteristics.
As my right hon. Friend the Member for Leicester East (Keith Vaz) said, it is important to have a judiciary that reflects the make-up of society. It is, without question, an issue of public confidence. It also broadens the perspectives that are brought to bear on judicial decisions, as Lady Hale herself highlighted in her submission to the review of the Judicial Appointments Commission. That is an important and valuable reason why we have a number of judges judging more challenging cases, and is a lesson we ought to reflect in the appointments process more generally.
I am concerned that when these provisions and other allied amendments were debated in the House of Lords, Lord McNally made great play of the role of the public sector equality duty in underpinning this clause and the other provisions on judicial diversity. When Lord McNally spoke, the public sector equality duty was a settled and fairly clear duty. Since that debate in June 2012, the Government have of course announced a full review of the duty, which leads me to ask how we can be sure that the very best provisions of that duty will be embedded in the judicial appointments process.
It is worth noting that the Judicial Appointments Commission has welcomed the public sector equality duty as a framework for working on diversifying the judiciary. It has been absolutely explicit in saying that it does not regard it as a tick-box exercise. It is important that we do not lose what has been good in offering a framework for diversification of the judiciary as the review of the duty continues. That is more of a concern now that the requirement to carry out equality impact assessments in relation to policy is being removed.
I am pleased to see specific provision for restorative justice in the Bill. That represents a good start—a good first step in legislative recognition of the value of restorative justice. There have been a number of comments today on the importance and challenge of persuading victims who may feel torn about whether to participate in such a process. I invite Ministers to look carefully at how the concept of restorative justice can be extended, so that it does not necessarily mean the offender meeting his or her victim. Prison Fellowship, whose work I have had the privilege of seeing in Styal prison, has been able to extend the concept so that victims, not necessarily of the women serving the sentences in the programmes they are running, are nonetheless able to act as proxy victims to enable the concept of restorative justice to be extended more widely. It is a powerful programme that deals with serious offenders. I hope Ministers will see the provisions in the Bill as a first step to learning what works effectively in restorative justice, and to looking for opportunities to extend the concept over time.
I want to say a few words about the provisions on non-custodial sentences and the focus on punishment in those sentences, which in most circumstances is now the norm. I recognise that there is a real issue of public confidence regarding community sentences, which is regrettable when they are so much more effective in terms of reoffending rates than short-term custodial sentences. That confidence will not be helped if we start to get the balance of sentencing provisions wrong so that the focus on rehabilitation and reducing the offending is lost and crime rates start to rise. I therefore ask Ministers to tell us how they expect to monitor the impact of this provision and ensure that a proper, rounded approach to sentencing is sustained as it begins to take effect. In my 16 years’ experience as a sentencer in the lay magistracy, it was rare that punishment was not an element of the sentences we imposed. Surely the most important test, however, is the outcome of a sentence. The outcome we want above all is that the offending behaviour stops. I therefore hope that the impact of this policy will be carefully monitored with that in mind.
On the provisions relating to location monitoring, as others have said, technological and other developments have enabled the use of electronic monitoring to be widened and extended since it was first introduced a decade or so ago. There are also some real civil liberties and information-sharing concerns about the use of these techniques. It is clear that on its own it is not a particularly effective method of reducing reoffending. It is also important that, in seeking to monitor and manage the whereabouts of an offender, we do not put members of the public, particularly those close to that offender, at greater risk. I highlight concerns about this provision when, for example, domestic violence has been an issue. I hope that Ministers will perhaps comment on that, and certainly bear it in mind.
The Bill contains a number of important provisions that open up an avenue to new thinking. I hope that this is not seen as a definitive and ultimate position in relation to steps that can be taken to reduce reoffending and improve protection of the public. There are interesting developments, but it is important that their efficacy and effect are carefully monitored. I hope Ministers will give us the assurance tonight that it is in that spirit that they are brought forward in the Bill.
I want to speak in support of clause 38. It was inserted into the Bill by those in the other place, who voted 150 to 54 against the wishes of both the Government and the Opposition. That is quite an achievement and I pay tribute to the other place for what it has done. In passing, I say that I do not think that such a rebellion would have happened if the other place had been dominated by elected machine politicians, so once again the House of Lords has justified itself on a cross-party basis and forced the Government to see the light.
What does clause 38 do? It removes “insulting” from section 5 of the Public Order Act 1986. This is a free speech reform. It has been called for, for years by civil liberties groups, gay groups, Christian groups, secular groups, right wingers and left wingers. It is opposed almost by no one, apart from the Government, until today. Sinners are always welcomed when they repent very late in life, so we should welcome the Government to the lighter side. However, the Home Secretary did not seem entirely convinced, so I hope the House will forgive me for a few moments as I try to explain the rationale for this important campaign, which has been running for years and has united Peter Tatchell and myself—quite an achievement.
I, too, thoroughly welcome this change. On the issue of repenters, there is another category that my hon. Friend has not mentioned—the Opposition. The shadow Home Secretary was distinctly ambivalent in welcoming the fact that the Lords have allowed us to see sense. Would my hon. Friend care to comment on that? While we may have the numbers, it is important to recognise the cross-party, cross-issue, cross-everything opposition to having “insulting” in section 5.
I do not want to be party political, because many Labour MPs have joined us in the campaign that we have been waging. This is not a Conservative-Labour issue. I cannot really understand why the Opposition are still equivocating when we have had such a long consultation and when the issues are not very difficult. I still hope that the Opposition, at the last minute, in winding up this debate, will get off the fence. The House, along with people who have been campaigning on the issue for years, are entitled to know where they are.
The campaign has been waged for a long time. I spoke about the issue in 2011, during the passage of the Protection of Freedoms Act 2012—that, too, was on Second Reading. I then tabled an amendment that was exactly the same as clause 38 in this Bill—unsurprisingly, as the same people who have been campaigning drafted both clauses. It was co-sponsored by 64 Members of the House, from every party and every shade of opinion. The Joint Committee on Human Rights—a Committee of Parliament—described it as a “human rights-enhancing measure”. We had been speaking on the issue for years, so we did everything to secure a debate. I do not want to talk too much about Government bad behaviour in the past; one should not perhaps do so when they have done something right. We got the measure tabled as new clause 1—we got there first at the end of the Committee stage. However, unfortunately, after we had got 10% of the House to co-sign it, the Government then took the unusual step—I will not say any more—of using a programme motion to prevent it from being debated. Why? Perhaps they feared that we might defeat the Government—something that happens very rarely in this place.
However, we did force the Government to have a consultation, which was great. The consultation started, lasted a whole year and closed on 13 January 2012—a year ago. We were still waiting and now we have a few words from the Home Secretary. That appears to be the end of the consultation, but it would still be useful to see it, because this is an important issue. We want to know why the Government have changed their mind on this, so it would be quite nice for the consultation, a year after it was closed, to be published.
Why is clause 38 so important? It is important because it removes section 5 of the 1986 Act, which was undermining civil liberties. The breadth of cases suggests that virtually anyone could find themselves at the wrong end of section 5. They have been cited several times, but I want to go through some good cases—there are many others—to show how section 5 was being used against civil liberties and freedom of speech. Section 5 was cited in a court summons given to a 16-year-old protester for holding a placard saying,
“Scientology is not a religion, it is a dangerous cult”.
A Tynesider named Kyle Little was convicted and fined under section 5 for saying, “Woof!” to two Labradors. Thankfully, that conviction was quashed. An Oxford student, Sam Brown, was arrested under section 5 for saying to a policeman,
“Excuse me, do you realise your horse is gay?”
Thames Valley police said:
“He made homophobic comments that were deemed offensive to people passing by.”
My friend Peter Tatchell was charged under section 5 for condemning the murder of gay people by Islamic extremists. His placards were deemed by police to be insulting and likely to cause distress. Blackpool café owner Jamie Murray was told by officers that playing DVDs showing text from the New Testament was a possible section 5 offence.
The police have often used section 5 to freeze debate and stop difficult people speaking out, but in this place we should cherish difficult people. That is what this place is about: cherishing people who do not always go with what the establishment wants. In another case, animal rights protesters were threatened with arrest and seizure of property under section 5 for protesting against seal culling by displaying toy seals coloured with red food dye. One of my favourite cases—I think I can end on this one, because it goes against what I normally talk about and believe in—involved an atheist pensioner in Boston, in my part of the world. He wanted to place a small sign in his window saying:
“Religions are fairy stories for adults”—
I never thought I would repeat that in this House, but that was his crime, apparently. He was told by Lincolnshire police—our very own police—that if anyone complained, he could be arrested and dealt with under section 5.
These cases are worrying. We might be tempted to blame poor on-the-spot decision making, but when there are so many, with such wide variation, and when some of them progress to the courts, it is no longer a joke. We have to conclude—and we have concluded; and now, thank God, the Government have concluded—that there is something wrong with the law.
It is a pleasure to be on the same side as the hon. Gentleman on this issue. What he has described is Liberal Democrat policy as well, and I am delighted that the Government have conceded on it, but has he given any thought to section 4A of the Public Order Act 1986, which also deals with insulting behaviour?
Perhaps my hon. Friend will deal with that in detail when he speaks, because he makes a good point. It is important in the coalition that we try to find things for which, philosophically and honestly, we can work. One thing that is deep in our joint tradition as Liberals and Conservatives is our desire for more freedom, so it is good news that the Government are going with the grain of what the coalition is about.
I hope the House will forgive me if I go into one or two details, because in the law the devil is always in the detail. Section 5 of the 1986 Act outlaws
“threatening, abusive or insulting words or behaviour”
if they are “likely”—that is the important word—to cause “harassment, alarm or distress”. Clause 38 simply deletes the lowest threshold of the offence—only the lowest; that is the important point—which is the word “insulting”. That would still leave the two higher thresholds of “threatening” and “abusive”. It is important to make the point that we are not removing protection from policemen for those who may feel themselves to be threatened in some way. We all know what being threatened is like: it is quite different from being insulted. The 1986 Act does not define the terms, but the courts say that we all know them when we see them, and I think that is right. A threat is when someone is “in your face” and there is fear of violence. Abuse is when there is, for instance, obscene language. That is why Lord Hurd brought in the law—he was concerned about football hooligans and concerned to protect decent, law-abiding people from feeling threatened or abused.
Insult, however, is clearly less serious and, above all, much more subjective. That is the point about the cases I read out: they are subjective. That is the problem. Most people are surprised to learn that insults are against the law in this country. They think that that kind of law would exist only in some kind of oppressive communist society, not in England and Wales, where traditionally we have given the world this concept of freedom of expression, and the freedom to insult people is an important part of traditional freedom. I believe—and we all know—that insults are minor compared with threats or abuse. An insult is a slight on one’s reputation; it can hurt feelings. Yet just because my feelings are hurt—because I feel that somebody over there has insulted me—should I attempt, or should the police attempt, to make them a criminal? I do not believe that is right.
That is why we have garnered support over the years so quickly. I think virtually everybody who has looked at this issue now supports us. I mentioned the Joint Committee on Human Rights, but those supporting us also include the Equality and Human Rights Commission, the Independent Police Complaints Commission, the Association of Chief Police Officers—that is important, because we were always told that the police were worried about this—the current Director of Public Prosecutions, as has been mentioned, the former Director of Public Prosecutions, Justice, Liberty, The Daily Telegraph, the Christian Institute, the National Secular Society, the Peter Tatchell Foundation, Big Brother Watch, the Freedom Association. The list goes on and on. Virtually everybody is off the fence and supporting us. We now just want the Labour party to come on board.
There is nothing party political about this issue. There is nothing in what we are arguing about that runs contrary to traditional Labour belief. After all, despite the Whips in the other place, the Lib Dems in the Lords voted for the amendment, now clause 38 in the Bill, by 29 to seven; Conservatives voted for it by 49 to 30; Labour peers rejected their own Whip and voted 23 to 16; and not a single Cross Bencher voted against it.
Frankly, I believe that this change is not due just to the fact that the Director of Public Prosecutions has come on side, as the Secretary of State said earlier. I believe that the Government comprehensively lost the arguments in the Lords. The Lords can be very good on these issues. The Minister was assailed from all sides. Even the Labour spokeswoman, Baroness Smith of Basildon had a difficult time. She suggested outlawing insults might be
“a useful tool which…enables the police to address homophobic and religiously offensive issues.”—[Official Report, House of Lords, 12 December 2012; Vol. 741, c. 1126.]
She cited a case in which section 5 was used to convict someone who peppered people on a train with foul-mouthed verbal abuse. From all sides in the House of Lords, it was pointed out that such behaviour is well beyond the scope of mere insults. It falls clearly into the realm of threatening and abusive behaviour; it would be untouched by clause 38. Under pressure from all sides, the Baroness was good enough to concede that she was open to looking at the evidence and was not opposed to change. We want to see a similarly open-minded attitude from the Labour party in this House.
The Minister in the other place, Lord Taylor of Holbeach talked about balancing free speech with the right not to be caused alarm or distress. We all agree with that, but what does it mean in detail? Do we all have to be vulnerable to prosecution for insults so that the police can have maximum flexibility to decide whom they will or will not prosecute? I do not think that the Minister’s arguments held up. He said that the “insulting” limb of the offence gives the police
“the flexibility they need to respond to hate crime and to defuse tension quickly in public order situations.—[Official Report, House of Lords, 12 December 2012; Vol. 741, c. 1130.]
Agreed—but the present law was just too flexible.
What we are doing today is right. It is interesting that one of the many Conservatives to rebel was Lord Hurd, the Home Secretary who brought in section 5. At the time he did so, he made it clear that it was not intended to undermine civil liberties. No doubt he has seen what the rest of us have seen: section 5 has undermined civil liberties. He wishes to put it right, the Government want to put it right, and I welcome what the Government have done today.
I share with other speakers the view that there is much to be welcomed in the Bill, including the provisions on the diversity of judicial appointments, extending the jurisdiction of youth courts and drug-driving.
I note that the hon. Member for Croydon Central (Gavin Barwell) is not in his place, but I too would like to pay tribute to the work he has done. He is quite right in what he says about other instances of the same sort of events that affected his constituent. Some 10 or so years ago, when I was practising as a solicitor, I had the privilege to represent the Nellist family of Acklam in Middlesbrough. As they returned home from an evening out—they had not been out socialising for a long time—they got off the bus opposite their home and their young son Anthony was waiting for them to come back. He was peeping out of the curtains looking to see them come home. He saw his mum and dad walk across the road, only for Susan to be struck by a speeding vehicle coming down Trimdon avenue, knocking her some clear 70 yards down the road, killing her outright.
The self-same issues about impairment and the links between impairment and the charges levelled against the youth concerned raised their head in this case. I was involved not in the criminal side but in the civil case. When we served our proceedings on the defendant, he showed absolutely no remorse whatever. He was sentenced to a term of imprisonment. Bizarrely in those days, he served his driving ban while serving his term of imprisonment. I pay tribute to my right hon. Friend the Member for Blackburn (Mr Straw), who put right that wrong in subsequent years, making sure that any driving ban was served at the end of the custodial sentence. That made the sentence more relevant.
Is it ever right for someone in such circumstances ever to get behind the wheel of a car again? Perhaps we can take a look at that as we take the Bill through Committee. Given the tragedy suffered by that family and the fact that not everyone enjoys the privilege of driving a motor car, it is not acceptable for someone in those circumstances to serve a ban for such a short period.
I support the fight against organised crime, but we on the Labour side are concerned that the Home Secretary is undermining that fight by cutting the budget to tackle it. However, I am happy to recognise the valuable work of the north-east regional organised crime unit, which was established by the chief constables of Durham, Cleveland and Northumbria in March 2010. It consists of a specialised team of detectives who target the organised crime groups that pose the greatest threat to the communities in those three areas. No doubt the House will want to congratulate officers in the unit who, last Wednesday, used a warrant to search premises in Topcliffe, north Yorkshire, and recovered approximately 30 kg of heroin and an estimated 40 kg of amphetamine. The street value of the drugs is estimated to be between £6 million and £7 million. Two men have been charged; the investigation continues, and there is more to come.
There is a welcome consensus on the issue of avoiding reoffending. The starting point of the consultation was a good one: the Government acknowledged that nearly half of all adult offenders reoffend within a year of leaving custody, and also acknowledged the need for reform of the criminal justice system. Cleveland’s newly elected police and crime commissioner, Barry Coppinger—in common with many others—has made
“diverting people from reoffending with a focus on rehabilitation and the prevention of reoffending”
a key priority. So far, so good. It seems there is a common purpose, but the question must be whether the proposals in the Bill are adequate to assist the attaining of that vital objective.
The powers that the Bill seeks to introduce are already available to sentencers. They can already impose punishment in combination with other elements. Lord Woolf, the former Lord Chief Justice, described the proposals as
“offensive to the judiciary, who strive to ensure that each person dealt with by them is sentenced to the appropriate sentence.”—[Official Report, House of Lords, 30 October 2012; Vol. 740, c. 529.]
Lord Ramsbotham, the former chief inspector of prisons, called them “totally unnecessary and counter-productive”.
In the brief time remaining to me, let me say something about clause 23. My constituent David Jukes has written to me pointing out that 2,000 people are employed by Her Majesty’s Courts and Tribunals Service in the enforcement of criminal fines. I hope that we shall have a chance to ensure that the existing service is given every opportunity to be maintained and to succeed, and also to ensure that rigorous standards and targets are set for recovery of fines and fixed-penalty notices.
Finally and very briefly, I want to comment on the law of self-defence as it applies to householders. I recently went around the houses in Middlesbrough, and none of those on whose doors I knocked told me of their overbearing desire to knock seven bells out of a burglar. People were more concerned about, for instance, employment and being hit by the under-occupancy tax. We must think carefully about whether clause 30 takes us any further.
The hon. Member for North West Cambridgeshire (Mr Vara) referred to the guidance notes that are issued to officers. I rather think that that tells the tale: the notes are available to officers to prevent householders from being taken to court unnecessarily, under the law as it stands—
I congratulate the Government on leaving in the Bill the Lords amendment in clause 38, as it is wholly in accordance with the proud heritage of upholding free speech in this country. I thank Ministers for listening to those of us in this House, and many outside it, about the detrimental impact of section 5 of the Public Order Act 1986, as currently drafted. In this country, we have traditionally enjoyed great freedom of speech—we certainly have in this Chamber—but many people have felt that section 5 has curtailed it and undermined wider civil liberties, and that it needs addressing. As Liberty says in welcoming this amendment and discussing the need to remove “insulting” from section 5,
“the mere fact that this is a criminal offence is enough to stifle freedom of expression.”
It also states that
“section 5 can have a chilling effect on peaceful protest.”
In responding to the Secretary of State’s introduction to this debate, the shadow Secretary of State expressed reservations about the Government’s proposal to include clause 38 and invited examples of the detrimental impact of section 5 to be provided in Committee. I am pleased that my hon. Friend the Member for Gainsborough (Mr Leigh), to whom I pay tribute for his lengthy and persistent campaign on this issue, has cited some of the examples, and I wish to add a few more. I make mention of the couple who used to own a hotel but lost the business as a result of a prosecution under section 5, which arose from a conversation with a resident—a customer—who asked their views on a particular subject and then, when she did not like them, reported them.
That is absolutely right. Ultimately the case was thrown out by a judge, but the strain of enduring the prosecution process proved too much for that couple and they could not keep that business going.
I am particularly concerned about the arrests of individuals under section 5 for expressing views relating to their faith, because I am a committed Christian. Another case was that of Jamie Murray, who runs a café in Blackpool. He had displayed texts from the New Testament on his café wall but received a visit from two police officers who said that they had received a complaint and were investigating a possible offence under section 5. The complaint was simply about Bible texts. Bible texts can be found outside many churches across this land and inscribed on buildings. There are Bible verses on the floor of the Central Lobby in this place and I can even see scripture engraved on the door behind the Speaker’s Chair. However, section 5 is apparently so broad that police in Lancashire thought it banned the Bible. The obvious problem with section 5 is that the word “insulting” is too vague and too subjective; what one person might consider insulting may not trouble another at all.
Incidents such as those I have mentioned frighten people; even where the person does not end up with a criminal record, they create a chilling effect. I now know of church ministers who fear a knock on the door simply for preaching historic Christian truths at their own pulpits. That cannot be right, which is why clause 38 is so welcome. The wording of the current provision needs to be trimmed back; as the recent report by the Joint Committee on Human Rights said, it
“constitutes a disproportionate interference with freedom of expression.”
The Director of Public Prosecutions, Keir Starmer, has said that
“the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions.”
A gap will not be left in the law; the word “abusive” should cover the issue satisfactorily.
I could cite many other instances, not necessarily involving faith aspects: the concerning issue of the 16-year-old man threatened with prosecution for peacefully holding a placard that said, “Scientology is not a religion, it is a dangerous cult”; the animal rights activists who displayed models of red seals, with the red representing blood; the street-preaching pensioner with Asperger’s who was convicted and fined under section 5 for holding a religious placard—Peter Tatchell, while not agreeing with his opinions, has fully and publicly expressed his right to express them. All or any of those cases, or the views expressed within them, might be regarded as controversial, but what hope is there for free speech if someone can dial 999 every time they hear something controversial? What a colossal waste of police time.
Many groups, as my hon. Friend the Member for Gainsborough has already stated, have expressed concern about section 5 of the Public Order Act, and I am delighted to note the support received in the Lords from so many worthy Members, including a former chief inspector of constabulary, a former Lord Chancellor, a former DPP and the chair of Liberty.
I also pay tribute to those outside the House who have campaigned on the issue, particularly those who have spearheaded the “Reform Section 5” campaign, with which I have been associated since its launch last year. It is a joint initiative of the Christian Institute and the National Secular Society; how many other causes could unite such implacable foes?
We are all familiar with the statement attributed to Voltaire: “I may disagree with what you say, but I will defend to the death your right to say it.” I know that that sentiment resonates within this House, and that is what clause 38 is all about. history has shown that, if societies do not take opportunities such as the one presented by clause 38 to underline and reinforce the importance of free speech, other precious liberties can begin to slide away. Once we cross a Rubicon and allow infringements of free speech, how many other freedoms disappear? I am sure that we all support the campaign of the Chinese journalists for free speech in their press; we should equally support clause 38 and free speech in this country. The United Kingdom has been a beacon of free speech to the world. This is a chance to underscore that reputation.
The publicity it has generated means that the debate on section 5 has been followed not only by a wide cross-section of society in this country but by people around the world. I hope that, through clause 38, we can give them something to celebrate and that Opposition Members will join us when we come to vote on it.
I want to deal with a couple of clauses that have not been referred to so far, but before I do so let me express my support for the comments made by the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) about clause 31 and the concerns expressed by others about clause 34 and visa appeals. The abolition of those appeals will have a direct impact on my constituents and I believe that there will be a considerable backlash in the community. Let me also express my support for clause 29, which abolishes the offence of scandalising the judiciary as a contempt of court. I understand which case that relates to, but I feel that scandalising the judiciary should be a right, if not a duty, every now and again.
Three clauses have so far not been mentioned in any detail. The first is clause 16, on the establishment of the family courts. It has been genuinely welcomed, as has the introduction of mediation in the processes of the family courts and the greater emphasis given to it. Concerns have been expressed, however, by Children and Family Court Advisory and Support Service officers and family law practitioners about the need to ensure that there is adequate insurance in the delegated legislation and the guidance that the views of the children in these cases are properly represented and protected. I hope that there will be further dialogue with professionals in CAFCASS, in particular, who will be able to advise on the detailed implementation of the legislation, and of this clause in particular.
Let me turn now to clauses 23 and 24. My hon. Friend the Member for Middlesbrough (Andy McDonald) mentioned the issue with clause 23, which effectively privatises the functions of the officers dealing with the collection of fees. They are judicial functions, which is a step forward in privatisation that we have not seen before. Clause 23 facilitates the contracting out of all the functions of fines officers and makes provision for the cost of collecting compensation, fines and other financial penalties to be recovered from offenders. That will effectively mean contracting out the functions of those officers to private bailiffs. Let me remind hon. Members of those functions: the decision to make a deduction from benefits order; the making of an attachment of earnings order; and the ordering or varying of the length of time to pay or the amount of the instalments that are payable. Those functions relate to the exercise of judicial power and the sentencing of criminals and they are to be privatised.
My concern about that is that as Members we have all experienced the role of bailiffs in our constituencies. In its evidence to Government in the consultation, “Transforming bailiff action”, Citizens Advice reported that it was dealing with nearly 25,000 cases involving problems with private bailiffs. Citizens Advice said that it
“has been seeing problems with the practices of private sector bailiffs for many years and these problems seem to be growing. Unfair practices we see include: misrepresenting powers; intimidating behaviour; charging fees in excess of what is allowable in law; failing to accept reasonable (in the circumstances of the debtor) offers of payment”,
and failing to recognise vulnerable debtors in particular. We are now passing over a key element of the judicial system to private bailiffs, who have this record of failure.
My hon. Friend has hit the nail on the head. There are 2,000 people out there in the service, consistently meeting the targets set for them by Government and improving their record of service by 15% last year, not 14%, as he said. These loyal, dedicated staff, who are professionals in their own field, have delivered, yet are being threatened with privatisation. We are handing over this function to a group of people who we know are causing large numbers of our constituents severe problems as a result of their behaviour in the performance of their duties in other areas of fine collection and in the system as a whole.
All that is being asked for is the opportunity for existing staff to bid for their jobs. As the Bill stands, they will be excluded from being able to continue to perform the functions that they currently perform. Moreover, clause 24 would make available information held by HMRC to private bailiffs for use in the collection of fines. That is a step too far and it breaches people’s ability to maintain personal privacy with regard to their taxation affairs. That was never envisaged in previous consultations.
We have had experience of privatisation in the Ministry of Justice in recent times. Members in all parts of the House have raised the problems that we have had with the contracting out of the court interpreter services, which saw only 58% of bookings met. It resulted in chaos in the courts and criticism from the Public Accounts Committee.
I urge the Government to think twice about the proposed privatisation of an important service that is critical to many of our constituents, and to back the concept that what works is what matters. If the existing system is working effectively, it should not be put at risk as a result of what seems to be an ideological decision, rather than one based upon practice. It would be worth while for the Minister to sit down with some of the existing practitioners to gain their advice and, if the Government want further improvements in the service, to work with the existing staff—with the grain of the service—to achieve those improvements, rather than to go forward with this wholesale privatisation, which will prove to be not only counterproductive but, for many of our constituents, catastrophic.
I shall concentrate on one aspect of the Bill: clause 30, which deals with self-defence and which has been touched on already by my hon. Friend the Member for North West Cambridgeshire (Mr Vara). The clause introduces important practical changes, but I wonder whether it concentrates too much on where things are happening and not enough on what is taking place.
The title of clause 30 is “Use of force in self-defence at place of residence”. It has been suggested that the result of the provision is that an Englishman’s home is his castle, but I wonder whether an individual grappling with a burglar at 2 am is worrying about where he is, rather than what is actually happening. In other words, is his concern the defence of his own person, rather than the defence of his property?
I hope that my examples will demonstrate the importance of that point. Imagine a person who runs a petrol station in a rural area and lives in a house 100 yards away. If he is attacked in his home, the new law will apply, but if he is attacked at the petrol station just as he turns out the lights and is about to lock up, or while he is walking from the petrol station to the house, it will not apply. Someone who works as a night watchman is protected by the new law while they are at home, but when they arrive for work, the provisions will not apply. A vicar is covered if the burglars come to the vicarage, but if he goes to investigate a light in the church at night and behaves in the same way there, the new law does not apply.
We have heard an interesting example involving a farmer. If a farmer hears a noise downstairs in his home and goes to investigate with a shotgun that he has taken from his gun safe in his hand, the new law will apply, but if, after he has been shooting legitimately, he is wandering back through his farmyard and goes to investigate a noise where all his expensive machinery is kept, and is then boxed in by the same people and reacts in the same way as in his home, the proposed law will not protect him.
Leaving aside the obvious point that we are asking people to remember that the law is different depending on whether they are at home, just outside their home or at work, notwithstanding the fact that they could be attacked by the same person in the same way and in the same early hours of the morning, a different test will apply if ever someone who is alleged to have breached the new law by behaving in a certain way is tried alongside someone who dealt with another member of the gang, but happened to do so in an outbuilding. The person who confronted one of the burglars in his home may rely on the new law, but his brother or son who behaved in exactly the same way towards another member of the gang in the outbuilding will not be protected at all.
The point of the clause is to put in place the new test, but that test applies only in a dwelling.
The clause gets even more bizarre when we consider proposed new subsection (8B), which deals with the corner shop with a flat above. A shop owner who comes downstairs from the flat and meets a burglar in the shop premises will be fine, because he will be covered by the new definition, but the person who lives next door and has to step out on to the street before going into the shop to start their work there for the day, and who encounters exactly the same circumstances when locking up for the night, will not be covered. If those two people meet the burglar while the premises are open, the shop owner who lives on site has the advantage of the new law, because the shop is part of the building in which their flat is located, but his assistant does not, so a different test will be applied to two people in exactly the same circumstances and encountering exactly the same villainy—and, indeed, the same villain.That cannot be a sensible revision, and the reason is that the focus is on the place of residence as opposed to what the problem really is, which is self-defence.
If this was reconsidered, and if instead of the test relating to the dwelling it related to whether the person was a victim of a criminal enterprise, all the examples I have given would be neutralised, because in all of them the person concerned would have been a victim of a criminal enterprise, whether it was in the church, the petrol station, at home, walking from one to the other, at work as a night watchman or outside as a farmer. If that were the trigger, the person concerned could rely on the new test, but as it is drafted, all those contradictions apply.
Subsection (6) makes it clear that this would not be a retrospective provision, and I understand that, but the amount of publicity generated by this clause means that to a lot of people out there the law has changed already. It would be ridiculous to have somebody waiting to face trial in circumstances where once the legislation was passed, a prosecution would never be brought, because the test would have changed. In whatever form the section appears in the Act, it needs to be introduced as soon as possible so that people do not rely on it before it is available for them to rely upon.
I should have said at the beginning, and so I say at the end, that I draw attention to the fact that, as a practising member of the Bar, I have an interest.
I want to speak about the withdrawal of family reunion visas. The Government propose to do away with recourse to an independent judge, in place of which they say that a fresh application should be made to the same people who turned down the application in the first place—an additional paper might swing the case. I have 20 years of personal experience of visa work in my constituency. In 2000, the decision of the Labour Government was deeply and warmly welcomed by the ethnic communities, families who have come here but have mums and dads, grandparents and siblings in another country. We all speak about family values, but I think that all hon. Members will agree that they should be treasured. It is important that in the event of a wedding, a birth, an illness, a funeral, even just so that the old lass can see her daughter and grandchildren, family members should have the opportunity to visit.
I want briefly to describe some of my experiences. There is the elderly person, an old lass, from a village in Pakistan who wants to visit her daughter and granddaughter. The decision is that there is something in the papers—something that the old lass knows nothing about—that leads someone to believe that the motivation for coming is not the one set out. Case closed—refused. There is the person who has come here two or three times and every time has returned home within the visa period, but that is not taken into consideration. They are not trusted to go back. Cases are turned down because documents not asked for were not given. I had a recent case concerning a man who I thought was 80, but rather than mislead the House I will settle for the 70s. One of the reasons for his being turned down was that he did not give the entry clearance officer any details of his employment. The provision means that the applicant has to go back to that entry clearance officer for a decision rather than an independent judge.
It might be said that I am prejudiced about those cases, but I have three reports from the independent chief inspector of borders and immigration, John Vine. The second one says:
“While there were no decision quality issues revealed in 761 cases”
out of 1,500 cases
“I found there were errors affecting decision quality in 515 cases. In a further 201 cases the lack of evidence retained on file made it impossible for me to assess whether the correct decision had been made.”
The same report from 2011 said:
“The general quality of decision-making can and must be improved.”
In 2010 John Vine discovered that UK Border Agency managers were dismissive of determinations made by immigration judges to allow appeals. More importantly still, he found that because these cases were being dealt with in Abu Dhabi, where all the Pakistani cases go for a decision, people from the Gulf were being treated in a better fashion than people from Pakistan. It took John Vine’s intervention to address that. He is saying, as the professional commissionaire, that there is a lot wrong.
My personal experience—I think this goes for any inner-city Member with a large ethnic community—is that the situation is dreadful. The Minister will say, “No, we’re not asking you just to pay the fee again and send it back—we’re suggesting that you read the decision, see what basis you have been turned down on, and send those papers.” I have got news for the Minister: if someone brings me a decision letter and asks for my help, I go through it closely to see what the entry clearance officer is asking for or is turning a person down for, and then write a considered letter, get the evidence and send it for a review, as every Member of this House can. I can count on one hand the number of times when the entry clearance officer changes the decision; despite the fresh evidence, the decision is upheld. The Minister is going to tell our communities, “Don’t go to an independent judge.” Why do people want to go to an independent judge? It is not because 38% of cases are accepted, but because they will have someone who will listen, ask questions, ask for documents, and take a decision based on all those points.
I plead with the Minister to reconsider the heartbreaking decision to withdraw this right of appeal and to keep it, because it is desperately needed.
I declare an interest as a criminal defence solicitor.
I welcome the Bill and want to draw out some nuggets that I believe can, in certain circumstances, be refined to be even more golden. On the whole thrust of the Bill in terms of efficiency and coherency, I welcome and support the single county court and single family court provisions. I particularly draw the Minister’s attention to the jurisdiction issue in relation to the youth court. The Government’s approach is to triage cases into the appropriate courts. The nugget that I particularly welcome is the change giving youth courts the power to grant gang-related injunctions. That is welcome in my constituency and in the borough of Enfield. We were the first north London borough to obtain a gang-related injunction, which led to a 14-month prison sentence. Indeed, the cross-partnership work in the borough has led to a 50% reduction in serious gang crime-related violence.
However, there needs to be flexibility. We can perhaps go further in making this nugget even more golden when dealing with young offenders. We have seen across courts the value of community justice, having drawn from America the examples of Red Hook and Harlem, and now there is the example of Liverpool as well. In our whole approach to community justice we must recognise that when someone comes to court they come with a whole package of concerns that may well go across jurisdictions. That arises particularly when dealing with young offenders, given the need for timely and effective intervention.
From my experience over the years, I know that young offenders often come with a package of family problems. They might well be the victims of abuse. There will often be parenting issues, and some children who appear before the youth court should be in care. At the very least, they are likely to be vulnerable. The magistrates who deal with them often also sit on the bench of the family division, and they have been expressing their frustration for a number of years that they cannot intervene quickly to enable those young people to get into the family court where appropriate welfare orders can be made. That is what happens in the Scandinavian jurisdictions, and the possibility of it happening here has been mooted by the Government in the past.
This is not a new issue. I refer hon. Members to the Home Office consultation document produced in March 1997 entitled “Preventing Children Offending”. Paragraph 103 states:
“Under the law at present, the Youth Court is not able to refer children to the Family Proceedings Court for consideration of a care or supervision order. It is possible that this might be a useful additional power which would enable the Youth Court to deal more effectively with difficult children.”
We then had an election, and the rest is history. I still believe that that proposal would be welcome, however, and it should be looked into. We have an opportunity to try to get young people into the right jurisdiction. The proposal has also been welcomed recently by the Youth Justice Board, which is very supportive of it. When John Drew, the chief executive, spoke at the board’s annual conference in November, he welcomed the opportunity, in appropriate cases, to get children to where they needed to be, which could well include the family court.
Another nugget in the Bill is the provision on community penalties. I welcome the proposal to ensure that there will be a punitive element to them. That is appropriate because, when an offence is serious enough to warrant a community penalty, the deprivation of liberty must be implicit in that penalty. That will now be the case. I also welcome the provision to allow the courts to defer sentencing at the pre-sentence report stage in relation to the provision of restorative justice. Fifteen years ago, I was involved in a pilot at Haringey magistrates court in which sentencing was deferred to accommodate restorative justice conferencing. We have been through many such pilots and reviews over the years, and the evidence is clear. It is about time we got on and dealt with this, and I welcome the fact that the Government are now pushing the measure forward. It will be based on the need not only for restorative justice but for quality restorative justice. We need to look at the details to ensure that the right people will be dealing with the provisions, and that the provisions are victim led and carried out to the satisfaction of the victims. That could well lead to a reduction in reoffending.
The hon. Member for Hayes and Harlington (John McDonnell) mentioned the provisions on fines. I welcome the changes in the Bill. Yes, they may lead to contracting out; “may” is a very important word in legislation. This is not about wholesale privatisation. The ideological bent is that we are on the side of the victims, all too many of whom are not receiving the compensation due to them. The financial penalties involved are simply not being paid, which is why we need to pursue all options to ensure that fines can be collected more effectively and quickly, especially in relation to compensation orders. The burden of the collection costs should fall not on the taxpayer but on the offender, and I welcome the fact that that will now happen.
I also welcome the new offence of drug-driving; it is about time that it was introduced. As a legal practitioner, I have defended many cases that were unable properly to be proven in relation to the impairment caused by an intake of drugs. I have seen the gaps that prevent such cases from being properly proved in court. The Bill provides clarity in that regard. We need to proceed with caution, however, and to ensure that cases are based on evidence and examine the specified levels. This is a complex area in relation to particular opioids and certain other drugs. We need to focus on ensuring clarity in the law, so that we do not allow people on prescribed medication to fall foul of the legislation, when its target is those who are flagrantly taking drugs and going out in a vehicle and causing a menace to others.
There is a medical defence in the Bill, but that might not be enough when a person is arrested and taken into custody. That person will have had their liberty taken away and will then have to prove their medical evidence in court. We shall have to see how we can deal with such cases proportionately, when we produce the guidance. On sentencing, I note that schedule 18 contains a provision to up the sentence for being unfit to drive owing to drug-taking to the equivalent of the sentence for causing death by dangerous driving. We need to ensure there is equity with driving with excess alcohol.
I welcome those and other provisions in the Bill, some of which will perhaps receive further refinement in Committee. I am also grateful to the Government for acceding to the wish of Members across the House and in the other place that the term “insulting” be removed from clause 5. That is welcome on the grounds of religious freedom and freedom of speech; it also demonstrates common sense.
I join other hon. Members in welcoming clause 38 as a sensible, proportionate adjustment with regard to public order. Clause 29, which the hon. Member for Hayes and Harlington (John McDonnell) has touched on, would remove the offence of scandalising the judiciary in England and Wales. However, the change is being made because a Member of this House found themselves cited on exactly that charge in the courts of Northern Ireland, so the issue is not being addressed where the problem arose. Will the Minister clarify whether, when and if the Northern Ireland Assembly gets around to having a legislative consent motion, that consent could allow the Bill to be further amended so that the removal of the offence of scandalising the judiciary in Northern Ireland could be accommodated?
Other aspects of the Bill also relate to Northern Ireland. The right hon. Member for Wythenshawe and Sale East (Paul Goggins) has just come back into the Chamber at the wrong time, because he will hear from me the familiar refrain that he used to hear when he was security Minister for Northern Ireland. I think that, in his book, I and my party colleagues are Patten pedants. We are insistent on keeping to the precise architecture, thrust and spirit of the Patten policing reforms and to protecting the Patten dispensation. The previous Government did some injury to that as a result of moves to put national security policing in Northern Ireland in the hands of MI5. Those activities were moved beyond the purview of the accountable policing structures in Northern Ireland, such as the scrutiny undertaken by the Police Ombudsman for Northern Ireland for the Northern Ireland Policing Board, which is where the ombudsman had been sensibly and deliberately placed.
The establishment of the National Crime Agency adds a further complication, because the Bill will create an additional police force and constables. Indeed, special constables will be created again in Northern Ireland. Having many years ago, courtesy of the civil rights movement, seen off the B Specials, we now face the potential appointment of NCA specials by the director general of the National Crime Agency. If we look at the Bill’s schedules, we will see that some people can be both NCA specials and Police Service of Northern Ireland officers, but that anything they do in one capacity cannot be cited in relation to anything they do in the other. The Bill provides that they can hold, coterminously, those two sets of constable powers, which will have serious implications for the Policing Board with regard to its key oversight role on policing. It will also create potential difficulties down the road for the police ombudsman in dealing with any complaints, and it means, presumably, that officers who are both NCA specials and PSNI officers will be subject to two separate complaint authorities.
My hon. Friend is making some important points that the Committee will need to consider in detail when the Bill is scrutinised line by line. Does he not agree that the most important thing is that, when a Serious Organised Crime Agency officer and, in future, an NCA officer acts with the powers of a constable in Northern Ireland, they should be as accountable to the police ombudsman as they would be if they were a police officer of Northern Ireland?
That is one of the things that has to be tested and clarified. If we look at some of the ousters that seem to be built into the schedules, we see that it appears that somebody cannot be cited in one capacity for something they do in another. That needs to be tested in Committee.
The Bill provides for a compulsion to be issued to the Northern Ireland Policing Board. There is obviously provision for there to be co-operation and engagement between the NCA and the Police Service of Northern Ireland, but there is also provision for directed assistance, which allows the Department of Justice to direct the Policing Board to provide particular assistance, whether or not the Policing Board wants to make that provision. It seems to me that the director of the National Crime Agency will be in a position almost to require the Department of Justice to, in turn, impose a requirement on the PSNI via the Policing Board. The Policing Board was given specific, deliberately assembled and properly protected powers in the Patten dispensation. It seems to me that those are being casually injured in these provisions.
Many people in Northern Ireland will judge the performance of the National Crime Agency on whether it improves on the work that has been undertaken by SOCA and the Organised Crime Task Force, which is linked in to HMRC, SOCA, the PSNI and the Garda Siochana and deals not least with the issues of fuel smuggling, drugs and waste trafficking. People will ask about the difference between the NCA and SOCA. We know that the NCA will have four command areas and a bigger brief. I suppose that it is like the old advert for Baxters soup: “The difference is in the thickness.” People will want to know whether the difference is in the effectiveness of the way in which the agency works. In Northern Ireland, many of us are also concerned about the effectiveness of its partnership and engagement with others, such as the PSNI and the oversight mechanisms. It seems to me that not enough sensitivity has been shown so far to the interests of the Northern Ireland Assembly or the Policing Board.
This is an example of a Bill that could have particular implications in Northern Ireland. Yet again, the Government tell us that there will be a legislative consent motion from the Assembly, but no legislative consent motion has been put. This is another example of there not being joined-up scrutiny between legislators in this Chamber and in the devolved Assembly. With the Welfare Reform Act 2012, we had a different device. That legislation has passed through Parliament and it is just assumed that a karaoke Bill will be taken through the Assembly, with people able to change very little. They can sing it in their own accent, but no significant details can be changed, and yet it appears on paper as though it is a Bill. The legislative consent motion from the Assembly for this Bill will probably come after it is done and dusted. There needs to be better, more joined-up scrutiny on such matters.
Finally, I join other hon. Members in expressing concern about clauses 34 and 36 in relation to immigration and visas.
This being a lawyers’ Bill, I am tiptoeing in with great caution. I will touch briefly on two issues, the first of which is self-defence.
I learned a little about the self-defence issue a few years ago when I observed one of my neighbour’s windows being jemmied open by a gentleman. As he went through the window, I collected him by his heel and brought him back. He and I had a physical discussion, shall we say, and when the police arrived to collect him, he pointed out that his face was a different shape from the face that had arrived on the premises. While saying “I know my rights,” he asked the police to arrest me. Fortunately for me, the police took the gentleman away. When the policeman came back, he said to me, “At least you remembered to turn him round before you hit him. Therefore, it’s self-defence.” I did not say a word, but I went off and prayed, which is rare.
In my constituency, there are a lot of shops in the villages, most of which have accommodation attached. Many of them are burgled on and off by people coming down from London, and this change will give them just a little more of a feeling that they can use self-defence. Some of them do so—some of them use self-defence that comes on four legs with a lot of teeth. I hope that the retail aspect of the provision will cover more than just shops, because many of my villages have cafeterias, restaurants and pubs. I wonder whether the Bill will apply to pubs as well as shops, because almost all my local pubs have residents above them.
From the way the Minister is shaking his head, perhaps it will not.
The right hon. Member for Wythenshawe and Sale East (Paul Goggins) mentioned CEOP, and I must congratulate him because it was a wonderful invention. It has been very effective and is getting more so. Unlike him, however, I believe that it should be in the NCA. CEOP works nationally and works for the UK internationally, examining individuals, gangs in the UK, international trafficking gangs and some of our citizens who take their child sex activities overseas. It is a logical step to link it with the organised crime police teams, the immigration teams, the border teams and so on.
The previous chief of CEOP was opposed to the proposed change and resigned in a bit of a huff, which I really think was illogical. Peter Davies, the newish head of CEOP, is right behind the change. I believe that is as well, because we are starting to see new nasties appearing in the field. There are signs of increasing trafficking, ritual abuse and possible multiple murder. The depths to which child abuse appears to be able to sink are beyond what any of us would have thought. The police are fighting it, but setting up the NCA with CEOP as part of it must help us, and I certainly support the Bill and CEOP’s move into the NCA.
It is a pleasure to be called to speak. This is a large Bill, and it has been noticeable that most of the debate has focused on a few specific parts of it. That is a tribute to the fact that the rest of it is clearly less contentious and rather more successful.
I wish to highlight a few concerns that I have. I welcome the creation of the National Crime Agency in part 1, but an important question is how we can keep the SOCA brand internationally. I look forward to the Home Secretary’s work on that. I have a couple of concerns about how the NCA is to be inspected and made transparent. The Bill allows for Her Majesty’s inspectorate of constabulary to examine the NCA but allows discretion as to whether the Independent Police Complaints Commission will examine it. It seems to me that the NCA will be fundamentally a policing body and should be subject to the IPCC in the usual way. I hope that that will happen through primary legislation.
Similarly, the NCA is excluded from the Freedom of Information Act 2000. In many cases, of course, it would be inappropriate for it to be subject to FOI, but a number of other organisations, such as the police, the immigration services and Customs are not exempt but provide information where they can. It would be in the interests of transparency for a similar provision to be made in this case.
I do not have time to go through the details of much of the Bill, but I am aware that clause 30 has received a lot of interest in the House. It is clear that the current law allows force to be used against a trespasser if that force is reasonable and proportionate in the circumstances as they were considered at the time. That is an important defence, because people can make errors of judgment in the heat of activity. However, the Bill takes it a lot further, as it will mean that somebody can use self-defence even if they use a disproportionate level of force given the facts as they believe them to be at the time. It will not allow grossly disproportionate force, but it will allow people to be disproportionate.
I absolutely understand that in many cases, someone who has tried to defend themselves should not be arrested but should be treated as a victim while the matter is examined. However, it seems to me that people should be sensible and use only proportionate force, and that we should not allow disproportionate force. We need a change not in legislation but in how the police interact with people in such circumstances.
There is some extremely good stuff in schedule 15 to the Bill about restorative justice—an issue core to Liberal Democrat thinking for a long time. A lot of research backs up the role of restorative justice, and I pay particular tribute to Professor Larry Sherman who has done a huge amount of the fundamental research showing how effective it is. I am pleased that the Government are putting money into restorative justice but they may need to make rather more than £1.5 million available, particularly if it turns out to be successful and very popular. We know that restorative justice reduces reoffending and is far more satisfactory to victims than prison is. I am also pleased with progress on community sentencing.
There has been a large discussion about family visit visas and there is a problem with the incredibly high appeal rate—the figure I have seen was something like 60%. It seems that there are two possible solutions: the first is to have better decision making by UK Border Agency, and the second—the option the Government have chosen to adopt—is simply to stop appeals happening. We need the Border Agency to be much clearer about the information it requests and give people the opportunity to provide extra information that was not initially required. That could solve the problem in a far simpler and less draconian way.
I would be grateful for the Minister’s comment—it may be a written answer—on the specific issue of citizenship for the children of unmarried British fathers when the child was born before 2006. The former Immigration Minister has highlighted that the anomaly would be changed when there was legislative opportunity, and I wonder whether it might be possible to include that in the Bill. If not, we will have to wait until the next one.
I am delighted that the House of Lords voted to remove the word “insulting” from section 5 of the Public Order Act 1986. That is in line with Liberal Democrat policy and we have already heard many instances of where that provision was unreasonable. I hope the Government will reflect on section 4A of that Act, which has similar provisions about insulting behaviour. There are other steps that I hope the Government will consider or review to try to protect freedom of speech, such as, for example, section 127 of the Communications Act 2003, which was used so inappropriately in the Twitter joke trial.
In the last minute remaining, I want to consider drug-driving. I am strongly in favour of a drug-driving offence that mirrors that of drink-driving. There is definitely a problem with people who are incapable of safely driving a vehicle being in a situation where they could cause serious to harm to others. That is right and I accept that the current position requires too high a level of proof. However, one should not use this measure as an excuse to deal specifically with illicit drugs; it should be tailored to existing levels of impairment. In fact, alcohol seems to be the most worrying issue.
A specific issue has been raised with me by Napp Pharmaceuticals, a company in Cambridge that is concerned about the effects of the proposed legislation on patients taking legitimate, prescribed medicines, in particular to manage chronic pain. There is significant evidence to suggest that their ability to drive may not be impaired compared with other drivers, but the patient would have the onerous burden of proof to show that they should be allowed to drive. Napp Pharmaceuticals is concerned about the consequences of that and would rather stick with the approach of the Road Traffic Act 1988. I hope the Government will reflect carefully on that.
There are some very good things in this Bill, but while I declare my interest in justice for families and concern about miscarriages of justice in the family courts, I have to say that it is also a missed opportunity. Lord Bingham’s excellent book “The Rule of Law” identifies eight principles for the rule of law. The first two are that the law should be accessible and not depend upon judicial discretion. That underlines that law should be comprehensible to non-lawyers and hence it should be possible to identify miscarriages of justice even when appeals are not allowed by the Court of Appeal. The Court of Appeal should not be seen as having a form of papal infallibility.
My academic qualifications are in science rather than law, and that is where my concern about family court proceedings comes from. Rachel Pullen’s case—I recently assisted her to send it to the Grand Chamber of the European Court of Human Rights—is a perfect example of that. She was deemed on the basis of a single expert report to have a significant learning disability and not to have the capacity to instruct a solicitor. I am, however, lucky enough to have had access to a second expert report, the comments of her GP and an IQ assessment for employment, and to have met her. All those things point to the original expert being plainly wrong. However, the case has been considered by the county court, the Court of Appeal, the House of Lords Judicial Committee and the initial Chamber of the European Court of Human Rights without that being picked up.
Sadly, that case is not unique. I have spoken previously in Westminster Hall on 21 March—at column 244WH—about other people whose mental capacity has been wrongly removed from them and I will not repeat those details now. If a case can travel through the appellate system to Strasbourg without the scientific facts being properly determined or even open to challenge, there is a serious problem.
A more recent case is unique because the mother kept her capacity, having faced its removal after an allegation of querulous paranoia by her barrister. She had been asked to spend £3,880 on an expert’s fee, even though the NHS had previously found no diagnosable conditions and her employer stated that she seemed fine. Nevertheless, she managed to win the battle as litigant in person with the assistance of a McKenzie friend. That does, however, raise serious questions about equality of arms. Nothing in the Bill will improve the situation when many people have their capacity wrongly removed or improve the quality and accountability of scientific expert evidence. There are two possible solutions: a Daubert procedure would assist for a case-by-case review, while allowing academic access to secret proceedings, as I suggested in my family justice private Member’s Bill, would provide a level of quality control currently lacking.
The proposal in the Bill to allow proceedings to be broadcast could help to improve the integrity of the legal system. Early-day motion 536 refers to a case heard on 2 May. Initially, the McKenzie friend who assisted the mother in that appeal told me it had been allowed, but after I chased it for six weeks’, a transcript was found stating that it had been lost, which caused me concern as I had been told that it had been allowed. I therefore wrote to the court in July requesting that I be allowed to listen to the official recording, but I got no response.
Hence in October I wrote to the Minister. I then had a response from both the Court and the Minister saying that the rules had been changed and that I could not now listen to the hearing. I wrote asking for the reasons, and it was only in late December that I was told by the judicial office that the Judicial Executive Board had decided not to allow people to listen to official recordings. Its argument was that in theory a recording in open court could include legally privileged material. I would argue that someone speaking in open court who knows that everything is being recorded would not expect the conditions needed for privilege. The judicial office has also said that the JEB is not subject to the Freedom of Information Act, and hence we have no idea who participated in the meeting that made this decision or when it was taken.
To me that looks like a cover-up, but we do not know. If it is, we need to know who was involved, how high it went and why. It is puzzling that people have failed to say when this rule change happened. If the pronouncement of the judgment was broadcast, under clause 28, we would have an independent copy of the hearing and would be able to check why there was a discrepancy between the report of the hearing and the official transcript. Another thing missing from the Bill is a proposal to make the JEB clearly subject to the Freedom of Information Act. It is arguably caught by the Judicial Studies Board being subject to FOI, but that is not made explicit in the Act.
The difficulty in obtaining transcripts of judgments is an important problem that is causing difficulties in ensuring that the appellate system operates properly. There were two cases in Birmingham recently where there was no transcript on the file. It took almost three months to obtain the transcript in one of these cases. The Bill does nothing about this. Furthermore, an appeal from the family proceedings court to the county court can exhaust domestic proceedings. That might be good for anyone wishing to take a case to Europe, but it raises a further question about the integrity of the legal system if the Court of Appeal cannot look at something before it leaves the domestic jurisdiction. The Bill, in creating a single family court, might deal with this, but it is a matter of detail that needs to be sorted out.
I have helped litigants in person with three cases that involved appeals in the Court of Appeal where the appeal was allowed. I will not go into the details, because I do not have time, but all the appeals were allowed. One can have no certainty that any of these appeals would have gone before the Court without my involvement, and I am not a lawyer. I see many cases that I think would win appeals, but it is simply the procedural complications of getting the paperwork together, including access to the original case files and judgments, that prevents this.
I am also aware of a number of cases where a party is frightened to appeal because they are likely to face the judge in the Court of First Instance again and fear the use of judicial discretion to punish them for appealing. To me, appeals that have the potential to be allowed but which are not heard are miscarriages of justice just as much as the case referred to in early-day motion 835—a case where the parents were banned from talking to the media in any way. The Bill does nothing to deal with any of those situations.
The Bill does deal with conflicts of interest relating to judges—in paragraph 8 of schedule 9—but it remains the case that a firm of solicitors can act for parents in one case against a local authority and act for the same local authority in a second case, even with the same individual solicitor doing the work. That is a clear conflict of interest and gives rise to what is known as repeat player prejudice. I have seen a number of cases where this conflict of interest appears to have had an effect on the advice given and the consequent outcome for parents. A social worker previously told me how he had colluded with parents’ solicitors to ensure that the parents lost. However, this conflict of interest appears to be tolerated by the system, and the Bill proposes no modification.
The House of Commons often does not manage to scrutinise proposals effectively where there is not a proper party or adversarial division. This, even if I rushed my speech, is one of those areas.
I am afraid I will sound rather slow after the previous speaker. The hon. Member for Birmingham, Yardley (John Hemming) made a speech at great speed; he managed to read it quickly into the record—well done.
My right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) added his support for GPS tagging, which we will explore further in Committee. He made some sensible comments on restorative justice, emphasising the need for consent and full involvement of the victim at all times—something we will also explore deeply in Committee. We are very keen to ensure that the quality of restorative justice is maintained.
My right hon. Friend the Member for Blackburn (Mr Straw) spoke of the tensions between national and local policing, and gave his support, following Norgrove, for the single family court, as did the hon. Member for Enfield, Southgate (Mr Burrowes). My right hon. Friend the Member for Blackburn gave a succinct analysis of what is becoming known as the “bash a burglar” clause, and promoted his memoirs. We all look forward to the film of those memoirs. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) suggested that the clause was not actually that great a change; in fact, he said it was not a change at all. The hon. Member for Dewsbury (Simon Reevell) discussed at some length the complexities and contradictions in the Bill. He highlighted some issues that I think will get a thorough airing in Committee.
The right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) raised concerns about the anxiety of witnesses arising from the televising of court proceedings. We look forward to exploring those concerns fully in Committee. We are keen to ensure the protection of witnesses, victims, jurors and also defendants through the court process.
My right hon. Friend the Member for Leicester East (Keith Vaz) and my hon. Friend the Member for Leeds East (Mr Mudie) mentioned something that I think will be of grave concern to many Members: the right of appeal on family visit visas. There are fears about the serious impact on families. Bearing in mind the high level of errors in decision making, we are keen to discuss that further. My right hon. Friend the Member for Leicester East went on to discuss the welcome changes to drug-driving. We can all commend the hon. Member for Croydon Central (Gavin Barwell) for the work he has done in that area.
My hon. Friend the Member for Stretford and Urmston (Kate Green) spoke with great insight on diversity in the judiciary. We strongly welcome those changes. We are also keen to explore the issues raised by Alan Milburn in his social mobility report on the under-representation of state-educated people in the judiciary.
The hon. Members for Gainsborough (Mr Leigh), for Congleton (Fiona Bruce) and for Cambridge (Dr Huppert) spoke of the importance of amending the Public Order Act 1986. The hon. Member for Gainsborough asked that the Labour party keep an open mind, and I assure him that we will do just that.
My hon. Friend the Member for Middlesbrough (Andy McDonald) is concerned about whether there will be sufficient resources to fight organised crime, and we share those concerns. My hon. Friend the Member for Hayes and Harlington (John McDonnell) discussed the scandalising of the judiciary, suggesting that it should not just be a right, but perhaps become a duty. He discussed clause 23 and expressed concerns about the practices of bailiffs, and I assure him that we will be exploring those concerns in Committee.
The hon. Member for Foyle (Mark Durkan) talked about how the National Crime Agency will operate in Northern Ireland, and the Government will need to respond to his concerns. The hon. Member for Mole Valley (Sir Paul Beresford) talked about the hotbed of crime that is his constituency, and about the Child Exploitation and Online Protection Centre. We have concerns about child protection and the NCA, which we will explore further. We are happy to give support to much of the Bill and we will not vote against it on Second Reading.
On self-defence, there is agreement across the House that a victim of burglary, who is compelled in traumatic circumstances to use force for their own protection, should be protected in law. Burglary is a terrible and invasive crime. Victims must have the right to defend themselves and their loved ones, and know that the law is on their side. The Labour Government changed the law to give that support to victims of burglary. In 2008, Labour gave victims the right to use “reasonable force” to defend their homes. That is not “reasonable force” as decided by a risk assessment; it is force that, as the Crown Prosecution Service and the Association of Chief Police Officers put it, is
“what you honestly and instinctively believe is necessary in the heat of the moment”.
The current law provides a complete defence for those using reasonable force in self-defence or the defence of their loved ones or property, and according to the Director of Public Prosecutions it works very well.
As I was about to say, we are ready and willing to engage with the Government on any proposals they have that might further improve the law. We want to see the system work as best it can for victims of crime and, of course, to see justice done in every case. However, concerns have been expressed by many outside this place, and these need answering. The Government need to assure the public that the change does not add confusion and explain exactly how it adds protection. The line between “disproportionate” and “grossly disproportionate” is still unclear.
While we are talking about how people protect themselves during a burglary, we should be just as keen to discuss how we punish a burglary or prevent it in the first place. My right hon. Friend the Member for Tooting (Sadiq Khan) has uncovered disturbing statistics about some of the sentences being handed to burglars with strings of previous convictions. The Government are introducing a number of measures in the Bill on community sentencing and the use of measures such as tagging. We need to ensure that they are used appropriately. When the Bill was introduced in the other place, it included, at the end of part 2, a rather vague clause that promised the Secretary of State for Justice scope to do what he pleased in the area of community sentencing. It is therefore welcome that, after a wait, we find that what pleases the Secretary of State has been laid out in schedule 15 for debate in this House. We welcome the inclusion of proposals permitting the extended and earlier use of restorative justice. Restorative justice is an effective tool that can do a lot to improve the experience of our justice system and what it offers victims of crime. There are questions that need to be answered on the details, however. How, where, by whom and how uniformly will restorative justice be provided?
There is much that we agree on. In his foreword to the long anticipated response to the Government’s consultation on community sentences, the Secretary of State states that, in order to be both “credible and effective”, community sentences need to strike a balance between punishing an offender for their wrongdoing and rehabilitating them to prevent a repeat offence. He also rightly notes that the public reserve some concerns about community sentences. The ambition of improving public safety and public confidence is strongly welcomed and shared across this House. In order to be “credible and effective”, however, the Secretary of State needs to get this right. The Government say they want all community sentences to include a punitive element, unless there are exceptional circumstances. We support the premise, but two questions arise: what counts as a “punitive element”, and what counts as “exceptional circumstances”? Until we hear the answers to those questions, we will not know whether there is anything new in the Government’s plan or whether the change is nothing more than window dressing.
On the extended use of tagging, we do not want this used inappropriately as a cheap alternative to prison for those who should be behind bars. If the public are to find such sentences credible, they need to be certain that they will be used with great discretion and only when wholly appropriate. I note that in 2011, eight adults convicted of rape and hundreds convicted of serious violent offences were given community sentences. It is also timely to mention the point that the public need to have faith that those supervised in the community rather than in prison are being expertly and safely supervised. This is an area where—amidst cancelled pilots and detail-light plans for managing offenders’ risk—we find some cause for concern. We look forward to exploring that further in Committee. In particular, I look forward to examining in more depth the Government’s intentions on provision in the community for female offenders. The Opposition also strongly support the provisions in schedule 13 that seek to facilitate greater diversity in judicial appointments.
There is much that we agree with in the Bill and we will not vote against it on Second Reading.
I am grateful to everyone who has contributed to what has been a wide-ranging debate—irrespective of whether they did so at normal speed or, as in the case of the hon. Member for Birmingham, Yardley (John Hemming), at turbo-charge speed.
As my right hon. Friend the Home Secretary noted when she opened the debate, we need to do more to protect the public against serious and organised crime, and to improve further the efficiency responsiveness and transparency of the justice system. I welcome the broad support of a number of provisions from all sides, including from the hon. Member for Darlington (Jenny Chapman) who wound up the debate for the Opposition.
In establishing the National Crime Agency as a key objective of the Bill, it also brings forward, as we have heard today, many other noteworthy reforms. The package of court and justice reforms introduced in part 2 will deliver a swifter, more open and effective courts and tribunal system while improving judicial diversity and establishing a new tool to tackle economic crime—namely, deferred prosecution agreements. For that work, the House should pay tribute to my hon. and learned Friend the Member for Harborough (Sir Edward Garnier). In many instances, these reforms will have a real and meaningful impact on those who use the court and justice system. For example, the establishment of a single family court will make the court system more accessible and less confusing for families who come into contact with it.
We are also determined to improve the public’s confidence and understanding of the criminal justice system. That is why this Bill introduces measures that require courts to include a punitive element in every community order for the first time. This will help bring community orders into line with other sentences such as fines and custody where it is clear that punishment is a key purpose of the sentence.
Furthermore, the introduction of court broadcasting, initially in the Court of Appeal, will help to demystify the justice system. Justice must be done and seen to be done if it is to command full public confidence.
I think those receiving the sentence will know. I cannot set out the details, because that is for the courts. Anything that requires the deprivation of liberty at a particular time or the performance of a task at a certain time can contribute to the punitive element of a sentence.
Let me move on to deal with some of the detailed points raised during the course of the debate.
As a former Lord Chancellor, as well as a former Home Secretary, the right hon. Gentleman will surely wish to join me in paying tribute to the judiciary, who will be the first people to be televised giving verdicts in the high courts. I am sure he will agree that that will help to explain the decisions they come to.
Returning to detailed points in the debate, I am delighted that my hon. Friend the Member for Gainsborough (Mr Leigh) congratulated the Government on clause 38. Having been a Member of the House for 15 years, I have to say that this is the first time I have ever heard him do so for any Government, and I look forward to many more such occasions in the coming months and years.
As my hon. Friend says, I should not get too excited.
The shadow Home Secretary asked how the NCA would work with police and crime commissioners. The PCCs have a national role in tackling the sort of serious and organised crime whose pernicious effects are felt in every community in every street in the UK. They will be key strategic partners for the NCA. Keith Bristow has already spoken with the newly elected commissioners as part of the central PCC briefing that the Home Secretary hosted in November. He and the wider NCA will obviously continue to engage with them, including through the Association of Police and Crime Commissioners.
The right hon. Lady raised the issue of the tasking element, as did many other Members. She asked whether direct tasking by the NCA director general would cut across the authority of police and crime commissioners. I do not believe that there will be any conflict. Fighting serious and organised crime is a shared concern of the NCA and the PCCs. Tasking by the NCA will be used to fight the kind of cross-boundary serious and organised crime that is more difficult for individual forces to tackle, and to which PCCs must already have regard under the strategy policing requirement to which they, as well as just chief constables, must sign up.
The right hon. Lady also asked about the framework document. It will be a joint statement of intent by the Home Secretary and the director general of the NCA, setting out how they will work together. The final NCA framework document cannot be produced until after Royal Assent; it will be published and laid before Parliament in due course.
There was much discussion of the self-defence clause. The right hon. Member for Wythenshawe and Sale East (Paul Goggins) referred to it, as did my hon. Friend the Member for North West Cambridgeshire (Mr Vara) and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd). We are not changing the fundamental premise that people can use only force that is reasonable in the circumstances as they believe them to be. What we are saying is that when a person is attacked by an intruder in his or her home, in the light of all the terror that that brings—greater, probably, than the emotions that would be aroused in someone defending commercial premises—it may be reasonable for that person to use a greater degree of force than is permitted by the current law. Householders should not be treated as criminals if they have used force that was reasonable in the circumstances as they believed them to be, even if that force turns out to be disproportionate when viewed in the cold light of day.
My hon. Friend the Member for Dewsbury (Simon Reevell) asked why the provision was limited to householders. It is attacks by intruders in the home that cause the greatest public concern. A home is supposed to be a haven, a refuge, a place where people have every right to feel safe, and that is why we believe that householders deserve special protection.
I am grateful to many Members, including the right hon. Member for Wythenshawe and Sale East and the hon. Member for Stretford and Urmston (Kate Green), for their support for the restorative justice proposals. A number of interesting details emerged, which I shall certainly consider. I share the desire of the right hon. Gentleman and the hon. Lady—and, I think, of the wider House—to develop the idea of restorative justice so that it becomes much more important to the way in which we continue to cut crime and prevent reoffending. I know that it is one of the key elements that my right hon. Friend the Justice Secretary wants to introduce in order to continue our success in that regard.
The right hon. Members for Leicester East (Keith Vaz) and for Blackburn (Mr Straw), among others, mentioned family visit visas. The current family visit visa appeal right no longer serves its intended purpose. The appeal right for visitors is an anomaly: no other types of visit visa, such as business and tourist visas, attract the full right of appeal. People who are refused visit visas may reapply as many times as they like, and may provide further information in support of their applications. The expenditure on family visit visa appeals constitutes a disproportionate use of taxpayer funding for the benefit being sought. Removing the full right of appeal from family visitors will save £107 million over the 10 years following enactment.
Inevitably, questions were asked about the efficiency of the system. Of course the system can always be improved. In 2011, however, 79% of family visit visa applications were granted at the initial decision-making stage, 2% were granted as a result of an allowed appeal, and a further 2% were granted after entry clearance manager reviews following the receipt of appeals. That demonstrates that the majority of people are able to follow the application process, and are successful.
I join others in congratulating my hon. Friend the Member for Croydon Central (Gavin Barwell) on his successful campaign following the tragic incident of drug-driving and its effects in his constituency. He asked various questions. We aim to improve any devices that meet the requirements for testing at a time as near as possible to the commencement of the new offence, which is planned for 2014. I hope that that gives my hon. Friend some reassurance. My hon. Friend the Member for Castle Point (Rebecca Harris) asked about medically unfit drivers; I am happy to tell her that that specific issue will be the focus of a meeting tomorrow.
I look forward to exploring those and other issues in Committee, along with the Minister of State, Home Department, my hon. Friend the Member for Taunton Deane (Mr Browne), who is the Minister responsible for crime prevention. I believe that the Bill will greatly enhance the national response to serious and organised crime, while delivering a swifter, more transparent and more effective courts and tribunals system, and I commend it to the House.
Question put and agreed to.
Bill accordingly read a Second time.
Crime and Courts Bill [Lords] (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Crime and Courts Bill [Lords]:
1. The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
2. Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 14 February.
3. The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Consideration and Third Reading
4. Proceedings on consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.
5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
6. Standing Order No. 83B (Programming committees) shall not apply to proceedings on consideration and Third Reading.
7. Any other proceedings on the Bill (including any proceedings on consideration of any message from the Lords) may be programmed.—(Damian Green.)
Question agreed to.
Crime and Courts Bill [Lords] (Money)
Queen’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Crime and Courts Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of—
(1) expenditure incurred by a Minister of the Crown or a government department by virtue of the Act,
(2) expenditure incurred in making payments to persons who select judges or who select selectors of judges, and
(3) any increase attributable to the Act in the sums payable under any other Act out of money so provided.—(Damian Green.)
Question agreed to.
Crime and Courts Bill [Lords] (Ways and Means)
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Crime and Courts Bill [Lords], it is expedient to authorise—
(1) the imposition, on persons liable to pay sums adjudged to be paid by a conviction or treated as sums adjudged to be paid by a conviction, of liability to pay amounts in respect of costs of collecting sums of that kind,
(2) the charging of court fees by virtue of the Act,
(3) charging by the National Crime Agency for the provision of services or facilities,
(4) provision about functions in relation to regulation of bailiffs and enforcement agents, and
(5) the payment of sums into the Consolidated Fund.—(Damian Green.)
Question agreed to.