House again in Committee.
[Amendment No. 89 not moved.]
Clause 10 agreed to.
After Clause 10, insert the following new clause-
“POWER TO SEARCH FOR FIREARMS
If a police constable has reason to believe that a person or persons in a particular area may be carrying firearms, he may arrange-
(a) for the area to be sealed off; and (b) for the searching for firearms of any people or vehicles in that area, by whatever means he considers appropriate.”
The noble Lord said: This is the third occasion on which I have tabled an amendment to give greater and clearer powers to the police to fight gun crime, and it may not be the last. Fortunately, the Home Office brings forward so many new Bills that there is no problem finding an appropriate legislative slot. This Bill is particularly appropriate for my amendment for a new clause, to be inserted after Clause 10, to empower the police to seal off an area and search people for illegal guns.
I make no apology for my persistence because, as the situation develops, the case for deterring and preventing gun crime becomes more urgent. Not only is the murder rate in England and Wales increasing dramatically, by over 30 per cent in the past 10 years—that compares with an increase in the total population over the same period of only 2 per cent—but in 2004-05, the latest year for which figures are available, 77 murders were committed with guns, which is 12 per cent more than in the previous year. Nearly one in 10 murders is classified as killing by shooting.
I also remind the Committee, and the Government, that during the same 10 years the number of offences involving firearms rose from 13,000 to 23,000, an increase of 77 per cent. Of course, much worse than the number of shootings actually committed—many of which are the result of gang warfare that is often linked to drugs—is the fear that the spreading gun culture engenders among the general population. In certain areas of Britain, there is a widespread belief, whether justified or not, that guns are routinely carried on our streets. In my view, the Government have an obligation to which they should attach the highest priority to reduce, indeed to minimise, such fear.
There can be no more corrosive influence on the quality of life, for rich or poor, young or old, male or female, black or white, than fear for personal safety. Many years ago, in quite another context, President Roosevelt tried to encourage the American people with his famous exhortation,
“the only thing we have to fear is fear itself”.
The risk of carrying a gun must be made unacceptably high. Fortunately, the remedy is simple and cheap. I refer of course to metal detectors. Most of the population are fully familiar with metal detectors from their everyday lives, particularly at the entrances to many buildings and before boarding all flights. Who of us, however foolish, would presume to attempt to pass through security at an airport carrying a gun? Not only is the hand-held metal detector rapid to use, but it does not involve touching the persons of those subject to the check—that is important. It is a great deal easier to search people for guns than it is for drugs. The police are already familiar with the use of such detectors.
My amendment would allow the police to seal off any area and check for those who are illegally carrying guns. They could use the power as and when they thought proper. I am well aware that there are concerns, fuelled by recent events—particularly perhaps at Forest Gate on 2 June—about the judgment of the police in using their existing anti-terrorist powers and the adverse consequences that there can be for race relations if these powers are not used sensibly and sensitively. I recognise that the power that I propose could, if used inappropriately, result in problems of that sort. I believe that the police understand these dangers and learn from every unfortunate accident. If, however, the drafting of my amendment could be improved to reduce further that risk, without affecting the purpose of the powers that I want the police to have, I would be delighted to consider changes.
I wish to deal with two other points. First, would the police like to have these powers? Secondly, do we need them? When we last discussed the issue, on22 May, the noble Lord, Lord Bassam, who is sitting in his place, quoted the noble Lord, Lord Condon, as having said in March 2002 that the view of the police service was that there was an adequate menu of powers in relation to gun crime.
I fear that, as so often, the Home Office is unaware that things have moved on in the past four years. Earlier this week, I discussed my amendment with ACPO. It confirmed that it does indeed have powers under a number of Acts of Parliament, but that those powers vary and have to be used in specific circumstances. ACPO told me that it always welcomes simpler powers and that my amendment seemed to be, and I quote its words, “ideal from our perspective”.
The noble Lord, Lord Thomas of Gresford, a most experienced and respected lawyer, got it exactly right when, speaking from the Liberal Democrat Front Bench on 22 May, he said:
“The considerable merit of the amendment… is that it is a very simple statement of powers. I have no doubt that the powers exist, but they are to be extracted from a number of legislative instruments”.—[Official Report, 22/5/06; col. 647.]
My amendment seeks to reassure those of our citizens who live in fear of gun crime that the police have the clear means to make it far more risky than it is today for anyone to carry an illegal firearm anywhere. I beg to move.
The noble Lord, Lord Marlesford, has been very consistent in his concern about this matter. I well recall supporting some of his moves in respect of registered firearms. He is quite right to point out that my noble friend Lord Thomas of Gresford supported one of his amendments and that we voted for that amendment. The noble Lord, Lord Marlesford, has tried a number of avenues to bring attention to this very serious problem, including during discussions on the Violent Crime Reduction Bill. I say to him and the Minister that we support the principle behind this amendment. As the noble Lord rightly points out, gun crime has grown at an alarming rate in this country, doubling since 1997. The number of crimes involving imitation firearms has quadrupled.
The vast majority of gun owners use them legally and responsibly. The aim of further changes to the law must be to tackle the threat from weapons held or used illegally. Gun crime is obviously a complex matter; tackling it requires a holistic approach. We need intelligence-led policing to attack the organised criminal gangs responsible for many shootings. In order to achieve a better conviction rate, we need to improve the protection offered to vulnerable witnesses to encourage more people to come forward.
I have studied this amendment carefully. While its aim is to be commended, I have some reservations about its wording, although, as I said, not its principle. We worry that the amendment, as currently phrased, may be too broad. The police, quite rightly, already have the power to stop and search people of whom they are reasonably suspicious. However, the amendment appears to give them the ability to stop and search anyone living near or standing beside the person of whom they are suspicious. Given that the area that the police may seal off for this purpose is completely undefined, this stop and search could be extremely extensive.
Setting all these issues aside, I believe that we need to take forward and discuss this matter. Bearing in mind our concerns, I ask the Minister whether she would consider it appropriate—in order to tease out some of the issues reflected in this amendment—for the noble Lord, Lord Marlesford, and a number of us who share his concerns to discuss this matter further and to see whether the existing provisions are appropriate. If not, is there anything else that we can do to draw attention to the serious problem that we face in this country and together to reach a solution on Report? To do anything at this stage could be counterproductive. We are aware that there are laws, but I think that we need meetings in which the situation is explained so that we can take this issue forward. So, the support is there, but we need far more information from the Minister. This may not be the appropriate time to talk about these issues. I press the Minister to say how she will respond on this matter.
I strongly support this amendment, to which I have added my name. My noble friend Lord Marlesford has indeed shown admirable persistence in bringing this matter forward for debate and he is absolutely right to do so. He has raised the matter on three previous occasions: in March 2002; in October 2003, during discussions on the Criminal Justice Bill, which was the first occasion on which I had the opportunity to take part in these important debates; and, most recently, during our debate on the Violent Crime Reduction Bill, just before the Whit Recess.
The noble Lord, Lord Dholakia, is right to stress that the majority of firearms are legally held and responsibly used. None of us is trying to target legislation at those groups. My noble friend Lord Marlesford was also right to point out how real the fear of gun crime and the illegal use of guns is for people in some areas. It makes life unpredictable and, sometimes, unbearable. Firearms used for illegal purposes are the scourge of a generation in some areas. They are perceived to be a great threat. Even if that is not true in all areas, it is certainly perceived as such. Often it seems that guns are used on our streets by criminal gangs, often those trading in drugs or people-trafficking. They have no regard for their trading enemies’ lives and little if any regard for the safety of the public on the street. It is that by-product of their violence that we also seek to contain.
The considerable merit of the amendment is the simplicity of the statement of the powers that my noble friend seeks to confer on the police. I know that there is always a tension in legislation and that one wants to achieve a clearly defined result by giving a simple body of powers—it gets more and more difficult to define such powers effectively so that one does not give rise to unintended consequences. I am aware that powers already exist that enable the police in certain circumstances to search people, but those powers are to be extracted from a number of legislative instruments. If the Government wish to give a clear message about crime—perhaps I should say “continue to give”, because I know that they, especially the Minister, have been trying to give that message—my noble friend’s amendment would assist them to do precisely that.
I am interested to hear that my noble friend has been in contact with ACPO and that he has had a positive indication from its members that they would welcome a clarified and simpler power. I appreciate the difficulties that police officers face in trying adequately to protect the public while at the same time responding rapidly to violent circumstances. It is the prevention of crime that is so important and that my noble friend is trying to achieve by his amendment. I know that the Government in other measures are seeking to prevent the carrying of weapons. We can see that in the Violent Crime Reduction Bill, in which they are giving teachers greater and welcome opportunities to search pupils for bladed weapons. I was interested to read in the press this weekend that Mr McNulty, the Minister in another place, is minded to see whether he can widen the provisions in the Violent Crime Reduction Bill that have already gone through Committee stage in this House. We await his proposals with interest.
The Government will not find us churlish in responding to measures that they put forward that will properly give powers of search, whether to the police or to other responsible and appropriate bodies. It is right that we should focus our attention on my noble friend’s amendment for its positive attributes, but I also fully respect the view expressed by the noble Lord, Lord Dholakia. I am grateful to hear from him that he supports the principle behind the amendment and that he is keen to work with my noble friend to see what can be achieved by way of better drafting. I understand what he says with regard to his concerns about the power appearing to be too broad. I say “appearing”, because I know that my noble friend’s intention is that the power would not be too broad and that there would not be leakage across the border of a defined area—I know that he is trying to get a carefully targeted area in which the police can operate. I am sure that my noble friend will be at one with the noble Lord on that point.
Of course it is absolutely vital that in giving any new power to the police in sensitive times—and, indeed, on any occasion—we should ensure that we do nothing to inflame sensitivities in various communities about how they may be treated differently or disadvantageously as opposed to other communities. There is no way that one wants to upset community relations. On the other hand, the best communities are well regulated, secured and protected from people who carry weapons.
I look forward to hearing the Minister’s response, even if she is not able to accept the amendment tonight. Given her past responses, I think that we are going to be disappointed, but I hope that instead of full disappointment we will receive some encouragement. I hope that we will hear from the Minister that she wants to engage in discussions over the summer so that we can by agreement come up with an amendment that can go in the Bill in the autumn to achieve on Report what my noble friend justifiably wants: the greater protection of the public.
I immediately add my voice to those of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Anelay, in commending the noble Lord, Lord Marlesford, on his perseverance in bringing forward this amendment, which, as others have mentioned, he most recently tabled in the passage of the Violent Crime Reduction Bill. This is the fourth time that we have had the enjoyment of considering this issue. I am afraid that I am unlikely at this stage to be able to give him very much comfort, for the reasons that my noble friend Lord Bassam outlined when debating that Bill.
I absolutely accept that the noble Lord, Lord Marlesford, accepts that there are provisions in the various legislative frameworks that we have created which would enable what he seeks to be done. Section 47 of the Firearms Act 1968 already provides a police officer with a range of enforcement powers to tackle the issue that the noble Lord has highlighted. For example, the following wide-ranging powers are available to the police: they can require a firearm or ammunition to be handed over for examination; they can search a person and detain them for the purposes of doing so; when a vehicle is involved, they can search the vehicle and require the person driving to control and stop; and for the purpose of exercising these powers, a constable can enter any premises. Those powers are generally available.
I am grateful for the noble Baroness’s confirmation that we are as one in our abhorrence of gun crime and the strenuous efforts that we have made all round this Chamber and the other place to bring forward provisions that will effectively bite on the scourge of gun crime.
I do not know whether the noble Lord may have miscalculated, but I shall correct one statement that he made. He suggested that fatal deaths through gun crime had risen by 30 per cent; in fact, they have fallen by 30 per cent. In the 12 months to December 2005, fatal shootings fell from 73 to 51, a reduction of30 per cent. There has also been a reduction by about 3 per cent in firearms offences, a decrease of 313. But even saying that, I quickly assure him that we cannot be satisfied with any such decrease, because all of us would like the figure to be nil, and so long as it is not nil there is a great deal for us to do.
This Government have made clear that strong commitment to tackle gun crime by virtue of the Violent Crime Reduction Bill, strengthening the existing legislation—as the noble Baroness, Lady Anelay, rightly highlighted. I am very grateful to her for the indication that noble Lords opposite will be supportive of and look in a sympathetic light at provisions that we propose. I can reassure her that I understand the form in which the sympathy normally takes place—followed by a series of Divisions on amendments in all Bills!
Well, I never like to disappoint the Minister. I carefully couched the general welcome of protection of individuals. The noble Lord, Lord Bassam, who has been handling the Bill so ably from the government Benches—from their point of view and ours too—knows that I asked about searches by teachers, as one subsection appeared to give a general power of search. I did not receive an answer. It sounds as though the power that Mr McNulty may outline will be a reaffirmation of that. If the Government are going to introduce a much wider power of search, everybody will have to look at the implications. So the Minister is right: I welcome the objective but I look at the means to get there very carefully, with no hostage to fortune quite yet, I hope.
I rather feared that that might be the case. The noble Lord, Lord Dholakia, was right to pinpoint the issue with this power as one of scope. I understand what the noble Baroness says about not wanting it to bleed into other issues. I very much appreciate what the noble Lord, Lord Marlesford, said about being content to look at the provisions again and seek to narrow them. I cannot give any hope in that regard, but I was very interested to hear the results of the noble Lord’s meeting with ACPO.
We appreciate the benefit of making legislation simpler and clearer, and we welcome ACPO’s views in that respect. However, we have not received any request or indication from ACPO that it wishes an extension of the existing powers in this area. I should be frank in saying that, to date, we have received the opposite impression. However, bearing in mind this new expression of its views through the noble Lord, Lord Marlesford—and we are very conscious of recent events, and therefore the sensitivities with which we should view this—it might benefit us to have a meeting with the noble Lord, the noble Baroness and the noble Lord, Lord Dholakia, if that was felt appropriate, to explore what avenue, if any, there is in this matter. That could not be predicated on the basis that we would be likely to come forward with an agreed amendment, because of the difficulties we have experienced to date in trying to narrow this field.
One of the difficulties we have had on all provisions—and the noble Baroness has been one of the main architects of ensuring this—is that we have a whole series of specific restraints on each exercise of each power in each Bill, which would have to be consolidated in some way that I cannot envisage. A discussion about those issues, however, may be very helpful, as we may all be content thereafter that we have done our best with our existing legislation, and if not, we can see how we could do a little better.
I thank the Minister for that reply. I shall deal first with the figures. I did not say that murder by guns had gone up by 30 per cent. I said that the murder rate in England and Wales has increased by 30 per cent in the past 10 years, and that the number of people killed in the most recent year for which figures are available is up by 12 per cent compared to the previous year. My source for that is a Written Answer given in the House of Commons to Mr Iain Wright on 29 June 2006, so it is pretty recent. It is in Hansard at col. 660W.
I understand now the basis on which the noble Lord makes his assessment. In dealing with firearms we are looking at murder or deaths created by the use of a firearm, and that part has fallen.
Noble Lords will know that a very large percentage of unlawful killings, be they murder or manslaughter, are committed by people known to the victim. This year, for instance, we have had 100 deaths occasioned by domestic violence, the killing by one partner of another, while the year before there were 120. That issue is unrelated to the use of firearms. Deaths occurring from firearms have, by the grace of God, gone down by 30 per cent.
All I can say is that in the column headed “Apparent method”—and it has about 10, including “Sharp instrument”, “Blunt instrument”, “Hitting, kicking, etc.” and “Strangulation”—there is a category for shootings. The figure for 2003-04 was 69, and for 2004-05 it is 77. I am just reading from Hansard, it is as simple as that. The overall figure of 30 per cent is the difference between the 632 in 1994 and the 820 in 2004-05. These are the Home Office’s own figures.
I am not wholly surprised that the Home Office is not always up to date with its own figures. I had not planned to mention this but I will now: only last week the Minister signed a Written Answer to me on whether foreign prisoners who had committed offences could apply for asylum on their release. I put that Question on 26 April, and the reply was given to me last week—nine weeks later. I could not understand it, and am told that it had been written wrongly, which was why to my untutored eye it was gibberish. One of the technical words used was incorrectly written. That is so casual; one does not have great confidence in the Home Office if it can make a silly mistake like that after nine weeks.
The other point is on ACPO. Yesterday I spoke to that part of ACPO responsible for firearms. All I can do is quote what it told me: it may not have asked the Home Office for powers. Nobody is asking the Home Office for anything at the moment because of its internal problems. Let us not take too seriously the judgment of the Home Office at this particular period in our history.
I am glad the Minister is prepared to join our discussions. I understand that she can give no undertaking to accept an amendment. Equally we on these Benches, and possibly the Liberal Democrat Benches too, cannot give any undertaking not to bring forward on Report a further amendment on which we will seek to test the opinion of the House. As is often the case with amendments that the Home Office does not like, it will probably attempt to reverse it when it goes back into the Commons. All I am saying, fundamentally, is that the people of this country who live in fear of firearms would understand and welcome a simple change to the law that they could see as enabling the police to protect them. They would welcome that more than a lot of shilly-shallying at the Home Office, using its “not invented here” approach to anything that anybody suggests from outside. Having said that, I will withdraw the amendment.
Amendment, by leave, withdrawn.
After Clause 10, insert the following new clause-
“POWER TO SEARCH AIRCRAFT INVOLVED IN ACTS OF RENDITION
(1) If the Secretary of State is aware of intelligence that any aircraft entering British airspace is being, or has been or may be involved in an act of unlawful rendition, he may require that aircraft to land at a designated suitable airport.
(2) If any plane is required to land in accordance with subsection (1) a responsible person shall as soon as practicable-
(a) enter the aircraft; or (b) arrange for a police constable to enter the aircraft. (3) If the Secretary of State or other responsible person is aware of intelligence that an aircraft using airport facilities in the United Kingdom is being, has been or may be involved in an act of unlawful rendition then a responsible person may make arrangements to-
(a) enter the aircraft; or (b) arrange for a police constable to enter the aircraft. (4) A person who enters an aircraft under subsection (2) or (3) shall endeavour to ascertain-
(a) whether the aircraft is being, has been or may be used for an act of unlawful rendition; (b) whether a criminal offence has been committed; (c) whether allowing the aircraft to continue could place the United Kingdom in breach of its obligations under the European Convention on Human Rights; and for these purposes the person may search the aircraft. (5) In order to comply with a power under subsection (4) any item may be removed from the aircraft.
(6) For the purposes of this section-
“an act of unlawful rendition” is an act involving the transportation of a person to a territory where international human rights standards, in particular protections against torture and inhuman and degrading treatment, are not observed, such transportation not being in accordance with formal lawful extradition or deportation procedures; “a responsible person” means- (a) the chief officer of police of a police force maintained for a police area in England and Wales; (b) the chief constable of a police force maintained under the Police (Scotland) Act 1967 (c. 77); (c) the Chief Constable of the Police Service of Northern Ireland.”
The noble Baroness said: This amendment has also had a previous incarnation earlier this year in the context of the Civil Aviation Bill. Some people thought that this was possibly not the most appropriate vehicle for it. There can be no doubt that the Police and Justice Bill is an entirely appropriate vehicle, or that this amendment will fit well within it.
It is a simple amendment, seeking to give appropriate powers to the police to search any aircraft at any airfield if there is suspicion that the aircraft may be, or had been, involved in the odious practice of extraordinary rendition. It seeks to ensure that the UK could not in the future be in any way implicated in the practice of extraordinary or unlawful rendition, and would reassure the public that the UK will not condone any aspect of unlawful rendition. Given the volume of news comments and the resulting unease about suspected UK involvement, by adopting this amendment the Government could provide immediate public confidence.
Clause 10 addresses the perceived gaps in existing legislation, in particular the existing restrictions on police powers to stop and search staff, visitors and members of the public at airports to deter theft and smuggling. The Bill also seeks to extend the power to question anyone in or near restricted zones of an airport. The emphasis in the Police and Justice Bill seems to be on confronting criminal activity. It does not enable the police to investigate any suspected breaches of international law governing human rights. This is a serious gap, and one which would be addressed by the amendment we are discussing.
Since the amendment was first moved in December last year—it was moved again in March this year—there has been much more evidence of the practice of rendition and strong circumstantial evidence that the UK has, wittingly or unwittingly, been complicit in the use of its airfield facilities and airspace. I refer to the recent report of an exhaustive inquiry by the Swiss senator, Dick Marty, the report by the Secretary-General of the Council of Europe, Terry Davis, and the most recent Amnesty International reports on extraordinary rendition.
To summarise this new evidence, I cite the case of Bisher al-Rawi and Jamil el-Banna, in which the UK’s involvement in their detention in the Gambia and subsequent rendition to Guantanamo Bay was confirmed by a series of revelations in the course of a judicial review by the High Court of England and Wales. It appears that the UK security services provided detailed information to the Gambian Government and thence to the CIA, enabling the detention, torture and rendition of those two British citizens. Amnesty International, in its report Partners in Crime, Europe’s role in US rendition, concluded that the UK was not only instrumental in the detention of those men, but complicit in their rendition and resulting torture.
Another case concerns Binyam Mohammed, an Ethiopian, who was given leave to remain in the UK, and was seized by the Pakistan authorities and interrogated in Pakistan by both American and British officials—and then transferred to Morocco by the Americans, where he was detained and tortured over an 18-month period. From Morocco, he was rendered by the Americans to Afghanistan for five months, where he was again tortured, and finally transferred to Guantanamo Bay. The only disclosed evidence against Mr Mohammed is statements extracted under torture. Mr Mohammed states that at every stage of his incarceration the British were implicit in interrogation, collusion with the Moroccan authorities and in providing detailed information.
Those cases stand apart from the large amount of evidence of CIA or CIA-leased aeroplanes using UK airfield facilities over a prolonged period. Over 200 identified CIA flights have passed through the UK over the past five years, giving rise to reasonable suspicion that at least some of those flights were involved in extraordinary rendition. Indeed, on 17 March this year, the Transport Secretary of that time revealed that six US planes alleged to be involved in extraordinary rendition had used UK airports 73 times since 2001. Mr Terry Davis remarked in his report that:
“European skies appear to be excessively open … very few countries seem to have adopted an adequate and effective way to monitor who and what is transiting their airports and airspace … existing procedures do not provide adequate safeguards against abuse”.
Given the UK’s obligations under the UN Convention Against Torture and other international instruments that bind human rights provisions, it would appear that the Government are obliged to look into those allegations and to refute them with evidence. However, this amendment does not ask for investigations of the past or for recriminations on any cases, but simply seeks to set up proper arrangements to ensure that there is no further complicity and, therefore, to provide public confidence that we should be seen to be conforming with our international obligations and international law. I beg to move.
I was unable to participate at Second Reading, and my noble friend has made the case for this amendment so compellingly that I would not have been moved to intervene at this stage were it not for the hope of disentangling some of the legal disputations that arose in the course of our debates on the Civil Aviation Bill.
Perhaps I may make it clear at the outset that I offer no criticism of my noble friend Lord Davies of Oldham. In fact, my heart went out to him. He came prepared to discuss the flight schedules of aircraft and found himself, at short notice, involved in discussions about the torture convention. Nor do I complain at all about his officials, who were plunged into unfamiliar waters and found themselves steering between the Scylla of international comity and the Charybdis of being accessories to torture. But today the situation is different. The Home Office team are playing at home and a legal obstacle course holds no terrors for my noble friend on the Front Bench.
May we begin with recognising what is common ground? I have no doubt that my noble friend is as horrified by torture as is the noble Baroness, Lady D’Souza. We all agree that it is not a legitimate instrument for detecting and convicting terrorists, nor indeed a very effective one. It came as a shock to me to learn that personnel—and I hope maverick personnel—of certain intelligence agencies of some Governments take a different view.
Secondly, I hope that there is no discord among us as to the existence of a problem. The concern that motivated the noble Baroness, Lady D’Souza, to move this amendment is not a wild fancy. The shocking instances we discussed on the Civil Aviation Bill, and some of the cases to which she referred a few moments ago, are well documented and I will not seek to repeat them now.
Of course, it does not follow that all members of American intelligence services or security services behave in that way. Some of them I am privileged to know, and I am sure that they would be as horrified as we are. The difficulty may well be maintaining control over personnel operating abroad. What is perhaps as significant as the allegations is the reaction of the United States Government, and it gives me no pleasure to say this. They did not say, “Oh, if this has happened, then we will take every appropriate action. We will co-operate in any inquiry”. When the Canadian Government established an inquiry into the rendition of Maher Arar, the United States declined to participate. In effect, they pleaded the Fifth Amendment.
My friend and former colleague Terry Davis, quoted a few moments ago by the noble Baroness, Lady D’Souza, said on 1 March that most of Europe appears to be a happy hunting ground for foreign security services. We know from the National Air Traffic Services that two aircraft which, from their registration numbers, appear to have been chartered by the CIA have passed through the UK some 200 times. There is a problem and it is a matter of deep concern.
The Government’s response in the earlier stage was threefold. First, they said we would fall foul of our obligations under international conventions. If that were true, the sooner the conventions were renegotiated the better. But as our debates continued, it appeared that they were under a misapprehension. I hope that that issue has now disappeared from discussions.
I hope that it is accepted that any state aircraft—an expression which includes aircraft in military, customs and state service—is provided under Article 3 of the Chicago Convention as not entitled to fly over or land on the territory of another state without authorisation. Surely that would entail giving details of who the operators were and the purposes of the flight. Article 3bis permits that a state which has reasonable grounds to believe that an aircraft flying over its territory is being used for a purpose inconsistent with the aims of the convention may require it to land.
The Government’s second objection to the amendment was that it was unnecessary, an objection which my noble friend advanced a few moments ago in a different context. It is not unusual from the Home Office—it is frequently justified and I do not complain. What was said on this occasion was that there was already power under the domestic law of this country for a constable or other authorised person to enter an aircraft on the ground. We discussed that in the debates on the Civil Aviation Bill. We all agreed that under Section 23 of the Police and Criminal Evidence Act “premises” includes aircraft, and my noble friend Lord Davies referred to Section 17, which gives a power to enter premises for certain purposes, the most important being the making of an arrest. Section 1 empowers a constable to search premises if he has reasonable grounds to suspect that he will find stolen or prohibited goods, and Section 8 empowers a justice of the peace to authorise a search of premises if there is evidence of a serious arrestable offence.
The problem is that none of those provisions is designed specifically for the situation that we are discussing, and it may not be possible to squeeze that situation like a piece of mosaic into any of the spaces created by those provisions. My noble friend's amendment would provide a power designed to deal with a case where an aircraft may be used for extraordinary rendition. We have legislation specifically to deal with terrorism. Why do we not have legislation to deal with rendition?
The third objection was that it is no light matter to search an aircraft using landing facilities in this country or to require it to land. If we were to do so, said my noble friend, it might provoke resentment and retaliation. It was pointed out that the existing provisions that we have been discussing all require reasonable suspicion.
The first response to that is that my noble friend's amendment contemplates requiring an aircraft to land only if the Secretary of State is aware of intelligence that the aircraft is being, has been or may be used for unlawful rendition, and that the aircraft will be searched only if the Secretary of State or other responsible person is so aware. The action would need to be intelligence-based. The standard of suspicion required may be rather lower than that required, for example, by the powers under PACE, but that is because it is difficult to know what is going on within an aircraft without going aboard to see—an aircraft is not transparent. In a matter of such importance, risking a failure to detect may be risking a human life, or at least very serious consequences for the victim.
The second response to the argument about inconvenience and delay is that, if an aircraft is required to land, there will be very little difficulty in having a constable ready and waiting to conduct a search. It would not be a technical operation requiring a highly trained operative. Constables are not all that difficult to find. If the aircraft is already on the ground, the delay is likely to be minimal. My noble friend's amendment is not mandatory; it is enabling. It would confer a power of search and not make a search compulsory in a situation where it was wholly unreasonable.
Mr Terry Davis, announcing some of his findings on behalf of the Council of Europe, declared:
“While most of our member states have mechanisms to supervise the activities of their domestic intelligence agencies as well as the presence of foreign police officers on their territory, hardly any country, with the clear exception of Hungary, has any legal provision to ensure an effective oversight over the activities of foreign security services on their territory”.
That is a deeply disturbing indictment. The amendment moved by my noble friend would at least be a step towards rectifying that.
I support the amendment in the name of the noble Baroness, Lady D'Souza, the noble and learned Lord, Lord Archer, and my noble friend Lord Garden. I shall be very brief because a number of arguments have already been put forward. Suffice it to say that not only was a similar effort made during the passage of the Civil Aviation Bill but a similar amendment was introduced during the passage of several other Bills by my noble friend Lord Garden and, at one stage, by me as well.
The noble and learned Lord, Lord Archer of Sandwell, is right in specifying the scope of the amendment. It creates a power that allows a Minister to require any plane using UK airspace to land if he has information that it is being used for unlawful rendition. It also creates a specific duty requiring planes which have been required to land to be searched. It is also in keeping—and this is probably the most important point—with the Government’s obligations under, and commitment to, the convention against torture and the prohibition of torture contained in the European Convention on Human Rights. Examples have been given, especially in the investigation carried out by Terry Davis, which amount to an alarming report. The explanation on controls over aircraft allegedly used for rendition shows that existing procedures do not provide adequate safeguards against abuse.
The amendment therefore creates a power for the Secretary of State to require planes in UK airspace to land at a designated airport. Once a plane has landed, a chief constable or other senior figure is required to order the plane to be searched, and any items can be removed from the plane to establish whether it is being used for unlawful rendition. If the plane is already using UK airport facilities, there is a similar power to search but no obligation to do so. In the light of the observations made by the noble Baroness and the noble and learned Lord, Lord Archer of Sandwell, we certainly support a provision that enables us not only to examine why certain flights are stopping in this country, and whether they are stopping for a lawful purpose, but to meet our international obligations.
I did not participate at Second Reading, but I am very glad to have an opportunity to say a word of support for this amendment in the name of the noble Baroness, Lady D’Souza. The principles behind the concern are clearly spelt out in the conviction of the Government against torture—I do not in any way question it; I am absolutely certain that it is a genuine and honest commitment. What lies behind the amendment is the repugnance of our whole society at the concept of torture. I always think that we are getting into difficult waters when we start quoting our obligations under conventions, because it begins to say, “We are doing things because we have agreed to a convention which says that we must do them”. The convention is there because we believe these things are wrong. We need to go back to first principles and say that the conventions spell out our judgment on what is and is not acceptable behaviour.
All of that is important, but there is one other point to be made. I hope that the Minister will forgive my repeating in this context an argument I have used before, but I passionately believe it. I believe that the battle to contain and to defeat terrorism is ultimately one to be won in hearts and minds. It is a battle to create a situation in which people are not open to manipulation and recruitment by militant extremists. The difficulty about rendition is that, in a way, with the best intentions, the Government may inadvertently compound the problem—the danger. They say that they are against torture but do not then take the opportunity to follow through, in a tangible, effective and demonstrable way, their commitment to get under control a situation in which torture may be happening. The failure to do so plays into the hands of the extremists, who say, “There you are: double standards. All this is just empty rhetoric. When it comes to putting muscle into the commitment, it’s not there”.
That is why the amendment is so important in the whole strategy to defeat terrorism and extremism.
First, it is unusual to have to respond to a debate that was ably undertaken by my noble friend Lord Davies on 28 March. I add my voice to that of my noble and learned friend Lord Archer in saying that that debate appears to have been very full, and my noble friend did remarkably well, not being burdened as I am by the disadvantages of being a lawyer.
It is absolutely clear that this issue has excited a huge amount of proper concern and attention. I reassure my noble friends, the noble Baroness, Lady D’Souza, and the noble Lord opposite that we agree with the sentiments on the abhorrence of torture.
I shall not repeat all the arguments which my noble friend so ably outlined on 28 March, save to make three key points. First, the Government have made it clear on numerous occasions that we do not, and will not, grant permission for the United Kingdom’s airspace or territory, including our overseas territories, to be used for any unlawful rendition.
Secondly, as my noble friend Lord Davies of Oldham made clear on 28 March at col. 717, we already have sufficient powers under existing legislation to take action of the sort envisaged in this amendment, if it were ever possible or necessary to do so.
This amendment would therefore add nothing to existing legislation. I hear what my noble and learned friend Lord Archer says about that, but it is right to note that he, too, did not identify a gap. He clearly says, together with the noble Baroness, Lady D’Souza, that it would be clearer to have this provision.
Thirdly, in any case, the possibility of using such powers in situations envisaged in this amendment is largely theoretical. As my noble friend Lord Davies suggested, if a jet aircraft is merely passing through United Kingdom airspace, it is unlikely to be in the UK airspace for more than, say, two hours. The suggestion that it would be possible to receive and analyse relevant intelligence, and then take action on the basis of it, is simply not realistic.
These points mean that if the security and law enforcement agencies ever did receive intelligence that could give rise to the type of actions envisaged in the amendment on a time scale that would permit such action, they would already be able to undertake it. The chances of that happening are largely negligible. Of course, I agree with my noble friends and the noble Baroness in whose name the amendment stands that we must do our best to ensure that United Kingdom airspace and territory are not abused in support of unlawful rendition, but that could only be done effectively through international engagement, and long before any hypothetical flight set off.
We are satisfied with our position in this context because there is no credible evidence that United Kingdom airspace or territory have been involved in unlawful rendition. We are also satisfied that at a domestic level we have all the powers we need should we ever become aware of any such flights once they are in transit. I must stress that the Committee should therefore be content with that position. I know that the Council of Europe report has caused a great deal of concern. Perhaps the important thing to remember is that it provides and contains no new evidence relating to the United Kingdom’s position. Your Lordships will have had the benefit of the Foreign Secretary’s Written Ministerial Statement of 20 January. These issues were carefully dealt with at that point.
I am conscious of the time and that the noble Baroness, Lady D’Souza, made it clear that she does not want me to go back into the history and deal with those matters, so I do not propose to do so. However, it is important for me to reassure the House that my noble and learned friend Lord Archer of Sandwell was right to refer to Sections 8, 17 and 23 of PACE and Section 4 of the Public Order Act in relation to powers that, we maintain, still apply.
I am not confident that this point was made, so I should say that constables throughout the United Kingdom enjoy additional powers under Part III of the Aviation Security Act 1982 in respect of non-military airports that have been designated by order of the Secretary of State. Those powers give the chief officer of police for the police area in which the airport is situated responsibility for the general policing of the airport and are without prejudice to other powers enjoyed by the police.
For flights, Article 3(c) of the Chicago Convention states:
“No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof”.
An authorisation to overfly for a normal, innocent purpose would not include authority to overfly for an undeclared extraordinary rendition; therefore, if the evidence justified it, any authority to overfly could be withdrawn and the aircraft could be required to land. The Government therefore believe that the police have all the powers envisaged in this amendment. Of course, whether it would ever be possible to use such powers in practice is, as has been noted, a different matter.
There are various offences relevant to rendition. The unacknowledged deprivation of liberty by any person would constitute a crime, such as false imprisonment, taking away another person or kidnapping.
I know how much difficulty and pain this issue has occasioned. I assure noble Lords that Her Majesty’s Government intend to look at these issues with the greatest possible care.
May we trespass into my noble friend’s very limited leisure? Some of the provisions that she has just discussed are clearly applicable, but there are situations that do not appear to fit into those provisions. Will she find time to discuss them with us, so that we can explore them together?
I thank the Minister for her full reply. I shall give it the detailed attention that it so richly deserves. I also thank the noble and learned Lord, Lord Archer of Sandwell, and the noble Lords, Lord Dholakia and Lord Judd, for their support, and thank Liberty, the organisation that has been working on this amendment for some months.
I would welcome a discussion on this matter. Many of the Minister’s suggestions are interesting, particularly the idea that there should be more international engagement and discussion long before flights take place. That is a valuable suggestion, which I would like to explore further.
The question of there being insufficient evidence that extraordinary rendition is taking place using the UK’s facilities is tricky. For the moment, I shall not talk about the actual mechanisms of trying to redress that. On the question of evidence, I would think that it is not possible to prove that these flights have not taken place. For that reason, it seems logical to try to put together some kind of mechanism in the Bill, or amending other Acts, to ensure that that is impossible in future. Surely it must be possible to devise a workable mechanism that allows aircraft that are already on the ground and which are using refuelling facilities to be searched.
I know that it is late. The war on terror is incredibly important and we are very lucky to be NGOs and not Government, because we have the luxury of not having to make very difficult decisions. But I still stress that the war on terror does not operate in a vacuum and we cannot be seen to be contracting out of any of the conventions that govern human rights, in particular the UN Convention Against Torture, because that is an absolute prohibition. However, I very much welcome the offer of a meeting with the Minister and her suggestions, which I shall consider. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Supply of information to police etc by Registrar General]:
Page 6, line 9, leave out paragraph (d).
The noble Lord said: This is a probing amendment that we have tabled in response to a briefing from the Read Group plc. I make it clear that I have no commercial or any other interest in the Read Group, which provides products and services that enable the direct marketing industry to cleanse their databases of obsolete records. Its understanding is that the purpose of Clause 11, specifically Clause 11(1)(d), is to enable the release of the Registrar General’s death registration data to, among others, credit reference agencies to aid the prevention of deceased identity fraud. From its extensive knowledge and expertise in data from the direct marketing industry, the Read Group has serious concerns about the release of data, especially given the unspecific nature of Clause 11(1)(b), which does not ring-fence the users of the data sufficiently tightly.
Any information that the Registrar General controls, especially about deaths, is of significant value to many organisations involved in the data and direct marketing industry, as well as to less scrupulous organisations. Although the initial intention is for that data to be released only to credit reference agencies, direct mail sent to the deceased is recognised as a tool for deceased identity fraudsters. Therefore, any individual or organisation could easily argue that they send direct mail or clean direct mail databases and have a right to access those sensitive data. That would, at best, enable private organisations to generate substantial income but, most worrying—surely the Government are worried about this—it would leave the bereaved exposed to abuse and targeted fraud when they are at their most vulnerable. I will be very interested to hear the Government's reaction to the amendment. I beg to move.
We support the proposal that the registrar should be given the legislative power to disclose information given on the registration of a death, both quickly and in bulk to specified public and private sector organisations, on the basis that it is to be used for the prevention and detection of crime. Even if the amendment were not put forward as a direct response to a briefing from the Read Group, I would have some sympathy with it on the basis that it is right to probe which organisations the Government intend to give access to such information in this expedited way.
The amendment would delete paragraph (d), which gives the Government the right to extend by order the organisations that can have that expedited access to information. What thought have the Government given to the types of organisation that should benefit from that express service? Is it intended to cover all banks and building societies that issue credit cards and set up bank accounts? In that case, will organisations be given the power in a generic sense, or will those organisations specified by business name be given the power to get that information?
I note that the new clause was introduced in another place only at Report stage so that, of course, debate was necessarily truncated. The Minister, Mr Liam Byrne, stated that the primary purpose of the new provision is,
“to allow the police and other organisations to identify attempts to perpetrate identity fraud”.—[Official Report, Commons, 10/5/06; col. 365.]
Of course, that is sensible enough. It would also be sensible for the Government to tell the Committee what plans they have to open up this expedited procedure to organisations other than banks and building societies in addition to the police services that are named in the Bill. There is a need for a general steer on this.
Of course I appreciate that the information that is registered on a person’s death becomes public property anyway. Indeed, I have been awarded probate for three of my closest relatives, so I know what happens and have been through the legal procedure. I realise that the clause is merely about how quickly that information enters the public domain in the sense that it becomes available first to a favoured group of people as opposed ultimately to being available to everyone.
The noble Lord, Lord Dholakia, referred specifically to the briefing from the Read Group, which I have before me. Like him, I have no financial or other interests to declare as far as that company is concerned. It has expertise in the area and I think that it makes an interesting point. I note that its letter was sent to Dr Reid on 12 June. I appreciate that, by his own admission, he has had a little work to do since then and that he may not yet have had the opportunity personally to respond to the Read Group. But, here we are, the opportunity is available to the noble Lord, Lord Bassam, to help Dr Reid out of a hole.
I do not know that I will necessarily be involving myself in helping anyone out of a hole; I am just going to try to respond to the points.
The noble Baroness and the noble Lord, Lord Dholakia, obviously well understand the purpose of Clause 11 and so I am not going to recite it. The primary purpose, as both the noble Baroness and the noble Lord know, is for the supply of information to allow the police and other law enforcement agencies to identify attempts to utilise the personal details of those who have recently died to perpetrate fraud. This will help to combat impersonation of the deceased fraud, as it is commonly known, and to reduce the impact on the bereaved relatives of the recently deceased who have to deal with the consequences of the identity of their loved ones being stolen.
As the noble Baroness acknowledged, deaths registration information is already in the public domain. More specifically, of course, any person can obtain a copy of an entry in a death register in the form of a certificate, provided that they can identify that entry and pay the statutory fee for that certificate. However, under current statutory provisions, information about all deaths is not available quickly enough to those organisations with an interest in the prevention and detection of impersonation of the deceased fraud, nor is it available in a format that would necessarily assist them for those purposes.
This is important for this reason: identity crime is on the increase. CIFAS, the UK’s fraud prevention service, estimates that there were some 70,000 instances of impersonation of the deceased fraud in 2004, at a cost of some £300 million to the economy, and that at the current rate of growth we will see this reach perhaps 100,000 instances per year by 2007. Those are fairly horrifying and staggering statistics. This provision will help to reduce the existing levels of, and stem the predicted increase in, impersonation of the deceased fraud by allowing the Registrars General for England and Wales and Northern Ireland to supply death registration information to particular organisations as soon as it becomes available. It will also be supplied in a format that can be used effectively by the police and others to help to detect when an attempt is being made to steal or use the identity of a deceased person.
I am sure that the noble Lord, Lord Dholakia, knows well that the effect of the amendment would be to limit the scope of the provision so that the Registrars General could supply information only to the police, special police forces and the Serious Organised Crime Agency. The noble Baroness asked the important question, echoing the noble Lord, Lord Dholakia, about to which other organisations we might want that information supplied. Clearly, other organisations will want to contribute to the fight against impersonation of the deceased fraud. Indeed, it is those very organisations that can probably have an even greater impact on the prevention of this type of fraud. Those organisations might include government departments or agencies or an organisation in the financial services industry—that is much more likely, I would have thought, given that there are apparently big opportunities in that sector—such as banks, building societies, insurance companies or credit reference agencies.
Timely notification of a person’s death can provide the means by which, for example, a marker can be made against that person’s record, his account, his mortgage or his insurance policy so as to reduce the risks of an improper transaction leading to fraud. The disclosure of that information does not raise any data protection issues, as the Data Protection Act 1998 applies only to the living. The Information Commissioner's Office has been consulted on the proposals and has raised no concerns.
A detailed implementation strategy is being developed by the Registrars General. The plan is to have an application process that will establish, from all organisations that have requested to be supplied with information, how that information will be used, how it will be processed, where it will be stored and other relevant issues. When applying organisations have satisfied these requirements, information will be supplied only for use in connection with the prevention, detection, investigation or prosecution of offences and for no other purpose.
It is anticipated that successful applicants will be subject to a regime that will include a licence agreement and appropriate compliance arrangements. It is likely that any misuse of the information may lead to the supply of further information being suspended or ultimately withdrawn. In summary, the proposed compliance arrangements will provide assurance that information will not be supplied to inappropriate organisations and that misuse will be dealt with firmly.
It is worth noting that the Delegated Powers and Regulatory Reform Committee did not in its report on the Bill pass comment on the order-making power that the noble Lord’s amendment would remove. We can take it from the committee’s silence that it did not view either the order-making power or the level of parliamentary scrutiny as objectionable. I am sure that noble Lords will agree that impersonation of the deceased fraud is a real problem that needs to be tackled in the most effective way. We believe that this clause provides an important step in the fight against this most pernicious and insidious of crimes.
I hope that, having heard what I have said—including that we will ensure that a series of processes is put in place and that there will be a limit on the organisations that will have access to this information and a proper operable scheme—the noble Lord will feel able to withdraw the amendment.
Before the noble Lord, Lord Dholakia, returns to the fray, perhaps I may ask one or two more questions. The Minister referred to the report of the Delegated Powers and Regulatory Reform Committee. He will appreciate that this amendment was put forward not because we disagree with the committee’s conclusion that the order-making power was appropriate in this form. We tabled the amendment to challenge how that power is to be used, and not the manner in which orders are to be put before the House.
The Minister grasps the point about how one ensures that expedited information does not reach inappropriate organisations and he gives an assurance that there will be proper processes. He talks about organisations making an application and that perhaps there will be a licensing system. The difficulty is that, because of the way in which Clause 11(1) is currently drafted, we do not have the result to which the noble Lord is directing us. In paragraphs (a), (b) and (c) we have a description of organisations that is so closely drawn that we know who will get the information.
Under paragraph (d), the information may be supplied to,
“a person or body specified, or of a description specified, by order”.
The description is generic. Will it just be building societies or credit reference agencies? We do not know what the body will be. It will not be a closely identified group of companies. Is the noble Lord saying that paragraph (d) will be used to set up a licensing system without it being specified in an order that building societies will be enabled? Will an order state, “We will set up a licensing system whereby other organisations can now apply”? That is what we need to know. If there is that kind of reassurance, that is very acceptable. As Read points out in its subsequent briefing, in all of this, we have to bear in mind that once information is out there, you cannot get it back.
Page 6, line 43, at end insert-
“(2A) In section 32 (police powers to gather information relating to flights and voyages to or from the United Kingdom) after subsection (1) insert-
“(1A) A circuit judge may on the application of a constable of the rank of inspector or above issue a warrant in relation to specified passenger or service information under this section if he is satisfied that there are reasonable grounds for suspecting that there are likely to be circumstances in which it can be required under subsection (2).”
(2B) In subsection (2) for the words “imposed by a constable of the rank of superintendent or above” substitute “of a warrant”.
(2C) In subsection (4) for the words “only if he thinks it necessary” substitute “and a warrant may be issued under subsection (3) only if both are satisfied that is necessary”.”
Page 7, line 6, at end insert-
“(3A) In section 32(5) (interpretation of section) in the list of definitions there is inserted-
““circuit judge” has the meaning given in section 72 of the Courts and Legal Services Act 1990 (c. 41),”.”
The noble Lord said: In light of the lateness of the hour, I shall not move the amendments.
[Amendments Nos. 91C and 91D not moved.]
Clause 12 agreed to.
Clause 13 agreed to.
Schedule 5 agreed to.
Clause 14 agreed to.
Clause 15 [Conditional cautions: types of condition]:
Page 8, line 37, leave out “one” and insert “two”
The noble Baroness said: The amendment stands in my name and that of my noble friend Lord Dholakia. We are addressing a critical shift in the role and function of conditional cautions in the Bill. Hitherto, cautions have been primarily positive in nature, with rehabilitation and reparation being their chief purpose. They were part of the armoury of prevention and a way of keeping people out of the criminal justice system, which is a truly important goal.
Clause 15, however, introduces a third element, that of “punishing the offender”. The purpose of the amendment affirms that punishment on its own is unlikely to be productive; reparation or rehabilitation is needed in conjunction with punishment for a positive outcome. This, after all, is the sort of thing we all teach our children from a very early age. It is absolutely fundamental.
The amendment would achieve the goal of always combining the positive with punishment and it would statutorily endorse the Government’s stated support for this approach. While this is an apparently simple and small change, the implications go wide and deep in terms of how vulnerable children in particular are dealt with, how their relations with the police and offending in general are managed constructively, and, most importantly, how we keep such young people out of the criminal justice system. I beg to move.
I shall give the noble and learned Lord the Attorney-General just another moment to catch his breath by saying that I was as surprised as he was that the previous two groups of amendments were not moved and we thereby reached a point which I thought would not be with us until Thursday.
We now reach one of the most contentious parts of the Bill, where the Government seek to extend significantly the way in which conditional cautions may operate. I shall speak to my Amendment No. 92, which is grouped with Amendment No. 91E.
The Minister in the other place, Hazel Blears, acknowledged in Committee that this was a “radical departure” from current law, at col. 167 on 23 March. The risk is that summary justice could increasingly be meted out in inappropriate cases by the police and CPS, instead of by the courts. I say that with some trepidation with the noble and learned Lord who has responsibility for the CPS before me. He is a redoubtable defender of its ability in this House. I was extremely fortunate to be able to have a meeting with the DPP a short while ago. I feel sure that he will do everything in his power to make sure that the CPS is indeed fit for purpose, to use a favourite phrase of the Government. That is not said snidely; I was certainly very impressed by his determination to lead the CPS forward.
Amendment No. 91E raises interesting questions about what should be the objectives of conditional cautions. Amendment No. 92, in my name, seeks to develop that debate. It would ensure that, if punishment is to be accepted as a new condition in the terms of this Bill, then the punitive conditions that can be imposed should be confined to those specified in the Bill. Conditional cautions were, of course, introduced in the Criminal Justice Act 2003. How could I forget? I sat through the whole Bill over its many months in this House. It specifically confined the imposition of cautions to rehabilitation or reparation. Of course, those are currently being piloted. Clause 15 of this Bill now proposes that conditions can be attached for the purpose of punishing the offender. The Bill includes financial penalties and community service as examples of punitive conditions that could be imposed on cautions. It does not prevent other conditions being imposed in future.
If this clause is to be in the Bill, the punitive conditions should be confined to those included in it now. I do not believe that the Government have yet justified the case for allowing an extension of punitive conditions in future by order. There has been no public debate on the matter. What consultation has there been of those who represent the interests of victims on the future extension of punitive conditions to other disposals? When and what was their response? What consultation has there been with the Magistrates’ Association on these specific matters? Again, what was its advice?
We are taking a very serious step by accepting Clause 15 wholesale; it is a clause that should not be taken lightly. I have sought to group my amendments in four separate groups, in order that we may have—I hope—a constructive debate on the major issues we need to face in deciding whether we accept all the provisions of Clause 15. I very much look forward to the debates we will have tonight and, in particular, on Thursday and at later stages. I hope that by the end of those debates we will have a conditional caution system that is robust and fair, but does not seek to encroach too far on the proper role of the courts.
I am sure that we will have a broader debate on this part of the Bill in due course. The fact that the noble and learned Lord, Lord Lloyd of Berwick, has indicated that he wants to come back to it—as I knew he did—reinforces that. What I propose to do therefore, at five minutes before 10, is to focus particularly on the two amendments in this group, rather than deal with the broader issues indicated by the noble Baroness opposite. I have already noted the questions she raised, and I am sure that we can come back to those. Let me therefore deal with these amendments on the working assumption that there is to be a scheme of conditional cautions, which will include some form of punitive possibility.
Amendment No. 91E seeks to ensure that any conditions attached to a conditional caution must have at least two of the following three objectives: facilitating rehabilitation of the offender; ensuring the offender makes reparation for the offence; and/or punishing the offender. The problem with that amendment is that, overall, the conditional caution scheme will need to be appropriate, achievable and proportionate in relation to the particular offender. I am looking forward to the opportunity of developing more why it is necessary to include a punitive condition.
In many cases it may be appropriate to attach more than one condition. That is one of the reasons why we want to include a punitive condition. Let me give an example: at the moment a conditional caution can be used for someone who has committed a low-level offence but a typical problem might be where one can see that part of the way of dealing with that offender, and therefore the problem that that offender is causing to the community, is perhaps to encourage that person to deal with an alcohol problem. In Lancashire some alcohol treatment programmes are used through the conditional cautioning system.
In some cases, we might say that that is all very well but there needs also to be a modest punitive element to recognise what has taken place. At the moment, for example, for drunkenness the police could simply serve a fixed-penalty notice. That would have a punitive element and the case does not go to court. Or under a conditional caution one could encourage someone to obtain treatment for the problem by imposing a condition, if the offender accepts it—these are all voluntary schemes—that they take some form of alcohol treatment. What we cannot do at the moment is both. We can have either a fixed-penalty notice or a condition for treatment. So it may well be appropriate, if the House ultimately accepts the scheme, to enable one to have both in a particular case.
However, it does not follow that in all cases it would be appropriate to have both objectives. For example, it might be appropriate to encourage an offender as a condition of getting a caution to engage in treatment or to pay compensation but not to do something else. The difficulty with the noble Baroness’s amendment is that it would stop that taking place. For example, a drug-using prostitute might need help with rehabilitation from a drug problem but we do not want to impose a financial penalty as well because that may only drive her back on to the streets in order to pay the fine. The amendment would not help us to meet the requirement of having something appropriate and proportionate to the offender.
Amendment No. 92, in the name of the noble Baroness, Lady Anelay, would limit the types of punitive condition to the two specified in Clause 15: a financial penalty or required attendance. Clause 15 specifies those two as part of a range of options that might be attached to a conditional caution. Those two are spelt out because of the provisions that follow, which fix the amount of the penalty or the number of hours’ attendance at the specified place.
Any number of other conditions could be imposed. Let me give one example, which might be an appropriate moment to leave this part of the debate. At the moment, you could impose a reparative condition that someone deals with a piece of private property that has been damaged, for example where someone has come back from a pub and kicked in a door or something of that sort. If, on the other hand, the property in question does not belong to an individual or is community property in a park and has been fixed by the time the matter is dealt with, because the local authorities dealt with it straightaway, you cannot have a reparative condition related to it; it has already been dealt with or there is no specific victim. There you might want to have something broader in terms of reparation, such as doing some work for the community. That would fall under the heading of punishment, but it is not a financial penalty.
What the noble Baroness wants to know is that safeguards will be in place to prevent any abuse of the new punitive object. The primary way of doing that will be through the conditional cautioning code of practice, which makes it clear that any conditions imposed have to be proportionate, achievable and appropriate to the offending—but particularly, finally, that the offender accepts them. The whole scheme is built on the premise that if the offender does not accept the conditions, they simply do not operate. The offender says, “I am not prepared to accept them”, and the matter goes to court. That is an important safeguard as well.
That may be no more than a taster of the rest of the debate to come, but on the basis of those two amendments, I invite the noble Baroness, Lady Linklater, to withdraw her amendment, and in due course the noble Baroness, Lady Anelay, not to move hers.
I have listened with great interest to what the noble and learned Lord the Attorney-General has said and will read it with great interest in Hansard, because I am not sure that I entirely agree with his remarks or that he has taken fully on board what we have to achieve in this amendment. That is very presumptuous of me. I too look forward to further discussion, because a great deal more discussion is appropriate, proportionate and definitely desirable. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 92 not moved.]