moved Amendment No. 94:

My Lords, this group contains government amendments and I shall address those and the issues which the noble Baroness touched on at an earlier stage.

Government Amendments Nos. 98 and 100 in this group are essentially technical in nature, although they raise issues similar to the amendments to which the noble Baroness referred. Paragraph 12 of Schedule 9 already places a requirement on the chief inspector to act jointly with the Audit Commission—in Wales, the Auditor General—when inspecting police authorities and crime and disorder reduction partnerships.

We consider it important that in these areas, where there is a substantial overlap between the interests of the two inspectorates, there should be no doubt about the expectation of joint working, so that expertise is shared and duplication of activity avoided. However, the inspection powers of the chief inspector are not mirrored precisely in those of the Audit Commission.

Our amendment prevents a situation arising where the chief inspector might be required to act jointly with the Audit Commission, but could not do so because the Audit Commission had no power to inspect the matter in question. It also ensures that joint action is required only where the Audit Commission considers it necessary or desirable to act jointly in the interests of sharing expertise or avoiding duplication. We believe that our amendment will ensure that the joint working requirement functions as intended.

Amendment No. 94 seeks to provide for an element of peer review in the inspection of police authorities. I confess sometimes to being ambivalent about the case for peer review, but noble Lords have not been slow to express their concerns about the perceived lack of independence of the Inspectorate for Justice, Community Safety and Custody.

The amendment could be seen as compromising the very independence that noble Lords on the Liberal Democrat Benches are elsewhere seeking to reinforce. If we take the amendment to its logical conclusion, the Association of Chief Police Officers should be able to peer review the inspection of the police service and the Prison Governors Association peer review the inspection of prisons.

It could be argued, as the noble Baroness has done, that police authorities are a different beast and therefore a special case. In the spirit of wanting to enhance the independence of the inspectorate, we should leave it to the judgment of the chief inspector to determine how inspections are carried out. It may be that the chief inspector concludes that there is scope for some form of peer review, but we should not mandate this and thereby tie the hands of the chief inspector.

Amendments Nos. 99 and 101 seek to remove the role of the Audit Commission in the inspection of police authorities and crime and disorder reduction partnerships. I know that this matter has exercised the noble Baroness, but I do not agree that the Audit Commission does not have a valuable role to play. We can—perhaps outside the debates around this inspectorate—all agree that the Audit Commission can be proud of its record in the inspection of the quality and cost-effectiveness of a whole range of local-authority-run services. It regularly works with other inspectorates; for example, it works with Ofsted to deliver comprehensive performance assessments and joint area reviews of children and young people’s services, and with Her Majesty’s Inspectorate of Constabulary to deliver community safety inspections. Our contention is that, with the wealth of experience that the Audit Commission can bring, it makes sense for it to continue to have a role once the new inspectorate is established.

If I heard the noble Baroness correctly, I think that she was asserting that the Audit Commission should just look at matters relating to money. I have considerable experience of dealing with local and district auditors. To understand where the money is going, they have to understand the management processes and the way in which services are run. With that broader wealth of experience, those conducting audit inspections are very well suited to carrying out joint inspections and work in support of other types of inspectorate.

The joint action provisions in the Bill ensure that the inspected bodies are inspected in a joined-up fashion, where more than one body has a role to play in inspecting them. The area covered by the new inspectorate will necessarily overlap with the remit of the Audit Commission. Given the experience, role and duties of the commission, it is important that the two bodies work closely together to ensure that inspected bodies are not burdened with repeat inspections by one organisation and then another.

Finally, I should mention now, by way of advance notice, that we expect to bring forward at Third Reading a minor technical amendment to the provision for transfer of staff to the new chief inspector in Schedule 10, to ensure that it covers all the personnel of the existing inspectorates.

I cannot agree with the noble Baroness’s rather narrow view of the role of the Audit Commission and we cannot lend our support to her amendments. I urge her to think long and hard about what she is trying to do with the inspectorate and not to press the amendments this evening.

My Lords, once again I have listened carefully to what the noble Lord has said. We are as far apart now as we ever were on what I am trying to do. He says that the Audit Commission has to understand how authorities are run and he has explained that he has had a lot of experience of seeing how it has operated within councils. I have had 20 years of seeing how it has operated within various councils, so he is not the only one who knows about that. I am perfectly happy with what the Audit Commission does there. It spends a great deal of money—a huge amount of money—telling us how it is.

However, I want to know how it is going to tell police authorities how it is when it has no expertise in how those authorities are brought together, how they are run, or anything else. I feel that this is not a job for the Audit Commission. By all means, keep it doing the job that it is doing ensuring that police authorities are spending their money properly. I am perfectly happy with that, because it has done a good job in those areas. However, it has not examined the quality and cost-effectiveness or otherwise of police authorities up and down this country. That is a very specialist and unusual job and it is very different from dealing with local councils. The Audit Commission has a lot of expertise in those areas but not in relation to police authorities. I do not want to give it another role when it does not need it and it will be no good at it.

Once again, I shall be bringing this matter back at Third Reading. I am sorry that I have to do that because the Minister has clearly indicated that he has no intention of moving on it. I simply want the Audit Commission to be taken out of this issue. It does not know how to do the job, and we should let HMIC do it. I should be perfectly happy with that. We should leave the Audit Commission to look at the quality and effectiveness of police authorities. With those remarks and the promise that this matter will be brought back at Third Reading, I beg leave to withdraw the amendment at this stage.

Amendment, by leave, withdrawn.

moved Amendment No. 95:

moved Amendment No. 96:

My Lords, I have one concern. I wonder whether the wording covers the responsibilities of police authorities for oversight of force inspection programmes. It seems to limit consultation to those who are directly responsible for the functions, establishment and other matters which are dealt with by the inspectors. I know that the Home Office has said that it is basically up to the common sense of the chief inspector, but it would be helpful if we could be given a little more reassurance on this matter.

My Lords, I hope that I made it clear in my earlier remarks that at the moment the Association of Police Authorities is consulted. We expect that to continue to be the case. The amendment was intended to ensure that those who will be directly involved and inspected are consulted. My noble friend Lady Henig expressed concern about this. I think that it was a sensible matter to highlight and that it had an echo. I made a promise and it is my delight to be able to honour it by bringing this matter back. It should not impinge at all on the normal consultations that we expect to continue.

On Question, amendment agreed to.

My Lords, we now come to Amendment No. 97.

My Lords, the amendment becomes hors de combat because of the earlier Division.

[Amendment No. 97 not moved.]

moved Amendment No. 98:

moved Amendment No. 100:

moved Amendment No. 102:

moved Amendments Nos. 103 to 106:

moved Amendments Nos. 107 to 127:

moved Amendment No. 128:

My Lords, I simply want to thank the Minister for the Government’s amendment. I do so because the Government have taken note of a number of anomalies identified by my colleague in the House of Commons, David Howarth, and the amendment is designed to put them right.

My Lords, I shall speak to this group, and particularly to my Amendment No. 129A. First, I thank the Government for taking into account some of the comments I made about the difference between making and inventing the tools, and supply and distribution of the tools, which is what they are trying to hit.

However, I am afraid that their amendment does not quite go far enough. It is a question of effectiveness and whether it works, and I am afraid to say that it will not. I reassure the noble Baroness, Lady Anelay of St Johns, that things like “script kiddies” are quite common terms in the industry. Phishing is a big worry at the moment; I was talking about it only last week.

The real problem probably stems from something we have just been talking about. I have just been at dinner with the Hansard Society in the Commons, talking about globalisation, regulation and a few other things. This is a typical example. We think we can regulate, but in a global, internet-based world we cannot. People can host these things abroad. They can host sites which will supply tools to allow you to do this, that and the other, and there is nothing we can do to prevent it. They will be hosted on servers abroad by foreign companies, and you cannot do anything about it. If they were hosted on British servers you could give them notice and tell them to remove them or even prosecute them if you were lucky enough.

Will it work? It will not, I am afraid. It is one of those things that sounds good but will do nothing. What it will do is cause a lot of trouble to large companies that supply perfectly legitimate tools to help people to carry out remote maintenance or use remote access. It will not help parliamentary staff because if someone supplies the tools to them, whereby they can shadow you working on your own terminal in Parliament and thereby help you solve the problem that you just got trapped in, those sorts of tools might be forbidden under the supply rule.

The Home Office response to this is: “Well of course we won’t chase the good guys. We won’t go after them. We are only after the bad guys”. The trouble with that is that it is all well until an enforcer trying to achieve some other aim threatens someone. I do not think that, as Parliament, we should be passing laws that give power to enforcement agencies to blackmail companies into doing other things for them because they know they can use something like this against them. It is too much of a blanket power.

Further, it is useful for penetration testing—for instance, people testing to see whether their company systems can be hacked. A typical example of this is phishing. Last week I was sitting next door to a chap called Gary McKinnon, who is the person the Americans are trying to extradite and put in jail for 60 years because he put post-it notes all over the Department of Defense systems. Five years ago he got into their systems because he thought it would be fun to see how good their passwords were. He ran a little program and discovered that a large number of people with Windows access had not bothered to use passwords. For the Department of Defense in America not to check that its stuff was moderately secure and that its senior people at least had passwords to prevent access is stupid. So he thought he would show them how stupid they were.

As a result of that Gary has got into hot water. I will not go into the merits of the case or whatever, but the department should have been using tools like this to ensure its own security was all right long before Gary got there. And so should we. However, it will make these things illegal and large groups, large banks and so on should be testing that their systems are secure. In fact Parliament should. But, under this provision, whoever supplies you with that tool to test that will be committing an offence. It is all very well to say, “They are the good guys, we won’t prosecute them”, but I do not think that is good enough. I have great trouble with laws that hand over powers to the enforcers and say, “It is at our discretion whether we are going to prosecute you”.

I stand very strongly on that, having seen and heard of many incidents where people have been told that unless they comply with something else there is an obscure rule and they can throw the book at a company for something else. I know that there will be efforts made at the European level to reverse this provision if we pass it in this form. I was informed of that by some international companies.

I would prefer to see the amendment of the noble Earl, Lord Northesk, go through and remove the provision altogether. I do not think it will do any good. It is a waste of time. It will not allow you to do anything effective against enforcing what you want. However, I believe that the Minister will not allow that. Therefore, I would suggest that you should either say “more likely than not” if that is what you mean. I suggested last time using the word “primarily”; this time I suggest using “principally”. We are looking at the objective of the people supplying or trying to sell these tools. If it is principally to sell it to the hacker community, I do not have a problem. In which case say so in the Bill. We know these things are likely to be used. If the Government mean that it is more likely than not, then they should say more likely than not.

I would like to push this issue at some stage. I know that there is only one more stage of the Bill. It concerns me greatly that we should leave the matter in this form. Therefore, I would like to hear what the Government have to say.

My Lords, I am going to read what the Government say and I will try to say it as best I can. I am pleased with the half vote of support from the noble Earl, Lord Erroll, and I am most grateful to the noble Lord, Lord Dholakia, for his customary courtesy and thanks for the amendments that we have tabled in this group. Although the noble Baroness, Lady Anelay, did not say that she was ever so pleased about what we were moving this evening, I thought that perhaps there was some grudging acknowledgement that we had recognised part of what the noble Earl, Lord Northesk, sees as a problem. Obviously, we will never satisfy the noble Earl, Lord Northesk. Sometimes, I would be worried if we did. However, I congratulate him on his continued persistence. By tabling amendments such as this, he makes us think much harder about what we are trying to do better to perfect the legal framework with which we try to cover the difficulties.

In general, we are pleased with the support for creating a new offence to cover those who make or adapt, supply or offer to supply articles—so-called hacking tools—intending that they be used to commit computer misuse offences. As I said, the debate is focused on how best we deal with those who deliberately make such articles available but whose state of mind falls short of intent, shall we say? The government amendment narrows the offence so that those who make or adapt those articles commit an offence only if they intend the article to be used to commit offences, rather than if they believe that it is likely that that is what they will be used for.

The amendment tabled by the noble Earl, Lord Northesk, goes further and would also exclude those who supply or offer to supply articles believing that they are likely to be used to commit an offence. The noble Earl, Lord Erroll, proposes that the new offence is amended to replace believing that it is “likely” with believing that it will “principally” be so used. The use of the term “principally” has similar difficulties associated with it to that which the noble Earl preferred in Committee, which was “primarily”. I am not sure that it is capable of legal definition. Clearly, I am not an expert in these matters, but it is not a word with which I am familiar as being used in statute to describe a particular state of affairs.

Such tools are increasingly sophisticated and damaging. They are increasingly available and increasingly used to commit crime. We cannot support the approach taken by noble Lords because we believe that it is important that the offence covers the supply of such articles for criminal use even beyond the narrow circumstances of criminal intent. We also believe that “principally” refers to the extent of the usage. In other words, some of the time, the article will be used for legitimate purposes but the person believes that it will be principally used for Computer Misuse Act offences. Whereas, in our view, “likely” reflects a belief that there is a strong possibility that the article will be used for Computer Misuse Act offences.

My Lords, does the Minister accept that, actually, the sort of tools that are used to test systems and gain remote access are normally used by hackers to gain access to systems illegally? All of them are very likely to be used for that purpose. That is the trouble. If the Government do not intend to catch all these tools, why does “likely” mean “more likely than not”? These systems will be used for that, whether you like it or not.

Well, my Lords, that may well be the case, but I invite the noble Earl to consider that we are trying to write terminology into the Bill that has a proven track record of being tested in a court of law. That is very important. I do not know how the noble Earl can make that judgment about those tools being used primarily or only by hackers. I am not sure how he reaches that conclusion. In a sense, that is otherwise from this debate. That is his view, but I invite him to bear with me while I complete my commentary so that he can better understand where we are coming from.

As I said, having listened to the debate in Committee and to industry, we accept that it would not be reasonable in all cases for the manufacturer of a tool to be held responsible for its subsequent illegal use if they had no such intent. I have been persuaded that the circumstances relating to making or adapting a tool are often too far removed from the use of it for the person to form a solid belief in the likelihood of criminal use. However, the same does not apply to those who supply the articles believing that it is likely that they will be used to commit offences. As we discussed in Committee, “believing that it is likely” is a high test in practice; the prosecution would need to prove beyond reasonable doubt that the person supplying the tool knew that it would be used for unlawful purposes in most instances. We think on balance that that is the right, sensible and appropriate approach.

Obviously, those in the legitimate IT security sector make, adapt and supply these tools as part of their daily work. They rightly need the confidence that the new offence will be used appropriately—one might also argue proportionately—to ensure that their practices and procedures fall entirely within the law. The DPP will write and publish guidance on how the new offence will be dealt with, with particular focus on the factors that prosecutors will take into consideration in determining, in accordance with the code for Crown prosecutors, whether there is sufficient evidence to prosecute and whether it is in the public interest to do so.

Finally, we have made amendments to Clause 43 that make transitional provisions to ensure that the changes which the Bill makes to the Computer Misuse Act 1990 do not have an impact on offences committed before the Police and Justice Act comes into force.

A question was asked about the assessment made by the noble Earl, Lord Northesk, of the clause’s impact. The assessment, which was given ample voice by the noble Baroness, Lady Anelay, differs from ours. We have consulted industry members and the CBI on these provisions and have had no representations from them suggesting that the provisions will force them out of the UK market. In fact, the provisions will not criminalise general applications such as browsing, as it is used more legitimately than criminally. Therefore, no one could believe it likely that they will be so used. We have taken industry views into account and, as I say, have not received the sort of representations to which the noble Baroness alluded.

That said, I simply invite the noble Baroness to withdraw the amendment in the name of the noble Earl, Lord Northesk, and the noble Earl, Lord Erroll, not to move his amendment. I hope that they will accept the government amendments.

My Lords, I am grateful to the Minister for his considered response. I also appreciate the expertise of the noble Earl, Lord Erroll, but ask him to be a little cautious when using words such as “script”, “kiddies” and “code monkeys”. I read them out only because I had such confidence in my noble friend. I did not think he had put them there for a joke and assumed that they were real. He was right to draw attention to the fact that phishing should be of concern to all of us, and that we all have a duty with any file or detection device to ensure that our own computer networks are secure. Those of us in the House who use the internet are aware of the time taken to try to ensure that patches are provided at the right time to prevent the regular attacks on our systems being successful. It is a matter of concern for all, and it was that concern of the noble Earl, Lord Erroll, and my noble friend Lord Northesk which was the progenitor of these amendments. I shall certainly invite my noble friend to consider carefully the Minister’s response between now and Third Reading.

My Lords, I apologise for intervening. I am concerned about how this wording will be interpreted. It is clear that anything—whether it be a fast motor car or what we are talking about in this debate—that can be used for a malign purpose is likely to be used by someone of evil intent for that purpose. The wording of the Government’s amendment is,

“is likely to be used”,

which means anything that is capable of being used. That goes much further than this House should be comfortable with. I hope that the government will therefore give it consideration. With this amendment, they seek to narrow the conditions, but they are not narrowing them at all. Another look at this is warranted. I apologise for intervening.

My Lords, that was a welcome intervention. It is precisely why my noble friend Lord Northesk felt that the government drafting could not be improved: he felt that it was so defective that one could not achieve the right result, so he wants to take out that section. I know that the noble Earl, Lord Erroll, was trying his best to find a better definition that could adequately deliver the safety of use for those properly using the tools—the good guys as opposed to the bad guys, as my noble friend put it.

I agree with my noble friend that there should be further time for consideration. I know that there is not much time between Report stage and Third Reading, but there will be one week and one day, which is more than there is occasionally. An e-mail will wing its way to my noble friend from me tomorrow, but I am sure that by the time this is on the internet at lunch time he will already be reading the results of our deliberations. I am sure that he will contact all of us to see what needs to be done betwixt now and time for tabling amendments at Third Reading next Tuesday. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 129:

had given notice of his intention to move, as an amendment to Amendment No. 129, Amendment No. 129A:

moved Amendments Nos. 130 and 131:

moved Amendment No. 132:

My Lords, I am grateful to the noble Baroness for providing the Government with an opportunity to explain where we have got to on this issue. As the noble Baroness readily acknowledged, we are at one in our intentions and have great sympathy with the proposition she puts before us.

We entirely understand the objective behind Amendment No. 132, which is designed to increase the maximum penalty for an offence under Section 53 of the Regulation of Investigatory Powers Act 2000; that is, failing to comply with a requirement to disclose protected information or the key to it. The increase in the maximum penalty will apply in the circumstances set out in the new subsection (6) of Section 53 of the Regulation of Investigatory Powers Act, including where the offender has a previous conviction for possession of an indecent image of a child.

The use of information technology by terrorists and criminals to facilitate and conceal evidence of their unlawful conduct so as to evade detection or prosecution is increasing. Consequently, the Government have concluded that it is now timely to implement the provisions of Part 3 of the Regulation of Investigatory Powers Act, including Section 53, which are not presently in force. The threat to public safety posed by terrorists’ use of encryption technologies was recognised by the House in Section 15 of the Terrorism Act 2006, which increased the maximum penalty for the Section 53 offence to five years in a national security case.

Schedule 3 does not include the offences under Sections 48 to 50 of the 2003 Act. These are the offences of causing or inciting child prostitution or pornography, controlling a child prostitute or a child involved in pornography and arranging or facilitating child prostitution or pornography. The decision to omit them was taken because we believe that these offences, while undoubtedly despicable, were not, strictly speaking, sexual offences unlike, say, rape, but could be motivated by a number of factors such as simple greed. The offences are included, however, in Schedule 5 to the 2003 Act. That inclusion ensures that if offenders demonstrate that they pose a risk of serious sexual harm, courts can make a sexual offences prevention order either when dealing with such offenders or on subsequent application from the police. Being made subject to such an order leads to the offender going on to the sex offenders register, as well as being subject to prohibitions imposed by the order itself.

We recognise that while it may be true that these offences need not necessarily be strictly sexual in nature, their perpetrators demonstrate at the very least a callous disregard for the sexual well-being of children and pose a threat, so they may require the monitoring that being made subject to the register will bring.

Officials in the Home Office are engaged in a review of the content of Schedules 3 and 5 to ensure that the right offences are included and that they are placed in the appropriate schedule. I can assure the House that the suggestions set out in the amendment are receiving not just sympathetic but active consideration as part of that review.

Changes to Schedules 3 and 5 do not require primary legislation but can be made by order. Rather than make piecemeal changes, we should await the results of the full review and look to make all necessary changes through an order which will be laid later in the autumn. I can give that assurance this evening. On that basis, I hope that the noble Baroness recognises that she is pushing at an open door, that we are at one on this and that she can feel able comfortably to withdraw the amendment.

My Lords, at this time of night, it just remains for me to thank the noble Lord for putting that on record. I am glad that the door is open; we will keep on pushing things through it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 133 not moved.]

Schedule 12 [Schedule to be inserted into the Protection of Children Act 1978]:

moved Amendment No. 134:

My Lords, the amendment was tabled by the Conservatives in Committee, but it was not moved. We support the amendment. It states that an officer should not keep any information about the content of the property if the court finds that that person does not have forfeitable property in his possession; for example, indecent photographs, or pseudo-photographs, of a child. I presume that this is to protect the child in the images.

My Lords, I shall go carefully, because I am seeking to persuade noble Lords opposite that their amendment is not effective in the way in which they might envisage and could, to an extent, be self-defeating. I ask them to bear with me.

The provisions in the Bill allow the police to forfeit indecent images of children and the storage equipment that holds them. The amendments would amend our proposed procedures so that, once it is found that the property should be returned to the owner, the police must destroy all information about the property which is in their possession.

Clauses 44 and 45 and Schedules 12 and 13 amend the current law so as to close a small technical loophole in the law. They will allow the police to forfeit indecent images of children and the devices that hold them following any lawful seizure. As we have explained previously, this is a small loophole, because if the person is convicted of an offence in respect of the material, it can be forfeited on conviction under Section 143 of the Powers of the Criminal Courts (Sentencing) Act 2000. These new provisions do not affect that power.

However, there are limited circumstances in which there may be no conviction. In those cases, the Protection of Children Act 1978 allows the courts to forfeit such articles following a seizure under a warrant under that Act, but the court has no power to forfeit articles brought before it under other powers of seizure; for example, during a fraud investigation. Technically, in such instances, the articles may have to be returned to the offender.

Our reforms will move the power of forfeiture into the hands of the police, regardless of the powers of seizure used, and will provide an avenue of appeal to the courts for owners or third parties with an interest in the articles. The amendments would require the police to destroy any record of lawfully seized material once the courts have decided that material is non-forfeitable and should be returned to owners.

I hope that I can persuade noble Lords that these amendments are unnecessary. Their effect would be to require the police to destroy records lawfully made which would otherwise be retained in accordance with current law, including the Data Protection Act 1998, and accepted operational police practice and procedure whenever such property is seized and a court orders its return. The amendments would amount to an unreasonable restriction on the extent to which police are allowed, and expected, to exercise discretion as to the need to retain and use all factually accurate information. This is in connection with both the prevention, detection, investigation and prosecution of crime, and when they are called to account in civil proceedings.

My Lords, I am most grateful to the Minister for the trouble that he has taken to explain this matter in some detail. I shall read carefully what he has to say and in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 135:

My Lords, I very much support this excellent amendment moved so ably by the noble Baroness, Lady Linklater of Butterstone. We have grown to expect that every time she rises to her feet.

I particularly thank the Children’s Rights Alliance for its excellent brief which was sent to us all. It drew together the efforts that have been made over the years to get the Government to agree to what the amendment once again asks for. This matter has been raised over an impressive number of years. The brief mentioned the comments of my noble friend Lord Ramsbotham when he was Chief Inspector of Prisons in 1997. He described some conditions in youth offender institutions as institutionalised child abuse.

Yesterday, we debated the Statement on the Green Paper on children in care, with its many excellent ideas for compensating the disgracefully inadequate support that over many years we have failed to provide for children in care, with a disastrous detrimental effect on their life chances. Prevention is a major government aim, which would have all our support, and compensation for children in this situation—with all those ideas and many more to come no doubt from the consultation that has now begun on the Green Paper—is an excellent beginning. However, we must be hoping to reclaim at least some of the children who we have failed so far that they have arrived in a situation where still, deplorably, we put them into custody.

On the education side, which has been mentioned, those children are not even getting the required 15 hours, except for in one institution, and there is even a doubt about that. They are getting about half—some eight hours—of education. When we think of people trying to provide that education in the complete chaos of overcrowded prisons, we can see that the situation is clearly going to get much worse. The financial case against imprisoning children is strong, with the Audit Commission in 2004 talking about the reformed youth justice system and saying that custody is the most expensive and one of the least effective methods. Certainly, some sentences deliver better outcomes for children and are less expensive than others. The Local Government Association clearly appears to agree, saying that it is time that we explored more effective and sustainable ways of dealing with children in trouble rather than resorting to locking them up.

We have already heard that 70 per cent of those leaving custody are reconvicted within a year, so this clearly is not working. I very much hope that the Government will listen sympathetically to this excellent opportunity to put all the aims and excellent ideas that they have for prevention into practice by preventing the obvious downward path that children are going to follow if they go into custody.

My Lords, I start by declaring an interest as the president of the Howard League for Penal Reform. As has already been said, I was able to spend a considerable time in the past year or so preparing a report for the Howard League on the use of restraints on children in custody. While preparing that report, I had the opportunity to visit a number of institutions and to talk to staff and children in them, and I learnt a great deal.

I applaud the initiative of my noble friend Lady Linklater, who moved the amendment very eloquently. In moving this radical new proposal, I would that we could debate it before the threshold of the dinner hour in a much fuller House, rather than in the twilight of the Horlicks hour. Having said that, the issue loses none of its importance through being put on the record in a rather empty House. The fundamental question being asked by my noble friend Lady Linklater is, “Should we be using the penal model for children, or is it now completely outdated, and should we not be moving towards a child-centred model?”. I support her view that we should be following the latter course.

I share the views of the noble Baronesses, Lady Linklater and Lady Howe, that some good practice takes place in the youth estate, but it is not universal by any means. My headline would be that if you look at what is happening in the juvenile estate and to children detained in custody, you will see that the system is destructive, underfunded and unfit for purpose.

Yesterday, I chaired a conference sponsored by the Greater London Authority, the Youth Justice Board and Nacro. Between 70 and 80 practitioners were there and I did not hear anyone demur from that view, including many chairs of youth courts in the Greater London area. All of them feel like King Canute and that is easy to understand.

Briefly, I wish to mention eight points that seem fundamental to the criticism that many others now make of how young offenders are dealt with. First, the system is outrageously expensive. If you think about it, it is extraordinary that it is cheaper to send two children to Eton than to keep one child in many of the custodial institutions that we have been discussing. To put it another way, if a probation officer was appointed to stand next to one young offender every day of the year, we would save a great deal of money and probably achieve much more than by putting that young offender in custody. These disposals are not working and they are vastly expensive.

Secondly, many young offenders are being sentenced to short terms in custody; nine weeks is a common period. Absolutely nothing can be achieved in nine weeks except to separate the young offender from his or her family, to dissociate them from normal life and to make them feel angry, vengeful and neglected. That view is based on my discussions of these short sentences with staff in young offenders’ institutions.

My third point relates to education, which was raised by the noble Baroness, Lady Howe. The education provided in many establishments that hold young offenders is patchy. Occasionally, it is excellent, but it is desultory in some places. It is not sufficient in quantity and there is a terrible variation in standards. It is astonishing that while populations of such institutions have been allowed to grow, the Government have neglected to deal with the shortfall in education. Many youngsters go into these institutions unable to read, write or count properly and they emerge just as unable to read, write or count.

My fourth point relates to something that astonished me as I visited these places. I was not aware of how small they were. You put sometimes hundreds of young males, all of whom have bags of energy, into an institution which has no playing fields. Young men spend months in these places and they never run. That is an extraordinary way to deal with young people. On any objective view of the education of the young, one of the first questions that a parent would ask would be, “Is there space for them to do activities outside the classroom?”, or, if it is a boarding school, outside their dormitories. Yet, for some reason, Governments persist—this is a historic problem that is not necessarily attributable only to the present Government—in building or keeping these places in urban areas, often where property is extremely expensive and where staff cannot afford to live.

My fifth point has been mentioned by both my noble friend Lady Linklater and the noble Baroness, Lady Howe: the separation of children from their families. There is no youth custodial institution in London. Feltham, which I believe houses 700 or 800 young offenders at present, is the nearest to London. But the young people do not stay at Feltham; they are dispersed all over the country. Yesterday, at the conference that I mentioned, I heard of many cases in which children are dispersed sometimes 200 miles from London. That is no way of treating them if they are to be reintegrated into the society that they have left.

That brings me to my sixth point, which is about how release is dealt with. When I was preparing my Howard League report, I visited one institution where, entirely voluntarily, the staff had started an excellent scheme to ensure that when youngsters left the institution they knew where they were going, whom they were going to, why they were going there and that somebody would pay some attention to them afterwards. But the norm is often that a 15 or 16 year-old is put in what is in effect a taxi, with a social worker whom they have never seen before and who means nothing to them, they are taken to accommodation of which they know nothing and the following day they are out on the streets. What kind of sentence planning is that?

My seventh point is about racial imbalance. If you go to any custodial institution, particularly those holding offenders convicted in London, you will find that something like 50 per cent of them come from a black or ethnic-minority community. What this surely demonstrates is that, in areas where there is a large concentration of black and ethnic minority youngsters, prevention of crime is not being dealt with adequately. In 1996, the Audit Commission produced an excellent report telling us that, at the money values of that time, £1 spent on the prevention of youth crime saved £7 later. That is particularly so in areas where there are large concentrations of minorities.

My final point relates to mental illness. It is now a given that something like 50 per cent of the youngsters who are detained in custody are suffering from a diagnostic mental illness—a mental illness identified in one of the two international diagnostic manuals. It is also a given that children suffering from mental illness are far less likely to receive appropriate treatment if they are in custody than if they are not in custody. That surely is neglect by the state. I suggest to the Government that it is high time that the principle was accepted and put into practice that a child who is in custody and mentally ill has the same right to child and adolescent mental health services as any other child and that it is an act of neglect by the state if they are not given those services.

What are youth custody institutions for? If they are for anything, apart from protecting society from a very small number of those whom we might have to acknowledge as very dangerous offenders, they are for setting boundaries, so that young people, when they leave those institutions, are more able to understand what they are permitted to do and what they will not get away with doing in the community. Are we achieving that? In my view, not at all. My view is that we are imprisoning more and more detainees and achieving less and less with every one. There is one certainty about the present system, which is that almost every youngster who serves a youth custody sentence of one kind or another will be back. That surely is the saddest reflection on the way in which we are dealing with young offenders. I ask the Government to take advantage of the new clause proposed by my noble friend and to tell the House that, at long last, they are taking this issue seriously and are prepared to have a truly radical look at youth sentencing.

My Lords, I support the points made so ably and comprehensively by the noble Baroness, Lady Linklater. I also associate myself with the remarks of my noble friend Lady Howe and of the noble Lord, Lord Carlile, under whose presidency I served as a member of his inquiry.

When I recommended in 1996 and 1997 that prison was no place for young offenders, I meant precisely—a point made by the noble Baroness, Lady Linklater—that prison is an adult system and not a place for children. That is not to say that children should not be in custody but, if they are, they should be in places that are designed for, and equipped with staff trained to look after, young offenders. I am concerned that since then, although this recommendation has been repeated by many people, there has been no progress.

I support the amendment for the precise reason suggested by the noble Lord, Lord Carlile—that is, in the hope that the Government will take the opportunity to revisit this matter and incorporate it in future developments. Originally, my remarks were based on taking a social services inspector with me to look at the conditions in a young offender establishment containing children. Following the visit, she told me that if it had been a local government secure home, it would have been closed because neither its regime nor the practices or training of the staff came up to what was required elsewhere. That was indictment enough for me.

My Lords, I understand the nature of the concerns raised by the noble Baroness, Lady Linklater, and echoed by the noble Baroness, Lady Howe, and the noble Lords, Lord Carlile and Lord Ramsbotham. We have debated these issues on a number of occasions and there has rarely been a sliver of paper between what we would all like to see but there have often been difficulties about how we get there.

I turn to the need for greater parity of treatment in education, health, outside activity, planning for change, better management in moving children on, dealing with mental illness and prevention. The noble Lord, Lord Carlile, and the House will know that those are all very much woven into the Government's plan for preventing young people getting into crime and then reducing the level of recidivism. They are all very much part of what we propose to do. This week, our most recent document produced by the Department for Education and Skills, Care Matters: Transforming the Lives of Children and Young People in Care, was welcomed. That document very much feeds into this debate in that it concerns the efforts that the Government are making to try to deal with the issues more effectively.

The secure estate for children and young people, with which those of us in the House tonight are very familiar, is very diverse. It has different types of establishments adapted to the needs of different age groups and varying degrees of vulnerability. As we all know, those under the age of 18 vary from an 11 or 12 year-old who commits a most grievous offence—sometimes, regrettably, homicide—to a 17 year-old, who is bordering on adulthood. The needs of those disparate children can be starkly different.

Young offender institutions provide for the upper part of the age range—that is, 15 to 17 year-old boys and 17 year-old girls—apart from those who are the most vulnerable. Secure training centres are predominantly for younger trainees and have a particular focus on providing education. They are able to accommodate some offenders whom local authority secure children’s homes find too difficult to manage. That is a reality. We know that there are such children who cannot be safely accommodated in the secure children’s home estate.

The effect of the new clause will be to limit custodial provision for under-18s to secure children's homes. I do not really think that that is what the noble Baroness wishes. However, I understand from the comments of the noble Lord, Lord Carlile, that the amendment is really just asking us to look much more radically at how we respond.

Secure children's homes are valuable institutions and form an important part of the secure estate. I am glad to hear noble Lords say that they have seen some good practice in some of them. However, they have limited capacity and are used primarily for the youngest offenders—precisely for those reasons. They would not be able to cope with a large influx of 16 and 17 year-olds. The Youth Justice Board contracts with local authorities for the use of 235 places in secure children's homes and the entire capacity of the secure children's homes sector is only 400 places. So, introducing 2,000 additional 16 and 17 year-olds would not be remotely practicable. Even if it were, the introduction of large numbers of older offenders would put the younger children seriously at risk. The Government have always made it clear that, where offenders are children, sending them to custody can be only a last resort.

We believe that there is some scope for reducing the number of under-18s in custody. The Youth Justice Board has a target of reducing the population of under-18s in custody by 10 per cent. However, we are firmly persuaded that for serious or dangerous offenders, even though they may be quite young, custody has to be available to protect the public. We would be failing in our duty if we did not take the necessary steps to achieve that.

I recognise the excellent intentions underlying this new clause, but removing under-18 places in young offender institutions and secure training centres would not be practicable, would do nothing to reduce crime, and would not help the troubled young people whom they are intended to serve. Indeed, we fear that it would endanger many of them in a wholly unacceptable way.

There is still much that we can do. We hope that the work we are undertaking with the three alliances—although I heard the comments made earlier by the right reverend Prelate, Peter Selby, on those matters—will greatly help young people. The increased planning and the ability to use the resources of the Department of Health and the Department for Education and Skills, in a way which we could not do before, is incredibly important. Our ability to work harder with schools, other institutions and local communities to make alternatives to imprisonment a reality which is seductive to the courts—because they work—is also a challenge. There is much for us to do.

One of the tragedies that we now face—and I sincerely believe that it is a tragedy—is the increasing number of our young people of a relatively tender age who are committing some pretty heinous offences. Some of them are big, some of them are bad and some of them are dangerous. We can debate how they got there, but the reality is that we have to deal with them as they are and not as we would like them to be. I very much agree with the thrust and intention of the amendment. However, I regret to say that although the door is not closed to improvements to children, it is closed to this amendment.

My Lords, I thank those very noble noble Lords who have stayed late into the night to debate this serious and in many respects painful issue. I thank the Minister for being so thoughtful and, in some ways, for seeing what we are all trying to say, albeit the door was not that far open.

I am well aware that the LASCH’s capacity is currently limited, and I remind the Minister that the STCs are a new addition to the range of available disposals. I regret that instead of developing and investing in the quality and type of care, treatment and containment of children who seriously need to be in secure accommodation, money which has gone towards supporting and investing in STCs did not go into supporting and developing what could theoretically have been a wide range of different types of provision according to age. As I said in my speech, need as well as age is very important with children, and they are not necessarily concomitant.

I also recognise that it is nearly half past ten o’clock and that it would not be sensible for me to try to push my amendment to a Division. I sincerely hope, however, that the Government will go back and think again about this issue. We must all agree that what we currently have is seriously not good enough. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 13 [Schedule to be inserted into the Protection of Children (Northern Ireland) Order 1978]:

[Amendment No. 136 not moved.]

Clause 46 [Immigration and asylum enforcement functions: complaints and misconduct]:

moved Amendment No. 137:

My Lords, we support the view that there is insufficient protection for children and young people’s safety and well-being, particularly as there is no statutory requirement on immigration authorities to safeguard and promote the welfare of children. The removal of asylum seekers has frequently not been carried out in a dignified or humane manner. Excessive or gratuitous force has been used on occasion and significant harm—both mental and physical—has been inflicted on children as a result. As the range of people authorised to conduct searches and, if necessary, to use reasonable force and to detain people arriving at ports of entry has been extended, people without proper training or accountability are carrying out these functions. That is highly inappropriate. The same rules should apply to immigration officers and private contractors alike.

We agree with the Chief Inspector of Prisons that the use of and conditions of the detention centres are inappropriate for children, which is echoed by the Children’s Commissioner. There are complaints of assault, but there is no proper body authorised to hear those complaints. There must be an independent body to which individuals should complain. All that is extremely worrying and unsatisfactory. We must maintain civilised, dignified, human procedures and conditions for all detainees, with a minimum requirement that their human rights should be observed. We support the amendment.

My Lords, I have listened with care to the contributions made by the noble Viscount and the noble Baroness on this issue. I entirely understand their approach, and, personally, have some sympathy with it. Anybody who has ever had or worked with children could not fail to care in the impassioned way that they have demonstrated.

Regulations made under Clause 46 would enable the Independent Police Complaints Commission to investigate complaints about, and conduct arising from, immigration enforcement activities in England and Wales. Any such complaints will be investigated thoroughly. The particular circumstances of the individuals concerned in each case, including age and vulnerability, will be taken into account and sensitively handled.

Clause 46 will ensure that there is similar independent scrutiny of immigration officers and officials exercising police-like powers within the community, as are in place for the police themselves. Under the current legislation giving the IPCC oversight of the police, there is no separate legislative provision enabling children to register complaints with the commission as has been suggested in the proposed amendment. We take the view that such a provision is unnecessary. Procedures already exist within the commission which are sufficient for children and young people who may wish to make a complaint regarding the police. It is anticipated that the same procedures will be put in place for children who wish to make a complaint in connection with immigration enforcement.

The commission's current statutory guidance states that where a young person under the age of 16 wishes to make a complaint, the commission encourages the police to have regard to the principle in the Gillick competency guidelines that children under the age of 16 years are able, under common law, to give valid consent provided that they have sufficient understanding and intelligence to enable them fully to understand what is involved.

Applying that to the complaints system means that as long as a child under 16 understands fully what is involved in making a complaint, they should be able to do so. However, the police service and the commission have a responsibility to ensure that a young person making a complaint understands the process and potential outcomes and, where necessary, is provided with appropriate support in making the complaint. A complaint can be made on behalf of a child or a young person by a parent, guardian or third person.

At regional level, the commission's central England office is focusing on increasing access to the complaints system for young people as a priority for 2006 and 2007. This will enable better understanding of the position with regard to young people and the police complaints system with a view to increasing awareness, trust and confidence, as well as access to the police complaints system.

The work will involve: analysing complaints data on young people to ascertain their demographics and the type of complaints; identifying what the barriers are to complaining; and identifying proactive steps that can be taken to overcome those barriers and assessing them in terms of their feasibility. Examining police force data in relation to complaints that the commission deals with from young people will also be part of that work.

A number of stakeholder meetings have already taken place. That forms part of the commission’s guardianship role, concerned with the promotion of public confidence in the complaints system—including, I may add, improving and ensuring accessibility. Through that role the commission can ensure that the system is accessible to children. In addition, the Immigration and Nationality Directorate recognises the importance of providing information to children subject to immigration control and is discussing with the Children’s Commissioner for England how best this can be achieved.

I hope that what I have said has offered a measure of reassurance to the noble Viscount and the noble Baroness that their concerns are being addressed. The noble Viscount asked a particular question about IPCC staff and training issues. I cannot provide him with an answer this evening. However, I undertake to write to him and the noble Baroness, Lady Linklater, on the issue. I quite understand its import and recognise that it is sensible that we get training programmes right and much more sensitised to the issues raised.

It is perhaps worth saying that during the development of the commission's statutory guidance for the police service in England and Wales, which the Home Secretary approved and the police service must follow, which took effect from December last year, the IPCC met a range of children's organisations, including the Children's Legal Centre—based at the University of Essex—Barnardo's and the Children's Society to consult on specific issues concerning children and young people's access to the police complaints system. The commission is committed to continuing work with the police and young people's organisations on the issue in future. It is our anxious anticipation that the same approach will be followed and adopted when the commission is responsible for the oversight of immigration enforcement as well. We have found our contact with those organisations to be especially beneficial in framing the Government's approach.

So we have some agreement—or comity, if you wish—on the issue. We are extremely happy to ensure that the active dialogue that I have described continues so that we ensure that young people can access and understand the complaints process and feel included in it, even though, as most would willingly concede, the processes and procedures can appear somewhat complex and disconcerting at the outset. We want to ensure that we get this right, and we are grateful for the help and support that we have. I express my gratitude to the noble Viscount and the noble Baroness, Lady Linklater, for their interest and concern, but I trust that, having heard my remarks, the noble Viscount will feel able to withdraw his amendment.

My Lords, I am most grateful to the Minister for his reassurance that the Government are addressing the problems of children and young people making complaints in the immigration and asylum system. I am also grateful for his undertaking to write to me about training. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 138:

moved, as an amendment to Amendment No. 138, Amendment No. 139:

My Lords, I thank the Minister for her very clear explanation in response to our questions. I do not wish at this stage to get into extraneous arguments about prison population or ID cards. Suffice it to say, the explanation is sufficient for me to be happy about it, and we back the proposal.

Amendment No. 139, as an amendment to Amendment No. 138, by leave, withdrawn.

On Question, Amendment No. 138 agreed to.

Clause 49 [Attendance by accused at certain preliminary or sentencing hearings]:

moved Amendment No. 140:

My Lords, perhaps I may thank the Minister because we have had the opportunity to discuss this matter on at least two occasions and I am satisfied with the explanation that she has offered. Amendment No. 141 is in my name and that of my noble friend Lady Harris of Richmond. Its purpose is simply to probe. It would be helpful to learn from the Minister whether the live link would apply in appeal proceedings and how it would work.

My Lords, I thank the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, for the helpful way in which they have spoken to their amendments, because I think that we are all in agreement that there could be a bounty for both victim and defendant by doing this in a quick and effective way if it were to everyone’s benefit.

I should emphasise at the outset that we do not, at first blush, think that Amendment No. 140 is necessary, but there may be a way in which we can deal with the issue. I emphasise that the court cannot give a live link direction without giving the parties an opportunity to make representations. The defendant’s consent is already required, as the noble Baroness highlighted in her remarks, before he can be sentenced over a link, and the case can reach the point of conviction only if the defendant is willing to plead guilty. Of course, he is under no obligation to do so.

It follows that, although a defendant in police custody could be required to make his appearance over a link, the most that could then happen without his consent is that the court would determine his remand status. That is what would happen to any detained defendant who was charged early enough in the day to make a physical appearance in court the same day. As the noble Baroness indicated, it could be to the defendant’s advantage if the court decided to grant him bail and he was set free. It is likely, therefore, that many defendants will wish to appear by live link. I agree with the noble Baroness about that.

However, the Government are content to look at the issue of consent in Clause 49 again. We would at the same time like to consider whether it would be possible, taking the noble Baroness’s logic a little further, and subject to similar consent requirements, to extend the facility to appear over a link from a police station to defendants who would be bailed as well as those who are detained. It seems unfair almost that, if the prosecution is sufficiently worried about you not to give you bail straightaway, you get an opportunity to be disposed of through live link but if you are not sufficiently worrisome to be detained, you do not get that advantage, regardless of whether you would like it. Perhaps we could look together at how we resolve that quandary when we come back to Clause 49. That would mean that a defendant who wished to appear promptly, but who under Clause 49 would be denied the use of the live link because he qualified for police bail, could also do so.

I am very much obliged to the noble Baroness for tabling her amendment. If she thinks that what we have discussed is sensible, I invite her to withdraw the amendment; we could have a discussion and come back with a consensual amendment to deal with Clause 49 for those who have and those who have not been granted bail—and I suggest it only at this stage—subject to their consent being given in both circumstances. I am certainly happy to look at that possibility before Third Reading.

My Lords, I am grateful to the Minister for agreeing to look again at the issue of consent in the round in Clause 49. I will be happy to give way in a moment so that she may respond to the noble Lord, Lord Dholakia. Her proposal to extend live links to those granted bail is very helpful. It seems practical to offer that facility to those who have not been deemed so dangerous to society to have been refused bail.

My Lords, I was so carried away by our agreement that I forgot to explain properly to the noble Lord why his amendment is unnecessary and how it will work. That would give a deal of comfort not only to the noble Lord but to others outside this House interested in the matter—and I am sure that is why he raised it.

Amendment No. 141 relates to the provisions which would give the Court of Appeal discretion to direct that an appellant who is in custody should appear by means of a live link rather than in person. The amendment would require the consent of the appellant to appear by way of a live link before any such direction could be made. That would cause some difficulty in the procedure.

Giving the Court of Appeal the power to direct use of a live link will have several advantages, including improved security for prisoners, particularly those in category A, requiring the highest security, who will not need to be accommodated at court; reducing prison escort costs—noble Lords have discussed on a number of occasions the difficulties with moving people around—and reducing pressure on overstretched London prisons caused by the transfer of prisoners located in prisons outside London for appeal hearings. We expect that the appellant will indicate his or her preference for the method of appearance when making the application for leave to appeal, and that the court will have regard to this before making a direction. Introducing a requirement of consent, thereby allowing prisoners to insist on appearing in person, would potentially undermine the benefits and result in high costs and possible delays for the criminal justice system.

The amendment would also introduce a requirement that the court should be satisfied that the live link direction is not contrary to the interests of justice. We do not consider it necessary to be overly prescriptive in the nature of the power. The court already has an overriding obligation to ensure that an appellant receives a fair hearing in accordance with Article 6. Furthermore, the Criminal Procedure Rules require the court to further the overriding objective when exercising any power given to it by legislation. This means that criteria which by definition equate to the interests of justice are automatically imported into the exercise of the court's discretion in procedural decisions. The court will therefore always exercise the proposed power in accordance with the interests of justice and the appellant’s right to a fair hearing. I know that those are the issues that the noble Lord, Lord Dholakia, is particularly concerned about—and rightly so.

I hope that, in the light of that explanation, the noble Lord will not press his amendment.

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 [Appeals under Part 1 of the Criminal Appeal Act 1968]:

[Amendment No. 141 not moved.]

Schedule 15 [Minor and consequential amendments]:

moved Amendments Nos. 142 to 144:

moved Amendments Nos. 146 to 152:

moved Amendments Nos. 153 to 155:

moved Amendment No. 156:

moved Amendment No. 157: