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Police and Justice Bill

Volume 685: debated on Tuesday 10 October 2006

Consideration of amendments on Report resumed.

Schedule 9 [Her Majesty's Chief Inspector for Justice, Community Safety and Custody]:

Page 109, line 39, at end insert “and in particular he shall secure that persons nominated by the Association of Police Authorities will assist in conducting inspections of police authorities”

The noble Baroness said: My Lords, I wish to speak to Amendments Nos. 94, 99 and 101 in this grouping in the names of my noble friend Lord Dholakia and myself. These amendments seek to clarify how police authorities will be inspected in future. I should be very grateful if the Minister would explain exactly what is meant by Amendment No. 98. I wondered whether it was code for giving HMIC the lead role. If so, we would be happy, but not if that were not the case.

The amendments in my name and that of my noble friend would enable police authority expertise explicitly to be involved in inspecting police authorities. When we previously spoke about this amendment in Committee, the Minister was confident that the current wording of the Bill would achieve this. It is certainly true that the wording allows the chief inspector to secure assistance with inspections and ensure there is sufficient expertise available, but this is general wording applying to all inspections and is a discretionary power.

At this point I thought it might be helpful to read a briefing from HMIC. Although the briefing deals with the single inspectorate issue, it is worth highlighting the actual role of the inspector. I am grateful to HMIC for the briefing, which states with regard to the current role of HMIC:

“It is important to understand that the role of inspector in HMIC is very different to that of the inspection team leaders in the other criminal justice inspectorates. At its heart, of course, there is a similar responsibility for inspection of organisations, processes, outcomes and service delivery which would be found in all the respective job descriptions. In addition, however, and probably forming the greater part of their work, HMIC inspectors undertake: Advice to the chief inspector on portfolio specialisms; Advice to police authorities on chief officer appointments, complaints and performance issues; Mentoring advice and counselling to chief constables and chief officers; Trouble-shooting and arbitration in sensitive and/or complex policing problem areas; Commissioned thematic examination of key services or areas; Ensuring ‘organisational health’ through identifying and addressing issues relating to diversity, information management, governance, resourcing and capacity and capability; and PDRs of chief constables (in liaison with authority chairs)”.

I thought that it was important to highlight exactly what it is the inspectors do. This is a very sensitive area. HMIC is largely made up of people drawn from police forces, and the majority of people involved in the arm of the new single inspectorate, which will inspect police authorities, will continue to be police. This effectively means that police authorities are being held to account by people whom they once held to account. That is a constitutionally questionable and potentially unbalanced situation, unless there is a significant injection of independent police authority expertise into the process.

The amendment would place on a secure statutory footing the involvement of police authority members and staff and/or other independent experts in police authority inspections, overcoming these objections in primary legislation. The involvement of APA and police authority members and staff in developing inspection frameworks and conducting police authority inspections has in the past been more or less accepted by HMIC, which has enough to do itself. The skills of the Audit Commission in this area are even less developed, as I will refer to under the next amendment. Because police authorities are very specialised, we believe that the expert knowledge and understanding necessary to conduct targeted, balanced and robust inspections will most readily be found in police authorities.

The idea is that underlying this arrangement will be a pool of police authority members and staff co-ordinated by the APA who will assist with conducting inspections on something akin to a peer review model. They will, of course, be required to undertake specialist training before they can become involved in inspections. Inspection is a very important function, on which a great deal of public and professional confidence will rest. For this reason, it is important that skilled and balanced structures through which to conduct inspections are secured in primary legislation and are not left to the discretion of one individual.

Amendments Nos. 99 and 101 would remove references to police authorities being subject to joint inspection with the Audit Commission, so that they would be subject to inspection only by the new CJS inspectorate. That would leave in place the existing proposals that would make crime and disorder reduction partnerships subject to joint inspection. At present, police authorities are inspected by HMIC but audited by the Audit Commission, and I think we would all agree that there is considerable room for crossover and duplication between those two activities. I applaud the intention behind this part of the Bill to better join up the demands that are made on police authorities in this respect, but I am not convinced that providing for joint inspection will achieve that aim.

I am mindful that the government amendment in this area adds some clarity. It makes it clear that the new CJS inspectorate will be in the lead on inspections of police authorities; but it does not go quite far enough. The Audit Commission has expert auditors, but they are definitely not experts on conducting inspections of police authorities; they have no experience in this field. Audit is, and should be, a distinctly separate function and an independent safeguard on financial probity separate from inspection.

I am all for trying to reduce duplication, but there are other ways of doing that. I would not wish that the important independent check on financial governance is lost in blurring two functions in the way that these proposals risk doing. Indeed, the prospect of two different sets of inspectors with different ideas about what should be inspected and how it should be done might have exactly the opposite effect to streamlining the process, which is what is intended, and could muddy the waters even further.

Whose opinion takes precedence? The Audit Commission already has powers in relation to auditing police authorities and it would seem unnecessary and superfluous to add inspection to those powers, when that could better be undertaken by HMIC, or the elements of it that would transfer to the new inspectorate, which has much more experience in this area.

I agree that it would be sensible for the Audit Commission to have a role in the inspection of crime and disorder reduction partnerships, because local authorities significantly contribute to those partnerships and the Audit Commission has a remit in respect of their functions. I beg to move.

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.

Page 110, line 4, leave out “Community Safety and Custody” and insert “and Community Safety”

On Question, amendment agreed to.

Page 111, line 5, at end insert-

“( ) Before preparing an inspection programme the Chief Inspector shall carry out such consultation as he considers appropriate with persons appearing to him to be responsible for the functions, establishments or other matters to be dealt with by the inspections he proposes to include in the programme.

The Chief Inspector shall send a copy of the inspection programme, once it is prepared, to each person consulted about it under this sub-paragraph.”

The noble Baroness said: My Lords, paragraph 9 of Schedule 9 to the Bill makes it a statutory obligation for the chief inspector to consult various specified bodies when preparing an inspection programme. That is intended to ensure the responsiveness of the inspection regime to those it serves.

In Committee, my noble friend Lady Henig asked that we specifically include among the bodies which must be consulted those that will be inspected as part of the proposed programme. At the time, I agreed to bring back an appropriate government amendment to place such a requirement on the chief inspector.

I should add that we are aware that many other kinds of bodies are now regularly consulted by the five inspectorates on their programmes—for example, the Association of Police Authorities in respect of police inspections. The amendment does not preclude the continuation by the new chief inspector of those consultations; it merely emphasises the need for consultation with those most directly impacted on by an inspection.

We do not think that it would be sensible to attempt to list all the other existing and potential consultees in legislation. In our view, the continuation of existing arrangements is something that can be left to the good sense of the chief inspector. We are very reluctant to leave out someone whom it might then be necessary to include. Therefore, I hope that noble Lords will be content with the amendment. I beg to move.

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

[Amendment No. 97 not moved.]

Page 112, leave out lines 36 and 37 and insert-

“(2) When carrying out an inspection to which sub-paragraph (2A) applies, the Chief Inspector shall act jointly with the Audit Commission to the extent that the Commission-

(a) has power to carry out the inspection, and (b) considers it necessary or desirable to act jointly with the Chief Inspector in the interests of sharing expertise or avoiding duplication. (2A) This paragraph applies to-”

On Question, amendment agreed to.

[Amendment No. 99 not moved.]

Page 112, leave out lines 43 and 44 and insert-

“(3) When carrying out an inspection to which sub-paragraph (3A) applies, the Chief Inspector shall act jointly with the Auditor General for Wales to the extent that the Auditor General-

(a) has power to carry out the inspection, and (b) considers it necessary or desirable to act jointly with the Chief Inspector in the interests of sharing expertise or avoiding duplication. (3A) This paragraph applies to-”

On Question, amendment agreed to.

[Amendment No. 101 not moved.]

Clause 35 [Abolition of existing inspectorates]:

Page 31, line 3, leave out paragraph (a).

On Question, amendment agreed to.

Schedule 10 [Transfer of staff and property etc to the Chief Inspector]:

Page 114, line 7, leave out paragraph (a).

Page 115, line 27, leave out paragraph (a).

Page 116, line 23, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 116, line 30, leave out “Community Safety and Custody” and insert “and Community Safety”

On Question, amendments agreed to.

Schedule 11 [The Chief Inspector: consequential amendments]:

Page 116, line 36, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 117, line 6, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 117, line 29, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 117, line 36, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 118, line 13, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 118, line 23, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 118, line 38, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 119, line 7, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 119, line 12, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 119, line 21, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 119, line 26, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 119, line 37, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 120, line 3, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 120, line 36, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 120, line 41, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 121, line 36, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 122, line 5, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 122, line 14, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 122, line 20, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 122, line 33, leave out “Community Safety and Custody” and insert “and Community Safety”

Page 123, line 5, leave out “Community Safety and Custody” and insert “and Community Safety”

On Question, amendments agreed to.

Clause 42 [Making, supplying or obtaining articles for use in computer misuse offences]:

Page 34, line 13, leave out from “3” to end of line 14.

The noble Baroness said: My Lords, I move Amendment No. 128 on behalf of my noble friend Lord Northesk. He has asked that I convey his apologies to the House. He simply cannot be present today due to other serious commitments.

We covered most of the ground pertaining to the amendment in Committee and so I do not propose to dwell on too many of the underlying technicalities. I feel that I would not be able to and I am extremely grateful to my noble friend for providing me with a comprehensive speaking note. I also note that the Government have reformulated the paragraph in the shape of Amendment No. 129 in the name of the Minister. That ties the matter to Section 1 and Section 3 offences in the Computer Misuse Act beyond any doubt and to that extent it is welcome.

Nevertheless, in the opinion of my noble friend, the substantive flaw of the provision, the likelihood test, remains. As my noble friend explained earlier in our proceedings, this equates to proscribing the supply and distribution of crowbars on the basis that they are likely to be used in the commission of burglary offences. Indeed, it is possible to envisage circumstances where the provision could be deployed to proscribe the supply and distribution of web-browsing and e-mail programs if only because they are more likely than not to be used in the commission of hacking offences.

The problem here should not be underestimated. To state the obvious, as broadband and, thereby, always-on access to the internet becomes more pervasive, so there is an ever-increasing need for adequately secure and hack-free systems. In Committee the noble Earl, Lord Erroll, who is in his place, made the entirely appropriate point that that need is being serviced more and more regularly by remote access. In this context, as illustrated by my noble friend in Committee, there is a host of examples of software programs, often open source code, that can be used by systems administrators to test that the IT systems are secure, but that could also be used maliciously. They are, by definition, dual purpose tools. Frequently, those are downloaded as of need from trustworthy, that is to say quality assured, sites on the internet.

However, because of the absence of legal certainty and clarity about how the likelihood test would be applied by the courts, an effect of the provision, if enacted, will be that trustworthy distribution sites of such software in the UK will be closed down rather than face the risk of possible prosecution. Indeed, there is some anecdotal evidence that that is already happening. Bear in mind that there is simply no way of telling whether any given program will be used more extensively by the good guys or by the bad guys—something which can, in any event, vary considerably over time. In consequence, system administrators and the like will have to source their software tools from less trustworthy sites, thereby running the all-too-common risk that they could include some hidden and, more likely than not, malicious, functionalities.

In one rainy week on holiday in Italy, my husband and I played rather a lot of scrabble. If I had used that word, I think he might have challenged it, but I am sure my noble friend knows what it means.

In effect, the provision, whether in the form of the current drafting or the amendment of the Minister, all but guarantees that the internet will be considerably less safe for UK users. That must be counterproductive and antipathetic, not only to the Government’s intention here, but also to their wider aspiration of making the UK the best place in the world for e-commerce.

It is also worth contemplating what benefit would accrue were the provision to be enacted. As a generality, the vast bulk of criminal and malicious activity will be caught by the first arm of the clause, subject to the test of intent. Presumably, therefore, the likelihood test is intended to apply in instances where the internet is seeded with harmful, or even malicious, code for potential onward use as an adjunct to hacking activity, perhaps by “script kiddies”—my noble friend is testing me here—“code monkeys” and the like. Without delving too deeply—thank goodness—into the psychology of such individuals, it is highly unlikely that the provision would either prove a deterrent for them or that, in reality, the offence could be adequately investigated and so prosecuted in practice. In sum, therefore, the provision will almost inevitably do much more harm than good.

In Committee, the noble Lord, Lord Bassam of Brighton, prayed in aid the Government’s adherence to the virtues of consultation. As he put it:

“We consult regularly, take on board the results of those consultations and try to reflect them where relevant in any necessary changes to legislation”.—[Official Report, 11/7/06; col. 608.]

We do not doubt the sincerity of this. Nevertheless, given that my noble friend has not found a single IT professional prepared to endorse the Government’s proposition here throughout the two-odd years it has been under consideration, it would be helpful if the Minister could flesh out how the Home Office perceives the industry’s attitude towards it.

I am enormously grateful to my noble friend for his assistance with my speaking note. I hope it will enable the Minister to address the matter fully and I look forward to her reply. I beg to move.

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.

Page 34, line 13, leave out from “3” to end of line 14 and insert-

( ) A person is guilty of an offence if he supplies or offers to supply any article believing that it is likely to be used to commit, or to assist in the commission of, an offence under section 1 or 3.”

Line 3, leave out “likely” and insert “principally”

The noble Earl said: My Lords, I am not sure whether I am speaking at the right time, but now seems logical. The noble Lord, Lord Lawson, is right. I do not believe that the courts will interpret the word “likely” as meaning more likely than not, because it does not say that. This is trying to catch people advertising on the internet who say, “Here you are. Here are some great hacker tools. Why do you not download these?” The trouble is that people who are trying to supply—possibly without selling—a subsidiary company or part of a group things that will help to maintain, assist or test computer systems will be caught also by this wording. It is impossible to write something to maintain a computer system remotely or test the security of a computer system which can be used only for that purpose. Everything written for that purpose can be turned around by someone who wishes to use it for hacking. As the noble Lord, Lord Lawson, said, it will be used by hackers.

Therefore, the word “likely” means that everyone is prosecutable by the courts. I have heard people say, “They can look at what the Minister said”, but unless it is ambiguous there is no requirement to look at the parliamentary debate. The word “likely” is unambiguous. Therefore, I am afraid that the courts will find that the Government have a case just to say, “Well, we can prosecute you”. They do not even need to look. The intention behind this was not to prosecute the good guys. Nowhere in the Bill says that. Another sentence saying, “If you are a good guy, we won’t prosecute you”, would perhaps be all right. Between now and Third Reading, the Government need to think of something that means “more likely than not” or “the primary purpose” or something like that. Otherwise, I will come back with something at Third Reading myself.

[Amendment No. 129A, as an amendment to Amendment No. 129, not moved.]

On Question, Amendment No. 129 agreed to.

Clause 43 [Transitional and saving provision]:

Page 34, line 30, leave out “by subsection (2) of section 40 apply” and insert “by-

(a) subsection (2) of section 40, and (b) paragraphs 16(2), 22(2) and 26(2) of Schedule 15, apply”

Page 34, line 44, leave out “16, 22, 24(4) and (5) and 26” and insert “16(3), 22(3) to (5), 24(4) and (5) and 26(3) and (4)”

On Question, amendments agreed to.

After Clause 43, insert the following new clause-


(1) In section 53 of the Regulation of Investigatory Powers Act 2000 (c. 23) (failure to comply with a notice)-

(a) after subsection (5A)(a) there is inserted- “(aa) in a case to which subsection (6) applies, seven years;”;

(b) after subsection (5B) there is inserted- “(6) This subsection applies where- (a) a person has been previously convicted of an offence contrary to section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988; or (b) the apparatus or data storage device containing the protected information contains an indecent photograph or pseudo-photograph of a child; or (c) the apparatus or data storage device containing the protected information has come into the possession of any person together with other apparatus or a data storage device which contains an indecent photograph or pseudo-photograph of a child; or (d) the court is satisfied that the protected information is likely to contain an indecent photograph or pseudo-photograph of a child. (7) Subsection (6) will not apply where the person to whom the notice is given can show that the protected information does not contain an indecent photograph or pseudo-photograph of a child. (8) In this section “indecent photograph or pseudo-photograph of a child” shall have the same meaning as in the Protection of Children Act 1978.” (2) After paragraph 36 of Schedule 3 to the Sexual Offences Act 2003 (c. 42) there is inserted-

“36A An offence under section 53 of the Regulation of Investigatory Powers Act 2000 if subsection (6) of that section applies.””

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 133 and 158. I have tabled the amendments to give the Government the opportunity to put on record any progress that may have been made on these matters since we debated them three months ago, on 11 July, as reported in Hansard at cols. 617-622. The two new clauses would strengthen the law dealing with sex offenders, especially those who offend against children. Amendment No. 132 deals with encrypted data found on computers and storage in cases where the police believe that the data contain abusive images of children. It does not seek to create a new offence but amends the sentencing regime under Section 53 of the Regulation of Investigatory Powers Act 2000.

Part 3 requires a person to comply with a notice issued by the police to hand over the encryption key for protected data. The penalty for breach is two years. That seems to us to be low given that the alternative penalty, if the information were turned over, would often be five years or more. We suggested increasing the penalty to achieve compliance. It could be done only in cases where the court was satisfied that it was more than likely that most of the encrypted data consisted of indecent photographs of children. After the last debate about “likely” or “principally”, I use those words rather carefully.

Amendment No. 133 would insert a new clause relating to offences requiring notification. It would ensure that Sections 48 to 50 of the Sexual Offences Act 2003, which make provision for the offences of recruiting or controlling a child involved in pornography or prostitution, would be prescribed under Part 2 of that Act for the purposes of notification requirements. Amendment No. 158 is merely a consequential change to the Long Title.

In response to the first amendment in Committee, the noble Lord, Lord Bassam, said that the Government remained very sympathetic to what I proposed but they wanted further opportunity for public consideration and comment on the proposals and to consider what legislative changes should be brought to the House in the light of current consultation. In response to the second amendment, the Minister said that officials intended to review the contents of Schedules 3 and 5 over the summer and that he hoped that any necessary changes might be made by order in the autumn.

During the long, hot summer I noticed one or two press stories with regard to government consultation being concluded on related matters and therefore I thought it important that we should return briefly to these issues tonight. I hope there will be no necessity to bring them back at Third Reading and that we can conclude the matter today. I invite the Minister to say what progress has been made. I beg to move.

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]:

Page 127, line 17, at end insert-

“( ) Where the court is not satisfied that the relevant property is forfeitable property, the court must order the relevant officer to erase or dispose of all information in his possession about the relevant property.”

The noble Viscount said: My Lords, I shall speak also to Amendment No. 136. I hope that we, too, can take advantage of the open door. This follows on from the previous grouping spoken to by my noble friend Lady Anelay. Due to time constraints in Committee, I was unable to move the amendment before the Summer Recess.

As the Joint Committee on Human Rights summarised in its report, the Bill introduces a newer and wider procedure for the forfeiture of indecent photographs of children held by the police. The report stated:

“The mechanism introduced by the Bill contains a number of safeguards for those who may have an interest in property which is liable to forfeiture under the Bill … There is an opportunity for a person who wishes to contest forfeiture to make a notice of claim. Where a notice of claim is received by the police, forfeiture can only be ordered by a court. The court must order return of the property if not satisfied that it is forfeitable, or if satisfied that the person making the claim has a legitimate reason for possessing it”.

These probing amendments would insert new sub-paragraphs into Schedules 12 and 13 to ensure that, where the court was not satisfied that the relevant property was forfeitable, the relevant officer extinguished all the information that he had obtained from the forfeiture.

The aim of the amendment is to question whether the police should or would keep copies of information seized in this context if the court had ordered its return. In some ways, it has a parallel in the debate surrounding data protection and whether the police should keep DNA records of innocent individuals on file, although it is a different medium. I beg to move.

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.

For example, let us say that in their dealings with a known sex offender, the police believe he no longer has access to a computer in his home and is not viewing indecent images of children or adult pornography. This suggests, in this case, that the individual is of a lower risk and the police, through the Multi-agency Public Protection Arrangements, adapt their management plan accordingly. However, evidence comes to light that the offender’s credit card has been used to purchase indecent images of children over the internet and the police arrest the offender and find a laptop computer in his home. The images appear, to the police and Crown Prosecution Service, to be of children aged 16 or 17 but the court finds that they are of an adult aged 18 or over. Therefore, the laptop and images would have to be duly returned to the offender and, under this amendment, the police would have to remove from their records any suggestion that the individual, who is a convicted sex offender, has access to a computer and is viewing pornography. This is despite the fact that such intelligence might be used by the police to adapt their management plans, and might even be the evidence they need to apply to a court for a sexual offences prevention order to impose prohibitions on the offender in order to protect the public from serious sexual harm.

The provisions in the Bill provide the police with a simple but secure mechanism to ensure that seized indecent images of children and the devices that hold them can be forfeited once investigators no longer need to retain them. In addition to this, we have provided a simple and fair mechanism to allow owners and interested third parties to appeal against forfeiture. So there is a safeguard there already.

I hope that, having heard that, the noble Viscount and the noble Lord, Lord Dholakia, will think again about their amendments and will not feel the necessity to table them again at Third Reading.

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.

After Clause 45, insert the following new clause-

“Penal custody for children PENAL CUSTODY FOR CHILDREN

(1) No child shall be detained in a young offender institution or a secure training centre.

(2) “Child” means a person under the age of eighteen.”

The noble Baroness said: My Lords, I propose the insertion of a new clause whose purpose is to end penal custody for all children under the age of 18. I fear that this door may not be as wide open as it has been to some other proposals.

We believe that those children for whom secure accommodation or custody is necessary and appropriate should be accommodated and managed in local authority secure children’s homes or their nearest equivalent, because this is about children, not adults who are young. The arguments that we deploy for incarcerating people aged 18 and over are essentially and crucially different for those under 18, the legal definition of a child. This means that the child’s welfare is the central issue and general childcare standards as applied by all those agencies which deal with children are paramount. Prison is simply not the appropriate professional or effective response to children who offend, where security and a quite different ethos obtains.

The many experts on this matter include the noble Lord, Lord Ramsbotham, who has a wealth of experience and is on record as saying something along these lines if not in these very words. Experienced experts and a range of childcare agencies sign up to the Children’s Rights Alliance for England. We believe that an age and needs-led approach to a child’s offending, compliant with the ECHR and the Convention on the Rights of the Child, which also addresses the causes of crime and how to stop very young people offending or reoffending, must inform provision and practice. This is tough on all concerned. Penal custody—prison—is the place for dangerous, persistently offending adults, not children; for children it is unproductive and in many cases causes further damage. Of course all offending is unacceptable, and persistent offending is particularly serious, so the system must teach all offenders to stop and how to change. It is how we deal with children, however, that must be different.

It is well known that, compared with those who do not offend, this group of children has had a disproportionate experience of being in care, of lack of education through exclusion, of special educational needs, of significant mental health and personality problems, and of serious issues with drugs and alcohol. The challenge is huge, and the specialist provision necessary to meet it is very great.

The penal custody supplied by YOIs or STCs cannot provide this degree of specialist provision. At great expense it does little to make society safer, since somewhere in the region of 70 per cent re-offend within two years of release. Anyone who has worked with such children, as I have, and all experts in social care, healthcare or education know that. The Government know it; the arguments have been rehearsed in this place many times. The astonishing thing is, though, that the response by politicians, Government and sentencers is to commit roughly 3,000 children to penal custody at any one time. Indeed, during 2004 8,110 young people were received into custody, of whom 4,500 were 15 and under. That last fact takes some believing; that in this country we imprisoned 4,500 damaged and difficult children of 15 and under, some as young as 12, in that year.

Over the years I have been in many YOIs, which hold the majority of these children. I know the dedication of the work of many of the people in them, and the successes they have had with groups and individuals in their charge. The work of the Youth Justice Board in facilitating and supporting improvements has also been impressive. At the same time, though, the YJB has assessed 56 per cent of 15 year-olds and 35 per cent of 17 year-olds in YOIs as “vulnerable”. YOIs are part of the prison service and are essentially geared to adults. By comparison with local authority secure children’s homes, which I shall refer to as LASCHs from now on—a rather terrible acronym—the ratio of officers to prisoners in a YOI is one to 10, while in a LASCH it is two staff to three children. The scale of the institutions is up to 60 on a wing, compared with units of around eight in a LASCH. The provision is not child-centred. Training of nine weeks is not geared to the particular specialist requirements of children. Segregation is used, and the regulations on the use of force involving pain during restraint are not amended for children in YOIs. The latest chief inspector’s report shows that one-third of children say they feel unsafe, a quarter say they have been assaulted or insulted by staff, and 2 per cent say they have been sexually assaulted. Since 1990, 29 children have actually died.

STCs, planned by the Conservatives but in fact a creation of this Government, now cater for around 275 children, some as young as 12, and have a strong emphasis on education. I have seen some very good work by dedicated individuals in these STCs, particularly at Hassockfield since its recent changes. The Carlile inquiry, however, led by my noble friend, illustrated unacceptable use of restraint—in the course of which one child died—and of segregation and forcible strip-searching. They do not have the trained staff to deal with the difficult range of needs I have described. Contact with parents, carers and families is often minimal instead of central, and contact with localities to which they will return often non-existent; they are, after all, often miles away, and logistics do not allow for easy or regular contact. A constant theme from those working in STCs is the difficulty of creating proper resettlement plans with the relevant agencies, and children sometimes leave with no idea of what is to become of them.

It is these latter key elements of family contact, local contacts, appropriate staff training and living in an environment which is primarily child-centred and welfare-based that are lacking. These are hugely expensive places involving resources which should be ploughed into the LASCHs, which are predicated on these elements, which already provide a roughly equivalent number of beds and where it is generally accepted that the best level of care is to be found. That is what matters, but STCs over the past nine years have been expanded at the expense of the LASCHs.

It seems that we have different standards when it comes to children who offend and are in trouble as opposed to children who are troubled but have not done anything wrong. My noble friend Lord Carlile said:

“Some of the treatment children in custody experience would in another setting be considered abusive and could trigger a child protection investigation”.

The parliamentary Joint Committee on Human Rights in its report on the Convention on the Rights of the Child stated:

“There is abundant evidence that detention precipitates the loss of other fundamental rights. We have addressed only some of these rights such as the right to life, not to suffer inhuman or degrading treatment and the right to an education”.

And we know that children in prison do, indeed, lose out on such rights. But if children had painful restraint used on them—as indeed occurred 768 times in the STCs, resulting in 51 injuries in 2004-05—or if children committed suicide in a school or hospital in the community, what then would our reaction be? We would find it appalling, would we not, and demand an immediate end to the places where that could occur? Think of our own children, grandchildren or others we know. When they have done wrong or get into trouble, what do we do about it? We want them to know that wrong has been done and there must be some appropriate way of paying back or making amends. We want them to understand what is wrong and why, and what the effect of what they have done has been on the victim or victims. We want them to say sorry, to mean it and to determine not to do it again. They must understand the consequences of their actions and do whatever is within their means to make amends.

If I am right, if this is indeed true, would we then want to send them away, far from where the event took place, far from the person or people affected, and incarcerate them with other children, all of whom have also offended, detached from what they have done and with a multitude of other difficulties and issues into the bargain? Would we want them to be sent to a place where they are often unsafe, where there may be violence, including by those who are in charge of them or supposed to be caring for them? Would we expect our children or any child to learn positive lessons from such an experience, or why he should not do it again, and indeed will not do it again? I think not, yet we shut our eyes and minds to this reality of what we are doing today to nearly 2,000 children. It is now our turn to make amends. I beg to move.

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]:

Page 36, line 34, at end insert-

“( ) Regulations under subsection (1) may confer functions on the Independent Police Complaints Commission in relation to the establishment of procedures to enable children and young people to register complaints with regard to immigration and asylum enforcement functions.”

The noble Viscount said: My Lords, in Committee we did not have time to address this amendment, which stands in my name and that of my noble friend Lady Anelay. It addresses a specific aspect that is very much complementary to the problems of children which were so eloquently debated by noble Lords in the previous group.

The Explanatory Notes inform us that Clause 46 enables the remit of the Independent Police Complaints Commission to be expanded to provide oversight of certain personnel in the Immigration and Nationality Directorate exercising specified enforcement functions. The IPCC was established under Part 2 of the Police Reform Act 2002. Clause 46(1) of the Bill gives the Secretary of State the power to make regulations by negative procedure, conferring functions on the IPCC in relation to the exercise of specified enforcement functions by immigration officers and the exercise by officials of the Secretary of State of specified enforcement functions relating to immigration and asylum.

The amendment inserts a new subsection to ensure that these regulatory powers may confer functions on the IPCC to set up a procedure to enable children and young people to register complaints with regard to these immigration and asylum enforcement functions. The All-Party Parliamentary Group on Children, in its child impact statement on the Bill, highlighted that the IPCC has already recognised the special needs of children and young people who wish to make complaints about the police. It argues that the IPCC needs to do the same for immigration and asylum-seeking children and young people.

The “No Place for a Child” campaign argues that the Government currently detain more than 2,000 children, including babies, in immigration detention centres every year. That is equivalent to the number of pupils at, say, a large inner-city secondary school. A coalition of children’s NGOs are concerned that, despite the estimated number of children involved, there is a distinct lack of awareness of children’s issues—or, as one put it, a lack of child centeredness—in the asylum and immigration process. The Refugee Children’s Consortium in particular believes that,

“current safeguards are insufficient to protect them, especially in light of the fact that the government resisted any statutory requirement on immigration authorities to have regard to the need to safeguard and promote the welfare of children during the passage of the Asylum and Nationality Act 2006”.

It goes on to state that,

“in this context the importance of easily accessible and accountable complaints processes is considerably heightened”.

Will the Minister tell the House what training IPCC officers currently receive on children’s issues—or indeed asylum and immigration officers, particularly contract workers enabled by the Immigration, Asylum and Nationality Bill?

I am sure that the Minister is fully aware of Professor Al Aynsley-Green, the Children’s Commissioner for England, and his report on his visit to Yarl’s Wood in October 2005. The inspection report raised a number of points, including the fact that none of the young people spoken to were aware of why they were being detained or how long they might be there. Nor did they seem to have access to any complaints procedures.

My noble friends Lady Morris and Lady Buscombe had debates before the Summer Recess on the voice of the child in the childcare and education Bills. Many speakers to the previous amendment referred to the same problem. There can be no doubt that listening to children’s views can enhance and help our understanding of the process and impacts on those experiencing it. We on these Benches wholeheartedly agree that there is a fine balance between consulting children and burdening them with decisions beyond their years. Facilitating the creation of a targeted procedure by which children and young people can register concerns and complaints will not only lead to potential improvement in the service but also help children to feel that they are being listened to and have some way of getting across their views, and that they are not isolated in this regard. I beg to move.

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.

After Clause 48, insert the following new clause-


(1) Section 1 of the Repatriation of Prisoners Act 1984 (c. 47) (issue of warrant for transfer) is amended as follows.

(2) In subsection (1), for paragraph (c) there is substituted-

“(c) in a case in which the terms of those arrangements provide for the prisoner to be transferred only with his consent, the prisoner's consent has been given,”. (3) In subsection (5), for the words from the beginning to “was given” there is substituted “In such a case as is referred to in subsection (1)(c) above, the relevant Minister shall not issue a warrant under this Act unless he is satisfied that the prisoner's consent was given”.

(4) The amendments to section 1 of the 1984 Act in subsections (2) and (3) do not have effect in relation to any case in which the relevant Minister under that section is the Scottish Ministers.”

The noble Baroness said: My Lords, Amendments Nos. 138 and 155 refer to foreign national prisoners and repatriation. Although it is quite late, the noble Baroness, Lady Anelay, has several issues that she very much wants to have clarified, and it is therefore right for me to spend a little more time than I would otherwise spend at this late hour to ensure that those issues are covered and that we can have a proper debate.

Foreign national prisoners currently make up approximately 12 per cent of the prisoner population. The Government believe that they should, wherever possible, serve their sentence in their own country. At present, the Repatriation of Prisoners Act 1984 requires three-way consent involving the sentencing state, the receiving state and the prisoner. That means that a prisoner can in effect veto a transfer properly agreed between the two Governments concerned by refusing to consent to the transfer, and the Government believe that this is no longer appropriate.

The new clause amends the Repatriation of Prisoners Act by clarifying the circumstances in which a prisoner will be required to consent to a transfer before that transfer can take place. A prisoner will be required to consent to the transfer only if the relevant international agreement makes consent a prerequisite to the transfer. Amending the 1984 Act in this way will enable the United Kingdom to ratify and conclude prisoner transfer arrangements that do not require prisoner consent. The consent of both Governments involved will still be required in each case, so where prisoner consent is still required by the relevant international arrangement, Ministers must be satisfied that that consent has been given in accordance with the requirements of those arrangements before transfer can take place.

The noble Baroness, Lady Anelay, has tabled an amendment that seeks to replace “satisfied” with,

“has reasonable grounds for believing”.

The amendment would enable the Government to transfer a prisoner without having established beyond doubt that the prisoner had given consent in a case where the international arrangements require it to be given. We respectfully suggest that repatriating a prisoner in such circumstances without knowing for certain whether the requirement for consent had been satisfied would be inconsistent with those arrangements. Accordingly, I cannot commend the noble Baroness’s amendment to the House, but I am sure that she will say in the usual way that she was simply giving me an opportunity to make it clear that such iniquitous practice would not happen here, and I am happy to oblige her.

The Repatriation of Prisoners Act came into force about 21 years ago. Since then, the international thinking and practice on prisoner transfer has moved on. Arrangements such as the additional protocol to the Council of Europe convention on the transfer of sentenced persons opened for signature in 1997, and provide for the transfer of prisoners without their consent where they are to be deported or otherwise removed at the end of their sentence.

The EU is also considering a proposal for a framework decision on prisoner transfer between member states, which would enable prisoners to be transferred without consent if that framework decision were to be adopted in due course. This amendment will enable the United Kingdom to start negotiations with like-minded countries to put in place prisoner transfer agreements that do not require prisoner consent. The Government will also enter into discussions with those countries with which they already have an agreement with a view to removing the requirement for consent. Their intention would be to transfer those prisoners who have no links with the United Kingdom and those who, in any event, may face deportation at the end of the sentence. Often prisoners, such as drug offenders, will have entered the United Kingdom solely to commit a criminal offence. In those circumstances, the Government believe that it is right that the prisoner should serve his sentence in his own country where he can also receive support from family, friends and the community, aiding his chances of rehabilitation. Subject to the agreement of the Government of the receiving state, prisoners will be returned to their state of nationality or, if appropriate, to the state of residence. The Government will not seek to transfer those prisoners whose primary links are agreed to be with the United Kingdom and who are therefore unlikely to be removed at the end of the sentence, although each case will be considered on its individual merits.

Those comments deal with the generality of the noble Baroness’s concerns, but she asked some additional, specific questions in relation, for example, to how many transfers per year the Government are expecting. It is not possible to estimate the number of prisoners who may be transferred without consent. That will depend on our ability to negotiate new and revised prisoner transfer agreements. The provision is part of a package of proposals aimed at increasing the number of foreign national prisoners who return to their own country to continue serving their sentence.

The noble Baroness wants to know where some of those prisoners come from and, in particular, whether Jamaicans form the largest group in the United Kingdom, which they do. Negotiations on the prisoner transfer agreement between the United Kingdom and Jamaica are now at an advanced stage. I have the happy task of involving myself in those negotiations and we await their outcome. The noble Baroness is also interested to know whether the Government expect to make any savings on the expenditure of maintaining prisoners within the prison estate in the United Kingdom. Removing prisoners at an early stage of their sentence will free up prison places. That is important at a time when the Prison Service is facing considerable pressure on its accommodation.

The extent of savings in prison places is of course similarly difficult to estimate. The savings will be dependent, once again, on the agreements that the Government are able to put in place and the stage in the sentence when a prisoner is transferred. This is not a scheme in the normal understanding of the word because it does not introduce any freestanding power to remove prisoners without first obtaining their consent. The amendment simply clarifies the domestic law provision on whether in future prison consent is required before a transfer can take place. As I tried to explain earlier, the option of negotiating agreements with other states without this as a provision is not available to us.

We were also asked how we would know whether foreign prisoners qualified for transfer. The recorded nationality of a prisoner is self-declared, but work is in hand to improve the quality of the data. Once an international agreement without consent is in place, prison governors will be asked to identify all those within their custody from the countries concerned. I say in passing, since it is late at night, that if the noble Baroness’s party opposite was more amenable to identity cards and their effect, we would be greatly assisted in identifying exactly who people are, where they come from and, obviously, where they could happily go back to. That is a matter on which the noble Baroness may want to reflect with her colleagues opposite. I have tried to deal with sending prisoners home, which could of course be to their country of nationality or where they have a right to reside.

I was asked about the impact of the European free movement law upon this proposal. A prisoner’s rights under the European Free Movement Directive are not affected by these changes. The Government will seek to transfer those prisoners who have no links with the United Kingdom and those who would in any case be deported at the end of their sentence. Those who have a right to reside in the United Kingdom are unlikely to be transferred unless, of course, they have lost or would otherwise lose the right of residence.

The noble Baroness also wanted to know whether the process would be hampered by the prisoner’s right to appeal or human rights and asylum legislation. The amendment will not have any effect on the obligation of the United Kingdom Government to comply with their international obligations. Consequently, prisoners affected by a decision to repatriate without consent will be able to seek judicial review of the decision if implementing it would risk infringing the ECHR, the refugee convention or another tenet of international or public law. The Government will robustly defend any decision properly taken.

I was asked whether prisoners detained under mental health legislation would be excluded from the process, and if so, how. A decision has not yet been made on that. To be eligible for transfer, the relevant international arrangement would need to specifically cover those detained under mental health legislation. This is an enabling provision which will be effected in the way I have described.

The noble Baroness asked whether prisoners who had previously been granted indefinite leave to remain in the UK but who were removed under this process would be able to return the UK once they had completed their sentence overseas, and if not, why not. In those circumstances, if prisoners had not already lost their indefinite leave to remain by reason of their criminality, we would not be looking to transfer them. If leave had been removed, they would not be able to return and would be on the warnings index. So it depends on the decision we make about that.

The last question—the noble Baroness will tell me if I have not covered any of them—was how the new scheme would impact on those subject to the early release scheme. The amendment has no impact on the removal of foreign national prisoners under the early removal scheme. If a prisoner is transferred under a prisoner transfer agreement, the United Kingdom release arrangements cease to apply on transfer. If a prisoner remains in England and Wales at the point in a sentence at which he becomes eligible for early removal, then he will be considered for removal under the scheme in the normal way.

I believe that I have dealt with all the questions and the noble Baroness will be delighted to know that if she has any further questions I will be happy to deal with them now or to write to her and place a copy in the Library. I hope that I have dealt with the questions that were likely to excite the noble Lord, Lord Dholakia, too. I beg to move.

Line 13, leave out “is satisfied” and insert “has reasonable grounds for believing”

The noble Baroness said: My Lords, as the noble Baroness rightly forecast, the amendment merely probes the basis on which the Minister would issue a warrant, and I am grateful for her answer. Of course we support the broad thrust of the policy that the noble Baroness has brought forward today. We simply had concerns about the practicability of the Government’s proposals, and it was in that spirit that I put forward the series of questions to the Bill team. I am grateful to the Minister for addressing them. They were necessarily lengthy and detailed questions simply because, of course, when these matters return to another place, as ever, they can be considered only in the very truncated procedure of Commons consideration of Lords amendments. It was important not merely for this House and another place but for the public generally that the noble Baroness should put the matter on record in some detail, as she has today. I am very grateful to her.

There is one issue that we need to consider, although I do not think that the noble Baroness will address it tonight. She has said that this is merely enabling legislation and that the Government will wish to negotiate or renegotiate a number of agreements. We need to consider the balance of those going out and those coming in—how many prisoners from other countries we will be receiving and what impact that will have on any net saving the Government can realistically achieve.

Just as the noble Baroness does not want to tease me about ID cards, I do not want to tease her on the current state of our prisons and the Government’s haste in trying to get rid of as many people as possible. As far as we are concerned, even if the Government proceed with the costly process of having identity cards for everybody in this country, I do not think they need the National Identity Register to achieve a proper count of prisoners and where they come from. But as I say, we are beyond teasing at this stage of the evening.

I was interested in the noble Baroness’s comment about those who are detained under mental health legislation. I am grateful to her for pointing out that this is enabling legislation and the Government have not yet made a decision. That is a reasonable response.

I do not propose to go through the remaining matters; the noble Baroness has addressed them, although not necessarily to everyone’s satisfaction, because we are looking to the future. However, underpinning the Government’s amendments are proposals with which we can concur. I beg to move.

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]:

Page 39, line 11, at end insert-

“( ) If the accused is in police custody in a police station, the court shall not give a live link direction under this section unless the accused has given his consent to the direction.”

The noble Baroness said: My Lords, in Committee, the Government inserted into the Bill new clauses on live links, with our support. We welcome the proposals to increase the capacity to use video links in criminal proceedings contained within Clauses 49 to 51, but we have some specific concerns about particular aspects of the proposals, which my amendment is designed to highlight.

Amendment No. 140 would require a defendant to consent to attend preliminary court hearings by video link if she or he is in police custody in a police station. These matters were brought to my attention by Liberty, and I thank it for its briefing. Clause 49 would enable a court to require a person to attend preliminary court hearings via a video link from a police station. At present, a defendant can be required to attend preliminary hearings via video link, but only when he or she is held in custody in prison.

Preliminary hearings that might take place while a person is held in a police station include applications for extending pre-charge detention, an initial bail hearing, consideration of a guilty plea and even sentencing hearings following the guilty plea. As a result of the clause, where the defendant pleads guilty, he or she could be dealt with from a police station without ever setting foot in court. The only point at which a defendant’s consent would be required for the case to be dealt with via a video link is at the sentencing stage. Until that point, the defendant has no choice about whether to attend the hearing in person.

The physical appearance of defendants before the court can be an important safeguard against abuse. The defendant can come to court and in an environment away from the prison, complain to his or her legal representative or the court about any ill treatment that may have occurred. Appearance in court can also make it easier for the court to assess the state of the defendant. The scars of self-harm or abuse or behavioural traits pointing to a mental health problem may be much more evident when suspects appear in person than when they appear only via a television screen.

The proposal that a person could plead guilty and be sentenced by the magistrates from police custody creates a risk that the person may be, by inducements or oppression, persuaded to admit the offence and plead guilty at the police station. It is thought that the procedural change could also disadvantage the defendant in initial bail applications and hearings for extending pre-charge detention. The fact that the person is in custody when the court is considering their case could create inertia against release on the part of the court.

There is also a concern that the power to deal with all cases via a video link could persuade the police and CPS to charge a person and put them before the video link court rather than use alternative disposals such as cautions and restorative solutions.

In the context of the other significant changes in the ability to use video links—that is, to give evidence at the trial and at the sentencing stage—the Government have accepted that safeguards are necessary. I shall not quote the Minister, but she did so very clearly at col. 677 of the Official Report on 11 July.

None of these safeguards applies to the proposed new power to require a person to give evidence at a preliminary hearing from a police station. Due to the dangers highlighted above, the defendant’s consent is a safeguard which surely should be applied also to attendance at preliminary court hearings via video link from a police station. The amendment should not in any way remove the possible benefits of the pilot which the Government envisage, and we would certainly support that pilot. Indeed, we agree with the prediction that many defendants would like to get matters over and done with and not spend a night in police cells. That is common sense. In a high number of cases, we would therefore expect and hope that defendants would give their consent, with significant efficiency savings resulting from that.

The Government have argued also that these proposals would benefit victims of crime, for whom they rightly comment that delays can be very distressing. We do not, however, consider that a victim of crime would be distressed by the kind of delays that might result from this amendment—a single night in a police cell until the defendant can appear before the next available court. It is in that spirit of trying to advance the argument a little further that I move the amendment. I beg to move.

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]:

Page 155, line 31, at end insert-

“Criminal Justice Act 1988 (c. 33) 12A In section 142 of the Criminal Justice Act 1988 (power of justice of the peace to authorise entry and search of premises for offensive weapons), in subsection (3), for “subsection (1)(b)” there is substituted “subsection (1)(c)”.”

Page 155, line 43, at end insert-

“Local Government and Housing Act 1989 (c. 43) In section 5 of the Local Government and Housing Act 1989 (designation and reports of monitoring officer), in subsection (1), for “the clerk to the authority” there is substituted “the chief executive of the authority”.

Page 164, line 12, at end insert-

“(1) In Schedule 4 to that Act (British Transport Police Authority), in paragraph 11(b) (appointment of clerk), for “a clerk” there is substituted “a chief executive”.

(2) A person holding office as clerk to the British Transport Police Authority on the commencement of this paragraph continues in that office as chief executive of the authority.”

On Question, amendments agreed to.

[Amendment No. 145 not moved.]

Schedule 16 [Repeals and revocations]:

Page 168, line 31, column 2, leave out “Section 5.”

Page 168, line 38, column 2, leave out “and (4)”

Page 168, line 39, column 2, leave out “2, 2A,”

Page 168, line 41, at end insert-

“Criminal Procedure and Investigations Act 1996

(c. 25)

Section 21A(4)(a)(i).”

Page 168, line 46, column 2, leave out “103,”

Page 169, line 13, column 2, at end insert-

“In section 96, the words “of England, Wales and Northern Ireland”.”

Page 169, line 22, column 2, leave out “371” and insert “373”

On Question, amendments agreed to.

Clause 57 [Extent]:

Page 46, line 38, at end insert-

“section (Power to merge schemes) and Schedule (Power to merge police pension schemes);”

Page 46, line 42, leave out “Section 12 extends” and insert “Sections (Consultation with APA and ACPO) and 12 extend”

Page 47, line 1, leave out “paragraph 33” and insert “paragraphs 12A and 33”

On Question, amendments agreed to.

In the Title

Line 2, after “authorities” insert “and about police pensions”

On Question, amendment agreed to.

Line 7, leave out “Community Safety and Custody” and insert “and Community Safety”

On Question, amendment agreed to.

[Amendment No. 158 not moved.]