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Lords Chamber

Volume 685: debated on Tuesday 10 October 2006

House of Lords

Tuesday, 10 October 2006.

The House met at half-past two of the clock: the LORD SPEAKER on the Woolsack.

Prayers—Read by the Lord Bishop of Coventry.


Sir Geoffrey James Dear, Knight, having been created Baron Dear, of Willersey in the County of Gloucestershire, for life—Was, in his robes, introduced between the Lord Armstrong of Ilminster and the Lord Dholakia.


Molly Christine Meacher (the Lady Layard), having been created Baroness Meacher, of Spitalfields in the London Borough of Tower Hamlets, for life—Was, in her robes, introduced between the Lord Stevens of Kirkwhelpington and the Baroness Shephard of Northwold, and made the solemn affirmation.


Lord Ashley of Stoke asked Her Majesty’s Government:

Whether they have any plans to change the current legal definition of disability.

My Lords, we extended the definition in the Disability Discrimination Act in December 2005 to cover 250,000 more people, but we have advised the chair of the Disability Rights Commission that, as part of the discrimination law review, we will be considering the commission’s recommendations on the definition of disability. In addition, the cross-government review of independent living is considering whether any changes to legislation are required to support independent living.

My Lords, that is progress. I appreciate my noble friend’s reply, but does he agree that the current definition of disability is outdated and restrictive and that, as a consequence, many thousands of disabled people are denied the protection of disability law? Those are in addition to the 250,000 whom he just mentioned. So it is a vast problem. How soon can we have a new definition that is comprehensive and based on the social model of disability?

My Lords, I suspect that my noble friend is referring to the 1948 definition in the National Assistance Act. There is no question that the definition is rather out of date; that has been confirmed by the Prime Minister’s Strategy Unit report. However, local authorities provide community care services based on individual needs and local criteria, rather than simply on a statutory definition in the 1948 Act. We will take this forward as part of the independent living review. Equally, the work of the Disability Rights Commission and its recommendations for disability legislation will be considered in the review.

My Lords, does the Minister accept that insufficient weight is given to people with fluctuating conditions? Given the Government’s objective of encouraging as many people as possible off incapacity benefit and into work, how do they intend to achieve it for those suffering from, for example, bipolar disorder or ME?

My Lords, the Disability Discrimination Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to occur. Under the legislation, fluctuating conditions are covered. I accept that it is an important question, which will often depend on the way in which a medical doctor would interpret that fluctuating condition. It is certainly a matter that we need to keep under review and is important for getting more people off incapacity benefit. The noble Lord is right.

My Lords, will the Minister give an undertaking that, if there are legal problems about moving towards a more social model or definition of disability, the Government will let us know those problems in plenty of time so that we can have this debate in a more open and coherent manner?

My Lords, I think that the noble Lord is referring to the work of the Disability Rights Commission. A report has just been produced suggesting a change in definition. We will, of course, give it every consideration. It is fair to say that the Disability Rights Commission recognises that there are some important challenges that will have to be met. Although there was consensus on reaching a change in definition, I do not believe that there was consensus on what that definition should be. Clearly, there is a risk that the wider the definition, the more it may dissipate the effort. These are important matters that will need to be considered.

My Lords, I am following on from the question asked by the noble Lord, Lord Skelmersdale. What is being done to get some uniformity in the decisions from the Benefits Agency Medical Service’s doctors? The noble Lord knows very well from correspondence that we have had on frequent occasions that many of those cases go to appeal and are won. It seems to be grossly unfair that people, many of whom are seriously ill, should suffer the stress of preparing a case for appeal when they will win anyway.

My Lords, on the medical service, clearly we want to ensure that there is consistency where appeals take place. Sometimes, appeals are won because new information comes to light. It is important that we get as much information as possible to the original decision maker. We are undertaking extensive reviews of the service in the context of our welfare reform agenda and the legislation before Parliament. I very much take the point raised by the noble Countess.

My Lords, I am grateful to my noble friend Lord Ashley for raising the crucially important issue of definition, which has now been emphasised again by the disquieting experiences of cancer patients seeking time off work for medical appointments. Can we be assured that, in moving forward on this issue, Ministers will take fully into account the provisions now agreed for the UN Convention on the Rights of Persons with Disabilities and the obligations they will impose?

My Lords, my noble friend is right: the 2005 amendments extended the remit of the Disability Discrimination Act to include many more patients with cancer. Clearly, an issue has been raised recently about the extent to which employers and service providers are aware of the new provisions. We have done a lot to bring this to the attention of such organisations, but more needs to be done.

On the UN convention, I pay tribute to my noble friend and other noble Lords who took part in a debate in your Lordships’ House a few years ago. Great progress has been made. There is now an agreed text. It is subject to some technical work but, as far as I am advised—this will have to be checked carefully by each government department—we do not believe that any legislation in operation in this country is incompatible with the text that has now been agreed.

My Lords, does the Minister expect the new definition to cover dyslexia, which affects about 11 per cent of the population? Without certain support at school and later on in the workplace—IT support, for instance—people with dyslexia can never usually reach their true potential in life.

My Lords, we do not have a new definition, so it is difficult to give the noble Lord a hard and fast answer. Essentially, the DRC wants to move from a definition that protects a group of disabled people and protects anyone who experiences discrimination on the grounds of impairment. One of the problems that the DRC recognises is that, if impairment is the judgment to be made, it also wishes to exclude a limited number of trivial conditions from that definition. That shows some of the problems there will always be in coming to a new definition. The key test at the moment is that the Act defines a disabled person as a person with physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. That is the basis for a more extensive description of those people who are covered.

Waste and Recycling Industry: Accidents and Deaths

asked Her Majesty’s Government:

What further actions they will take to reduce the incidence of workplace accidents and deaths in the waste and recycling industry.

My Lords, in 2001-02, the rate of injury in the industry was four times the national average. In meeting its target to reduce the rate by 25 per cent by 2010, the Health and Safety Executive is delivering a programme of inspection, enforcement, communication and research to help this growing industry operate more safely.

My Lords, I thank my noble friend for that Answer. Given the centrality of the waste and recycling industries and the need to meet important government environmental targets and given that the fatality rate is 10 times above the national average while the non-fatal rate is four times that, what more can my noble friend do to build on the 2004 HSE report concerning this industry to reduce that unacceptably high number of accidents?

My Lords, my noble friend is right to suggest that this is a growing industry. Certainly the baseline figures for 2001-02 show that the waste industry has very high, unacceptable accident rates. As I said in my Answer, the executive has set a target for reducing those rates through a combination of encouragement and advice to the industry, alongside a proactive campaign of inspection and enforcement. Although I do not have official figures in relation to the baseline figure, work by the Environmental Services Association suggests that accident rates have reduced. That does not give room for complacency—we need to build on it—but it looks as though we are now moving in the right direction.

My Lords, a particular concern is the number of fatal accidents that occur in scrap yards. Major accidents have also been caused during household collections when operatives cross pavements and streets. With scrap yards, one is often dealing with fairly small businesses. The trade association, working with the HSE, is developing a passport to encourage staff to be trained. We need to do more of that. There is also a big need to train vehicle operatives to try to reduce the number of such incidents.

My Lords, the BOMEL report found that where a team was dealing with the complex area of waste—separation, and so on, means that it is becoming increasingly complex—the rate of accidents fell when there was a competent and experienced team leader. Will the Minister ensure that one of the criteria for inspection is that teams contain an adequately trained and competent team leader?

My Lords, that is an important consideration. The targeted action that the HSE is developing is focused on local authorities as one sector that has a big role to play. There is an existing duty in law for all staff to undergo training, but the structure of the industry is such that it could be very brief and inadequate. Alongside regulation enforcement, we need to do everything we can to encourage the industry to ensure that team leaders and operatives are properly trained and risk-assessed.

My Lords, given that the waste and recycling industry is ever-increasing and will undoubtedly employ more and more people in the future, how confident is my noble friend that the Health and Safety Executive will succeed in reducing the figure by 25 per cent by its target date of 2010?

My Lords, my noble friend is right: the sector is growing, and government policy encourages that. I have one estimate that employment in the sector may grow by 80 per cent between 2004 and 2014. Clearly, while the growth is very encouraging, we have to ensure that it is not at the expense of health and safety.

My noble friend asks how confident I am that we will meet the target. I will resist saying that I am very confident, but I am satisfied that the Health and Safety Executive sees this as a priority. The signals from the Environmental Services Association show that the issue is beginning to be gripped, but we cannot be complacent. With so many new people coming in to the sector, it is very important that we get training up to scratch.

My Lords, the House will rightly have been horrified at the figures given by the Minister and the noble Lord, Lord Harrison. Is there a difference in the rate of fatal and serious accidents in this sector between local authority direct labour organisations and the private sector? Furthermore, what is the Minister’s response to UNISON’s claims that the HSE is moving its efforts towards more advice and less enforcement?

My Lords, I am not aware of a split in the statistics, but I will see if there are any and let the noble Lord know. On the HSE’s approach to enforcement, figures have shown that inspections and enforcement actions have reduced in the past year or so. The key is whether the strategy of the HSE—a combination of working with industry, encouraging it to improve its health and safety record and using inspection and enforcement as the big stick alongside the carrot of encouragement—in the end produces a better performance. The signals are that it does; the construction industry is probably the best example of where this has worked. Over the past five years, there has been a 25 per cent reduction in fatal accidents, partly as a result of targeted enforcement and partly because the industry has worked closely with the HSE. We would like to see the same happen with the waste sector.

Comprehensive Spending Review

asked Her Majesty’s Government:

Whether the forthcoming Comprehensive Spending Review will cover expenditure in all regions of the United Kingdom.

My Lords, the forthcoming Comprehensive Spending Review will cover public expenditure in all regions of the UK. Allocations to the individual regions of England will be determined by the relevant spending departments in the normal way. The devolved Administrations will be funded in accordance with the updated statement of funding policy, the latest edition of which was published by the Treasury in July 2004.

My Lords, I had hoped that my noble friend’s Answer would include the fact that a certain formula that allocates expenditure in Scotland is grossly unfair. It is bound to be, because it is not based on need. Is he aware that our right honourable friend Gordon Brown recently laid emphasis on the need for fairness? How can a policy of allocating expenditure to Scotland that is far in excess of what is needed in other parts of the UK be fair? Will the Minister therefore assure me that the comprehensive review to which he referred will include a review of the formula?

My Lords, I should make it clear that the Government have no plans to review the Barnett formula. The funding arrangements were set out in the latest statement of funding policy, which, as I said, was published in July 2004. That remains the Government’s policy. Spending in the devolved Administrations is not derived just from the Barnett formula; there are other components to it, including the annually managed expenditure and locally financed local government expenditure. The differences between the regions and the devolved Administrations have as much to do with the starting baseline and the annual managed expenditure as they have with the application of the Barnett formula. Perhaps I may gently remind my noble friend that, in his evidence to the Select Committee in November 1997, he said:

“I am flattered that the Barnett formula has lasted 20 years. I hope it will last much longer”.

My Lords, he continued:

“I am not in favour of scrapping the Barnett formula”.

To be fair to him, he also said:

“There is a case for Mark II… I have grown to love it now”.

My Lords, I agree with the noble Lord, Lord Barnett, that his formula, which had the objective of creating convergence in expenditure, has failed dismally in that objective. I am sure that he will agree that it was intended to last for only a short time. Will the Minister confirm that whatever assessment of expenditure takes place, taking account of the needs of the different parts of the United Kingdom, will be based on an impartially conducted and objective needs-assessment review?

My Lords, the Comprehensive Spending Review is a fundamental review of public expenditure across the board, based on zero-based budgeting by departments, and it looks objectively at what services need to be delivered and how they are to be funded. That is a thorough-going review of public expenditure. If one looks at what has happened to expenditure in the devolved Administrations and England in the six years to March 2006, one will see that identifiable expenditure, which is the bulk of public expenditure, has increased faster in England than it has in Scotland, Wales or Northern Ireland.

My Lords, is the Minister aware that some of us are extremely puzzled by the Treasury’s persistence with its approach to this matter? Surely the analysis of the regional impact of public expenditure must be based on serious economic analysis and research. It is matter not just of needs, although that is important; it is also a question of where that expenditure can take place most effectively. The Barnett formula simply does not meet either of those criteria, and it never has. Is it not up to the Government to take the criticisms more seriously and offer us a more fundamental approach to regional expenditure?

My Lords, I say again that the application of the Barnett formula, which looks just at year-to-year changes from the base, is a small part of total public expenditure. The Government are committed to improving prosperity in public services in all regions. Their regional policy was set out in the SR 2004 White Paper. The Government have established a PSA target to make sustainable improvement in the economic performance of all English regions and, over the long term, to reduce the persistent gap in growth rates between the regions. That is an objective approach to regional policy.

My Lords, if the Barnett formula applies only to certain aspects of the public expenditure and is therefore not absolutely central—some of us would question that—why are the Government not prepared even to review it?

My Lords, I tried to explain that the Barnett formula was just a component of how public expenditure changes and that the Government have been about a comprehensive spending review. That review has gone back to zero base right across the board, across departments, looking at public expenditure, making sure that there is efficiency in the system and driving inefficiencies out of the system by reductions in administration costs right across the piece. That is the right approach.

This debate is taking place in circumstances in which there have been substantial and sustained increases in public expenditure across the board. That has been enabled by our successful policy on the economy. It has given continual growth to the UK, in a way that has produced low inflation and low interest rates, which means that we can sustain high public expenditure across the board, redressing some of the underinvestment of the past.

Armed Forces: Royal Centre for Defence Medicine

asked Her Majesty’s Government:

How the development of the Royal Centre for Defence Medicine in Birmingham, which treats casualties from Iraq and Afghanistan, is proceeding.

My Lords, the Royal Centre for Defence Medicine was opened in Selly Oak, Birmingham, in 2001, with academic, teaching and clinical roles. It is on course to meet our vision of an internationally recognised centre of excellence by 2010.

My Lords, I thank the Minister for that optimistic statement—or overoptimistic, as some might think. As a famous Chief of the Imperial General Staff from World War I said, “I’ve ’eard different”. The centre was described by a Minister six and a half years ago as a key element in the regeneration of Defence Medical Services, which another Minister openly admitted were suffering a crisis of morale. As the Minister said, it opened in 2001 boasting the title “centre of excellence”. Does the Minister not find it slightly shameful, therefore, that it has never in fact properly got off the ground to correct those ills because of lack of Treasury funding?

There are strong rumours, which the Minister may wish to comment on, that the centre is shortly to be dispersed. Will he not recognise that failing to allow the centre to live up to its promised expectations, particularly in teaching—all its specialists get whipped off to Bosnia, Iraq and Afghanistan—is contributing to the Government’s overdependence on the National Health Service and on their continual inability to provide regulars and reservists with the full comprehensive and appropriate medical cover that they so richly deserve, including, of course, the aftercare?

My Lords, the noble and gallant Lord with his deep knowledge of military matters will recognise the importance of morale. Having been to the Selly Oak centre myself and spoken to the staff, I know that they are quite upset about what they regard as truly unfounded criticisms of the centre at Selly Oak. They asked me to extend an invitation to any noble Lords who wish to visit the centre and to see for themselves the excellent conditions under which we care for our military personnel. The investment is being made in the development of the centre to make it a centre of excellence, as I described, and the level of care that we provide for our service people is admirable.

My Lords, the closing of all the military hospitals in the savings measures after the end of the Cold War has had unfortunate consequences for military medicine in general and the care of the Armed Forces. Will the Minister undertake to look at whether it would be wise to re-establish a dedicated military hospital, which would then be able to give a career structure to the military medical branch as well as providing care for our regulars and reserves, their families and veterans?

My Lords, the House will remember that the decision to close the military hospitals was taken by the previous Government. That decision was right. Experience has taught us that high standards are maintained only by maintaining the experience of clinical personnel by carrying out clinical care. The level of casualties that we have to look after in the military is, thank God, not large enough to sustain full-scale military hospitals. On any given day, we have in hospital fewer than 50 in-patients from the military. That is for all cases, of any type. The most efficient way for people to be cared for, therefore, is in specialist military hospital units within the NHS. You need a large NHS hospital with all its clinical experience, facilities and the range of know-how properly to look after our soldiers. That is garnered only in an NHS hospital.

My Lords, I declare an interest as honorary parliamentary adviser to the Royal British Legion in fully endorsing the concerns expressed with all his customary integrity and commitment by the noble and gallant Lord, Lord Bramall. Can we now be assured that there will soon be a full ministerial Statement on steps to improve medical facilities for casualties of these deployments? Does the Minister recall the case of the mobility disabled Corporal Corrigan, who, after being flown back to the UK from Iraq, was left to make his own way home from RAF Halton to Yorkshire without even the walking aid necessary for him to do so?

My Lords, I have seen for myself, both on military operations and back in the UK, the level of care that we provide for our military personnel. The care that we provide on operations today in Iraq and Afghanistan is outstanding. I saw the investment that has gone into the very latest equipment on operations, such as CT scanners. Our personnel are experienced because of the way they have been trained in military units within the NHS. If you speak to serving members of the Armed Forces in such military hospitals, they will tell you how pleased they are with the level of care. When people come back to the UK, the care that they receive in our centres, such as Selly Oak, is excellent. Of course, if there are individual cases where matters need to be improved, we look at them rigorously and take lessons from them to ensure they do not happen again.

My Lords, did the Minister say in his original Answer that, as he speaks, there are only 50 military personnel undergoing in-patient medical treatment anywhere in the world?

My Lords, let me be crystal clear. As of last Friday, there were 14 patients in the Birmingham hospitals, as part of the Selly Oak group, from operations. On any given day, on average, there are 50 personnel in-patients in our hospitals for any condition whatever, from an operation on a knee to pregnancy. We do not have substantial numbers of cases, but we must make sure that the best possible care is given to the small number of cases that there are.


My Lords, with permission, later this afternoon a Statement will be repeated by my noble friend Lord Drayson. The subject of the Statement is “Operational Update: Iraq and Afghanistan”.

Violent Crime Reduction Bill

My Lords, on behalf of my noble friend Lady Scotland, I beg to move the Motion standing in her name on the Order Paper.

Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 45

Schedule 1

Clauses 46 and 47

Schedule 2

Clause 48

Schedule 3

Clauses 49 and 50

Schedule 4

Clauses 51 to 60

Schedule 5

Clause 61.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

Police and Justice Bill

My Lords, on behalf of my noble friend Lady Scotland, I beg to move that the Bill be now further considered on Report.

Moved accordingly, and, on Question, Motion agreed to.

Clause 16 [Conditional cautions: types of condition]:

[Amendments Nos. 64 and 65 not moved.]

Leave out Clause 16.

The noble and learned Lord said: My Lords, I wish to paint in the background of this matter as it is a long time since it was considered in Committee.

I start with the police role in cautioning young offenders. That role was overhauled by the Government in 1998 and put on a statutory basis in the Crime and Disorder Act of that year. But we are not dealing with young offenders today so I say no more about that. The police role in cautioning adult offenders has never been put on a statutory basis but it is of very long standing. It has been regulated by successive Home Office circulars setting out the National Standards for Cautioning Offenders. I believe that the most recent was issued in 2005.

Cautioning has always been a very valuable tool for dealing with low-level offenders. Its essential features are well known: the offender must admit his guilt and be willing to accept the caution. It has always been vital that cautioning rather than prosecuting should be in the public interest. It goes without saying that cautioning does not involve punishment.

The simple caution was always very useful and it still is. Then in 2003 the Home Office came up with an idea that cautioning could be made even more useful in some cases. It depended on the offender being willing to make reparation for his offence and on the victim being willing to accept reparation. The idea was that the offender and the victim should be brought face to face—always if the victim was willing—and the offender would then make amends either by repairing any damage which he had done to the victim’s property, paying the victim compensation or, indeed, just apologising. The evidence was that this,

“can reduce reoffending and improve victim satisfaction with the criminal justice system”.—[Official Report, 29/10/03; col. 362.]

Those are not my words but those of the noble and learned Lord the Attorney-General on Report in 2003. He referred then to this as a very exciting new idea. I agree that it was. The criminologists refer to it by the name of “restorative justice”. But I do not believe that anyone ever thought that conditional cautions of that kind would be useful except in a small number of cases.

The other condition which could be imposed, again with the consent of the offender, was that he should undergo some form of treatment. Again, it would obviously apply in only very few cases. The code explaining the purpose of conditional cautions, as contained in the 2003 Act, stated at page six:

“Rehabilitation: this might include taking part in treatment for drug or alcohol dependency, e.g. attendance at self-help groups”

and so on. Attendance at anger management courses is another example given.

On reparation, the code says that,

“this might include repairing or otherwise making good any damage caused to property (e.g. by cleaning graffiti), restoring stolen goods, paying modest financial compensation, or in some cases a simple apology to the victim.”

That was the idea, and, if I may say so, a very good idea it was. If, during his speech in 2003, the Attorney-General had been asked, “Why do you not extend conditional cautions so as to include the possibility of imposing a fine?”, he would, I believe, have answered: “But that is the very opposite of what we are trying to do. How can a fine help the victim? How can a fine rehabilitate the offender? There is nothing restorative in a fine, and there is no reason to suppose that it will reduce re-offending. If a fine is the appropriate remedy, it should be imposed in the usual way by magistrates”. I do not know whether that is the answer that the Attorney-General would have given in 2003, but it is very different from his answer now. I need not say that I find his 2003 speech a great deal more persuasive and convincing than the one he made in Committee on 6 July, which I have read with the greatest care.

I oppose Clause 16 on the following grounds. First, it is wrong in principle for the prosecution to determine the level of punishment. Indeed, it is wrong for the prosecution to have any say in the sentencing process at all. Sentencing has always been for the courts, at least since the Bill of Rights of 1689. No amount of Home Office guidance on how this proposed fine should be made a condition, and no amount of safeguards that could be built into the Bill at this or any stage, can get away from that basic objection.

The point can be illustrated from a very different field: the mandatory life sentence for murder. Traditionally, the Home Secretary justified his claim to have the last word on when a prisoner should be released on the ground that he was not exercising a sentencing function at all but he was only determining when the prisoner should be released. That fallacy was exposed finally and firmly by the House of Lords in Anderson, of which I am sure the noble and learned Lord the Attorney-General will be well aware. At the other end of the scale, in support of this provision, reliance is sometimes placed on the fixed penalty for parking illegally or for not wearing a seat belt. But fixed penalties are entirely different. The amount is fixed by statute or by-law; it does not in any way involve the prosecution’s discretion.

My first objection being the straightforward objection on the ground of principle, my second is that the existing conditions under the 2003 Act are entirely consistent with the basic concept of a caution. Punishment, however, is entirely inconsistent with that basic concept. Indeed, the notion of a punitive caution could almost be said to be a contradiction in terms.

When the Government say in their various documents that they are only extending conditional cautions, widening their scope or filling a gap, it sounds harmless enough. But it is not harmless, because Clause 16 does much more: it creates something “radically new”. Those are not my words, but those of Hazel Blears in Committee in the other place, where she said that this new concept could affect as many as 30,000 individuals a year. My objection is that the two ideas, a caution and punishment, are inconsistent with each other.

Thirdly, I fear that if fines are capable of being made conditions, they will soon in practice replace the other conditions, because they are much easier to monitor and enforce. If that happens, all the good done by the 2003 Act, which should continue, might be driven out by the bad done by the 2006 Act.

Fourthly, if we are introducing something “radically new”, as Hazel Blears said—and I certainly believe that—should we not have had proper consultation before we were asked to do that? The noble and learned Lord the Attorney-General has expressed regret that there was not more consultation, but he says that he and the Lord Chancellor discussed the matter with judges, magistrates and officials—although I do not know who they may be. I, too, have discussed the matter with judges and magistrates and I found no one in favour of this proposal—certainly not the magistrates, judging from their views expressed as recently as March 2006; nor do I read Lord Justice Auld in his 2001 report as favouring what is now proposed. In its recent paper, Liberty made a strong case against the proposal.

Lastly, there is surely an overwhelming case for waiting until the results of the 2003 experiment are available, so that we can know whether it is working. What is the urgency? The answer, we are told, is the pressure on magistrates’ courts and the need to divert 30,000 cases at whatever cost in terms of constitutional principle. Conditional cautions under the 2003 Act were progressive, beneficial and based on principle. The current proposal is not. It is yet another example of expediency driving out principle, and I hope that we shall oppose it. I beg to move.

My Lords, I have added my name in support of the noble and learned Lord, Lord Lloyd of Berwick. During our debates in Committee in July on conditional cautions, I made it clear that we continued strongly to support the provisions launched by the Criminal Justice Act 2003. That, as the noble and learned Lord pointed out, introduced conditional cautions intended to facilitate rehabilitation of offenders or ensure that they made reparation for the offences. But now the Government wish to impose conditional cautions as a punitive measure.

My colleague, Nick Herbert, expressed our concerns during the debates in another place about the extension of cautions to punishment, but at that time, in spring this year, we said that we would not oppose the clause while we assessed the impact of the new proposals on cautioning. I put on record in Committee our concern about developments in government policy since the clause was debated in another place. This summer, the Prime Minister has announced that he intends dramatically to increase the use of administrative punishment and avoid using the courts.

We are deeply concerned that the Government are taking our judicial system down a route that may be convenient to them but that certainly has not been proved to serve the victim and the public well. As the noble and learned Lord made clear, there has as yet been no proper public debate on this matter. He put forward strong arguments for removing this clause.

The Minister is of course aware of the concerns expressed about these measures by the Magistrates’ Association, for one, which I thank for its courtesy in coming to the House during the Recess to provide me with further briefing on its views on the matter. The association remains obdurate against the inclusion of the clause.

Fair trial safeguards and the involvement of the independent court in the delivery of punishment are also in the wider public interest and in the interest of victims of crime. The rigours of an open trial help to ensure that the right person is convicted and demonstrate publicly that justice is being done and that the state will not accept criminal behaviour. An open trial provides a public warning against offending. A publicly observed objective process in the criminal justice system can also be of great value for victims. I do not see how punitive cautions would deliver those additional benefits.

If we were to remove this clause today, we would keep to the current legal position on conditional cautions. The system has not yet been running long enough to prove its own merits or demerits, but we certainly hope that it will prove to have merits. Indeed, in Committee, when I asked the noble and learned Lord the Attorney-General about the reoffending rate for those who have accepted conditional cautions, he said that,

“the scheme has been going for an insufficient length of time to give a meaningful answer to that question”.—[Official Report, 6/7/06; col. 378.]

He also said that, if he could improve on that answer, he would write to me, and I am grateful to him for so doing at the end of last week. However, as he will know, my gratitude has to be somewhat tempered by the fact that his letter basically said: “I’ve got nothing more to tell you. There isn’t sufficient information to give a robust interpretation of the impact of the 2003 measures”. I have the letter in front of me and I give a précis of it, but the noble and learned Lord, while trying to be helpful, was not able to provide robust information to persuade me that the original cautions are working in the way that we hope.

It seems only sensible that, before further changing the law on conditional cautions, we should wait to see how the current law has operated in practice across England and Wales. After all, as the noble and learned Lord said, when Hazel Blears introduced these matters in another place she acknowledged that they were an “innovative and radical departure” from the current law. That was way back in the spring—on the morning of 23 March, at col. 167. I have nothing against innovation, radical or whatever; if it is done for the right reasons, I would welcome it. But the Government have not yet proved their case on Clause 16, particularly in the light of the policies that they have headlined over the summer. They have themselves accepted that this is a significant matter that requires wider public discussion and consultation. I noticed that the DCA’s paper Delivering Simple, Speedy, Summary Justice, which was published in July this year, says at paragraph 7.7 on page 40, that,

“we need to engage with the judiciary, criminal justice practitioners, communities and the public in general about where the balance lies between simple and immediate responses to low level misbehaviour and fast, efficient and modern court processes”.

I would certainly agree with such a consultation, but the wider debate called for in the DCA’s paper has not yet taken place. If we truly value accountability to the public and the victim, that consultation should proceed before we plunge in and include the clause.

My Lords, I support the amendment. The extension of conditional cautions beyond reparation and rehabilitation to include wider punitive conditions is highly undesirable, as we have heard expressed so eloquently by the noble and learned Lord, Lord Lloyd. We entirely endorse the current principle of conditional cautions, which is that the only conditions that may be applied are those that will facilitate the rehabilitation of the offender or ensure that he or she makes reparation for the offence.

That underlines the very important principle that cautions are meant to be an alternative to entering the criminal justice process, and it is also a means of encouraging the person not to reoffend while still at the lowest level of offending. Indeed, I believe that reparation and rehabilitation constitute constructive punishment. Making good damage to a person's property or being required to attend a rehab clinic, for example, is much tougher than simply paying a fine, which allows the offender to walk away from the reality of what he has done.

Every means of keeping people out of the criminal justice system is to be encouraged, particularly where younger people are concerned. Never has this been truer than it is today, when people are criminalised earlier and earlier compared with 10 years ago, as is well documented. That has, in turn, contributed to the catastrophic situation in our prisons today, which is due in large part to the slippery slope on which petty offenders find themselves at an early stage and to the Government’s misguided belief that prison is the only way to be tough rather than their recognising the failure that it largely is. It is important that we find ways of diverting people from offending at the earliest possible stage, which is why the conditional caution is such a constructive tool in the process.

However, as we have already heard, the extension of conditional cautions to include wider punitive conditions is another matter entirely. This clause allows inclusion of specifically punitive conditions, which at the moment might include a fine of up to £500 or a community-based order of up to 20 hours, described, as has already been heard, by Hazel Blears as an innovative and radical departure affecting up to 30,000 people a year.

We have already voiced our concerns in this place about this extension of administrative justice to punishments imposed by the police and prosecutors rather than the courts because we believe that, as a principle of justice sentencing and punishment should be imposed by an entirely independent tribunal and not a biased prosecutorial authority. There is a real risk that these proposals could be seen as allowing the police and the CPS to act as investigators, prosecutors and judges. In addition, there is a further risk that the powers could be used to deal with high-level offending. My concern is how the proposals could affect younger people or those with special needs, who are very unlikely to understand or fully appreciate the implications of what is being offered and will have little idea of where to go for legal advice. Such people are, by definition, vulnerable, and a fear of prosecution and, in particular, the idea of having to go to court is enough for them to agree to anything, whether they are guilty of anything or not.

Any extension of more punitive conditions not only has alarming implications for the extension of administrative justice in this country but runs a risk of tipping vulnerable people into the criminal justice system. I feel that that is an unacceptable price to pay for simple, speedy, summary justice. It is not only potentially hazardous to the life chances of such petty offenders but it has serious implications for the management of the criminal justice system as a large number of people are likely to be sucked into it. They, society as a whole and our system of justice risk being damaged by it.

We entirely endorse the Government's policy to make reparation and rehabilitation a central feature of policy, and it seems to us that the current legal position on conditional cautions is a creative way of embedding it. We support the amendment and the retention of the current position on conditional cautions.

My Lords, this group includes government Amendment No. 145, and I shall speak to that as well as responding to the speeches on whether the clause shall stand part. I shall do that first as, in part, it responds to at least one of the points made by the noble Baroness.

A concern touched on in Amendment No. 65, which was not moved by the noble Baroness, Lady Anelay, relates to the financial limit that is set out in the Bill and how that might be changed. I detected agreement between us on two points: first, that this policy—certainly this is the Government’s intention—is not intended to deal with high-level offending but with low-level offending and, therefore, it is right that there should be a financial limit; but, secondly, it was also acknowledged that financial limits, when set in primary legislation, need to have a mechanism for adjusting them. We responded to the concerns expressed about how that adjustment should take place by recognising that it would be appropriate to have as an additional safeguard for a change in the financial limit that no change should be made save by order subject to affirmative resolution.

Amendment No. 145, to which I now speak, seeks to ensure that any changes to time or financial limits on punitive conditions are subject to the affirmative resolution procedure. Therefore, it would require, as is obvious, any changes to those limits to be subject to a vote in both Houses of Parliament. That applies to the financial penalty and to the number of hours that an offender could be required to attend. I shall move that amendment formally when it is called.

I turn to the substance, which is the conditional cautioning scheme. I recognise, with appreciation, the support that has been expressed in all three speeches for the concept that we tried to introduce and have introduced in the Criminal Justice Act 2003. We believe that it was not enough to have simply a stark choice between a caution, which amounts to saying, “Don't do it again”, and an appearance in court, with all that that entails and with a penalty attached to it. We wanted to find ways to deal with low-level crime fast and effectively that would meet the needs of everyone, including the needs of victims when they are present. I believe the noble and learned Lord, Lord Lloyd, reads too much into what was said previously to say that this was all about victims. Certainly, a face-to-face meeting with victims is one way of dealing with a disposal, but it is certainly not the most usual way of dealing with a disposal. It certainly is not the most usual way of dealing with conditional cautions.

We also wanted to find quick and effective ways of dealing with the offending behaviour of the individual. The noble and learned Lord spoke about the rehabilitative condition, saying that he thought that that would apply to only a very few people. I beg to differ with him. The number of people in this country who commit relatively low-level crime as a result of problems with drugs, with drink and with other issues of that sort, such as anger problems, is quite high. One only needs to visit a magistrates' court any day of the week or, even more so, to visit a police station to see how often those issues arise.

However, once the scheme started to operate, it became apparent to those who were operating it that there were certain limitations in the scheme. The experience of operating it has been positive, but there are limitations in the cases where it can be used. I shall give one or two examples of that in a moment, as I tried to do in Committee when we dealt with clause stand part.

The noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Anelay, spoke of the time that we have had. There has not been enough time to reach any conclusions on the reoffending rate, but the scheme has been operating in parts of the country sufficiently to know that it is well worthwhile—I have had that directly from those operating it, who have also reported to me what the victims involved have said—and that there are limitations in how it works. I do not want to focus on the financial penalty first, but on the other condition referred to: the number of hours worked, which is looked at rather clinically. I shall give a good example, although this is not how it might operate exclusively.

You could come across an offender who has been spraying graffiti around the town. If you can identify the particular place that that offender has been spraying graffiti, you can invite him to agree that, instead of going to court, he will clean it off under the current scheme. That is reparative, because it relates to the specific graffiti he dealt with. Noble Lords might think that a good way of bringing the consequences of his behaviour home to the offender—“If you go around spraying graffiti, somebody must clean it off and you will be that person on this occasion”—and helping with his future behaviour.

However, if there is an instance where the graffiti for which he was responsible cannot be identified, although you know that he was the offender and he admits that he was, or it has already been cleaned off by the wall’s owner, you cannot say “We want you to clean graffiti off another wall instead”. In our view, that is not possible under the Bill because it is not actually repairing the specific damage he did. In terms of the benefit to him of seeing the effect of his offending behaviour, I believe that that would be an appropriate and proper response, although noble Lords may disagree. However, we could not do that without making the amendment.

My Lords, can the Minister explain how that argument would apply in the case of a fine, which is also, of course, covered?

My Lords, I am absolutely not going to shy away from that, and will come to it. It may be at the heart of the issue rather more than the point of work. It is important that noble Lords understand—this is why I take the liberty of explaining it—that the removal of this clause does not just deal with the fine element, but the sort of example I have given: that you cannot ask someone to clear up graffiti without being clear that he is responsible for it.

Where somebody has been drunk and disorderly, causing a nuisance in the community—goodness knows, I am afraid that happens a great deal—one might think that to say, “Right, you should help clear up the street on a Sunday morning, perhaps the street littered with beer cans from the night before”, would be an appropriate response. It would be a good way of bringing his offending behaviour home to him, and a good thing for the community. You cannot impose that under the current conditions. Nor can magistrates impose it, because they have a lower limit of 40 hours for community service, and cannot impose it unless it is of sufficient seriousness, which this would not be. We are missing a whole range of response.

I shall give an example of where the fine is appropriate. We currently have a system under which fixed penalty notices can be imposed by the police not just for driving offences or the sort of thing the noble and learned Lord referred to, but also, under schemes approved by Parliament, for things like drunkenness and public disorder offences. Let us take the example of someone who, on a Saturday night or whenever, drinks too much, comes out of the pub and starts with very bad behaviour. If he kicks in a door, you can invite him to repair the door if the owner of that property wants him to. Some owners of property will say, “We don’t want that person repairing our door. We don’t want him anywhere near our house”. You can suggest to him that he should go on a course to deal with his alcohol or attend self-help groups to deal with anger management. The police could impose a fine without going to court at all. It is important to recognise that, and, contrary to what the noble and learned Lord says, they have discretion—not on the amount, I accept—whether to impose a fine. What you cannot do at the moment is to say, “What this really needs is your agreement to deal with your problem by going on some sort of course, but you also need to recognise the wrongness of your behaviour by paying a relatively modest financial penalty”. You cannot at the moment do both.

The prosecution could give a conditional caution to deal with alcohol management or anger management and the police could impose a penalty. Both those things could happen outside court, but you cannot do both. This provision would enable both to be done.

What are the safeguards? This is important because the first point raised by the noble and learned Lord was a constitutional concern that punishment should be imposed by the courts. I am a little surprised that no noble Lord who has spoken has referred to the fact that this is not an imposition at all. It remains for the courts because no offender will be required to accept a conditional caution. It cannot be imposed on him against his will. He will have free legal advice on whether to accept the condition. If he does not accept the condition, he can simply say, “I will go to court. I will plead not guilty in court”, or, “I will plead guilty in court and I would rather have the court deal with it”. It is not a case of giving the prosecutors the power to punish because it is for the court ultimately to do that. A condition is being offered which differs from fixed penalties, which are a punishment imposed not by the prosecutor but by the police. I give way to the noble and learned Lord.

My Lords, I am grateful to the noble and learned Lord the Attorney-General. Is what he is saying in accordance with how human nature works? Is not the power of the prosecutor, or indeed the police, to say, “We are going to do this to you; of course you can go to court” a very powerful arm-twisting power, and does it not have to be kept under very close control?

My Lords, the noble and learned Lord will perhaps not be surprised to hear that I do not disagree with him about not having arm twisting. That is why the safeguards are important. Let me enumerate them. The first and most important is that nothing can actually be imposed. The offender does not have to admit his guilt. He can go to court. He does not have to accept the condition. He can go to court and leave it to the court to decide. But there are further conditions. This does not apply unless the proposed response is appropriate and proportionate. That is in guidance.

Secondly, the offences for which the conditional caution could be given are limited by guidance, not from the Home Office but from the Director of Public Prosecutions and approved by the Attorney-General. That will not just cover which offences are considered, it will also control the way the scheme is operated. A detailed matrix will be developed following consultation that will set out which offences could be considered for a financial penalty condition and provide guidance on the level of that penalty, again to be approved by the director and me.

Thirdly, before the condition can be proposed, there must be sufficient evidence to prosecute. The prosecutor needs to be satisfied about that. The noble and learned Lord and others will see the distinction, for example, from a fixed-penalty notice for drunkenness which does not involve a prosecutor being satisfied on the evidence; a police officer could just impose it. The House might think it would be better to have the involvement of the independent prosecutor.

Fourthly, one of the key tests to be applied to the decision to offer a conditional caution will be whether it is in the public interest to divert the offender from prosecution. That is clear in the Code for Crown Prosecutors. It identifies cases for a conditional caution as follows:

“while the public interest justifies a prosecution, the interests of the suspect, victim and community may be better served by the suspect complying with suitable conditions”.

Fifthly—I mentioned this point previously and it directly relates to the concerns expressed by the noble and learned Lord, Lord Lyell of Markyate—free legal advice will be available. As I said in 2003, that may be telephone legal advice, but legal advice will still be available to someone as to what is the effect of a condition, whether to accept it and whether that is the right thing to do.

As I said, the conditions must be proportionate to the offence; they must be suitable to the offender; and they must be achievable. I hope that I gave reassurance previously that they would take into account the means of the offender, for example. That will be clearly set out. The offender has to admit his guilt before a condition can be agreed. There is no sanction for breach of a conditional caution. If the offender does not meet the condition, he gets taken to court, not for breach of the condition but for the original offence.

My Lords, to what extent will offenders be given clear notice of the fact that free legal advice is available? Furthermore, what information will be given as to their right to proceed to court to have the matter adjudicated there?

My Lords, both will be made clear to the offender. I have made that plain throughout.

I want to bring my remarks to a conclusion because there is much more business to deal with. I have tried to emphasise, first, why I believe that the current scheme does not deal with cases where victims, the community and the public will benefit from having a speedy response to low-level crime, and, secondly, that substantial safeguards are available to protect against the concerns that have been expressed. I agree with the noble Baroness that all ways—I noted her words—of keeping people out of the criminal justice system are to be encouraged. This is one way to do that.

I want to make one final point. A lot of the debate has focused on the financial penalty. As I have made very clear, that is by no means the whole of it. I believe that there is a strong case for having that financial penalty. However, some of the debate seems to have focused more on the possibility that that might be the only condition imposed. I have given examples of where we would want it to be together with other conditions, but I recognise that that may not be clear from the way that the Bill is drafted. If that is noble Lords’ only concern, we may be able to give further thought to that, but I strongly urge the House not to reject what may be a really helpful way to deal with low-level offenders in the interests of everyone, without infringing constitutional principle, because the constitutional principle is that, at the end of the day, it is the courts who decide. The courts will decide here, because they are not being excluded in any way. The offender can go to court if that is what he wants to do.

My Lords, I regret to say that the noble and learned Lord the Attorney-General has not dealt to my satisfaction with the basic point here, which is that it is contrary to principle that the level of sentencing should be set by the prosecution and not by the courts. In one sense, that may be regarded as a small point but, nevertheless, it is one of some importance on which I wish to take the opinion of the House.

*[See col. 147]

Clause 18 [Local authority scrutiny of crime and disorder matters]:

Page 13, leave out lines 31 and 32.

The noble Viscount said: My Lords, this amendment seeks to remove the exclusion of county councils from the definition of “local authority” in Clause 18 and therefore include them within the community call to action.

As noble Lords will be well aware, county councillors are democratically accountable—I certainly do not have to say this to the noble Lord, Lord Bassam—to their local communities and work closely with local partners to ensure their community’s needs are met. These include youth offending teams, drink and alcohol teams, as well as social, education and environmental services, not to mention their work for local strategic partnerships and local area agreements. Indeed, the county council is a responsible authority for community safety services under the Crime and Disorder Act 1998 and plays a key role in this area, as the Home Office review of partnerships arising from the 1998 Act acknowledges, and yet this has failed to be translated into the Bill.

The Minister suggested in Committee on 6 July 2006 (Hansard, col. 410) that the inclusion of county council members in the community call to action could result in overlap, duplication of effort and confusion about local accountability. I put it to your Lordships that including county councils would enable powers to deal with all implementation issues and, as a result, encourage the development of local approaches which are both flexible and responsive to local needs. Inclusion will enable discretion and scope for existing local arrangements to identify where issues are best dealt with.

The County Councils Network (CNN) has suggested that the confusion the Minister referred to is more likely to occur if the exclusion of county councils is maintained. The reason is that the current proposals make community disorder reduction partnerships accountable to the district council’s scrutiny committee. That would mean that the county council services exercised through the CDRP become nominally accountable to a district council committee, therefore infringing issues of accountability.

The CNN goes on to highlight:

“In many counties there are up to eleven or twelve districts and therefore the same number of CDRPs, raising the possibility of the Police and County council being accountable to twelve different bodies”.

Surely this has the potential to lead to more confusion and less direct accountability, not the other way round. For example, county councils hold regular surgery sessions to meet local people, at which community safety issues are often raised. If excluded from the CDRP, a county member would not be able to address an issue about which he is likely to be knowledgeable. Instead, local people may face delay and frustration for a further referral elsewhere and a lack of cohesion in local service delivery.

Involving county council members would instantly strengthen local democratic arrangements and enable a read-across to the functions of larger service providers and partners such as the police. By excluding county councils, we are excluding local representatives for 80 per cent of England. I beg to move.

My Lords, Amendments Nos. 68, 70 and 73, which complete the selection initiated by my noble friend Lord Bridgeman, seek to apply the requirements of Clause 18 for local authorities to set up oversight and scrutiny committees for crime and disorder matters and what we have learnt to call the “community call for action” to the particular circumstances of the City of London.

It will be no surprise to your Lordships to learn that specific provision is needed. “Unique” is an overused description; I know, however, from having had the honour to represent the City for 24 years before entering your Lordships' House—which made me the third longest serving MP for the City since 1283—that the City can genuinely be described as a class of one. I am conscious that your Lordships' House is anxious to proceed to more contentious matters, but the uniqueness of the City of London, in more senses than one, confers certain complications, which I need to explain and hope to resolve.

I do not presume to offer your Lordships a magnum opus on the City’s constitution, but it is worth recording that the City is a corporation by prescription and not a creation of Parliament. Within the City of London, one of the three executives of the City Corporation, namely the Common Council, has, however, been given the functions conferred elsewhere on the statutory local authorities since their creation as part of the 19th century reforms for local government. It is appropriate to mention, because it has particular relevance to the need for these amendments, that the City’s internal structure bears little relation to that of a local authority. It is also worth noting, bearing in mind that the subject matter is crime and disorder, that the City itself incorporates the functions of a police authority.

These features are important because when what is now Clause 18 was inserted in Committee in another place to capture councils not operating the new style executive arrangements, with which those of your Lordships with experience of local government will be familiar, the then Police Minister, Ms Hazel Blears, noted that the clause was intended to be all-encompassing as an alternative to seeking,

“lengthy drafting amendments to the Bill”.—[Official Report, Commons Standing Committee D, 23/3/06; col. 204.]

Inherent in the intention appears to have been the assumption that the local authorities to which the clause was to apply would have an overview and scrutiny committee which the clause would complement. That was a reasonable assumption for local authorities in general because even where a local authority has not adopted the new executive arrangements, which most are required to do under the Local Government Act 2000, regulations still require those authorities to establish an overview and scrutiny committee.

That is not, however, the case for the City of London. Unlike local authorities, the City does not have an oversight and scrutiny committee. Oversight and scrutiny functions are applied by the Common Council itself, and through its committees and sub-committees. There is therefore no existing structure to which the requirement in Clause 18 can relate. A practical consequence of applying the clause would be to require the City to reform its existing committee structure and its membership. It would require the creation of another committee to scrutinise crime and disorder matters, which are overseen also by several other committees, including the committee overseeing the police functions. It would result in confusion and duplication of functions between committees, and would certainly not enhance the efficiency of oversight and scrutiny of crime and disorder issues.

As for the detail, I shall concentrate on Amendment No. 73. Amendment No. 68 to Clause 18 and Amendment No. 70 to Schedule 6 are consequential. The object of Amendment No. 73 is to achieve the scrutiny and accountability requirements anticipated by Clause 18, without requiring the creation of additional, unhelpful administrative machinery.

Subsection (1) would confer on the Common Council the powers of oversight and scrutiny conferred by Clause 18(1), but without requiring the City to set up a new committee. These powers would be exercised through the Common Council's existing administrative structure. Subsections (2) and (4) would apply the requirements of transparency contained in Clause 18(2) and (7).

Subsection (3) would apply the requirements of Clause 18(3) in respect of members of local authorities to the members of the Common Council. Subsection (5) would impose the same obligations for follow-up action on crime and disorder matters as those imposed by Clause 18(8).

Subsection (6) applies the provisions of Clause 19, dealing with guidance and regulations issued by the Secretary of State, but subject to any modifications necessary to deal with the City's administrative structure. Subsections (7) and (8) set out the definitions.

The new clause admittedly extends the text of the Bill by a few lines, but the need to provide for the City's particular circumstances is not unusual. It is perhaps worth noting that, in relation to oversight and scrutiny in health service matters, specific provision was made to deal with the City through Section 10 of the Health and Social Care Act 2001.

I understand that these amendments have emerged following productive discussions between the City and Home Office officials, which I take this opportunity to acknowledge. I hope that the Minister will feel the amendments to be a reasonable way to approach the application of Clause 18 to the City.

My Lords, there are two distinct sets of amendments here, which I shall deal with in turn. I turn first to the amendment moved by the noble Viscount, Lord Bridgeman, with his customary courtesy. I know that he will not be terribly happy with my response, but I trust that he will not take it as a slight—it is certainly not intended as a slight in any sense on county councils or their network.

The purpose of the community call for action is to enable a person to raise community safety issues of local concern with local councillors. In a two-tier area, this simply should be a district councillor responsibility. My view today is the same as it was in Committee; that is, to do otherwise would lead to public confusion, as a person could raise their concerns with county and district councillors.

It needs to be recorded that the community call for action is designed to enable the public to engage with local issues of an essentially operational nature. These issues are best handled at the district level. To extend the definition of “local authority” for the purposes of this legislation to include county councils could also bring strategic issues within the ambit of the community call for action, which has never been our intention—nor is it the intention of the draft legislation.

Of course, that does not rule out county council involvement. County councils will have a very important role. If the issue raised by the community call for action relates to matters within the sphere of the county council, it would be reasonable and proper to expect the district councillor to whom the matter was referred to discuss the issue with the local county councillor or the county council itself. Furthermore, I would also expect a county councillor to be co-opted on to the district council overview and scrutiny committee so that the views of county councillors can be fully taken into consideration in any committee report.

Given the assurance that the county council voice will have the scope to be heard, I hope that the noble Viscount will feel able to withdraw his amendment. County councils will be well looked after in these arrangements and their constructive role will be brought within the ambit through the route that I described.

I now turn to the issues quite properly raised by the noble Lord, Lord Brooke of Sutton Mandeville. I have good news for him, because not only do I fully appreciate the points that he made about the committee structure that already exists in the City of London, but it is certainly not the Government’s intention to require the corporation to create a new scrutiny committee that cuts across existing arrangements. We are more than happy to accept these amendments, in principle.

The important point is that the crime and disorder reduction partnership in the City should be subject to appropriate scrutiny as with such partnerships elsewhere, and that there is an appropriate committee that can consider the community call for action. I am sure that the noble Lord will appreciate that. It is not an expression of arrogance on our part, but we would like to offer our own draft of the noble Lord’s amendments and get the parliamentary draftsmen to look at the drafting of a suitable amendment. If the noble Lord is happy not to press his amendments to a Division—he has already conceded that they are defective in part—we will happily bring forward our own at Third Reading and perhaps even table them jointly with the noble Lord.

So I can offer some comfort to the noble Viscount and a great deal more comfort to the noble Lord, Lord Brooke of Sutton Mandeville.

My Lords, I am most grateful to the Minister for attempting to reassure me about the county councils, but there is a big difference between discretionary involvement of county councils and statutory involvement. However, I shall read the Minister’s remarks carefully in Hansard. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

Leave out Clause 18.

The noble Lord said: My Lords, in moving Amendment No. 69 I wish to speak also to Amendments Nos. 71, 72 and 74. If passed, they would have the effect of deleting Clauses 18, 19, 20 and 21. While that might seem like radical surgery to the Bill, it is proposed with the intention of being entirely helpful to the Government.

In your Lordships' House we all know that the Home Office is in the vanguard of progressive government thinking and that the way in which government operate is totally seamless, that different government departments talk to each other and that proposals emerge having been considered by all the relevant parts of government and parts of the government machine. That is the normal process, but I have the suspicion that on this occasion that process was perhaps not as perfect as would normally be the case and that the vanguardism of the Home Office has gone away at a slight tangent from some of the other thinking that I understand is going in the Government.

We have been waiting for some while for a White Paper on the future of local government, and it may have been that we would have had that White Paper in advance of our detailed consideration of these clauses if things had gone according to plan. However, that has not yet happened, although one understands that the White Paper is imminent. I am told that drafts of it may exist and may shortly be considered by the Cabinet.

Perhaps we are being slightly premature in bringing forward changes in the way crime and disorder reduction partnerships, scrutiny committees and co-options work, in advance of knowing with clarity what the Government will be proposing more generally for the future of local government. For example, we have just heard some points being raised about the position of county councils and the Corporation of London. It may be that those matters are dealt with effectively as part of the forthcoming White Paper.

I assume—because it would be very surprising if a White Paper on the future of local government did not consider such matters—that we will be looking at the function and role of the local elected representative. Implicit in these clauses is the new community call for action. I think this could be a useful step forward, in terms of giving a new explicit role to local councillors as advocates for their local communities, working with communities to move along public services.

If that is to be the case, however, and if the stories that are emanating about what may or may not be in the White Paper are true and similar community calls for action are to apply to other aspects of public services, we need to see whether the arrangements proposed in this Bill for the way crime and disorder matters will be treated can be read across effectively into the other areas of public services that might be affected by similar powers. Perhaps the Government are being premature. It may be that in a week’s time the Minister will be able to stand up and tell us what will be in the local government White Paper, but my understanding is that it is unlikely that will happen in the next few days.

Given that the purpose of the White Paper, we are told, is that there may be substantial legislation on the future of local government and its precise internal arrangements in the next parliamentary Session—although obviously we cannot prejudge what might be in the Queen’s Speech—it would surely be sensible to round up all these provisions as part of that at the same time. For example, there are some provisions in these clauses for co-options, and apparently there will be regulations to specify what those might be. At various times noises have emerged from the Home Office suggesting that police authorities should have a co-opted place on overview and scrutiny committees dealing with crime and disorder matters in the various local authorities in their area. Passing over for a moment the workload implications of that for police authority members, you then have to consider the relative status of a co-opted member of a police authority—or, for that matter, a co-opted county councillor sitting on a district council overview and scrutiny committee. What will be the relative status of those individuals compared with the sitting members of that principal council’s role in terms of overview and scrutiny? Are you not diluting the representative, community advocacy role that we understand the Government want to create as part of the local government White Paper?

Those matters have to be thought through very carefully. No doubt there are officials in government departments who have had towels around their heads and considered all these matters, and are coming forward with proposals of an intellectual clarity and brilliance that we will all wonder at when we hear them. In advance of seeing those proposals, however, it seems strange to set up a process that involves unspecified co-options with unspecified status. It is unclear where they will fit in.

We have here some convoluted, rather obtuse wording that does not work well. It is trying to fit square pegs into round holes, and they do not really fit. It is hard to see how the clauses will operate. There will clearly have to be reams of regulations afterwards to try and turn them into something that will work at an operational level. In the interests of trying to help the Government out and avoid a situation where we legislate in the next Session to unpick bits of this Bill because the prevailing thinking on local government has moved on in that time, would it not be better for the Government to wrap all this up together, to think again and not to press these clauses at this time? I beg to move.

My Lords, the proposals coming out of the CDA review, as encapsulated by this Bill, are looking, as the noble Lord, Lord Harris of Haringey, has so eloquently put it, more unworkable and more and more resource intensive. The wording on how CDRPs will function is just plain confusing. It tries to articulate a split between the levels of the CDRP that will set strategy and the levels that will deliver on this strategy. But because of the reluctance of the Government to commit anything to primary legislation, in the name of flexibility, this has been left so vague it is obtuse.

The community call for action is intended to be a mechanism of last resort, but how can we be sure that it will not be a mechanism of first resort unless safeguards against this are placed in primary legislation? And if not there, then how are safeguards to be managed and guaranteed? How do we know that overview and scrutiny committees will not be overwhelmed by matters referred to them, whether genuine or motivated by political skulduggery, extremist agendas, single issue obsessions or just plain nuisance value? How will these committees be trained, resourced and supported if there are to be many hundreds of them at district level as is proposed? Who pays—and does this represent value for money?

Police authorities will also have a particular problem, as the noble Lord, Lord Harris, has pointed out. Most consist of only 17 members, but they must find members to sit on all the strategic level CDRPs in their area and different members to sit on all the overview and scrutiny committees that will link to the CDRPs in their area. A case study that the Association of Police Authorities has supplied to me illustrates what would happen in Surrey. It states:

“There are currently 11 CDRPs in the county area discharging funds of approximately £2.5m. If the proposals for a strategic/operational split are taken forward each partnership would be overseen by a group at member level, whilst operational delivery would continue through groups similar to [those] currently in existence. The result would be to introduce an additional 11 groups to the structure of governance for community safety in the county.

There is also a recommendation that these bodies co-operate at a county level to ensure that the relevant LAA targets are delivered. It is therefore likely that at least one further group will be introduced to provide that co-ordinating role.

Each local authority would then have an oversight and scrutiny committee responsible for community safety. In the case of Surrey there would therefore be 12 such committees. The county council already has a dedicated oversight and scrutiny committee, but at district level most currently operate only loose scrutiny arrangements that would require new structures to meet the requirements of the review. As a result a further 11 groups would be introduced to oversee community safety in the county.

These committees would be responsible for considering applications under the ‘Community Call for Action’ provisions and, if necessary, triggering action. When considering applications the committee would be obliged to involve representatives from each of the responsible authorities.

The majority of funding to support community safety within the county is provided through the individual agencies, each having their own governance structure. The police are accountable through the chief constable to the police authority for their contribution. Local authorities are accountable through the portfolio holder to the Executive and to the full council for their contributions. Similar arrangements are in place for all other partners.

Furthermore, a number of issues being addressed by the CDRPs, e.g. domestic violence, require input from other partners in the wider criminal justice system and third sector requiring different governance and accountability arrangements”.

Police authorities must have a seat on these committees if police accountability in delivering the community safety strategy is to be meaningful. It would seem to leave room for a lead role for local authorities in setting community safety strategies. On the surface, that seems like a noble and democratic aim, but it is likely to erode the accountability of the police to police authorities, and that would not be helpful. Local councils and local councillors have a vitally important role to play as advocates and voices for their communities, but that leaves room for confused accountabilities, with BCU commanders pulled in many directions by many different interests. On top of all this confusion, as the noble Lord, Lord Harris, has reminded us, a White Paper is shortly to come out dealing with reforming local authorities; yet the provisions of this part of the Bill are substantially about local authorities. We really do need to wait and see what the White Paper has to say on this, or we will be back amending this Bill by the time the ink is barely dry on its cover.

My Lords, my speech on this occasion will be much shorter than my last, but it provides me with an opportunity to thank the Minister for the nature of his response to my earlier amendments. The noble Lord, Lord Harris, made a sympathetic reference to the dilemmas of the Corporation of London. I, too, feel profoundly sympathetic to the points that he powerfully argued at this juncture. Your Lordships’ House is in his debt for having done so.

My Lords, I have listened with some care to the comments that have been made in your Lordships’ House this afternoon, and I shall attempt to reflect on those as the Bill proceeds. I was amused to be described by extension as a vanguardista by the noble Lord, Lord Harris. It is well past my student years since that description was bandied around in a rather heated debate about something that seemed terribly important at the time. I appreciate the spirit in which the noble Lord approached his amendment. Some important points have emerged in the debate, but in the end I return to the position that we as a Government would find the amendment pretty much impossible to accept, although some of the issues raised are clearly very important.

It is worth saying that the partnership landscape, which noble Lords have discussed at several points during debates on this Bill, has moved on and changed substantially since the crime and disorder reduction partnerships, which are also known as community safety partnerships in some parts of the country, were officially created in 1998 by the Crime and Disorder Act. There is common agreement that they have played an important part in helping to achieve significant reductions in crime across England and Wales. We need to build on that success story by ensuring that the partnerships are as effective as they can be in reducing crime—there is a commonality of view that that is right—and in particular in dealing with crime and disorder, misuse of drugs, alcohol and other substances and anti-social behaviour. We have moved on, and there is much more of a consensus around those issues.

It is common knowledge too that the Home Office undertook a review of the partnership provisions of the 1998 Act in collaboration with key stakeholders, including ACPO, the Association of Police Authorities, and the Local Government Association. The findings of that review informed the provisions in the Bill which these amendments now seek to remove. The provisions in the Bill will ensure that key tools and good practice examples, such as effective information-sharing and intelligence-led interventions, are used to optimum effect by all partners. The provisions in the Bill allow for the Secretary of State to issue regulations to define how these proposals will be implemented by the crime and disorder reduction partnerships. The provisions are there to provide the flexibility to which the noble Baroness, Lady Harris, referred.

I understand some of the concerns raised by my noble friend about the implementation of some of these measures and I heard his ironic comments about the apparent seamlessness of Whitehall and, in particular, the role of the Home Office. I know that he would like to have seen some of the proposals as set out in the Crime and Disorder Act review made in primary legislation. For good reasons, we think that the detail should be left to regulation and guidance, and that will provide us with an opportunity to reflect further and to have more discussions and debate.

We do not underestimate the importance of ensuring that any such secondary legislation is fully informed by practitioner expertise and the involvement of partners. For that reason, we have gone out of our way to conduct extensive consultations on the detail, with more than 1,000 practitioners across England and Wales, and we will continue to work with stakeholders as we develop the proposals for implementation.

The amendment seeks to remove wholesale the provisions aimed at improving accountability arrangements for local community safety bodies by extending the remit of overview and scrutiny committees, requiring them to review and scrutinise the functions of crime and disorder reduction partnerships. These provisions also provide for the introduction of the community call for action. This will enable local communities to seek answers from the police, local authorities and their partners where they have failed to deal effectively with a community safety problem in their area. The provisions also give ward councillors new powers and duties to act on behalf of their communities to seek a resolution to those problems. This package of measures gives communities an opportunity to have both a voice and a role in community safety.

A number of councils have already undertaken reviews of crime and disorder which have changed the way that services are delivered, with tangible benefits for local people. Overview and scrutiny committees are in a strong position to tackle complex and cross-cutting issues and support partnership working as well as to assist in driving up performance. We want this approach to become standard practice for community safety.

Together these provisions form a package of measures that will enable crime and disorder reduction partnerships to continue to deliver positive community safety outcomes as well as become more visible and answerable to local communities and local politicians, who are well placed to ensure that they are well served. We reject the noble Lord’s amendments for those reasons.

These measures have not been put together in isolation. We are fully cognisant of developments in other parts of Government. We have been working closely with the Department for Communities and Local Government in implementing Crime and Disorder Act review measures, and the White Paper will complement that work. Rather than stall an important process that needs momentum and development, it is important to put in place, at least in outline, measures that will strengthen crime and disorder reduction partnerships and take forward work which has been widely acknowledged successful. I understand the concerns raised by the noble Baroness and the noble Lord. Discussions can continue on those issues, but I urge the noble Lord to withdraw his amendment.

My Lords, I am enormously grateful to my noble friend for his thoughtful response and I am pleased to hear that I have reminded him of his lost youth—that was entirely coincidental. I am also grateful for the support that my amendment has received from various corners of this House.

My noble friend said that the process of making regulations provided an opportunity for further reflection. I take that as an acceptance of my point that considerable further reflection is required. Although I understand the Government’s desire to move forward by putting this framework into legislation so that the regulations can follow, it might be better to reflect earlier rather than later on precisely how this might work.

I am absolutely committed to the idea of crime and disorder reduction partnerships, with local government, the police service and all the other relevant agencies combining on these matters. But we know that the White Paper on local government will take a fundamental look at how partnership working operates in all matters of interest to the future of particular localities. I am also committed, as I think my noble friend is, to the important role of individual elected councillors as community advocates. But, again, the White Paper will, we understand, extend and look at that in all sorts of other areas.

I am attracted to the idea of the community call for action and interested in how that might operate but, given how it will interact with overview and scrutiny committees, we would benefit from knowing precisely what the overall package will be. I digress for a second by saying that we understand that there are also to be major changes in the network of patients’ forums, to create what I think will be called local involvement networks, which will work to local authority overview and scrutiny committees. There will be changes as a consequence of that. These changes will graft all sorts of material on to the work of overview and scrutiny committees, so we are trying to legislate on something that is moving rapidly.

My noble friend said that he planned that reflection should take place between the enactment of the Bill and the introduction of regulations, but I hope that that can be brought forward. I hope that the Government will consider over the next few days whether it would perhaps be better to revise these clauses dramatically, or even withdraw them, given the forthcoming White Paper. In the next few days, the Government may internally be clearer about their direction that they are following for local government. If that view diverges from what is being presented to us today, it is important that we are not faced with having these clauses on the statute book. However, given my noble friend’s offer to reflect further on these matters, albeit at the wrong stage—I hope that he will take my encouragement to reflect further now as opposed to after the Bill has been enacted—I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

My Lords, I have to inform the House that the number of noble Lords voting “Not-Content” in the first Division this afternoon was 146, not 145 as announced.

Schedule 6 [Further provision about crime and disorder committees of certain local authorities]:

[Amendment No. 70 not moved.]

Clause 19 [Guidance and regulations regarding crime and disorder matters]:

[Amendment No. 71 not moved.]

Clause 20 [Joint crime and disorder committees]:

[Amendments Nos. 72and 73 not moved.]

Clause 21 [Amendments to the Crime and Disorder Act 1998]:

[Amendment No. 74 not moved.]

Iraq and Afghanistan: Operational Update

My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Defence. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement about our operations in Iraq and Afghanistan.

“I should like to start by expressing my deepest condolences to the families and friends of the brave servicemen who have lost their lives since I last spoke to the House on 24 July. Five soldiers have died on operations in Iraq, all killed in action. Twenty-seven personnel from all three services have died in Afghanistan, 11 of them killed in action, and 16 have been lost in other incidents, including those killed in the RAF Nimrod crash on 2 September. Others have been wounded, and our thoughts should be with them also.

“Let me turn first to Iraq. The House will be aware of the escalation of sectarian violence in recent months, particularly in and around Baghdad. The combined Iraqi and American Baghdad security plan, which I was briefed on in Baghdad in August, just before it began, is a major initiative aimed at improving security for all the communities in the city. The security element is closely followed by co-ordinated projects to improve basic services, backed by $400 million of funding. In those areas that have so far been cleared of terrorists and sectarian gangs, with 1,700 weapons seized, citizens are reporting better security and are starting to see improvements in their daily lives.

“That said, however, the overall level of violence across the city, including sectarian killings, remains unacceptable. There was further evidence of this today. But the plan is still in its early stages and there is impressive commitment from American, coalition and Iraqi forces.

“In the UK’s area of operation in south-east Iraq, the biggest challenges lie in Basra city. Two weeks ago, Iraqi and UK forces began a large-scale operation moving through the city sector by sector, strengthening security and improving basic services. One important element of the operation is a renewed effort to improve the capacity of the Iraqi police and to address infiltration by militias. The operation also includes clean-up projects, agriculture projects and projects to improve basic services, including bringing clean drinking water to a part of the city which has never had it before.

“Elsewhere in the south-east, in September Dhi Qar became the second province to be handed over to the Iraqi authorities, following Al Muthanna in July. We should congratulate the Iraqis on this achievement and also our international partners.

“In terms of future planning for the UK in Iraq, I can confirm that the force package for the next routine roulement in November, in which 19 Light Brigade takes over from 20 Armoured Brigade, is essentially that which I outlined in my announcement to the House on 18 July. I should also draw the House’s attention to my Written Statement on 11 September, which confirmed a temporary deployment of 360 troops, including specialists such as engineers to help to deliver the Basra projects I described earlier, and elements of the Theatre Reserve Battalion to provide support during the roulement period. Excluding the temporary deployment, this will leave our force level in Iraq at approximately 7,100.

“We should be in no doubt that this is a decisive period in the future of Iraq. There is much debate here in Britain, in America and of course in Iraq about the best way forward. But all agree that military means alone will not be decisive. This is especially true now, when it is clear that sectarianism and the struggle for power have emerged as a major threat to Iraq’s security. What is required above all is a political solution. That must include a genuine effort at national reconciliation, drawing all Iraq’s communities into a political process and away from violence. Prime Minister Maliki and his Government are trying to deliver this. We and our coalition partners must do all we can to support them and strengthen their resolve—so, too, must the international community as a whole, and Iraq’s near neighbours in particular.

“Let me now turn to Afghanistan. The achievements and losses of our forces in Helmand province rightly have been the focus of our attention in the past two months. The work our forces are doing there is difficult, dangerous and exhausting. I salute them—particularly the men and women of 16 Air Assault Brigade, who are coming home, having been relieved by 3 Commando. I shall be visiting them tomorrow to thank them in person but today, on behalf of the whole House, I should like formally to record our recognition of the bravery, professionalism and sacrifice of this brigade and all those from across the three services who supported them during this tour.

“On the fifth anniversary of our intervention in Afghanistan, we should reflect on the progress our efforts have brought about: 2,000 schools built; 5 million children in school, one-third of them girls; more than 70 new hospitals and clinics; 4.5 million refugees returning home. This is not a failing mission.

“NATO, in the shape of the ISAF force, and under the leadership of General Richards, now has responsibility for the whole of Afghanistan. But as we know, the summer has seen fierce fighting. As I made clear in a speech last month, the persistence of the Taliban was greater than we expected. Such is the nature of operations: the enemy always has a vote and we have adapted. But let me repeat, the force package we deployed, and which we have strengthened further over the summer, was designed to deal with violent resistance, and in every encounter with the Taliban our forces have defeated it. Moreover, by attacking us directly, the Taliban has taken heavy losses, both in northern Helmand and against the Canadians in Kandahar. We have sent a clear message that we will not be beaten in combat, a message not lost on the local population. This has strengthened the position of local leaders, some of whom are now pursuing peaceful negotiations with our commanders and with the Afghan Government.

“In Afghanistan we have reached a key point in the campaign. On Sunday I spoke to General Richards and he described the situation as a window of opportunity. If we can build upon the blow we have delivered to the Taliban, if we can quickly deliver real, concrete changes to the lives of ordinary Afghans through development and reconstruction, then we can begin to generate the lasting support the Government need.

“So we are moving forward, but consistently I have made clear the challenges we still face. The assumption of complete military command for Afghanistan is a significant achievement for NATO, but also a significant test. There are still shortfalls in the planned force structure. Caveats on the use of some forces remain. I have been in frequent, often daily discussions with the secretary-general and fellow defence ministers to reinforce the message that as an alliance we must live up to our commitment to Afghanistan, sharing the burden and the risks. I ensured this subject was top of the agenda at the NATO summit in Slovenia two weeks ago and I will continue to press for urgent action. We have made some progress; some caveats are lifting. The Poles have confirmed they will provide a battalion, and the Canadians plan to put further troops into the south. Importantly, General Richards judges he has the forces to maintain the relatively stable security situation that now exists. But I will continue to push for his requirements to be met in full as a matter of urgency.

“In Helmand, the UK Task Force also faces challenges. The battles we have fought in the north of the province have brought us to the relative stability we have seen in recent weeks. Taliban activity is down, and engagement with local leaders is growing. But we must capitalise quickly with progress on reconstruction. We are rebalancing our forces, taking advantage of the steady improvement in the Afghan army and police to concentrate our forces on the central area surrounding the provincial capital Lashkar Gah. This should increase the scope for other government departments to act in safety, and should also increase the confidence of local enterprises and international NGOs to begin the reconstruction that is at the core of our strategy.

“Back in the UK, the main challenge for me, my department and the joint headquarters and chiefs is to give our troops the resources they need to get the job done. This is a relentless task, but we are rising to it. We have now almost completely deployed the reinforcements I described to the House on 10 July, with the last few elements due in to Afghanistan in the next few weeks. That includes: two more Chinook helicopters and more flying hours for helicopters across the fleet, more capacity to train the Afghan National Army, engineers to take forward development, and more infantry. On 24 July, I announced a new package for protected vehicles for both Afghanistan and Iraq, including 100 new Mastiff and 100 additional Vector, funded by new money from the Treasury. We continue to invest heavily in force protection, including countermeasures to protect vehicles against attack, defensive aids for aircraft and personal body armour. I believe we have shown we can be responsive to the requests of commanders and we will continue to be so.

“Of course, support for our troops is not just about numbers of people and equipment; it is also about pay, conditions, welfare and medical care. In all these areas we are constantly reviewing what more is needed, and for some weeks now I have specifically been looking at pay levels for forces on operations.

“Our forces are some of the best paid in the world. Only Canada pays more across the ranks. But forces from other countries do not pay tax when on operations, and this has led some to demand that we do the same for our people. I think we can do better.

“I am pleased to announce today that we intend to introduce a new, tax-free, flat-rate, operational bonus, which, for a six-month tour, would amount to £2,240. For an average private or lance corporal, this is equivalent to the amount of tax they would pay during a six-month tour. It means that half our people on operations will be better off than under a tax exemption, increasingly so for the lower paid. The most junior will be over £500 better off after a six-month tour than if we had simply exempted them from tax. As importantly, everyone on operations will be equally better off than they are now, by just under £100 per week, free of tax.

“I would like to thank my right honourable friend the Chancellor for making over £60 million of new money available so we can fund this new bonus, without taking any existing defence funding away from front-line needs.

“This is a complex area. I have been looking at these questions for weeks, but I can assure the House that the troops who have been fighting in Afghanistan over the summer will not lose out. The payment will be backdated to 1 April 2006, as an adjustment to pay arrangements in the current financial year. Full details of eligibility will be made public shortly but I can confirm that, besides Afghanistan, it will apply to our forces in Iraq and the Balkans.

“Let me finally deal with the issue of medical care for those injured on operations. First, I want to challenge the notion that the current system is in any way inferior to what went before. In particular, the relentless attack on the work of the outstanding medical staff, military and civilian, at Selly Oak Hospital is unfair and misplaced. I have been there twice in recent months. It is one of the highest performing and most successful hospital trusts in the NHS and provides major specialist centres for trauma, burns, plastic surgery and neuroscience.

“Our primary concern is to give our injured people the best medical care available. This is to be found inside the NHS. While some have been calling in public for a return to military hospitals, we have been quietly getting on with the job of establishing a military-managed ward at Selly Oak in partnership with the NHS. I can confirm that this will be operational before the end of the year.

“I have been open about the nature of the challenges we face in our operational theatres. I do not seek to hide from this House the difficulties we face in overcoming them, but I am convinced our strategy remains the right one.

“In Afghanistan, we have to tackle the south and the east if we are to secure what has already been achieved in the rest of the country. We have to make the comprehensive approach work, with all government departments acting together to achieve our objectives. We have to get NATO to live up to its commitments.

“In Iraq, we have to support the Iraqi Government, their army and police in taking responsibility for their own security and holding the line against sectarian infighting. We will do all these things; we cannot afford not to.

“I have spoken many times about the debt we owe to the men and women who serve in our Armed Forces and who carry out this hard and dangerous work on our behalf. I am sure the House will join me in paying tribute to them again today”.

My Lords, that concludes the Statement.

My Lords, I thank the Minister for repeating the Statement. We on these Benches also express our condolences to the families of those troops killed in Iraq and Afghanistan during this long, hot and difficult summer. Our thoughts are also with those who have been wounded, some very seriously, and their families. We also pay tribute to those servicemen and servicewomen serving now in Iraq and Afghanistan, those who have served there and those who will be taking their turn for a tour of duty. It is vital that we do everything possible to look after the families of those on active service.

My immediate personal reaction to the wording of the Statement is that it is complacent to the point of being misleading and that it further discloses an inability by the Government to grasp what needs to be done, what should have been done and what must be done now. There is a growing sense that Ministers, in their public utterances, are living in an unreal world, quite different from that in which our troops on the ground are fighting and being killed.

In Afghanistan, we now find ourselves with a conflict out of all proportion to that promised by Ministers. Troops have been engaged in the hardest sustained fighting since the Second World War with a steady stream of casualties sustained in close-quarter battle, with many instances of real heroism. In these circumstances, our servicemen and servicewomen have a right to expect only the best treatment before, during and after combat.

It is the job of a responsible Opposition to scrutinise the Government’s conduct of these operations. We owe that to the soldiers out there. While we have always supported the Government’s aims—it is essential that we do not allow either country to become a breeding ground for terrorism—we have always held and expressed reservations over their actions. We have constantly maintained that, so far as Afghanistan is concerned, the Government were all the time basing their predictions on the best possible scenario.

The Prime Minister went on the record on Saturday to say that whatever our forces needed for Afghanistan would be found and supplied. Splendid. But how does this Statement point to specific actions to give effect to that promise?

The Government’s decision in 2004 to cut the size of the Army has now been exposed as a serious misjudgment, jeopardising both the morale and the safety of our troops. The number of soldiers dismissed from the Army for going absent without leave has nearly doubled since the start of the Iraq war. The Government are putting the lives of our Armed Forces even more at risk with ageing or inadequate equipment. There is an alarming shortage both of equipment—for example, helicopters in Afghanistan—and of personnel. We cannot persist with a situation where the Army is waging extended campaigns while relying heavily on the Reserve Forces to plug the shortfall.

One of the most striking features of both campaigns is how public confidence has been lost. There is a widespread belief that we are not being told the scale of the human cost of the conflict. We need to be honest with the public, as the US Government have been. The number of casualties is far too low for the number of fatalities, whether judged by a typical ratio of fatalities to casualties or by the discrepancy with US casualty figures, where there are eight times as many casualties as fatalities. That makes the figures simply not credible. Can the Minister tell the House how many casualties have been sustained in Afghanistan and can he give the House a definition of “casualty”?

Finally, we welcome the Statement’s objective: to give our injured service men and women the best medical care available. That will always be with the NHS. But wounded soldiers have been let down by a failure of “bedside” rather than “clinical” care. What are the Government planning to do to put that right—in particular, to provide more secure military wards manned by service nurses?

My Lords, I, too, thank the Minister for repeating in your Lordships' House the Defence Secretary’s Statement. From these Benches, we join in paying tribute to our brave men and women in the Armed Forces serving under very difficult and challenging circumstances.

Looking first at the Statement’s reference to Iraq and Afghanistan, I again regret that we are having to respond to developments in those two difficult and important operations through the process of a Statement rather than full debates, as we should have. On Iraq, there is much optimism in the Statement but no assessment of why things have been going so badly. Are the Iraqi people really, as it says, seeing,

“improvements in their daily lives”,

when they now die violently at the rate of about 100 per day? Does the Minister agree with the assessment of his colleague, Jack Straw, that the situation is “dire”? Does he agree with the US Marine Corps Colonel Devlin’s intelligence assessment sent to the Pentagon about al-Anbar province, in which he said that there were no functioning central Iraqi government institutions in the province and that local governments were under the “control of the insurgents”?

In our area of responsibility, can the Minister tell us in more detail what has been the trend in the security situation? The Statement refers to the handing over of responsibility in two areas. How has al-Muthanna province been in terms of violence and governance since our withdrawal in June? In Basra, what progress has been made in the difficult relationships with the local police?

Most importantly, what is our strategy for the future of Iraq? The Statement talks about there being much debate about the way forward. Are the British Government involved in the work of the US envoy James Baker? What does the Minister feel about the widely discussed US strategy for dividing the country into three parts? What are we going to do if that becomes US policy?

Turning to Afghanistan, as the Statement says, the latest extension of the NATO mission is to cover the whole of the country. That means that NATO is now responsible for all of Afghanistan, but there are still 8,000 US-led troops operating under Operation Enduring Freedom and all their air power is retained under American control. The Pentagon press statement issued at the same time as the NATO press statement states:


meaning the US—

“will continue to lead the counter-terrorism operations in Afghanistan, train and equip the Afghan national security forces and assist with reconstruction”.

So we now have both NATO and Operation Enduring Freedom doing the same jobs in overlapping geographical areas. Can the Minister share with us the military logic behind that arrangement?

Next, how are the Government responding to General Richards’s assessment reported yesterday morning that we must improve the lot of the Afghans within the next six months if they are not to turn to the Taliban for support? It is also clear that there is a turf war between the military and development agencies in helping Afghanistan—I trust that we shall explore that more deeply when we debate the Unstarred Question this evening. Can the Minister assure us that the Ministry of Defence is totally content with the work that the Department for International Development is doing and does not have its eyes on the department's funding?

Turning to the pay proposals in the Statement, from these Benches we welcome the tangible recognition through a flat-rate, tax-free operational bonus that the services are not just working in challenging circumstances but have also been operating beyond the defence planning assumptions year after year. We agree that a straight payment is better than trying to introduce some complex tax regime through taking them out of the tax bracket when they are away. However, it will take us some time to consider the detail, which is not in the Statement, to decide how different service men and women are affected and it will be very important that it is seen as a fair system by all members of the Armed Forces and the reserves. Can the Minister assure us that there will be an opportunity for the MoD to change the arrangements when anomalies surface, as they certainly will over the coming months? I also want to know how the Armed Forces Pay Review Body will treat this allowance. It will be bad if we end up having the X factor reduced next April because of the allowance that is now being implemented. Let us hope it is exempted from that.

I welcome in the Statement the assurance that the defence budget will not have to fund this extra money from the current budget. I trust that that will remain the case into future years.

Finally, more generally, what are the Government doing about the degree of tasking that our Armed Forces are now experiencing? They need either more people or fewer tasks. The Government must do something soon.

My Lords, I am grateful for the support that Members on the Benches opposite have given for the aims of our operations in Iraq and Afghanistan, and for the challenges that our forces face in those theatres. The points that they have made have focused on the implementation of these operations, and on criticisms about the way in which we have gone about it.

First, as a Defence Minister, I do not accept the assertion of the noble Lord, Lord Astor, that Ministers are living in an unreal world, unconnected with what is going on on the ground. I came back from Afghanistan on Sunday having spent some considerable time with our troops at Camp Bastion, at Kandahar and at Kabul, ensuring that I absolutely understood the challenges that they have faced in the past six months, to learn the lessons that need to be learnt about the way in which we respond to the threat that we have encountered and to ensure that we in the Ministry of Defence do absolutely everything that we need to do to support our forces. As the noble Lord said, the Prime Minister made a statement on Saturday that our forces will have everything that they need to carry out these operations.

Being the Minister responsible for defence equipment means ensuring that our processes for delivering urgent operational requirements into theatre are as effective as possible. I spent a considerable amount of time ensuring that I understood what we need to do to learn from the situation on the ground in both Iraq and Afghanistan and to respond to that. That is working. The defence procurement reforms that we have introduced have led to a more responsive system that is delivering the equipment. There is no doubt that we have issues—the noble Lord opposite has mentioned helicopters several times—and we accept that our helicopter capacity is deficient. As I said yesterday in this House, we are implementing several measures to improve the situation urgently. We have found that helicopters are an important force-multiplier, particularly in Afghanistan, and there are several areas of development that we are undertaking to put ourselves in a position to ensure that, at the next roulement, we have the helicopter capacity to meet any potential threat.

Noble Lords made a point about ageing and inadequate equipment. It is simply not the case across the piece. I accept that there are examples of equipment that has been very hard worked. The WMIK vehicles, which the Parachute Regiment has been using, are being replaced by Viking vehicles, which are new and, I must say, impressive vehicles, which the marines will be taking into theatre. We need to get the WMIK vehicles back and ensure that they are repaired and replaced quickly. We are seeing an improvement. I am monitoring closely the delivery of urgent operational requirements into theatre to ensure that we are delivering what our troops need. I simply do not accept that our procurement process is not responding in the way noble Lords describe.

The noble Lord, Lord Astor, asked specifically about casualty figures. Between 1 January and 31 July 2006, which are the latest figures that I have—I should add that a Question will be asked in the House on Monday about the specifics of casualty figures—four UK personnel were categorised as very seriously injured from all causes excluding disease, five UK personnel were categorised as seriously injured from all causes excluding disease, and 125 UK personnel were aero-medically evacuated from Afghanistan as a result of all causes. I am happy to write to the noble Lord. During my visit last week, I spoke to the commander of the field hospital in Camp Bastion, who gave me some figures from the experience that the hospital is having. He mentioned specifically the ratio of troops killed in action to casualties and I would be very happy to expand on that.

On the use of Reserve Forces and general overstretch, we must recognise that it is the policy of this Government to change the way in which our Reserve Forces are now used with our Regular Army on operations. We have found that that has been very effective. It is not a case of using the Reserve Forces because we do not have sufficient Regular Army to do the job. It is a part of the one-army approach which we are now adopting.

Today, in a Question, we debated clinical care of our military and what is being done. As the Statement said, we do not accept that we do not have sufficient medical care for our Armed Forces. I have visited the field hospitals in Iraq and Afghanistan, and our facilities in Selly Oak, Birmingham; I have spoken to soldiers about this issue. Our level of care on operations is first class. Selly Oak has delivered in a major hospital the necessary care for the cases coming back from operations. We cannot go back to the past and military hospitals. Frankly, they are unable to provide the appropriate level of sophistication and equipment to care for our people properly. We must recognise that the numbers of people in the military for whom we have to care is relatively small. As the Statement said, the best way to ensure that there is proper care is to provide it under the NHS.

On our strategy in Afghanistan, last Friday, General Richards made clear to me that the recent change in the command and operation, and the way in which the Afghan Government are focusing on development zones in the country, was a positive development. The progress made by the military in the past six months gives us a tremendous opportunity, which we must take now. One concern made to me by our military commanders in the field is that the pace of reconstruction, which takes place now and during the winter when traditionally the fighting is less, is established by next spring. I know that there is an active effort in discussions on how we can accelerate that.

In answer to the noble Lord’s question on whether I am content with what DfID and the FCO are doing, there is room for us to further leverage the work of the military in partnership with and together with the work of DfID and the NGOs. I have heard from military commanders that additional resources on the ground would be very effective and complementary to the work being done by DfID and the FCO.

We have a clear strategy for Iraq. It is true that the situation in Iraq is very difficult, which we accept. However, there is a strategy of developing a security framework in the provinces. When we feel that we have got to the point where the Iraqi police and army have the capability to take over a province we hand it over. During the summer, we successfully did that in two provinces. As regards the level of violence in those provinces, it is low. The operational over watch which we are providing has been effective. No doubt, the real challenge is in the cities; mostly in Baghdad, but also in Basra. The military strategy taking place locally is to go block-by-block through those cities to establish law and order, clear out the gangs who are killing people, stop sectarian violence and establish reconstruction. As the Statement said, it is early days to see whether that will be effective. The early indication is that it is. Operation Sinbad in Basra aims to do that and it will take many months. By the end, we will see whether it has been successful. Its success depends on whether local political support becomes further established in the city. As that is established, our strategy will be then to withdraw and provide operational overwatch in the way that we have in the other provinces.

It is not true to say that we do not have a clear strategy. In both countries we know absolutely what our plan is, but these are difficult circumstances requiring the support and development of local government and law and order in parallel with it.

I shall take away the noble Lord’s point about potential anomalies in pay proposals. I do not know the process by which we will deal with anomalies should they arise, but I am sure that we will undertake to address them if they are found. I can confirm to the House that the X factor will not be reduced as a result of these proposals. This is in addition to the present pay structure, and I am sure that the pay review body will take it into consideration. I expect the pay review body to fully take into account the enduring pressure that our Armed Forces are under, the fantastic response they are making to the challenge of operations, and the local market conditions which exist. I spoke to a lance corporal in 3 Para last week going back to Colchester. It is important that that young corporal knows that he can get on the property ladder in Colchester, and we are committed to providing a pay package which allows him to do so.

My Lords, I thank the Minister for repeating the Statement. I notice the generally positive tone of what he is saying and I am delighted to see that some of the deficiencies are now being gripped—perhaps some of them belatedly. All that is good news, as is the additional money going to those on operations, but I have raised more than once in the House my concern about the commitment of this country and its Armed Forces on two fronts, and we remain heavily committed, not only in Afghanistan but also in Iraq.

It had been forecast some months ago that by this time our commitment in Iraq would not be as demanding as it clearly is and looks like remaining. We are seeing reports of the Iraqi police, up to brigade strength, proving inadequate for the job which we expected them to do. So I repeat my question to the Minister: is he satisfied that this country and our Armed Forces are capable of continuing to maintain the level of commitment on these two fronts, with the ability to react more strongly should either front—or, indeed, both fronts—become subject to greater pressure than they are under at the moment?

My Lords, I cannot put it more accurately than how the Chief of the General Staff recently described it in saying that things are running very hot, very hot indeed. That reflects the sustained level of commitment that our troops have to manage at the present.

The answer to the point made by the noble and gallant Lord is that it depends very much on how long these operations will continue. We need to be realistic about the requirements that they will place on us if they are sustained in the long term. We must not travel in hope; we must always make sure that our Armed Forces have resources to meet that challenge. We are looking at our equipment plans to ensure that they have the appropriate balance, taking into account the operational focus in the long term, for example, and, as the noble and gallant Lord is aware, we are carrying out a spending review. As we look at those plans, we need to ensure that we have the resources for any level of sustained commitment into the future.

My Lords, perhaps I may come back to a question raised by the noble Lord, Lord Garden. Is it not perfectly clear that there is now intense reconsideration going on in Washington of the strategy that should be pursued in Iraq? What input do Her Majesty’s Government hope to have in that reconsideration and, particularly, what input do we hope to have in the consideration by James Baker, the former Secretary of State, of this topic? All sorts of ideas are being floated in all sorts of quarters, particularly in Washington. I hope that we will not be pursuing one strategy suddenly to discover that the Americans have changed their ground.

My Lords, as my noble friend would expect, we have close and multiple levels of discussion with the United States on the strategy in Iraq. However, we must take into account the views of the people of Iraq and their elected Government. The Government of Iraq do not want to see a partition of Iraq. They are clear on that point, and Her Majesty's Government support the Iraqi Government in their decision.

My Lords, it has been reported that there are restrictions on German behaviour in Afghanistan and that the Luftwaffe will not fly at night. There have also been reports of other members of NATO being bound by rules that do not apply to us or the Canadians. Will the Minister please make representations to the heirs of Scharnhorst, Blücher and Gneisenau that they should behave like proper soldiers and not ban flying at night?

Secondly, has the policy of platoon garrisons dotted about north Helmand province been altered? One platoon, or its equivalent, tied up in one fort, surrounded by a lot of screaming Afghans shooting at them does nobody any good whatever and just causes casualties and mayhem all around. That seems to have been what is happening.

My Lords, with regard to our coalition partners such as Germany and the caveats they place on the operations that they undertake, those caveats are a matter for the Government of the country concerned, in the same way that we would expect the rules of engagement to be a matter for us. There is no doubt, as I have said in this House only today, that NATO is not fully stepping up to the challenge we face in Afghanistan. The requirements which the NATO generals have asked for have not been fully met. We in the United Kingdom are providing a significant contribution to Afghanistan; we are also putting clear pressure on our coalition partners to provide the resources that the commanders need in the field.

With regard to the noble Earl’s comments about the platoon garrison, I do not believe that he has fully understood the strategy that has been undertaken there. To say that it is not doing anyone any good is to do a disservice to the brave men who have fought and died in those platoon garrisons.

The purpose of having those platoon garrisons was to make sure that in the important towns in the northern part of Helmand province, the rule of law and, in particular the influence of the local governor, Engineer Daud, were maintained at a time of pivotal security within that province early in the summer. The garrisons were defended by the British troops because it was essential to the maintenance of the operation of the local government. If the local government does not operate effectively, reconstruction cannot take place, the Afghan National Army does not get paid and the Taliban would secure a local victory which would have a propaganda effect on the local population. The fact that our brave soldiers went into those very dangerous platoon houses and, greatly outnumbered as they were, fought the Taliban and won decisively, has established in the minds of the locals that the British are serious about helping the local democratically elected Government to secure security and the rule of law in the province. It has led directly to the establishment of the cessation of hostilities in those areas and is something upon which we can build.

Our strategy is then to allow the Afghan army and police, which we have trained, to take over in those platoon houses. This will allow some of our troops to leave those platoon houses—not all of them, but some of them—and to be freed up to patrol the areas around them and ensure that reconstruction can take place. We have a clear strategy. It has worked and we shall build on it.

My Lords, I welcome much of what was in the Statement and thank the Minister for it. Does he have confidence that the good work being done by the Secretary of State for Defence in pleading every day with the Secretary General of NATO and other defence Ministers will yield anything? I do not hold my breath. What is the alternative strategy if it does not?

Will the Minister say how confident he is about the preparation and training of the composite headquarters which will take over from General Richards’ headquarters in the near future? My understanding is that it will not have the sufficient training and preparation that a core headquarters would have, along the lines of the ARC which is there at the moment.

Will the Minister say what interaction we have with Pakistan and what contribution it is making to controlling the Taliban from its side of the border? Does it still have troops on its western border? Is it still working on the problem on our behalf?

I share the rapture of the noble Lord, Lord Garden, about the bonus for our servicemen, but like him, I qualify it until we see the details. I hope that it will not be divisive across the Armed Forces. We need to remember that there are many people in the Armed Forces, across all three services, who are on long operational tours, which are not just in the Balkans, Iraq and Afghanistan.

My Lords, I thank the noble and gallant Lord for his points relating to the practicalities of the bonus. I will take them back to the department and make sure that they are taken on board. The noble and gallant Lord is right that it is vital that it is not seen as divisive, but, at the same time, it is very important that we take steps—and this is a positive step—to address this issue, as he and others have recognised.

The noble and gallant Lord asked about NATO. The track record so far is mixed. Despite the pressures we have put on NATO through our requests, there are deficiencies. It is therefore important for us to be realistic. We must go forward on the basis of our troops being on operations as partners in the coalition. We must ensure that our troops are provided with the equipment that they need to do the job. If there is any doubt about the provision of that equipment, we need to take responsibility to make sure that our troops are properly equipped.

The noble and gallant Lord asked about our confidence in the composite HQ which will take over from ARC. I have not heard any queries about it. I will probe the matter and write to the noble and gallant Lord.

The key issue in respect of Pakistan is the border and doing as much as possible to reduce its porosity. We have seen Pakistan make considerable and increasing efforts in that area. Our engagement with the Government of Pakistan has had an effect.

My Lords, the situation in Iraq appears to depend largely on the unity, the purpose and the policy of the Iraqi Government. Will the Minister enlarge a little on the difficulties being encountered there? He has not told the House. It would be useful to know what they are.

My Lords, the key difficulty at this stage in the development of Iraq exists within the cities, particularly Baghdad, but also, to some extent, Basra. It is the sectarian violence between the various gangs of militia which have been established on behalf of the Shia and the Sunni groups in those cities—they are establishing zones of territory which they are defending—and the gangs who are kidnapping and murdering people from the other sectarian groups. The key is for us to establish, in support of the Iraqi Government, police and army, a security environment in which that sectarian violence cannot take place.

A key challenge, which we recognise, has been the level of corruption that has taken place within the Iraqi police. There has been involvement in these killing squads from the Iraqi police. We have to be engaged in support of the Iraqi Government to stamp that out within the Iraqi police, and that is proving to be a very difficult job.

My Lords, I welcome the Minister’s proposals regarding pay. We shall have to look at the detail in due course, but the aim is a very good and proper one. I also support him on the medical proposals. The high cost of sophisticated medical care means that it is the only way in which what we need to do can be undertaken. Having said that, he also commented that the persistence of the Taliban is greater than we anticipated. Has that not been the same right through history and is it not a masterly understatement from John Reid’s original comment?

Lastly, has NATO not failed in the role that it should play? The Minister mentioned caveats in the use of some other NATO countries. Can we have a detailed list of those caveats? What can we do to get NATO to play a proper role?

My Lords, I am grateful to the noble and learned Lord for his comments relating to pay and the strategy that we are following for medical care. He is absolutely right that it is important for that to be done within the NHS structure.

There has been a lot of commentary in the press relating to the statement made by my right honourable friend John Reid, when he was Defence Secretary. In fairness to him, I feel that we should all read the statement in full and listen to or read the transcript from the “Today” programme. When one reads it in full, one can see that he did not simply make that statement relating to going into Afghanistan and hoping that no shot would be fired. He said that we hoped that that would be the case but that we were preparing for a very difficult mission. He went on to say that we were sending significant fighting assets in the 16 Air Assault Brigade because we recognised the challenge of what we were going to come up against from the Taliban.

We have found the resistance from the Taliban stronger than we expected. We have been forthright in saying that. However, despite it being greater than we expected, our forces have met that challenge with courage and determination and have inflicted a clear tactical defeat on the Taliban this year, which speaks to the competence and effectiveness of our Armed Forces, their tactics and their equipment. None the less, we need to look at, and are looking at, what additional resources are needed.

With regard to NATO, I am happy to write to the noble and learned Lord and set out further detail relating to the NATO commitment, what has been requested by NATO commanders and what is still outstanding. We need to continue to push our NATO coalition partners to provide the full list of equipment that NATO commanders in the field are requesting. It is vital that they do so now, because we have a window of opportunity, as General Richards has said, in Afghanistan today. We need to build on that opportunity.

My Lords, I thank the Minister for the Statement. A lot has been heard today, both now and in the earlier Question, about the medical support being given in Selly Oak hospital. However, not much has been heard about the operations of the Defence Medical Welfare Service, which the Minister will know was set up at the time of the Gulf War to provide psychological and psychiatric support to people after they had left hospital. In particular, I am concerned about the degree of support being given to members of the reserve forces, who do not remain under regular military observation when they return to the community, because there are disturbing stories that they are not being well supported in view of the strain, and other things, that they have been under during operations.

My Lords, the noble Lord, with his experience, is absolutely right that we must make sure that the level of support that we offer our Armed Forces is related not only to their physical but to their mental well-being and that it fully takes into account the subtle but very important differences between the needs of our reserve forces and our regulars. One thing that we have learnt is that by the very nature of reserve deployment, returning from operations—and not as part of a regular unit—provides additional stress for which people need support. We are taking action, as part of our initiatives in welfare support, to provide that support to our reserve forces.

The investment that we have made in support for our service people, based on an independent review that was undertaken a couple of years ago, led to a recommendation that support in terms of mental health was best done on a more regional and local basis, such that people had local support. That is being done through the use of the Priory, which has provided us with a series of centres of support to underpin our approach for mental healthcare.

Police and Justice Bill

Further consideration of amendments on Report resumed.

After Clause 21, insert the following new clause-

“Children subject to ASBO proceedings REPORTING RESTRICTIONS

Sections 1(10D) and (10E) (anti-social behaviour orders) and 1C(9C) (orders in conviction in criminal proceedings) of the Crime and Disorder Act 1998 (c. 37) are repealed.”

The noble Earl said: My Lords, the amendment stands in my name and that of the noble Baroness, Lady Linklater of Butterstone.

For 70 years the law has made it quite clear that for children involved in criminal proceedings the expectation is that reporting restrictions will not be lifted except in exceptional circumstances. In recent years, the Government have introduced legislation so that for children involved in anti-social behaviour order proceedings there is an expectation that reporting restrictions will be lifted except in exceptional circumstances. The effect of the amendment would be to reverse the situation to the status quo ante, where it stood for 70 years.

I am most grateful to the noble Lord, Lord Bassam of Brighton, for his helpful reply in Committee. He recognised the concerns about the welfare of these children and gave a very balanced analysis of the problem, drawing on his experience of being a leader of a local authority where these problems arise.

The purpose of bringing this back on Report is to hear further from the Minister on the support for families and children given these orders. The work that the Government are doing to support families is encouraging, but as we established in Committee only slightly more than 1 per cent of parents with these children were given parenting orders. Given that these orders were so effective, it seemed surprising and disappointing that those families were not being supported in that way.

The Minister countered by saying that each child was given a needs assessment, but we know from experience elsewhere that it is all very well sometimes to provide an assessment of needs but it is the services that follow and the resources that are provided that matter. Of particular concern is that significant numbers of the children are under the age of 15 and they can be as young as 10. It was quite clear from the response given by the noble Lord, Lord Bassam, that very often the names and photographs of children as young as 12 would be publicised in the local community, sometimes in a leaflet and sometimes in the local media. Tabloids have picked up the photographs of children as young as 12 and publicised them in their coverage.

It is most encouraging to hear the Government’s progress with the “respect” action plan to counter anti-social behaviour. For instance, the Prime Minister said this summer:

“The ‘hardest to reach’ families are often the ones we need to reach most”.

He went on to say that there is a requirement for earlier intervention with some of these families, who are often socially excluded and socially dysfunctional. It was encouraging to hear the statement by the Minister for Children, Beverley Hughes, about the pilot schemes she has launched in 20 local authorities, targeting parents of eight to 13 year-olds with the most disruptive behaviour. Brighton and Hove’s local authority features in that.

The general sense is that the Government’s policy in this area is moving in a positive direction, but I regret that, over the eight years that these orders have been in place, no attempt has been made, as far as I can see, to determine what the impact has been on these children and their siblings of having their identities publicised in the local areas. That causes us great concern, particularly, as we heard in Committee, when some of these children have disabilities, learning difficulties, Asperger’s syndrome and so on. Two-thirds of these children have their cases heard in adult courts. It was only in February this year that guidance was sent out that magistrates in such courts should have training in youth justice matters to assess those sensitive cases. I would be grateful to hear from the Minister, either later or in writing, what monitoring has been taking place of how effectively that guidance is being implemented. These children’s cases are reviewed after one year. That has recently been introduced, and is very welcome. Again, I would appreciate how that is being monitored.

These are complex matters. It is extremely difficult to draw the balance between the welfare and the rights of these children and the terrible impact their behaviours can have on their communities. I look to the Minister to provide more assurance on how the Government are supporting these children and families. I beg to move.

My Lords, I rise to support this amendment regarding reporting restrictions on children with ASBOs. We tabled this amendment in Committee, and we shall of course support it again. When I spoke to it then, the Minister, the noble Lord, Lord Bassam, started his reply by saying he had heard me make this sort of speech before—in other words: I would say this, wouldn’t I? Well, I have not changed my view, and I fear the Government will not have changed theirs either.

I persist in believing that children who breach an ASBO should not be named and shamed in the press. Mine is not a lone voice. The very distinguished chairman of the Youth Justice Board, Professor Rod Morgan, has spoken out eloquently against the practice, as have the CEO of Barnardo’s, who is an ex-director of the Prison Service; Napo, which has compiled a dossier on some of the damaging outcomes for children with neurological disorders such as Asperger’s, ADD or Tourette’s; and the Council of Human Rights commissioner Alvaro Gil-Robles, to name but a few. The arguments have not materially changed.

We know that the Government themselves, in a response to a Question in the other place, have admitted that they know little of the characteristics or circumstances of children issued with ASBOs. Perhaps they do not care all that much, as they have no way of knowing who it is affecting or how. We also know, however, that all childcare professionals are aware that there is overwhelming evidence that labelling children is damaging and counterproductive. It does not stop bad behaviour, since demonising children tends to reinforce the behaviour and will give a few some status with their peers, and we know that negative publicity tends to increase anxiety in the public at large, rather than promoting the understanding and good will that are so desperately needed by all concerned.

I declare an interest as chair of Rethinking Crime and Punishment. We have found that it is when local communities engage with the young people who are running into trouble and play a part in the decision-making for such children, or when they are involved in such initiatives as local crime and disorder strategies—a requirement for local involvement—both attitudes and behaviour change. First-hand knowledge of people and their circumstances has made a great deal of difference for both young and old. Nothing is achieved by promoting fear and loathing.

All that is proposed here is that the presumption of reporting restrictions is reinstated, which still leaves the court the option of publicising cases where it sees it to be useful or beneficial. It is a small but vital matter of judgment and emphasis, and one that can make an enormous difference to the lives of the people involved. I hope the Government might be prepared to consider their position this time.

My Lords, I fear we could be treading the same ground as we have trodden before. No matter; I shall press on. I congratulate the noble Earl, Lord Listowel, and the noble Baroness, Lady Linklater, on their contributions. They contribute to an important debate about the impact of anti-social behaviour orders, and they quite properly ask questions about impact and effectiveness. It is an important part of the debate that we consider those issues.

That said, I come back to the point I have made before on several occasions, that I think our approach is ultimately the best one. It is for the court to determine, and to give reasons why it thinks it right, that publicity is given in some cases, in the circumstances we envisage. I do not agree with what the noble Baroness, Lady Linklater, has to say, although I am interested. I would be very interested to read some of the cases to which she has referred, because they are important. I know from personal experience that when I talk to local residents in my own community, they think we have got the balance about right.

I was interested in the noble Baroness’s description of some of those difficult cases where people have Asperger’s or an attention deficit syndrome problem—ADD and so on—and I recognise the importance of giving careful consideration to whether publicity should be given in those cases. Earlier in the year I saw a local case reported where the juvenile concerned was suffering from a syndrome. Interestingly, the publicity had had a beneficial effect, because it made local residents rather more aware of that syndrome as an issue, and I think it led to a situation where the court carefully considered exactly what should go on from a finding in the court, and what sort of treatment should be in place to support that young person in the community.

ASBOs are community orders, and I think it right that the needs of the local community should be equally balanced against those of the young person. Although, as I have made plain, the welfare of the young person should be fully and properly considered, it is, of course, not ultimately the principal purpose of the order, which is to bring relief to the local community. That must be properly considered. Publicity of proceedings is often an integral part of the local agencies’ efforts to tackle anti-social behaviour, although it is important that we do not name and shame for the sake of it.

ASBOs are made in open court, and, unless the court imposes restrictions, the media are fully entitled to report them, even if they involve young people. It is for the court to decide whether or not to impose reporting restrictions, but the court also recognises that these cases sometimes—perhaps often—need to be reported, for two reasons: first, to help the local community and the victims of anti-social behaviour, who know that something positive has been done to stop the abuse and that someone has responded to a problem that members of the local community have experienced; and secondly, to publicise fully the prohibitions so that the community can help to enforce the order.

Publicity is not to punish or shame the individual. We need to remember that the anti-social behaviour of juveniles—and indeed of adults—made subject to an ASBO will have a serious and lasting effect on people’s lives. The needs of such individuals must be balanced with those of the community who have a right to be protected.

The courts can still impose reporting restrictions if they believe that the situation warrants it because there is a requirement on them to have regard to the welfare of the child or young person. We believe that the existing legal framework is working well in practice.

We are, of course, aware of the Youth Justice Board’s research into ASBOs and children. I cannot provide more information to your Lordships’ House today on the fruits of that research but, as I have said, I shall reflect further on the concerns that the noble Baroness and the noble Earl have raised. I shall write to both of them and share that correspondence with others who have taken part in the debates. It is right that we examine criticisms carefully and balance those against the needs of local communities and have regard to the research that has been conducted on ASBOs. We want to make sure that they are effective. I do not think that it is in anyone’s interest not to do that. As the debate has moved on and people have recognised the importance of ASBOs, it is important that we understand their effect and impact. We need to reflect on the impact on the individuals involved.

I hope that your Lordships will not be seduced into accepting the amendment, which is attractive from the perspective of the noble Baroness and the noble Earl. I encourage the noble Earl to withdraw it.

My Lords, I thank the Minister for his customary careful and balanced response. I also thank the noble Baroness, Lady Linklater of Butterstone, for highlighting the concerns about some of these children. The majority of them are seen in the adult courts and there has been much concern that those courts have not been equipped to deal sensitively with them. There have been important improvements recently. We need to ensure that those improvements and guidance are monitored and that they are properly implemented. I hope that in the correspondence that the Minister has kindly offered to send us we shall hear more about that. The publication of the Youth Justice Board’s report at the end of the month will be extremely welcome and will inform useful further debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 [Parenting contracts: local authorities and registered social landlords]:

[Amendment No. 76 not moved.]

Clause 23 [Parenting orders: local authorities and registered social landlords]:

[Amendments Nos. 77 to 83 not moved.]

Clause 24 [Contracting out of local authority functions with regard to parenting contracts and parenting orders]:

[Amendments Nos. 84 to 86 not moved.]

Clause 27 [Appointment of Chief Inspector]:

Page 25, leave out line 6 and insert “and Community Safety”

The noble Lord said: My Lords, in Committee I agreed to withdraw the amendment, encouraged by the Minister who said that during the summer the Government would look in more detail at the proposals of the Joint Committee on Human Rights, and that she hoped and expected to table government amendments on Report to address the concerns that had been raised. She also said that, like the Chief Inspector of Prisons, the new chief inspector, not Ministers, would continue to be able to set the criteria for inspections and gave assurance that prison inspection would be based on domestic and human rights standards rather than on service standards or government targets.

I was disappointed, first, that the Minister could not meet me during the Recess to discuss the amendments and, secondly, that the government amendments have not satisfied either the proposals of the Joint Committee or the concerns that were expressed or spelt out, and in particular that the Minister’s undertakings are not included in them. Only two of the six guarantees of the noble Baroness, Lady Stern, required by the Joint Committee have been satisfied. Government Amendment No. 93 covers the fact that inspections must be based on visits and government Amendment No. 97 covers unannounced inspections, but none of the characteristics of independent inspection of prisons of the noble Lord, Lord Hurd, has been satisfied; in other words, what I always regarded as the particular strengths of the position of the independent Chief Inspector of Prisons—namely, that you had the right to go anywhere unannounced and the right to set your own criteria, that there would be no reduction in a programme of regular inspections and that you reported directly to the Home Secretary and the public—are to be diminished.

I have explained before to this House that the inspection of the treatment of and conditions for prisoners is not about value for money. By the same token the inspection of prisons is not the same as the inspection of the management of individual offenders. It is the inspection of a community that is a prison and whether the various parts of it are fit for purpose. The prison and probation inspectorates are currently looking at how this might be done in the same spirit in which the inspectorates have worked together since 1996 on subjects that involve more than two of them. In the case of prisons, this includes health, education, drugs treatment and many other subjects not covered by any of the inspectorates that are subject to this proposal.

The new criminal justice inspectorate in Northern Ireland already provides a precedent for what I am saying, leaving prisons out of that merger and contracting the inspection of the prisons in Northern Ireland to Her Majesty’s Chief Inspector—the acknowledged expert. The purpose of my amendment is to save the Government from repeating a failure of six years ago. They have tried to go down this merger route before. This is not a Home Office proposal resulting from a detailed study related to this Bill, but the Home Office putting flesh on the bones of wider direction—merging 11 public sector inspectorates into four—contained in the Chancellor’s 2005 Budget speech.

In May 2000 the Home Office tried to merge the prisons and probation inspectorates and dropped the proposal six months later because it realised that it made no sense at all to merge them until the prison and probation services had been merged. The noble Lord, Lord Bassam, will no doubt remember having to admit to this House that no one was in favour of that proposal. Now it proposes to merge five inspectorates and five different functions working to three separate Secretaries of State. In Committee the Minister talked about the justice inspectorate, but there is not a single justice system working to a single justice Minister, although I am one of those who think that there should be. Unless and until there is, it seems to me to make no more sense to merge these five different inspectorates than it was to merge the two which at least had to work together on some of their responsibilities.

There is also a worrying lack of clarity about when this is to take place. In Committee the Minister told us that the Government would stage the transition of the new inspectorate and not abolish the Chief Inspector of Prisons until they were satisfied that the new chief inspector was ready effectively to carry out the prisons inspection duty. But a week before that the Home Secretary said that the post of Chief Inspector of Prisons would be abolished in March 2008 at the end of Miss Owers’s contract. There is a conflict here and I should like to know which is right.

Two weeks ago I was interviewed by head-hunters who are looking for what the noble Baroness, Lady Billingham, described in a previous debate as a superhuman being—the new chief inspector. The head-hunters are looking for someone who can speak with first-hand experience of inspecting 140 prisons, can advise 50 chief constables on personnel as well as operational matters, knows the intricacies of the Crown Prosecution, courts and probation services, is able to deal with three Secretaries of State and 10 other Ministers, can balance limited budget resources between five separate operations each of which has a full programme, has time to read and edit more than 300 reports each year and can carry out the media, official and representational tasks currently undertaken by five people in three ministries. The net effect will be that because no one person could possibly do this the chief inspector will either have to delegate tasks to the deputy currently doing them or take him or her with him to provide first as opposed to second-hand evidence. But this, of course, is the very duplication that the Government say they are trying to avoid.

I wish to make two points on the subject of duplication. First, there is no duplication at present between any of the five inspectorates. Any duplication in this area is between the plethora of regulators and auditors, many of them introduced by this Government. Secondly, where is the single immigration regulator, announced in July in the Home Office paper Fair, Effective, Transparent and Trusted, to sit? Is this to be a fifth inspectorate? Is it to be included in the proposed merger that we are discussing? Is it to take over the responsibilities of the inspectorate of prisons listed in the Bill? Is it to be the independent monitor required under the optional protocol and not included in the government amendments? If so, will that independence satisfy the joint committee of the United Nations?

The disastrous introduction of the National Offender Management Service should have provided a salutary lesson on the dangers of introducing theories before they have been properly thought through and evaluated. The Minister has talked about a joined-up offender management demanding a new type of inspection. However, less than half of the 80,000 in prison are serving sentences that include probation supervision, and less than half of the over 250,000 offenders in the hands of the probation service have come from prison. Therefore, only a minority of offenders are subject to the main direction of NOMS. By the same token, only 20 per cent of police time is connected with the criminal justice system, with the remaining 80 per cent being devoted to the prevention of crime; and yet there is no definition in the Bill of what community safety means.

In July, the National Audit Office published a paper called Wider Lessons for Public Sector Mergers of Regulatory Agencies. There are 15 recommendations, one of which does not apply to this merger because it is about retirement pay. As far as I can see, however, all the other 14 recommendations have been ignored. I will quote just two:

“Base the decision … on a balanced judgement of whether the projected benefits justify the costs of carrying out the merger”,


“Ensure there is a plan to mitigate the risks of disruption to business as usual and the interests of stakeholders”.

In the case of the inspection of prisons, the stakeholders include the public. It is no good assuming that what is proposed is do-able because some of what is being done should not be done. In the case of the prisons inspectorate, I ask what should not be done. I have to admit that I always overspent my budget every year, because I could not do what was required of me with what I had been given. Now there is to be less with which to do more, so the business is to be disrupted. I explain that by the fact that there are to be transitional costs of some £2.2 million, which are to be taken out of the existing inspectorates’ budgets, and that means that what they will be able to do will be reduced. In addition, the prisons inspectorate is now to be required to inspect prison cells, court cells and transport. If it has to do that it needs extra resources, but if it is not given the resources it will have to cut down the existing programme, which is not something that the public would welcome.

The prison system is, as we all know, in crisis. In Committee, the Minister described it as being “of superb construction”. Well, that construction has proved unequal to the task, and in addition the director-general has admitted in public that several thousand prison officers are corrupt. Throughout my time as chief inspector, my chief concern was that there was a difference between the facts that I was disclosing in my inspections and the data given to Ministers by officials and official sources. Both I and my successor have commented on this many times, largely on the grounds that you cannot make sound decisions based on fudged and inaccurate data.

Let us just look at the last inspection of Pentonville, quoted in the most powerful article by the noble Lord, Lord Hurd, in the Observer on Sunday. He quoted the lack of basic requirements, including vermin infestation and complaints about assaults and bad treatment of staff. He did not, however, mention one other complaint that the inspector mentioned, namely that the food ran out during lunch—the only hot meal of the day. For me, the two worst aspects of the report were, first, that there was no supportive first-night strategy, and night staff did not know the location of new arrivals, which suggests to me that all is not well about suicide prevention despite the assurances that we are given. Secondly, unemployed prisoners, who represented half the population, had only an average of 2.5 hours out of cell, while employed prisoners were out for about seven hours. The average across the prison was five hours, which is far less than the over eight hours that the prison was reporting. I mention that because I wonder whether under the proposed new regime those sorts of uncomfortable details will be allowed to be published.

As a soldier, I learnt that at times of crisis the one thing that you need above all is timely, accurate information. The current crisis has come about in part because the Government have failed to listen to timely, accurate information provided by their one independent and objective source—the independent prisons inspectorate. But you don’t shoot the messenger just because you don’t like the message.

All Members of this House admire not only the Minister’s ability but also her unswerving loyalty to her party’s line. Never having been a member of a political party, I speak as an informed member of the public, knowing that what is being proposed is, as has been said to me in a letter, nothing more and nothing less than dangerous nonsense whose practicalities and consequences have not been properly thought through. Were I the Minister, particularly at a time of crisis such as our prisons are going through now, the last thing that I would want to lose would be my one source of objective, independent information. Protest though the Minister undoubtedly will, a Deputy Chief Inspector of Justice, Community Safety and Custody (Prisons) who is subordinate to a chief inspector, subject to the direction of 13 different Ministers and required to have regard to such aspects of government policy as Ministers in three separate ministries may direct, simply is not as independent as the current stand-alone Chief Inspector of Prisons. I repeat sentiments that the Minister will recall were expressed from every side of the House in Committee, in the hope of preventing the Government from committing an act of wilful and unnecessary destruction of a beacon of our criminal justice system. I beg to move.

My Lords, we on these Benches have a particular interest in this matter. These Benches are the seat of people who, from the beginning of the modern prison service, have had the right to enter and inspect. That right was exercised by the Lords Spiritual because of a recognition that you cannot do anything more serious to anybody than deprive them of their liberty, and that that act itself is completely unique in the relations between the state and the subject. It deserves careful and independent scrutiny, and that scrutiny is of the first importance to be maintained. Of course, no one on these Benches today would wish to suggest that we return to the custom that the only source of independent inspection should be diocesan bishops, because we all recognise that that work these days requires independence, professionalism and resources. That does not mean that we do not continue to have an interest in this area of work, and all my colleagues share with me as bishop to prisons a concern that this feature of our prisons regime should be sustained.

I am even more astonished than I am outraged by this government proposal. I am astonished because it seems to be depriving the Government of one of the sources not only of independent judgment—as the noble Lord, Lord Ramsbotham, said—but of public support for those aspects of crime reduction that have most engaged the Minister’s committed attention. She has rightly asked representatives of the faith communities, the voluntary sector and commercial organisations to join with the Government in giving assistance to ensuring that people who have offended are enabled to make the best possible transition to society. There is no stronger ally of the Government in that respect than the chief inspector who examines prisons precisely to ensure that they are fit for the purpose of returning people to society with the best chance of not reoffending.

How does the chief inspector become such a formidable ally of the Minister and her concerns? The chief inspector does so by her direct and prestigious access to public media. The chief inspectors that we have had—sparing the blushes of the noble Lord, Lord Ramsbotham, himself—are remarkable examples of what happens when you have a highly competent, committed, objective and serious person inhabiting an office of enormous public prestige under the Crown. That is what is required of that person—to gain access to the public media and to gain publicity for the main recommendations of the inspectorate’s reports. It is simply not conceivable that a subordinate official of the enormous inspectorate that the Government are thinking of creating will have that kind of access.

We should be clear that we are talking about abolition and not merger here, because there will never again be, if this provision passes into law, a Chief Inspector of Prisons. The result will be that the public sympathy and interest which have been gained during the time of the past office holders will simply disappear.

I am astonished that the Minister, who has such a strong commitment to the rehabilitative purposes of the criminal justice system in general and of prisons in particular, should be prepared to lose that element of support in this work. In the process she has managed to alienate, as far as I am aware, every person and responsible organisation that has invested attention in prison reform—something to which she is also committed. She has lost the sympathy of faith groups, communities and Churches that, on the basis of that commitment, have been prepared to enter into the faith alliances that she has promoted, because we now suspect that the Government’s attitude to prison reform is far more detached and cynical than we had supposed.

This situation is of the greatest seriousness. I urge the Minister to think again, and I urge your Lordships seriously to consider supporting the amendment in a Division and standing firmly by it in the subsequent stages of the Bill.

My Lords, faithful to the mention made by the Chancellor in his Budget speech that the Government were minded to move to a single inspectorate, the Bill now provides for the inspectorates of prisons, police, the Courts Service, the CPS and the National Probation Service to be clustered under a single chief inspector. I cannot help thinking that that curious clustering would form a good task for a simple aptitude test. The question would be: “Identify the incongruous item”. It would have to be a simple test, because the odd one out in that list stands out so plainly as the inspectorate of prisons. None of the other four services looks at what we do to and for people who are locked away out of sight, out of hearing and generally out of mind. That is a distinct characteristic to which the right reverend Prelate referred.

Our collective responsibility for that service is in a wholly different class. Exactly because of the characteristics of prison, we need to have confidence that it has an independent inspectorate that will tell it as it is—prison by prison and establishment by establishment; not in a manner that is glossed over by reference to the problems and performance of some other responsibility with which it is said by Ministers to exist end-to-end. Such an inspectorate of independence we now have.

Once the bald facts are in the open in a report, then by all means let the excuses, explanations and justifications be made. But let them not temper the reporting in the first place under the inevitable influence of a chief inspector who was put there to achieve an end-to-end report, and who is to be subject to ministerial direction into the bargain. He will know what is expected of him.

On 6 July, in Committee, the Minister stated that,

“we need an inspection regime that looks at the offender management regime from start to finish through custodial and community settings”.

Shortly afterwards, a very shrewd and simple question was asked by the noble Baroness, Lady Billingham, who was sitting behind the Minister. The noble Baroness said:

“The department seems to be saying that everything that the Chief Inspector of Prisons now does will remain with the new inspector. My worry is that there are four other inspectorates that this super-human being will have to look after. I cannot really see how that is going to work”.

The reply by the Minister occupies the next 22 lines. While they deserve to be read, they are too long for me to cite now; but the upshot of the argument is in the last four lines. The Minister said that,

“the important thing is that what the inspectorate actually does—the independence and the rigour and vigour of the current prison inspectorate should not be diminished. It should be enhanced. That is our aspiration”.—[Official Report, 6/7/06; col. 460-61.]

I could possibly share that aspiration, but not the expectation; nor, I guess, can many people share it in the light of what the noble Baroness, Lady Stern, said in that debate. She said:

“I have not met anyone who sees any sense in this proposal”.—[Official Report, 6/7/06; col. 452.]

In the criminal justice system, the noble Baroness scarcely wanders alone—knowing no one, discussing nothing. If the Government will not heed the noble Lord, Lord Ramsbotham, then let them heed her.

My Lords, I am pleased to have an opportunity to say a few words in this debate. Mention has already been made of the Prison Reform Trust and the role of the noble Lord, Lord Hurd, in chairing that organisation. Although I do not think that it is a declarable interest, I would like to say to the House that I am chairing a Prison Reform Trust project involving work with prisoners with learning disabilities and learning difficulties.

I listened with great interest to the noble Lord, Lord Ramsbotham, whom I had the pleasure of working with during my brief tenure of office as prisons Minister. One of the points he made is one about which I too am concerned—that this proposal does not seem to involve a very clear line of communication between the inspectorate and the relevant Ministers, because of the jumbo nature of the new organisation. I hope that my noble friend the Minister can reassure us about the lines of communication between the inspectors and the relevant Ministers who will be most concerned with the subjects under consideration.

I would be grateful also if my noble friend could provide current cost estimates. When organisations are changed, considerable costs can be incurred. I would like to be assured that, in the short term, the costs of this operation will not exceed the benefits. Perhaps she can also provide estimates of long-term savings and say what constitutes “long-term” in that regard.

I share the concern that many people have expressed about any compromise of independence. I believe that the independence of the current inspectorate arrangements is a very important aspect. I, too, pay tribute to the work done by the current inspector of prisons, as well as that done by the previous distinguished occupants of that position.

I hope that the Minister will be able to resist some of the doom and gloom about the present situation in prisons. Perhaps I could share with the House an experience that I had during the summer, when I visited a prison—the young offender institute in Deerbolt in County Durham—that I had previously visited some nine years ago, when I was Minister. I was greatly impressed both by the changes to the physical infrastructure of that establishment and by the great improvements in the sense of purpose, the regimes and the innovative programmes that were being pursued. So I do not simply accept the description of our prison system as being in crisis. I think that a lot of good progress has been made in recent years and I say to my noble friend that, because of such developments, I am generally happy with the Government’s approach to prison issues and penal reform. However, on this issue, I will have to listen very carefully to her reply to this debate.

My Lords, who will rid me of this troublesome inspectorate? That was a thought that I often had when I was Minister for prisons. Its reports caused me some anxiety from time to time but, looking back, I am extremely grateful to it and think that it did an excellent job. Perhaps I should therefore support the Government’s proposal to get rid of the Chief Inspector of Prisons.

I was the first Minister to visit a prison unannounced. It was an amazing experience. Not only was I welcomed by the prison officer at the gate, who rang the governor and said, “There’s a guy here who says he’s the Minister for prisons and won’t go away”, but I found that to go into a prison totally announced was very different from my normal visits to prisons.

The Minister will argue that of course that situation will be retained. However, I put to your Lordships three things that will not be retained. One is the finance for the inspectorate, which undoubtedly will be trimmed, as the noble Lord, Lord Ramsbotham, said. Secondly, if the prisons inspectorate is joined with other inspectorates, the key element of independence and objectivity will be minimised. Thirdly and perhaps most importantly, the standing of the prisons inspectorate in the eyes of Ministers and of the public will be severely reduced. For those reasons, I cannot support what the Government propose and will support the amendment.

My Lords, I will just intervene briefly. I had a long conversation with my noble friend on the telephone yesterday morning and listened to her put forward all the arguments that we shall no doubt hear later. I promised to think very carefully about them. I have thought very carefully about them and I am afraid to say that I am not persuaded, the more so now because I have heard some excellent speeches this evening, which have demolished the Government’s case. I do not think that I am regarded as a member of the awkward squad, but one does not have to be a member of the awkward squad to say that the Government have got this one wrong.

I have three brief points. First, the crisis in the prison population suggests that this is the last moment to be tampering with what is one of the great traditions in Britain—an independent inspectorate that has shown robustness and integrity and has been willing to say things that are uncomfortable for Governments. I always thought that it was a great tribute to successive Governments and prison Ministers that they have had such an independent inspector of prisons. Indeed, that has been part of the way in which we have managed a very difficult area of life.

Secondly, like others who have spoken, I believe that the role of the Chief Inspector of Prisons is different in kind from the role of the other inspectors—so different that I think to merge them is not sensible.

Finally, our reputation internationally rests on a number of key features of British life. I suggest that the way in which we have inspected our prisons, with a real sense of independence, has sent an important message to other countries where things are not done that way. People in other countries look, sometimes with admiration, at the way in which we have managed prison inspection, so it would be a sad day if we said to the world, “No, this is coming to an end”.

My Lords, I have the greatest sympathy for the present Minister for prisons, who is in a position very close to the one that I was in when I came to the Home Office in 1982. Very soon, I had a chart on the wall to show how many places were left before we had to use executive release to make room for more prisoners to come in. We got down to 11 places at one time, and that was using the bridewells and police cells as well. It is no good saying that there is not a crisis. There is a crisis. To try to manage that crisis at the same time as reorganising an important element of what you are doing seems to me to savour of not very sensible thinking.

I share the astonishment of the right reverend Prelate, not for the reasons that he gave but because, despite the fact that I continually hear the Government say how anxious they are to decentralise, we have here a great accrual of directive power to the central authority in exactly the opposite direction. It is rather like pressing the button for No. 2 when you get in the lift on the Principal Floor and saying, “I’m going down”; it is the reverse of what is happening.

The damage that will be done by this is considerable, as has been powerfully put already. I speak only because I spent a year as Minister for the probation service and three years as Minister for prisons and my silence might be taken as a lack of concern for what is afoot. I am deeply concerned. Whatever words of assurance are given, your Lordships should read the Bill and still try to believe that, in future, the person responsible for inspecting prisons will be in any sense independent. It is simply incredible. He will be subordinate to someone who is in turn subject to ministerial direction. That is two layers that do not exist now to cloak what he is able to bring out.

Finally, I echo what the noble Lord, Lord Ramsbotham, said in a most powerful speech. A Minister is the prisoner of his civil servants when it comes to receiving information. The only other sources are hearsay and newspaper reports unless you have an independent inspector to do that job for you. In the circumstances in which we now understand prison staff work, that is an absolutely essential connection of the Minister to reality. Connecting to the public also gives the Minister muscle in Cabinet or in departmental meeting, because the public become aware of what is wrong and want something to be done about it—as do we. Let us not stop that happening by passing this ridiculous part of the Bill.

My Lords, my name is on a number of these amendments, so I would like to speak. However, I should first apologise to the noble Lord, Lord Ramsbotham, for not being in the Chamber at the beginning of his speech. I was so busily caught up with these few words that the debate crept up on me.

I am saddened and disappointed to be making this speech because, after our July debate, I genuinely believed that we would be able to reach some agreement on the prisons inspectorate. However, that has not materialised. The Government’s aim to bring together the various organisations to make the criminal justice system more streamlined is fine by me; I have no problems with that. However, to achieve this, I can see no necessity for the prisons inspectorate to be subsumed within this mass of other inspectorates. I, too, believe that the prisons inspectorate is different. It alone deals with the conditions in which prisoners exist, a matter that I believe must be judged as one of the cornerstones of progress in any civilised society.

I am afraid that, for once, Hansard got it wrong in July. It was me who spoke in the debate on this matter and not my noble friend Lady Billingham. We are sometimes mixed up, even when we go to pay what we owe in the Dining Room. I said in the debate that I believed that whoever headed this proposed new inspectorate would need to be superhuman. After the Home Secretary's Statement to the other place yesterday, I believe that that is even more the case.

We are told that we are to have more prisons. Prisons are to be recategorised to accommodate prisoners that they were never meant to house. There is going to be maximum flexibility within the prison estate—whatever that means—and we are to use police cells for convicted prisoners. At the same time, if the Bill goes through unamended, the real vigour of the prisons inspectorate will have been lost.

The overcrowding in our prisons is pertinent to this debate because overcrowding means that rules cannot be kept to and prisoners’ rights go out of the window. The number of prisoners in the system and their welfare go hand-in-hand, and the prison inspectors are the guardians of that welfare.

As the noble Lord said, this is not a new position in which the country finds itself—we have been here before. In the late 1980s, the noble and learned Lord, Lord Woolf, the then Lord Chief Justice, in his inquiries into the Prison Service following the Strangeways riots, identified overcrowding as bringing perpetual crisis management to the system. He was right. Considering a reduction in the individual independence of the prisons inspectorate at this time and proposing to lump it in with other inspectorates is wrong. If there has ever been a time when there is a need for a hands-on separate prisons inspectorate, it is now.

In July, I told the House that, although it might be expected that the Prison Officers’ Association would welcome this change in the prisons inspectorate, in fact it did not do so. This morning I again contacted the POA general-secretary, Brian Caton, who told me that the POA continued to believe that the amalgamation of the prisons inspectorate with other inspectorates would,

“delete its effect and be disastrous”.

I agree. I ask the House to support the amendment.

My Lords, first, I extend my great congratulations on a most incredible and powerfully argued speech from the noble Lord, Lord Ramsbotham. I think that that sentiment is probably shared by most of us in the House today. I also congratulate the right reverend Prelate, whose outrage and astonishment I share.

When this issue was debated in Committee, it was argued passionately and almost unanimously that the prisons inspectorate should not be merged into the proposed new mega-inspectorate. Few voices, if any, apart from those of the Government, were raised in favour of the proposition, and I believe that the Summer Recess has done nothing to diminish that passion. It is devoutly to be hoped that this time the Government really will have ears to hear and will listen.

The arguments for retaining the separate identity, independence and unique role of the prisons inspectorate remain the same and are, I believe, overwhelming. When we are dealing with issues concerning the treatment of people who have been deprived of their liberty and are locked away out of the public gaze, there has to be a body with the independence, expertise and muscle to ensure that international human rights standards are complied with and that safety is maintained. That is what our highly respected and internationally admired prisons inspectorate currently does.

We think that we live in a civilised country but that does not guarantee that what happens in our prisons is always civilised—far from it. Indeed, it is arguable that the current chronic overcrowding of our jails makes it almost inevitable that it is not, when people are literally warehoused and churned from place to place as beds become available and any form of rehabilitation is virtually impossible. The excellent reports from the inspectorate demonstrate that but, more than that, there is evidence that the inspectorate contributes directly to promoting change and good practice as a result of its recommendations. Indeed, it also draws attention to existing good practice and helps to disseminate that too.

The inspectorate is so much more than an auditor of process and systems. It requires very special knowledge and insight to inspect properly the treatment in and conditions of penal custody. Without it, there is little doubt that there is a serious risk that standards of treatment will drop and breaches of human rights of prisoners will take place. There is also the concern from the parliamentary Joint Committee on Human Rights that the Government’s plan,

“would not be compatible with the requirement of the Optional Protocol to the [UN Convention against Torture] that there be independent monitoring of places of detention at the national level”,

without the insertion of specific guarantees. The six safeguards laid down by the JCHR to ensure compatibility have not all been addressed by the Government and, without them, it is not acceptable that current standards should be undermined by the Government's proposals.

I draw specific attention to one area which requires a particular specialist skill within that of the inspectorate as it currently operates. This concerns the children that we have in custody. Here, there is a separate specialist team, which uses child-centred, welfare-based criteria and has a different set of expectations from those used by the adult prison inspectors. It spends a lot of time talking to children. It conducts joint inspections with Ofsted and the Social Services Inspectorate, thus acknowledging the particular needs and issues of this relatively small but extremely important and sensitive area of inspection. It also demonstrates how importantly it rates partnership, working with other experts. We have heard nothing of the provision that the Government might make for this aspect of the inspectorate's work, and I should welcome a comment on this from the Minister when she replies.

The chief inspector’s latest annual report demonstrates some alarming findings. The most recent annual survey of the juvenile population shows that an average of 73 per cent say that their bell is not answered within five minutes; more than a third say that they feel unsafe all the time; a quarter have been insulted or assaulted by staff; and 2 per cent say that they have been sexually assaulted by staff. The latest report from Huntercombe YOI expresses serious concern about the use of force to strip-search children—an acutely traumatic experience for those who have been abused before coming to prison, of whom there are a significant number. In the six months before the inspection, there were four child protection referrals following allegations made by children of abuse while being strip-searched. That is evidence taken by very qualified people who spend time talking to children, and it is taken very seriously.

It is interesting that in the child prisons—the STCs—inspections are carried out by CSCI alone because the children are very young. It took an investigation by my noble friend Lord Carlile into the treatment of children in custody to discover children experiencing practices which would be called child abuse in any other non-custodial setting. That demonstrates the real specialism of the inspectorate.

That is all shocking evidence which needs to be exposed to protect this particularly difficult and vulnerable group within the prison population—the children. As I have shown, it requires very specialist skills to uncover it, even when YJB monitors are on-site. How can we possibly allow this work to be diluted or compromised? I sincerely hope that this time the Government will be able to listen to the arguments from all sides of the House and reconsider their position, where the whole will be far less than the sum of its parts. There is too much at stake.

My Lords, many years ago, a man called Blake escaped from prison, and the Mountbatten report was produced afterwards. At the end of that report, I was approached, along with some rather special people with whom I was living at the time, and asked to go round prisons, to look at them and to produce some suggestions about making them harder to escape from. I had the full support of every prison governor and many of the senior warders. I visited, with a little team, and lived in prison. I hope we did our job well.

I got very close to the then inspector of prisons whom I thought was a remarkable man. Even then he was worried. I shall not say which political party was in power and speaking from these Benches it does not really matter. He told me that because there had been a disaster, the heavy hand of government was on him every day—harder and harder—and he was frightened of losing his independence as the Chief Inspector of Prisons. We did what we could to help him—I am not saying that that was very successful—but the Government of the day did not treat him particularly well. The lesson I learnt over several months in the prisons business was that such a man or woman must be entirely independent, reporting only to the very highest in the land at top Secretary of State level. I am rather horrified by what is being proposed tonight. I think it is completely wrong.

My Lords, the position of the Chief Inspector of Prisons has been a great success and the structure embracing the Chief Inspector of Prisons has been a great success. I hope my noble friend the Minister will think again.

My Lords, I apologise for not being present in July, but I was taken ill. I remind the House that I have the privilege of chairing the All-Party Group on Penal Affairs. The Government’s proposal to abolish the independent inspector of prisons is entirely perverse, not least at this time. My noble friend Lady Quin objected to the word “crisis”, but perhaps we can agree on the word “failure”. Any system that spends £37,000 of taxpayers' money every year on locking up each prisoner when two years later 73 in every 100 are back behind bars must be rated as a failure. I am bothered and alarmed that there is not more public concern over that waste of resources. Something clearly is not working in the prison system.

I am especially bothered about the proposals relating to the inspector of prisons as it is precisely at times of overcrowding, with jails bulging at the gates, that added pressures are put on staff. Added pressures on staff mean that mistakes are made, rules are broken and the rights of those whom we lock up are not respected, but ignored. The bigger the pressures on overcrowding, the more mistakes are made, and any attempt at sensible rehabilitation and proper, consistent education goes out the window as well. That is bad enough and adds to the waste of resources but now, because of the pressures on staff, under the Government’s proposals, those behind locked doors will not be properly inspected.

I would like the Minister to explain to the House what extra benefits we shall receive from this new jumbo system of inspection of our prisons. What is Her Majesty's Chief Inspector of Prisons not doing now that will be more effectively done under this amalgamated system? I hope my noble friend can spell that out because there has to be a reason for this proposal that makes some sense. It gives me no pleasure to say that the Government will not have my support tonight on this proposal. They do not deserve it.

We have an outstanding system of inspection of our prisons that is literally the envy of the world. I agree with every word that the noble Lord, Lord Ramsbotham, a very distinguished former Chief Inspector of Prisons, has said. People from all over the world beat a path to the door of whoever holds the office of Chief Inspector of Prisons to learn how we do this. The pity is that, dare I say, over the years successive Governments and successive Home Secretaries have not taken enough notice of what inspectors have said. Is it not right that time without number the response is, “That was six or eight or nine months ago and most of these recommendations have been put in place”? We know that that simply is not the case.

I urge the Minister to listen to what is being said all around the House. This system deserves and demands to be kept in place, especially at times when we are running out of cells in which to put convicted prisoners. I hope that she will listen and abandon this proposal.

My Lords, I add the support of these Benches to all the amendments tabled by the noble Lord, Lord Ramsbotham. Grouped with those are two rather modest amendments in my name—Amendments Nos. 88 and 89—and I suggest that the mood of the House might not be with me were I to try to speak to them. I propose to table them at Third Reading for consideration, if the Minister is happy with that. They relate to Her Majesty's Inspectorate of Constabulary.

The guiding principle to which we have adhered is that it is wrong to damage the authority and independence of the Inspectorate of Prisons. We believe that the Government’s proposals would do just that. In Committee, I set out our beliefs and arguments in detail. It would not be appropriate for me at this stage to repeat them.

I recall that, a lifetime ago, when I was a student reading law reports and trying with my addled brain to make sense of them, one member of the Court of Appeal seemed to say almost every time merely, “I agree and have nothing to add”. I used to wonder why he wasted that opportunity to put forward his point of view. Tonight is that time. The passionate convictions have been put and the expertise has been revealed by all those who have exposed the weaknesses of the Government’s proposals. All the arguments have been persuasive. So I agree and have nothing to add, except my passionate conviction that the amendments tabled by the noble Lord, Lord Ramsbotham, are right.

My Lords, I have, of course, listened with the greatest care—and with a little alarm and anxiety—to everything that has been said. The noble Lord, Lord Ramsbotham, in his very powerful speech said, “Don't shoot the messenger”. In addition he suggested that the messenger was the purveyor of objective information. These amendments are not designed to shoot and do not shoot the messenger. I say to the noble Earl, Lord Caithness, that I have never for one moment ever thought, “Who will rid me of this troublesome inspector?”.

My Lords, I understood him to have felt that. I do not share his anxiety. We have understood that inspection, with all its rigour and its painful, acute attention, brings to our scrutiny something that nothing else could give us. I agree with all those who say that we demand and need that level of acute objectivity. I do not hesitate to say that there are some who are thereby greatly assisted in Government. The argument in support of certain changes and difficulties becomes easier if there is support, encouragement, information and data in a report, enabling them to make it with greater power. I see the noble Lord, Lord Elton, who has doubtless had a common experience, nodding his head. I make it plain to the House that we do not make these changes on the basis that they will dilute, divert or in any way subtract from the acuity which has been brought to bear on this issue. Inspection has value.

However, as wonderful as our inspector of prisons is now and has been, all the successors in title are equally difficult, and long may it be so. Noble Lords will perhaps remember his honour Judge Tumim, who was succeeded by the noble Lord, Lord Ramsbotham. Anyone who thought that the replacement would make it easier soon learnt their mistake. After the noble Lord, Lord Ramsbotham, shuffled off this particular mortal coil, Anne Owers took up the cudgels. She has been equally vigorous. We have on each occasion found someone of real calibre to discharge this duty. If anyone wishes to know whether super-human beings exist, they need only listen to the debates in this House. We seem to have a large number of them here.

Our proposals will not undermine the quality of inspection. My noble friend Lord Corbett asked what this new inspectorate adds. It adds a great deal. I remind the House that we are talking about five independent inspectorates, each of them excellent. We rely on each to give us that level of change. Things have changed, however, and I must remind the noble Lord, Lord Ramsbotham, how much. He talked about a justice inspectorate working to a single Minister, and points out that there are three. On a number of occasions, I have shared with this House the significant changes since the 2003 Act. The creation of the National Criminal Justice Board with the local criminal justice boards means that the three Ministers, together with the subordinate Ministers who discharge this duty, come together in the National Criminal Justice Board every month to make significant decisions about how the criminal justice system should be managed end to end.

Through that process, we have learnt that the system must be just that if we are to protect individuals, and provide rehabilitation and change. The right reverend Prelate the Bishop of Worcester said that he was shocked and surprised. I confess that I was shocked and surprised that he should think that we are in any way cynical about our work. I assure him that the passion we feel for changing is by no means diminished, and any action in this regard, although we may disagree, is not due to any degree of male fides. I hope that he will accept that as the truth.

Let us look at the added value. There are huge gaps in what we do and what we know, which must be filled. The noble Lord, Lord Ramsbotham, said that while 80,000 people are in our prisons, only a small percentage would be subject to supervision. I again remind him of the changes in the 2003 Act, meaning that in the majority of sentences people will spend part of their time in custody and the rest in the community.

My Lords, I did not say “a small proportion”. I said “less than half”. I think I am right in saying that some of the provisions of the 2003 Act, such as custody plus, have not been able to be enacted. That may well be the intention, but I suggest that it is not currently the case.

My Lords, the system we are putting in place is not simply to deal with the situation today, but the whole framework we wish to have in place for the criminal justice system as a whole. We are moving to a situation when it will not just be the period in prison, but will also extend to the period in the community. We are determined to reduce the unacceptable level of recidivism. That involves the seven pathways—which the noble Lord will know about—the work we must do across the piece, and the link between the juvenile estate and the adult estate and making sure they dovetail. We are not prescribing a framework for what is now, but what will be. That is an important issue.

We believe that we have fully registered the concerns about dilution of prisons inspectorates. The Bill preserves the existing remit of the Chief Inspector of Prisons as a special duty. It places a statutory duty on the chief inspector to maintain expertise in inspectorate staff. Transition will be managed to ensure business continuity. On the date, we have of course made plain that this will take time. We said that we would only abolish the prisons inspectorate when the new chief inspector is fully able to take on the role. To facilitate a smooth transition, the appointment of the current Chief Inspector of Prisons has been extended until April 2008. It is hoped that the timetable will encompass such a smooth transition before then. However, it is of course open to Ministers to review a further extension if the timetable proves not to fit into the April 2008 framework. That is what we intend, and how we propose to deal with it.

There has been a suggestion that this could be a cost issue—my noble friend Lady Quin was concerned about costs. I assure her and the House that we expect a one-off cost of setting up the inspectorate of about £2 million. Over time, there should be some efficiency savings, but we expect to maintain total annual funding at broadly existing levels: approximately £20 million per year. Those costs will be met by the business areas in the Home Office, the Department for Constitutional Affairs and the office of the Attorney-General, which are responsible for funding the existing five—

My Lords, I thank the Minister for giving way. Will she confirm that, under the new arrangements, it will be for the new chief inspector to determine the budgetary priorities between the various aspects of the inspection? Does she accept that one of the worries that many of us have is that ministerial direction may influence those priorities in such a way as to impede the proper functions of the prisons inspectorate?

My Lords, I understand that that is an anxiety. That is why, in structuring, we are putting a specific duty on the existing remit of the chief inspector to ensure that the prisons duty will be carried out. I assure your Lordships that we will be as zealous about those matters as we are now. That is not going to change.

My Lords, does the Minister accept that every single speaker this evening, other than the Minister, has indicated that they regard the present system as making Ministers and the Prison Service more accountable? Would it not therefore be sensible not to diminish public confidence in the system, but to keep the system as it is now for the sake of public confidence?

My Lords, I can assure the noble Lord that although I have been in this House for quite a long time, my hearing has not been diminished. I understand what has been said and I have internally digested it. It is only right and fair that I should say to the House that I understand and hear noble Lords’ anxiety. I understand what they fear and, indeed, why they fear it, but it is my role to try to assist the House to understand why those fears, which have been properly, eloquently and expansively expressed, are not founded in fact. It is of course open to the House in due course to disagree, but that is our democracy and that is the purpose. If there is only one person who will defend the Government’s position, your Lordships may notice that it should be me.

We have considered these issues because these concerns were very much our concerns. We have carefully considered the recommendations of the Joint Committee on Human Rights and are now introducing an express requirement that every place of detention should be inspected and clarifying that nothing can prevent the chief inspector from making unannounced inspections. That meets the proper concerns expressed. We have also considered the concern that there will no longer be a single senior independent office-holder with sole responsibility for prison inspections. We intend to develop a strong senior management structure with function-based heads, backed up by the retention of existing specialist expertise throughout organisations to whom the chief inspector can delegate responsibility for specific areas. We are not seeking to diminish that level of expertise. That is true not just for prisons.

The only other matter to answer is the query of the noble Lord, Lord Ramsbotham, about the immigration regulator. That position has yet to be decided, but I will certainly make sure that the House is kept informed. We will not commence the justice inspectorate’s new duty to inspect the immigration enforcement system until the position is clear. Meanwhile, there will be no break in the inspection of immigration detention facilities.

My Lords, before my noble friend sits down, will she answer the question I put to her? What will the new arrangements for the inspector of prisons add to what is currently done?

My Lords, the nature of prisons has changed. At the moment, the prison inspectorate deals with all issues, although, as the noble Lord, Lord Ramsbotham, says, health, education and other matters have been dealt with jointly. As a result of changes made for those in prison, we now want multi-disciplinary inspections which do not just look at the health and safety issues but at the relationship with inmates, the transfers and the planning of care plans.

As regards the specialists, we will now have a specialist team, independently scrutinising these issues, which we believe will add value to what is already done. It will not diminish what is being done, because we hope that that will be maintained, but in addition there will be a greater degree of expertise and acuity from the other professionals conducting the joint inspections.

A number of reports, not least from Andrew Bridges, the Chief Inspector of Probation, have outlined graphically how they see the added value. We believe that as a result of the joined-up working, we will be able to get not only what we have now, but the added value of a joined-up inspection. For those reasons, I invite the noble Lord, Lord Ramsbotham, not to press his amendment. Hell will doubtless freeze over first.

My Lords, I thank noble Lords from all sides of the House who have spoken with such power and clarity and—dare I say it?—unanimity on this issue. I also thank the Minister for the care with which she has listened to what has been said and for the habitual courtesy with which she has responded. But she has not persuaded me by what she has said, and I wish to test the opinion of the House.

[Amendments Nos. 88 and 89 not moved.]

Clause 29 [Duties of Chief Inspector with regard to prisons etc]:

Page 27, line 29, leave out subsections (7) to (9).

The noble Baroness said: My Lords, in the light of the outcome of the Division, I think it would be right for me to advise the House that I shall not now move the government amendments in this group: Amendments Nos. 90, 93 and 97.

[Amendment No. 90 not moved.]

[Amendment No. 91 had been withdrawn from the Marshalled List.]

Leave out Clause 29.

On Question, amendment agreed to.

[Amendment No. 93 not moved.]

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.37 pm.

Moved accordingly, and, on Question, Motion agreed to.


rose to ask Her Majesty’s Government what further assistance they are providing for the reconstruction and security of Afghanistan.

The noble Lord said: My Lords, this Question was originally tabled in the name of my noble friend Lady Northover. I much regret that, because of family illness, she is not here to open this debate.

We have supported the agenda for Afghanistan set out by Jack Straw some five years ago. It was clear that the international community had failed the country at the end of the Cold War and that we had to change it from the haven for terrorism that it had become. This required the international community working together on reconstruction and economic development which, in turn, required political reform and adequate security for the rule of law.

During the past five years, progress has been made—I am sure that the Minister will tell us about that progress—but it has been much slower than it should have been. That is because the main players moved resources to the foolish adventures in Iraq. The trends are now not as positive as we might wish. Non-governmental organisations are reporting that deteriorating security in many formerly peaceful provinces has resulted in a disabling environment for development. Although there is visible economic activity and improvement of infrastructure in many parts of the country, persistent unemployment and high levels of corruption are increasingly problematic. I shall focus primarily on the new developments this year, and ask the Minister several questions about the effect of the changes on overall progress and what the British Government intend to do about them. Unlike in Iraq, we have benchmarks against which to measure progress. The Afghanistan compact was drawn up in London in January, and gives us those benchmarks for a range of issues, including security, drugs, gender equality, and social and economic development.

Although formulated only nine months ago, these benchmarks now seem overly optimistic. For example, all illegal armed groups will be disarmed by the end of 2007 in all provinces. Does the Minister believe that this is still achievable? By the end of 2010, there will be in place effective measures that contribute to the elimination of poppy cultivation. After this year, which showed a 60 per cent rise in the total poppy harvest, where are the UK priorities now? By the end of 2010, the national action plan for women in Afghanistan will have been fully implemented, and female participation in all Afghan governance institutions will be strengthened, so the compact says. Does the Minister agree that the extension of education to girls—one of the major achievements since 2001—is now being threatened by the widespread closure of schools in the south? What are Her Majesty’s Government doing to help to provide safe access to education for girls in Afghanistan and protection for female government employees working in high-risk areas?

The United Nations and the Afghan Government launched a drought appeal in July. Why has the United Kingdom not committed any funds to the appeal so far? In all this, the security strategy is key. As we heard earlier this afternoon, NATO has taken responsibility for the whole of Afghanistan. The recent fighting in the south, including Operation Medusa in Kandahar province, has had a major impact on civilians. The Afghan Government have reported that 4,000 families in Helmand and 2,500 families in Kandahar have been displaced as a result of this ongoing conflict. Will the Minister tell us what assessment the British Government have made of the humanitarian effects of the fighting in the south?

For five years, the United States has led the coalition under the banner of Operation Enduring Freedom, which has been pounding the south and the east in a failed attempt to find Osama bin Laden. No significant reconstruction work has been done there, and the Taliban has grown experienced and more confident. Nor, even after five years, do we seem to have much of an intelligence picture of the operational theatre, given the mis-assessment of the past three months. Until today, I have not joined in the criticism about a confused strategy. While NATO and Operation Enduring Freedom had separate geographical areas of responsibility, the strategy was perhaps manageable, if unusual. As I indicated earlier today in our debate on the Statement on Iraq and Afghanistan, I am seriously concerned. NATO is responsible for the whole of Afghanistan through the ISAF mission. Meanwhile, 8,000 troops under American control will operate under Operation Enduring Freedom, and the US-controlled air power will not be transferred to NATO. Was there ever a military operation like this before, with two major forces with overlapping remits operating in the same areas? In February, when the United States takes command of NATO forces, which agenda will have priority? This is of real concern to NGOs operating in the field. They have found it very difficult to near impossible to work in a theatre where offensive air power is the weapon of choice.

But this is not the only turf war. Did the Minister read Christina Lamb’s report from Afghanistan in the latest edition of the Sunday Times, in which she said that a DfID representative speaking about reconstruction work in Helmand province could cite only the rebuilding of market stalls in two districts? She went on to report that the British military wanted DfID to hand over some of its funds to enable them to carry out work. Her article claims that the military are locked in a debate with DfID over the strategy for the £20 million available to spend in Helmand. DfID wants long-term projects, and the military want to get jobs to Afghans now. Indeed, the comments of the noble Lord, Lord Drayson, this afternoon seemed to reinforce this view of some difference between the military and the development strategy.

The Sunday Times article quoted the NATO commander Lieutenant-General David Richards as saying:

“The military can’t do much more - it’s up to the government and development agencies. At the moment somehow it isn’t happening and we’re beginning to lose time”.

When we talk to the NGOs, however, they are critical of the funds going to military aspects compared with the money available for development work. Does the Minister agree that the Ministry of Defence, DfID and the NGOs must have a common purpose? Where does the Foreign Office stand in these disputes? Does it favour the quick-fix approach offered by the military, or the long-term sustainable development approach for which the development agencies are arguing? Are the British Government providing sufficient resources to do both? Both are obviously important.

We on these Benches have no doubt that the future of Afghanistan is vital to the long-term security of United Kingdom citizens, as well as the greater aim of providing security for the people of Afghanistan. It is already a difficult task; it will become an impossible one if the United States and NATO operate different military strategies at the same time in the same place, and if the military and the aid agencies are in dispute. Will the Minister give us some assurance that these tensions are being addressed?

My Lords, I commend the Government’s programme for Afghanistan, but I recommend that they pursue that programme, first, with a considered and flexible strategy, secondly with caution, and thirdly with the opportunity for regular review. Above all, the Government must strive to avoid a significant gap being created between their political aspirations and the capacity to execute those aspirations with the military or in the development field, both of which are inextricably linked. I take this cautious view because historically Afghanistan is a complex and difficult geopolitical arena militarily. It survived 20 Russian divisions and saw the rise and fall of the Taliban in bloody circumstances. There is a Pashtun revival and a porous border with Pakistan, so history suggests the caution that I have recommended. With regard to aid, it is a misuse of words to speak of reconstruction in Afghanistan. Rather, it is a process of construction. That means time, money and long-term effort and commitment. The question is whether it will work for development.

Militarily and in the field of development, this country should determine what is best for that country and what is within our reasonable capacity to help it to achieve that. That means considering both the short-term and the long-term strategy. As of 5 October, NATO has taken military command of the military situation in Afghanistan under the leadership of Lieutenant-General Richards. Military men in his position are careful in their choice of words. Earlier this week, he said that we were at a tipping point and had six months in which to achieve a significant change so that the people are with us and are not driven against us. That is a very tight and very tough timetable within which to achieve his declared objective of having the people come on the side of NATO and the Afghan Government. So what is the short-term strategy?

Secondly, I turn to the long term. History demands that if you enter Afghanistan to seek to change it you thereby commit yourself to a process of a number of years. That commitment I understand to have been made by this country and its partners in NATO. They must fulfil that commitment; that is, all of them, not just us. NATO is with us and its member countries acting as a group of common partners with shared objectives, which means that you have to commit yourself to the responsibility of supply and potential damage to your troops. At the moment, the relationship of combat troops to the rest in NATO is wholly out of proportion. How can NATO, therefore, be seen to make that change unless there is more commitment?

Thirdly, do we have enough strategic assets as a NATO force, not just British helicopters for British troops? What is our alternative strategy if it is not to be NATO, as the noble and gallant Lord, Lord Boyce, raised this afternoon? Finally, since 2001 we have contributed £390 million to that country through DfID in aid. It is our fifth largest target for donations and we are the second largest aid provider. Have we carried out a results-based analysis? Is it going the right way? These are very large sums of money to direct to Afghanistan. I regret to mention the introduction of the Promulgation of Virtue and Prohibition of Vice Committee. The title bemuses us, but what does it mean for women in Afghanistan if we are spending this kind of money? I close positively. We as a Government are giving leadership, which means responsibility by us to lead others in the objectives that we have declared.

My Lords, I thank, first, the noble Baroness, Lady Northover, albeit in her absence, for having instituted this debate; secondly, the noble Lord, Lord Garden, for introducing it; and, thirdly, the Government for having made a substantial commitment over the years to the reconstruction of Afghanistan. Long may that continue. However, Afghanistan remains a fragile state—not, thankfully, as fragile as it was, but nevertheless certainly not stable.

I want to look briefly at the logic of the multilateral aid programme and to question the decisions by major donors to channel millions of dollars of aid largely through the Afghan Government to the detriment of indigenous and other NGOs, many of which have been working in Afghanistan for many years. The UK Government draw a distinction between the US search and destroy mission and the UK’s mission which is,

“firmly centred on the reconstruction effort … actions will always have the primacy of the reconstruction effort in mind … [the UK troops] are not there to wage war but to help rebuild”.

The aim of the donor community as laid out in the Bonn process and underlined again at the London conference earlier this year was and is to build capacity in all sectors in Afghanistan. Last January, donors launched the Afghanistan compact, part of which was concerned with ensuring that aid be allocated almost exclusively through the various Afghan ministries. This has led to a somewhat two-headed approach of conforming with President Karzai’s wishes, but at the same time undermining the development goals of the Karzai and Blair governments. The Department for International Development now channels something like 70 per cent of aid via the government, with the concomitant decrease in funds available for those NGOs working at local levels. That of course allows for a measure of accountability, but in recent months it has become more obvious that the government simply do not have the capacity to spend aid money on agreed infrastructure and other projects. Recent estimates suggest that perhaps only 10 per cent of available aid money has been spent.

Perhaps I may spell out a little more the consequences of this shift in the allocation of aid money. NGOs are increasingly becoming sub-contractors without the means to initiate new programmes, implement training courses and/or work in areas other than those presently occupied by various military forces. Given the precarious context in Afghanistan, local programmes that focus on capacity building, such as support for community development councils in health, education and local government structure, help to provide employment. That creates less incentive for young males to join the insurgents and therefore allows a more robust community that is less likely to fall to the Taliban at the first fence. Community work is a form of defence, yet the priority programmes decreed and funded by central government are short term, have no exit strategies and are running short of money—some speak of a $20 million deficit. Even if donors are willing to commit more, maintaining aid flows to rural communities is beyond the capacity of the government in the absence of a strong NGO presence.

A further consequence of the decrease in direct funding to NGOs is the shift to development programmes in insecure provinces being delivered by military personnel, which is an extremely bad precedent and not necessarily efficient. For example, aid pledged for Helmand but delayed due to the insurgency is aid money not being spent. As we know, military spending is six times greater than that spent on development. There is therefore an urgent need to deploy scarce resources well, if not synergistically. While it is understandable that the Government may be reluctant to commit non-military staff to working in insecure regions, it is precisely in those areas that long-term infrastructure building is most urgent, and this job is best undertaken by NGOs.

A continuation of this scattered approach, dictated by military rather than perhaps developmental considerations, will result in an imbalance in aid programming and an eventual imbalance in the country as a whole, with some provinces lagging far behind developmentally. Meanwhile, there are some NGOs mainly employing local staff, such as Afghanaid, that are prepared to carry on working in some areas considered to be insecure, but no longer have the means to do so.

The argument is for complementary programming to support the Afghan Government’s priorities, but to maintain some direct NGO funding to pre-empt the pulling out by some NGOs due to lack of support. Perhaps I may add that the Nordic Governments are extremely supportive of their NGOs and continue to fund them generously, precisely because they understand the role that they play in reconstruction. I therefore ask the Minister to reassure us here and the aid community more widely that support will be continued and/or forthcoming for those NGOs with a proven track record of serious work in the poorest parts of Afghanistan.

My Lords, there seems no point in denying that things have not gone as well in Afghanistan as was hoped and, perhaps, unrealistically expected when the Taliban regime collapsed five years ago. We underestimated the degree of failure of the Afghan state after a decade of Soviet occupation and another decade of civil war. We underestimated the intractability of the problems posed by the fissiparous tendencies of the different ethnic groups, by the longstanding tradition of interference in Afghanistan by its neighbours and by the grip that drug production had taken on Afghanistan’s otherwise almost non-existent rural economy. We did, here as in many other places, fail to grasp what a very long, complex task peace-building inevitably is in a failed state. It is good that the Question introduced by the noble Lord, Lord Garden, gives us an opportunity to look at all this and reflect on it.

One hears quite a few voices suggesting that we and our NATO allies are unwise to commit ourselves to new and demanding security operations in the south of the country and that the international community as a whole is trying to achieve the impossible task of helping Afghanistan become a stable, working state with reasonably democratic institutions. Before following that line of reasoning, it is as well to consider the alternatives. Do we seriously believe that Afghanistan could yet stand on its own feet without any or with less external support than is currently being provided? If not, what would be the likely consequences of our doing less or simply quitting? The Taliban and the forces of religious extremism remain a force to be reckoned with, as do the remnants of al-Qaeda. Can we possibly afford to run the risk of their achieving something similar to their joint control of Afghanistan that existed until 2001? Do we not in any case have a political and moral duty to see through the peace-building tasks that we assumed when we intervened in Afghanistan that year?

The answers to all of those questions seem to point to our having a national, as well an international, interest in seeing this matter through, and doing so with a will and the necessary resources. But are we and the Afghan Government yet doing all we can to achieve a successful outcome? Is enough being done to marginalise the former warlords and to ensure that they do not return or reassert their control over the instruments of the state? Is enough being done to offer a substantial stake in the new Afghanistan to the Pashtun tribes of the south and the east, without whose active co-operation a peaceful and stable Afghanistan will not be achievable? Have we yet achieved the right policy mix for dealing with the drug problem? I doubt, frankly, if it is possible to give an unhesitatingly affirmative answer to any of those questions.

Afghanistan has suffered from external interference for hundreds of years and it has sometimes interfered in its neighbours itself. Recently we have heard distant echoes of past quarrels over the tribal areas that straddle the Afghan-Pakistan border, otherwise known as the Durand line. Is it not an essential element of any stabilisation of Afghanistan itself that it and all its neighbours commit themselves to non-interference, to respect for existing frontiers and to a range of confidence-building measures and co-operation? In many parts of the world those objectives are anchored in regional or sub-regional multilateral organisations, which impose legal obligations as well as expressing good intentions. Is it not time to construct some such regional approach around Afghanistan? I raised this point in our debates some five years ago and I do not believe that much has been achieved. Perhaps the Minister can say something now about the Government’s thinking on this point.

And then there is the issue of drugs. I should like to hear the Government’s thinking on this. Is there any aspect of the ideas being promoted by the Senlis Council, and which would involve some legitimised production for pharmaceutical purposes, as takes place in certain other countries such as Turkey, which might over time make sense in Afghanistan?

Clearly security issues lie at the heart of any peace-building effort in Afghanistan. It was surely a mistake to have left large areas to the south and east of the country so long as a kind of free-fire zone for the US forces and the remnants of the Taliban. The successes achieved elsewhere by the provisional reconstruction teams show just how important it is to pursue reconstruction and development at the same time as security. Perhaps the Minister could tell the House how those tasks of reconstruction and development are being pursued in the areas where Britain and other NATO allies have now taken the responsibility for providing security.

More, much more, could be said on this subject. But I would like to end with one thought, which is in no way specific to Afghanistan. The tasks we have undertaken in Afghanistan will not be successfully achieved if we cannot check and reverse the increasing political alienation that is developing between Muslim countries and the West. That alienation will not be checked and reversed if we—and that in large part means the United States—do not resume without delay a serious effort to solve the Arab-Israel dispute in its entirety. The policy vacuum in this matter over recent years has wrought havoc to our wider objectives—the recent events in the Lebanon being the most recent evidence of that—and it is all set to wreak even more havoc if we do not collectively do something urgently to fill the vacuum with a meaningful peace process which has the united support of the whole international community. That is surely something on which Europe should now give a lead.

My Lords, there are positive signs in Afghanistan—children in school, women’s rights, the growth of civil society and of people’s power to change their lives. But these things are happening almost invisibly against a background of propaganda, insecurity and the uncontrolled cycle of violence.

This is not a conventional civil war, nor even really an ideological one: it is an old territorial struggle between rival groups and militias. The coalition decided to back the Northern Alliance against the Taliban, which is now a convenient name for the enemy. But there were never two sides, only temporary alliances. In 2001 we expected the whole country to fall in line because of the undoubted diplomatic skills of a new Pashtun leader. It has not, although he has held the rest of the country together remarkably well.

Disarmament is an extremely slow process, as the noble Lord, Lord Garden, pointed out. The end-2007 deadline is quite unrealistic. No fewer than six district chiefs and security chiefs of different provinces were fired recently because they were not co-operating with the disbandment of illegal armed groups and there are still about 1,800 of those groups. The Taliban, with its mainly southern commanders and allies such as Gulbuddin Hekmatyar, are never going to co-operate. They have chosen to repeat the Russian experience and to become the Mujaheddin of today. They could hold out in the hills for years. I think it is unlikely that NATO, even under its new combined command, will be able to sustain its action in the south except along a front closer to Kandahar. It had much better concentrate on the areas it knows it can defend.

We originally sent our soldiers to defend reconstruction, and I am still of the view, as others have said, that we can do that in safer areas through the UN mandate and the PRTs in the north and west, but not in the south. What has changed is that NATO is now acting through a fighting force as well as through peace-keeping troops and the Taliban will make sure that the people are confused by this mix of objectives. Britain came as a friend, but it is also seen as an enemy and we have to come to terms with that. The longer our troops are fighting limited actions in Helmand, the less we can be regarded as helping in the country as a whole.

There are, of course, other reasons for the rise in violence, including the ideological overspill from Iraq and the perception of the US and the UK in general. We are not winning the hearts and minds of the Arab world because of our narrow foreign policy. I was very glad to hear that the Chancellor had made an excellent speech at Chatham House this morning, pointing out that the hearts and minds campaign has been neglected and that we must put more resources into it. I hope it gets it from the Treasury.

While we are right to assert human rights and the rule of law, we can do this only within the capacity of Afghan institutions. As the noble Baroness, Lady D’Souza, said, these things take years to grow, and to claim, like President Bush, that we are fighting for democracy is absurd. Those who are genuinely engaging with the Islamic world in the FCO and DfID and really understand the culture of the Middle East deserve much more support. There are some excellent projects, such as the Turquoise Mountain Foundation, which are slowly reviving traditional crafts and restoring buildings; NGOs such as CARE are offering courses among the neediest Afghan women, providing them with income-generating skills. There is a myriad of valuable NGO projects. It might help if our various governments did not try to solve all of Afghanistan’s problems at once.

So what are the priorities for DfID and can it stick to them? Poppy eradication or poverty reduction? Let us concentrate on the poorest farmers, not the richest ones. Before 2001 we were concerned about the extent of drought in the north. The same is happening today. Lack of rain last winter caused severe water shortages and there has been a 50 to 80 per cent loss of rain-fed cereal production.

My questions for the Government are these. What are we doing to avert hunger in these areas, with nine provinces facing a critical shortage of drinking water? What contribution will the UK make to the latest UN drought appeal? What are the Government doing to help the UNHCR reach the estimated 15,000 families displaced by the conflict in the south? How is DfID supporting the attempts of the Afghan Government to provide safe access to education for girls and boys in high risk areas? The extension of education to girls is one of the major achievements. It is now threatened by the widespread closure of schools all over the south. This issue surely needs more attention if the Afghan people are going to trust foreign invaders.

My Lords, it is highly probable now that the intervention in Iraq—which I supported at the time—will fail to reach its purpose to create a pacified, unitary and democratic state of Iraq. This makes it all the more important that the other intervention in the area, that in Afghanistan, succeeds. Its objective was, and is, more modest. The mission for what are now NATO troops refers to the needs of reconstruction but concentrates on basic security. If I were a soldier, I should like this limited mandate which is within the professional competence of the military. However, enduring freedom—I am using the words rather than the term—requires more.

The problem of Afghanistan is that three needs are indissolubly interlinked. One is security. The second, however, is statehood. Foreign military forces are in a sense expected to represent the elected Government in Kabul—or is it of Kabul?—throughout the country. It is hoped that they will prevent Afghanistan becoming a failed state. The third need is sustainability in the social and economic sense. This involves, above all, the transformation of a drug economy into one that provides long-term opportunities without a mafia or warlords—present rulers are often both—running the economy for the greater glory of their power.

One may hope that one day the international community will have a force capable of helping with all three objectives. That day, however, is still far away. One must be satisfied if military intervention forces are trained in appreciating the needs of statehood and sustainability as well as security. In any case, the three are closely related. There will be no security as long as the central state is failing to control local and regional warlords. There certainly will be no sustainable social and economic development as long as the drug economy is the main source of employment and the basis of local and regional power structures.

At the moment, there is an uneasy division of labour between the international troops charged with guaranteeing security, the training of a police force to support the elected Government and non-governmental organisations trying to build elements of a sustainable economy and society. In some areas, notably in the north of the country, this works reasonably well; in most areas it does not. When hand grenades were thrown through the windows of a hospital for women, which a friend of mine had constructed with the NGO he set up for the purpose, the troops stationed nearby did not know what to do, to say nothing of the absence of an Afghan police force representing the elected government.

When I reflect on these and similar incidents, it seems to me that although security clearly is an important objective, it will be achieved only if and when the need is met to help the establishment of an effective state of Afghanistan. Training an Afghan police force matters as much as fighting renewed Taliban incursions. The curse of the region—and that now includes Iraq—is failed states. Hence, state-building is the first objective of intervention. It is no good winning local battles with insurgents or burning poppy fields if there is no indigenous and effective state structure which gradually establishes the monopoly of violence which defines statehood. This requires a local police force which is loyal and an independent judiciary as much as elected leaders. It also requires some rethinking of objectives and of the measures and skills needed to achieve them. Who is doing the rethinking?

My Lords, in winding up this debate on behalf of the Liberal Democrats, I stress the importance of not only the debate but the strength of the contributions made so far tonight. I am sure they will give the Minister much food for thought.

My noble friend Lord Garden referred to the slow progress made in Afghanistan due to the diversion of the adventures in Iraq. He said that the benchmarks we were aspiring to only some nine months ago are already failing to be met. The noble Lord, Lord Brennan, called for caution and for a regular review in the short and long term because of his concerns brought about by the history of that troubled region. The noble Baroness, Lady D’Souza, referred to the fragility of the development programme, and other noble Lords made similar telling contributions.

One fundamental concern must be the progress being made with reconstruction and security in Afghanistan. Reconstruction appears not so much to have stalled as to have hardly started in some provinces. The recent reports claiming that the outcomes to date of the £20 million DfID programme in the Helmand province amount to little more than rebuilding a few market stalls are cause for great concern.

The provincial reconstruction teams programme, much vaunted at the beginning of our current involvement in Afghanistan, seems to have fallen off the agenda. Instead, critical appraisals are emerging that the local development projects undertaken under the umbrella of ISAF and NATO, while worthy and well executed, are uncoordinated. They are not planned as part of a provincial or national development programme, thus tending to be ineffective in progressing towards national reconstruction goals. Yet our commanders on the ground are reporting that we have, at best, six months in which to turn things round and convince the Afghan people that the infrastructure improvements promised are materialising and that the destruction of their villages through the mayhem of war-fighting is a costly, yet acceptable, price to pay.

At present, we seem far from winning that argument. While President Karzai repeatedly calls for coalition forces to exercise greater care when conducting air strikes, the monthly rate of strikes by the US Air Force has reached 750, far exceeding the monthly rate in Iraq. The resulting collateral damage has been immense, with shopping districts, schools and transport infrastructure being destroyed and large numbers of civilians killed or injured to add to the civilian casualties occurring in the fighting in the south, which exceeds 50 per cent of total casualties.

While today’s Statement reflected on new schools being built and children now in school, schools are being destroyed, men and women teachers murdered and girls denied education on pain of death wherever the Taliban are back in control. Is it any wonder that Afghanis are said to be at a tipping point between supporting the coalition and NATO forces, with the continuing destruction and casualties that that implies, and turning again to the harsh regime of the Taliban and all that that implies?

Will the Minister confirm reports that the vast Pashtun tribal belt along the Pakistan-Afghan border is once again alive with the Taliban and its militant supporters, threatening the political achievements over five years in Afghanistan post 9/11? Will she accept that rejuvenating the Taliban is a major reverse in efforts to locate and destroy the al-Qaeda camps hidden deep in the mountainous North-West Frontier Province?

Will she tell noble Lords when last the UK Government made representations to President Musharraf of Pakistan over the pressing need for his military intelligence and our coalition Special Forces to work towards the same goals and the elimination of terrorist enclaves on both sides of the border?

Will the Minister confirm also that the United Kingdom-led strategy to eliminate narcotics production has been undermined by the US and Afghan Governments’ decision to pursue poppy eradication without offering compensation or an alternative livelihood to farmers? Is this not evidenced by the latest figures from the UN Office on Drugs and Crime, indicating a 60 per cent increase in poppy cultivation this year?

My Lords, I too thank the noble Lord, Lord Garden, for taking on the Question of the noble Baroness, Lady Northover, on the progress of peace and stability in Afghanistan. I am sorry that she is unable to be with us, but send her our best wishes for her family.

It has been invaluable for the House, building on the Statement that we heard earlier today, to speak out on the treatment of, and attitude towards, our troops. I add our condolences to the families of those troops who have been killed or wounded, and pay tribute to all the service men and women. I should declare my interest as a longstanding patron of the Afghan Mother and Child Health Clinic.

It is unfortunate that our efforts in Afghanistan are linked with the ongoing horrors in Iraq, yet the ever-climbing fatality figures and violence are only part of the Afghan story. In Afghanistan, a solid alliance is acting against Taliban fighters, including the Afghan Government, national forces and NATO troops, with the support of local people, who remember what was inflicted upon them by the Taliban during the past 30 years. The continuing power of warlords, the dependence on poppy production by many farmers, and the crushing poverty and underdevelopment found in many regions are unquestionable and well documented.

These obstacles are not insurmountable, but Afghanistan's problems will not be solved easily. The noble Earl, Lord Sandwich, told us that insufficient rainfall last month means that 2.5 million people in Afghanistan face a chronic food crisis. We would be most interested to know what steps Her Majesty's Government are taking to address this problem. Will the Minister clarify too what discussions DfID has had with the Foreign Office—the noble Lord, Lord Garden, mentioned this—before assigning its resources to projects in countries where both departments are involved? I gather that DfID is allegedly funding some reforestation projects in Pakistan. It is no doubt a worthy project, but, if it is taking place, are we not in effect paying to plant the trees that are hiding the Taliban fighters who have moved across the border? It is hardly joined-up government.

Unfortunately, enormous amounts of foreign aid can sometimes have many unintended consequences, such as high levels of inflation in certain sectors and increased corruption. The noble Baroness, Lady D’Souza, spoke of foreign aid agencies. However, these can prevent government agencies hiring capable staff. What steps are Her Majesty's Government taking to make certain that their aid is not unwittingly hampering the efforts of the Afghan Government to build an effective state apparatus?

Security, as the noble Lord, Lord Dahrendorf, stressed so well, is as important as reconstruction. Where the former is absent, there cannot be the latter. Government reports and media sources tell two very different stories about Armed Forces funding. The Government claim that money was always available for equipment purchase and is even now being spent on ensuring that only the best is available for our troops, yet endless accounts by those in a position to know tell of cost-cutting. The latter highlights what the figures already indicate: that our Armed Forces are not being given enough money, men or support when they need it most. Will the Minister explain to the House, as the noble Lord, Lord Brennan, asked, what the Government have been doing recently to encourage the other NATO countries to increase their troop numbers in Afghanistan? I hope that there will be no more media stories of equipment failure now that the special reserve fund has been released.

We have been in Afghanistan several times before. History tells us that there are no easy solutions. Although matters may not be as bleak as the media continually portray, they are, however, certainly not as rosy as the Government would like us to believe. I look forward to hearing the Minister’s answer to our questions on food, FCO aid and troops, and to others put to her today.

My Lords, I thank the noble Lord, Lord Garden, for pursuing this debate. I know that the noble Baroness, Lady Northover, cannot be in her place and I send her the Government’s best wishes.

Afghanistan is one of the poorest countries in the world and is off-track to meet all the millennium development goals. Years of conflict and insecurity have denied basic services that we take for granted, such as healthcare and schooling. One in four Afghan children still dies before their fifth birthday. The reconstruction effort in Afghanistan is certainly a long-term initiative. Achieving our objective of a peaceful, prosperous and secure Afghanistan will be reliant on the support and commitment of donor agencies for many years to come. As my noble friend Lord Brennan said, we must honour that commitment. Do we regularly review our policy on Afghanistan? Yes, we do, both in DfID and across government.

A prosperous and democratic Afghanistan is crucial to reducing global poverty and increasing stability in the region. For this reason, the UK is the second largest bilateral donor. We are fully committed to Afghanistan’s long-term development. At the London conference in January 2006, the UK confirmed this by assigning a 10-year development partnership agreement. This agreement, signed by Prime Minister Blair and President Karzai, commits DfID to provide £330 million in development and assistance over the next three years. That forms part of the UK’s overall pledge of £500 million to reduce poverty, improve security in governance and tackle the opium industry. DfID’s budget for Afghanistan is £102 million for this year, which will rise to £113 million in 2007-08 and £115 million for 2008-09. In addition, DfID contributes 18 per cent of the European Commission's pledge of €1 billion over 2002-07, and over 10 per cent of the World Bank's spending in Afghanistan of $250 million a year. We also contribute financially to UN programmes and to the Asian Development Bank.

DfID's programme supports the Government of Afghanistan's interim Afghanistan national development strategy, launched at the London conference. Our programme specifically underpins three of the objectives set out in that document: building effective state institutions, improving economic management and effectiveness of aid, and improving livelihoods for the rural poor. I would certainly concur with the noble Lord, Lord Dahrendorf, that we must work for security, statehood and sustainability, and that is exactly what I believe we are doing.

DfID believes that the best way to achieve these goals is by supporting Afghans to help themselves. Thus over 70 per cent of our aid goes directly to the Government of Afghanistan. The UK is the largest donor to the Government's recurrent budget, covering essential costs such as salaries for teachers and health workers. I note the concerns expressed by the noble Baroness, Lady D’Souza, but we believe that it is the best chance for building effective state institutions that will last. Directing funds through the Government of Afghanistan enhances their accountability and authority and, as we know from experience elsewhere, it is a more effective way of ensuring that development is sustainable. However, I assure the noble Baroness that we shall continue to support NGOs.

DfID leads the British Government's efforts to develop legal economic alternatives to opium poppy production. We spent approximately £45 million for this purpose last year. Part of this funding contributes to improvements in agricultural opportunities for farmers. This includes research to help identify, test and implement new crops and technologies—for example, improvements in the production of high value crops such as saffron and wheat. We are also promoting other non-farm economic alternatives. This includes small loans, support for small scale local infrastructure and labour-intensive public works. We are providing £20 million over three years to the Microfinance Investment Support Facility, and women receive nearly 80 per cent of the small loans. Like the USA, however, we do not support direct compensation as mentioned by the noble Lord, Lord Chidgey, but we support a properly sequenced strategy which means only eradicating poppy crops where legal livelihoods already exist.

The Government share the disappointment and concern about the increase in opium production in 2006, but we believe the strategy outlined by the Government of Afghanistan is the right one. This requires not just provision of legal economic alternatives, but also effective governance and law enforcement. Some 70 per cent of the increase in planting is in Helmand, reflecting the security situation, whereas in parts of the country where there is better security and better governance, drug cultivation has actually gone down. This is a long-term strategy. Progress will be gradual and will take many years.

The noble Lord, Lord Hannay, asked about the Senlis Council proposals. The Government of Afghanistan do not support licit cultivation of opium, and we agree with them. The proposals are unrealistic because there would be a risk of a high level of diversion of legal opium into illegal channels. We also understand it is unlikely that licit Afghan opium would be economically viable.

In Helmand, DfID is working closely with other departments as part of the wider UK effort to promote economic and social development, to help improve governance and bring visible benefits to local people. That is challenging, given the very difficult security environment, but, as the Statement earlier today made clear, there is now a short window of opportunity with a more secure environment for reconstruction and development, thanks to the magnificent efforts of our troops. Government departments are working closely together, and with the Afghans, to bring about tangible improvements. I assure the noble Lord, Lord Garden, that there is common purpose throughout government departments. However, as my noble friend Lord Drayson said, we need further to explore opportunities for the military to undertake projects, but only where security is difficult.

We are lucky that the British military has considerable experience working in these sorts of environments, and with a range of NGOs. There is a short-term and a long-term strategy, and they are both working in tandem. We have committed over £30 million over the next three years to the Helmand Agriculture and Rural Development Programme, which aims to increase economic opportunities for the rural poor of Helmand through a variety of programmes led by the Government of Afghanistan. We have also contributed £4 million to the delivery of quick-impact activities in Helmand, which are already securing short-term development results and will help create a foundation for longer-term development in the province. They are implemented jointly by DfID, the FCO and the military, and include improving security for schools; building and rebuilding; improving drinking water and sanitation; and building wells and roads.

With regard to the resurgence of the Taliban on the porous Afghan/Pakistani border, the Pakistani Government have recently agreed, in conjunction with the UNHCR and the Afghan Government, on the need to close down two terrorist training camps in Baluchistan, although the Pakistani Government do not have the means to enforce that. Both governments are working closely with UNHCR to find a long-term solution to the camps. In addition, the FCO, DfID and the MoD, through the Global Conflict Prevention Pool, have just agreed to fund a project that will look at ways of electronic identification of suspect individuals in the camps.

The noble Baroness, Lady Rawlings, the noble Earl, Lord Sandwich, and others asked about humanitarian assistance and drought in the north-west. Rural development is a key priority for DfID. We expect to spend £35 million this year, almost all through the Government of Afghanistan’s budget, which will help ensure that they have predictable funding, thus allowing them to respond to their own priorities, including the drought. We are in regular contact with UNAMA, the Afghan Government and other UN agencies on their assessment of the drought, and we attended the most recent update meeting. The initial drought appeal was launched to secure pledges of in-principle support, prior to the proper assessment of the scale of the drought. The assessment results are due later this month, and we will then consider a UK contribution.

In relation to internally displaced persons, the UN is providing emergency assistance in the form of non-food items and food assistance. Their estimates suggest that basic needs are being met, and they are not asking for additional funding. The US has set aside funding to support the future return of IDPs in the south and the reconstruction of their homes. It is likely to work through implementing partners such as the International Organisation for Migration, UN-Habitat and local business. The UK has already provided $60,000 to the office of the governor in Helmand to help provide for the immediate needs of IDPs.

Since 2001, DfID has spent over £390 million on reconstruction and development in Afghanistan. Over this period there has been real progress. Presidential and parliamentary elections were held. Six million children have returned to school, over one-third of whom are girls who, five years ago, were not allowed to attend. Some 35,000 lives have been saved thanks to routine immunisations which our children are given as a matter of course. It is estimated that, in 2005-06, the legal economy grew by 14 per cent.

With regard to safe access to education for girls and boys and protection for female teachers and government employees working in high-risk areas, the Afghan Government have formulated and begun implementation of a school protection policy. In addition, the provincial reconstruction team is working with the provincial government in Helmand to pilot a school bus transportation system and is considering a number of quick impact projects to provide additional security at the four main schools, including one girls’ school in Lashkar Gar. Further support is being considered. The Government deplore the recent killing of Safiye Amajan.

The noble Baroness, Lady Rawlings, asked about troops. I do not have an answer to that question but my colleagues have. Indeed, it was probably answered this afternoon in the discussion following the Statement, but I will ensure that the noble Baroness receives that information in writing.

The Government remain firmly committed to the long-term development of Afghanistan. We will seek to ensure that the achievements that we have seen to date are consolidated and continued and we will work with others to ensure that the critical constraints to further development are overcome. We feel strongly that the Afghan Government must lead the development effort, which is why we need to invest in their development plans and channel our resources through their systems if we are to have enduring impact.

Police and Justice Bill

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.”