House of Lords
Tuesday, 26 February 2008.
The House met at half-past two: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.
Cyclists: Road Accidents
My Lords, measures to reduce death and injuries to cyclists in road accidents include providing better infrastructure, funding cycle training and improved testing and training for motorists, and encouraging cyclists to protect themselves by making themselves conspicuous and by wearing a safety helmet. Other initiatives, such as anti-drink-drive and anti-speeding campaigns and the provision of 20 mph zones, can contribute to cyclists’ safety.
My Lords, I am grateful to my noble friend for that Answer—the Government are investing a lot of money in new cyclists’ facilities. Does he agree that one of the main campaigns must be to encourage children to cycle to school? Once they have learnt to cycle and used cycles as children, they will carry on doing so as adults and will, I hope, cycle to work. What exactly are the Government doing to encourage cycling to school safely—with new cycle routes or whatever—and so to encourage parents to allow their children to do that?
My Lords, we are doing many things. In January this year, we announced that we are investing in cycling a record £140 million over the next three years, through Cycling England. Much of that money will be directed towards improving training and standards of cycling. That is a very good investment when it is put into the hands of those who train schoolchildren. It will provide—by, I think, 2012—for some extra half million children to have access to new cycle training and will create some 250 additional links to school to encourage home-to-school cycling.
My Lords, does the Minister agree that a lot of the cases of cyclists being killed or seriously injured occur because of collisions with lorries? I believe that the Government are undertaking a major review that will result in much larger lorries—those towing trailers—being let on to British roads. Will he ensure that when the study is presented to the Government, it will evaluate the damage that is being done by bigger lorries to people such as cyclists?
My Lords, that is an issue about which noble Lords appear to be particularly exercised. The last time we had a short discussion on this topic, a number of noble Lords said the same thing. Yes, of course, we have occasional instances of pedestrians being hit by cyclists, but it is profoundly the case that pedestrians are most at risk from cars. Sadly, cases of pedestrians being hit by cars in any given year generate a lot of fatalities—last year, there were some 471—although, thankfully, those numbers are coming down. The number of pedestrians who are injured by cyclists is very small. I think that there were 47 recorded incidents in which there was some form of injury.
My Lords, perhaps I had better sit down. What are the Government doing to improve the lighting on cyclists at night? Every evening when I leave here in the dark in a taxi, I would be prepared to give evidence on behalf of the taxi driver if he hit a cyclist who has no lights on the back of his bike and is impossible to see until you are on him.
My Lords, I thought that the noble Baroness was going to tell me that she had taken up cycling as well as giving up smoking. She is right that we should remind cyclists to take much more care, because it is important that they are visible. A key component of encouraging safer cycling is to ensure that, as part of the training, cyclists are told to be more visible and to have sensible lighting fixed to their cycles.
My Lords, is the Minister aware that the Parliamentary Advisory Council for Transport Safety recommended that there should be a 20 mph default speed limit in built-up areas? Does he agree that, as well as reducing the number of road deaths, that would mean that pedestrians and cyclists could share the road? That would certainly encourage people to cycle and it would encourage children to cycle to school, as my noble friend suggested, as there would be much less likelihood of injury.
My Lords, I agree that 20 mph zones are a good thing, certainly in urban areas. However, it is for a local authority to determine where it is most appropriate to put 20 mph zones. Such zones certainly have a significant impact on reducing accidents and deaths. I shall give a couple of statistics. The Transport Research Laboratory found that, in the UK and other EC countries, child road accidents fell by 67 per cent and cyclist accidents by 29 per cent in areas where there were 20 mph zones. I do not think that there should be default zones of 20 mph because I believe that the beauty of 20 mph zones is that they are self-enforcing. If you impose a default speed limit of 20 mph, you perhaps lose that benefit.
My Lords, while we all agree with the noble Lord’s proper concerns about the safety of cyclists in relation to predatory motorists, I want to turn the question on its head and refer to something that my noble friend said earlier. What steps are the Government taking to protect pedestrians from cyclists? First, would he think it a useful beginning to enforce the law on riding on pavements? Secondly, and perhaps most important, could he make it a legal requirement for bicycles to carry a bell, as they used to do in the old days?
My Lords, I used to have a bell on my bike, but it rusted up, I am afraid. The noble Viscount makes a fair point about enforcement. One positive thing that we have done is to ensure that community support officers, along with the police service, can impose fixed penalty notices, which has aided and added to enforcement. It remains the case that the major problem for pedestrians is the potential for a road traffic accident caused by a car and not a cycle. We need to keep a sense of proportion about these issues.
Mental Health: Spirituality
My Lords, I thank the Minister for that reply. Does she agree that after seven years of demonstrably successful work at a time when the new Mental Health Act is causing great anxiety among black and minority-ethnic groups because of their overrepresentation in compulsory mental health services, it is a great shame that a project that increases the understanding of cultural and religious beliefs in the expression of mental illness is apparently coming to an end? Does she also agree that it is a government priority that staff are trained in the understanding of the culture and beliefs of service users and carers?
My Lords, the noble Baroness, Lady Murphy, is widely respected for her work and expertise in this area. The loss of the forum would be a very serious setback. However, I am optimistic that the work of the forum will continue, though it will be organised at local level with the regional centres which are committed to working with it. The forum has now formally established itself as a charitable organisation and can apply for funding in its own right. The noble Baroness is perfectly correct about staff training. Indeed, that is part of the Government’s programme for race equality delivery in the mental health programme.
My Lords, I understand that most programmes and projects connected with NIMHE are being carried forward under the continuity programme until at least September this year. Will the Minister explain why this important project is being singled out for adverse treatment by removing its national strategic focus when the Prime Minister’s new year message emphasised the importance of faith and human dignity?
My Lords, I thank the right reverend Prelate for that question, and I was pleased to note that the Synod of the Church of England debated spirituality and mental health at its meeting last week. The Government have not singled out this organisation for detrimental treatment. Indeed, I am assured that now that the forum is properly established as a voluntary organisation it is in a position to seek financial support through different sources, including Section 64 of the general scheme through which the Department of Health provides support for the voluntary and community sector. I am also assured that NIMHE—a rather unfortunate acronym—will be happy to support the forum as it seeks to attract such funding.
My Lords, as Britain is becoming increasingly multicultural and multifaith, is it not essential that we have a real progressive policy from the Government to meet the needs of all sections of the community, and have well trained social workers, psychologists and others who can really deal with the issues, instead of decreasing this facility?
My Lords, that is a very important question. Noble Lords will know that some of the reasons for the seeming overrepresentation of BME communities are very complex and not fully understood. There is strong evidence of high rates of severe mental illness among BME communities, and the NHS needs to reach people in these communities. The implementation of the action plan to deliver race equality of mental health care remains the single largest project of the institute’s work.
My Lords, has the Department of Health given an instruction to strategic health authorities and those commissioning services that the spirituality concerns of patients with mental illness are particularly important and that they are clearly outlined in the book by David Enoch, I want a Christian Psychiatrist, in which he describes the importance of trust in establishing a therapeutic relationship, particularly with those who have entered the criminal sector through their mental health disturbances?
My Lords, the noble Baroness is completely correct that spirituality involves a dimension of human experience that psychiatrists are increasingly interested in because of its potential benefits to mental health. However, your Lordships will also know that local priorities are set locally. Local PCTs are being encouraged, through their relevant strategic health authority, to plan and develop services according to the needs of their local communities and are being given the resources to do this.
My Lords, given the agreement around the House that spirituality plays a major role in the mental illness of some people in some of our hospitals and in our communities, can the Minister tell us what the Government will do to ensure that there is further training in spirituality of all faiths for those working in mental health? That training should include chaplains working in mental health.
My Lords, the noble Baroness is absolutely correct and would certainly be familiar with this. Psychiatrists, patients and carers should all be fully informed about local chaplaincy services, and know that they now involve clergy and other personnel from many faiths and humanist organisations, as well as several Christian denominations. Chaplains have made a point of establishing good relations across the field. Close liaison with mental health teams will support a holistic approach in this area.
My Lords, the Government have been committed to an improvement in mental health services from the outset. Indeed, from 2001-02 to 2006-07, investment in adult mental health services increased by 31 per cent, or £1.2 billion. We now have 760 new mental health teams working in the community, 55 per cent more consultant psychiatrists, 70 per cent more clinical psychologists and at least 20 per cent more mental health nurses. We are doing our part to deliver this agenda.
My Lords, I welcome the BMA’s useful report. Tackling the culture of harmful and binge drinking is a priority for the Government, and we are implementing a comprehensive strategy. The report will encourage doctors to play the key role of identifying harmful drinking at an earlier stage.
My Lords, I thank the Minister for her reply. However, given that all the evidence shows that both availability and price of alcohol are the key factors in binge drinking, this is not so much a matter for doctors as for government. Will the Government now consider introducing new laws, as recommended by that report, to regulate promotional activities on alcohol and ensure that both licensed premises and off-licences no longer sell alcohol as loss leaders?
My Lords, I thank the noble Baroness for that question. The Government are working with the alcohol industry and other stakeholders to implement a strategy which includes a new public information campaign, an independent review of alcohol pricing and promotion, toughening enforcement for underage sales and helping more people who want to drink less. Reducing alcohol-related hospital admissions is a new measure of performance for the NHS. We believe that this will encourage more NHS investment to identify those most at risk and provide advice and treatment. However, this strategy is not about preaching to or hectoring people. It is important that people have the necessary information to make their own decisions about the health consequences.
My Lords, as the Government, through the Minister, have said that it is a priority to address this issue, is the Minister aware that in Ireland, where the price of alcohol is considerably higher than in the UK, the effect in reducing consumption has been absolutely zero? Should the Government therefore not now review the 24-hour drinking policy that they introduced, when the police report that more than 180,000 offences have taken place since that new law came on to the statute book?
My Lords, the noble Lord conflates two different points. On the price of alcohol, there is definitely increasing public concern that harmful drinking is fuelled by the sale of alcohol at heavily discounted prices and other promotional tactics. We currently lack comprehensive evidence on this issue and views are divided. The Department of Health has therefore commissioned an independent review of the relationship between pricing, promotion and harm, which will help to inform our understanding of this and our decisions on whether to take any action on the impact they have.
My Lords, is the Minister aware that the rules on advertising alcoholic drinks, which the BMA report would also like to restrict, have recently been significantly tightened up, and that the latest survey by the Advertising Standards Authority, on whose council I sit, has showed a compliance rate of around 95 per cent? In the light of this, does she agree that advertising may not be so much to blame as the TV soaps and reality shows that use drunkenness and alcohol misuse as forms of entertainment?
My Lords, the Government need to look at both those things—they are not mutually exclusive—but we are not banning alcohol advertising without a very good reason. As the noble Baroness has said, there are tough rules on advertising, particularly to the under-18s, but the review of the interrelationship between alcohol pricing, promotion and harm will be reported on this summer, and it will include an examination of advertising in all its forms: TV, radio, above and below the line, sponsorship, and the internet. Depending on the review’s findings, the Government have made it clear that they are prepared, subject to public consultation, to consider new controls and, if necessary, legislation.
My Lords, when the Prime Minister took over last year, he undertook to implement vigorous action to curb the £20 billion of harm, including £7 billion to health alone, which alcohol was causing in England and Wales. Will the Government now review the perverse and irrational decision that was taken following the Cabinet Office’s interim analytical report of 2003, which showed that price and availability were the two main levers that could be used to curb consumption, and review their strategy so that these are incorporated into any decisions that the Government now take?
My Lords, we know that the review of the Licensing Act is due out soon. Speculation in the press over the weekend pre-empted some of the release of that review, but we must wait to see what happens. We also know that studies undertaken by Cardiff University and Liverpool University have found that accident and emergency attendance in relation to violent crime has fallen by 2 per cent since the introduction of the new regime in 2005.
My Lords, is the Minister aware that Professor Oliver James and Dr Christopher Record in Newcastle-upon-Tyne have drawn attention recently to a frightening, indeed horrifying, increase in the incidence of liver disease and other effects of alcohol abuse in young people in the north-eastern region? What action are the Government taking to persuade the police and the owners of licensed premises to reduce underage drinking and drinking in young people?
My Lords, we fully share the noble Lord’s concern, and we are determined to reduce the harm caused to young people by alcohol misuse. We are committed to educating young people on the very real harm that it can cause. Since 2006, we have introduced new powers to penalise licensed premises that persistently sell alcohol to under-18s. We have introduced new powers to direct individuals to leave an area and prohibit their return. We have focused binge-drinking initiatives on four of the national hotspots, and at this moment 720 young people have been referred to advice sessions about safer drinking. Early studies show that reoffending rates are down by 50 per cent, and we are currently rolling out this initiative to 10 new areas. The hard hitting communications campaign that is being developed will also be aimed specifically at young people.
My Lords, will the Minister explain why the Government are undertaking a further review of the efficacy of different measures to curb excessive alcohol consumption when only a few years ago the World Health Organisation carried out a comprehensive worldwide review of effective policies? The WHO concluded that curbs on marketing and restrictions on availability and price are the most effective measures to curb excessive alcohol consumption, and that warning labels and information campaigns are ineffective. Why is there a need to review the evidence again when it has been reviewed thoroughly by an international body?
My Lords, the WHO framework has informed much of the work that the Government are doing. The Government’s strategy is firmly based in monitoring what will happen this year. If the right results are not produced in terms of advertising, the Government will consider legislation.
My Lords, the guarantee arrangements have not been called. There has therefore been no cost to the taxpayer. If the guarantee were called, parliamentary approval for expenditure would be sought through the normal supply process. Costs would be met from the contingencies built into the fiscal forecast in the normal way. The Government will report on the fiscal position at the Budget.
My Lords, I thank the Minister for that Answer. As he will recall, however, on 14 January he addressed your Lordships' House on the same subject and informed us that £150 billion-worth of assets were available in Northern Rock and that the amount of government liability was but a fraction against that; it was said at the time to be £56 billion. Since then, as he will be aware, we have had references to Granite and to Dolerite. Note 22 of the recently signed 2006 accounts for Northern Rock lists 23 companies performing the same function. Would he therefore like to say the same thing again today—that he is still comfortable that the liability is but a fraction? It sounds as though the liabilities are now a fraction of the guarantee.
Not so, my Lords. As was made clear in both Houses in the debate last week on Northern Rock, Dolerite does not exist and the guarantees do not extend to Granite. The guarantees extend to Northern Rock and its assets. Its assets are secure and outweigh its liabilities.
My Lords, does the Minister recall that only yesterday, in answer to a Question from my noble friend Lord Steinberg, he informed the House that, so far as Granite was concerned,
“the Treasury will be making the details of the position clear today”?—[Official Report, 25/2/08; col. 438.]
He was subsequently obliged to write to my noble friend to say that he had got it all wrong and that the Treasury had nothing to add to the singularly uninformative letter to Mr Vincent Cable a week ago. Does it not mean that the Treasury is every bit as much in the dark about the true complexity of the relationship between Granite and Northern Rock as the rest of us? Will the Minister therefore put in place an investigation without further delay, preferably conducted by the National Audit Office, into the full facts of this tangled tale and the risks to the taxpayer that follow from it?
My Lords, I think that the noble Lord doth protest too much. However, I am grateful for the opportunity that he affords me, and which I recognised would be presented by this Question, to apologise for the fact that I made a mistake yesterday in responding to the noble Lord. I intended to convey that the Government will in due course be presenting, in full publicity, the Northern Rock strategic business plan. I am happy to confirm that they will do that. It has, of course, been the burden of many representations.
I emphasise that Granite has no relevance to the public position at all. The Treasury guarantee and the loans provided by the Bank of England have nothing to do with the assets in Granite. The guarantees relate to the assets in Northern Rock. Those are sound, substantial and above the level of loan that it has taken from the Bank of England. As the noble Lord will know better than anyone else, Granite is merely a securitisation vehicle for the processing of Northern Rock money. Those responsible for meeting the costs of Granite are bond holders, not Northern Rock—therefore, not the Government at all.
My Lords, does my noble friend enjoy this now almost daily opportunity, which the Opposition are kind enough to afford him, to demonstrate the strength of the British economy, the strength of the City of London, and just how desperate the Opposition have clearly become on this issue?
My Lords, does the Minister acknowledge the continuing considerable confusion about Granite, which, with all due respect, I think he has just compounded? Will the Government urgently convene a seminar for Members of both Houses with an interest in this matter at which the Chancellor of the Exchequer and Mr Sandler can explain, once and for all, clearly and to avoid ambiguity in the future, the status of Granite and how it affects the ongoing fortunes of Northern Rock?
My Lords, I cannot make the issue with regard to Granite any clearer, but what I can say to the noble Lord is quite straightforward. In due course—by which I mean very shortly, by the end of March—the strategic business plan for Northern Rock will be published. It will of course be in the public domain. Any Member of either House will be able to raise and debate the issues at that point. However, as was explained during the Bill’s passage last week, and as I have attempted to explain today, Granite’s obligations cannot be a charge on the taxpayer. They are a charge on the bond holders and are nothing to do with the taxpayer because they are not governed by the Treasury guarantee. Nor do they have anything to do with the Bank of England loan.
Dormant Bank and Building Society Accounts Bill [HL]
Read a third time.
Clause 12 [Triennial Report to Parliament]:
1: Clause 12, page 7, line 31, at end insert “, and to be able to trace all such accounts at any one time”
The noble Baroness said: My Lords, I wish to speak to all the amendments together, as they address a principle that is at stake: enhancing reunification of bequeathed assets with the beneficiary, however small a benefiting charity may be. I have tabled these sharply defined amendments to enhance the amendment moved by the noble Baroness, Lady Noakes, and passed by the House on Report, providing for a triennial report to Parliament on the working of this Bill. These amendments simply provide for a clearly defined, specific enabling power. They would not impose any additional burdens or give the Secretary of State extensive powers. Instead, they would strengthen parliamentary accountability. The wording has been specifically chosen to reflect the helpful comments made on Report by noble Lords.
This Bill will have a considerable impact on the charitable sector. I declare an interest as vice-president of Marie Curie Cancer Care, which, along with 53 other charities, is part of the Unclaimed Assets Charity Coalition. The coalition supports these amendments.
Amendment No. 1 is crucial. Without it, the register would not work as a one-stop shop search facility, which is essential if charities are to be able to conduct searches quickly and cost-efficiently. In the case of deceased estates, information about the financial institution in which the asset is held is unlikely to be known, hence the difficulty in utilising the new industry tracing scheme, which requires an approach to each and every individual bank. My amendments would maximise the incentive for banks and building societies to reunite people, including the beneficiaries of wills, of which many are charities, with what is rightfully theirs—their assets in dormant accounts—while also ensuring that, where reunification efforts prove fruitless, as much as possible is available for reinvestment in society.
As drafted, the Bill will not require financial institutions to make data on unclaimed assets more easily accessible to potential beneficiaries of legacies. Instead, banks and building societies will simply be asked to publicise the fact that they hold unclaimed assets. This will be of no help to people who do not know which institution is holding a lost asset. Crucially, it will be of no help to charities trying to trace lost assets bequeathed to them from deceased people’s estates. This will be a particular problem for small charities.
Why does it matter? One in seven people who die with a valid will leave legacy gifts to charity, which, on average, comprise 5 per cent of the total estate left, so there are potentially large sums of legacy income that have yet to reach the named charities. Legacies are an extremely important source of voluntary income for the charitable sector. For example, 46 per cent of the British Heart Foundation’s voluntary income is from legacies, amounting to more than £47 million last year, while Cancer Research UK relied on legacies for a third of its income. There may have been many more bequeathed amounts that could have gone to the charities, but these are unknown at present.
The banking and building society industry has introduced a welcome new online tracing scheme, the launch of which coincided with the Bill. However, while this is a step in the right direction, it is completely inadequate and does not create the register needed if beneficiaries, including charities, are to be more easily reunited with their assets. The online tracing scheme is not straightforward. It requires knowledge of which institution holds the account and it does not enable searching across a broad range of banking institutions.
Let me now address a few of the issues raised by your Lordships on Report, when I proposed giving powers to the Secretary of State to establish a register if needed. The noble Baroness, Lady Noakes, suggested that charities want access to accounts long before they have become dormant. I have been reassured by the coalition that the key point is to establish a system where basic details of accounts can be searched for by registered charities after dormancy has been established. The charities may have to wait, but so be it.
The Minister, the noble Lord, Lord Bach, mentioned cost, stating that a register would be expensive. The Unclaimed Assets Charity Coalition believes that a register should be no more costly to run than a voluntary scheme. In fact, a register could be self-financing and need not be maintained by the Government. Moreover, in the longer term, having such a system in place would reduce administrative burdens. A central register would establish a consistent system and format for information about dormant bank and building society accounts and would facilitate searching, particularly by small charities which do not have the manpower to undertake widespread searches, as well as shorter processes for financial institutions to locate and return dormant accounts to their rightful owners.
The Minister also raised confidentiality issues. The coalition has sought advice from Withers legal partnership, which has now been shared with the Treasury. Withers confirms that data protection and fraud issues would not be a barrier to a register. I can therefore assure the House that the amendments would not breach confidentiality of information agreements. Indeed, a register would be less open to problems of data protection than the scheme operated by industry at the moment.
The industry’s new online tracing scheme operates on a central website portal where people can enter their personal details. These details are then sent to a number of banks and building societies around the country, increasing the risk that information could be intercepted or diverted. In contrast, a central register would hold minimum data centrally, such as the name of the account holder, their date of birth and their previous or last known address. The register would enable someone to establish only whether there was a match between a legatee, for example, and a dormant account. It would then direct the charity conducting the search to a specific institution. The charity would still be required to go through stringent proof-of-identity processes with the institution holding the asset. That would be no less rigorous than any other proof-of-identity process required to access accounts. A number of other tried and tested schemes around the world use a register system, including in the US and Australia.
I agree with the point raised by the noble Baroness, Lady Noakes, that accountability to Parliament is vital and I am sorry that she is unable to be in her place today. My amendments would strengthen that accountability and enable Parliament to effect its wishes without recourse to further primary legislation. I worry that there is a presumption that assets in dormant accounts are somehow the state’s money. They are not. These assets are not ours, the Government’s or Parliament’s, and they are certainly not the industry’s. They are unclaimed assets in dormant accounts that in many cases have been bequeathed, as a proportion of a deceased estate, to a charity. The tightly drafted amendments would help to ensure that people’s dying wishes were respected. This is a principle that transcends party politics and I hope that your Lordships will feel able to support it. I beg to move.
My Lords, I am delighted to support each one of these small but important amendments in this group. The noble Baroness, Lady Finlay, referred to the 54 charities that comprise the Unclaimed Assets Charity Coalition. I know from my own contacts with the group how passionately those charities feel about this matter. These amendments afford your Lordships’ House an opportunity to improve the legislation before us and to enact a profound good.
At this stage of our deliberations I do not intend to repeat the powerful arguments advanced by the noble Baroness. Instead, I shall draw your Lordships’ attention to the benefits of the amendments in a slightly broader strategic context. Here I declare an interest as a trustee of Christian Aid and chairman of the Melanesian Mission UK. Of the first of these charities most, if not all, of your Lordships must surely be aware, but of the second I suspect that few will have heard. Yet it is the latter, the Melanesian Mission UK, which, as the smaller charity, is particularly pertinent to our deliberations today. Why? For the simple reason that legacies are even more important to smaller charities, which simply do not have the means or the infrastructure to fundraise to anything like the same extent as the bigger charities. They lack the resources to engage in a complex search for assets that, in the form of legacies, it was intended that they should receive and they stand to lose disproportionately more from the lack of an ability to do so.
Like the noble Baroness, I have looked at the membership of the charity coalition that has expressed such concerns about the Bill in its present form. The breadth of the coalition is extensive and impressive. I also know from my own experience from chairing bodies such as the Devon Strategic Partnership—its aim is to improve the quality of life for people living in Devon by bringing together a huge and disparate range of interested parties to tackle a diverse range of issues such as transport, energy, domestic violence and welfare benefits—that bringing people together to sing from the same hymn sheet is not easy. Yet this coalition is singing from the same hymn sheet. It deserves to be listened to in this one respect more than it has been to date.
I am told that at least 26 Members of your Lordships’ House are patrons of some of the charities within the coalition. Many others will have supported these and other charities in many different ways. With these amendments, we are being given the opportunity not just to do as the Minister rightly suggested on Report, which is to thank our marvellous charity sector for the invaluable work that it does, but to give a practical demonstration of our support for all charities, which are so vital in a healthy society, whether they be small or great, in memory of a loved one or an international charity such as Christian Aid that is literally changing the world for people in the direst poverty and offering them real hope of life before death.
The point at issue is not just about gratitude. It is also most profoundly about justice and respect—not just for and to the charities but for and to those who do, and wish to, support them and who have made their wishes very clear as they have drawn up their last will and testament in preparation for their own death. It is about the justice of doing everything that we reasonably can to respect people’s dying wishes to leave something to charity and of ensuring that charities are thus reunited with any unclaimed assets that have been bequeathed to them; in other words, what is rightfully theirs. That is what the noble Baroness’s reasonable, tightly defined and beneficial amendments would help to achieve and it is why I urge your Lordships to give them the support that they deserve.
My Lords, with all due respect to the noble Baroness and the right reverend Prelate, I confess that when this issue was raised in Committee I had reservations about it. I have even more now. This will be a great opportunity for fraudsters to examine the register in detail to determine whether they can extract money from it. I do not altogether understand who will carry the cost of drawing up the register and, indeed, of maintaining it. Some cost must be involved and I am not at all certain who is supposed to carry it.
Another worry is that when charities look to people’s wills they surely look to bequests that come off the top layer of a will. The only thing that will be left in a dormant account is the residual amount in that will. Therefore, the charity would have had to be left absolutely everything in somebody’s will before it would be in a position to pick up what was left in a dormant account.
I have a further concern about our charities generally. So many of them now seem to have massive headquarters in London and spend their whole time playing politics. The rather depressing thought occurs to me that they would add to their numbers by having yet another person to go through the register to see whether they can leach a bit more money out of dormant accounts. So I have reservations about this measure and it is only right that I should mention them.
My Lords, I support the amendment most ably moved by the noble Baroness, Lady Finlay, and supported by the right reverend Prelate. Picking up the points just made by the noble Lord, obviously some costs will be entailed in maintaining a register, but I submit that they are surely worth bearing when a scheme short of a register, such as is offered by banks and building societies at the moment, is not fit for purpose and is ill adapted to enabling beneficiaries to be reunited with assets bequeathed to them.
The noble Lord spoke about residuary bequests. If one knows anything about legacies left to charities, one knows that residuary bequests are of great importance. They are the preponderance of bequests; only a comparatively small number of specific legacies are left. It is therefore very important for charities to be able to access residuary bequests if they are to benefit from legacies left to them.
Finally, the noble Lord referred to charities with large headquarters in London that carry on campaigning work with government. It is not necessary to reply to that. Anyone who knows about the large amount of work, across a broad range of activities, that such charities carry out, and their valuable work in making representations to government on behalf of the groups they represent, will realise the necessity for maintaining premises and employing substantial numbers of staff. I will not dwell on that point. I declare my interest as chairman of one such large society, the Royal National Institute of Blind People.
Turning to the amendments of the noble Baroness, Lady Finlay, I will not range over the whole course of the subject matter that she addressed. I underline the point I just made about the respects in which the current scheme offered by the banks and building societies is not fit for purpose in addressing the need for a register that charities and individuals benefiting from legacies can access. The banks and building societies have launched a new online tracing scheme. This obviously represents a step in the right direction. However, there are still key gaps in the scheme, which mean that it does not amount to a register. The charities coalition, as we have heard, therefore believes that it is vital to maximise the opportunity over the longer term for the industry to get the scheme right. The amendments tabled by my noble friend provide a framework within which that can be done.
The new online tracing scheme is problematic in at least six ways. First, it is far less straightforward to look for lost bank accounts than it is to search across building society accounts and the National Savings and Investments database. Secondly, it requires some knowledge of which institution the account is held in. Thirdly, it covers only dormant bank and building society accounts. Fourthly, it does not enable people to search across a broad range of banking institutions. Fifthly, it is not clear whether the scheme incorporates different types of bank accounts; for example, internet bank accounts. Sixthly, it is not clear what records are included, or how far back records go.
At the moment there is no requirement for individual institutions to take part and members of the public are currently unable to search across a range of banks if they are not sure which institution is holding a lost asset. That is why the charities coalition is calling for the creation of a register of all unclaimed assets, which would ensure that beneficiaries—whether individuals or organisations such as charities—were reunited with assets owed to them from deceased people’s estates. To reunite assets and beneficiaries, members of the public and charities must be able to search a database with minimal information in the first instance—full name, last known address and, perhaps, date of birth, all of which are already publicly available. In the case of deceased people’s estates, information about the financial institution in which the asset is held is unlikely to be known, hence the difficulty in fully utilising the new industry tracing scheme, which requires an approach to an individual bank.
Furthermore, currently there is no requirement for financial institutions to make data available to any schemes. For the Unclaimed Assets Charity Coalition, the key to establishing a successful system is to ensure full participation by all financial institutions. As currently drafted, the Bill will not compel financial institutions to make data more easily accessible to the general public. Banks and building societies will simply be asked to publicise the fact that they hold unclaimed assets. That will be of no help to people who do not know which institution is holding a lost asset, and it will be of no help to charities trying to trace lost assets belonging to deceased people’s estates.
Any register need not be maintained by the Government. It will, however, need to be created and maintained using stringent measures against fraud, as applied by, for example, the many unclaimed assets schemes operating in the United States. That means that no data beyond confirmation of a match between an institution holding an unclaimed asset and the details, which I mentioned earlier, as input by someone conducting a search would be released unless and until full proof of identity is produced to the institution holding the asset. This would be no less rigorous than any other proof of identity required to access an account.
To sum up, although the banks and building societies are launching a new online tracing scheme, this is not the same as a register, which is what the charities coalition is calling for. There is no requirement for individual institutions to take part and members of the public will not be able to search across a range of banks if they are not sure which institution is holding a lost asset. That is why the charities coalition continues to ask for the creation of a register.
As my noble friend has indicated, this is a moderate amendment. It does not call for the establishment of a register straight away. It gives the opportunity to see how the Bill will work as an Act until we get the first report of how it is working. It creates a reserve power for the Secretary of State to establish a register only if and when the report indicates that the scheme needs to be improved. I also ask noble Lords to support this valuable amendment.
My Lords, as we debated the Bill at earlier stages, there was growing consensus that one of the most important things that it might achieve would be to increase the extent to which people were reunited with their assets rather than spending assets on worthwhile things that had been disunited—if that is the right word—from their owners. I very much agree with what the noble Baroness, Lady Finlay, said about that.
In Committee, we tabled an amendment for the creation of a register. We did not pursue it on Report because we wanted to ensure that we changed the Bill as far as we could, which required us to get the maximum level of support from across the House, which did not extend to the establishment of a register from the start. However, to have a reserve power to establish a register, which is what the amendment seeks, merely adds somewhat to the amendment that we successfully passed on Report. Therefore, we are very happy to give it our full support.
I hope that when the Minister replies, he does not use as a principal argument the fact that the scheme is technically a voluntary scheme. Again, we discussed that at great length at earlier stages. This is a statutory scheme in terms of how the money is spent, and I suspect that the only reason that noble Lords did not absolutely press for it to be a statutory or compulsory scheme from the start in legislation is that we received assurances from the trade associations, banks and building societies that every bank and building society that might be covered and affected by it would be a member of it. I do not believe that it is a valid argument that the amendment is irrelevant, unnecessary or inappropriate because it is a voluntary scheme.
However, I hope that it will never be necessary to bring the power into force. The British Bankers’ Association, the Building Societies Association and NS&I have established the website www.mylostaccount. org.uk. Although I accept that at the moment it does not meet all the requirements that we would like, the pressure that the legislation has already caused has meant that the website is now up and running. In the three weeks since its launch, it has had some 72,000 claim forms submitted—more than for the whole of last year. That progress has happened only because this Bill has been going through your Lordships’ House. Having this reserve power hanging over the banks and building societies as a sort of sword of Damocles should be used by the charities coalition as a means of getting improvements to the website over the next year or two so that it achieves everything that it wishes.
From my perspective, it does not matter desperately whether it is a formal register, against which every name on a dormant bank or building society account can be checked wherever it is held, or a simple search facility in which submitting a name and a few minimal details automatically searches across all of the banks and building societies that might be holding a dormant account. That seems to be a technical issue. However, I hope that, having established the website in its current form and having seen its success over the past three weeks, the banks and building societies will be encouraged to develop it further, particularly in the ways suggested by the noble Lord, Lord Low.
If it comes to a vote, we will therefore support the amendment in the Lobbies. I hope very much that that will not be needed.
My Lords, I warmly support these amendments that were so ably proposed by my noble friend Lady Finlay. I want to express my hope that the Government will give them a fair wind. I must declare an interest since in the course of my medical career I have become either president or vice-president, or patron or vice-patron, of about 11 medical charities of various kinds. While I accept some of the constraints that were mentioned by the noble Lord, Lord Hamilton, and others, I must point out that the contribution to medical research and care made by charities in the United Kingdom has been absolutely outstanding.
There is no doubt at all that, despite the significant increases of government funding that we have seen in recent years—through organisations such as the Medical Research Council, the National Health Service, and so on—those charities produce at least 50 per cent of the funds spent on medical research in the United Kingdom and they are largely dependent on bequests. I am, of course, not just talking about big players such as the British Heart Foundation, Cancer Research UK, or the Wellcome Trust, which has been quite outstanding in its support, but, more particularly, the smaller charities that have often been established by people with an interest in specific diseases. I refer to charities such as the Multiple Sclerosis Society, the Motor Neurone Disease Association, the Parkinson’s Disease Society, the Alzheimer’s Society and the Muscular Dystrophy Campaign, of which I have the honour to be an honorary life president. Such charities are, to a large extent, dependent on bequests and so on; in some instances, there is no doubt that funds which should and would have come to them under bequests have, somehow or other, been left in dormant accounts.
This amendment is a step along the road in trying to put that position right. Despite what was said by the noble Lord, Lord Hamilton, charitable foundations have made a tremendous contribution—not just to fundamental research and the care of sufferers from many of these diseases with which I have been familiar throughout my professional career, but in funding translational research. That has meant that they are funding research that translates the findings of basic laboratory research into developments in patient care. For that reason alone, I am very happy to support the amendments.
My Lords, as I understand it, we are debating Amendments Nos. 2, 3 and 4 as well as Amendment No. 1. I will concentrate my remarks on Amendment No. 2. When we discussed these matters in Committee and on Report, it became clear that charities, which are clearly concerned about these issues, could gain in one of two ways that are, to some extent, competitive. On the one hand, it could be that the rightful owners of the assets were not found, and that the assets then ended up in the so-called reclaim fund with the proceeds—or what remained in that fund—being distributed, unfortunately in my view, by the National Lottery to various deserving causes. So the charities could benefit in that way. Alternatively, it could be that they found that they were entitled to a legacy—as I understand it, that is very important in the case of small charities—and they would make a direct claim on a particular asset that had laid dormant in the bank. Obviously, if this second group made a successful claim, the first group would lose out, although in fact they might all be part of the same charity.
The other problem that arose was with regard to confidentiality. I have some experience in these matters, because I was asked some 10 years ago by Mr Paul Volcker, the chairman of the Federal Reserve, to become an arbitrator with regard to the Claims Resolution Tribunal for Dormant Accounts in Switzerland. I had not fully appreciated from that experience that that was a very unusual circumstance because the Swiss Government had legislated so that the names of the account holders could be revealed. I understand that that is not true except for accounts that have been dormant since World War 2. Therefore the situation in Switzerland and here is that bank confidentiality is regarded as very important and my understanding is that the banks are not prepared to release the names of the people concerned so that, for example, charities could discover whether they had a legacy or not.
Amendment No. 2 gets around that to a considerable extent but involves the establishment of a register, which would be a sensible development. The register could remain confidential, but under paragraph (b) of new subsection (3B) of Amendment No. 2, it would be possible for a charity which believed that it had a legacy in a dormant account to go to the registrar and ask him whether that was so. As the noble Baroness pointed out, that is an extremely difficult process at present because you do not know which bank might have the account, whereas if there was a register all the accounts would be coalesced.
This is the right approach; it would maintain confidentiality but enable the charities to ascertain whether in a particular case they were entitled to obtain what was rightfully theirs. It has been pointed out that this is a modest amendment; we can see how the scheme operates for three years before there is a report, but at least at that stage it will be sensible to consider the establishment of a register, and we can review the whole thing in the light of the experience of the charities in the mean time. We certainly do not want to come back to primary legislation at that stage and, therefore, it is right that we support the amendments.
My Lords, I apologise that I have not taken part in the previous stages of this Bill, but I would like to register my strong views and my strong support for these amendments proposed by the noble Baroness, Lady Finlay, and supported by the right reverend Prelate the Bishop of Exeter and the noble Lords, Lord Low and Lord Higgins. This issue crosses all sides of the House.
Like many of your Lordships, I have an interest to declare: I am a trustee of a small local charity—Hammersmith and Fulham Action on Disability, or HAFAD. It is run by and for disabled people to promote equality of opportunity, choice and independence for all disabled people by removing barriers and ensuring that support services meet the needs of disabled people in the borough. Services include a wide range of youth activities such as holiday schemes for profoundly disabled young people, help for disabled people with finding employment, welfare rights and benefits advocacy, support for people receiving direct payments for their personal assistance, and an information service.
HAFAD’s funding comes from a wide variety of sources including the local authority, the National Lottery, the New Deal, and numerous charitable trusts. It is matter of constant juggling and piecing together of pockets of funding and trying to add them together to form viable projects which do not raise people’s expectations only to dash them within a few months. In other words HAFAD’s continued viability can be somewhat precarious and its reliance on the generosity of others, whether in terms of time or money, is constant. As we face the spectre of an economic downturn and a period of financial uncertainty, think what a difference finding an unclaimed asset in a dormant account left as part of a legacy might make to a charity such as HAFAD. That is what these amendments would help charities such as HAFAD to do.
The reason why these amendments are particularly important for small charities such as HAFAD is their simplicity. That point seems to have been ignored by the noble Lord, Lord Hamilton of Epsom. The proposed register would mean the least amount of bureaucracy possible to enable a charity to access the funds which local people have intended it to receive. While trustees might be able to gather together various pots of money for funding a project, trying to find funding for the ongoing management of the organisation is well-nigh impossible. Small charities simply do not have the person power to trawl through bank and building society accounts trying to trace lost assets, a point which has been so eloquently put by the right reverend Prelate the Bishop of Exeter. That is why this amendment is so important and why I am pleased to support the noble Baroness today. She understands the difference that small local charities, in particular, can make to people’s lives, often with very little resource. I want charities to know that the law is on their side and that this House has done everything in its power today to reunite them with the assets which are rightfully theirs.
My Lords, I support wholeheartedly the amendment moved by my noble friend. In the wake of quite outstanding speeches in support of the amendment, which have been clear and concise and really quite moving, I declare an interest as chairman of a residential home for women with learning and physical disabilities. We are very local and very small. We exist on crumbs from the rich man’s table. Consequently, anything that can be done in the form of help from the Government, charities, trusts and so forth is crucial to our continued existence. Therefore, I commend the amendment to the House.
My Lords, the amendments proposed by the noble Baroness, Lady Finlay, about which the right reverend Prelate the Bishop of Exeter and many other noble Lords have spoken so movingly, are strongly supported by a most distinguished group of charities. Indeed, it would be difficult to find a single collection of institutions more worthy of support. I should declare, before going further, that I am a trustee or officer of a number of registered charities, most of which are small and local.
We on these Benches wish to assist in enabling charities to find bequests to which they are entitled, but the amendments raise some misgivings. With respect to the comments of the noble Lord, Lord Newby, the Bill provides for a voluntary scheme, with the banks and building societies administering it and continuing to maintain existing banking confidentiality. If a register is created, then there must be access to it for it to be of any use. Access by outside bodies, however honest, noble and reliable they may be, means an erosion of privacy, even if it is a modest one. The very existence of a bank account may be a confidential matter. I am uncertain whether the gains from having a central register would make up for the loss of this important principle.
In this day of easy, quick and cheap electronic communication, it is no more difficult to ask a number of financial institutions to search on your behalf than it is to search yourself—indeed, that is probably easier, especially for the smaller charities, which do not have the resources to make the search. The important principle of banking confidentiality would be maintained.
As was pointed out by the noble Baroness, Lady Finlay, Clause 12, which was introduced by my noble friend Lady Noakes, provides for a triennial review of the operation of the dormant account arrangements. With the knowledge that this spotlight will be pointed in their direction, there will be every incentive for financial institutions to make a success of the scheme and to give all assistance to those wanting help in finding assets that belong to them.
We should remember that banks and building societies are massive givers to charity—they give tens of millions of pounds—and it is unlikely that they would not want to help. The issues raised by the noble Baroness, Lady Finlay, have been raised in turn with the BBA, which has been most encouraging in its recognition of the need to work with charities, especially in the early days, when the backlog of dormant accounts will have to be dealt with. As my noble friend Lord Hamilton said, to set up the suggested register would involve expense. As has been pointed out, while it may be self-financing, there will certainly be an initial cost that must be met from somewhere, and there will be running costs thereafter.
My Lords, I am grateful to all noble Lords who have spoken in this extremely interesting debate and to the noble Baroness, Lady Finlay, for moving her amendment.
It will be appreciated from the debate how much there is agreement on all sides about the Bill’s central purposes, which are to ensure that dormant accounts are reunited with their rightful owners and, where they are not, that after a 15-year period, the resources will be devoted to public advantage. There is not a single noble Lord who has spoken in this debate who has not subscribed to those objectives; all noble Lords have added a great deal of colour and emotion and emphasised the fact that some of the good from the development of this work will involve advantage to charities. The Government recognise the powerful statements made by the noble Lords, Lord Low and Lord Walton, and the right reverend Prelate the Bishop of Exeter on the advantages of charities—the roles that they play in our society. I make it absolutely clear that nothing that I say about the amendment is in any way critical of the objective that charities, which do so much good for the public, should have opportunities for the enhancement of their resources.
The first objective is how we ensure that account holders are reunited with their property so that only genuinely dormant accounts are transferred to the scheme. That is right and fair to customers; after all, it is their money which is the subject of this debate. Of course, a result of the reunification of accounts with customers will ultimately mean a reduction in the administrative costs of the reclaim fund, otherwise the reclaim fund, in certain cases, will be obliged to repay customer reclaims at a later date. That is bound to involve administrative costs, which will, therefore, reduce the amount of money available to benefit the public.
What is the effective and proportionate response? The noble Lord, Lord Hamilton, may be thought to be a lone voice on these issues today, but he was concerned in Committee about proportionate response; he is also concerned about confidentiality and the administration of the scheme. Those are also the proper concerns of Government. We have emphasised throughout the debate, today and in the earlier proceedings on the Bill, that the banking and building society sector and National Savings and Investments should take the lead in reuniting customers with their accounts prior to the launch of the scheme. The industry should put in place extensive and robust arrangements for continuing that work after the scheme is up and running.
We are very encouraged by the work that has been done over this period. We welcome the bank and building society sector's ongoing commitment, as set out in the Statement of 8 November, to a major reuniting exercise ahead of the scheme’s launch. The launch of www.mylostaccount.org.uk by National Savings and Investments, the British Bankers’ Association and the Building Societies Association is a central part of that work. It is a free, cross-industry, one-stop shop for customers attempting to locate their lost accounts. In less than a month since its launch on 30 January, it has received more than 140,000 hits and, importantly, has led to more than 72,000 submitted claims for lost accounts.
That facility allows not just account holders but also executors and nominated representatives to initiate a search for a lost account. Executors and personal representatives will be able to search for lost accounts using the one-stop shop website which should help those entitled to legacy income to receive it because the executors will be working under the instructions of the person making the bequests. The advantage from this process is bound to accrue to charities where the intention was that bequests should be made to them.
The Government also welcome the public announcement on 8 November confirming, additionally, the commitment to proactive searching by individual institutions. The public progress made by such significant institutions as Halifax and Nationwide is to be welcomed. The Government look forward to other substantial financial institutions meeting the commitment through proactive reuniting activity soon. Of course, we welcome all constructive suggestions about how reuniting arrangements might be improved.
Is the central register, mandated through regulation, necessary or proportionate now or in the future? I note that the noble Lord, Lord Newby, welcomed it on the grounds that it was a sword of Damocles, but as I recall, that was an ever-present and continuing threat to people holding positions of power. That may be a salutary thing to look forward to, but on this particular sword of Damocles being backed by the noble Lord, it is expected to come into action. That is different from a threat. We are concerned to ensure that the industry makes the greatest efforts for the reunification of accounts. The noble Lord, Lord Newby, is entitled to carry the threat one stage further if it does not. I may have responded in a slightly jocular way, but it raises the central issue of the Bill that it is essentially a voluntary arrangement by the banks and building societies. They are expected to make an enormous contribution to this initiative through their activity. It is not an exercise in government regulation.
Of course the Government have a role to play in this Bill, as we have previously discussed. That is different from saying that whenever it can be detected that matters in the Bill might be advanced with greater efficiency, that should be done through the strong arm of government. That is not the nature of the Bill. I do not agree that the central register mandated through regulation is either necessary or proportionate. It would involve extensive legislation to set it up. The register would need to be run, which would place an administrative burden on the resources that we are always talking about. They are resources related to the scheme that would otherwise go towards the benign purposes that have been identified by all sides of the House as the objectives of the scheme.
There is a further difficulty. It would give the Government power to require data to be provided to a central source. That would not deal with how it would be enforced on the institutions, nor would the fact that banks and building societies—again I turn to the noble Lord, Lord Hamilton, who has expressed a view that is also held in other parts of the House—are subject to confidentiality requirements on customer information. A bank account is a private contract and confidentiality issues are raised by the concept that banks can be compelled to breach them—the sword of Damocles being translated into action, if the amendment were accepted. Transferring such information to a central source would mean that banks and building societies had to breach that confidentiality. It is difficult to see how that is compatible with the framework of law on confidential information and data protection that applies in the United Kingdom. It might also raise human rights issues. Although the Government considered every angle with regard to the proposed legislation, the issue of human rights was not raised, but the House will be all too well aware of the fact that Ministers are obliged to sign a document indicating that human rights are not contravened by legislation. We may have had trouble signing that if we had introduced a Bill carrying this concept. That is a difficulty for us.
As a result of the amendment passed last time, the Bill now includes a clause requiring regular reports to Parliament on a range of issues, including banks’ and building societies’ arrangements to trace accounts and repay customers. The same clause asks the Government to consider improvements to the scheme at a later date. The Government intend to carry out a post-implementation review of the scheme, as I have made clear all along. We always appreciated that we would have to form an evaluation of the success of the scheme after it had been launched.
However, I have real concerns about the review proposed in the amended Bill, requiring the Government to report on the scheme every three years in perpetuity. Every three years for 10, 20 or 50 years hence seems somewhat unnecessary. I cannot think of a precedent, nor has any noble Lord suggested one since this concept was introduced. I am also concerned about the detail and scope of the review as set out in the Bill and the implications for the scheme. So the Government will be seriously looking at these issues when the Bill moves from this place.
However, I ask the House to appreciate that an underpinning principle of the Bill is voluntarism. It is not a government Bill in that respect, which would actually involve government direction in every element. A great deal of the Bill involves the willing participation—in fact, the instigation of action, which they have already done—of the banks and building societies. That this why we have taken care to move forward with respect for that element of voluntarism in the Bill. There are real problems with confidentiality and the extent to which power is handed to government in circumstances in which it may be looked upon as excessive in the context of the banks’ and building societies’ work in this area.
Not that I would want to reduce the just flow of resources to the benign institutions that have been the subject of so many representations from all sides of the House in any way, shape or form. Of course the Government want the scheme to work well. Without the slightest doubt, this will mean that where individuals have sought to make bequests to charity but their accounts have become dormant, this level of activity—the work under the Bill and the voluntary work of the banks and building societies—will benefit charities. But that is different from introducing a compulsory element, which raises issues of confidentiality and possibly human rights. In the Government’s view, it is therefore a step too far. That is the basis of the Government’s argument for asking the noble Baroness to withdraw her amendment.
My Lords, I appreciate the response from the Minister, and the comments of all those who have spoken in support of the amendment. I remind the House that I am calling for a reserve power only, not creating a statutory arrangement in the Bill. I am simply calling for a reserve power in the event that the established voluntary arrangement, which currently looks as if it is doing a good job, fails to work well in the interests of the individual whose hard-earned money was left in their will to a charity, however small, and its beneficiaries: directly, the charity and, indirectly, all those who that person in writing their will wanted to benefit.
On confidentiality, we already have a system, which was set up as voluntary, for the reunification process. That has broken the complete code of secrecy around bank accounts anyway, because when a match is now made, there is confirmation of that. Therefore, despite the Minister’s reservations and in the light of the support around the House, I feel that I must test the opinion of the House.
[Amendments Nos. 2 to 4 not moved.]
An amendment (privilege) made.
Bill passed, and sent to the Commons.
My Lords, with permission, I wish to repeat a Statement made by my right honourable friend the Secretary of State for Culture, Media and Sport in another place. The Statement is as follows:
“Mr Speaker, I wish to make a Statement on casino policy. Today I am laying a draft order identifying 16 local authorities which will be authorised to license the eight large and eight small casinos permitted by the Gambling Act 2005. I do not intend to authorise a regional casino. My right honourable friend the Member for Dulwich and West Norwood established the independent Casino Advisory Panel to advise on the location of the 17 new casinos permitted by the Act. The panel considered applications from 68 local authorities and made its recommendations after detailed consideration.
“Before I make further progress, the House will want to know that since we last discussed these matters, the chair of the independent panel, Professor Stephen Crow, has passed away. I hope the whole House will join me in sending our condolences to his family and paying tribute to the integrity and dedication he brought to his role.
“Last March, an order incorporating the panel’s recommendations was defeated in another place. Since then the Government have reflected on the range of views expressed in both Houses and beyond. There was a consensus that the eight large and eight small casino licences should be awarded to the 16 licensing authorities identified by the independent Casino Advisory Panel. It was a view expressed by the opposition Front Bench and by their Lordships in their message to this House calling for the 16 to be incorporated into a fresh order. Following last year’s local elections, my right honourable friend the Member for Stalybridge and Hyde invited all 16 councils to indicate whether it remained their wish to license a new casino. All 16 have requested inclusion in this new order.
“But there was and is no consensus on the question of a regional casino. There are important differences between the regional casino on the one hand and the large and small casinos on the other. The regional casino would have been allowed up to 1,250 unlimited stake and prize gaming machines, something not seen before in the United Kingdom. The large and small casinos would be allowed to offer 150 and 80 category B1 gaming machines respectively, with a minimum £2 stake and £4,000 prize. B1 machines are already in use in Britain today.
“There are two principal and independent reasons for my decision not to proceed with a regional casino. First, concerns were expressed in both Houses about the potential negative impact of a regional casino operating on the proposed scale. I have not seen anything to suggest that the will of Parliament has changed. Secondly, I have considered the evidence, both old and new, on the impact of regional casinos. This evidence, including the scoping study by Lancaster University which I am laying in the House today, points towards the uncertainty of the risks involved and does not dispel these anxieties.
“The Gambling Commission’s prevalence study, published in September, highlights that problem gambling, although small, remains persistent. My right honourable friend the Secretary of State for Communities and Local Government concludes that regional casinos are likely to have no, or only marginal, net benefits compared with other means of economic and social regeneration. In the light of this and the evidence about the uncertain levels of risks, I do not intend to authorise a regional casino.
“I know that my decision will disappoint many in Manchester, particularly east Manchester, one of the most deprived areas of the country. Taking forward the conclusions of the report published today, the Secretary of State for Communities and Local Government will lead an ad hoc ministerial group to work with Manchester Council and its partners to identify and bring forward a range of regeneration alternatives. The group will produce its first report by the end of March.
“Considerable support has been expressed in both Houses for the regeneration of Blackpool. My right honourable friend has today announced a package of investment for the town worth close to £300 million.
“I seek the consent of the House to authorise eight small and eight large casinos because I am satisfied that they do not pose the same level of risk to the public as a regional casino. That said, my instinct is to proceed with caution, at all times considering measures to protect young and vulnerable people. Therefore, any new casinos authorised by this order will be required to abide by strict new rules, including providing non-gambling areas where customers can take a break from gambling; prohibiting the provision of free drinks to customers while they are gambling; prohibiting the use of credit cards to purchase chips or play gaming machines; ensuring any cash machines are located away from gaming areas; and requiring casinos to have policies to identify problem gamblers and provide information about support for addiction. Operators who break these rules risk losing their licence, fines and up to 51 weeks’ imprisonment.
“Taken together these measures make up the toughest regulatory controls for gambling in the world, but today I signal my intention to go further still. Regulators, legislators, operators and owners all have a duty to act in a socially responsible manner, accepting that, for some, gambling is an addiction, not a leisure pursuit.
“I was surprised to find that only 360 out of 3,800 licensed operators have so far this year made contributions to the Responsibility in Gambling Trust, which offers advice and treatment to people with gambling addictions and is chaired so ably by the honourable Member for Ryedale. This is not acceptable. Promises were made and I expect them to be kept. The Archbishop of Canterbury has called for the introduction of a statutory levy. Unless the industry delivers a substantial increase in contributions by the end of this year, and makes contributions in a timely fashion, I will seek the approval of this House for a statutory levy, at a rate to be determined.
“Secondly, I believe that it is a good principle that all casinos are subject to a period of closure every day, when individuals are required to leave the premises. Currently, casinos are prevented from offering gambling over 24 hours unless they apply to local authorities for an extension, but I wish to rule out the possibility that some may remain open round the clock by requiring them to close their doors for at least six hours.
“In conclusion, the order we are laying today is an enabling order giving 16 local authorities the ability to proceed with plans for small and large casinos. Whether to do so is entirely a matter for local decision, and I hope that local people will be consulted and involved at all stages. Small and large casinos will bring local economic benefits and provide enabling development with the potential to create new community facilities. But as the Lancaster study concludes, there are costs and benefits of casino development that need to be weighed in the balance. That is why I shall at all times proceed with caution and continue to keep gambling policy under review according to my responsibilities under the Act, to take advice from the Gambling Commission and to be guided by the evidence. I commend this Statement to the House”.
My Lords, that concludes the Statement.
My Lords, there are already so many ways of gambling in this country that it is a matter of regret to me that the Government should spend time and energy providing yet more opportunities to gamble. Those who want to have a bet can easily do so. Inevitably, if there are more casinos, with more promotion and more publicity, a number of people will start to gamble who might never have done so. Of that number a proportion will end up as addicted gamblers, with the consequent ruination of their and their families’ lives. I find it difficult to understand, if it is not right to permit a large casino because of the new evidence of risk, why it should be right to permit a collection of other casinos. Does the risk suddenly disappear because the premises are smaller? I find that difficult to believe. Steps are proposed to control problem gambling and they are welcome. Only time will tell whether they turn out to be adequate to prevent problems.
My Lords, I may say some hard things in the next few minutes, but I want the Minister to understand that it is nothing personal. I realise that he has been given his usual job of plaiting sawdust.
I thank the Minister for the Statement, and I am sorry to learn of the death of Professor Crow. I send my condolences to his family. That respect and sadness, however, do not remove my original assessment that the findings of the panel he chaired were bizarre and based on criteria that ran contrary to those established by the Joint Committee set up by both these Houses. I do not blame Professor Crow or his colleagues, though; blame lies with Ministers, who have been buffeted hither and thither by press campaigns and well financed lobbies. Millions of pounds of public money have been wasted by commissioning inquiries about matters that should have been for ministerial judgment and the decision of Parliament. As it is, we have a gambling reform that gives us the worst outcomes of deregulation with few of its benefits.
Will the Minister confirm that, in addition to the 60 new casinos he has sanctioned, there are about 125 applications for casinos under the 1968 Act, and that the final number of casinos we are likely to have in this country when this exercise is finished will be nearer 300? Is he aware that we are about to have an explosion of small and medium-sized casinos, most of them in locations that are more likely to create the addiction and social problems that the Government are supposed to fear? The Prime Minister rushed to make a Statement about the super-casino to show his new moral compass—but which way is that compass pointing?
What kind of world do Ministers live in? Have they ever been in a betting shop? I recently drove through Hoddeston, one of the poorest parts of London, on a Saturday night. Every betting shop was open, not for horseracing, but because under this legislation those shops can install four gaming machines each and stay open until 9.30 pm. So while the Prime Minister has been agonising over 1,250 machines in a single, strictly controlled and well policed super-casino, literally thousands are now available around the country. On another front, have Ministers seen the Economic and Social Research Council report, Britain in 2008? It says that there are now 2,300 gambling websites and that the internet is one of the fastest growing forms of betting. Three hundred casinos, tens of thousands of betting office terminals and 2,300 gambling websites, but never fear, Blackpool has been saved by the Prime Minister from the moral degradation of a super-casino.
Is the Minister aware that what has been saved for Blackpool is “Coral Island”—a gambling shed on the Golden Mile owned by the Noble Organisation, a Gateshead company which funded much of the anti-super-casino campaign? Perhaps I may quote what one commentator said about the Noble Organisation:
“Their position is only to secure Coral Island’s foothold in Blackpool, meaning minimal investment and maximum return for the arcade”.
The two clearest recommendations of the Joint Committee, based on a study of the Australian experience, were to avoid gambling sheds and to avoid city centre casinos. We now have both.
The Liberal Democrats asked six months ago to separate the super-casino issue from the order now envisaged, and with good reason. We welcome that that has now been done. During a six-year period the Government’s policy on super-casinos has swung from having an unlimited number, to eight, to two, to one, to none. Do the Government have any plans to compensate the 60-odd councils that spent large sums on bids that were wasted because of government incompetence? Given the rapid expansion of casino numbers envisaged, have the Government made an up-to-date assessment of policing needs in terms of the capabilities of the new Gambling Commission and of the local police forces that will have to deal with these new casinos?
The Minister mentioned local decision-making. What guidance do the Government intend to give to local authorities to deal with what, for many of them, will be an entirely new problem? I note that the Minister announced a £300 million package of assistance for Blackpool, but is he aware that the Government have a long record of double accounting and of recycling old announcements and supplying candy floss promises in lieu of hard cash? So while Blackpool has never rested on its laurels and has been doing a tremendous amount of work through its task force, will he excuse any plaudits from me until it has had a chance to read the small print of this offer? However, I am sure that Blackpool has the energy and initiative to create a 21st century resort.
Finally, is the Minister aware that the Gaming Act 1968 was a response to a clear and present danger of Mafia infiltration into our gambling industry? That legislation stood for 40 years as a byword and guarantor of probity and an example of sound legislation. In attempting to replace it, the Government have shown a degree of vacillation, ignorance, incompetence and cowardice that will make this an exercise which PhD students use in coming years for dissertations on how not to legislate.
My Lords, I struggle to respond to the imbalance of the two contributions from the Front Benches opposite. The noble Lord, Lord Howard, was short, snappy and spoke with precision, whereas the noble Lord, Lord McNally, indulged in considerable rhetoric and asked a plethora of questions, to which I shall do my very best to respond, although my response may seem a little imbalanced.
It will be appreciated across the House that the Statement represents the Government listening to informed opinion on the regional casino expressed in wider society and in both Houses of Parliament. That is why that issue is being dropped. The regional casino is vastly different from the small and large casinos referred to in the Statement. The regional casino was on a very significant scale, with more than 1,000 gaming machines permitted, whereas the restriction on the small and large casinos allows for less than a tenth of that. It will be appreciated, therefore, that we are talking about different scales of opportunities for casinos once the regional casino proposal has been withdrawn.
The noble Lord, Lord Howard, said that there were no restrictions on people having a bet and asked why, therefore, we needed to create additional opportunities. It would be somewhat surprising if betting and betting provision stood still when society is subject to significant change. People expect rather better facilities than those provided in the tiny betting shop with, at its most basic, virtually no facilities. People are lucky if they can find the door, let alone any facility within, except some fairly limited service across the counter. Of course people expect to be able to gamble in more civilised circumstances. That surely must be an advantage. We expect all our leisure pursuits, and indeed other pursuits, to be conducted in rather more favourable public circumstances than we did 30, 40 or 50 years ago, when the country did not have the resources that it has now.
A function of increased disposable income will be that increased numbers of people will feel that they are prepared to wager. It is quite clear from the dimmest days of the 1930s that there was not much wagering going on when people did not have enough money to keep the bare necessities going. It is bound to be different in the year of grace 2008 and beyond, when there are greater resources.
My Lords, I notice that there is an element of dissent over that proposition. I ask noble Lords to consider that, in a society of greater resources, betting is a leisure pursuit that is likely to increase. What is important is that betting should be controlled so that the young and the vulnerable are not subject to the blandishments of the industry. Of course, we made it quite clear that we intend to follow that rubric. This Statement is a clear indication of how careful we intend to be on that matter.
I have the greatest difficulty in recognising the size of the figures given by the noble Lord, Lord McNally, about the position under the 1968 Act. He will recognise that, while there may be applications, the realisation of casinos is somewhat different. There have been only a very small number of new casinos under the 1968 Act. There are a significant number of casinos—more than 130—but the number has increased only by a small amount and that was before the Government ever approached this legislation. It is not related to this legislation at all. The applications must be considered by local authorities and then translated into reality. The rate at which new casinos, under the 1968 Act, are growing at present is very low indeed. The noble Lord used the word “applications”; what is important is how many are actually created.
The noble Lord also talked about the development of gaming machines in betting shops. He will recognise, first, that this is subject to restrictions on numbers and, secondly, that shops’ hours are restricted. Betting in betting shops is the subject of stringent legislation. As I maintain, betting shops have sought to diversify beyond the rather primitive services that they offered in the past. The important thing, which we should be secure about, is that they are regulated and that they do not promote addiction to gambling. That is also why, with regard to the casinos, my noble friend is contemplating the necessary breaks so that people do not stay within the casino for a full 24 hours.
The noble Lord referred to Blackpool and Coral Island. The House will recall that the noble Lord was vocal in his advocacy that Blackpool should be four-square with Manchester in the provision of any large casino. Now he is lamenting the consequence that Blackpool does not have one, but he is also bound to realise that there is an issue about the failure of the Manchester position. That is why the Government are concerned to meet Manchester’s regeneration costs and are prepared to put resources in.
The noble Lord was somewhat ungenerous when he suggested that the fact that the Government are prepared to allocate £300 million to Blackpool for regeneration should readily be criticised. Why so? Every seaside town in Britain has lamented the fact that, due to changing social patterns over the past 20 to 30 years, they have experienced a substantial decline as more British holidaymakers go abroad or elsewhere. Here is tangible, real money to support the regeneration of Blackpool. It is much needed support, which the local authority has campaigned for. I know that the noble Lord prides himself on his Blackpool commitments. Does he think that Members of Parliament in the other place for Blackpool and areas close to it will take the same view of these increased resources as he has done and suggest that they are of relatively little value? Far from it.
Finally, the noble Lord suggested that people who put in bids ought to be compensated by the Government because of government incompetence. Let us be clear about the position. Even when the number of casinos was clearly identified as being limited, local authorities were concerned to put in those bids. Of course, I respect opinion in this House and I respect the view of this House, but we should also respect the fact that local authorities are elected and have the right to make decisions in their communities. That is what they did when they submitted their bids.
My Lords, some of us place the proposal for a super-casino in the same category as the Government’s 24-hour alcohol licensing, where there was a rather naive belief that you can set the people free and ignore the social problems that will follow. One thing is as certain as night follows day: the number of problem gamblers and addicts will increase. In fairness, we must welcome the rethink on the super-casinos. We know from the Australian experience how the increased availability of super-casinos would lead to increased addiction.
My noble friend said that the Government will consider the proposal for some levy on those who benefit from gambling and that, if nothing or an insufficient amount is done by the end of the year, that levy may be compulsory. Given that only 360 of the 3,800—that is one-tenth—who benefit now pay the voluntary levy to the Responsibility in Gambling Trust, by the end of the year what proportion will be deemed to be sufficient for the industry to avoid compulsory legislation? Is it not unfair that some of them will be allowed to be freeloaders? Is it not fairer to ensure that all who cause misery and create addicts have to pay their proper share?
My Lords, I am grateful to my noble friend for his opening, supportive remarks. I say in response to his question that the contribution by the industry falls dramatically short of the expectation. The costs for the commission are £4 million. At present, we are raising a tiny fraction of those costs, which we expect the industry to bear. We expected that its voluntary contributions would have reached the £4 million target. They are not remotely near that and we will therefore take effective action unless there is a dramatic improvement in the contributions.
My Lords, while I wholeheartedly applaud the decision of the Government to turn their face against the regional casinos, may I urge them to consider yet again whether they may be wrong in planning for sub-regional casinos? At the moment, British households spend something like £9.5 billion per annum on the gaming industry. The effect of that on many households is wholly devastating. In many cases, people who gamble can, of course, well afford it; as far as I am concerned, they have a right in law and a moral right to do exactly that. But what of the hundreds of thousands of households where the basic necessities of life are surrendered in the interests of gambling?
I will speak for a moment as one who has been a judge in both the criminal and family jurisdictions. I am utterly convinced that one of the most evil and awful destructors of family life is gambling. My appeal is therefore not to a 21st-century Puritanism in any way, but to a sense of both responsibility and humanity on the part of the Government, who, after all, net something like £1.5 billion per annum from this industry.
My Lords, the Minister in the other place made it quite clear that he would keep a close eye on the statistics regarding problem gambling. However, the incidence of problem gambling is very low in the United Kingdom in comparison with other advanced countries. At 0.6 per cent, it has not moved upward since 1999. As with any other distressing social factor, we would all wish that it did not exist at all. However, it is not always clear that, in order to eradicate a relatively minor social problem, one should restrict the opportunities of those who can pursue such pursuits responsibly.
My Lords, I declare a past interest as a former director of the parent company of William Hill and a current interest as one who occasionally goes to the races for the day. Does the noble Lord agree that a policy has to have an objective? What was the objective in the minds of Ministers when they conceived this policy? Was it to increase the amount of gambling in this country or to decrease it? It must have been one or the other; they are not so laissez-faire that they do not care.
Well, my Lords, a fair number of social developments take place in any society without them being necessarily engineered by its Government, unless one lives in a totalitarian society, which we do not. Therefore, the Government are concerned to regulate an activity that brings immense pleasure to very large numbers of our fellow citizens who engage in it with enormous enthusiasm. Those people may go to the races a bit more frequently than the noble Lord, Lord Tebbit, but he is not going to criticise them for having different values from his own in that respect. As far as the Government were concerned, in this situation we simply saw that certain developments of gambling facilities might benefit local authorities in job creation and regeneration. Local authorities agree with us.
My Lords, is not the Minister trying to defend the indefensible? Is not the Government’s job to show a moral lead to the community that they serve? The effect of casinos was mentioned. In that context it has been found out that some 5,300 serious crimes a year are committed because of casinos. Crime does increase, whatever the Minister may say. He said that these days more money is available for individuals to gamble with, but by allowing gambling in these casinos, he is reducing that amount of money. He is creating poverty. He said that children can be protected from the effects of gambling—but not the children in gamblers’ houses, or children who have perhaps lost their homes and the upkeep that they were used to. Children in those sorts of homes naturally will be affected by gambling.
I was surprised some time ago when I asked the Minister about online gambling. I have the reply here. He said that he wanted Britain to become the world leader in online gambling. The Government are at every step encouraging gambling. The Joint Parliamentary Committee that discussed this stated:
“Almost all the evidence we have received points to the fact that this legislation would increase the number of people in the United Kingdom with a gambling problem”.
We are saying that the more casinos we have, the greater the problem will become. Mrs Jowell, who was the Minister at that time, said:
“I do not accept that it will lead to an increase”—
My Lords, I apologise. Does the Minister agree with Mrs Jowell who said of the original Bill when it was first presented:
“I do not accept that it will lead to an increase in problem gambling … If this legislation gave rise to an increase in problem gambling then it would have failed and would be bad legislation”?
Does not the noble Lord agree that this is bad legislation?
My Lords, there is no proof. It is all right for the noble Lord to make the contention, but in fact there is no proof that problem gambling is increasing. I quoted the benchmark figure that shows no increase over the past eight years. We have given a pledge that if we do see that figure moving up, and problem gambling increases, we will act. That was the burden of the Secretary of State’s remarks today.
The Government sought to take a strong position on online gambling and the noble Lord must consider the alternative. We have the strictest gambling legislation among developed countries. If online gambling goes to small political societies with very limited controls, that gambling becomes free of any restriction and law. We were arguing that we should set out as far as possible to make sure that online gambling was located in the United Kingdom where we could protect the vulnerable and the young and we could have some control of it. Of course, the House will recognise our limited success in that respect—but that was the objective.
On the question of the Government giving a moral lead, I am not sure that Governments are always equipped to give moral leads in any case, but the noble Lord will recognise that with regard to gambling the Government are creating legislation to make sure that the vulnerable and the young are protected. It is not the Government’s business to tell a sophisticated society just how much it should gamble.
My Lords, that is a tough question. I do not have the statistics on that. A lot of the casinos established under the 1968 Act have been operating for a long time. They are small operations with very limited facilities and so produce very limited amounts of resources. Local authorities regarded the eight large and eight small casinos as opportunities for regeneration because they would provide larger facilities than the majority of those set up under the previous legislation. The problem with those set up under the previous legislation is that they are not subject to the degree of control that the 16 new casinos will be subject to. That is why the development of these casinos is a result of our legislation to tighten up the necessary controls to restrict the development of problem gambling.
My Lords, I declare no interest other than having been in the gambling business for 50 years. It is not very often that I agree with the Minister but I do agree with him that the number of casinos mentioned by the noble Lord, Lord McNally, is way beyond the scale of anything I understand. I want to commend the Minister on not allowing casinos to remain open 24 hours a day. I also wish to commend him in relation to free alcohol not being served at the tables, which is something I opposed for many years.
However, in Manchester more than 3,000 jobs have been lost as a result of this legislation. How much money does the Minister think might have been lost in levy and in taxation? Perhaps I may also say—the Minister mentioned it and I agree with him—that the incidence of problem gambling is lower in Britain than in any other developed country and lower than in any other gambling country anywhere in the world. Has the Minister considered the loss of employment? Has he considered the loss of taxation? Finally, in the framing of the order, will he ensure, as my previous company did, that as far as possible most companies will pay the voluntary levy that has been requested? I am disappointed to hear that the figures are so low.
My Lords I am grateful for that last point. We have faith that, having clearly revealed the figures, the industry will shape up. We are also quite clear that if it does not, we will take appropriate action. The noble Lord referred to making sure that people are not in the casino 24 hours a day with free drinks at the table. There is work to be done in that respect. The Minister was indicating today that these were areas in which he was contemplating action. We will require developments on that.
The Minister also announced today that Ministers were addressing themselves to Manchester. Anyone familiar with that great city will know that a substantial part of east Manchester, not too far from the city centre, is a completely blighted wasteland following the destruction of the vast largely engineering works which were the glory of Manchester for a century and a half. That area needs redevelopment. Although Manchester has a proud record of very significant redevelopment in parts of the city, the east Manchester project did involve the regional casino. That is a loss of investment for Manchester and a loss of development and jobs, as the noble Lord rightly identified. That is why Ministers are going to Manchester to address themselves to the issue.
My Lords, as one of those who took part in the passage of the Gambling Bill and spent a number of hours arguing against a lot of the proposals—certainly against supercasinos—will the Minister please guarantee to your Lordships’ House that there will be no more talk of supercasinos during the Government’s term of office; in other words, that there is no question of having supercasinos? That is my first request.
My second request is to ask whether there is really any reason why a compulsory levy is not applied as from now, given the tiny proportion of contributions that have been made to the Responsibility in Gambling Trust. Clearly, the money will be needed. It has been specifically explained that without doubt the number of problem gamblers will grow; from my knowledge, I support that view.
My third question is very brief. I agree that it is a good idea that the eight larger and eight small casinos should be shut for a number of hours during the day. The Minister said that a room will be set aside where there will be no gambling. Can we have guarantees that there will be no machines there that children might begin to become addicted to?
My Lords, I am happy to be affirmative in response to all three of the noble Baroness’s points. I cannot control talk about regional casinos but I can state that there will not be a policy development of them. With the compulsory levy, I made it absolutely clear that we will wait until the end of the year. If the voluntary response from the industry is not adequate, we will act. On the third point, the separate room is meant to be free from any gambling inducements.
My Lords, I declare two interests: one as the Gambling Commissioner and one as president of GamCare, the main treatment and counselling agency in this country.
Does the Minister recognise that the threat to GamCare, in particular, as the largest recipient of funds from the industry through the Responsibility in Gambling Trust, is much more urgent than is recognised in the Statement? The Statement says that if nothing happens by the end of the year, a compulsory levy will be imposed. However, at their meeting on Friday, the RIGT trustees will restrict the funds of GamCare to below that which we have asked for and below that which was agreed 18 months ago in a three-year programme. Unless something is done much more quickly than by the end of the year, those who are responsible for treatment and counselling will have to be laid off and the service will not be provided.
Criminal Justice and Immigration Bill
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Boston of Faversham) in the Chair.]
79: After Clause 9, insert the following new Clause—
“Pre-sentence reports and other requirements for persons under the age of 18
(1) The Criminal Justice Act 2003 (c. 44) is amended as follows.
(2) In section 156 (pre-sentence reports and other requirements), after subsection (8) insert—
“(9) All provisions of this section are subject to the requirements of section 156A below in relation to offenders aged under 18.”
(3) After section 156 insert—
“156A Pre-sentence reports and other requirements for persons aged under 18 before a custodial sentence may be imposed
(1) A court shall not pass a sentence of custody on a person under the age of 18, unless it has obtained and considered a pre-sentence report which includes information from the relevant local authority stating—
(a) the circumstances relating to the offender and the offence or offences of which the offender has been convicted,(b) whether the offender appears to be a child in need as set out in section 17 of the Children Act 1989 and if so details of the offender’s needs as assessed by the local authority, and(c) the services the local authority has provided to meet the needs of the child or young person.(2) The court may require the attendance at court of a senior official of the relevant local authority or any other local authority in order to determine what further services may be provided which may prevent or avoid the need for a custodial sentence.
(3) The court may not pass a custodial sentence unless it is satisfied—
(a) if the offender is a child in need, that services have been provided by the local authority which were appropriate or sufficient to meet the child’s needs, and(b) that the provision of further, or any, services by the local authority would not prevent or avoid the need for a custodial sentence,unless a custodial sentence is necessary to protect the public from an imminent and demonstrable risk of serious physical or mental harm.
(4) All local authorities must submit annual reports to the relevant Secretaries of State setting out the numbers and circumstances of all children who have been sentenced to custody from that local authority area.
(5) For the purposes of this section “relevant local authority” means the local authority in which the offender was habitually resident at the time of committing the offence or offences in relation to which sentencing is being considered by the court.
(6) In the event that the offender is no longer resident in that local authority area at the time of sentencing, or if there is any doubt as to the relevant local authority, the court may of its own volition or upon the request of any party determine which is the relevant local authority.””
The noble Lord said: This amendment is proposed by the Standing Committee on Justice, a coalition of all the principal charities that work with children. It seeks to introduce a requirement for local authorities and the courts to consider appropriate local authority provision to meet the needs of an offender under the age of 18, when custody is being considered. Local authorities are, as the Committee will be aware, under a statutory duty to safeguard and promote the welfare of children in need. Is there a need for the court to determine whether further service provision by a local authority could avoid having to send into custody a child under the age of 18, or is it just lip service to say that custody should be the last resort for children, as required by the United Nations Convention on the Rights of the Child?
It is interesting and instructive to illustrate the problem by consideration of looked-after children. A project was carried out by the National Children’s Bureau which produced a report entitled Tell Them Not To Forget About Us. In that report the bureau found that looked-after children who enter prison often miss out and have missed out on the support and care planning services to which they are entitled. As a result of not having those services, their long-term outcomes are very poor. The National Children’s Bureau was commissioned by the Department for Education and Skills to look at the care planning system for looked-after children in prison. Di Hart, the principal officer of the bureau’s children in public care unit, and author of the report to which I have referred, concluded:
“The picture that emerged was one of fragmented planning and poor outcomes”.
Young people often feel abandoned by the social workers on whom they have come to rely and practitioners are confused about their respective responsibilities.
In the report of the National Children’s Bureau, there is a foreword, written by Maria Eagle, who is the Parliamentary Under-Secretary of State for children and families, and Rob Morgan, who is the chair of the Youth Justice Board. The foreword says:
“The Government is committed to supporting effective multi-agency working to help support all children and young people, and to improve the outcomes they achieve in life. It is crucial that children do not fall between agencies, and that each agency works as effectively as it can with the others involved in that child’s life. That means getting the right systems in place to facilitate this, and not to hinder it”.
The foreword continues:
“For the small number of looked after young people and care-leavers who are sentenced to custody, it is particularly important that the local authority children’s services fit seamlessly with the way the youth justice system operates”.
In that foreword there is recognition of the problem that this amendment seeks to address. It is important to consider the looked-after children because 46 per cent of children in prison are or have been in care. Although they are entitled to ongoing social work support when in prison, there are few systems to ensure that they receive the help that they need to plan effectively for release.
With that introduction, I take Members of the Committee to Amendment No. 79 and to the proposals that we have included for a new Section 156A of the Criminal Justice Act 2003.
The new section states:
“A court shall not pass a sentence of custody on a person under the age of 18, unless it has obtained and considered a pre-sentence report which includes information from the relevant local authority stating … the circumstances relating to the offender and the offence … whether the offender appears to be a child in need … details of the offender’s needs as assessed by the local authority, and … the services the local authority has provided”.
Provision is made for the,
“attendance at court of a senior official”,
to assist the court, and—this is the critical part—the,
“court may not pass a custodial sentence”—
on a child under 18—
“unless it is satisfied … if the offender is a child in need, that services have been provided by the local authority which were appropriate or sufficient … and … that the provision of further, or any, services by the local authority would not prevent or avoid the need for a custodial sentence”.
That puts to the very forefront the question of whether a child under the age of 18 has received the necessary support from the local authority to which the child is entitled. A child on the brink of being sent into custody must surely be “a child in need”.
I draw the Committee’s attention to the caveat that a custodial sentence must not be passed without a report unless it is necessary to protect the public from an imminent and demonstrable risk of serious physical or mental harm, so the proposal would not apply when it is obvious to the court that it is necessary to protect the public immediately. There are other aspects to the amendment, which has been put forward by the organisation that is concerned with all the charities involving children. In my respectful submission, it has approached the problem in the right way and in accordance with the international covenant. I beg to move.
We, too, have an amendment in this group. If I say that it is more straightforward than that tabled by the noble Lord, Lord Thomas, I am in no way disparaging his contribution, which is extremely important. Our amendment underlines the importance of a pre-sentence report being in writing. It would ensure that the court considers the individual circumstances of the offender, such as his home situation, health, education and the history—if there is one—of his offending behaviour.
The JCHR emphasised the need to ensure that those requirements are clearly set out and that conclusions drawn from them are closely tailored to the individual circumstances of the offender. A report in writing would mean that a clear and detailed record could be kept on the child’s file further to inform any later appearance before the court. I confess that I had assumed that these pre-sentence reports would always be in writing, but I understand that oral reports can be compiled quickly in the courthouse and given in court on the same day by the YOT officer. That is an exceedingly unattractive and ill advised approach, which is why we tabled the amendment.
I warmly support the amendment moved by the noble Lord, Lord Thomas of Gresford, and I associate myself with the amendment spoken to and argued for incisively by the noble Lord, Lord Kingsland. We should be grateful to the noble Lord, Lord Thomas, for having brought to the Committee’s attention the considered view of the National Children’s Bureau both in terms of the scope of organisations that the bureau represents and the experience of those organisations in their front-line work.
It is an extremely grave step to consider a custodial sentence for a child, and never lightly to be undertaken. At the same time, however, one must remember the immense pressures under which sentencers sometimes operate. As the most reverend Primate the Archbishop of Canterbury has again reminded us today in some sensible and sane observations, we must be wary lest we are moving into a culture of studied hostility towards the young which is actually provoking anxiety among them, resulting in anti-social behaviour.
In this context, with much of the media baying for “tough” lines, one must not underestimate the psychological situation in which sentencers sometimes find themselves. The tough line is sometimes to resist popular pressure and do what is necessary. It may not be popular, but it may be what is right and make sense in terms of the individual, their rehabilitation, the interests of society and the avoidance of further cost through further offending.
However, I am the first to agree that a custodial sentence will sometimes be necessary to protect the public. As I argued on an earlier amendment, whenever this is necessary it should always be in tailor-made, specific accommodation established for the young. The evidence is repeatedly there, month after month, of how things go wrong for the young in prisons. They are in situations where the culture is totally wrong and does not concentrate on the child as a child—however terrible what the child may have done—or on the need to try to enable them to rebuild a sane, balanced life. Suicide, self-mutilation and everything else that goes on is all appalling evidence.
In this context, therefore, to call for detailed consideration and ask for those who know most about the child and their record to be present, and to seriously record in writing what their views, experiences and analysis amount to, is altogether appropriate and relevant. Both of these amendments are self-evidently sensible. They would strengthen the purposes of the Bill and, from that standpoint, I am glad to support them.
The most interesting thing that the noble Lord, Lord Thomas of Gresford, said was that 41 per cent—if I remember rightly—of children sent to be locked up have been in care. Does that figure not say something quite enormous: that our care system is seriously wrong and not functioning properly? Or am I jumping from the particular to the general, or whichever way around it is, without any great degree of logical thought? However, on first sight, those numbers strike me as extremely disturbing. The care system itself must therefore now be carefully looked into to see what improvements can be made.
It is also extremely odd that this is not already in practice. It is blindingly obvious to any person of humanity or common sense that sending children to prison or a lock-up should automatically be the last resort. It is incomprehensible in today’s world that there is no proper written report on every child before that child is sent to prison. Of course I agree with the noble Lord, Lord Judd, that some children are thoroughly nasty, very dangerous and particularly repellent, and should be locked up. However, that equally induces a responsibility on society that the care standard, not only from the child’s point of view but from society’s, should be the best that we can possibly organise. The more efficient we are and the better we are at organising care for young criminal offenders, the more they will not go on, as so many of the bad ones do, to a complete life of crime. That is what we should be aiming for. Of course it is impossible to succeed, but at least I hope that we can make some dent in it. The amendments go a tiny way to making a pinprick in this thing, so I support them wholeheartedly.
I particularly support the amendment of the noble Lord, Lord Kingsland. If it is necessary to send a child to secure accommodation or a young person under 18 to prison, that, as the Government have already said, is a measure of last resort. Consequently, it is particularly important that there should be a considered report on this child or young person, which has been written by someone who has had time to investigate the background. We know that among those who commit serious offences are those who are truly bad, as the noble Earl, Lord Onslow, said, but also those who have an appalling background who could be helped in some way, even if it is necessary to go to prison. Indeed, the background may have some effect on what the prison sentence may be. Consequently, the idea that it is possible to send a young person to prison on a report that is provided on the day of his being found guilty but is not considered is a blot on our administration of justice.
I, too, support the amendments in the names of the noble Lords, Lord Thomas and Lord Kingsland. I am very glad that they are there because they are complementary. I am also very glad that we have an opportunity to discuss the briefing, which I am glad the noble Lord, Lord Judd, paid particular attention to, which many of us received from the Standing Committee for Youth Justice. It represents the voices of professionals, and we should all listen to it.
The noble Earl, Lord Onslow, mentioned care, which links again—I have paid attention to this in the past—to the Children and Young Persons Bill, which has been going through in a parallel time. I am particularly keen on the provisions that would be made by the amendment to require local authorities to produce an overview from the people responsible for the care of a child to aid those people who have to take the sentencing step. I was, like the Standing Committee for Youth Justice, disturbed to see the comments about this proposal when it was made in the other place. The Minister there said that it would duplicate existing safeguards and provisions in respect of information about the young offender and would impose additional bureaucracy and cost, particularly on local authorities, for little extra gain.
From the very beginning of our discussions on the youth justice part of the Bill, people on all sides of the House have emphasised that the focus must be on the child. It seems to me that the Minister did not focus on the child so much as on the bureaucrats and the authority. You cannot have too many safeguards to make certain that the best interests of the child are preserved. I am, frankly, astonished that the Minister should think that that was a line to take.
When looking at the responsibility of government in this, I am surprised that the Minister there said that the Bill would place additional duties and requirements on people. Of course, we should put the requirements to deal with the child at the very top of our priorities, not at the bottom of the list. Therefore, I hope very much that these amendments, which are designed to do just that and to make certain that the best interests of the child are not only maintained but recorded so that they can be followed through by others and not just be a one-stop shop when someone appears in court, are taken very seriously.
Lastly, I draw to the Minister’s attention the comments of the Standing Committee for Youth Justice, which says that there did not appear to be much strategic thinking behind what the Minister there was saying in his comments. There is not much strategy in this Bill, but if there is one bit that we can rescue, I hope that it is a strategy for better dealing with our children when they come into the hands of the law.
I, too, most wholeheartedly support this amendment in the name of my noble friend Lord Thomas, requiring as it does that, before a court imposes a sentence of custody on a child, all alternative local authority service provision has been considered with a view to avoiding custody whenever possible. Not only is this necessary and desirable in terms of the individual needs and welfare of children, it is fundamentally humane. It also clarifies what is available to the court.
Pre-sentence reports are, or should be, a vital tool in the court’s decision-making process. The requirements of this amendment can be only in the best interests of the child as well as of society, as has already been pointed out. I also wholeheartedly support the subsequent amendment in the name of the noble Lord, Lord Kingsland, requiring that these reports should be in writing. Nothing can be worse than an off the top of the head, last minute, verbal report, which tells you nothing of import about a child whose needs are bound to be great and are bound to be complex.
As I pointed out at Second Reading, while the Government pay lip service to all manner of good intentions where sentencing is concerned—for example, using custody only as a very last resort and for as short a time as possible; the welfare of the child being paramount; and supporting the preference for community-based penalties wherever possible—the reality is quite at odds with those sentiments. While overall crime is dropping, the number of children being sent into custody continues to rise. Child prisons are by definition punishment rather than welfare based. Here, as well as the YOIs, there are STCs, which take children as young as 12 years-old. The budgets for the providers of the vital alternatives for young people in the community are being cut, thus limiting available resources.
Under the amendment, local authorities are required to consider all available alternatives. That is the way to meet the obligations, as the noble Lord, Lord Ramsbotham, has just told us, of putting the welfare of the child first, of finding alternatives to custody except as a last resort and of the Government making available resources for appropriate provision.
It is by now well known that children for whom custody is being considered are the most needy, most vulnerable and most damaged. Eighty per cent of the youngest children reoffend, the costs of custody are huge, and if their needs are appropriately met—for example, 60 per cent of boys have serious mental health problems—we will have a safer society, and less socially and mentally disabled children. We will also, incidentally, have complied with our obligations under Articles 37(b) and 40.4 of the UNCRC and Rule 19.1 of the Bejing rules, which would be no bad thing. It always defeats me how we somehow manage to sidestep, avoid or ignore these rules to which we should adhere and with which we should comply.
The noble Lord, Lord Ramsbotham, referred to local authorities, which are always strapped for cash. The reality can be that they are ready to let children go to custody where there is central funding and a ready facility is apparently there. The issue is not only bureaucracy, as the noble Lord, Lord Ramsbotham, pointed out, it is also often cash. Local authorities lack a financial incentive; for example, individual support orders are not nearly as popular as ASBOs. Even, very sadly, the YOTs have become quite distanced from the work of children’s services, something which was commented on in a chief inspector’s report on safeguarding in 2002. Pre-sentence reports are vital. I urge the Government to look carefully at these important amendments carefully.
I well appreciate and respect the principles and the desires underlying Amendments Nos. 79 and 80. I certainly bow to the view of the noble and learned Baroness, Lady Butler-Sloss, that the vast majority of courts have over the years approached these issues in this way and sentences have spelt out the very things in Amendment No. 79. It may be that the noble Lord, Lord Ramsbotham, is placing a rather narrow gloss on the words of the Minister in the Standing Committee, but I have not read his speech and I may be wrong.
If that Minister was suggesting for a moment that financial economies were more important than the future of a child, I would wholeheartedly agree with everything that the noble Lord, Lord Ramsbotham, said. I suspect, however, that that is not what was meant. In other words, the Minister was applying his mind here to the question of the local authority’s involvement. Was it necessary for the local authority to be represented in court when the probation officer, presumably, would have already consulted the local authority and would be able to speak for it in an authoritative way? If it was the latter, the Minister should be absolved from what clearly otherwise would be a very narrow and improper analysis of the situation.
I wholeheartedly agree with the noble and learned Baroness, Lady Butler-Sloss, that Amendment No. 80 is to be preferred on the whole to Amendment No. 79. On Amendment No. 79, quite apart from the specific and possibly unnecessary reference, to the local authority as such, it seems to me that that can be dealt with to a large extent by administrative precept. I suspect that it probably is dealt with already by administrative precept in that regard. All that one needs is in Amendment No. 80. Very few courts would ever proceed to sentencing a person under the age of 18 to custody without a written report. Sometimes, reports need not be written, but, almost invariably, the judge would ask the resident probation officer whether he or she would be so kind as to interview a person in circumstances where the learned judge very probably had already made up his or her mind not to exercise the assumption of custody in that case. I very much welcome Amendment No. 80 for the reasons that I have articulated.
I have a lot of sympathy with the amendment moved by the noble Lord, Lord Thomas, and I am in complete agreement with that tabled by my noble friend on the Front Bench. I will listen with care to what the Government say about the detail of the amendment of the noble Lord, Lord Thomas. It obviously makes good sense, but there may be administrative reasons which ought properly to be taken into account on some of the detailed provisions.
On the amendment tabled by my noble friend, this seems to be an open and shut case. If you are dealing with whether to put a child under the age of 18 into custody, you are dealing with whether to impose on him a step that will probably have a watershed effect in his subsequent life. Although I agree absolutely with what has just been said by the noble Lord, Lord Elystan-Morgan, that there may be occasions when it will be possible properly to have a pre-sentence report given orally, it is a necessary safeguard to require that such reports are given in writing. Much will depend on the way in which the report is expressed. If it has to be in writing, one can be that much more sure that it will be carefully considered with an eye to the possible consequences of this or that nuance than if it is delivered orally. I therefore hope that the Government will support my noble friend’s amendment.
I should like to support both of these amendments. I was astounded to learn that children can be sent to prison without a written report and I wonder whether in his reply the Minister could confirm that that does happen. Most noble Lords would find it difficult to believe. The amendment of the noble Lord, Lord Thomas of Gresford, opens up some of the contradictions that lie at the heart of the Government’s policy. No doubt noble Lords will be aware that in most western European countries, and in England and Wales until the recent past, children in trouble are dealt with by the same authorities as other children with problems. Those are the local authorities, which have responsibility for all services for children.
The Government recently reformed the systems for dealing with children at the local level and have introduced what appear to be considerable improvements based on the ideas behind Every Child Matters and Safeguarding Children. This is where the problems start. Once the actions of a child become of interest to the police, children are moved from mainstream services for children to the specialist world of youth offending teams, the courts and the Youth Justice Board. This structure leads to major dysfunction because it enables local services in the area where the child and the family live, and where the impact of the child’s behaviour is felt, to opt out. The child’s needs and the plan for the child become someone else’s responsibility, and as the noble Baroness, Lady Linklater, pointed out, for a hard-pressed local authority that can be quite welcome. It can also be greatly to the authority’s financial advantage to shift the spending responsibility to the Youth Justice Board’s custody budget. This is, however, a highly undesirable and ineffective outcome because all the research shows us that the more a child can be kept in a local situation and within mainstream services, the more the aim of the youth justice system to reduce reoffending is likely to be met.
The amendment of the noble Lord, Lord Thomas, could make an important contribution to shifting the balance of responsibility back to the local area where the child lives and towards a youth justice system that might begin to use the £280 million spent every year on custody on a more productive outcome.
I strongly support both amendments. The amendment of the noble Lord, Lord Thomas of Gresford, would be particularly effective after Clause 9 because it amplifies the importance of dealing with offenders under the age of 18. It is that which matters particularly to those of us who are also working on the Children and Young Persons Bill. We have heard about the proportion of those aged under 18 in custody who go on to reoffend, and it is absolutely appalling. But we also know that the Children and Young Persons Bill has been brought forward by the Government in response to a high degree of input and information from people like my noble friend Lord Listowel, who has been lobbying for a long time to draw attention to just how badly we have failed with this group of children. It is thoroughly to the Government’s credit that they are doing their best to pass a Bill that pays far greater attention to the needs of these children.
For that reason, spelling out all the issues that need to be taken into account in the way suggested by the noble Lord, Lord Thomas of Gresford, combined with the amendment tabled by the noble Lord, Lord Kingsland, is to be welcomed. The proposal recalls for me a time when I sat as a chairman of a juvenile court where we certainly did take account not just of probation reports, but social services reports and reports from the education authority as well. Together, they formed the basis on which we would come to a conclusion. When dealing with children and young people, it is sensible for us as a country and as a community to do our best to rehabilitate them in the way suggested particularly in the Children and Young Persons Bill. I hope that the Minister will give real consideration to these two amendments.
I want to speak briefly in support of these amendments, partly from my experience as a local councillor. You become, in effect, a corporate parent for all of the children in local authority care. If one of those children was to die in your care, of course you would consider that you had failed substantially as a corporate parent, but I am not sure that the same feelings arise when a child in the care of a councillor as a corporate parent is sent to prison. However, in fact it is the same sort of substantial failure. In particular, the statutory requirement for a local authority to list the services it has provided to meet the needs of the child or young person would be a tool for corporate parents. I must say that as a councillor you are one step removed from these children. Obviously you cannot have the same level of involvement as a real parent would have, and you need to know that all the policies have been implemented and the paper trail is in place in order to ensure that failure is a remote possibility. Of course, excellent authorities do have this sort of thing in place, but not all authorities are excellent. Quite apart from all the reasons so powerfully put by other noble Lords, this provision would be an additional tool for local authorities to use.
It seems a long time since we considered a number of amendments that run very consistently with our debate this afternoon about the way young people are dealt with in the criminal justice system. I think it is fair to say that in our previous discussions we did refer to the performance of youth offending teams and local authorities, so in a sense the amendment moved by the noble Lord, Lord Thomas, in particular helpfully brings us back to this important question. I am well aware of the very poor outcomes for looked-after children. The noble Lord will recall that I took through the House the legislation on children leaving care which was introduced because of worries about the gap between young children leaving care and growing into adulthood and their falling through the net of further support. I was aware of the poor outcomes for many of these young people.
I strongly endorse the need for effective multi-agency working. I say to the noble Lord, Lord Ramsbotham, that in arguing against the amendment, my colleague in another place was not referring to the needs of bureaucracies or to finance issues; he was concerned—as the noble Lord, Lord Elystan-Morgan, suggested—to ensure that there are clear lines of accountability and responsibility in what local authorities do, and concerned that if the amendment were accepted, the court’s role may well have an impact on that.
I was interested in the comments of the noble Baroness, Lady Miller, who referred to excellent authorities and to not all local authorities being excellent. She suggested that the intervention of the courts as the amendment proposes may help to improve standards. The Government believe that the duties imposed by the existing legislation are satisfactory and that we need to focus our attention on how we can generally improve the performance of both youth offending teams and local authorities. There is no doubt, or argument between us, about that.
Section 156 of the Criminal Justice Act 2003 already requires the court to consider a pre-sentence report before giving a custodial sentence. It is undoubtedly important that the courts possess the fullest information in order to make their decisions and, as I said, to ensure that local authorities are discharging their responsibilities in accordance with their statutory duties. The pre-sentence report already covers most of the issues that the new clause seeks to introduce. I am concerned whether the Bill or the courts are the right way of holding local authorities to account for their actions in relation to vulnerable young people.
It is critical that the courts should have thorough assessments of young people on which they can make proper and reasonable sentencing decisions. That is the underlying purpose of Section 156 of the Criminal Justice Act 2003, which provides that the court must consider a pre-sentence report if it is to impose a community order or custodial sentence. The content of the pre-sentence report is therefore vital. The information to be contained in such reports is set out in the National Standards for Youth Justice Services, which require youth offending teams to produce a thorough assessment of the young person. The pre-sentence report is supported by a common assessment profile of the young person, a comprehensive document which covers all the information that is set out in the new clause and more, including the offender’s welfare background. By implication, it would need to include information on the level of engagement with local social services, what services have been used and any assessment of future need for local authority services.
The right approach is to provide practitioners with the guidance set out by the Youth Justice Board. The guidance can remain flexible, be amended to reflect changes and be kept up to date. The national standards are currently being revised, and I can assure the Committee that we will highlight the need to ensure that welfare issues are included in the pre-sentence report process, that appropriate information is put before the court and that those requirements are established in national standards.
The current national standards are relevant to our debate. Pre-sentence reports must be prepared in writing and copied to the young person, to their parents or guardian and to the prosecutor. They must include an analysis of the offence; an assessment of the young person; an assessment of risk to the community, including risk of reoffending and harm; and a recommendation on sentencing. A young person is assessed by means of a standard assessment tool, the information in which includes interviews with the young person, parents or guardian; existing reports, including any previous assessment; a statement of education needs; and any information relevant to offending including contact with police or health and children’s services. It must take into account any child protection plan, pastoral support plan, individual education plan, care plan, children in need assessment, pathway plan or any other plans. It is then the responsibility of the youth offending team to obtain all the relevant information and to engage with other local authority services in establishing the young person’s needs and ascertaining the best and most appropriate intervention.
It might be interesting to mention the joint inspection of the YOTs. The annual report concluded that there were considerable strengths in current practice. In almost all pre-sentence reports the young people were interviewed at least once, in most cases with their parents or carers, and almost all reports included a clear proposal commensurate with the seriousness of the offence. However, the report also identified certain areas for improvement. For instance: some reports were not based on the assessment tool; safeguarding issues were identified in only 75 per cent of reports; and only 61 per cent of the reports paid attention to vulnerability. I make no apology for highlighting some of the weaknesses identified in the annual report. I am seeking to illustrate that there is a process of inspection, review and monitoring and that we expect youth offending teams to take note and make improvements to their services.
The same applies to local authorities. Over the years there have been many instances where social services have not provided the right quality of service—I remember making a Statement to this House in relation to Victoria Climbié. However, changes have been made. We have a new approach and strong accountability mechanism that includes an ability to intervene. Some years ago Birmingham, my own local authority, performed very poorly in social services and had to go into special measures. The result of the intervention was that Birmingham improved its overall performance and came out of those measures.
I am not going to say that everything is perfect and I understand that the quality of the local authorities’ work can sometimes frustrate the courts and have a negative impact on the young people we are discussing. The best way of approaching the issue is to say that alongside the requirement in the reports prepared by the youth offending teams there should be a performance-management regime, a clear expectation of standards and a clear intervention when the authorities or youth offending teams fail to produce the goods. That is the best way forward.
I return to the question of court reports in writing.
As the Minister embarks on the second limb of his argument, will he take into account that he has told us of a large number of very proper inquiries and considerations, the results of which have to be recorded in writing? If that is so, why on earth cannot those results, encapsulated as they will be in a pre-sentence report, be put into writing similarly? What will be lost?
I was going to come to that point. I have said that the Youth Justice Board national standards already require pre-sentence reports to be in writing. Section 159 of the Criminal Justice Act 2003 also requires that copies of the pre-sentence reports are made available to the offender, to the offender’s parent or guardian if they are under 18 years old, and to the prosecutor. There is an exception, which is if the pre-sentence report is made orally to the court. For young people, that will be where the court decides it can deal with a case immediately rather than adjourn to obtain the report in writing.
I know noble Lords have expressed concern about that, but the provision of an oral report enables the court to allow a young person’s case to be dealt with properly without the need to adjourn for a full report. I have been advised that the offences concerned will be minor. The example I have been given is of a shoplifting offence of a low-value item with no aggravating circumstances, such as drug abuse or minor criminal damage, and the youth offending team is content that a full report is not required and an oral report is appropriate.
Forgive me for interrupting. Does that mean that the list the Minister has just read out is in relation to offences where there is no likelihood that the young person would go to prison? We are all concerned about offences where they will go to prison. If we are absolutely certain that the Minister is saying that they will not, then many people in this House, if I may so speak, would be very relieved.
I was coming to that point. Paragraph 4.1 of the national standards says that the assessment tool, known as Asset,
“must be completed for all young people subject to … custodial sentences”.
The answer to the noble and learned Baroness is yes, so far as I understand. I will undertake to double-check this and write to noble Lords, but my understanding is that what she has said is right. If there were a question of a custodial sentence, a written report would have to be made.
I am most grateful to all noble Lords who have taken part in this debate. I take on board what the noble Lord, Lord Judd, said; we must avoid demonising children and young people. The noble Baroness, Lady Butler-Sloss, said that some children are bad and others have appalling backgrounds. I am not really a believer in original sin—particularly this afternoon, when I have become a grandfather for the sixth time. I do not think it would be appropriate to take that position.
The noble Lord, Lord Elystan-Morgan, and I come from a background and a history where oral reports to the court were frequent, and they have not stopped. It is only a matter of two weeks since I was asked by a judge whether I thought an oral report would be enough in a very serious case. In fact a written report was required, and that was for someone under the age of 18.
The noble Baronesses, Lady Linklater and Lady Stern, have referred to the temptation for local authorities to shift the financial burden from the local authority to the Youth Justice Board’s budget. It is important that the court should bear that in mind when it is considering whether a young person should be sent to prison. We are concerned not about what a probation officer can offer but about what services provided by the local authority have been, or could be, used to avoid that final determination by the court.
If your Lordships look more closely at our amendment, you will see that we are not suggesting that the local authority should itself be under a duty to provide a report to the court but merely that the pre-sentence report includes information from the relevant local authority. In other words, the youth offending team that is putting the pre-sentence report together should have a paragraph or more in that report that outlines the local authority’s attitude to the individual child or young person. That is really what we are concerned with; not the provision of more reports, but that the youth offending team should have that very much in mind. Although we have heard of the guidelines and the assessment tools, which seem admirable in themselves and which have been laid down for youth offending teams to utilise, the Minister has demonstrated that, according to the annual report, there are failures in the provision of the necessary information.
I am grateful to the noble Lord for letting me intervene, and I congratulate him on the birth of his sixth grandchild, which we all rejoice at. I mentioned those failures deliberately to show that I have not come to your Lordships’ House to argue this point from complacency. I accept that weaknesses have been identified that need to be improved. My argument is that we have a mechanism to monitor, judge and then make improvements.
My argument is that that mechanism is not working at the moment. I am not here to criticise local authorities or to ask the court to discipline them for the non-provision of services, nor to argue that youth offending teams should be disciplined for failing to follow the mechanisms, the assessment tool, with which they are provided. I argue that the court may not pass a custodial sentence, it will not send the child or young person to prison, unless it is satisfied, on information that has been obtained from the local authority—through the youth offending team, no doubt—that everything that that local authority could have done for the child or young person has been done.
I also support the amendment that has been put forward by the noble Lord, Lord Kingsland, that everything should be in writing. The old way of working—the probation officer going downstairs, having a chat with the individual young person in the cells and then coming back and giving some sort of a report that he has achieved mainly from the young person or possibly from his parents—is simply not good enough. The court requires a wider provision; not just the probation officer’s view but the local authority’s input into what is the most appropriate way of dealing with that offender. While I am glad that there are the mechanisms to which the Minister has referred, the duty on the court must be to ensure that those points have been covered and not to take either an oral report or a written report simply at face value without asking, “What have you done under this section to obtain the local authority’s attitude?”.
As I said, I am grateful to your Lordships. I do not intend to pursue the matter at this stage, but we will certainly come back to it on Report. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 80 not moved.]
Clause 10 [Abolition of suspended sentences for summary offences]:
On Question, Whether Clause 10 shall stand part of the Bill?
We now pass from issues special to children and young people to more general questions of sentencing. The remainder of Part 2 contains specific sentencing proposals, some of which were considered in Committee in another place and some of which were introduced quite late in the day inspired by the report of the noble Lord, Lord Carter of Coles. If I were a more cynical person I might suggest that some of these amendments owe a great deal more to the desire to reduce the scale of the prison population than they do to their inherent merits. However, I have no doubt that the Minister will have something to say about that.
The first of these matters concerns the Government’s desire to remove the power of magistrates to impose suspended sentences in summary cases. Clause 10 proposes that suspended sentences could not be ordered for summary offences although the power would remain for indictable and either-way offences. However, if two or more custodial sentences were being considered on the same occasion, one summary and one indictable, and it is intended to impose a suspended sentence for the indictable offence, a suspended sentence could then be imposed for one or more of the summary offences. As I understand it, this is the first time there has ever been a proposal which differentiates so radically in sentencing disposals between summary and either-way matters. Indeed, in many cases the distinction will almost be a distinction without a difference. For example, in matters of criminal damage, whether something is a summary matter or an either-way matter can turn on the financial scale of the cost of the damage.
But the key issue that needs addressing under Clause 10 is this: when one is dealing with a suspended prison sentence, one is dealing with an offence that has passed the custody threshold. This flows from the guidelines of the Sentencing Guidelines Council. At page 24 of the guidance, the Sentencing Guidelines Council sets out the questions that the court should ask itself. First, has the custody threshold been passed? Secondly, if so, is it unavoidable that a custodial sentence be imposed? Thirdly, if so, can that sentence be suspended? So if the court concludes that a custodial sentence should be imposed and if the option of a suspended sentence is removed, as the Government so intend, it is inevitable that the person in the dock will be sent to prison. In my submission, removing the power of magistrates to use suspended sentences for summary offences will actually have the opposite effect to that the Government intend. It will increase the prison population, not reduce it. The suspended sentence provides flexibility that enables the magistrate to provide a sentencing option which will, always assuming that the individual concerned will stick to the terms of the licence, keep him out of prison.
As I understand the Government’s argument from reading the relevant passages in another place, their view is that if the option to issue a suspended sentence were removed, the court would normally impose a community sentence. If that is the Government’s view, it flies in the face of the guidance given by the Sentencing Guidelines Council. So the Opposition believe that Clause 10 is misconceived and will have an effect contrary to the one the Government intend. We believe that the Government should think again.
My attitude to this clause is certainly not condemnatory. However, it is very cautionary. The main issue has already been put most articulately by the noble Lord, Lord Kingsland. But I bear very much in mind what he said rather cynically, and perhaps justifiably so—that this is not wholly unconnected with the fact that our prisons are bursting at the seams. That echoed the words of that most splendid gentleman, the late Lord Allen of Abbeydale, who told me more than once when I was a Minister in the Home Office some 40 years ago that in his experience—he had been in the Prison Commission and in the Home Office for 30 or 40 years—most of the splendid things that had been done by way of criminal law reform had been done for the wrong reasons. I suspect that we still operate under that reality and that very probably all governments, whatever their problems, face much the same situation.
As I am in anecdotal mood, I recount what happened in 1968 in the Home Office when it was discovered, after the Criminal Justice Act 1967 which introduced suspended sentences had run for 12 months—I am not exactly sure of the figures but they must be very near exact—that the number of fines had fallen by some 18,000 in that 12 months. The number of suspended sentences was either 19,000 or 17,000—it was 1,000 one way or the other—and with the greatest possibility of coincidence in the world, there must have been some causal connection between those two factors.
The point that I seek to make is this. You can never be sure how courts will react to these situations, especially when you bear in mind that the courts which will be dealing with these matters day in and day out will mostly be magistrates’ courts. Noble Lords will know far better than I how two magistrates’ courts with adjoining petty sessional divisions and very similar social backgrounds will adopt totally different sentencing policies. Therefore, there is a danger that you will not get what you expect to get and what you wish to get with this clause. Magistrates may well say, “We would like to fine this person but he has no money”. For a number of reasons they may react against the alternative prospect of a community sentence and say, “Very well, my lad, it’s got to be prison in your case”. So although you defend yourself against the danger that the subjects of suspended sentences may breach those sentences and end up in prison, other people will go to prison immediately.
I believe that a suspended sentence for a comparatively minor offence can be very useful. When you look at the escalation over a person’s criminal career, you say to yourself, “What if he had been stopped early on? What might have happened if he had been pulled up with a short suspended sentence for a summary offence?”. The consequences of losing that tool should be taken very much into consideration.
My other point is the one made most elegantly by the noble Lord, Lord Kingsland. That is, it involves some logical gyroscopics to be able to bring about the situation. Before a sentencer determines that a matter is one for custodial sentence, he must determine whether the custodial threshold has been passed and custody is appropriate. Then he has to constitute himself into a parole board and say to himself that the man he decided, one second ago, to send to prison need not serve that sentence after all. Such mental athleticism and gymnastics are not what ordinary people would appreciate as being very sensible.
It is done and I appreciate that, perhaps, in this case, the alternative to doing nothing to what is contained in Clause 10 might well be to issue very sound advice to magistrates’ courts. However, the logical track is still there. You are still inviting them to take that logical track on the basis of an administrative precept, rather than on the basis of legislation. While I have sympathy with the Government, appreciate their motives in this case and wish, indeed, that they would succeed in reducing the prison population, I am very unsure that that will, necessarily, be the case.
I hope I will remember the story of the noble Lord, Lord Elystan-Morgan, about all splendid law reforms having been undertaken for the wrong reasons. The trouble with Clause 10 is that it is not a splendid law reform. It is going to be a rather stupid one, for the reasons that have already been identified in this short debate.
What is the merit of the suspended sentence? It is surely that it enables the gravity of the offence to be marked, but at the same time offers the accused person the opportunity to avoid prison by reforming his behaviour. This is a very good thing for him and for the taxpayer. I cannot see the logic in keeping it as a sentencing tool for indictable offences, yet taking it away from the far more numerous summary-only offences. The point has already been made, but is worth alluding to again, that before a suspended sentence can become a possibility, the sentencing threshold, as defined by the Sentencing Guidelines Council, has to be passed. The consequence, then, will not be a community order sentence; it will be, in the vast majority of cases, an immediate custodial sentence. That renders this a stupid reform, and not one of those splendid ones, albeit that it will be introduced for the wrong reasons.
I follow what my noble and learned friend Lord Mayhew has just said. The Committee should remember that a suspended sentence, for some people, is a very great punishment indeed. You have been sentenced to prison, but the sentence has been suspended. It is a great disincentive for some people to reoffend. To have a community sentence instead, if the Government think that is what will happen as a result of this clause, is not the same punishment. The public will see that; people know the difference between these things. In my experience, the suspended sentence is enormously effective for some people. Of course, many reoffend and despite a suspended sentence, they will go to prison. I see that, but for many that is not the case and we should not forget that.
In another place, my honourable friend David Heath drew the attention of the Members to the Adult Court Bench Book, which gives advice to magistrates on how to proceed. On page 49 is the heading, “What level of sentencing are you considering?”. The first tier is an absolute or conditional discharge. The second tier is a fine. The third is a community sentence. It is only at the fourth tier that a custodial sentence is referred to, where the offence is so serious that neither a fine alone, nor a community sentence, can be justified. Only after that stage—if the court decides that the first three tiers are not appropriate, and they consider prison to be appropriate—are they to consider whether the sentence should be suspended.
The Government’s premise is that if you abolish suspended sentences of imprisonment, the courts will naturally move to the community sentence, as opposed to the immediate sentence of imprisonment. What is the basis for that? Mr Hanson in another place said:
“It is part of the government’s drive to examine how we can achieve greater use of community sentences”.
He was then asked, in effect, how he could be so sure about that. He said:
“My judgment, and that of the Lord Chancellor and his predecessor my noble Friend Lord Falconer, is that this will result not in up-tariffing to custody but in down-tariffing to more community sentences”.
He invents some new English phrases, but does not really give any reason. He then said:
“I believe it will result in stronger use of community sentences rather than going to automatic custody”.
He later tells the Committee that,
“the judgment of the two Lord Chancellors … and my judgment as the Minister is that it will result in greater use of community sentences, rather than prison places”.—[Official Report, Commons Criminal Justice and Immigration Bill Committee, 20/11/07; col. 332-4.]
How does that follow? The court, before it even considers the suspension of sentence, has gone through what levels of sentence can be considered. It has concluded that it does not want an absolute discharge, a fine, or a community sentence, and that a sentence of imprisonment should be imposed. This clause abolishes the ability of the magistrates or judge to suspend that sentence. The only conclusion one can have is that immediate sentence of imprisonment should and will be imposed.
This has been an interesting debate. I say to the noble Lord, Lord Kingsland, that a number of clauses in the Bill will have, we hope, a positive impact on the prison population. There is no escaping that we have a very serious problem with the prison population. I hope that the provisions in this Bill will commend themselves as worthy in their own right, alongside contributing to an easing of prison population pressures. Generally, noble Lords are always urging me to do this, except when it comes to a particular amendment, when we sometimes take a different view.
The noble Lord, Lord Elystan-Morgan, certainly had wise words of advice for Ministers and those who seek to influence these matters. He reinforced the importance of sentencing guidelines when it comes to the advice available to magistrates in doing their very important work. I want to make it clear that in moving that this clause stands part of the Bill, it is not my intention to criticise the work of magistrates. They do an excellent job. It is more to help give them the appropriate guidance that is required.
These orders were introduced in April 2005. As we have heard from the noble Lord, Lord Kingsland, they enabled a court passing a sentence of imprisonment of less than 12 months to suspend that custodial sentence for a period of between six months and two years. These have been used extensively. In recent months, more than 3,500 per month have been given out by the courts, of which 40 per cent are for summary-only offences. However, at the same time as the rapid increase in the use of suspended sentences, there has been no drop of equivalent magnitude in custodial sentences. The view of the Government is that many of those sentenced to a suspended sentence order would previously have been sentenced to a non-custodial disposal.
The noble Lord, Lord Elystan-Morgan, would say that that is a result of the Elystan-Morgan law of not getting what we expect. But, clearly, to merit a suspended sentence an offence should have reached the custody threshold. We think that as a result of the introduction of the suspended sentence order we have added about 400 places to the prison population, and that number will build up over about a two-year period from now. The reason for that is that those who breach suspended sentences are almost certain to go to prison, whereas breach of community orders has a wide range of consequences which do not necessarily end in custody. Therefore, we are concerned about the way in which the new suspended sentence has been used where we think a community disposal would previously have been deemed appropriate.
From looking at those extra suspended sentences that have been imposed, has the Home Office discovered whether they are people who should be sent to prison across the custody threshold that the noble Lord, Lord Thomas of Gresford, was talking about, or is the evidence that normally they would be community sentences? I am seeking information with an open mind.
It is a fair question. I cannot say that each case has been looked at individually. The concern has come from the figures and from the fact that while the use of the orders has increased, there has not been a consequent decrease in custodial sentences. Therefore, the supposition is that there has been, to use that awful term, up-sentencing—
I apologise, up-tariffing. Noble Lords then would argue about the fact that these offences must have reached the custody threshold, so that if this provision is enacted in future it will lead to up-tariffing. I understand the point that has been raised. I pray in aid first what the Lord Chief Justice said in an interesting speech on 15 November 2007:
“The seriousness of the offence determines whether it crosses what is known as ‘the custody threshold’, but factors personal to the offender can justify the court in passing a non-custodial sentence even where the custodial threshold is crossed. In practice there is quite a wide borderline area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way”.
That is particularly true in the case of magistrates’ courts, which suggests that there is a grey area. It is in that grey area that the greater use of suspended sentences has fallen.
I am very hesitant to stand here and criticise the work of magistrates. The noble Lord may draw that conclusion, but I am not going to stand here and criticise magistrates. It would be wholly inappropriate for me to do so. Clearly, there may be some questions about the guidance that is given to them about training.
I refer the noble Lord, Lord Thomas, to his colleague, the noble Lord, Lord Dholakia, who sadly for me is not in his place. He said at Second Reading:
“There is evidence that courts too often pass suspended sentences where they could have passed a community sentence … Let us hope that the Bill will at least limit this damage by prohibiting the passing of suspended sentences for minor summary offences”.—[Official Report, 22/1/08; col. 163.]
So there is an argument for what the Government are seeking to do.
The Sentencing Guidelines Council has already set out very clearly in its guidelines that an offence must reach the custodial threshold before a suspended sentence can be imposed. Yes, I accept that, clearly, the issue of suspended sentences needs to be kept under discussion with the council. I understand that the council plans to review its guidelines on general seriousness and on the new sentences arising from the Criminal Justice Act 2003, so there will be an opportunity to look at suspended sentence issues again in relation to the custodial threshold.
Our view is that it will not lead to further increases in the prison population. I acknowledge that magistrates would prefer to receive further training on the intended use of suspended sentence orders. The Sentencing Guidelines Council has already set out in its guidelines that an offence must reach the custodial threshold before a substantial sentence can be imposed.
Before Report, can we have some serious investigation into the custody threshold? Either it is a criticism of the magistrates, or there has been a sudden surge in crime. We do not know which, and we should not legislate where we do not know what is going on. I see that, perfectly reasonably, the noble Lord is not saying, “I criticise the magistrates”, but something must be wrong if what has happened has happened. Therefore, we need more information on it, and that is what I am badgering for.
I am happy to see what I can provide. I am not guaranteeing that I can provide the hard evidence that the noble Earl requires. Our estimates are that it has led to a net increase in prison population. I am happy to set out in some detail why we think that is. It is a matter of concern. There are indications that the suspended sentence orders are not being used for the original intended purpose. We will come back to that, and I will provide more information, but I hope at this stage that we can allow the clause to stand part of the Bill.
Before we proceed, perhaps I may pick up on what the noble Lord said about not wishing to criticise the magistrates, which I am sure we are all agreed is very sensible. When he gives further thought to this, will he undertake to take into account the briefing that the Magistrates’ Association has sent us, which I expect he has seen? It says:
“We can see no logical or good reason for this proposal … we feel the present situation is an excellent deterrent with the right to impose immediate custody, but suspend it … We believe that research into SSOs made since April 2005 has not been sufficiently robust yet to show that it is SSOs that have, or will have, a significant impact on prison population”.
These are the people at the sharp end, who deal with 95 per cent or 96 per cent of the criminal cases tried each year in this country.
I can understand deeply why the magistrates are saying that. It is trivialising the whole thing to be talking lightly in this way about the threshold and to be talking about community sentences and suspended prison sentences. It shocks me deeply and I hope that it shocks other people. To be sentenced to prison is a major event in most people’s lives. If that sentence is suspended, it is perhaps a great relief, but its meaning remains “sentenced to prison”. For Parliament to be asked to do away with probably one of the most valuable tools at present available to magistrates seems really foolish to me. The Government are making an enormous mistake, which will affect the public locally. When they see it happening, it will enormously trivialise the difference between the two sentences. I really hope that the Government will think again about this.
I want to make one point, to which I unashamedly admit I forgot to refer in my earlier intervention. The Government’s perfectly laudable motive is to diminish the number of persons who are sent to prison on the breach of a suspended sentence. In order to do that, they limit the area in which suspended sentences can be imposed. I suggest that it may well be worth considering this alternative path.
Many people commit offences while they are the subject of suspended sentences, because there is little or no support for their position. As I understand it, the law, as it stands, is that below a certain level—is it still 12 months or is it six months?—no suspended sentence supervision order can be made. That meant that as far as magistrates were concerned there would be no such orders. To change that rule, and to bring the bar down to three months would, I appreciate, involve substantial human resources, which would have to be paid for in money and in human terms. Yet may it not be better to approach the problem along that path, by allowing the system to remain but seeing to it that there is a possibility that fewer breaches will occur? I leave that with the Minister for his consideration.
All of those comments have been helpful, and I will of course study the remarks with interest. However, perhaps I may say to the noble Lord, Lord Elystan-Morgan, that there are issues of resources, priorities and appropriate use of the skills of probation officers. I understand the noble Lord’s point: that an early intervention might be a better preventive approach and that the result of that would be fewer breaches of these orders and, therefore, fewer people going into prison. I suspect that it would be at a heavy cost, and given all of the pressures I am not sure that the answer would be in the affirmative.
I understand why noble Lords are keen to retain the discretion of the magistracy in this area. I have already paid tribute to the work of magistrates. The fact is that we have hit a substantive problem, which has led to a significant increase in the prison population. In general, I think all noble Lords are as concerned as I about the current level of the prison population. We think that this measure will deal with part of the problem. There is evidence—I guarantee to the Committee and to the noble Earl, Lord Onslow, to find what further information I can to justify this response—suggesting that accepting Clause 10 will lead to a lessening of the pressure.
Based on the statistics, it is certainly our supposition that SSOs may have been used—I hesitate to say “inappropriately”, or I will fall into the trap set for me by the noble Lord, Lord Thomas—in the grey area to which the Lord Chief Justice referred. It may be that magistrates might have been over-zealous in using the order. There is really nothing further that I can say to the Committee at this stage on what has been a very good debate.
I have been listening to this debate with great interest and trying to understand where the Government really expect to go. What do the Government expect to happen if a bench of magistrates, or a stipendiary magistrate—now a district judge magistrates’ court—goes correctly through the hoops of the sentencing guidance and gets to the point of saying, “This is not appropriate for a community service order”? I am no criminal lawyer, but I understand that you have to get to that point before ever considering imprisonment. On the assumption, then, that they have gone through the hoops correctly, what does the Minister expect magistrates to do if Clause 10 becomes law?
Forgive me, but perhaps the Minister may have misunderstood my question. If the bench of magistrates has gone correctly through all of the necessary hoops, and with the sentencing guidelines has come to the conclusion—as it has to—that community service will not do, and Clause 10 is the law, what do the Government expect that those magistrates will do? If I may answer the question, they will have to send him to prison.
I am sorry for being so obtuse in responding to the question at first. That is of course correct, although given the flexibility offered by the community sentencing structure one has to hope that it will have a positive impact and that that will happen in fewer cases. I urge the Committee to support Clause 10 on that basis.
If you arrive at the place where you have to send somebody to prison and cannot not send them to prison on a suspended sentence, then the prison population expands and does not decrease. The noble and learned Baroness, Lady Butler-Sloss, put that logic much more clearly than I did. I am trying only to help the Minister understand that that irrefutably logical process seems to be what will happen. If we all wish to reduce the prison population, Clause 10 cannot do it.
I have already referred to the court bench book and to what level of sentencing is being considered. It is necessary to go back to the guidance of the Sentencing Guidelines Council, which says on page 24:
“The crucial difference is that the suspended sentence is a prison sentence and is appropriate only for an offence that passes the custody threshold and for which imprisonment is the only option”.
The relevant questions from the guidance are:
“(a) has the custody threshold been passed? (b) if so, is it unavoidable that a custodial sentence be imposed?”,
“(c) if so, can that sentence be suspended? (sentencers should be clear that they would have imposed a custodial sentence if the power to suspend had not been available)”.
Now, if the Government want to remove,
“if the power to suspend had not been available”,
the answer is that the sentencer must impose a custodial sentence.
But the point is that we are talking about 30,000 magistrates and their individual decisions. Clearly, there will be circumstances in which some of the offenders will end up in custody even without the suspended sentence order. There is no argument about that. Equally, we contend that removing this option will lead to an overall reduction in the numbers. The community sentencing structure allows for flexibility. I come back to the noble Lord’s point; perhaps I may quote the speech by the noble and learned Lord the Lord Chief Justice back to him, as it clearly said that, within the context of the custody threshold, there is a wide borderline area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way. It is not a simple black or white issue, which is why we need to take this action.
With the greatest respect, there is no wide area. Once the hoops have been gone through, the court has effectively foreclosed the discretion that it would otherwise have on non-imprisonment. There is an illogicality in the situation, although I say in fairness to the Minister that it is not Clause 10 that causes the illogicality. The illogicality has been there for some years; it has been there since there was a provision in one statute that stated that you had to determine whether imprisonment was inevitable in all the circumstances and a power from 1967 to suspend a sentence. The noble and learned Baroness, Lady Butler-Sloss, is absolutely right. The situation has already been foreclosed. There is no discretion once that finding is made. Going back on that decision is utterly illogical. Our concern is to see fewer people sent to prison for breach of suspended sentences and I do not mind how logical the ultimate situation will be if it is successful in achieving that end.
For the Lord Chancellor and the Minister to be correct in their belief that there would be more community sentencing, they must presuppose that more magistrates get it wrong in their approach to sentencing than get it right. The Minister has to suppose that more magistrates are giving people suspended sentences than are following the procedures in the correct way—the procedure of the Sentencing Guidelines Council and the procedure in their court bench book.
I hope that the Minister will agree that my opposition to Clause 10 has commanded considerable support in the Committee. The reason why the Government have got themselves into difficulties on this is that they have an ulterior motive for the clause, which is to reduce the prison population. The correct way to approach this clause is to look at it on its merits. The fact is, as many of your Lordships said, that when magistrates approach sentencing matters, their first port of call will be the Sentencing Guidelines Council. On the question of suspended sentences, as many of your Lordships again said, the guidance is about as crystal clear as it could possibly be: once the custodial threshold is passed, unless there is an option for a suspended sentence, the magistrates must imprison.
It is much more likely that the magistrates will be paying attention to the Sentencing Guidelines Council than to a speech by the noble and learned Lord the Lord Chief Justice. In saying that, I in no way wish to disparage his wisdom. Indeed, there are circumstances in which judges in the Crown Court and magistrates, having decided that an offence reaches or passes a custodial threshold, will nevertheless, in very specific circumstances that they will set out in great detail when they sentence, give a community disposition. In my submission, however, those circumstances are rare, particularly as nowadays the Crown Prosecution Service is quick to inform the Attorney-General if it thinks that a judge is undersentencing. The notion that a whole raft of community sentences will replace the removed suspended sentence is a chimera.
Moreover, although the Government have referred to some evidence since 2005 about the likely behaviour of magistrates in the absence of a suspended sentence option, I know that the Minister will agree that the conclusions of those investigations are at best exceedingly tentative.
At a late stage in the Minister’s observations, he urged the Committee to leave the clause in place for the time being. I am wondering what he meant by that. Did he mean between now and Report?
My hopes were momentarily lifted.
I was responding to the request of the noble Earl, Lord Onslow, for further information. I have certainly committed myself to providing as much information as possible. I had assumed that noble Lords might bring this matter back on Report, but I was certainly not intimating that I was prepared to come back with a different view then. That is all.
Well, I cannot criticise the noble Lord for looking at me while replying to my noble friend Lord Onslow, who is, as ever, at my shoulder, giving me advice of the highest quality.
This is an important issue. The Minister can be in no doubt that I shall come back to the matter on Report.
Clause 10 agreed to.
Clause 11 agreed to.
Clause 12 [Restriction on power to make a community order]:
On Question, Whether Clause 12 shall stand part of the Bill?
My concerns are with Clause 12(5), which inserts new subsection (1A)(b) into Section 151 of the Criminal Justice Act 2003. The clause states:
“Where the current offence is not punishable with imprisonment, subsection (2) applies where … on three or more previous occasions the offender has, on conviction by a court in the United Kingdom of any offence committed by him after attaining the age of 16, had passed on him a sentence consisting only of a fine”.
In other words, if three less serious matters are dealt with by means of a fine, the court can impose a community sentence but, if there have been more serious offences in the past, it cannot. So if we are dealing with an offence that is non-imprisonable, magistrates can impose a community order only if matters are aggravated by three previous fines, rather than more serious sentences.
For example, if an offender has been fined for three previous drunk and disorderly offences, the magistrates can impose a community penalty. However, if an offender has been the subject of a community order for a Section 5 Public Order Act offence, magistrates cannot impose another community order for a repeat similar serious offence. This means, inevitably, that a more serious offence may receive only a less serious disposal. It would also mean that offences that are similar in seriousness might receive different levels of disposal, depending on the sentences previously given. That is not sensible. How does it fit with the fact that previous convictions of all types aggravate seriousness?
This is another example of the Government trying to remove the discretion of a judge. There are a whole range of factors that the court would wish to take into account before determining whether or not to make a community order. In our submission, it must be a matter for the court at its judicial discretion to say how serious a particular offence is and to mark that with a community order if appropriate.
I congratulate the noble Lord, Lord Kingsland, on the point that he makes in this debate on Clause 12 stand part. He knows that the aim of the clause is to ensure that limited probation resources are directed where they can have most effect. This will help the Probation Service to concentrate on offenders who really need intensive supervision, either because they are dangerous or because they are at a very high risk of reoffending. Those who commit offences where the maximum penalty is a fine are unlikely to fall into this category; for them, a fine is usually the most appropriate punishment. That is why the Government believe that community orders should be available only for imprisonable offences. It seems so far in this debate that that view is shared in the Committee, as there has been no amendment to suggest that we are wrong in that thought.
For offences where a fine is the maximum penalty, courts will still be able to impose a fine or discharge, as at present, plus other ancillary disposals, such as compensation, driving disqualification or football banning orders, as appropriate. Committal to prison will still be available for wilful refusal or culpable neglect to pay the fine. The new provision will apply to offenders aged 18 and over only. Examples of offences for which a fine is the maximum statutory penalty are having no vehicle insurance, minor public order offences, careless driving, TV licence evasion, simple drunkenness and firework offences. These are all offences where discharge or a fine is generally the appropriate sentence and where it is not normally necessary to involve the Probation Service by imposing community interventions.
The history of all this is interesting. Before April 2005, some community sentences were available for imprisonable sentences only—for example, the community punishment order, which imposed unpaid work, and the community punishment rehabilitation order, which imposed unpaid work and supervision. Since that date, under the Criminal Justice Act 2003, the community order with its 12 possible requirements has been available for all offences. For the reasons that I have given, we are now restricting its use to imprisonable offences only. I very much hope that we have the support of the Committee on that. This means that for unpaid work, for example, which is the most frequently used requirement for a community order where there is only one requirement, we are doing no more than returning to the position under the earliest legislation.
The clause also updates the provision on the statute book; it is to this provision that the noble Lord, Lord Kingsland, refers in his argument. It allows a court to impose a community order where the offence is not serious enough to warrant such a sentence but where the offender has previously received three or more fines. This represents an exception to the restriction of the community order to imprisonable offences. However, as the noble Lord, Lord Kingsland, will know, this provision has not been commenced, but is amended so that it is consistent with restricting the community order to imprisonable offences. Even without this provision in force, the law allows a court to regard persistence as an aggravating factor when deciding seriousness, so that repeat offenders will receive higher fines than would otherwise have been imposed.
The noble Lord asked what happens if the three previous offences are more severe and demanded more than a simple fine. I will reply to that as best I can. This is not new. Section 151 of the Criminal Justice Act 2003, although not in force, has been law for some time. The Government do not believe that it lacks logic. Where previous offences were severely dealt with by a community order because they deserved one—they reached that tariff—it would seem overburdensome, even unfair, for them to count again towards another community order. We think that if persistent offenders keep committing offences for which a fine is the appropriate penalty, the time comes when the court needs to have the power to say, “A fine is obviously not stopping you doing this, so you now move up a bracket and you go up to being deserving of a community order”. It is that eventuality, which has been on the statute book now for some years but has not yet been implemented, that we are replicating in Clause 12 of this Bill.
I am most grateful to the Minister for his reply. Like the Prison Service, the Probation Service is under tremendous pressure. If I have understood him correctly, the main motive for this provision is to take some of the pressure off the Probation Service by requiring these three hurdles—the three fines—to be leapt before a community order can be imposed. Essentially, a resources factor is driving the Government’s approach to this clause. I am really asking the Government whether that is the right way to fetter the discretion of the magistrates. They have to deal with individual cases and there will be circumstances in which new subsection (1A)(b) under Clause 12(5) will fetter their discretion in a way that they will, inevitably, consider wholly inappropriate.
We take the view that discretion should be retained to decide on whether a community disposition should be made, irrespective of the number of times that fines had been levied previously. Given that view, would the Government be attracted by an alternative approach, whereby guidance is issued rather than there being a legal requirement under the Bill?
What we say here, as I understand it—if I am wrong, I will be corrected—is that a community sentence becomes, as it were, available if someone commits three separate offences and is fined three times. However, just because that person becomes liable for a community sentence does not mean that they necessarily receive one. The Sentencing Guidelines Council guidelines published in December 2004, New Sentences: Criminal Justice Act 2003, which cover the imposition of community orders, say:
“Sentencers must consider all of the disposals available (within or below the threshold passed) at the time of sentence, and reject them before reaching a provisional decision to make a community sentence, so that even where the threshold for a community sentence has been passed a financial penalty or discharge may still be an appropriate penalty”.
If those sentencing guidelines are followed, the magistrates may decide that the offender merits a community sentence but may still decide to fine him or discharge him. In other words, their discretion is not fettered.
Precisely. Why, therefore, do the Government want to go beyond that in Clause 12?
In Clause 12, we are setting out, as I understand it, various guidelines for the court to follow. We are saying in the clause that a community order should not be made unless an offence is punishable with imprisonment. It is not as though that concept is new; it existed in law until, as I understand it, 2003. We say that because we want the Probation Service’s resources to be used for serious offenders in particular and for those who we think may gain from the supervision and training that probation can bring.
I entirely understand what the Government’s motive is; I am simply suggesting to the noble Lord that this matter would be better dealt with by guidance than by statute. I think that we have probably talked this through as much as we need to do at this stage, but I shall certainly consider bringing this matter back on Report.
Clause 12 agreed to.
Clause 13 [Sentences of imprisonment for public protection]:
80A: Clause 13, page 10, line 9, leave out “in any part of the United Kingdom”
The noble Lord said: This long series of government amendments attempts to refine new Schedule 15A, which I am sure we will discuss in due course, which this Bill proposes to insert into the Criminal Justice Act 2003. New Schedule 15A sets out a relatively small list of particularly grave offences that can render an offender liable to a public protection sentence even where his or her immediate offence does not meet the two-year minimum tariff threshold. So, if an offender has a previous conviction for one of these offences—a Schedule 15A offence—and on a future occasion commits a further sexual or violent offence, the courts will have the power to impose a public protection sentence upon him or her even where that tariff for the instant offence is below the two-year threshold.
We are clarifying the schedule in several respects. We wish to put beyond doubt the fact that previous convictions for the inchoate versions of the listed offences will qualify for a public protection sentence even where the trigger offence does not meet the two-year threshold. The amendments in this respect reflect law reform developments by referring to the provisions of Part 2 of the Serious Crime Act 2007, which now govern the position on encouraging or assisting offences. Similarly, new Schedule 15A is amended to include reference to an offender who aided or abetted the commission of an offence that is listed in the schedule.
We think that these are sensible clarifications of the scope of new Schedule 15A and will enhance public protection. I hope that the Committee will agree that an offender may play a substantial role through inchoate offences; that he may be no less dangerous, because, for example, he was interrupted or prevented in the course of the offence; or that he may have been an accessory to the committed previous offence.
It will remain the case that there is judicial discretion in whether a public protection sentence is given. The court will not be obliged to impose a public protection sentence simply because an offender has a previous conviction for an offence listed in new Schedule 15A; but it may do so if in the circumstances it thinks that that is appropriate.
We are also including the offence of murder in new Schedule 15A. If an offender who has been released on licence from prison for murder commits a further violent or sexual offence, he will qualify for a further public protection sentence even if the further offence would be below the two-year threshold. While in practice this may make little difference, given that all murderers will be on life licence, we accept that its inclusion is logical and makes the law more complete.
In this group of government amendments, we also include offences under service law that correspond with the offences listed in Schedule 15A. This provision is not without precedent. A similar form is used in Schedules 3 and 5 of the Sexual Offences Act 2003 to set out the offences that make an offender liable to the imposition of a sexual offences prevention order. It also reflects the drafting approach used in Schedule 34 to this Bill for the purposes of construing the meaning of “child sex offences”. I beg to move.
Why are the words,
“in any part of the United Kingdom”,
being omitted? Does that mean that the provision would apply if the person had been convicted of the offences, or their equivalent, anywhere in the world? What is the purpose of excising those words?
Now that the Minister has given that explanation—which took two Ministers to discover—does he think that that should be made explicit? The word “convicted” can refer to the whole world. Why does he not table an amendment that refers to being convicted under service law, or words to that effect?
I was referring not so much to the place as to the jurisdiction of anywhere in the world. The Minister is telling us that he is referring to the service jurisdiction anywhere in the world, not to any court anywhere in the world.
On Question, amendment agreed to.
moved Amendment No. 81:
81: Clause 13, page 10, leave out lines 11 and 12
The noble Lord said: This amendment concerns IPPs. In moving it, I am aware that I will be opposed not only by the Government but also by the noble and learned Lord, Lord Lloyd of Berwick. It is so rare that I find myself in discordance with the noble and learned Lord, Lord Lloyd, that I thought that I should mark the occasion by an introductory observation.
The conditions for imposing an IPP are: first, that the crime must be one of 153 specified sexual or violent offences; secondly, that the offence must be capable of attracting a sentence of 10 or more years of imprisonment; and, thirdly, the offender must pose a significant risk of causing death or serious injury by the commission of further offences. In such cases, the judge must impose an IPP. The offender must serve a minimum tariff before he can be considered for release but can be held in custody as long as he is considered to pose a threat to public safety.
The latest figures indicate that at least half of all sentences given for threats to kill, child sex offences, arson and sexual assault, resulted in a tariff of less than two years. That means that if the Government press ahead with their plans, those individuals will not be eligible for IPPs, given that their sentence length would be below the “to be introduced” threshold. Does the Minister accept that there is a reason that judges sentence people to IPPs and that it is because they are dangerous? Why are the Government so keen to remove this power from the courts? Is it not the case that these proposed changes are dangerous and have more to do with reducing the prison population than protecting the public?
By definition, the offenders who would now no longer be eligible to receive IPPs would be those who had committed serious sexual or violent offences and who posed a significant risk of causing death or serious injury by reoffending, but where the offence for which they were being sentenced would otherwise have carried a fixed-term sentence of less than four years. I beg to move.
I must advise the Committee that if this amendment is agreed to, I shall be unable to call Amendment No. 82 because of pre-emption.
I had intended to make a rather lengthy speech on this amendment, but in view of the time I shall cut it short. The Government have accepted that the effect of Sections 225 to 229 of the 2003 Act has been other than the expected. Mr David Hanson, the Minister in charge of the Bill, described the relevant provisions as well-meaning, but he then went on to say that they no longer serve a proper purpose. I agree, but I think that it is a serious understatement.
In truth, the effect of the relevant provisions has been catastrophic. They are one of the major causes of overcrowding in our prisons today. Anne Owers, the Chief Inspector of Prisons, dealt with indeterminate sentences at some length in her very recent report. She described what had happened as a debacle. Does the noble Lord agree with that description? I suspect he does because there are now over 3,400 men in prisons serving indeterminate sentences, nearly half of them for relatively minor offences for which the tariff would be less than two years. The number is increasing at the rate of 150 a month.
Many of those at the lower end of the scale have already completed their tariff, but they cannot get before the Parole Board, which would be their next step, for two main reasons. First, the Parole Board is grossly overburdened. The board estimates that if things go on as they are, they will need to make room for a staggering 4,000 hearings in 2009-10. The word “staggering” is not mine but is that of Anne Owers. Secondly, those who wish to go before the Parole Board cannot do so because, as the prisons are so overcrowded, they cannot get on to the training courses that they need to complete before they can apply to the Parole Board. As the Lord Chief Justice said in a recent speech, we cannot go on like this.
Happily, the Government have now at last recognised the mistakes that they made in 2003, hence Clauses 13 to 17 of the Bill, which go a certain way in the right direction, but not, in my view, anything like far enough. That is the purpose of my later amendments.
I must turn to the Conservative Opposition. What is their attitude to all this? Do they support the Government in their belated attempt to do something about the crisis in our prisons or do they not? I regret very much to say that the answer must be that they do not. Of course, they are entitled to say, as they do, that overcrowding is all the Government’s fault and that they should have built more prisons. Of course, they can make, and are right to make, a strong political point about prison building, but the crisis in prisons is now too serious and too urgent for political point-scoring of that kind by either side. In a recent speech, the Lord Chief Justice called for a national debate on the whole question of prisons and sentencing. He added this warning:
“Such a debate will be of no avail, indeed it will probably not be a possibility, unless those taking part are prepared to put to one side the opportunities that this subject always provides for scoring political points and to consider, objectively, what is in the best interests of our society”.
Surely it is now up to the main political parties to put aside their fears of being thought soft on crime and to think instead of the injustice being done to those serving indeterminate sentences for minor crimes without any certainty of being able to put their case before the Parole Board and who are now, therefore, without any hope of early release. Above all, we must not make the situation worse by adding to their number, which is what would be the effect of Amendment No. 81. The purpose of that amendment, we are told, is to leave Section 225 as it is, to remove the proposed threshold of two years. If so, the indeterminate sentence will remain available for those who have committed quite minor crimes. If that is the purpose, it will only make overcrowding worse. The Conservative Opposition are moving in the wrong direction and I oppose the amendment.
I add one last point. The effect of the amendment may be something quite other than what the noble Lord assumes. If you leave out new subsection (3B), as the amendment proposes, the indeterminate sentence could be imposed only where the offender has previously committed a very serious offence such as murder or rape, as set out in Schedule 6, which covers only 22 very serious offences compared with the existing 153 offences under the old Schedule 5. So the effect of the amendment would be to reduce the number of those for whom an indeterminate sentence is available. If that is the effect of the amendment, as I believe it to be, though I may well be wrong, I would support it. But I would still prefer to reduce the number by increasing the notional minimum term from two to four years. In the mean time, I wait to hear whether my reading of the effect of the amendment is as I say.
Like the noble and learned Lord, Lord Lloyd, I shall be brief. In the context of this amendment, I had hoped to pay some attention to the conduct of the sentence itself. When this was first announced in the 2003 Act, a number of us were very concerned about what it would mean for the Prison Service’s ability to do what it should be doing with and for prisoners on behalf of the public. All our worst fears have come to pass: not only are the prisons choked with people, the Prison Service simply does not have the resources, people, programmes or anything else that is needed to do what needs to be done with and for these people.
I had hoped to link the problem of dealing with indeterminate-sentenced prisoners with the number of those who are sentenced for natural life. There is no doubt but that some people’s dangerousness continues in such a way that the indeterminateness of their sentence means they will never be released. I say that because one group that always concerned me as chief inspector were those who had been sentenced to natural life and for whom there was no hope of release, so they had nothing positive to aim for. Not only was there nothing positive for them; the situation also had an enormous effect on prison staff. One aspect of this sentence which has not been given due credence or attention is the impact on prison staff of having to deal with this group of prisoners who become more suicidal, difficult and frustrated. They are a problem that will get worse. It cannot be solved by tinkering with timing. It must be looked at so that it affects only those whose dangerousness is such that the indeterminateness is linked to public protection. Rather than being viewed almost as an academic exercise, it should be seen as an exercise in sensible sentencing.
This has been an interesting introduction to a number of amendments that we shall deal with in relation to indeterminate sentences. The Government very much welcome the opportunity for a serious debate on these matters. My right honourable friend the Lord Chancellor has signalled that he is very much prepared for a serious debate. I also think that the recommendations in the report of my noble friend Lord Carter, particularly on a sentencing framework for the future, on which work led by a senior member of the judiciary has now been done, may offer a constructive way of dealing with these matters in a sober and mature way. They will ensure that we are in kilter with the legislation, the action of sentencers and the question of the prison population. I am sure that that is a constructive way in which to go forward.
We have had a good introduction from the noble Lord, Lord Kingsland, and others on the reason why public protection sentences were introduced. They were to protect the public and it is clear that the courts have taken up the use of those sentences in substantial numbers. There have proved to be issues with the focus and operation of sentences. Perhaps we are following the law of the noble Lord, Lord Elystan-Morgan, but it had not been foreseen that many IP prisoners would have such short tariffs, although the legislation as it stands does not prevent that. The figures I have suggest that around 30 per cent now receive a tariff of two years or less. The average for all IPPs is 38 months and the record so far is 28 days. Aside from the question this raises as to whether the sentences are at an appropriate level of risk management for offenders whose trigger offence justifies only a low tariff, clearly, on a practical level short-tariff prisoners are difficult for correctional services to manage and a disproportionate amount of resources are used in trying to do so. As noble Lords have said, they make great demands on the Prison Service, which must prepare them to appear before the Parole Board, and on the Parole Board in terms of its workload, about which we heard something recently.
At the end of January there were 3,850 offenders in prison serving an IPP. I understand that 17 IP prisoners have so far been released and it is predicted that the potential IPP population could grow to around 12,500 by 2011. We have already taken measures to assist the situation of those currently in prison on indeterminate sentences, but we believe that that is not sufficient to deal with the particular issue that we face. The statute is being reformed to ensure better use of the sentence and to enable us to manage risk more effectively across the piece.
My right honourable friend the Lord Chancellor announced his intention to make changes to this legislation and in particular to impose a seriousness threshold that should be met before an indeterminate sentence can be imposed. My noble friend Lord Carter of Coles recommended this approach in his review. We have already heard the comments of Anne Owers, Her Majesty’s Chief Inspector of Prisons, in support of that intention.
On the substantive point raised by the noble Lord, Lord Kingsland, we think the threshold that we are suggesting is reasonable. It will target the most dangerous offenders without violating risk management. There is an association between the seriousness of an offence and the risk of future conviction and causing future harm, although that is obviously not the only factor in risk assessment. There is also the principle issue about the degree to which one can lock a person up on the basis of future risk. That, of course, goes to the core of the legislation. The question is whether the balance is right, and in the light of experience we think that we have not got it right. It had not been envisaged that the sentences would be used so widely for less serious offenders.
In answer to the noble Lord, Lord Kingsland, as a safeguard, we have included in the threshold legislation exceptions for those offenders who have shown themselves to be very dangerous by committing a particularly serious offence. When an offender has committed one of the offences set out in new Schedule 15A to the 2003 Act, the threshold need not apply to him if he commits future sexual and violent offences. The court will not be obliged to give him a public protection sentence, but will be able to if it sees fit in all the circumstances.
I come to an associated question of how we are improving interventions for those people covered by the current IPP regime. I say to the noble Lord, Lord Ramsbotham, that I well understand the pressures on prison staff. That point is very well taken. We have allocated £3 million to provide for additional assessments and interventions this financial year. We need to provide the right courses, programmes and training, and ultimate responsibility in that context still rests with the Parole Board and satisfying it that the level of risk is reduced. That still rests with the offender, but clearly there is more that we need to do to ensure that the appropriate programmes are in place.
I also take the point raised by the noble Lord in relation to those prisoners who are likely to remain in prison for a very long time. We have debated on a number of occasions the many challenges facing the Prison Service at the moment, particularly in view of the population pressures. But I would say to the noble Lord that in the past few years we have also seen appreciable improvements in many of our prisons in the development of appropriate programmes and in dealing with some of the other issues that impact on these prisoners. The noble Lord mentioned mental health problems, in particular, which I endorse. The working group review established under the chairmanship of my noble friend Lord Bradley is considering some of those matters.
Clearly a question of judgment is involved. We think the principle of these sentences is right, but we did not get the balance right. We have seen the impact in terms of the number of very short sentences that have become embraced within the system. We will discuss later whether the two-year threshold is appropriate, but overall we think that we have the balance right. This will be a better foundation for this sentence structure in the future.
Does the Minister accept the interpretation of the noble and learned Lord, Lord Lloyd, of the amendment? That is that the sentence could not be imposed unless one of those serious offences has resulted in a conviction. We will no doubt hear from the noble Lord, Lord Kingsland. We on these Benches are in some quandary as to whether we should support the amendment or not.
My view is that the amendment says what I said that it said when I opened this debate. However, I am happy to talk to the noble and learned Lord, Lord Lloyd of Berwick, between now and Report. If his view proves correct, as it frequently does, I shall recast the amendment accordingly in time for Report.
The real problem with IPPs and prison place availability is that if you are in prison for an IPP and have served your minimum term, you cannot get out without being rehabilitated. Rehabilitation requires considerable educational input by experts on the prison premises, and equally requires the prisoner, as a result of going through this process, to have manifestly changed his outlook on life. It is currently quite impossible to initiate, let alone complete, these processes because of the overcrowding. IPPs are not merely not working at the level which the Government now seek to exclude, they are not working full stop. This is why there is so much discontent in our prisons among those who have been sentenced to an IPP: they are simply not being given an opportunity to get out of jail. Until that issue is resolved—and it cannot be resolved in the present state of overcrowding—we will not see much constructive progress in this area, whatever the outcome of this clause in the Bill.
My difficulty with the clause is that the length of the sentence and the assessment of dangerousness are wholly unconnected. The fact that somebody has been given a sentence with a minimum tariff of two years—which means that the IPP will no longer be applied to him if the Bill gets through—is completely irrelevant to the judge’s view of his likelihood of committing a dangerous offence in the future. That is why the Government are being illogical. The question of the risk and the question of the level of sentence for the actual offence committed are completely separate issues dealt with in a completely separate way by the judge.
Of course, I agree with all Members of the Committee who say that IPPs are not only contributing seriously to prison overcrowding but also affecting the psychological state of many prisoners. That is true. However, with great respect to the Minister, the way that he is going about solving this problem is wholly illogical. We owe a duty to the public to protect them from dangerous people. If judges make an assessment that these people are dangerous, even though they have given a sentence which has a minimum tariff of two years, we must still accept the judgment of the court. That is why I find the Government’s approach so difficult to accept.
Does the noble Lord not accept that if one increases the threshold to five years, the number of those for whom an IPP will be available will be reduced? Necessarily, therefore, the number coming to prison on these sentences will itself be reduced. That must be desirable.
I accept that absolutely and see the attractions of what the noble and learned Lord says. The difficulty is that there is no logical link between the length of sentence for the actual offence committed and the assessment by the judge of the likely future commission of further dangerous offences. It is the discordance between those two things which I—
Does the noble Lord not agree that, if the interpretation of the noble and learned Lord, Lord Lloyd, of the effect of the noble Lord’s amendment is correct, the sentencing judge would at least know that the defendant before him had committed murder, manslaughter, wounding, rape, use of a firearm, robbery or various sexual offences with children? That would sufficiently indicate that he was a dangerous person if he then went on to commit a further offence.
If the interpretation of the noble and learned Lord, Lord Lloyd, of the amendment is correct, then everything I have said in support of it would be beside the point. The amendment was widely canvassed in another place. As far as I know, nobody interpreted the amendment as the noble and learned Lord has done—but, of course, another place did not have the advantage of the noble and learned Lord’s presence and jurisprudential wisdom which, as all noble Lords know, is vast.
I think the Minister has got the point I am trying to make. I am not going to pursue this matter any further but, of course, we will return to it on Report.
Can an outsider join this conversation between four learned Members of the Committee? Ought one not at least to have in mind a human rights aspect? It seems that indeterminate sentences are now being handed out to people for whom the tariff would be two years. They then find themselves in a trap. To get out of the indeterminate sentence there is a doorway painted on a wall: “Come this way. You will do your course, which will make you a better citizen and help you understand how to lead your life in the future and apply to get out of the indeterminate sentence”. In fact, that is a hollow farce because you cannot enter through that door. You are in the system. You should not be an indeterminate sentence man or woman anyway, and you have no hope of getting out. The right to liberty is guaranteed by Article 2 of the European Convention on Human Rights. No doubt there is an exception in the case of imprisonment, but this is the most bizarre type of imprisonment and, as one listens to the debate as a newcomer, it has some absolutely extraordinary dimensions. It is very unjust.
That is a characteristically perspicacious intervention by the noble Lord, Lord Neill of Bladen. There seem actually to be two human rights issues here. First, the point about locking somebody up on the basis of future risk itself raises a human rights question. Secondly, the basis on which an IPP order is made by a court is that the individual has a right to be rehabilitated, or a least has the right to an opportunity to be rehabilitated. If that right is in practice a fiction, is that a denial of someone’s human rights under the convention? It must be an arguable case, must it not?
None the less, Parliament has legislated for this provision and widely debated it. It must have satisfied itself at the time, whatever the debate, that this was an appropriate way forward. The issue that we face today is that an unexpected number of prisoners with very short tariffs have become caught by this provision. That is what we seek to deal with through the changes and setting a new bar. We hope that we have the balance right between risk, public protection and being fair to the individuals concerned.
What is the state of the litigation? I understood that in the High Court—in one case, at any rate—the judges had decided that it was illegal and a breach of human rights to hold someone after the tariff had expired. That was reversed in the Court of Appeal, although it said that the failure to provide courses was illegal and in breach of human rights. Has the case gone to the House of Lords?
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
West Papua: Human Rights
asked Her Majesty’s Government how they intend to respond to human rights abuses in West Papua.
The noble and right reverend Lord said: My Lords, I am grateful for the opportunity to raise an issue that is of such life and death significance to the suffering people of West Papua.
When I go round to our local shops, I almost invariably carry over my shoulder a handmade bag. On this bag is a star against a red background with some blue and white stripes. If I shopped in West Papua with that bag, I would immediately be labelled a separatist and treated with brutality, as a woman was recently who was found making such a bag. Similarly, on 1 December last year, seven West Papuans were arrested for raising this morning star flag in the Catholic Church compound at Kwamki Baru village. Again, when the editor of a West Papuan newspaper was asked what would happen to him if he called for independence, he said quite simply, “Go to jail. Go to jail”. Perhaps this total lack of freedom—the freedom of the press and the freedom to form political parties—does indeed fall into the category of what the Minister said on 13 November last year were abuses,
“of a relatively small kind”,—[Official Report, 13/11/07; col. 346.]
even though we regard such freedoms as fundamental to the life of this country.
I wonder about torture. Two hundred and forty two cases of torture have been recorded in the past nine years in West Papua. All are well documented and set out in the recent report of Franciscans International. As that report put it:
“Torture is regarded by Indonesian security services as one of the most effective methods to obtain forced confessions and instil a climate of fear and is conducted repeatedly and systematically. Torture in Papua is also used strategically as a means to control the whole community”.
If this is still regarded as abuse “of a relatively small kind”, will the Minister say how many more cases of torture have to be recorded before it is admitted that there are abuses of a very grave kind indeed—abuses that the Government need to address with great seriousness and urgency?
This systematic brutality is of course all in support of the 1969 “act of no choice”. On 14 January this year, the Minister in the other place wrote to a Member describing the act in these words:
“A group of 1,000 Papuan representatives, who were given the responsibility to make the choice on behalf of the Papuan people, voted to remain part of Indonesia”.
The bland disingenuousness of that statement is almost unbelievable. Let us remind ourselves of the facts. Suharto sent this clear order to his military forces in West Papua: “See that the” act “on West Irian’s”—that is Papua’s—
“future status will yield a clear pronouncement in favour of Indonesia”.
The forces were duly obedient. As Brigadier-General Ali Murtopo put it to those selected to take part in the so-called “act of free choice” on August 1969:
“This is what will happen to anyone who votes against Indonesia. Their accursed tongues will be torn out. Their full mouths will be wrenched open. Upon them will fall the vengeance of the Indonesia people. I myself will shoot them on the spot”.
So it was that the then Minister in this House, the noble Baroness, Lady Symons, referring to this on 13 December 2004, said that,
“1,000 handpicked representatives … were largely coerced into declaring for inclusion in Indonesia”.—[Official Report, 13/12/04; col. 1084.]
Later, the noble Baroness, Lady Royall, described the 1969 process as “extremely flawed”. Will the Minister therefore say, in the light of the recent letter from the Minister in the other place, whether the Government are now back-tracking from the truth which they previously admitted? The acknowledgement of the truth of the 1969 travesty by the British Government has been one of the few crumbs of comfort offered to the suffering West Papuan people in recent years. Is even that crumb of truth now to be snatched away?
If all this is not serious enough, I have yet to come to the most devastating fact of all. In 1971, there were 887,000 Papuan people and 36,000 Asian Indonesians in West Papua, so even after eight years of Indonesian control, Papuans comprised 96 per cent of the population. On the basis of the latest figures, it is estimated that in 2005 Papuans comprised 59 per cent of the population and others 41 per cent. On present trends, by 2030 Papuans will comprise only 15.6 per cent and non-Papuans 84.8 per cent. These figures speak for themselves. Papuans are becoming a minority in their own country. Juan Mendes, UN Special Adviser on the Prevention of Genocide, described West Papua as being among those countries whose populations were “at risk of extinction”.
The most decisive statement to date on the subject of genocide in West Papua has come from the Allard K Lowenstein International Human Rights Clinic at Yale Law School, which published a paper in 2005 entitled Indonesian Human Rights Abuses in West Papua: Application of the Law of Genocide to the History of Indonesian Control. It said:
“Although no single act or set of acts can be said to have constituted genocide, per se, and although the required intent cannot be as readily inferred as it was in the cases of the Holocaust or the Rwandan genocide, there can be little doubt that the Indonesian government has engaged in a systematic pattern of acts that has resulted in harm to—and indeed the destruction of—a substantial part of the indigenous population of West Papua. The inevitability of this result was readily obvious, and the government has taken no active measures to contravene it. According to current understanding of the Genocide Convention, including its interpretation in the jurisprudence of the ad hoc international criminal tribunals, such a pattern of actions and inactions—of acts and omissions—supports the conclusion that the Indonesian government has acted with the necessary intent to find that it has perpetrated genocide against the people of West Papua”.
West Papua is a small country a long way away. Indonesia is a big player with which we have major trade deals. West Papua is rich in natural resources, and major international companies such as BP, Rio Tinto and BAE Systems, among others, are active in utilising them.
There are those who think that if only they stall long enough the problem will go away, solved by demography if nothing else. But I should like to assure the Government and reassure the West Papuan people that this issue will not be dropped and already momentum is gathering round the world. Recently two US congressmen, Donald Payne and Eni Faleomavaega, have taken up the issue with the UN Secretary-General. They were particularly concerned with the way that human rights defenders were harassed after the visit of Mrs Jilani, the UN special envoy, last year.
Mrs Jilani concluded that a climate of fear prevails in West Papua, which has been borne out by the way in which those who sought to contact her have been singled out for special intimidation. The human rights abuses in West Papua are very grave and I ask the Government to pursue that issue with very great seriousness, conviction and urgency. In particular, human rights defenders need special protection, so I would ask the Minister to work for an international presence in West Papua to ensure that those who are raising human rights issues can do so without the present fear of intimidation, torture and death.
My Lords, the House is indebted, not for the first time, to the noble and right reverend Lord, Lord Harries of Pentregarth, for calling attention to this tragic situation. This is not the first occasion on which we have discussed the appalling events in West Papua. Sadly, our debates have failed to lead to any improvement for the people of West Papua, or, apparently, to impress on our Government the magnitude of the suffering. The last occasion on which we spared a thought for this situation was on 13 November 2007, when the noble and right reverend Lord asked a Starred Question. My noble friend Lord Malloch-Brown replied with an undisguised candour that the Government do not propose to raise the matter in the Security Council and do not support Papuan independence.
We have not been privy to the Government’s reasoning which led to that conclusion, but if there are two propositions which defy reputation they are, first, that if they were permitted to express a view, the overwhelming majority of the population would choose independence. As the noble and right reverend Lord has said, the so-called act of free choice was a blatantly transparent charade. We know that the American ambassador reported at that time that 85 to 90 per cent of the population were in sympathy with the Free Papua Movement. Secondly, West Papua passes all the tests in international law for a right to the free choice of its own destiny. I shall not weary your Lordships by repeating what I said on that issue on 8 January 2007.
However, the subject of today’s debate is not about the right of self-determination, but about the consequences of leaving West Papuans to the mercy of a brutal, alien regime. During our exchanges on 13 November, my noble friend stated as the Government’s view that, while they are concerned by continuing human rights abuses in Papua, they believe that they are,
“of a relatively small kind”.—[Official Report, 13/11/07; col. 346.]
That is hardly the impression which emerges from what we have just heard from the noble and right reverend Lord.
It is hardly the impression that emerges from the 2007 annual report of Amnesty International, which records that the torture and ill treatment of detainees is widespread, and we recall of course that many detainees are imprisoned for peaceful protests. The report continues that prison conditions fall short of international standards. It speaks of extra-judicial executions and records that, in 2007, there were at least six occasions when security forces opened fire on civilians. It tells us that the perpetrators appear to enjoy immunity.
Nor did my noble friend’s characterisation of the human rights infringements accord with the recent Human Rights Watch country summary on Indonesia, which said that, in West Papua, peaceful political activists continue to be classified as “separatists”, which is a criminal offence. The report speaks of village “sweeping operations” carried out with great brutality by the army, the police and paramilitary units. It mentioned too that the regional military commander appointed in 2007, Colonel Siagian, was indicted by the United Nations for crimes against humanity in East Timor.
The Government’s view wa