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Criminal Justice and Immigration Bill

Volume 699: debated on Monday 10 March 2008

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 LORD SPEAKER in the Chair.]

Clause 153 [Interim violent offender orders]:

[Amendment No. 156 not moved.]

[Amendments Nos. 157 to 159 had been withdrawn from the Marshalled List.]

Clause 153 agreed to.

Clauses 154 to 169 agreed to.

Schedule 30 [Closure orders: premises associated with persistent disorder or nuisance]:

[Amendment No. 160 not moved.]

161: Schedule 30, page 285, line 23, at end insert—

“(d) the making of the order is not a disproportionate response to the disorder or nuisance caused;(e) the making of the order will not cause unnecessary hardship or suffering to the families of those against who the order is made;(f) appropriate steps have previously been taken to address the disorder or nuisance without success.”

The noble Lord said: At least I am here. We are aware of the considerable disruptions to the transport system caused by the weather and, knowing the noble Lord, Lord Judd, as I do, I have no doubt that those are the reasons why he is not here to move his important amendments. Originally, my task was to follow what he had to say on Amendment No. 160. However, I shall deal with Amendments Nos. 161 and 162.

Part 10 of the Bill is the latest in a long line of initiatives designed to deliver the Government’s respect agenda. Schedule 30 deals with a proposal to extend existing powers to close down properties used for the sale of drugs and to cover properties where there is a problem with anti-social behaviour. There is a considerable distinction between closure for antisocial behaviour and closure because of drug-related property difficulties. Drug-related closures are much more likely to concern properties that are used primarily for the sale of drugs and where there are no settled residents. On the other hand, anti-social behaviour closures are much more likely to affect properties that are used as the main family residence.

According to the Government’s original consultation on this matter, the closure notices were designed to prevent activities that in themselves are not unlawful. I made that point strongly last week on the problem with anti-social behaviour orders: they create an individual’s personal criminal code in that the individual may be committing a criminal offence for doing something that for the rest of the population is not criminal. In this connection, one can imagine that an anti-social behaviour order could be made in relation to a property on the basis that people frequently enter and leave the property. There are late-night visitors, which is a nuisance to people in the street. That is solved by an anti-social behaviour order, which, if it does not work against the individual, will be translated by these proposals into the closure of what may well be somebody’s home.

A closure notice may be authorised by a police superintendent. All that he needs are grounds for believing that there is a problem with anti-social behaviour. Once such a notice is issued, a person who does not own or live in the premises is committing an offence if he remains contrary to the notice pending an application for a full closure order. The police superintendent acts on belief, but that can have a serious effect on the individual. Within 48 hours of the notice being issued, a court must hear an application for the closure order and, if granted, the property is closed down for three months, which can be extended to six months in exceptional circumstances. Return to the premises subject to the order within its operation period will be a criminal offence.

Drug-related closure orders—the existing closure orders—appear to be having unfortunate consequences. The problem arising under the existing legislation is called “cuckooing”—displacing drug dealers from the premises from which they have been operating into other properties. The Guardian in November 2006 said of these drug-related closures that drug dealers,

“are now targeting older people, vulnerable young people or people with mental health problems on housing estates, befriending them, giving them drugs and then taking over their homes”.

The existing drug-related orders do not end the problem; they may simply displace it.

When the Government consulted on these new anti-social behaviour closure orders, they said that the orders would be considered only as a last resort and would require multi-agency involvement. They also said that the safety of the young and the vulnerable would not be compromised, with the implication that the court would not have the power to make an order unless it was satisfied that proper arrangements were in place to protect their interests. That was in the consultation but it is not in the Bill; there is no safeguard. If an entire family is displaced from its home, proper support arrangements have to be in place. We have therefore tabled amendments to put into the Bill solutions to the problem that I have outlined.

Amendment No. 161 refers to the necessity that,

“the making of the order is not a disproportionate response to the disorder or nuisance caused”.

In other words, the court should not close down premises if the complaint is from the neighbours that too many people are coming to and fro or that an undesirable business is being carried on there. The second condition is that,

“the making of the order will not cause unnecessary hardship or suffering to the families of those against who the order is made”.

The court will have to be satisfied that arrangements are in hand for the vulnerable to be looked after if their home is taken from them. Finally, the amendment requires that,

“appropriate steps have previously been taken to address the disorder or nuisance without success”.

We do not feel that it is right that the order should be made straightaway. There should at least be an attempt to solve the problem that is the subject matter of the closure order and such attempts should be clearly explained and put before the court when the closure order is applied for. Consequently, we also make express in Amendment No.162 this provision:

“No closure order shall be made unless the magistrates' court is satisfied that appropriate arrangements have been made by the local authority for alternative accommodation and support for those affected by it”.

I hope that Members of the Committee will see that these amendments are not necessarily against the whole idea of closure notices, but we believe that there must be the safeguards that the Government promised in their consultation paper. I beg to move.

In starting my role on the Bill, I declare a couple of interests, which I hope will suffice for the next parts. I am a member of the Magistrates’ Association and a magistrate. I am also a non-executive director of the only academic health science NHS trust. I hope that I need not do any of that again.

I have some sympathy with the amendments. The additional problems that can be generated through these closure orders are likely to fall back on to a local authority: if people are made homeless as a result of the closure order, the local authority will almost certainly have to find accommodation for those involved and provide support for anybody who has been removed from what is ostensibly their home.

The drug-related offences have caused an enormous amount of difficulty. The closure orders and the ability to close accommodation where drug offences have been taking place have, I know, been enormously helpful. These are serious problems, but I am just a bit concerned about what level of offence is being caused before any consideration would be given to a closure order. Are we talking about persistent noise? Are we talking about rampaging youths? Are we talking about harassment of the neighbours? What level will have to be dealt with before the police are able to take action? How long will the problem have to go on for before an offence is caused?

Neighbour relationships are one of the most difficult things for people, particularly on some of our major estates, and I see these orders as necessary in this area. However, it would be helpful if the Minister could tell us where he sees them being appropriate and what effect he thinks they will have on local government in dealing with the problems caused. The amendments of the noble Lord, Lord Thomas of Gresford, will be necessary to shore that up. In the first instance, however, it would be helpful to have a response.

I have considerable sympathy with these amendments, in line with the growing concern about the disproportionate imposition of anti-social behaviour orders. For example, in the paper last week, there was talk about an anti-social behaviour order that, if carried out, would have prevented a youngster from travelling anywhere on public transport for the foreseeable future. That cannot make sense.

There is a much underused aspect of this: the community impact order, which involves such things as prevalent offences. Quite often the development of anti-social behaviour in neighbourhoods that leads to this sort of closure might benefit from a wider perspective rather than the draconian imposition of the closure of an accommodation with all the consequences that the noble Lord mentioned, particularly on young and elderly people. Although one can sympathise with the reasoning behind that imposition, I hope that the way in which the anti-social behaviour order is carried out—proceeding, therefore, with the Government’s line—will be looked at more closely before being confirmed in the Bill.

I thank noble Lords for their inputs. It is clear that all of us in the Committee understand the impact of this sort of behaviour in areas of our community. I must make it clear that we are not talking about occasional loud noise or annoyance; we are talking about excessive and persistent—that word was used by the noble Baroness, Lady Hanham—anti-social behaviour amounting to significant and persistent disorder or persistent serious nuisance, which can have a devastating impact on neighbours and the wider community as well as on the perpetrator’s family and cohabiters.

A multi-agency approach would have to have been taken first to tackle the nuisance behaviour, using the full range of support and enforcement measures available. I hope that that answers the points made by the noble Lord, Lord Ramsbotham, to the extent that we would expect to see the use of, for example, acceptable behaviour contracts, parenting contracts, injunctions, ASBOs or community impact orders alongside offers of support before any closure is pursued. The premises closure provides the opportunity to encourage and cajole people who might not have been willing to accept assistance actually to do something and to take some help. We hope that we can improve them and put them in a position where they can return to their house after three months, having engaged with the various social services and the people with whom they need to engage to cure the things that are making them behave in that way.

The noble Lord, Lord Thomas of Gresford, mentioned the impact of crack house closures. I disagree with him; those closures have proved very popular. Since their introduction, 722 premises have been closed. Cuckooing has been reported and we believe that premises closure orders will offer a mechanism to help vulnerable people who have become victims of it. The order will mean that the safe haven can be taken out of action. People have gone from crack houses to cause the trouble in those places that the noble Lord rightly mentioned. Vulnerable people can be offered the help and support that they need. That is how we hope to move forward on this.

I can assure the Committee that the young and vulnerable will be a strong part of our considerations. Robust guidance will be given to practitioners and will have to be strictly adhered to. To place those requirements in the Bill risks making the process for making orders so complex that we would not get the benefit of them. I go back to my reference to mission command in the military, where you make what is required clear by guidance and leave some flexibility. Before issuing a closure notice, the police and local authorities are bound to act in compliance with the European Convention on Human Rights and will consider the needs of any vulnerable people and children, who will therefore be looked after.

Premises closures, like existing crack house closures, will be used alongside support measures. They will provide an opportunity for local agencies to co-ordinate and offer support that those subject to the closure previously rejected. That is what we found in the past. It is in their interest as well as in the community’s interest. This approach of challenging and supporting is practised by the 53 family intervention projects launched by the Respect Task Force in April 2007. I therefore ask the noble Lord to withdraw his amendment.

I find that a rather disappointing reply. I cannot see why Amendment No. 161 would make the procedure for the making of an order more complex. Paragraph (d), to be inserted by the amendment, would ensure that,

“the making of the order is not a disproportionate response to the disorder or nuisance caused”.

The Minister said that there will be guidance, but that also has to be looked at by the magistrates’ court. It is surely much easier for that to be in the Bill. I respectfully submit that the same point can be made about paragraph (e), which would provide that,

“the making of the order will not cause unnecessary hardship or suffering to the families of those against who the order is made”.

Those are people who will suffer an extraordinarily drastic interference with their amenities of life. Similarly, paragraph (f) would provide that,

“appropriate steps have previously been taken to address the disorder or nuisance without success”.

The point does not improve with repetition. I ask the Minister to reconsider his dismissal of those proposals, which I believe would make life that much easier for the court—it is, as we may remind ourselves, a magistrates’ court—and a good deal less hazardous for people who may be caught up in the imposition of the orders.

I want to ask one question. The supposition is that the premises will be closed. The Minister said that, after three months, the occupants will be able to come back. It would be very unusual in local government for an apartment or flat to be kept for three months. That is a long time to have a flat sterilised, as it were. Equally, if the premises have been closed, not because of the fault of the people who are the tenants or the occupiers but because of people who are coming in and causing a nuisance, that will presumably be taken into account. Will there be in guidance some indication as to whether the tenancy will be restored or maintained during those three months or whether it will be expected that the local authority will remove that tenancy and have to get the family to start all over again? I cannot resist reminding the Committee that it was my borough, the Royal Borough of Kensington and Chelsea, which finally got the crack houses legislation brought forward, having had to deal with them very seriously on some of our estates. I just mention that in passing.

First, I congratulate the noble Baroness on getting that legislation passed, because I understand from everything that I have been told that it has been extremely valuable, even with the proviso that this order will resolve the problems that have been found there. The issue of a council apartment, flat or house being empty for three months is a very good point; I do not know the answer off the top of my head. I assume that it will be kept available for those people. Perhaps I may go away to think about that so that we can return to it in later debate. I am not sure what the position is.

I know that at the moment we have the ability with council housing finally to move people on. It takes a huge length of time, by which time the impact on the local community and the fact that we have not been able to get social services fully involved with the family causing the difficulty constitute a real problem. We have not historically been able to do that with private housing. Sometimes, private housing has been used for things like cuckooing, as has been mentioned. The issue of the housing being kept open is a valid point. I have to say that I have not asked that question, but that may come up in debate later and I will be able to address it then.

The noble and learned Lord asked whether we could include the amendments because he felt that just giving guidance to magistrates was inadequate. I still feel that trying to articulate too many of the details in the Bill will make the statutory test very difficult. We will be caught up in court and unable to take the necessary action as readily as we should. As I said, by that stage, we will have used such things as acceptable behaviour contracts, parenting contracts, injunctions, ASBOs and community impact orders. All of those things will already have been tried before we move down that road. The vulnerable people—the vulnerable children about whom the noble Lord was rightly talking—are at risk because of the things going on in some of those houses, yet the people involved are unwilling to let those people who could help them get involved. This provision will make that happen. Clearly, all our statutory obligations to look after children will be enforced and we will have to look after them. I hope that that answers those points.

Will the Minister say what the position is for vulnerable adults? If an old grandmother or great-grandmother is living in the same household as a thoroughly disruptive family, who quite rightly should be subject to a closure order, what is the council’s duty towards such a person, who will be made homeless?

The noble and learned Baroness makes a very valid point. The council has a responsibility to find other accommodation for those who are made homeless, which would apply here. In addition, all the various social services and people involved would be locked into being of assistance and to helping to ensure that such people are looked after. If the house is private, there may be mortgage payments and other such things, which will be allowed to be kept running so that people will not lose their property.

If the family is quite rightly stigmatised as the result of a closure order, will the vulnerable adult also be stigmatised as being, for instance, intentionally homeless, or will that elderly person be treated as someone who has been made unintentionally homeless and therefore as a priority for accommodation? A rather rigid approach, or the approach that the family has caused this, might take the blameless along with the blameworthy.

The noble and learned Baroness makes another very valid point. This would have to be taken case by case. Would they be stigmatised? There is certainly nothing in the order, and nothing that the various social services would do, that would try to stigmatise someone in that position. It is difficult to judge what the understanding of anyone in the community would be. I am afraid that that is a very difficult thing to ascertain. Certainly nothing would be done to try to stigmatise someone who was not involved in that grouping, and the social services would look after their interests.

I am most grateful to all your Lordships who have taken part in this debate. The Minister did not answer the question posed by the noble Baroness, Lady Hanham, as to what he envisaged to be significant and persistent disorder or persistent serious nuisance. In other words, how high is the bar? That is extremely important, because if the bar is set too low so that these orders are regularly made, would there be 720 crack house orders, for example? How many orders are there likely to be for anti-social behaviour? Excessive use could be counterproductive, because local authorities will have to deal with ever increasing numbers of displaced people who must be accommodated in some sort of temporary accommodation. Indeed, the temporary and uncertain existence that they are then to enjoy is more likely to exacerbate anti-social behaviour than the opposite. Will the Minister consider how high the bar is being placed?

The Minister also referred to private ownership, which gives rise to another matter which I should have addressed when I first addressed your Lordships. It is almost unknown for owner-occupiers to be evicted from their own property. The tradition is that a person’s home is his castle, particularly if he owns it. I warn the Government that there is a danger that the protection for a person’s home and property being violated in this way will give rise to issues under the right to peaceful enjoyment of possessions under Article 1 of the first protocol to the Human Rights Act. This is an important area.

I am grateful to the noble and learned Lord, Lord Mayhew, for asking what is so difficult about putting the proposed amendments into subsection (4) in new section 11B in Schedule 30. As he rightly says, guidance is not enough. The magistrates’ court, which will look at these provisions on an application being made to them, will look at paragraphs (a), (b) and (c), so why could it not look at paragraphs (d), (e) and (f), which we propose, instead of having to pick up the guidance papers and start reading a completely different document? It cannot make it more complex just to ask the magistrates before they make the order to make sure that it is not disproportionate and will not cause unnecessary hardship; to make sure that attempts have been made previously to address this nuisance; and to require those who are applying for the order to satisfy the magistrates’ court that appropriate arrangements have been made for the elderly, the vulnerable and the children who may be affected by the order. There is nothing complex about that. These are just areas which put a duty on the person applying for the order to make sure that all these arrangements are in place for him to tell the court and to make it a duty for the magistrates to consider those areas as well as the other areas referred to. I give the Minister the opportunity to tell us where the bar is set before I decide what to do with the amendment.

On the meaning of the significant or persistent disorder, as with crack house closures, it will be for the police, the local authority and, ultimately, the court—the court will be involved in this—to decide whether the activity that has been going on constitutes the level of anti-social behaviour that should allow this to happen. The courts, as well as the police and the local authority, are fully involved. This will be at the end of a long programme of trying lots of other measures to ensure that these people behave correctly and cease being real problems in their area. That is all I can say on that issue.

I am sorry to keep on, but I am grateful to the noble Lord, Lord Thomas, for picking up on this. What are we talking about? Are we talking about very loud music being played very late at night for a very long time, with people jumping on the floorboards and going on and on, and nothing else resolving the problem? Are we talking about young people persistently congregating outside flats and harassing people as they go in, and not giving up, but doing it over and over again? Are we talking about people pushing petrol through letterboxes? What are we talking about?

From my experience of local government, I know that very many attritive things happen where this might have an effect. It would be most helpful to have at least an outline of what we are talking about. The courts would need to know whether harassment or whatever was at a sufficient level that they could deal with it.

Bearing in mind that a whole raft of measures will have been gone through on this, perhaps I may give a flavour of what we are talking about; for example, noise, rowdy behaviour, frequent drunken parties, high numbers of people— often these cuckooing people—entering and leaving the premises at all times of the day or night, anti-social residents who intimidate and threaten neighbours, the running of businesses from properties with no authority and so on. We are talking about really persistent and difficult people in situations where it is very difficult, once we have gone through the other things, to do anything about them, rather as in the way of crack houses, and where this enables us to do something about those properties.

I shall deal just with the question put by the noble Lord, Lord Thomas of Gresford. What is the difficulty in having this amendment in the Bill? After all, the Bill has not been exactly reticent when it comes to matters of detail.

Our feeling is that guidance would be the best way to achieve this rather than trying to put specific details in the Bill. That will make it more difficult. It is better to have a broader ability to give broad guidance, which will allow flexibility and will allow the courts and the various people involved to—

I did not wish to interrupt the noble Lord half way through his sentence, but perhaps I may explain why we are being persistent about trying to get some clarity. One gets the idea that the noble Lord’s reticence in explaining why we cannot have this in the Bill is because by issuing it as guidance there would be greater flexibility and, therefore, a trenching up of the areas in which it might be used, rather than the more straightforward measures that he has just given us an example of. If the noble Lord wants the flexibility to encompass a wider range of measures than we now believe are under this ambit, then perhaps it would be better explained to us in that manner.

Would the noble Lord say that guidance would be available to us by Report so that at least we could see what was being proposed by that stage? I am sure the noble Lord would then have a decision to make.

I respectfully ask the Minister to take into account that, as a general rule, one really feels that the points made by the noble Lord, Lord Thomas of Gresford, are right and ought to receive consideration. I would not have spoken but the question of guidance arose—whether one document or two. I do not know whether the Minister knows that this is not how things work as a rule. Basically, guidance is introduced by a trigger clause in primary legislation. That then is guidance and the legal efficacy is set out in the trigger clause. You do not have that and the statute too. You do not have the two documents. You have one or the other. The explanation by the Minister of two documents, and going from one to the other, is something that I have never come across in practice.

I wonder if I could expand this point just a little further. We have no control over guidance, particularly if it is not before us on Report. The only thing that we can control is the wording that appears in the statute. Guidance is not regulation so we do not even have that in our quiver to consider for a later stage. Anything could go into guidance. That is my first point.

My second point is that the Minister has to consider how these things work in practice. The person who applies for the order obviously wants to get that order. Therefore, he has to brief himself not only on the terms of the Act, but, if the Minister is right, on the guidance. He will have to be ready to satisfy the guidance notes before the magistrate. That is just the same thing as if it was in the Bill, but at least we would all know where we are. Then the matter goes before the court and the people opposing the making of the order have to look, again, not just at what is in the Bill but at the issues that arise on the guidance. We are always looking at two separate documents: what the Bill says on the point, which is the basis of the order; and the guidance—it has no statutory basis at all, as the noble Lord, Lord Campbell of Alloway, pointed out—which has to be kept to one side and consulted for any order to be made. This is totally confusing.

I cannot see anything in the Minister’s reply about it being complex to put the matters which we have raised in the Bill. I hope that he will consider before Report the criticisms that have been made from all around the Committee—if the noble Lord, Lord Judd, were here I am sure he would be criticising the provision too—so that something can be done by Report which will satisfy the problems we have discussed.

If I have not taken into account all the various inputs—they are valid, and there is scope for confusion—I would be ready to consider the case for statutory guidance in time for Report stage.

We will have a look at that in due course, and no doubt we will consider whether these amendments should be pursued. However, the Minister can be sure that these amendments will be tabled again on Report so that we can debate the statutory guidance he has now promised us. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 162 not moved.]

Schedule 30 agreed to.

Clause 170 [Offence of causing nuisance or disturbance on NHS premises]:

163: Clause 170, page 121, line 38, at end insert “and

(d) any premises in which medical, surgical or paramedical treatment is provided under arrangements made under the National Health Service Act 2006 (c. 41),”

The noble Lord said: We move now from the issues we were discussing a moment ago to the issue, raised in the Bill, of preventing assaults in hospital premises. Our amendment simply seeks to extend the protection given by Clause 170 to,

“any premises in which medical, surgical or paramedical treatment is provided under arrangements made under the National Health Service Act 2006”.

The question we are putting to the Minister is: why stop at hospital premises?

It is helpful to consider a survey carried out last year by the British Medical Association. Six hundred doctors responded to the survey on their experiences of violence in the workplace; doctors, not staff in hospitals. One-third had experienced some form of violence, including threats and verbal abuse. One in 10 had been physically attacked—including being stabbed, kicked, punched, bitten and spat at—of whom one in three had received minor injuries and one in 20 were seriously injured.

Another problem came to light—that violence towards doctors in their own surgeries is under-reported. Doctors do not like to report such violence to the authorities, particularly if it comes from a person accompanying a patient on their premises. The most frequently stated reasons for this violence were dissatisfaction with the service, including frustration with waiting times, and refusal to prescribe medication. Those are the two key issues: people waiting too long and not getting the medication they wanted. That had doubled as a cause of violence since the BMA’s previous survey in 2003.

Other findings from last year’s survey show that half of the doctors said that violence in the workplace is a problem; more than half had witnessed violence against other staff, such as nurses and receptionists; female doctors are more likely to experience violence in the workplace than males; junior doctors are more likely to experience violence, followed by GPs; and only one in 10 doctors has access to a secure facility in which to treat violent patients.

Like the BMA, we believe that it is simply unacceptable to permit any form of aggression towards healthcare workers. We support the basic concept behind Clause 170 but fail to see any rationale for limiting it as it has been. I note that the noble Baroness, Lady Finlay, has also tabled amendments to Clause 170. I wait to hear from her, but I can say to her now that we agree with her amendments. I beg to move.

I welcome the extension of Clause 170. I regret that I was unable to state that at Second Reading, particularly as so many people had criticisms of the Bill; a positive comment might have been welcome. The clause seeks to make it a criminal offence to commit a nuisance or disturbance on hospital grounds, and there can be little doubt, if any, that we must protect healthcare workers from this type of behaviour.

However, I have tabled Amendments Nos. 164 to 166 because, as drafted, the Bill does not offer that type of protection to all those who provide NHS services. The elegant amendment in the name of the noble Lord, Lord Thomas of Gresford, unfortunately does not cover all hospices and community pharmacies. Under the current definition, “NHS premises” is restricted to hospital buildings, hospital grounds and other buildings within the hospital grounds. The current wording seems to have forgotten those workers who carry out their work for the NHS on premises other than hospitals. That group is growing as NHS contracts increasingly involve non-NHS providers in both the private and voluntary sectors—people who work in hospices, pharmacists, optometrists, physiotherapists and community health visitors, to name but a few. Surely those healthcare workers deserve protection from threatening nuisance and aggressive behaviour, let alone from assault, just as much as their colleagues who work in a hospital. They often work alone and are at no less risk of violence than those in hospitals. All those listed in Section 60(2) in Part 3 of the Health Act 1999 should be covered by the Bill.

Amendment No. 166, which is included in this group, seeks to protect NHS workers in the community who provide care in patients’ homes. My amendment would make it an offence to cause physical or mental harm to that group of NHS workers. I have worked in healthcare for 30 years and seen aggression in the hospice setting and violence in the community. I was very lucky, but others have been seriously maimed and some killed. I myself was threatened with a knife when on a home visit some years ago and have been on home visits where the family members of the patient were extremely unpleasant. I know how vulnerable healthcare workers feel when visiting in the community, even though lone-worker policies are in place to track their movements and provide some sort of protection. I remind the House that ambulance workers are often the first to arrive at a patient’s home in an emergency, such as when someone is injured in a drunken affray. And it is not just ambulances; healthcare workers’ own vehicles are often effectively an office on wheels for those who are out in the community full-time. They deserve the same protection as anyone in a vehicle on NHS premises, who are covered in the Bill.

Official NHS statistics show that, in 2006-07, 55,709 physical assaults against NHS staff were reported—and the phrase “officially reported” is important because we have no way of knowing how many incidents go completely unreported. That is more than 150 a day, over 1,000 a week.

Improvements are being made. The number of physical assaults against NHS staff seems to be falling. The Government have made that a priority and a benefit is beginning to come through, but the numbers are still far too high and the type of assault far too damaging. Some might say that the offences are already in general legislation, but this is a classic situation where legislation can be tightened, which then gives out a message to society. We must have zero tolerance of the assault of healthcare workers, just as we have in place a specific offence of assaulting a police officer in the course of his or her duty.

I am rather innocent in this issue, but I do not see where the amendments fit in. In what way is it envisaged that they will improve the present law?

They are important in sending a very strong message to healthcare workers, to those who are responsible as their managers and to the population as a whole that there will be a specific offence and that any assault on a healthcare worker who is going about their duty, wherever they are located, will not be tolerated.

Every medical professional knows that confused, aggressive and even violent patients might be extremely ill; I am not advocating criminalising sick people. However, it is not acceptable for the family or friends of patients to feel that they can create an uncontrolled—often alcohol-fuelled—disturbance and not be admonished. The most robust protection possible must be available to deal with individuals who deliberately seek to cause disturbance and prevent others doing their job to help patients.

I very much support all of these amendments. As a judge I have tried a number of cases involving vulnerable adults and children who were being cared for outside NHS premises, and in several of these cases the family and friends had behaved appallingly. I remember one case in which a man who had had a dreadful accident was being treated on private premises. He was in a coma and his wife was attending every day. His family decided that this would not do. Their behaviour towards this private clinic—paid for by the NHS, but not an NHS building—was such that the clinic came in desperation to the High Court for an injunction providing that the family could visit for only two hours every other day. This was not an unusual circumstance. I welcome the Government’s proposal in Clause 170 but, having appreciated the importance of this protection, they should carry it one or several stages further.

I, too, congratulate the Government on this clause; this is clearly an important issue. But I also support the amendments, particularly those of my noble friend Lady Finlay. We are increasingly encouraging the use of non-hospital premises for the treatment of different groups of patients, not least the elderly. Palliative care, which we are also increasingly encouraging, will require many visits by medical staff and others to a patient’s home. I support the amendments for those reasons alone. It is natural that all these areas should be included in the Bill and I hope the Minister will take note and add them.

I welcome this clause on disturbances on hospital premises. I know full well that A&E departments can be a nightmare at night, as they can be at any other time as well; that there are occasions when not patients but their relatives cause trouble in hospitals; and that people who come in for treatment—though I notice they have been removed from the provision—can also sometimes cause trouble.

This part of the Bill is specific about how disturbances on hospital premises are to be managed, and that is why I have some slight difficulties with the amendments. Although there would have to be a specific offence of causing a disturbance on hospital premises—it will have to be a new offence; I hear what the noble Baroness says—there will also have to be a way of addressing the offence in reality. Security staff in hospitals will presumably be given extra authority to deal with difficult patients—to restrain and hold them until the police arrive. So they will have a power to hold if not a power to arrest. I am struggling to see how you can do that on premises of that scale and with that security.

I have no difficulty with the proposal that any member of NHS staff looking after patients should not be subject to violence. I am simply concerned with how to bring that to reality, and how to bring police to the premises to deal with the matter.

Does the noble Baroness agree that the police have an extremely good record on responding to calls at places such as hospices and that they will attend at a disturbance although there may not be a security person on the premises? They will try to provide a rapid response. However, it is important that a clear message is sent to the public that if they come into such premises and cause a nuisance or affray, they will be prosecuted rather than simply asked politely to stop.

I accept that the police are extremely good at responding to any incident on NHS premises. A friend of mine was stabbed in his surgery by a patient who could have been described as vulnerable, who would not have been prosecuted but dealt with elsewhere. I do not argue the merits of the amendments, but I remain nervous about some of their aspects.

I shall make a considered and lengthy response to this set of amendments—for which I apologise in advance—not least because we are sympathetic to the issues which lie behind them. I particularly thank noble Lords who have recognised and congratulated the Government on bringing forward the provisions from Clause 170 onwards which more generally address the issue. I am grateful for the support we have received. We are conscious that we are struggling with an issue that poses a particular difficulty—an issue which the noble Baroness, Lady Hanham, touched on. I shall work through our observations on this group of amendments in that context.

This is not an easy issue to resolve. We had some of this debate before when we discussed amendments to the corporate manslaughter legislation—legislation which is somewhat parallel—which addressed the offence of obstructing a police officer in the course of his or her duty. It was a very useful debate and on that occasion we extended the law to offer further protection to emergency workers, which was helpful and constructive. That debate was very much in the same vein, as it is a difficult issue.

I turn first to Amendments Nos. 163 and 164. The application of the offence of causing nuisance or disturbance to hospital settings only is a targeted response to a specific problem. Some 78 per cent of respondents to the 2006 Department of Health consultation on tackling nuisance and disturbance behaviour on NHS healthcare premises supported the introduction of an offence to deal with this behaviour, and most respondents felt that the acute hospital setting is where such behaviour is most prevalent. I think that that is probably right.

It is important, however, to understand that the practical benefit to NHS staff is in Clause 171—to which noble Lords referred—where they are provided with a power to remove a person suspected of committing this offence. Although the offence is the basis for this power, on its own it does not have the intended impact, which is to enable NHS staff to deal with an incident of nuisance or disturbance behaviour immediately.

Simply extending these provisions, which are specifically designed for hospitals, to the wider NHS is unjustifiable and would make them unfit for purpose as it would assume the problem exists in the same way in other healthcare settings as it does in hospitals, and that the correct method to deal with nuisance or disturbance behaviour in these settings is to remove the person from the premises. I do not consider that the problem is identical in other healthcare settings or that the solution to deal with the problem in other healthcare settings should be the same.

As I believe the noble Lord, Lord Thomas of Gresford, said, evidence presented by the BMA in January this year highlighted the problem of violent behaviour against doctors outside the hospital setting; namely, in GP surgeries. For the purpose of this study, violent behaviour is defined as physical assault as well as verbal aggression or abuse and threats or harassment. The latter could be classed as nuisance or disturbance behaviour under these provisions. However, 94 per cent of GPs state that violent behaviour is committed mostly by patients rather than family, relatives, friends or companions at whom these provisions are aimed. That is usually the case in an A&E hospital setting where families, relatives or friends are likely to cause the problem and the aggression. In the GP surgery, the situation is rather different. I think that the noble Lord, Lord Thomas of Gresford, referred to likely causes of the problem in the GP surgery, for example issues to do with medication or a disagreement over treatment. So, the causes of the problem are very different in that setting.

As I say, this is different from the hospital setting which, by its nature in being open to the general public 24 hours a day and spread over a large area, has nuisance or disturbance behaviour committed by non-patients on a regular basis. Of course, none of this is acceptable and that is why we seek to legislate in a particular way. This supports the view that the offence is not suitable for non-hospital premises as patients cannot commit an offence under Clause 170 as their need for medical advice, treatment or care may be greater and more important than the need to remove them from the premises because of their low-level nuisance or disturbance behaviour.

We believe that further research needs to be undertaken on nuisance or disturbance behaviour in other healthcare settings, and how this can best be dealt with, before a solution that is fit for purpose can be devised. Without further investigation and consultation on the nature and extent of the problem having taken place, it would not be appropriate to attempt to deal with the problem by extending a solution that has been designed specifically for hospital settings to other healthcare settings, when the settings and the problem itself are different in nature.

As far as the power to remove in Clause 171 is concerned, most hospitals have full-time security staff and CCTV coverage to protect staff from those causing a nuisance or disturbance and to deter potential offenders. Under these proposals, trained security staff could assist in exercising the power to remove a person from hospital premises should they commit the offence. Not all GP practices, dental surgeries, nursing homes or hospices have such security services available to them. Therefore, enabling the offence to be committed on such premises would prove problematic as there would be no guarantee that a correctly trained person would be available to remove an offender from the premises, using reasonable force if necessary. Applying these proposals to the wider NHS would therefore ironically put the safety of such NHS staff at risk.

Applying the offence to ambulances or vehicles used by NHS staff in connection with work to attend a patient’s home would be impractical due to the mobile nature of such vehicles and the potential for offenders to be removed from the vehicle to a place that leaves them vulnerable; for example, at the side of a road. Furthermore, fully trained security staff would not necessarily be available to remove offenders from the ambulance or NHS staff vehicles, by force if necessary, so exercising the power would again put ambulance staff and other NHS staff at risk.

The Government recognise the risk to NHS staff working outside hospital settings and believe that all healthcare staff deserve to work in an environment that is safe and secure. The NHS Security Management Service has introduced conflict resolution training for all front-line staff and has trained over 250,000 staff to date. Local security management specialists have been placed in every healthcare body to oversee security issues and to take forward reports of nuisance or disturbance behaviour and more serious offences such as assault.

Guidance has also been issued by the NHS Security Management Service on the better protection of members of staff who work alone—as raised by the noble Baroness, Lady Finlay of Llandaff—and a long-term communications programme is under way to encourage reporting of abuse and violent behaviour against NHS staff in the primary care setting. The latter will help to identify the nature and scale of the problem in primary care and help work towards a suitable and more effective solution.

Amendment No. 165 seeks to supplement Amendments Nos. 163 and 164 by extending the definition of “NHS staff member” to include staff working in NHS settings outside hospital premises. I have already dealt with the reasons why it would be inappropriate to extend the application of this offence and the power of removal to NHS premises other than hospital premises. Amendment No. 165 is unnecessary, as the current definition of “NHS staff member” in Clause 170(4)(c) already covers persons other than those employed directly by the hospital in which an offence might be committed.

Indeed, the current definition covers persons who are employed by a relevant English NHS body or are otherwise working for it, whether as or on behalf of a contractor, as a volunteer, or otherwise. The relevant English NHS body can be an NHS trust, including a mental health trust, primary care trust or an NHS foundation trust. This broad definition means that a range of NHS staff could have a nuisance or disturbance caused to them which may constitute an offence under Clause 170(1), whether they are employed directly by the hospital, by a primary care NHS organisation, or even as a contractor or volunteer. There is broad coverage. If the NHS staff member in question is on NHS hospital premises in connection with his or her work, he or she will be protected by these provisions. For example, an offence could be committed against a GP if they were visiting the hospital to see a patient or on business-related matters. This is because they are employed or contracted to work for a relevant English NHS body—a primary care trust—and are thus an “NHS staff member” for the purpose of these provisions.

Amendment No. 166 creates a new offence of causing “physical or mental harm” to an NHS healthcare worker who attends a patient in their own home. We do not consider the introduction of such an offence necessary or appropriate. Such an offence is unnecessary, as the causing of physical harm to the NHS healthcare worker would already constitute assault or another criminal offence against the person under current legislation. If a healthcare worker was caused physical harm in a patient’s home, the appropriate course of action would be to call the police to deal with the situation using their powers under existing legislation.

It is unclear what is meant in Amendment No. 166 by the causing of “mental harm” to an NHS worker and how one could measure or prove that mental harm was being caused as an incident occurred so as to enable the police to respond to an incident, or to consider that an offence had been committed. On that basis, I do not consider that the introduction of an offence of causing “mental harm” to an NHS healthcare worker who attends a patient’s home would be appropriate. However, we recognise that there is a risk to NHS staff members who work in the community, in particular those who attend the homes of patients to provide treatment, care and advice.

In 2005, the NHS Security Management Service issued guidance to lone workers entitled Not Alone: A Guide for the Better Protection of Lone Workers in the NHS. This offers practical advice to such staff on protecting themselves against potentially hostile and/or violent situations when attending a patient’s home in connection with their work. As I have already mentioned, conflict resolution training is available to all front-line staff.

Finally, a long-term communications programme is now under way to encourage better reporting of abuse and violent behaviour against NHS staff in a community setting. This will help to identify the nature and scale of the problem for lone workers, and help us to work towards a suitable and effective long-term solution.

In summary, we are sympathetic to the spirit behind this amendment. The solution that is sought, which is to extend the provisions for NHS premises in the way that they are set out in Clause 170, would not necessarily be effective. A lot more thought, consultation and discussion with other potentially affected NHS staff would be required before we could move in that general direction. We need to think about specific remedies and measures that are more appropriate to deal with the problems sometimes caused, primarily by patients in the GP setting. That is where the real core of this particular problem, identified by the noble Baroness, exists. For those reasons we continue to seek solutions in the longer term. We are grateful to noble Lords who supported Clause 170 and the consequent sections. I invite the noble Lord and the noble Baroness to withdraw their amendments.

Could the Minister clarify two points for me? First, does Clause 170 apply only to England, which he referred to in his answer, and not to healthcare workers in Wales? Secondly, I do not quite understand why hospital staff have greater protection than hospice staff. This is a current situation: a sick patient has relatives who have assaulted each other on hospital premises. For one of those relatives, a “protection of vulnerable adult” order was taken out. The patient was moved to a hospice for the patient’s healthcare needs to be better met, but that warring family moved as visitors. I do not understand why the staff of the hospice, where there is a security person on site at night because it is a large hospice, should have any less protection than the hospital staff, when the hospice has taken the patient in the interests of the patient and has allowed somebody else to be moved into that acute bed in the hospital setting. There does not seem to be equity.

My last point concerns mental harm. Occupational health services now often link with neuropsychiatric and clinical psychology services, and provide extremely robust assessments of people’s fitness to work and harm that may have occurred to them.

On the first point, yes, we are talking about England in the context of this particular series of clauses and amendments. The issue of hospices is quite an interesting one. I want to reflect on that because the definition of a hospital can be fairly broad. It can cover secondary care facilities, day surgeries, walk-in centres and specialist clinics located within the grounds of those secondary care facilities. Clearly, not all hospices will have security staff available for fairly obvious reasons. Those that have will be able to take the appropriate action and will have had the appropriate training. It is worth the Government reflecting further on hospices and where they fall in the definition. I am not sure that we can necessarily help, but I will certainly have a closer look at that. As I have said, the clause applies to England only. Health service matters are devolved in Wales. It would be for the National Assembly Government to decide on the appropriate steps for problems in Wales.

The noble Baroness made a fair point about the value of training and the fact that staff are very well trained to deal with these things. They can identify problems caused by stress and recognise the impact on people’s mental health and so on, which is clearly terribly important.

Perhaps I may ask the Minister a question in relation to his answer to the noble Baroness, Lady Finlay of Llandaff. Under Clause 170(4)(b), it appears that any building,

“associated with the hospital and situated on hospital grounds”,

may well be covered by this clause. I declare an interest as the vice-president of a hospice which happens to be situated in the hospital grounds of the Royal Devon and Exeter Hospital. Although this hospice has to pay for itself, it is probably covered, but I put it to the Minister that there is an anomaly in that some hospices will be covered and others will not. I thought that that might be an interesting point to draw out.

The noble and learned Baroness is the lawyer and I am not. She may well be right and there may be value in reflecting on the position of hospices, although I suspect that hospices are not the major problem in this area. I think that the primary concern of the noble Baroness, Lady Finlay, was the position of GPs’ surgeries. However, I recognise that visiting care staff in the NHS may be vulnerable—we all hear nasty stories, so we well appreciate that—and we probably have to rely on the ordinary criminal law in most of those individual cases. This has been a valuable debate touching on some very difficult issues.

I am very interested in the Minister’s last contribution. I had not appreciated that this criminal offence was confined to England, as all through the devolution debates it was made very clear that criminal offences would apply to England and Wales. The Welsh Assembly has no power to create criminal offences, so we will now have something which seems to be contrary to “the devolution settlement”—a criminal offence relating only to England and not covering Wales. Where do we go in Wales? Where do I go in my own hospital if I am unruly and cause a disturbance? How can I be ejected from that hospital?

I am the first to do it and have beaten the noble Lord, Lord Roberts of Conwy, by a long way.

This is a serious matter to which I should like an answer. I know that I am springing it on the noble Lord at a moment’s notice but I had not appreciated it myself earlier, so perhaps he would consider it and give me his thoughts in due course.

I make it clear that the clause applies only to England and that it would obviously be for the National Assembly Government in Wales to consider what steps would be appropriate. I want to clarify issues for the noble Lord and this may be something that we need to consider when we do a compendium letter at some point between now and Report. I shall ensure that the matter is clarified for the noble Lord.

I see that it is confined to England because NHS premises are defined as “relevant English NHS” premises. It is an interesting problem. It supports my campaign for powers to create criminal offences to be devolved to the Welsh Assembly, and I am very grateful to see that the Minister would support that.

The real issue here is that the rationale of the Minister, as I understand it, is that they do not have security services in doctors’ premises or in hospices and that is the reason for denying that protection. I do not think I am wrong but in my youth the idea that anyone would attack a nurse or a doctor was just unthinkable; it would never have occurred to anyone that that would happen. Are people now asserting their rights for free medical care at the point of delivery to the extent that they demand it aggressively and with threats? It is a sad reflection on the way in which our society has developed.

If that is the case, we have to address the problem; we have to put in place statutory offences to deal with the change in societal behaviour. That is why I applaud the Government’s approach to making it a specific offence within hospital premises. Even if no bouncer is employed in a GP’s surgery, surely a notice on the wall relating to a person who causes a nuisance or disturbance and refuses to leave when asked would be a significant contribution to the safety of those premises. The staff could point to such a notice saying, “You are committing a criminal offence”, but people cannot necessarily commit a criminal offence without a provision such as this. If there is an assault and a criminal offence is committed—threatening behaviour might be a criminal offence—one could argue about whether it was in a public place under the Public Order Act.

Here is a specific protection for conduct which is not necessarily covered by any other criminal law. I believe all Members of the Committee would agree that it would be desirable to replace what in the old days was an absolutely accepted convention with protection for staff, no matter whether they were working in a hospital or anywhere else. With those thoughts, I ask the Minister to reconsider his position and to address particularly the criminal offence in Wales. I am sure we shall return to this on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 164 and 165 not moved.]

Clause 170 agreed to.

Clauses 171 and 172 agreed to.

[Amendment No. 166 not moved.]

Clauses 173 and 174 agreed to.

Schedule 31 agreed to.

Clause 175 [Individual support orders]:

On Question, Whether Clause 175 shall stand part of the Bill?

Clause 175 takes us to that part of the Bill which deals with anti-social behaviour orders in respect of children and young persons. The purpose of Clause 175 is to extend the jurisdiction for the making of individual support orders—ISOs—under the Crime and Disorder Act 1998. My opposition to Clause 175 concerns the extension of individual support orders to forms of ASBOs which are other than civil orders. Individual support orders were created in Sections 322 and 323 of the Criminal Justice Act 2003 to address the concern that anti-social behaviour orders which were made in civil proceedings failed to provide any support that could assist the young person not only to comply with the order but also to change his or her behaviour. Individual support orders can last for up to six months, but here again, critically, the breach of the conditions of an individual support order is a criminal offence and can result in a fine. Again behaviour that is not necessarily criminal is being criminalised. Clause 175 allows individual support orders to be made more than once and not at the same time as an ASBO is made. It also permits individual support orders to be attached to ASBOs obtained on conviction and in the county court, whereas at the moment, they can be made only in civil proceedings in the magistrates’ court.

In January 2007 the Respect unit of the Home Office published a paper showing that in 2005, although 1,555 ASBOs had been given to people under 18, only 42 individual support orders had been issued. For some reason ASBOs are being granted by magistrates’ courts against young people without in the vast majority of cases individual support orders being made alongside them. My objection to Clause 175 has the support of the Standing Committee for Youth Justice, which has been very helpful throughout the consideration of the Bill’s provisions concerning young people. The committee agrees that support for young people who are given ASBOs is often inadequate and that ISOs can be used to provide structure and support to young persons to help them carry out the conditions of their ASBOs. The committee believes that allowing for multiple ISOs is not the way forward, and that imposing an ISO on conviction is superfluous because the court in a conviction case has the full power to consider measures to help the person to stop reoffending.

In its report in 2006 the Youth Justice Board suggested that low take-up rates of individual support orders reflected a lack of knowledge about them, both among sentencers and YOT duty officers. I know that that matter very much concerns my noble friend Lady Linklater who has done so much to try to introduce to the judiciary the value and extent of these orders among other community orders. The board also found that in cases in which the young person had contacted the youth offending team through an existing court order, there was a general assumption that an ISO was unnecessary because it would add nothing to services already in place. Although the provisions in Clause 175 may increase the number of individual support orders that are made, it does not look as if they will assist after conviction how a young person is treated.

The Standing Committee for Youth Justice is concerned, as I am, that these ISOs place breachable requirements on young people in addition to those that are already in place in the ASBO itself. If there are multiple ISOs there are innumerable conditions floating around with which the young person has to comply: the conditions of the ASBO; the condition of the first ISO, if he is given one; the conditions of a second ISO if he is given one; so he is set up to fail. Instead of a statutory change to ISOs the Government should guarantee to offer targeted youth support, and when an ASBO accompanies a conviction, support must be received through the youth justice system and not through the extended use of individual support orders, which involve the children’s and youth support services.

I am grateful to the noble Lord, Lord Thomas of Gresford, for his comments on Clause 175 in the sense that I thought I heard a rather more reflective tone in his approach to something that I know he does not have a great deal of sympathy with. I understand where he is coming from. In essence, I think, he was trying to pose the question for the Committee: is the ISO route the best way to make better use of anti-social behaviour orders? That is a reasonable and fair issue to raise. I do not agree with the noble Lord’s conclusion.

The fact that ISOs have not been as extensively used as we would perhaps wish is due to two reasons. First, they have not been in place for an overly lengthy period of time so the experience of using them is not so profound, whereas ABSOs have been in place for the better part of a decade and there is more knowledge and understanding of their use and value.

However, ISOs can have value, and add value to ASBOs. We must ensure that the ISOs can work better. They have been in place only since May 2004 and can be attached to ASBOs made against young people between the ages of 10 and 17. Individual support orders impose what one could fairly recognise as being positive conditions on young people designed to tackle the underlying causes of their anti-social behaviour. Such conditions might typically include attendance of an anger management course or different forms of counselling. Those are valuable forms of support and will be recognised as such.

Individual support orders can last up to six months and are currently available for stand-alone ASBOs made in the magistrates’ courts only. Legislation sets out that, where a magistrates' court makes an ASBO against a young person, it must also make an individual support order if it considers that that order would help to prevent further anti-social behaviour. That is positive support to prevent anti-social behaviour in the future. They are also a significant part of our strategy to reduce anti-social behaviour. Practitioners like them and, where they have been applied, they have a proven track record of success.

However, the circumstances in which individual support orders can be made are rather limited. They are available only where a magistrates’ court makes a stand-alone ASBO on a young person between the ages of 10 and 17. We believe that other young people could benefit from the ISO approach, to say nothing of the communities which would benefit if the underlying causes of anti-social behaviour are tackled.

The clause extends the availability of ISOs. It gives the court the power to make an individual support order where an ASBO is made on conviction. It gives the county court the power to make an individual support order and substantially increases flexibility around when an ISO can be made. Individual support orders could be made more than once and could be made subsequent to the making of an original ASBO.

A major benefit of the clause is that it ties in with Clause 174, which would require young people’s ASBOs to be reviewed annually. Clause 175 would give the applicant authority the flexibility to be able to apply to the court for an individual support order or a further individual support order, for example, if the annual review concludes that it would be merited.

Finally, the clause allows an ISO to be issued if it is desirable in the interests of preventing the repetition of anti-social behaviour which led to a variation of an ASBO rather than merely the behaviour that—

What evidence is there that ISOs prevent or reduce reoffending that justifies a further extension of their use?

As I said at the outset—the noble Lord, Lord Thomas of Gresford, also made the point—ISOs have not been used as extensively as we would like because we see them as a positive measure. The experience is that practitioners see value in them and recognise that they make a contribution to preventing the anti-social behaviour that the noble Baroness and other noble Lords, particularly those on the Liberal Democrat Benches, see as very important. I am grateful to the noble Lord, Lord Thomas of Gresford, for raising the important work that the noble Baroness, Lady Linklater, has done in this field.

We see ISOs playing an important part in tackling the behaviour that led to the initial ASBO. We want to see individual support orders used more widely and we are working with the court service and the Youth Justice Board to achieve that outcome. For those reasons, this clause forms an important part of our strategy. I hope that noble Lords across the Committee will welcome the Government’s continued determination to tackle anti-social behaviour and our efforts to ensure that we help young people tackle the underlying causes of that behaviour because that offers us a more imaginative range of solutions for the future.

We understand the noble Lord’s concern. We want to see this used in a targeted way. We also want to see more extensive use of the order. I am advised that research has been commissioned into the effectiveness of ISOs and I shall be happy to report the outcome of that research to the noble Baroness in due course. She raised the good point that we should proceed on the basis of informed legislation. The view of practitioners is that ISOs have value.

Clause 175 agreed to.

166A: After Clause 175, insert the following new Clause—

“Anti-social behaviour orders

(1) Section 1 of the Crime and Disorder Act 1998 (c. 37) (anti-social behaviour orders) is amended as follows.

(2) In subsection (7) at the end insert “or in the case of persons under 18, not less than three months”.

(3) In subsection (10) after “person” insert “over the age of 18 years”.

(4) After subsection (10)(b) insert—

“(c) in the case of a person below the age of 18 years, a reprimand, warning, youth conditional warning or any sentence of the court commensurate with the seriousness of the offence other than imprisonment.”(5) In subsection (11) after “person” insert “over the age of 18 years”.”

The noble Lord said: This amendment was also suggested by the Standing Committee for Youth Justice. Its purpose is to enable a court to decide on the most appropriate length of an anti-social behaviour order made on a child under the age of 18, starting with a minimum period of three months. It would allow the imposition of a conditional discharge as a penalty for breach and remove the possibility of committing a child to a custodial sentence for breach. Noble Lords who have participated in the debates on the Bill will know how often we have referred to the United Nations Convention on the Rights of the Child and have made the point that the incarceration of children is to be used as a last resort.

Anti-social behaviour orders were created by Section 1 of the Crime and Disorder Act 1998 and apply to persons aged 10 and over, making children and adults subject to the minimum period of the order—two years—and breach of the order can lead to a fine or a custodial sentence. Noble Lords have heard it said before that adolescence is a period of rapid development during which young people can demonstrate dramatic changes of behaviour and can obtain maturity within relatively short timescales. The purpose of this amendment is to reduce the minimum period for a child ASBO from two years to three months. Let me give noble Lords some figures: 40 per cent of ASBOs given to under-18s to the end of 2003 were breached; 179 custodial sentences followed, 30 of which were simply custody for the breach of the ASBO—a civil order. By the end of 2005, the rate of breach for young people had risen to 57 per cent, although I am not sure whether there are up-to-date figures for the number who have been sentenced to custody as a result of that breach.

The two-year minimum period for ASBOs is simply inappropriate. Our amendment would amend the law so that, in the case of children under the age of 18, magistrates would have greater discretion to set the duration of the ASBO, so that it might start as low as three months, as opposed to the present two-year limit.

The second problem that we are addressing is the use of custody on breach of the ASBO. A child may have a 24-month detention and training order as a result of the breach. We say that that is an inappropriate use of custodial disposals in response to behaviour that may have been non-criminal in nature. Those are the purposes of the amendment and I beg to move.

As the noble Lord, Lord Thomas of Gresford, spoke, I grew in sympathy towards the amendment. The trouble with ASBOs at the moment is that they are being collected as trophies. An awful lot of the children who get them do not feel too strongly about them. It rather depends on whether they will feel any more strongly about them if they are there for two years rather than for three months. There should be flexibility in the courts about how long ASBOs are given for. An ASBO is a civil disposal for offences that will vary widely, so that flexibility should be allowed. I am shocked by the number of detention and training orders that are resulting from these ASBOs. That needs to be looked at. To put children into any sort of custody other than for the most heinous crime seems to me to be going way further than we should be.

I absolutely agree with the noble Baroness, Lady Hanham, that a degree more flexibility for the court would be appropriate. The figures that my noble kinsman has just read out are absolutely shocking. There is a link between this group of amendments and the previous group; if ISOs are to be really positive, they could play a part here.

Perhaps I could relate to the Committee a conversation that I had with the noble Lord, Lord Ramsbotham, at lunchtime today. He was telling me that in Sweden, a country that is a great deal more enlightened than this country on how to treat children in general and young offenders in particular, the system is that certain conditions are put on a sentence, whether a custodial or a non-custodial sentence. Those may include taking courses, such as anger management. If the young person concludes and fulfils those before the end of what should have been the sentence, they can apply to the court to be released early or for the non-custodial sentence to finish earlier. That strikes me as very positive. It gives the young person something to work towards and shows a positive attitude. Perhaps the Minister would consider that idea on behalf of the Government, because it takes account of some of the concerns that we have raised. Practitioners would certainly welcome the idea as well, because it would give them an objective to help the young people to work towards that would address the fundamental problem and reduce reoffending.

I would like to add a word in support of what the noble Baroness, Lady Walmsley, has just said. Two years in the life of a child under the age of 18 is a very long time. It may not seem very much to us in our hoary and advanced stages of life but, at the age of 16 or 17, two years is not far short of infinity. It is terribly important in the circumstances with which magistrates’ courts will deal to offer the prospect to the young offender—the child—of being able to achieve something by improving his or her behaviour. The amendment proposes to reduce the minimum length of an ASBO from two years to three months, which would give a degree of flexibility that meets in rather a helpful way the thought that I have just endeavoured to express. I therefore hope that the Minister will deal with it sympathetically when he replies.

I shall say much the same thing in rather different words. There can be a good case in principle for having a mandatory minimum period of incarceration, because some things in imprisonment can be achieved only in a stated minimum of time. However, to bind the hands of sentencers for non-custodial sentences so that they must apply controls to a child for a stated minimum of time is to prejudge entirely the state of mind of the child and the circumstances of the offence. That is entirely wrong, so that leg of the amendment must be right. The second leg of the amendment is a separate matter, which could have been provided for in a separate amendment, but I entirely agree with the first leg of it.

This has been a short but thoughtful discussion about anti-social behaviour orders. Again, I congratulate the Committee on the way in which it reflects on these issues, as it adds value to our deliberations.

The amendment would reduce the minimum period of an anti-social behaviour order on a young person from two years to three months and remove custody as an option for courts in the case of a young person who breached their anti-social behaviour order. It is worth reminding the Committee that our guidance to practitioners makes it clear that anti-social behaviour orders on young people should be reviewed after one year of operation to ensure, first, that they are still being complied with and, secondly, that the young person is receiving the necessary support.

On the noble Baroness’s point, it is worth pointing out that the legislation already allows for an early discharge or for variation of the order at any time within the two-year period, so there is already the scope for what she suggests. In particular, the Bill puts this requirement for annual reviews on a statutory footing, so we have listened in general to the debate about that issue. The guidance also makes it clear that orders extending beyond two years need particular attention and, although an order must last for at least two years, the prohibitions can be set to last for shorter periods.

There is flexibility in the current arrangements that allows practitioners and the courts to tailor the orders to suit specific cases and circumstances. There is no one-size-fits-all approach. All our guidance, and the judgments handed down by the courts, make it clear that decisions about the content of the order turn on the circumstances of each case. Reducing the minimum period for which an ASBO can be issued to a person under 18 to three months would reduce the incentive to change behaviour in the long term and would therefore impact negatively on the respite that ASBOs provide for communities.

Also—perhaps the noble Lord, Lord Thomas, has not appreciated this point—the introduction of a three-month minimum would be likely to increase the number of ASBOs given. I suspect that that would be a consequence of the way in which the order would work and would be structured, because an ASBO is given by the court only after a stringent two-stage test has been met. First, the behaviour complained of must be proven beyond reasonable doubt. Secondly, the applicant must satisfy the necessity test; namely, that the order is necessary to prevent a recurrence of the behaviour proven in the first test. This means showing that the prohibitions are required to stop the anti-social behaviour for at least a two-year period. The necessity of a three-month ASBO would be much easier to demonstrate. I cannot believe that the noble Lord intends to lower the bar and make it considerably easier to secure an ASBO against a juvenile than against an adult. We would argue that that is not in the interests of young people or of the community, which deserves a decent period of respite—at least two years—from anti-social behaviour.

ASBOs should always be seen as part of a wide range of options to bring behaviour under control. However, where the court takes a decision to issue an ASBO on a young person because he or she has failed to respond to other interventions and there is a need to protect the public, the ASBO should also be accompanied by, as we argued earlier, an individual support order to help the young person to deal with the underlying issues and causes in order to better manage his or her behaviour.

ASBOs can be extremely effective in preventing further escalation into criminal behaviour. Under the ASBO, behaviour is constantly monitored, often by the public—hence the use of publicity—and if the order is breached people face consequences that can include custody. It is always made very clear that any breach of the ASBO conditions could result in a community penalty, a fine or, ultimately, a custodial sentence. For a young person, a custodial sentence should be considered only as a last resort in cases of persistent and serious breaches. That last resort of custody gives ASBOs teeth and hardness. If people do not abide by them, there are serious consequences to be faced.

We well understand the concerns that have been raised by children’s organisations in the past that ASBOs criminalise young people, but we know that a study by the Youth Justice Board concluded that the use of ASBOs is not bringing a whole new group of young people into custody. In its study, 43 young people who received custody for a breach of an ASBO had a total of 1,779 offences between them. Something like 190,000 young people are dealt with by the police and courts each year, but only 4 per cent receive custodial sentences.

We know that ASBOs work. The National Audit Office report published in December 2006 showed that anti-social behaviour interventions have a big impact in stopping the problem. The right package of support and enforcement helps to ensure this and we have put that in place. I make no apologies for supporting front-line practitioners by providing what we, the Government, consider to be highly effective tools and powers of intervention. The well meaning nature of the amendment could have an unintended consequence. The concerns for flexibility and the need for a review are already met. We have spelt that out in guidance and we are seeking to put it on a statutory footing. As I have explained, the legislation allows for a variation of the way in which the orders operate. I hope that, having heard that, the noble Lord will feel able to withdraw his amendment.

Perhaps the Minister would take us through this line of thinking. In the context of what we were told repeatedly by the noble Lord, Lord West of Spithead, at our last Sitting, the Government wish to rely on the good sense and discretion of magistrates’ courts. The argument that has just been put forward by the Minister is that we should not reduce the minimum from two years to three months because that would give rise to a greater number of ASBOs. Surely that could come about only if it was in line with the good sense and discretion of magistrates to meet a perceived need.

Like the noble and learned Lord and the noble Lord, Lord West, I trust the good judgment of magistrates. However, if we were to follow the route suggested by this amendment, we could end up with far more cases coming before the court that presented an argument for an anti-social behaviour order to be made. We could trigger a situation where a succession of anti-social behaviour orders would need to be made to affect the anti-social behaviour that we were trying to deal with. I am not sure that that would be a particularly good use of court time. The courts would be repeatedly seeing the same individual, whereas the interventions that are required to try to prevent the anti-social behaviour—the monitoring, the working with, the use of the ISOs and so on—could be interrupted by a succession of appearances before magistrates that were unnecessary in the circumstances.

What the Minister has just said—exactly as my noble and learned friend argued—is that we should not give the courts the extra flexibility because they are likely to use it wrongly. Like the noble Lord, Lord West of Spithead, the court should be trusted to match the sentence to the crime in the good old Gilbertian sense.

I do not think that there is a cigarette paper between me and the noble Lord, Lord West, on the good sense of magistrates. They are all good citizens, as the noble Baroness, Lady Hanham, obviously is. We are not trying to interfere with the good sense of their judgment. We are trying to make intelligent use of court time and to ensure that they have that flexibility. As I said, we are seeking to legislate to create more of that through this Bill. I do not wish to do anything that would undermine that. The way in which the ASBO regime works and the way in which we seek to perfect it make good sense in terms of reducing anti-social behaviour.

The way in which the ASBO works is that the individual who is subject to the order is placed under a number of restrictions. Those restrictions may be very irksome to him. Similarly, he is placed under the guidance of those who are monitoring the order. He may find that to be irksome, too. Over two years, the frustration that he feels is likely to mount up and a breach is therefore more likely to occur. A shorter period of an ASBO, if the court in its wisdom thought that appropriate, would enable him to have the short sharp shock that the Conservative Party was once very much in support of, to realise what it means to have anti-social behaviour orders placed on him and to mend his ways accordingly. Surely it is for the good sense of the magistrate to determine that.

The second point—I am sorry that I did not get the support of the noble Lord, Lord Elton, on this—is on imprisonment. If a person under the age of 18 has acted in such a way in breaching his anti-social behaviour order as to merit imprisonment, I respectfully suggest that he must have committed some criminal offence that would make it necessary for him to go to prison, if that is the last resort and the best way of dealing with the problem. I cannot envisage that a breach of the conditions of an ASBO—for example, that he should not go out at night, visit a particular public house or walk down a street, or whatever else the restrictions are that have been placed on him—could ever amount to the necessity to imprison. I am not suggesting abolition of imprisonment or detention—or whatever you want to call it—for people under 18. I am suggesting that the Government should abolish youth detention for persons under 18 simply for the breach of an ASBO. I do not go any further than that with this amendment. I will reflect on what the Minister has said, in his well considered and lengthy reply, and consider what to do. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

166B: After Clause 175, insert the following new Clause—

“Anti-social behaviour orders: reporting restrictions

(1) The Crime and Disorder Act 1998 (c. 37) is amended as follows.

(2) Omit sections 1(10D) and (10E) (anti-social behaviour orders) and 1C(9C) (orders on conviction in criminal proceedings).

(3) In subsection (9) of section 1C (orders on conviction in criminal proceedings), omit “(10D), (10E)”.

(4) The Children and Young Persons Act 1933 (c. 12) is amended as follows.

(5) After section 49(2)(d) (restrictions on reports of proceedings in which children or young persons are concerned) insert—

“(e) any proceedings under the Crime and Disorder Act 1998”.”

The noble Lord said: The amendment deals with reporting restrictions for children. Recently I was engaged in a case of murder and the sentence was passed last Friday. The person concerned was under the age of 18 and the offence alleged was committed when he was 16. Throughout the whole of the proceedings—from his arrest, interrogation, charging, appearances in court, trial, all the evidence and conviction—at every stage his identity was protected by an order of the judge. It was only following sentencing on Friday that the judge, after due consideration, decided that it was in the public interest that his name should be released to the press.

That was in the most serious case you can have. It was under Section 49 of the Children and Young Persons Act 1933—now 70 years old—which creates automatic reporting restrictions for children involved in criminal proceedings. The Anti-social Behaviour Act 2003 amended the Crime and Disorder Act 1998 to provide that these reporting restrictions will not apply to children facing an ASBO upon conviction in criminal proceedings. Section 141 of the Serious Organised Crime and Police Act 2005 further erodes children’s privacy rights by also removing automatic reporting restrictions in respect of children facing proceedings for an alleged breach of an ASBO, allowing for them to be named and shamed.

This naming and shaming was the product of the Home Officer under, I think, the tutelage of Mr Blunkett, who never seemed to be able to place in the framework of the criminal law his concern for anti-social behaviour that affected his constituents and his constituency. So for something which is down at the bottom of criminal behaviour, the 1933 protection has been removed. This means that children as young as 10 can be named and depicted in the media in a highly negative way—not only in local media but regionally and nationally—and their photographs can be displayed in local supermarkets and publicly on notice boards. It takes us back to the days of the stocks that children as young as 10 can have their photographs displayed in this way.

What is the purpose of it? The Government will say, no doubt, that the only way in which you can make ASBOs work is to give them publicity, but naming and shaming violates children’s human rights. The report on the United Kingdom in 2005 by Alvaro Gil-Robles, who is the Council of Europe’s Human Rights Commissioner, made shaming comments about the position in this country. He said that it is,

“entirely disproportionate to aggressively inform members of the community who have no knowledge of the offending behaviour and who are not affected by it of the application of ASBOs. It seems to me that they have no business and no need to know”.

Article 40.2(vii) of the United Nations Convention on the Rights of the Child is clear that children have a right to privacy at all stages of proceedings. Article 3 states that the best interests of the child must be a primary consideration in all decision-making. The policy of naming and shaming vulnerable children has not yet been tested in our courts under the Human Rights Act but it is my contention that it amounts to a breach of Articles 6 and 8 of the European Convention on Human Rights.

ASBOs can apply to children who are not suffering from any particular problem, but a high proportion of children against whom they are made are suffering from learning difficulties and mental health problems, and yet they are named and shamed.

When, in a Question in July 2005, Mr John McDonnell asked the Home Office Minister to give information on the physical and mental condition of people issued with an ASBO, the reply was:

“Information is not collected centrally about the characteristics of persons issued with an antisocial behaviour order”—[Official Report, Commons, 22/7/05; col. 1090W.]

There has been no research of which I am aware of the effects on children of naming and shaming; whether it reforms and rehabilitates or contributes to that 57 per cent of children subject to ASBOs who breach them, we just do not know. In many professional circles, there is a strong view that it is more likely to make matters worse and to prevent children overcoming anti-social behaviour by giving rise to vilification. As the noble Baroness, Lady Hanham, pointed out earlier today, that can be regarded, perversely, as a badge of honour and can have a considerable negative effect. Some children are more aggressive if they have an order of that sort which marks them out of the crowd as being leaders in disruptive and objectionable behaviour.

What is more, the wide publicity that is given to the children who are subject to these orders means that older people are showing increased fears of young people. A divide is opening up in society where older people regard children as, to use the expression that is current at the moment, “feral”. It is all because of the emphasis that is placed on children as though they were rather less than human. At best, the public are encouraged to show little understanding of children’s difficulties, while, at worst, representations and publicity of this kind invite community hostility and vengeance. The naming and shaming of children subject to ASBOs was no doubt introduced as a “tough” gesture by this Government. I respectfully suggest that it is having precisely the opposite effect and that it should be removed. I beg to move.

If the Government really want to reinforce the syndrome of ASBOs becoming a badge of honour, I can think of no better way than to put the child’s face and identity on the front of the local newspaper. That will simply add to the impression that they are a bit of a lad or a lass, and will encourage the child to revel in that situation. Apart from being totally contrary to the UN Convention on the Rights of the Child, it is unworkable. It will do no good at all. I challenge the Minister to tell us what evidence there is that the children who are named and shamed are less likely to break the terms of the ASBO and to reoffend than those whose names are kept confidential. I would like to see if there is evidence for that, because I do not believe that it exists.

Your Lordships’ House is familiar with this argument. The noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Walmsley, raise this issue whenever there is an opportunity to discuss ASBOs. I am afraid theirs is not an argument with which I have a great deal of sympathy. They seek to remove the automatic imposition of reporting restrictions on proceedings against juveniles for breaching their ASBOs or which relate to the making of an ASBO against juveniles on conviction of criminal offences.

Publicity of these proceedings is often an integral part of local agencies’ efforts to tackle anti-social behaviour. It is not about naming and shaming, but ASBOs are made in open court and, unless the court imposes restrictions, the media are entitled to report them, even if they involve young people. It is for the court to decide whether to impose reporting restrictions.

I was interested in what the noble Lord and the noble Baroness said because my attention has been drawn recently to a case reported in the Argus on Saturday 19 January. The headline ran, “MPs hit out at ban on naming teenager. Asbo yob u-turn by magistrates”. It reported a case, heard in Brighton and Hove magistrates’ court, where the court ruled that the local newspaper could not name the teenage delinquent concerned. The court made a firm decision, but it produced this response from one of the local politicians, the Lewes MP, Norman Baker, who said:

“The Argus is absolutely right on this and it has left me very concerned. If someone has committed an offence, the details should be made available to the public. The whole point of an Asbo is so the person who has one will be identified”.

That puts the case perfectly well. It was no minor matter. The anti-social behaviour reported in the local newspaper related to a youth from the area who had a long history of yob behaviour and had been banned from parts of the city centre. He threw a brick through the window of a house, injuring a teenage girl, smashed six car windscreens, stabbed an inflatable dinghy, causing criminal damage, and was in a gang which attacked an innocent father. It was exactly the sort of behaviour that ASBOs are intended to deal with. The local Labour MP, David Lepper, made complaints similar to those of the reasonably local Liberal Democrat MP for Lewes, Norman Baker, about the effect of the court’s order.

The case illustrates that the magistrates can rule in certain circumstances that publicity is inappropriate —the local politicians took a different view on the appropriateness of reporting restrictions. Norman Baker seemed to be arguing quite clearly for the Liberal Democrats that publicity is essential in these cases. For once, I entirely agree with the representative from Lewes.

The law is best left as it is so that those in the local community and the victims of anti-social behaviour know and can see that something positive has been done to deal with it. Publicising the prohibitions also helps the community enforce the order. Publicity is not to punish or shame the individual; it is simply to remind the local community that action has been taken, that it can be effective and that the community has, in its informal way, an important part to play.

We need to remember that anti-social behaviour of juveniles, and adults, made subject to ASBOs can have a serious and/or lasting effect on people’s lives. The case to which I have referred illustrates the way in which it could have such an impact. The needs of individuals must be balanced with the wider needs, issues and concerns of the local community, which has an equal right to be protected.

The court can impose reporting restrictions if they are appropriate. They might be appropriate, for instance, in the case of somebody who perhaps has some mental ill health, and one might expect the court to behave rather differently. However, the law is best left as it is. It should be left to the discretion of the courts, even where they attract some opprobrium for the way in which they behave. A requirement exists in any event for the court to have regard to the welfare of the child or young person. The existing legal framework is working well in practice. I would not encourage the Committee to support the amendment. We have got the balance about right. It helps us in our general policy of tackling anti-social behaviour if we leave the law as it is.

I have to commend the sagacity and the good common sense of the magistrates’ court in Brighton for equating the stabbing of an inflatable with the stabbing, such as in the case I referred to, of an individual to death and protecting the identity of the person concerned. It is ludicrous, is it not, that protection is given to children under the age of 18 on these most serious crimes and yet it is removed from them on anti-social behaviour orders?

Noble Lords will remember that 57 per cent of such orders are breached. The effect of naming and shaming—as my noble kinswoman said, the placing of their photographs on a notice board and giving them publicity—is to make them the leader of the gang. I know of instances where that has happened. It puts them out of the ordinary and makes them the role model for the people in their area. If they happen to be among the 57 per cent of youngsters under the age of 18 who breach their orders they are there, ready to lead their contemporaries in the sort of behaviour that the Government seek to stop. It is short-sighted, unfair, stigmatises or gives a badge of honour to the person who is subject to that order, and does no real positive good for society as a whole. I am grateful to the Minister for his consideration. I beg leave to withdraw the amendment for the moment, but I will consider what he has said.

Amendment, by leave, withdrawn.

Clauses 176 and 177 agreed to.

Schedule 32 [Police misconduct and performance procedures]:

166C: Schedule 32, page 297, line 11, at end insert—

“(8) Subsection (7) does not apply to a statutory instrument containing (whether alone or with other provision) the first regulations made under this section after the commencement of paragraph 7 of Schedule 32 to the Criminal Justice and Immigration Act 2008: such an instrument may not be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.””

The noble Lord said: Amendments Nos. 166Charlie to 166Mike all relate to the provisions in the Bill dealing with police misconduct procedures and complaints.

It is the phonetic alphabet; Sorry, I forget where I am. They are largely technical in nature.

Amendments Nos. 166Charlie to 166Foxtrot give effect to a recommendation by the Delegated Powers and Regulatory Reform Committee. They provide that the secondary legislation that will set out a police officer’s right to legal representation and appeals under the disciplinary arrangements will be subject to the affirmative procedure on the first exercise of these powers.

Amendments Nos.166Golf to 166Juliet allow the Secretary of State to set out in regulations the persons who can make representations to the Independent Police Complaints Commission on behalf of those who are the subject of an investigation into their conduct.

Amendment No. 166Kilo provides that the new requirements to be placed on a person investigating a complaint, under new paragraphs 19Alpha to 19Delta to be inserted into Schedule 3 to the Police Reform Act 2002, will apply only where the complaint is in respect of a police officer or special constable and not in respect of police staff whose terms and conditions are covered by their contract of employment rather than uniform regulations.

Amendments Nos. 166Lima and 166Mike provide for the definitions of “gross misconduct” and “misconduct” in the police officer disciplinary arrangements to appear in the Police Reform Act 2002 as amended by the Bill and for the “Standards of Professional Behaviour” for police officers and special constables to be set out in regulations. Again these two amendments respond to a recommendation by the Delegated Powers and Regulatory Reform Committee. I beg to move.

I think that this is the first time we have heard the phonetic alphabet used in this House. It ought to be noted and we should congratulate the noble Lord on such use. We have no objection to these amendments.

On Question, amendment agreed to.

166D: Schedule 32, page 297, line 43, at end insert—

“(5A) Subsection (5) does not apply to a statutory instrument containing (whether alone or with other provision) the first rules made under this section after the commencement of paragraph 8 of Schedule 32 to the Criminal Justice and Immigration Act 2008: such an instrument may not be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.””

166E: Schedule 32, page 301, line 49, at end insert—

“(7) Subsection (6) does not apply to a statutory instrument containing (whether alone or with other provision) the first regulations made under this section after the commencement of paragraph 15 of Schedule 32 to the Criminal Justice and Immigration Act 2008: such an instrument may not be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.””

166F: Schedule 32, page 302, line 35, at end insert—

“(5A) Subsection (5) does not apply to a statutory instrument containing (whether alone or with other provision) the first regulations made under this section after the commencement of paragraph 16 of Schedule 32 to the Criminal Justice and Immigration Act 2008: such an instrument may not be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.”

On Question, amendments agreed to.

Schedule 32, as amended, agreed to.

Clause 178 [Investigation of complaints of police misconduct etc.]:

166G: Clause 178, page 128, line 11, leave out “Schedule 3 to”

On Question, amendment agreed to.

Clause 178, as amended, agreed to.

Schedule 33 [Investigation of complaints of police misconduct etc.]:

166H: Schedule 33, page 303, line 31, at end insert—

“The Police Reform Act 2002 (c. 30) has effect subject to the following amendments.

In section 23(2) (regulations) after paragraph (q) insert—

“(r) for enabling representations on behalf of a person to whose conduct an investigation relates to be made to the Commission by a person who is not that person’s legal representative but is of a description specified in the regulations.””

166J: Schedule 33, page 303, line 32, leave out “to the Police Reform Act 2002 (c. 30)”

166K: Schedule 33, page 304, line 1, at end insert—

““Special procedure where investigation relates to police officer or special constable19ZA Paragraphs 19A to 19D apply to investigations of complaints or recordable conduct matters in cases where the person concerned (see paragraph 19A(11)) is a member of a police force or a special constable.”

166L: Schedule 33, page 313, leave out lines 29 and 30 and insert—

““gross misconduct” means a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal;

“misconduct” means a breach of the Standards of Professional Behaviour;”

166M: Schedule 33, page 313, line 36, at end insert—

““the Standards of Professional Behaviour” means the standards so described in, and established by, regulations made by the Secretary of State.””

On Question, amendments agreed to.

Schedule 33, as amended, agreed to.

Clause 179 agreed to.

Clause 180 [Inspection of police authorities]:

166N: Clause 180, leave out Clause 180 and insert the following new Clause—

“Inspection of police authorities

(1) In section 1 of the Local Government Act 1999 (c. 27) (best value authorities)—

(a) in subsection (1), for “subsection (8)” substitute “subsections (7A) and (8)”;(b) in subsection (6)(c) for “subsection (8)” substitute “subsections (7A) or (8)”;(c) after subsection (7) insert—“(7A) A police authority is not a best value authority for the purposes of the following provisions of this Part—

(a) section 10 (inspections);(b) section 24 (Police Act 1996).”(2) In section 54 of the Police Act 1996 (c. 16) (appointment and functions of inspectors of constabulary), for subsection (2A) substitute—

(2A) The inspectors of constabulary may carry out an inspection of, and report to the Secretary of State on, a police authority’s performance of its functions jointly with the Audit Commission for Local Authorities and the NHS in England in respect of police authorities in England or with the Auditor General for Wales in respect of police authorities in Wales.

(2AA) The inspectors of constabulary, acting jointly with the Audit Commission for Local Authorities, and the NHS in England and the Auditor General for Wales shall prepare a document (a “joint inspection programme”) setting out what inspections of police authorities they propose to carry out, and shall consult the Association for Police Authorites in preparing a joint inspection programme.

(2AB) If the Audit Commission for Local Authorities and the NHS in England or the Auditor General for Wales is proposing to carry out an inspection of a police authority and the inspectors of constabulary consider that the proposed inspection would impose an unreasonable burden on that police authority, or would do so if carried out in a particular manner, the inspectors of constabulary shall give a notice to the Audit Commission for local authorities and the NHS in England or the Auditor General for Wales not to carry out the proposed inspection or not to carry it out in that manner.

(2AC) In exercising their function to conduct police authority inspections, the inspectors of constabulary, Audit Commission for local authorities and the NHS in England and Auditor General for Wales shall secure that persons nominated by the Association of Police Authorities will assist in conducting such inspections.””

The noble Baroness said: The aim of this amendment, which stands in my name and that of the noble Baroness, Lady Harris, who unfortunately cannot be present, is to make clear in the Bill the intention that police authorities should be inspected jointly by Her Majesty’s Inspectorate of Constabulary and the Audit Commission. I declare an interest at the outset as a former police authority chairman and a former chair and current president of the Association of Police Authorities.

I very much hope that the Government will accept this amendment because it seeks to achieve much the same outcome as is intended in the Bill; that is, joint inspection of police authorities by Her Majesty’s Inspectorate of Constabulary and the Audit Commission, but in a way which I believe is much clearer. I will speak about other important elements in a moment.

First, I emphasise that I am a strong supporter of the open and transparent inspection of police authorities. Inspection helps to drive improvements in performance and to reassure the public that authorities are doing their job of effectively holding the local police to account. Without an independent check on effectiveness it is all too easy to cast doubt on the value of police authorities. So I completely support the intentions of this clause but I have difficulty with the wording of the Bill. An inexperienced eye might think that it deals only with Her Majesty’s Inspectorate of Constabulary’s inspection of police authorities but I am sure my noble friend will confirm that this is not the intention.

Historically, police authority inspection has been conducted under the Local Government Act 1999, but this Act has been so much amended, and counter-amended, with some elements repealed and others added, that it hardly provides clarity. Indeed, I had great trouble following the various changes made to it in putting forward this amendment, and apologise to the Committee if there are technical errors in the drafting as a result.

On top of this, it is possible to argue that the 1999 Act does not allow for joint inspection at all but delegates all police authority inspection to HMIC. I know my noble friend will say that there is another argument that says it does allow joint inspection. But my point is that this is not clear or completely beyond doubt, and this is before we begin to consider other legislation that affects police authority inspection. This makes for a muddled and confusing landscape. Police authority inspection is important and I argue that we should have wording that puts it on a proper and considered footing, which is what my amendment seeks to do.

The additional elements I have included in this amendment are: a “gatekeeper” role for Her Majesty’s Inspectorate of Constabulary in ensuring that inspections do not place an unreasonable burden on authorities; a peer review element in police authority inspections; and a provision that the Association of Police Authorities should be consulted about inspection programmes. HMIC has already been given a “gatekeeper” role in relation to police authorities, but this is only through secondary legislation passed as a result of the Police and Justice Act 2006. That Act did not in itself deal with police authority inspection and as a result joint inspection of police authorities was not specifically anticipated by it. This amendment ties the “gatekeeper” role directly to police authority inspections conducted jointly with the Audit Commission.

A peer review element to police authority inspections is absolutely essential. I have argued before that neither HMIC nor the Audit Commission has all the requisite knowledge and expertise about police authorities to conduct effective inspections, but that this can be greatly enhanced by the presence of individuals with a police authority background. In the past I have myself contributed to prototype inspections of this sort and know that the inspectors—in this case HMIC—found police authority input extremely helpful. So I was pleased to learn from the Association of Police Authorities that the Government had agreed to a peer review element in the inspection of police authorities. My amendment would simply put that agreement on a statutory footing. It is important to do so to ensure that inspection teams include individuals with the relevant knowledge, expertise and experience about police authorities to ensure that inspection is robust and authoritative.

Finally, as there will be a peer review element to inspections, which will be co-ordinated by the Association of Police Authorities, it is essential that the association is consulted about inspection programmes so that it can ensure that the right people are in the right place at the right time to assist with inspections. I commend the amendment to the Committee. I beg to move.

I apologise to my noble friend for missing the preamble to her remarks. However, I think that I heard the substance of her points in what followed. I declare an interest as a vice-president of both the Association of Police Authorities and the Local Government Association.

My noble friend’s amendment is extremely sensible and I make three points on it. First, it is important to ensure that the inspection regime for police authorities is proportionate to the nature of police authorities. There are far more dissimilarities between police authorities and local authorities than the statute might lead one to believe. I am not always sure that the Audit Commission understands the very different status of police authorities and the fact that many of them operate with very small numbers of staff and very small directly controlled resources as opposed to those which are delegated to the chief officers of police in their area. So the lead role of Her Majesty’s Inspectorate—the “gatekeeper” capacity to which my noble friend referred—is extremely important in ensuring that inspection regimes are proportionate and effective and properly reflect the nature of police authority work.

My second point relates to peer review and my experience of this both in local government and on the one occasion that this was tried in the police authority world. It is a valuable and important procedure in ensuring that the review process is relevant to the authorities concerned and conveys authenticity through being conducted by people with direct first-hand knowledge of the work. For that reason the peer review element of these proposals is particularly important.

Finally, because of the complexities of the legislation, which has been amended over the years by different Acts on a piecemeal basis, it is by no means clear that we will automatically see joint inspection in future. We may well end up with separate inspections or separate processes, which seems to me deeply unhelpful. I believe that the amendment addresses those three points and I therefore hope that in responding the Minister will indicate that between now and later stages of the Bill the Government will look carefully at those issues.

Briefly, one of the most unhelpful things that can happen is that people have to dodge between one Act and another to try to decide what the law is. Anything that can be done to straighten that out regarding the inspections would be very helpful, so that it is clear who the inspections are meant to be carried out by, that it is a joint inspection and that there is no possibility of confusion over that.

Secondly, part of the amendment is that there should be a peer element in the review. The understanding that I have from the Association of Police Authorities is that it was agreed with the Home Office that there would be a peer review element, but that it has not been incorporated. Why was it not incorporated? Why has it been necessary to table the amendment, if that was an agreement? Does the Minister believe that something about the APA’s understanding was not correct? In which case, it would be helpful for us to know about it at this stage.

My noble friend Lady Harris of Richmond added her name to the amendment. She is very sorry that she cannot be here this afternoon to speak to it, and I know that she would like strongly to back up what the noble Baroness, Lady Henig, said. However, the noble Baroness introduced the amendment so eloquently that I do not feel worried that I am able to do no more than say from these Benches that we support the amendment.

I thank my noble friend Lady Henig for her very useful input, which has allowed debate on this point, and I thank my noble friend Lord Harris of Haringey. It always makes one nervous speaking when one has people who have such knowledge of an area bringing up various points. However, before I address the amendment, it might be helpful for me to set out the aims of Clause 180.

To date, there has been no process for the inspection of police authorities beyond the Audit Commission’s review of their financial arrangements and compliance with best value under Part 1 of the Local Government Act 1999. Correspondingly, Section 54(2A) of the Police Act 1996 provides that Her Majesty’s Inspectorate of Constabulary has a role only in the inspection of authorities’ best-value functions.

The Local Government and Public Involvement in Health Act 2007 made changes to the Local Government Act 1999 that allow the Audit Commission to inspect all the functions of a police authority. This provision will amend the Police Act 1996 to give Her Majesty’s Inspectorate of Constabulary parallel powers, enabling a joint inspection process that draws on the professional expertise and knowledge of both those bodies. With related legislative provisions in the Police Act 1996 and the Police and Justice Act 2006, which allow the inspectorate to work jointly with the Audit Commission and to control the overall burden of inspection on police authorities, that will provide the statutory framework for an effective programme of joint inspection.

I recognise that the amendment seeks to consolidate those provisions and to go some way towards specifying how the different bodies will work together in an attempt to clarify the inspection regime. It also introduces a requirement for nominees of the Association of Police Authorities to be involved in conducting police authority inspections. However, that will be better achieved through the joint inspection protocol and methodology that it has been agreed will underpin the programme of inspections. Specifying the details of joint inspection in the legislation reduces flexibility and the ability to take account of the different circumstances in the 43 different police authorities. The joint framework will be drawn up by the Inspectorate of Constabulary and the Audit Commission to provide a clear basis on which to manage the inspection programme. It will be developed with input from the Association of Police Authorities to ensure that it reflects its knowledge and understanding of the work of the authorities.

During the passage of this Bill in another place, the Parliamentary Under-Secretary of State for Crime Reduction, Vernon Coaker, gave a commitment that the inspection process would include an element of peer review by the authorities, as the noble Baroness mentioned. I know that the inspectorate and the commission are ready to explore how best to bring this into the protocol with the Association of Police Authorities. We very much recognise the valuable experience and knowledge that police authorities can bring to the inspection process, but we do not accept that it is right that there should be a legal requirement that they play a part in every case in their inspection. I ask my noble friend Lady Henig to withdraw the amendment.

I have listened carefully to what the Minister said. Perhaps the Government might reflect further on these matters. I hear what has been said about a protocol. While I am all in favour of flexibility, we want to have absolute clarity in the Bill about these arrangements, particularly in relation to joint inspection and peer review. At this point, I will not press my amendment, but if it were possible for the Government to think again about these matters, I would be most grateful.

I have sympathy with what my noble friend is saying. Perhaps we can think about this and have a meeting prior to the Report stage.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 180 agreed to.

Clause 181 [Designation]:

[Amendments Nos. 167 to 170 not moved.]

On Question, Whether Clause 181 shall stand part of the Bill?

The attempt by the Government to create a special immigration status for certain categories of people is a glaring example of the old adage that hard cases make bad law. These clauses are here because of an Afghan airliner that was hijacked to Britain eight years ago by people belonging to a political organisation whose members had been arrested and tortured in Afghanistan. The Court of Appeal set aside the convictions of nine men who were involved in the hijack, and the adjudicators who then considered their applications for asylum decided that they were excluded from the protection of the refugee convention by Article 1F, which applies to a person who has committed a serious non-political offence outside the country of origin. Nevertheless, they could not be sent back to Afghanistan because they face a material risk of torture in the receiving country and are therefore protected from refoulement by Section 6 of the Human Rights Act 1998.

The special immigration status that the Government are proposing here covers the Afghans and a handful of other people who come into the same category. Clause 182 designates these people as “foreign criminals”, even though their convictions have been quashed in the Court of Appeal. It also includes a person who is a “serious criminal” defined by Section 72 of the NIA Act and who is therefore excluded from protection from refoulement by Article 33.2 of the convention. That person must have been convicted of a particularly serious crime for which he was sentenced to at least two years’ imprisonment outside the UK, or of any one of a large number of minor offences and have been sentenced to any period of imprisonment, however short.

As the Minister is no doubt aware, the UNHCR has expressed serious concern over Section 54 of the IAN Act 2006, Section 72 of the NIA Act 2002 and the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004, which prescribes what is called a “low threshold” for excluding a person from being considered as a refugee. Those concerns are shared by, among others, the Refugee Council, the Immigration Law Practitioners’ Association, the Immigration Advisory Service and the Joint Council for the Welfare of Immigrants.

If the SIS designation is under Condition 3 in Section 182(4), it is not clear whether the person would be able to challenge the statutory interpretation of Article 1F of the convention as being inconsistent with our obligations under the convention. That is what the UNHCR suggests. It says, for instance, that to class acts of preparation or instigation of terrorism, whether actual or inchoate, as coming within Article 1FC, and therefore being contrary to the principles and purposes of the United Nations, as in the definition in Section 54 of the NIA Act 2006, results in too broad an application of the principle of exclusion in the absence of any universally accepted legal definition of terrorism.

If the designation is under condition 1 or 2, relying on the provisions of Section 72 of the NIA Act 2002, the UNHCR says that a serious crime means a very grave crime, punishable by a long term of imprisonment. It means something like murder, rape, arson or armed robbery. Therefore, the particularly serious crime referred to in Article 33(2) must be only one of the most heinous offences in those particular categories. The order, by contrast, specifies among the crimes leading to exclusion such comparatively trivial offences as shoplifting. Whereas under Section 72 the applicant was given the chance to rebut the presumption that he was a danger to the community, and if successful could still be granted asylum, under Clause 182(5), that right is taken away from a person to whom special immigration status is applied by the Secretary of State. No matter how conclusive the arguments for deciding that the person has a well-founded fear of persecution, and no matter that her presence here is totally harmless to the community, she is barred forever from becoming a refugee.

We have just received a note from the Anti-Trafficking Legal Project, to which I drew the attention of the Minister who is to reply to this debate. It is a network of legal practitioners who deal with victims of trafficking and other vulnerable people. I will understand if the Minister has not had a chance to give its note full consideration since this morning. The paper it submitted says that where a trafficking victim has been convicted of a document offence, she can still succeed with her asylum claim, but under Part 12 she will be labelled a foreign criminal and will be unable to access the services that are available to promote recovery and rehabilitation of trafficking victims.

My attention was drawn to the particular case of a Nigerian client of the Hammersmith and Fulham Community Law Centre who was a victim of domestic violence in Nigeria, and was deceived into going with her trafficker to work abroad as a domestic worker. She thought this a means of escaping domestic violence. The trafficker got her a passport and a visa, both of which were false. When she was abandoned by the trafficker in the UK after two years of being exploited and abused, she was so terrified that she could not approach the UK authorities. She tried to obtain a job, but when employers asked her to produce identity documents, they detected that these were false. She was arrested, pleaded guilty to charges of using false documents and served a nine-month sentence. As I understand it, if the document was criminal property, within the meaning of Section 340 of the Proceeds of Crime Act, this would be one of the offences dealt with in this particular section. Even though guidance has been issued to the effect that trafficking victims should not be prosecuted for document offences, cases like this arise constantly. Traumatised victims plead guilty without realising that they may have a good defence.

Having committed ourselves to signing the Council of Europe Convention on Human Trafficking by the end of this year, we cannot allow these women to be caught by Section 181. Generally, it is disgraceful that the UK should act contrary to the advice given by UNHCR, which ought to be binding on all signatory states, let alone one that is a member of the executive committee. Narrowing the discretion which ought to be exercised by officers in determining asylum applications, when they ought to consider all the circumstances, sets an extremely bad example to all other convention signatories and runs the risk of setting off an auction among them to expand even further the areas of conduct that their domestic laws say are covered by Articles 1F and 33(2).

We now have the benefit of advice from the JCHR. I am glad to see the noble Lord, Lord Judd, in his place because he is a distinguished member of that committee. It welcomes the Government’s agreement that the Secretary of State could not lawfully designate a person if a court decides that the effect of doing so would be to breach the UK’s obligations under the convention. I ask the noble Lord how that is to be tested. Presumably a person could challenge the statutory interpretation of Article 1F, which the JCHR now demands should be repealed. If he is said to be a foreign criminal under condition 2 of Section 182(3), would he be able to get to a court by claiming that the Secretary of State had wrongfully certified that the offence he had committed outside the United Kingdom was similar to one on the specified list? Since no right of appeal is provided against Section 181 designation anywhere else in Part 12, a claim that the UK’s obligations were likely to be breached would have to be by way of judicial review, there being no ordinary right of appeal against designation in these clauses.

The Minister wrote to me after Second Reading with some comments on the designation of spouses and children, which he said was a matter of convenience, so that contact is maintained with the family. I am glad to accept his assurance that both designated persons and their dependants will have access to the full range of health services and that children, as designated persons, will have the same right to education as natives. However, the Minister confirms that these people are not going to be entitled to local authority housing or social security, and that their support will be the responsibility of the Border and Immigration Agency, presumably through NASS. They will not be allowed to work, so the family will have to rely on the taxpayer to support them indefinitely. In the case of the Afghans, that has been for eight years so far, entirely at subsistence level. The Minister says that there is nothing to stop spouses applying for asylum in their own right and, presumably, adding the children to those applications. The experience of the wives of the Afghan hijackers tells a completely different story.

Mrs X—whose Home Office reference, if the Minister wants to look it up, is S1040623—arrived on the Afghan-hijacked plane with her husband and lodged a separate claim for asylum shortly afterwards. After eight years of waiting for a decision, she has applied for a judicial review of the delay and that application has been granted by the High Court. There is no date for the hearing because there is a backlog in dealing with judicial review applications generally. Mrs X also made an application for indefinite leave to remain, a concession that is normally granted to families who have been in the UK for more than three years. That was refused on the grounds that she is a family member of someone who is excluded from the refugee convention, although her husband is not and has never been a dependant on her asylum claim. Mrs X had four children, three of whom are UK born.

Mrs Y also came on the hijacked plane, but married Mr Y, one of the nine hijackers, in 2002, after arrival. A hearing of her application for judicial review of the Home Office refusal to grant her indefinite leave to remain was scheduled for 17 March, but the Home Office is now attempting to settle this claim. Mrs Y won her asylum appeal in June 2005, more than five years after her arrival. The Home Office case notes, which have now been disclosed to her solicitors, the Hammersmith law centre, show that the Home Office recognised that she had a right to ILR, but the solicitors had to apply for judicial review after her application had been with the BIA for over a year. By then, the policy had changed and refugees were to be granted only five years’ leave to remain. However, the JR application was continued and the Secretary of State now wants to grant Mrs X ILR outside the rules. Her solicitor’s argument is that she must get ILR as a refugee, as that was her entitlement at the time of the application. The case notes show that all the BIA thinking had been wrongfully related to her husband’s case—so much for the Minister’s assertion that anyone who is not the principal designated person can apply separately for the right to asylum or ILR.

Those examples show that, although there may be nothing to stop family members applying in their own right, their treatment will be grossly inferior to that of ordinary applicants, over half of whom receive an initial decision on their claim within two months. On the Minister’s assertion in his letter of 30 January that it would be anomalous for dependants who apply for leave in line to emerge from the process with a more favourable status than the applicant, because in other cases they are granted the same leave to enter or remain under paragraph 349 of the Immigration Rules, that provision refers to an applicant who has been given leave to enter or remain, whereas here we are dealing with the families of people who are explicitly denied leave to enter or remain under Section 183(1). I see no reason why blameless wives and children should be consigned permanently to the edge of destitution, with onerous reporting conditions, whatever the faults of the main applicant may have been.

Part 12 is unnecessary, as the Law Society has said, because there are perfectly good provisions in the existing law to grant a person who is not removable for human rights reasons a renewable six-months’ discretionary leave to remain. It is an additional complication which runs contrary to the promises of simplifying immigration law and practice but, far worse, these clauses are based on misinterpretations of the UN Convention on Refugees, to which the Government’s attention has been drawn by the UNHCR—the guardian of the convention. They exclude a small number of persons, most of whom are wives and children, from protection, sentencing them indefinitely to a life of penury with no hope of betterment or of ever being able to support themselves for as long as they remain in the United Kingdom. All this to fulfil the threats made by the former Home Secretary, Jack Straw, against people who had been driven to desperation by the Taliban. I beg to move.

The noble Lord, Lord Avebury, has spoken with his customary passion and eloquence in opposing the proposed new immigration status created by the clauses which currently form Part 12 of the Bill. Notwithstanding that, I am sure he will not be surprised to hear that he has not won me over, although he raises some very interesting and important points. I have a fulsome response, as I think that this is a very important area to address and talk through.

As your Lordships are aware, these provisions are being introduced in response to a ruling by the High Court in 2006—subsequently confirmed by the Court of Appeal—in relation to the men who seized control of an aircraft on an internal flight in Afghanistan in early 2000 and forced the pilot to fly to Stansted.

The High Court and the Court of Appeal ruled that, as these men had won their appeals against the decision to refuse them leave to enter the United Kingdom, it was not open to the Government to leave them on a “temporary admission” because under Schedule 2 to the Immigration Act 1971 temporary admission is not intended to be used in those circumstances. In giving judgment, the Court of Appeal commented that, if the Secretary of State wanted to be able to withhold immigration leave, it was open to him—as was then the case—to legislate to that effect. The then Home Secretary announced his intention to do so, and here we now are. That intention translates into eight clauses covering some four and a half pages, but the basic premise is fairly simple and is at the heart of the discussion on these clauses.

At issue is what immigration status should be accorded to an individual whose actions are such as to warrant his deportation from the UK but who cannot be removed because to do so would be contrary to our obligations under the ECHR. At present, following the ruling by the Court of Appeal, the practice is to grant short periods of leave—usually for six months at a time. At the end of the period granted, the person has to apply for further leave, his position is reviewed and, if it is still not possible to remove him, there is no option but to grant an extension of that leave.

I remind the Committee that we are talking here about people with no entitlement to remain beyond the fact that they cannot lawfully be removed. They are here not because they qualify to remain here under the Immigration Rules; they are here by default. As I say, at present there is no alternative but to grant them leave of some sort, and the practice is to grant short, time-limited periods of leave. It would be possible to grant longer periods, or even indefinite leave, but to do so would effectively be to reward bad behaviour. However, at present even the short periods of limited leave granted carry with them certain benefits, such as access to employment and to the mainstream benefits system. The result is that the group in question enjoy the advantages of an immigration leave to which they have no entitlement beyond the fact that, at present, there is no alternative. The right to work, in particular, represents a financial advantage to them. It also allows them to establish roots in the UK which may make it much harder to deport them if and when the original barrier to removal has been overcome.

I take it from the fact that the noble Lord is seeking to delete Part 12 that he is content that that should continue to be the case; namely, that we should be compelled to grant leave. I am not seeking to put words into the noble Lord’s mouth but the logic of his position is that, no matter what a foreign national may have done, if his removal would be contrary to the ECHR, he has to be granted leave to remain. That may be the position of the noble Lord but it is not one that the Government consider appropriate. We believe that immigration leave is valuable and that people should get it only if they are entitled to it. It should not be the default option.

The Government do not accept that we should be forced to grant immigration leave to someone whom—for good, objective reasons—we do not want in the country at all. That is the argument in a nutshell. Should the Government be compelled to grant immigration leave to those people who are liable to be deported because of their actions but who cannot be deported because their removal would breach their human rights?

This is not in any way to suggest that those rights are not important. They are; they are fundamental. Even so, there are limits to what is required, and it is perfectly legitimate to ask whether we should be forced to grant immigration leave to a person who is liable to deportation because of his conduct simply because he would face torture or ill-treatment in his country of origin and there is no other country to which he can be sent. We consider that in those circumstances it is sufficient not to remove the person concerned, but there is no need to go beyond that and to take the additional step of conferring immigration leave.

We could discuss where to draw the line. I believe that the Bill draws it in the right place; others may disagree. However, the fundamental point is, in my view, sound: there are some people who do not qualify for leave to enter or remain under the Immigration Rules and who, because of their actions, simply do not deserve to be given it. We are therefore creating a new statutory category to accommodate them.

Even if the designated person cannot be removed at the moment, removal remains the ultimate objective, and I see no justification for allowing the sort of people for whom special immigration status is intended to enjoy the benefits of immigration leave in the mean time. The future removal of the individuals concerned is a key factor. The purpose of the conditions that can be imposed is to help to maintain contact and to prevent them establishing roots in the UK which will make their eventual removal much more difficult.

It may be helpful if I remind the Committee to whom the new status is intended to apply. Clause 181 creates the power to designate foreign criminals who are liable to deportation but who cannot be removed due to a human rights barrier. This power also applies to members of a foreign criminal’s immediate family—that is, their spouse or civil partner and any minor dependent children—and I should like to take a moment to explain the reason for this.

The reason—and the only reason—that the Bill provides for family members to be designated is to deal with the situation where an individual applies for leave under the Immigration Acts and his or her family members apply for leave “in line”. In effect, they are saying, “My application for leave to enter or remain stands or falls with his or hers. Treat me in the same way”. In those circumstances, it would be illogical for someone whose application for leave to remain rides on the coat-tails of another to end up in a better position than the person wearing the coat.

As a matter of policy, at present the Border and Immigration Agency does not grant someone who applies in line leave that is more favourable than the leave given to the principal applicant. However, unless the Bill provides for family members to be designated, that policy will be breached once the provisions in this part come into force and someone who is a principal applicant is designated. That is the only reason we have extended the provision beyond the “foreign criminal” himself or herself. I repeat the assurance given by the Minister in Committee in another place, that we will not designate family members unless we designate the main applicant. I repeat also that there is nothing to prevent family members applying for and being granted leave in their own right either before they are designated or after they have been designated.

Clause 182 defines the term “foreign criminal” for the purposes of Part 12. It includes any foreign national who has received a custodial sentence of two years or longer for any offence, or a custodial sentence of any length for one of the offences listed in the 2004 order made under Section 72 of the Nationality, Immigration and Asylum Act 2002, or who is excluded from refugee status by Article 1F of the 1951 refugee convention.

As I have just explained, for technical reasons, special immigration status will also apply to the family members of such persons where they have applied for leave “in line”, but in all cases it will apply only where the foreign criminal cannot be deported for human rights reasons. Designation will not apply to British citizens, who of course cannot be deported; to recognised refugees; or to persons exercising rights under the European Community treaties.

I am aware that concern has been expressed by some commentators about the fact that exclusion under Article 1F of the refugee convention is a condition which can result in designation. They take the view that if we are going to take the serious step of refusing to grant immigration leave, we should do so only in cases where the person’s wrongdoing has been established beyond reasonable doubt. The Government do not agree. To take such an approach is to apply the wrong test and to treat special immigration status as essentially a criminal justice measure. As the name suggests, special immigration status is an immigration provision that is intended to be used in cases where the person is liable to deportation but cannot be removed from the United Kingdom for human rights reasons.

I remind your Lordships of the exact wording of Article 1F, which states that the provisions of the convention,

“shall not apply to any person with respect to whom there are serious reasons for considering that:

“(a) he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

“(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

“(c) he has been guilty of acts contrary to the purposes and principles of the United Nations”.

Where there are serious reasons for considering that a person has acted in a way that would result in his exclusion from the refugee convention, there are, in my view, proper grounds for considering that their deportation would be “conducive to the public good”, which is—as I am sure I do not need to remind the Committee—the test which applies when taking deportation decisions under Section 3(5)(a) of the Immigration Act 1971. So the sort of person we are dealing with is someone whose actions are, on the face of it, sufficiently serious to warrant deportation, but who cannot actually be removed for human rights reasons. The position at present is that if we are unable to remove such a person, we find ourselves constrained to grant them immigration leave and, with that, access to the benefits that flow from having such leave.

In my view, if there are serious reasons for considering that a person has acted in a way that leads to their exclusion from the refugee convention, which means they are denied the protection of the international community, that is just as strong a ground for deportation as a criminal conviction of the kind described in the other two conditions in this clause. It follows that we consider the case for their designation is equally strong. The Government’s position is that where such people can be deported, they should be deported, and where they cannot be removed for human rights reasons, it should be possible to designate them under this part of the Bill. As Clause 183 makes clear, a designated person does not have leave to enter or remain in the United Kingdom, although he will not be regarded as being here in breach of the immigration laws.

Clause 184 makes it possible to impose conditions as to residence, employment, occupation and reporting. The designated person may also be required to comply with electronic monitoring. Failure to comply with these conditions without reasonable excuse will be a criminal offence. Pending the coming into force of the relevant provision in the Criminal Justice Act 2003, a person who commits such an offence is liable to a fine of up to £5,000 or to imprisonment for up to six months. As and when that provision comes into force, the maximum custodial sentence which the court can impose will increase to 51 weeks in England and Wales.

The noble Lord, Lord Avebury, mentioned trafficking. The SIS is not designed to catch trafficked women; it is designed to enable us to deny immigration leave to individuals who do not deserve it. As I said, designation is discretionary, not mandatory, and so does not have to be used in the case of someone who has been trafficked even if they have been prosecuted and received a custodial sentence for one of the offences listed in the 2004 order, and if the person wishes to challenge their designation as unreasonable, they can do so by way of judicial review.

I am also aware of the concerns of the UNHCR about Section 54 of the Immigration, Asylum and Nationality Act 2006. It expressed its concerns at the time of the 2006 Act. Our position then—and our position now—was that Section 54 was essentially declaratory and that the construction set out in that section and accepted by Parliament in passing the provision had always applied. If UNHCR is concerned that people are being excluded from the protection of the refugee convention when they should not be, the appropriate response is to challenge the decision to exclude, not to say that people who have been correctly excluded should nevertheless be granted immigration leave.

In view of the misleading comparisons that have been drawn between designation and control orders, I should like to make it clear that, as with the corresponding conditions which apply when a person is granted temporary admission, a requirement about residence will mean a designated person has to live at a particular address. It is not a curfew. It does not mean that he has to stay in the house between set hours; it is just so that one knows where he lives.

The intention is that a designated person will not be able to take employment. Clause 185 of the Bill therefore provides for a designated person to be supported and accommodated by the Secretary of State if he is, or is likely to become, destitute, and Clause 186 makes supplemental provision regarding support. Support may be provided in the form of accommodation adequate to the person’s needs, support for essential living needs and in any other ways which the Secretary of State thinks necessary to reflect the exceptional circumstances of a particular case. Support may not be provided wholly or mainly in cash. Therefore, it will generally be provided in the form of vouchers.

Clause 187 specifies that designation will come to an end if the person concerned is granted leave to enter or remain; if he is notified that he has a right of residence under the Community treaties; if he leaves the UK voluntarily; or if a deportation order is made.

Finally, Clause 188 defines some of the terms used in Part 12. Special immigration status is a new status. We do not expect it to apply to very many people—we estimate about 50 initially. However, we strongly believe that such a status is a necessary alternative to granting immigration leave in the specific circumstances I have outlined. I therefore ask the noble Lord to withdraw his amendment.

I would be interested to know whether the 50 people to whom the noble Lord referred include the Afghan hijackers. It seems—according to the Explanatory Notes, with which we have been served—that it is concern about them that has raised the special immigration status. I declare an interest as having defended one of the Afghan hijackers. He was the only one to be acquitted in the first trial that took place.

There were 12 defendants but only one was acquitted, and he was represented by me. Much more intellectual members of the Bar defended the rest and got them off on appeal. My point is that the defendants were escaping from the Taliban. We are at war with the Taliban. The defendants were professional people with no record of criminality in their home country who took steps to escape from a regime which they believed had rumbled their attempts to set up an opposition party against the Taliban.

If one went back to a time prior to the Second World War and suggested that the refugees who came to this country fleeing the Nazis—with whom we later went to war—should have special immigration status, there would have been uproar. We would never have heard the end of it, and rightly so. To condemn people in the position of the Afghan escapees to the restrictions of the proposed order is unjust and unfair. I wait to hear whether the Minister can assure me that the 50 people he thinks will be subject to this order will not include those who were acquitted in the courts of this country and who were escaping from our own enemies.

I am delighted for the noble Lord; I now know where to go for legal assistance if I ever get into trouble. Between that and the success of the Welsh rugby team, it has been a good day for him.

The provision makes no difference at all to refugee status. The Jewish refugees coming before the Second World War would still have had refugee status; the same would apply today. I was hoping to have received a specific answer from the Box on whether the Afghanis would be excluded under this but I have not had one yet. Perhaps I can take that away and get back to the noble Lord before Report.

The Minister has ranged over amendments that are not in this group. I wanted to say a few words on Amendment No. 171, which I assume that the noble Lord, Lord Avebury, will no longer wish to move. Perhaps I may do so now.

The principle of non-refoulement is not respected everywhere but it is respected in this country, and I am sure we all accept that the only exceptions should be those who have been convicted of a particularly serious crime. However, Section 72 of the NIA 2002 Act sets a conviction of two years’ imprisonment as a benchmark. The related specification of particularly serious crimes order specifies crimes such as shoplifting, graffiti and even road traffic offences, regardless of the duration of the sentence. Why are we permitting such a low threshold for the return of someone who may be a genuine refugee, as we have already heard?

On Clause 181(4), Section 54 of the IAN 2006 Act again broadens the interpretation of the convention by redefining Article 1F(c)—which, as the Minister said, refers to persons,

“guilty of acts contrary to the purposes and principles of the United Nations”.

As he acknowledges, the UNHCR is concerned about this. It has been throughout the passage of these Acts. It questions, as I do, whether it is appropriate to designate persons excluded under Article 1F as foreign criminals. The Minister has covered those points, but I do not think that he will have satisfied the United Nations refugee agency.

I shall not go back over all those points, but I reaffirm that refugees will still have refugee status. Normal procedure will apply for refugees.

I note that paragraph 94 of the Explanatory Notes, under the heading “Special Immigration Status”, states:

“Part 12 gives effect to the Home Secretary’s commitment to legislate to deny leave to enter or remain to certain foreign nationals who can not be removed from the UK compatibly with the United Kingdom’s obligations under the European Convention on Human Rights. The commitment was made following the judgment of the Court of Appeal in S and others vs Secretary of State for the Home Department in August 2006”.

That was the case of the Afghan refugees. I ask again: does the 50 include them? From the Explanatory Notes, it looks as though it most certainly does. If so, it is a disgrace. It is a disgrace to create a special immigration status, with all the restrictions that the orders will impose, as a result of a court decision relating to these poor people who fled the Taliban.

It certainly is a disgrace. I can see that the Minister has no reply to that allegation. He repeated twice that there was no difference in refugee status, but that is factually incorrect. The difference in refugee status is caused by the statutory interpretation by the Government of Articles 1F and 33(2) of the convention. Those points have been taken up by the UNHCR, and I am also glad to have the support of the noble Earl, Lord Sandwich, as well as my noble friend Lord Thomas. The Government have deliberately ignored the advice that was given to them by the UNHCR that each case should be determined on its own merits, which means that it is always ultimately a matter for the courts to interpret Article 1F. At least, it should be for the courts to determine how the provisions of the refugee convention are interpreted, instead of these provisions being laid down in statute, which places greater restrictions on refugees than the UNHCR considered to be warranted.

These cases are entirely about the Afghans and the fulfilment of threats made originally by the Home Secretary immediately after the plane landed that he would see them off and return them to their own country. When he found that that was impossible because of the decision in the Court of Appeal, the Government decided that they would make life as difficult as possible for them by the enactment of these clauses, which, as the noble Lord has confirmed, are totally unnecessary, because they apply to a mere handful of people who were formerly dealt with, as he said, by the granting of short periods of leave to remain—six months at a time—with no option but to be renewed for as long as he could not get rid of them. What are we to do with these people? Will they remain here indefinitely with no tariff, as it were, under this special regime where they are kept in NASS-like conditions, inferior accommodation and with support that is less than that received by someone on social security, and with all that that implies not only for the persons involved but for their spouses and children?

The noble Lord reiterates what was said in the Minister’s letter, which was that the spouses and children could apply for asylum in their own right, but I have already told him what happened in the two cases that we know about. To reinforce the point, I shall give the Minister another example. Mrs Z arrived in the United Kingdom in 2005, having been married to one of the hijackers before he left Afghanistan in 2000. She and the two children with her claimed asylum in their own right in June 2005. Although they have been interviewed, they have received no decision on their claim. There is also a UK-born daughter in the family.

The Minister is totally inaccurate in saying that it is open to anybody who is a dependant of one of those people to apply for asylum in their own right. We see what happens; they are kept indefinitely on the hook. No solution has been made in any of the three cases that have come to my attention where spouses have done what the Minister advised. The appropriate response is not for the UNHCR to challenge the decision to exclude, as suggested by the noble Lord. The UNHCR does not intervene in individual cases and, as far as I can see, the only way in which the decision to designate under these clauses could be challenged is by judicial review. There is no right of appeal, which is one of the most obnoxious features of the whole system. However, we shall obviously not win this argument this evening, so I shall come back to it on Report.

Clause 181 agreed to.

Clause 182 [“Foreign criminal”]:

[Amendment No. 171 not moved.]

Clause 182 agreed to.

Clause 183 agreed to.

Clause 184 [Conditions]:

[Amendment No. 172 not moved.]

Clause 184 agreed to.

Clauses 185 to 188 agreed to.

Clause 189 [Amendment of section 127 of the Criminal Justice and Public Order Act 1994]:

173: Clause 189, page 134, line 5, leave out from “officer” to end of line 6

The noble Lord said: I speak to the amendments in my name on the Marshalled List. I assume that they will be taken together, as they are of a piece. I begin by repeating my previously declared interests of past associations with the Prison Officers Association, all of which were honourable and constructive.

My approach in these matters is very much guided by the manner in which the Bill has progressed so far. A convention that grew up some years ago has been followed sensibly: the Committee stage is invariably used by colleagues to propose amendments but not necessarily to press them, which provides the Government with an opportunity to reflect on what has been said. My amendments are perfectly clear and simple. They would remove unnecessary words that could be inflammatory and counterproductive.

The interests here are clear and stark. Differences emerged from the past and caused the Government to propose the amendments that were passed in another place. I remind the Committee of the manner in which this was done. Under Section 127 of the Criminal Justice and Public Order Act 1994, these words appeared:

“A person contravenes this subsection if he induces a prison officer—

(a) to withhold his services as such an officer; or

(b) to commit a breach of discipline”.

That is quite clear. Whether it is acceptable is another matter, but that was the situation. Along came the form of words to which the prison officers take exception and on which I plead for the Government to reflect. The POA has not consented to the words that appear in the Bill. I ask the Minister to listen carefully to the words used in another place by David Anderson MP, who said:

“In the view of the prison officers and many Labour Members, however, the wording of the second part of new clause 36(3) is actually a road block. The reference to ‘any other action likely to affect the normal working of a prison’ would be a catch-all, whereby people would be guilty of a criminal offence for any simple thing, if such action is defined by the management”.—[Official Report, Commons, 9/1/08; col. 332.]

The Government must justify those additional words, as I hope the Minister will when he replies to this debate. Industrial action is capable of interpretation and misinterpretation, but there are contexts in which it has been defined. I ask the Minister to look at them carefully. There is no definition of “normal working”, so the Minister owes it to the Committee and the POA to go a bit further in this debate than previously.

The POA has not consented to the new form of words. I ask the Minister to take careful note of three matters. Industrial relations history is quite clear and understood on this. Hitherto, it had rested on discussion, negotiation and agreement in which certain aspects were brought to light. First, in a memorandum of agreement, all aspects of the memorandum had been separated out. There was no dubiety or ground for misinterpretation. Secondly, there was an understanding that all aspects of the agreement would be adhered to by both sides. The Minister will be well aware that this is the bone of contention. Thirdly, neither the Prison Service nor the Government have adhered to the agreement. The POA then gave notice to terminate the agreement.

The problem with the amendment to the agreement in the Bill as it stands is that it goes beyond what is currently considered as industrial action. I ask the Minister to listen carefully to what the noble and learned Lord, Lord Hoffmann, said when dealing with this matter in respect of agreements that had been previously pronounced on by Lord Denning, in Burgess and others v Stevedoring Services Limited in 2002:

“It seems clear from the examples which he gave that he had in mind that employees may legitimately perform their duties in a way which does not suit the employer (like keeping a train waiting while they check the engine) if they have a bona fide reason but not if their purpose is to be wilfully obstructive. But that does not mean that they are in breach for refusing to do things altogether outside their contractual obligations (like going to work on a Sunday) merely because they do not have a bona fide reason for refusal”.

The Minister and his colleagues are spatchcocking into legislation a form of words that I have heard described as “belt and braces”, in that they want not merely to deal with the action of strikes or industrial action as we have known it before, but to tighten every screw.

If the Government are intent on curtailing the human and trade union rights of prison officers in both the private and public sectors, they have a duty to ensure that compensatory mechanisms are put in place that are acceptable to both management and staff alike. A deal was done, which refers to the recommendation of the PRB. Having seen that agreement, the Government said that they were acting on,

“overriding economic considerations in the national interest”.—[Official Report, Commons, 7/1/08; col. 52.]

That was a decision, a form of words and an action by the Government arbitrarily imposed on a previously agreed formula that would have maintained industrial peace in the Prison Service. I simply ask the Government why that was felt necessary. The Government are entitled to come to a view arbitrarily to abrogate the agreement, but amendments later this evening may well have a bearing on the manner in which these things are dealt with in future.

On 7 January, the Secretary of State for Justice, Mr Jack Straw, said that the Government,

“will always be minded to accept the recommendations of pay review bodies, except where there are overriding economic considerations in the national interest”.—[Official Report, Commons, 7/1/08; col. 52.]

That was an arbitrary action, which the POA and I consider to have led to the present difficult situation. I am told by the POA that as a result of the action taken—the staging—the highest-paid uniformed staff, the principal officers, have lost £182 since April 2007 and the lowest-paid operational support grades have lost £3 per week or £150 per year. Those are not enormous losses, but they are seen by those who suffer them as deleterious and unnecessary.

It is my job to remind the Minister of what he knows, which is that this issue does not just relate to the POA. It can spread to other trades unions. He will be aware that when introducing the TUC report Six Million Pay Cuts, Brendan Barber, the general secretary of the TUC, said that,

“the arguments for this draconian policy simply do not stand up. Public sector pay does not cause inflation and holding it back does nothing to fight inflation caused elsewhere. Its only economic impact is on the living standards of public servants”.

I know that the Minister will quote in aid, as he is entitled to do, the actions that took place on 29 August last year. I simply remind him and the Committee that the prison officers took action as a result of their justifiable anger at the previous actions of the Government. I also remind the Committee that, while that industrial action was taking place, the staff did not simply leave work and go home but remained at the prison en masse. I have visited many prisons in my time and they are a closed estate. The prison officers remained within it and were available. The present policy is—to use another cliché—to use a sledgehammer to crack a nut when it comes to industrial relations within the Prison Service by proposing legislation even more draconian than that proposed by a previous Conservative Government.

The basis for aggravation is contained in gratuitously spatchcocking in a new definition of industrial action. I remind the Government that this subsection is potentially capable of being abused and misused not merely by this Government but by others when trying to deal with peace in the Prison Service. The Minister and his colleagues must understand that in a closed estate, such as a prison, this applies not only to the coverage of the current provisions but encompasses anyone who can affect the normal working of a prison. Doctors, nurses, admin staff, non-operative staff, contractors, physiologists, members of independent monitoring boards, magistrates, solicitors, court staff and external catering staff can all be affected by the interpretation of the term,

“the normal working of a prison”.

The previous agreement rested on the mistaken belief that the Government and the Prison Service management board would provide a fair playing field on which disputes would be settled without the need to resort to industrial action and that the recommendations of the Prison Service Pay Review Body would be binding. The amendment would remove a matter causing great, explosive anger inside prisons and, more widely, its acceptance would be seen as a gesture by the Government showing that they are listening to the concerns of prison officers. The offending words serve no purpose whatever. They could be removed without any effect on the policy of the Government on the Prison Service.

We all know that the situation in prisons is such that the words “explosive”, “dynamite” and “mayhem” come readily to mind. Prison officers are as much prisoners inside a prison as the prisoners. They do a dirty, dangerous and difficult job. The Minister should be left in no doubt that they are angry and dismayed at this action by a Labour Government on a trade union at this time. I very much hope that the Government will be able to say something tonight that will give the POA hope that discussions, not in Europe or anywhere else, but here in Parliament can resolve this matter. I do not expect it to be resolved across the Chamber this evening, but I hope that the Minister and his colleagues will have other opportunities for good sense to prevail before 8 May when certain actions immediately follow. I beg to move.

I am sure it was far better for industrial relations between prison officers and the Government to be governed by an agreement as opposed to the way in which things happened previously. Now that the agreement is coming to an end and there is some controversy about it, there is something distasteful about the Government ratcheting up their bargaining position and weakening that of the Prison Officers’ Association. The noble Lord, Lord Graham, does not seek to remove this clause altogether and accepts that withholding services as a prison officer is an appropriate matter for the Bill. What he does object to are the words,

“any other action likely to affect the normal working of a prison”.

The justification the Government have advanced for including a probation against withholding services as a prison officer—striking—is that they are concerned about the welfare of the prisoners. I have two questions for the Minister. First, in what way would the welfare of the prisoners be at risk if the words that the noble Lord, Lord Graham, wishes to be excluded were excluded? What effect would that have? Secondly, why is it necessary to have a negative resolution to suspend or revive the operation of Section 127 and why would it not be better, rather less distasteful and impose less pressure on the Prison Officers’ Association to accept the noble Lord’s amendment that Section 127 should not be brought into effect unless there was an affirmative resolution of both Houses? That seems to be a fair way of dealing with the matter.

I appreciate that strike action in a prison is very dangerous, but I can confirm the assertion made by the noble Lord, Lord Graham, that prison officers collectively remained in the vicinity of the prisons at the time of the strike action two or three years ago because I happened to be present at a prison in Liverpool. The prison officers gathered in the forecourt of the prison and remained there just in case there were any problems that required their intervention. The noble Lord seems to have proposed a formula that accepts the necessity to ban strike action but questions why anything further should be banned. I agree that the legislation should not be pushed through simply to weaken the bargaining position of prison officers.

I was somewhat concerned to hear from the noble Lord, Lord Graham, that the wording in subsection (3)(1A),

“any other action likely to affect the normal working of a prison,”

might include those who work in the courts. That is an extremely broad use of words. What does the Minister think is intended to be covered by the words objected to by the noble Lord, Lord Graham? If his interpretation is conceivable, the Minister might consider whether those words are not far too broad.

I was very interested in all that the noble Lord, Lord Graham, had to say and, if I may say so, the restraint with which he expressed those views. My experience in this area is that there is too much confrontation between the sides and not enough conciliation and reasoned talking.

It always seemed to me that one of the big problems in the Prison Service was that there was not a full understanding of the fact that everything will not be right for prisoners unless things are right for staff. I remember writing as the subtitle of a report on one prison, “A Staff Neglected”, because the staff needs had been neglected so much that it made it almost impossible for them to carry out their task.

I realise that the amendment being discussed is not the one to come later, which refers to the question which gave rise to the action in August on the staging of a pay rise. I remember being extremely angry when that happened in the Army, because the staging did not just mean that people did not get their full pay, but that people who left in the first part of the year did not get the second part of the rise. It also affected pensions—again, not by a huge amount—but by an amount which, to my mind, amounted almost to dishonesty.

Recently, the problems faced by the Armed Forces have been expanded into something which I never heard of during my service, which is a so-called covenant between the Armed Forces and government. There is a definite feeling that that covenant, whatever it is, has been broken by the fact that the Government have appeared not to be supporting the Armed Forces in the way that they might.

I believe that, on the basis of that, the Prison Officers’ Association feels that the covenant between it, the Government and the Prison Service has been broken. It seems to me that it has been broken in an entirely avoidable way. I therefore very much hope that the Government will listen to the wise words of the noble Lord, Lord Graham, and not take precipitate action now but think very carefully about what he said and think through the meaning of the phrases that he has questioned, so that precipitate action on 8 May can be avoided. Such action would be unfortunate but, for the long term, it is hugely important that the relationship between the Prison Officers’ Association, the Prison Service and the Government must be a covenant felt to be fair by all sides.

It is a great honour to respond to my noble friend Lord Graham. He is right that Committee is an opportunity to probe and reflect. I assure him that neither I nor the Government have any intention to inflame the situation. I have a great deal of respect for both the Prison Service as a whole and for individual prison officers. In your Lordships' House, I have paid tribute to the staff on a number of occasions, and acknowledged what I consider to be a great deal of improvements that have been made during the past few years, which is testimony to the dedication of the staff who work within our Prison Service.

I agree with the noble Lord, Lord Ramsbotham, that we must not adopt a confrontational approach. I agree when he implies that the more that staff feel ownership of the direction of the service, the more likely it is that they will co-operate. I agree with all those things but—I say to the noble Lord, Lord Thomas of Gresford, that I will come to the issue of welfare—ultimately, we have to ensure the safety of our prisons. That is why the clause is in the Bill. We face a very serious situation and we need to have the safeguards in the Bill.

The issue goes back to the Government's decision to stage public sector pay awards. A decision to stage awards is one not to be taken lightly. It was a difficult decision, but it was in line with our wider economic policy and applied to recommendations from all pay review bodies other than those governing the Armed Forces.

It is also worth me saying that since its inception, the pay review body has recommended significant increases in prison officer pay. In the past three years, an extra £24 million has been invested in pay, over and above the evidence submitted to the pay review body by the Prison Service. We believe that public sector rates of pay to prison officers remain above the competitive market rate within the custodial services sector. This position has been enhanced further by the significant shortening of pay scales, which means that prison officers now reach the maximum of their pay scale—currently, £27,530 plus up to an additional £4,250 in local pay allowance—in only seven years. Also, on the 2008 pay award, the pay review body recommendations have been accepted in full.

I do not underestimate in any way the pressures on our staff in the Prison Service. Of course it is important that they are given every consideration. However, it is inescapable that the strike action on 29 August, on which virtually no notice was given, had an immense impact on the operation of the Prison Service. Not only did it raise issues to do with the welfare of prisoners, it also led to the cancellation of court appearances, transfers of prisoners and the extended use of police cells to accommodate those prisoners who could not be received into prison in the evening of that industrial action.

I say to my noble friend Lord Graham, who spoke with great experience and passion, that of course the Government hope to be able, through discussion—the Ed Sweeney talks, as they have become known—to bring about a way forward. It is a difficult process, but all parties are persevering with the talks at the moment.

At a special delegate conference on 19 February, the Prison Officers’ Association passed a motion that instructs that any further agreement must not constitute a no-strike agreement. It is very unlikely that an agreement that includes protections against industrial action would be reached before the current agreement expires on 8 May 2008. Even if this is not achieved, it is in the interests of all parties that agreement is reached on a new dispute-resolution process. Yes, we are anxious to ensure that these discussions have a productive outcome, but at the same time we must have the safety of what is in the Bill to ensure that the welfare and safety of prisoners are maintained from 8 May onwards.

My noble friend’s amendment would restrict the definition of industrial action to withholding services as a prison officer, whereas, as noble Lords have pointed out, the current wider definition of industrial action in the Bill has been subject to considerable discussion. My right honourable friend the Justice Secretary agreed to consider the wording of that definition in the other place, but as it is highly unlikely that the Prison Officers’ Association will sign up to any voluntary agreement that includes a no-strike clause, we do not feel able to move away from the current drafting.

The noble Lord, Lord Thomas of Gresford, asked about the justification for the relationship between the clause and the welfare of prisoners as well as of staff and the wider public. Our view is that the effect of action short of a strike could be immediate and far-reaching. It might disrupt the provision of the most fundamental amenities, such as food and medication, for the prisoners in our care. It might undermine the wider operation of the criminal justice system, in which the timely and efficient transfer of prisoners to and from courts is essential. It might also compromise the work of third-party providers, including the NHS and education services, which we rely on to deliver key elements of our offender management programmes. Collectively, the curtailment of these regimes could debilitate the Prison Service and has the potential to incite prisoner unrest, creating a volatile environment and putting the safety of prisoners, staff and the wider public at risk.

Are not providing food and medication and transporting prisoners to court, which were the first two instances that the Minister gave, within the ordinary duties of a prison officer?

It is as well to be absolutely certain that the provisions in the Bill cover those kinds of actions. The wording in the Bill reflects the agreement, which has been in operation since 2005 and has been tested. It is not as though the Government are suddenly—

I think my noble friend is saying that the wording in the Bill has not been agreed with the POA. That is right. The joint industrial relations procedural agreement—or JIRPA, as it is so eloquently known—of January 2005 includes an express undertaking by the Prison Officers’ Association not to,

“induce, authorise or support any form of industrial action by any of its members relating to a dispute concerning any matter, whether covered by”,

this agreement “or otherwise”. The Bill therefore reflects the agreement. Surely we must have that safeguard for the good order of prisons. I reiterate what I said earlier: of course we would much prefer there to be agreement in the future. That is why there is the power in Clause 190 to,

“suspend the operation of section 127”.

After we have debated this group of amendments, I will come to my government amendment to Clause 190(3) and the way in which an order may be made to suspend the operation of Section 127. We resist the argument behind my noble friend’s second amendment that an order is needed to bring these clauses into effect. In essence, at the end of extensive debate on the Bill in your Lordships’ House and in another place, the measures will have been debated at great length, so it would not be an appropriate use of parliamentary time to duplicate that debate immediately following Royal Assent. One must recognise the timetable that we are up against. That is why noble Lords have been tolerant in response to the Government’s request for the Bill to be taken forward in a certain way. The Government have taken some clauses out of the Bill to enable that to happen, and in doing so I have had the honour of speaking to your Lordships’ House on a number of occasions.

The other practical problem with my noble friend’s amendment is that it would delay the implementation of the measures until a resolution had been passed. Inevitably, that would mean that the measures would not come into effect until after 8 May, when the current voluntary agreement expires.

I end by reiterating that I very much wish that we were not debating this issue today. It is a matter of great regret that the joint agreement notice has been served and is due to end in a few weeks. I agree that we need to search for a way forward to do whatever we can to ensure that the relationship between the Prison Service and prison officers is the most constructive one. In the light of events last summer, however, it is important that this provision is on the statute book.

I limited my intervention purely and simply to the meaning of the words that the noble Lord, Lord Graham, wished to have deleted. I ask again because the Minister has not responded to my question, which was: what is,

“any other action likely to affect the normal working of a prison”,

intended to cover that does not come within the services provided by a prison officer?

In giving examples, I attempted to describe the kind of action that might be encompassed in such a definition. The clause applies to prison officers and governors and to no one else. The noble Baroness mentioned “other staff” who might be working in the prisons or the courts, but they would not be affected unless they were inducing prison officers to take industrial action. I hope that I can reassure the noble Baroness on that basis.

I came here hoping that during his address the Minister would give some hope, and I believe that he has for those outside the House. Although he is wedded to that form of words, he also says he is continuing to search for a better, more acceptable form of words if that can be found. That indicates to those outside the House that there is some mileage still to go if this form of words is so heinous to their view.

I simply say to the Minister that it is much better to have the POA as a partner than as an adversary. If after this debate and in the near future we can look forward to a period of peace, which can come only when both sides agree not just to action but to words, that is the best way forward.

I very much agree with my noble friend that having the POA as a constructive partner as we take forward prison policy, changes and improvements must be the best foundation. We have had many marvellous debates about prison policy and the way in which we can improve and develop it. I again acknowledge the improvements that have taken place in the past few years and the efforts of prison officers to do everything they can to co-operate with those improvements, which has not always been easy. Some discussions that take place in individual prisons are very challenging. Certainly, whenever I visit prisons, I always meet representatives of the Prison Officers’ Association. But I have to say to my noble friend that, alongside all that, we also have to have the available safeguards. We cannot have a situation, for all the welfare reasons that I have mentioned, where this kind of action can take place.

I am grateful to the Minister for what he has said. If I had any reputation, it was that as the Opposition Chief Whip I was able to mask my intentions and produce troops at a late hour, and defeat the Government in what was known as an ambush. The Minister can be assured that I—

For the sake of the record, as the first victim of that ambush as a mere social security Minister at the time, I remember the noble Lord’s skill with some feeling.

The Minister should also carefully note that voices other than mine who have spoken here do not share his view that the matter is being well handled. But I take comfort from what the Minister has said; that is, if the door is not quite open, it is ajar. To that extent, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 174 not moved.]

Clause 189 agreed to.

Clause 190 [Power to suspend the operation of section 127 of the Criminal Justice and Public Order Act 1994]:

174A: Clause 190, page 134, line 21, leave out from “instrument” to end of line 22 and insert—

“(4) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.”

The noble Lord said: This amendment would make the order-making power to suspend or later revive operation of Clause 189 subject to the affirmative resolution procedure. It honours the commitment made by my right honourable friend the Secretary of State for Justice when these clauses were debated in the other place. As we have discussed, the Bill provides for these clauses to come into operation on Royal Assent. By virtue of this amendment, the affirmative resolution procedure would then apply to the suspension or revival of the measures at a future date. I am delighted to say that the Delegated Powers and Regulatory Reform Committee has welcomed this amendment. I beg to move.

On Question, amendment agreed to.

Clause 190, as amended, agreed to.

174B: After Clause 190, insert the following new Clause—

“Secretary of State: power to make regulations

Regulations made by the Secretary of State—

(a) under section 50 of the Police Act 1996 (c. 16) (regulations for police forces) which do not follow the recommendations of the Police Negotiation Board as established by section 61 of that Act,(b) under section 128 of the Criminal Justice and Public Order Act 1994 (c. 33) (pay and related conditions) which do not follow the recommendations of the Prison Service Pay Review Body as established under that section, or(c) regarding the remuneration and charges for members of the Naval, Military and Air Forces of the Crown which do not follow the recommendations of the Armed Forces Pay Review Body,may not be made until laid before, and approved by resolution of, the House of Commons.”

The noble Baroness said: This amendment seems to sit appropriately in this part of the Bill. As the noble Lord will have read, the amendment would require the Secretary of State to seek the approval of the House of Commons before he could disregard the recommendations of the independent pay review boards as to the pay of the police, the Armed Forces and the prison officers, which are the organisations not allowed to strike.

The pay review boards were set up to ensure that key public sector workers were not disadvantaged by their inability to strike. As independent bodies, with a clear remit as to the matters they must take into consideration, any deviation from their recommendations is, as is very clear in the case of the prison officers, as we have been discussing, a very serious matter. The Secretary of State frequently uses reasons such as affordability not to implement the pay suggestions, or to use, as has been mentioned already, staging. For example, in the recent police case, Scotland got a pay rise earlier than the rest of the UK. But the review boards already have to take account of the funds available to their department and the Government’s inflation target.

Any deviation from the recommendations should be a great matter of concern. The introduction of staging for police and prison officer pay last year was the first time that the Government have not followed the review board’s recommendation on pay. The consequences of short-changing employees—they are not all employees; for example, the police—whose work is acknowledged as critical are of course very serious. Recently, the Prison Service and the police have shown their unhappiness at the Secretary of State’s actions and the many debates in the House about the Government’s support for the Armed Forces show your Lordships’ great concern in this area too.

Part at least of the Government’s current crisis has been precipitated by their refusal to acknowledge and to take on board the recommendations of the pay review board. The staging of the prison officer’s pay rise last year led to their first strike in 68 years. As we have heard, the Government are ditching many parts of this Bill in order to ensure that there will not be another strike on 8 May and to make sure that the Bill has completed its passage in time to prevent that. We have also seen the sad sight of police officers feeling driven to march on Parliament in protest at the staging of their pay rise.

Our amendment would ensure that if the Secretary of State wishes to make any alterations to the recommendations of the negotiating boards, those changes would have to be brought to the House of Commons for debate. I beg to move.

We support the amendment. The pay review bodies set up by the Government report in good faith. If the Government wish not to accept their recommendations, they should explain their reasons to the House of Commons and be subject to examination on those reasons. As the noble Baroness, Lady Hanham, has said, trust is eroding among prison officers and the police in the efficacy of these pay review bodies. The appointment of a pay review body has been used over and again to take the sting out of an industrial conflict. It has very often been the price that the Government or a state body have paid for seeing an end to industrial conflict. They ought not in our view to undermine those provisions. That is why we support the amendment.

I too support this amendment very strongly. No doubt the formation of an independent pay review body has had a very remarkable effect in a number of ways. As much as anything else it is a confidence-giving measure. Bearing in mind the history of the pay and conditions in the Prison Service and the role that the POA played in them, the pay review body’s arrival has done a great deal to ease that situation as well. However, I must just correct one statement by the noble Baroness, Lady Hanham. Last year may have been the first time that staged responses came from the prisons and the police, but there had been stages in the past for the Armed Forces. Therefore, I am extremely glad that she has included the Armed Forces in her amendment.

I support this amendment. One facet has not been mentioned yet. If we are to have independent pay review boards—I agree very much with what has been said about their efficacy—it is very important we have people of the highest calibre on them. This amendment will help to secure, at least, that a Government who wish to go against the recommendation of the board will have to get the approval of the House of Commons to do so. If they are able without that, by the negative resolution at any rate, that will not be conducive to people serving in this arduous capacity.

This is a sensible amendment in the light of recent circumstances. The Minister and his colleagues have a choice. They can, quite fairly, come to decisions—as they have done in the recent past—announce them and then defend them after the event. The amendment seeks to ensure that, having come to a view that they wish to have staging, that decision itself is subject to the view of the House of Commons. We know how politics works. We know what is possible to happen. But if the Government have confidence in the efficacy of what they propose, then they ought not to object to going through that additional hoop before it comes into effect.

It is a great pleasure to respond to the noble Baroness who, I think she said earlier, is now a non-executive director of the new medical foundation based around Imperial College—whatever it is called—which I am a great supporter of. Although this amendment does not embrace NHS staff, I well recall that during the long reign of the Conservative Government they indulged in staging for NHS staff. I accept that she is talking about three staff groups where circumstances make the work of the independent pay review bodies extremely important. I reiterate that the Government’s decision to stage the public sector pay awards was not taken lightly, but Governments have to have regard to wider economic policy. That is a context in which we meet to discuss the pay review bodies and the staging. We are talking about members of staff—police officers, prison officers, the Armed Forces—who do a fantastic job of work. We are very proud of what they do. They certainly deserve a fair and effective pay system which serves both them and the taxpayer.

There are two substantive points I make to the noble Baroness, Lady Hanham. First, we are talking about three pay groups where there is significant difference in employee relations in the way pay determination takes place. It may not be appropriate to apply the same safeguards to them all. First, prison officers are represented by a recognised trade union under the Criminal Justice and Public Order Act 1994. By contrast, the Police Federation, provided for in statute, operates as a staff association. The Armed Forces are prevented from any collective representation. There are significant variations in employee relations between the three organisations, as different issues rightly have different priorities for those bodies of public sector workers. Further pay is determined in the Prison Service and Armed Forces following recommendations from independent pay review bodies, a very different process from the police. The Police Negotiating Board makes recommendations to the Secretary of State and Scottish Ministers.

Given such fundamental differences in how these essential public services operate, we are not convinced that a blanket amendment is appropriate for them. Careful consideration would need to be given before changes of this nature were made to the pay machinery of any of these services, far less all three. There is overriding parliamentary oversight over government departments’ expenditure. As I said already, Ministers do not take decisions about public sector workers’ pay lightly or in a vacuum. They do so based on key considerations—what is required to recruit and retain an effective workforce and what is fair to the workforce. Decisions have to be taken within an overall framework of what is affordable and fiscally sustainable. Ministers are already accountable to Parliament for those decisions. As far as the concern that lies behind the noble Baroness’s amendment goes, the Government will take note of those concerns in the context of work to examine the effectiveness and balance of the separate pay determination processes. I refer in particular to the ongoing correspondence with the POA to improve the effectiveness of the Prison Service Pay Review Body. I hope that in the light of that the noble Baroness will agree to withdraw her amendment.

I thank the Minister for his reply and also noble Lords who supported this amendment. I understand that these bodies are not the same but, as I said at the beginning, these are three organisations where there is a “no strike” policy. This is what brings them together. If anyone finds another one, I can add that next time. The people working in these organisations are not allowed to strike. The review bodies and the pay negotiation bodies already have to take account of the funds available to the departments. The Minister says that the Government have to take the wider view; that view is presumably passed on to the pay and negotiation bodies so that they know what they are working within. If they choose to go beyond that, the Government have the right to make their case. The bodies are working from advice that has been given to them.

Of course the Government give evidence to the pay review bodies. Certainly, I have given evidence as a Minister to the NHS Pay Review Body.

They at least know when they make the recommendations what the strictures are. They are very important, as the Government have found—

As I said earlier in relation to prison officers, pay review bodies will often make awards of more than the evidence from the Government suggests they should and in most cases that has been accepted. But there are issues to do with economic policy overall where, on some occasions, the Government have decided that staging is appropriate.

I was not only referring to staging but to any other changes to the recommendations that the Government may decide to make.

These bodies are extremely important to the working of the country. All three have an immense effect on the lives of the people of this country. If you remove the right to strike you have a huge responsibility to ensure that the settlements are appropriate. I am not commenting on the discussions that are going on at the moment. This is the right time to try to nail down that if there are to be changes to any of the recommendations made in support of those bodies, however they are arrived at, it is appropriate that the House of Commons should be able to bring the Minister forward, to ask questions about the reasons behind such changes and to ensure that they are completely understood by the people who work within those bodies. The amendment would provide them with an opportunity to quiz the Government.

I hear what the Minister says and I shall read it in Hansard. However, I suspect that this is not the last the noble Lord will hear of the matter in this House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move that the House do now resume.

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

House resumed.