moved Amendment No. 99F:

My Lords, I must inform your Lordships that if Amendment No. 99F is carried, I shall not be able to call Amendment No. 100 for reasons of pre-emption.

My Lords, I do not think that I have been so depressed for a long time as when I heard the noble Lord say how essential hearsay evidence is. As has been said, we could get hearsay evidence that somebody was having a punch-up in a pub. Twenty years ago that person had a rather unpleasant conviction which was time-expired. He cannot cross-examine the witnesses and he can be restricted. If that is not a punishment, I do not know what is. The Government may call it a civil procedure but it is not. It is a civil procedure used to impose punishment. There is no way around this; any restriction on liberty is punishment. If someone says that you cannot go from A to B, or that you have to stay in your house, that is a punishment. It is just the same punishment as saying to a child that they have to go to the naughty box or naughty corner, or whatever the fashionable thing is now.

My Lords, it is the naughty step.

My Lords, I thank the noble Lord, Lord Hunt. I knew that he could be of use to your Lordships’ House—

My Lords, I am always happy to oblige the noble Earl.

My Lords, I know he is, and that is why even though we disagree we have quite a decent personal relationship.

Having said that and been depressed by what the noble Lord said, of course I am pleased that the Government have gone a little way. I just think that this Government have no concept of the grandeur, history and importance of individual liberty and subjects’ rights and privileges under the law. It has gone back through Act of Parliament after Act of Parliament over the past 10 years. Of course I will not press my Amendment No. 101, even though I think that it is much, much better. I am pleased that the Government have gone some way to what I am asking for, and I do not want to appear ungracious over it. But it is just not enough; they do not understand the concept of the grandeur of the liberty of the subject under the law. That is what is so depressing, and it runs through the whole Bill.

My Lords, I put my name to Amendment No. 101 with real commitment and not as a formality. I have said in the House before that when I served on the Joint Committee on Human Rights I almost always found myself sitting next to the noble Earl. I was glad to do so, because I came to respect his passionate commitment to the liberty of the individual and its deep roots in the struggle for the social and legal evolution of our nation that has made it what it is. I have listened with some dismay to earlier debates this evening, and certainly on the last amendment I could not bring myself to vote. Having said that, I emphasise that there is a real anxiety that whatever the intentions of the Government, we are seeing the erosion—almost an incremental dismantling—of the very principles on which our system of justice has always been based.

The noble Earl is absolutely right that no too-high premium can be placed on the liberty of the individual. Furthermore, I have always understood that there was a presumption of innocence that was absolutely basic to our legal system and that if anyone was to be deprived of liberty, the onus of responsibility for so doing was on the prosecution.

Interfering with the liberty of the subject to the extent envisaged in these provisions is unthinkable. As a young politician three or four decades ago, I would never have believed that this House would be seriously considering moving quite deliberately to administrative law and deserting the whole basis of our system. We used to criticise other countries for having adopted systems of administrative law, and we held our system up as the model for the world. I have been containing myself this evening, but I have reached the point at which I have to say that I am deeply troubled by what is happening.

The noble Earl has said that it is a good thing that the Government have moved as far as they have. Like him, I am glad that they have felt able to do so. But he is absolutely right that it does not deal with the underlying strategic issue that confronts us. The other point is that in this rush—it is becoming a rush—for the dismantling of law as we have always understood it, we are beginning to make a complete muddle for the lay man as to what is criminal and what is civil. What happens to the whole concept of civil law if we are to say that violence can, when it is convenient, be treated as civil law as distinct from criminal law? The rational, common-sense differences are just being brushed aside.

The noble Earl has said that he is not going to press his amendment tonight, and he is wise not to do so. I, for one, greatly appreciated what he said and the passion with which he said it. I am really concerned that history will come to see the processes in which we are currently involved as a major selling of the pass in all that we have understood to be justice in this country.

My Lords, I note that the noble Lord, Lord Judd, has signed Amendment No. 101; so to some degree he is profoundly implicated in what my noble friend Lord Onslow has said to your Lordships’ House. I know that my noble friend will be deeply grateful for what the noble Lord has said.

There is an important debate about Article 6 in relation to VOOs, and it is a live and crucial issue, but it is not germane to Amendment No. 101. That amendment raises the issue of cross-examination, which is fundamental to any trial, whether criminal or civil. Cross-examination is vital to any legal proceeding, because it tests the probative value of the evidence. It is perfectly true that in a civil hearing there is wider scope for hearsay evidence; but hearsay evidence can be subject to cross-examination. So with great respect to the Minister, the issue of hearsay evidence is beside the point. We all accept that if we proceed with VOO hearings on the basis that they are civil proceedings, hearsay evidence will play a bigger part than it would otherwise. But that should not in any way be a constraint to cross-examination for the individual who is likely to be subject to a VOO, in so far as it is capable of being exercised within the limits of hearsay evidence.

I do not understand the logic of the Government’s position here. Surely if we accept that hearsay evidence will play a part in VOOs, I see absolutely no problem for the Government in accepting the principle of cross-examination.

My Lords, I hear and endorse much of what the noble Earl, Lord Onslow, and the noble Lord, Lord Judd, have said in these matters. Earlier I raised a question as to whether one of the motivations for a VOO was that the default position was no longer the criminal law in circumstances where for generations it would have been the obvious line to go down, and whether the purpose of VOOs was to circumvent the criminal law because, for one reason or another, it is not possible to bring a criminal case.

The noble Earl, Lord Onslow, made an important point about the heritage and the history of the law. Very often the argument is made: “Well, we are living in different times and are facing different challenges”. But any cursory reading of the novels of Dickens would suggest that London was not exactly a safe place in Victorian times and that violent crime was not unknown in the capital city. Yet those who sat on these Benches 150 years ago would have been appalled at the thought that we were putting to one side the criminal law and bringing in much lesser tests for bringing people to justice for behaviour that society found unacceptable.

You do not set aside that heritage and tradition that has been built up for perfectly good and sound reasons as simply as we are being invited to do in our debates this evening. Although the noble Earl, Lord Onslow, does not propose to seek the opinion of the House, he has raised important points. It would be interesting if the Minister could indicate whether the Government believe that the default position should be the use of the criminal law, rather than the use of some civil procedure to get round it. It is a dangerous road that we are travelling down if the criminal law is to be set aside simply because it is not convenient.

My Lords, these arguments are not new. My noble friend has gone back to Dickens’s time. I can go back even further, to 1794, when this country was at war with revolutionary France. There was great concern among the ruling classes of this country that revolution would break out in England, and that there might be a threat to the throne and to parliamentary government as it was then known. There was unrest in Ireland and a threat of Ireland being invaded, as indeed happened in 1798. What was the reaction of the Prime Minister, Mr Pitt, to that? First, he suspended habeas corpus. The Duke of Leeds said on that occasion, “We have to suspend habeas corpus because, if we don’t, we won’t have habeas corpus to suspend in the future”. That is one of the more brilliant observations from this Chamber that I can think of. Pitt also passed an Act to suspend the rights of people to meet in numbers of more than 50. In another Act, criticism of the Government became a criminal offence. From our history, you can see how these things happen. Of course Pitt was opposed by Charles Fox and the Radicals. Indeed, the ancestor of the noble Earl, Lord Onslow, was a great Whig in his day.

My Lords, I have a terrible feeling that we were made Earls for supporting some of Pitt’s rather more dubious habits and for no other reason. It was a seriously corrupt procedure, but that does not mean that one is going to defend either Pitt now or corruption then.

My Lords, there we have it. It was exactly the same, except that the threat to this country was far greater then than it is today. There was the threat of invasion and revolution. Pitt’s Government were attacking in particular the corresponding societies, which had outposts in Manchester, Sheffield and elsewhere and were meeting to discuss such terrible things as universal suffrage. That was the situation in which that Government decided to bring in measures of this sort.

Today, risk management is central to this Government’s position. I have gone on about it on a previous amendment and I need not repeat what I said. When it comes to legislation to avoid risk, we are in a serious situation. There is risk, but there always is risk of one sort or another in any society. What is it that today demands us, for example, to lock people up for 42 days without trial or to introduce these violent offender orders, which do not go through the ordinary criminal processes? What is so crucial about this point in British history that we throw away all the safeguards that were gradually built into our system, which is exactly what this Government are doing?

Historically, the same thing happened, but we got away from it and reintroduced concepts of freedom and liberty, of which we have been proud. The Americans have gone against that tradition by risk managing in Guantanamo Bay. There is also an awful lot of risk managing going on in Mr Mugabe’s regime. I hope by using these examples that the Government will see the direction in which they are going. It is an authoritarian approach to lock people up for fear of what they might do and not for what they actually have done. We on these Benches will continue to fight that for as long as we have breath.

My Lords, I imagined that after an hour’s respite we might perhaps have moved on a bit more in the argumentation that is brought before your Lordships’ House. I moved a modest amendment, which helps to address a central concern of noble Lords opposite and in particular an issue raised by the noble Earl, Lord Onslow. Then we have been subjected to a discourse on two centuries of political history in the United Kingdom, all over a matter relating to the way in which violent offender orders might be considered in a civil court and in front of a magistrate. We have been regaled with how authoritarian and draconian these measures are.

I think that noble Lords opposite miss an essential point. It is true that over the past decade or so we have adopted a rather different approach in dealing with social nuisance, anti-social behaviour and episodes of low-level unpleasantness in our communities. Our Government have adopted a consistent programme and approach but at almost every step the Liberal Democrats have been consistent in opposing it. They do not like our use of civil procedures in trying to affect and influence the behaviour of individuals who, even they would probably agree, have been dysfunctional and unpleasant in a community setting and in trying to deal with particular individuals within a community. I am entirely at one with noble Lords opposite in their determination to see that we properly protect civil liberties and people’s individual rights in this country. This Government have an enviable record of so doing.

I wish to make a further point regarding one of the damaging aspects of the argumentation that is sometimes, although not always, used against the Government’s position. By raising the threshold of the argumentation in the way in which some noble Lords do, they devalue the greater argument. That is a very real and current danger, and it is not a good way in which to argue a case that has some merit.

We are not trying to get round the criminal law or the use of the criminal law—far from it. We are trying to prevent the commission of criminal acts by individuals who, for one reason or another, exhibit behaviour which I think we all agree is unacceptable. We are not trying to undermine civil liberties and civil rights in so doing. We have absolutely protected the right for there to be a contest of evidence in the civil arena. It is right and proper that we seek to protect that, and of course it is right that evidence will be subject to cross-examination. There will be the opportunity for an adversarial and interactive process of discussion about evidence.

There is an element of risk management here but I think that it is risk management of the right sort. It is to prevent the unpleasant crimes that can happen in our communities and protect individuals. That is the merit of violent offender orders, and that is why we cannot accept the amendment in the name of the noble Earl, Lord Onslow. However, we have moved some way to bring in protections and I am grateful to noble Lords who have at least given the Government credit for doing that.

On Question, amendment agreed to.

[Amendments Nos. 100 and 101 not moved.]

My Lords, if Amendment No. 101A is agreed, I cannot call Amendment No. 101AA because they are alternatives.

My Lords, for the noble Lord’s benefit, I should say that Amendment No. 101A is pre-empted by the fact that noble Lords opposite scored a success with Amendment No. 95B.

My Lords, I do not quite see how the words “satisfied beyond reasonable doubt” under Amendment No. 100 are excluded by what we have just discussed. I may be being as thick as two short planks but, if I may be so bold as to say so, the noble Lord on the Woolsack also looks a bit confused. Perhaps we could have some assistance.

My Lords, Amendment No. 99F was agreed to so I cannot call Amendment No. 100 because of pre-emption.

My Lords, I think subsection (1) was left out by Amendment No. 99F and the amendment in the name of the noble Earl is to subsection (1) so it has gone.

My Lords, it is a technical point; it is not one of substance.

So I cannot discuss it, my Lords?

No, my Lords, it has gone.

[Amendment No. 101A not moved.]

moved Amendment No. 101AA:

moved Amendments Nos. 101B and 101C:

moved Amendment No. 101D:

had given notice of his intention to move Amendment No. 101E as an amendment to Amendment No. 101D:

My Lords, of course one is grateful for concessions. I am flattered that people have actually listened to what one has had to say. One must be thankful for small mercies. That does not stop me still thinking that we have made a bad thing less bad rather than not have the bad thing at all. By their concessions, the Government have made it less bad and I look forward to hearing what the Minister says on Third Reading.

[Amendment No. 101E, as an amendment to Amendment No. 101D, not moved.]

Amendment No. 101D agreed to

[Amendment No. 102 not moved.]

moved Amendment No. 102A:

My Lords, I have to inform the House that if Amendment No. 102A is agreed, I cannot call Amendments Nos. 103, 104 and 105 because of pre-emption.

My Lords, one again has to say thank you, but, in this case, thank you for slightly less than in the last case. In this case, as I understand it, an interim order now has to be specifically timed, but there is no limit on the specific time. Interim orders seem to me to be even more a case of “We’ve been told by somebody down the pub that somebody might go and kick somebody’s teeth in next Tuesday, but we’re not sure who it is”. They will be based on much less evidence, as far as I understand them, otherwise they would not be interim. Again, there is no point in dividing the House on this. I wish that the Government had gone further. From what the noble Lord said just now, he and the Government still do not understand the general and persistent assault on the liberties of the subject that they have done and are slowly and gradually beginning to wake up to it. Having said that, thank you for the smidgeon. I shall not move my amendments—I will not be able to do so anyway because of pre-emption.

My Lords, I want to be sure that I understand what lies behind the Government’s proposal here. As I understand it, the Government’s amendment changes interim VOOs from being limited to four weeks but renewable to being unrenewable, but without a specified time limit. The time limit will be set at the time of the making of the order and is intended to be tied to the date the court expects to be able to impose the full VOO. That is the Government’s position as I understand it.

Is this really practical? We all know that there are problems about the timing of court hearings and that garnering evidence in the circumstances of assessing a future risk is an extremely complex matter. How can the Government be sure at the time that the time limit is set that it will be adequate for the authorities to assemble all the evidence they will need to make their case at the full hearing? If they are unable to assemble their case at the full hearing, what will they do? They cannot renew the interim order.

I hope that the Government will take this observation as being entirely practical, not coming from any particular direction of the political compass. The Government ought to be very clear about whether, from a practical point of view, this is really what they want to do.

My Lords, I appreciate the noble Lord’s intervention; he asks a sensible and practical question. We have had a lot of discussion with the Courts Service. It believes that we can meet the requirements; it thinks that it is deliverable.

My Lords, the Courts Service is one problem, but the Government also have a potential evidential problem here. I hesitate to call those involved the government prosecutors—although many of your Lordships here this evening may—so let us refer to them as authorities. It is the authorities’ responsibility to put together the case. Making an assessment of putting together a compelling case on day one may turn out to be overambitious by the time that you arrive at the court, when you cannot renew the order. How will the Government handle that?

My Lords, the noble Lord should be reassured by the fact that the order cannot be renewed. That is a real pressure on the authorities bringing forward the case. I can also say that this is the same procedure as has been adopted for sexual offences prevention orders. They work effectively. We have carefully followed the advice of the Courts Service. Because the court has the discretion, over time, it will be able to assess at first hearing the period that will be most appropriate before the full hearing must take place. Those reassurances should work. That is based on experience.

It is also worth saying that an application for an interim violent offender order can be made only at the same time as or after an application for a violent offender order. Most—I would argue, all—of the evidence should be properly in place, but of course we must ensure that that evidence is fully tested in a full hearing on the full order.

My Lords, I am most grateful to the noble Lord. We—that is to say, the Opposition Front Bench—have not tabled an amendment on the specific point. Our preference would be for a much shorter period but renewable. That would give the court flexibility to deal with both the procedural and the evidential problems. I do not know whether the Minister would be prepared to respond to this, but I would like to think that he will look at this matter before Third Reading. As I said, it is a practical point and one that I think has some substance.

My Lords, I always listen to the noble Lord on practical matters about how courts work. He makes a valid point. I undertake to the noble Lord that we will examine how the SOPO process works and provide him with a description of that in correspondence, so that it can be better understood. In the end, we will probably not be a million miles apart, but I appreciate that the noble Lord has raised a practical issue.

My Lords, will the Minister enlighten me on something that I am beginning not to understand? Let us say that an interim order is applied for. Presumably this is like prima facie evidence; they think it is needed. Is it possible for them to say, “Actually, we didn’t need this because the tittle-tattle that we have is not good enough”? Can the order lapse and be found to be unnecessary? I am in a slight muddle and groping for information.

My Lords, I cannot accept that these things will be based on tittle-tattle, but I realise that that was a provocative observation by the noble Earl. I understand that he is really talking about hearsay. We must be guided by the process, which should be carried through. Clearly if it is felt that it would be inappropriate to proceed, the matter must be considered by the court because the case is the court’s property. I will happily clarify this in the correspondence which the noble Lord, Lord Kingsland, has provoked by asking his very practical and practically focused question.

On Question, amendment agreed to.

My Lords, I cannot call Amendments Nos. 103 to 105.

[Amendments Nos. 103 to 105 not moved.]

[Amendment No. 105A not moved.]

moved Amendment No. 105B:

moved Amendment No. 106A:

moved Amendment No. 106B:

moved Amendment No. 106C:

moved Amendment No. 106D:

moved Amendment No. 106E:

moved Amendment No. 106F:

moved Amendments Nos. 106G to 106M:

moved Amendment No. 107:

My Lords, I shall speak to Amendments Nos. 107ZA and 107ZB, which are grouped with Amendment No. 107. The noble Earl’s amendment deals with some valid worries. Since Committee, the Government have tabled their amendment, which promises some guidance on this issue. Both the noble Lord, Lord Bassam, and the noble Lord, Lord Hunt of Kings Heath, have served as councillors in their time, and they will be aware of the sorts of pressures that problem families can bring to bear. Our worry on these Benches is that these closure orders are being widened out into orders that can be used in anti-social behaviour situations, not just because of severe drug problems. We feel that in the cases where they are being used for anti-social behaviour reasons, the very minimum safeguard that there should be is to say that the order should not be a disproportionate response to the disorder or nuisance caused.

My Lords, I rise to support these amendments and to add a couple of points from the reports of the Joint Committee on Human Rights. This power would make people homeless, some of whom will have had nothing to do with whatever was going on that led to the closure, which is not a very good outcome, and, as the JCHR has said, would interfere with certain human rights, respect for family and home life, and peaceful enjoyment of property.

The Government have said that they intend to produce guidance, which Amendment No. 107A suggests. But, in the view of the Joint Committee on Human Rights, guidance is not good enough. These matters can be so serious for vulnerable people that they should have the protection of the law, which should be in the Bill. These amendments seek to do that and I therefore support them.

My Lords, the safeguards in the first three amendments in this group are essential. There is, no doubt, already some experience of what happens as a result of the compulsory closing of a drug-dealing house or premises. That is a fairly limited category, whereas the powers conferred by this Bill go much wider. As the noble Earl, Lord Onslow, pointed out, they are very likely to affect children, who may be in no way responsible for the unacceptable conduct of their parents or other relatives. It is incumbent on the Government to respond on the issue of safeguards.

My Lords, I am very grateful to the noble Earl, Lord Onslow, and the noble Baroness, Lady Miller of Chilthorne Domer, for tabling Amendments Nos. 107, 107ZA and 107ZB, and for the passionate comments from other Members of the House. This brings us back to the issue of ensuring that the process for making premises closure orders gives proper consideration to the needs of children and vulnerable adults. I accept and I share many of the concerns, as do the Government, which is why I have tabled a government amendment, the details of which I shall come to shortly.

In Committee, I listened to the concerns expressed by noble Lords and I recognise that they want to ensure that a premises closure order would be a proportionate response to the disorder, which would be made after all other options had been tried and had failed. The noble Baroness, Lady Miller, touched on that issue. The Committee was also concerned about the implications for homelessness, especially for the vulnerable occupants of the premises. The Government have never disputed that these are important matters for agencies to consider when making an application for an order, but we considered that they would best be addressed in non-statutory guidance.

Following the debate, we have reconsidered our position. Amendment No. 107A would make the proposed guidance statutory, which I hope will address the issue raised by the noble Baroness, Lady Stern. That is the position as it exists in Scotland. Furthermore, there will be a duty on anyone using the power to have regard to the guidance.

In Committee, I also undertook to consider what material I could provide to the House to give an idea of what the guidance would consist of. I am sure noble Lords will appreciate that I cannot provide a complete draft of the guidance now. It will need to be carefully drawn up by officials in consultation with the agencies which will be responsible for exercising the new power. This issue was raised by Members of this House and, therefore, we will address that point.

However, we would anticipate basing it on the Scottish model. It is likely to cover, among other things—as I have said, it has to be refined and carefully drawn up by officials in consultation with agencies—the purpose and intent of the legislation; the definitions of terms—for example, anti-social behaviour, significant and persistent disorder, persistent serious nuisance; the serving of notice; the making of the case in court; the enforcement of the order; the appeal mechanism; the assessment of and support for vulnerable adults and children—very important areas that have been mentioned; the issue of homelessness; and examples of circumstances where the power should be used and where it should not be used.

Noble Lords were particularly concerned about what type of behaviour might constitute a serious persistent nuisance or disorder. I can well understand that, and again the Scottish guidance, which will have to be refined, gives examples that may include persistent, intimidating and threatening behaviour towards residents and members of the public; the presence or discharge of a firearm in an adjacent premises; significant problems of sexual acts being committed within the premises; consistent evidence of discarded drugs paraphernalia and other dangerous items; serious disorder associated with alcohol abuse, for example in and around drinking dens; high numbers of people entering and leaving the premises at all times of the day or night and disruption caused to residents; and constant and intrusive noise, or excessive noise at all hours associated with visitors to the property. I expect that the guidance for England and Wales will be drawn up along similar lines, but it has to be refined.

My Lords, I am sorry to interrupt the noble Lord. This is not a frivolous point, but some of what he has listed sounds like what takes place in a normal student house. For the residents in a street of 50 properties of which four are student houses, many of the things he has mentioned might occur. Lots of people may be coming and going; students drink and are noisy, and I expect that they have sex quite often. Can he assure me and put on the record that this is not aimed at student behaviour, for example?

My Lords, I can assure the House that that is absolutely not the case. As the noble Baroness rightly points out, some of these things could be looked at in such a way, but the guidance will be drawn up in detail with the relevant agencies. Moreover, I believe that people generally tend to apply things with common sense, and all this will be refined in the drafting to make sure that it is clear.

However, if a series of activities were to take place, particularly if people were shooting firearms and having sex close to the windows so that everyone could see them, there comes a time where even if they were students, others might say that something should be done. We cannot give them complete licence.

These examples are indicative, but given that the guidance will cover the concerns that have been raised by the noble Earl, Lord Onslow, the noble Baroness, Lady Miller, and other speakers, I hope that they will feel able not to press their amendments and that the House is willing to agree to government Amendment No. 107A.

My Lords, I understand the problem of banging—in more than one sense of the word—in a house and of course it is extremely unpleasant for other people in the neighbourhood. But I hope that we will be able to see the guidelines and possibly even consider them in a Question for Short Debate. I hope also that they will be published in draft so that this House and another place can talk about them if they so wish. I accept that the Government have taken on board some of our concerns, and with that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 107ZA and 107ZB not moved.]

moved Amendment No. 107A:

moved Amendment No. 108:

My Lords, the Government seemed not to have noticed that they were proposing to make criminal law for England when there was no provision in the devolution settlement for the Welsh Assembly to make a similar law. This is a very appropriate way of dealing with it. I express my thanks to the noble Baroness, Lady Finlay, for all her work on the issue, and to the Ministers that she has consulted, who have come up with what seems a satisfactory solution.

My Lords, before responding to some of the points made, I should explain why Clauses 118 to 120 were drafted as they were.

As noble Lords will be aware, the clauses make it an offence to cause nuisance or disturbance to NHS staff on hospital premises. Tied to the offence is a power for constables or authorised NHS staff to remove persons causing nuisance or disturbance from hospital premises. It is important to understand those points because that is how this will work.

These provisions are primarily concerned with the management of National Health Service premises, which is a devolved responsibility in Wales. We naturally consulted the Welsh Assembly Government prior to the introduction of the Bill last summer, so it is not quite right to say, as the noble Lord, Lord Thomas of Gresford, did, that this was an oversight in our approach. It is worth putting on the record that at that point the Welsh Assembly Government were undertaking their own review of how best to eradicate the behaviour to which the noble Baroness, Lady Finlay, referred, and to ensure that staff working in the NHS in Wales were fully protected. So, in those circumstances, the Welsh Assembly Government decided that they did not wish to apply these provisions to NHS premises in Wales. Accordingly, as currently drafted, the provisions apply only to nuisance and disturbance on English NHS hospital premises.

In recent weeks we have taken a fresh look at this matter. We are extraordinarily grateful to the noble Baroness, Lady Finlay, for raising the issue both in Committee and again today and I confirm that, following discussions between my right honourable friend the Secretary of State for Wales and the Welsh First Minister, the Welsh Assembly Government have agreed that these provisions should now be extended to Wales. In these circumstances, I can accept the noble Baroness’s amendments in principle. Unfortunately, I cannot invite the House to agree to the amendments here and now, as they are incomplete in a number of respects. In particular, we need to ensure that the definition of a relevant NHS body in Clause 118(4) properly reflects the organisation of the NHS in Wales where there are NHS trusts and local health boards established under the National Health Service (Wales) Act 2006 rather than, as in England, NHS trusts, primary care trusts and NHS foundation trusts established under the National Health Service Act 2006. In addition, we need to adapt the references to a “relevant English NHS body” in subsections (5) of Clauses 119 and 120, and amend Clause 150 to provide for bespoke commencement arrangements in Wales.

I am sure that the noble Baroness will agree to withdraw her amendment. I am grateful to the noble Lord, Lord Thomas of Gresford, for his contribution too. I think that we have now arrived at the right place, in view of the seriousness of these issues.

My Lords, in the light of the Minister’s response and confirmation that redrafting will occur, I have pleasure in saying that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 109 not moved.]

moved Amendment No. 110:

My Lords, I shall speak to my amendment. The purpose of this clause is to deal with low-level nuisance and disturbance. Obviously, if a person commits a criminal offence such as threatening behaviour or assault on hospital premises, they can be dealt with there as they can anywhere else. The police can be called, or the security staff can remove them. The key aim of the Government’s legislation is to prevent assaults occurring in the first place by tackling non-physical nuisance and disturbance behaviour before it escalates into greater violence.

The clause is limited to hospital premises, as the noble Baroness, Lady Finlay, has just pointed out. That is not the only place where violence against NHS professionals takes place. In 2003, a survey was carried out by the British Medical Association. It surveyed a large number of UK doctors and found that more than a third of those who responded had received some degree of violence or abuse from patients. So the NHS Security Management Service—SMS—was set up in 2003 to address the management of security within the NHS.

Various measures were introduced, but when the British Medical Association carried out another survey of nearly 600 doctors in October and November of last year, it discovered that a 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; and, of those, one in three received minor injuries and one in 20 was seriously injured. Most doctors—and I am talking about GP surgeries—did not report the attacks, so there is an underreporting element as well.

I have to say that such a problem did not exist. One would never have thought in the past that doctors, whether in surgery or in hospital, or nursing staff would ever be attacked, not simply by the patients but by the relatives who were with them, which is of course who the Bill is aimed at. Unfortunately, it seems today that that has become prevalent.

The British Medical Association, while firmly supporting the government measures in the Bill, says—quite rightly in our opinion—that does not go far enough. What it seeks and what we seek is to extend that protection, as the amendment says, to,

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

The argument that was put against this proposal in Committee, and which will no doubt be advanced today, is that hospitals carry security staff, and that they can be summoned to deal with disturbances of this sort. There is a ready-made body of people trained who can deal with disruptive relatives and friends of patients. It would be a protection to GPs in their surgeries and to other medical professionals who are working in NHS premises to have at least the shield of the law around them so that they could require people to, as the Bill says, cease the nuisance so that they can be removed, and, if necessary, so that the police can be called to remove them if they refuse to go in a situation where the intimidation or the nuisance had not escalated into an actual criminal offence where the police could be called anyway.

My Lords, I declare an interest as a former chairman of an independent hospice that is wholly contracted to a number of primary care trusts. I echo the remarks of the noble Baroness, Lady Finlay, about hospices, which need to provide particularly sensitive care. Taking up the point made by the noble Lord, Lord Thomas, a heavy security presence would be quite inappropriate in institutions of this kind. Therefore, I very much echo the noble Baroness’s wish for special consideration to be given to hospices.

My Lords, I record my gratitude to the noble Baroness, Lady Finlay, for again tabling this amendment, which gives us the opportunity to rehearse some of the issues. I am also grateful to the noble Lord, Lord Thomas of Gresford, for his contributions. We are agreed that there is a problem with nuisance and disturbance on NHS premises but we are not agreed about how best to deal with it in different settings and circumstances and what is practicable in those different circumstances.

These provisions are limited to NHS hospital premises. Amendment No. 110 seeks to extend the definition of “NHS premises” in Clause 118 to cover registered hospices and specialist palliative care units. Amendment No. 110A seeks to extend the definition of “NHS premises” to the wider National Health Service in general.

As I said, we acknowledge that there is a problem of physical violence against NHS staff who work in healthcare settings outside hospitals, including in hospices. I also acknowledge the need for the Government to work even harder to deal with these problems. However, I owe it to the House to explain how and why we designed these provisions specifically for hospitals to deal with the unique problems that they face. Given that these proposals are designed for the hospital setting, I am not convinced that simply extending the provision to other National Health Service premises, including hospices, palliative care units and general practitioner premises, would meet the protection needs of the staff involved.

In Committee, I and others referred to research undertaken by the Department of Health in 2006 which indicated that the problem of nuisance or disturbance behaviour, which does not include physical violence, was a particular problem in hospital premises and was largely caused by friends, family members or relatives of patients rather than patients themselves. We have all experienced this in one form or another, particularly in A&E units on Friday and Saturday nights.

These provisions have been designed to tackle the problem on NHS hospital premises identified in that 2006 research and will do so in two crucial ways. First, the offence cannot be committed by patients or those seeking medical advice, treatment or care, but rather people who are present on NHS hospital premises and are not seeking treatment, but who cause a nuisance and disturbance. Secondly, the provisions include a power in Clause 119 to remove people reasonably suspected of committing, or having committed, an offence under Clause 118. It is crucial that trained security staff should be able to remove people causing a nuisance before the behaviour escalates towards violence. NHS hospital staff have faced problems in the past when they have had to wait for police to arrive before action can be taken. For that reason, numbers of trained security staff have been increased over recent years.

Exercising the power to remove a person reasonably suspected of committing or having committed an offence under Clause 118 will require the support of fully trained security staff, which hospitals generally have available on a 24-hour basis. Without the assistance of security officers, NHS staff could place themselves at serious risk by seeking to exercise the power to remove. I do not think that anyone in the House wants to see that happen.

In Committee, I brought to the attention of noble Lords evidence presented in 2008 by the British Medical Association, to which I think the noble Lord, Lord Thomas of Gresford, referred this evening, that 94 per cent of GPs had reported experiencing violence committed by patients. That indicates that the problem of nuisance and disturbance behaviour outside the hospital environment is different and may need separate solutions to meet the very real need of NHS workers for a safe working environment in healthcare settings in the community. The BMA report defined violence as physical and non-physical acts against doctors, so further research needs to be conducted to examine whether the problem is one of mainly physical violence, or of the type of non-physical, anti-social behaviour covered by these provisions.

I assure the House that the NHS Security Management Service is working to identify the nature and scale of the problem of nuisance and disturbance behaviour against NHS staff outside hospital premises, and it will take a leading role in developing solutions that are appropriate to the needs of our ever-evolving health service. While I do not believe that extending these provisions to all NHS premises including hospices—where I recognise that there could be a problem—and specialist palliative care units is appropriate, I can offer some limited reassurance to the House about the effect of the existing provisions.

In Committee, the noble and learned Baroness, Lady Butler-Sloss, rightly alluded to the fact that hospices could be covered by these provisions if they are located within the grounds of an NHS hospital. This also applies to any building or vehicle associated with the hospital and it would include specialist palliative care units, so there is some breadth to the provision. Using hospices as an example, if an NHS or privately owned or funded hospice was located within the physical boundaries of an NHS hospital, then NHS staff attending such buildings or departments in connection with their work would be covered by these provisions.

The reasoning behind that lies again in the power that we are giving to NHS staff to remove those reasonably suspected of committing or having committed the new offence. As I have suggested, exercising the power to remove safely will require the support of fully trained security staff, which hospitals generally have available on the 24-hour basis that I referred to earlier. Hospices located within the grounds of the hospital may be able to draw on those resources to deal with a person suspected of committing an offence. However, there is no guarantee that such resources would be widely available to deal with a person committing a nuisance or disturbance in a hospice, specialist palliative care unit or any other NHS body located in the community.

The noble Baroness, Lady Finlay, pointed out in Committee that some hospices employ security staff on-site at night. The noble Baroness reminded me of that earlier today. From my personal understanding of these issues, I would support that point. However, in these cases, that could mean that incidents of nuisance or disturbance behaviour could not be dealt with under these provisions at any other time of the day. I am not satisfied that the provision of security staff in hospices, specialist palliative care units or any other NHS body providing healthcare in the community is widespread. Therefore it would be inappropriate to extend these clauses, which are tailored to the needs of hospitals, to healthcare facilities that could not use them as they are intended to be used.

I hope that my commitment that further work will be undertaken to deal with the problems of violence and anti-social behaviour faced by NHS staff outside the hospital setting will be appreciated and that we can work together to secure a solution over time. I am grateful to noble Lords who have again brought this matter to the fore, because we accept that it is an issue. I hope that, having heard my explanation, noble Lords will withdraw their amendments.

I shall respond to a couple of interesting issues that emerged. The noble Lord, Lord Thomas of Gresford, accepts here that prevention is important, but perhaps he does not accept it regarding other aspects of the way in which we seek to use, for instance, violent offender orders. His acceptance of prevention here but not there is an important point. I thought that his point about notices being displayed being tied to the amendment was not as well thought through as it might have been. In my experience—and, I am sure, that of the noble Lord—most GPs’ surgeries make it clear that unacceptable behaviour of a violent or abusive nature will not be tolerated and that people should not behave in a disorderly way. That is absolutely right. My experience, and probably that of other noble Lords, is that staff in surgeries will seek to rely on the help and support of the police service in calling its attention to any difficulties that they experience. They rely on the police to make a critical intervention and we should rely on that, because that is exactly what the police service is there for.

I accept that there is an issue. We think that further work is required. We need to tailor more precisely the sorts of powers and duties that might be required in other settings and how those settings work, particularly in relation to the needs of palliative care units and hospices. I am grateful to the noble Baroness and I thank her for bringing the amendment, but I do not think that these amendments will greatly assist us in resolving some of the real problems regarding this issue.

My Lords, I appreciate the response from the Minister; I recognise that this is a pre-assault clause to try to prevent people being hit, targeted and so on. I have reservations because, for example, there is a group of patients who have been removed from GP lists, who then are allocated for three months at a time to general practitioners. They often come from very dysfunctional families and different members of the family will turn up at the GP surgery during that time and make a lot of trouble.

However, I do not intend tonight to press the amendment, but I want to sound a warning note to the Government. I fear that putting a line around hospitals may be giving mixed messages to NHS staff and to those who accompany patients. I have a concern also that when staff move from one setting to another, they may be confused as to which powers they have or do not have. NHS trusts are providing violence-and-aggression training and are often opening that up to hospice staff as well. It is generally good training and very helpful for staff. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 110A:

My Lords, the noble Lord is trying to put in my direction words that he might want to reflect on. I did not say that it was acceptable. I said, as I think that he would accept, that in those circumstances it is entirely right and proper that staff would rely on the support of the police service to make an intervention—a service, of course, that the noble Lord argues we should make more use of in dealing with those who display violence in the community.

Exactly, my Lords. We are talking about increasing the powers of the police to arrest someone on the basis of a criminal offence—namely, the new criminal offence in this Bill. It would be open to a police officer to arrest somebody for a breach of this offence, which does not amount to assault or threatening behaviour, as those would give him a power to arrest anyway. Our amendment would give the police the power when they are called into an NHS surgery to remove somebody causing trouble and refusing to leave. We put the protection of NHS staff, in whatever context, above the Government’s desire to have some sort of security service in every GP surgery before this power can be used. The Minister pooh-poohs the idea that there should be a notice on the wall; he says that no one would take any notice of it.

My Lords, the noble Lord should desist from asserting that that is what I was saying. I did not say that. I said that I was familiar with surgeries that display precisely such notices. I encourage them to do exactly that.

My Lords, you cannot say at the moment, “If you cause a nuisance and are asked to leave but refuse to do so, you can be arrested and removed”. You cannot say that because it is not possible.

My Lords, but it is possible if someone is in the business of committing a criminal offence. The noble Lord cannot expect to get away with that allegation.

My Lords, the Bill provides for a new criminal offence, which is less than the existing criminal offences. If that is not the case, there is no point in having the new offence at all. It relates to disturbance and nuisance that does not currently amount to a criminal offence but which the noble Lord and his Government seek to criminalise in the context of a hospital. It will give the police the power to arrest someone in a hospital but not in a GP surgery. In our submission, that is quite wrong. It does not matter whether you are in a hospital, in hospital grounds or in a hospital ambulance; you are entitled if you work in the NHS to the same level of protection. For that reason, I intend to test the opinion of the House. I beg to move.

moved Amendment No. 114:

My Lords, I warmly support my noble friend’s amendment, and I know how much we are all longing to get through this Bill and get home tonight. I do not propose to be very long but I must say that I remember well the debates that we had on the Anti-Social Behaviour Bill in 2003—five years ago—when we were trying to amend the Crime and Disorder Act.

Now we know a bit more of the results of what was then under debate—the presumption of reporting restrictions being in place and the change from the presumption that they would not be in place, so that there was an open day for local newspapers and others to report on the affairs and events of children coming before the court charged with anti-social behaviour offences.

I remind the House that we are talking about children and low-level behaviour that simply constitutes a civil offence and has nothing to do with criminal behaviour—not, at least, until an ASBO has been breached. What we know about anti-social behaviour orders being reported is not good. Back in 1933 it was understood how damaging the effects of publicity can be on children. It was argued then, and remained so until the Crime and Disorder Act, that it should be left to the court to decide whether it was appropriate for reporting to take place, and that was based on the evidence on whether it would be in the interests of the child so to do.

I am grateful to see the noble Lord, Lord Adonis, in his place. He knows a lot about children and that our aim at all times is to act in the best interests of the child. Unless we do so we are not acting in the best interests of our society. Furthermore, in 2005, we had the Serious Organised Crime and Police Act when reporting restrictions were then going to be lifted on breaches of ASBOs. That was when naming and shaming came into its own—the humiliation of children. It takes no one in the Chamber, let alone those outside, to know that you do not teach a child anything through humiliation. If anything you do more damage. That is the evidence.

The characteristics of the child’s behaviour, their background and needs, and the information available to the court are necessarily to be taken into account or relevant when a local paper writes its story. In fact, it usually leads to complete disregard of the circumstances of the child and his offence, let alone his needs.

Anyone in this Chamber who has worked with children who end up in court will know that we are almost invariably dealing with children who are already troubled. They are moving from being troubled children to being children in trouble. We know that they are more likely than not to have learning difficulties, perhaps to have disorders such as autism or mental health issues or to suffer from deprivation of one kind or another. We humiliate them by putting them on the front page or the inner pages of newspapers. In the past five years or so, we have seen plenty of evidence of what appears in the newspapers about such children, which is deeply distasteful and, in the long run, deeply damaging. It is also likely, although it has not been tested fully in the courts, that several articles of the UNCRC and possibly the European Convention on Human Rights will be breached in this process. However, we know that when such publicity occurs it is likely to cause great distress, not only to the child who is being humiliated, but to his family. Even worse, it is possible that if the damage is not distressing to the child, the damage is of a different sort; namely, it becomes a sort of badge of honour for the child who is in trouble. There is evidence of that. What good are we doing him, let alone our communities? Children in trouble need help to stop the behaviour—it is, I remind the House, at this stage still low-level—so it does not lead to a breach of the ASBO, which then turns into criminal behaviour and into the process by which we criminalise children.

In the notes I had at an earlier stage, I read with interest that when this issue was being debated in the other place, Hazel Blears MP said:

“Publicity is not to punish or shame the individual”—

there was a bit of denial there already—

“but is there to let the community know that action has been taken and to engage local people in helping to monitor the conditions that have been set out in the ASBO”.—[Official Report, Commons Standing Committee D, 23/3/06; col. 230.]

I have never known such an example of self-deception in my life. I do not think that even Hazel Blears can have really believed what she was saying.

Finally, we all now recognise that, over the past four or five years, aided and abetted by the naming and shaming and the publicity process, we are now used to the sort of language that I wish had never entered our lexicon about young people. We now talk about “feral youth” and “hoodies”. We talk about troubled children and children in trouble in a most damaging and distasteful way. All of us in this House should turn our back on such behaviour and reject it on our own part for our children. I therefore support this amendment, and I hope the rest of the House does so wholeheartedly.

My Lords, I can say only that I endorse without qualification every word that the noble Baroness said so brilliantly this evening. I simply have one question for my noble friends, which I hope they will address. They have repeatedly said that the Government are committed to the rehabilitation of offenders. How are we going to tackle the rehabilitation of the young if they either acquire a badge of honour, and therefore begin to go down the road of institutionalised crime because they have won acknowledgement and standing in society as an offender, or are alienated and hurt in all kinds of deep psychological ways by the process to which they have been subjected? Of course the noble Baroness is right: a very high proportion of those children have been through hell in their own lives. We do not start putting that right by having their stories ignorantly and distortedly paraded all over the media.

My Lords, briefly, I endorse the brilliant speech of my noble friend Lady Linklater of Butterstone. Seeing the amendment on the Marshalled List reminds me of the film, “Groundhog Day”. When I hear the Minister's response, that feeling may well be intensified. He must accept that we keep coming back to this issue because we know how wrong it is.

I very much believe in doing what works. If we want to stop young children behaving in an antisocial way, we must do what works. All the evidence and all the research shows that you stop children behaving in that way not by humiliating them but by building up their self-confidence and self-worth, because it is the destruction of their self-worth by their experiences that has led to their behaviour.

Unfortunately, “shock, horror” stories about 10 year-olds behaving in an appalling way is the sort of thing that the media love. I would love to see on the front page of a newspaper one of these days a wonderful, positive story about how a young person's life has been turned around by being treated in the proper way, with proper understanding, family support, analysis of the background that led to that behaviour and the support and help that they need to help them to return to the sort of behaviour that we would like and to have a fulfilling and useful life.

I do not see that happening in the near future, but we need a lead from the Government. We have seen so many good things from the Government in helping children and supporting families, but they seem to have a blind spot about this issue. I promise the Government that those of us who have spoken, and many who are resisting speaking because of the late hour, will keep coming back to this matter until they take notice of all the powerful research that shows how very wrong and ineffective this policy is.

My Lords, first, I welcome back the noble Baroness, Lady Linklater, after her recent medical intervention—I think that is what they are called. It is nice to see her looking so well, busy, active and on her feet giving us a hard time, as she rightly does from time to time.

I ought also to welcome this debate again. I am not quite sure how many of these I have done so far, but this has the feel of a serial issue. I know that it is a serial issue for noble Lords on the Liberal Democrat Benches, and I am sure that they believe every word they say on the subject. I am not trying to patronise the debate, because it is important—too important to make light of. As I have felt all the way through these debates—we have been having them for eight or nine years—I think that the noble Lords on the Liberal Democrat Benches are wrong on this issue. I think that they are profoundly wrong and profoundly misunderstand the intent and the objective of our policy.

It is quite clear what is intended by the amendment: it would repeal sections of the 1998 Act that remove the imposition of reporting restrictions on proceedings against juveniles for breaching their ASBOs, or which relate to the making of ASBOs against juveniles on conviction of criminal offences.

All those who spoke from the Liberal Democrat Benches went over the issues that we have heard before about the orders being badges of honour—a term that my noble friend Lord Judd also used. That term came into currency after a very limited piece of research done a couple of years ago. We find in the practice of the use of ASBOs that that is not the case. They are not badges of honour; people do not brandish their ASBO. Most people take these orders extremely seriously, and quite rightly so.

My Lords, did the Minister really agree with Ms Hazel Blears when she said that she wanted the community to act in some sort of vigilante way to oversee a person who is named and shamed and shown to be subject to an ASBO? Is it also his view that the whole community should be the policeman? What does he think the effect of that is on a young person of 14, 15 or 16?

My Lords, the noble Lord is falling into the trap into which he fell in the last debate. I will not be provoked here, but I make one important point in response to what he says. It is not about vigilantism; it is about people being aware of those who have been challenged over the effects of their behaviour through the ASBO process. That challenge is very important. I believe, and I know that my colleagues believe, that we need to demonstrate to young people what unacceptable behaviour is. We need to draw a line. People need to understand exactly when behaviour is acceptable and when it is unacceptable. It is in the absence of those clear messages—those clear dividing lines—that young people get into the habit of the abusing behaviour that can have such a profound and damaging impact in our communities. So, yes, I do agree that publicity surrounding proceedings is an important part of the process. It is not about naming and shaming. I do not accept that tag, or title, at all.

ASBOs are made in open court, and unless the court imposes restrictions, I believe, and so do the Government, that the media are quite entitled to report them and that, in doing so, they fulfil a sensible and practical purpose. Noble Lords often omit to consider simply this; it is open to the court to decide whether to impose reporting restrictions. My experience of my local newspaper suggests that local newspapers behave entirely responsibly. I certainly remember cases in our locality where it was said that those who are subject to the ASBO process had a behavioural problem such as Asperger’s or an attention deficit syndrome of one form or another. It seemed to me that the local newspaper respected that fact and understood the importance of using its power to publicise responsibly. In some ways, it challenges the newspapers to behave responsibly. Nevertheless, they do a good public service.

When we had this debate the last time around, I recall that I reminded the noble Lord, Lord Thomas of Gresford, that Norman Baker, the Liberal Democrat MP for the Lewes constituency, was one of those who complained in concert with David Lepper, one of our local MPs, that the newspaper in the locality had been prevented from giving quite right publicity to the effect of an ASBO that had been passed on some young offenders in our area. He was right to do so. He made the argument that publicity was an essential part of the process. It is clear to me that not all Liberal Democrats have buried their heads in the sand on this issue; some of them recognise the importance and value that publicity can bring to these cases.

Publicity is not to punish or shame the individual. It is to ensure that people are aware of what has been undertaken in their name so that the community can be reassured that firm action is being taken to counter anti-social behaviour. I would also argue that in certain circumstances it is in the interests of the individual that other people know that they are subject to the ASBO process because it acts as an important restraint on their behaviour.

The fact is that courts, in their wisdom, can impose restrictions on reporting if they wish. It is right that they exercise that discretion; they are closer to the details of the case. They have to take into account the welfare of the child or young person they are dealing with. I think the local courts are best placed to do that. The existing legal framework works well and we have not been regaled with abuses of the system. We think that ASBOs have a lasting and tremendous potential benefit in communities dealing with the sorts of low-level disorder and nuisance that too many of us are familiar with. We cannot accept the amendment, and I am afraid I profoundly disagree with the arguments and the approach that noble Lords on the Benches opposite have adopted on this. The system is working well and we should support it. We should make better use of ASBOs.

My Lords, I am new to this debate, and the Minister’s reply to the informed comments of my noble friend Lady Linklater make my jaw drop. The Minister implied that Liberal Democrats do not recognise that anti-social behaviour is a nuisance. Of course we recognise that. The amendment is not about whether anti-social behaviour is a nuisance, but he was implying that our line was that there was no problem with it. That is absolute rubbish. We accept absolutely that anti-social behaviour has to be confronted. Our question is: what evidence does the Minister have for continuing to allow the reporting of children under the age of 18?

He keeps saying that the point is supported only on the Liberal Democrat Benches and yet it is supported on his own Back Benches in the person of the noble Lord, Lord Judd. The noble Baroness, Lady Stern, has spoken on this issue in the past—she wished me to mention the fact that she strongly supported the amendment today, although unfortunately due to the hour she has had to leave—so it is supported on the Cross Benches. Basically, it is supported by all Members of your Lordships’ House who have a lot to do with young people, on every Bench other than the government Front Bench. It is with particular regret that I understand that the Minister has simply dug his heels in and repeated the same old argument rather than moving it on.

In discussing this amendment with various colleagues at local government level, I have found that, as the Minister will know, counsellors for children in care—many of which children end up in the anti-social behaviour order category—as corporate parents are often appalled at the fact that this can be reported on, because they can see that it simply adds to the cycle of the difficulties those children already face. After the Minister’s reply, we on these Benches shall certainly be encouraging all those corporate parents, all the counsellors with responsibility for those children in their care, to challenge the Government’s stance under those children’s rights because the Government are failing them.

The Government have heard the response from these Benches that there is no other place that we can go tonight, other than into the Lobby to express our view on this. I shall not be withdrawing this amendment.

moved Amendment No. 114A:

moved Amendments Nos. 114B to 114D:

moved Amendment No. 114E:

My Lords, I was very happy to put my name to this amendment. I also declare an interest as a vice-president of the Association of Police Authorities, a former deputy chair of that organisation and a former chair of North Yorkshire Police Authority.

The clause looks fairly innocuous, but we have been here before—and on many an occasion I have spoken about the best value legislation, because I have felt that police authorities should not be subject to it. But there we are.

I am not clear why the Government think that this amendment would change the statutory functions of the APA. Most of the provisions in the amendment suggest that it be consulted about inspection proposals—but the APA is already a statutory consultee, so what is new? I do not see that the provision about the APA nominating peer reviewers to contribute to inspections confers functions of a different nature on the APA. It certainly does not confer inspection powers; it merely says that the APA will organise which peer reviewers will contribute to inspections. I also have difficulty imagining what type of inspection might preclude some police authority input, or on what occasion inspectors might understand better the business of police authorities than people drawn from police authorities.

I am also concerned about how these inspections are to be funded. I understand that discussions have taken place in the Home Office about how to pay the Audit Commission for doing the inspections—because, believe me, it will charge. I also wonder how the Government propose that a peer review might be funded. Perhaps the Minister could tell us whether any progress has been made on those discussions.

I support the inspection of police authorities. It is the question of how they are inspected and by whom on which the public need clarity. There is no clarity at present and the Government’s proposals in no way help that process. I hope that the Minister will carefully consider the amendment, which is eminently sensible and really ought to be accepted.

My Lords, as my noble friend Lady Henig said, I was able to have a very helpful meeting with her following the debate on this clause in Committee. I thought that it was positive and helped to highlight the points which will need to be addressed as part of the inspection protocol or framework which will underpin the new inspection arrangements for police authorities.

A joint approach to police authority inspections will bring together Her Majesty’s Inspectorate of Constabulary’s professional knowledge and understanding of operational policing and the Audit Commission’s wider cross-sector understanding of local government, local partnerships and the role of police authorities as distinct from that of chief constables and forces. This mix of knowledge is crucial in assessing the effectiveness of policing and community safety delivery by a range of local services.

I fully support my noble friend’s view that we need to articulate the overall vision for the joint inspection of police authority functions as clearly as possible so that the intention of the legislative provisions on which this approach will rely is understood. This will be set out in the inspection protocol and methodology that I have referred to before and which will be developed and agreed jointly by the Inspectorate of Constabulary and the Audit Commission with the Association of Police Authorities and the support of the Home Office.

The inspectorate’s powers relate to police forces and authorities, while those of the Audit Commission apply more widely to all best value authorities. It is therefore inevitable that these powers are in two separate legislative regimes. Seeking to combine them as proposed is neither desirable nor necessary. I would expect the inspection protocol to set out the statutory basis for the inspection of police authorities so they will be able to look to this one document for the necessary clarity.

The inspectorate and the commission have agreed that inspections will be conducted on a joint and fully co-ordinated basis. They will effectively act as one to produce a holistic assessment of police authority performance which is proportionate and does not duplicate other work. They recognise the importance of including a police authority peer officer or member to ensure the right skills mix and that the existing self-assessment framework will play a part in the process. As the gatekeeper for police inspections, the inspectorate will have the ability to prevent any inappropriate inspection activity.

My Lords, I am pleased that we all agree on the importance of these provisions. I remain disappointed that we disagree on how they should be set out in legal terms and that the Government will not go as far as I, and I am sure others, would like. I welcome the prospect of at least some clarity in the protocol. I regret that it will not be in the primary legislation itself. None the less, I will at this late hour be willing to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 129 [Designation]:

moved Amendment No. 114F:

My Lords, I support my noble friend. I have already disclosed an interest in this case. I shall be interested to hear whether the Minister can answer my noble friend’s request about what happened to the 10th defendant who was acquitted in the first trial and whose application for asylum has been pending for eight years. He is not convicted and never has been. He did not have to rely on appeal. His case was that he was going with his wife to a wedding in Mosul and found himself caught up in these events. The jury accepted that case. Therefore, I should be very grateful to know from the Minister what has happened to him.

My Lords, the issue raised by this group of amendments is simple. The fundamental point that we are considering is this. Where a foreign national has a conviction of a particular kind, or where, because of his conduct, he comes within the terms of Article 1F of the Refugee Convention, but he cannot be deported due to a human rights barrier, should the Government be compelled to grant that person leave under the immigration Acts, with all the advantages that flow from having such leave? Or should there be the option of a new immigration status as an alternative to immigration leave as provided for by Part 10 of the Bill?

From the fact that the noble Lord seeks to delete Part 10 in its entirety, I take it that he is opposed in principle to the idea of a status that is an alternative to immigration leave and considers that, no matter what the person concerned may have done, if he cannot be deported for human rights reasons, he must be given immigration leave. That is one way of approaching the issue, but it is not one that the Government believe is appropriate. The Government take the view that immigration leave is something valuable and something worth having. Immigration leave should be given to people who qualify for it, and, by the same token, it should not be awarded to people whose only claim to leave is that they cannot be deported because of our obligations under the ECHR. That is the point of principle at stake.

In our view, people who meet the criteria for designation should not be entitled to the advantages that flow from immigration leave, such as access to mainstream benefits and the right to work. In particular, the right to work constitutes a financial advantage and enables the individual concerned to establish roots in the United Kingdom which may make it harder to deport them when the human rights barrier to removal has passed.

As I said in Committee, we could discuss where to draw the line and what the threshold for the new status should be. However, that is not what this group of amendments seeks to do. The amendments seek to erase the line completely and to perpetuate the current anomalous position whereby, apart from the duration of the leave, there is no distinction between the immigration leave granted to individuals who have committed even the most serious crimes and any other foreign national who requires leave to enter or remain. In practical terms, there is no distinction at all at present.

Let me remind the House to whom the new status would apply. It would not apply to British citizens or persons with the right of abode in the United Kingdom. It would not apply to recognised refugees, and it would not apply to people exercising rights under the Community treaties. However, it would apply to anyone else who had been convicted of an offence and had received a custodial sentence of two years or longer, or to an offence listed in the order made under Section 72 of the Nationality, Immigration and Asylum Act 2002 who had received a custodial sentence of any length. It would apply to anyone who would be excluded from refugee status under the terms of Article 1F of the Refugee Convention; that is to say,

“any person with respect to whom there are serious reasons for considering that: … he has committed a crime against peace, a war crime, or a crime against humanity … he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee … he has been guilty of acts contrary to the purposes and principles of the United Nations”.

In addition to those three groups, it would also be possible to designate the spouses and minor dependent children of such people.

As the Government have previously made clear, the power to designate family members would be used only where they have applied to be dealt with in line with a principal applicant who falls to be designated. There is nothing to prevent the family members applying for and, provided they qualify, being granted leave in their own right.

In Committee, the noble Lord, Lord Avebury, gave examples of the way in which applications for leave by the family members of some of the Afghan hijackers had been dealt with and complained that all that happened in practice was that,

“they were kept indefinitely on the hook”.—[Official Report, 10/3/08; col. 1356.]

I accept that the applications that he mentioned have not been dealt with as quickly as we would have wished. I regret in particular that the application by Mrs Y was associated with the case of her husband, when they had married only some time after their arrival in the United Kingdom, and that she was then incorrectly told that she was being granted exceptional leave “outside the Immigration Rules” rather than under the rules. I hope that the other two applications will be resolved reasonably soon, but the issues are not straightforward. I accept that it is taking a long time to reach a decision, but there are complex issues involved and, in such circumstances, it is not unprecedented for such delays to occur. The principle remains, however. Family members who are given special immigration status because they are family members will be able to apply for leave in their own right and, if they qualify for leave—I stress “if”—then it will be granted.

However, I do not wish to concentrate exclusively on the Afghan hijackers, although I will say more about them. Contrary to what has been asserted, this provision is not entirely about the Afghans. In fact, it is not even mainly about them. As I have said, it will be possible to designate someone who has been sentenced to imprisonment for two years or longer for any offence, or someone who has received a custodial sentence of any length for certain specified offences.

Let me give two concrete examples drawn from people who have not been convicted of any offence and who would qualify because they come within the terms of Article 1F. In doing so, I must make it clear that I am not saying that the individuals concerned will be designated. Any decision would need to be taken in the light of the circumstances at the time, but they are examples of the type of case where we believe it is desirable to have the option of an alternative to immigration leave.

Let us take the case of Mr A—not his real name or even his real initial. Mr A is a senior member of a body called the Justice and Equality Movement in the Sudan, which, despite its name, has been found by the International Commission of Inquiry on Darfur to be complicit in war crimes. Because of his standing in the Justice and Equality Movement, Mr A has been excluded from the protection of the Refugee Convention by virtue of Article 1F. However, he cannot be removed from this country for human rights reasons. At present there is no alternative but to grant him discretionary leave. Under the provisions in this Bill, Mr A would fall to be given special immigration status. Is the noble Lord really insisting that he should continue to be given immigration leave?

Then there is the case of Mr B, a South African citizen. He is a former member of the Afrikaner Widerstand’s Beweging (AWB) and of the South African secret service in the apartheid era. He admits to having undertaken a number of operations in what is now Namibia, including an attack on the UN. Mr B’s application for asylum was refused, but his appeal was allowed on human rights grounds. It is nevertheless clear that he falls within the terms of Article 1F and that it applies to him, which in turn means that he could be given SIS. We believe that it would be appropriate to be able to deny leave under the Immigration Acts to someone who has done the sort of things Mr B admits to, and we believe it should be possible for us to do it.

I did not want to focus on the Afghanistan cases, but they have been raised to a considerable extent, and I ought to say a little more about them. It is best if I remind the House of the circumstances of their arrival in the UK and the reasons why they are excluded. The reason that they were excluded is that, in the words of Article 1F(b) of the convention, there were,

“serious reasons for considering that [they had] committed a serious non-political crime outside the country of refuge prior to [their] admission”.

The noble Lords, Lord Avebury and Lord Thomas of Gresford, said that the hijackers were escaping from the Taliban. That is correct, but the reason that they were excluded from the convention was not the fact that they were escaping, but the manner of their escape. This issue was considered in detail by the panel of adjudicators which heard the appeal. The reasoning on this specific point runs to 18 pages out of the determination’s total of 118 pages.

My Lords, does the noble Lord agree that the panel of adjudicators reached its decision on the application of Article 1F before the individuals’ appeals had been won in the Court of Appeal against their conviction and that, therefore, there should have been a reconsideration of whether Article 1F applied to them or not?

My Lords, I would like to run through how the panel’s judgment or assessment was arrived at, because I do not think that what the noble Lord has said would have made any difference to that assessment.

My Lords, can the noble Lord confirm that the panel of adjudicators reached its decision before the Court of Appeal quashed the convictions?

My Lords, my understanding is that that is correct, but perhaps I may complete what I was about to say, because one will see the logic of what the adjudicators were talking about in terms of this offence. The adjudicators took into account the guidance in the UNHCR’s handbook—in particular, paragraph 158, which states:

“Whilst for the purposes of the present exclusion … it may be possible to overlook the fact that a refugee, not finding any other means of escape, may have evaded the border in a stolen car, decision will be more difficult when he has hijacked an aircraft … forced its crew, under threat of arms or with actual violence, to change destination in order to bring him to a country of refuge”.

The handbook goes on to state that,

“the question of exclusion under Article 1F(b) of an applicant who has committed an unlawful seizure of an aircraft will also have to be carefully examined in each individual case”.

The adjudicators had regard to a background note issued in 2003, which suggested that among the issues requiring consideration in such circumstances was,

“whether the hijacking was a last and unavoidable recourse to flee from the danger at hand, that is, whether there were other viable and less harmful means of escape”.

In addressing these issues, the adjudicators concluded that hijacking an aircraft is, of its nature, a serious crime. I do not suppose that any of us would dissent from that.

Following the formulation established by the Judicial Committee, the adjudicators were also satisfied that this particular hijacking was not a political crime. This is relevant because the article is limited to non-political crimes.

Finally, while acknowledging that there were,

“some mitigating circumstances leading to the decision to hijack the aircraft”,

the adjudicators came to the view that there were,

“no serious grounds for concluding that the appellants were placed in such a position that they were compelled to carry out the hijacking nor were they under such pressure as to justify the hijacking”.

There was no immediate danger of arrest and there were alternative routes by which they could have left the country.

The adjudicators also concluded that, having chosen to escape from Afghanistan in this way, the appellants had no need to prolong the hijack. The aircraft landed first in Tashkent and then in Moscow before arriving in the UK. Those responsible for the hijacking could easily have claimed asylum in either country. There was no necessity to extend or repeat the offence by forcing the pilot to take off again and fly to a second and then a third destination.

That, in brief, is why the adjudicators ruled as they did. It had nothing to do with the statutory interpretation of Article 1F, which had not been enacted at the time and which in any event relates to a different subsection. Nor did it have anything to do with the definition of a serious crime for the purposes of Article 33.

I believe that the adjudicators were right to conclude that the Afghan hijackers were excluded by Article 1F of the refugee convention. They may have been fleeing from a terrible regime of which they did not approve, but there was no necessity to choose the manner of escape that they did or to threaten the lives and safety of the crew and the other passengers. Also, although this did not form part of the adjudicators’ reasoning, there was no justification for keeping the crew and the other passengers cooped up in the aircraft for another four days once they had landed in the United Kingdom. The noble Lord may regard the hijackers as victims but, in my view, the decision to exclude them from the convention was absolutely right.

In the examples that I have given, we are not talking about a large number of people. The estimate is about 50. However, the examples that I have described, including the ones relating to South Africa and Darfur, illustrate the type of case where, in the Government’s view, the conduct of the person concerned means that they should not be put on a par with other foreign nationals in terms of their immigration status. If it were possible, we would want to remove them from the United Kingdom altogether. However, where that is not possible for human rights reasons, we say that, in certain limited circumstances, we should at the very least be able to deny them immigration leave and the benefits that flow from having such leave. On that basis, I ask the noble Lord to withdraw his amendment.

My Lords, the noble Lord has not answered my question about the 10th person, who was never convicted. I remind him that the defence of duress was accepted by the jury. Indeed, the Court of Appeal ultimately decided that the judge had wrongly directed the jury in respect of the others on duress. The judgment that he has read out shows that the panel was under the impression that duress did not apply. That was not the case. No further prosecution was brought against them.

My Lords, I apologise to the noble Lord for not having answered his point on that. I am afraid that I do not have that information. I shall make inquiries and get back to him.

My Lords, I said that these clauses were primarily designed to affect the position of the Afghan refugees; I did not say that they were exclusively designed to do so, as the noble Lord claimed. I accept that the circumstances of the Afghans are totally different from those of the other people whom he cited, such as Mr B, the South African. However, I should like the noble Lord to reflect on the purpose of keeping even Mr B in indefinite suspended animation. He is not allowed to work, so he is not contributing anything to the economy. He is simply wasting away his life in this country because it is considered unsafe to return him. Although I had not heard about this before tonight, I question whether the Government are right in thinking that it would be unsafe to return him to South Africa—a democratic country ruled by people who respect human rights—in spite of the offences that he committed under the apartheid regime. Many other people committed equally horrible offences in the days of the white racist Government and are now living freely and peacefully in South Africa. In that case, I do not accept that it would necessarily be unsafe for us to return Mr B.

However, as I said, if necessary, people can be kept on six months’ leave to remain at a time until either it becomes safe to return them or they can be given indefinite leave to remain in the United Kingdom. That has always been the position in the law in the past, and it was only when these Afghanis arrived in the United Kingdom that the Government suddenly changed their mind and said that a special immigration status had to be created to satisfy the knee-jerk reaction of Mr Jack Straw at that time.

The noble Lord kindly went into some detail on the reasons why the special adjudicators panel reached the decision that it did but, as I pointed out to him and as he ignored in running through the argument, its reasoning was arrived at prior to the judgment of the Court of Appeal, to which my noble friend has rightly just drawn attention. The Court of Appeal quashed the convictions on the ground that the defence of duress had not been properly directed by the trial judge. That fact was not before the panel of adjudicators when it said that Article 1F applied. It could have reached a completely different decision had it had that information, and there was no review of the decision by the adjudicators panel. The Court of Appeal having made its decision, these people were then granted asylum, and it was to prevent the effect of that decision that the Government introduced these clauses.

The existing immigration law is adequate and we have never had a provision of this kind in our law in the past. The noble Lord’s decision confines a group of people who are victims of an oppressive regime to an indefinite limbo where neither they nor their wives or children can resume a normal life. As I should have liked to demonstrate if there had been time, it is totally incorrect to say that there is nothing to prevent these families applying for asylum in their own right and being granted it if they qualify.

An indefinite delay in considering the applications did not just occur in the cases that I quoted on the previous occasion; the 10th person, to whom my noble friend drew attention, was acquitted by the trial and is still awaiting a decision on his application. Mrs S has had to apply for a judicial review of the eight-year delay in responding to her application and is still awaiting a hearing on that JR application. She has four children, three of them born in this country. This is not the way to treat the victims of a vicious regime and, if it had not been so late, I should definitely have asked for the opinion of the House to be tested. As it is, I shall seek an opportunity to return to this matter at a later date but, in the meanwhile, and with great reluctance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 130 [“Foreign criminal”]:

[Amendment No. 114G not moved.]

Clause 131 [Effect of designation]:

[Amendment No. 114H not moved.]

Clause 132 [Conditions]:

[Amendment No. 114J not moved.]

Clause 133 [Support]:

[Amendment No. 114K not moved.]

Clause 134 [Support: supplemental]:

[Amendment No. 114L not moved.]

Clause 135 [End of designation]:

[Amendment No. 114M not moved.]

Clause 136 [Interpretation: general]:

[Amendment No. 114N not moved.]

Clause 137 [Amendment of section 127 of the Criminal Justice and Public Order Act 1994]:

[Amendment No. 115 not moved.]

moved Amendment No. 115A:

My Lords, I welcome what the Minister has said. I share his view and his hope that the positive atmosphere of good industrial relations in Scotland among prison officers will continue and that the voluntary agreement will continue in place. I understand why this provision is being put forward.

What jumps out from this is that any order would be made by the United Kingdom Secretary of State. I fully understand that, as employment law is reserved under Schedule 5 to the Scotland Act, whereas the running of the prisons is a responsibility of Scottish Ministers—it was my personal responsibility from 1999 to 2003. I ask the Minister to confirm that this is done with the full agreement of Scottish Ministers and that there will not be a Minister from the current Administration who cries “Foul” at a future stage. Given that it is possible to transfer specific functions and albeit that the generality of functions are reserved—if this were already in place it could be done under, I think, Section 63 of the Scotland Act and I think it can be done specifically in primary legislation—has consideration been given to the order being activated by Scottish Ministers at a future date, should they deem that possible? It could be done very narrowly and would not upset the generality of the reservation on employment law.

Another point I raise for clarification is that the following clause, Clause 138, has a power to suspend the operation of Section 127. Is there any reason why there is not a separate Scottish provision on that, should at some future stage an order be made to activate Section 127? Is there a reason why we would not have a separate Scottish power to deactivate it or suspend it, as would appear to be the case under Clause 138 for the rest of the United Kingdom?

My Lords, I am sure that my noble friend Lord Onslow will be grateful for the Minister’s offer to consider the points raised in his amendment.

My Lords, I am grateful for noble Lords’ general support for the amendment. On the specific questions raised by the noble Lord, the structure that is brought forward here is based on the fact, as I have already said, that the provisions arising from employment matters relate to UK law and therefore it is appropriate that it is the UK Parliament that deals with the matter. I understand that the approach we are taking has the support of Scottish Ministers, and that they have no objection to how we are taking this forward. Clearly, the general issues raised by the noble Lord will be considered in the current discussions on devolution. He will know of the commission that has been established in the light of the resolution by the pro-union parties within the Scottish Parliament. No doubt some general issues will need to be discovered, but as far as I am aware there is no concern about the approach that we are taking. It is very much a matter for Scottish Ministers to come to the Government in this Parliament if they wish to do so. I echo the noble Lord’s point that we hope that that will not need to happen. It is essentially a preventive measure.

On Question, amendment agreed to.

[Amendment No. 115AB not moved.]

Clause 139 [Disclosure of information about convictions etc of child sex offenders to members of the public]:

moved Amendment No. 115AC:

My Lords, Amendment No. 115AC highlights the need to take into account factors particularly associated with young offenders. The noble Baroness, Lady Falkner, is right that we had a very useful meeting in which we discussed this and went through some of the details because we all recognise the concerns of the noble Baroness and that this is an important area we need to resolve.

However, we do not believe that establishing a statutory role for local safeguarding children boards within the process of disclosure is necessary or appropriate. Local safeguarding children boards have primarily a co-ordinating function in relation to the bodies or persons represented rather than a responsibility for the operational management of particular cases. We believe that involving them might, on occasion, slow things down and make them not as efficient as they should be.

A MAPPA responsible authority—this answers some of the noble Baroness’s worries—must act in co-operation with various organisations, including social services, the local education authority and youth offending teams, under Section 325 of the Criminal Justice Act 2003. The chief officer of police, the local probation board and youth offending teams are also all on the local safeguarding children board and in discharging their functions they must make arrangements to ensure that they have regard to the need to safeguard and promote the welfare of children. All those bodies are pulled in and utilised when decisions are being made. Any young person who becomes the subject of a disclosure would have been referred to MAPPA by the youth offending team, which would be responsible for the management of the case and would be involved in the decision and the ongoing risk management plan for that youngster who, we recognise, could have particular difficulties and problems.

We acknowledge the importance of involving those bodies in any decision to disclose information about a young offender. Accordingly, we have revised the statutory guidance for MAPPA responsible authorities, which will be published in June. It has been developed in consultation with the NSPCC and Barnardo’s, among other bodies with an interest in children, and they are content with moving ahead on this basis. The guidance will state that when decisions about disclosure are being made about an offender under 18, representatives from children’s services and youth offending services must be at that MAPPA meeting. If they are not present, the disclosure decision should not be made. I hope that reassures the noble Baroness.

However, we cannot accept the amendment. The decision to disclose information under this duty must be a considered decision involving all the relevant agencies. This clause will help to ensure that that is the case. By introducing into the process of disclosure another multi-agency body which meets only quarterly, Amendment No. 115AC risks delaying and unnecessarily complicating a process that is intended to protect children from a risk of serious harm. We believe that the existing process and the revisions we will make to the new guidance are the most effective way of ensuring that the needs of young offenders are balanced against the need to protect the children who they may put at risk. I hope the noble Baroness is persuaded of that and is reassured that her concerns have been considered to the extent that she feels able to withdraw her amendment.

My Lords, the Minister has discussed this extensively with me and I am extremely pleased to hear him give a date—June, I think he said—by which the new guidance will be issued. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 115B:

moved Amendment No. 115BA:

moved Amendments Nos. 115C to 115E:

moved Amendments Nos. 115F to 115FA:

moved Amendments Nos. 115G to 115L:

moved Amendment No. 115LA:

moved Amendments Nos. 115M to 115Q:

moved Amendments Nos. 116 and 117:

moved Amendment No. 117A:

moved Amendments Nos. 117B and 118:

moved Amendment No. 120:

My Lords, in adjourning the House, I should like to place on record the thanks of noble Lords on all Benches for the services of the staff. I am mindful of the fact that we start at eleven o’ clock in the morning and I must apologise to them for this very late evening.

House adjourned at 12.01 am.