moved Amendment No. 1:

moved, as an amendment to Amendment No. 1, Amendment No. 2:

My Lords, it gives me very great pleasure to say how impressed I am by the care, assiduity and sensitivity with which the Government and the Opposition have approached this question. One of the most important conclusions that a court can ever arrive at is to deprive a young person of his or her liberty. However, I am not sure that I entirely agree with the argument put forward so clearly and fairly by the noble Lord, Lord Kingsland.

My Lords, having spoken on this issue in Committee, I am moved, first, to thank the Government for listening to what other people have said, and that is always to be congratulated. It seems to me that what the noble Lord, Lord Bach, has just said may be 100 per cent right, whereas my noble friend Lord Kingsland is guaranteeing that it is going to be right. Under those circumstances, to avoid doubt, what harm is there—and it seems there is some benefit—in amending the Bill in the way that my noble friend says? I am not being difficult, just trying to be clear.

My Lords, it will not surprise Ministers to learn that I am delighted that the Government have moved this amendment and that I very much support it. I share the view of the noble Lord, Lord Elystan-Morgan. If there is any real likelihood of a young person, usually a man, under the age of 18, going to prison, it would be most unlikely that the judge would not want, in any event, a written report and consideration of a great deal of what would come into such a report.

This is a moment at which one can really leave it to the judge to decide what more he needs. I would like to pay tribute to the excellent oral reports that are given, but, where you are likely to go to prison, you are entitled to have a written report. I would have expected that to be provided in a case where a young person is likely to go to prison.

My Lords, we on these Benches first raised this issue in Committee under Amendment No. 79. We are very grateful to the Government for listening and for bringing forward this amendment. Unfortunately, I disagree with the noble Lord, Lord Elystan-Morgan, about the value of an oral report. Probation officers have in the past done their very best but I have always thought it unsatisfactory that they should be required at very short notice to take upon themselves the production of a report. Normally, these reports require inquiries and consultation with the family. It is far better that that be a considered process—very much more so when the defendant is under 18.

The Government have listened to the views put forward from all around the House and I am grateful to them for what they are doing. I also support the noble Lord, Lord Kingsland, for the belt-and-braces approach he has taken in his amendment to the amendment. If he wishes to take the matter further, we will support him.

My Lords, I thank noble Lords for their contributions to this debate. On behalf of the Government, I thank Liberal Democrat Members for having raised this issue in Committee and other Members who have raised it during our proceedings on the Floor of the House. I argue that with Amendment No. 1, we have come up with the right answer. The only thing about which I disagree with the noble Lord, Lord Kingsland, is whether there should necessarily be a written report in each case where a community sentence is imposed. We certainly agree with the view that was expressed around the House that there should be a written report in cases where a custodial sentence is or could be imposed.

The noble Lord is pressing me, quite rightly, to be as clear as possible. As I said when moving the amendment, in practice this means that where the defendant pleads not guilty but is tried and then found guilty, after conviction the court will have to adjourn and a pre-sentence report will be prepared in a case where custody is a possibility. I do not think that we can be much clearer than that. After that, it will be in the hands of the judge, who is the sentencer.

My Lords, as I think I said earlier, I am most grateful to the Government for bringing forward the amendment. The noble Lord, Lord Bach, has clarified a somewhat occluded part of its wording in a way that I find entirely satisfactory.

I am disappointed that the Government are not minded to accept my amendment. I think that in some respects, where a community order is under consideration, the variety of possible components of that order benefit greatly from a carefully thought out pre-sentence report on the history of the young person, his or her character and his or her suitability for the wide variety of possible rehabilitation orders that are open to the court. It is a different argument for a written report but, I believe, an equally powerful one. Nevertheless, the Government have come forward with their amendment; it meets us at least halfway. In those circumstances, I shall not press my amendment this afternoon. Therefore, I beg leave to withdraw the amendment.

Amendment No. 2, as an amendment to Amendment No. 1, by leave, withdrawn.

On Question, Amendment No. 1 agreed to.

Clause 16 [The assessment of dangerousness]:

moved Amendment No. 3:

My Lords, this is the second clause in the Bill which is useless and will draw the contempt of the legal profession and the judiciary if it is allowed to remain. This Government have had the tendency to look overseas to the United States of America and adopt its practices. That is a country where 750 out of 100,000 people are in prison, as opposed to 150 out of 100,000 in this country and an average of about 70 or 80 in the rest of Europe. For that reason, they introduced as a good wheeze the idea of “two strikes and you’re out”. The Government have recognised that that has done nothing to assist the administration of justice in this country. All it has done is serve to fill our prisons and produce the ridiculous anomalies of people being given indeterminate sentences, but with the proviso that they can apply for parole after 28 days. The end of that is very welcome to us. But we are now left with nothing, other than simply a repetition of what already has been the practice, as the Lord Chancellor has recognised in his letter. I urge your Lordships not to make nonsense of the criminal law in this way. The Government should go the whole hog. If they want to get rid of “two strikes and you’re out”, they should get rid of it and not leave useless bits of legislation hanging about.

My Lords, I, like the House, am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for putting forward again his submission that there is no need to retain Section 229—the assessment of dangerousness section—of the Criminal Justice Act 2003 in what is, of course, its truncated form following our reforms, about which he has just been generous.

We are grateful to the noble and learned Lord for bringing the issue to the attention of the House. As he has said, he has been in correspondence with my right honourable friend the Lord Chancellor, and I believe that they have also spoken. At the noble and learned Lord’s instigation, we have undertaken further consultation with senior Court of Appeal judges, who deal with criminal cases day after day. They have indicated informally to the Secretary of State that they favour the retention of Section 229 of the Criminal Justice Act 2003, in the truncated form proposed by the Bill.

I will explain, as briefly as possible, why the Government want to keep this part of the Bill as it is. Our changes in this Bill will, as we have already agreed, remove the statutory presumption of risk, which greatly limited judicial discretion in assessing risk, while leaving in place the remainder of Section 229, which sets out what matters the court may consider when assessing risk. Those, as the noble and learned Lord said, are set out in Section 229(2), which refers to previous offences and says that the court must take into account as well,

“all such information as is available to it about the nature and circumstances of the”

instant

“offence … may take into account any information which is before it about any pattern of behaviour of which”

any of the offences mentioned in its paragraph (a) or new paragraph (aa) form part, and, lastly,

“may take into account any information about the offender which is before it”.

We believe it is important to retain that statutory basis for the assessment of risk because it clarifies that the courts may look not just at the circumstances of the trigger offence, but take into account all such information as is available about the pattern of behaviour of which the offence formed part. That matter is of particular relevance to a court with a special responsibility for assessing an offender’s prospective dangerousness, and a hallmark of public protection sentencing.

My Lords, is the Minister saying that the courts do not already do that?

My Lords, I am of course not saying that. I know that learned judges do that up and down the country. Perhaps the noble Lord, Lord Thomas, will hear me out before interrupting. In passing the Criminal Justice Act 2003, Parliament created a specific task for courts of assessing the dangerousness of sexual and violent offenders. The decision on risk would be made in the context of a new sentencing regime—one that has particularly serious ramifications for offenders who fall into its scope. I think we agree that those ramifications can be extremely severe. We believe that it was important to have clarity, from the beginning, on the breadth of information and evidence that a court can consider in assessing dangerousness in this new context.

On Report, I referred to the case of Considine, and the noble and learned Lord, Lord Lloyd of Berwick, has made his analysis of it. That will perhaps teach me better, as a mere ex-junior member of the Bar, about trying to cross swords with the noble and learned Lord. If I were to have appeared before him in days gone by, the thought of that would have terrified me for the weekend before, but in what I hope is the safety of the House of Lords I will make my point on Considine.

The noble and learned Lord asked whether we agreed that the Considine judgment showed that the new Section 229 would add nothing to the factors that a court would normally consider. The answer to that, to be absolutely blunt with the House, is that I do not think that it is particularly relevant to the issue that the House may have to decide in a few minutes whether we agree to that or not.

As I explained, it would have been an omission for the Government to have failed to cover that point of the legislative scheme when we set up the legislation in 2003. The alternative would have been to trust the case law developed in other contexts in which dangerousness needed to be assessed and that that would be assessed and applied in the new context. We did not want to do that at the time because we wanted the new system to be clear from the very beginning, in view of the novelty and seriousness of the new sentencing proposals. As the noble and learned Lord told the House this afternoon, the courts did, in fact, by a process of case law development, confirm subsequently that the statute reflecting case law, derived in other contexts as to assessing dangerousness, is helpful. But does it follow that, because that is what the cases have decided, the statute is dispensable? We argue not. We do not believe that it is right to repeal the statute on the basis that subsequent case law would give courts the guidance that they need.

It is, we think, particularly the case—although I think that the noble and learned Lord disagrees with us on this point—that a repeal of Section 229 would imply an intention to alter the law substantively. It has not been suggested that there is any need to change the position regarding the breadth of information that may be considered in the changes that we have made in this Bill. Indeed, we would argue that, given the wider changes that we are making to the public protection legislation, it is more important than ever that it remains in place. We think that repeal of Section 229 would therefore create a doubt where currently there is none. It is there in statute.

For whose benefit will that be done? It is not necessarily for that of the learned judges who will of course have to pass sentences. However, I remind noble Lords that soundings that we have made suggest that a number of very senior judges who work in the criminal field are of the view that it would be helpful to keep this section in. We think that there are also significant presentational advantages in making it clear to criminal justice agencies and, perhaps, even to the general public, that previous convictions and the other kind of information that is relevant and lawful to be taken into account by a sentencing judge are very relevant to the assessment of risk. We believe that it is transparent—it is there in the statute—and we believe that it encourages confidence.

Those are the arguments that the Government put in suggesting that, on balance, it would be advisable to keep this part of Section 229 on the statute book.

My Lords, I am very grateful to the noble Lord, Lord Bach, as ever, for his reply. I am always impressed by his arguments, and I am sure that I was impressed by the argument that he advanced in the case in which he said he appeared before me, although I cannot pretend that I remember much about it. However, there is one thing that he said that concerns me—his reference to the fact that he has consulted informally senior members of the judiciary. I am not sure that that is really good practice. I do not think that things should be referred to that have been discussed informally with the judiciary, because we are not in a position to know what exactly the judges have said. Indeed, I have consulted members of the judiciary about this and other clauses, but I do not think that those discussions should be referred to as an argument in support of an argument in this House.

Having said that, I am not impressed with the answer, any more than I was with the letter from the Lord Chancellor, so I wish to test the opinion of the House.

moved Amendment No. 5:

My Lords, I am grateful to the noble Lord for tabling the amendments. These are important matters and they allow us to debate the provisions of the Bill relating to the release and recall of prisoners. Amendments Nos. 5, 7 and 8, amending Clause 28, have the effect that, where recalled determinate-sentence prisoners have been assessed by the Secretary of State as safe to re-release, there would be a requirement for their cases to be referred to the Crown Court so that the court could review that decision.

Our main concern at this proposal is that it would place a substantial added burden on the Courts Service. To give some indication of the scale of this burden, in 2007-08 the Parole Board conducted over 14,000 recall reviews. We are also of the opinion that the process for dealing with such referrals would be slow and bureaucratic. Prior to 1999, all recalls in respect of prisoners serving less than four years had to be pursued through the courts. It was a more complex process which was rarely used, but it was one of the reasons why we extended executive recall provisions in the first place. We are not convinced that the proposal would enhance public protection in any significant way.

I remind the House that prisoners serving sentences for sexual or violent offences are automatically precluded from being given a fixed-term or 28-day recall. Those serving sentences for offences other than sex or violence can be given a fixed-term recall only if they are assessed as not presenting a risk of serious harm.

I also remind the House that all recalled prisoners have a right to have the recall decision reviewed by the independent Parole Board, thus providing offenders with a means of redress. Our recall provisions are designed, frankly, to reduce the burden on the Parole Board and on the Prison Service and will assist in achieving our objective to focus prison and the Parole Board’s resources on the most dangerous offenders. We have carefully considered the noble Lord’s amendments but I am afraid we cannot accept them.

Amendment No. 10 seeks to amend Clause 30 in respect of the recall of life and indeterminate-sentence prisoners. I can assure the House that we recognise that recalling a life-sentence prisoner has potentially serious consequences. It could result in the offender spending the rest of his or her life in custody. That is why such decisions are not taken lightly and why all such decisions are subject to review by the Parole Board. Amendment No. 10 requires all recalls of life or indeterminate-sentence prisoners to have the approval of a judge.

We fear that this amendment would build a potential source of delay in the recall process, during which further serious crime could, unfortunately, be committed. The purpose of recall action is to enable the Secretary of State to take swift and preventive action in removing potentially dangerous offenders from the community. We think it is a crucial means of public protection. The current provisions for the recall of a life-sentence prisoner—this is an important issue but I shall be as quick as I can—are to be found in Section 32 of the Crime (Sentences) Act 1997. That section provides two routes for recall. Section 32(1) enables the Secretary of State to recall, having first consulted the Parole Board and received a positive recommendation. But Section 32(2) enables the Secretary of State to recall a life-sentence prisoner without prior consultation with the board where it is,

“expedient in the public interest to recall that person before such a recommendation is practicable”.

The clear inference of the statute as it now stands is that in the majority of cases a lifer recall will be pursued through the Section 32(1) route—the Parole Board route—and that the Secretary of State will recall a lifer without prior consultation with the Parole Board only where such consultation is not possible in an individual case.

The House will know that for life-sentence prisoners released into the community on life licence, the threshold for recall is high. An increased risk of reoffending by itself is not sufficient to warrant recalling them to prison. The Secretary of State must be satisfied that the prisoner presents an unacceptable risk to life and limb. To warrant a life or indeterminate sentence it follows that a prisoner will have been convicted of the most serious sexual or violent offences. When their conduct has deteriorated to such a degree that they are assessed as presenting an unacceptable risk to life or limb, it is invariably in the interests of public protection that the recall process facilitates their swift removal from the community.

In practice therefore, nearly all recalls are effected administratively as we speak. We accept that there is no limit on the number of cases that may be decided under the public expediency recall procedure—that is, Section 32(2), which gives the Secretary of State his powers. However, the spirit of the legislation leans towards the primary mechanism for deciding to recall a lifer through a Parole Board recommendation. But in the period from October 2002 to March 2007 more than 80 per cent of decisions to recall lifers were made without a Parole Board recommendation. I can reassure the House that those decisions have been entirely correct in law on the basis that it was expedient in the public interest for the Secretary of State to exercise his power of executive recall without consulting the Parole Board.

Nevertheless, we are concerned to ensure that the statutory framework reflects current operational practice, and that the operational practice could not be seen as undermining Parliament’s intention. For that reason, Clause 30 places our current operational practice on a firm statutory footing. We also recognise that it is critical that there are strong and effective safeguards in place to ensure that the decision taken by the executive is open to challenge by the offender, and even if not challenged, is open to robust scrutiny by an independent body. That is what the review by the Parole Board achieves.

The Parole Board will invariably have an oral hearing to consider the representations of life-sentence prisoners. Such hearings are normally chaired by a judicial member. The prisoner is entitled to be present, legally represented, and to call witnesses. The board has the power to direct the prisoner’s immediate re-release if it is satisfied that it is safe to do so. This is a question of balance and we recognise that it is important to strike the right one between being able to take swift, preventive action to protect the public on the one hand, and ensuring that such decisions are subject to robust scrutiny. That is why we believe that putting Clause 30 into the Bill is the appropriate measure to achieve that balance.

I can be shorter and more helpful to the noble Lord, Lord Kingsland, on his two remaining Amendments Nos. 6 and 9. They would remove the power to amend the period of time an offender must serve before being automatically re-released if given a fixed-term recall or the period other recalled offenders must serve before the Secretary of State must refer their case to the Parole Board.

Having given careful consideration to these amendments, and expressing our gratitude to the noble Lord, Lord Kingsland, in particular, and having listened to other noble Lords in debate, we are prepared to accept those two amendments. We will need to bring forward a consequential amendment when the Bill returns to another place.

My Lords, first, I am most grateful to the Minister for acceding to Amendments Nos. 6 and 9. No doubt there will be certain changes in the drafting by the Government in order to stamp their own inimitable character on these provisions.

My Lords, the noble Lord’s point should be called the “Hunt rule”, as it was clearly expressed by my noble friend: no Government ever accept an amendment, however perfectly drafted, by the Opposition.

My Lords, it will come as no surprise to the Minister to learn that I am disappointed by his reaction to our other amendments. He underlined the importance of speed and effectiveness in the recall process in relation both to those categories in Clause 28 to which I referred and to the life sentence category in Clause 30. I understand that those are important considerations.

On the other hand, individuals are effectively having their liberty removed from them, often for a very long subsequent period. In my submission, the judicial arm of the constitution ought to play a role in that decision. That is what lay at the heart of our amendments. The Minister has been adamant: he will give no ground. I thought very carefully about what I should do at Third Reading. In the end, I have decided not to press these amendments, but I would not want the Minister to think that strong feelings on the part of the Opposition did not lie behind them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 6:

moved Amendment No. 9:

moved Amendment No. 11:

My Lords, one only has to compare the clause as it now appears in Amendment No.11 with the clause as it appears in the Bill to see what a very marked improvement the amendment has made to the existing Bill. I am very glad that that has happened and I extend my welcome to it. It achieves exactly what needed to be achieved, neither more nor less. I support the amendment.

My Lords, we on these Benches congratulate the Government on another climbdown on the Bill. We are pleased to see that the amendment has been put through.

On Question, amendment agreed to.

Clause 42 [Power of Court of Appeal to disregard developments in the law: Northern Ireland]:

moved Amendment No. 12:

moved Amendment No. 13:

My Lords, I apologise to the noble Baroness, Lady Miller, for not putting my name to Amendments Nos. 13 and 15 in time. My opposition to these clauses is undiminished. I listened carefully to the reply that my noble friend Lord Hunt made in the debate on Report. He spoke with great passion and sincerity, and I admire him for that, but unfortunately the quality of his arguments did not match up to the passion and sincerity with which he made them.

This is fundamentally about an intrusion in the harmless private lives of ordinary citizens in this country. On Report, I spoke about the Video Recordings Act 1984. I did not repeat one of the juiciest pieces about it. Until that time, we had a British Board of Film Censors, which was not a censorship board. It classified films, and if it refused to classify them, they could still be shown with the permission of local authorities. The Video Recordings Act 1984 changed the board from being a classification board to being a censorship board because if a video recording was not approved by the board, it could not be shown at all. From being a classification board, it became a censorship board, but its name changed from being a censorship board to a classification board. George Orwell would have been proud.

I am enthusiastic about Amendment No. 13 because it seeks to get round the horrible situation which the Government are putting us in by adding an extra gloss to the Obscene Publications Act 1959. I would support the noble Baroness, Lady Miller, if she chose to divide on that.

I am less enthusiastic about Amendment No. 15, not because it is not right in itself, but because I simply do not believe that any jury will convict a citizen of this country for possessing what it is not illegal to produce. The noble Baroness, Lady Miller, gave the reason of needing inspectors with the right of entry to people’s homes, sitting rooms, bedrooms, video machines and DVDs. Is that really what the Government are proposing? There is no other way of enforcing it. If they succeed in doing it, however they succeed in doing it, what jury is going to convict people for possessing what it is not illegal to produce? The Government, despite all the sincerity of the noble Lord, Lord Hunt, have failed to answer any of these arguments.

My Lords, I am very pleased indeed that these amendments have allowed one to have another look at this whole area, because it was a mistake not to have allowed us on Report to discuss a similar route to the one agreed for the clauses dealing with sex workers for the clauses in this Bill about extreme pornography. In other words, they should be taken out of the Bill. I hoped that your Lordships would have had an opportunity to debate both sides of the concern that lay behind those amendments.

The human rights aspect was rightly aired. However distasteful to many, including myself, if people choose to watch extreme or kinky pornography in the privacy of their own home, and that is not breaking the law, the state should not be involved. It was argued by the organisation backlash, among others, that this law as currently drafted is likely to criminalise hundreds of thousands of people who use violent pornographic images as part of consensual sexual relationships. It also argues that some of the RAE research was inaccurate and biased. The other, equally important, concern is whether extreme pornography could be harmful, in the sense of generally brutalising, to citizens. I am reminded of when I was asked to watch an experiment at the LSE with two groups of undergraduates. One group watched some rather violent material, and the other was shown, gradually, up to a point, fairly placid stuff. At that point, they were both shown some pretty violent stuff. The first lot, who had got used to seeing what they were shown—rather more violent stuff—did not react at all, while the other group was horrified. That is quite important.

Of far greater concern, as has been mentioned, is the possible effect on sick or vulnerable people who might fantasise about what they are viewing and go on to commit violent crime against members of the public. That was argued forcefully in the other place by Martin Salter MP, quoting the case of Jane Longhurst. In most cases, as we know, these offences are committed against women. Both areas of concern combine to make a strong case for a far more professional look at this whole subject, not least in view of the growing use of the internet, and other forms of IT equipment, to access this kind of extreme material, and the lack of any significant powers for Ofcom to intervene.

As one who, in the 1990s, when chair of the Broadcasting Standards Commission, had responsibility for monitoring the early days of pornography, I have absolutely no doubt of the huge growth in both the quantity and the extreme nature of today’s material. No doubt, if we had followed the Minister’s advice and gone to the police station to see the evidence that he had to endure, that would have graphically confirmed my view.

Despite the proposal that I had hoped to make earlier—that, like the clauses on prostitution, these extreme pornography clauses could be referred for further expert study and not form part of the Bill—I still urge the Minister and the Government to establish an expert commission or Select Committee to take evidence and examine this whole area in far greater detail. It is a growth area of citizen concern which will not go away.

My Lords, as I indicated on Report, I broadly support the Liberal Democrats and the noble Lord, Lord McIntosh, on this matter. However, one thing puzzles me about Amendment No. 15: it does not allow for a fine to be imposed on conviction or indictment, unlike the clause as it stands. The overcrowding in our prisons will not be ameliorated at any time in the foreseeable future. It seems to be a defect that there is no possibility of a fine in that case.

My Lords, on Report, I asked the Minister the purpose of this new offence. Was it to discourage criminal sexual acts being filmed, or was it to discourage people from watching porn? The Minister’s answer was something of a surprise: he wished to criminalise the gratification of the individual in watching pornography in the privacy of his own home. That is one thing, but it seems completely illogical to make that a more serious offence than the act which—if it is criminal—the individual is watching. I ask the Minister to reflect on whether he can in any form of logic maintain his opposition to these amendments.

My Lords, I was not intending to speak but I want to add my support for what the noble Baronesses, Lady Miller and Lady Howe, and my noble friend Lord McIntosh have said in this short debate. From Committee stage onwards we have been consistent on this issue. I very much appreciated the support that the noble Baroness, Lady Miller, gave me in my efforts to remove the street offences clauses at an earlier stage, and I very much commended my noble friend Lord Hunt for agreeing to do that. It is a great pity that he has not taken these clauses out as well. With the greatest respect to him, he has not made the case that they are necessary, workable or desirable. As my noble friend Lord McIntosh said, he made a brilliant speech on Report, full of passion and full of commitment; but his main point and main argument in favour of these clauses was that it is necessary to satisfy the public demand, because the public do not like what they think is available. They do not know quite what is available but they do not like it and the law, therefore, must make it impossible for it to be accessed.

My worry is that if you adopt laws on that basis, you will finish up with something that is unworkable. As my noble friend Lord McIntosh said, it is almost impossible to imagine that a jury will convict someone on the basis of viewing an activity, the activity itself not being the subject of a criminal act. I think that the law will be brought into disrepute if the Government persist. I, too, support the noble Baroness, Lady Miller. I commend her courage and honesty and the way in which she has campaigned on this through three stages of the Bill. I hope she does not give up.

My Lords, first, I must apologise to your Lordships for arriving slightly late for this amendment. I, too, support it. I feel that the Government are doing their old-chum gesture politics. They are “sending a signal”. That is a very bad basis for passing laws. We know that this is not unique to this Government. I can almost guarantee that after the next general election, when I might be sitting on that side of the House and other Members might be sitting on this, I will make exactly the same criticism of an incoming Conservative Government. It is a habit which Governments find irresistible. But the logic of what the noble Lord, Lord McIntosh, and the noble Baroness, Lady Howe, said, and the expressed views of the Joint Committee on Human Rights, on which I have the honour to sit, support that position. Even with the concessions coming in the next clause, it is an awful pity that this amendment will not be agreed to.

My Lords, for the reasons that have been given by a number of other noble Lords, I, too, urge the Government, even at this late stage, to rethink these clauses. The provision is potentially unworkable. In view of the advantages of the noble Baroness’s amendment, I very much support it.

My Lords, I also am grateful to the noble Baroness, Lady Miller, for allowing us to come back and debate this important matter. The principle was decided on Report, and this debate has in a sense been a rerun of that debate on principle. That is fair enough. I fully understand the probing nature of the noble Baroness’s amendments.

I very much accept the point made by the noble Baroness, Lady Howe, and endorsed by my noble friend Lord Faulkner, that this is but one element of a number of matters in this area. The noble Baroness has eloquently argued for a Select Committee of this House to look at these issues in general. Although that is always a matter for the House itself, I am sure that the Government will always co-operate and be happy to give evidence to any such initiative that the House takes forward. She might then say, “Well, you ought to take this away until the investigation has been completed”. She will know that I am reluctant to do so. However, I take her point that some substantive issues need to be discussed, including those issues on prostitution.

My Lords, in the Minister’s comments one suddenly sees a chinkette of light. In those circumstances, will he ask, through the usual channels, for a Select Committee? He shakes his head in the wrong way. Perhaps I shall take rather less notice of his charm on this issue than I thought that I should.

My Lords, the noble Earl is always tempting me down paths I ought not to go. It is not for the Government to suggest to Parliament what it ought to do in matters governing its own affairs. If I were to do that, I would be out of order. I recognise that the noble Baroness, Lady Howe, has expressed a legitimate concern that many issues around sexual behaviour need to be addressed. All I was saying is that this is entirely a matter for this House. However, there are ways in which we may debate these matters: in Thursday debates, in Questions for Short Debate, or, if the House authorities agree, by setting up a special Select Committee.

As noble Lords will know, there was a great deal of controversy over the authorities’ decisions on a number of proposed Select Committees. Noble Lords will remember, for instance, the arguments over whether there should be a Select Committee on the Barnett formula. My noble friend Lord Barnett, who is not present today, would remember. I am simply saying that I recognise the point raised by the noble Baroness. These are important matters and Parliament has an important role in discussing them.

My Lords, I am most grateful to the Minister for giving way and for what he said. However, I should hope that is a matter of concern for both Houses and that a Joint Committee can therefore be set up.

My Lords, that takes me down even more dangerous paths by asking me as a Minister to suggest what the other place should do. But I take the noble Baroness’s point.

I thank my noble friend Lord McIntosh for his kind remarks, although he went on to say that he did not think much of my arguments. I was interested in his recollection of the great days of local government, when it had a role in deciding whether films could be shown in a local authority area. As a member of Oxford City Council in the 1970s I well recall Alderman Fagg chairing a sub-committee of the estates committee which viewed these films on Monday morning at 10 o’clock. I confess that we debated these matters and that I argued that there should be no censorship of any film and it was all unnecessary. Well, I have changed my mind. The noble Lord, Lord McIntosh, has not. He has been a model of consistency over many years on these matters.

Over the past few days I have received many e-mails from many organisations. I understand, of course, my noble friend’s concern about unnecessary intrusion into harmful activities in people’s own bedrooms. However, we are not talking about what might be described as the routine pornography which I am sure accounts for much of the billion pounds and the—as the noble Baroness suggested, though I am not sure how many people—million people; we are talking only about extreme or violent pornography. I want to make that clear.

The noble Baroness asked me to explain in detail why the Obscene Publications Act and its definitions were not used in the formulation of this clause. This legislation has been proposed because the controls in the Obscene Publications Act are much more easily evaded these days by the use of modern technology, namely the internet, which makes it much easier to use and distribute and therefore easier to possess. As most such extreme material is hosted abroad, controls on publication and distribution are no longer sufficient.

My Lords, I am sorry to interrupt the Minister. The issue is not about the controls. The issue is about the definitions. The definitions in the Obscene Publications Act have worked for almost 50 years. Changes in the difficulty of control do not affect that argument at all.

My Lords, I do not think I was arguing that. I was trying to answer the first question posed as to why we are bringing forward this legislation at all. The second question, relating to the noble Baroness’s first group of amendments, is why we have not we have not used the Obscene Publications Act. Her amendment removes the element of the offence which requires that an extreme pornographic image depicts an extreme image and replaces it with a reference to the definition of “obscene”; namely, the “deprave and corrupt” test, which, as she says, is found in Section 1 of the Obscene Publications Act 1959. Her amendment also has the effect of rendering redundant subsections (6) and (7). Those subsections set out the,

“grossly offensive, disgusting or otherwise of an obscene nature”,

test and the list of extreme acts. The amendment has the effect of opening up the offence to all obscene pornography. It would no longer be limited to certain specified depictions of threatening, violent, bestiality or necrophilia images. The noble Baroness may wish to consider the implications of that when she comes to wind up.

My officials and the department, when considering this matter over the months that it has taken to prepare the Bill, saw the initial attraction of linking this possession offence to the existing publication offence. Under the Obscene Publications Act, whether material is obscene depends on whether it would deprave and corrupt those most likely to read, see or hear it. That “deprave and corrupt” test works by reference to the likely audience. In the context of possession there is no audience. Directly importing the deprave—

My Lords, there is an audience of one, who is about to be criminalised should this Bill be passed. How could the officials or the Minister come to the conclusion that there was no audience?

My Lords, directly importing the “deprave and corrupt” test into this offence would have the effect of requiring the possessor of the material to consider its effect on himself. The possible perverse consequence of that could be that less sexually aware members of society become more at risk of committing an offence than habitual users of pornography. So it is clear that the test would have to be adapted. It is not a simple case of referencing. We explored the feasibility of adapting the Obscene Publications Act but concluded that our approach is to be preferred.

The Obscene Publications Act offence is not limited to specified material, but, rather, catches anything which passes the “deprave and corrupt” test. By contrast, the approach that we have taken with this possession offence is to target only specified material. Even if we had used an adapted version of the Obscene Publications Act obscenity test, we would still have had to limit it by reference to specified acts.

As the amendment of the noble Baroness, Lady Miller, has the effect of rendering redundant the subsection (7) list of specified acts, it opens up the clause to cover a much broader range of pornography—anything which could pass the “deprave and corrupt” test. I am advised that it could catch the depiction of degrading sexual acts such as drinking urine or smearing excrement on a person’s body. In that respect, the noble Baroness’s amendment might widen the offence significantly.

We do not consider that by not providing for a direct read-across to the Obscene Publications Act test we open up any significant risk that material could be caught by this possession offence which it would be lawful to publish. It is not our position that the words,

“grossly offensive, disgusting or otherwise of an obscene character”

are synonymous with the wording of the “deprave and corrupt” test. Rather—I repeat the points that I have made at earlier stages—it is that the three elements of the offence, the “pornography” test, the “explicit realistic extreme act” test and the “grossly offensive, disgusting or otherwise of an obscene character” test, when taken together, should ensure that the offence captures only material which it would be illegal to publish by virtue of the “deprave and corrupt” test within the Obscene Publications Act.

Amendment No. 15 would reduce the maximum prison sentence available to Crown Courts to deal with the possession of material described in Clause 62(7)(a) and (b) from three years to two years, making it the same as the maximum penalty proposed for bestiality and necrophilia material falling under Clause 62(7)(c) and (d). I have listened carefully to the points raised on this. In considering the penalties for these offences, it is clear that we have considered carefully proportionality with regard to existing criminal offences. We certainly think it right that the maximum penalty for possession of extreme pornographic material should fall below that available for the more serious offence of possession of indecent photographs of children, which is five years maximum. It should fall below also that available for publication, distribution and possession for gain offences under the Obscene Publications Act, which in Clause 69, as your Lordships will be aware, we are raising from three to five years. These are also more serious offences. Further, the penalties should not exceed the maximum penalty available for certain substantive offences potentially committed in making pornography, such as those in the Sexual Offences Act 2003 in relation to offences with animals and corpses which carry maximum penalties of two years.

The sentencing levels that we propose are proportionate, bearing in mind the high threshold levels for this offence. I stress that we are not talking about the kind of soft porn to which many noble Lords have referred and which has been referred to in the letters and e-mails that I have received in the past few weeks. It is material that should not be in circulation in this country. I say again that the increased availability of this material is a direct result of the impracticality in the internet age of controlling its circulation by targeting the publishers under the Obscene Publications Act 1959. We think it right to give the courts the means to reflect greater concern about the material featuring extreme sexual violence, whether real or simulated, than is the case for material which is degrading but non-violent. That is the reason for the distinction in the maximum penalties between the categories set out in Clause 62(7).

There are two other points to be made on the noble Baroness’s amendment to the penalty provision. First, her amendment removes, perhaps inadvertently, the capacity of the Crown Courts to impose a fine. Secondly, it deletes the transitional provision of subsection (4), which is required to provide for future changes to the sentencing powers of magistrates’ courts in England and Wales.

On the issue of policing, I hope that I can reassure noble Lords. The police have welcomed this offence. They see it as a further means to take illegal material out of circulation and an additional tool to deal with individuals whose behaviour may be causing concern. This is not, I suggest, a case of policing the bedroom. It is intended to target only the most extreme pornography. We believe that the number of prosecutions will be relatively small, but my understanding—from advice that I have received—is that the offence will be a valuable additional resource for officers already working on protecting the public in this area. I also give an assurance that this offence will not be commenced before a full explanation of it is given to the police and to the courts.

I am aware that this area is controversial. We discussed the principle on Report, and I hope that I have, at the very least, provided some explanation to the noble Baroness of the approach that the Government have taken. She will now have to consider her position.

My Lords, I thank very much all those noble Lords and noble and learned Lords who have spoken. This difficult area is one that I would have found it lonely to do alone, so I particularly thank your Lordships for expanding—better than I can, in all cases—on why these clauses are, in our view, particularly unworkable.

As the Minister says, we dealt with the principle on Report, so the point of coming back at Third Reading is to offer the Government a small chance to make these clauses slightly less unworkable—and slightly more reasonable—especially in the light of the history of courts trying to deal with this difficult area, and of juries understanding what is going on. I am particularly glad that the noble Baroness, Lady Kennedy of The Shaws, has joined the House at this point. She has spoken before about how difficult juries find this issue, and obviously has wide experience of why that is so.

This really comes down to the contention that these clauses are, as the noble Earl, Lord Onslow, said, put there to send a signal more than anything else. There was great consensus that they are really unworkable and do not address the issue that the Government are trying to address here. Perhaps the most chilling point in the Minister’s summing up—I thank him for going into some detail—was that when it came to policing this it was for dealing “with individuals” who are “causing concern”. Well, that is pretty difficult. How are they causing concern if they have committed no crime yet? They might be causing concern in all sorts of ways; they might be individuals whom the police do not much like, for a number of reasons, but then they get raided. Again, that really makes me feel worried. This is, as the noble Baroness, Lady Howe of Idlicote, said, all to do with human rights. It would have been better to look at this in the cool light of day. I am sorry that the Minister has resisted the idea. I know that he cannot call for it, but he could put on the pressure to create a Select Committee to look at the whole issue of violence in the media. That, I think, is what really concerns noble Lords.

I hope that, in this instance, the Conservative Benches will indicate whether they support these poorly drafted and unworkable clauses. I have a feeling that, should I test the opinion of the House, they will simply abstain. That would be a pity, as they are usually strong on trying to improve a Bill as the Liberal Democrat Benches are trying to today. It is quite clear that we feel there is still room for improvement. For that reason, I beg leave to test the opinion of the House.

moved Amendment No. 14:

My Lords, when members of the Joint Committee on Human Rights were told that the Minister was going to move this amendment, we all said, “Yippee” or words to that effect, so I would like to thank the Minister for going as far as he has. There is a question of moving millimetres rather than metres, but one must be thankful for small mercies; on behalf of the Joint Committee, I would like to say, “Thank you for the millimetres”.

My Lords, I raised these matters in Committee and at Report and I also want to express appreciation for the amendment introduced by the Minister, which addresses the issue of someone having a record of his or her participation in a consensual act. The noble Earl, Lord Onslow, is right that it is millimetres rather than metres. As I understand it, a person may have a photograph and although he himself is not present in the photograph, he could lead witnesses to establish that the act was consensual. But that defence will not be open to him. I regret that that is an issue that will come up in a court case and show again the fundamental misgivings that many of us have about these clauses as a whole. Nevertheless, it is only appropriate to acknowledge where a step in the right direction has been made and I am grateful to the Minister for that.

My Lords, it would be discourteous for me not to join in. I rather liked the word “chinkette” used by the noble Earl, Lord Onslow. This is something rather than nothing and we are modestly grateful.

My Lords, I am overwhelmed by the modest gratitude of the House.

On Question, amendment agreed to.

Clause 65 [Penalties etc. for possession of extreme pornographic images]:

[Amendment No. 15 not moved.]

moved Amendment No. 16:

moved Amendment No. 17:

My Lords, for the reason suggested by the noble Baroness, the Government will not oppose the amendment. We will have to see what the other place thinks about it.

On Question, amendment agreed to.

Clause 98 [Qualifying offenders]:

moved Amendment No. 18:

moved Amendment No. 19:

moved Amendment No. 20:

moved Amendments Nos. 21 to 25:

moved Amendment No. 26:

My Lords, I am grateful to the Minister for bringing forward these amendments. I am sure that I speak for the noble Baroness, Lady Finlay. I am pleased to have pointed out to the noble Lord that the Government had overlooked the fact that the Welsh Assembly could not make criminal offences. I am sure that the message will get to Wales in time for tomorrow that, at Third Reading, after the Bill had gone all the way through the other place and come here, they finally remembered that Wales exists.

My Lords, Clause 117 is a very progressive and well justified measure. It is perfectly true, of course, that the more serious offences—we know that many such offences are committed on NHS premises and against NHS personnel—can be dealt with quite adequately under the Offences Against the Person Act 1861. The beauty of Clause 117 is that one can intervene at a much earlier stage to prevent what might be a very serious fracas developing. I welcome, as does the noble Lord, Lord Thomas of Gresford, the fact that this measure has now been extended to Wales.

Whether this is NHS legislation that borders on the criminal or criminal legislation that borders on the NHS is a somewhat moot jurisprudential point. It does not really matter. Massive executive responsibilities in relation to the NHS have been with Wales ever since the devolution process of 1964 began. They were devolved, after 1998, to make this matter the prerogative of the Welsh Assembly in relation to executive decisions. Now we have Part 3 of the Government of Wales Act 2006, in Schedule 5 to which NHS functions belong to an area where the Welsh Assembly could initiate a procedure that would enable an Order in Council to grant it a swathe of authority and jurisdiction. As yet, it has not done so. In a perfect world, I would love to have seen the Welsh Assembly take this initiative, provided of course that the provisions came into force no later than the provisions in this Act. There is no earthly reason why NHS personnel in Wales, vulnerable as they are, should not have the same protection as NHS personnel have in every other part of the United Kingdom.

I make a slightly technical, constitutional point here. During the passage of the 2006 measure through this House, an undertaking was given which, I think, was the equivalent of an undertaking given in the context of Scotland: that there would be a convention whereby this House, although of the parent Parliament, would have absolute sovereign authority to intervene in any matter relating to Scotland, Northern Ireland and Wales, but would not do so in regard to any function that either had been transferred or was intended to be transferred. Therefore, in future, I very much hope that the initiatives will come from the Welsh Assembly Government themselves. I think there are three matters in the pipeline now, one already having been passed by this House. Under Part 3, I understand there are about 20 more on the shopping list, and they take quite some time to be heard. I very much hope that the Welsh Assembly will, in so far as it is practicable, take those initiatives. I trust that this House will be loyal—I am certain that it will be—to that undertaking that it will intervene in such matters only at the request of the Welsh Assembly.

My Lords, I would like to have on the record my sincere thanks to the Ministers in the Wales Office, to the First Minister in the Assembly and to Ministers in the Assembly for having entered into a long and, at times, complicated dialogue to ensure that we reached this point. These amendments, tabled by the Government, are extremely important because they ensure that the Assembly will have parity with the powers that will exist in England. They also have the sophistication to allow the powers to be triggered at the decision of the Ministers in the Assembly. I am also grateful to officials who, behind the scenes, have worked with me and enabled the dialogue to take place.

My Lords, I thank noble Lords who have contributed to the debates and in particular the noble Baroness, Lady Finlay, because she has played a sterling role in this exercise. I also assure the noble Lord, Lord Thomas of Gresford, that no Labour Government could ever forget Wales—it is always at the forefront of our mind and our thinking.

We responded very positively to suggestions put to us. Our earlier thinking was that the Welsh Assembly would come forward later with this, but we are more than happy to ensure that these provisions are active and will be actively pursued in England and Wales. I am also grateful to the noble Lord, Lord Elystan-Morgan, for his kind contribution. I thought that what he said was absolutely right: that these things are initiated close to where the power in Wales really lies. That is a very important principle, particularly in a devolutionary settlement. I am grateful for the support we have had on these amendments.

On Question, amendment agreed to.

moved Amendments Nos. 27 to 31:

moved Amendments Nos. 32 and 33:

moved Amendments Nos. 34 to 43:

moved Amendment No. 44:

moved Amendment No. 45:

My Lords, I am grateful to the noble Lord, Lord Avebury, for bringing the House’s attention back to the provisions relating to the special immigration status. The first of these amendments would introduce an additional condition which would have to be satisfied in order for someone to be treated as a foreign criminal for the purposes of Clause 128. In addition to being someone who has been sentenced to imprisonment for two years or more, or who has been given a custodial sentence of any length for one of the offences listed in the order made under Section 72 of the Nationality, Immigration and Asylum Act 2002, or who is excluded from refugee status by virtue of Article 1F of the Refugee Convention, a person would be a “foreign criminal”, and hence liable to designation, only if, in addition, the Secretary of State certifies that he or she constitutes a danger to the community. I do not consider that additional restriction appropriate, and I am therefore unable to accept this amendment.

Why? I remind noble Lords that the new special immigration status is intended to apply primarily to foreign criminals as defined in this clause who are liable to deportation, but who cannot currently be removed for human rights reasons. They are people who we would want to remove from the United Kingdom if we possibly could. We would seek to remove the person concerned whether or not he or she represented a continuing danger to the community. Special immigration status, as the phrase suggests, is an immigration measure. It is not about public protection.

The test for deportation in Section 3(5)(a) of the 1971 Immigration Act is that the Secretary of State deems the person’s deportation to be conducive to the public good. That test can be met on the basis of the person’s past conduct alone, irrespective of whether or not they represent a continuing danger to the community.

Let us take the hypothetical example of someone who has committed a serious offence and has served a lengthy custodial sentence well in excess of the two-year threshold. It may be that on their release they are no longer a danger to the community. Indeed, if the person concerned has been given a life sentence, the Parole Board will not recommend the person’s release if they consider that he or she is still a danger to the community. We might nevertheless wish to deport that person, and, if we are unable to do so for human rights reasons, we would wish to be able to designate them under this part of the Bill. In the case of someone who is excluded from refugee status by virtue of Article 1F, the point may be even more starkly defined.

Where a person is guilty of a crime against peace, a war crime or a crime against humanity, their ability to commit the crime is quite often linked to their status or position in the country where the crime occurred. Once they are in the United Kingdom, they will normally have lost that status or position, and, even if they have not, they are very unlikely to constitute a danger to the community of the United Kingdom. For example, Mr A—mentioned by the noble Lord—the founder member of the Sudanese Justice and Equality Movement whose case I mentioned on Report, posed no danger to the community of the United Kingdom. Again, it is likely that we would wish to deport such a person. If we are unable to do so for a human rights reason, we would want to be able to designate them under these provisions.

The Government’s position is that it should be possible to deny foreign criminals as defined by this clause immigration leave, and prevent them establishing ties which may make their removal at a later date, when things change, more difficult, whether or not they constitute a current danger to the community. Their past actions alone would be sufficient grounds for taking deportation action. However, since they cannot be deported at the present time, we say that the same test—that is, the individual’s past actions, without any attempt to assess whether or not they continue to pose a danger to the community—should apply to designation for the purposes of special immigration status.

My Lords, the Minister addressed the question of appeals as if Amendment No. 46 referred to appeals against designation whereas it is, of course, related to Amendment No. 45, which provides for certification. The appeal in Amendment No. 46 deals with the appeals on the Secretary of State’s certification in Amendment No. 45. I hope that the Minister will recognise that his argument did not apply pari passu to what we are proposing under these two amendments.

All that is not really the point because we are talking about whether there should be that procedure for certification in addition to any other conditions that are imposed. I must say that we have not been successful in trying to compromise, as I had hoped.

The Minister did not address what I had said about families, particularly wives and children, who are left in a state of limbo indefinitely under the proposals in the Bill. The Minister knows that we have had reason to complain several times because his assurances that they had power to appeal, and that they would be considered in the normal way, have not been satisfied in practice. The four wives and children whose applications were treated in line with those of the Afghan hijackers—we are using them as examples and not as exclusive cases that we mean the decision to rest on—have not been considered properly as individual applicants but are still waiting after eight years for several cases to be considered.

I am dissatisfied with the Minister’s answer and, although I accept that the drafting is not perfect, I wish to test the opinion of the House.

moved Amendment No. 47:

My Lords, earlier in the debate I used the word “chinkette” of light. This is a great flash of sunlight from the noble Lord. One is always tempted on occasions such as this to refer to sinners that repenteth and all the rest of it. What I must do is say thank you to the noble Lord. What I am even more impressed by is that the amendment was moved on my behalf by my noble friend Lord Bridgeman on my Front Bench, without even putting forward the argument. He just said, “I beg to move”, and the Minister was so moved by that one line that he agreed to it. All I can say is thank you very much indeed.

On Question, amendment agreed to.

moved Amendment No. 48:

My Lords, I will speak specifically about police pay and assure the noble Baroness that we will be supporting this amendment. Independent arbiters, as we have heard, awarded a 2.5 per cent pay award and the Home Secretary can have been left in no doubt about the anger of police officers on the day of their massively successful, well-ordered and well-mannered protest march on 23 January 2008. It was attended by 25,000 off-duty officers. We know that the Police Federation has gone to judicial review; we await the outcome of that.

The office of constable is a protected one and has been for almost 100 years since police officers accepted a no-strike clause. How that office has been badly used by the Home Secretary’s decision to override years of clear understanding on all sides that an agreement made by an independent body should be binding. It always was and it always should be. When I was a member of the Police Negotiating Board, some years ago in the time of the previous Government and this one, we all worked hard to maintain that position. It is desperately sad for me to see how this long-standing agreement has been completely overturned without any consultation and absolutely no real understanding of the views of front-line police officers who, day to day, give their services to protect us all.

This is what a number of them have told me: they have expressed sheer disgust and outrage at the Home Secretary’s decision not to award a full amount immediately. They mention the amount that MPs pay themselves; fat cats in the City, about whom we heard some lively questions put to the Minister today at Question Time; and the restrictions on their private life when they are off duty. Effectively, a police officer is always on duty. Officers do lots of horrible work. They are hands-on at accidents, deaths and assaults on themselves and others. They really do not feel that they are getting thanks for doing a difficult and sometimes dangerous job. In Committee, my noble friend Lord Thomas of Gresford said:

“The appointment of a pay review body has been used over and again to take the sting out of an industrial conflict. It has very often been the price that the Government or a state body have paid for seeing an end to industrial conflict. They ought not in our view to undermine those provisions. That is why we support the amendment”.—[Official Report, 10/3/08; col. 1367.]

We continue to support that today.

My Lords, one cannot take away somebody’s right to do something and then not put in place binding arbitration. My noble friend Lady Hanham mentioned the disturbing sight of the police demonstrating. That sight terrified me because it brings the forces of law into political play. That is very dangerous. One of the reasons for the 1688 glorious revolution was the fear of standing armies. That is the flipside of the coin when police or soldiery take political action. For that reason, above all, with the police, the Prison Service and the Army, the Government ought to accept binding arbitration. If they are not going to accept binding arbitration, they should explain to the House of Commons why they have not done so. To think otherwise is extremely dangerous.

My Lords, I declare an interest as the former president of the Police Superintendents’ Association and a recipient of police pay and a police pension. I have every sympathy with the amendment and agree entirely with the views of the noble Baroness, Lady Hanham, and the noble Baroness, Lady Harris. It gives me no pleasure to say this because I am a government Peer. Having said that, the amendment seems to be a matter for resolution in the House of Commons, not this House. For that reason alone, I shall abstain. I would have voted for the amendment. It is a financial matter and should properly be dealt with in the other place. I shall abstain on this basis, but I agree entirely that the Government have not taken the high ground on this. The right to strike was taken away, quite rightly, in 1919. The police are in a special position as are the other services. We should value that and honour independent arbitration. For that reason, I shall abstain.

My Lords, in 1919 the Police Act of that year removed the right to strike from the police. One of the reasons for doing that was that the police had indeed gone on strike in various places, notably London and Liverpool, but in a number of other urban areas as well. This country was faced with the vision and reality of troops with fixed bayonets going onto the streets of Liverpool and a warship sailing up the Mersey and training its guns on the rioters on the shore in Liverpool. That is the sort of horror story that the 1919 Act sought to remove. We have moved very fast away from that to a position where the police serve this country loyally and steadfastly, despite the fact that their pay and allowances have oscillated over the years.

In 1979 the Lord Edmund-Davies review, looking at the parlous state then of police pay and allowances, brought in for the first time the concept of a basket of occupations, as it was called in those days, against which police pay and allowances should be measured on an annual basis. From that time until very recently, police pay and allowances have been good and have been reflected in the way recruiting is carried out. I will set out what has happened quite recently. In 1979 there was the Lord Edmund-Davies review, with the basket of occupations. That basket of occupations was changed arbitrarily by the Government in, I think, 2006, changing the occupational constitution of that basket to something which, quite clearly, would produce a lower pay review. That review, on the most recent sounding, produced a 2.8 per cent increase. That was not good enough for the Government, who went to arbitration. Both sides signed up to binding arbitration and the arbitration level, if I remember rightly, was 2.5 per cent. The Government settled at 1.9 per cent. We are really slicing this; the principle is not about the amounts involved, which were quite small. They would have been nice to have, but it was not that much of an issue. The issue was the fact that the principle, which has already been spoken about very eloquently in your Lordships' House, had been breached.

The Government’s action on this last occasion drove a coach and four straight through all those principles of trust, respect and support, which a uniformed service has had and needs to have in the Government of this country. The police feel deeply let down and believe that they have been thrown to one side. I am sorry to give marginal percentage points, but the 1.9 per cent sits very uncomfortably with the 2.5 per cent that was given to police support staff. So, in this philosophical way, you have police officers walking on the streets with civilian police support officers who are getting more money because they have the right to strike. The principle speaks for itself. I warmly and wholeheartedly support the amendment.

My Lords, first, perhaps I may say how I much welcome the cameo appearance of the noble Baroness, Lady Hanham, on this Bill. Clearly, I welcome the opportunity to debate this matter again, which we last debated in Committee. I also pay tribute to the outstanding work of the police, the prison officers and the Armed Forces, although for the reasons stated by the noble Baroness, her amendment is limited to police and prison officers and does not refer to the Armed Forces.

Yes, these very key workers deserve a fair and effective pay system mechanism, which serves them and the taxpayer well. That is very simply the Government’s position. Although the focus of the amendment and the debate is on the police and prison officers, they are not alone in having independent pay machinery which makes recommendations to Ministers. I emphasise the words, “recommendations to Ministers”. This process has been developed over more than 35 years and has for a number of workforces, including groups without the right to take industrial action, stood the test of time and has been seen to deliver a fair and effective mechanism for determining pay awards.

However, it has always been clear that the Government retain discretion on whether to implement those recommendations. Both this Government and previous Governments have overseen such a system. Looking at the record, for instance, of the previous Government in relation to awards by independent pay review bodies, it is clear that they have used staging many times. I see in your Lordships' House at least two former distinguished Secretaries of State for Health. The doctors and dentists pay review body pay awards were staged four times—in 1984, 1990, 1991 and 1996. The pay award was deferred twice—in 1985 and 1986. In 1993, a pay limit was imposed. For nurses, the pay award was staged in 1985, 1990 and 1991.

My Lords, those people all have the right to industrial action. That is the difference. It is as simple and as clear as that. I am delighted when the present Government use the Conservative Government to pray in aid for their errors. On occasions, my Government made just as many errors as the present one. There is no need to pray in aid their errors.

My Lords, I do not know whether I am praying in aid their errors or not. I am just pointing out that I find it a little puzzling that the Conservative Front Bench is moving this amendment. I fear that it is rather playing politics in this area.

Oh!

My Lords, I very much fear that. I would caution that party against it. Of course, the noble Earl is right that some of the pay groups I have mentioned are not subject to restrictions on taking industrial action. That is one distinction. But, none the less, I seek to demonstrate that the party opposite has not been reluctant to stage pay awards in the light of recommendations made by independent review bodies. The fact is that the noble Earl might have given me just one or two more seconds to list the times that pay awards were staged in relation to the Armed Forces Pay Review Body—in 1984, 1990, 1994 and 1996. The previous Government deferred an Armed Forces Pay Review Body recommendation once and in 1993 a pay limit was imposed. I could go on.

My Lords, can the Minister add to the list any occasion when the Conservatives—I am not speaking for them—ignored the binding award of an arbitration?

My Lords, I cannot. Perhaps the noble Lord could explain his point.

My Lords, we were told by the noble Lord, Lord Dear, that this was a binding arbitration and that there was an award of 2.5 per cent, but that the Government were prepared to pay only 1.9 per cent. Was there ever a situation when the Conservative Government failed to abide by a binding arbitration?

My Lords, I think that it is for them to answer that particular point. I am simply seeking to demonstrate to your Lordships' House that Governments of different complexions have found it necessary sometimes to stage awards where wider considerations have come into force. That is what has happened. This does not undermine the integrity of the process of independent review bodies in the least. But, ultimately, the Government have to make those decisions.

Obviously we have considered the amendment and the impact that it would have. Our conclusion is that the Government have an established responsibility for managing public finances. We do not think that it is appropriate to subject to parliamentary approval the Government’s discretion to regulate an important factor in those finances. Parliament already has the overriding oversight of departmental expenditure, which we think gets the balance right. But, at the end of the day, the Government must reserve the discretion to make the final decision, which is why we cannot support the noble Baroness’s amendment.

My Lords, I cannot say that I am totally surprised at the Minister’s response. I am equally not totally surprised at the fact that he has tried to invoke the Government of some 10 years ago. We have had quite a lot of this Government and, probably, we can rely now on their history on legislation. I have nothing more to say on this amendment.

My Lords, inspiration has reached me in response to the interesting intervention made by the noble Lord, Lord Thomas. I am reliably informed that in 1990 the then Home Secretary decided not to accept certain aspects of a recommendation of the Police Arbitration Tribunal.

My Lords, as I was saying before the Minister made that point, it is under this Government that this legislation is being put into place and it is their actions with which we are dealing today. These two bodies cannot strike. There is a review body, which always has access to information before it makes its recommendations. If the Government seek to change that, as the Minister says, they have discretion. In the light of what they have done, we say that that discretion is too great. Therefore, it should be controlled and made responsible to Parliament. I do not accept the Minister’s reply and I wish to test the opinion of the House.

moved Amendment No. 49:

moved Amendment No. 50:

moved Amendment No. 51:

moved Amendment No. 52:

moved Amendment No. 53:

moved Amendment No. 54:

moved Amendments Nos. 55 and 56:

My Lords, I beg to move that this Bill do now pass.

Moved accordingly, and, on Question, Bill passed, and returned to the Commons with amendments.