House of Lords
Thursday, 12 June 2008.
The House met at eleven o'clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of St Albans.
The Earl of Stair—took the Oath.
asked Her Majesty’s Government:
What arrangements they have in place to ensure that all government departments are committed to advancing the causes and specific purposes of the national parks, especially in the context of defence and planning policies.
My Lords, government departments have a statutory duty to have regard to the purposes of national parks and were reminded of that duty with the publication of Defra’s 2005 guidance note on the subject. As I have already said to the House, Defra will shortly re-send that guidance by way of a reminder. It is more important for government departments to have regard to the status of national parks than a specific responsibility to advance their causes.
My Lords, I thank my noble friend for that reply. I declare an interest as the vice-president of the Council for National Parks and president of the Friends of the Lake District. Does my noble friend agree that the vision and commitment of those who fought for the parks is more relevant than ever in our pressurised and stressed society? Does he further agree that they are literally the lungs and places for the physical and mental regeneration of the population? Is there not a danger that, because of other priorities, there could be a process of erosion and suburbanisation of the parks? Is it not essential that all government departments with any involvement in the parks have at the top of their priorities the preservation of this very special asset?
My Lords, I certainly agree—the whole House will—with the thrust of what my noble friend has said. The national parks are there as lungs for the nation and are vastly used by millions of city dwellers. That does not mean to say that development will not take place in the national parks. That will have to be sustainable and take account of the economic and social circumstances of people living in the parks. But the national parks are not under threat from either the Planning Bill, which the House will receive in due course, or from their use by the Ministry of Defence. Indeed, in some parts of the national parks the land has probably been better looked after from a biodiversity point of view by the MoD than it would have been if it were otherwise.
My Lords, is not climate change one of the main threats to national parks, particularly in relation to biodiversity? What is Defra doing to make sure that there are plans for adaptation of national parks—for example, of the Norfolk Broads, where there is a real threat of inundation by the sea?
My Lords, I do not have a specific answer for that but, if memory serves me right, I do not think the issue of the national parks was ever raised during the passage of the Climate Change Bill. I will see that it is raised in the other place and that we get an answer to it.
My Lords, no doubt the Minister is aware that our designation for national parks gives a very high priority to access and enjoyment and, as such, falls below the highest criteria for conservation considered by the International Union for Conservation of Nature and into a category that prioritises the preservation of the physical landscape. As the Government are issuing new guidance, as the Minister mentioned, will they consider establishing different criteria for different parks that take into account traditional activities as well as natural criteria?
My Lords, all we are going to do is re-issue the guidance note that was put out in 2005. I promised to do that in a recent debate on areas of outstanding natural beauty and it is important that that is done. National parks each have their own authority and their own planning rules. As I have said, developments are taking place that need to be sustainable and take account of the circumstances, both social and economic, of the individual parks. I agree with the noble Duke that it is not a one-size-fits-all situation but there are no plans for the issue of new rules specific to each national park.
My Lords, I am proud to declare that I am a patron of the Dartmoor search and rescue group, a bunch of volunteers who do outstanding work. I know the Minister comes down to the West Country every now and again, and I am sure he is aware that the Dartmoor National Park Authority and the Ministry of Defence work well together. Does he agree that it is imperative that our troops have a training area conveniently situated, like Dartmoor, so that they can have rigorous and realistic training?
My Lords, I am grateful for what the noble Lord says. He is right. Areas of isolation away from the main population are, almost by definition, in the national parks, particularly areas of Dartmoor. That applies also to the Lake District when it comes to low flying practice. I know people have been irritated by it in the past, but all that irritation stopped during the first Gulf War when they saw how vital it was. There is a disturbance factor but, as I have said, those areas are vital for the training of our troops before they are sent abroad. We have a small island and a large population, so it is right that we use those areas that are isolated. As I have said, the land and the biodiversity are probably better looked after, in some respects, than if the MoD was not using that land. That applies particularly to the Dartmoor area.
My Lords, I declare an interest as a resident of a national park for some considerable time. Does the Minister agree that there is special accountability, in a democratic sense, to local communities? Will he seek to ensure that the majority of members of national park authorities are directly elected from within the communities of those national parks?
My Lords, I have not come with any brief on changing the rules about the national park authorities. I know there may be dissatisfaction from time to time. I do not see national parks as a chocolate-box lid; they have to be vibrant and sustainable communities, otherwise they will decline. The national park that the noble Lord refers to is also one that is used by the military for training, to the great advantage of all concerned.
My Lords, I declare an interest as the president of the Cumbria Tourist Board. Does the Minister agree that at least as important as the policies that pertain to national parks is the manner in which they are applied—in particular, the overriding importance of sensitivity?
My Lords, everyone takes their own view on sensitivity. The park authorities have their responsibilities but, frankly, the sensitivity of the people who live in these areas is equally matched by the millions who visit and spend their time, leisure and finance in those areas. I am not going to put one above the other.
My Lords, perhaps the Minister is also aware that in Scotland rules for national parks have been drawn up that include local residents. Perhaps he could watch how well that works and see whether it has any application.
That is devolution, my Lords.
Iran: People's Mujaheddin Organisation
asked Her Majesty’s Government:
When they propose to seek the approval of the House for the draft order deproscribing the People’s Mujaheddin of Iran as a terrorist organisation, following the judgment of the Court of Appeal on 7 May 2008.
My Lords, the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2008 was laid on 21 May 2008. No firm date has been set yet but I understand the usual channels are considering scheduling that order for the dinner-break business on Tuesday 1 July. Once it is agreed, the date will be advertised in the usual way.
My Lords, I thank the Minister for his reply. I rejoice that the PMOI will no longer be listed as a terrorist organisation, but is it not shocking that the Government are acting only because they have been ordered to do so by the Court of Appeal, which found the Home Secretary’s earlier refusal to delist the organisation to be perverse and resting on no evidence? However, the PMOI remains on the list of EU-proscribed organisations. Is it not there because the British Government wanted it to be there, and is not the legal basis for it being proscribed by the EU the listing by Britain? Is there not now a clear duty on the British Government to take immediate steps to see that this organisation is delisted also in the European Union?
My Lords, I pay tribute to the noble Lord for his role in ensuring that there was a more-than-adequate review of the position of the PMOI. The EU listings are based on a national-competent-authority decision; namely, that a domestic proscription or asset-freeze should be in place. Since the UK proscription of the PMOI was the sole EU member-state, national-competent-authority decision underpinning the EU listing, it is likely that that listing will now be reviewed.
My Lords, in welcoming the righting of this gross injustice done to this part of the Iranian resistance movement, may I press the Minister to be more specific about the action that will be taken by the United Kingdom Government to get the copycat ban on the PMOI removed in Europe? Will he give a date when the matter will be taken to the Council of Ministers or other appropriate body?
My Lords, I cannot give a date, but the United Kingdom has informed EU partners and the Council that the Home Secretary has laid the deproscription order before Parliament. It is now for the Council to consider what action it needs to take on the EU listing in light of the deproscription of the PMOI in the UK.
My Lords, does the Minister think that it sets a good example to ordinary people to obey the law when the Government delay for eight weeks in tabling the deproscription order in response to the Court of Appeal presided over by the Lord Chief Justice? Should they not have tabled the order immediately so that the proscription could be lifted promptly as the court prescribed?
My Lords, sometimes these matters take a little time. One has to put the right papers in order and ensure that matter is properly processed. While we accept the court’s decision in this matter, I think that our general approach of being cautious about organisations of the same or similar nature as PMOI is absolutely right. That situation has been reviewed; a decision has been made; we are putting in place the order; we are properly complying with the judgment; and we have informed our colleague states in Europe.
My Lords, are the Government aware that the Mujaheddin has no support in Iran, and has been absent from all the demonstrations by women and students and all the activities that are taking place against the Government in Iran? It is based in the West and is not supported in Iran.
My Lords, that is a widely held view. There does not seem to be any evidence of significant support for the PMOI inside Iran, and its unpopularity would appear to be based on its history of violence and its military support for Iraq in the Iran-Iraq war. That is probably the situation as best described.
My Lords, will the Minister reconsider his previous answer in light of the fact that the trade unions in Iran are being persecuted by the mullahs’ regime? Will he also accept that the students who demonstrate regularly against the regime should be given comfort and solace by a democratic country such as ours? Will he go further and agree with the vice-president of the European Union who only a fortnight ago in Brussels condemned the way in which the British Government have handled this matter and get the thing sorted out both here and in Europe, because an apology is due to those very brave people who are fighting the theocracy in Iran?
My Lords, of course—quite properly—we support those who seek to ensure that the people of Iran enjoy the benefits of democracy. Everybody supports that proposition.
My Lords, the Minister’s reply gives the impression that the Government are dragging their heels over taking this matter forward at a European level. Will the Minister confirm that the Government are being positive and proactive in taking this matter to the Council?
My Lords, I do not think that we are being slow in this matter. The order was laid just 10 working days after the Court of Appeal judgment. I have made it very clear from this Dispatch Box this morning that we are in contact with our EU counterparts to ensure that this matter is resolved in Europe.
My Lords, since the United Kingdom took the initiative to put the PMOI on the proscribed list, and as at the moment there seems to be a lack of knowledge in Europe as to what has happened here, is it not essential that Her Majesty’s Government should not only take the initiative in the Council to remove the PMOI from the proscribed list, but, no less importantly, should inform other member states about what has happened here, because it completely changes the picture on which member states initially voted?
My Lords, I entirely agree with the noble and learned Lord. I have made it plain that we have taken the action that we should quite properly have taken. It is now quite properly a matter for the Council to consider what action it needs to take. We have informed the proper authorities. I make the point, with regard to the PMOI, that the POAC itself made the judgment that we were right to proscribe it when we did. We were right because we should adopt a cautionary approach in protecting our interests and the safety and security of people in this country.
My Lords, does the Minister agree with me that this organisation campaigns for the rights of women and that that is a good thing?
My Lords, organisations that campaign for the rights of women are to be congratulated.
Courts: Escort Drivers
asked Her Majesty’s Government:
How many prisoner escort drivers are also employed as court orderlies.
My Lords, no escort drivers are permanently employed as court orderlies. The contracts permit contractors to use escort staff for custodial duties. This enables them to make the best use of their staff and to service the variable workload of the courts. Contractors report that they regularly use escort staff for custodial duties, but they do not keep records of the number of occasions on which escort drivers undertake those duties.
My Lords, I am grateful to the Minister for that reply. My concern is that all too often one hears that drivers do not leave courts until after the courts have closed, as drivers acting as court orderlies are unable to start the journey until then. Recently, for instance, a boy was taken from a court on the south coast. He had nearly reached Feltham when the van was turned round and had to go back to court to collect a suicidal woman, who was taken to Holloway. The van finally arrived at Feltham after midnight. The point is that, if vans leave too late, they arrive at prisons late and there is not proper time to assess prisoners, particularly the vulnerable, the suicidal, women and children. I hope that the Minister will make certain that no escort driver should also act as a court orderly. Will that be put in contracts in future?
My Lords, it will not, because it makes absolute sense that staff who have essentially the same training and are multiskilled are used as flexibly as possible. The specific instance that he raises has, of course, been investigated. My honourable friend Maria Eagle has written to appropriate Members on that issue. In general, the contractors are dealing with considerable challenges at the moment because of prison population pressures. However, I am satisfied that we have the appropriate monitoring in place and that they are doing everything that they can to make sure that incidents such as the one that the noble Lord mentioned are as rare as possible.
My Lords, if the appropriate officials are, as the Minister put it, “multiskilled”, will he comment on the recent report in the papers of a van being summoned from 60 miles away to take a prisoner 200 yards from one court to another in the same town? Would it not have been possible on that occasion for the court officials to have walked that prisoner from one court to the other?
My Lords, I think that the noble Lord is referring to Northampton magistrates’ court and Northampton Crown Court. Let me make it clear that the vehicle did not make a special journey to Northampton solely to move one prisoner from the Crown Court to the magistrates’ court. The vehicle left the contractor’s base in Leicester to collect prisoners from Her Majesty’s Prison Bedford and to deliver them to Cambridge magistrates’ court. The vehicle was then routed to Northampton to transfer the prisoner from the Crown Court to the magistrates’ court and to collect prisoners from the magistrates’ court and escort them to Her Majesty’s Prison Glen Parva in Leicestershire before returning to the Leicester base. That seems to be a perfectly appropriate thing to have done.
My Lords, I must answer the question. The point behind this is, of course, security.
My Lords, does the Minister agree that prisoners are at their most vulnerable just after sentencing? Is he aware that, of the 92 suicides reported in 2007, 41 involved prisoners on remand and 20 per cent occurred within the first seven days, in comparison with 8 per cent within the first seven days in 2006? Does he accept the importance of ensuring that prisoners arrive at their designated institution in time to be assessed, because that is when they are at their most vulnerable? This is a serious matter.
My Lords, it is indeed a serious matter. I accept everything that the noble Baroness says. However, despite the current pressures in the system, the figures for 2007-08 show that 97 per cent of prisoners were delivered to the prison before reception closure. I very much take the point that she raises about the importance of the assessment that then needs to take place.
My Lords, will the Minister confirm to the House that, if a young person, woman or, indeed, any offender, for whatever reason, arrives late at night and there is clear evidence to everyone on the scene that there are mental health problems or a risk of suicide, someone with mental health expertise of a sufficiently high calibre will be available to come to the prison to give the appropriate treatment?
My Lords, the noble Baroness raises some of the pressures involved in ensuring that a proper assessment can take place if a prisoner is delivered to a prison or young offender institution late at night. That is why we have set a challenging target that 100 per cent of prisoners should be delivered before reception closes. When that is not possible, great care is taken to liaise with the appropriate establishment to ensure that an appropriate assessment takes place, but I accept that this is a considerable challenge.
Olympic Games 2012: Greenwich Park
asked Her Majesty’s Government:
What steps they intend to take to protect the environment and maintain public amenities in Greenwich Park in the context of its planned conversion for the three-day equestrian event at the 2012 Olympics.
My Lords, the London Organising Committee of the Olympic Games and Paralympic Games Ltd is working closely with stakeholders on the detailed plans for Greenwich Park as a temporary venue for the equestrian event at the 2012 Games. LOCOG’s aim is to protect the ecology and historic nature of Greenwich Park, including the buildings and archaeology that form the backdrop to the venue, and to avoid any sensitive areas. The site will be fully restored after the event.
My Lords, I thank the Minister for that Answer. However, I find it a stretch of the imagination to understand how it can be restored when presumably a large number of trees will have to be demolished in order to make way for the 170-acre utilisation of the park for the creation of a three-day-event venue. That will be significantly less than the 1,800 acres used in the other principal establishments in this country for the same sport. Given that we have some medal aspirations for this sport, is it not unreasonable to restrict the crowd to about 25,000 compared with the 200,000 or so who can be accommodated elsewhere? How would the Olympic budget cope with the loss of revenue represented by such a restriction on the crowd?
My Lords, the main stadium, which will be in the grounds of the National Maritime Museum, will cater for 23,000 spectators. There will be more spectators around the course. It is a restricted site in comparison with others, but it has the supreme advantage of being very close to the main Olympic facilities. This is London’s bid and it is only appropriate that these important events should be located within the capital if possible. The bid met with the full approval of the vetting authorities in those terms. However, a great deal of work needs to be done.
My Lords, the present car parking arrangements will obviously be inadequate for this event. Is it the Government’s intention to concrete over the ancient cricket and rugby fields, which have been in use for more than 100 years?
My Lords, detailed plans have not been finalised because there needs to be a great deal of consultation with local stakeholders, as I indicated in my initial Answer. I do not have a direct answer for the noble Baroness, but she and the House should accept that LOCOG is well aware of the significant historical nature of this site. It is of great value to all people in the United Kingdom. Nothing will be done to damage the site.
My Lords, if we accept that the London Olympics must, in principle, have its main events—the equestrian event is clearly one of them—in London, can the Government assure us that they will put as much pressure as is reasonable on LOCOG to ensure that we never lose any sporting facilities permanently? For example, the football pitches at Hackney Marsh were supposed to disappear, but they are not going to; they will come back in better condition. Will LOCOG ensure that anything that is disrupted is improved, and that, if we lose the odd tree, we plant two instead?
My Lords, on the question of facilities, the legacy plans of the Olympic movement are to ensure that opportunities are enhanced, not restricted, after the Games. That is why I am confident in answering the noble Baroness’s question about whether facilities will be lost. If it proved absolutely necessary to take some away permanently, there would be an obligation to replace them elsewhere. As far as trees are concerned, there is no doubt that there is local anxiety about the issue. The removal of trees must be kept to a minimum.
My Lords, can the Minister assure the House that the development of the Olympic sites will involve the principle of the maximum use of public transport and, therefore, the minimum provision of car parks? Will this apply in Greenwich, as it will in Stratford?
My Lords, that is certainly the objective, but it is more easily realised at Stratford, with its superb communications, than at Greenwich. We all appreciate that Greenwich, by comparison, has greater difficulty with regard to public transport. Nevertheless, my noble friend is right. As far as possible, these will be the green Games. In order to be the green Games, public transport must play a significant part.
My Lords, is it not correct that some of the football is, sensibly, going to be played in Manchester? In those circumstances, when some of the finest three-day-event areas in Britain are in other parts of the country, is it not rather ridiculous to insist on having it in Greenwich Park, which will suffer so much damage?
My Lords, football will be scattered because it will have many series of games in the Olympic tournament. The Greenwich site will be used only for the equestrian events and the running and riding parts of the pentathlon. Its use will be much more limited. A crucial part of London’s bid is that the vast majority of events should take place within London. Greenwich has always figured as the site for these events. That must be fulfilled, while respecting the sensitive issues that have been presented by noble Lords today.
My Lords, will the Minister undertake to write to those who have expressed an interest in the issue of trees? He blithely says, “I’m sure the trees will be replaced”. We are talking about a park which has very ancient trees, including the hollow tree where Elizabeth I played as a child. These are very important sites, and I am not sure that the Minister has grasped the importance of those trees. He seems to be too focused on the wood.
My Lords, bearing in mind all these anxieties, Friends of Greenwich Park, which is an important community group, seems satisfied that the site can be constructed. Of course the noble Lord is right that care has to be taken of trees that are not easily replaced; that certainly includes trees associated with Elizabeth I.
My Lords, will the noble Lord think again about having the event in Greenwich, as opposed to Badminton? After all, the lottery funds are being raided for the London Olympics. Is it not about time that somewhere else in the country other than Manchester, for football, had some hope of seeing some of the Games?
My Lords, if the noble Baroness will forgive me, it is a little late in the day to suggest that there may be better sites elsewhere in the country. Of course there are specialist sites elsewhere, but we are talking about the London Olympics. That is why the bid was made in the name of London and was successful over Paris—because the vast majority of events are to be located closely together in London. That was one of the great virtues of the bid, and it is why we won.
My Lords, with the permission of the House, my noble friend Lady Morgan of Drefelin will repeat a Statement entitled “Cabinet Office assessment documents” immediately after the first debate in the name of the noble Lord, Lord Thomas of Gresford.
Brought from the Commons; read a first time, and ordered to be printed.
Business of the House: Debates Today
My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of Lord Thomas of Gresford set down for today shall be limited to three hours and that in the name of Baroness Miller of Chilthorne Domer to two hours.
On Question, Motion agreed to.
Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors in England, Wales and Northern Ireland, Code of Practice) Order 2008
Proceeds of Crime Act 2002 (Disclosure of Information) Order 2008
Serious Organised Crime and Police Act 2005 (Disclosure of Information by SOCA) Order 2008
Immigration and Nationality (Fees) (Amendment No. 2) Regulations 2008
Climate Change and Sustainable Energy Act 2006 (Sources of Energy and Technologies) Order 2008
My Lords, I beg to move the next five Motions standing in my name on the Order Paper.
Moved, That the draft orders and regulations be referred to a Grand Committee.—(Baroness Ashton of Upholland.)
On Question, Motions agreed to.
rose to call attention to the Centre for Crime and Justice Studies paper, Ten Years of Labour’s Youth Justice Reforms: An Independent Audit; and to move for Papers.
The noble Lord said: My Lords, it is good to hear that the Counter-Terrorism Bill is to be with us shortly. I am sure we shall have many happy hours with that.
It all started back in 1992. Your Lordships will remember the pledge of the shadow Home Secretary at the time, Mr Tony Blair, to the Labour Party conference when he said that the Labour Party would be,
“tough on crime and tough on the causes of crime”.
He pledged a shift away from what David Blunkett later called,
“the social disaster brought about by the neo-liberal period”.
Jack Straw pledged curfews for 10 year-olds. It was Labour’s response to the disaster of the 1992 election—a repositioning that would put them well to the right of the noble Lord, Lord Hurd, who in his period as Home Secretary had argued that the British prison system did not work effectively and called for more rehabilitation of offenders and alternative sentencing. Mr Michael Howard, however, appointed as Home Secretary in 1993, coined the phrase “prison works” and ratcheted up the rhetoric in a competition for “toughness”, which has led us to the position where we are today, with prisons bursting and the Home Office seeking to devise new wheezes, through Titan prisons and offshore hulks, to contain by far the highest prison population per capita in Europe.
In the 1997 election, one of Mr Prescott’s five pledges on his little pledge card was to halve the time it took from arrest to sentence for young offenders. The manifesto said that,
“youth crime and disorder have risen sharply, but very few offenders end up in court, and when they do half are let off with another warning”.
So it was that in government new Labour sought to tackle youth offending through the criminal justice route. The deep-rooted social problems which various studies had identified were to be solved not through investment in mainstream local authority children’s and young people’s provision and more effective children's services, but through punishment. The White Paper No More Excuses, published in 1998, stated that,
“punishment is important to signal society’s disapproval of criminal acts and to deter offending. It is the appropriate response to children and young people who wilfully break the law”.
Any plans to tackle the complex economic and social factors that cause youth offending were put on the back burner. The flagship Bill in 1998, which your Lordships will recall was the Crime and Disorder Bill, abolished the principle of doli incapax—one of the principles of this country that nobody under the age of 13 could be assumed to be guilty. It also established the Youth Justice Board, created locally accountable youth offending teams, replaced cautions with a new reprimand and final warning scheme and restructured non-custodial penalties. It also introduced the ASBO, the rationale for which was described by Hazel Blears MP in these terms:
“Disorder causes police the most problems. If police are to deal with serious crime, they cannot constantly be on the streets trying to control behaviour in the community. Orders dealing with anti-social behaviour will be most useful in dealing with that type of situation. They will apply to anti-social families, who often roam the streets of my city with impunity, causing misery and mayhem to the decent people who are trying to uphold standards”.—[Official Report, Commons, 8/4/98; col. 414.]
She praised ASBOs for introducing the civil burden of proof, making it easier for orders to be obtained and welcomed the punitive sentence of five years’ imprisonment, which could be imposed for their breach. There was a relish for the punishment of young people in Labour ranks for conduct that was not criminal at all. Those feelings were extended and deepened by successive Home Secretaries from David Blunkett to John Reid, whose frustration at the courts’ insistence on the legal traditions of fairness and justice was self-evident.
Between 1998 and 2001, four separate Acts of Parliament dealt with aspects of youth crime and in the Criminal Justice and Immigration Act recently passed, it has all been overhauled again. The report, which is the subject of the debate, Ten Years of Labour’s Youth Justice Reforms, is an independent audit by the Centre for Crime and Justice Studies at King’s College London, and its two authors, Enver Solomon and Richard Garside are the deputy director and director respectively. They focused not on the philosophy or principles behind the Labour Government’s initiatives, but on the implementation, examining whether the Government and the YJBs hit the targets that they set themselves, as set out in business plans, public service agreements with the Treasury and Labour manifestos. They say that assessment has been difficult. They have been struck by the lack of consistent and robust data on which any measurement of progress can be made. Employment levels, relative levels of income inequality, demographic breakdown, cultural practices and technological progress will all have an impact. Indeed, that echoes the report of the Prime Minister's Strategy Unit that 80 per cent of the reduction in the official crime rate since 1997 was due to economic and not criminal justice factors. On page 13, the report states:
“More fundamentally, it is far from clear what impact the youth justice system, however reformed, will have on levels of youth crime and levels of safety and victimisation”.
Therefore, it does not seek to quantify the distinctive and particular contribution made by the various youth agencies to levels of youth crime. It does not have the material on which to make that assessment. The report’s most significant finding is the move away from a welfare approach to dealing with children and young people, to one which relies far more on punishment. “New Labour, new punitiveness” is a phrase that has been coined to describe it.
Secondly, the report concludes that the Government sought to introduce a more managerialist approach to tackling youth crime, focusing on “processing” young offenders from arrest to sentence. The only target it set that has been hit has been from Mr Prescott's little five pledges card getting children quicker through the courts and into custody.
Thirdly, the report finds the focus on early and rapid intervention by the criminal justice system has led to an expansion of that system into areas outside its remit—parenting programmes and youth inclusion and support programmes to identify children at risk of offending. I have commented before to your Lordships on this Government's perversion of the criminal justice system, which developed over the centuries to deal with crime and punishment, to a new function: social engineering, a tool for risk management. Go into your local magistrates’ and risk managers’ court; turn left for the beaks and right for the risk managers. This has been commented upon on a number of recent occasions.
On the topic of finance, total Youth Justice Board spending on youth justice has increased since the year 2000, when the youth offending teams first became operational, by £267 million to £650 million, a real-terms increase of 45 per cent, so additional money in real terms has been made available. A significant proportion of that money, 31 per cent, has been drawn from the budgets of social agencies: health, education, local authorities, and above all social services. They have been raided. Has the money gone to positive programmes? No, the bulk of that £650 million, 64 per cent, has gone into purchasing secure accommodation, some provided by the private sector in secure training centres, and some by local authorities in secure children's homes. Sixty-four per cent goes on locking children up. Five per cent is spent on prevention programmes, two per cent on community education, and 16.5 per cent on youth offending team funding, including money for substance abuse programmes and other interventions, such as anger management courses, education training and employment projects. Ten times more is spent on custody than on preventing crime by young children. The Youth Justice Board recognises that. In a presentation to a seminar on 5 April this year, the YJB representative said of its prevention strategy:
“Until 2005, our resources were limited, and the only significant medium term funding was for the Youth Inclusion Programme—around £7 million per year between 1999 and 2005”.
The report concludes that substantial sums have been transferred from policy areas that are critical to tackling the causes of youth offending, with a corresponding reduction in investment in social responses to youth crime and disorder. Punishment comes first—that is where the money goes.
Was it money well spent? The Government may point to the report’s conclusion that targets for the reduction of vehicle crime, burglary and robbery were on course to be met, but there have been no figures on performance against those targets since the publication in 2004 of the Youth Justice Annual Statistics 2002-03. Those are the last statistics that are available. The targets on self-reporting offending have not been met, nor is it possible to measure current youth crime levels satisfactorily by any other means. The report concludes:
“At best, all that can be said is that the wide-ranging reforms have contributed to a continuing stabilisation of self-reported youth offending at the level the government inherited when it came to power in 1997”.
Therefore, youth offending has not been reduced by all the additional resources that have been put into it. The report’s verdict is that the target for reducing youth offending is modest—to maintain stability, rather than reduce it. However, even that target has not been met, despite the significant investment, focus and political energy expended. The report says that youth justice agencies can do little more than regulate youth crime and that they have an extremely limited impact, if any, on reducing it.
When it comes to the use of custody, targets have been set, revised, reduced and altered over the years. The fact is that no targets for reducing the number of children in custody have ever been met. More children are now imprisoned and for longer. The number of custodial sentences imposed in 2004 was 60 per cent higher than in the early 1990s, and the average custodial sentence for burglary increased from four months to 9.5 months in the 10-year period to 2004. Many more young people have been criminalised and dragged into an environment which destroys them and ruins their life chances.
One young man whom I have tried to assist was sent to custody at the age of 14 for three and a half years and, after his release, was charged with murder. He told me, “It took me a week to become the king of the remand centre that I was sent to because of my previous experience”. We are sending young persons to be influenced by people such as that. In my view, it is a particularly cruel system that drives children into custody, where they will be under the influence of people such as that, through the imposition of ASBOs for conduct which, in itself, may never have been criminal. In its report of February last, Make Me a Criminal: Preventing Youth Crime, the Institute for Public Policy Research highlighted the failure of the policy.
The cost in human lives has been terrible: 30 children have died in custody, mostly through suicide. But does incarceration work? The report indicates that, despite claims by the YJB, which again have had to be revised and reduced, the rate of reoffending has not significantly improved. Therefore, we are looking at a distressing policy failure. The Government’s youth justice policy has failed in all aspects. It is wrong in principle to use the courts of justice for social engineering, and it has proved useless in practice. The so-called reforms of 1998 are not value for money and they have diverted funds from fundamental social issues which are the causes of crime.
Mr Rod Morgan, the former head of the YJB who resigned last year, said on 21 May, when the report was published:
“I agree wholeheartedly with the King's College report that the centre of gravity of spending is distorted. It is precisely some of the trends they are talking about—the increased use of criminalisation, the number of youths we have in custody—that led me to resign. If we are serious about preventing youth crime, it has something to do with the youth justice system, but it has much more to do with broader social policies relating to the family, relating to education and housing etc”.
He called, as I do, for a shift from the excessive use of custody and criminalisation to work with parents and work in the community to engage with young people who are falling out of mainstream services. I beg to move for Papers.
My Lords, I suppose that I am grateful to the noble Lord, Lord Thomas of Gresford, for the opportunity that this debate provides us to look back on what I would describe as the considerable achievements of the Government’s wide-ranging reforms of the youth justice system, which were initiated in the Crime and Disorder Act 1998.
At the outset, I declare my considerable personal involvement in those changes. I confess to having written the pre-1997 policy paper on youth justice reform, building on—the noble Lord did not mention this—the scathing 1996 Audit Commission report, Misspent Youth, on the failures of the then youth justice system. I confess to having invented the basic architecture of the current scheme, the local multi-agency youth offending teams, or YOTs, and a national Youth Justice Board, the YJB, at arm’s length from a government department. I make no apologies for that. I chaired both the steering committee that brought the new system into being in 1998 and the YJB itself for four and a half years before becoming a Health Minister. If any noble Lords want to take a pop at this basic architecture, they should probably direct that at me rather than at my noble friend the Minister.
Your Lordships will be astonished to know that my take on the history of the last 10 years is considerably different from that of the noble Lord, Lord Thomas of Gresford. He was somewhat selective in the quotes that he gave us. I shall give a rather different perspective. We redesigned the youth justice system because before 1997, as the Audit Commission report clearly showed, little effective action was being taken with young people who offended. If you do not know how many are offending and you do not have any programmes for tackling that offending, of course you will not have criminalised anybody—you did not know about them. That is a good take on a lot of what was happening pre-1997. The public were up in arms about the lack of action by public agencies in respect of young offenders, especially in some of the poorest areas in the country. The dilatory way in which the criminal justice system dealt with persistent young offenders was a scandal, which is why the Government pledged to speed up the system. They delivered on that pledge.
The problem with the Centre for Crime and Justice Studies report is that it gives no context or explanation of why the new system was established. There was no pre-new Labour golden age of youth justice and crime prevention from which resources were redirected, as the centre’s study seems to suggest. Instead, there were few effective programmes for preventing offending or reoffending, whether in the community or in custody. The system provided little effective public protection from serious and persistent young offenders and those who were caught took for ever to be processed by the criminal justice system, often committing more crimes while they were bailed and awaiting trial.
I acknowledge that the centre’s study is strong on the needs of young offenders; I totally agree with that aspect. Yet it totally fails to acknowledge the needs of public protection that the Government’s reforms tried to address. There is a balance to be struck between the needs of young offenders and the protection of the public. Our new system for the first time brought a wider range of agencies, including health and education, to bear on youth offending at the local level in a more co-ordinated way. It is pure fantasy to suggest that these changes diverted huge sums of money from other worthwhile programmes. Money may have been diverted from those budgets, but it was certainly not all being spent on worthwhile programmes dealing with young offenders. For the first time these reforms gave the system a clear statutory aim to prevent offending by children and young people. That was enshrined in the 1998 Act.
To maintain that focus, a national body, the Youth Justice Board, was set up. I pay tribute to the people who served on that board then and those who have succeeded them. They have put in a lot of effort and time and have achieved a great deal of progress, along with all the staff. Let me give some examples. National standards and good practice guidance have been put in place where none existed before. Parents were engaged for the first time in parenting programmes to try to help the parents of young offenders and young people at risk of offending. The Youth Justice Board pioneered restorative justice, which introduced reparation and making amends to victims and communities. Research programmes and better data collection were introduced. I have to say that the centre would have struggled to write its report without some of that better information, data and research that the Youth Justice Board provided and commissioned.
I acknowledge that the Youth Justice Board has set itself stretching targets. We set stretching targets and we knew at the time that we were probably not going to achieve them all, but we thought that it was worth having a go. The fact that we have not met them all does not mean that the services and programmes provided have not been hugely beneficial compared with what I may describe as the shambles that preceded the reforms. In any case, my understanding is that the Youth Justice Board intends to meet its target to reduce first-time entrants into the system, but perhaps my noble friend will be able to confirm or throw more light on that when he replies. For the first time—this is the most significant issue—there was real engagement of the youth justice system with the sentencers. It is not politicians but sentencers who send children into custody. The Youth Justice Board made the first real effort to engage with sentencers and to publish information court by court on the use of custody relative to community penalties.
The report makes it absolutely clear that it does not like preventive programmes being provided through the youth justice system. However, it is worth reflecting on the reason for using the Youth Justice Board and YOTs to distribute money for summer programmes and the youth inclusion and support programmes. Great consideration was given to that by departments across Whitehall. The reason why we used the YJB and the YOTs was that that was the most effective way of directing money to reach the young people most in need and most at risk.
Universal prevention programmes, to which I suspect the noble Lord, Lord Thomas of Gresford, is very attached, have consistently failed to reach those young people most at risk of offending. That is a brute fact of experience in this area. I know that this is controversial territory because I know many of the practitioners in social services, health and education who do not like targeting in these programmes, but I ask your Lordships to reflect that, if we are to have effective earlier intervention to prevent offending, we have to target the young people most at risk and we have to have the multi-agency data systems that support that. One should always remember before the cry of “Stigma!” goes up—and I have heard that cry in this area many times, believe you me—that those young people are already stigmatised. One of the most revealing factors in why young people end up in the criminal justice system is that they come from criminal families. If we do not target the people at risk, we are not likely to succeed in this area.
I accept that there may be better ways of bringing programmes to bear than were available in 1997 and 1998. I am sure that the new joint unit for youth justice between DCSF and the Ministry of Justice will help, as well as the YJB’s new scaled approach for targeting effort and resources. We still need to do more in substance abuse programmes, employment and training, and we need to improve our accommodation and resettlement services for young offenders, as the centre’s report rightly indicates, but we should not overlook the huge improvements that have been made in these areas by the Government’s investment policies. That is where a lot of the extra money has been spent, particularly in custody.
I will say a few words about custody. Page 48 of the report shows that custody was coming down in 2003, as it certainly was. Part of my project was to get it to come down and, when I left—I was succeeded by Rod Morgan—we were succeeding. The report says that the use of custody has been relatively stable. It has certainly been stable in contrast with what has happened in the adult prison population. In large part, that improvement has been achieved by the development and use of more robust community penalties, especially the intensive surveillance and support programme, which was devised by the Youth Justice Board. Although that has not reduced the use of custody as we would all have liked, it has reduced reoffending. It has certainly reduced the frequency and seriousness of the reoffending that has taken place. We must not lose our nerve in our approach to more robust community penalties. We need to progress those even further. Much of the extra money that the noble Lord, Lord Thomas of Gresford, said was spent by the Youth Justice Board on custody was spent to improve the programmes that these young people experienced when they were in custody.
Lastly, I will say one or two words about panicky responses to surges in crime by young people. We got it wrong in the David Blunkett era over mobile phones. There was an excessive response, which led to more young people going into custody than was perhaps necessary. We run the same risk in relation to knife crime. I hope that we will have a balanced response, rather than being too moved by screaming newspaper headlines.
My Lords, I thank my noble friend Lord Thomas of Gresford for introducing the debate.
The Government are going through some difficult times. Look at some of the unpalatable news this week: the four commissioners for England, Wales, Scotland and Northern Ireland have reported to the United Nations that children in Britain are criminalised, subjected to violence and discriminated against. The low age of criminal responsibility, ASBOs, public discrimination and marketing pressures are blamed for creating bleak childhoods. While crime dropped between 2002 and 2006, the number of children prosecuted rose by 26 per cent. Too many children are being criminalised and brought into the youth justice system at an increasingly young age.
On Monday, the noble Lord, Lord West of Spithead, in an answer to the noble Baroness, Lady Sharples, said that 12,000 ASBOs were issued up to December 2006, half of which—50 per cent—were breached. About 63 per cent of those who break an ASBO will end up in a custodial sentence. On Tuesday, in an Answer to a Question from the right reverend Prelate the Bishop of Liverpool, the noble Lord, Lord Hunt of Kings Heath, said that 55 per cent of people come into prison with a serious drug problem.
The Government must accept that, despite the plethora of criminal justice legislation, the situation remains that we have the worst prison record in Europe and that those working in this field are demoralised. So what needs to be done? The report from the Centre for Crime and Justice Studies has performed a valuable service in drawing attention to the deficiencies of the Government's youth justice strategy and the need for a change of direction, if the youth justice system is to have a real chance of tackling the causes of youth crime. I accept some of the good practices identified by the noble Lord, Lord Warner, but although the Government have introduced some welcome and sensible reforms of the way we deal with young offenders, our youth justice system overall is unfit for purpose.
Before setting out the ways in which the youth justice system needs radical reform, it is right to give the Government credit for a number of important changes for the better. First, we have seen the introduction of some valuable new preventive programmes, particularly youth inclusion programmes which work intensively with the 50 juveniles in their area who are judged to be most at risk of offending. An independent evaluation of youth inclusion programmes carried out for the Youth Justice Board has found that they reduce offending or maintain non-offending for around two thirds of the young people involved in them. Some of the youth inclusion programmes run by Nacro—and I declare an interest as president of this organisation—have even more striking success rates of more than 80 per cent. Despite these encouraging developments, 10 times more of the youth justice budget is spent on custody than on preventive programmes.
Secondly, where young offenders are diverted from court and given reprimands or final warnings, a much higher proportion are now involved in diversion programmes designed to engage their energies in a more positive direction than was the case under the previous system of cautioning, and this is something we all welcome.
Thirdly, the Government have introduced the referral order which is now applied to the majority of young people who appear in court for the first time. These orders place a strong emphasis on reparation and restoration and the research shows that they work well. The rate of reoffending for young people given referral orders is lower than the rate which would have been expected if they had been given other forms of sentence.
Fourthly, although there is still a great deal wrong with the custodial regimes for young people, the additional resources which the Youth Justice Board has put into custodial establishments have undoubtedly improved these regimes compared with the position a decade ago.
Fifthly, inter-agency work with young offenders is now stronger than when the Government came into power, and I pay due credit to the noble Lord, Lord Warner, for his time as chairman of the Youth Justice Board. This is particularly obvious in the work of youth offending teams in which staff seconded from police, education, health and social services backgrounds work together with young offenders and young people at risk of offending. The Government have ensured that every youth offending team has an accommodation officer, and this has increased the proportion of young people in stable accommodation from 83 per cent in 2002 to 93 per cent currently.
Despite these genuine improvements, the youth justice system remains seriously unfit for purpose. No youth justice system can significantly reduce youth crime unless it gives a high priority to meeting the welfare needs of young offenders. Half the prisoners in young offender institutions have a history of contact with the care system compared with 2 per cent of the general population; a quarter have suffered violence in the home; many, including a third of girls in custody, have suffered sexual abuse; many more have suffered emotional abuse through parental neglect; nearly half have literacy and numeracy levels below those of an average 11 year-old, more than a quarter having levels below those of a seven year-old; and 85 per cent show signs of personality disorder, 10 per cent showing signs of psychotic disorder.
In a study called Wasted Lives in which Nacro researchers interviewed a sample of juveniles in young offender institutions, the authors drew up a list of 11 risk factors often associated with offending by young people. These included physical abuse, sexual abuse, parental neglect, unstable living conditions, misuse of alcohol or drugs, school exclusion and family conflict. The study found that, on average, the children in the sample had six of the 11 risk factors. Any system dealing with children who offend must have at its centre effective approaches for meeting the welfare needs which are almost always at the root of serious and persistent child offending. Far from having such a system, we still process young people through a watered-down version of the adult criminal justice system. This is wrong and the sooner there is a radical appraisal, the better.
As the Children's Commissioners have pointed out this week, we use the criminal justice process too much. Our age of criminal responsibility in England and Wales is 10, which is astonishingly low by European standards. In France, the age is 13; in Germany, Austria and Italy it is 14; in the Scandinavian countries it is 15; in Spain and Portugal it is 16; in Belgium it is 18; and in eastern Europe it ranges between 14 and 16. If we are to replace our system with one geared to the needs of vulnerable children, the age of criminal responsibility should be raised to at least 14. Below that age, child offenders should be dealt with as children in need of measures of care, and where a court needs to be involved, it should be a family court, not a criminal court.
We also use prosecution too much. In 1996 the Audit Commission produced a report called Misspent Youth which proposed that 20 per cent of juveniles who were then prosecuted should instead be dealt with by diversion programmes outside the court system. Yet since then the Government have introduced tighter restrictions on the number of times children can be dealt with by diversionary measures before being brought before a court. This has produced a striking increase in the number of children prosecuted for minor offences which would previously have been dealt with by informal warnings. In 2006, 61 per cent of young offenders were diverted from court compared with 73 per cent in the early 1990s. Research consistently shows that unnecessarily prosecuting young people can increase rather than reduce their chances of reoffending by officially labelling them as offenders, a label which all too often they then seek to live up to in order to create a hard image and status in front of their friends.
Above all, we use custody too much for young offenders. Around 3,000 young people under 18 are currently in all forms of custody, and more than 2,500 of these are in Prison Service custody. Many of the young people we currently detain would be better dealt with by programmes of supervision in the community that work to tackle the problems which are at the root of their offending. Since 1997, the Government have changed the law to make it easier for the courts to detain children both before and after sentence at increasingly younger ages and for less serious offences. They have done this despite the evidence showing that around 80 per cent of these young people are reconvicted within two years of leaving custody. This country’s high use of custody means that most of the Youth Justice Board’s resources, around 64 per cent, are absorbed by the cost of custody alone. These are resources which would be far more effective in reducing youth crime if they were spent on strengthening and expanding community supervision and prevention programmes.
I welcome the fact that the Government have set targets to reduce the number of first-time entrants to the youth justice system and to reduce the number in custody, but they have set targets to reduce the use of custody before and failed to achieve them. If we genuinely want to reduce youth crime, we need a radically reformed, less punitive youth justice system that better meets the welfare needs of children who offend. A reformed system should include a higher age of criminal responsibility, a much stronger emphasis on dealing with minor offenders outside the court system and tighter restrictions on the use of custody for young people. Such an approach would not just be better for young offenders, it would also better protect society from future offending by difficult, disturbed and vulnerable children.
My Lords, I thank the noble Lord, Lord Thomas of Gresford, for obtaining this important debate. It is always a privilege to follow the noble Lord, Lord Dholakia, with his long experience and great wisdom on these matters. I was also interested to listen to the noble Lord, Lord Warner, and to be reminded of those days in 1997 when, among others, I was very excited at the thought of what might follow what I thought was going to be the focus on tackling crime and the causes of crime. At the time, as the Chief Inspector of Prisons and working on a report on young prisoners, I was very pleased to find the noble Lord, Lord Warner, working on the setting up of the Youth Justice Board and youth offending teams, both of which I have strongly supported ever since. We were able to work together and share some of our practical experiences on the ground in order to set up a procedure by which the Youth Justice Board and the prisons inspectorate would work closely together on the inspection of young people ever since.
I also welcome this report, although it is slightly unfortunate that, as is so often the way of these things, the timing of its publication is both late and premature. First, it came out about three days before the publication of the reconviction figures for the years up to 2005; that was the only time that they could be measured because they are measured two years after release. The figures for 2005 show that there had been a reduction of some 16.4 per cent in the reconviction rate among young offenders over the last period. That did not appear in the report, which is slightly unfortunate, because, armed with those figures, there might have been a different representation.
Secondly, it is slightly unfortunate that we have not had all the details of what the Government are going to put in their youth crime action plan, which is to be published next month. I look forward to it with considerable interest. Having had a discussion with the new chairman of the Youth Justice Board and found the sort of things that she is looking for, I suspect that this plan is perhaps going to answer some of the problems, at least in intention. For example, the plan is said to include: early identification of future prolific offenders; giving chaotic families the support and challenge they need; ensuring that courts have the range of disposals and alternatives to custody; early targeted intervention from other agencies; the need to make the most of short periods in custody; and improving resettlement and continuity of care for young offenders.
All I can say is, “Hear, hear, to all that”. If that really is in there and it results in improvements it is perhaps premature to dwell too much on the past until we have seen the content of that plan. Having said that, it is appropriate to consider what might come against what is there now in terms of the machinery that is there to deliver those good intentions. I was particularly interested to hear the chairman of the Youth Justice Board say that she was about to embark on discussions with the Prison Service to see whether there could not be someone appointed to be in charge of young people who are in the hands of the Prison Service; that person would be responsible and accountable for what happened to those young people while they were in custody.
I was particularly glad to see that because that is one of the main props that I called for in my report for young prisoners. It has been a serious deficiency in the system ever since, because unless we have one person responsible and accountable for overseeing what happens, things will not happen. That is the way of the world. I refer not only to the criminal justice system but to industry and to schools, hospitals and the Armed Forces. I wish that this point had been listened to before, particularly in terms of young people. I am also concerned that in addition to the question of timing there remains a disconnect in the overall direction that the Government are taking in relation to youth justice and other parts of the criminal justice system.
We have had recently a classic example of this disconnect. The excellent report of the noble Baroness, Lady Corston, into how women should be treated in the criminal justice system—that they ought to be held in small establishments around the country near their homes so that local conditions can apply in their rehabilitation—was immediately followed by another report, which has been accepted by the Government, for the building of Titan prisons, which are completely the opposite of what the noble Baroness, Lady Corston, was calling for for women.
At the same time as acknowledging that there is an enormous social content and mental health problems attached to the young people who come into the hands of the criminal justice system, we have the dismemberment of the Commission for Social Care Inspection. This has been split into two so that the part looking after children is now submerged under Ofsted, with its tick-in-the-box approach to education, and the adult element, which will include people over the age of 18 who, in many ways, should come under the youth justice system, being under the Healthcare and Mental Health Commissions. I suspect that will mean that social care for adults will be submerged as well.
While the Home Office, the Ministry of Justice and the Department for Children, Schools and Families will be involved in drawing up the youth crime plan—which is absolutely right because the Minister for Children is in the DCSF—I am worried that there is no mention of the Department of Health, which is responsible for social care and mental health care, being involved. If we acknowledge that the causes of crime lie in social conditions, and that that is where prevention must start, it is an error to leave out of the discussions the people who are most responsible for that environment. They should not be left out of the drawing-up of the plan for what is called “resettlement”, but which, all too often, I fear, is settlement because you are dealing with people who are not settled.
I hope that everything that is said in the debate today, based on this very good report, will be taken into account. I refer particularly to the last paragraph of the conclusions, which states,
“the time has come to reappraise the role and purpose of the youth justice system and to consider what it can realistically achieve in addressing youth offending”.
Not all is wrong, not all is right, but the accumulated wisdom of organisations such as the Centre of Crime and Justice Studies ought not to be disregarded and I welcome the opportunity to have its report drawn to the attention of Members of the House.
My Lords, it is always good to listen to the noble Lord, Lord Ramsbotham, with all his experience participating in these debates. I pay tribute to the noble Lord, Lord Thomas of Gresford, who consistently keeps flying in this House the flag of civilised values in the administration of justice. I also pay tribute to my noble friend who will reply to the debate. I know that he is as concerned as any of us that we get the policy right on this front. His whole life gives evidence of his personal commitment to the young and to the quality of our society. Anything I say today, therefore, will be in the context of helping those who carry immense responsibility on our behalf to get it right. I, too, look forward to the publication of the youth action plan because it may hold great hope for the future.
Perhaps I may say a word about perspective. We concentrate an awful lot on the challenges presented by the young who have gone off the rails, but I think we live in an age of unprecedented quality in the younger generation, who have a social commitment and effective engagement in society the like of which we have never seen before. Their political maturity often finds it difficult to accommodate what they see as the political immaturity of the conventional political system. This is exciting and we need to keep it in perspective. We also need to keep in perspective that much of the consequences of youth crime sometimes grotesquely affect the most deprived societies in our community. Those who have more than their fair share of social disadvantage and social challenges with which to contend in their daily lives have the added acute burden, every day and every night, of misbehaviour of one kind or another in their midst.
If we are concerned about these things, it is important that we avoid knee-jerk emotional reactions and that at all costs we avoid appeasing prejudice, particularly where it exists in the more irresponsible sections of the media. There is a counterproductivity about wanting to make ourselves feel more satisfied by showing a macho response to what is wrong, thereby exacerbating the difficulties with which we are dealing. I am one of those who holds that a hallmark of a civilised society is the ability not simply to react to what confronts it but to ask, “Why does this confront us?”. I can think of no area of policy where this is more important than the one we are deliberating today.
I have shared with this House before, and I hope I will be forgiven for doing so again, two anecdotes that have profoundly affected me as an individual. One concerned the former chief constable who was involved in an imaginative programme in a young offender institution in the north. He was talking to a young man who was about to be released, and to his surprise the young man started to weep. The young man said, “I am weeping because I’m terrified about what I am going to encounter when I leave this place. This is the first place in my life where I have felt secure, where I have begun to discover myself as an individual and to recognise my potential, and where I have felt that there are people who are concerned about me, which has awakened a concern on my part about other people. I really am petrified of what I am going to return to in society”.
The other anecdote concerns the late Joan Lestor, who was a great personal friend of my family; in fact she was the godmother of one of my children. She was a strong advocate of children’s interests. She was not given to exaggeration, though; she was a realist. I shall never forget her coming to our home just having visited one of the young people who had been involved in the dreadful murder of James Bulger, that awful event that shocked the nation. She was unspeakably distressed. Why? Because, she said, speaking of one of the youngsters who had committed the crime, “That youngster has never been loved in his life”.
When we are dealing with justice and the young and delinquent behaviour by the young, we have to ask ourselves about our own values, our own society and the context within which it is all happening. If we have a society that is dominated by greed, by so-called success—as if all that matters is getting to the top of the pile with not too many questions about how you get there—where is our authority? Where is the example to set the context for society as a whole?
There are other issues that impinge acutely on this matter. There has been reference to education, but if our education system is increasingly dominated by league tables that talk about “success” and use the language of “failed schools”, what happens to the young who are part of all that failure? I am conscious that there are schools in this country where staff are doing some of the most imaginative, highly relevant work with young people who are excluded and who have no parental support—but their only reward is to be told that their school has failed because it is not performing against the league tables and the conventional measures of success. We really have to think about these issues and what their relationship is. We have to do some integrated thinking about different aspects of our policy if we are to get it right. We also have to recognise that in deprived areas of our country there is an absence of hope and social and educational aspiration. If we are going to get this right, the regeneration of our deprived areas cannot be too high a priority.
The noble Lord, Lord Ramsbotham, with his usual wisdom, was right to emphasise the fact that we have to take the whole issue of mental health far more seriously. I speak with some sensitivity on this matter because one of my daughters leads a team of people working with women with mental health problems in deprived communities. She becomes exasperated because of the shortage of resources. Everyone makes referrals to the team, but where are the resources to do the work? We need to give higher priority to all that.
My general message today is that what is needed is a new culture. What I shall be looking for in the youth action plan is not just a set of management proposals but a regeneration of culture and of what our society should be, a reassertion of the importance of muscular love in our social policy. That does not mean sentimentality. I get infuriated in my older age by those who go around talking about—I do not use the term in its political sense—“bleeding-heart liberals”, when those who say that sort of thing are the weak people who are betraying society while so often the wet-nosed “liberals” are the people who are thinking hard and sensibly about what needs to be done to get it right. We have to recognise that and become more assertive about why it matters that there is a different concept of how things should be.
Of course we must be clear about what is right and wrong and about what is acceptable behaviour and what is not, but it will not do to go around telling the young how they should behave unless that is evidenced in our own behaviour. We have to set an example. We have to demonstrate our own social responsibility and the fact that it takes precedence over our egocentric, material preoccupations.
We should be working for a situation in which the young are enabled to fulfil their potential. The success stories are there. When I was president of the YMCA, I saw the stories of youngsters who had been involved in some quite shocking crimes but went on to get PhDs once people really began to relate to them and see what could be done. We should be concentrating on how we enable the young to make something of their stunted and distorted lives and to recognise that, after the experiences that many of them have been through, it would be an absolute miracle if they were not caught up in criminal activity of one kind or another. We must get the social context right, and that means integrated thinking by a whole range of government departments.
My Lords, it is a privilege to follow the noble Lord, Lord Judd. He is right that we need to have hard-headed thinking, and when he uses the word “liberal” I know that he uses it quite rightly. I am grateful to my noble friend Lord Thomas of Gresford for introducing the debate today and for the opportunity to speak on a report that speaks very strongly for itself. The report, in combination with the fact that the UK Children’s Commissioners are presenting to the UN this week in Geneva and with the most recent UNICEF report, draws a pretty grim picture of childhood and youth in the UK. It is not a picture we can be pleased with.
The noble Lord, Lord Warner, reminded us that before 1997 things were far from good. He suggested that my noble friend took a pop at the architecture. I think it was a justified pop. The noble Lord is right that things were not good before 1997, but in many ways they have got worse. I accept that some of that can be laid at the door of society in general, but some of it should be laid at the door of the Government in the way they have chosen to proceed with measures that they put in place in good faith, but which by and large have failed. It is time to take another look.
The report highlights the failure of all but one of seven measures: the only area of improvement has been a reduction in arrest-to-sentence times. The Government have failed in six other objectives. I shall speak about one of them: to improve accommodation. I shall then speak about demonisation of young people and ASBOs.
On improving accommodation, the Government’s target was to ensure that all young people subject to community intervention or released from custody had appropriate accommodation when they left. However, that accommodation is not provided. Many young people do not know where they are going to go when they leave custody. In its survey, Youth crime briefing: housing and accommodation issues for young people in the criminal justice system—it was conducted in December 2005, but I understand that the situation has not changed—Nacro found that homelessness can significantly increase the likelihood that a young person will break the law. Moreover, homelessness can affect the way in which young people are treated in the justice system. For example, they are less likely to receive bail if they have no permanent address. In 2004, the Audit Commission showed that up to 1,000 young people are remanded to secure facilities each year because they do not have a suitable address for bail. Has that figure increased or decreased? This problem is further compounded by the fact that young people without accommodation are more likely to receive custodial sentences. When they are released, many of them will find it even harder to find somewhere to live, either because of deteriorating family commitment, which may have meant that they were in trouble in the first place, or because of the social stigma that goes with the prison sentence. Fewer than half of the young adults surveyed by Her Majesty's Inspectorate of Prisons—a survey referred to in its annual report of 30 January 2007—said that they knew where to get help to find accommodation, drug treatment or continuing education when they left prison. Those are exactly the contributory factors that make it so hard for those young people to proceed in society in any positive way.
The noble Lord, Lord Warner, made an outstanding contribution to a short debate on restorative justice that I introduced in your Lordships’ House. He said:
“There is a myth around that RJ is in some way a soft option because it does not involve enough punishment. The research shows that offenders find it tougher to face their victims than to go to court. Another myth is that it is costly. Even the most expensive RJ conferences—those for serious crimes—cost only £800, compared with the £35,000 a year that we pay to keep someone in prison. It is time for us to stop endlessly studying and evaluating RJ and to use it much more widely in the areas where it has proven value”.—[Official Report, 26/11/07; col. 1104.]
I am very grateful to the noble Lord for that comment, because RJ is being rolled out not nearly fast enough and it is young people who can benefit from it the most. I have been into schools practising restorative justice. It is quite astonishing how young people who have gone through any kind of restorative process have developed a completely different view of themselves and how they relate to the world. That does not mean that they will stop being troublemakers overnight, but they are on a different track to a more positive outlook and start to relate to authority far more constructively. I hope that the Government will think about resourcing restorative justice much more positively.
I turn to the demonisation of young people. The Children’s Commissioner’s report found that children are being demonised by a society that is locking up too many of them. The Government’s measures have contributed to the demonisation of children. For example, they have largely accepted the “buzz off” or “mosquito” system, which disperses any groups of young people that may be hanging about by emitting a high-pitched noise that only they can hear. I accept that young people hanging about in a group can occasionally be threatening, but often they are not. They are disruptive to some degree and might cause one to get off the pavement; they are loud and raucous; but very often they are not threatening. I agree with the noble Lord, Lord Judd, that the media have contributed to an unconstructive and dangerous view of any assembly of young people. The Government could have another look at the ethos underpinning mosquito systems, because they affect all young people and not just those who cause difficulties. If one walks past such a system with one’s eight or nine year-old child, they suffer as much as the one or two young people who might be causing a difficulty outside a shop. The system is making places unpleasant to be for a whole generation of young people. It is an appalling thing to do to our young people.
I turn finally to ASBOs. The use of ASBOs risks contributing to, rather than reducing, the criminalisation of young people. They represent a crossover from civil to criminal proceedings. A young person can now be given an order, as they have been, for playing music too loudly, which is a non-criminal offence. If they breach the order, it is treated as a criminal offence and the young person can end up with a custodial sentence for actions that did not initially constitute a criminal offence.
ASBOs have not been effective as far as young people are concerned. One of the more telling quotes on them comes from Neil Wain, chief superintendent of Manchester police, who said:
“It was evident from my interviews that many of those people subject to ASBOs had underlying problems such as drug and alcohol dependency, mental health issues or dysfunctional families”—
dysfunctional families have a critical impact on young people—
“and most originated from socially deprived housing estates. Yet little or no support had been offered. Efforts to divert young people into positive activities were lacking”.
When a police officer of his stature says that, we really need to take it very seriously, as the report concludes.
Many of the Government’s measures have failed. It is time to put the resources into other, supportive measures that would be effective in reducing offending and reoffending rates.
My Lords, it is an honour to follow the noble Baroness, Lady Miller of Chilthorne Domer. I am particularly grateful to her for raising the issue of finding accommodation for young people leaving custody. I remember being involved in a report that highlighted the fact that many young people leaving custody said that they were moving back with their families. What actually happened was that they moved back for a day or two and then the arrangement collapsed and they were on the streets. These issues are complex and the issue of finding a home for young people when they leave custody is crucial.
Whatever the faults and virtues of the system since 1997, one has to recognise the achievements of the Youth Justice Board and the various policies associated with it; and particularly of the youth offender teams that have been so important and valuable. While one may wish to integrate their work better with the mainstream, one has to recognise the achievements that have been made. I also thank the noble Lord, Lord Thomas of Gresford, for securing the opportunity to debate this important report.
The report concludes—I paraphrase—that Her Majesty’s Government have been taking money from hard-pressed mainstream social provision to develop a specialist system for youth justice. The authors point out that this new service is at one remove and therefore less well integrated. They question the effectiveness of such an approach. I felt a shock of recognition reading this. The scenario seems familiar. One might also say that we have developed a system of public care for looked-after children that drains huge sums from mainstream preventive provision, works far too much in isolation and provides disappointing outcomes. The Minister for Children, Beverley Hughes, told a meeting some time ago that the Government had increased their spending on looked-after children in the care of the state from £1.3 billion to £1.9 billion in just a few years and that they needed persuading that the money was making a difference—they had not yet seen the evidence. I believe that there have been improvements and I will come back to this point.
David Kidney, MP for Stafford and chair of the All-Party Group on Looked After Children and Care Leavers, recently reminded me that, at a meeting of experts in criminal justice from Spain and Germany last year, the failure to intervene early to prevent problematic behaviour developing was identified as an important flaw in our approach that contributed to our exceptionally high rate of child custody. Many noble Lords have already highlighted this fact.
The Department for Education, as it was, is to be highly commended for commissioning the Institute of Education to compare practice in foster care and residential childcare between England, Denmark, France and Germany. The striking difference is that Denmark, France and Germany intervene earlier and more effectively to prevent harm to children. Why is this and what relevance does it have to our debate? The Social Care Institute for Excellence confirmed to me this morning that the difference is partly one of workforces. It highlights the clear evidence that social workers in Belgium, Germany, France and parts of the US have a far higher status than social workers in this country and that, because of this, they are more effective in prevention.
Academics highlight the differences between our looked-after population and those of the neighbours that I have mentioned. Denmark takes a significantly larger proportion of children into care than we do. However, the children are less traumatised, and entering care is seen as an opportunity for them to improve their life chances rather then reduce them. A child in care is expected to do better academically than his peers. This may be explained by better early intervention to prevent harm, and then prompt later intervention if the child continues to be harmed. Half of Denmark’s looked-after children are in residential care, compared with 10 per cent of ours; but 90 per cent of its residential childcare staff have a degree-level qualification, compared with 20 per cent of our staff.
Pedagogy, the discipline applying to the care of vulnerable children, is one of the most popular university courses, and vacancy rates for staff in children's homes are minimal. In this country, there is no mainstream university discipline clearly applicable to this work. Social work is the closest, but is some way from the mark. Vacancy rates for staff in our children's homes are even higher than those for field social work—that is, very high indeed, among the highest in social care. Danish pedagogues have a large degree of autonomy in their work and can interact spontaneously with their children, for instance by giving them a hug when necessary. English pedagogues are controlled from the top down, keep endless records of their work and feel inhibited in their physical contact with children.
My sense is that what is true of Danish pedagogues in comparison with our residential childcare workers is more broadly true of Danish, German and French teachers, social workers and youth workers. If confidence in such professionals had collapsed in those countries as it had in ours, and if their status had reached the nadir that ours had, then their care system might be more similar to ours. Their preventive services might also be imperfect and permit preventable harm to children. Those children might then be catered for by another tier of provision, and the intense, incendiary needs of those children might also leave that service reeling. These countries might also be forced onto the back foot and find themselves spending vast amounts of money with limited effect.
I ask noble Lords to consider the comparative status of our social care workforce. Until very recently, our social workers were not required to have a degree. Originally, it was assumed that those wishing to become social workers would have a degree. However, that was not the case for a long time. Teaching is only just becoming a masters degree profession. The capacity of our early years workforce is decades behind that of many of our fellow nations. My noble friend Lord Dearing recently pointed out that, even if we achieved the targets of Her Majesty's Government with regard to vocational training, we would be catching up only with where Germany now stands, rather than with where it will be in years to come. We all recognise the failure to provide—and the lack of attention to—good quality vocational training in our schools. This is relevant here and perhaps I will come back to it.
It may be that the youth justice system is set up to address, to some degree, a symptom rather than an underlying cause. I agree with the points made by the noble Lord, Lord Warner. I pay tribute to him for his work as chief executive of the Youth Justice Board. I particularly recall what he did with parenting interventions, and how effective they were in reducing reoffending rates—a cheap and effective way of reducing young offending. He referred to the advent of this service. One has to remember that there were young people—and still are, to some degree—who caused endless harm to their local communities. The services to prevent that harm were not there, and it must have been hell for those communities. If I understand the history correctly, there was a vacuum for the reasons that I described of the long-term demoralisation of social services and those working in them. One can see why such a development was necessary.
I emphasise one further point from what the noble Lord, Lord Warner, said about public panic over particular problems. He mentioned the issue of mobile phones. I recall a poor young man, Joseph Scholes, who committed suicide in prison after being caught up in the hysteria over mobile phones. I hope that the Government will listen to the noble Lord’s request for there to be no similar knee-jerk response to knife crime.
Youth criminality may be due largely to a failure to provide the services that enable families to thrive and children to succeed. Our failure to invest in those working directly with these families may be heavily implicated in this predicament. I mean these comments to be constructive. If my understanding is correct, then much of Her Majesty’s Government's current policy is also correct. It is right that teaching should become a masters degree profession as proposed. Her Majesty's Government’s Teach First programme that incentivises high flyers to try the profession of teaching is right, and its success in persuading 50 per cent of those who are caught up in it to continue in schools is great news. It is right that Her Majesty's Government have now introduced a social work degree, and that courses are popular is great news. It is right that Her Majesty's Government are piloting newly qualified social work status so that this new intake has reduced case loads and increased supervision. It is right that the Government’s Children’s Plan makes building capacity in the workforce a sine qua non of success.
I see that my time is up, but I encourage the Minister to carry on doing what he and his colleagues have started. Many more of our children will have fulfilling, productive lives and become good parents of their own children if he succeeds.
My Lords, it is daunting to join a speakers list of so many experts on the subject. I hope that the noble Lord, Lord Warner, is not going, because I wish him to hear my acknowledgement of the vision that he contributed to at the beginning of the present Government’s tenure of office in the building of a radically new approach, as was intended, to the juvenile justice system. It was full of good intentions. Sadly, the good intentions have not led to heaven, but neither have they led to hell. I endorse the opening paragraphs of the speech of the noble Lord, Lord Dholakia, in which he listed the achievements that have been made and what the noble Earl, Lord Listowel, has just said about the importance of YOTs and the multidisciplinary approach. However, I have to agree with the noble Lord, Lord Ramsbotham, that that approach will not be complete if the Department of Health is excluded from the infrastructure.
I am sorry that the noble Lord, Lord Judd, is not in his place to hear my admiration of his speech. He returned to the essential ingredient missing in our society when it approaches young people—what many of us are too embarrassed to call love. Such young delinquents as I have encountered in the early stages have quite clearly been starved of it, and the application of it has had astonishing effects. It is like when they ran a copper telephone cable across a desert in South Africa and suddenly there was a little line of green under the cable because what was missing was the trace element of copper in the soil below. That is the effect that love has on children. Not only children: we live in a society where you cannot call it love when you talk about adults because you get into all sorts of arcane and embarrassing suggestions of what it means.
The noble Lord called it tough love, but you can call it care or engagement. I remember a particular child at school who was going very fast in the wrong direction. I managed to convince him that I was personally concerned about what happened to him. I would not call that love in the context that I was expressing it, but that is what it was. He was an absolutely changed creature. From being a scruffy truant and somewhat abusive, he rapidly became well behaved and offered to help mark the register. He completed his school career without a blemish and I was able to give him a recommendation of good character. It cost me very little, but it was worth an enormous amount to him. We have to look at society as well as the actual criminal justice system.
However, the criminal justice system is what the debate is about, so we need to knit the two together. The Danes have done that, I understand from the noble Earl, Lord Listowel, and I hope to make an early visit to see how beyond the details that he gave us, but we have agencies in our society that are able to operate in a humane and non-bureaucratic way and a whole host of voluntary agencies. I remind the collective memory of Her Majesty's Government of a long ago predecessor of the noble Lord, Lord Hunt, at the Dispatch Box, Lord David Ennals, who in the last months of the Administration that fell in 1997 set up something called the intermediate treatment fund. It was devoted solely to two aims. The first was to go about magistrates’ benches, courts, police forces, probation services and so forth preaching the merits of non-custodial treatment of crimes requiring custody. I had personally seen them to be remarkably successful in reducing reoffending rates among young people.
The second aim was to go around with small handfuls of money finding beaten-up estates that were about to start going over the edge into criminal cess pits and find young enthusiastic adults prepared to start youth activities of any kind that engaged their enthusiasm so much that it would engage the enthusiasm of the young people. Through a grants application scheme, the programme also gave those adults the know-how to get funding from other sources at a ratio of five to one. One of my two complaints about the latter years of the Administration of which I was a part earlier on was the great cry that prison works. The other was the decision to wind up the intermediate treatment fund so that we had to find a voluntary way of doing it, which was not so easy or successful. Thought should be given to replicating it in some way or another.
The programmes for these agencies do exist and are successful. I refer to two that are carried out in Lambeth by what is still called Rainer. I declare an interest as having been a patron of Rainer for some time. The programme cut arrest rates among young people by an average of 65 per cent. In some areas where Rainer works, arrest rates have been cut by as much as three quarters. Unfortunately, as we see from the national figures, that is not replicated countrywide. Money of the sort that I mentioned could be profitably spent on such youth inclusion programmes.
The next thing relating to love is the family. We are at last politically aware of the family—rather late, I fear, in the process of decay of that institution. Where there is one, it is essential to retain connections between the offender and the family, which will be essential in getting him or her back on the rails. I join the noble Lord, Lord Ramsbotham, with great enthusiasm, in saying that mathematics, geometry and geography all conspire to say that Titan prisons cannot be an element in that. I know the answer that the noble Lord, Lord Hunt, will give because I have heard it several times already. He will say, “Oh yes they are”, but I am afraid that he is wrong. I say, “Oh no they aren't”, although we must not turn this into a Christmas pantomime.
We must also avoid criminalising young people unnecessarily. By coincidence, I spoke in the Second Reading debate on Tuesday of the Education and Skills Bill. Noble Lords in this debate should be made aware so that they can be drawn into the debate in Committee of the proposal to criminalise truancy for children in the new compulsory education of children aged 16 to 18. It will be an offence taken to court if a child, after a series of processes, does not toe the line. I do not know how one can expect any constructive learning to be done by somebody who is in a room with an instructor only because he will be criminalised otherwise. However, if he does not go to school, the damage is even greater than if he is there, sulking and being made ever more resentful of society.
That brings me to my final point, which I raised at the Second Reading debate. I refer to the question of literacy. We all know of the very high rate of illiteracy among the prison population. It is somewhere between 40 and 50 per cent. The most conservative estimate is that 40 per cent of those are straight dyslexic cases. Astonishing changes can be made to the careers of children. One of the most common causes of, or routes into, criminality is the total frustration in school of people who are perfectly clever but are taught in ways that they cannot cope with because they have not been diagnosed. What this country must have, for the sake of future generations, is 100 per cent screening of children in their early years so that dyslexia is detected. In the very large number of cases where it can be got around with spectacular results, children will be diverted in numbers from the criminal path. That is what love demands, as the noble Lord, Lord Judd, in a good speech, said.
My Lords, I, too, congratulate the noble Lord, Lord Thomas, on this debate but, like my noble friend Lord Warner, I am not sure that I thank him. Youth crime is not a topic on which I would normally trouble your Lordships. I do not have the experience or expertise of other noble Lords who have spoken, but it is a matter that has been troubling me. As this report came highly recommended by the noble Lord, Lord Thomas, I thought it would be a good read, and would perhaps satisfy some of my concerns. In the event, I found the audit exercise a bit pointless, but the authors seem to share my concerns.
In my other life, when I ran my business, even though we had accurate measurements of income and expenditure, and careful data on the volume of goods sold and made, I was still wary of audits. When you produce audits based on budgets and targets as this paper attempts, the results are pretty meaningless. The noble Lord, Lord Thomas, reminded us that the authors say that accurate statistics are difficult to come by and can, at times, be contradictory. We should be wary of the conclusions. At various points in the paper, the authors accuse the Government of overstating their record. Welcome to the world of accountancy, where overstatement and understatement are constantly debated and no two accountants agree. I am sure that the Minister’s justification for his data is as robust as the authors’ justification for theirs. As I said, welcome to the world of accountancy. The paper could have been more critical of the use of targets. The Minister does not need me to tell him that unless targets are used sparingly, and have a clear vision, they inhibit innovation and change because all the effort goes towards reaching the target, instead of doing a more effective and better job. It is a pity that the paper did not look more at the use of targets as a means of driving performance in youth justice. You have only to say that sentence to realise how incompatible they are.
However, the authors share my concern and—as the noble Baroness, Lady Miller, reminded us—those of the UK’s four children’s commissioners. They are concerned that there are too many children locked up, and that there is a disturbing trend towards locking up even more. I looked up the figures and the number has almost doubled in the past decade to 3,020. What troubles me, other noble Lords and the commissioners is that these are easily some of the most disadvantaged people in our society. Most show signs of personality disorder. The noble Lord, Lord Dholakia, gave us the details. He reminded us that many have the literacy and numeracy of the average seven year-old, or even younger. All this is at a time when, overall, crime figures are dropping. Nor does it seem to make financial sense. Custody is expensive, and there seem to be schemes that provide a cheaper alternative. I know of a scheme called the Archway Motorcycle Project. A police survey showed that this project in Thamesmead—which costs £200,000 to train 200 young people each year, and revealed a strong positive effect on attenders in trouble with the law—costs about the same as it costs the taxpayer to keep half a dozen youngsters locked up in a secure training centre. We constantly hear complaints that these youngsters are let out too early. David Ruffley MP complained about this on television only last week.
Fewer and fewer people feel that a crackdown is the answer, yet every burst of outrage in recent times seems to encourage this. Then the crackdowns tend to fulfil their own publicity through overreaction, as the noble Earl, Lord Listowel, told us. My noble friend Lord Warner reminded us that the public must be protected. He is right. I felt encouraged when Gordon Brown took over as Prime Minister and created the new Department for Children, Schools and Families. At that time the Secretary of State, Ed Balls, indicated a change in the balance—spoken about by my noble friend Lord Warner—when he declared it a failure on our part every time a young person gets an ASBO. He realised that in some cases ASBOs have criminalised children, and in other cases become a mark of esteem. He also toned down the “yob culture” rhetoric and the respect agenda, which the noble Lord, Lord Thomas, spoke about.
My right honourable friend Ed Miliband last year spoke of the need for the Government to do more, to rehabilitate young people and to end society’s perception that most teenagers are involved in crime and anti-social behaviour. This point was made not only by my noble friend Lord Judd and the noble Baroness, Lady Miller, but in the report of the four children’s commissioners. I realise that the number of children behind bars continues to increase, but my inclination is to give these new and young Ministers a chance. They are being helped by the Government’s attack on child poverty; by early intervention in the form of such schemes as nurseries and Sure Start; and by flexible working, after-school and breakfast clubs, and maternity and paternity leave. After all, these young Ministers have been brought up on a diet of social justice, and are committed to enabling people to make the most of themselves. They realise that our existing system of criminal justice for children is, perhaps, part of the problem, not the solution. My request is that we give them a chance to turn things around.
When will we know that they have succeeded? In my ideal world, prison custody would be abolished for all children, except those guilty of very grave crimes and who pose a serious danger. Ideally, they would be detained in local authority secure accommodation to maintain the family connection. Young people should be diverted from court and perhaps brought before a young people’s prosecutor. Interventions would be at community level and these would have to be expanded and improved, as would drug and alcohol treatment, and advice and support for parents. There should also be improvements in restorative justice and mentoring to help youngsters think through the consequences of their actions. All these services, including mental health provision could be improved, as many noble Lords have said. Perhaps equally important is the need to encourage a more vocationally orientated education system designed to bind children into society, rather than rejecting them. This is one of the points of the new Education and Skills Bill that we debated earlier this week.
I do not think that my wish list is impossible to achieve. Perhaps it reflects the change in culture that my noble friend Lord Judd described. Some progress will be made if we comply with the children's rights convention. But there is a real problem of perception. There is outrage when a child suffers through the negligence and viciousness of others, but where is the outrage when last year a UNICEF study of children’s well-being in rich countries put us at the bottom of the list? Now there is a worthy target if we want one—to climb from the bottom to the top. A paper on how to do that would be a much better read.
My Lords, I thank my noble friend for bringing this issue to the attention of the House. I agree with him that one of our major problems is that the way in which we deal with crime and the young has become the most testosterone-driven part of the political debate. Politicians tend to beat their chests and say how tough they are going to be and then have a crackdown. Once they have finished having their crackdown, they forget about it. The problem re-emerges in a slightly new way in a slightly new fashion and there is another crackdown. The press likes this, because it does not have to think very much, either. It calls for a crackdown and it gets one. It is a horrible cycle. As we have gone through this process, we have seen that it tends to swamp the good work that is done, where it exists, and tends to cover up the bad practice. We have to do more. This is one of the major problems that the Government and everyone involved will have to square up to in the next few years if we are to make any real impression.
I wish to draw attention to a large group within our offender system—the dyslexic. The noble Lord, Lord Elton, who is becoming rather quicker on the draw than me in this area, has already referred to this group. When I made my first speech in your Lordships’ House a little more than 20 years ago, I spoke about dyslexia. The change of tone about this condition has been massive. People used to say, “Oh, the poor little middle-class boy genius”—among sufferers, there is a 4 to 1 ratio of males—whereas now the problem is being appreciated and manifesting itself most strongly in our criminal justice system. The noble Lord said that the figure in that area was about 40 per cent. Most of the statistics that I have seen put the figure at about half.
Although most people in prison or the youth justice system come from the lower socio-economic groups, we are not finding and supporting those who have dyslexia within those groups. Some 10 per cent or 12 per cent have this problem to varying degrees. Calling it one problem is probably a misnomer. Dyslexia is a spectrum that covers a large percentage of, predominantly, the male population. It would be astounding if there were not a high number of dyslexics in the prison population.
When I worked for Apex Trust, which is not as big as it was, we dealt with getting offenders into jobs. It was the first time ever that I had sat down in a group where my literacy skills were above average. What can we do about these people who do not achieve? The noble Lord, Lord Elton, said that, if we have 100 per cent screening of children going through the education system, we could largely deal with this problem. He may be right, but even with a good screening process at the right age and for the right group, we will probably still miss a few people, whose problems will come out earlier or later. Also, even if we do that now, we are still between 10 and 12 years from dealing with the problem in the population. There is no great appetite for the huge expenditure and change to our education system that what he suggests would require, although perhaps there should be. So what do we do?
We have people who are, as a result of their social context, not being picked up on their way through the system. Noble Lords should not worry; I will soon get around to considering something that is the Minister’s departmental responsibility. As we go through this process, we find people who offend because they are educational drop-outs, because the education system is not friendly to them and they come from a background where you do not find out why you have failed in the education system. It is just accepted that you are no good at school. I am afraid that that is another reality that we have to accept.
What can we do when we get people into controlled environments, particularly custody, that allow us to identify the problem and then deal with it? The thrust of what I would like to concentrate on is the practicality of what one does after identifying the dyslexic—and there are good diagnostic systems. In the adult prison population, many people are assessed as being dyslexic every time they go to a new prison. They are half way through an education system, but then they leave or give up.
Let me take, as a common analogy, someone who hated sport—we are not short of such people in the political class. We tell that person, “You will not only play sport, but you will play it in the most unpleasant way possible for you. You did not like the cold and wet; let’s roll you around in a muddy field and play a sport that you have absolutely no aptitude for and make it as unpleasant as it conceivably can be”. We say to the dyslexic young offender, a person for whom school was a memory at 14, “Let’s teach you to spell properly again”. To be perfectly honest, someone who does that really deserves the odd punch on the nose. We are taking a thoroughly unpleasant, hideous and degrading experience and making the person go back through it; even suggesting that they might is bad enough.
I ask the Government what evidence there is and what good examples there are of taking that person, sitting them down and telling them, “The reason why you cannot do this is because you have this condition. It comes down to this: the short-term learning capacity in your brain is different, but you have other compensating traits—better lateral thought and being able to tackle subjects sideways”. I feel sorry for Hansard when I occasionally go off and do that myself. That approach would be a valuable first step.
It must be remembered that this is a disability in your differently constructed brain. If you are late in tackling this, you will never hit key stage whatever. That is very common. We should concentrate on making sure that these individuals are given a series of coping strategies. A basic one is explaining that you have a problem. If you are told that you have to fill in a form, you may need to say, “Can I have two, because I will make mistakes on the first one?”. There is something that I still do, even as a large white male with a posh voice who happens to be a Member of the House of Lords: I still have the odd run-in with authority. I do not like doing what I am told. When you consider someone for whom every form of officialdom is basically unfriendly, is it any wonder that people just give up and go away? Will we take the first step by explaining not only to society as a whole but to the person involved that they can deal with this problem? It will never be easy—they will never be like everybody else—but they need to take that step forward.
The Youth Justice Board is probably a good place to start running these models and projects. It will not be about passing a certain level of literacy, because often the moment is gone. That is not always so; sometimes it is a marginal problem that needs some support, but often it will be a social problem or it will be because learning capacity is either not there or has slowed down. Will the Government give us some answers on what they will do? Unless they explain the problems so that they can be understood by other people in such groups, education and understanding will not be there. When communication breaks down, we have to start again.
How can someone apply for housing and benefits if he cannot handle the form? If he does not know how to ask for that help, which is now provided in legislation, how will he get it? The practical task is getting the Government to accept that they have to take a slightly different approach. They should invest in this group to explain about living in the world as it is and not how it should be according to statistics.
My Lords, I join all noble Lords in congratulating the noble Lord, Lord Thomas of Gresford, on initiating this debate, which touches on one of the most crucial areas for which government can be responsible in any community. At the same time, I say how much I admire the youth justice campaigns that he has so valiantly fought over the years. Having paid those two deserved tributes to him, I beg leave perhaps to doubt the grave indictment that he levelled at Her Majesty’s Government of total and abject failure in this field.
I apologise to the noble Lord, Lord Addington, for not following in the same terms the most moving appeal that he made in his address to us. I have the greatest respect and sympathy for his case and I am sure that his speech contributed substantially to the discussion in your Lordships’ House today. As the last of the speakers on the list not from the Front Benches, I shall touch on a document that has been referred to more than once in this debate: the report published some days ago by the children’s commissioners for England, Wales, Scotland and Northern Ireland on the United Nations Convention on the Rights of the Child. I am glad that Her Majesty’s Government require the commissioners to report once every five or six years—I am not sure which—as that, as much as any exercise, focuses attention on this issue. When the previous report was submitted, in 2002, there was only one commissioner—the one for Wales. Now we have commissioners for England, Scotland, Wales and Northern Ireland. The others have followed, if I may say so with some pride, the pioneering and progressive attitude of the Welsh Assembly in this matter.
I shall make some general remarks, the first of which concerns the mandate of authority that the four commissioners have. In Scotland, Wales and Northern Ireland, the mandate is founded on the rights of the child as declared in the convention. The situation is slightly different in England, where the mandate is based on the five aspects of well-being that are highlighted in the White Paper Every Child Matters. This is not logic chopping or hair splitting: there is a world of difference between rights based on basic human rights as interpreted in the international convention and what, with the best will in the world and with the most genuine intentions, is declared as an instrument of government policy.
The remits of authority differ. The commissioners for Wales and Northern Ireland have every right to deal with individual cases, which is the most important feature of their function. That right is not enjoyed by the commissioners for England and Scotland. The English commissioner has a right of entry to premises where a child is in care or is being catered for, but that right is not enjoyed by the other three commissioners. Devolution has reached different levels in the Celtic countries, which means that certain anomalies apply. For example, in Wales immigration is a reserved, non-devolved matter, which is different from the situation in Scotland and Northern Ireland. When a child in Wales seeks asylum, the commissioner cannot intervene. Ironically, it would not make any difference to pass the case over to the English commissioner, because he would not be allowed to intervene. These matters deserve considerable attention.
The House will know that under Article 4 of the convention it is incumbent on all Governments who have signed up to and ratified it to incorporate its contents in domestic law. We have not done so. The Minister may be able to tell the House whether there is a genuine intention to do so and on what timescale.
The convention report is chequered. Much of it is encouraging and much is disquieting. Certain matters constitute a considerable blot on the conscience of our community, particularly on criminal matters. The noble Lord, Lord Dholakia, touched on the age of criminality. We are entirely out of line with the European Community in this case. Our age of criminality is 10; it is eight in Scotland. In nearly every other European country, it is 13 or 14. I think that France has an age of criminality of 16. The Children and Young Persons Act 1969, which as a junior Minister in the Home Office I had the pleasure of taking through the House of Commons almost 40 years ago, had a provision enabling the age of criminality to be raised from 10 by affirmative order of both Houses of Parliament. I well remember the late James Callaghan as Home Secretary saying how progressive a measure that was and how much he hoped that the initiative would soon be taken. He was a man of fairness and toughness. Unfortunately, that provision subsequently disappeared from the statute book.
Many of your Lordships have touched on the number of children in custody. In February this year, apparently 2,837 children were held in custody. The figure given by the noble Lord, Lord Haskel, was slightly different. He adumbrated the principle that accountancy gives many facets to the ordinary, common truth. Be that as it may, the figure is disgracefully high, whether it is his or the one that I cited from the commissioners’ report. As I have said many times, in the United Kingdom more children are in custody than in Germany, France, the Netherlands and Norway put together. That is the situation that stares us in the face. Only one or two circumstances can reasonably be responsible for that. Either our children are more wicked and have a greater predilection to serious offences than children in Europe, or we have a different attitude towards sentencing. Clearly, it is the second factor that is responsible.
I accept that there are some children of such dangerous calibre and viciousness that they have to be incarcerated. I also accept that it is a serious matter to injure a person with a knife or to carry a knife in a situation where that is kept as an option. However, I do not believe that the answer lies ultimately with punishment or prosecution. It lies more in managing to inculcate a culture in the home, school and community at large, whereby it is regarded as a disgraceful, cowardly and barbaric thing to carry a knife. That is easier said than done. Clearly, it is only in that direction that any solution lies.
I am rapidly running out of time, but let me make a point that has been touched on by many noble Lords in this debate. There is a danger that we, as a society, have a punitive attitude towards our children and young persons. They are getting a bad press. The media have a negative attitude towards them. There is a grave danger that we might be seen, as a society, to be at war with our young people. We heard from the noble Baroness, Lady Miller, about the way in which in many areas young people are dispersed by the use of what I think is called the mosquito bleeper, a high-pitched resonance that disperses children as if they were pariah dogs.
Our children are the greatest material treasure that a community could have. Let us remember, as far as the attitude of society is concerned, that old men—and old women now and again—over the centuries in this land and no doubt in the civilisations of China, Sumer, Greece and Rome, have always been telling one another how decadent the young are. There may have been a morsel of truth in it, but I doubt it. I believe that it has had more do with the attitude summed up by that jealous and cynical remark made by Bernard Shaw:
“Youth is wasted on the young”.
My Lords, I, too, thank my noble friend Lord Thomas of Gresford for the opportunity to have this debate. It is also gratifying to see that a number of notable experts in this House on this subject have taken the time to speak today and have brought their wise, personal perspectives to the subject.
A decade is a long time, but in the life of a young person it is, critically, a period of enormous change. Unlike adults, it is a period when the foundations for their physical and mental well-being are established; when their knowledge-base and interests are cultivated; and, most importantly, when their life chances are determined. It is through this decade from age eight to 18 when the future of that person will be cast in the direction of success or failure. Fortunately, most succeed on the measures of well-being that we consider relevant in our society. We produce people who are relatively well educated, relatively healthy and make a positive contribution to society. It is those who do not contribute, those who tripped up at some point early on in their lives, who are our concern today. Moreover, those who encounter problems early on are seldom the sole protagonists of that error. As many noble Lords have illustrated, to a large extent broader circumstances contribute to offending behaviour in children.
We know the circumstances. We have looked at them not only today, but did so recently in the Criminal Justice and Immigration Bill as it made its way through this House. However, the more depressing aspect of this saga is that 10 years and several billions of pounds of funding have resulted in so little being achieved. On most of the measures which could constitute success on youth crime—take first entrant rates, reoffending rates, or reductions in custodial sentences—there has been an expansion of the youth justice net, rather than a reduction in the crimes being committed.
The report before us today—Ten Years of Labour’s Youth Justice Reforms: An Independent Audit, published by the Centre for Crime and Justice Studies at King’s College—shows that if one takes a broader look at the system, the picture is even bleaker as these reforms over the decade have singularly failed to address the needs of the most vulnerable children and young people. For significant numbers of young people supervised by youth offending teams, the system has failed to meet the most basic test of a safety net; that of providing suitable accommodation—the proverbial roof over the head—without which stability is impossible to attain. When it comes to preparing them for later life, one-third are found not to receive full-time education, training or employment. Substance misuse or the provision of mental health interventions are ever the Cinderella of the service, whereby, according to this report, none of the targets for substance misuse, screening, assessment, intervention and mental health referral has been met.
Many expert noble Lords spoke in this debate, but I want to respond to the words of the noble Lord, Lord Warner. I pay tribute to his ongoing and prevailing involvement in youth justice. His record is such that we in this House can be proud to have been party to it, even at a stage once removed. I will also resist the invitation of the noble Lord, Lord Warner, to take a pop at him for his involvement in the current system—in a very direct fashion, that is. There is a problem with the noble Lord’s refutation of this study in that he believes it is based on the fallacy that the report is comparative, looking at a previous golden age and then finding the present age to be wanting. That is not what it sets out to do. The report, which is written by independent experts, using empirical data and tried-and-tested methodology to arrive at their conclusions—unwelcome as they may be to the Government—is one that stands up to peer review and to other independent expert analysis.
I touch on this because it is symptomatic of a larger problem to do with evidence-based research within the Government and their supporters. They do not like it. There was a fine illustration of this only last night with the Counter-Terrorism Bill and its odious proposal of detention for 42 days—noble Lords knew I would come to this, did they not? When the head of the Metropolitan Police was asked for evidence to support his enthusiastic response to 42-day detention without charge, his response was that there was none. He just wanted to keep the power in his back pocket in case he needed it. The fundamental problem is having powers in case you need them at some point, rather than looking at the research as it exists. My noble friend Lord Thomas of Gresford has spoken of risk-averse management. For those who might suggest that we are just making political weather out of this, let me quote Professor Simon Hallsworth, a former adviser to the Government on gun crime. He criticises the Government for their “deeply sinister” abandonment of their policy to be tough on the causes of crime, only in order to replace it with a policy which is concerned with the “management of risk”.
I move now to the Government’s current response. Almost all the experts agree that a more robust preventive strategy employing social and welfare-based interventions is the way to tackle potential risk-prone individuals before they enter the criminal justice system. Indeed, the Secretary of State for Children, Schools and Families almost said as much in his article in the Independent on Sunday on 8 June 2008, when he plugged the new youth crime action plan. He tells us that we need,
“a ‘triple track’ approach, with tough enforcement accompanied by early intervention addressing the root causes of violent or anti-social behaviour, and support to help troubled youngsters to get their lives back on track”.
In fairness to him, he also goes on to say:
“We must do a great deal more to intervene early to tackle the causes of disadvantage and vulnerability”.
The point is that all these things are rendered mere aspirations unless they are accompanied by strategic and real-time resources. As my noble friend Lord Thomas of Gresford said, when 10 times more is spent on offending, versus preventive measures, it is no wonder that the outcome does not measure up.
As the report points out, a key element of the Government’s approach has been a reliance on,
“systemic managerialism and central control”.
This finding is supported by others. Professor Hallsworth, the director of London Metropolitan University’s Centre for Social Evaluation Research, dismisses the Home Office’s Tackling Violence Action Plan as anti-social criminology. He adds that it is “hardly evidence-driven policy”. He describes the policy as,
“a cold, soulless, administrative, technocratic programme for mapping and managing risks wherever they appear: a post-welfare programme fit for the emergent national security state”.
I can only refer again to last night and to the debate that will probably ensue. Moreover, Professor Rod Morgan, the former head of the Youth Justice Board for England and Wales, says that he was,
“incensed … by the incomprehension and arrogance regarding the research process which some administrators displayed”,
when he headed the YJB.
We hope that these concerns will prove unfounded when it comes to the Government’s new action plan and that the track of prevention alluded to by Mr Balls will be prioritised. More broadly, we hope that the Government will reflect on the findings of this report and reassess whether the strategic focus of government agencies to work with and support young people at risk is the more effective way forward.
I return to the focus of the report: young people in the context of youth justice and the reforms over the past 10 years. For young people, a decade of reform, a decade of targets and a decade of moving acronyms are meaningless. These young people have been let down by their parents and carers, they have been let down by community and society, and they have been let down by the Government. The welfare state and the party that has claimed to wear its mantle have failed to ensure the welfare of the most vulnerable group in their charge.
My Lords, I start by offering what I was going to suggest were my commiserations to the Minister but I think that they should probably be my congratulations. First, he will have the pleasure of winding up this debate. It has been a very good debate with, as always in this House, input from speakers with a great deal of expertise. Secondly, I take it on myself to remind the House that the noble Lord has already answered one Question and that he will be replying to another debate after this one. We have to admire his diligence and hard work in coming to the House, and we are grateful for it. I note that he is leaving the Maximum Number of Judges Order 2008 to one of his colleagues and I think that he is right so to do. I trust that he will then possibly take the evening off, but if he has other plans that is a matter for him.
Secondly, along with others, I offer my thanks to the Centre for Crime and Justice Studies and my congratulations on its report. It is a very good report and the noble Lord would be well advised to study it, as I am sure would the noble Lord, Lord Warner. He asked that we should direct some of our comments at him and not just at his noble friend the Minister. I appreciate that the Minister’s noble friend Lord Haskel was not that keen on the report and did not like its use of statistics. However, one has to remind him that it is the Government who are a long and doughty supporter and a great user of these statistics and that they are, as he admitted himself, obsessed by targets. He pointed out the danger of using targets and the effect that they could have on how people operate.
Thirdly, I obviously offer my thanks to the noble Lord, Lord Thomas, for introducing this debate and for getting such a good list of speakers to come before us. In his opening remarks, he went back to the comments of the then shadow Home Secretary, Tony Blair, at a Labour Party conference just after the 1992 election, when he talked about being “tough on crime, tough on the causes of crime”. I do not want to go back quite so far. Tony Blair has now gone. He has been replaced as Prime Minister for more than a year by Gordon Brown—a Prime Minister who in that year has not made one speech on criminal justice and such matters which he might consider remedying in due course.
I should like to go back some 10 or 11 years to the time when Jack Straw, then Home Secretary—he is now Secretary of State for Justice and he has had quite a few other jobs in between—launched his White Paper, No More Excuses, and the subsequent Crime and Disorder Act 1998. I remember that I dealt with part of that Act, when it was a Bill, in this House as a shadow home affairs spokesman. I suppose that I have moved on to various other things and, like his honourable friend the shadow Secretary of State for Justice, have come back to justice in the end. At the time, I think that it was the late Lord Williams who took that Bill through this House.
As the noble Lord will remember, there were great expectations concerning the Crime and Disorder Act and the various other criminal justice and youth justice measures that followed over the years. As we have seen so often with this Government, following that there was a great expansion of expenditure of taxpayers’ money. We have seen expenditure on youth justice go up by some 45 per cent in real terms since then, which is more than on any other part of the criminal justice system. We would have welcomed that increase in expenditure if it had been effective; yet, 10 years on, as I understand it—the noble Lord, Lord Ramsbotham, referred to some more recent figures—we still see that 70 per cent of male young offenders who receive a community sentence and 76 per cent who receive a custodial sentence reoffend, or, rather, they are reconvicted. Obviously the reoffending and reconviction rates are very different. One has to presume that the reoffending rate is considerably higher—if one can measure such a thing—than the reconviction rate. Perhaps the noble Lord will comment on that when he replies.
We were also told that there were targets to reduce reoffending—or, again, is it reconvicting?—by some 5 per cent a year. I do not suppose that the noble Lord will be able to argue that those targets have been met in any way, but perhaps in due course he would comment on them and tell us what has happened to the attempt to get reoffending down by 5 per cent a year.
In the few minutes available to me, I want to put a number of questions, as always, to the noble Lord, and I hope that in his usual diligent way he will try to respond to them in due course. First, the report from the Centre for Crime and Justice Studies says, in effect, that the Government’s approach has failed. The authors have highlighted the fact that we have seen this great increase in spending without any discernable improvement in the youth justice system. They state that most of the Government’s targets have been missed and they recommend that the time has come to re-evaluate the function and purpose of the youth justice system. Where have the Government succeeded in their approach to youth offending?
Why have they missed most of their recent targets for the number of children in custody? We have been given figures for how many there are and how that compares with other countries. The noble Lord, Lord Elystan-Morgan, said that we have more children in custody than France, Germany, Norway and the Netherlands combined. Again, the Minister should comment on that. I understand that the Government had a target—yet another—that there would be a reduction of 10 per cent. Since 2005, rather than seeing a reduction of 10 per cent we have seen an increase of some 8 per cent.
The report also states that the Government’s youth offending teams,
“do not appear to be able to successfully meet the complex needs of children and young people”.
What assessment have the Government made of the effectiveness of those youth offending teams? I refer to an article that the noble Lord will be familiar with from the Observer of a week or so ago. It published details of an internal memo from within the Ministry of Justice which states that 5 per cent to 6 per cent of young offenders commit between 50 per cent and 60 per cent of all juvenile crime, with an average of 30 to 40 offences per year. The worst offenders have a 96 per cent reoffending or reconviction rate, with each costing taxpayers some £80,000 a year. The memo also states that reoffending rates are stubbornly high and have not significantly altered since 1997. Does the Minister agree with me that that again is an indication of complete failure on the part of the Government?
That internal memo also suggests that the youth justice system raises “barriers to effective resettlement” after young offenders have finished their sentences and that, by setting strict supervision conditions, it leads to an increasing number of children breaching their orders, which in turn triggers more custodial sentences. Why does the justice system raise those barriers to resettlement? Going back to the report from the Centre for Crime and Justice Studies, it states a somewhat depressing picture. It says that,
“youth justice agencies can do little more than regulate youth crime”.
Does the Minister accept that view? Further, does he agree with my party that if youth justice agencies were properly incentivised to reduce reoffending, with clear, aligned objectives and lines of accountability, we could get a grip on the problem?
That should be enough for the noble Lord to be going on with for the moment. Again, I offer him my commiserations and congratulations. We appreciate the work he does in this House, particularly on a Thursday like this. I look forward to hearing his response. No doubt others will hear a second response in the second debate later on.
My Lords, I thank the noble Lord, Lord Thomas of Gresford, for initiating the debate. It has been a real privilege to listen to the highly informed contributions. I thank the noble Lord, Lord Henley, for his sympathies. I am taking part in Thursday debates for the next few weeks so I look forward to his pleasant company there. I have not got the night off; my right honourable friend the Lord Chancellor is speaking at a dinner in Birmingham tonight and I think it is a career-enhancing move to make sure I hot-foot it back there. No doubt he will be talking about our youth justice strategy.
This has been a well-informed debate though I do not entirely share the assessment of the noble Lord, Lord Thomas of Gresford, that this Government have failed, as he said, in all aspects. Nor do I agree with the noble Lord, Dholakia, who said that the youth justice system is not fit for purpose. Frankly, that is not my reading of the report. The noble Baroness, Lady Falkner, in her typically spirited speech, suggested that this Government are not interested in evidence-based research. Of course we are. My noble friend Lord Warner and I have boxed and coxed various jobs over the years. We were both responsible for a huge expansion in the NHS research and development budget, entirely focused on evidence-based research. I am responsible for research within my department now. We are looking at evidence the whole time which enforces and informs our policy.
On the Counter-Terrorism Bill, I will not go there. We look forward with great interest to the debates that no doubt we will have over the coming months.
The reason I do not share the gloom of the noble Lord, Lord Thomas, about the report is that I have read it. It always differs from the press release and the way it was presented to us. In fact, I found it well written with a lot of research in it and it acknowledged that a lot of achievements have taken place over the past 10 years. There is the big increase in spending, the reduction in crime, more offences brought to justice, the big increase in police numbers, many drug targets met, and targets on speeding up court processes for young offenders. Of course it raises, properly, some serious questions about the relationship between criminal justice and complex social and economic problems. That is its conclusion and I echo that.
We have to tackle those fundamental, underlying issues we face as a society but that is what the Government have been doing and tackling in the past 10 or 11 years. What are the Sure Start programmes about or the huge expansion in education, the work of YOTs and our work with local authorities in general? The noble Lord, Lord Henley, asked about YOTs. They have a critical role in the work with young offenders and the relationships they have with local authorities and other agencies. We debated in the Criminal Justice and Immigration Bill the inspector’s report on YOTs. It clearly showed that YOTs had done enormously good work but that there are issues that still have to be tackled. The youth crime action plan is one area in which we will take that forward.
I agree with the noble Lord, Lord Dholakia, and the noble Earl, Lord Listowel, about the poor outcomes of children in care and why we need early intervention. On the point of my noble friend Lord Judd, yes we should avoid knee-jerk reactions. We have to get the social context right. The noble Lord, Lord Elton, was particularly powerful in the sense of this problem of young people lacking love and our having to recognise that in the ways we respond to these questions. I agree with the noble Baroness, Lady Miller, about restorative justice. I have noted her comment about the need for quicker rollout and will certainly ensure that that is considered.
On the accommodation issue, which is relevant to the underlying theme of the report on the social framework in which criminal justice has to operate, my understanding is that an accommodation indicator is included in the provisional set of local government indicators. We welcome that, as does the Youth Justice Board. Obviously we hope it will drive local authorities to improve access to accommodation for young offenders in the future.
My noble friend Lord Warner, who did such a great job at the Youth Justice Board, has explained the development of youth justice policy and the investment that has taken place. Some noble Lords have said of that investment that too much of it is spent on custody. They suggested that in a rather pejorative sense. We have to understand that much of that money has been spent on improving the educational programmes for those especially vulnerable people.
On mental health, which is a critical area, as we have all acknowledged in our debates during the past year, part of the extra resource has come from the Department of Health to support considerable improvements in mental health services, provision and assessment for young offenders. We have of course emphasised the need for greater integration between youth crime prevention and wider children's services. There is no argument between the Government and noble Lords about the importance of doing so. I refer to the aiming high in the 10-year youth strategy of the commitment to pool 10 per cent of the Youth Justice Board's prevention grant with local authority funding. That will be created through a three-year pilot to look at how youth offending teams can pool 100 per cent of their prevention budgets to strengthen support for young people and prevent reoffending. We accept that it is critical to get that relationship right.
I come to the whole question of targets. When the noble Baroness, Lady Falkner, cited the accusation of systematic managerialism and central control by the Government, my noble friend Lord Warner said, “If only, if only”. The debate on targets is very important. It permeates the whole relationship between central government and the spending on public services, often by other agencies. I will defend the targets. I have no doubt that without some of the targets in the National Health Service, we would not have made the hugely impressive improvements that we have. I also accept that we need focus and that if you have too many targets, it is too confusing.
I come to the question of the key targets that have been set in the criminal justice system. When one looks at the progress that has been made, one should not ignore the fall in crime, the reduction in reoffending and the increase in the number of offences brought to justice. Those are achievements. The noble Lord, Lord Henley, asked me about the 5 per cent reduction target. I suspect that he knows the answer already. The figure that we have is of a reduction from 40.2 per cent in 2000 to 38.4 per cent in 2005. Yes, we would like to have made further progress, but as my noble friend Lord Warner said, those targets were deliberately stretching; it is right that they should have been. It is clear that we need to work on that foundation. I was asked about the objectives of the Youth Justice Board for the 2008-11 CSR period. The aim is to achieve a continuing reduction in first-time entrants to the youth justice system, a continuing reduction in the frequency and seriousness of reoffending and to improve public confidence in the youth justice system. In that, I say that prevention and early intervention remain the cornerstone of our approach to reducing youth crime.
We do not need to redebate the Criminal Justice and Immigration Act, but I just point to the fact that that Act reinforced the emphasis on out-of-court diversions. There is a general view that the youth rehabilitation order, whatever our debate about various aspects of it, presents a helpful, constructive way forward.
The noble Baroness, Lady Miller, raised the issue of ASBOs and the whole question of demonisation of young people. I echo my noble friend: we must be very careful not to demonise young people; we need to recognise the contribution that so many of them make to our society and the greater pressure that I suspect that they are under than many of us were at that age. ASBOs are not about demonising young people. They must be seen in the context of the other actions that have been taken, such as Sure Start and the Every Child Matters programmes. But anti-social crime has to be tackled. What is often forgotten is that the victims of many of those crimes are young people themselves.
My Lords, I am terribly sorry to interrupt the Minister—I will be very brief—but he has just said exactly what our objection is. He referred to anti-social crime when talking about ASBOs. ASBOs are not about crime; they are about bad behaviour. That is what the Government invented them for, surely.
My Lords, with respect, that is an entirely pedantic point and would be recognised as such by people who suffer the impact and the effects of it.
My Lords, I cannot accept that. If it is crime, it should be brought before the courts and punished as crime. Anti-social behaviour orders are what they say they are; they put restrictions on people's behaviour. The courts are amply fitted and have been for centuries to deal with crime, so do not let us have any anti-social crime being talked about.
My Lords, I remind noble Lords that the Minister has limited time, as do other noble Lords.
My Lords, I am enjoying this. We do not need to get into a cul-de-sac of pedantic argument about anti-social behaviour and the definition of crime. Noble Lords know quite well what I mean. I have said that this is not about demonising young people, but anti-social behaviour and crime which causes great problems to vulnerable people and to young people themselves also have to be tackled. One has to see the whole approach of ASBOs alongside out-of-court diversions and touch approaches to serious crime committed by young people. One has to see this in the round.
I say to my noble friend Lord Warner that of course one has to get the right balance on knife crime; there is no question about that. On mosquito noises, there is no government policy. That has not been endorsed, but a balance must be found between proper association and the problem of real intimidation by groups of youths, which has caused concern to many people, including young people themselves.
I turn to education and training, which is critically important for young people in custody. I pay tribute to the people who have been working in youth custody settings, who have done enormous work in the past few years to improve the general education and training programmes. The noble Lord, Lord Elton, mentioned literacy; of course it is important. I thought that the noble Lord, Lord Addington, made one of the most powerful speeches I have ever heard him make on this area. I visited Chelmsford prison last week, where staff paid great tribute to him for his work on dyslexia and young people, and people in general, in prison. Literacy is a very important part of our educational programme. I am informed that it is very much a focus of the special educational needs co-ordinators who have been introduced in our youth offending institutions, but there can be no complacency and I will ensure that the points raised by both noble Lords are fully considered by the Youth Justice Board and its educational partners. The actual number of hours for which young people are receiving education and training within custodial settings has increased impressively.
I come to the question of the number of young people in custody. I have debated this with noble Lords several times. I understand the concerns that noble Lords have about the number of young people in custody. It stands, from my figures for March 2008, at 2,942. Of course, we want to deal with the young person in the community wherever possible, rather than removing him or her from it—the Government have said this. But we cannot lose sight of the fact that some young offenders’ behaviour is so serious that young people have to be placed in secure conditions. That is not a knee-jerk reaction or an impact of testosterone levels, as has been suggested. It is worth remembering that most under-18s in custody have almost reached adulthood. In April 2008—the last month for which I have figures—more than 50 per cent of the under-18 custodial population was aged over 17. By contrast, only 0.2 per cent were under 13. In the House of Commons two days ago, my right honourable friend the Lord Chancellor said in Oral Questions:
“Very few young people are ever put into custody. The only reason that they are put into custody is that they have committed very serious offences. The number of children aged 12 in custody is seven. The bulk of those young people who are put into custody are aged 16 and 17—they are not children; they are often large, unpleasant thugs, and they are frightening to the public. In my judgment, the courts have been quite right to ensure that they are locked up, and locked up for a long time where they have committed grievous offences”.—[Official Report, Commons, 10/6/08; col. 155.]
Custody for young people is a last resort, although it is a necessary option.
We have listened with interest to the comments of the UK’s four Children’s Commissioners. I say to the noble Lord, Lord Elystan-Morgan, that of course I noted the Welsh leadership in this matter, to which he was right to draw our attention. On the question of individual cases, as far as the English commissioner is concerned, this is quite consistent with some of the other decisions that we made about regulatory or inspectoral bodies in England. In general, the view has been taken that it is much better for the statutory agencies to deal with individuals—that is their responsibility—but with the regulator, the inspector, or in this case the Children’s Commissioner then able to comment on the generality of the performance and service offered. I recognise that there are differences of view. He pointed to some anomalies. At this early stage, perhaps it would be better to learn from these different experiences. I have no doubt that, then, adjustments can be made. The subject of Article 37(c) and the reservation is under review at the moment.
I will briefly come to the youth crime action plan, to which the noble Lord, Lord Ramsbotham, referred very eloquently. This gives us great hope for the future. It is a partnership between my department, the Department for Children, Schools and Families and the Home Office. I take his point about the importance of health. I assure him that the Department of Health has been closely involved, as have other government departments. He is absolutely right to remind the House of the importance of health considerations. I suspect he particularly meant mental health considerations because of the experience—of which we know—of many young offenders and their mental health problems.
The report was, as I said, a very helpful document. It was well written and is very useful for us to consider in the context of the youth crime action plan. I do not agree with the analysis of some noble Lords as to its conclusions, but I suspect that we will take what we will from it. It highlights both achievements and the major challenges that we face. We have made considerable progress in the last 11 years. There is still much to do. We still need to ensure that we have the kind of co-ordinated programme that noble Lords have suggested. The youth crime action plan is clearly the vehicle for us to take that forward. I have no doubt that we will debate again very shortly when that plan is published in your Lordships’ House, with the same degree of expertise as we have heard this afternoon.
My Lords, I am most grateful to all noble Lords who have taken part in the debate. I note that the report has been accepted and welcomed. Indeed, just a moment ago, the Minister paid tribute to the analysis in the report of the problem. Only the noble Lord, Lord Haskel, begged leave to differ because of the lack of proper statistics, on which I will not comment at this stage. Of course, the report does not stand on its own; it is supported by the report of the commissioners to the United Nations, to which the noble Lord, Lord Elystan-Morgan, and my noble friend Lady Miller referred. In particular, it is supported by a person who is very much at the centre of the Youth Justice Board, namely Mr Rod Morgan. I have already quoted to your Lordships how much he agrees with the findings of the report and says, in terms, that it was these failures of policy which lead to his resignation from the chairmanship of that board.
Having presented the case for the prosecution, as it were, I am delighted that we have heard possible solutions emerging in the debate, focused very much on the contribution of the noble Lord, Lord Judd. He sought a new culture. The culture behind the present situation was contained in that White Paper, No More Excuses—I do not know whether the noble Lord, Lord Warner, contributed to it—which put punishment at the forefront. As I said to your Lordships, that was the purpose—the criminal justice service was to be used for that purpose. But the noble Lord, Lord Judd, refers to—and we accept—the muscular love that liberals have always indicated. That theme was echoed by the noble Lord, Lord Elton, in a very interesting speech. Of course, various solutions for early intervention have been put forward by the noble Earl, Lord Listowel, and in an excellent speech by my noble friend Lord Addington. Early intervention and treatment and dealing with young people’s problems before they get clawed into the criminal justice system—the youth justice system—whether through ASBOs or any other way, are all being rehearsed. That points the way forward to a new culture away from punishment—to the use of welfare social solutions to the problems that have affected young people in this country.
When the noble Lord, Lord Warner, produced his schemes in 1998 I thought that there was great promise in them. The idea of multidisciplinary youth offending teams was a way forward, and I do not think that there was a golden age before that. He put a great deal of drive and energy into it, but I am sure he would be the first to admit that he cannot be satisfied with the way in which we criminalise and throw into custody our young children, as we do now. I am most grateful for all contributions. I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.
National Security: Cabinet Office Documents
My Lords, with permission, I should like to make a Statement about events relating to the loss and recovery of two Joint Intelligence Committee documents. The Statement is as follows:
“The Joint Intelligence Committee—the JIC—is situated in the Cabinet Office and, under the chairmanship of Alex Allan, provides intelligence assistance to departments across government.
“An employee working in the JIC assessment staff left two documents on an early morning commuter train on Tuesday of this week. While the documents do not contain the names of individual sources or specific operational details, they are sensitive high-level intelligence assessments. The individual concerned informed his superiors about the loss of the documents on Wednesday morning and they called in the Metropolitan Police, which began an urgent investigation.
“On Wednesday afternoon the Cabinet Office was contacted by the BBC, which told the department that the two documents were in its possession. The nature of the documents was made clear to the BBC and it was requested that it did not broadcast the contents of the documents and that they be returned. The original documents were handed back to the Metropolitan Police on Wednesday evening. There is no evidence at this stage to suggest that our vital national security interests have been damaged or that any individuals or operations have been put at risk. However, the police investigation is continuing.
“This was a clear breach of well established security rules, which forbid the removal of documents of this kind outside secure government premises without clear authorisation and compliance with special security procedures. These rules are a clear part of the operating procedures for handling matters of this sensitivity. All individuals on joining the assessment staff are given a formal briefing on the rules by a specially designated security officer. This formal briefing is supplemented by clear written instructions provided to the individual and that individual has to sign a statement to indicate that they have read, understood and will comply at all times with the rules. In this case, no authorisation was sought for the removal of the documents.
“The official concerned has been suspended from his duties as part of a standard Civil Service disciplinary procedure. The chairman of the JIC, Alex Allan, has confirmed that there are clear rules and that they were not followed in this case. In order to provide the reassurance that all necessary procedures and safeguards are in place, the Cabinet Secretary has asked Sir David Omand, former Permanent Secretary for Security and Intelligence and Permanent Secretary at the Home Office, to carry out a full investigation of the circumstances of the case. Given the nature of these issues, I have asked Sir David to keep the Intelligence and Security Committee, which has a particular role in security and intelligence issues, fully informed.
“All JIC staff have been reminded by the chairman of JIC of the fundamental importance of following in full all security procedures and similar steps are being taken across government for those handling sensitive, intelligence-related material. It is a matter of utmost concern to the Government that this breach of security happened. We will take all steps to ensure that all individuals who work within the Joint Intelligence Committee staff observe the procedures that are necessary for security. We will continue to do everything necessary to safeguard sensitive intelligence material so that we safeguard the British national interest”.
I commend the Statement to the House.
My Lords, I thank the Minister for repeating the Statement. The facts in the case are pretty straightforward. Highly classified and sensitive government documents, drawing on material derived from intelligence sources, were discovered by a member of the general public. The documents were left lying on a train seat by mistake, I assume, by the official concerned, who has now been suspended. This member of the public gave the documents not to the police, as should have been the case, but to a BBC security correspondent. As a result, we know the subject matter of the two documents. Fortunately their contents have not been published and the BBC is to be congratulated on preferring to obey the law and safeguard the security of the nation, rather than going for what could have been a big scoop.
Had the contents been published, the Iraqi Government would have known whether there is any discrepancy between what is said in public by HMG about Iraqi military capabilities and their private assessment. This would have put trust between the UK and Iraq in jeopardy. As for the assessment of al-Qaeda, this country’s leading terrorist foe, I invite the House to consider the implications of an enemy being informed of our assessment of their strategy and capabilities. In war, what a fighting force needs above all is to know what the other side knows and thinks about it and what it does not know. Al-Qaeda has shown itself to be extraordinarily astute politically. Here it would have been handed information on a plate from which it could have devised new and more deadly ways of operating to harm us and to kill our people.
Yesterday in the other place, the Home Secretary said in respect of the terrorist threat to this country:
“The British people place their trust in us”—
“us” being the Government—
“to take the right decisions to protect them”.—[Official Report, Commons, 11/6/08; col. 400.]
What is the value of what are claimed to be the right decisions if people in a central part of the government machine, the Cabinet Office, take their duties so lightly that they are capable of actions that risk directly helping the enemy to conspire successfully against us? The aim of government should be to prevent terrorism, not to help to create messes for which the police are then said to need extra powers to clear up. One wonders what our close intelligence allies think. What do the Americans, Canadians and Australians make of this story? Their security is thereby prejudiced, too. Presumably the Government will apologise to them if they have not already done so.
It would be nice to think that yesterday’s incident was an isolated case. It was certainly egregious and the House notes the action taken in respect of the individual concerned; the Government could do no less. However, this is not the end of the matter. There is a systemic and cultural problem, both at the heart of government and more widely in other Whitehall departments. I could list no fewer than seven other instances of lapses since November 2007 in the proper custody by the Government of sensitive data in their possession—seven other lapses in just six months, and these are merely the ones about which we know. The House will be relieved to hear that I do not intend to give chapter and verse of these examples, but they are strikingly spread throughout Whitehall: two in HMRC, two in DWP, one in the Department for Transport, one in the National Health Service and one in the MoD. The Cabinet Office makes eight, and this is the department responsible for security throughout Whitehall.
Lest anyone thinks that these earlier lapses were trivial, let me recall that some of them were so serious that, as today, they demanded a ministerial Statement to the House. To cite just one, the House will recall the loss in transit by HMRC of the banking details and addresses of 25 million families in receipt of child benefit, which jeopardised the personal financial security of a large proportion of this country’s households. This shows contempt for the rights of the citizen to basic personal security and trustworthiness. This is the Government who imply that they are a better, more trustworthy guardian of the security of the people than those who disagree with Ministers about issues surrounding the extension of pre-charge detention. I suggest that this is not serious. Security is indivisible. The Government cannot be secure in one part and insecure in another without destroying overall credibility.
Sir David Omand is a distinguished person of wisdom and integrity and his willingness to review procedure is to be welcomed, but I regret the fact that the Minister’s Statement contains no hint of the thought that anything is required other than to reiterate existing procedure. It sounds complacent. I suggest that the House needs to know more about enforcement. Good security does not require a genius to achieve it. It is not complex and it is not difficult; it is simple. Departments have rules and those rules need to be obeyed. To ensure observance, the rules should be actively monitored. Departments check the credentials of people on entry and often take away the visitor’s telephone, so why had they not been applying proper perimeter security to the inmates? The knowledge that briefcases will be really, and not just theoretically, opened on a random basis and irrespective of rank would act as a real deterrent to the flouting of regulations.
It is time that the Government got a grip of the lax security culture that has been allowed to develop in Whitehall, which seems to be part of a broader procedural sloppiness of sofa government. This instance of the loss of the Government’s own information, and the state’s secrets, is the moment to do it. The Government should enforce sound procedures for handling all information. In addition, they should ensure watertight special handling of the state’s secrets, the leaking of which prejudices the security of the entire nation. They should increase governance in this area by permitting on a permanent basis independent inspection by suitably cleared people of the effectiveness of the security procedures in place. Moreover, I am sure that the House would find it helpful if the Minister were to give a progress report before the Summer Recess on Sir David Omand’s findings.
My Lords, I concur with some of the remarks of the noble Baroness, Lady Neville-Jones, in particular in congratulating the BBC on being responsible about this information—thank goodness the member of the public took the material to the BBC and not to some of the more irresponsible media. The first shock about this disclosure is that it happened in the Cabinet Office, which has been commissioned to review data-handling procedures in government following a series of data breaches over the past year. How can we have any faith in the department responsible for clearing up the messes when it is in the middle of perpetrating another one?
I will not gainsay the expert analysis of the noble Baroness, Lady Neville-Jones, on the threat posed by this lapse in security, but I regret that she is not going to take part in the ensuing debate on data protection and the measures that the Government should put in place. We have a couple of hours this afternoon to explore some of the positive things that could be done about the situation, in which it is quite evident that there is a cultural failure. Nowadays we usually think of technological advances in data protection and the fact that the tools have not kept up with the technology, but this case concerns sheets of paper in an orange folder. The failure even to keep them in a locked briefcase absolutely beggars belief. There is a whole raft of other issues, such as memory sticks that can be left on mantelpieces, CDs whose material can be downloaded and the laptop that was stolen. The list is endless.
The Cabinet Office accommodates the Intelligence and Security Committee, which provides recognised formal training and development for IT security professionals and others. Surely that security regime has to be looked at again. We must ask whether it is sufficient for the Government to appoint one person to conduct an inquiry when there is a systemic failure of this degree in the very department that is supposed to enforce these standards. The Security Commission, which I believe also comes under the Cabinet Office, is tasked to investigate and report on possible or actual breaches of security, but I realise that generally it does not deal with them. I believe that, at the moment, the commission is chaired by the noble and learned Baroness, Lady Butler-Sloss. However, in this case an internal inquiry really is not enough because clearly there has been a systemic failure. Would it not be better to have that body look at this instance, as well as at any other potential cultural failures that are running through the department, and then make suggestions?
I understand that the police were involved in this case at first, but the investigation now seems to have gone off on a complete tangent. Perhaps the noble Baroness could explain why the police are now conducting a forensic investigation when it is clear that the member of staff left the stuff on the seat. Why is police time now being taken up on a forensic investigation of something that is quite obvious? I hope that as many Members of the House as are able will take part in the ensuing debate because there are some serious questions to be answered at greater length.
My Lords, I thank both noble Baronesses for their comments and I shall try to respond to the questions that have been put to me. I want to make it absolutely clear that the Government take this breach of security very seriously indeed. I appreciate the points about the loss of personal data, about which, as the noble Baroness, Lady Neville-Jones, reminded us, my noble friend Lord Davies of Oldham made a full and honest Statement to the House. That loss is also something that the Government regret deeply. However, I am not convinced that it is right to suggest that there is a culture across Whitehall that joins this incident with that event. The noble Baroness, Lady Neville-Jones, is well aware of the work of the Joint Intelligence Committee and, although I do not want to state the obvious, I point out that the kind of information that we are talking about is handled by the staff of the JIC, who understand very well their responsibilities as Cabinet Office staff. I would not want to detract from that at all: they are all trained and have to sign a personal agreement on appointment that they will abide by the rules. However, there has been a breach of those rules here.
In order to offer all those concerned about this issue an appropriate reassurance, we have set up an investigation under the leadership of Sir David Omand. That investigation will keep the Intelligence and Security Committee of parliamentarians informed, and my right honourable friend Ed Miliband has said that he will keep Members of another place informed. It is therefore right that noble Lords should ask to be kept informed, and that will happen. Moreover, I want to assure noble Lords that the investigation by the police was set in train immediately and is continuing, although I do not want to speculate about what the investigation might turn up. On the specific question put to me by the noble Baroness, Lady Miller, about the Security Commission, the chair has been consulted and is content with the approach that we are adopting.
My Lords, I have two questions to put to the Minister. First, while I appreciate that it is entirely appropriate that the identity of the person who lost the documents should not be revealed at this stage, can she give some indication of the level or rank at which that person was operating? I think that that is relevant to the cultural question referred to by the noble Baroness, Lady Neville-Jones. Without specifying the exact rank, can the noble Baroness give us some idea of how high or low in the hierarchy of the JIC the person operated at? Secondly, without in any way impugning the integrity of the BBC, may I ask whether there is any knowledge of how wide or narrow has been the circulation of information concerning the contents of these documents? Were copies taken and has an undertaking been made at the appropriate level as to non-disclosure? If not, will the Government consider taking any action in the civil courts that might be appropriate?
My Lords, I hope that the noble Lord will forgive me if I do not answer his first point. It would be inappropriate at this stage for me to say anything that could result in the identity of the individual being made known. On his second question, about the circulation of the document, there was a gap between the documents going missing on Tuesday morning and the Cabinet Office being notified. The police investigation will of course look into the circumstances around the whole incident. However, I do not want to speculate on what may result from that.
My Lords, may I probe the point made in the Statement that the officer concerned broke rules by taking the documents out of and away from the office? I think that subsequent to the points made by the noble Baroness, Lady Neville-Jones, the Minister said that on appointment to relevant posts, including this officer’s post, documents are signed giving an undertaking to abide by the rules. How frequently is an officer reminded of this matter? Will my noble friend pursue the point made by the noble Baroness, Lady Neville-Jones, on the inspection of briefcases when they are taken from the office to the outside world? Finally, why, if these documents are important and sensitive, should they be available in loose form that can be taken out of the office in a briefcase or under one’s arm rather than being available only to be looked at, studied and commented on in some secure part of the office in Whitehall?
My Lords, I thank my noble friend for that question. I believe that my right honourable friend was trying to make it clear in his Statement that, although there was a breach of the rules, that was not because the document was taken outside the premises. It is extremely rare that such documents should ever be taken from specified secure government premises. The point is that, if such a rare occurrence were to be required, clear authorisation should be sought in advance and there should be specific compliance with security procedures around the removal of such a sensitive document. It is true that from time to time it is necessary to take such documents out of the secure premises, which is why there are clear rules about how that should happen, but we have asked Sir David to look at all the circumstances around the incident and to keep the Intelligence and Security Committee informed. The Joint Intelligence Committee will be involved in any outcomes of such a review.
My Lords, I have two questions. The first is about the conversations that the Cabinet Office had with the BBC on Wednesday afternoon. It appears from the Statement that the BBC was requested only not to broadcast the documents’ contents. Does that mean that the Cabinet Office agreed that it could make reference to the fact that it had the documents in its possession, and could those documents have been covered by a D-notice? My second question goes back to an issue raised by the noble Baroness, Lady Neville-Jones, on our relations with our allies. From what we have heard on the BBC, these documents were caveated for the eyes only of citizens from certain countries. That has serious implications for our relations with those countries. I would be grateful if the Minister could reply to the question put to her by the noble Baroness.
My Lords, our allies have of course been informed of the breach of security. They were informed on Wednesday and they have therefore had the opportunity to take whatever steps they feel are right. I am not sure whether I have made it clear so far, but those that we have informed to date include the US, Canada and Australia. The documents’ content was covered by a DA-notice but what the BBC said was not, so we communicated to the BBC that we would prefer that it did not broadcast. As the noble Baroness, Lady Neville-Jones, pointed out, it has complied to date with our request.
My Lords, will my noble friend comment on the suggestion that there should be an interim report? It is vital that Parliament should be informed on such an important subject. If there is to be an interim report, when can we expect it?
My Lords, I am going to disappoint my noble friend. It would not be appropriate for me to place a timescale on Sir David’s work. I do not want to second-guess what my right honourable friend will say, but the Government would want Sir David to have the opportunity to undertake a full investigation and we should give him the opportunity to do that without creating an undue restraint. As I said, my right honourable friend has said that Parliament will be kept informed and I will ensure that noble Lords are, too.
My Lords, I apologise for not being in at the start of the noble Baroness’s repeating of the Statement. Will she say whether the documents that were found were original or photocopied and whether they were numbered? I have had some experience of dealing with such documents and I wonder whether at this stage she knows the answer to those questions.
My Lords, despite being tutted about answering the question, I am aware that the documents have been recovered and that they are the originals.
My Lords, the noble Baroness, Lady Neville-Jones, referred not only to the political damage but also to the fact that such documents could be life-threatening because of the information that they contain. The Minister used the word “authorisation” on a number of occasions. It is mind boggling that such information can so casually be taken out of more secure areas. When she talks about authorisation, is there an established procedure? Does an officer who wishes to take information home ever so rarely have to have a countersigned authorisation from a senior member of the department? Is there a set procedure and is it part of the investigation whether the set procedure was followed?
My Lords, I make it clear to the House and the noble Lord that the set procedure was not followed: the rules were broken. The reason why we have asked Sir David to undertake an investigation is that we want to offer reassurance that we do not take this matter lightly. Had the rules been followed, I am convinced that this would not have happened. There are strict protocols about how information of such sensitivity can be taken out of secure government premises. Let me be absolutely clear: the rules have been broken.
My Lords, it is clear that rules have been broken. There has been an unauthorised removal of papers, which shows that there is a problem with the rules themselves if the papers can be withdrawn. Does this not show that the Cabinet Office has less security than the average supermarket? If we walk out of a supermarket with something that we should not have, it can set off an alarm. It is possible to tag papers so that they set off an alarm if they are being removed from a secure area. Rather than waiting for an interim report, should we not, given the nature of the problem, be pursuing something like that, which could be implemented fairly quickly?
My Lords, the Cabinet Office is not placing any constraints on Sir David Omand’s investigation of the circumstances of this extremely regrettable breach and I do not want to second-guess what he might want to look at. I am sure that your Lordships will have heard what the noble Lord has to say.
rose to call attention to the volume of personal data collected and retained by governmental agencies and private companies, and the protection of personal data and privacy; and to move for Papers.
The noble Baroness said: My Lords, this debate could not be more timely. Perhaps that is my good luck and the Government’s bad luck. We and the public have just been shocked by yet another catastrophic example of data loss, where literally millions of the records that individuals have entrusted to the state have gone missing. The case in the Statement concerned state security, which is slightly different but potentially more serious. I am going to concentrate on the affect that these losses have on individuals, on their confidence in giving data to the state and on the state’s responsibility for looking after that data properly.
At the moment, the UK probably leads the developed world in data loss. The point of the debate is to ask the Government what tools are in place to prevent that loss, whether they are using them and what more tools are needed. We on these Benches believe that the culture must change dramatically before losses of this magnitude stop occurring. As the Minister will know, because he agreed to it, we succeeded in getting a change to the Criminal Justice and Immigration Bill that gives the Information Commissioner more powers to deal with reckless and careless losses. It is a small step which needs to be followed by many others.
In the debate, we will call for an urgent updating of the Data Protection Act, which is 10 years old. In that time there have been phenomenal technological changes and it is not surprising that neither legislation nor thinking have kept pace. It was timely for this debate that last Tuesday an exhibition in Portcullis House showcased some of the advances in both the private and government sectors. I expect the Minister visited the exhibition. I certainly met his counterpart from the other place there and we had an interesting discussion. We are all agreed that the public have the right to expect that government agencies which demand their data, and private agencies which request personal data, should have systems to keep them safe and staff who are well aware of how best to use such safeguards. Legislation is certainly not the only answer; there must be a widespread cultural shift across public and private sectors.
Going back into history, it was in 1965 that George Moore, a co-founder of the giant computer chip manufacturer Intel, made a prediction: he said that information technology would grow, and continue to grow, at an exponential rate and would herald a revolution in human, social, political and commercial life. He was absolutely right. The increasing ease with which data can be collected, stored and processed presents countless new and exciting opportunities. I am not suggesting that we should not welcome this but, as more and more data and information relating to us are collected and stored, protecting the security of that information becomes ever more difficult. A real tension emerges between engaging with the opportunities offered by these new technologies and ensuring that any information that is collected, stored and processed is treated with due regard to its sensitivity. That tension is most pronounced in e-government, which is convenient and efficient when it works and disastrous when it does not.
The introduction of ContactPoint, otherwise known as the Children’s Index, about which my noble friend Lady Walmsley will speak, provides a database of every single child in England and Wales. Spine, the NHS central medical record database, represents a dramatic widening of the circumstances under which the genetic information of individuals may be retained. And, of course, there is also the proposed national identity card scheme.
Data are also collected as part of CCTV operations, cameras record us in our cars in the street, satellites watch over our homes, police helicopters operate face-recognition technology above crowds and technology now exists which allows tiny drones to swoop in and photograph indoors. I must ask the Minister whether recent reports are true that the Government are considering the construction of a database which will hold details of every phone call made and every e-mail sent by the public, allegedly as part of the fight against crime and terrorism, although that might be part of the wilder imaginings of the press.
Mass data collection and retention are not the sole domain of government. The private sector has been years ahead in seeing the commercial potential in data collection. However, collection is one thing but the problems arise in its retention—how is it stored, how is it accessed and by whom? Even the technology that I understand and use—the memory stick, for example—allows vast amounts of data to be downloaded in one place and removed to another, just as we were talking about in the Statement. More sophisticated is the collection of information by Google, for example, in developing targeted advertising. There are all kinds of technological advances which are hard to grasp.
I was talking with the chief executive of Phorm this week who told me that once something is stored you have lost control over it. Phorm has been the subject of an interesting article in the Economist recently which some of your Lordships may have read. It is a company on the cutting edge of what can protect the public. A bit of controversy surrounds its work because, with its client BT, it intercepted people’s online business without BT customers knowing. But Phorm is certainly correct when it says that if consumers knew what was actually stored they would decide to opt for true anonymity online. This is what Phorm is trying to develop with major telecommunications clients on a global scale.
The focus should now be on what is stored and how because once there is a breach it is too late. A robust assessment of new databases and other initiatives could be effected through the use of privacy impact assessments, which, essentially, are privacy specific audits, which identify areas of e-government but have the potential to conflict with the provisions of data protection legislation. These are in their infancy in Europe but are commonplace in Australia and Canada and, to a lesser extent, in the US. I ask the Minister whether PIAs—which have been warmly welcomed by the Government, who have acknowledged that they can be useful in maintaining the balance between the needs of today’s society for more information to be shared and protecting privacy—have been conducted in any aspect of e-government. As far as I can establish, none has been conducted on the proposed national ID card scheme, ContactPoint—nor has that been done on Spine or the forthcoming implementation of the automatic number plate recognition system. Is the Minister able to say why not?
I am sure the Minister is aware that some use of online data is absolutely disgraceful. The worst private sector example that I have come across recently is the utterly pernicious national staff dismissal register. I know my noble friend Lord Roberts of Llandudno will make some remarks on this new development and so I will simply say that this new database, where tittle-tattle, rumour and potentially defamatory material concerning ex-employees can be stored for access by other prospective employers, is a dangerous development. We on these Benches take business crime seriously but there is a court system to deal with it. A website which is run for profit and which is trying to take the place of the police, prosecution, judge and jury is a serious issue. I hope the Government will do something about safeguarding the interests of workers who have little ability to pay for expensive access to the courts in order to do something about it.
Of immediate public concern, too, is the HM Revenue and Customs debacle last year—this has been referred to on numerous occasions in your Lordships’ House—when the records of 25 million people were lost in the post. There have been further incidents of significant losses from the DVLA and the MoD. In the context of data mismanagement, the public do not have the confidence that they need to feel if the Government are going to take their next step in e-government. That next step, which was demonstrated at Portcullis House in the exhibition on Tuesday, is centralised registration online guarded by secure access, along the lines of what noble Lords may be used to using with their online bank accounts. It sounds good and looks convenient, but if something goes wrong and it proves to be insecure it will be a total disaster. The fact is that nothing can be regarded as totally secure. Does the Minister agree with that?
One of the things the Government have tried to do is bring in data guardians. On the advice of Kieran Poynter of PricewaterhouseCoopers, who was commissioned to conduct the review into what went wrong at HM Revenue and Customs, the Government have appointed a number of dedicated data guardians charged solely with ensuring that large quantities of data, held by whichever department, are treated in compliance with good practice set down in the Data Protection Act. That is a welcome move. How is it progressing?
The Government also have—this was a surprise to me—a dedicated Data Protection Minister, currently Mr Michael Wills MP. It was revealed, subsequent to the HMRC data loss, that the first he heard about that incident was when a Statement was made by the Chancellor in another place. Mr Wills candidly admitted that in the light of the Revenue and Customs data loss the Government are going to have to learn lessons—but I am afraid it is part of his job to teach them.
I am not excluding the private sector. There have been some shocking examples of the misuse of data by a number of banks and companies entrusted with sensitive data. HSBC is facing the prospect of a Financial Services Authority investigation and a hefty fine after it lost the key details of some 370,000 customers in April. Nationwide customers, not directors, are going to have to pay for security lapses with a £980,000 fine.
I must also draw the House’s attention to a crossover between the private and public sectors in the comments of the Joint Committee on Human Rights, which said in a recent report on data protection:
“Where there is a demonstrable need to legislate to permit data sharing between public sector bodies, or between public and private sector bodies, the Government’s intentions should be set out clearly in primary legislation. This would enable Parliament to scrutinise the Government’s proposals … and, bearing in mind that secondary legislation cannot … be amended, would increase the opportunity for Parliament to hold the executive to account”.
I would be grateful for the Minister’s comment on that.
The Information Commissioner has made a good start in changing attitudes in all public bodies, but he is labouring, as I have said, under a rather outdated Data Protection Act. He is also pretty limited in his resources. Are the fees that the Information Commissioner can raise sufficient to deal with the volume of work that he now has to cope with? The regulator is charged with not only educating data controllers about their obligations but their compliance with the Act itself. I would be surprised if the resources that he was set up with were adequate for the job he now has to do. Arming the commissioner with new legal powers is essential. Although I know that by convention the Minister will not comment on what is going to be in the Queen’s Speech, it would be useful to know how urgent the Government feel that updating is.
I shall mention the situation raised in the European Parliament by my noble friend Lady Ludford, who is concerned about exchanges of passenger data and DNA from different European countries. She is concerned about the operation of the data retention directive, which is an effective and constructive dialogue that is very much needed, and the UK Government’s contribution to that, particularly as our primary data protection legislation is derived directly from Europe.
In conclusion, the pace of technological advances has been ferocious. The benefits are great in convenience, but equal dangers or, probably, greater ones are posed by data misuse, theft or improper exploitation. The tools are not yet in place to give the public confidence in even what the public and private sectors hold now, and, as PFIs and partnerships allow more and more data to move between the two, any regulatory system must apply equally to both and be constantly reviewed. In the short term, money is far better spent on that than on creating an identity card system that brings further challenges. In the longer term, the far more technologically literate younger generation are those who should decide whether or not that should proceed. I beg to move for Papers.
My Lords, I apologise for being a couple of minutes late. I thought we were going to start at half past, and I was reading something downstairs.
One thing that interests me about this debate is how few people seem to be interested in it. That really worries me. This subject goes to the heart of a lot of things to do with the relationship between the citizen and the state, about which there are many highly independent Back-Benchers on both sides who get deeply upset. Because the debate has the word “data” in it, however, they do not see that actually this is the future—it is exactly the sort of thing that could tip the balance of power in the wrong direction if we do not get it right. That is why it is critical.
The House has just had a debate about youth justice, which unfortunately I was not able to take part in. What really worries me about that is what data are kept long-term. A year ago I became aware that both a reprimand and a caution are admissions of guilt to a criminal offence. You may say to a youth aged 14, “Don’t worry, it’s a reprimand, it will come off your record”, but in fact it does not. They have a criminal conviction that stays on their record for life for the purpose of American or Australian visas. They can never work with the law. They can never get a job as a policeman, in the Army or as a teacher. That last situation depends slightly on the offence but, since we saw the other day that they were considering firing a headmaster for fishing without a rod licence, we can gather that, with regard to the relevance of the criminal offence to what you can do in the teaching profession, common sense has been suspended—as usual.
We need to worry about this. We are criminalising a generation of young people who will be completely disbarred from seriously useful professions in the future. Many of those people are the brighter ones. It is the people who are risk-takers, more outgoing and a little bit more punchy who get into trouble, and they are probably the people who you want as your leaders in the future. We need to look at how we expunge records properly, for all purposes, so that they cannot be recovered. There may be one or two offences that we consider sufficiently serious that records for them should be kept—for example, sexual interference with a person—but an awful lot of them should be written off properly. We used to have a statute of rehabilitation, but we seem to have forgotten that. Moments of madness now live with you for ever. We have to think about that. It is underlying aspect of my thinking on this. I shall talk about the principles that worry me.
What do the Government want to do—by this I probably mean the Executive rather than Parliament, but Parliament is to a certain extent covered as well? They say that they want proactively to protect people from harm. That sounds good—it is a very laudable intention—but who is going to harm them? Is it a bad guy out there, or some little inspector or regulator who is going to destroy their career through some rule in the future? Sometimes the Government can be the most dangerous person to deal with. Was it not Reagan who said that one of the most terrifying things for a small business to hear is: “We’re from the Government and we’re here to help you”?
I shall deal with two aspects of this question: first, with the sharing and amalgamation of data. There is a great belief that sharing and amalgamating data across large government systems will deliver useful results and help people. The second aspect is legitimate access to those data. I shall revisit the Regulation of Investigatory Powers Act regulations because they are no longer fit for purpose. I hope that the Government may come back to us with some sensible suggestions with checks built in—I shall deal with that later.
We in Parliament should be interested in the efficient, effective enforcement of our laws, but the trouble is that we pass the laws in principle and then hand over responsibility to the Executive to produce statutory instruments and rules which dictate what happens. We all know the old saying about rules: “Rules are made to be broken”. We say it because it is impossible in this complex world, with its complex human relationships, to define every single thing that exists. A lot of mathematical chaos theory shows that rules cannot be used to control a complex system, yet we mistakenly think that to run a good bureaucracy and provide certainty—for example, that one will get one’s passport on time or that things will run smoothly—one can apply them to all the interactions in human life. One cannot. This comes down to the problem of big databases and data-mining across them.
At the end of the day, the rules will be used by inspectors. We all know what inspectors are like: they believe in level playing fields—they are quite right to do so because the world should be fair. They think that you have to obey the rules absolutely so that they apply to everyone. However, we know that human life is too complicated for that. We know that the watchwords should be “flexibility”, “understanding”, “interpretation”, “intention”, “impact”, “outcome” and “empathy”. They will help people, Britain and all the other aspects of society move forward. Instead of that, one gets the little Hitler. When we talk about these things in Parliament, we do so as if reasonable people are the enforcers. Reasonable people are not good enforcers—they break too many rules and are too understanding—but the good enforcers will destroy everything that you think is good. We have to get that balance back again.
We are talking about balance and protecting people. RIPA falls into three parts. There is the reverse-look-up bit: you want to find out who someone is; there is a telephone number; you have got to look it up; it is no big deal; it is just a reverse directory inquiry look-up. There are no great protections against that and I am not very worried about it. Self-authorisation is fine. However, the problems arise when it comes to the second aspect, traffic data. Who called whom for how long? Those data give you a feel for the significant connections. You can build up quite an accurate pattern of someone’s life if you data-mine intelligently. Yet local councils can self-authorise for some of those data.
The final aspect is surveillance, which local councils are using RIPA to carry out. At the moment, they are carrying out physical surveillance, but let us not imagine that that will not extend to electronic surveillance very soon if it has not already done so. Let us take an example from the other day, of Poole borough council and the school catchment area case. Someone filled in a form. The council felt that they had got it wrong, so it watched them for five days, at the end of which it found out that they had not been telling lies. However, the children became aware of it. One can imagine the bad effect of that on individuals. Perhaps one could say that it would have been better to do it electronically and monitor all the mobile telephones in the house to see where they were. However, how many noble Lords are registered for the congestion charge in London? Have they looked up the rules for how many nights they can spend in London? Do they not think that it would be fair for Capita to do some data-mining on their mobile telephone location records to find out whether they have spent the correct statutory amount of time in London or whether they are one day short over the year, at which point, they must of course, because they have been a burden on the public purse, be fined and possibly locked up?
The point is that we have got the proportion wrong. We are criminalising too many things. You get a criminal conviction for leaving your dustbin lid four inches open. You get a criminal record for trivial things like a playground fight. You get a criminal record for stupid things that we do not think are criminal. The law needs to align itself with what is criminal and what is not. Until we do that, we cannot unleash automatic systems that decide who they will convict. That is my first point.
One big thing that you cannot do is to retrofit security into a complex system. If you design it from the start and work out where your boundaries, firewalls and stop lines are, what is permissible and what is not, you can do it. Under the Communications Data Bill, which will come to us soon in order to implement part of an EU directive, they will be able to keep a record of all the websites that you visit on the internet, once they have fitted the net-flow equipment. The information will go to the Home Office, along with all your telephone stuff. At the moment, they have to go to the individual telcos to find out who you rang and when; and it goes through a process where someone checks that the request is valid. If this all goes into one central Government-controlled vault—it will slip through somewhere in the small print of a Bill that you are not interested in, or in a statutory instrument that you have to vote out in its entirety, and are you really going to go to the wall for that?—then suddenly they will be able to data-mine it.
There is stuff out there now that looks at business relationships and relationship trees—who you know and who you might know. On this subject, I warn noble Lords that they are all two jumps away from Osama bin Laden. I thought that I was four jumps away from him, because I sat on a committee with someone whose brother-in-law was married to his first cousin. At the end of my little talk, someone came up to me and said, “I’m terribly sorry, Merlin, I taught him English when he was young”. So I am one jump away and noble Lords are two.
That sounds silly, but noble Lords will know how the press says, “Queen’s fifth cousin caught for drugs”. This is the next thing that worries me: police targets. When police come under pressure, they have to produce someone, so they look for relationships that may or may not exist. This is the trouble: you get some keen investigator looking for things. You can see how he could draw inaccurate inferences that implicate an individual incorrectly. You take that through to someone else and then put it to the Home Secretary, so that it comes under the Anti-terrorism, Crime and Security Act. You do not have enough evidence to go to court, but it is enough to confine them to barracks, to their home, and cut them off from human contact. That worries me.
I like to keep stuff in silos, because you get extra firewalls and extra checks in there. We need to make sure that stuff is encrypted and that only the right people have the authorisation to get in there. With Varney rippling out and sending one’s address all over government, we have to be careful. I have spoken to some people and I think that they are absolutely on the right lines in making sure that stuff is secure. However, we need to ensure that it covers not just obvious things, but also unobvious things that become significant later.
At the moment, the Government are saying, “Trust us, we will look after it, you have no problems”. However, it will not take much for that trust to break down. We must keep the trust there. I talk a lot to various groups about CRM—customer relationship management. It is when the people at the centre—the local authority or whoever—manage your query or problem in the way that they think it should be managed. People now talk about VRM, vendor relationship management, where you, the citizen, decide who you want to interact with and how much you are going to tell them. That way you are responsible for your own stuff. If you make a mess of it, so be it; at least you are in control. There are some people who cannot be, and here we come to the real world. Some people need to be looked after, but most of us do not. We have lived for a very long time in a common law system where we take responsibility for our own lives. We should go back to that and stop trying to be protective.
The problem, when things go wrong, is the repair part; how you recall it, how you repair it, how you rescue things—how you get your credit rating back, how you get your reputation back. It is very difficult. Until we solve that, we have to be very careful about how we concentrate everything in one place.
Many things that the Government want to achieve can properly be done by anonymisation. There are technologies out there that can anonymise totally—although they can be reverse engineered in certain critical situations. We could bring in RIPA Part 2 and specify that, instead of a system of self-authorisation, you have to do it properly and go out to a second party. If you are a local authority wanting to look at who someone has been talking to, you have to go to a policeman to authorise it. The police will be willing to do it. If you are the police, you go to a magistrate. This was how we always worked it. We had an outside body checking. We should go back to that. With reverse anonymity, you go to a judge and say, “We have detected the probability of something very serious here and need to reverse engineer this to find out who was involved”. There are lots of technical ways in which these things can be done, but we must engineer in safeguards at the start. We must not rush into this. We must not build things that we will regret in five years’ time. I know from history that every time you hand over too much power to the state, things go wrong.
My last point is that the people who look after us, who try to protect us—such as the Information Commissioner, the Interception of Communications Commissioner and the Surveillance Commissioner—should report to Parliament and to somewhere outside any other executive line of reporting. Otherwise, you do not have proper procedure. All of that is complicated. You have to remember that there is not just one bad guy or one good guy. There are bad guys inside the system and good guys outside. We need to make sure that we protect our people in future.
My Lords, I am grateful to my noble friend Lady Miller for giving us the opportunity to speak in this debate. There are so many areas of concern relating to data. Recently, 25 million records were lost, which is incredible. A laptop was stolen and more data were lost, and, only this week, we heard about the missing data on the train. We have had all those situations. Sometimes, there is deliberate lawbreaking. There are hackers who can find out a great deal about us, such as our bank details and identities, and that can lead to fraud. At other times, it is pure human error, and we are all capable of that. It is not the conspiracy but the cock-up that causes so much difficulty.
I sometimes feel as though privacy is nearly something of the past. They tell me that if I walk around London I will be photographed by a CCTV camera about 300 times in a day. Gosh, I hope that I am behaving myself when the camera catches me. Then you see the cross-referencing of information. I did something that I should not have done this year: I renewed my car tax by telephone. I did not go to the post office. Many post offices no longer deal with car tax. That is another thing that we should continue battling for. The people that I was dealing with knew nearly everything about my car. They knew me and then they cross-referenced something else on the database and knew the make of the car and whether it was insured. They also knew whether it had an MOT. There was all that cross-referencing and you wonder sometimes how far that cross referencing goes. How secure are you? How undermined is your own privacy with all these databases that can be linked one to the other. Then there are private businesses. Somebody phones you up and they want to know where you live and all they need is your postcode and then the whole cross-referencing starts again. There is already that danger.
My noble friend mentioned the national staff dismissal register, which is ominous. Action Against Business Crime was set up with Home Office backing and we know that even today the Home Office logo is still on that particular organisation’s literature. The Home Office backed Action Against Business Crime. I received an Answer on 22 May that more than £1 million was contributed between 2004-07 to set up and maintain that organisation. Under the auspices of that organisation, you have the national staff dismissal register. Although the Home Office—which I take at its word—says that it will not be involved in any way with its operation, the logo is still there. The original sponsorship is still there, which the Home Office backed.
The register is used by employers when they are vetting applicants for jobs. They can see not only whether there is any criminal record or offence that could be punished in a criminal way, but if there is any suspicion—not proof. The person might have been dismissed not because of any theft or fraud, but often because of rumours and unfounded suspicion. If we go back to human error, how often is incorrect information or unfounded rumour included in a person’s data?
How often is there a miscarriage of justice? When that happens, you may be recorded by one company as having been suspected of something. Maybe the person was a Methodist Minister who preached non-Wesleyan theology—that happens sometimes. Then you are suspected. That can be recorded against you. If you tried to get another job someone might say, “He is not sound; he is suspected of something”. People's lives, and more seriously in some ways, their livelihoods, can be jeopardised.
I am not going to mention the private companies which already contribute to the national staff dismissal register, but they include some of the best-known names in the kingdom. Representing many thousands of employees, they have signed up to—and use—this database. It is open to abuse. I know that one of the companies, a shop mentioned on the database, does not have a great deal of good to say about the Royal Family. I do not know what would happen if they suggested that a member of the Royal Family was under suspicion. These are unfounded rumours. There is no basis for the allegations. There might be dislike of an employee, and even the possibility of blackmail. The most vulnerable people who come to these shores are those likely to be misunderstood and blacklisted in this way. People who might not understand English or know their rights could be at a tremendous disadvantage if their names were included on this register.
What influence—I would not use the word “control”—does the Home Office have over the national staff dismissal register? What information about their rights is given to employees when they are taken on by one of the companies that are part of this network? What steps is the Minister taking to ensure that employers do not abuse the register? Will employees be able to take legal steps to have their names removed and, if falsely accused, sue for defamation? What information is given to them? What control do the Government have to ensure that nobody is ill-treated or abused under this scheme? Why is the Home Office logo still on this literature?
I express another cause for concern, of which I have spoken previously in this House; namely, the passport personal interviews. Sixty-eight or 69 permanent offices have been established to interview people face to face, for the first time, when they apply for a passport. About 600,000 passports are applied for each year. This is to stop terrorist activity or anything of that nature. These permanent offices have facilities to take one’s photograph. As time goes on and these offices become the network for identity cards, fingerprints, and possibly iris scans, will be taken there. This is all part of the Government’s proposals. How secure are these databases? How secure will the national identity card database be? We are already told that people are issued with the wrong passport. I read that somebody had been sent somebody else’s personal details instead of a passport. There are many human errors.
My final concern is over what happens where there are not enough applicants for a permanent passport interview office. Then there will be a remote-area interview facility, which will use a webcam. Possibly a council office will be available. The applicant will go there and be photographed, but how will their fingerprints be taken, and their iris scans obtained? I think it will be impossible to do that by webcam. We will have a database that is totally unfit for purpose and does not give those who are interviewed remotely the same record as those in permanent passport interview offices. Places where remote-area interviews will be carried out include Arran, Bute, the central Highlands, Orkney, Pembrokeshire and north Anglesey. They will have these remote facilities. Can the Minister give us assurances on these facilities, as well as on the national staff dismissal register, before giving them additional support or encouragement? The more surveillance we have, the more mistakes we can make. The more mistakes that we make, the more innocent people will suffer.
My Lords, I congratulate my noble friend Lady Miller of Chilthorne Domer on introducing this important debate and on her excellent speech. It is great pity that the other parties did not believe that this matter was very important. I share the disappointment of the noble Earl, Lord Erroll, on that and I thank him for his interesting contribution.
Few subjects can be more important than the freedom and integrity of the individual, which is what we are talking about in this debate. On the “Today” programme this morning, the noble and learned Lord, Lord Goldsmith, spoke movingly in an interview on the 42-days issue about the importance of our fundamental freedoms, which we have enjoyed in this country for hundreds of years, and the danger of destroying them. Our identity and the integrity of our personal information fall into that category; we must protect them from an overintrusive, meddling and incompetent Administration. Sadly, the human rights group Privacy International rates Britain, along with China and Russia, as an “endemic surveillance society”.
There are five main issues about which we should have concern. We have heard about them all during this debate. They are: first, the sheer magnitude of the information held about us; secondly, the fact that there are some people, such as children, whose information is held on databases with no justification at all, not even a proportionate response to need or threat; thirdly, the demonstrably poor security of the information—as we have just heard in the Statement, the Government cannot even trust the competence of senior officers in the Cabinet Office to protect sensitive information; fourthly, the question of knowledge, consent and ability to opt out; and, fifthly, the lack of adequate powers and funding of the Information Commissioner to protect the individual from this intrusion by the state and commerce. I shall take those one by one.
The first is the magnitude of the problem. A report in April this year from Richard Thomas, the Information Commissioner, said that the public need to be made more aware of the “creeping encroachment” on civil liberties created by e-mail monitoring, CCTV and computer tracking of our buying habits. One of the concerns in the report is the use of special listening devices that can be placed in lamp posts, street furniture and offices. More than 300 cameras with built-in microphones have been fitted in benefit offices and city centres. Westminster City Council has already started piloting the listening devices, but experts say that the use of these microphones raises questions about how surveillance can be used to intrude into the private lives of citizens. An official report by the commissioner has revealed that nearly 800 public bodies are between them making an average of nearly 1,000 requests a day for communications data, including phone taps, mobile phone records and e-mail or web-search histories, not to mention old-fashioned snail mail.
Unlike in the vast majority of European democracies and the US, in the UK bugging and telephone wire taps can be set up without recourse to a judge The Home Secretary authorised more than 3,500 operations of this sort in 2005-06. A massive government database holding details of every phone call, e-mail and time spent on the internet by the public is being planned as part of the fight against crime and terrorism. In light of the various security breaches, of which I will say more, there will be concern about the ability of the Government to manage a system holding billions of records. About 57 billion text messages were sent in Britain last year, while an estimated 3 billion e-mails are sent every day.
Brussels officials are considering controversial anti-terror plans that would collect up to 19 pieces of information on every air passenger entering or leaving the EU, which already supplies that information to the United States, as my noble friend Lady Miller mentioned. Britain has 4.2 million CCTV cameras—one for every 14 people. As my noble friend Lord Roberts said, each person is caught on camera an average of 300 times every day. I, too, hope that he was behaving himself. The Royal Academy of Engineering has warned that, if a national standard for CCTV cameras were created, it would make it possible for all information gathered by these cameras to be shared and accessed by anyone with the means to do so.
Then there is the DNA database. Britain’s is purported to be the largest in the world. Approximately 2.4 million people have their DNA permanently retained on the NDNAD, which is alleged to contain more than 100,000 DNA samples taken from children who have never been charged or convicted with any crime. Black and ethnic minority males are overrepresented on it.
This brings me to my next point: people who should never be on these databases. The number of children on the DNA database has risen from 8,484 in 1995-96 to 179,441 in 2006-07—a 21-times increase. About 160,000 young people aged between 10 and 17 were added to the National DNA Database last year after being arrested for the first time, of whom at least 81,000 were innocent. There are at least 105,000 innocent 10 to 17 year-olds on the database in total. All these young people will have their DNA profiles kept permanently on the computer. Many adults who have been arrested on suspicion of sometimes very minor offences, but never charged, are on the database, and some do not even realise it. The children’s database ContactPoint is a matter of concern not because it is inappropriate for professionals to share information about children who need services but because of its size, universality and questions about the lack of security. It should never replace meaningful discussions between professionals and lead to complacency that the job has been done.
I now turn to the lack of security and the consequent loss of privacy and cash by individuals, as well as the economic cost to the state. Let us consider the cash first. In 2005, identity fraud cost the economy £1.5 billion, according to the Cabinet Office. The amount lost by individuals and companies to fraudsters reached £535.2 million during 2007. Although the introduction of chip and PIN has reduced card fraud on the UK high street, the increase was driven by a 77 per cent jump in fraud carried out abroad using cloned versions of cards that belong to British shoppers. Card fraud abroad rose from £90 million to £207.6 million last year—39 per cent of total losses. In the UK, card fraud rose 6 per cent last year, largely driven by “card not present” fraud. We have all been lured into buying something over the phone that we want.
To many of us, the loss of our personal information and privacy matters much more than mere money. There have been numerous high-profile cases. In December 2007, the Times downloaded banking information belonging to 32 people, including a High Court deputy judge and a managing director. Private account numbers, PINs and security codes were offered as tasters by illegal hacking sites. The Times found more than 100 websites trafficking British bank details; a fraudster offering to sell 30,000 British credit card numbers for less than £1 each; and a British “e-passport” for sale, although the Government insist that these are unhackable.
The News of the World disclosed in December 2007 that it had been handed two disks mislaid by the Department for Work and Pensions containing the national insurance numbers of 18,000 claimants. In February 2008, Skipton Financial Services lost an unencrypted laptop containing personal information on 14,000 customers. We have heard from my noble friend of a number of other cases involving banks and building societies. Haringey Council files, many of which were marked “Confidential”, were found in a squat in February 2008. The documents included the names, phone numbers, addresses, dates of birth, pay slips and bank details of more than 20,000 people. Local government is not immune from this problem.
The DVLA in Swansea in 2006 admitted that one-third of entries contained at least one error and that the proportion was getting worse. In December last year, the DVLA in Northern Ireland lost the personal details of 6,000 people and the details of 3 million theory test candidates. Southend-on-Sea Borough Council is reviewing its procedures after a laptop computer containing social service case notes on local children turned up on eBay in May. Marks & Spencer has warned 26,000 of its staff that their personal data are at risk following the theft of a laptop computer.
It was revealed in December that sensitive details about adults and children were lost in 10 incidents at nine separate NHS trusts; this is particularly sensitive information. There was the loss of a CD with 160,000 children’s names and addresses by a trust in east London. In Norfolk, medical papers on patients with lung, breast and colon cancer were dumped in a wheelie bin. Only last month, a laptop computer holding personal and financial information on 10,000 NHS staff was stolen from a hospital in Cornwall. Some of these organisations cannot protect their own staff, let alone their own patients.
There have been lots of breaches of financial information. The Bank of Ireland lost four laptops containing unencrypted sensitive personal information about up to 10,000 customers. The Information Commissioner said that he had been told of 94 data breaches since November last year. The breaches included the loss of laptops, computer disks, memory sticks and paper records. Some were stolen, while others were lost in the post. The combination of the lost disks with 25 million people’s financial details, the 5,000 illegal immigrants cleared to work in the security industry and the 500,000 false names on the DNA database has convinced people that putting all their most private information in the hands of the British state might not be the best of way of keeping it safe and secure.
The database to beat all databases is the one behind the planned compulsory identity cards. The ID cards project is one of the biggest computer systems yet envisaged, far more complex than the NHS system. Apparently, iris scans, fingerprints and face-recognition software will all work perfectly and be amazingly cheap to implement, although, apparently, the noble Baroness, Lady Anelay, did not think so when she recently tested out the system in this building. I am not sure what it would make of my husband’s false eye and the rather startling coloured contact lenses that some young people wear these days.
The bigger the system, the greater the opportunity of failure. There is also the fact that databases pick up errors and then build data error upon error. Have noble Lords ever tried to get the spelling of their name corrected on a company’s database when some illiterate has got it wrong the first time that it was input? I am sure that your Lordships will understand that it has often happened to me, with a name like Walmsley. It is very frustrating.
It is not the ID card itself but the ID register that is the problem. What I am most frightened about is that each entry will eventually take on a legal status, even if it is wrong. I know somebody who flies around the world with a passport with his incorrect name on it. He has tried to get it corrected but the agency will not do it. Once it is fixed, it is fixed. Have noble Lords ever stood in front of anyone and told them their facts and had them say that the computer says something else? Why do they always believe the computer instead of a perfectly honest and trustworthy person who could have no possible reason to lie?
The really worrying thing is that the perpetrators of 80 per cent of all computer security lapses are not hackers but employees. This multiplies the dangers. People working on the ID database might be corrupted, threatened or blackmailed into creating perfectly legal ID cards for international terrorists and criminals. Then the ID card, far from eliminating problems, will be a one-stop shop for identity fraud and possible terrorist crime. Is it any wonder that we have no confidence in these databases? Even nine out of 10 doctors do not have confidence in the NHS system.
What would we on these Benches like to see? First, we believe in the primacy of the right to privacy and informational autonomy; we see a close relationship between that right and the liberty of the individual. Therefore, we believe that, while every reasonable step must be taken to detect crime and deter terrorists, infringement of those rights must be necessary and proportionate and be done to the highest level of professionalism and security. We believe in the principle of consent, with people fully informed about the information held on them and with appropriate rights to opt out in many cases and to correct wrong information.
Anyone who knows anything about human development knows how important the sense of self and personal autonomy is to the human race. The breaches to which we are subjected in this country today are of the most fundamental sort and go to the heart of a free society. I hope that today’s breach will be the fatal sword in the heart of plans for the national identity database and the stimulus for the rethink of the whole sorry mess that my noble friends and I have advocated today.
My Lords, first, I pay tribute to the noble Baroness, Lady Miller, who, in addition to introducing this debate, played an important part in defining the offences of deliberate or reckless mishandling of personal data in the late, and entirely unlamented, Criminal Justice and Immigration Bill.
It has to be accepted that the Government have an appalling record of negligence in the handling of retained personal data. The most graphic incident in recent times was reported to another place by the Chancellor of the Exchequer in November 2007 when he revealed that Her Majesty’s Revenue and Customs had lost personal data, including bank account details, relating to families in receipt of child benefit, affecting around 25 million people in total. Although the information that the disks contained was password-protected, they were not sent by registered or recorded delivery. As your Lordships have heard this afternoon, there have been many other examples, on a somewhat more modest scale, of equally meretricious conduct on behalf of government departments.
Those are the facts, and in my view one is led to the inevitable conclusion that these lapses flow from the low value that the Government place on the protection of personal data. That is certainly the conclusion to which the Joint Committee on Human Rights came in its report printed on 28 March this year. At paragraph 27 on page 14, the committee said that,
“it would be wrong to see these errors and lapses as unfortunate ‘one-off’ events. In our view they are symptomatic of the Government’s persistent failure to take data protection safeguards sufficiently seriously by defining data sharing powers more tightly in primary legislation and including detailed safeguards against arbitrary or unjustified disclosure. The rapid increase in the amount of data sharing has not been accompanied by a sufficiently strong commitment to the need for safeguards. The fundamental problem is a cultural one: there is insufficient respect for the right to respect personal data in the public sector”.
The report goes on to reflect on why that is so. It places responsibility in two areas: first, in the manner of legislating; and, secondly, in the nature of the relationship between the Ministry of Justice, the various departmental ministries and the Information Commissioner. On the first reason, I understand it has been the Government’s view that adequate protection is already provided to the citizen by a combination of Article 8 of the Convention on Human Rights and the various relevant articles in the Data Protection Act 1998. Consequently, the Government conclude there is no need for a detailed framework of primary legislation in each particular Bill which deals with personal data retention and distribution.
This attitude is a fundamental misreading of Article 8 which gives the citizen a general right to privacy. This right is qualified by various public interest factors such as public security, public health, public order and so on. The relationship between the general right and the particular way it is constrained will vary enormously, depending on the area of legislation and the kind of data we are talking about. The noble Baroness, Lady Walmsley, talks about data in relation to children; that raises quite different issues from, for example, DNA data. These issues should be dealt with discretely and specifically by a proper analysis by the Government of the way in which Article 8 works in each case.
The point is again made by the JCHR report at paragraph 20 on page 12. The committee says:
“We fundamentally disagree with the Government’s approach to data sharing legislation, which is to include very broad enabling provisions in primary legislation and to leave the data protection safeguards to be set out later in secondary legislation. Where there is a demonstrable need to legislate to permit data sharing between public sector bodies, or between public and private sector bodies, the Government’s intentions should be set out clearly in primary legislation. This would enable Parliament to scrutinise the Government’s proposals more effectively and, bearing in mind that secondary legislation cannot usually be amended, would increase the opportunity for Parliament to hold the executive to account”.
The second area addressed by the committee is the relationship between the Ministry of Justice, the individual departments and the Information Commissioner. It is plain, as a result of the evidence taken by the committee, that these relationships are in a state of deep occlusion. The Minister of State at the Ministry of Justice was interviewed by the committee. It summarises, at paragraph 24 on page 13 of its report, what the honourable gentleman, Mr Wills, believes is the nature of his ministry’s task:
“Mr Wills went on to explain that he was responsible for overseeing the data protection legislation and did not have a role in relation to specific breaches of data protection:
‘My responsibility is not for stopping any breaches of data protection personally, individually or even corporately within the department wherever and whenever they may occur. What this department is responsible for is the construction of a proper legislative apparatus which has proper protections in place.’
Departments have ‘operational independence’ to implement their own data protection arrangements, within the legal framework maintained by the Ministry of Justice, explained the Minister: ‘we are not policemen in this department’”.
It is plain that, operationally, the view of the Ministry of Justice is that responsibility for these matters really lies with the individual departments.
Mr Wills went on to explain that, more generally, apparently, individuals called human rights champions are located in every government department grade 3 level; and, later, evidence was given to the Joint Committee by an official that each department had an action plan for the delivery of in-house training to front-line staff. When representatives of the Information Commissioner were interviewed, they appeared to be totally unaware of such a network. The Joint Committee concluded at paragraph 34 that it had,
“so far seen no evidence that the human rights champions in departments have made any impact, particularly in relation to front line staff”.
In view of this confused picture, the JCHR concluded that the Information Commissioner needs a much enhanced role in this area. At paragraph 39 on page 17, the JCHR makes the following observation:
“We see the Information Commissioner as an important defender of human rights in relation to data protection and freedom of information. His office should be regarded as an important part of the National human rights machinery. We support proposals to enhance the Commissioner’s powers and the resources at his disposal to ensure that he can discharge his responsibilities more effectively”.
I should like the Minister to address himself to that conclusion of the committee and tell us whether he agrees with it.
Finally, I turn to the Government’s draft legislative programme outlined in May in which, among many other things, is proposed a communications data Bill. It appears that Home Office officials are considering a database that would record all e-mail and telephone communications in the United Kingdom. Can that really be true? If it is, it is a matter of deep concern to the Opposition and, I suspect, to those on the Liberal Democrat Benches. How can such a proposal have emerged, even if, on due reflection, the Government think again?
Why do the Government have so much difficulty with this area of individual rights, personal data rights? Is it because as a party for so long their focus has been not on the individual but on the collective—and they find it exceedingly difficult to adjust to the idea of privacy and the protection of personal data? The Government have lost an enormous amount of ground in this area and, in a very traditional Victorian image, they need to pull their socks up.
My Lords, it is a great pleasure to respond to yet another fascinating and highly informed debate. Little did I guess at the beginning that I would be able to debate collectivism and all its joys with the noble Lord, Lord Kingsland, but of course we are new Labour now, so I shall desist. I echo his remarks in thanking the noble Baroness, Lady Miller, for giving us an opportunity to debate this most important subject, and pay tribute to her work on the late but, I would say, beloved Criminal Justice and Immigration Act and her formidable and persuasive powers, combined with the rather difficult deadline we were up against on the protection of personal data. I have to congratulate her on her timing for this debate which, as we have seen from the Statement, brings home to us the importance of the integrity and protection of data. The noble Lord, Lord Kingsland, suggested that this Government are less concerned with the individual protection of personal data but, far from that, I very much share some of the concerns that have been raised. I in no sense seek to mitigate or underestimate the genuineness of those concerns. The noble Lord, Lord Roberts, and the noble Baroness, Lady Walmsley, gave some very powerful examples of some of those matters, and I listened with great enjoyment to the interesting comments of the noble Earl, Lord Erroll.
I suppose that the heart of the debate is the question, which has sometimes been suggested, about us being in some kind of surveillance society and the fears that come from that. It is interesting that the noble Lord, Lord Kingsland, quoted from the JCHR report. I read the recent Home Affairs Committee report of 9 June with great interest; it looked at this whole question of whether we have a surveillance society. It said:
“We reject crude characterisations of our society as a surveillance society in which all collections and means of collecting information about citizens are networked and centralised in the service of the state. Yet the potential for surveillance of citizens in public spaces and private communications has increased to the extent that ours could be described as a surveillance society unless trust in the Government's intentions in relation to data and data sharing is preserved. The Home Office in particular and Government in general must take every possible step to maintain and build on this trust”.
It was a balanced and mature conclusion and one which, I suspect, all Members of this House agree with. That there is a sense that we are catching up with a massive social and technological advancement, which we have seen in the last few decades, is not in doubt. It is not surprising, but none of us quite knows exactly how we do that and where to get the right balance. I am clear that the Government are not in the business of storing and sharing information simply for the sake of it. There has to be a purpose.
There is much to be gained from the proper use of the data, to which noble Lords have referred, but there has to be a balance between the positive outcome of much of that data use with proper respect for the individual’s privacy. We have a sound legislative framework to preserve that balance, through the Data Protection Act and the Human Rights Act. We will be informed by the representations made by the reviews taking place, on which I will respond in a few moments, but we have the essential foundation right.
The noble Lord, Lord Erroll, raised some important issues, including anonymisation potential and our regulatory culture. He also raised the issue of the regulatory council—the culture of uniformities, as he described it, versus flexibility. He particularly related it to the use of information. I will just say to him that the Hampton review propounded the concept of proportionate regulation. My experience is that that is informing most regulatory bodies. I am going to take a punt and really champion the Health and Safety Executive—not the most popular of agencies, but one which has come under considerable criticism recently for not prosecuting enough people. That is an example of a proportionate regulator that wishes to put most of its emphasis on working with people to improve their health and safety regimes, reserving prosecutions for the most serious offences. That is appropriate and proportionate regulation. I understand the comments the noble Lord made about RIPA. There are currently 795 authorised public authorities, including 474 local authorities. On the one hand, this is a very valuable tool for the investigation and prevention of all crime; on the other hand, I understand the concerns about the way some authorities are using it. Noble Lords will know that a new code of practice for the acquisition of communications data came into effect in October 2007 which gives much clearer guidance. We are committed to working with the police and other public authorities to create awareness of why and how such data should be used, which is only, of course, in a lawful way.
A number of other databases were mentioned. On ContactPoint, the noble Baroness, Lady Walmsley, while raising concerns about the amount of data, did not argue against the principle. The Climbié report detailed up to nine public authorities, all of which had information which, if it had been properly shared, might have saved Victoria Climbié’s life. It was a very powerful message. It is, however, clearly important that the security of data within ContactPoint is maintained to a very high level. When I was in charge of the NHS IT programme, we had a lot of discussions with officials in ContactPoint to make sure that the levels of security were commensurate. On the NHS IT programme, I understand the sensitivity of personal health data held about us by a system as large as the National Health Service, but there is a huge potential in this programme. We have already seen it with X-ray data exchange. The Department of Health is criticised for the delays that have occurred but much of that delay is about needing to take people with it to assure people and give them confidence about the integrity of the data that are held.
The noble Baronesses, Lady Walmsley and Lady Miller, and others raised the issue of the national DNA database, but it has had a very positive, powerful impact on the number of crimes detected. The courts have recognised that the retention of samples and DNA profiles involves a triangulation of interests. The privacy of those subject to DNA data is important but also the purpose of criminal law to permit everyone to go about their daily lives without fear of harm to person or property. Getting the balance right is vital.
The issue of the national identity scheme has been raised. We could have many hours’ debate on that. The Identity Card Act 2006 has very strong provisions about unauthorised disclosure. Maintaining confidence in the integrity of the process, the efficiency and the protection of data will be very important to any successful implementation. There are concerns about how much closed circuit TV is used but again, where it is used efficiently and the right systems are in place, it has proven to be hugely important in the investigation of serious crimes. Again, getting the balance right is very important.
I am grateful to the noble Lord, Lord Roberts, for giving me some advance warning that he would be raising the issue of identity and passport services. I understand his point about remote communities and video-linked offices and the question that arises about taking fingerprints. I have not been able to get all the information that the noble Lord would require, so I wonder if I could write to him.
On the national staff dismissal register, the point is that the Home Office did provide funding to the organisation, but that was related to setting up crime/business partnerships. However, the department was not consulted about setting up the staff dismissal register and will not be involved in any way in its operation. It is very much for the Action Against Business Group to ensure that its register complies with all relevant legislation. Further, I shall draw the question of the logo to the attention of the Home Office and get back to the noble Lord when I have a response.
I turn to the question of the illegal trade in people’s bank account details. Of course we are concerned about this issue and that is why we brought forward amendments to the Criminal Justice and Immigration Act. We remain keen to ensure everything is done to inhibit the practice.
Noble Lords have paid tribute to the Information Commissioner because the regulatory system we have in place is highly dependent on the commissioner, to whom I pay tribute for his work. He also takes a proportionate approach to regulation, but I understand that in 2007-08 the number of cases received by the commissioner’s office was 25,670. Sixty per cent of those cases were resolved within 30 calendar days and 85 per cent in 90 days. On resources, we are considering the matter and a review is being conducted by the commissioner which I will come on to in a moment. It reflects the further question put to me about extending the commissioner’s powers.
The noble Lord, Lord Kingsland, was right to draw attention to lapses, but those lapses have not occurred because the culture of the Government puts a low premium on the protection of the individual; it is not that we are using data as a throwback to our belief in the benefits of democratic centralism, if I may use that term. We have been very concerned about the lapses, and that is why the reviews have been set up. On the relationship between my department and other departments, it is right that the responsibility should lie with individual departments, but with the Ministry of Justice in a role as a kind of overseer and co-ordinator. I am not sure how far he was going with his argument, but the potential for a Minister in one department almost taking responsibility for the actions of another is something we would seek to avoid. We are not seeking to avoid responsibility, but it is important that individual government departments should take their responsibilities seriously. On the question of the shape of legislation, even if we were to pursue the course suggested by the noble Lord in relation to specific and separate pieces of legislation, it would still come down to the effectiveness of the machine itself to ensure that whatever was in the legislation was policed effectively.
My Lords, I am grateful to the Minister for giving way. These are not just my own views, but also those of the committee. The particular value of setting out in detail in primary legislation the proper balance between the general principle of privacy and those public interest factors which might in one way or another dilute it is that the individuals in each department would be subject to those detailed rules in a way that they are not at the moment. That would solve in part the problem to which the Minister rightly refers: you cannot have the Minister of Justice interfering every five minutes into the affairs of another fiefdom. But if the officials in each department are properly informed by the legislation under which they are operating, you would not need to have interference of that sort by the Ministry of Justice.
My Lords, I am grateful to the noble Lord, Lord Kingsland, who spoke eloquently about the committee’s report. The Government have responded. I do not know whether the noble Lord has seen our response but I am happy to send it to noble Lords who have spoken. I follow what he says and that approach could be taken. We will have to see in the light of all the reviews currently under way whether there are any more lessons to be learnt about the legislative approach. Whatever approach we take we still come back to individual responsibility, accountability and proper systems in ensuring that those systems are used to full effect.
We clearly do have a number of reviews being undertaken. The Cabinet Secretary has established a review into data handling procedures in government. That is due shortly. We have the HMRC review—the Poynter review—and the Ministry of Defence review by Sir Edmund Burton, which is looking into specific circumstances that have led to data losses. All those reviews are due for publication shortly.
My Lords, I am sorry to intervene. We are having these reviews and the Minister will be writing to us about the national staff dismissal register. Can he assure us in any letter that it is being kept under surveillance?
My Lords, that is not a government register. It is a private concern subject to the legislative provisions that are in force. I will check the use of the Home Office logo, and I will respond to the noble Lord. We have not yet received the reviews. I hope that we will receive them shortly. Alongside that, the Information Commissioner is undertaking spot checks on or audits of central government departments. My department is working with the Information Commissioner at the moment on how that is going to be undertaken. Those of us who in other walks of life have been subject to spot audits will know that they are useful mechanisms, first, for discovering whether there are any problems and also for keeping individual departments up to the mark.
My Lords, will the Information Commissioner also have the resources to carry out spot checks on private companies that handle large amounts of data as well as government departments?
My Lords, I have already said that we are looking at the Select Committee’s recommendation in relation to the Information Commissioner’s resources. The one review that I have not yet mentioned is that by the Information Commissioner himself with Dr Walport. That will be looking at the framework for the use of information in both the private and public sector. It will look at issues around the Data Protection Act. One would then have to come back to say whether the Information Commissioner has the right powers and resources.
As the clock strikes 20 minutes, I want to say that this has been an extremely useful debate. It will inform the Government as they consider the reviews that they are shortly to receive. Noble Lords should be under no doubt whatever that we regard personal data privacy as of critical importance. We ensure that we have the utmost security in the use of those data but equally there are considerable uses to which such data can be put for the public good. It is essential that we keep the balance right.
My Lords, I thank warmly all noble Lords who have spoken. I have certainly learnt a lot today. I pay tribute to the expertise of the noble Earl, Lord Erroll, who knows a great deal about this subject. Everyone else I know with such expertise is under 25. In my family, only my stepson knows a great deal. The remarks in my speech about the younger generation were made seriously—we are poorly equipped for this debate.
I am grateful to my noble friend Lord Roberts. I can assure him that we will certainly keep the national staff dismissal register under surveillance. I am grateful also for the continuing work of my noble friend Lady Walmsley and for everything that she has done on children’s DNA databases. The noble Lord, Lord Kingsland, as ever, was very forensic—a word used accurately by the Minister—about what is needed. I am glad that he dwelt on the recommendations of the report because they are so important. I am grateful to the Minister for his full reply. I concur with what he said about the Health and Safety Executive, which is often much maligned. It is a crucial part of what needs to happen and we can learn lessons in proportionality from it.
I am grateful for the opportunity to hold this useful debate and I look forward to seeing the reports and the next legislation when they arrive. I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.
Maximum Number of Judges Order 2008
rose to move, That the draft Maximum Number of Judges Order 2008 laid before the House on 13 May be approved.
The noble Lord said: My Lords, this order will increase the statutory maximum number of judges of the Court of Appeal from 37 to 38 so as to enable a Court of Appeal judge to be appointed chairman of the Law Commission without reducing the judicial capacity of the Court of Appeal. Without that provision, the working capacity of the Court of Appeal would be reduced for the period of the appointment of any existing Lord Justice of Appeal to the chair of the commission as that post is a full-time appointment.
On first reading, the order appears to be relatively simple and straightforward, but it is important that I explain in more detail the background as to how this order came to be necessary, and something about the processes for appointing the chairman of the Law Commission and for the appointment of judges of the Court of Appeal of England and Wales.
Before I do that, I need to bring to your Lordships’ attention a small technical detail. There has been an inadvertent error in the Explanatory Memorandum to the order which means that it does not accurately describe the full policy intention. Although this has no effect on the drafting of the order, I apologise for this oversight. A replacement memorandum has been laid before Parliament and copies are available in the Printed Paper Office. Paragraph 7.5 of the original memorandum set out that, subject to selection by the panel constituted under the Constitutional Reform Act, the chairman of the Law Commission should be made a judge of the Court of Appeal on leaving the Law Commission. In fact, the intention is that it should be possible for the chair also to be a judge of the Court of Appeal at the same time as taking up the Law Commission post, whether by simultaneous appointment or by an existing Appeal Court judge taking the post. Your Lordships will also notice that slight clarification has been made to paragraphs 7.1 and 7.4.
As your Lordships will know, the Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and recommend reform when needed. It fulfils many functions with the key aims of ensuring that the law is as fair, modern, simple and cost effective as possible. The Law Commission also carries out research and consultation, making systematic recommendations for consideration by Parliament, including codifying the law, eliminating anomalies, repealing obsolete and unnecessary enactments and reducing the number of separate statutes. The commission’s recommendations for law reform can shape the legal rights, duties and liabilities of large numbers of people, and large areas of the law have been renewed as a result of its continuing work.
The Law Commission has been recognised by successive Governments as making a valuable contribution within our legal system, and it plays a fundamental part in our constitutional arrangements. There are five commissioners, all of whom work full time at the commission. The chairman is a senior judge appointed to the commission for up to three years. The other four commissioners are experienced judges, barristers, solicitors or teachers of law. The Lord Chancellor appoints them for up to five years, although their appointments may be extended.
Ever since the creation of the Law Commission, because of the demands of the job, its chairman has always been appointed from the ranks of the senior judiciary. Indeed, Section 1 of the Act provides that the chair must be a judge of the High Court or of the Court of Appeal of England and Wales. Having a senior member of the judiciary as the head of the commission acts as both a guarantee of its independence and a pledge of the Government’s continued desire for it to carry out its statutory duty. It is a guarantee, because the chairman is a member of the judiciary who cannot be said to be beholden to the Government in any way and who can deal with members of the Government without concern.
As your Lordships will see, the chairmanship is an extremely important and demanding role. As the commission’s principal public face, the chairman promotes its role and its work, leading the commissioners and representing their views to Ministers and others with a key interest in the law and law reform. The chairman also leads on law reform projects and has special responsibility for overseeing the commission’s work on consolidation and statute law revision.
During the passage of the 1965 Act, the Lord Chancellor, Lord Gardiner, said that in his opinion the chairman should be,
“not only a High Court judge but the High Court judge who, of all the High Court judges … the Commission would be most fortunate to have”.—[Official Report, 14/4/65; col. 426.]
I am sure your Lordships will agree that the chair of the commission needs to be seen to be someone who has the status and authority to command the respect and confidence of the Government and the judiciary. The commission’s work needs to carry the confidence of Parliament if the Bills that it drafts are to pass into law.
Having a Court of Appeal judge—a judge of the highest calibre—as the chair of the commission will help to ensure that that confidence is maintained. Indeed, it is in the public interest that the most able senior judges fill such posts. That is truer now than ever before, in view of the recently proposed significant structural reforms to improve the effectiveness of the commission and its relations with Parliament and the Executive.
I turn now to the issue of appointing Court of Appeal judges. It is precisely this issue that makes the order such a necessary and sensible, although precautionary, measure. Before the Constitutional Reform Act 2005 came into force in April 2006, Lords Justices of Appeal—to give them their proper title—were appointed by Her Majesty the Queen on the recommendation of the Prime Minister, who received advice from the Lord Chancellor. Before submitting his advice, the Lord Chancellor consulted the Lord Chief Justice of England and Wales and the other most senior judges. That made it possible for a High Court judge, serving as chairman of the Law Commission, to be appointed to the Court of Appeal on completion of their term of office at the commission.
Following the implementation of the Constitutional Reform Act, the Queen still appoints Court of Appeal judges on the recommendation of the Prime Minister following advice from the Lord Chancellor. But the selection process is now the responsibility of the independent Judicial Appointments Commission. As a consequence of the newer, clearer and more accountable appointments process, there can be no absolute guarantee of simultaneous appointment. However, the order is an essential step in ensuring that the most experienced and suitable judges can continue to be appointed as chairman of the Law Commission, without adversely affecting the working capacity of the Court of Appeal.
It is in the interests of the proper and efficient functioning of the judiciary that the most able senior judges are interested in taking the chair of the Law Commission. Such a position provides a unique opportunity for the senior judiciary to acquire administrative and management experience, and familiarity with the workings of Parliament and the Executive. It is even more important that the most able judges should acquire those things, as the 2005 constitutional reforms transferred responsibility for management of the judiciary to the most senior judges. In future, having prior management experience will be even more important for them.
The chairmanship of the Law Commission enables senior judges to gain a broader range of legal knowledge than they might otherwise achieve across a diverse range of subject areas, informed by comparative law, empirical research and impact assessments. For that reason and those that I have already mentioned, I commend this order to your Lordships. I beg to move.
Moved, That the draft Maximum Number of Judges Order 2008 laid before the House on 13 May be approved. 20th Report from the Joint Committee on Statutory Instruments.—(Lord Tunnicliffe.)
My Lords, I thank the noble Lord, Lord Tunnicliffe, for introducing the order. I welcome him to Ministry of Justice debates. I think that it is his first outing in this field. He has come in very honourably after his noble friend—his noble boss, if I may put it that way—Lord Hunt of Kings Heath responded today both to Questions and to two debates. The noble Lord, Lord Hunt, deserves some time off. We wish him well wherever he has gone. I think he said that he was going to Birmingham—perhaps he is going to Henley to help canvass for the Labour Party in the by-election there. I do not know, but we will see in due course.
The Minister introduced the order and made quite clear its purpose, which is to increase the number of Court of Appeal judges by one and, as I understand it, because the cost implications are relatively small, to reduce the number of High Court judges by one. Will he confirm that that is correct? If that is the case, the cost implications are marginal because it is a question just of the difference in salary between the two.
Will he then offer us an assurance that the Lord Chief Justice, or whoever the relevant person is, is perfectly content that there should be one less High Court judge, that the High Court will be able to cope and that there will not be further delays in whichever division of the High Court those judges are removed from?
Will he comment also on why all this is necessary? I suspect that the reason is the changes that the Government introduced as a result of the Constitutional Reform Act 2005 and the establishment of the Judicial Appointments Commission. Before that, as is made clear in the Explanatory Memorandum, there was the unwritten convention that whoever was chairing the commission was appointed to the Court of Appeal and others were High Court or equivalent. As judges are now appointed by one method and those chairing the commission by another, the unwritten convention no longer works as it should. It seems, therefore, that the unwritten convention has almost to be codified in a way that strikes one as not particularly necessary.
Will the Minister comment also on what is happening in regard to the appointment of judges? We heard rumours outside that there are considerable delays in appointments, that not enough of those who are suitably qualified are coming forward, that the whole process is much slower and a backlog is building up, and that there may therefore be a shortage of judges. I have no doubt that the Chief Secretary to the Treasury is pleased about that and that savings are being made by the Government, but it does not help in the administration of justice.
I thank the Minister for his courtesy in ringing me up to tell me that there had been a mistake in the Explanatory Memorandum. I assured him that it was not necessary for him to have a copy sent up to my office and said that I would pick one up from the Printed Paper Office. As always, my incompetence is such that I picked up the Explanatory Memorandum for the Armed Forces (Alignment of Service Discipline Acts) Order. That will no doubt not matter, because the Minister has explained in detail the changes that should be made to paragraph 7.5, for which I am very grateful.
My Lords, I have been a great admirer of the Law Commission and its work ever since it was created in 1965 by that great lawyer, Lord Gardiner, when he was the Lord Chancellor in Harold Wilson’s first Government. Over the 43 years since then, the Law Commission has done a great deal of extremely useful work and has entirely justified its creation. Of course, during that time it has had long-running difficulties over obtaining implementation of its recommendations, even after they have been accepted in principle by the Government, because of the difficulty of getting parliamentary time.
I say in passing, although this is not directly relevant to the order, that I have very greatly appreciated the enormous effort that the noble Baroness the Lord President has put into designing a fast-track procedure that, it is hoped, will enable more uncontroversial Law Commission Bills to pass through your Lordships’ House and through the other place as well. So far as concerns your Lordships’ House, we approved the proposals of the noble Baroness two months ago in April, when we approved the recommendation from the Procedure Committee on trialling the new procedure.
I am also glad to see what appears to be an increased degree of interest from the Ministry of Justice in the work of the Law Commission. We will have to wait and see whether that materialises, but I understand that a good deal of interest is being shown.
The order is another step towards increasing the effectiveness of the Law Commission. The chair of the Law Commission is required by law to be a judge either of the High Court or of the Court of Appeal. The result has been that a long succession of distinguished judges have chaired the Law Commission, starting with Lord Scarman—then Sir Leslie Scarman—who was the first commissioner, down to the present chair of the Law Commission, Sir Terence Etherton, and including one woman chair, who is now Lady Justice Arden.
It has been a convention that the chair is an experienced High Court judge who is appointed to be a Lord Justice of Appeal soon after finishing his or her term of office as chair. No doubt this prospect plays some part in persuading high-quality High Court judges to accept the office of chair of the Law Commission. The noble Lord, Lord Tunnicliffe, explained that the Constitutional Reform Act procedure for making appointments to the Court of Appeal does not fit in with this convention. We on these Benches agree that in future it should be the practice, though not a legal requirement, that the chair of the council should be someone who, at the time of appointment, already holds the office of Lord Justice of Appeal. I am interested in the noble Lord’s reference to the usefulness of giving training in administration to a senior judge through his or her chairmanship of the Law Commission. It suggests that the appointment as chair of the Law Commission might be a step towards holding the office of Lord Chief Justice, which of course is now very much an administrative appointment. However, other administrative roles are played by some of the judges in the High Court and the Court of Appeal.
It has certainly been regarded in the legal profession for many years that the Court of Appeal is the most demanding level of the judiciary in terms of workload and stress. The current rules provide for 37 places. It is clear—and I quite understand why—that none of those can be spared to become the chair of the Law Commission. Therefore, it is necessary and desirable to increase the number of authorised places for a Lord Justice of Appeal by one. I also understand that the effect of that will not increase the number of High Court judges sitting as such but that the place left open by the move of the chair of the Law Commission to the higher level will not be replaced, although I understand that there is no reason, and therefore no necessity, to reduce the number authorised by the present rules. We on these Benches are happy to support the order.
My Lords, I thank the noble Lord, Lord Henley, for welcoming me to this brief—we will see how well I cope. He asked whether the total number of judges would increase. The answer is no. The Lord Chief Justice has agreed with the Lord Chancellor that the extra seat on the Court of Appeal will be offset by a seat being left vacant in the High Court. The costs of the changes are around £23,000 per annum—the difference between Court of Appeal and High Court salaries with longer-term pension implications. He asked whether that meant there would be enough members of the High Court with all the implications for workload. My own assessment of my brief is that, since the chairman has to be a High Court judge, it all nets to zero, but I will write to the noble Lord if that supposition is wrong.
The system has worked for 40 years, so why do we have to change it now? The premise of the Constitutional Reform Act 2005 was that it was no longer acceptable for the Executive to be in charge of selection and appointment to the judiciary. The independence of the judiciary is paramount if the rule of law is to be upheld. The change has resulted entirely as a consequence of the desire for increased transparency and accountability in judicial appointments, which Parliament clearly supported. Yes, there was an unwritten convention. Was that good enough? No; we need this as a necessary condition to allow the simultaneous holding of both jobs and to maintain the capacity of the Courts of Appeal.
The JAC is still in its early days and working hard to improve the speed of the process. However, it has made 400 appointments in its first year and continues to believe that it is able to fill those posts—and is filling those posts—to a high quality.
I thank the noble Lord, Lord Goodhart, for his general welcome of the order. He is quite right about the wider implications of the new procedure that has been agreed. We share with him the view that the slow implementation of Law Commission reports is a bad thing. The new approved process recommending the creation of new House of Lords procedure for appropriate or uncontroversial Law Commission recommendations will address that. The noble Lord is right to suggest that the old system seemed, to any layman, to be a way of persuading a judge to take on this onerous task. I would not say that that was the case. We are turning the convention into a simultaneous appointment. That process, in itself, will take some getting right. I made the point that justices will need more administrative experience and skills, but I could not possibly comment on whether that is a secure route to becoming Lord Chief Justice. I commend the order to the House.
On Question, Motion agreed to.
Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2008
rose to move, that the draft order laid before the House on 21 May be approved.
The noble Baroness said: My Lords, first, on behalf of the House, I offer sincere condolences to the families and friends of Private Nathan Cuthbertson, Private Daniel Gamble and Private Charles Murray of 2 Battalion of the Parachute Regiment, who were killed on operations in Afghanistan last Sunday. I am sure that the thoughts of the whole House are with them.
In moving the Motion I shall speak also to the Armed Forces (Alignment of Service Discipline Acts) Order 2008 and the Armed Forces (Service Complaints) (Consequential Amendments) Order 2008. I will say a few words about each of these, beginning with the continuation order. The Armed Forces Act 2006 provides for the three service discipline Acts—the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957—and the 2006 Act to continue in force for a maximum of five years, subject to an annual Order in Council in each of the intervening years. The continuation order that we are considering today is such an order. It is a routine item of business, but it is vital because it will ensure that the Armed Forces Act 2006 and the three service discipline Acts will remain in force for a further 12 months. When the 2006 Act was agreed by Parliament, it was expected that it would replace the three service discipline Acts. I can confirm that it remains our intention to repeal the service discipline Acts, but we need them to continue in force until the 2006 Act is fully in operation. That is why they are included in the order.
I will give a short update on progress in implementing the 2006 Act. As I reported during the corresponding debate last year, officials are engaged in delivering the significant amount of work that will be needed to deliver the new single system of service law for our Armed Forces. Foremost among this work is the large amount of secondary legislation that will add much of the necessary detail to the provisions of the 2006 Act. Altogether, we now expect to produce around 80 statutory instruments, directly or indirectly, as a result of the 2006 Act. This is more than the 65 that we anticipated last year, and is due to the need for consequential changes to be made through separate statutory instruments, rather than through a large single order in the way that we had originally envisaged. The figure also allows for commencement orders, though these are not subject to parliamentary procedure.
So far, we have laid about a dozen of the statutory instruments that we expect to produce. Many more are ready, apart from the need to add their transitional provisions. These transitional provisions will ensure that there is a working bridge between the old legal system and the new one. The overall transitionals regime will be complex, because of the extent of the changes made by the 2006 Act. The transitional provisions specific to particular statutory instruments will relate to a main transitionals order.
We propose to lay this main transitionals order during the summer. It will be subject to negative resolution. Once it has been laid, the way will be clear for us to lay the other statutory instruments that have a transitional element to them. Since it is not possible to introduce some parts of the new service disciplinary system in advance of the other parts, we intend that all the statutory instruments should take effect together. Our target date for this is January next year.
The majority of the statutory instruments are subject to negative resolution, so we propose to lay some during the summer months—the orders will still come into effect in January 2009—rather than lay them in much greater numbers in the autumn. We recognise that it would not help the House if they were all to be laid at the same time, so officials have looked to assemble statutory instruments in groups and lay them in relevant batches. We have done this in discussion with officials of the relevant parliamentary committees. By doing this, our aim has been to present the information in a way that assists parliamentary scrutiny and avoids the system being overloaded. The thinking here is that we give Parliament as much time as possible in which to consider the orders before they take effect. There can be no suggestion of them being quietly laid during the Recess and coming into force without proper time for parliamentary consideration. Officials have therefore been in touch with relevant committee staff to outline our approach. Although we make it clear that the programme is still subject to significant change, our efforts to plan and co-ordinate the work have so far been given a warm welcome.
There is a great deal to be done but we hope that it should be possible to have everything in place in time to meet the January 2009 deadline. This will then become the point at which the Armed Forces will move from the three separate systems in place at present to the single up-to-date system that will replace them. Among other things, this change to a single system will have a bearing on service police investigations, summary hearings by commanding officers, prosecutions and court martial trials. The statutory instruments are just part of the picture. The services will also need to have manuals, guidance, instructions and training for the wide range of personnel and organisations involved in the service justice system. Work is therefore going on to provide everything the services will need to ensure that they will be able to change to the new system with the minimum of disruption.
There are two other orders before us. The first amends various sections of the service discipline Acts in order to align them more closely with the 2006 Act. The changes are likely to help ease the transition to the new system if they are made before the main changes. They also introduce some safeguards which are in the new Act. This is being done now to ensure greater coherence between the legislation as it stands and the legislation as it will be when the 2006 Act comes into force. The order also ensures that some areas of incompatibility between the two systems are removed and introduces a number of safeguards to the current system.
One measure in the order aligns the service discipline Acts with new provisions in the Armed Forces Act 2006 in relation to powers of arrest. Changes made by the order will allow service policemen to arrest service personnel of all ranks without the need to seek prior approval and to arrest a person whom they reasonably suspect of being about to commit a service offence. At present, the service police need to have prior approval if they wish to arrest somebody above the rank of warrant officer and they can make an arrest only while an offence is being committed or afterwards. These are therefore important changes for the service police, which provide them with greater powers than they have at present. The new powers are, however, broadly similar to those enjoyed by the civil police.
The order also removes the ability of a judicial officer to authorise post-charge custody where the accused has previously deserted or gone absent without leave after being charged with an offence and released from custody. Authorising custody for this reason alone cannot be justified merely because the accused has previously absconded and the provision is therefore not relied on by judicial officers. The amendment clarifies the legal position.
Under the service discipline Acts, the prosecuting authorities can require an accused person’s commanding officer to consider a charge other than the charge on which the accused originally elected to be tried by court martial. This could create a disincentive to the accused electing trial by court martial and could therefore be subject to challenge. The amendments in the order allow the prosecuting authorities to refer a charge back to the commanding officer other than that on which the accused elected, but this may not be done without the consent of the accused. The one exception to this would be if the charge referred were to be one which the commanding officer could have heard if the accused had not elected trial by court martial.
The order also removes the ability of the reviewing authorities to activate suspended sentences. This will align the Service Discipline Acts more closely with the provisions of the Armed Forces Act 2006, ensuring that only a court can activate a suspended sentence. The one exception to this rule is in relation to the Royal Navy where, until the Armed Forces Act 2006 comes into force, RN commanding officers will still be able to activate a suspended sentence of detention passed by a court martial. The order also provides for appeals against the activation of suspended sentences.
Finally, the order repeals all powers of the reviewing authority to postpone the date on which a sentence is to take effect. The exercise of this power by a reviewing authority is not compliant with the European Convention on Human Rights, and the court martial will not have such a power under the 2006 Act.
I turn now to the third and final order. Section 334 of the 2006 Act and the regulations which have been made under that section allow members of the Armed Forces to make complaints about matters relating to their service. The Working Time Regulations 1998, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003 provide that a complaint cannot be presented by a member of the Armed Forces to an employment tribunal established under any of those regulations unless a complaint under service complaint procedures has been made about the same matter and not withdrawn. Quite simply, the order that we are considering today amends each of these regulations so that they correctly refer to the service complaints system as amended by the 2006 Act.
I should say a word about ECHR issues. Her Majesty’s Government have given an undertaking that Ministers moving instruments subject to the affirmative procedure will tell the House whether they are satisfied that the legislation is compatible with the rights provided in the European Convention on Human Rights. The first order that we are considering is a brief document that raises convention issues only in that it maintains in force three Acts that, as they have been amended over the years, reflect convention rights. As for the 2006 Act, we consider that its provisions are compatible with convention rights. The second order will help to preserve convention rights and the third order has no bearing on them at all.
In conclusion, I hope that it is helpful to have a brief update on the progress towards full implementation of the legislation. We will look forward to further discussions not only today but in the autumn when other elements of the statutory instruments are available. I beg to move.
Moved, That the order laid before the House on 21 May be approved. 21st Report from the Joint Committee on Statutory Instruments.—(Baroness Taylor of Bolton.)
My Lords, I start by joining the Minister in sending my condolences and those of my party to the families and friends of those three members of the 2nd Battalion The Parachute Regiment, so tragically killed in Afghanistan. I thank the noble Baroness for presenting these orders and, through her, I also thank those responsible for drafting the Explanatory Memoranda, a duty performed with the utmost clarity. The continuation order is much the shortest of the documents before us and is altogether the most important. It serves to remind us and the Government that the existence of the Armed Forces is not simply a matter of executive decision but also a matter requiring continuing parliamentary consent. This should also serve to remind us—and again, remind the Government—that Parliament, having provided the existence of disciplined Armed Forces, also has duties with regard to their pay and conditions, their right equipment and their deployment, as is being increasingly recognised. Where the Government fall short of their duties in any of these matters, they must accept criticisms from within the Armed Forces themselves and from all parts of this House. This is not a party-political matter. It is a parliamentary matter. We and the Armed Forces themselves are entitled to expect that shortcomings will be recognised and will be remedied.
The stated object of the service complaints order is so that the service authorities will be put on notice of an incipient complaint by a service man or woman to civil jurisdiction. This is to be achieved by initiating a service complaint first. Both I and my honourable friends in another place expressed our concern generally at the intermingling of service law and civilian law. It was one of the deliberate influences on the formulation of the Armed Forces Act 2006. This order seems to me to exemplify just such confusion. I hope the Minister will be able in her reply to persuade me otherwise.
Finally, I turn to the much longer and altogether more complex order, the Alignment of Service Discipline Acts Order, designed to amend the three single service Acts until the omnibus Armed Forces Act comes fully into effect. This, we are told, should be in January next year, some six or seven months from now. Thus, it is very much an interim measure. Noble Lords who have looked at the order will have observed that it comprises 14 pages of closely printed insertions and deletions and a three-page schedule of transitional provisions. It prompts me to ask the Minister how these changes will be promulgated. Will the Acts be reprinted? If not, how will those affected—to say nothing of those advising or representing them—be able to ascertain clearly what the law is in relation to these matters at this particular juncture?
My Lords, first I associate these Benches with the earlier tributes to the three members of the Parachute Regiment who so tragically lost their lives in Afghanistan. On these Benches we also support the thrust of these orders, but there are a small number of detailed questions which I would like the noble Baroness to answer. I appreciate that one or two may be of a certain technical nature. Therefore, if she would prefer to write to me I would totally understand. First, on the subject of the continuation order itself, what progress has been made on producing some form of loose-leaf volume which would contain all these separate Acts and orders for the use of practitioners both inside and outside the Services and for the judge advocates?
I have two questions on the Armed Forces (Service Complaints) (Consequential Amendments) Order. First, what happens if, on a complaint being made, a complainant is dissatisfied with the redress offered? I refer to where a complaint has been accepted by the defence council. Is the individual then entitled to make his complaint to an employment tribunal? Secondly, linked to that question, what is the effect on the tribunal proceedings of a decision made by the defence council? Do the employment tribunal proceedings start afresh or will the findings of the defence council be in evidence before it? In other words, to what extent is the employment tribunal influenced by the findings of the service authorities, or do they hear the case de novo?
On the Armed Forces (Alignment of Service Discipline Acts) Order, I am glad to see that there is an attempt to bring uniformity of powers and procedures to the three services. That makes it even more questionable why the Government resisted the Liberal Democrat attempts to allow courts martial to be heard by a mixed panel of all three services during the passage of the Bill.
When we had this debate last year, my noble friend Lord Thomas of Gresford spoke from these Benches. I should like to quote a paragraph from what he said:
“The noble Lord, Lord Astor, referred to the acquittals that have taken place. They have occurred not because of any weaknesses in the military justice system but, in my view—I merely give my opinion and have declared my interest—because of a lack of resources in the investigation phase and mistakes made at that point which led to the prosecutions that did not succeed. However, if the Government are prepared to provide the investigatory branch of the Armed Forces with full and proper resources and training so that they are on an equal footing with the investigation forces in the United Kingdom—if they are capable of doing the same sort of thing forensically and so on—I have no doubt that the procedures will be fair for everyone”.—[Official Report, 20/6/07, col. 301.]
The question to the noble Baroness that follows from that is: has there, during the past 12 months, been any increase in the resources made available to the prosecuting authorities?
Finally, what is the proportion of courts martial between the three services? Does any difference indicate a differentiation of resources? Having put those specific points to the Minister, I confirm that we are happy to support the orders.
My Lords, I thank those who have contributed to the debate for their overall welcome of the orders before us. They are, as has been pointed out, quite detailed. Some of the points go very wide and we may return to them on other occasions.
First, I agree with the comments of the noble Lord, Lord Astor, about those responsible for drafting the Explanatory Memorandum. It is no mean task to explain these regulations in anything like simple English. When I was in another place, I made changes to the Explanatory Memorandum system that came before Parliament because those documents used to be as technical as the Bills. I do not underestimate the challenge that often faces those responsible for translating legalese into language that we can understand, and therefore I welcome the reminder of that work.
With regard to the points that the noble Lord, Lord Astor, made about the continuation order, we absolutely accept that Parliament has a role. In my opening remarks, I tried to outline the degree to which we had attempted to involve Parliament and committees such as the House of Commons Select Committee and the Joint Committee on Statutory Instruments to ensure that there was sufficient consultation about the way in which we went about getting authority and approval for these very complex issues.
On the comments about our duty of care—the issues of pay and conditions, equipment and deployment—all in the Ministry of Defence accept those responsibilities directly. We talk about them on many occasions. On accepting responsibility, noble Lords will be aware that in another place today my right honourable friend Bob Ainsworth, Minister for the Armed Forces, made in his Statement on “Tireless” a direct acknowledgement that the Ministry of Defence had been at fault. He issued an apology. We are not slow to accept responsibility where mistakes are made, even though our first priority should be to avoid incidents that require apology. We need to maintain our systems as highly as possible.
On service complaints procedure and worries about the intermingling of service law and civilian law, I can reassure the noble Lord that a great deal of care has been taken on this issue. This is one reason why all these SIs are so complex and there are so many of them. We have to make sure when it comes to complaints that those in the Armed Forces have the right balance of rights and responsibilities, just as anybody would in a civil court. There are many parallels. The safeguards in the system should be appropriate.
The noble Lords, Lord Astor and Lord Lee, raised similar points about the need to make sure that everybody is informed about the complex changes taking place. At the end of the day the process will be simplified because we will have some more common systems, but it is right to say that we will have to be careful to ensure that people are aware of the changes that take place. I mentioned in my opening remarks that we will have written guidance. We will be drawing information together. As well as a new manual of service law, we will have to have extra training for those who are involved so that they are completely aware of what the new system entails. We are aware of that.
I was glad that the noble Lord, Lord Lee, mentioned service complaints and welcomed the move that we are making from three strands to one single approach. That should work in the end. He referred to complainants going to an employment tribunal where their issue is one of discrimination, equal pay or something of that nature. There will be an opportunity to go to an employment tribunal in those cases. Other issues can go to the courts only by way of judicial review—for example, if relevant evidence has been ignored. It is important to make that distinction at this stage.
On resources, the noble Lord, Lord Lee, mentioned comments from last year. I have not been aware of any problems with resources from the prosecuting authorities. I have not got the figures on the balance of courts martial between different services, but going down the path of courts martial is not something that people do lightly. All the services will take a lot of factors into account before anybody goes down that route. Those involved in both complaints and discipline take their responsibilities seriously. The new regulations that we are introducing are based on being fair to everybody. We are making sure that we have regulations that are easily understood, comprehensible and fair. I accept that we still have some work to do to make sure that everybody realises that, but I am grateful for the general welcome for the direction in which we are going.
On Question, Motion agreed to.
Armed Forces (Service Complaints) (Consequential Amendments) Order 2008
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, that the draft order laid before the House on 21 May be approved. 21st report from the Joint Committee on Statutory Instruments.—(Baroness Taylor of Bolton.)
On Question, Motion agreed to.
Armed Forces (Alignment of Service Discipline Acts) Order 2008
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, that the draft order laid before the House on 21 May be approved. 21st report from the Joint Committee on Statutory Instruments.—(Baroness Taylor of Bolton.)
On Question, Motion agreed to.
House adjourned at 5.26 pm.