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Coroners and Justice Bill

Volume 713: debated on Wednesday 28 October 2009

Report (3rd Day)

Clause 64 : Conspiracy

Amendment 66B

Moved by

66B: Clause 64, leave out Clause 64

My Lords, I express my thanks to the Minister for having a discussion with me about the amendment, which enables us to debate it and look at it in some detail. Clause 64 amends the Criminal Law Act 1977, which was itself amended in 1998.

The curious thing about this provision relating to conspiracy is that a review of conspiracy law is going on at the moment, which will shortly report and may well lead to some statutory effect being given to the law of conspiracy in the broadest sense. When one sees an amendment to the Act being proposed at this stage, suspicions are aroused that there must be a case knocking about somewhere for which this provision is being introduced. The clause changes the heading of Section 1A of the Criminal Law Act 1977, from “Conspiracy to commit offences outside the United Kingdom”, to “Conspiracy to commit offences outside England and Wales”. An agreement, which is part of a conspiracy, falls within this section if it is in pursuit of an agreed course of conduct, which would at some stage involve an act by one or more of the parties or the happening of some other event intended to take place in the country or territory outside the United Kingdom.

That amendment to the 1977 Act removes the words “the United Kingdom” and puts in their place “England and Wales”. One would have thought that, if there was a conspiracy in England and Wales that was to be carried out in Scotland or Northern Ireland, either the courts of England and Wales or the courts of Northern Ireland or Scotland would have jurisdiction. Why do we need a statutory provision of the nature now proposed?

The curious thing about it is that Clause 64(1)(b) says:

“In relation to an agreement entered into during the period beginning with that date”—

that is, 4 September 1998—

“and ending with the commencement of section 64(1) of the Coroners and Justice Act 2009, this section applies as if in subsection (2) for ‘England and Wales’ there were substituted ‘the United Kingdom’.”.

I have never come across drafting like this, in which the words are changed and then reversed in a subsection, so that for a particular period of time, instead of England and Wales, you go back to the original wording, “the United Kingdom”. That was what caused me to have some suspicion that there might be an attempt to introduce some retrospective legislation that would catch a case that has not been prosecuted for some reason. Fortunately, the Minister and I have conducted some research into the matter, and I look forward to hearing an explanation, which may throw light on a very odd piece of legislative drafting. I beg to move.

Before the Government attempt to respond to this, we want to add our thoughts to what the noble Lord, Lord Thomas, said. It does seem confusing that the Government should have brought this clause in while there is a review in progress on the whole law of conspiracy. Also, with regard to the point that the noble Lord made about subsection (1)(a), whereby “England and Wales” is substituted for “the United Kingdom”, it seems odd in the light of the laws of conspiracy that something would affect England and Wales and not the United Kingdom as a whole. No doubt the Minister will be able to satisfy the House in such a manner that not only these Benches but the noble Lord, Lord Thomas, is happy.

My Lords, the House will not be surprised to hear that I am not going to defend the elegance of the drafting of the clause. However, I will try to defend its value, why it should be retained, why we have taken this course of action and why fears that noble Lords have raised are properly addressed.

Amendment 66B would remove Clause 64 from the Bill. Clause 64 amends Section 1A of the Criminal Law Act 1977 to correct a small but significant anomaly in the law of England and Wales in relation to conspiracies to commit criminal offences within other parts of the United Kingdom. At present, there is no offence of conspiring in England and Wales to commit an offence in Scotland or Northern Ireland, whereas it is an offence to conspire to commit an offence in England and Wales or to commit an offence outside the United Kingdom. Clause 64 therefore amends Section 1A(2) of the 1977 Act by replacing the words “the United Kingdom” with the words “England and Wales”.

The effect of Clause 64 is to widen the scope of the first condition in Section 1A(2) of the 1977 Act. This currently applies only to agreements by two or more people to pursue a course of conduct that would involve one or more of them in an act or the happening of an event intended to take place outside the United Kingdom as a whole. The amendment ensures that the condition is satisfied where the act or event is intended to take place outside England and Wales, thus including acts in Scotland or Northern Ireland.

The introduction of these provisions will ensure that conspiracies in England and Wales to commit a crime within the UK can be prosecuted in the most appropriate jurisdiction—for example, where most of the evidence relating to the conspiracy is to be found and where investigatory resources can best be utilised. That may be especially advantageous in cases where the conspirators are caught before the intended crime is committed. Clause 64 does not make any retrospective provision. The noble Lord, Lord Thomas, has expressed concern on this point and I thank him for the time that he has taken to explain his concern.

The proposed new subsection (15) of Section 1A expressly ensures that the change we are making does not affect conspiracies that predate our change coming into force. The effect of subsection (15) is that where a conspiracy is entered into before our change comes into force, the current law will continue to apply to such a conspiracy, so a conspiracy entered into before our clause takes effect will always be governed by the current law. Those who enter into conspiracies before the change we are proposing to make comes into force will not therefore be affected by the change at all.

I should also mention subsection (14), the effect of which was queried in the other place. That subsection simply re-enacts the existing provision at subsection (14)(a) of Section 1A. That provision specifically exists in the Act in order to prevent it having any retrospective effect. Section 1A was inserted into the Criminal Law Act 1977 by the Criminal Justice (Terrorism and Conspiracy) Act 1998. The existing subsection (14)(a) provides that nothing in the section applies to a conspiracy entered into before the date that the 1998 Act was passed. That Act was passed on 4 September 1998. Clause 64 does no more than continue to ensure that Section 1A does not impose criminal liability for conduct taking place before the section was passed. Far from having retrospective effect, these clauses are drafted explicitly to prevent any retrospection. I assure the noble Lord that people who enter into a conspiracy before this change comes into force will not be affected by the change in the law. I hope that he will be satisfied with my explanation of that point and agree to withdraw his amendment.

However, the specific provision that the noble Lord, Lord Thomas of Gresford, raised concern about previously and alluded to in his speech is directed at specific actions that might have to be taken in the course of official duty. It is certainly not its purpose to give civil servants or anyone else complete freedom to break the law.

First, I must make clear that this provision is already on the statute book in relation to this offence. All the clause does is to replicate it in removing the current jurisdictional anomaly in the provisions. To do otherwise would be inconsistent with the current position, and to remove it altogether would be a radical change to the current position, far beyond the scope of the minor extension of jurisdiction that we propose. There are a range of circumstances in which technical breaches of the conspiracy provisions may arise. For example, if the police or Customs were planning an undercover operation involving infiltration of an organised crime group, a consignment of drugs or trafficked children, it might be tracked to a number of different parts of the UK. There would obviously be no question of prosecution here in those circumstances. I believe it is right to retain a specific protection of this kind in the 1977 Act, since its removal would hinder law enforcement agencies involved in dangerous undercover work.

That said, we accept that the exemption seems very wide. It raises complex and sensitive issues which require much fuller consideration than can be afforded them in the context of the Bill and the small amendment that we are discussing. There will be an appropriate opportunity to address them in the context of a full review of the laws on conspiracy and attempts, which the Law Commission has carried out and will report on shortly. In looking at the Law Commission’s recommendations, we will consider whether the existing provision remains the right one or, as seems more likely, whether things have moved on since Parliament enacted the 1998 Act. It appears from the concerns that have been raised both in this House and the other place that a different formulation might be needed. When I set this out in Committee, the noble Lord said at the end of the debate:

“I accept his explanation … and I look forward to reading the report from the Law Commission in due course”.—[Official Report, 7/7/09; col. 664.]

I hope that he will similarly accept my explanation today and agree to withdraw his amendment.

My Lords, I do not quite understand why this amendment—small though it may be—is being made now, ahead of the report. What is the urgency for this amendment?

My Lords, it is the view of Her Majesty’s Government that once an anomaly, which may have some substance, in the law comes to their attention, it should be addressed at the earliest opportunity. This is the earliest opportunity since the anomaly was seen to make this very limited correction in the jurisdictional character of the Bill. We are in no way seeking to enforce that widely drawn power, and we acknowledge that it will have to be addressed after the Law Commission publishes its report.

My Lords, I am most grateful to the Minister for a very full explanation. However, it would be a bold counsel who submitted that a conspiracy to import drugs into Scotland would not be justiciable in the courts of England and Wales. I have dealt with just such a case, where nobody considered for a moment that questions of jurisdiction arose in that way. However, it seems that subsection (16) would certainly permit two civil servants to conspire to defraud the Scottish Government, and to escape criminal liability because it is so widely drawn. I am sure that the Law Commission will take all these matters into consideration in preparing its report and I look forward to reading it. For the moment, I beg leave to withdraw the amendment.

Amendment 66B withdrawn.

Amendment 67

Moved by

67: After Clause 64, insert the following new Clause—

“Abolition of common law libel offences etc

The following offences under the common law of England and Wales and the common law of Northern Ireland are abolished—

(a) the offences of sedition and seditious libel;(b) the offence of defamatory libel;(c) the offence of obscene libel.”

My Lords, I will speak also to Amendments 119, 126, 127, 129, 131, 135, 140, 141 and 142. These amendments fulfil an undertaking that we gave in Committee in response to similar amendments tabled by the noble Lord, Lord Lester of Herne Hill, to whom we are extremely grateful. We indicated then that we agreed that the common law offences of sedition and seditious and defamatory libel can and should be abolished forthwith. The amendments would also abolish the last remaining criminal libel offence, namely that of obscene libel.

If I may, I shall briefly outline to the House the specific offences that we propose to abolish. I will then move Amendment 67 in the appropriate way, and I hope that the noble Lord, Lord Lester of Herne Hill, who is a co-signatory to the amendments, will then make his speech.

The first point to make concerns the term “criminal libel”. As the House knows well, that term is often used synonymously with defamatory libel, but it is also a generic term used to describe all forms of libel that amount to a criminal offence. Criminal libel originally covered four distinct categories of libel: blasphemous, obscene, defamatory and seditious. As this House knows, blasphemous libel was abolished in England and Wales by Section 79 of the Criminal Justice and Immigration Act 2008. Publication of obscene material is now covered by the Obscene Publications Acts 1959 and 1964, so the common law offence of obscene libel is effectively obsolete.

Our Amendment 67 therefore abolishes the offence of sedition and the remaining offences of criminal libel—namely, seditious, defamatory and obscene libel. Our view is that those are arcane offences which have largely fallen into disuse. They stem from a bygone age when freedom of expression was not seen as the right that it is today. As we heard in Committee, taking the initiative to abolish them will be a positive step in helping our country, the United Kingdom, to take a lead in challenging similar laws in other countries where they are used to suppress free speech.

In the Government’s view, the time is right once and for all to abolish those archaic offences. I beg to move.

As the Minister said, during the sixth day of Committee, on 9 July I moved amendments to abolish the common law offences of criminal libel and seditious libel. I there fully set out the history of those ancient crimes and their effect on freedom of expression. My amendments were supported across the House by the noble Baroness, Lady D'Souza, Lord Kingsland, my noble friend Lord Thomas of Gresford and, indeed, by the Minister, the noble Lord, Lord Bach. The late and great Lord Kingsland reminded the House at column 849 that the laws of seditious and criminal libel are very active in other countries. He said:

“Some of them look at us and say, ‘You have them, so why shouldn’t we have them? It is up to us whether we should use them’.”.—[Official Report, 9/7/09; col. 849.]

Lord Kingsland referred to Turkey, Iran and Uzbekistan, and I would add that there are Commonwealth countries in Asia and Africa where those laws are used to suppress political dissent and criticism.

The Minister reminded us again that the offences are arcane, stemming from a bygone age when freedom of expression was not seen as the right that it is today. He has rightly recognised that taking the initiative to abolish those offences is a positive step in helping the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech. He has today fulfilled the undertaking that he made on the Government's behalf to propose amendments in time for today that extend the abolition of those offences to Northern Ireland and take the opportunity to abolish the obsolete offence of obscene libel.

The Government have been true to their promise, and today is a day to celebrate. I should declare an interest in the debate as a vice-president of English PEN, and I should say that the abolition of these offences is welcomed by English PEN, Article 19 and Index on Censorship, which campaigned for these reforms. It is also welcomed by my colleague Dr Evan Harris MP, who took up the issue in the other place.

So much for Amendment 67, but while I am on my feet, I will, if I may, speak also to Amendment 75A on blasphemy. I should declare an interest in that amendment, given that I was counsel in the Satanic Verses case for Penguin Books, when an attempt was made by an Iranian businessman to extend the law of blasphemy to protect Islam. That attempt was rejected by the Divisional Court.

The three common law offences of seditious libel, criminal libel and obscene libel were fashioned by the court of the Star Chamber and spread their tentacles widely. The fourth of the quartet of offences was blasphemous libel. During the passage of the Criminal Justice and Immigration Bill in 2008, as the noble Lord, Lord Bach, mentioned, the Government agreed to abolish the offences of blasphemy and blasphemous libel under the common law of England and Wales. I am sorry that my noble friend Lord Avebury cannot be in his place today because of an injury; he was one of those who campaigned long and hard for that reform.

I was unable to be present during the debate in the House on 5 March 2008, when the noble Baroness, Lady Andrews, said that the law had fallen into disuse and ran the risk of bringing the law as a whole into disrepute. She pointed out that we now have legislation to protect individuals on the grounds of religion and belief, and she referred to a letter from the most reverend Primates the Archbishops of Canterbury and York, in which they explained:

“Having signalled for more than 20 years that the blasphemy laws could, in the right context, be abolished, the Church is not going to oppose abolition now”.

They added the rider,

“provided we can be assured that provisions are in place to afford the necessary protection to individuals and to society”.

The Minister stated her belief that,

“the offences of blasphemy and blasphemous libel are unworkable in today’s society because they do not protect the individual or groups of people, they do not protect our fundamental rights—indeed, they may conflict with them—and they do not protect the sacred. That last point is very much reinforced by the recent judgment in the Jerry Springer case”.—[Official Report, 5/3/08; col. 1119.]

Later in her speech, the Minister referred to the reports of the Select Committee on Religious Offences in 2003 and to the report of the Joint Committee on Human Rights, of which I am a member, of January 2008, which concluded that the offences could no longer be justified. She noted that the new criminal offences outlawing incitement to religious hatred in the Racial and Religious Hatred Act 2006 and the new law against discrimination on grounds of religion and belief gave modern protection. She made it clear that, in the words of the right reverend Prelate the Bishop of Southwark, who I am delighted to see in his place, the repeal of these offences,

“should not be interpreted as a secularising move or as a general licence to attack or insult religious beliefs”.

I wholly concur with that view. There was then a full a debate and the House decided by 148 votes to 87 to abolish these offences. The other place overwhelmingly agreed by 378 votes to 57. There has been no example of any problem occurring as a result.

However, the abolition of the offence of blasphemy was not extended to Northern Ireland, which is the reason for my amendment. We are being asked to agree to abolish seditious, obscene and criminal libel, not only in England and Wales but in Northern Ireland, but not blasphemous libel. It is my submission that we should do so also for blasphemous libel, and I am greatly fortified by the support given by the noble and right reverend Lord, Lord Eames, and my noble friend Lord Alderdice.

I am a great admirer of the people of Northern Ireland and the Irish Republic, and of their traditions. We have had our holiday home in West Cork for 35 years, and I have been a frequent adviser and visitor in Northern Ireland since 1975, although I would still be described by any Irishman as a “blow in” from England. There are particular reasons why the common law offences can safely be repealed in Northern Ireland. I wish briefly to deal with them, as this is quite important.

The Select Committee on Religious Offences of this House noted in its report that blasphemy in Northern Ireland came from the common law of Ireland. However, it reported that it was arguable that the offence did not survive the disestablishment of the Church of Ireland by the Irish Church Act of 1869. It pointed out that there had been no reported prosecution for blasphemy in Northern Ireland. That is an important point: it is not even clear that there is a blasphemy offence in Northern Ireland now.

The Select Committee also pointed out that Northern Ireland has had a criminal offence of incitement to religious hatred since 1987, under the Public Order (Northern Ireland) Order 1987, although it has rarely been used. The offence of incitement to religious hatred in Northern Ireland is much broader than the offence in England and Wales. It protects not only against speech that is threatening but against speech that is abusive and insulting. It includes situations in which the defendant does not intend to stir up hatred or to arouse fear but where, in all the circumstances, hatred is likely to be stirred up or aroused. It does not contain the free speech clause that, as the noble Lord, Lord Hunt of Wirral, will be well aware, we inserted into the Racial and Religious Hatred Act 2006 to ensure that our law did not prevent discussion, criticism, ridicule or insult of religious beliefs and practices. This House accepted the abolition of blasphemy on the ground that the new law on hatred provided adequate protection for religion and religious believers. Given that there is greater protection on the statute book against incitement to religious hatred in Northern Ireland, the same argument applies with even greater strength. There is no gap in the legislation; indeed, some would argue that the legislation is overbroad.

Some may argue that Parliament should wait for the policing and justice powers to be devolved to Stormont before this arcane offence is abolished. I respectfully submit that, if we can abolish sedition, criminal libel and obscene libel in Northern Ireland without waiting for the powers to be devolved, it is difficult to understand why, in the circumstances that I have summarised, this offence, too, should not be abolished in Northern Ireland.

There is another reason why it would be bizarre not to apply the abolition to Northern Ireland. If this becomes comical, it is not my fault. Several years ago, the Supreme Court of Ireland declared that the offence existed to protect the Church of England as the established church and that, therefore, as Ireland does not have an established church, the offence—partly in view of its vagueness—had no application to the Republic. Therefore, the Supreme Court of Ireland abolished blasphemy by judgment, as it were. We in this House relied on that decision as part of the argument for abolishing the offence in this country. Another argument was based on its divisive nature in protecting Christianity and not other faiths, such as Islam.

This summer, the Attorney-General of Ireland decided that Eamonn de Valera’s 1937 constitution requires that blasphemy should be a punishable offence. The Irish Government did not wish to have a referendum to amend the constitution to remove that anomaly but instead amended the Defamation Bill not only to abolish the common law offences of defamatory libel, seditious libel and obscene libel but to create a statutory offence of publishing or uttering blasphemous matter that is,

“grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion”,

where there is the necessary intent. That provoked huge controversy and was hurried through the Irish Parliament with no proper debate. It would surely be bizarre to have a situation in which the common law offences are abolished in England and Wales, and by the Supreme Court of Ireland in the Irish Republic, but revived by statute in the Republic and left in a vague and unenforceable condition in Northern Ireland, where, as I have emphasised, there is a strong statutory offence that has existed since 1987. I hope that the House will be willing to bury this ghost of the Star Chamber in Northern Ireland, as we are doing with the other three ghosts.

My Lords, I have a short question. Is there any evidence that the people of Northern Ireland want to do away with the offences of blasphemy or blasphemous libel, or is this an academic exercise?

My Lords, there is no more evidence about the attitude of the peoples of Northern Ireland than about the peoples of England, Wales or the Republic. These ancient offences are not a matter of daily conversation in any part of the two islands.

My Lords, my name is on Amendment 75A and I shall speak briefly to it. Most of the issues have been set out by the noble Lord, Lord Lester, so I will not go into detail. The arguments for abolishing the offences of blasphemy and blasphemous libel in this day and age have been well rehearsed over many years—so well rehearsed and received that blasphemy ceased to become an offence when the Criminal Justice and Immigration Act was passed last year.

It is perhaps relevant to mention the inconsistency of such laws in the multi-faith communities in which we live, and to remind noble Lords that in the past this archaic law has been used predominantly as a tool of censorship. As the noble Lord, Lord Lester, said, it re-emerged as a proposal in the Republic of Ireland earlier this year. It would be inconsistent for noble Lords to ignore the continuing existence of the blasphemy laws in Northern Ireland. It cannot be that such laws are considered arcane and redundant in the UK and not so in Northern Ireland—which, for these purposes, is not yet devolved. This will become a matter for the Northern Ireland Assembly once powers are fully transferred. At present it remains in the hands of Westminster, which is why we are debating it today.

I remind noble Lords that laws that remain on the statute book are hostages to fortune. No one can guarantee that their continued presence will not in future be misused to curtail legitimate speech, opinions and views.

My Lords, I start by saying that we are perfectly happy with the government amendments in the group, which abolish sedition and seditious, defamatory and obscene libel as common law offences. These arcane offences are no longer relevant to our criminal system, and we accept the amendments.

We are less happy about Amendment 75A, tabled by the noble Lord, Lord Lester, which relates to blasphemy and blasphemous libel in Northern Ireland. I agree with him that they too are arcane and redundant, and I was grateful to him for pointing out that there have been no prosecutions for these offences since the 19th century. However, as a spokesman for the Conservative and Unionist Party, I say that this matter should be left for devolution. We support devolution, and the matter can be discussed in due course by the Stormont Assembly when it has the appropriate authority.

Having said that, and in the light of what the noble Lord, Lord Lester, said about there having been no prosecutions since the 19th century, it will make no difference to man nor beast whether his amendment is passed or not. It is unlikely that we will see a flood of prosecutions under the existing law, or if we change it. Though we are happy—

My Lords, I apologise for interrupting. Can the noble Lord explain why we should do this on sedition, obscenity and criminal libel in Northern Ireland but not blasphemy? What is the special factor that requires God to have special protection under criminal law there but not here because of devolution?

Because, my Lords, these issues raise what one might refer to as heartfelt emotions, and it would therefore be right and proper if this matter were left to Northern Ireland. For that reason, I think it is far better that it should be left to Stormont, as and when it has the authority to deal with it.

I was going to end by saying that I did not think that, as I put it, neither man nor beast would make any difference, whatever happened. All I can say is that we will support the Government on their amendments. I hope that the noble Lord, Lord Lester, will move his amendment separately when we come to it. We will not support it but nor will we oppose it.

My Lords, I think that there probably is an answer to the question that the noble Lord, Lord Lester, put just now to the noble Lord, Lord Henley. I in no way want to reopen the discussion of 5 March 2008, the report of which I have reread, as has the noble Lord. I could not be there that day but I would have voted with the majority for the reasons that the most reverend Primates the Archbishops, the right reverend Prelate the Bishop of Southwark—it is good that he is in his place—the right reverend Prelate the Bishop of Portsmouth and others stated that day.

I am concerned that this matter is not being taken to the Northern Ireland Assembly and I shall be interested to know what the Minister has to say about that. I think that there is this much of an answer to the noble Lord’s question: I need a lot of persuading that it is right to vote for his Amendment 75A when those who might reasonably be taken to represent opinion in Northern Ireland have not been consulted. I do not say that because I have any special knowledge of Northern Ireland beyond what most other noble Lords have, as they have read the newspapers since being adults. I strongly suspect that the arguments that were powerfully adduced by the minority on 5 March 2008, although they lost the vote that day, are held with a great deal more force on all sides of the community in Northern Ireland than they are on this side of the water in England and Wales. Those arguments, which some may see as irrational, outdated or unnecessary, relate to the fact that the blasphemy law—even if unusable, as I agree it was when it existed on this side of the water—still stands for something in relation to the character of society and the Christian heritage, which, as I understand it, is much more passionately felt on that side of the water than it is on this. Therefore, it makes me uncomfortable to see this Parliament, through this House and the other place, legislating on this kind of matter for Northern Ireland. I think that that distinguishes it from the other matters—I do not have them firmly in my head—with which the noble Lord, Lord Lester, links this.

My Lords, does the right reverend Prelate recognise that, because of those strong feelings, Northern Ireland has had a very strong statutory protection since 1987, unlike the situation in this country? In effect, the people have spoken by giving that protection.

My Lords, I hear what the noble Lord says and I do not deny his description of the state of the law in Northern Ireland, but it seems to me—again, as an onlooker—that taking into account what is still manifestly a fraught interreligious, as well as political, situation in Northern Ireland, it really does not behove this House or this Parliament to risk exacerbating that, which I suspect this matter just could. Although this may be a red rag to more than the bull of the noble Lord, I also have in mind the behaviour of this House and this Parliament in, as I remember them doing, imposing the sexual orientation regulations on Northern Ireland at a point when they had not consulted the Northern Ireland Assembly. It may leave a nasty taste if we do the same in this matter.

My Lords, first I declare an interest as a Member of the Northern Ireland Assembly. As the Minister is well aware, we are currently involved in negotiations on the devolution of powers on policing and justice to the Northern Ireland Assembly. As we have heard, there are strong feelings in Northern Ireland, particularly about Amendment 75A, and it is only right and proper that the people of Northern Ireland should be given the right of consultation on the progress on that issue. They should be fully consulted, so I am reluctant to consider that amendment.

I am grateful to all noble Lords who have spoken, particularly for what seems to be the support of the House for the amendment that I moved earlier abolishing these offences. I am very grateful to have such wide support for that course.

I turn briefly to Amendment 75A, spoken to by the noble Lord, Lord Lester of Herne Hill, which would abolish the offences of blasphemy and blasphemous libel in Northern Ireland. We think that there are likely to be particular sensitivities around these offences there. There has been a long-running debate here in Westminster over those provisions, but we do not think that the people in Northern Ireland have had a corresponding opportunity to be consulted or to express their views. Inasmuch as the right reverend Prelate made that point, we concur with it. It might well be considered undemocratic to impose a change in the law in Northern Ireland on what is such a sensitive area if there has been no opportunity to have a say on the matter. We believe that the best forum to consider this area of law as it relates to Northern Ireland is in the Northern Ireland Assembly once it assumes responsibility for the criminal law.

Indeed, the noble Lord’s own party is a strong supporter of devolution, so without saying that that is the view that it should come to on this issue, it is a point worth making.

I take the points made by the noble Lord, Lord Lester, about how this might seem something of an anomaly, so I plan to relay his points as well as those made by other noble Lords in this short debate to the Minister of State in the Northern Ireland Office in the next few days to see what efforts can be made to gauge views. If the result is that the Government stick to their present position on Amendment 75A, I shall of course tell the noble Lord so that he can table the amendment on Third Reading if he is minded so to do. For the moment, I ask him not to press it.

Amendment 67 agreed.

Amendments 68 to 73 not moved.

Amendment 74

Moved by

74: After Clause 64, insert the following new Clause—

“CHAPTER 4Servitude and forced or compulsory labourServitude

(1) A person commits an offence if he or she holds another person in servitude.

(2) For the purposes of this section, a person (A) holds another person (B) in servitude if A severely restricts B’s freedom of movement and choice of residence and subjects B to forced or compulsory labour.

(3) In this section, subjecting a person to forced or compulsory labour has the same meaning as in section (Forced or compulsory labour).

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.”

My Lords, I start by thanking all those in the House who have supported these amendments. I also very much thank colleagues from Liberty and Anti-Slavery International who first drew this important gap in the law to my attention. They have been extremely helpful; they have given lots of expert guidance, shared their knowledge and given very generously of their time throughout this process.

This gap prevents us dealing effectively with contemporary forms of forced labour and enslavement here in Britain. It happens in cities; it happens in rural areas; and it happens in coastal towns. Typically, it involves migrants, but not always; often women are the victims, although not exclusively. Victims may be subjected to unacceptable living conditions and forced to work for 12 or more hours a day. They are also frequently subjected to vicious psychological abuse and to threats which keep them effectively imprisoned. These offences sometimes include trafficked people or illegal immigrants, although not necessarily all the time.

Yesterday, in the debate on vulnerable migrant workers, my noble friend Lord Sandwich referred to the case of Patience. I shall not repeat her story, but I want to pay tribute to her courage in detailing for a meeting of Peers and NGOs precisely the kind of abusive, coercive treatment that these amendments are designed to criminalise. Patience spoke powerfully and movingly of her years of maltreatment as a prisoner in the house of a lawyer who was supposed to be her employer. I do not believe that laws should be based purely on our emotional responses to particular predicaments, but I would defy anybody with even a vestige of humanity to listen to her testimony and not be moved to do something to address this gap in the law.

Since Committee, with colleagues from Liberty and Anti-Slavery International, I have had useful and productive discussions with the noble Lords, Lord Bach and Lord Tunnicliffe, and the Bill team. I appreciate officials’ strenuous efforts to get to grips with this issue. They have now, we believe, found an effective, workable solution to this distinctive problem and, as a result, a new amendment will be inserted into the Bill using Article 4 of the European Convention on Human Rights as a vehicle. It will be tabled at Third Reading. I shall therefore not divide the House today.

The list of those who support the principles behind these amendments and the need for them includes the DPP, the United Kingdom Human Trafficking Centre, the CPS, the trade union Unite and the Gangmasters Licensing Authority, among others. There is also widespread support for these amendments across all the Benches in this House. We all want to ensure that those who coerce vulnerable people in this way will face the prospect of lengthy prison sentences. I beg to move.

My Lords, with the leave of the House, and in no way to suppress discussion, I think it might be helpful if I were to set out briefly the Government’s position. I thank the noble Baroness for providing a further opportunity to debate this serious issue. We need to ensure that the criminal law meets the needs of victims, who we have always said should be at the heart of the criminal justice system. I thank the noble Baroness and the organisations that have also worked in this field, such as Liberty and Anti-Slavery International. They have done an important job in bringing this matter to the attention of the House. I am pleased that it looks as if we have reached agreement on the way forward in this important area.

As noble Lords will recall, we debated the issue of servitude and forced labour in Committee, and we said at that time that we wanted to consider this further. The behaviour at which the new offences are targeted is already covered by extensive legislation and regulations. There are a number of existing offences that may be relevant. They include offences of trafficking for labour exploitation, complicity in such trafficking, assault, false imprisonment, blackmail, harassment and a range of employment-related offences. Some of these offences rightly carry tough maximum penalties. However, we appreciate that justice may not be done, not least to victims, if there are real problems in bringing successful prosecutions that reflect the seriousness of this conduct. We are open to the suggestion that investigations and prosecutions might be easier if an offence existed that clearly encompassed all of the elements that comprise servitude or forced labour.

I promised in Committee that we would explore this issue further. I shall now explain what we have found out over the summer. We held meetings with the Association of Chief Police Officers, the Crown Prosecution Service and the UK Human Trafficking Centre, which is a multi-agency centre that provides a central point for the development of expertise and co-operation in relation to the trafficking of human beings. We also met the Gangmasters Licensing Authority, which was established to regulate labour providers in the agricultural sector. It provided us with some useful examples of cases that bear further consideration. We have also, as we said we would, contacted the Crown Prosecution Service; I understand it has brought this matter to the attention of the Director of Public Prosecutions. It agrees that it may be useful to introduce a further bespoke offence.

We have looked closely at the cases of which we have been made aware, and we are grateful to everyone who has provided us with these details. There can be no doubt about the appalling treatment and working conditions found in these cases, some of which were harrowing. They describe victims who have been trafficked for exploitation, threatened, assaulted and blackmailed. They also describe unsafe and overcrowded working conditions, illegal wage deductions and forged contracts.

We have listened carefully to what has been said during this debate and particularly in our conversations before it. In light of that, we accept that improvements could be made to the current law through an additional offence in this area. That said, and as the amendments before us make clear, this is a complex subject. This would be an important offence that was subject to serious penalties, and it is important that it should be as clear as circumstances permit. With that in mind, we have reservations about the amendment, although this is not the occasion on which to go into detail.

We think that a slightly different approach is preferable—an approach that seeks to achieve the same aim but that relies for its core substance on Article 4, on the prohibition of slavery and forced labour, of the European Convention on Human Rights. This approach is used for the offence of trafficking for such purposes. Our proposed formulation would follow this approach but without the requirement that the person has been trafficked.

We discussed this approach earlier today with the noble Baroness, Lady Young, and are hopeful that it will offer a solution on which we can all agree. We need to finalise the details and are actively working on this. We intend to bring the result before your Lordships to consider at Third Reading.

My Lords, the Minister has spoken. Indeed, there is a convention in this House that he can speak early on in the debate and that other noble Lords can come in afterwards. I think we are grateful that he spoke at this stage to set out the Government’s views and that, although the Government have had a lot of time over the summer to consider these matters with the clocks ticking and the buffers ahead, they have decided to move a bit faster after their meeting this morning—or was it almost this afternoon?—with the noble Baroness, Lady Young, and are likely to bring forward something that will be acceptable to her, to us and to others in this House who have added their names to this amendment.

We on these Benches support the general principles which the noble Baroness has put forward. We have come to this view after long and hard thought, because in the main we prefer not to add new offences to the statute book. However, if there are gaps, we certainly want them to be filled. At this stage, we support the noble Baroness and hope that she can make progress with the Government over the next week—or the next week and one day, depending on how long Report continues for—and that the Government will keep moving as they should.

My Lords, my name is attached to the amendment. I thank the Government for their consideration of the issue and for bringing forward the matter at Third Reading in a way that is satisfactory to everyone, and I pay tribute to the noble Baroness, Lady Young, and all the campaigning organisations behind her; they have done us all a considerable service. It is true, as the Minister said, that the laws on trafficking, false imprisonment, kidnapping and anti-slavery cover certain aspects. However, the Government now accept that they do not cover all the problems that can arise in this field, and it is good to hear that, with the support of the Director of Public Prosecutions and others, an offence will be brought forward that will plug whatever gaps there might be and make it entirely clear to those who “employ” labour that they must do so with great care.

My Lords, I, too, have added my name to this amendment. I very much support what the noble Baroness, Lady Young, has done. It is greatly to her credit that she has pursued this. I have come rather late to see how important it is that this gap should be covered. I should declare two interests. One is that I am a vice-chairman of the All-Party Parliamentary Group on Trafficking. Trafficked women, in particular, are part of those who are put into forced servitude. I have also just become the mother of the acting-chairman of Liberty—I mean that I am the mother of the recently appointed acting-chairman. Your Lordships will understand my putting it the wrong way around. I thought I should declare that as an interest.

My point is that the amendment as it stands produces at trial, instead of at summary justice, two possible sentences of 14 years and seven years. I can see that there are objections to that and I am very happy with the various proposals put forward by the Minister at the meeting I attended earlier. It is a serious matter and the punishment should fit the crime. Therefore, the Government, in looking at the appropriate punishment, should go high rather than low.

I have nothing to declare by way of family friendship or kinship at this stage. I simply should like to say that, having listened to the other speeches, I fully agree. I regard these proposals as a way of fulfilling our positive obligation to give effect to Article 4 of the European Convention and other relevant provisions. I congratulate and pay tribute to the noble Baroness, Lady Young of Hornsey.

I was pleased that I was able to speak at Second Reading and in Committee on these issues and was able to accompany my noble friend when she went to see the noble Lord, Lord Bach, to raise these important questions about servitude and forced labour. She has done Parliament a great service in the persistent way in which she has gone about this. But I should also like to pay tribute to the Government. In the first instance, they did not accept that there was necessarily a case to be made or answered about the scale of this problem. Their acceptance was as a result of my noble friend bringing before them specific examples of abuses that had occurred and the failure of existing offences to deal with those abuses. That was the genesis of the amendment that is being drafted for Third Reading.

If it had not been for my noble friend’s determination and the courteous way in which she went about it, we would not be at this happy juncture today. At a moment when Parliament perhaps is held in rather low esteem in many quarters, it is as well to remind ourselves of our real purpose in both these Houses. It shows admirable determination, and the purpose of Parliament, when someone sees such a shameful injustice as people being held against their will and exploited in this manner. When that Member is able to get some minor injustice put right, that is the greatest justification for our being here.

My Lords, I, too, thank the noble Baroness, Lady Young, for her persistence in this issue and the Government for their response. It is inconceivable that while in recent months we have spent a good deal of time celebrating the ending of the slave trade in the United Kingdom 200 years ago we have also been building up our knowledge of places where forced labour, which is slavery under another name, continues to be exercised in our own country. That may be in the instances of domestic service, which we have heard about, or in those instances of agricultural workers and migrants in our cities, which were emphasised by noble Lords in yesterday’s debate on vulnerable migrant workers, inspired by the noble and right reverend Lord, Lord Harries of Pentregarth.

There needs to be much more positive work done on this amendment. The work of the Gangmasters Licensing Authority has revealed many new examples of forced labour, of slavery. I am at the same time grateful for those and horrified by them. I am delighted that we are moving forward on this and have no doubt that this amendment or the version we will get at Third Reading will help in that.

My Lords, I congratulate my noble friend on her perseverance. As she said, she and I met a domestic worker who was virtually imprisoned in her employer’s homes, and it was only when the worker was able to make contact with a specialised organisation, Kalayaan, that she could take her employer to court. The offences were only assault and theft, but many worse things had happened. Even so, I am grateful to the Government for bringing forward their own amendment.

I want to point out that it has been shown in this and previous debates that it is international conventions that require the Government to come forward with a new offence. As has been said, the current offences on trafficking were very welcome, but over time have been shown to be inadequate. There was agreement in last night’s debate on the need for more effective enforcement, and the noble Baroness, Lady Neville-Jones, especially drew attention to the low conviction rates. I was hoping that the Government could deal with that today, but there may not be time. It was with great satisfaction, therefore, that my noble and learned friend Lady Butler-Sloss and I heard from the Minister this morning that a new amendment will be tabled at Third Reading. Obviously it is too early to comment, but the Minister has already said that a lot of people have been working hard to get as far as this. I thank him and the staff of the organisations involved.

I thank all noble Lords who have contributed to the debate, and it is gratifying to gauge the extent to which people support the underlying principles of these amendments. It is right to pay tribute to the Government for listening and in the end for responding positively to our concerns, and I wish to underline what was said by my noble and learned friend Lady Butler-Sloss about ensuring that sentences properly reflect the seriousness with which we regard these offences. I look forward to having sight of the government amendment when it is ready and I hope that the Government will take advantage of all the expertise that is available both within the House and outside to ensure that we have the right piece of legislation. With that, I beg leave to withdraw the amendment.

Amendment 74 withdrawn.

Amendment 75 not moved.

Amendment 75A

Moved by

75A: After Clause 64, insert the following new Clause—

“Abolition of blasphemy in Northern Ireland

The offences of blasphemy and blasphemous libel under the common law of Northern Ireland are abolished.”

I want to move this amendment despite having already spoken at some length on the issue, but first I should like to make one or two observations and explain what I intend to do. I listened carefully to what was said in the previous debate, and my first point is that I am a great supporter of devolution. I believe that to the greatest extent possible, problems should be tackled at the regional or local level, or at levels within the great nations that make up this country. I do not believe in having harmonised, standardised solutions to all problems imposed from the centre. Therefore I understand entirely those who maintain that, when functions are transferred, surely the people making up the assemblies should have the opportunity to debate and decide upon important questions of ethical and legal significance.

But there is another factor that comes into play, which is that certain basic standards should apply across the nation as a whole. Those are what we tend to call human rights standards. The reason that the Government under the right honourable Tony Blair extended civil partnerships, a highly controversial matter, to Northern Ireland was on the basis that the rights of gay and lesbian people to equal treatment without discrimination should be enjoyed throughout the country, not only in one part of it. Further, the reason that the same was done with the sexual orientation regulations, also highly controversial, was again from a proper conviction that the rights of the individual should not depend on the particular place they happen to be within. So there is a tension between the need for human rights standards to be fulfilled and the need for proper respect for the wishes of people in the nations and regions of the country as a whole.

The problem about the law of blasphemy, as the Joint Committee on Human Rights indicated, is that in modern times, were it challenged, it is strongly arguable that it is not compatible with the convention rights, in particular the rights conferred by Article 10 of the convention. Why not? Because it is bad: it is too vague; it lacks legal certainty; and it sweeps too broadly. Unlike the 1987 order I have described, which is a statute, the common law offence suffers from the twin vices of overbreadth and vagueness. If that is right it means that, at present, those living within Northern Ireland are being subjected to an arcane, archaic, unenforceable and outdated law, which has been eclipsed, in any case, by a statutory provision, which therefore makes it lack any necessity.

When the Northern Ireland Act, the Scotland Act and the Government of Wales of Act were passed, the convention rights were written into those statutes to make sure there could not be breaches of those basic rights as a result of devolution. Therefore, although it may be decided in the end to leave it to the Assembly, there will be difficult questions that the Speaker of the Assembly will have to deal with—unfortunately, the noble Lord, Lord Alderdice, a former Speaker, is not in his place today—and tricky wider questions if we leave it as it now is.

If I were a unionist in Northern Ireland—

I thought the noble Lord advanced all these arguments under Amendment 75A at an earlier stage. Do we have to have the arguments all over again? If he wishes to divide the House, let him do so.

I am grateful for the noble and learned Lord’s rebuke, but if he cares to read Hansard tomorrow he will find that nothing I have just said was said in the previous general debate. I would bet him a Bank of England to a blood orange that he will not find any of those arguments in the earlier debate. It is my fault because, clearly, what I said at the beginning was so poorly expressed that the noble and learned Lord did not understand that that was so. I promise that what I am saying now is new.

I am saying it because these are further considerations which need to be taken into account when the Government consult further before Third Reading, as they have undertaken to do. I welcome what the Minister has said. I shall do what he suggested—I realise he has taken no position on the merits at all—and I hope that what I have said is helpful in relation to any further consideration in order that this may be considered in the round. On that basis, I do not intend to divide the House but shall beg leave to withdraw my amendment.

The procedure is that I have to put the Question as the noble Lord has spoken to the amendment. The amendment proposed is to “Insert the following new Clause” in the words as printed in the Marshalled List.

I begged to move my amendment purely to see whether anyone else wished to speak to it. I now beg leave to withdraw it.

Amendment 75A withdrawn.

Amendment 75B

Moved by

75B: After Clause 64, insert the following new Clause—

“Causing harassment, alarm and distress: restriction of scope

(1) The Public Order Act 1986 (c. 64) is amended as follows.

(2) In section 5(1)(a) and (b) for “abusive or insulting” substitute “or abusive”.”

This is on a completely separate matter. I move this amendment on behalf of the Joint Committee on Human Rights, of which I am a member. In its report, Demonstrating Respect for Human Rights? A Human Rights Approach to Policing Protest, HL Paper 47-1, particularly at paragraphs 80 and following, the committee expressed concern about the position under the Public Order Act. A number of witnesses drew the committee’s attention to Section 5 of the Public Order Act, which criminalises threatening, abusive or insulting words and behaviour in certain circumstances. The report says:

“Some witnesses said that this section ‘can be used in a way which … illegitimately stifles protest’ or has a chilling effect on free speech”.

Liberty provided an example of the police citing Section 5 of the Act when a young man demonstrating outside the Church of Scientology’s London headquarters was issued with a summons by the police for refusing to take down his sign, which read, “Scientology is not a religion, it is a dangerous cult”. The police alleged that the use of the word “cult” violated Section 5, although they did not subsequently proceed with a prosecution.

The Metropolitan Police gave an example of the arrest under Section 5 of a protester at a free-speech rally for wearing a picture of a cartoon depicting the prophet Mohammed that had been published in the Danish press, explaining:

“That was during a very tense period … we chose to wait until somebody came forward to us and said ‘I fear that that will cause a breach of the peace; I am offended by that’ and then we took action against the individuals”.

The Select Committee asked police witnesses whether they considered that existing police powers under Section 5 were too broad or used too often. AAC Allison disagreed, suggesting that,

“if [people] felt that we were acting inappropriately or making excessive use of our powers then they had the right to challenge us about it”.

The Select Committee’s report continues:

“As with freedom of assembly, freedom of expression imposes both positive and negative obligations on the state”,

and then sets out more of the evidence. In the recommendation in paragraph 86 the committee expresses the view that Section 5 confers a very wide discretion and that consideration should be given to removing the word “insulting” from the Public Order Act because it can be used inappropriately to suppress the right to free speech. It therefore suggests deleting the reference to language or behaviour that is merely insulting. The committee considers that such an amendment would provide proportionate protection to individuals’ right to free speech while continuing to protect people from threatening or abusive speech, and has suggested the amendment that I am moving.

The Government’s reply to that report in May 2009 referred to paragraph 85 and said that they had been considering carefully the concerns raised by the committee with the Association of Chief Police Officers and the Ministry of Justice. It said:

“While we consider that the Committee’s recommendation has merit in the context of the policing of protest, the implications of the amendment are potentially far reaching for the policing of lower level disorder on the street, and for the racially and religiously aggravated section 5 offences. We shall report back to the Committee, once we have conducted further consultation with stakeholders”.

That was in May. The purpose of moving the amendment is to give the Government the opportunity now to give an update. I beg to move.

My Lords, although I came across the amendment only a short time ago, as a layman I warmly welcome it and believe it to be long overdue. I was never happy when we were debating the inclusion of the word “insulting” in what was soon to become the Public Order Act 1986, and for one simple reason: the word “abusive” can be judged objectively, but “insulting” is totally subjective. What one person finds offensive, the next person may be indifferent to.

It did not matter very much at first, because I think that the public 20-odd years ago were less thin-skinned than they are now. Moreover, the police were not bound by the iniquitous target culture imposed by the Blair Administration, so that what previously might have been dealt with by a brief ticking-off or even no action at all now results all too often in detention and arrest. People are positively encouraged to be touchy, both by the media—whether deliberately or not—and pressure groups. Moreover, there is a temptation in certain circumstances of very large, disproportionate compensation if people can prove themselves to have been insulted. So the time is certainly ripe for the removal of “insulting”, leaving of course “abusive”.

My Lords, I, too, support the amendment. I agree also with my noble friend Lord Monson. I find it very difficult to think of an example of conduct which is neither threatening nor abusive but which it is appropriate for the criminal law to prohibit under existing Section 5 because it is nevertheless insulting, yet one can think of many obvious cases of conduct which may be perceived to be insulting—it is a subjective test, as my noble friend Lord Monson, pointed out—by those to whom it is directed but which it would be entirely inappropriate for the criminal law to prohibit because of the value of freedom of expression.

I listened carefully, as I always do, to the noble Lord, Lord Lester, and the others who spoke. We saw the amendment only late on. We would therefore want to consider it very carefully and listen to what the Minister says. I imagine that, in the light of that, the noble Lord, Lord Lester, would not necessarily want to press it today but possibly come back to it at a later stage. I agree with the noble Lords, Lord Monson and Lord Pannick, that it is difficult to imagine occasions when it would appropriate to use “insulting”—which it is suggested should be removed—in the criminal law but not to use “threatening” or “abusive”, but no doubt we will have guidance from the Government about that.

I am grateful to the noble Lord, Lord Lester of Herne Hill, for moving the amendment. We share his concern about undue restrictions on freedom of expression, especially in the context of protests. The Government made it clear in their response—from which he quoted—to the seventh report from the Joint Committee on Human Rights that the starting point in policing protests is a presumption in favour of freedom of expression and freedom of assembly. We are committed to protecting those rights.

As the noble Lord explained, his amendment would give effect to one of the recommendations of the JCHR’s report Demonstrating respect for rights? As the House has heard, we have considered concerns raised by the Joint Committee around the use of Section 5 of the Public Order Act. We announced our intention to consult the police and a range of stakeholders on the proposed amendment to Section 5 over the summer and report back to the Joint Committee in the autumn.

We have now consulted a range of stakeholders and are currently collating the responses that we have received. As set out in the policing Minister’s recent letter to the Chair of the JCHR, we will reply to the Committee on all its recommendations, including that on Section 5 of the Public Order Act, by 9 December. I think that I can agree to putting in the Library a copy of that letter of 24 October, which I have shown to the opposition Front Bench this afternoon. This will allow us to take a considered review of the responses received and set them against the HMIC review into policing of protests, due to be published next month. That review will touch on a range of issues, including legislation around public order.

We believe that consulting the police and others on the implications of the noble Lord’s amendment is important, as Section 5 of the Public Order Act can be used by the police to deal with a range of lower-level disorder. Clearly, it will depend on the circumstances and whether the conduct in any particular case amounts to threatening, abusive or insulting words or behaviour, or alternatively to disorderly behaviour. I can give the House figures about how many times the section has been used in recent years, in court and to give penalty notices, but I cannot give figures that distinguish between the various ways in which the section is made up—whether it was for insulting, abusive or threatening behaviour.

People hold strong views for and against particular issues and they are likely to want to protest vociferously or display strongly worded banners in support of or against a particular issue. We would not want to stop them doing so unjustifiably. We would be very concerned if there was evidence that Section 5 was being used inappropriately, but there are safeguards, in that the police and CPS have to examine each case individually, looking at the circumstances and context. Among other things, they would consider what was said or done, what the intention behind it was and whether it was said or done within the sight or hearing of another person. The CPS will look at whether there is enough evidence to provide a realistic prospect of a successful prosecution; the second limb of its requirement is to see whether it is in the public interest to prosecute.

The Human Rights Act lays down that all legislation, including Section 5, must be read and given effect in a compatible way. The European Court of Human Rights, as the noble Lord will know better than most, has held that Article 10(1) of the convention applies,

“not only to ideas that are favourably received, or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.

That was in the case of Handyside, now many years old. It applies to the right to receive as well as impart information.

We are aware that the JCHR does not think that improving guidance will be sufficient to address its concerns, but we take a different view. Irrespective of whether Section 5 is amended, the police need to have the right guidance and training on these difficult issues, otherwise we risk having exactly the same debate in the future, set against a different legislative framework. In view of the fact that the Government are still in the process of collating responses on the amendment to Section 5, I ask the noble Lord to withdraw his amendment.

I thank all noble Lords who have spoken in this short debate. We have removed “insulting” from the religious hatred offence; this debate relates back to the debate about blasphemy and insult. The example given to the Select Committee, which I have not cited so far, is of an Oxford student who was arrested for allegedly calling a police horse gay. When that was put to the Minister at the Home Office, Vernon Coaker MP, he said that he did not think that Section 5 should be used arbitrarily. That seems to be a good example of an arrest that should never have been made.

I have listened carefully to the Minister and he has not given an undertaking to think further before Third Reading. Under the rules, that means that I could not bring this back at Third Reading. In any case, there would not be time before then for the consultations to be completed. Therefore, playing the game strictly according to the rules, I will not divide the House. I very much hope that this debate and wider consultation will soon lead to the removal of the word “insulting” for the reasons given by the noble Lords, Lord Monson and Lord Pannick. On that basis, I beg leave to withdraw the amendment.

Amendment 75B withdrawn

Clause 65 : Qualifying offences

Amendment 76

Moved by

76: Clause 65, page 37, line 36, leave out subsection (4)

My Lords, in moving this amendment I will also speak to a number of amendments in the name of the noble Lord, Lord Thomas, in the same group.

We now reach Part 3, Chapter 1 “anonymity in investigations”—yet another new subject in this Bill—so it is worth repeating yet again the advice that I offered to the Government at Second Reading. In future, they might find it easier to introduce Bills to this House on individual subjects, or at least not too many subjects at once. That might not only be useful for the drafting of the Bills but quite good politically and in terms of business management. When we look at the size of this Bill—its number of parts and the different subjects that it covers—the Government should be reminded of that more than once.

We now come to anonymity in investigations and investigation anonymity orders. These are a new form of anonymity order that are aimed, we are told, very precisely at combating gang-related violence. Indeed, they are so precise that they relate to the offences of murder and manslaughter committed with a gun or a knife and involving gangs the majority of whom are between 11 and 30. That is the precision that we are talking about. In other words, the orders are designed to be very specific indeed.

In Committee, we probed the limits that have been set down as to why the age of 30 was chosen and not 31, and we listened with interest and care to the responses of the noble Lord, Lord Tunnicliffe. The noble Lord made the case that gang-related homicides are a particularly difficult category of cases because the level of witness intimidation is likely to be high. We are prepared to accept that argument because the clauses in the Bill are about granting anonymity to witnesses. The principles of open justice and transparency are put on to the table. We accept that there are circumstances in which the interests of justice require there to be orders made of the sort that we are debating. Gang-related violence can be a real problem, and we agree that the justice system must have the appropriate tools at its disposal to deal with that problem. I am sure that the Minister will try to convince us that the Government have struck exactly the right balance. I presume that that is why the investigation anonymity orders apply to such a narrow set of circumstances.

All I can say at this stage is that we are nearly convinced. Amendment 76 would remove Clause 65(4), which allows the Secretary of State to amend—which we suspect really means widen—the conditions governing the orders. We expressed unhappiness in Committee that the Secretary of State should have the power to be able to widen something of this sort. Although we have almost been convinced that the Government are serious about keeping these orders restricted to a narrow category of offence, subsection (4) to some extent undermines that assurance. The Government knew this from the Committee stage, and I trust that the Minister has a briefing in front of him that will try to reassure me. Certainly, they have had the whole of the summer to consider that.

To go further, in a spirit of helpfulness, we have given the Government another option—that is, Amendment 76CA. Very simply, it allows Parliament to have its say on a report, which must be prepared by the Secretary of State, on how well—or not, as the case may be—investigation anonymity orders are working after two years. We have accepted that there may be a case for having such orders, which is, sadly, why I cannot support the noble Lord, Lord Thomas, who has taken a more robust approach than ours to having so many Bills in one Bill, and suggested deleting large chunks of it. We are certainly looking for assurances from the Government that they have taken due note of a need for proper parliamentary scrutiny of any changes that they seek to make. I do not think that that is too burdensome a requirement.

Having said that, and to go back to my first amendment, we would prefer it if the Government could at least drop subsection (4) and remove from themselves the power to widen this proposal. I beg to move.

My Lords, if the principle of anonymity in investigations is accepted, as it is by the noble Lord, Lord Henley, there is great merit in his amendment which would leave out subsection (4), preventing the Government arbitrarily widening the class of case for which and person for whom such anonymity orders can be made. Indeed, there is much sense in seeking a review of these investigation anonymity orders.

However, I am opposed to the matter in principle because it is very easy to encourage witnesses to come forward who may not be telling the truth. It is the case that, prior to the introduction of the Criminal Evidence (Witness Anonymity) Act 2008, which we debated at length last summer, the Metropolitan Police in particular had got into the habit of going around promising anonymity not only to witnesses who gave it information, but anonymity at trial. That went well beyond its powers. For that reason, although we had some reservations, we welcomed the introduction of a Bill that put a framework to the giving of evidence in court in anonymous conditions.

Looking at anonymity in investigations, I noted what the Minister said in response last time—that it may be necessary to apply for such orders before much is known about an offence. There is not necessarily any pressing need for these orders at the beginning of the investigation. The Government propose that the police or the DPP can make such applications right at the beginning. That is the most dangerous aspect of it. That is why, if this matter goes forward, I have tabled Amendment 76E, which would add to Clause 67(9) the provision that it is not enough that a witness should say that he will withhold information, or that he is to be encouraged to withhold information, but that he must indicate that he will not give any information and that he,

“would be unwilling or unable to provide such information if the order were not made”.

To my mind, that would be some precaution against the granting of the investigation anonymity orders too readily. We will come to debate the question of witness anonymity orders in court, but I have recorded my view in principle against the investigation anonymity orders that the Government now seek.

My Lords, to refresh our memories briefly, the new investigation anonymity orders are designed to assist in the fight against gang-related gun and knife crime. I wrote to the Opposition Front Bench in the summer describing the orders in detail. People who come forward to help the police in criminal investigations are protected from having their identities exposed only by the limited constraints to which the police and other investigators are subject at present, such as data protection legislation and common law confidentiality rules. The new orders will make it a criminal offence to divulge the identity of the informant. In the Bill, we have limited the orders to gang-related gun and knife homicides, where the greatest concern lies, but the Bill contains an enabling power that would permit the scheme to be applied to other offences if that were appropriate.

Amendment 76 would remove the order-making powers from Clause 65 and thus prevent further offences being added to the investigation anonymity order scheme other than by primary legislation. In principle, any criminal investigation can give rise to witness intimidation. If the orders work well in practice, it would be entirely proper to use secondary legislation to add other offences to the scheme, rather than having to enact new primary legislation. I remind the House that the affirmative resolution procedure applies to this order-making power and that the Delegated Powers and Regulatory Reform Committee considered that this provided an appropriate level of parliamentary scrutiny.

Any future extension of the scope of the scheme would be considered on a case-by-case basis. I can assure noble Lords that we have no plans to add swathes of new offences to the scheme. Moreover, any proposals to extend the list of offences would be subject to consultation.

Amendments 76A to 76D and 76F to 76M would delete the entire investigation anonymity order scheme. It will come as no surprise to the noble Lord, Lord Thomas of Gresford, that I cannot accept the amendments. I am aware that doubts have been raised in some quarters as to the likely efficacy of the investigation anonymity order scheme, but gang-related gun and knife crime continues to be a pressing problem. It would be a dereliction of duty on the Government’s part if we were to fail to pursue every possible way of combating that menace.

My response to those amendments brings me neatly to Amendment 76CA. I commented in Committee that we had some sympathy with the amendment. I noted that it was uncertain exactly how the orders would operate in practice and that their operation should be closely monitored. However, as we were proposing to carry out a review of the provisions anyway, I said that the amendment was unnecessary.

Given the continuing doubts which have been expressed as to the overall nature and scope of the scheme, I am now prepared to accept Amendment 76CA in principle. As ever, we think the drafting of the amendment can be improved upon. Accordingly, if the noble Lord, Lord Henley, would agree to withdraw it, I am happy to undertake to bring forward a suitable alternative at Third Reading which will have the same effect.

Moving now to Amendment 76E, I am grateful to the noble Lord, Lord Thomas, for clarifying the purpose of the amendment. This amendment would allow an investigation anonymity order to be made only where the police can satisfy a magistrate or district judge that the potential informant would be unwilling or unable to give information without one. That would make it more difficult to make an order than is envisaged in the Bill, which requires that the potential informant be more likely than not to provide information. We do not wish to make the requirements for obtaining an investigation anonymity order unduly onerous. At the very early stage of an investigation, the police may have only very limited information, but to take the investigation forward it may be vital for them to obtain an order.

Amendment 76E would require the police to satisfy the court that the informant was flatly unwilling or unable to assist without an order in place. In our view, this unduly restricts the range of cases in which the order may be made. It turns the order from an encouragement mechanism into a prerequisite for the provision of information. That cannot be right.

Having secured one of his two amendments, I hope that the noble Lord, Lord Henley, is satisfied and that he will agree to withdraw Amendment 76. I hope also that the noble Lord, Lord Thomas, will be sufficiently reassured. As well as accepting in principle Amendment 76CA, I can assure the noble Lord, Lord Henley, that the Government will not bring forward an order under subsection (4) of Clause 65 until the Justice Secretary has reported to Parliament on the operation of investigation anonymity orders. I hope that that will provide further assurance that we are not bringing forward an unnecessary swathe of offences.

My Lords, I am, as always, grateful to the Minister for his response and particularly so because he has said that he is in principle prepared to accept the second of my two amendments or that he will come forward with proposals to cover it.

As regards my first amendment, I was tempted to say that the Government are unlikely to be in office long enough to do much about Clause 65 or for the Secretary of State to amend it. However, I thought that I had better have a quick look at the commencement provisions. I should offer further advice to the Government: if they are to bring forward a Bill of this sort: they must remember that the commencement provisions will become complicated. If the Minister looks at Clause 171, he will discover that the commencement provisions go on for a page and a half. We must begin by manfully—or should I say “personfully”—going through the whole of that clause desperately trying to find when and if Clause 65 is likely to be commenced. It may be covered by Clause 171(1)(j)(iii), relating to Part 3, but I am not sure whether Part 3—

“the repeals relating to the Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36) and the Supreme Court Act 1981 (c. 54)”—

covers it, or whether it may be covered by subsection (5) of Clause 171, whereby:

“The other provisions of this Act come into force on such day as the Secretary of State may by order appoint”.

In other words, we are left completely unclear as to when and if Clause 65, particularly subsection (4), will come into effect.

However, I am grateful to the noble Lord for giving us an assurance that the Government have no plans to bring it into effect or to make any changes until the Secretary of State has had time to—did the noble Lord say “consult”, because we all know what consultation means in the Ministry of Justice? If not consult, at least to consider matters further. If that is the case, it is extremely unlikely that the Government will get a chance to make any amendments to Clause 65 under subsection (4).

There is no need for the noble Lord to respond, unless he happens to have an answer. I intend to withdraw my Amendment 76 and I thank him for what he said about Amendment 76A. I hope that he will at some point write to me, in particular about the commencement clause. I beg leave to withdraw the amendment.

Amendment 76 withdrawn.

Amendment 76A not moved.

Clause 66 : Qualifying criminal investigations

Amendment 76B not moved.

Clause 67 : Investigation anonymity orders

Amendments 76C and 76CA not moved.

Clause 68 : Applications

Amendment 76D not moved.

Clause 69 : Conditions for making order

Amendments 76E and 76F not moved.

Clause 70 : Appeal against refusal of order

Amendment 76G not moved.

Clause 71 : Discharge of order

Amendment 76H not moved.

Clause 72 : Delegation of functions

Amendment 76J not moved.

Clause 73 : Public interest immunity

Amendment 76K not moved.

Clause 74 : Application to armed forces

Amendment 76L not moved.

Clause 75 : Interpretation of this Chapter

Amendment 76M not moved.

Clause 77 : Applications

Amendment 76N

Moved by

76N: Clause 77, page 45, line 25, at end insert—

“( ) For the purposes of considering an application for a witness anonymity order, the court may appoint an independent counsel to assist the court.

( ) In deciding whether to grant the order, the court shall consider whether the appointment of an independent counsel would contribute significantly to the fairness of the proceedings; and if the court decides not to appoint an independent counsel the court must give reasons.

( ) The court may direct the independent counsel to scrutinise on the court’s behalf any relevant matter the court thinks fit, and to carry out any instruction the court thinks fit.

( ) The party applying for the witness anonymity order must disclose to the independent counsel all information relating to the proceedings that is in that party’s possession.

( ) The independent counsel shall have power to require police officers unconnected with the relevant trial to investigate and report to him whether there are any matters relevant to the considerations set out in section 76(2)(d) and (e) which should be drawn to the attention of the court.

( ) The independent counsel shall be entitled to examine witnesses in the absence of a prosecutor, or in the absence of a defendant and his legal representative.

( ) The independent counsel shall assist the court in its consideration of Conditions A to C in section 78.”

My Lords, we move on to witness anonymity orders in Chapter 2 of Part 3. In particular, we need to look at the machinery by which witness anonymity orders may be made. It is, of course, extremely difficult for the defendant to challenge the evidence of an anonymous witness. I have already told your Lordships of my personal experience in this field. If the defence counsel does not know the name or identity of a witness—certainly if the defendant does not know—it is impossible to take instructions in such a way as effectively to challenge the evidence that he gives or to explore further the reasons why he should give the evidence that he does.

The machinery under Clause 77 is that an application may be made to the court by the prosecutor or, indeed, by the defendant. Clause 77(2) states:

“Where an application is made by the prosecutor, the prosecutor … must inform the court of the identity of the witness”.

However, the clause goes on to say:

“Where an application is made by the defendant, the defendant … must inform the court and the prosecutor of the identity of the witness”.

There is an imbalance straightaway in the way in which these applications are made. The prosecution does not suffer from the same problem to which I referred your Lordships earlier. The prosecution knows who the witness is; it can make investigations into the background, challenge the evidence that that person gives and explore the reasons why he has come forward to give evidence on behalf of the defendant. That is a very different situation from that of the defence.

When the application is made, the judge has to consider whether to grant it. Clause 78(2) says:

“The court may make such an order only if it is satisfied that Conditions A to C … are met … Condition A is that the proposed order is necessary … to protect the safety of the witness or … to prevent any serious damage to property, or … in order to prevent real harm to the public interest … Condition B is that, having regard to all the circumstances, the effect of the proposed order would be consistent with the defendant receiving a fair trial … Condition C is that the importance of the witness’s testimony is such that in the interests of justice the witness ought to testify and … the witness would not testify if the proposed order were not made”.

That is interesting. In the previous debate on investigation anonymity orders, my amendment, which would have inserted the same idea, was not accepted by the Government. The final condition is that,

“there would be real harm to the public interest”.

When it comes to the application that is made by the prosecution, the judge has to guess. All that he is told is the name of the person concerned. There is no possibility of his making any inquiries of his own. When the defendant applies for an order, the prosecution can say, “This chap is not worthy of belief”, that the order is not necessary to protect his safety and that there would be no real harm to the public interest; indeed, it can raise all the matters set out in conditions A to C. The judge has information when the defence counsel makes the application, but when the prosecution makes the application the judge has no idea; all he can do is guess. The prosecution can put forward whatever grounds it wishes and there is no means of testing the bona fides of the witness.

Amendment 76N proposes that, in circumstances where a judge is not entirely satisfied with what the prosecutor tells him, he could appoint an independent counsel to assist him. The independent counsel would have the power to,

“scrutinise on the court’s behalf any relevant matter the court thinks fit, and to carry out any instruction the court thinks fit”.

The party applying for the witness anonymity order—let us say the prosecution—is required to disclose to the independent counsel all the information in their possession that relates to the proceedings. The independent counsel, if he thinks fit—we are moving on to situations that are less likely—would have the,

“power to require police officers unconnected with the relevant trial to investigate and report to him whether there are any matters relevant to the considerations set out”,

in the Bill. He would be,

“entitled to examine witnesses in the absence of the prosecutor, or in the absence of a defendant and his legal representative”.

Having carried out the inquiry, the independent counsel would be in a position to assist the court in its consideration of the conditions, the effect of which I have already read out to noble Lords.

The amendment seeks to balance the defendant’s and prosecution’s interests in a way that the Bill does not. We in this country are still interested in a fair trial. We are interested in equality of arms—one side should not have a considerable advantage over another. Since witness anonymity orders are likely to become more frequent, the way things have been moving over the past 10 or 20 years, it is right that this power should be there—to be exercised not in every case, but only where the judge feels that something about the application needs an investigation that he personally could not carry out, for obvious reasons, and so requires the assistance of independent police officers and counsel. I hope that that explains the position, and the reasoning behind the amendment. I beg to move.

My Lords, I will speak briefly to the amendment of the noble Lord, Lord Thomas, as I have added my name to it. He has spoken to it most ably, and therefore brevity is certainly the order of the day.

This is not a new issue. We debated it during the passage of the then Criminal Evidence (Witness Anonymity) Bill last year. In Committee, we considered a similar amendment seeking to achieve broadly the same thing—namely, for a court that is considering an application for a witness anonymity order to be able to appoint a special, independent counsel to deal with the evidence surrounding such an application.

We are more than content with the terms of the amendment, and add our support. Since it looks as though the noble Lord, Lord Bach, himself will be answering on this occasion, perhaps he will be able to assist me with the questions that I was asking earlier about commencement, which also apply to this section. We are now considering Chapter 2 of Part 3. When is commencement likely to come into force under Clause 171?

My Lords, I will speak briefly in support of the proposal that special advocates should be available in the type of case that is under consideration. Perhaps it is worth reminding noble Lords that special advocates have proved not only useful but very effective in control order cases involving terrorism suspects that have gone before the High Court. There are a number of cases—a number increasing almost day by day as we speak—in which special advocates have been able to persuade the court that there are circumstances militating against either the control order itself or certain conditions under it.

I apprehend that special advocates in witness anonymity cases will be used very rarely; nevertheless, it is my view that some of these cases are extremely complicated evidentially and that there is justification in scrutinising the circumstances in which what amounts to secrecy is being imposed. I therefore urge the Minister when he replies to consider whether, in a residue of cases where there are circumstances that require special inquiry, the power should be provided so that special advocates can be appointed. I think that it needs to be put in statutory form because, if it is not, they will suffer the indignity if appointed under an inherent power, if it exists, of not being paid.

My Lords, Amendment 76N brings us back to the topic of special counsel, or “independent counsel” as the amendment would have it, which has featured on a number of occasions during the passage of the emergency legislation and again in this Bill. I say at once that we remain to be persuaded that it serves any useful purpose to make provision for special or independent counsel in the Bill; indeed, we see significant disadvantages in doing so for a number of reasons.

Our starting point is that the appointment of special counsel may already be addressed under the common law across the whole range of criminal proceedings. We are currently dealing with the area of witness anonymity, but the more familiar context for special counsel is disclosure and public interest immunity cases. There is, however, nothing in principle to prevent the use of special counsel in any kind of criminal proceedings.

Our argument is that, if the position of special counsel is to be placed on a statutory basis, it should be for criminal proceedings in general, not just witness anonymity applications. This Bill is not the place to put special counsel in criminal proceedings on a statutory footing. Furthermore, we believe that the common-law arrangements are working perfectly adequately and we have seen no evidence to the contrary. The courts have not called for special counsel to be placed on a statutory basis. In the anonymity context, the courts have given no indication that they consider the present common-law arrangements unsatisfactory.

It may be helpful if I set out our position a little more fully by reference to the detail of the amendment. First, under the terms of the amendment, the power to appoint special counsel would be given to the court. This would be a significant change from the current position at common law, under which it is always the Attorney-General who makes the appointment at the request of the court. In the 2004 case of R v H&C, the Judicial Committee of this House indicated that the current procedure had no plausible alternative, and we can see no good reason to change it now.

Secondly, the grounds for appointment—namely, that there should be a significant contribution to the fairness of the proceedings—do not reflect the common-law position and practice that special counsel should be appointed only where no other course will adequately meet the overriding requirement of fairness to the defendant. In the case of H&C, this House, in its judicial capacity, emphasised that the appointment of special counsel should be an exceptional course of last resort. We feel that the amendment threatens to undermine that guidance, which has always been regarded as valid. In doing so, the amendment could lead to the routine appointment of special counsel in witness anonymity cases, and we have to be mindful of the significant resource implications that would flow from that.

The amendment would make the function of independent counsel one of assistance to the court. In representing the interests of the defendant in proceedings, special counsel naturally assists the court but that is not his or her specific role. This would go significantly beyond the role currently undertaken by special counsel in criminal proceedings, and widen it in a way that would lead to problems.

The broad function of assisting the court might involve duties that are significantly different from that of a special counsel. These duties are not required of a special counsel where they are used in existing criminal proceedings involving witness anonymity, and indeed there is no need for them. Our real concern is in the power to examine witnesses in the absence of prosecutor and defendant or defendant’s representative. That suggestion in the amendment represents a significant change in the existing position on special counsel. This proposal, if taken to its natural extent, would be tantamount to the appointment of a second judge in the criminal proceedings to investigate and interview witnesses. The courts, in considering what the role of special counsel should be, have never suggested that it is necessary for a special counsel to have the power to examine witnesses outside the court proceedings.

Furthermore, the amendment would give independent counsel power to direct a police investigation independent of the one which led to the prosecution. In our view, investigation should always be a matter for the prosecution team because it should have access to all relevant information whether because of the need to discharge its statutory disclosure duties properly or ultimately to decide the main question whether to continue to pursue the prosecution. We are also concerned that this aspect of the amendment could be taken to imply that those who investigate offences are somehow lacking in objectivity or even worse. It would be fundamentally wrong in principle to legislate on that basis. That is the basis on which this amendment is drafted.

Leaving aside the undesirability in principle of using a Bill about witness anonymity as a vehicle for legislating on special counsel, which covers the whole range of criminal proceedings, the amendment raises serious concerns as to unjustified divergences from the common law in an area where the system is working well. For those reasons, I invite the noble Lord to withdraw his amendment. If he cannot do that and puts the matter to the opinion of the House, I shall certainly be advising the House to vote against it.

My Lords, I am most grateful to the Minister for his reply. He says that this is an entirely new procedure, which is true, but he is putting into statutory form an imbalance between prosecution and defence which has not existed so far. I should consider his criticisms, however, on the drafting of this amendment, and I note that he has given an undertaking—at least an indication—that the Government will look more widely at the role of the special advocate. At the moment it is rather unfortunate that the special advocate system is entirely within the purview of the Attorney-General and that it is not a matter for the trial judge to consider whether he or she will be assisted by the provision of special counsel to cover certain matters—not simply on behalf of the defence but on the part of the court itself.

I reject the suggestion that my amendment criticises the investigating police force. It was not my intention to do so in putting the amendment forward. Having listened to the Minister, having considered all the issues raised by him, and in light of his reference to a wider investigation into the role of special counsel, I will not pursue the matter at this stage. I beg leave to withdraw the amendment.

Amendment 76N withdrawn.

Clause 78 : Conditions for making order

Amendment 76P

Moved by

76P: Clause 78, page 46, line 3, leave out “any reasonable” and insert “whether any”

My Lords, Amendments 76P and 76Q are matters of wording more than anything else, and I do not propose to pursue them. However, I shall move Amendment 76P in order for the Government to address your Lordships on the amendments that are linked with them. I beg to move.

My Lords, Amendments 76P and 76Q pick up an issue previously discussed in Committee. I have to tell the noble Lord, Lord Thomas, that the amendments would have no material effect when compared with the current drafting. Under Clause 78(6), the court will necessarily have to consider any fear of the witness, taking into account the witness’s circumstances, in order to judge whether that fear is reasonable. If it is a reasonable fear, the court must have regard to it. Thus, the test already has an objective element. Where the court inquires into the fear of a witness under this provision, it is obliged to have regard to the fear only where it is reasonable. I trust this further explanation will reassure the noble Lord.

I can deal briefly with government Amendments 77 and 124 as they are essentially technical. Clauses 81 and 82 make provision for witness anonymity orders to be varied or discharged by the court that made the order. There is an issue with the current drafting in that we could expect the courts to construe it as requiring exactly the same magistrates’ court to discharge or vary the order as made it. Clearly, this could cause problems if a member of that court became unavailable for any reason in the period between the original making of the order and its proposed discharge or variation. Amendment 77 will ensure that where the court that made the order was a magistrates’ court, it will be open to any magistrates’ court in the same local justice area to discharge or vary the order. Amendment 124 ensures that, where a witness anonymity order is made by an old-style service court under the Criminal Evidence (Witness Anonymity) Act 2008, the new service courts provided for by the Armed Forces Act 2006 will be able to discharge or vary it under the provisions of this Bill when they are in force. I hope that the noble Lord, Lord Thomas, will agree to withdraw his amendment.

Amendment 76P withdrawn.

Amendment 76Q not moved.

Clause 87 : Interpretation of this Chapter

Amendment 77

Moved by

77: Clause 87, page 50, line 7, at end insert—

“(2) In the case of a witness anonymity order made by a magistrates’ court in England and Wales or Northern Ireland, a thing authorised or required by section 81 or 82 to be done by the court by which the order was made may be done by any magistrates’ court acting in the same local justice area, or for the same petty sessions district, as that court.”

Amendment 77 agreed.

Clause 96 : Directions to attend through live link

Amendment 77A

Moved by

77A: Clause 96, leave out Clause 96

My Lords, we move swiftly to live links, another topic that we have addressed in this House quite recently. I think I have made known to your Lordships the position of principle that we take on it, which is that live links have a useful function, but that a defendant should be able to consent to the use of a live link, not have it thrust upon him. It is interesting to see how this issue has a creeping connotation. We start by having live links that are perhaps helpful to a defendant in particular circumstances, and he will consent to it, but now we come to having live links used as a compulsory mode of communication in court proceedings. It is that principle that I oppose, and for that reason, I beg to move.

My Lords, the current use of live links—these are being piloted as we speak—is inconsistent. Defendants who are already in prison cannot veto the use of live links when they appear at a preliminary hearing, but if they plead guilty during the hearing they can be sentenced over the live link only with their consent. Separate consent is required if such defendants are to give oral evidence at the sentencing hearing. The defendant’s consent is also necessary where he has been convicted and is to be sentenced at a live-link hearing from prison. He must also give separate consent if he is to give oral evidence at this hearing.

The defendant’s consent is also required for the use of a live link for virtual court hearings where the defendant is at the police station, either having been detained there or having returned to answer what is described as live-link bail. These police-station-to-court live links are a new initiative and are being piloted at present. After lengthy consideration, we have come to the conclusion that there is no justification for requiring consent for the use of a live link for certain sorts of hearing while not requiring it for others. A live link hearing ought to be treated much like any other hearing.

This House is well aware of the need for increased efficiency in the criminal justice system. The increased use of live links, for which this clause provides, will enable cases to be progressed more quickly and ensure the best use of available resources and technology. Crucially, the quality of justice will not be affected by these changes; live-link hearings will come under the same rules and guidelines that apply to all preliminary and sentencing hearings, and the defendant will have access to all existing legal safeguards.

In addition, the clause adds a safeguard whereby, when any consent requirement is removed, the court cannot give a live-link direction unless it is satisfied that it is not contrary to the interests of justice to give the direction. Of course, a court can rescind a live-link direction at any time. In practice, this will mean that a court will be able to consider a defendant’s views on the use of a live link, or any particular needs that he may have that render the use of a live link unsuitable.

These changes have the potential to increase the speed, efficiency and effectiveness of the criminal justice system without affecting the quality of justice. This will deliver: first, a better deal for victims and witnesses, as cases will be resolved more quickly; secondly, a better deal for the taxpayer, as police and court resources, which are very precious, will be used more efficiently; and, thirdly, a better deal for the defendant, as their case will be progressed more quickly. In turn, this will, we hope, support public confidence in the effectiveness of our criminal justice system. On that basis, I invite the noble Lord to withdraw his amendment.

My Lords, the Minister says that the use of live links is inconsistent. Some need consent, while others do not; so what does he do? He says that no one shall need consent in any hearing and that that will make it all consistent, but it would be fairer to require consent every time a live link is proposed. For a person who is locked up in a prison cell or who is in a police station, having to have his case heard at a distance where he is not supported directly by his legal team and his legal team cannot take instructions from him easily—it can be done but with considerable difficulty—is a disadvantage. In many instances, one would advise a defendant not to consent, but now the Government, in the interests of rationality, have decided to make it the same for everyone: no consent required. That is just an indication of the way in which this Government have gone from the beginning in the field of the criminal law. For the moment, however, I do not propose to divide the House, and I beg leave to withdraw the amendment.

Amendment 77A withdrawn.

Clause 103 : Powers in respect of offenders who assist investigations and prosecutions

Amendment 78

Moved by

78: Clause 103, page 61, line 13, leave out “Enterprise and Regulatory Reform” and insert “Innovation and Skills”

My Lords, the noble Lord, Lord Henley, will recall that these technical amendments mirror ones we tabled in Committee, but which I withdrew at the conclusion of the debate on 13 July. As I previously explained, Clause 103 extends to the Financial Services Authority and the Secretary of State for Business, Enterprise and Regulatory Reform the statutory powers in the Serious Organised Crime and Police Act 2005 for prosecutors to confer immunity from prosecution in respect of defendants who co-operate in the investigation and prosecution of others. The 2005 Act also makes provision for defendants who turn Queen’s evidence to receive a reduction in their sentence in return for their co-operation.

These amendments are necessary to reflect the machinery of government changes announced by the Prime Minister in June when the Department for Business, Enterprise and Regulatory Reform was replaced by the Department for Business, Innovation and Skills. In Committee, the noble Lord, Lord Henley, asked why the clause did not adopt the usual approach of referring to the Secretary of State at large rather than single out a particular Secretary of State. In my letter to the noble Lord of 15 July, I explained that the reference to the Secretary of State for Business, Enterprise and Regulatory Reform was deliberate. The powers in the 2005 Act are significant and should not be made more widely available than is necessary.

The noble Lord, Lord Henley, raised the fact that the power is given to the Secretary of State “acting personally”. Perhaps I may stress that there is no intention that the Secretary of State will use these powers himself. Where a Secretary of State is ordinarily granted a power in legislation, unless otherwise specified, that power may be automatically exercised on his behalf by a large number of officials in his department. We want to ensure that these powers can be delegated only by the Secretary of State to no more than two appropriately senior prosecutors within the department. That is why we use the phrase “acting personally” in the clause. Clause 103(4) goes on to provide:

“In exercising the power to designate a prosecutor … the Secretary of State”,

may designate only two people; namely, a chief prosecutor and a deputy prosecutor. There are, of course, other Secretaries of State whose departments prosecute criminal cases, but it is in respect only of those especially serious cases prosecuted by the Secretary of State for Business, Innovation and Skills, and by the Financial Services Authority, that we consider an extension of the statutory Queen’s evidence powers can presently be justified. To make that limitation clear we consider it necessary to put it in the Bill. I hope that this further explanation will satisfy the noble Lord, Lord Henley. I beg to move.

I hope that the noble Lord was a bit embarrassed about reading out that nonsense. We hear yet again him trying to say that the Secretary of State for Business, Enterprise and Regulatory Reform “acting personally” does not have to act personally, but that it means that a very limited number of people can do the job for him. This is a nonsense of which the noble Lord should be ashamed, as should the draftsmen who have tried to put this into the Bill. It is not clear at all.

I originally raised this when I saw the words,

“the Secretary of State for Business, Enterprise and Regulatory Reform”.

I thought that that was a bit of a nonsense. We are all used to the expression that we see in most Bills, which refers just to “the Secretary of State”. My understanding was that the Secretary of State in law was just one person, and that it was much easier when drafting a Bill just to say “the Secretary of State” because it would not need to be amended as the Prime Minister changed the names of the departments—at whim, with great regularity. We have not had a Department for Business, Enterprise and Regulatory Reform for that long. Before that we had another department with another name and before that another name. At great expense, Prime Ministers change the names of departments for reasons that are beyond me. No doubt there are worthy reasons for it, but there are major costs in it.

Perhaps the Prime Minister will not have time to change the name because of the amount of time that the Government have got left to cause further mischief. But, presumably, when the Prime Minister next changes the name there will be further costs and an amendment Bill will come before this House, which will no doubt be called the coroners and justice amendment Bill 2009 or 2010. It will have one clause, to change the name of the Secretary of State for Business, Enterprise and Regulatory Reform to something else. At that point something might be added about “acting personally” so that we know precisely what the phrase means. I find it odd that “acting personally” means that you are not acting personally, in that other people are doing something for you.

I despair of this. I remember that when we debated it, possibly late at night, the noble and learned Baroness, Lady Butler-Sloss, supported me and I was grateful for that support. I do not think I can take it further, unless she wants to come back on it, or unless the noble Lord himself wants to do so. Indeed, I now have before me the words she used in Committee; my noble friend Lord Hunt has provided me with a copy of the relevant Hansard:

“What does the Minister think a court might do with this? If the phrase is ‘acting personally’, I do not see how you can delegate”.—[Official Report, 13/7/09; col. 992.]

May we have an answer to that point from the noble Lord, Lord Tunnicliffe? I hope that he has one, and I am happy to keep on talking for a while so that a response might appear from another quarter. This is comical. The Government have tried their best but they have not tried very hard. I find it odd, particularly when, going back to Clause 103(3) the Secretary of State is acting personally, and a bit later he is not acting personally. When he is not acting personally, does he delegate to even more officials than the two officials he delegates to when he is acting personally? This is a very strange way of doing things.

I do not know whether other noble Lords want to question the Minister on this, and I do not know whether he would like to try to make some sort of response. I leave it to him.

My Lords, once again I am sorry that the drafting may not be elegant, but I believe it is clear. The clause effectively defines “acting personally”, and subsection (4) makes it quite clear what the phrase means in this clause. I am sure that noble Lords will agree that such a power should not fall under the automatic capability of normal legislation for any official to be able to exercise it. It is a serious power and this is the government draftsman’s way of limiting it to two specified individuals. The limitation is entirely appropriate for such a serious matter. I wish the wording was more elegant, but I believe that it says what I say it means.

Amendment 78 agreed.

Amendments 79 and 80

Moved by

79: Clause 103, page 61, line 19, leave out “Enterprise and Regulatory Reform” and insert “Innovation and Skills”

80: Clause 103, page 61, line 32, leave out “Enterprise and Regulatory Reform” and insert “Innovation and Skills”

Amendments 79 and 80 agreed.

Schedule 14 : The Sentencing Council for England and Wales

Amendment 80A

Moved by

80A: Schedule 14, page 156, line 15, leave out paragraph (g) and insert—

“( ) the media;”

My Lords, I shall speak also to Amendments 80B, 89ZA and 89BA, all of which are grouped with Amendment 80A. We have reached Part 4 which covers sentencing. When we discussed the composition of the Sentencing Council in Committee, I was delighted that the Minister agreed with the proposal of my noble friend Lord Dholakia that the lay membership of the council should include someone with experience of the rehabilitation of offenders. It is that sort of expertise that is central to the issues that the council will have to consider, and that was a good decision. However, I was not so successful in persuading the Minister that someone with experience of the media and someone with experience of youth offending should also be included, despite support at the time from other, distinguished noble Lords.

I draw some comfort from the fact that someone with expertise in the rehabilitation of offenders is very likely also to have experience of youth offending, and I hope that this will be seen as a requirement to be included in the skills of this particular member. The Government must be in no doubt of the extreme importance of expertise in the field of youth offending, where our record of reducing reoffending is so poor and the needs of this group so great.

I am not going to pursue that argument any further, but I want to return to my other suggestion since I continue to believe that knowledge and experience of the media is extremely important, in an understanding both of communication skills and of how the media work. It is vital that the Sentencing Council is able to deploy such skills as it carries out its new duties, enabling it to ensure that some balance is restored to the way in which the press, particularly what are called the red tops, report on events in our criminal justice system. How to redress ignorance and misunderstandings on the part of the public is an issue that has to be taken very seriously, since the media represent the single biggest factor influencing public understanding of, and confidence in, our sentencers. This is not a trivial proposal, but a very serious one that also informs my next amendment.

How things are reported is, quite understandably, a cause of real pressure and anxiety for many sentencers. There is considerable anecdotal evidence which shows that how they perceive the possible response of the local or national press can have a significant bearing on the final decision in a case. This influence is unacceptable when it occurs: how tough you are prepared to appear—or, more worryingly, how soft on crime and offenders—can be a real issue. Alternatively, if an accused is described as walking free from the dock because he has not been sent down to prison but given a community-based disposal instead, we are given a totally distorted impression of what took place and what the decision meant. It implies that because the defendant did not go to jail, he was not being punished and was effectively getting off.

The noble and learned Lord, Lord Woolf, who designed our original Sentencing Guidelines Council and chaired it with the greatest distinction, recalled while we were discussing this in Committee the rough reception he was given by the press to the sensible guidelines he was announcing. They had involved much research and hard work on the part of the council, and that reporting did much damage. That, also, was quite unacceptable, but we all know how powerful and pervasive reporting of that kind can be.

We have talked quite a lot on this part of the Bill about the importance of public confidence in our system of justice and the relative lack of it at the moment. Is it any wonder that this is the case, and in large part is due to this sort of press coverage and corresponding ignorance of the realities on the part of the average citizen? The freedom of the press is something we treasure in a free society, of course, but if the power of the press is not engaged with and the full truth is not told, it can be a different and potentially dangerous challenge to the very freedom it is afforded.

I understand that in the past year a new programme of judges’ media training has been developed, with 12 judges on the first panel. This is an interesting and most encouraging development, and of course there is the media and press office as part of the Judicial Office, so moves are being made to engage better with the media. How much more important and relevant it is, therefore, that the Sentencing Council should itself have a source of expertise in its ranks to advise at that crucial level.

I appreciate that if this suggestion is taken seriously, which I hope sincerely it will be, it would mean an additional member to the eight lay members of the council so far included in the Bill. This was also pointed out by the noble Lord, Lord Borrie, in Committee. I propose, therefore, that the statistician be dropped from the list, as his skills are not crucial to the working of a council such as this, particularly as the list of members in the schedule already includes a member with experience of academia and research, who would inevitably have the statistical skills necessary for this task as an automatic part of his or her skills set.

Over the past few weeks, I have discussed this proposal informally with a number of senior judges and Law Lords to test their opinion on the matter. All of them regarded it as one which should indeed be accepted as adding a necessary and important dimension to the Sentencing Council membership. It is also, of course, a view which is held elsewhere in the criminal justice world. I am sure that there is inevitability about this kind of skill being brought in and I sincerely hope that the Government share this view.

The other amendments in the group relate to the issue of demand for prison places or resources for probation and youth services. I return to the amendments to which I spoke in Committee because the issues they raise, although apparently relatively minor, are potentially significant. Resources are, of course, fundamental to the effectiveness of sentencing. I have already welcomed the duty that the Bill now places on the council to carry out impact assessments of new legislation, which must in turn include consideration of the resources available.

Despite official government policy that all but the most violent, prolific and dangerous offenders should not be in custody, one of the issues which is a constant worry to those of us involved in the management of offenders is that that policy has never been matched by proportionate, comparable investment in what is provided by way of alternatives to custody. This is particularly true of the Probation Service resourcing, as well as the range of organisations in the voluntary and private sectors which also carry much of the burden of this essential work.

One of the factors affecting the public’s lack of confidence is when community disposals fail and offenders reoffend due to the lack of adequate, high-quality, available provision at the point of need. If a sentencer believes that a domestic violence programme or a drug treatment programme is appropriate and necessary in a particular case and then it emerges that it is not immediately available, what is the sentencer to do? Often recourse to custody may be the only, albeit less appropriate, option. The point then is that it is assumed that a prison place is always available. So far, no one has been known to be refused custody and sent back to court for the sentencer to think again. Even when the situation of overcrowding is dire, police cells will be used as an interim measure.

The Government have been prepared to go to any lengths to provide for custody and now, despite the crippling economic state of the country, where stringent cuts are being required right across the piece, including NOMS and all criminal justice agencies, a further £1 billion has been made available in the coming year for the prison building programme. This is an extraordinary situation in the light of government policy. Thus, Clause 120 is important because the Sentencing Council is required to make an impact assessment on the effect that any changes in the sentencing practice of courts are likely to have on resources for prison places and the resources required for probation and youth service provision.

If it is required to look at comparable resources for all provision, as we hope will now be the case, that will highlight both the enormous disparity in costs between custodial and non-custodial provision, where prison swallows up vastly more than community penalties. It will also draw attention to the comparative outcomes, where community programmes are significantly more effective in preventing reoffending. In other words, government policy, if resourced and implemented, would succeed in reducing reoffending, inspiring public confidence and making society a safer place. By requiring the Sentencing Council to look at what is available on the basis of equal and comparable criteria of resources, which should include costs, appropriate funding and outcome, the council will be able to make a far better assessment of the effects of sentencing practice. I beg to move.

My Lords, I need say only a few words because I agree with everything that the noble Baroness, Lady Linklater, has said. From one vantage point, both her concerns may seem relatively modest. All I can say is that, as the first chairman of the Sentencing Guidelines Council, and having had the experience of presenting to the public and the media the guidelines in a way which will mean that they will be understood and, therefore, favourably received, she is right in her submission that it would be useful to have someone on the council who is familiar with and skilled in media matters. At least that should be considered by the Minister in appointing the council. Equally, her submission about the nature of the guidelines and the need to have regard to resources is obvious common sense. I cannot say any more than that.

My Lords, I thank the noble Baroness for her amendments. I shall deal first with Amendments 80A and 80B before turning to Amendments 89ZA, 89BA and 89D. I hope the noble Baroness will bear with me on the first two amendments because later I hope to accept some of the points that she has made.

The effect of Amendment 80A is twofold: it removes from the list of desirable skills of non-judicial members experience of statistics and replaces it with experience of the media. Amendment 80B adds the experience of non-judicial members in the rehabilitation of offenders. I part company with the noble Baroness and her suggestion that experience of statistics should be deleted. One of the key findings of the Gage report was the need for more sentencing data. The need for more data is crucial if the council is to fulfil all of its functions. More data are obviously needed to inform both new guidelines and the need to review current guidelines; more data are needed to work out what impact the guidelines will have on resources, which other amendments of the noble Baroness reflect; and more data are needed on sentencing trends and to make more accurate assessments of government policy. The need for further sentencing data was widely recognised in the responses to Gage. It was supported by all levels of the judiciary, by penal reform groups and, more recently, by the Justice Select Committee in its report Sentencing guidelines and Parliament.

There is already in existence a range of sentencing statistics. The Ministry of Justice publishes national statistics on the number, type and length of sentences. The issue here is about new data. It means collecting data for the first time about the factors that exist in sentencing decisions, the factors that influence sentencing and the extent to which those factors change sentencing behaviour. The council will have to decide how to collect and analyse these new data that the judges will complete. This is obviously a specialist task. It is not one often found in combination with other experience relevant to the criminal justice system. That is why Schedule 14 includes a reference to a non-judicial member with experience of statistics. Amendment 80A would, alas, remove that skill, which we believe is specific to the success of the council in delivering its new functions, by replacing it with experience of the media.

Noble Lords will not be surprised to hear any government representative say that they do not underestimate the importance of good relations with the media. I recognise that it is important that the council communicates effectively, but I am not sure that it is essential to include specialist media skills as the kind of experience that the Justice Secretary considers for non-judicial members. As it happens, many of the non-judicial members will have media experience by virtue of their current positions; it is fair to argue that that is an everyday skill for the kind of high-calibre non-judicial members that the Lord Chancellor would seek to appoint. That experience of the members can be augmented by support staff with specialism in media relations, which is not unusual for a body such as the council. The reality is that the same breadth of experience simply does not exist for statistical expertise, which is why on balance we think that we should retain the skill in Schedule 1 and not replace it with experience of the media.

We have just heard the noble and learned Lord, Lord Woolf, with his experience as the first chairman of the council, say that it was important to have expertise in the media because whether the media produce a favourable report has a considerable effect on the acceptability of the guidelines. I am not sure that the Minister has sufficiently dealt with that point.

I am grateful to the noble and learned Lord for reminding me; anything that the noble and learned Lord, Lord Woolf, says on these matters is to be considered seriously. I listened carefully to the phrase that he used. I think he said that he supported what the noble Baroness had said word for word, but that media experience either should be in statute—in the Bill—or should at least be considered when appointments are being made. At the risk of overreaching myself, I can go as far as saying that we agree with the noble and learned Lord inasmuch as it should be considered when appointments are made. However, we part company on the suggestion that it should be in the Bill. I repeat that we believe that many of the non-lawyers who will be making up this organisation will inevitably have considerable media skills in any event.

Amendment 80B relates to the experience of non-judicial members in the rehabilitation of offenders. It is an attempt to clarify that the rehabilitation of offenders includes young offenders. We understand the intent, and of course we recognise the importance of dealing with young offenders; that is crucial to the success or otherwise of the council. We were happy, as the noble Baroness was kind enough to mention, to support the noble Lord, Lord Dholakia, when he proposed the amendments to add the rehabilitation of offenders to the list in Schedule 14. I do not suppose that when the noble Lord was putting that amendment forward, he thought that “offenders” would not cover young offenders. The other Sentencing Council provisions make no distinction between offending by adult or young offenders, so we do not feel it necessary to amend the Bill.

I turn more happily to Amendments 89ZA, 89BA and 89D, which relate to the duty on the council to assess the impact of changes in sentencing on prison, probation and youth justice. Under pressure from the noble Baroness in Committee, I undertook to look at the language of this requirement, following the suggestion that there was some discrepancy—a lesser requirement on the council in relation to impacts on prison than in relation to probation and youth justice. There was no intention to make such a distinction. The noble Baroness has suggested a revised wording in these amendments that we accept captures the essence of what the council is being asked to do: to make an assessment of the impact of sentencing and related issues on prison, probation and youth justice. The Government are therefore happy to support the noble Baroness’s amendments, and we thank her for pressing us on this point.

I thank those noble Lords who have taken part in this brief debate, not least my hero, the noble and learned Lord, Lord Woolf. With regard to the membership of the council, I am not entirely surprised by the Government’s response, except to say that I understand about the essential need for data but, as I have pointed out, there will be an academic listed in this membership, the stuff of whose business is dealing with data; they know about it better than anyone. A broad statistician will not bring with him or her the same kind of focus and expertise that an academic will when it comes to looking at data relevant to the work of the council. My suggestion was not intended to remove that skill but to remind the Minister that there will already be someone on the list who will have a kind of augmented skill.

The Minister has rejected the notion that someone with experience of working with the media should be included in the Bill. However, I am glad that those skills are now at least to be considered as pertinent, relevant and—dare I say it?—important to the work of the membership of the council. Sooner or later we, the Government or someone else will have to bow to the inevitable; unless and until such skills are incorporated into the remarkable skills of the body that is being set up, this will continue to be a crucial, difficult and sensitive area.

I am grateful to the Minister for accepting my second amendment. It is terribly important for the criteria to be used for prisons, youth custody and community-based provision alike. Offenders have to be treated under the same heading and should not be approached differently. That is a positive move.

I said that I was going to speak to Amendment 89A separately, but I thought it was bang in the middle of this group. I had hoped that it would be possible to look at it separately, and I hope that is still in order. I beg leave to withdraw the amendment.

Amendment 80A withdrawn.

Amendment 80B not moved.

Amendment 81

Moved by

81: After Clause 111, insert the following new Clause—

“Sentencing guidelines: voting

The sentencing guidelines relating to a particular offence must specify whether the offender will be capable of voting at any parliamentary or local government election during the time he is detained in a penal institution in pursuance of his sentence.”

I shall speak also to consequential Amendment 82. Thanks to the fact that the Government have taken more than five and a half years not to come to a decision about prisoners’ voting rights, I and many others have had opportunities to raise the issue in your Lordships’ House. I did so in Committee and, in raising it again, as a retired soldier reflect that this delay has been as long as World War 2. I can only thank goodness that those responsible for waging that war did not adopt the same timescale over decision-making.

On Monday, during the remarkable debate initiated by my noble and learned friend Lord Lloyd of Berwick on extenuating circumstances related to murder, the noble Lord, Lord Clinton-Davis, advised the House that it was not a party-political but a common-sense issue. I feel exactly the same about prisoners’ voting rights, which is why I make no apologies for raising it again.

Perhaps I may remind the House of the timetable of the Government’s delay. In March 2004, following an appeal by John Gilbert, a prisoner, against an April 2001 High Court ban on sentenced prisoners voting, the European Court of Human Rights ruled that the United Kingdom Government’s automatic blanket ban on sentenced prisoners voting was in violation of European Convention on Human Rights, Protocol 1 Article 3. Here, I must declare an interest as president of UNLOCK, the National Association of Reformed Offenders, of which John Gilbert is a member. One year later, the Government appealed against that verdict but, in October 2005, the Grand Chamber upheld the European Court’s original decision. More than a year later, in December 2006, the Government initiated their first consultation on the subject, completed early in 2007. They said that they would complete consultation and propose a legislative solution early in 2008, one year later. In fact, it was not until two-and-a-half years later, in April of this year, that they published the findings of the first-stage consultation and, at same time, published a second consultation, protracted until the end September 2009. In the mean time, on 30 March this year, the Prison Reform Trust lodged a formal complaint with the European Committee of Ministers. On 5 June this year, that committee expressed,

“concern about the significant delay in implementing the action plan and recognised the pressing need to take concrete steps to implement the judgment particularly in light of upcoming United Kingdom elections which must take place by June 2010 at the latest”.

That committee resumes in December. In addition, there has been further condemnation from the United Nations Human Rights Committee, which has called on the UK to,

“review its legislation denying all convicted prisoners the right to vote in light of the Covenant”.

What I find so extraordinary about all this is that the European Court did not say that every prisoner should automatically be allowed to vote, but that the Government must legislate on which prisoners are to be denied the vote, and state why. I suspect that one reason for the delay is that the Government have got themselves into something of a muddle because, rather than asking which prisoners should not have the vote, the first consultation asked which ones should have it, which was the wrong question. Wrong questions result in wrong answers, from which sensible conclusions are less likely to be drawn.

Voting is not a privilege, nor a selective reward for those who have been judged morally decent by a Government, but a human right. Denying a prisoner the right to vote does not protect public safety and it is not an effective deterrent or a means to correct offending behaviour or assist in the rehabilitation of offenders, but it is an unjust additional punishment, imposed but not articulated by the court at the point of sentence, and bears no relation to the causes of crime.

I fully accept that there are people in this country who believe that prisoners should be locked up, the key thrown away, and all human rights, including the right to vote, denied. I also accept that allowing all prisoners to vote, including those sentenced for the most appalling crimes, may be a step too far for many people to accept. However, what I suggest in this amendment, as I have on previous occasions in this House and in my contributions to both consultations, is that the decision on who should be denied the vote should be taken out of the political arena and given to the sentencers, who are in a position to judge the circumstances of each case guided by the Sentencing Guidelines Council.

In other words, I am offering the Government a way out of their dilemma that is entirely in accordance with the direction of the European Court of Human Rights, the Grand Chamber and the European Committee of Ministers. My amendment seeks to encourage the Government to legislate that the determination of which crimes, or sentences, justify an additional punishment of being denied the right to vote should be both imposed and articulated by the court at the point of sentence.

If the Government adopted my amendment, it would be in line with a number of our European partners, of which 18 out of 51 impose no such ban. Many others, including France and Germany, ban only some sentenced prisoners. Only Armenia, Bulgaria, the Czech Republic, Estonia, Hungary, Romania and Russia, like us, continue to ban. It is of note that even China and Iraq, whose human rights records the Government have often condemned, allow their prisoners to vote.

That is the logic and the core of my case. Unfortunately, there is a subplot to the delay to which I feel I must draw attention, because it suggests that, rather than resulting from the possible muddle that I have indicated, it may actually be a deliberate decision by government. My suspicions that this may be so were aroused by an article in the Evening Standard on 8 October, which reported that Jack Straw, the Justice Secretary, was,

“opposed to changing the law”,

that is, on prisoners voting. It also reported that he was,

“understood to believe that there is no urgency to comply with the ruling issued five years ago … He plans to ensure there is no change ahead of polling day, expected next May”.

A source close to him was quoted as adding:

“‘Complying with European rulings that effectively grant extra rights is not as important as responding in other cases … We are consulting on this, but will not be rushing to make any decisions’”.

I am bound to ask the Minister whether this is a true reflection of the views of the Justice Secretary and therefore presumably of Government and, if so, whether any consideration has been given to what message such deliberate defiance of, or pick-and-mix attitude to compliance with, the law sends to the public, to prisoners imprisoned for taking a similar attitude or to officials who are meant to administer it. What would happen if everyone adopted the same attitude? I am no lawyer and do not know what the rules are in relation to them, but such an approach seems to me to be dangerously near contempt of the European Court of Human Rights, the Grand Chamber and the European Committee of Ministers.

Last night, I attended the launch of the second edition of a remarkable manual produced by the International Centre for Prison Studies, entitled A Human Rights Approach to Prison Management. The noble Baroness, Lady Kinnock of Holyhead, in her launching speech, reminded those present of the importance that the Government attach to human rights and that the first edition, which has become a bible for Governments and prison managers around the world, reflecting what she described as their enthusiasm for a set of standards based on a human rights approach, had been launched in 2002 by the then Foreign Secretary—none other than the same Jack Straw, who, seven years later, as Justice Secretary, is now denying their human rights to prisoners in his own country.

I understand that the Conservative Front Bench feel that an order allowing prisoners to vote would better come from the other place. I understand that view, but think that it would be even better if the Minister were able to accept my logic and agree to consider my amendment rather than reject it out of hand. After all, I am offering a solution to a situation which even he must admit has taken the Government an inordinately long time to resolve. I hope that the reasons he gives for the Government’s continued defiance of the law are neither electoral nor populist. As I said at the beginning, I believe that this is a common-sense and not a party-political matter. I beg to move.

After that Ciceronian speech by the noble Lord, Lord Ramsbotham, if he wishes to test the opinion of the House I would vote with him, but perhaps not with the usual enthusiasm with which I pass through the voting Lobbies. My own view has been consistent for a long time—that all prisoners should have the vote. I know that that view is not shared and that a lot of people do not believe that, but it is my view. The amendment before us is fully adapted to the situation that arises because of the decisions of the European Court, so there is a lot to be said for it. However, it does not go as far as I would want, which is not going to be possible today. The disadvantage of the amendment is that we do not know whether, in reality, a lot of prisoners will get the vote or very few will get the vote. It is not possible to draw a conclusion on that from this amendment. I do not say this in a pejorative sense at all, but the amendment gives us half a cake, and we do not know whether it is a big half or little half. In view of our situation with regard to the European Court judgment, I would support the amendment if the noble Lord wished to put it to the vote.

In accordance with the Liberal Democrat policy over a long time, we would support the noble Lord if he chose to take this amendment to the vote.

My Lords, I declare my interest as a partner in the national commercial law firm, Beachcroft LLP. I join the noble Lord, Lord Williamson of Horton, in paying tribute to a very impressive speech by the noble Lord, Lord Ramsbotham. As on a previous occasion, he seems already to have outlined what I was going to say before I have said it. However, I pay tribute to what appears an attractive solution to the currently stalled public debate on prisoner voting rights. His amendment would attach the voting rights, which may be allowed or denied, according to the crime committed and the sentence passed. On the face of it, that seems an elegant solution to the vexed question of prisoner voting rights, which is still to be settled following the ruling of the European Court of Human Rights nearly eight years ago. Although it will not satisfy the noble Lord, Lord Williamson of Horton, at least I can see the arguments that the noble Lord, Lord Ramsbotham, has put forward.

Our position, which the noble Lord has already kindly outlined, is that this must be a matter debated by the other place as fully as your Lordships’ House always appears to discuss important issues such as this. As we are talking about an extension of the franchise, or withholding that franchise from adults, this is very much a matter in which I strongly believe the elected Chamber must have its say. It was helpful that the noble Lord, Lord Thomas of Gresford, outlined his party’s policy. I concede that my party is not at present in favour of extending the franchise to prisoners. While my honourable friends in the other place would try to convince the other place that that opinion is correct, they must first be allowed the chance to do so. It is very much up to the Government to make time for that debate to take place. As other noble Lords have said, the ball is now firmly in the Government’s court. Of course, I do not deny the importance of this debate taking place in this House, but, as all noble Lords will be aware, although we will be sending the Bill back for consideration in another place, there will be nothing like enough time for a properly considered debate on this issue. For that reason, I make it clear that we will not be able to support the noble Lord should he push the amendment to a vote.

My Lords, these amendments provide for the replacement of the current provision on voting rights for convicted prisoners with a system by which a prisoner’s right to vote is determined by the court that sentenced them. As the noble Lord has reminded the House, the European Court of Human Rights in the case of Hirst has ruled that the current statutory prohibition on voting by convicted prisoners is in breach of the convention rights. In response to the judgment, which was delivered in October 2005, the Government undertook a two-stage consultation on this issue. The responses to the first stage consultation paper indicated that there was no great support for the option of allowing the sentencing court to decide on whether a prisoner retained his or her right to vote. This is being further tested as part of the Government’s second-stage consultation, which closed on 29 September this year.

The Government included in their recent consultation on prisoner voting rights one option that allowed judges some discretion in enfranchisement, in some circumstances. However, the Government’s policy is that enfranchisement of convicted prisoners should be linked to the seriousness of the offence that they have committed, through an approach based on the custodial sentence handed down. The removal of the right to vote pursues a number of intertwined aims designed to foster a healthy democratic society. The Government remain of the view that the right to vote goes to the essence of the offender’s relationship with democratic society, and the removal of the right to vote in the case of some convicted prisoners can be a proportionate and proper response following conviction and imprisonment. To this end, the Government proposed a number of policy options in the second-stage consultation paper that linked enfranchisement to sentence length. The Government are currently considering the responses to that consultation and will provide their fuller response in due course.

What the noble Lord proposes appears to envisage that the type of offence, or offences, for which a prisoner has been convicted should be the principal determinant of his right to vote. It is not based, as we have been proposing, upon the length of a prisoner’s sentence. It is the Government’s view that the sentence length best reflects the seriousness of the actual crime that prisoners have committed, as reflected in the length of the sentence that they have received from the sentencing court. In passing that sentence, the judge will in most cases already have been through the exercise of taking into account all the circumstances of the offence and those of the offender, and will have determined that not only is a custodial sentence the appropriate disposal, but also that its length will be not inconsiderable. An approach based on sentence length therefore provides clarity on the link between the seriousness of the offence committed and enfranchisement.

To follow the route towards prisoner enfranchisement that the noble Lord is proposing would invite a number of challenges, both in terms of policy and practice. We do not consider that the removal of the right to vote should be solely a matter for the sentencing court. The Government’s view has consistently been that it is for Parliament to debate and decide on the extent of the franchise and we continue to hold to that view. It is for this reason that the policy options set out in the recent consultation paper all allow for enfranchisement limited by sentence length. The Government are considering these options and their proposals will be fully debated by Parliament in due course.

In practical terms, there are a range of issues to be worked through, should an approach to enfranchisement based on judicial discretion be pursued. Consideration would need to be given to the operational impact on the courts, were this additional burden to be placed on them, and whether any transitional provision would be needed for those prisoners already serving sentences at the time that any new legislation came into force. But most importantly, there is a question of process to be considered. Given that the Government have not yet provided their full response to the second stage consultation, it would be premature to introduce legislation before we had the opportunity to give proper consideration to all the issues that an approach to enfranchisement based on sentencing, with or without a judicial discretion, will entail. A number of responses have been received to the second stage consultation and it is only right that we take time to consider those and reflect on our position before taking further steps towards enfranchising prisoners.

I thank the noble Lord for his Ciceronian—if that is the right term—speech and I will not try to match it or go into the chronology in any greater detail. I will touch briefly, however, on his quoting from the Evening Standard. For many years, the Evening Standard had a propensity to quote me quite regularly in my previous role, and the difference between what I had said and what was subsequently printed was often extremely wide. I urge the noble Lord not to take quotes in the Evening Standard too seriously. I can assure him that the Lord Chancellor does not hold the ECHR or the Human Rights Act in contempt and is fully supportive of the Act, the ECHR and all its provisions. I hope that the noble Lord, Lord Ramsbotham, will agree this approach and withdraw his amendment.

Before the Minister sits down, could he shed any light on why it has taken five and a half years to go through the process so far?

I do not feel that that would add to the issue of the debate. That is about the past and I have set out what we are doing now. I hope that will have the support of the House and that the noble Lord will withdraw his amendment.

My Lords, I am grateful for that. I am also grateful to those who have spoken and for the Minister’s reply. This issue will not go away and we shall no doubt hear about it on the Floor of the House on several more occasions until it is finally resolved. What disappointed me about the second consultation was that to start with, most of the questions were about the length of the sentence and not the seriousness of the offence. I deliberately coupled the two because I do not think that any one or either is necessarily the deciding factor.

I absolutely accept the points made about the franchise and where that should be decided. That matter must be taken into account and not ignored. The sensible thing to do at this stage is not to press the matter further, but to re-examine what has been said and, if the Minister and the Conservative Front Bench agree to consultations, consider carefully what one might do at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment 81 withdrawn.

Amendment 82 not moved.

Clause 115 : Sentencing guidelines: duty of court

Amendment 83

Moved by

83: Clause 115, page 69, line 30, leave out “follow” and insert “have regard to”

My Lords, the purpose of this amendment is to keep the law as it is now and has been ever since the Sentencing Guidelines Council was created in 2003—and indeed since long before that. Section 172 of the Criminal Justice Act 2003 provides that every court,

“must have regard to any guidelines which are relevant”.

Those are the words of my amendment and they represent the Government's view about the correct test as recently as six years ago. The question is whether anything has happened since 2003 to justify changing the law so soon. The existing test has been considered in a number of cases in the Court of Appeal, most notably in the case called the Queen against Oosthuizen 2006, 1 Criminal Appeal Reports (Sentencing), at page 385. In none of those cases has the test been found wanting, but more important by far, my noble and learned friend Lord Woolf said in Committee that the present test was working perfectly satisfactorily.

The question is: why are we being asked to change it now? That presupposes an answer to a preliminary question of whether we are indeed being asked to change the existing law, because different views were expressed in Committee on that matter. My noble and learned friend Lord Woolf thought that the new test would, if anything, give judges greater discretion. That was on 15 July at col. 1220 of the Official Report. On the other hand, the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, said or at least implied at Second Reading that the new test would give the judges less discretion—in other words it would make the test more robust. However, at col. 1223 of the Official Report of 15 July, the noble Baroness, Lady Linklater, said that she stood shoulder to shoulder with the noble and learned Lord, Lord Woolf. I am not sure quite how she will manage that but we will wait and see.

I asked the noble Lord, Lord Bach, the same question about where he stood. I asked whether he regarded the test as being more or less strict. His view was that the new test would be slightly stricter and he put particular emphasis on the word “slightly”. That reminds me of the answer supposed to have been given by the parlour maid when reprimanded by the lady of the house for having had a baby. She replied that yes she had had a baby but it was only a little one.

In my view, it is clear beyond any doubt that the new test is indeed stricter than the old one. That was the view of the Gage committee; otherwise it would not have proposed the change in the first place. The words “must follow … unless” something happens would look to any judge as if the burden of proof were being reversed. In any event, why would Parliament change the test unless it was intending to have some effect, presumably to reduce judicial discretion?

Going on from there, the question is whether the Government have made good the case for reducing the discretion of judges. The reason given by the majority of the Gage committee is that change was needed in order to provide the,

“necessary consistency, transparency and predictability”.

I will take each of those as briefly as I can in reverse order. On predictability, paragraph 9.4 of the report states that,

“effective planning for correctional resources requires significantly better … prediction of outcomes than currently is possible”.

That is all about building prisons. However, in paragraph 8.4, the report had already stated that,

“it is not possible for guidelines to control the prison population, as the prison population will depend on a number of factors, the most important being the number of offenders brought to justice and the profile of the crimes they commit”.

Quite so: even if the guidelines were made compulsory, it would not help us to predict the prison population next year, let alone in 2015 or 2020. It depends on far too many other factors, so we can forget about predictability.

Secondly, transparency, like accountability, is a current buzzword, but I fail to see how it has any application at all in this context. Thirdly, consistency is, of course, a desirable objective in sentencing, but absolute consistency is unobtainable, as we all know. Even within the guidelines, there will be cases that look inconsistent with each other, but which in fact will not be. I doubt whether changing the test on which cases can be taken out of the guidelines will make the slightest difference to consistency.

For those reasons, I, with great respect, disagree with the majority view of the Gage committee. I much prefer the reasoning of the minority, set out in paragraph 7.20. In particular, it makes the point that the 2003 guidelines should be given more time to bed down before we change the test. That was the point, we are told, to which many of the respondents attached great importance, and so would I. It is the point on which I know the Magistrates’ Association has expressed strong views. I hope we will hear about those from my noble friend in a few moments.

Judges and magistrates have been put under enormous pressure by the amount of recent legislation affecting sentencing. Since 1993 there have been no fewer than 56 separate enactments which bear on sentencing, all of which are set out in annexe B of the report. Sentencing has never been easy, as I know from my experience. It is now becoming a nightmare. Please, let us leave the present test as it is until the new sentencing council has come into existence and has prepared new guidelines. There will then be plenty of time to see whether the present test is working. I beg to move.

My Lords, I support these amendments, to which I have attached my name, having had concerns raised with me by the Magistrates’ Association. My noble friend Lord Tenby is unable to speak today, but in Committee he spoke eloquently about his concerns as a long-standing magistrate and a representative of magistrates’ voices in your Lordships’ House. In 2003 the noble and learned Lord, Lord Falconer, announced that the Government were to spend £4 million to recruit a more diverse magistracy. He described magistrates as the cornerstone of the justice system. However, surely by whittling away at the power of magistrates we risk devaluing their work and making it less attractive and more difficult to recruit to. Indeed, much of magistrates’ work has been taken away from them by the increase in the use of out-of-court settlements and penalties.

I apologise for not being present earlier in the debate. I was co-hosting a meeting for young people in Portcullis House. At that meeting, Moira Gibb, the chair of the Social Work Task Force appointed by the Government, spoke about social work and the dire lack of social workers. There is a 33 per cent vacancy rate in some London boroughs. She said that social work has become too mechanistic, with too much box-ticking and centralised control.

A recent authoritative report, the Cambridge Primary Review, said:

“Investment in primary education has risen dramatically and many recent policies have had a positive impact”.

It goes on:

“The principle that it is not for government or government agencies to tell teachers how to teach, abandoned in 1997, should be reinstated”.

The report calls for,

“top-down control and edict to be replaced by professional empowerment, mutual accountability and proper respect for research and experience”.

I submit that there is a pattern to this. There is a whittling down of the people on the front line who have experience and the ability to make judgments and take the best decision for the case in hand. That is all the more reason to support the amendments.

My Lords, we too have added our support to the first two amendments in this group, along with the noble and learned Lord, Lord Lloyd, and the noble Earl, Lord Listowel. For us, these are the key amendments. I echo much of what the noble and learned Lord has just said. Once again, we are greatly indebted to him for the initiative that he has taken in bringing forward this exceedingly important issue.

As has been pointed out, the drafting of the Bill instructs the court to follow any sentencing guidelines unless it is satisfied that it would be contrary to the interests of justice to do so. We are strongly of the opinion, already voiced, that the appropriate words should remain “have regard to” any relevant guidelines. It really is not right for the Government to seek to tie the hands of sentencers in this way.

I recall the debate in Committee. The Minister rather struggled to defend the change in emphasis from the position one would expect the courts to be in—of having to have regard to guidelines—to one where they must follow those guidelines. I think the Committee was of the view that the Minister had been unable to identify any real advantage in the Government’s approach. The Government have completely underestimated the strength of feeling on all sides of the House about their proposals. The Minister’s claim that judges’ independence would not be infringed by the wording being changed in the way that he proposed was not warmly received by noble Lords. I know now, thanks to the noble Earl, Lord Listowel, that the Magistrates’ Association is also up in arms over the wording of Clause 115. We should pay careful attention to that view.

At the conclusion of the debate in Committee, we suggested to the Government that they might wish to take advantage of the long Summer Recess to reflect on what noble Lords had said and come forward with their own proposals to ameliorate these two sentences in the Bill, which, to summarise, are widely seen as an assault on the independence of the judiciary. Sadly, they have not done so. We strongly believe that Amendments 83 and 84 ought to be adopted in place of the restrictive language for which the Government are presently opting.

My Lords, it is an unhappy situation to find myself not in total agreement with my noble and learned friend Lord Lloyd. I remember as a young barrister being led by my noble and learned friend. I regarded it as a privilege, and sitting behind him, as I do today, my natural instinct is to follow someone whom I regard as my natural leader. However, having thought about the matter with some degree of care, I urge your Lordships to see that there is common sense behind the proposed change.

We are, I think, all agreed that there is not a substantial difference between the two rival wordings. I submit that that is the situation because of the critical words that appear at the end of subsection (1):

“unless the court is satisfied that it would be contrary to the interests of justice to do so”.

Whoever is sentencing—whether it is a High Court judge or someone at one of the different levels below that, through the magistracy—is concerned about doing justice. It is critical that, when a judge sentences, he should, at the end of the process of reasoning that goes into sentencing, be satisfied that he is doing justice. A very important part of what is proposed in Clause 115 is that that exercise should be a two-stage process. The fact that it is done in a two-stage process is, in my contention, more likely to lead to a just result than if we merely state, “having regard to”. There are all sorts of things that a sentencer has to have regard to, but the reason why we now have a Sentencing Guidelines Council is that there should be meaningful guidance given by that council which, in the ordinary way, any sentencer should follow.

Consistency of sentencing is very important. The magistracy knows that, alas, in various parts of the country, there is a singular lack of consistency. You cannot deny that. It can be put down to local circumstances, but our view, and the view of the courts, is that sentencing throughout the jurisdiction has to be consistent. We have for that purpose a system of appellate courts. The purpose of the appellate courts is to achieve the necessary degree of consistency. We sit in the Court of Appeal day after day trying to achieve the appropriate degree of consistency. If there is too much variation and there is no reason in justice to justify variation, we interfere with the sentence. However, I am afraid that, today, all too often we find that that process of appeal has little practical effect, because so often the sentence passed and the sentence served differ to an inappropriate degree.

Does my noble and learned friend accept the view of the Gage committee that the test now proposed by the Government would reduce discretion and increase what was called the robustness of the test? Does he agree with that or not?

The position that I was going to come to is this: that whatever precise wording we have regard to, the practical consequences are the same. I would be prepared to accept what the noble Lord, Lord Bach, said in Committee: that this wording may be slightly more harsh. In my view, no judge would in fact come to any different conclusion because they had gone through the old process of “having regard to” or the new process urged here. I say that the new approach in the Bill is more likely to achieve the purposes of the legislation creating the Sentencing Council, which is there to produce the required degree of consistency.

If one is sentencing having regard to the terms of the clause, one first says, “Having regard to the guidelines, what is the correct sentence? In accordance with that, the sentence that I must pass is one that is in accord with those covered by the guidelines. However, if I am satisfied that it would be contrary to the interests of justice to do so, I will not pass a sentence which accords with the guidelines”.

It is very important to have in mind that we are talking about guidelines. They are not rigid rules but something which guides you. The way that the guidelines are drafted accords with what I have described in the majority of circumstances. I urge the House that that is an appropriate and sensible way of dealing with the matter, where judges up and down the country will know what to do and will get the necessary degree of guidance in accordance with the purpose of the guidelines in the legislation.

My Lords, I feel that I must speak, not only because my hero has just spoken but to defend myself against some accusations of inconsistency between Second Reading and Committee. I hope that I can defend myself adequately. With so many distinguished legal eagles speaking with such passion, knowledge and experience, to engage in this debate at all is at best presumptuous but, having spoken, I feel that I ought to return to the subject. I speak as a complete non-lawyer—perhaps non-lawyers have a voice in the matter—but I have some experience, both as a magistrate and as a children's panel member in Scotland. The framework for the Sentencing Guidelines Council seems to me appropriate and acceptable.

It is inevitable that many sentencers, especially those represented by the council of circuit judges and the Magistrates’ Association, will see this as simply an attempt further to curtail their judicial discretion. It is worth reminding ourselves that there are also very important voices—we have already heard one this evening—being raised in support of the formula. The Sentencing Commission Working Group is a highly distinguished body led by Lord Justice Gage, which proposed the key formula being debated now. In other words, these are guidelines—just guidelines—being drafted and approved by sentencers themselves.

The balance that is being struck is between the stricture that sentences must follow the guidelines and the caveat,

“unless … it would be contrary to the interests of justice to do so”.

That seems to me to represent a good balance between the need for consistency—a greater need today—and flexibility. After all, what can be more fundamental to any decision, as the noble and learned Lord, Lord Woolf, just said, than that it is in the interests of justice? Justice does not take place in a bubble, and judges’ decisions must also command the understanding and respect of the public and serve the interests of the community.

In Committee, I proposed a new clause setting out the purposes of sentencing, which included the primacy of the prevention of reoffending as a central guiding purpose. That is what really matters in our communities and is the means by which communities can judge our judges. At the moment, we have an uncontrolled rise in the size of our prison population, now at unparalleled levels, despite the fact that the number of people coming before the courts and being found guilty has remained almost stationary during the past 10 years. That reflects the increased use of custody as a disposal and demonstrates the failure of the system to prevent reoffending—particularly, and most worryingly, by young offenders. Is not the use of custody a key way in which we can all judge whether the interests of justice are being served? Does not the evidence tell us that those interests are manifestly not being well served at this time? Therefore, there is a real need to look again at our sentencing guidelines, among other considerations.

The hope for the future is that those interests will be better served, as the Sentencing Council will be required to make impact assessments of policy proposals and monitor their outcomes, so that the disasters of new legislation such as IPPs could well be avoided in future. That is an additional and welcome role for the council, particularly when the proposals throughout this section of the Bill are clearly seen as a means of depoliticising the sentencing process. Of course, custody rates are influenced by a variety of factors—not least what alternatives to custody exist, properly resourced and available to sentencers, which is still a distant dream—but it remains the case that legislative changes and sentencing practice are at the heart of things.

However, as I said earlier, the need for consistency and comprehensibility is vital in the interests of good decision-making and the confidence of the public. Consistency has been described as the holy grail of sentencing, and we are still a long way from achieving this, even when the facts of individual cases are taken into account. The figures published by the MoJ on offenders found guilty and receiving custody range from 6 per cent to 16 per cent in magistrates’ courts, and 45 per cent to 68 per cent in the Crown Courts. More worryingly, the YJB figures for children showed even greater differentials in the use of custody, with Liverpool at the top end at 18 per cent, Birmingham at 8 per cent and Newcastle at the bottom at 2.1 per cent. Those areas are viewed as similar, and such inconsistencies are not explained away by the differences in individual cases.

I am afraid that Thomas on sentencing has not succeeded in ensuring consistency, despite his massive volumes. Using the phrase “must follow the guidelines” will reassure those in the community of the expectation of the consistency of the process. This is an outcome that sentencers should welcome, whereby they have all the flexibility that they need through the caveat that the interests of justice are being served at all times. This wording builds on the well established work of the Sentencing Advisory Panel and the current Sentencing Guidelines Council, and was proposed by Lord Justice Gage’s working group. It is echoed by other sentencing councils in other parts of the world. The council has also built in the additional flexibility of reviewing and modifying its advice in the light of experience over time. Nothing is set in concrete.

I do not believe that those who resist so eloquently this part of the Bill have anything to fear. Indeed, we should be confident that experience will show us that the interests of justice will be better served. I am still shoulder to shoulder with the noble and learned Lord, Lord Woolf.

My Lords, this has been a fascinating debate and an extremely difficult issue has been discussed. The Government are seeking to make a change to existing judicial practice in sentencing. I should be greatly helped if the Minister were to say with great particularity what, if anything, in current judicial sentencing practice they have found to be less than satisfactory, and what they seek to secure by making this change in established wording.

I approach the question with an instinctive dislike of anything that seeks or appears to seek to limit judicial discretion. The present Government have not been diffident in coming forward in recent years with proposals to do that in one respect or another. Do they expect there to be some limiting of judicial discretion by this proposed change of wording? If not, what do they expect to be achieved? As we have heard from the noble and learned Lord, Lord Lloyd of Berwick, there are conflicting and opposing interpretations of this new wording. Which do the Government favour? Will it narrow or widen the discretion of the judges?

My Lords, the noble Lord, Lord Bach, in a letter to Lord Kingsland on 8 July gave some idea of the Government’s intention with this proposal. He said that,

“the intention of guidelines is to produce starting points from which sentencers can then consider the individual factors of the case rather than provide the appropriate final sentence after those factors are considered”.

That has to be absolutely in the forefront of the Government’s intentions, whereby they are doing no more than providing a starting point. The noble Lord went on to say that,

“the clause has been re-drafted to make clear that the duty to follow guidelines does not mean a sentencer has to sentence within a narrow category; rather the sentencer is required only to sentence within the entire guidelines range for the offence—unless it is in the interests of justice to depart from the entire guideline”.

Again, there is a clear statement from the Government that these guidelines do not operate as too narrow a constriction upon the judge.

Inconsistency of sentences is always there, and you will never get rid of it. I remember that, in my youth, if I appeared in a magistrates’ court in the mining areas where I lived, the shooting of pheasants was not considered a serious matter. However, you had to go only 10 miles down the road to the rural district of Maelor where the local Lord—a Member of this House—was the chairman of the Bench and you would be lucky not to be taken outside and shot. We have moved on a little since those days.

I remember the provisions for suspended sentences which were introduced by my late noble friend Lord Jenkins of Hillhead when he was Home Secretary in 1966. They were operated successfully until a particular Government—I will not say who—decided that they had gone too far and that suspending a prison sentence should not happen unless it was in the interests of justice. That had a chilling effect on sentencers at that time, and it became extremely unusual to achieve a sentence of imprisonment’s suspension. That operated until, I think, 2000, when suddenly it was decided that suspending sentences was rather a good thing and that it should be reintroduced and used more widely. That is the position now.

However, when I was looking at this topic, I saw what the late Lord Jenkins had said, and it should be stuck up in the Home Office somewhere. He said:

“The main range of the penal provisions of the Bill”—

the 1966 Bill—

“revolves around the single theme, that of keeping out of prison those who need not be there. I approach this from two separate but convergent directions. First, the overstrain upon prison resources, both of buildings and men, is at present appalling. The prison officers are bearing a very heavy burden indeed. Without a comparable increase in buildings or staff, the prison population for all establishments has increased from 11,000 in 1938 to 29,000 in 1964 and to nearly 35,000 today”.

We have much more than double that prison population today. What were the effects of that? Roy Jenkins continued:

“Such numbers, many of them in for very short periods, make it extremely difficult for the essential custodial and rehabilitative task for men serving sentences of more than a few months to be performed. They militate against effective security and also against the development of properly organised prison work, with something like a full working week, a direction in which I regard it as most important for us to move quickly.

Even if these considerations did not exist, even if—a most unlikely hypothesis—we had limitless resources of officers and buildings for use in the prison service, I would still take the view that a prison population as big as our present one defeats its own ends—and defeats it by frittering away the deterrent effect of a prison sentence.

I want to keep this deterrent effect a sharp instrument. But by using it too freely—by getting too many people used to prison too easily—we blunt our own armoury”.—[Official Report, Commons, 12/12/66; cols. 64-65.]

That was a Labour Home Secretary in 1966 who was putting forward the philosophy which we on these Benches have followed at all times.

I have confidence that the sentencing guidelines produced by the new council will have some effect of depoliticising imprisonment and punishment. That is what I hope will happen. The reason why we have ratcheted up the number of prison places from 35,000 in 1966 to 85,000 today relates to political pressures and listening to the media, as my noble friend Lady Linklater pointed out. There was a ratcheting up and things need to be calmed down.

The noble and learned Lord, Lord Woolf—I can beat him, as I was the pupil of the noble and learned Lord, Lord Lloyd, not his junior—in his chairmanship of the existing council did a great deal to get the political element out of sentencing. I hope that the new Sentencing Council will do the same. I also hope that, instead of prison sentences inexorably getting greater, they will come down. If they come down, I will be the first to say that judges should follow the guidelines. We should not expect the Sentencing Council to put up prison sentences. I hope that the council, which comprises practitioners and people from a number of callings, will steady the ship and calm the whole thing down. For those reasons and only for those reasons, as I have the greatest sympathy with the amendment moved by the noble and learned Lord, Lord Lloyd, we feel that we can support the Government on this matter.

My Lords, Amendments 83 to 89 return our attention to the duty on sentencers to follow guidelines. The amendments would revert to the current test, contained in the Criminal Justice Act 2003, so that sentencers need only “have regard to guidelines”.

In Committee, I set out in some detail the flexibility that government amendments have introduced into the duty to follow guidelines. With the indulgence of the House, I do not intend to rehearse those changes in detail again this evening. However, I have to say on behalf of the Government that I cannot agree with the contention that the duty to follow guidelines as set out in the Bill is unduly restrictive of judicial discretion and in any real way affects the independence of judges, whether they be judges in the higher courts or magistrates in the lower courts. That is simply not borne out by the contents of the clauses.

There is no duty to follow, for example, a US-style, narrowly defined grid, because there is no grid. There is no duty to sentence within the subdivided ranges of a guideline. There is no duty to sentence even within the entire range of the guideline if—this has perhaps not been referred to enough in this debate—it would not be in the interests of justice to do so.

The ranges in existing guidelines are wide—zero to 12 years’ custody in the case of robbery—and with the important opt-out in the interests of justice. I do not believe that this can be considered unduly restrictive; I cannot believe that any member of the public looking at this would consider it unreasonable or would consider that it could lead to injustice.

I listened with great interest to the speech made by the noble Earl, Lord Listowel. I cannot agree with his contention that the discretion that magistrates have in sentencing will somehow be unduly restricted by the duty to follow guidelines. As the noble and learned Lord, Lord Woolf, said, guidelines are not rigid rules.

I have on a number of occasions during our debates quoted from the current sentencing guidelines for serious offences in the Crown Court, but I could also have illustrated the range of discretion with examples of sentencing guidelines for magistrates. The magistracy benefits from having a comprehensive set of guidelines covering most offences dealt with in a magistrates’ court. The discretion within those guidelines is wide. For example, the guideline for failure to surrender to bail ranges from a fine to a community order to an immediate custodial sentence; for actual bodily harm, it goes from a community order to 24 weeks’ custody to being sent to the Crown Court for sentence. The duty to follow guidelines is to sentence within those overall ranges. Of course, the magistrates can depart from those ranges if it is not in the interests of justice to follow the guidelines.

In Committee, I was asked, as we have heard, whether I thought that this test was more robust than the current requirement only to have regard to guidelines. The noble and learned Lord, Lord Lloyd of Berwick, quoted me correctly as saying that it was “slightly more robust”. Whether that puts me in the position of the parlourmaid or not, I am perhaps not best to judge. “Slightly more robust” means that this is a small change; indeed, it is the evolutionary approach recommended by the majority of the Gage working group. We think that it is a change worth making. It is also entirely in keeping with the approach that we have taken to the other Sentencing Council provisions.

These provisions are based on the recommendations of the independent working group chaired by Lord Justice Gage. The working group made it clear that it was recommending an evolutionary approach rather than a revolutionary one. Its recommendations were based on, and build on, the existing guidelines system. It recommended changes only where they would improve the current system.

This is not change for change’s sake. It is not a case of, “If it ain’t broke, don’t fix it”. The Gage working group recommended a more robust test because it wanted to achieve greater transparency and in particular—I rely on this heavily—greater consistency in sentencing. The working group conducted a survey of 10 Crown Courts for one month in 2008. It found that in a significant number of cases—46 per cent of cases sampled, excluding burglary—sentencers imposed a sentence outside the guideline range for the level of offence seriousness described; that is, they sentenced outside the subdivided range that was identified as closest to the offender’s offence. There is no question but that the Gage working group was concerned about the lack of consistency that is sometimes shown in sentencing in our courts, to which the noble and learned Lord, Lord Woolf, referred.

Greater consistency is an aim that I think the House will share and strive to promote, although we do so by making some modest adjustments to the tiller. The duty to follow guidelines, with the discretion that that allows, is evolutionary; it is an evolution of the existing test for that purpose.

There is no doubt that the Lord Chancellor rightly guards the independence of the judiciary. Everyone understands the important role that judicial discretion plays in this country in ensuring that justice is done to the individual offender. However, criminal justice policy touches on other issues, as well as those of maintaining necessary discretion. Frankly, unjustified disparities in sentencing and inconsistency are damaging to confidence in the idea of justice that is so important to society.

We think that there should be properly constituted guidelines and that these guidelines should be followed where it is appropriate to do so. We should not lose sight of the fact that guidelines assist sentencers at every level of the judiciary. They assist the magistrates and the recorders, who do not sentence every day of their lives, and they help to develop consistency across the professional judiciary. The fact that sentencers follow guidelines, explaining when they have or why they have not, increases transparency. That in turn can increase the public understanding and confidence in sentencing that is at the heart of a criminal justice system that works.

Professor Andrew Ashworth from the University of Oxford, in his response to the Gage working group’s consultation paper, sets out why guidelines are important and should be followed. He states:

“The rule of law requires that, so far as possible, the court should follow the relevant principles and guidelines, using its judgment to apply them to the facts of the case. Thus the guidelines should always be the starting point. The statutory phrase, “have regard to” is not sufficiently powerful to convey this, inasmuch as it may be taken to suggest that the court’s obligation is to give consideration to the guidelines and nothing more. A formula should therefore be found that ensures that the court applies the guideline, in the sense of starting from the sentencing guideline, but which allows the court to depart from the guideline for good reasons”.

His conclusion is:

“The time has surely come, after nine years of the Sentencing Advisory Panel and four years of the Sentencing Guidelines Council, to consider strengthening the statutory formulae”.

We agree with that conclusion. The provisions in Clause 115 build on the current system, creating a more robust test. It may not be a radical departure, but it remains a change worth making.

The noble Lord, Lord Hunt of Wirral, accused me of having no friends—he called me “Johnny No Mates”—when I argued the case in Committee in July. I almost felt sorry for myself. However, I am not without friends tonight, whatever the position was then. In fact, I have friends in high places—among them the noble Baroness, Lady Linklater; on this occasion perhaps to a lesser extent, if that is fair, the noble Lord, Lord Thomas; and, of course, while I do not want to embarrass him, I have the support of the noble and learned Lord, Lord Woolf, who has such experience in this field and commands the respect of the whole House. If noble Lords do not listen to me, they should listen with great care to what the noble and learned Lord says in moderate support of this measure.

I ask the noble and learned Lord, Lord Lloyd, to reconsider the amendment in the light of the changes that the Government have made, and in the knowledge that sentencers will continue to have independence and the ability to sentence as justice requires. “As justice requires” is central to our system, and is one of the matters that the Bill introduces.

My Lords, I am very grateful to the noble Lord. At the beginning of his response, he said that it was no part of the Government’s intention to threaten the independence of judges. Of course it is not—the independence of judges will remain as it has always been. The question is whether the Bill reduces the discretion of judges in sentencing. It is clear from everything that has been said, even by the Minister, that it will reduce the discretion of judges. That was the view of the majority of the Gage committee—otherwise they would not have made the recommendation that they did, which has been followed by the Government.

The Government have not made a case for changing the existing practice of judges in having regard to guidelines. The noble and learned Lord, Lord Mayhew, put his finger on that critical point. The case has not been made, and certainly not at this time, with the new council just coming into effect. Let us look at it again in a few years if we must—but not today. I wish to test the opinion of the House.

Amendments 84 and 85 not moved.

Clause 116 : Determination of tariffs etc

Amendments 86 to 89 not moved.

Clause 117 : Resource implications of guidelines

Amendment 89ZA

Moved by

89ZA: Clause 117, page 71, line 43, leave out “demand for” and insert “resources required for the provision of”

Amendment 89ZA agreed.

Consideration on Report adjourned until not before 8.55 pm.