House of Lords
Thursday, 9 February 2012.
Prayers—read by the Lord Bishop of Chichester.
House of Lords: Membership
My Lords, in line with the coalition’s programme for government, the Government are working towards the objective of creating a second Chamber that reflects the share of the votes secured by the political parties at the last general election.
Oh. [Laughter.] My Lords, on 24 January, the Leader of the House said:
“There is no plan to pack the House with at least 60 government supporters. It would look absurd and it would be absurd”.—[Official Report, 24/1/12; col. 919.]
Given the Answer that he has just given to my Question, does he agree that it is doubtful whether he could find a single Member of this House who thinks that increasing its number is a good idea, both on grounds of cost and of making this House look even more absurd than it does with an increase in numbers? I ask the Government to think again about this stupid idea.
My Lords, the noble Lord can ask whatever he wants, but the Government’s position is the one I outlined in my original Answer. It is up to the Prime Minister, as it has been up to previous Prime Ministers, to decide whether he wishes to make more Peers. It is widely known that a draft Bill to reform your Lordships’ House is before a Joint Committee that may well turn into a Bill in the next Session of Parliament. But in any case, since the general election a number of deaths have sadly been recorded among your Lordships, which means that there has been a reduction from the high reached earlier on. Even if my right honourable friend the Prime Minister were to replace the number of Peers who have died, we would not be at the all-time high we saw recently.
My Lords, I cannot declare an interest as I speak from the Benches whose number is fixed. However, I would like to ask the Leader of the House to reflect upon what he said about the principle of the balance in relation to the very important role played by the Cross Benches in this House. Their relative influence could be changed significantly if the House were to be increased in size in the way he mentioned. Does he agree that an important question of constitutional principle is at stake here?
It is good to hear the right reverend Prelate speak in support of the Cross Benches of which I, too, am a great supporter. That is why I have consistently opposed the idea of a 100 per cent elected House. Indeed, I am also a supporter of the role of the right reverend Prelates. They make a substantial contribution to the workings of the House. I do not think that the proportion of the Cross Benches has changed very much over the course of the past 10 years. We know of the tremendous contribution they make, not just in votes in the House but also in making speeches, and I do not think it is planned to change that proportion under the current system. But if a Bill is put before Parliament, of course everything will be up for grabs.
My Lords, whose comments better reflect a mature and reasoned understanding of the challenges attending reform of the House of Lords? Are they those of the president of the Liberal Democrats, who has likened your Lordships’ House to the tyrannical Syrian regime, or those of their leader, Nick Clegg, who has described your Lordships as an “affront” to liberal democracy?
My Lords, it was the former Prime Minister, Tony Blair, who originally coined the phrase “an affront to democracy” in relation to the House of Lords, so my right honourable friend is certainly not the first to say that. I am not responsible for what the president of the Liberal Democrats has said, but perhaps he should wander up the corridor from the House of Commons and see the real work that is done in this House, not least of all by my colleagues and friends who represent the Liberal Democrat Party here.
My Lords, could my noble friend help me by explaining the logic of a Government’s policy which seeks to reduce the size of the House of Commons in order to save public money while greatly increasing the size of the unelected House of Lords? Would I be cynical in thinking that this is an attempt to discredit this House in order to justify their plans for abolition?
No, my Lords, my noble friend would, unusually, be quite wrong in thinking that. The plain facts are, first, that the House of Lords has, in its relatively recent past, been considerably larger than it currently is and, secondly, that it is widely known and understood, which I think allows me to make this point one more time, that the House of Lords is incredibly good value. The cost per Peer is considerably smaller than that for Members of the House of Commons or indeed for Members of the European Parliament.
My Lords, since the election, the coalition Benches have swollen by 71 Peers —who are very welcome, of course—and my own Benches have been increased by 39. Does the rumoured rise in the number of coalition Peers have anything to do with the fact that the Government have lost 33 votes in this Session of Parliament?
My Lords, the fact that the Government have lost 33 votes in this Session of Parliament simply indicates that the House of Lords is doing its work extremely well in suggesting changes to our well thought through legislation and asking the Government and the House of Commons to think again. The fact that the House of Commons does not always agree with the wisdom of your Lordships is its constitutional right. As for balancing out the numbers, it is again a well known fact, which I know noble Lords opposite do not like, that the Labour Party is for the first time ever the largest political group in opposition in the House of Lords. It does a very effective job. The coalition, meanwhile, still makes up only 37 per cent of the House. This is not a majoritarian House.
My Lords, since the Government have indicated that their current intention is to reduce the size of this House by about half, does it follow that those who are to be appointed before that happens are being told that they are being appointed for life, or for a period of years until the Lords’ structure is changed?
My Lords, I do not know what the noble Lord, Lord Jay, will be telling new Peers coming through the Appointments Commission, but certainly the Prime Minister is not telling anybody anything. [Laughter.] That is because he is not appointing any Peers just at the moment. A peerage is for life, but it does not necessarily give a right to sit and vote in Parliament. That is the difference.
Charles Dickens: Bicentenary
My Lords, Her Majesty’s Government are always delighted to fund and support different institutions and events celebrating the life and work of Charles Dickens, not only in this bicentenary year but at any time. This year includes special programmes with the BBC, the British Council and a number of our museums such as the V&A—there are so many that I dare not recite them all in these few minutes.
I thank the Minister for her reply. I must admit that I was hoping for a more imaginative response from DCMS, but I know these are hard times. I did not have great expectations. I suggest that a Dickens day in schools would not be a bad idea. I, too, pay tribute to the BBC, which has given us great value for money recently in both TV and radio adaptations. There are also the Royal Mail’s commemorative stamps. I was privileged to attend the Abbey ceremony. I am not sure that Dickens would have thought that particularly appropriate, but I hope the Minister will join me in paying tribute to Dickens’s role, including as a great parliamentary reporter. He reported on the Great Reform Bill of 1831. I am not sure what he would have thought of the Welfare Reform Bill. This would be a bleak House if we did not put on record our acknowledgement and tribute to Dickens as one of our greatest writers.
My Lords, the noble Lord, Lord Young of Norwood Green, was clever to have put down this Question this week in the 200th year of Dickens’s birth. I know that the noble Lord is a Dickens aficionado—as we have heard. DCMS is delighted with any new ideas, especially by examples as inspired as the noble Lord’s suggestions. Of course we join in the tribute to Dickens as a great reporter. Some noble Lords may have read that the Secretary of State gave a Dickens novel to each Member of the Cabinet on Tuesday. Where possible, the book was linked to their ministerial brief. I thought that was a wonderful idea and one very close to my heart.
Did the Prime Minister get Bleak House?
My Lords, Mr Twemlow in Our Mutual Friend expressed his opinion that the House of Commons was “the best club in London”. Will my noble friend consider instituting a prize for the best contemporary Dickensian description of your Lordships’ House?
My Lords, Dickens referred to this House when he was a reporter here as,
“a conglomeration of noise and confusion”.
It probably continues to be so. As Matthew Parris wrote, the culture of our country is its heartbeat. Who more exemplifies that than Charles Dickens? Can the Minister confirm that the cultural education review due to be published this month will call for a national plan for cultural education and that the coalition Government will celebrate Dickens’s bicentenary by putting into practice the teaching of creativity at the heart of the educational curriculum?
My Lords, my noble friend Lady Bonham-Carter brings up a very good point. We are committed to encouraging wider reading. I am sure that we will include in the culture education review that is about to come out the various points that she brought up. The Secretary of State for Education has talked frequently about the importance of encouraging children to read books. It is often said that those who read well-written books usually achieve better standards. Dare I quote from Dickens, as everyone has done?
“No one who can read, ever looks at a book, even unopened on a shelf, like one who cannot”.
That is from Our Mutual Friend.
My Lords, would the Minister agree with me that the film and television industries, which have developed in the past 100 years, would have been pretty stuck for content, had it not been for the works of Charles Dickens? Would she encourage her ministerial colleagues to put some pressure on BAFTA to nominate Charles Dickens for a posthumous fellowship?
My Lords, does the Minister recall that I raised the issue with her a few weeks ago that, in this Diamond Jubilee year, it would be appropriate for a gift of a Dickens novel to be given to children throughout the country? When I subsequently wrote to her and had a brief conversation, she said that she would look at ways of trying to promote private sponsorship of such a project. Has she been able to make any progress in that regard?
West Bank and Gaza
My Lords, we are examining closely the agreement of 6 February between Hamas and Fatah on what is described as a technocratic Government of consensus. It is important that any new Palestinian authority be composed of independent figures, commit itself to non-violence and a negotiated two-state solution and accept previous agreements of the PLO. We have been consistently clear that we will engage with any Palestinian Government who show through their words and actions that they are committed to those principles.
Would the Minister not agree that the action by Israelis in arresting so many politicians from Gaza is hardly helpful to the process? As we debated last night, we all have to be careful about counterproductivity, which makes the achievement of serious negotiations more difficult. Is it not therefore essential to bring home to our American colleagues—and, indeed, very much to Israel—that if we are serious about negotiations, nothing must be done to undermine the momentum that will be necessary, and too many preconditions will not help. The best commitments, as we saw in Northern Ireland, arise out of the process of negotiations in which common agreement is forged through argument and persuasion.
Yes, to the noble Lord’s second observation. As to his first, about arresting MPs, we are concerned about the recent arrests of the Speaker and other Members of the Palestinian Legislative Council in the West Bank and east Jerusalem. EU heads of mission in Jerusalem and Ramallah issued a statement on 28 January outlining their concern. We have also instructed our embassy in Tel Aviv to raise this with the Israeli authorities, and we continue to monitor that situation closely. It is a matter of concern.
Is the Minister aware—I am sure he is—that this is the third Question that we have had on Gaza in 24 hours without being able to place this issue in context and without examining the connection of Hamas to Iran—and to Syria, where such terrible things are happening? The House has not had the chance to see this in context; we have not debated the shifting allegiances in the Middle East and the terrible crises. It is no good scratching at one spot when the whole body in the Middle East needs examination by this House, and soon.
I am acutely aware that we have dealt with this particular issue three times in the last 24 hours, including a very interesting but short debate last night. I think it was President Obama who said that his advisers told him that when it comes to the Middle East, everything is connected to everything else. The noble Baroness is quite right that we need to look again and again not merely at the particular issues that we are examining now but at the broader context of how the Iranian threat, the tragedy in Syria, the instability in Iraq and the problems of the Arab uprising and the Arab spring all link together, as they do. I am sure that noble Lords and the usual channels will think of ways in which we can have a further debate on that broader issue. I am very happy to participate at any time when I am required.
That is certainly correct. Indeed, as I said in my opening Answer, that is one of the conditions in which we would recognise that if Hamas has changed by renouncing violence, and a new Government are formed, we would change our attitude to it. However, these conditions are important and we obviously cannot negotiate unless they are accepted.
My Lords, to follow up the question from the noble Baroness, Lady Deech, is not the context in which Palestine now exists—one thinks of the forthcoming elections in a few months—that Israel is in military occupation of a large part of the West Bank, is continuing to colonise the West Bank and east Jerusalem at an alarming rate, and is attempting always to divide and rule the Palestinians by every possible means? What will we do about it?
I am not sure that I share every nuance of my noble friend’s analysis, but it is certainly not in Israel’s interest to practise manoeuvres to undermine and delay the negotiations by the divide-and-rule process. We now have to watch what is going to happen next, to see whether this Government of consensus will work—we will judge them by their deeds—and to see how the pressure of enlightened Israelis, both in their Government and internationally, can bring them to realise that they will then have a body with whom to negotiate. We also have to see how the talks now going on in Amman, in Jordan, progress. We are putting a great deal of effort, as are other countries, into seeing that progress is made there.
My Lords, the Minister has already rightly recognised the interconnectedness of everything in the Middle East. I have this morning had an e-mail from the Bishop in Egypt, who writes:
“Egypt is undergoing a very … difficult time. It looks as if the country is experiencing labor pains which may end up by the birth of a new baby, a new democratic Egypt. But it could … be the pains prior to a stillbirth, or an abortion”.
Does he agree that in this context it is really important to do everything possible to encourage rather than diminish confidence in the democratic process, particularly among the Palestinians, and that this is closely linked to the willingness of the international community to recognise and uphold the outcomes of such a democratic process?
The right reverend Prelate speaks with great wisdom. This is obviously the aim; it is certainly the aim of the United Kingdom. We make our contribution through a variety of ways: obviously through the EU and the quartet, bilaterally and in every other way. However, the principles he describes are right and will have to be upheld with great vigour, because clearly there are people operating in the whole turmoil and mélange of the Middle East uprisings who are not so interested in democracy. These people have to be outfaced.
The Minister said in answer to an earlier Question that our attitude towards any arrangement between Gaza and the West Bank would be whether the Administration could be seen, in deeds and not just in words, committed to a two-state solution. Can he offer any evidence whatever that, on the other side of the equation, the Israeli Government are in any way showing by deeds, not words, their commitment to a two-state solution?
The noble Lord is quite right to point out the need for symmetry. When one sees that illegal settlements continue, there is obviously a danger if not of despair then of recognising that the goal of the two-state solution is not as fully accepted on the Israeli side. We must work to change that. Many people, in Israel and outside, see that a solution lies in this direction for better peace and stability for the people of Israel, for an end to their security problems and, of course, for better peace and stability for the Palestinians.
My Lords, the rapid response of UK humanitarian aid to mitigate the impact of the crisis in the Sahel will reach 68,000 children in Niger, Chad and Mali, and provide livestock support for 30,000 families. The Government are also lobbying other donors to provide funds to help ward off a disaster.
I thank the Minister for her Answer. The European Union said yesterday that alarm bells are ringing in this area, with 12 million people potentially affected by food shortages and five countries having already declared an emergency, including four of the poorest countries in the world. Just last month Oxfam and Save the Children reported on the recent famine in east Africa. In their report they said that it was important to manage the risks, not the crisis, and to pre-empt famine more quickly rather than react afterwards. Have the Government learnt some of those lessons, and will they lobby internationally for action to ensure that the international community reacts more quickly in this case than it did in the east over the past 18 months?
The international community is, I think, indeed learning these extremely important lessons about acting quickly. The severity of the problem is recognised and the early warning systems that were in place have picked up the absolute necessity of acting rapidly to try to deal with this crisis. The early mobilisation of funds is happening and it is encouraging to see that shift, although we should not be complacent.
My Lords, does my noble friend agree that that region is, unfortunately, becoming an extremely dangerous area? It includes mercenary elements who worked for Colonel Gaddafi and are now operating in the region. Significant elements of al-Qaeda and associated bodies may have moved to the region, and the very serious terrorist attacks in northern Nigeria are not unconnected with some of the problems there. Is the African Union considering how it will tackle the humanitarian situation? The security issues there are critical.
The noble Lord is right: the fighting in the region has been exacerbated by the cash, weapons and soldiers that have come from Libya following the fall of Gaddafi, overlaying this humanitarian crisis and making it much more dangerous for people to be working in the area. It is therefore extremely important, as the United Nations analysed recently, that a vacuum is not created for others to come into. The international community is acutely aware of that and the AU is being given technical support.
My Lords, what response has there been to the appeal by the International Development Secretary to take steps in addition to those that have already been taken by the Government of this country and by the European Union to avert the possibility that 6.8 million people in the Sahel may starve? Are any steps being taken by the international community to bring to an end the conflict in northern Mali that has led to the displacement of some 50,000 people in an area where, according to the ICRC, there is a threat of a major crisis of food availability after a very poor rainy season?
The international community is acutely aware of all the problems right across the region. One of the lessons from west Africa has been, as the crises that have happened there and across the region generally have shown, that you have to pick up the early warning signs of increasing food prices as well as food shortages. The displacement of people from Libya, as I just mentioned, and problems spilling over from Nigeria contribute to this problem. I am pleased to say that the EU is very much taking a lead in this area. The meeting yesterday shows that there is a lot to be done but there are encouraging signs that actions are being taken.
My Lords, the Minister has acknowledged that the struggling countries of the Sahel are now facing the fallout from the crisis in Libya. Hundreds of thousands of migrants have returned from Libya; communities have lost the income from remittances on which they depended; and huge caches of very sophisticated weapons, which were previously in the Libyan arsenal, are now flowing into the Sahel in the hands of ex-combatants. Would the Minister clearly outline the involvement of the UK, together with the EU and, very importantly, with the UN and regional bodies, in the efforts that need to be made to deal with this growing humanitarian and security problem?
This is currently very high on the UK’s agenda and those of the EU and the UN. There will shortly be a debate on this in the UN, as the noble Baroness probably knows. I spoke to relevant officials this morning and I can assure the noble Baroness that they are acutely aware of the problem of the weapons there. As she says, people have come back who are no longer sending remittances home and themselves need to be supported.
My Lords, the Minister has given the House the welcome news that the British Government are providing 68,000 children with food aid. Did she see UNICEF’s report last week, which said that 1 million children in the Sahel region are at risk of immediate malnutrition? How are we directing our aid, particularly towards the children who are at risk at this time?
UNICEF is supported by DfID, as the noble Lord knows. As I mentioned, the United Kingdom is working bilaterally but it is also working multilaterally through the EU and a number of NGOs, and is acutely aware that there are 1 million children at risk.
Arrangement of Business
Announcement of Recess Dates
My Lords, my right honourable friend the Leader of the House of Commons is making a Statement on the sittings of the other place up to their return in January 2013. It may be for the convenience of the House if I now do the same.
The House already has the recess dates up to and including our return from the Summer Recess on 8 October. Naturally, those dates remain subject to the progress of business, but I should like to reconfirm my earlier intention that, all being well, the House will not sit in September 2012. I hope to provide a long weekend this November. We will probably rise at the end of business on Wednesday 14 November and return on Monday 19 November. We will rise for Christmas at the end of business on Thursday 20 December and return on Tuesday 8 January 2013. I hope the House will accept that this is something of a long-range forecast. I stress, as ever on these occasions, that all these dates are subject to the progress of business.
Local Digital Television Programme Services Order 2012
Wireless Telegraphy Act 2006 (Directions to OFCOM) Order 2012
Motions to Approve
Legal Aid, Sentencing and Punishment of Offenders Bill
Committee (9th Day)
Relevant documents: 21st Report from the Constitution Committee, 22nd Report from the Joint Committee on Human Rights, 21st and 22nd Reports from the Delegated Powers Committee.
178: After Clause 83, insert the following new Clause—
“Right to appeal bail decisions
(1) The Bail (Amendment) Act 1993 is amended as follows.
(2) After section 1 insert—
“1A Appeal against a bail decision
(1) The prosecution may appeal to a judge of the High Court against the decision of a Crown Court to grant bail in a case where a person is charged with or convicted of an offence triable on indictment.
(2) Subsection (1) applies where the prosecution is conducted—
(a) by or on behalf of the Director of Public Prosecutions; or(b) by a person who falls within a class or description of person as prescribed in regulations made under this section.(3) An appeal under subsection (1) may only be made where—
(a) the prosecution made representations that bail should not be granted; and(b) the representations were made before it was granted. (4) In the event of the prosecution wishing to exercise the right of appeal under subsection (1), it must give oral notice of appeal to the Crown Court at the conclusion of the proceedings in which such bail has been granted and before the release from custody of the person concerned.
(5) Written notice of appeal shall thereafter be served on the Crown Court and the person concerned within two hours of the conclusion of such proceedings.
(6) Upon receipt from the prosecution of oral notice of appeal from its decision to grant bail, the Crown Court shall remand in custody the person concerned until the appeal is determined or otherwise disposed of.
(7) Where the prosecution fails within the period of two hours mentioned in subsection (5) to serve one or both of the notices in accordance with that subsection the appeal shall be deemed to have been disposed of.
(8) The hearing of an appeal against a decision of the Crown Court to grant bail under subsection (1) shall be commenced within forty-eight hours, excluding weekends and any public holiday (that is to say Christmas Day, Good Friday or a Bank Holiday) from the date on which oral notice of appeal is given.
(9) The judge hearing an appeal under this section shall be privy to any earlier evidence and may, at the conclusion of the hearing—
(a) remand the person concerned in custody; or(b) grant bail, subject to any conditions,as he or she sees fit.”.”
My Lords, every so often a tragic incident occurs which leads to a change in social policy or, indeed, a change in legislation. One thinks of the cases of Stephen Lawrence, Jamie Bulger, Victoria Climbié and Milly Dowler and, as your Lordships may recall when we were discussing amendments in relation to alcohol and offences the other night, the murder of the husband of a Member of your Lordships' House—the noble Baroness, Lady Newlove.
This amendment and the government amendment arise from the brutal murder of Jane Clough, a 26 year- old nurse and mother of a baby daughter, by the partner with whom she was living who had been charged with very grave sexual offences. The partner was granted bail in the magistrates’ court and the brutal murder occurred shortly thereafter. This morning I have had the humbling privilege of meeting Jane’s parents—John and Penny Clough. I salute the dignity and courage with which they are not only bearing the loss of a beloved daughter in the most appalling circumstances but the way they have campaigned, with support from a wide range of individuals and organisations and across party, for a change in the law to allow an appeal against the granting of bail. I know that they would wish for an expression of thanks to be made to all those who have supported them in this campaign, in particular to Vera Baird, the former Solicitor-General, and to Members of Parliament in the other place, notably Helen Goodman and Jenny Chapman. Penny and John are sitting today below Bar in your Lordships' House. They came the other night but, unfortunately, we did not reach this amendment at that time. They have stayed on in order to see effectively the culmination not only of their pain but also of their campaign.
Irrespective of whether bail is granted in a magistrates’ court or in a higher court, there will never be any guarantee that the person granted bail will not commit an offence. However, these amendments seek to ensure that in the appropriate cases the prosecution, knowing of the circumstances which gave rise to the charges in the first place, can at the very least take the matter to a higher court for determination, and offer a perhaps better prospect of avoiding a repetition of this dreadful incident or any incident like it. In approving a change in the law—I say immediately that I very much welcome the Government’s amendment and am happy to withdraw my amendment in favour of it—we should be able to demonstrate the capacity of Parliament to react to issues of this kind and to encourage others, perhaps facing different circumstances but where a change in the law might be needed, to follow the wonderful example of Jane’s parents, Penny and John, in ensuring that a change in the law is made. I said to them that if this House were given to standing ovations, they would be greeted with such an ovation today. Our hearts, our sympathies, but more particularly and perhaps more relevantly, our legislative endeavours go towards them today in meeting their objectives.
I do not think that the amendment allows for that, but that is a matter that perhaps might be considered. It is adequate that the Crown Court should be able to deal with these matters.
However, leaving that technicality aside, perhaps I may, on behalf of your Lordships' House, extend our very best wishes to the whole family of Penny and John because their daughter is seeking to adopt the grandchild, and all of them deserve our best wishes and, indeed, our thanks.
I intend to withdraw the amendment.
My Lords, the noble Lord, Lord Beecham, has already outraged the protocol of this House by recognising people present beyond the Bar, but I do not think that he will be taken away to the Tower for that breach because it is good that Members of the House are aware that Jane’s parents are present to see us in action. I am afraid that the other night they had the experience of seeing the Lords in action that delayed this debate, but it is such an important matter for them, their family and the wider public that we have this debate today. I sincerely hope that within a few minutes they will see Jane’s law passed by this House.
Amendment 178ZZA creates a right of appeal for the prosecution against a Crown Court decision to grant bail. It does so by extending the existing powers in the Bail (Amendment) Act 1993, which currently provides for a right of appeal against bail granted by a magistrates’ court. That appeal is to the Crown Court. Under Amendment 178ZZA, the avenue of appeal against a Crown Court decision would be to the High Court.
As we have heard from the noble Lord, Lord Beecham, this is a matter that has been the subject of a campaign by Jane’s parents following the release on bail of Jonathan Vass by the Crown Court, despite representations from the Crown Prosecution Service. We considered this matter very carefully. We took account, on the one hand, of the fact that a right of appeal would necessarily impose an additional burden on the High Court. On the other hand, there was strong support for change in the other place, as we have heard, and the Director of Public Prosecutions has made it clear that he too is in favour of such a change in our law.
Our conclusion was that without calling into question the correctness of decisions made by Crown Court judges in the vast majority of cases, it is not right that such decisions should be beyond challenge. We are persuaded of the case for changing the law in order to ensure that victims and their families, and the public at large, are protected.
The effect of the provision will be that the decision to appeal must be made immediately, before the defendant has been released, and as the defendant would be held in custody pending the appeal, the appeal must be heard very quickly. Listing cases at such short notice before a High Court judge clearly has resource implications, and it is important that the right of appeal should be used sparingly. This will be recognised in the guidance that the Director of Public Prosecutions will issue to his staff, which will require a decision to appeal to be approved at a senior level.
The most notable difference between our Amendment 178ZZA and Amendment 178 moved by the noble Lord, Lord Beecham—I am grateful that he intends to withdraw it—is that ours is shorter and does not permit an appeal against a decision by the Crown Court to grant bail where it was itself made on appeal from the grant of bail by a magistrates’ court. So if a defendant was granted bail by the magistrates, the prosecution appealed and the Crown Court granted bail, the prosecution would not be able to appeal further. This is to stop a continuing series of appeals on a matter that by then would have been considered by two courts. I therefore commend Amendments 178ZZA and 178ZZB to your Lordships' House.
It is my responsibility as the Minister to put on the record the technicalities; hence, some of my remarks may seem gobbledegook to those not in the Chamber. However, I can assure the House that what the Government are doing, supported by Her Majesty's Opposition and, as the noble Lord, Lord Beecham, made clear, supported firmly by the other place, is approving Jane’s law.
Amendment 178 withdrawn.
Schedule 11: Amendment of enactments relating to bail
178ZZZA: Schedule 11, Page 193, line 34, after “enactment,”” insert “;
““imprisonable offence” means an offence punishable in the case of an adult with imprisonment,”;
““sexual offence” means an offence specified in Part 2 of Schedule 15 to the Criminal Justice Act 2003,”;
““violent offence” means murder or an offence specified in Part 1 of Schedule 15 to the Criminal Justice Act 2003,””
Amendment 178ZZZA agreed.
Amendments 178ZZZB to 178ZZB
178ZZZB: Schedule 11, page 194, leave out lines 1 and 2 and insert—
“(1) Section 3 (general provisions) is amended as follows.
(2) In subsection (6ZAA), for “person),” substitute “person granted bail in criminal proceedings of the kind mentioned in section 1(1)(a) or (b)), section 3AAA (in the case of a child or young person granted bail in connection with extradition proceedings),”.
(3) In subsection (7)—”
178ZZZC: Schedule 11, Page 194, line 9, at end insert—
“3A (1) Section 3AA (conditions for the imposition of electronic monitoring requirements: children and young persons) is amended as follows.
(2) In the heading after “young persons” insert “released on bail other than in extradition proceedings”.
(3) In subsection (1) (conditions for the imposition of electronic monitoring conditions: children and young persons) after “young person” insert “released on bail in criminal proceedings of the kind mentioned in section 1(1)(a) or (b)”.”
3B After section 3AA insert—
“3AAA Conditions for the imposition of electronic monitoring requirements: children and young persons released on bail in extradition proceedings
(1) A court may not impose electronic monitoring requirements on a child or young person released on bail in connection with extradition proceedings unless each of the following conditions is met.
(2) The first condition is that the child or young person has attained the age of twelve years.
(3) The second condition is that—
(a) the conduct constituting the offence to which the extradition proceedings relate, or one or more of those offences, would, if committed in the United Kingdom, constitute a violent or sexual offence or an offence punishable in the case of an adult with imprisonment for a term of fourteen years or more, or(b) the offence or offences to which the extradition proceedings relate, together with any other imprisonable offences of which the child or young person has been convicted in any proceedings—(i) amount, or(ii) would, if the child or young person were convicted of that offence or those offences, amount,to a recent history of committing imprisonable offences while on bail or subject to a custodial remand. (4) The third condition is that the court is satisfied that the necessary provision for dealing with the child or young person concerned can be made under arrangements for the electronic monitoring of persons released on bail that are currently available in each local justice area which is a relevant area.
(5) The fourth condition is that a youth offending team has informed the court that in its opinion the imposition of electronic monitoring requirements will be suitable in the case of the child or young person.
(6) The references in subsection (3)(b) to an imprisonable offence include a reference to an offence—
(a) of which the child or young person has been accused or convicted outside the United Kingdom, and(b) which is equivalent to an offence that is punishable with imprisonment in the United Kingdom.(7) The reference in subsection (3)(b) to a child or young person being subject to a custodial remand are to the child or young person being—
(a) remanded to local authority accommodation or youth detention accommodation under section 84 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,(b) remanded to local authority accommodation under section 23 of the Children and Young Persons Act 1969, or(c) subject to a form of custodial detention in a country or territory outside the United Kingdom while awaiting trial or sentence in that country or territory or during a trial in that country or territory.”
178ZZZD: Schedule 11, Page 194, line 13, at end insert—
“4A In section 3AC (electronic monitoring: general provisions) in each of subsections (7) and (8) after “3AA” insert “, 3AAA”.”
178ZZA: Schedule 11, page 198, line 4, at end insert—
“Bail (Amendment) Act 1993 (c. 26)28A (1) Section 1 of the Bail (Amendment) Act 1993 (prosecution right of appeal where bail is granted) is amended as follows.
(2) After subsection (1A) insert—
“(1B) Where a judge of the Crown Court grants bail to a person who is charged with, or convicted of, an offence punishable by imprisonment, the prosecution may appeal to the High Court against the granting of bail.
(1C) An appeal under subsection (1B) may not be made where a judge of the Crown Court has granted bail on an appeal under subsection (1).”
(3) In subsection (2) for “Subsection (1) above applies” substitute “Subsections (1) and (1B) above apply”.
(4) In subsections (3), (4) and (8) for “or (1A)” substitute “, (1A) or (1B)”.
(5) In subsection (10)(a)—
(a) for “reference in subsection (1)” substitute “references in subsections (1) and (1B)”, and (b) for “is to be read as a reference” substitute “are to be read as references”.”
178ZZB: Schedule 11, page 198, line 14, at end insert—
“30A In section 200 of the Extradition Act 2003 (amendments to section 1 of the Bail (Amendment) Act 1993) omit subsections (4)(a) and (7)(a).”
Amendments 178ZZZB to 178ZZB agreed.
Schedule 11, as amended, agreed.
Clauses 84 and 85 agreed.
Clause 86: Conditions etc on remands to local authority accommodation
Amendment 178ZA not moved.
Clause 86 agreed.
Clause 87: Requirements for electronic monitoring
178ZZAZA: Clause 87, Page 66, line 12, leave out “twelve” and insert “fourteen”
My Lords, in speaking to the amendment and Amendments 178ZAA, 178ZAB, 178ZAC and178ZAD, I must state my strong support for the reforms implicit in Clauses 91 to 94, which place two clear sets of conditions on a court before a child can be remanded in custody. I say that because, at present, one-third of all children remanded to youth detention accommodation do not go on to receive a custodial sentence. I also support the simplified single remand order, which addresses the anomaly of 17 year- olds being remanded in adult accommodation.
I turn to Amendment 178ZZAZA. Our debate on Tuesday on Clause 75 concerning the proposed increase in curfew hours is linked to Clauses 87 to 89, to which the amendment refers, because electronic monitoring of children is part of their curfew regime. Clause 87(2) states:
“The first requirement is that the child has reached the age of twelve”,
before he or she may be electronically monitored. I and the Prison Reform Trust—for whose admirable briefing on this and many other issues I and, I am sure, many other noble Lords are extremely grateful—contend that 12 is too young.
Research suggests that, particularly if the longer periods that were so deplored around the Committee on Tuesday are adopted, many children aged 12 are likely to find compliance with electronic monitoring too onerous due to developmental immaturity, learning difficulties, learning disabilities or other mental health and communication problems, contributing to a lack of understanding of the consequences of their actions. This is borne out by the breach figures, which show that one in six children aged 10 to 14 in custody had been imprisoned for breach of a curfew order.
As was mentioned on Tuesday, Home Office research published in 2005 raised concerns that electronic monitoring can also prevent children participating in legitimate activities, thus increasing the likelihood of breach. I am aware that in Committee in another place the Minister, Crispin Blunt, said in rejecting a similar amendment:
“By removing the power of the court to use electronic monitoring with 12 and 13-year-olds, the amendments would push courts to remand more young children in secure accommodation … contrary to the policy underlying the provisions, which are aimed at reducing the use of secure remands of children and promoting greater community provision”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 11/10/11; col. 709.]
With respect, I think he missed the point that was being made, which was that removing the power to electronically monitor would encourage positive engagement. From personal experience, I know that better outcomes result from positive engagement than from the imposition of onerous conditions, particularly with younger offenders. The amendment seeks to raise the minimum age for electronic monitoring from 12 to 14, with the same age condition for remand to youth detention, to which my Amendments 178ZAA to 178ZAD refer. I beg to move.
My Lords, it is certainly desirable that electronic monitoring should be used very sparingly but there may well be cases in which even a 12 or 13 year- old has exhibited behaviour which requires—I say with some reluctance—monitoring of this kind. Therefore, I am afraid that the Opposition cannot support the amendment of the noble Lord, Lord Ramsbotham.
However, I have a question in relation to Amendment 178ZAD, which concerns extradition cases. I should like an assurance that, if the country requesting extradition does not itself apply electronic monitoring to the age group in question, such cases will not attract that procedure in this country. It would seem anomalous if we were to go further than the country seeking extradition in applying electronic monitoring to those cases. Perhaps the noble Baroness could deal with that. If she cannot do so today, perhaps she could write to me accordingly.
My Lords, we understand the intention behind the amendments of the noble Lord, Lord Ramsbotham, and are very sympathetic to his concern for children and young people. The welfare of a child or young person securely remanded is clearly very important. Extending looked-after child status to all those under 18 who are securely remanded, as we are doing in Clause 97, proves our commitment to that.
However, the Government believe that the current age threshold for secure remand of a child should remain at 12. Serious offences are sometimes committed by 12 and 13 year-olds. They present such a risk of harm that the court may come to the decision that a remand to secure accommodation is necessary to protect the public. We do not think that this decision is one that local authorities should be making, which would be the only alternative. It is not fair to impose this burden of responsibility on local authorities.
Amendment 178ZZAZA, however, raises quite different issues. It is inconsistent as between non-extradition and extradition proceedings. The noble Lord, Lord Beecham, has flagged up some of those inconsistencies. In the former, the age threshold for electronic monitoring of children remanded to non-secure local authority accommodation would be raised from 12 to 14 years. In extradition cases it would remain at 12 years of age. A similar inconsistency would arise depending on whether the child or young person is on bail or remanded to non-secure local authority accommodation. The age threshold is currently set at 12 years in both circumstances, but this amendment would raise the threshold to 14 years in respect of remands to non-secure local authority accommodation only. Furthermore, by removing the power of the court to use electronic monitoring in respect of 12 and 13 year-olds, the amendment could have the effect of more young children being remanded in secure accommodation. The availability of electronic monitoring can be the deciding factor in a court giving bail to a young offender.
Younger children are more likely to have risk factors that can be managed in the community with appropriate conditions and electronic monitoring to ensure compliance. Removing the power to monitor electronically children under the age of 14 would create a gap in the powers of the court to manage properly some children aged 12 and 13 who, regrettably, engage in serious criminal behaviour. Such monitoring is an essential tool for ensuring the compliance of children who do not meet the test for a secure remand but who nevertheless pose a risk of further offending. This risk is best met with a remand to local authority accommodation subject to curfew.
In terms of extradition, we are making provision for a hypothetical position in respect of a child subject to extradition proceedings. This will ensure fair treatment. I therefore urge the noble Lord to withdraw his amendment.
I apologise for not being here at the start of the debate. Has the Minister’s department carried out any research into the influence of the peer group on young offenders aged from 12 to 14? There can be very sympathetic officials in the institutions which hold these young people but the problem is that they get influenced, if not abused, by most unwholesome characters. I draw on rather out-of-date experience as a magistrate, but that was always a concern. If the Minister does not have the information now perhaps she could write.
I thank the noble Baroness for the information that was conveyed to her from the Box but it does not quite reach the point that I was making. The point was that if the country to which the child is being extradited does not apply electronic monitoring, should we be doing it? That was my question, but I am not asking for an answer now.
I am grateful to the Minister for her reply and grateful too for the intervention from the noble Baroness, Lady Whitaker, and the noble Lord, Lord Beecham. I said at the beginning that I am glad to see the reforms that are implicit already in Clauses 91 to 94 but, as I am sure the noble Baroness realises, there is disquiet over the use of electronic monitoring for extended periods, particularly for young people. I suspect that this will return on Report, if not with my amendment then in connection with Clause 75, which was discussed on Tuesday. I am grateful that obviously work has been done to produce the answers to these probing amendments. In that spirit and with gratitude to the Minister I beg leave to withdraw the amendment.
Amendment 178ZZAZA withdrawn.
Clause 87 agreed.
Clause 88 : Requirements for electronic monitoring: extradition cases
178ZAZA: Clause 88, Page 67, line 38, leave out from beginning to “of”
It would appear that I am in some danger of becoming a repeat offender when it comes to breaching protocol. I apologise to the House.
My only concern about the technical amendments in this group is the insertion in Amendment 178ZAZB of the word “accused” before the word “charged”. I appreciate that it is intended to correct what was described as an accidental gap in replicating earlier provisions, but it concerns me that we may apply electronic monitoring to people who have not been charged but merely accused of an offence in another jurisdiction. I wonder whether it is the right approach. Perhaps the noble Lord will want to think further on that. It strikes me as a little odd, in the same way as the previous matter we discussed struck me as odd. I may be entirely wrong but it seems to jar with the notion that a simple accusation would suffice to allow somebody to undergo electronic monitoring.
My Lords, one of the uses of Committee is to allow noble Lords to scrutinise and to seek clarification. The noble Lord’s point is not covered in my notes. The amendments in this group are intended to be minor and technical. They set out a requirement for electronic monitoring in extradition cases that is consistent with its use under the Extradition Act 2003. Clause 88 is intended to create a test that is equivalent to that in Clause 87 which applies to young people who are charged with or convicted of an offence. “Accused” is the word used in the Extradition Act. If we did not change the wording of the Bill to match, we would create a lacuna whereby the courts would have only limited remand powers over an individual who was being extradited before being charged. I will clarify the noble Lord's point about the use of electronic tagging and write to him.
Amendment 178ZAZA agreed.
Amendments 178ZAZB to 178ZAZE
178ZAZB: Clause 88, Page 67, line 38, after second “been” insert “accused or”
178ZAZC: Clause 88, Page 68, line 1, after “country” insert “or territory”
178ZAZD: Clause 88, Page 68, line 2, after “country” insert “or territory”
178ZAZE: Clause 88, Page 68, line 3, after “country” insert “or territory”
Amendments 178ZAZB to 178ZAZE agreed.
Clause 88, as amended, agreed.
Clauses 89 and 90 agreed.
Clause 91 : First set of conditions for a remand to youth detention accommodation
Amendment 178ZAA not moved.
Clause 91 agreed.
Clause 92 : Second set of conditions for a remand to youth detention accommodation
Amendment 178ZAB not moved.
178ZABA: Clause 92, page 71, line 16, leave out from second “sentence” to end of line 25 and insert “or order mentioned in section 76(1) of the Powers of Criminal Courts (Sentencing) Act 2000.”
Amendment 178ZABA agreed.
Clause 92, as amended, agreed.
Clause 93 : First set of conditions for a remand to youth detention accommodation: extradition cases
Amendment 178ZAC not moved.
Clause 93 agreed.
Clause 94 : Second set of conditions for a remand to youth detention accommodation: extradition cases
Amendment 178ZAD not moved.
Clause 94 agreed.
Clause 95 : Remands to youth detention accommodation
178ZAE: Clause 95, page 73, line 39, at end insert “, and
(d) accommodation, or accommodation of a description, for the time being specified by order under section 107(1)(e) of the Powers of Criminal Courts (Sentencing) Act 2000 (youth detention accommodation for purposes of detention and training order provisions).”
My Lords, this is a substantial group of amendments, many of which are minor and technical. However, there are a number of substantive amendments which the Committee will be interested in and which I will go through briefly. These relate predominately to the functions of the Secretary of State and the Youth Justice Board and are set out in Clauses 95, 96 and 97.
Amendment 178ZAE expands the definition of youth detention accommodation currently set out at Clause 95(2) to include any new form of youth detention accommodation specified by the Secretary of State under Section 107(1)(e) of the Powers of Criminal Courts (Sentencing) Act 2000. In recent years we have seen a significant reduction in the number of young people sentenced to custody. Although the number of those remanded has not shown the same reduction, we believe that the remand proposals contained within Chapter 3 have the potential to bring about a fall in the level of secure remand to youth detention accommodation also. If this occurs, and demand on the secure estate continues to fall, this may provide further opportunities to plan and pilot new forms of youth detention accommodation. Such accommodation would be developed with the aim of improving outcomes for children and young people, and this amendment would allow it to be used to accommodate remanded young people as well as those who are detained post-sentence.
Amendment 178ZBC extends the power in Clause 96 that gives the Secretary of State the power to make arrangements with providers of secure children’s homes to accommodate remanded young people so that the Secretary of State may also make such arrangements for the use of newly specified types of accommodation.
Amendments 178ZBA and 178ZBE provide for the Secretary of State’s functions in Clauses 95 and 96 to be exercisable concurrently with the Youth Justice Board. That is, both the Secretary of State and the YJB may exercise the power. They also allow the Secretary of State by order to provide that these functions should be exercisable solely by him or her. This order-making power is subject to the affirmative resolution procedure, as set out in Amendment 178ZBG.
In tabling these substantive amendments, the Government have responded to Parliament’s decision not to abolish the Youth Justice Board. These amendments ensure that the Youth Justice Board can continue to carry out its placement and estate management functions in relation to remanded young people. These amendments also provide a concurrent power, with the Secretary of State, for the Youth Justice Board to make payments to and recover costs from local authorities. Payments will be made to local authorities to enable them to take on greater financial responsibility for the costs of secure remand and to invest to help ensure that remands to custody occur only when appropriate. The clear intent is that this funding will be used only for the provision of youth justice services.
The last set of substantive amendments in this group, Amendments 178ZBJ, 178ZBK, 178ZBL and178ZBM, amend the test set out in Section 3AA of the Bail Act 1976 that a court must apply when deciding whether it may impose electronic monitoring on a child or young person as a condition of their bail. The amendments allow for imprisonable offences committed by a child or young person while remanded in custody under existing provisions or remanded in youth detention accommodation under the provisions of the Bill to be taken into account by the court when determining whether a child or young person has a history of offending. This change is consistent with the equivalent condition in Clause 87 relating to electronic monitoring of a child remanded to local authority accommodation.
Amendments 178ZBB, 178ZBH, 178ZBN, 178ZBP, 178ZBQ and 178ZBR are minor and technical amendments associated with the provisions in Chapter 3.
I should mention that we will arrange for the letter that my noble friend Lord McNally recently sent to all Peers regarding the Government’s youth justice amendments, to which I referred earlier, to be placed in the House Libraries. I beg to move.
I am grateful to the Minister for this group of amendments, with which we entirely concur. I am particularly glad that the wisdom of the House in ensuring that the Youth Justice Board has been preserved is reflected in here. I am unable to resist the temptation, given the name of the chief executive of the Youth Justice Board, to say that justice has been done. I am sure that Frances Done will be delighted to see these amendments and I congratulate the Government on their wisdom in accepting the original views of the House.
Amendment 178ZAE agreed.
Amendment 178ZB not moved.
Amendments 178ZBA and 178ZBB
178ZBA: Clause 95, page 74, line 20, at end insert—
“(8A) A function of the Secretary of State under this section (other than the function of making regulations) is exercisable by the Youth Justice Board for England and Wales concurrently with the Secretary of State.
(8B) The Secretary of State may by regulations provide that subsection (8A) is not to apply, either generally or in relation to a particular description of case.”
178ZBB: Clause 95, page 74, line 21, leave out from “means” to end of line 33 and insert “accommodation which is provided in a children’s home, within the meaning of the Care Standards Act 2000—
(a) which provides accommodation for the purposes of restricting liberty, and(b) in respect of which a person is registered under Part 2 of that Act.(10) Before the coming into force in relation to England of section 107(2) of the Health and Social Care (Community Health and Standards) Act 2003, subsection (9) has effect as if it defined “secure children’s home” in relation to England as accommodation which—
(a) is provided in a children’s home, within the meaning of the Care Standards Act 2000, in respect of which a person is registered under Part 2 of that Act, and(b) is approved by the Secretary of State for the purpose of restricting the liberty of children.”
Amendments 178ZBA and 178ZBB agreed.
Clause 95, as amended, agreed.
Clause 96 : Arrangements for remands
Amendments 178ZBC to 178ZBE
178ZBC: Clause 96, page 74, line 37, after “homes” insert “, or accommodation within section 95(2)(d),”
178ZBD: Clause 96, page 75, line 9, leave out subsections (4) to (6)
178ZBE: Clause 96, page 75, line 20, at end insert—
“(8) A function of the Secretary of State under this section (other than the function of making regulations) is exercisable by the Youth Justice Board for England and Wales concurrently with the Secretary of State.
(9) The power to make regulations under subsection (2) includes power to make provision about the recovery of costs by the Youth Justice Board for England and Wales.
(10) The Secretary of State may by regulations provide that subsection (8), or provision made by virtue of subsection (9), is not to apply, either generally or in relation to a particular description of case.”
Amendments 178ZBC to 178ZBE agreed.
Clause 96, as amended, agreed.
Clause 97 : Looked after child status
178ZBF: Clause 97, page 75, line 28, leave out subsections (3) to (5)
Amendment 178ZBF agreed.
Clause 97, as amended, agreed.
Clause 98 agreed.
178ZBG: After Clause 98, insert the following new Clause—
“Regulations under this Chapter
(1) Regulations under this Chapter are to be made by statutory instrument.
(2) Regulations under this Chapter may—
(a) make different provision for different cases;(b) include supplementary, incidental, transitional, transitory or saving provision.(3) A statutory instrument containing regulations under this Chapter is subject to annulment in pursuance of a resolution of either House of Parliament, subject to subsection (4).
(4) A statutory instrument containing regulations under section 95(8B) or 96(10) (whether alone or with any other provision) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Amendment 178ZBG agreed.
Schedule 12 : Remands of children otherwise than on bail: minor and consequential amendments
Amendments 178ZBH to 178ZBN
178ZBH: Schedule 12, page 199, line 12, at end insert—
“(5) In subsection (7), in the definition of “serious offence”, after “means” insert “(subject to subsection (8))”.
(6) After subsection (7) insert—
“(8) For the purposes of the application of this section to a person remanded on bail in connection with proceedings under the Extradition Act 2003—
(a) an offence is a “serious offence” if the conduct constituting the offence would, if committed in the United Kingdom, constitute an offence punishable in the case of an adult with imprisonment for a term of two years or more, and(b) the reference in subsection (1)(a) to a person being charged with a serious offence includes a reference to the person having been accused of such an offence.””
178ZBJ: Schedule 12, page 200, line 10, leave out “In”
178ZBK: Schedule 12, page 200, line 11, after “seventeen)” insert “is amended as follows.
(2) In subsection (3), at the end insert “or youth detention accommodation”.
178ZBL: Schedule 12, page 200, line 13, after “section” insert “—
178ZBM: Schedule 12, page 200, line 15, at end insert “,
(b) the reference to being remanded to youth detention accommodation is to be construed in accordance with section 95 of that Act, and(c) those references include a reference to a remand to local authority accommodation under section 23 of the Children and Young Persons Act 1969.”
178ZBN: Schedule 12, page 203, line 19, leave out “133” and insert “133(1)”
Amendments 178ZBH to 178ZBN agreed.
Schedule 12, as amended, agreed.
Clause 99 : Interpretation of Chapter
Amendments 178ZBP to 178ZBR
178ZBP: Clause 99, page 76, line 35, leave out subsection (4)
178ZBQ: Clause 99, page 76, line 40, after “accommodation” insert “, and related expressions,”
178ZBR: Clause 99, page 76, line 43, at end insert—
“(8) Subsections (3) and (6) are subject to sections 87(9), 88(10) and 92(11) (references to remand to local authority accommodation or youth detention accommodation to include such a remand under section 23 of the Children and Young Persons Act 1969).”
Amendments 178ZBP to 178ZBR agreed.
Clause 99, as amended, agreed.
Clause 100 : Crediting of periods of remand in custody
178ZC: Clause 100, page 77, line 12, leave out “committed on or after 4th April 2005”
My Lords, this package of amendments will give effect to the second stage of the Government’s approach to the simplification and clarification of the current release and recall provisions for determinate sentenced prisoners by bringing these provisions together within a single statute—the Criminal Justice Act 2003.
The current release and recall provisions are spread across a number of different statutes, subject to commencement orders with complex transitional and savings provisions and subsequent amendments. This has created an extremely intricate and unwieldy web of legislation which is very difficult to follow, even for criminal justice experts and practitioners. This in turn has been heavily criticised by the courts and calls have been made for the Government to simplify the provisions.
The first step in our approach to achieve this simplification was to introduce the provisions contained in Clauses 100 to 112 of Chapter 4 of the Bill. These amend the current 2003 Act provisions to establish the single regime that will apply to those sentences imposed on or after commencement.
The second stage of our approach, which is what this package of amendments will do, is to consolidate within the 2003 Act those provisions of the Criminal Justice Acts 1967 and 1991 that will be required to continue to apply to those prisoners who, at the time of commencement, are subject to the release arrangements of those previous statutory regimes. We have no intention of making substantial changes to the way in which the sentences of those existing prisoners operate and so these amendments do not change the release dates or licence lengths for those current prisoners. In practice, this means saving the current release regimes for the few remaining 1967 Act prisoners; 1991 Act prisoners serving long-term sentences of four years or more for sexual or violent offences—often known as “DCR” prisoners; and for current 2003 Act extended sentence prisoners. Going forward, however, all sentences imposed on or after the date of commencement will be subject to the 2003 Act release and recall arrangements, as amended by the provisions in this Bill, regardless of the date that the offender committed his or her offences.
That is the broad effect of this package of amendments. I would be happy to explain what each of the amendments does should your Lordships find that helpful, but in the interests of keeping my explanation to a minimum I propose simply to highlight the main features. I can assure your Lordships that, while these amendments are long and technical, they do not make substantive changes to the current release arrangements. They are intended mainly to make the legislation itself clearer, easier to follow and less open to misinterpretation.
Two new schedules will be inserted into the 2003 Act—the content of these make up the bulk of the amendments. The first, Schedule 20A, makes amendments to other statutes that are consequential on the amendments made to the 2003 Act. It also contains transitional provisions to allow prisoners released under the 1991 Act to be deemed to have been released under the 2003 Act, while preserving their current licence length. The second, Schedule 20B, reproduces within the 2003 Act the elements of the 1967 and 1991 Act release regimes that need to be preserved for those prisoners already serving these types of sentence. In other words, it achieves the consolidation of all the current release provisions into a single statute.
Connected to the introduction of new Schedule 20B, our intention now is to remove Clause 112. The clause contains a power to allow the Secretary of State to make an order by secondary legislation to bring the release and recall provisions of the Criminal Justice Acts of 1967 and 1991 into the 2003 Act. But with the introduction of these amendments, and Schedule 20B in particular, that consolidation now will be achieved on the face of the Act so that the order-making power is no longer necessary and can be removed. I commend this package of amendments to your Lordships and I beg to move.
My Lords, I welcome the clarification that this range of amendments brings about. I am particularly glad to see the mea culpa stance over Clause 112 standing part and hope that this presages greater use of the procedure whereby the Government withdraw proposals which are not satisfactory. I trust that this is the first swallow of a summer of such arrivals.
Amendment 178ZC agreed.
Amendments 178ZD to 178ZG
178ZD: Clause 100, page 78, leave out lines 17 to 20
178ZE: Clause 100, page 78, line 22, after “91” insert “or 96”
178ZF: Clause 100, page 78, line 23, after “section” insert “227 or”
178ZG: Clause 100, page 78, line 23, leave out from second “Act” to end of line 25
Amendments 178ZD to 178ZG agreed.
Clause 100, as amended, agreed.
Clause 101 : Crediting of periods of remand on bail
178ZH: Clause 101, page 79, line 28, leave out “, (11)”
Amendment 178ZH agreed.
Clause 101, as amended, agreed.
Clause 102 : Amendments consequential on sections 100 and 101
Amendments 178ZJ and 178ZK
178ZJ: Clause 102, page 80, line 39, at end insert—
“( ) In section 305(1A) (modification of reference to want of sufficient distress), inserted by paragraph 155 of Schedule 13 to the Tribunals, Courts and Enforcement Act 2007, for “In the definition of “sentence of imprisonment” in subsection (1) the reference” substitute “In this Part any reference”.”
178ZK: Clause 102, page 81, line 4, at end insert—
“( ) section 23 and Schedule 6.”
Amendments 178ZJ and 178ZK agreed.
Clause 102, as amended, agreed.
Schedule 13 : Crediting of time in custody: Armed Forces amendments
178ZL: Schedule 13, page 205, line 25, at end insert—
“Part 2Other amendmentsCriminal Appeal Act 1968 (c. 19)6 In Schedule 2 to the Criminal Appeal Act 1968 (procedural and other provisions applicable on order for retrial), in paragraph 2(4), for “Sections 240” substitute “Sections 240ZA”.
Immigration Act 1971 (c. 77)7 In section 7 of the Immigration Act 1971 (exemption from deportation for certain existing residents), in subsection (4), after “section 240” insert “, 240ZA or 240A”.
Road Traffic Offenders Act 1988 (c. 53)8 In section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence also imposed), in subsection (6)—
(a) omit “a direction under”;(b) in paragraph (a), for “section 240” substitute “section 240ZA”;(c) in paragraph (b), before “section 240A” insert “a direction under”.Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)9 The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
10 In section 82A (determination of tariffs), in subsection (3)(b), for “section 240” substitute “section 240ZA”.
11 In section 101 (term of detention and training order), in subsection (12A), for “the reference in subsection (2) of that section to section 240” substitute “the reference in subsection (2A) of that section to section 240ZA”.
12 In section 147A (extension of disqualification where custodial sentence also imposed), in subsection (6)—
(a) omit “a direction under”;(b) in paragraph (a), for “section 240” substitute “section 240ZA”;(c) in paragraph (b), before “section 240A” insert “a direction under”. International Criminal Court Act 2001 (c. 17) 13 In Schedule 7 to the International Criminal Court Act 2001 (domestic provisions not applicable to ICC prisoners), in paragraph 2(1)(d), for “sections 240” substitute “sections 240ZA”.”
Amendment 178ZL agreed.
Schedule 13, as amended, agreed.
Clause 103 : Prisoners serving less than 12 months
Amendments 178ZM and 178ZN
178ZM: Clause 103, page 81, line 12, leave out from “months” to end of line 14
178ZN: Clause 103, page 81, line 25, at end insert—
“(4) This section is subject to—
(a) section 256B (supervision of young offenders after release), and(b) paragraph 8 of Schedule 20B (transitional cases).””
Amendments 178ZM and 178ZN agreed.
Clause 103, as amended, agreed.
Schedule 14 : Prisoners serving less than 12 months: consequential amendments
178ZP: Schedule 14, page 205, line 27, at end insert—
“Road Traffic Offenders Act 1988 (c. 53)1 In section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence also imposed)—
(a) in subsection (8), after “section” insert “243A(3)(a),”;(b) in subsection (9)(a), after “in respect of section” insert “243A(3)(a) or”.Crime (Sentences) Act 1997 (c. 43)2 In Schedule 1 to the Crime (Sentences) Act 1997 (transfer of prisoners within the British Islands), in paragraphs 8(2)(a) and 9(2)(a), after “sections 241,” insert “243A,”.
Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)3 In section 147A of the Powers of Criminal Courts (Sentencing) Act 2000 (extension of disqualification where custodial sentence also imposed)—
(a) in subsection (8), after “section” insert “243A(3)(a),”;(b) in subsection (9)(a), after “in respect of section” insert “243A(3)(a) or”.International Criminal Court Act 2001 (c. 17)4 In Schedule 7 to the International Criminal Court Act 2001 (domestic provisions not applicable to ICC prisoners), in paragraph 3(1), for “sections 244” substitute “sections 243A”.”
Amendment 178ZP agreed.
Schedule 14, as amended, agreed.
Clause 104 : Restrictions on early release subject to curfew
Amendments 178ZQ to 178ZS
178ZQ: Clause 104, page 82, line 12, after “91” insert “or 96”
178ZR: Clause 104, page 82, line 12, after second “section” insert “227 or”
178ZS: Clause 104, page 82, leave out lines 13 and 14
Amendments 178ZQ to 178ZS agreed.
Clause 104, as amended, agreed.
Clauses 105 to 108 agreed.
178ZT: After Clause 108, insert the following new Clause—
“Replacement of transitory provisions
(1) Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release on licence) is amended as follows.
(2) In section 237(1)(b) (“fixed-term prisoner” includes those serving sentence of detention)—
(a) after “91” insert “or 96”;(b) before “228” insert “227 or”.(3) At the end of that section insert—
“(3) In this Chapter, references to a sentence of detention under section 96 of the Sentencing Act or section 227 of this Act are references to a sentence of detention in a young offender institution.”
(4) In section 244(3)(a) (duty to release prisoners: requisite custodial period), after “91” insert “or 96”.
(5) In section 250(4) (licence conditions)—
(a) after “91” insert “or 96”;(b) before “228” insert “227 or”.(6) In section 258 (early release of fine defaulters and contemnors), after subsection (3) insert—
“(3A) The reference in subsection (3) to sentences of imprisonment includes sentences of detention under section 91 or 96 of the Sentencing Act or under section 227 or 228 of this Act.”
(7) In section 263(4) (concurrent terms)—
(a) after “91” insert “or 96”;(b) before “228” insert “227 or”.(8) In section 264(7) (consecutive terms)—
(a) after “91” insert “or 96”;(b) before “228” insert “227 or”.(9) In section 265(2) (restriction on consecutive sentences)—
(a) after “91” insert “or 96”;(b) before “228” insert “227 or”.(10) In Part 2 of the Crime (Sentences) Act 1997 (life sentences: release on licence)—
(a) in section 31A(5) (termination of licences), in the definition of “preventive sentence”, after “a sentence of imprisonment” insert “or detention in a young offender institution”;(b) in section 34(2)(d) (interpretation), after “a sentence of imprisonment” insert “or detention in a young offender institution”.(11) In the Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005 (S.I. 2005/643), article 3(7), (10), (11), (12), (13), (14), (15) and (17)(a) and (b) (transitory provision replaced by this section) are revoked.”
Amendment 178ZT agreed.
Clauses 109 to 111 agreed.
Schedule 15 : Application of sections 100 to 110 and transitional and transitory provisions
178ZU: Schedule 15, page 208, line 4, at end insert—
“( ) Section (Replacement of transitory provisions) applies in relation to any person who falls to be released under Chapter 6, or (as the case may be) under Chapter 2 of Part 2 of the Crime (Sentences) Act 1997, on or after the commencement date.”
Amendment 178ZU agreed.
Schedule 15, as amended, agreed.
Clause 112 disagreed.
178ZV: Before Clause 113, insert the following new Clause—
“Simplification of existing transitional provisions
(1) Chapter 6 of Part 12 of the Criminal Justice Act 2003 (“the 2003 Act”) is to apply to any person serving a sentence for an offence committed before 4 April 2005 (whenever that sentence was or is imposed).
(2) Section 258 of the 2003 Act (release of fine defaulters and contemnors) is to apply to any person who was, before 4 April 2005, committed to prison or to be detained under section 108 of the Powers of Criminal Courts (Sentencing) Act 2000—
(a) in default of payment of a sum adjudged to be paid by a conviction, or(b) for contempt of court or any kindred offence.(3) In accordance with subsections (1) and (2)—
(a) the repeal of Part 2 of the Criminal Justice Act 1991 which is made by section 303(a) of the 2003 Act has effect in relation to any person mentioned in those subsections;(b) paragraphs 15 to 18, 19(a), (c) and (d), 20, 22 to 28 and 30 to 34 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2008 (S.I. 2005/950) (which relate to the coming into force of provisions of Chapter 6 of Part 12 of the 2003 Act) are revoked.(4) Section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 (extension of periods in custody and on licence in the case of certain sexual offences) is repealed.
(5) Schedule (Amendments of the Criminal Justice Act 2003: transitional and consequential provisions) (transitional and other provisions consequential on this section) has effect.
(6) Schedule (Criminal Justice Act 2003: restatement of transitional provisions) (amendments to the 2003 Act restating the effect of certain transitional and other provisions relating to the release and recall of prisoners) has effect.”
Amendment 178ZV agreed.
178A: Before Clause 113, insert the following new Clause—
“Duty to release certain prisoners serving a whole life sentence
In Chapter 2 of Part 1 of the Crime (Sentences) Act 1997 after section 28 insert— “28A Duty to release certain prisoners serving a whole life sentence
(1) In the case of a life prisoner who has been made subject to a whole life order, and has served 30 years of his sentence, it shall be the duty of the Secretary of State, with the consent of the Lord Chief Justice and the trial judge if available, to refer the case to the Parole Board.
(2) If the Parole Board is satisfied—
(a) that it is no longer necessary for the protection of the public that the prisoner should be confined, and(b) that in all the circumstances the release of the prisoner on licence would be in the interests of justice,the Parole Board may direct his release under this section.(3) Where the Parole Board has directed a prisoner’s release under this section, it shall be the duty of the Secretary of State to release him on licence.””
My Lords, this is one of three amendments in my name in this chapter of the Bill. They are grouped separately but they all have one thing in common: like Clause 113, they are an attempt to undo some of the harm that was done by the Criminal Justice Act 2003. The introduction of indeterminate sentences for the protection of the public—now to be abolished—has had disastrous consequences, as we all know, to which we will later come in further amendments.
The IPP sentence is but one example of the harm that has been done by the 2003 Act. Amendment 178A deals with another example. It concerns the 41 prisoners currently serving whole life sentences, who have no hope of being released except on compassionate grounds. If you ask me how many such prisoners have ever been released on compassionate grounds, the answer is none.
The position was very different before the 2003 Act came into force. In those days, the tariff was fixed by the Home Secretary. In the most serious cases he would impose a whole life sentence, as judges do now, but there was this vital difference: it was then the settled practice of successive Home Secretaries to review such sentences after 25 years. If the prisoner had made exceptional progress and there was no other purpose in keeping him in prison, he would be considered for release.
The question is why that humane practice was not re-enacted when the 2003 Act came into force. It cannot, one imagines, have been deliberate unless the settled practice of Home Secretaries had proved to be unsatisfactory in some way, and there is no evidence of that, so it must have been overlooked. We now have a chance to put it right. We can give these 41 prisoners serving whole life sentences the same chance of a review as they had before the 2003 Act came into force. Of course it does not mean that they will be released because it would depend on the circumstances of each individual case, but it does at least mean that they will have a hope of review. That is the very limited purpose of this amendment.
There is, however, another consideration which I am sure the Government will have in mind. On 17 January this year, the fourth section of the European Court of Human Rights gave judgment in the case of Vinter and Others v the United Kingdom. The question was whether the imposition of what is known as an irreducible life sentence, that is to say a whole life sentence without hope of parole, was of itself a breach of Article 3 of the convention. The Court decided by the slenderest of majorities that it was not, and so the Government won—just. But there is now to be an appeal to the Grand Chamber, and if the Government lose, they will have to enact primary legislation to allow for review after 25 or 30 years in whole life cases. That being so, it must surely be sensible to make the change now, while we have the opportunity, and thus bring us into line not only with our own previous practice, as I have described, but also with that of the International Criminal Court and every other European country except, as I understand it, Holland.
As far as I can see, there cannot be any objection to the Government taking that course and therefore agreeing this amendment. I look forward to hearing what the Minister has to say in reply. I beg to move.
My Lords, I welcome every word that has been said to justify this amendment. It is altogether impossible that 41 prisoners serving whole life sentences should be imprisoned in this way. What the noble and learned Lord has said is absolutely essential as far as having a civilised attitude where the criminal law is concerned. People serving whole life sentences will be able to look forward with some hope if the conditions in the amendment are satisfied and the Parole Board accepts the submissions that are made. I thank the noble Lord for raising this vital point.
My Lords, I was very glad to add my name to this amendment. I have the utmost respect for the noble and learned Lord, Lord Lloyd of Berwick. He always brings to our deliberations his very high standards of legal expertise, but what I like about him, if I am allowed to say so, is that that legal expertise is always tempered with the values of the civilised society and a strong sense of humanitarian concern. Long may he remain with us to bring those to bear.
We do not indulge in vengeance in our penal system. We are about an appropriate punishment for a serious offence, and that must happen because it is absolutely right. But we are also about the challenge of rehabilitation. However dreadful the crime that has been committed and however much we may feel a sense of solidarity and empathy with the victims of crime, the challenge in a civilised society is to try to enable the perpetrator of the crime to see the significance of what they have done, to recognise and accept responsibility for it, and to move on to a positive and creative life. If we do not always strive to try to enable someone who has done a dreadful thing to become a better person and to rejoin society as a better person, I think that we demonstrate a lack of self-confidence in our own civilised values. Of course it is no good sentimentalising this issue. There will be some people where these endeavours make no progress in the end, and there are others where it may just simply be impossible to consider release. But the aspiration should be that the person will be released as a positive, reformed and different member of society, contributing constructively.
I know about this from indirect personal experience, if that is possible. For 10 years, my wife served on the board of a prison exclusively for lifers. In some ways it was an avant-garde prison at that time, but I was always encouraged by the stories she brought back about the exciting and imaginative work being done there. One of her fellow governors was the late Roman Catholic Archbishop of Liverpool, who at that time was the Roman Catholic Bishop of Portsmouth. He served with great commitment on that board and we were all great friends. We used to discuss the prison and its works. We would take heart from the encouraging things that were happening and laugh about some of the warm and positive stories that came out of the situation, but I remember that he would always say, “Basically, it is a very sad place”. What my wife talked about is something that I find very difficult to cope with: the prisoner who sees absolutely no light at the end of the tunnel. How does this help the process of rehabilitation? How does this help the process of reconstructing a life? From this standpoint, I believe that the amendment moved by the noble and learned Lord, not for the first time, can claim to stand for civilisation and humanitarian values in society. We should warmly applaud it.
My Lords, it will not surprise you that I wholeheartedly support the amendment. I am very grateful to the noble Lord, Lord Judd, for warning against sentiment. There is a robustness about offering human beings hope that contributes specifically to the rehabilitation and reconstruction of which he spoke. However, this is about much more than simply giving hope to individuals, because a society that does not give hope to individuals is unlikely to have hope for itself in areas in which it feels as a society hopeless. In terms of a civilised society, this is a very humane amendment which is necessary for our societal good as well as for the individuals for whom it is designed.
My Lords, I support the amendment and endorse the excellent speeches made by all those who have spoken so far. I stress, as they have, that this is not an amendment about releasing any particular person who has done any particular thing; it is an amendment about what sort of penal system we have and its values.
One of the consequences of the very welcome abolition of the death penalty—I declare an interest as chair of the All-Party Group for the Abolition of the Death Penalty—was a search for another sentence for the most serious and dreadful crimes. A few countries decided to adopt the life-without-parole alternative. In the United States in 2009, there were more than 2,500 juveniles serving a sentence of life without parole, which is probably at the extreme end of the use of the sentence.
I have always been of the view that a non-reviewable life sentence, or what is called by the courts an irreducible life sentence, with no provision for reconsideration by the authorities whatever the circumstances—be it their health condition, their extreme old age or a dramatic change in the way the person sees the world—must surely constitute inhuman and degrading treatment. I was one of those disappointed by the European Court of Human Rights not reaching that view in the case of Vintner and others v United Kingdom. That case was barely reported, probably because the court found in favour of the Government; it seems to be the other cases that are always widely reported and commented upon. As the noble and learned Lord, Lord Lloyd, said, the court’s judgment was by a slim majority of four against three. I shall quote briefly from the opinion of the three dissenting judges. They said:
“we conclude that there was a procedural infringement by reason of the absence of some mechanism that would remove the hopelessness inherent in a sentence of life imprisonment from which, independently of the circumstances, there is no possibility whatsoever of release while the prisoner is still well enough to have any sort of life outside prison”.
In 2007, the European Committee for the Prevention of Torture said of the whole life sentence:
“the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release”.
The German constitutional court found in 2010 that if someone had no practical prospect of release, a life sentence would be cruel and degrading and infringe the requirements of human dignity provided for in Article 1 of the German Basic Law. I also remind the Committee that the statute of the International Criminal Court—which, as noble Lords will know, deals only with the most heinous crimes—expressly provides for a review of detention by the court after 25 years.
Although prison sentences are very long in some European countries, it is only England and Wales—not Scotland—and the Netherlands that have whole life sentences. France has them in theory but there is a provision for the courts to release prisoners who have made significant progress.
I am sure the Minister will agree that if the penal system has at its heart, alongside the need for punishment and protection, a commitment to rehabilitation, and if it accepts that human beings can change, then surely it is an expression of that belief that everyone, however heinous the crime, should be reviewed at least after 30 years.
My Lords, I support the amendment. I do so in part having been around prisons in Hong Kong some years ago—I have no reason to think that the position has changed since—and seen considerable numbers of very old and very sick men who were there because there was no means of their ever being released. They presented very considerable difficulties for the prison service and they presented difficulties in their management during their term in prison because they had nothing to gain by behaving well during their time there.
It requires political courage to accept an amendment such as this—just as it requires courage on the part of a judge who is dealing with a case which has aroused great public emotion, just as it requires courage on the part of a parole board to deal with a prisoner who has been in the media and attracts media attention—but if we believe that people can change, and if we believe in reformation, then it is essential that there is something at the end of the tunnel for those who can demonstrate that they have come through the process and now put behind them any capacity to be dangerous. For that reason I very much hope that, difficult as it is, the Government will find the courage to put some provision like this in to the Bill.
My Lords, I, too, support the amendment, for all the reasons that have been given. It is surely inhumane to say to a prisoner that they will remain in prison for the whole of their life, other than in the most exceptional compassionate circumstances—which I understand to mean that they are dying—whatever progress they may make, however long a period may elapse. Surely it is also very damaging to prison order to have in prison this number of prisoners who have no incentive whatever to progress, to behave and to move towards a responsible approach.
The noble and learned Lord, Lord Lloyd of Berwick, mentioned that the Vintner case would inevitably go to the Grand Chamber. I very much hope and expect that the Grand Chamber will take into account the views of those in your Lordships' House who have expressed the opinion that this is indeed an inhumane way to treat prisoners.
I note that the amendment is drafted in terms of a discretion for the Parole Board. I would understand that to be the case because the Secretary of State faces this difficulty: either he retains an absolute position, whereby there will be no review; or he recognises that there will be a review, but by an independent body—the Parole Board. As I would understand it, the Secretary of State is simply unable, as a result of earlier European Court judgments, to take upon himself a statutory power to review the position and to decide on release after 30 years.
I also note that the amendment is drafted in terms of it being the duty of the Secretary of State,
“with the consent of the Lord Chief Justice and the trial judge if available”.
I would welcome assistance from the noble and learned Lord, Lord Lloyd of Berwick, when he comes to reply, as to whether it is his intention that after 30 years it should be the duty of the Secretary of State to refer the matter to the Parole Board only if the Lord Chief Justice and the trial judge—that is, both of them, if the latter is available—consent. Will he explain the purpose of involving the Lord Chief Justice and the trial judge? Is it intended that they should enjoy some discretion; and if so, pursuant to what criteria?
I respectfully suggest that it would be more appropriate to say that these matters should automatically be referred to the Parole Board after 30 years. That is a very long time. Of course the Lord Chief Justice of the day and the trial judge, if available, should be invited to give their opinions on what should happen to the individual, but I am troubled by the idea that there could be an impediment to the Parole Board even considering the matter after 30 years if, say, the trial judge thinks it inappropriate to do so. That is a drafting question. I strongly support the principle of the amendment, for all the reasons that have been given already, and those that I have added.
My Lords, I have a natural sympathy with the amendment proposed by the noble and learned Lord. I was once, admittedly a long time ago, a member of the Parole Board, when it was fairly new. That was under the chairmanship of Lord Hunt of Llanfair Waterdine, who was in this House. He was sometimes known as Lord Hunt of Everest, for obvious reasons. I served on the Parole Board then and thought that it was a rather good body. The noble Baroness, Lady Howe of Idlicote, was a fellow member. I have fond memories of it and thought it a good body with a good mix of experience of criminal law, criminals and criminology—in my case, apparently. It is bound to be even better today in terms of experience. I am glad that it has a central position under the amendment.
I have one query, rather on the same lines as that of the noble Lord, Lord Pannick. It is a question to the noble and learned Lord about the difference between duty and discretion, and who has what. I would also like to know the answer to the question from the noble Lord, Lord Pannick—as would he. My question is a slightly different twist on that. In the amendment there is a duty on the Secretary of State, and then if the matter goes to the Parole Board, the board has discretion. Surely, even among those who have spoken this afternoon who are most sympathetic to the long-term prisoner, we can all think of those who should never come out of prison under any circumstances. That is clearly known and pretty definite. I wonder why the amendment does not impose a discretion on the Secretary of State rather than a duty, on the basis that it will be a complete waste of time for the Parole Board to examine or review certain cases on which every report, indication and study from within the Prison Service shows that it would be quite unsafe at any time to allow the release of certain people given life sentences. I query the duty and discretion bit from a very different angle from the noble Lord, Lord Pannick, but pursuing the same point. I certainly believe that most cases should have a review and that should be by the Parole Board. That would be excellent and I hope that the amendment will be carried.
My Lords, I support my noble and learned friend Lord Lloyd on this excellently moved amendment and pick up on a point made by the noble Lord, Lord Pannick. He mentioned the impact on prison order. I will, as it were, personalise this. As Chief Inspector of Prisons I was always interested in how prisoners serving natural life sentences were managed. Without the word “hope”, which has appeared in the contributions of many noble Lords, those prisoners had nothing to look forward to. More importantly, the staff had—in theory—nothing to offer the prisoner.
Noble Lords may remember the name of Dennis Nilsen, who was awarded a natural life sentence for a series of perfectly dreadful crimes. Noble Lords may not know that one aspect of education denied to blind children is access to science textbooks because graphs cannot be read in Braille. One of the education officers in the prison, looking at Dennis Nilsen and his characteristics, reckoned that something there could be harnessed. Nilsen was taught to write in Braille. Then, over four years, he described graphs in a science textbook in a way that would be understood, and translated his descriptions into Braille. After four years, blind children had access to a science textbook, thanks to the activities of someone who, in theory, had been rejected by society. I talked with Nilsen and will not describe that. But I will never forget talking to the education officer who had had the wit to realise that there was something in Nilsen that could be harnessed to the public good. She used the word “hope”, which was present at the time, and said how essential it was that she had hope that something could be achieved. I was enormously disturbed when that hope was removed by the 2003 Act. I very much hope that the Minister will be able to respond to this amendment.
My Lords, I support the amendment. As the former chairman of the Parole Board, I agree with most of the comments that have been made so far in the debate. The discretion should be with the Parole Board and there should be an automatic review after 30 years. The concepts of hope and incentive are very important. In my experience, the fact that cases would go before the Parole Board was an incentive for prisoners. That is an important aspect. The Parole Board is also very good at risk assessment. It should be given that discretion with all the reports. I agree that it should then be the duty of the Home Secretary to accept the recommendation made by the Parole Board. I would very much like the Government to support the amendment.
My Lords, I briefly add my support to the amendment of the noble and learned Lord, Lord Lloyd. As has been rightly said, he stands up for instances where justice and fairness clearly need to be not just seen but interpreted correctly. I will also comment on what my noble friend Lord Ramsbotham said about this business of hope in what you try to achieve and for the individual who is there for life—for 30 years, anyhow—and about incentivising activities that could be of interest and help to any future he might have.
As the noble Lord, Lord Borrie, said, I was a very early member of the Parole Board, and I think that the independence of the Parole Board in looking at these matters is absolutely crucial. I am a little doubtful about how important the Secretary of State’s role may be, not least if—as it will be—it were years after the offence was tried and committed and the decisions made. However, whether or not his role is important and appropriate, it will be most important that the Parole Board has independence and stands back.
My Lords, there is certainly a unanimity of view in the debate thus far that the present system is not satisfactory. It should perhaps be pointed out that there have been very few instances of compassionate release, including three cases arising out of the Good Friday agreement and the case of the East End criminal, Reggie Kray, but that is a little beside the point.
My problem, such as it is, with the noble and learned Lord’s amendment, is more in the rubric than in the intention. It is clear that there will always be some cases in which release will not and should not occur. I suspect that there will be few, but there will be some. The public need to be persuaded that the people who are not reformed and who might well continue to constitute a danger will not be released. There will always be a small number of those.
The amendment refers to the,
“Duty to release certain prisoners serving a whole life sentence”.
I can see whence that comes—that is the end of the process, as it were, which would be acceptable—but as it stands, the wording seems to imply an implicit or explicit duty to release prisoners serving a whole life sentence instead of posing the duty to consider the release. With respect to the noble and learned Lord, that would have been a better way to phrase the amendment and would give the public more assurance than what appears on the face of it—and I appreciate that it is only on the face of it—to be an absolute duty to release certain prisoners serving a whole life sentence.
That is precisely my point. The amendment rightly envisages a duty to refer to the Parole Board, but on the face of it it looks as though there is a duty of release ab initio. That is not the noble and learned Lord’s intention—and I say this with great respect, because of course he is a very eminent and learned judge—but it might have assisted his case if it had been put in that way. That point in a sense echoes the point made by my noble friend Lord Borrie.
It is sensible to restore a situation in which a release after 30 years can be contemplated and, after due process, properly agreed. If the Parole Board adjudges that it is safe to release someone, that should be the Secretary of State’s duty at that point. In fact, relatively few people are serving these sentences—I think there are 40 prisoners, and that 20 have been sentenced in that way in the last 10 or 12 years as a result of their trial and the conditional decision at the time—so I think there is a way forward on this, with a slight modification of the way in which the amendment is phrased, and I hope that the Government will look sympathetically on it while clearly bearing in mind that there will be some prisoners for whom, in the end, there will be no hope of release. One hopes that there will not be many in that category, but there will be some, and that ought to be recognised from the outset.
My Lords, the noble Lord, Lord Beecham, referred to the unanimity of view in the House during this debate. I sometimes think that perhaps a joint meeting of both Houses would be interesting when we discuss these issues. Nevertheless, this House has a long and proud history of providing a platform for penal reform, and it has certainly lived up to that reputation today.
I make one or two preliminary comments. The noble Baroness, Lady Stern, referred to the campaign to abolish the death penalty. Like many in this House I am old enough to remember that campaign, and I remember that part of it, which swung many MPs, was the proposal that life would mean life. It has always been a problem area, particularly for those who have committed the most horrific crimes.
The story that the noble Lord, Lord Ramsbotham, told was very encouraging in that it told of someone’s capability do good, even after the most horrific crimes. However, that capacity to do some good would not convince me to release a dangerous person into the community—and it is that test that has to be passed. I would hope that even those who spent the rest of their lives in jail would find within their confinement a capability to do good.
I think that we will return to this theme on a number of occasions in the next hour or two, as various amendments come up. The noble Baroness, Lady Stern, asked what sort of penal system and what sort of values we should have, and the noble Baroness, Lady Mallalieu, called for courage. Courage is certainly needed, but so is a practical use of the art of the possible. Penal reform is always a balance between humane treatment of those who are in prison, concern for the victims of crime and the retention of public confidence in our system of justice. Unless we can convince the public of the elements of punishment and public protection within the system, we will not get their buy-in to rehabilitation, which as I have often said from these Benches is very much part of what I and the Lord Chancellor see as built into the system. However, unless we can carry colleagues and the public with us and retain public confidence, we will not get the kind of reform that we want. I freely acknowledge that carrying through some of these reforms is an exercise in the art of the possible in what will win the confidence of the other place and the public.
As the noble and learned Lord said in introducing his amendment, things were different some time ago. One good thing to my mind about recent reforms was that all tariffs are now judicially determined. I am one of those—and I share it in other cases as well—who thinks that we should rely on judicial judgment in these matters. The imposition of minimum terms and whole life orders is now a matter that is exclusively for the judicially. I was very interested in his views on the judgment of the European Court of Human Rights. I tend to agree with the noble Baroness, Lady Stern, that when the Court gets it right it does not get much coverage. I am sure that if it reverses its decision, it will be page 1 again. Nevertheless I was a little worried that both the noble Lord, Lord Pannick, and the noble and learned Lord seem to think that a majority verdict was somehow of less value. A verdict is a verdict, and a win is a win. I am sure that he has been on the winning side a few times in those circumstances—I knew I was tempting fate.
Yes, the Minister was tempting fate, but I am very grateful to him. We said that it was by the very slenderest of majorities because three judges decided one way, three judges decided the other way and the seventh judge decided with the majority on a reason that, at any rate, I simply cannot understand. It seemed to have nothing to do with the case. Anyway, we will know when it goes to the Grand Chamber.
When I read the football results on a Saturday night and Blackpool have won four-three, I am not interested in whether the final goal was thought to be offside as long as it counted, but I am sure that is not a legal opinion.
As has been explained, the amendment provides for the possibility of a conditional release of a prisoner serving a life sentence with a whole life tariff once he or she has served 30 years. It would produce the odd effect that an offender who had committed the most exceptionally serious crimes could be considered for release earlier than a life sentence prisoner with a determinate minimum term of more than 30 years. The minimum term or tariff under a life sentence is the period which the court determines the offender has to spend in custody for the purpose of punishment and deterrence. In other words, it reflects the seriousness of the offence. Schedule 21 to the Criminal Justice Act 2003 provides guidance to the courts on the determination of a minimum term for a life sentence imposed for murder. It provides for a whole life tariff to be the starting point for the most exceptionally serious cases, where the offender was aged 21 or over at the time the murder was committed.
The types of case that might attract the whole life tariff are: the murder of two or more persons where each murder involves a substantial degree of premeditated planning; the abduction of the victim or sexual or sadistic conduct; the murder of a child involving the abduction of the child or sexual or sadistic motivation; a murder done for the purpose of advancing a political, religious or ideological cause; or a murder by an offender previously convicted of murder. Few would argue against these types of case representing crimes so heinous that the court may well consider the appropriate punishment to be that the offenders must be incarcerated for the rest of their lives. Those punishments are, as we would expect, rarely used. The noble Lord, Lord Beecham, referred to a figure; the actual figure is that 47 prisoners are now serving a whole life tariff.
We have already referred to the fact that the Government's position on this was upheld in the European Court of Human Rights. We will await the outcome of the appeal, but our position stands. Nevertheless, if a stage is reached where the continuing incarceration of a whole life tariff prisoner is found to be inhuman and degrading, for example where the person is terminally ill or severely incapacitated and poses no further risk, the Secretary of State has the power to release the prisoner on compassionate grounds.
The Government do not therefore consider that it is necessary or desirable to accept this amendment. The court will have taken full account of the circumstances of the offence and the offender in determining that the whole life term is appropriate. Such appalling cases are mercifully rare, but judges can legitimately find that lifelong incarceration is necessary as a punishment. If the detention of a whole life tariff prisoner could no longer be justified and became inhuman and degrading, there is already the mechanism allowing for his or her release. On those terms, I ask the noble Lord to withdraw his amendment.
On public confidence, which the Minister rightly emphasised is so important in this area, why does he think that the public should not have confidence in a system in which, after 30 years, an independent parole board can ask itself whether it is any longer necessary for the protection of the public, and whether it would be in the interests of justice, that this person remains in prison. Why should the public not have confidence in a law along those lines?
Some future Government may well bring forward a proposal along those lines. The judgment of the Government at the moment is that on a law that is safely in judges’ hands for determination, and that applies to a specific number of the most serious crimes, the position as it is now is best in retaining public confidence. It is a matter of political judgment, and the political judgment is that to move on this point, at this point, would not retain public confidence in a package in which we are trying to make moves in certain directions and carry colleagues who are not as enthusiastic as this House on some of these matters.
In the last few minutes the Minister has encouraged me, because he has said that at some point it may be appropriate to introduce legislation that meets the arguments that are being put. It is not the first time that I have heard the noble Lord refer to the importance of holding public confidence, and we all understand that point, but it is not a matter of accepting as inevitable the existing state of public opinion. We have to be very careful that we are not, in effect, running scared of the sensationalist media. We really should be not only respecting public opinion and public confidence but helping to shape public confidence by putting forward the positive argument for change. That is essential to successful democracy. If we have become convinced that this is the right thing to do, we have to speak up for it.
I entirely agree. That is why I said in my opening remarks that I am proud that this House has been the platform for penal reformers to argue their case over centuries, but I also say to this House that we have to carry another place and public opinion with us in these matters. One of the things I am most proud of is that this Government, and the Ministry of Justice under this Lord Chancellor, have been willing to try to educate public opinion. Some of the measures in this Bill will, I hope, move that forward, but no matter how much courage is used in expounding these views, if the result is for the public to lose confidence in the criminal justice system, those are Pyrrhic victories indeed.
From William Wilberforce to Sydney Silverman campaigns have been fought, and fought successfully. I am sure that this debate will be repeated in debates on other amendments, but I can only make the point so many times that politics is the art of the possible. We believe that the package of reforms here carry forward some of the interests of some of the Members of this House. However, they must also recognise that wider public opinion—and wider political opinion—does not share all their ambitions at this moment. We are all involved in debate and political education, and I welcome this debate as a contribution to that, but I have to deal with political reality as well.
My Lords, I am grateful to the Minister for his reply. The views of the House today could not really be more unanimous. It is clear that every single person who has spoken is in favour of this idea. I would like to mention them all but I shall mention particularly the right reverend Prelate the Bishop of Chichester, as he happens to be—
I hate to intervene, especially in the middle of a tribute being paid to a Bishop, but I wonder whether the noble and learned Lord would ponder my suggestion that a joint meeting of both Houses would produce such unanimity. The Members at the other end actually have to face the public in a way that this House does not.
Indeed. In a sense, that is the only point that the Minister has made, to which the answer surely is that it is occasionally possible for the House of Lords to lead the way, to influence the other place and even to influence the public. If that were possible, this would be an opportunity to do it. I would like to mention particularly the observations of the noble Baroness, Lady Stern, with all her experience and knowledge of this subject, and the right reverend Prelate because he is my diocesan bishop and I feel therefore that I owe him that duty. I beg leave to withdraw the amendment.
Amendment 178A withdrawn.
Energy: Feed-in Tariffs
My Lords, with the leave of the House I shall now repeat as a Statement a response to an Urgent Question made in the other place by my honourable friend the Minister of State for Climate Change.
“I am responding to this question as the new Secretary of State for Energy and Climate Change had a longstanding engagement that prevented him from being here. He is currently opening the world’s largest industrial offshore wind farm in Cumbria.
The Government have today announced plans to ensure the future of the feed-in tariffs scheme and make it more predictable. These reforms will lead to a bigger scheme, providing better value. The scheme provides a subsidy, paid for by all consumers through their energy bills, enabling small-scale renewable and low-carbon technologies to compete against higher-carbon forms of electricity generation.
The unprecedented surge of solar PV installations in the latter part of last year, due to a 45 per cent reduction in estimated installation costs since 2009, has placed a huge strain on the feed-in tariffs budget. This threatened the Government’s ability to roll out these small-scale low-carbon technologies in the numbers we wanted over the next few years. We acted as swiftly as possible to respond to that threat through the changes that we are now making to the tariffs for solar PV.
Today is a turning point for the feed-in tariffs scheme. We are taking the opportunity of the review to put right the many limitations of the scheme that we inherited. We have looked hard at the feed-in tariffs budget and made the most of the flexibility available under the levy control framework to ensure that we keep the scheme going, but we want to do much more than that.
The reforms that I am announcing today are designed to make that budget go as far as possible to maximise the number of people able to benefit from feed-in tariffs. With this new reform package we aim to give plenty of TLC—transparency, longevity and certainty, which were absent from the scheme that we inherited. The reforms will provide greater confidence to consumers and industry investing in exciting renewable technologies such as solar power, anaerobic digestion, micro-CHP, wind and hydro power.
Instead of a scheme for the few, the new improved scheme will deliver for far more. Our new plans will see almost two and a half times more installations than were planned under Labour. This is good news for consumers and good news for the sustainable growth of the industry. We are proposing a more predictable and transparent scheme as the costs of technologies fall. This will ensure a long-term, predictable rate of return that will closely track changes in prices and deployment.
Make no mistake, this will be a challenging package. The tariff degression mechanism we will be proposing will not allow for fat profits or for excessive rents. However, it will also show a serious ambition. We believe that, under our new plans, by 2020 we could see over 20 gigawatts of solar PV in the UK.
The coalition wishes to see a bright and vibrant future for small-scale renewables in the UK, in which each of the technologies is able to reach its potential and get to a point where it can stand on its own two feet without the need for subsidy, sooner rather than later. In opposition we promised a decentralised energy revolution—power to the people. Today we are making a huge stride towards achieving that ambition.”
That concludes the Statement.
My Lords, I thank the Minister for repeating the Statement in the House today. I am grateful for the opportunity to debate some of these issues and to seek a few points of clarification on issues where I am not clear.
I welcome the Statement and the comments in the Written Ministerial Statement issued this morning about how the feed-in tariff scheme is an important instrument in meeting the Government’s commitments on the take-up of small-scale low-carbon technologies, particularly after the comments of the noble Lord, Lord Marland. I am sorry that he is not with us today because I could have teased him on this; when we debated this issue on 30 January, he declared this scheme as one of the most ridiculous schemes that had ever been set up, and said how bad it was to have a product that needed the sun to shine to produce electricity. I am glad to see that the Government did not take his advice and instead are being supportive in their Statement today.
I sometimes think that I am repeating myself and that this falls on deaf ears, but one of the great frustrations of the debate on the now regular changes that the Government have made to the feed-in tariffs scheme is how it has been caricatured by Ministers as between a Government who recognised that there needed to be changes to the scheme and everyone else who thought that no changes were needed. I would like to lay that to rest: neither we nor the industry have ever argued against change. Our concerns have been that the speed, the scale and the way in which the changes have been made have badly damaged investor confidence across the whole renewables sector and have cost jobs. The industry is in real danger of losing the momentum that it has worked so hard to achieve.
To clarify that, I put forward the principle of degression, which is referred to in the Statement and in the consultation, in a previous debate last November when I suggested that the Minister took the opportunity to look at examples from other countries including the German degression mechanism, which controls volume as well as returns. I also advised the Minister then that these would work in the UK only with a more ambitious approach to the amount of solar PV
There is a lot to digest in the consultations issued today. I hope that there will be much to support, and no doubt we will return to these, but today I would like to raise a few issues with the Minister. The department has said today, and this is confirmed by the Minister Greg Barker in the other place, that DECC commissioned an analysis on the costs of solar PV. My understanding is that the study was commissioned on 10 January but it had to report back just three days later. How many solar PV businesses were consulted as part of that analysis? I also ask for clarification of the community schemes referred to in the consultations.
The Minister may be aware that the previous scheme that was brought in by Labour provided for community schemes because we think that that is an important way forward, particularly for social housing. The Government’s first tranche of changes to solar PV and feed-in tariffs divided the market into schemes above or below 50 kilowatts. That not only ruled out the large-scale solar farms that the Government were seeking to take out of the scheme but made community schemes unviable. When I and my colleagues in the other place raised this back in November, Ministers agreed to look at it again and bring forward proposals, so we welcome consultation and will look at the new proposals on community schemes. What discussions have the Government had with housing associations and social landlords? They will be most likely to benefit from the proposals and take advantage of these schemes. I am particularly interested in discussions around the size of the community housing schemes that could benefit.
Many in the industry who have had an opportunity to look at the proposals this morning, albeit very briefly, have been alarmed by those that could see incentives for installations with less than four kilowatts of capacity cut by a further 35 per cent to 13.6p. Their fear is that it could lead to a significant contraction of the sector. What consideration have the Government given to the impact that this level could have on businesses, and has any consideration been given to the possibility of a further surge in applications before such a level is imposed?
Can I also seek information or clarification regarding the energy performance rating of homes that will be allowed to install solar under this scheme? The Government have changed the rating from C to D in response to the consultation, which should be welcomed. However, I am slightly confused about the figures on this. Can the Minister confirm that this still means that the 50 per cent of homes that are the least energy-efficient will not be eligible? Given that private rented properties are currently ineligible for the Green Deal to install energy-efficient measures, I am concerned that some of those who would most benefit from both schemes will be eligible for neither.
Can I also ask what weight the Government will give to the responses to the consultation? The noble Baroness will be aware that the previous consultation made huge cuts to the feed-in tariffs. Several consultations followed each other and around 80 per cent of the respondents opposed the Government’s plans. To be fair to them, many supported and some suggested other, less drastic alternatives to cutting the costs in that way. However, to ignore 80 per cent of respondents was quite shocking. Therefore, can I make a plea for the noble Baroness to discuss this with her colleagues, so that the Government work harder to discuss the plans with the industry, rather than just tell it what to do? I should like to avoid this constant merry-go-round of consultation, changes, consultation and changes. It would be great to work with the industry to get the changes right once and for all.
My next point is, again, a request for clarification from the noble Baroness regarding the cost of these ongoing legal actions over the Government’s changes to the solar feed-in tariffs. I was able to mention this to her, albeit briefly, just before we came in. I know she is aware of my concerns about this merry-go-round of legal actions when my belief is that the Government should negotiate with the industry, rather than go into court after court and lose in court after court. When I asked the noble Lord, Lord Marland, a Question in your Lordships’ House on 30 January about the cost to date of legal actions, I think he made a mistake in replying. He gave me exactly the same answer, of £66,400, as was given to my right honourable friend Caroline Flint a week earlier in the other place. In the time between her Question and mine, the Government lost the Court of Appeal case—so they must pay the other side’s costs as well—and decided to go to the Supreme Court. Therefore, the costs must now be at least twice that, if not more. Can the noble Baroness update the House on the cost to date?
Finally, we all want to consider and look in some detail at the consultation. I hope it will be an effective consultation exercise and that the contents of the documents will be discussed with the industry and others. I look forward to further dates. I appreciate that the noble Baroness may not be able to answer all my questions, but I would be grateful if she could write to me with the details.
I am grateful to the noble Baroness for her comments. It is unfortunate that my noble friend Lord Marland is not here today. He is overseas and working hard to create new export opportunities for the industry. I know he would be disappointed to miss the opportunity to respond to the points raised by the noble Baroness.
On her first point about his comments in the Chamber the other day in response to an Oral Question, my noble friend is very clear in the way he speaks. He certainly does not require me to interpret anything for him. What he said was certainly striking but there was no mistaking that his point was that the level of subsidy that was available to an industry that has become so successful was ridiculous. That is something that we should certainly welcome.
I will respond to some of the other points that the noble Baroness raised. She questioned the impact of the change in tariff on the industry. As I said in the Statement made by my honourable friend, which I repeated, we are very clear that we see a long-term future for the solar power industry. It is important. We want to put in place arrangements that safeguard the future of jobs in a sustainable way. In preparing for today, it was interesting to learn that, in the six weeks between launching the fixed consultation and its closure, more small-scale PV capacity was installed than in the whole year before. Indeed, the rate of installation continues to grow. This is an industry that is growing; it continues to be successful and we want it to be successful. Today we are announcing changes that will ensure that it has the certainty and the longevity that are important to its success. As I think my noble friend made clear in answering the noble Baroness a couple of weeks ago, as of now no job losses have been incurred. The changes that we are making are to ensure that those jobs are sustainable in the future.
The noble Baroness raised a detailed point about the cost of the analysis that was undertaken by the department after the consultation closed in the small window at the start of this year. The analysis received 80 quotes for PV installation from 10 companies and used a range of intelligence from the industry. However, on something as specific as this, I should like to write to the noble Baroness after today’s debate.
The noble Baroness also asked about community schemes. For the benefit of other noble Lords, it is worth pointing out that there are two issues to do with community schemes in what we have announced today. One part of our announcement deals with some decisions that the Government have taken in light of the first consultation, which took place last autumn. We are starting another consultation today. From the consultation outcomes that we are announcing today, it is clear that we listened very carefully to the responses that we received.
On community schemes, in the context of solar PV, we have announced that those who are installing more than 25 units, rather than one, should benefit from the higher tariffs. Previously, it was proposed that once someone had installed more than just one solar panel, they would start to receive a reduced level of tariff. We have increased that to more than 25 to make sure that we do not inappropriately cut off any of the small community projects that have been mentioned in previous debates on this subject. At the same time, we are consulting today on what the definition of “community” should be in the future. As the noble Baroness pointed out, this is a very important issue and we want to get it right. We are consulting and have already talked to organisations such as the National Housing Federation and local authorities about this. The point of that consultation is to make sure that we have a proper scheme so that communities—whether they are local authorities that want to introduce solar panels for a group of schools or community-based projects—receive the kind of tariff that they rightfully should.
I am reminding myself of other points that the noble Baroness raised in her remarks. On the EPC, the definition of environmental change is something else that we took account of in considering the responses to the consultation. As I said earlier—and as the noble Baroness has acknowledged—we have changed the level of environmental grade for those eligible for the tariffs from C to D. I think the noble Baroness was asking whether this would mean that 50 per cent of people would still not be able to benefit from this tariff change without making some changes to their houses. She is right: they will still need to make some changes to their properties. However, whereas under the previous arrangement only 9 per cent of houses had a grade C energy environmental rating, at level D the sort of changes which we would expect those 50 per cent of people who are not covered by the provision to make are measures such as insulating a loft, making changes to the control mechanism of a central heating system rather than the actual boiler and perhaps lagging a cylinder. A householder would need to take account of these small changes, which can be made at reasonable cost, to reach level D. I stress that we carefully considered and have taken on board the responses on that point.
The final point that the noble Baroness raised concerned the answer that my noble friend gave to her a couple of weeks ago when she was asking about the legal costs that the department has incurred in appealing the legal judgment at the end of last year. My noble friend was careful to make clear at that time that the department had incurred costs of £66,400 so far. That was an accurate figure of the costs that had been incurred. As regards any further costs that might be incurred in light of the appeal that the department is pursuing, it is impossible for me to give the noble Baroness an estimate of what they might be. She will know that decisions on the costs that the appellant might have incurred, and how much of those costs the department may have to pay, will be decided at the end of the process. We are appealing the judgment. It is important that I make clear why we are appealing. That is to the benefit of everybody. We are appealing because the judgment that was arrived at could add £100 million in costs each year to the public purse. In appealing that judgment, we are looking to safeguard around £1.5 billion of public expenditure over the 25-year tariff lifetime. We think it is right and in the interests of the public that we appeal that ruling. Obviously, in doing so, we will incur further legal costs. If the noble Baroness wishes to ask again what costs have been incurred when the process is completed, no doubt we will be able to provide her with an accurate answer which will reflect all the issues that have been taken into account along the way.
My Lords, I very much welcome the Statement. I also very much welcome the fact that my right honourable friend the Secretary of State concentrated on the renewables sector in the first few days of his taking office. I am pleased that the Statement shows that the Government are trying to get stability back into the investment market as I am sure that is something we all want to achieve. I also welcome the emphasis on communities that my noble friend has just mentioned as community schemes are very important.
As regards solar PV, a planning consultation is taking place today in Cornwall on a large-scale solar PV scheme and close to where I live another large-scale solar PV scheme is being rolled out. Therefore, I do not think that we need to worry too much about that industry once we have stability. I have read a DECC Written Ministerial Statement by Edward Davey on the internet. That was perhaps rather naïve of me, but it seems to be slightly different from the one we have heard today. I was pleased to read in that Statement that the department has looked hard at the FITs budget and made the most of the flexibility available under the levy control framework to ensure that it can keep the scheme going.
I very much welcome flexibility and know that it is welcomed by many people in the industry. If my noble friend cannot answer my next point fully, I would welcome a written response. How much flexibility is available as regards different types of technology within the FITs budget? Can that flexibility be increased as regards the FITs budget and the amount that the ROC system is expected to cost? I welcome this greater flexibility but would like to understand how far it might extend into the future. I appreciate that my noble friend might not have all the detail with her at this moment.
I thank my noble friend for his comments. I think it would be better if I wrote to him on his specific question. I am aware that there is definitely flexibility within the department. To put it another way, one of the advantages of the new arrangements that we are putting in place is that we do not have to introduce significant shifts in the way in which we change the tariff as the solar PV industry becomes more successful. In terms of flexibility that is an important thing to be able to do. We have a budget for that but it is proving difficult to predict specifically how the tariffs will change in light of the success of the industry, and it is increasingly successful. I think it is probably safer for me to write to the noble Lord on whether that budget can be used for ROCs rather than feed-in tariffs.
I am grateful to the noble Lord for referring to community projects as it gives me the opportunity to correct something that I said in response to the noble Baroness, Lady Smith. I think that I became a little confused between my “highers” and my “lowers” when I was talking about the number of people who might benefit from the new multi-installation tariffs. Projects of fewer than 25 units will enjoy the higher tariffs. Those above 25 units will not because once you get above 25 you start getting into a different category of people, and clearly they should not be subsidised by the public purse.
My Lords, I declare an interest as the chairman of the Anaerobic Digestion and Biogas Association. That always gets a smile but I feel that I am a lone voice. I add a note of slight criticism: FITs are not just for solar PV. It seems to me that unless I raise AD, it never seems to get mentioned in this House, but FITs are incredibly important for small-scale AD. We are going to be very much more reliant on the renewable energy coming from AD than we are from PV. Although PV is important, the amount of generating capacity is a fraction of that coming from AD.
I seek clarification on two points in relation to the Statement. However, I realise that this is a consultation process. First, DECC has come forward with a 500 kilowatt band. The problem we always have with setting such arbitrary targets is that we then have to build the kit to meet the artificial target. Until recently no technology has stopped at 500 kilowatts, so you end up building new kit to meet the artificial boundary. There is a problem here. With regard to the digressions that have been talked about on small-scale FIT, after you go over the 500 kilowatt point, the amount of money you will get under FIT goes down markedly. The stated aim in the consultation is that farm-based AD should take in food waste. If it is taking in food waste, it will then start producing more power because there are more kilojoules in the food waste, which will take it over the band. However, the very boundary itself, and the digression that is set in there, could bring about a major problem in that people will not take that extra step because they cannot get the funding.
Secondly, the expression “TLC” was used. “Tender loving care” is probably a better expression. The same financiers who have had certain problems with solar PV are the ones who are financing AD. It is extremely difficult to get any debt financing or equity financing for AD at the moment. This is of particular concern regarding the statement that if certain trigger points are met, there would be a retroactive reduction in the feed-in tariff for anything coming on-stream at that point. If we were nearing those targets, that would have a major implication for financiers financing schemes because they would not know which band tariff they would be under. I realise that that is a point for consultation and that the Minister might not be briefed on the minutiae of these individual issues, but the major problem at the moment with anaerobic digestion is that it is a high-risk operation and we need to make sure that the financiers are in a position to fund it. We therefore need regulatory clarity over the regime. I very much hope that my noble friend will take these points back to DECC.
I am grateful to my noble friend for his comments and for widening the debate beyond solar. It is worth pointing out that feed-in tariffs are not just about solar PV but, as I mentioned in my Statement, they are also about micro-CHP, wind and hydro power, and anaerobic digestion, as my noble friend said. As to his specific question about bands for AD, they are the same as in the original scheme, so we are not proposing a change. However, we have announced today two things: one is an outcome from the first phase of the consultation, and the other is the start of a second consultation. I therefore hope that my noble friend will take the opportunity of the new consultation and make his contribution along the lines he mentioned.
My Lords, I broadly welcome the Statement. As someone who spent three years as an energy Minister in Northern Ireland, I have some grasp of the problems we face. While the announcement today is one step, we must remember that there is no silver bullet for resolving our energy problems. Much of the enthusiasm from various groups conceals the fact that we do not really have sufficient non-fossil fuel and nuclear capacity in this country to make the sort of impact that we hope for in the long term. One of the reasons why we have to approach this matter from a different angle is that we need to do more by way of making what we have more efficient. Can the noble Baroness ask her right honourable friend the Chancellor of the Exchequer to encourage the retrofitting of buildings to reduce energy demand? One of the levers at his disposal is VAT. We charge full VAT on the refurbishment of buildings and no VAT on the construction of new buildings. We need a twin-track approach—one to develop other energy sources, and another to increase insulation and thereby make buildings more efficient. Would the noble Baroness be kind enough to draw that matter to the attention of her right honourable friend in the other place because the combination of those two directions that we should travel in is absolutely essential? Otherwise we are simply running to follow rising demand when in fact we must make better use of the energy that we are already producing.
I am grateful to the noble Lord for those points and for making the clear remark that there is not a silver bullet. It is important to keep that in mind when we look at the range of different sources of energy that we are using and introducing into our wider energy strategy in the UK. We need a range of different sources and that is precisely what we are doing.
As to the noble Lord’s specific point about VAT exemption on new builds, and whether that can be introduced for retrofitting of older buildings in order to make them more energy efficient, which is another important part of our strategy, I will certainly pass that point on to my right honourable friend the Chancellor as I am sure the noble Lord will understand that it is not possible for me to respond today.
Olympic Games 2012: Match Fixing and Suspicious Betting
Question for Short Debate
My Lords, I declare an interest as chairman of the British Olympic Association, a member of the Olympic Board and a director of the London Organising Committee of the Olympic Games.
When IOC president Jacques Rogge stated that corrupt betting, not doping, was the biggest threat to the London 2012 Olympic Games, his opinion was read by some to be surprising and unexpected. From my perspective, his words were intended to send a signal to Governments, the Olympic family and, above all, the athletes proactively to take seriously a potential scourge that could seriously damage the reputation of the Olympic Games and the integrity of Olympic sport in the 21st century.
Today’s debate provides us with an opportunity to assess how well prepared we are for this threat to sporting competition. To date, we have taken only a few tentative steps towards addressing how sport can best mount a counterattack against suspicious betting and event fixing in Olympic and Paralympic sport.
Over recent years, this threat to sport has grown. Significant changes in the betting market during the past decade have provided increased opportunities for those who seek to engage in corrupt betting on sport. Internet betting and new betting platforms—exchange and spread betting—have resulted in increased liquidity in the betting markets and the opportunity for punters to play the bookmaker and bet on teams, individuals and horses to lose. Above all, the industry is increasingly designing every conceivable type of bet, and the greatest danger comes from bets available on specific events that occur “in play” and are televised globally
The strongest and most effective response in the United Kingdom came from the Parry report—a review of integrity in sports betting. It recognised what has become commonplace in the financial sector, where the misuse of inside information—insider dealing—is a criminal offence, and proven breaches are likely to result in a criminal prosecution overseen by the FSA. That remains a far cry from the world of sport, where there is no generic definition of inside information. The lack of any clarity on this issue poses a major problem for the Olympic movement. As your Lordships will be aware, there are various types of inside information, and sport rules need to cater for them. The most obvious is match fixing. Being in possession of inside information that will bear directly on the outcome of the events enables punters to place a bet, safe in the knowledge that it will win.
There are, however, other types of inside information open to abuse that do not bear directly on the final result of the event. Such information may be used for what is known as spot fixing, whereby inside information is misused to bet on certain acts taking place during the course of an event, although those acts may have no bearing on the eventual result of the event. The recent conviction of three Pakistan cricketers for arranging no-balls to be delivered at certain fixed points of the Lords test match against England is an illustration of that sort of inside information, as they knew those no-balls were going to be bowled at that stage of the England innings, which in turn proved very useful information for corrupt betting purposes.
The Parry review led to the establishment of the Sports Betting Group, which advises the British Olympic Association. I pay tribute to that group, which includes Darren Bailey, Simon Barker, Ian Smith, Paul Scotney, James MacDougall and Tim Lamb, for its work on this issue, and its advice to us at the British Olympic Association and to the athletes that we will select to represent Team GB. The Parry review made further recommendations that are relevant to our debate and merit consideration by the Government. The review called for an ongoing risk assessment process, and constant and effective monitoring of betting patterns. This summer that must mean constant monitoring of every televised event in the Olympic Games, and cover every heat and every final.
The decision to establish a joint working party between the Gambling Commission and one IOC representative to undertake that work is a start, but the 205 national Olympic committees and the Paralympic committees need to know what process will be followed when strong evidence of irregular or illegal betting is discovered. To date, there is no guidance on whether the athlete, the coach or the team chef de mission will be immediately informed and what should be done with that information. The athlete may be innocent, but there is no guidance for national Olympic committees, let alone established rules and procedures to follow. At the British Olympic Association, we have embarked on our own far reaching educational programmes and embedded codes of conduct to be signed by every athlete selected to participate in the British team but, for many British athletes, this will be the first time that they know the rules regarding the scope of their ability to place a bet on the Olympic Games; whether their coaches or families can place a bet on another sport in the Olympic calendar; or what to do if they are approached to fix a competition, or part of it, and to whom to report.
A universal code of conduct is required urgently if the scourge predicted by president Jacques Rogge is not to become reality. The IOC's founding working group on the fight against irregular and illegal sports betting has made an important start. Both the Minister for Sport and I sit on that body. Its challenge is to ensure that, before London, the Olympic movement moves from broad generalisations to a detailed action plan and advice to the athletes, international federations and national Olympic committees alike.
We need ongoing programmes of education and awareness-raising for all sports participants, particularly on the dangers of the misuse of inside information. It is regrettable that, in all the forums working on that issue, the principal stakeholders—the athletes—are not represented, as they are central to resolving that challenge. A handful of athletes may be the problem. The overwhelming majority of athletes—those of the highest integrity and desirous of contributing to the fight against threats to their sport—are a vital part of the solution. It is notable that the biggest problem by far in cricket is in the three jurisdictions where there is no player association: India, Pakistan and Zimbabwe.
For London 2012, the Minister for Sport, Hugh Robertson, and his colleagues are to be congratulated. The system for the London 2012 Games exceeds any which has been seen before at a multisport event and includes the establishment of a joint assessment unit, which will monitor betting intelligence throughout the period of the Games. Although the progress which has been made by the Gambling Commission and the IOC should be applauded, there is a need to ensure that the communication and disciplinary procedures which will operate at the time of the Games are robust. At present, guidance is needed from the Government on a range of related issues. I put the following questions to the Minister.
What is the process for analysing and reviewing the credibility of any evidence discovered by the joint assessment unit? Are there plans to monitor live betting activity? Will independent experts be recruited to review evidence? Will data be collected in advance of the Games of the betting patterns across both Olympic and Paralympic sports? What procedures will be adopted by the IOC to notify national Olympic committees of any adverse betting activity within their delegations? Are there plans to carry out scenario planning and testing for the JAU? That will be invaluable for all stakeholders to understand how communication processes will work and to test the processes for analysing evidence.
It is not clear whether the IOC Ethics Commission has sufficient understanding of suspicious betting and the appropriate mechanisms in place to act effectively. For example, it worries me that the frequent use of the word “irregular” is often linked by the IOC to illegal betting. The proper definition should be suspicious betting. The reason why that is misleading is that history shows that the challenge for the majority of sports is suspicious betting on legal markets. Irregular betting patterns are a normal everyday phenomenon of all betting markets and can be caused by a number of factors that are not to do with corruption, including the volume of money. Although betting-related corruption on illegal markets can be a problem, that is mainly in the sport of cricket. Recent betting-related scandals in horse racing, football and snooker have all been on legal markets, both traditional fixed odds and the betting exchanges.
We also need to address the problem that many bookmakers operating in the UK do so over the internet and are based overseas in places such as Gibraltar and Malta. That means that they avoid the UK licensing regime as well as tax. As a result, those operators are not statutorily obliged to share information with the Gambling Commission and sports governing bodies. I support Matthew Hancock who, in another place, is urging the Government to put those proposals into effect as soon as possible. Additionally, the existing definition of cheating in the Gambling Act 2005 is not, in my view, fit for purpose. A specific sports fraud definition is necessary. The Parry report was once again right in that respect.
I have sought to set out a few essential components of a comprehensive programme to meet the challenge set out by the president of the IOC. The central threat to the 2012 events is that many of the participants and officials will come from countries where corrupt individuals will pay a life-changing amount of money, which can be as little as $5,000, without thinking as they know that they can make 10 times that, particularly by betting on the exchanges, if they know that someone will definitely not be winning. The use of specific inside information that someone will not be winning an event for any number of reasons is gold dust to those in corrupt betting.
We need a sporting landscape in which universal rules are formulated to tackle betting-related corruption— a landscape that recognises the importance of ongoing monitoring and assessment of the risk that all Olympic sports face from corrupt betting, particularly the misuse of inside information.
My Lords, the noble Lord, Lord Moynihan, is indeed to be thanked for asking this crucial Question and giving us such a comprehensive overview.
With the Olympic Games just a few months away, the threat of match-fixing tactics and suspicious betting grows even greater. In a more perfect world, where Corinthian ideals still prevailed, there would be no need for us to have this debate but, sadly, that dark shadow threatens to undermine public confidence in our Games. Cheating appears to many to be endemic in some sports, with only the most vigorous and determined detection unveiling wrongdoing. Faith in the integrity of athletes and those around them has to be maintained. We bid for the Games not only for the privilege of holding them in London but also to provide a high-profile shop window for sport and to inspire and motivate all of us—perhaps most importantly young people—to become physically active. The prospect of an Olympics where cheats may be seen to prosper is unthinkable. Thus, the role of Her Majesty's Government is vital. Only they have powers to act as guardian of sporting integrity. They are faced with unprecedented gambling on sport on a global scale, where international vigilance is needed to combat cheats.
In order to put questions to the Government, I will look at the relatively short history of the Gambling Commission, set up under the Gambling Act 2005, to the present day. Under the Act, the commission has powers to prosecute offences of cheating and to void bets. Any money paid in relation to illegal bets must be returned to the person who paid it. The commission's work on betting integrity has a licence condition which requires betting operators to share information of suspicious transactions with the commission and with sports governing bodies.
At present, the Gambling Commission regulates most gambling activities in the UK. As the noble Lord, Lord Moynihan, pointed out, remote gambling is a different proposition. Those operators who offer services to British customers but operate entirely from overseas are not subject to regulation by the commission.
In 2009, Gerry Sutcliffe, the then Minister for Sport, established a panel of experts to consider the integrity of sports betting. As a result of their deliberations, a sport betting group was set up administered by the Sport and Recreation Alliance—long known to us old hands as the CCPR—and it, in its turn, established a set of voluntary procedures to constitute a code of practice. That code seeks to help sports to understand and react accordingly to the threat posed by betting.
Moving on in this reflective passage, the DCMS’s Consultation on the Regulatory Future of Remote Gambling in Great Britain, which came out in March 2010, strengthens the constraints on operators, promising primary legislation for a new licensing system. Following an inquiry by the House of Commons Culture, Media and Sport Select Committee, the Government made a response promising further action. Most recently, Hugh Robertson, Minister for Sport and the Olympics, asserted that Her Majesty’s Government intend to establish a unit to target suspicious betting at the Olympic Games.
All those assurances are designed to give confidence that the Olympic Games will be comprehensively protected, but can that be the case? Is it not evident that the Government’s response is classically too little, too late? With only weeks to go, it would appear that the promised legislation is unlikely to be in place, so where will the protection be that is legally enforceable? Are the Government satisfied with the Sport and Recreation Alliance backing a voluntary code of conduct for the governing bodies? What safeguards does such a code provide? And what of the international aspect of illegal betting? What pan-European strategies are in place? Do we enlist the co-operation of our European neighbours to help us to enforce a clean Olympic Games? Are we, indeed, already speaking to our European neighbours? If recent actions at the European summit are anything to go by, it is unlikely that the warmest co-operation will be forthcoming.
Spreading even further abroad, worldwide co-operation is essential. What progress have the Government established with Governments who agree with us about the importance of integrity in sport? What progress has been made by policing units and government departments in setting up appropriate strategies for prevention and detection? All these questions, and many more, remain unanswered. The general public demand those answers.
We appear to have a Sports Minister who is rapidly running out of time and a Government who are running out of ideas, all of which fills me with total apprehension regarding the security of the Games. I wait to be told that I am wrong. All the nation’s sporting bodies need a detailed account of the Government’s pledges so that we can be reassured that the Games are not only fit for purpose but a beacon of integrity for all of us to look forward to.
My Lords, when I saw the subject of this debate, I initially thought, “Oh, yes. That will be a problem this time, won’t it?”. When most of us think about betting, we do not think about the Olympic Games or the Games structure; we always think about certain activities. Traditionally it was racing but it has now expanded into football, with possibly boxing or the other martial arts being dominant.
The Olympic Games have not had the best of records, in ancient or modern times, when it comes to the integrity of the events. Not only has there been the great problem of doping but at times question marks have been raised over the impartiality of judges in any sport that requires judging. Casting my mind back to when Torvill and Dean were winning everything, I remember that one or two judges from the eastern bloc gave them high scores and were never seen on the international circuit again. There is a tradition of prestige in controlling what happens.
Now, we have a new threat, which basically is money. The noble Lord, Lord Moynihan, pointed out—or, at least, he made it clear to me—that the issue of money involves not just the medallists. The fact is that there is money to be made in an obscure market by making sure that an athlete who has made the grade to be a competitor but is expected to reach only the semi-finals does not get that far. One has only to look at the number of events to realise how many attempts can be made to interfere with the odds process by removing the competition at certain points. That is the challenge that faces us.
The noble Lord did an excellent job of going through the activity that has taken place, but I think that the noble Baroness, Lady Billingham, is correct that, as has always been the case, we are playing catch-up to events. We are in a reactive phase and have been for quite a long time. The previous Government may have started this but they still said, “Oh, there’s a bus ahead. I’m belting after it”. How much effort are we putting in to catch up? Perhaps the Government can give us some assurances about how they are progressing in this respect. The answer to this is surely to be open with information and share information in order to see where the flows of money and pressure are and what we should be looking at.
There was the example of a tennis match a few years ago when the person who was ahead suddenly dropped out. On that occasion, people were aware that something was wrong because it became clear from the betting markets. We have a huge ally here—the legitimate bookmakers, who are trying to make money out of their business, and accessing them is probably the best tool that the Government have available. They will not want to be ripped off, and those interfering in the markets will probably be targeting them predominantly. There is a huge mutual interest here in counteracting this problem. We have to make sure, as the noble Lord pointed out, that the representatives of the sports are looked after and remunerated properly, as that, too, is another defence against corruption in sport, as has been proven in the past.
We must take a holistic approach to this problem. Prevention will be better than cure here. It will be necessary to make sure that all countries that have athletes who are capable of winning or influencing the various stages are looked after, and the IOC itself is going to have to look after them. How the Government play into this is vital. There is a history of people trying to change things for the purposes of prestige and profit. Unless the Government encourage greater openness so that we are all aware of what is going on, people will find a way through. We need to put pressure on those who want to be associated with Britain—for example, Gibraltar and Malta—and make sure that we have total access to, and some way of dealing with, irregularities in betting there. That might be a way for those places to reassert how favourably they feel towards Great Britain and how much they want to be involved. I could put it much more strongly than that but life is too short. Perhaps my noble friend can give us some guidance on what we are doing on all these fronts.
One of the primary aims of the Olympics is to create a legacy. It is a legacy of how to deal with an existing problem and a legacy that will continue not only in relation to the Olympics but in relation to all future British sporting events. I hope that when my noble friend comes to reply she will be able to tell us what progress has been made in getting all those involved to pass on all the information they can to the relevant authority. Can she also tell us how soon they will be able to do that and how they will encourage the flow of that information? That is really the only way in which we can nullify, if not stop, the impact of corrupt betting.
My Lords, I thank the noble Lord, Lord Moynihan, for raising these very important questions and I apologise for the state of my voice. I declare two relevant interests in this debate. First, I am the Senior Independent Director of G4S Plc, which is the Olympic security contractor, but, more relevant to today’s debate on a personal and voluntary basis, I am a sports integrity adviser to LOCOG.
I do not share some of the pessimism that I have heard so far. I believe that London 2012 will be match-fit to deal with the threat of sports event fixing for betting purposes. Yes, there is a great deal to be done but one should not underestimate the huge amount of work that has been done so far. I am certainly not complacent. Vigilance remains the watchword but a great deal of thought, scenario planning, discussion and comprehensive planning has already taken place and continues to take place.
Based on my sports integrity work with international sports bodies in recent years, I believe and recommend that four things have to be in place to combat fixing for betting purposes. This applies to sport generally, but certainly to major events like the Olympics.
First, the criminal law and the sports disciplinary codes must be unambiguous and provide clear guidance and clear offences which may be involved in the event of fixing being alleged or suspected. There can be no ambiguity about what is and what is not allowed either in the criminal law or in the discipline codes of the sports. Certainly, we saw in the prosecution of the errant Pakistan cricketers how the criminal law could be used successfully in the United Kingdom. For the first time, the International Olympic Committee at this Olympics has adopted in its code of ethics comprehensive rules against betting and cheating at sport. These rules will complement the codes of behaviour that are being enforced by the individual sports federations. The regulatory framework, while not perfect, is certainly beginning to be put in place and is more fit for purpose in the London 2012 Olympics than in any previous Olympic Games.
Secondly, there is a need for a comprehensive education programme to raise the awareness of competitors and officials to the risks posed and the methods used by the fixers to groom and entice them into wrongdoing. Some sports are more advanced than others. They have had to be. Cricket and tennis have very comprehensive education programmes for everyone who plays international sport. Much has been done but much still needs to be done to raise awareness. I know that the International Olympic Committee and international federations know that they must do more in the build-up to the Olympics. Raising awareness and education is one of the vital ways of combating fixing in sport.
Thirdly, intelligence on fixing needs to be gathered, analysed, shared and, if necessary, turned into action. This is where there has been a great deal of work which perhaps has not been given sufficient publicity so far. We have planned, scenario-planned, modelled and looked at a variety of situations. During the Games an innovative joint assessment unit—JAU—will be formed. It will meet every day and comprise staff from LOCOG, the Gambling Commission, the Metropolitan Police, the UK Border Agency and the IOC Ethics Commission. There will be daily meetings to gather, share and assess all the relevant information and patterns on fixing and gambling coming in from whatever source—betting agencies, police agencies or the Gambling Commission.
Fourthly, there is a need to have the capacity to take swift and effective enforcement action. I can confidently report that the joint assessment unit has, in its planning and modelling, looked at the whole range of possible scenarios for our Olympics that could trigger criminal investigations and/or IOC investigations and individual sports federation investigations if and when required. Clearly there is no room for complacency, but a great deal of thought and preparation has already taken place and will grow in intensity over the next few weeks.
What is the level of threat to the Games by the fixers? Sports fixtures are not vanity or status fixers: they are not, like a train spotter or a bird spotter, seeking to fix an event at an Olympics because it is a prestigious event. They are grubby, seedy, mainly criminal people who look to make their sports fix wherever and whenever they can. They will target the Olympics only if they think that there are new or very easy opportunities to fix compared with the huge volume of betting and potential fixing that takes place every day of every year.
We must be vigilant, we must be prepared and we must do well, but let us not talk down our Olympics or over-scare about the size or reality of the threat. There is a bigger threat of fixing to sport generally than at the Olympics, because the bad guys are not stupid. They realise that it will probably be harder to fix at the Olympics than at a routine international event anywhere else in the world in a normal year, provided that they can bet and fix. We will remain vigilant and implement a very innovative joint assessment unit. Working together, we will do our very best to minimise the opportunities for the fixers to sour the atmosphere and integrity of London 2012. Your Lordships would expect or demand nothing less. Let us not talk down our Olympics unrealistically. Let us be proportionate about the threat and the response. I believe that although there is a great deal still to be done, a great deal has already been done, and I am confident that there will be a wonderful Games.
My Lords, I join others in congratulating the noble Lord, Lord Moynihan, on giving us the opportunity to debate this very important subject. He may not be aware of the significance of today’s date. It was seven years ago exactly—9 February 2005—when the report of the inquiry into the effects of betting on sport, which I chaired on behalf of the Parliamentary All-Party Betting and Gaming Group, was published.
Your Lordships may remember that that inquiry arose out of the work of the Joint Scrutiny Committee on the Draft Gambling Bill, on which I served. The scrutiny committee had had drawn to its attention a number of allegations over the integrity of betting in a number of sports but did not have time to go into them in detail. The all-party group asked me to chair the inquiry to look at the incidence of, and potential for, irregular and corrupt betting on sports and the proper use of inside information. We took evidence from a number of very distinguished witnesses, one of whom was the noble Lord, Lord Condon, who spoke just a moment ago. Our report contained 15 specific recommendations. I have to tell your Lordships that while a number of these recommendations have been accepted—by government, sports governing bodies or by betting organisations—several have still to be implemented seven years on. They have a direct relevance to this debate today.
Let me deal with just three of them. We proposed that there should be a proper definition of cheating. That call, as the noble Lord, Lord Moynihan, said, was echoed in the report of the Sports Betting Integrity Panel set up by the Government and chaired by Rick Parry in 2010. Indeed, it was the very first recommendation that the panel made in its report. There is no evidence that the definition of cheating in the Gambling Act 2005 has yet been reviewed, and more needs to be done to investigate and prosecute those who are suspected of this crime.
A second recommendation of ours was that sport should have a direct involvement in determining the type of bets that may be facilitated and that these should be incorporated in future and existing memoranda of understanding between sports and betting organisations. The risk with the Olympics is enormous. All the major betting organisers have said that they will be taking bets on all the events. A lot of that will be spot and so called “in running” betting. These are bets on an event as it happens. The odds are adjusted after the event starts and are continually updated. It is unlikely that many bets will be placed after the start of the 100 metres race, but on something like a marathon or an event based on, say, the best of three attempts, the scope for betting as it takes place is very considerable.
We have seen recently how cricket was corrupted by players taking bribes to do something unusual—in this case bowling no-balls in a test match—to ensure that punters who knew what was going to happen won their bets. The inquiry that I chaired came to the conclusion that there was no one better to judge what sorts of bet should be permitted than the sports governing bodies, as they more than anyone should be able to understand how their sports integrity could be threatened. I asked the Gambling Commission whether any progress had been made in this area. The commission wrote to me on Tuesday and said that the betting operators that it licensed,
“face no restrictions as to the types of bets that can be offered”.
I put it to the Minister that this is an unsatisfactory and dangerous situation, and I hope that she will be able to offer some reassurances about it.
The third area is the exchange of information and the licensing of overseas betting operators. The situation here, too, is unsatisfactory and poses a risk to the integrity of the Olympics. Recommendation 6 in our 2005 report was that all major betting operators should sign MoUs with the sports on which they based their business. In some respects this has been a great success. The Gambling Commission's licence condition 15.1 makes provision for the exchange of information between licensed operators and sports governing bodies. This has generally worked well and has brought to light—and to the Gambling Commission's attention—a number of irregular betting patterns and events, particularly in horseracing.
Even though it is now licensed in Gibraltar, the betting exchange company Betfair made much of the large number of MoUs that it had signed with sports governing bodies around the world. The company is part of the IOC's working group investigating irregular and illegal betting in sport. That is fine, and it seems that Betfair does as much as it would legally be required to do if it was still licensed in the UK. However, the situation with Gibraltar as a whole is less satisfactory. There is still no MoU in place between its regulator and the Gambling Commission, although there may be one by the time of the Olympics. While it is positive about its operators getting involved with the European Sports Security Association, the exchange of information is hampered by Gibraltar's data protection legislation, and licensed operators such as the bookmaker Victor Chandler are not even members of the ESSA.
The Government are supposed to be tackling this by introducing legislation aimed at shifting regulation to the point of consumption, which would have the effect of ensuring that all operators that serve UK-based customers would have to be licensed by the Gambling Commission. That would bring Gibraltar and the white-listed jurisdictions together and would lessen the risk of corrupt or irregular betting practices. Bodies such as the Alderney Gambling Control Commission—I declare a past interest as I advised the commission some years ago—have an exemplary record of promoting integrity. However, that cannot be said of all those who need to be brought into the net. It is a great pity that this new primary legislation will not be in place for the Olympics. I hope that nothing awful occurs during the Games that could have been prevented had the Government found time for such a Bill.
My Lords, I thank the noble Lord, Lord Moynihan, for securing the debate. I will declare my interests; I am vice-chair of the London 2012 athletes committee, I work with LOCOG in several areas, I sit on the boards of UK Athletics and the London marathon, and I am involved in several other sporting organisations.
I was fortunate to be in Singapore in 2005 when the bid was won. No one underestimated the logistical task of organising 1,000 sessions across 46 sports in the two Games. It is important as we go through the landmarks leading up to the start of the Olympic and Paralympic Games—this Saturday will be 200 days away from the start of the Paralympics—that we not only celebrate the successes along the way but bear in mind the challenges that might be thrown in our path. There is plenty to celebrate. LOCOG’s diversity programme has set new standards for procurement, inclusion of disabled people in the workforce, accessibility of venues and customer services. However, we will be remembered not just for organising a great Games but for the other work that we do.
The threat to the Games is relatively minor, but that should not stop us looking at this important issue. A number of stakeholders are focused on tackling match fixing, both from a sport and criminal perspective: the IOC, the IPC, LOCOG, the Government, the Metropolitan Police and the Gambling Commission. However, support is needed to continue this work. We have only to look at the recent court cases in sport to understand that there is a risk that must be managed. Sports people are held up as beacons of virtue but they also need to be protected, along with the integrity of their sport. Spectators need to know that medals have been won fairly.
Work that the BBC published last week, on 7 February, highlighted some of the risks in football. Although football is very different from the Olympics, the risks should be flagged up as the report makes stark reading. FIFPro conducted a survey of thousands of players in eastern and southern Europe. Almost one-quarter— 23.3 per cent—said that they were aware of match fixing in their leagues, and 11.9 per cent had been approached to fix a game. What is positive about this is that it recognises that the club licensing system is not working as well as it could. While as many as 100 clubs were denied licences last season, this gives us a very important baseline to work on, and sets a mark of which other sports should be very aware.
For the Games this year, rules have been put in place to tackle the issue. They are published on the London 2012 website. This is the first time that the IOC has done such work in detail for the Games. An e-mail hotline has been set up by the IOC for people to report any suspicious activity. That should be welcomed and far more publicity should be given to it. Any sport disciplinary action at the Games will rightly be led by the IOC, with the support of the international federations for that sport. It will look at wider sanctions beyond the Games. This is exactly the same process that is followed for anti-doping. Like the noble Lord, Lord Moynihan, I am a passionate advocate for ethical sport.
In the same way as we have extensive anti-doping education for athletes, we should look at international and ongoing education to discourage other forms of corruption. I welcome the comments of the noble Lord, Lord Condon, about the clarification and guidance that will be needed for the athletes. That will be incredibly important. A sports person needlessly risking their career for short-term financial gain is something that we should continually and actively discourage, not just in the period leading up to 2012 but far beyond it. We should learn from the anti-doping experience and the benefits of intelligence data gathering. I understand that the DCMS has been leading the consultation to add the IOC and other international sporting bodies to Schedule 6 to the Gambling Act 2005. If these bodies were on the list, the Gambling Commission would be entitled to share its information with them. I hope that there will be a positive conclusion to this.
Finally, I am aware that much of the research available is around the Olympic Games. What measures will be in place for the Paralympic Games? We know that the risk for the Olympics is relatively low, and I assume that for the Paralympics it will be lower still, but as London 2012 raises the bar at all levels, will this be seen as a future potential risk for our athletes or for other international athletes around the world?
Once again, I thank the noble Lord, Lord Moynihan, for securing this debate. I look forward to a fantastic Games this summer and take the opportunity to wish Team GB and Paralympics GB the best of luck.
My Lords, I am grateful to my noble friend Lord Moynihan for securing this debate, which has allowed us the opportunity to consider how the Government are addressing the problems of match fixing and suspicious betting, and the threat that these might pose to the integrity of the Olympic and Paralympic Games. I pay tribute to his great expertise in Olympic and sporting matters.
It is an honour for the UK to host the 2012 Games, and we want to do all we can to make them a success. We must be prepared to tackle those things that threaten the spirit of the Games and to protect those involved from the corruption in sport that appears to have become a global issue, as a number of noble Lords highlighted in their contributions. It must be stressed that while match fixing is a growing dilemma, for every event tainted by this scourge there are thousands that are contested fairly and honestly at all levels and across all sports and nations. We must believe that those given the opportunity to participate in the Games will feel privileged to be part of such an historic and prestigious event, but we cannot ignore the evidence that there are those who will seek to corrupt the spirit of fair play and damage the integrity and spirit of sport, whatever the event and wherever it is held.
The IOC’s Olympic Charter states that it will,
“dedicate its efforts to ensuring that, in sport, the spirit of fair play prevails”.
We will do all we can to support this during the London Games. I welcome the announcement from the IOC last week that outlined co-operation in the fight against irregular and illegal sports betting. The UK Government agree that the most effective way to tackle this threat is to ensure effective collaboration between all the parties involved: sports governing bodies, betting operators, law enforcement agencies and the Gambling Commission’s Sports Betting Intelligence Unit.
We also welcome the efforts being made within the sporting world, international federations and national Olympic committees to educate those involved about the dangers of corruption. My noble friend Lord Moynihan and the noble Lord, Lord Condon, were among those who emphasised the importance of education. Those education programmes play an ever more important role in demonstrating the importance of integrity. Many use former Olympians and elite athletes to deliver the key message that striving to do your best must always win over bribery and corruption. The risks cannot be underplayed. Not only can corruption have a huge impact on the reputations of individuals and their sport, it can ruin lives and careers. We have seen evidence of this over the past few months with the cases involving the Pakistani cricketers.
I need to stress that currently no specific threat to the 2012 Games has been identified and many of the steps to provide effective protection against potential threats are already in place in Great Britain, as the noble Lord, Lord Condon, made clear. However, the London Games are the first Games where sports-betting integrity has been elevated to the level of focus that doping has warranted, bringing us a new challenge that we must address.
The noble Baroness, Lady Billingham, asked what international plans are in place. I will incorporate my answer to that in the remarks I make about the Joint Assessment Unit and the other mechanisms that are going forward. We are working with global representatives to look at how we can collectively tackle match fixing. The Council of Europe is proposing a convention that European states will work to.
The noble Lord, Lord Condon, spoke about the Joint Assessment Unit. We must pay tribute to the major contribution he has made in establishing the unit and drawing on his expertise from his distinguished career in the police force. The Joint Assessment Unit will help us meet the challenge and will provide the mechanism to focus our established, effective protection methods on the 2012 Olympics. Representatives from the IOC, the police and the Gambling Commission are working in partnership to create the unit and to collaborate with sports organisations, betting operators, overseas regulators and the Games organisers, bringing together a wealth of experience and expertise. These initiatives will mean that we are fully prepared to assess and determine the appropriate response to information about potentially corrupt betting activity involving Olympic sports.
The JAU will fully support the key decision-makers in deciding whether further action is justified. If an investigation is deemed to be required, the JAU will decide who should be invited to take the lead. As a general rule, the IOC will deal with sports issues under sport rules and if criminality is suspected the police will deal with it under criminal law. It is possible that a criminal investigation and a sports investigation will run simultaneously depending on the nature of the potential incident. Other relevant organisations will be involved in investigations as and when appropriate or necessary.
The JAU may not stop those determined to engage in corrupt or illegal betting activity, but this collaborative approach will ensure that any incidents of sports-betting integrity can be effectively co-ordinated and managed within existing business-as-usual protocols and processes. My noble friend Lord Addington, the noble Lord, Lord Condon, and the noble Baroness, Lady Grey-Thompson, emphasised the importance of publicising what we are doing. Certainly, by publicising this approach, we hope that those considering engaging in corrupt or illegal betting activity may be deterred from doing so.
The concept of the joint unit is new to the Games and provides a unique opportunity for the UK to demonstrate its capability. We can build on the working practices and protocols already established between organisations, and to a large extent this capability has already proved successful in tackling corruption.
The noble Lord, Lord Faulkner, raised some key points arising from his valuable 2005 committee report and reminded us of the felicitous anniversary of its publication. His points were echoed in the contributions of my noble friends Lord Moynihan and Lord Addington. The Government accepted the definition of cheating in the Parry report, and I do hear the concerns raised around the Chamber. The review of cheating was not considered a priority at this time, but that is not to say that it has been forgotten. We hope to address that issue. Along with the Gambling Commission, we are looking at the range of offences related to sports-betting integrity to see that we have the suite of powers necessary to combat the threat.
The codes of conduct by sports governing bodies included in the Parry recommendations include provisions that participants shall not use inside information that is not publicly available in relation to betting. My noble friend Lord Moynihan raised concerns about definitions of inside information. It is already within the codes of conduct of the sporting bodies.
The commission has the power to restrict the type of bets offered and to approve sporting bodies' rules before allowing betting on those sports. However, based on available evidence, it does not consider that at the moment intrusive or resource-intensive methods are warranted. It is working with the betting industry—my noble friends Lord Addington and Lord Moynihan mentioned the importance of working with the betting industry. It is in its interest that there is integrity. With the industry, we are looking to see whether the deterrents to cheating or getting others to cheat can be strengthened.
We look forward to the introduction of the recommendations put forward following our recent review of remote gambling. We recognise that one of the benefits that will accrue for tackling sports-betting integrity matters will be the availability of information through licence conditions. The Government are seeking the earliest possible legislative opportunity in a crowded timetable. As far as the Olympics are concerned, we believe that we have satisfactory arrangements in place for the duration of the Games.
The European Sports Security Association is planning a seminar in March and the audience will include betting operators, sports bodies and JAU stakeholders. The Minister for Sport will also attend, diary permitting. The aim of the seminar will be to agree how ESSA members and sports bodies will collaborate to minimise risk and maximise co-operation around Olympic-related incidents.
We are grateful to have the benefit of the advice and guidance of the noble Baroness, Lady Grey-Thompson, on the Olympic and Paralympic Games. The noble Baroness raised the issue of the Paralympics. She is right that they are outside the scope and remit of the Joint Assessment Unit, which will close shortly after the Olympic Games closing ceremony, but this is because advice indicated that the market for betting on the Paralympics would be small and has not been offered at previous Games. The risk of sports-betting integrity to the Paralympics is considerably lower than that to the Olympic Games. LOCOG reached agreement with the International Paralympic Committee based on this advice that it is not necessary to have the same structures in place for the Paralympics to deal with sports-betting integrity.
The noble Lord, Lord Moynihan, and the noble Baroness, Lady Billingham, asked what will happen if there is strong evidence of an incident and what guidance has been given to national Olympic committees. The IOC has asked national Olympic committees to appoint a nominated representative to be responsible for liaison on betting issues that may occur during the Games. The noble Baroness and the noble Lord asked whether we will be monitoring the betting information. We will be doing so through the ISM and through working with betting operators via the Gambling Commission’s Sports Betting Integrity Unit. The noble Lord, Lord Moynihan, asked whether we will be analysing data on betting markets. We will do a full threat assessment on all Olympic sports before the Games. He asked whether we will scenario-test the JAU and he was given a comprehensive answer by the noble Lord, Lord Condon. We have already done one day of scenario testing and another is planned. There is expertise which will be used to facilitate those tests.
The UK has proven success in tackling corruption and threats to betting integrity. We will build on the recommendations in the Parry report to develop viable and sustainable solutions so that we can have a legacy to be proud of. I thank all noble Lords who have taken part in this valuable debate on an extremely topical issue of international significance. With so much preparation, we can make a real and positive contribution to ensure an inspirational Games and a memorable year that will show the whole world the UK at its very best.
Legal Aid, Sentencing and Punishment of Offenders Bill
Committee (9th Day) (Continued)
178B: Before Clause 113, insert the following new Clause—
“Effect of life sentence
In Chapter 7 of Part 12 of the Criminal Justice Act 2003 (effect of life sentence) omit section 269(5) to (7).”
My Lords, this amendment also concerns an innovation introduced by the Criminal Justice Act 2003. Prior to that Act it was the practice of the judges trying murder cases to write to the Home Secretary recommending the minimum period to be served in prison as punishment. The Lord Chief Justice always added his own comments, either increasing or decreasing the tariff, as it came to be called. The Home Office usually accepted the judicial recommendation but sometimes the tariff was increased by a year or two. I never in my experience remember it being reduced. Then came the case of Anderson in the House of Lords, in which it was held that Ministers could play no part at all in the fixing of the tariff; sentencing was for the judges and not for the Executive. Section 269 and Schedule 21 of the 2003 Act was the ministerial riposte to that decision. The purpose of Amendment 178B is to repeal Schedule 21.
Schedule 21 lays down an elaborate framework within which trial judges must work when fixing the tariff for a particular case. It has four different starting points: 15 years, 25 years, 30 years and whole life. It has seven different aggravating factors and seven different mitigating factors, all of which must be taken into account. The schedule was drafted within the Home Office without, as far as I know, any input from the judges. So far as I can remember, it was introduced at a late stage in the House of Lords without any debate in the House of Commons, but I may be wrong about that. In any event, the question arises: what was the reason for introducing Schedule 21? Why did the Government not leave the tariff to the judges? After all, it is the trial judge who fixes the tariff in all other life sentence cases, including manslaughter—why not murder?
One possible reason would have been that the Government wanted to introduce greater uniformity in the tariff in murder cases. However, that argument will not run now because we now have the Sentencing Council, whose whole purpose and raison d’être is to secure uniformity, so far as it can ever be secured, and to ensure some input, at any rate, from experts and other members of the public. The Sentencing Council is working well. It covers all other crimes—including, as I have said, manslaughter—so why not murder? It is surely far better placed to give guidance on the tariff in murder cases than Parliament could ever be because it has a feel for sentencing as a whole and how murder fits in with other crimes. That is important.
Another possible reason for Schedule 21 is that the Government wanted to raise the general level of tariffs in murder cases—in other words, their view was that the judges were being too soft on crime. If that was the intention, the Government could not have been more successful. The new starting points had an immediate effect. The average tariff in all murder cases before 2003—when the 2003 Act came into force—was just over 13 years. The average tariff now is 17.5 years, which is an increase of nearly five years. No wonder the prisons are overcrowded and that we now have more prisoners—I want your Lordships to listen to this—serving life sentences and indeterminate sentences for the protection of the public than the whole of the rest of Europe put together, including Russia and Turkey. How can that be justified?
Whether Schedule 21 was intended to have such a dramatic effect, I do not of course know. Nor do I know whether there was any impact assessment before Schedule 21 was enacted. But what we all know is the need to reduce the prison population now by some means or another. We know that that is the desire of the Lord Chancellor. Perhaps I may say with great respect that he has made an excellent start by abolishing the indeterminate sentence for the protection of the public. I suggest that he now looks with a very critical eye at Schedule 21.
I said earlier that sentencing is for judges and not for Ministers, but at least when the tariff was fixed by the Secretary of State in murder cases, he would have some knowledge of the facts of the particular case. Parliament obviously can have no such knowledge. The attempt to control sentencing from the sidelines, as it were, has two very great dangers. The first is that you tie the judges down so tight that they cannot do justice in the particular case. The second, which perhaps is even more sinister, is that the level of sentencing will become a sort of political football, with each side wanting to appear tougher on sentencing than the other. That may to some extent have already started but if it were ever to become a reality it would spell an end to the idea of a just sentence for the individual convict.
Sentencing must always in the end depend on the view taken by the individual trial judge, which is why it is such an anxious process. In my view, the more we can leave it to the judge, subject to guidance by the Sentencing Council and with as little interference from Parliament as possible, the better. We can make a start by repealing Schedule 21. I beg to move.
My Lords, as has already been said by others, this House should always listen with great respect and interest to the noble and learned Lord. I agree with him to an extent in relation to a number of the issues that he has raised. I agree with him entirely that the sentence for public protection, the IPP, has become extremely undesirable and has resulted in a very large number of people remaining in prison for far longer than is necessary or even proper. I think that he would agree with me in the criticism I have made consistently with others over the years about the mandatory life sentence for murder.
However, I am bound to say that I would urge the Minister of State not to accept this amendment for a number of reasons which I at least regard as cogent and also hope that the House would. The first is that although the noble and learned Lord is absolutely right that sentencing is for the judges, as successive Home Secretaries have emphasised—I am pleased to see a very distinguished former Labour Home Secretary in his place during this short debate—sentencing policy is not for the judges. It is for the Government.
Part of sentencing policy legitimately, I would suggest to your Lordships, is setting the framework in which sentences for murder are imposed. The provision that the noble and learned Lord wishes to have repealed has had two practical effects, apart from setting clear, public and consistent sentencing policy, which is well understood by all the judges who apply it. The first is that in reality, it has diluted, although not completely removed, the offensive consequences of the mandatory life sentence. Those of us who have appeared as counsel for the prosecution and for the defence in many murder cases know that the effect of the provisions that the noble and learned Lord criticises has been to enable those who advise people charged with murder to give a tariff before the judge gives his or her tariff at the end of the case. In reality, people charged with murder are able to be advised as to their likely sentence beyond its being a mandatory life sentence.
The second consequence has been an exponential increase in the number of guilty pleas in murder cases. Lawyers are able to advise the accused person—sometimes with the help of the judge based on these clear statutory guidelines—as to the sentence that he or she is likely to face. With that knowledge—I speak from experience as a criminal barrister—I have seen a number of people charged with murder plead guilty after it has been made clear where on the statutory tariff they lie. Certainly, in my early years in practice, it was almost unheard of for anyone to plead guilty to murder.
An obvious effect of that consequence is that witnesses who may have suffered extremely traumatic events—sometimes the children of the murder victim—do not have to give evidence in court. Surely, that is an advantage. My view is that the current provisions provide for fairness to victims, fairness to defendants and apply a degree of predictability. In my view, they increase, rather than decrease, public confidence in the system.
It is a very nice view, and I wish we could say it with complete confidence, that we should simply leave murder sentencing to the judges, with some guidance from the Sentencing Council. But that does not go far enough. It is the specificity of the statutory provisions that makes the real difference day by day in criminal courts up and down the country, where murder cases are tried these days in most instances not by High Court judges but by circuit judges, with what is rather unhappily called a murder ticket.
In conclusion, my advice to my noble friend—for what little it is worth—would be to leave well alone, albeit with the option, of course, of changing the guidelines from time to time to meet circumstances.
My Lords, I am probably the only person currently in the House who has actually carried out murder investigations. When you knock on the door and say you are investigating a burglary, nobody takes much interest. When you knock on the door and say you are investigating a murder, the reaction is very different. I am fully in support of the noble Lord, Lord Carlile, because murder is different. It is not just any other crime. In my opinion, it is actually the crime by which the public judge the criminal justice system.
I find myself somewhat surprised to be arguing against the noble and learned Lord, Lord Lloyd, but I think that the combination he used of sentences for murder and indeterminate sentences does not, in this argument, add up, because this is about murder. I am fully in support of almost everything the noble Lord, Lord Carlile, has said. I had expected to speak for longer; I came to the House to speak to this amendment. In fact, the noble Lord, Lord Carlile, has said almost everything that needs to be said—except for this emphasis that I would place before your Lordships’ House that murder is different. I believe that Parliament has a right—indeed, a duty—to set the tariffs from which judges then make their decisions about sentencing.
My Lords, lest there should seem to be unanimity on these Benches, I support the noble and learned Lord, Lord Lloyd, in his amendment.
When I started out at the Bar, people did not plead guilty to murder at all. It was a throwback to the time when hanging was the only sentence that could be passed and therefore guilty pleas were sometimes simply not accepted and a person was told to plead not guilty so that the case could be properly proved. We have moved very far from that, to the present situation, which I find mechanistic. The gap between the 15-year starting point and the 30-year starting point is far too great, in my view. It is mechanistic in that once you get your starting point, you start to deduct for this and add for that, and at the end of the day, after this complicated arithmetic, you guess at what might possibly be the sentence and advise your client accordingly.
I do not find that a very helpful way of going about things. Today there are provisions for obtaining some guidance from the judge as to the sort of sentence he would pass in certain circumstances, and that is a better way of going. These artificial starting points of 15 years and 30 years have been laid down by people with no experience of how the courts work or how cases are brought to court, and with no personal contact with clients or anything of that sort, and are not the way we should be conducting our sentencing policy. I agree with everything that the noble and learned Lord, Lord Lloyd, has said.
My Lords, the Front Benches are occupied by somebody from the lowest levels of the legal profession and somebody who is even lower because, as we were told the other day, he has done only a short period of legal education. I do not know about the Minister, but I find myself oscillating between the very eloquent, articulate and lucid explanations of the various positions. I was totally persuaded by the noble and learned Lord, Lord Lloyd—until I heard the noble Lord, Lord Carlile. Then—with all due respect to the noble Lord, Lord Blair—I was made to think more by the noble Lord, Lord Thomas. On balance, I am grateful that I was not a member of a jury to be addressed by any of these three eminent lawyers because I am not sure we would have reached a verdict even now—at least I would not.
On balance, I am persuaded by the arguments of the noble Lord, Lord Carlile, although I am concerned—as everyone in this House should be—at the very disturbing statistic that the noble and learned Lord, Lord Lloyd, adduced about the number of people held on life sentences in this country being greater than that for the whole of the rest of Europe. That is not something about which the English system should feel at all complacent. Nevertheless, for what it is worth—which is clearly not much—I am persuaded by the argument that the noble Lord, Lord Carlile, advanced. It remains to be seen whether it endorses the position that the Minister will give us in a moment.
I thank the noble Lord, Lord Beecham, for those comments. I approach any discussions on Schedule 21 with great trepidation because very early in my ministerial career, I was lured by the eloquence of the noble and learned Lord, Lord Lloyd, into agreeing with him about some of the flaws in Schedule 21, only to be hauled over the coals when I got back to the department and told that this was not departmental policy and I was not to listen to such siren voices.
I think the noble and learned Lord, Lord Lloyd, knows that both the Lord Chancellor and I—importantly, and less so—come instinctively to the view that judging is best left to the judges. This debate has taken place within this context. I am very grateful to my noble friend Lord Carlile for his intervention because he pointed out that what we are debating is where the responsibility of Parliament is in setting a framework, while leaving, properly, to the judges the flexibility to handle that framework.
I am also grateful for the intervention of the noble Lord, Lord Blair, for two reasons. First, he made the unique point—certainly in this Bill—that he was going to shorten his speech because somebody else had made the speech earlier. All I say to the rest of the House is: “Go thou and do likewise”. Secondly, he made the important point that I think will come back again and again in our debates—I wrote it down—that murder is “the crime by which the public judge the criminal justice system” above all others. Therefore, as the noble Lord, Lord Blair, said, it is right that Parliament has a duty to set a framework in these matters.
I take the point of the noble Lord, Lord Thomas, that it may seem an artificial framework, but in putting forward the 2003 Act Parliament allowed judges the necessary discretion to arrive at any minimum term from any starting point, which allows exceptional cases for minimum terms to depart from the norm. It is not as inflexible as is suggested. The 2003 Act puts in place arrangements for all minimum terms to be imposed judicially—something which I think has general approval. However, Parliament took the view at the time that it was right to have statutory guidance on sentencing for murder. The guidance provides for consistency of approach but still gives the court the necessary discretion to deal with each case appropriately.
I note what the noble and learned Lord, Lord Lloyd, said about the Sentencing Council and I pay tribute to its work, but the Government still believe, as Parliament believed in 2003, that it is right that Parliament should remain responsible for sentencing guidance for murder. It is for Parliament to reflect what circumstances should be considered as particularly or exceptionally grave for this, the most serious of crimes. With that explanation, I urge the noble and learned Lord to withdraw his amendment.
My Lords, I am grateful to the noble Lord and I am particularly grateful to the noble Lord, Lord Thomas. If it is right for Parliament to give such guidance, how did judges get on before 2003? The answer is that they managed perfectly well. The only effect of the rigid 2003 framework has been to increase the average sentence—I repeat the figure—from just over 13 years to 17.5 years. I do not suppose that anyone did an impact assessment before the 2003 Act was passed, but in my submission it cannot be right that we should suddenly increase the average by so large an amount without considering whether the framework is responsible for it and considering again whether that increase is actually justified.
The noble Lord, Lord Carlile, who made the main objection to this suggestion, has said that the tariff provides valuable help to counsel in advising what the likely sentence will be, but how did counsel manage before the 2003 Act? The answer is that they managed perfectly well and could manage perfectly well even today without Schedule 21. I can see that I have not persuaded enough of your Lordships, and in the mean time, I beg leave to withdraw the amendment.
Amendment 178B withdrawn.
Clause 113 agreed.
179: After Clause 113, insert the following new Clause—
“Abolition of certain sentences for dangerous offenders (No. 2)
All those already serving sentences of imprisonment for public protection for serious offences must either—(a) have access to relevant rehabilitation programmes, or(b) have their sentences rescinded,within 30 days of the commencement of this Act.”
My Lords, the amendment, tabled in my name and that of the noble Lord, Lord Judd, pertains to the abolition of sentences of imprisonment for public protection, more commonly known as IPP sentences, as provided for in Clause 113. Of course, some of these issues have already been aired in our debates today. The amendments linked to Amendment 179 in this group contain provisions to apply this abolition retrospectively for offenders serving existing IPP sentences and deal with associated issues. Indeed, they may do so more comprehensively than my own amendment, so I will listen with interest to the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Ramsbotham when they speak to their amendments in the group. I realise that I am very much a layman in discussing these issues and that I stand alongside colleagues with a lifetime of professional experience, so I am grateful for the indulgence of the Committee.
As I said at Second Reading, IPP sentences were the result of controversial measures which effectively introduced life sentences via the back door for a great number of offences. Although the courts were able to set a minimum tariff which was to be served before a prisoner could apply for parole, I am told that the system rarely worked as intended. Little thought was given to determining prisoners’ tariffs and not enough focus was put on directing IPP prisoners towards relevant rehabilitation programmes, with the result that over 6,000 prisoners are now lingering in our prison system serving indeterminate sentences, over half of whom are past their minimum tariff.
Because of the requirements set by the Government, far too few of these prisoners are able to access the necessary courses which would entitle them to be considered for release. When we consider that these prisoners are serving on average 244 days beyond their tariff and that it costs something like £30,000 to keep someone in prison for that period, it is abundantly clear that the system surrounding IPP sentences is costly and, indeed, unacceptable. The Government are certainly right to abolish the IPP sentence, although I have some misgivings about what will be introduced in its place. Clause 114 will introduce a mandatory life sentence for those convicted of a second listed offence, and my concern is that judicial discretion will be damaged, an issue that we have already touched on in other contexts. What is important when sentencing offenders is to ensure that they are given sentences that are the most beneficial to the public, the victims and, indeed, to the criminals themselves, as mentioned by my noble and learned friend Lord Judge in an earlier debate, and indeed by the noble Baroness, Lady Stern.
Consideration should also be given to the treatment programmes or courses that such prisoners should undertake when in prison in order to get them to understand the gravity of their crimes and the impact on their victims. Introducing what are effectively mandatory life sentences for a second listed offence will strip the courts of their obligation to consider the individual circumstances surrounding each case.
To return to the matter in hand, I welcome the abolition of indeterminate sentences for public protection as provided for in Clause 113, but the reason I have tabled Amendment 179 is to probe the Government on why abolishing the system cannot also apply retrospectively. As I have said, thousands of prisoners are still languishing in the system without hope of rehabilitation or release. Without being directed into rehabilitation courses, this state of limbo will continue. That is why Amendment 179 would require the Government to grant these prisoners access to rehabilitation programmes or to rescind their sentences within 30 days of the commencement of the Act.
I note that a similar principle lies behind the amendments in this group tabled by the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Ramsbotham. However, Amendments 179ZA and 179ZB would require the Government to refer prisoners serving existing IPP sentences to the Parole Board unless there is compelling evidence that they continue to pose a significant risk of reoffending. Amendment 180 goes slightly further, calling for the Secretary of State to ensure that plans are in place to release within three months of the enactment of the Bill all prisoners currently serving IPP sentences. However, the amendments have in common the desire to end the indeterminate legal limbo in which prisoners serving existing IPP sentences find themselves. Perhaps I can put it to the Minister in this way. In the football parlance that he used in an earlier debate, he might be far from happy if a Blackpool player had incurred a red card and did not know for how long he would be suspended. I urge the Government to consider these amendments. I beg to move.
My Lords, I spoke about this matter at Second Reading and have great sympathy with the sentiment behind the amendment of the noble Lord, Lord Wigley.
In common with the overwhelming majority of people involved in the penal system, I am delighted to see the back of the sentence of imprisonment for public protection. The sentence has been a disaster for criminal justice and for the prison system, which, as a number of noble Lords have already commented, is now clogged, with more than 6,000 IPP prisoners having no certain release date. It is particularly unjust that many of those prisoners who have passed their tariff dates are on lengthy waiting lists to start offending-behaviour courses which could reduce the risk they pose and make them good prospects for release.
I share the Minister’s concern that everything possible should be done to speed up prisoners’ access to these courses so that they do not continue to languish in prison unnecessarily. Will he consider making one other change to help the position of those serving IPP sentences? This matter was referred to also by the noble Lord. The Secretary of State’s directions to the Parole Board include a very strong direction that a life-sentence prisoner should normally spend a period in an open prison before release. This is a sensible proposition for many life-sentence prisoners. They usually spend many years in prison; they are often institutionalised; and a gradual adjustment to freedom by going to an open prison will often increase their chances of a successful release.
However, there is another side to this coin. Many IPP prisoners have tariffs as relatively short as one or two years, and many others have tariffs of three, four or five years. When they come before the Parole Board, they have not been out of circulation for anything like as long as most life-sentence prisoners and there may not be the same pressing need for them to spend a period in an open prison before release. Yet the Secretary of State's direction means that the Parole Board will be very reluctant to release them from open conditions. As a result, the board may recommend that they go to an open prison before release, which will lengthen their stay by perhaps another two years. Surely this is unacceptable.
I agree that a period in open prison before release is appropriate for many IPP prisoners, but it by no means applies to all such prisoners. A blanket provision cannot be applicable to all cases. If the Government were to amend the Secretary of State’s direction to remove the present strong presumption in favour of a period in open prison, it would enable the Parole Board to make a decision on the merits of an individual case. I would be grateful if the Minister could consider this suggestion and perhaps report to us before the next stage of the Bill.
As one who was involved in the review of the parole system when the noble Lord, Lord Hurd, was Home Secretary, I have no doubt that the Parole Board would welcome this change, which after all fits in with the rehabilitation element of a sentence.
My Lords, I have Amendment 179ZA in this group. The Minister can surely take pride in the abolition of IPP sentences and in the fact that he and this Government are leading public opinion in this area. The Minister suggested earlier that the Government were not given enough credit for leading public opinion, but here they most certainly are.
There were many weaknesses to the IPP regime. It was imposed in far more cases than was ever expected when the regime was introduced, but a major weakness was that a defendant, a convicted person or a prisoner had to prove a negative: that it was no longer necessary for the protection of the public that he should be confined. That was the great weakness. When he tried to prove that he could safely be released, all he could he do was produce certificates that he had completed courses from programmes that were offered to him in prison, but the second great weakness was that those programmes might not be available or a prisoner would be transferred in the middle of completing a course from one prison to another and would have to start again. That is the basic reason why people have been kept after the expiry of their tariff.
The new provision for extended sentences unhappily retains the necessity for a prisoner to prove that it is no longer necessary for the protection of the public that he be confined, so that great weakness in the existing system is being continued in the system of extended sentences.
I propose in this amendment that the whole system should be tightened up in relation to those who are beyond their tariff date and are serving at the present time. It should be tightened up to the point of becoming, for the first time, a fair system. In subsection (1) of my amendment, there is a duty on the Secretary of State to “immediately refer” the case of a prisoner who has served the entirety of his tariff to the Parole Board. That should not be a discretion; he must do it immediately. Then it is the duty of the Secretary of State—not a discretion—to release the prisoner,
“on license as soon as the Board has directed his release under this section”.
Subsection (3) attacks most directly the weakness that I described to your Lordships:
“The Board must direct P’s release unless the Board is satisfied, on the basis of clear and compelling evidence which post-dates P’s conviction, that there is a strong and immediate probability that P will commit a serious violent or sexual offence on release”.
If the tariff is 10 years, the Parole Board should look not at what happened 10 years earlier but the current situation and what sort of risk the prisoner now threatens the public with. What is the evidence that he will commit a serious, violent or sexual offence if he were released? At the moment, we ask the Parole Board to make that judgement without evidence, relying merely on certificates of programmes completed and so on. A judgment without evidence is otherwise called a guess. A person’s liberty should not be decided by how the Parole Board guesses the future.
Subsection (4) suggests that,
“where the Board has declined to direct release,”
the Secretary of State must—it is his duty to— demonstrate,
“that provision has been made for P to undergo relevant programmes”.
He must also,
“refer P’s case … at 6 monthly intervals until such time as the Board directs P’s release”.
In other words, P will not be left languishing with no programmes presented to him for an indefinite period of time. I happen to know that someone I represented has done all his programmes and got all the certificates but he is still being kept in. On what evidence has that been decided? It is just the way that the Parole Board guesses he will behave if he is released.
Most importantly, subsection (5) contains a limit—or final stop, or buffer—which means that if a person has been in prison for five years after his tariff expired he must be released in the case of specified violent offences, or after,
“8 years post-tariff custody in the case of a specified sexual offence”.
That limit for existing prisoners serving IPP sentences is based on the limit contained in the new provisions for an extended sentence. That limit—or final stop, or buffer—is put into Clauses 115 and 116.
Grouped with this are my Amendments 179BZA and 179BZB, which attempt to amend Clause 116 to introduce, again, the need for,
“clear and compelling evidence … that there is a strong and immediate probability that P will commit a serious violent or sexual offence on release”,
for the Parole Board to refuse to allow him to be released when his tariff has been fulfilled. Similarly, Amendment 179BZD indicates exactly the same provision.
This is an extremely important matter. More than 3,000 prisoners are still held after the expiry of their tariff. We cannot abolish IPP sentences and allow them to remain in prison indefinitely.
My Lords, I entirely agree with what the noble Lord, Lord Thomas, said about congratulating the Government on introducing change. I have to admit that, along with many others, I have hated IPPs ever since they were introduced by the Criminal Justice Act 2003.
Of course there are people from whom the public must be protected, some of whom have been awarded sentences of natural life. I freely admit that all is not well with the release of prisoners about whose risk of committing violent or sexual offences prison governors feel uneasy. Yet I knew of the inability of the Prison Service to provide sufficient offending behaviour programmes for those who require them. Also, 60 per cent of lifers serving determinate sentences are already one year over tariff, mainly because of the inability to satisfy what the Parole Board requires before sanctioning release, so I simply could not see that such an ill thought through introduction could result in anything other than the prison population being needlessly increased by a steadily increasing number of those whose release date was deliberately made uncertain.
Cynically, having become used while Chief Inspector of Prisons to Home Office Ministers and officials living in a virtual criminal justice system and being unwilling to accept objective advice based on facts, I feared that no notice of any outsider warnings would be taken—and how right I was. Since then, attempts have been made in this House to alleviate the IPP problem by raising the minimum tariff threshold, but the numbers of those above the original ministerial forecast and those who have exceeded their tariff already have continued to grow.
I was therefore delighted to hear the Secretary of State announce that IPPs were to end and see that confirmed in Clause 113. However, as the noble Lord, Lord Thomas, has stated, the Government have not said that they intend to alter the arrangements for those currently serving IPPs to earn their release, which will mean that such prisoners will continue to clog up the overcrowded prisons for years to come unless something is done. My amendments, and those to which I have added my name, are designed to end this situation as quickly as possible, in line with the Government’s aim of reducing the size of the prison population.
Before I speak to the amendments, I beg the indulgence of the House while I say something about some of the residual effects of indeterminate sentences, because they must not be disregarded when any meaningful consideration of the problem is taken. Prisons are fragile places in that, to work effectively, they depend on relationships of mutual trust, if not affection, between staff and prisoners. Let those break down and you are in trouble, which is precisely why it is so important that numbers of prisoners are kept as low as possible and that our understaffed and overcrowded prisons are looked at very carefully. As chief inspector, I introduced what I called the healthy prison test, in which I asked whether everyone felt and was safe, whether prisoners were treated with respect as fellow human beings, were enabled to improve themselves by access to purposeful activity and were enabled to prepare for release and maintain contact with their families.
IPPs fail every test on every account. The uncertainty that they introduce has encouraged too many of those awarded IPP sentences to take their own lives, and has also brought on much mental distress. It is inhuman to award anyone a sentence of 99 years, which is how indeterminate sentence length is described on the internet, when the prisoner does not know how or when he may qualify for release. It is patently wrong for release to be dependent on courses and programmes that simply are not available. I have lost count of the numbers of letters of complaint that I have had from families who simply do not know when their relative or loved one can qualify for release. In other words, IPPs have been an obscene, inhuman and expensive disaster.
My amendments are in two parts. Amendment 180 links with Amendment 179, tabled by my noble friend Lord Wigley, in that it seeks to establish a proper end game to the issue through a statement from the Secretary of State that individual plans have been made for the release of all those currently serving IPPs. I am not suggesting that all IPP prisoners should be released in three months, but that plans should be made in that period. For them all to qualify for that release, plans must ensure that those qualifications are both available and satisfied. Urgent plans must be made for the release of the 3,750 prisoners who are already over their tariff, which I accept will demand much detailed work, and probably resources.
However, urgent remedial action is required to put right a situation that should have never been allowed to develop, before it costs the taxpayer yet more millions of pounds. In saying this, I am conscious that the Parole Board, under its excellent chairman Sir David Latham, is already under extreme pressure, and that any alteration to current arrangements, such as the introduction of six-monthly reviews, would need to be very carefully considered because, at present, it would be unworkable. I know that Sir David is sympathetic to any proposal intended to produce release as soon as possible after tariff expiry, but it must be realistic. In the best interests of the Parole Board, therefore, and of enabling the Prison Service to better direct the use of its limited resources towards protecting the public by preventing reoffending, there is all the more reason for coherent planning of this release process.
Regarding coherent planning, I have said many times in this House that in every organisation I can think of, named individuals are made responsible and accountable for particular functions or activities. That is done not least because history tells us that unless someone is made responsible and accountable for making things happen, nothing happens. The only organisation in the world that I have come across where that is not the norm is our Prison Service, and it tells. That is why there is such inconsistency in the performance of individual prisons, and why overall progress never seems to be made. Management of an operational organisation is not easy and I am not criticising individuals currently in post. I merely point out that management is made a million times easier if someone is responsible and accountable for overseeing the execution of policy.
I do not believe that the IPP prisoner logjam will be cleared until and unless someone is made responsible and accountable to the Secretary of State for clearing it. Had such an appointment been made years ago, coherent release plans would already be in existence and problem areas, such as a shortage of courses, identified. Similar appointments are required for all other types of prison and prisoner, as well as groups of lifers, sex offenders and foreign nationals. I know that life would be much easier for Ministers and their officials if they could exercise their responsibilities through named, responsible and accountable subordinates. In order to give the resolution of the IPP problem the slightest chance of success, I must therefore ask the Minister to consider making such an appointment, which would be recommended by any management consultant—let alone a frustrated former Chief Inspector of Prisons.
I admit that the other amendments to which I have added my name are more prescriptive, and possibly more suited to a code of practice, but this is not a virtual problem and the details need to be spelled out. I do not need to say anything about Amendment 179ZA, because that has been more than ably spoken to by the noble Lord, Lord Thomas. Amendment 179ZB refers to “prisoners” rather than P, because of my unfamiliarity with judicial wording, but I am suggesting consideration of changing the burden of proof in the case of those whose tariff has expired. At present, prisoners are required to prove their qualifications for release but I am trying to suggest that once a tariff has been exceeded, it should be up to the Prison Service to prove to the Parole Board why a prisoner should not be released.
Amendment 179BZA is consistent with Amendment 179BZB which, thanks to the legal background of the noble Lord, Lord Thomas, expands, updates and is to be preferred to Amendment 179BZC. Amendment 179BZD is consistent with Amendment 180 in requiring the Secretary of State to satisfy himself or herself that, at all times, rather than being allowed to languish in their cells sentence plans—including participation in required programmes—have been made for all determinate and indeterminate prisoners. That brings me back to the need for someone to be responsible and accountable to the Secretary of State for ensuring that this happens. I cannot repeat that more strongly or often enough.
My Lords, I was not involved in criminal law during my practice as a barrister, but I became very interested in IPPs in 2009 because we were then dealing with what became the Coroners and Justice Act. I became particularly concerned at this because Dame Anne Owers, who was then the Chief Inspector of Prisons, together with the Chief Inspector of Probation had written an absolutely devastating report on the defects of IPP. The defects disclosed in the inspector’s report are several. There is a lack of accurate pre-sentence reports on prisoners, which has led to a number of unjustified IPP sentences being imposed on people who should not have had them applied at all. There is a lack of resources for the Parole Board to enable it to determine the fate of prisoners after the prisoners have passed their tariff date. This means that the prisoners may languish for months or even years in prisons where they can not get the training that they require before they can apply for release, so prisoners under IPP are serving what is potentially a life sentence.
There have been some improvements of IPP as a result of amendments made in 2008 to the Criminal Justice Act 2003, but those improvements were not enough. By 2009, it was clear in my view that IPP was a disaster. It could work only with a lot more money put into it; if it did not have that money, it was grossly unfair to at least some of the prisoners. The Parole Board does not have the money that it needs and, as matters now stand, it will not for the foreseeable future.
I am going to repeat something that I said in a debate in 2009 because it covers my views now. I said:
“The IPP is wrong in principle and wrong in practice. English courts have a long-standing system of sentencing. Under that system, only the most serious offences can be punished by life imprisonment. It is unnecessary and wrong to impose a de facto life sentence on convictions for an offence which does not carry the life sentence. The IPP is even more wrong in practice. It is wrong because many pre-sentence assessments are inadequate and lead to the imposition of IPPs on those who should not be subject to it. It is wrong because many IPP prisoners, especially in local prisons, have no access to training, without which they cannot get a hearing before a Parole Board panel”.—[Official Report, 28/10/09; col. 1249.]
Little has been done to correct the situation that was so clearly stated by Dame Anne Owers and her colleague. Now we have Clause 117 of the LASPO Bill and some further amendments from the Government. These are not good enough. What would be good enough is Amendments 179ZA and 179ZB in the names of my noble friend Lord Thomas of Gresford and the noble Lord, Lord Ramsbotham, which are nearly identical; I hope that they will be merged in time for Report. What the amendments would do has already been explained to your Lordships: they would limit extended sentences only to cases where it had been shown that there was a strong and immediate probability, based on clear and competing evidence, that the prisoner would commit a serious violent or sexual offence.
Indeterminate sentences are deeply unsatisfactory. Amendments 179ZA and 179ZB come more than close enough to this test and I strongly support them. I also strongly support other amendments including Amendment 180, to which I am one of the signatories.
My Lords, the real scandal is that IPP sentences have gone on for so long. The previous Government had the chance to do something about them in 2008, as the noble Lord, Lord Goodhart, has indicated, when it was already obvious that IPP sentencing was going badly wrong. I remember tabling an amendment at that time to raise the bar and therefore reduce the number of those eligible for IPP sentences. The noble Lord, Lord Bach, was sympathetic but met me only half-way. The Conservatives, I am sorry to say, opposed the amendment. As a result, we have the situation in which we now find ourselves. I entirely share the indignation so well expressed by the noble Lord, Lord Ramsbotham. I add only that in my view something must be done, and done soon.