Skip to main content

Crime and Courts Bill [HL]

Volume 741: debated on Monday 10 December 2012

Report (3rd Day)

Clause 23 : Enabling the making, and use, of films and other recordings of proceedings

Amendment 113

Moved by

113: Clause 23, page 22, line 3, after “that” insert “in appellate proceedings”

My Lords, this amendment stands in my name and that of the noble Lord, Lord Lester of Herne Hill. It seeks to limit the televising of court proceedings to the Court of Appeal and the Supreme Court. Your Lordships may recall that I expressed my view at Second Reading that cameras in the courts are a total folly except in very limited circumstances. I have no problem with filming proceedings in the Supreme Court or the Court of Appeal, where matters of law, principles of human rights or constitutional issues of long-term significance are debated and judged. However, it is a serious mistake to introduce cameras into criminal courts; this whole issue should be approached with caution. We are being persuaded that this is a very circumscribed use of cameras and the rationale is that it will bring transparency to, and increase confidence in, the justice system. I believe it will ultimately have the very opposite effect.

There has been lobbying for years to get cameras into courts. It should be recognised that television companies are not really interested in filming in the Court of Appeal or the Supreme Court. They want to get into the criminal courts or the libel courts—the places where the dramatic stuff of life is dealt with. They want rape, blood and gore. They want weeping victims, lying witnesses and unrepentant villains in the dock. They want to get into the courts where the salacious and the violent are dealt with in detail. They insist that they are interested only in transparency, when I am afraid that their real interest is voyeurism. In the same way that sex, drugs and rock and roll sell newspapers, they pull in viewing figures for television, too.

Court television in America made the man who introduced it a billionaire in no time, and lawyers and senior judges there would say that it drove down standards in the courts and decreased public confidence. The public in the end see edited snapshots of proceedings and think they have watched a trial; then they are vitriolic about how stupid the jury has been or how utterly stupid the judge has been.

An experiment was conducted in Scotland 20 years ago of filming a whole trial. Because Scotland is the one place in the United Kingdom where there is no law forbidding cameras, that was possible without any change in the law. The plan was abandoned when the senior legal profession in the whole of our nation saw the product and realised that there were very serious problems about fairness and enormous risks to justice. I would like our senior judiciary and politicians to go back to that footage and see why it is not a good idea.

This Bill does not ostensibly open the door of the courts to wholesale filming immediately. It is saying that cameras should be let into the higher courts and other courts, such as the criminal courts, for the giving of judgments and the passing of sentences. The public deserve, it is said, to know why a man got 10 years and not more; the public should see the judge passing sentences on criminals; people can cheer from their living rooms as crooks get their comeuppance; and they can knit like the tricoteuse at the guillotine as the judge says, “Take her down”.

However, the reality is actually damaging for justice. The Minister will no doubt say that there will never be filming of witnesses or jurors in cases, but I assure the House that while the intention now may be to stick to judges’ sentencing remarks, that is not the endgame sought by television programme-makers. We often talk of slippery slopes in this House but this one is a sheer drop. As soon as sentencing is covered on television, there will be complaints that the public did not get to see the defendant’s face when he heard his fate or that the remarks made little sense without hearing what the prosecution and defence lawyers had said in argument beforehand. So it will go on, with further and further encroachments sought.

The question is asked: would it not be good for the public to hear and see a judge sentencing? I do not think that will satisfy anything. The sentencing remarks will be edited so that a snippet will be used as a headline on the news and the judge showing compassion will still be vilified by sections of the press, however good his reasoning. Some judges may even be tempted to avoid doing their bold but fair thing in looking, for example, at alternatives to prison when they see that camera at the back of the court. I also fear that some judges who miss the drama of the advocates’ arena will play up to the cameras in unhappy ways. Does any noble Lord in this Chamber remember Judge Pickles?

We should be concerned about the powers that we are delegating by virtue of this clause. The Joint Committee on Human Rights said in its report, by way of warning,

“the Delegated Powers Committee points out in its Report on the Bill, there is nothing on the face of the Bill to prevent the order-making power from being exercised in future to authorise the filming and broadcasting of witnesses, parties, crime victims, jurors or defendants. Indeed, granting such a wide authority”,

to the Lord Chancellor and the Lord Chief Justice to act together should be considered with caution. That authority, the report says,

“appears to be the Government’s intention: in its memorandum to the Delegated Powers Committee it suggested that if clause 23 is enacted, Parliament will have approved the principle of filming and broadcasting court proceedings. This led the Delegated Powers Committee to recommend that the affirmative procedure should apply to orders under clause 23(1), so that Parliament has an opportunity to apply a higher degree of scrutiny to an order setting out the extent to which filming and broadcasting should be permitted”.

We should be very mindful of the fact that our judges increasingly come under pressure to be more modern and to do the modern thing. Often, in pursuit of modernisation, we give away things that have worked sensibly and for a good reason.

The Government have asserted that the right to respect for private life in Article 8 of the European Convention on Human Rights would not be engaged because court proceedings are public. However, the Joint Committee on Human Rights report argued that this was,

“too simplistic given the range of very well established restrictions on reporting court proceedings, ranging from hearings in private through to anonymity orders, where the justification rests, in part at least, on the protection of aspects of a person’s private life. Indeed, one of the most important questions for Parliament about these provisions is whether relaxing the current restrictions on filming and broadcasting court proceedings which are anyway public is a justifiable interference with the right to respect for private life of those individuals involved in the proceedings”.

In the United States, they have discovered that no amount of explanation appeases the concerns of witnesses due to come before the courts. Because they know it will be televised, there is greater reluctance to participate in proceedings.

It is quite wrong that the television filming of court should be further expanded without it coming back before this House for proper consideration. I know that judges might argue that they can carefully fashion what they say and explain the reason for giving a particular sentence in a criminal case, but I am afraid that very often they will be made to sound ridiculous by the way their comments will be edited. Judges have also not realised that they will become much more visible. Currently, our judges can go about their business without fear for their safety; it is one of the great things about our system. They can shop in Waitrose, go to the garden centre at weekends or play golf and no one knows them from Adam or Eve. Their lives will become very different and much less secure once their faces can be played and replayed over and over again on new technology. I would like research to be done on the potential impact of these changes before we go down this road. For this reason, we should not today allow further use of cameras in courts beyond our appellate jurisdiction. I beg to move.

My Lords, I am not a criminal lawyer and have none of the experience that the noble Baroness, Lady Kennedy of The Shaws, has, but I sat as a criminal judge—grotesque though that may seem—in the days when I was a recorder. I cannot claim much greater experience than that, but I support the amendment as a member of the Joint Committee on Human Rights.

As the noble Baroness, Lady Kennedy, has said, this amendment was drafted by the committee so it is a JCHR amendment, and our report deals with our reasons in detail. In paragraph 60, our conclusion says:

“We do not see the justification for the width of the order-making power in clause 23(1) of the Bill, which, as it stands, authorises the filming and broadcasting of witnesses, parties, crime victims, jurors and defendants in court proceedings. We urge a much more cautious approach. Before any extension of this power we recommend that the Government conduct a much more comprehensive public consultation, carry out a more detailed impact assessment in the light of that consultation and conduct a review of the operation of the power after an elapse of years. In the meantime, we recommend that the Bill be amended to confine the scope of the power to the filming and broadcasting of judges and advocates in appellate proceedings, as the Government currently intends”.

I am also cautiously conservative on this issue because I do not believe that criminal trials are best conducted in televised goldfish bowl.

My Lords, I do not share the concerns expressed by the two previous speakers. The broadcasting of court proceedings will enhance public understanding of our justice system, which in general works efficiently and fairly. There is also the possibility that allowing in the cameras may illuminate those areas of the law that are much in need of reform, a result that I would have thought law reformers as distinguished as the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill, would welcome.

So what if broadcasters focus on sensational cases? That is what print journalists do and we do not exclude them from the courtroom. Amendment 113 would confine broadcasting to appellate proceedings but, if the Lord Chief Justice thinks it appropriate, why not allow the broadcasting of a judicial review application that raises issues of importance? Such applications normally involve no witness evidence and often raise issues of law of considerable constitutional importance. Of course there should be no broadcasting of the evidence of witnesses, and jurors’ faces should not be shown, but I cannot understand why there should be no possibility of the broadcasting of the judge’s sentencing remarks at the end of a criminal trial. There are many cases where, at the end of the criminal trial, the judge is speaking not only to the defendant or other persons in court but is seeking to communicate to the public at large. The judge should be assisted to do so.

The noble Baroness, Lady Kennedy of The Shaws, made what I respectfully submit was a quite extraordinary suggestion that judges need to be protected because their words may be misrepresented. She also suggested that judges need anonymity in the community at large. I doubt very much whether there are many judges—or, indeed, many noble Lords—who think that our judges need or deserve such protection.

In any event, Amendment 113 is entirely unnecessary because your Lordships will see that Clause 23 will not come into effect without the agreement of the Lord Chief Justice, who no doubt will carefully consider the details of any scheme to allow broadcasting of court proceedings. For the same reason, Amendments 113ZA and 113ZB in this group are also unnecessary in seeking to impose conditions on the broadcasting of court proceedings. I am content to proceed on the basis set out in Clause 23, that the broadcasting provision would come into force only,

“with the concurrence of the Lord Chief Justice”.

It would be far better to let him—or possibly, after next October, her—decide on the detail of the broadcasting scheme.

For the same reason, Amendment 120B, requiring a resolution from both Houses, is unnecessary. The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill—for both of whom I have the highest regard—are the 21st century equivalents of the 18th century Scottish judge Lord Eskgrove. When a court reporter wrote down the terms of one of his judgments being delivered in court, Lord Eskgrove complained:

“The fellow takes down my very words”.

Would the noble Lord address the points raised by the Joint Committee on Human Rights, rather than referring to me as an 18th century gentleman?

My Lords, I have made such points as I think may assist the House in answer to the arguments brought forward in this debate and the arguments presented by the Joint Committee.

My Lords, I apologise for arriving late at this part of the debate. I did not propose to speak and hold no strong views about this amendment, but I have to rise just to deal with a point made by the noble Lord, Lord Pannick. He said that judges neither need nor deserve any protection. That is true in general, but I think he has overlooked the fact that certain judges get death threats. There are groups of judges, of which I happen to be one, who during their time as a judge received a number of death threats. In my case they came both from people who could recognise me because they had appeared before me in court and from those, such as Fathers 4 Justice, who not only made death threats against me but, I must tell your Lordships, also threatened to kidnap my dog, which I thought was much more serious than the death threat against me. More serious than the threats that either I or the family court judges receive are those made against judges in terrorist trials. They absolutely need and deserve protection, so I take issue with the noble Lord, Lord Pannick.

I entirely agree that judges deserve all the protection necessary in those circumstances. However, the press and broadcasters are perfectly entitled to publish photographs of the judge who has heard the terrorist trial or any other sensational case. This amendment would have no impact in that respect.

Does the noble Lord accept that there is something different about the moving camera? There is a famous book by Christopher Isherwood, Goodbye to Berlin, in which the first line is: “I am a camera”. The reason why he starts that way is because he is saying: “I am providing you with a subjective view from my eyes—my edited account of what was happening in the 1930s during the rise of Hitler in Berlin”. He was pointing up the fact that the camera is very subjective. Does the noble Lord agree with that?

Of course there are differences, but no difference that could possibly justify these amendments. Noble Lords will know that the proceedings of our Supreme Court are broadcast virtually every day that the court sits. None of us has any knowledge of that; it has caused no adverse effects and I cannot understand the noble Baroness’s concerns.

My Lords, the noble Baroness has referred to something that happened about 20 years ago in relation to experiments in Scotland. As she said, judges there were able to make arrangements for televising trials without any change in the statute law because there was no statute restricting that possibility. A considerable number of cases were televised under that arrangement. The television authorities put together a programme because, interested though they were in Scotland, it was nothing in comparison with the interest they had in proceedings in England, for reasons which perhaps an 18th-century Scottish judge might have speculated about. Anyway, that was the fact.

It was arranged that senior members of the judiciary here and the legal profession—particularly those who had practised considerably in the criminal courts, as the noble Baroness has—should view this compilation of the results of the television trials to pave the way for similar arrangements in England. I was present on at least one of those occasions: I think there was more than one when they were shown. I regret to say that the result on the senior members of the legal profession was such that, until now, the experiment has not been taken any further. That was 20 years ago. I am not sure whether the noble Lord, Lord Pannick, was one of the viewers of that particular programme, but if he was not then it might be quite useful for him and some others who are presently concerned with the matter to see it now.

I am perfectly prepared to agree that the Lord Chief Justice should have control of this matter. I suggest that whenever this comes before the Lord Chief Justice, it might be useful were there an opportunity available to see the results of the Scottish trial of 20 years ago so that the difficulties—and there are some—might be considered in the formulation of the requirement. One thing that may be important is a question of some control of the editing. As your Lordships know, there is considerable control of the editing of the programmes in Parliament, and there may need to be something of that kind. It does not require too much imagination to suppose that the editing of sentencing remarks, the way that they are set out and their completeness, could make some difference to the balance with which an observer might view the situation. There is a great deal of detail that requires to be looked at. As I said, this information from 20 years ago—it is not as far back as the 18th century but is still of some relevance—should be available to those considering this matter further.

My Lords, it is very rare indeed that I do not wholly agree with the noble Baroness. As for my noble friend, Lord Lester, I do not even stop to assess whether I agree with him because I know that I should. However, as the noble and learned Lord has just mentioned, we in Parliament are used to our proceedings being recorded—we barely notice the cameras now—and edited. I am constantly taken aback by the number of people who watch the Parliament channel and our proceedings at great length—they must be terrible insomniacs, but they do. It may be that they prefer to watch and listen to a large chunk of a particular matter rather than have the proceedings edited by that very respectable and useful programme, “Today in Parliament”, or the print media. I support giving that opportunity with regard to the courts.

I recently attended a sentencing. I was there accompanying somebody who was concerned with the case. Waiting for my friend afterwards, I listened to the quite considerable number of print journalists there, writing up their stories. They had been handed a copy of the judge’s sentencing remarks but barely referred to the copy. They checked one or two comments with each other instead of bothering to go back to what they had been given, and I could hear how they were editing the remarks to make a sensational story.

I am very happy to rely on the Lord Chief Justice and the judges in particular cases where, as I understand it, the ability to make particular restrictions will still continue. Of course, editing—being a camera—is subjective. I have agonised about this quite a lot and I spoke rather in the other direction at the previous stage, but I have come down to believing that this quite cautious move is the right one. Judges are less tempted than politicians to make off-the-cuff remarks about major moves forward. I am therefore very happy that the Lord Chief Justice is so much involved.

My Lords, I understand the points made by my noble friend and by the noble Lord, Lord Lester. This is an innovation in English court procedures and we should approach it with a degree of caution. The case for opening up the judicial system to more public information and understanding is well made, and to that extent I concur with the remarks of the noble Lord, Lord Pannick. I was less happy with the second part of his speech, which addressed the amendments in my name. I endorse what the noble Baroness, Lady Hamwee, has just said about discretion on the part of the trial judge to decide whether or not to permit broadcasting. That ought to be a significant safeguard, but it is not quite good enough to rely just on the Lord Chief Justice. I say “just”; although one has every confidence in the holders of that office, this is, as I say, a new departure and there is a wider interest to be considered. The amendments in my name and that of my noble friend Lord Rosser try to establish the principles both in relation to any decision to extend court broadcasting and regarding the matters to be considered when a court gives a direction, precisely to meet some of the objections and difficulties envisaged by my noble friend Lady Kennedy and the noble Lord, Lord Lester.

Amendment 120B requires any statutory instrument to be subject to the affirmative resolution procedure. I am in slight difficulty here because, when these matters were raised in Committee, the noble Baroness, Lady Northover, said that the government amendments would make the provisions under what was then Clause 22 and is now Clause 23 subject to the affirmative procedure, as recommended by the Delegated Powers and Regulatory Reform Committee. She also referred to what was then Clause 29, which again required amendments to primary legislation to be subject to the affirmative procedure. I may have missed them but I cannot actually see those references in the Bill. They may be disguised under some form of words that does not immediately disclose their presence, but I would be grateful if the noble Lord, Lord Ahmad, could confirm that the affirmative procedure would apply so that it would not simply be a matter of a decision by the Lord Chief Justice but, if there were to be significant changes, particularly to extend the range of matters that could be broadcast, then the affirmative procedure would apply. If that were the case, we would certainly be content to support the Bill in its present form. Perhaps, with the assistance of the Box, he may be able to help me and, more importantly, your Lordships, to come to a conclusion about whether the Government’s intentions are currently reflected in the Bill.

My Lords, it is always interesting to examine such issues. I have listened to the speeches and the arguments, although I was not in your Lordships’ House when the arguments were put forward for the televising of Parliament. I listened, as I always do, to the noble Baroness, Lady Kennedy, who spoke about words being put into people’s mouths and perhaps being interpreted differently. I suppose that every now and again parliamentarians, and politicians in particular, suffer that consequence, which is well understood.

This has been a wide-ranging debate. As we have seen, again there is strong opinion on both sides of the argument. As the noble Baroness, Lady Kennedy, said, her amendment would limit court proceedings to appellate proceedings and, in effect, would require the Government to return to Parliament before broadening court broadcasting to other types of court proceedings, such as those in the Crown Court. I am also aware, as my noble friend Lord Lester of Herne Hill pointed out, that this amendment was specifically recommended by the Joint Committee on Human Rights in its report of the Bill. I would, of course, like to thank the Joint Committee for its report. I am also glad to read that the committee agrees with the Government’s objective of making justice as apparent and as publicly accessible as possible.

We have heard about 18th century judges, although I am minded not to travel back in history to that extent. However, in 1924, the Lord Chief Justice, Viscount Hewart, said:

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

I believe that sentiment underlies the Government’s view.

The noble Baroness, Lady Kennedy, talked about caution. The Government recognise that as regards court broadcasting. It is our view that any order made under Clause 23 will require, as has been mentioned by various noble Lords, the agreement of the Lord Chief Justice. But that is just one lock. It will also require the approval of the Lord Chancellor and will be subject to scrutiny by both Houses of Parliament under the affirmative procedure. Therefore, court broadcasting will be introduced in a safe and proportionate manner. That is akin to putting not one or two locks on the door but to putting three locks. It will take three people to open that door.

However, we can go one step further. We believe that this triple lock, combined with existing reporting restrictions and the additional provision to allow judges to stop the filming and broadcasting of court proceedings to ensure the fairness of proceedings and to prevent any undue prejudice, will ensure that the interests of victims and witnesses, who are most important, as well as jurors, defendants and other parties, are fully protected. I hope that this will address the concerns of not only the noble Baroness but also the noble Lord, Lord Beecham, in relation to the court’s requirement to consider when to allow or to prevent broadcasting.

When the noble Baroness, Lady Kennedy, mentioned that moving cameras changed people’s actions, they certainly changed my action. As she mentioned it, I looked towards the camera and the camera moved. There is some credence and fact behind that statement.

The Government announced plans in September of last year to allow the broadcasting of judgments and advocates’ arguments in cases before the Court of Appeal and, over a longer period, to allow broadcasting from the Crown Court but to limit this to the judge’s sentencing remarks after conclusion of the trial. We believe that this will help to increase the public’s understanding of sentencing, with low risk to the proper administration of justice. Let me assure your Lordships’ House that we have no plans to extend court broadcasting beyond these two sets of circumstances. We believe that, once Parliament has approved the principle of broadcasting selected court proceedings, the details safely can be set out in secondary legislation. I would remind the House that the Delegated Powers and Regulatory Reform Committee did not take issue with this approach as long as the secondary legislation was subject to the affirmative procedure, which it now is. This means that the Lord Chancellor may make an order only under this clause which has been approved by both Houses. That being the case—I refer in particular to the comments made by the noble Lord, Lord Beecham —Amendment 120B is not needed as that ground is covered already by Clause 30(4)(f). As with all primary legislation, these provisions will be subject to post-legislative review three to five years after Royal Assent.

The other amendments tabled by the noble Lord, Lord Beecham, reflect the vital principles of protection for victims and witnesses and the proper administration of justice. I am happy to reiterate the Government’s commitment to these principles. Furthermore, I believe that the draft order which noble Lords have now seen demonstrates how these principles are intended to be upheld. This order would allow filming in the Court of Appeal of submissions of legal representatives, exchanges in open court between a legal representative and the court and the court giving judgment only. Filming of any other individuals or parts of proceedings would remain prohibited by the Criminal Justice Act 1925. The order also provides that the court may suspend or stop filming or prevent broadcast where that would be necessary in the interests of justice.

The noble Baroness, Lady Kennedy, and the noble and learned Baroness, Lady Butler-Sloss, talked about judges’ security and the noble and learned Baroness, Lady Butler-Sloss, mentioned her concern for her dog. Parliamentarians, politicians and judges are in the public eye, and people have to face challenges and dangers in public life, but I assure the House that the Government will happily look at security in the impact assessment that will be published before the first order is brought forward.

I hope that this addresses the key principles and concerns, which the Government recognise, that are outlined in the amendments tabled by the noble Baroness, Lady Kennedy, and the noble Lord, Lord Beecham. An extension to allow filming of sentencing remarks in the Crown Court would require a further order, subject to the triple lock procedure that I outlined earlier.

Given the concerns that have been voiced, the Government are happy to publish a detailed impact assessment alongside the first order made under this clause and will continue to engage with victim support groups, members of the judiciary and other interested parties. Any order made under this clause is subject to the triple lock. Several noble Lords mentioned the important role of the Lord Chief Justice. The Lord Chancellor also has a role, and both Houses of Parliament must approve the order under the affirmative procedure. I reiterate that, in any case, a judge may impose reporting restrictions and prevent, suspend or stop filming to prevent broadcast, where necessary. I hope these four locks and these assurances will address the concerns of the noble Baroness, Lady Kennedy, and the noble Lord, Lord Beecham. I hope the noble Baroness will withdraw her amendment.

I thank the Minister for his response. I am not sure that there could be enough locks to satisfy my concerns. Superficially, this can be very attractive, and it can be discussed in the context of transparency and accountability, but they can be veneers for something much riskier. The camera is not the same as the human eye. The noble Baroness, Lady Hamwee, described watching as reporters for the print media took no notice of the written transcript of the judge’s sentencing remarks but filleted out the bits that they knew would be sensational. I can assure her that those who edit television programmes will follow exactly that process.

The camera cannot capture all that is happening as the human eye can. Currently, television reporters, like press reporters, go into the court and listen then come out and report. Having been in court and watched what happened, the reporter becomes the witness, just like the print journalist. The human eye is different from the camera. The camera cannot pick up tension, smell fear or catch those minute twitches of the lips or the eyelid that often tell you so much. Worst of all, the person behind the camera is editing as he goes. The editor back at the station edits further and the news programme will snip out the choice bits of footage for the headlines. I really warn everyone in this House that new technology will then mean that it will be played and replayed over and over and over again. I am afraid it will not stop with sentencing remarks. It will continue with erosions and demands being made and the judiciary feeling under pressure to comply to not be seen as old-fashioned, 18th century gentlemen.

It is easy for people who do not practise in a criminal court to underestimate the power and the effect of this on our justice system. I regret that there is not enough support in this House for my amendment and I therefore feel obliged to withdraw it, but I do so giving a warning about the serious implications of taking cameras into criminal courts and what it will do to our justice system.

Amendment 113 withdrawn.

Amendments 113ZA and 113ZB not moved.

Amendment 113A

Moved by

113A: After Clause 23, insert the following new Clause—

“Abolition of scandalising the judiciary as form of contempt of court

(1) Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law of England and Wales.

(2) That abolition does not prevent proceedings for contempt of court being brought against a person for conduct that immediately before that abolition would have constituted both scandalising the judiciary and some other form of contempt of court.”

My Lords, this amendment seeks to abolish the crime of scandalising the judiciary in England and Wales. I am delighted that the Minister has added his name to this amendment. The amendment is also signed by the noble Lord, Lord Lester of Herne Hill, who has played a leading role in arguing for reform of this area of the law. The amendment is also in the names of the noble and learned Lord, Lord Carswell—a former Lord Chief Justice of Northern Ireland—and the noble Lord, Lord Bew.

I can explain the reasons for this amendment very briefly. It is no longer necessary to maintain as part of our law of contempt of court a criminal offence of insulting judges by statements or publications out of court. The judiciary has no need for such protection. As the noble and learned Lord, Lord Carswell, explained in Committee, the wise judge—and he, if I may say so, was a very wise judge—normally ignores insults out of court. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made a similar point in a case he decided, as he may recollect. Judges, of course, are as entitled as anyone else to bring proceedings for libel, and some have done so.

The law of scandalising the judiciary could have been left in the moribund state in which it has rested for many years. However, the Attorney-General for Northern Ireland unwisely chose earlier this year to seek to breathe life into it by bringing a prosecution, later dropped, against Peter Hain MP for some critical comments he had made in his autobiography concerning a Northern Ireland judge. That prosecution had two main consequences. First, it substantially increased the sales of Mr Hain’s book and, secondly, it led to this amendment.

When we debated this subject in Committee on 2 July, the Minister gave a cautious welcome to the amendment but said, very properly, that the Government wished to consult on the matter. As a result of the debate in this House, the Law Commission expedited the publication of a consultation paper on 10 August in which it proposed that the offence of scandalising the judiciary should indeed be abolished.

I emphasise that the amendment will not affect other aspects of the law of contempt of court and in particular the powers of the judge to deal with any disruptions during court proceedings. I also emphasise that the amendment is not designed to encourage criticism of the judiciary. Much of the criticism to which judges are subjected is ill informed and unsubstantiated. However, even where criticism is unjustified, it should not be a criminal offence.

The amendment will not affect the law in Northern Ireland or Scotland, in the latter of which the offence is known as “murmuring judges”. I understand that in Northern Ireland more consultation is required. It is ironic that the impetus for this amendment came from the Peter Hain case in Northern Ireland, and now the anachronistic law that led to that case is to be abolished in England and Wales but not in Northern Ireland. I hope that the Minister can give us an indication of when consultations with Northern Ireland will be completed and a decision reached.

Meanwhile, I am delighted by the historic decision which I hope that this House will take tonight to approve an amendment abolishing the offence of scandalising the judiciary in England and Wales. As Justice Albie Sachs said on this subject in a judgment in the Constitutional Court of South Africa in 2001, respect for the courts will be all the stronger,

“to the degree that it is earned, rather than to the extent that it is commanded”.

I beg to move.

My Lords, I wonder if my noble friend will give way. I want to intervene now because what I am going to say will help the shape of the debate. I realise that my noble friend and a number of noble and learned Lords may wish to contribute. I in no way want to cut short or pre-empt that debate, but I hope that my comments will establish the context for them to comment on what the Government intend to do.

As the noble Lord, Lord Pannick, told us, we considered a similar amendment to this in Committee in July. I said that the Government were sympathetic to the concerns raised about the offence of scandalising the judiciary but we wished to consider the issue further and to consult others. In particular, before moving to reform or abolish this offence, we wished to consider whether such a step could result in a gap in the law or have an unwanted side-effect.

As the noble Lord, Lord Pannick, told us, in this we had the benefit of the work of the Law Commission, which was and is currently reviewing the law on contempt of court. As the noble Lord said, it kindly brought forward the element of its review considering scandalising the court and published a paper for public consultation in August. The commission considered three options in its consultation paper—to retain, abolish or replace the offence—and it has concluded that the offence should be abolished without replacement. Its analysis was in-depth, examining the human rights aspects and considering the arguments for and against the various options.

The consultation closed in October, and the commission published a summary of responses last month and a summary of its conclusions yesterday. I was pleased to see that several noble Lords responded with their views, and that members of the judiciary and other legal professions were also well represented. Of 46 responses, some from organisations, 32 were in favour of abolition. The remainder expressed a variety of views, most favouring a replacement offence, but I note that only two favoured retaining the offence in England and Wales, at least for now.

We have also noted other views, such as those expressed by noble Lords in Committee, and have concluded that it is right that this offence should be abolished. We therefore support the amendment. However, we also noted the Law Commission’s observation in its paper that:

“It may be necessary to clarify that the abolition of this offence does not affect liability for behaviour in court or conduct that may prejudice or impede particular proceedings”.

We support that view that abuse of a judge in the face of the court, or behaviour that otherwise interferes with particular proceedings, should remain a contempt. The new clause includes a provision that will ensure such behaviour will remain subject to proceedings for contempt of court.

In contrast to the amendment we debated in Committee, which extended to Northern Ireland, this amendment applies to England and Wales only, as the noble Lord, Lord Pannick, explained. In July, I said that we would be consulting the devolved Administrations; noble Lords must remember the criminal law is a devolved matter in both Northern Ireland and Scotland. Scandalising the judiciary is also a common law offence in Northern Ireland. As I have said, we consulted with the Minister of Justice, David Ford, who has confirmed that he does not wish the Westminster Parliament to legislate on behalf of the Northern Ireland Assembly on this offence. Similarly, the Scottish Government have also confirmed that they do not wish us to legislate on their similar common law offence of murmuring judges. Given that this is a devolved matter in both jurisdictions and under the terms of the Sewel Convention, we wish to respect the wishes of the Scottish Government and Northern Ireland Assembly in this matter.

I am grateful to my noble friend Lord Lester and the noble Lord, Lord Pannick, for bringing this matter before the House. The Government are happy to support this amendment, and through it the abolition in England and Wales of the offence of scandalising the judiciary. I hope that my intervention at the start of the debate does not prevent other noble Lords and noble and learned Lords from making observations on where we are and where we are going.

My Lords, I declare a former professional interest in that I acted for the Northern Ireland Human Rights Commission in the aborted contempt proceedings in relation to Peter Hain and his publisher. I am extremely grateful to the Attorney General for Northern Ireland for his entirely misguided decision to move for committal because, but for that, I would not be standing here in support of the amendment. We owe everything to the Attorney General because it was that which caused me to contact the Law Commission and the Government, and to discuss the matter with my friend, the noble Lord, Lord Pannick, in the first place.

It is important that the Government have decided to do what we have just heard from the Minister, and that is most welcome. However, I pay tribute to the previous Government, and I see the noble Lord, Lord Bach, in his place when I say this. He will remember that the other antique and archaic speech crimes of sedition, seditious libel, defamatory libel, obscene libel and blasphemous libel were all abolished by the previous Government and Parliament for similar reasons connected with free speech.

So far as blasphemy was concerned, for the reasons given by the Minister, it was decided that, although we could abolish that offence in Britain, we could not do so in Northern Ireland. We left it to Northern Ireland to do so itself, and we thought that it would be easy to do there because Northern Ireland already had a law on incitement to religious hatred that was rather stricter than what we have in this part of the kingdom. However, nothing has happened on that issue in Northern Ireland because there is institutional paralysis about doing anything of the kind. I know that this matter has concerned the Northern Ireland Human Rights Commission, and exactly the same problem arises now. Even though the amendment springs from a problem that arose in Northern Ireland, I am doubtful as to whether the Northern Ireland Government will agree to bring their common law into line with what we are doing in England and Wales. However, given that two other supporters of the amendment know far more about Northern Ireland than I would ever know, I shall not say more about that matter.

I should like to make one other point. Although abolishing this crime in this country will make very little difference because the law is entirely obsolete, it will make a difference in the rest of the common law world. All the textbooks, including that of the noble Lord, Lord Borrie, say the same thing, which is that, although this is an outmoded and archaic offence, there remain many parts of the common law world where it is enforced. The most notorious example occurred in Singapore last year, where Mr Alan Shadrake, who wrote a book criticising the Singapore judiciary’s attitude towards the death penalty, was committed for contempt, sentenced to prison, fined and told to pay legal costs. This gentleman, who is about my age and a distinguished senior writer, was condemned in that way, with the Singapore Court of Appeal applying its view on our case law and this offence. By abolishing the offence today we do not really change much in this part of the world because, apart from what happened in Northern Ireland, it is simply never invoked anymore. However, it will send an important message across the common law world. That is another reason why I am so delighted that the Government have decided to take this course.

My Lords, I support this amendment. I spoke briefly in Committee and I intend to be brief again today, particularly in view of the way in which the House has so far received the amendment and what the Minister has said.

Since that debate in Committee, the Law Commission has published this admirable consultation paper, which contains a full and helpful discussion of the issues, the principles and the possible solutions. My view, which was very direct and brief in Committee, remains unchanged. The special sanction for judges remains unnecessary. My reasons remain the same. Judges have to be hardy enough to shrug off criticism, even if it is intemperate or abusive, which has happened; even if it is unfair and ill-informed, which has certainly happened; and even if it is downright deliberately misleading, the same applies.

I speak from some knowledge. I have been scandalised on several occasions in the course of criminal trials at which I was the presiding judge without a jury. It was intemperate, certainly ill-informed and extremely offensive. I was deeply offended and hurt, but I certainly did not consider attempting to ask anyone to invoke the special procedure of scandalising the court. If anyone had suggested it, I would have firmly discouraged him at that time, which is a good many years ago now.

After I read the Law Commission consultation paper, I considered quite seriously whether there was room for the possibility of a new and more specific offence, penalising possibly deliberate and malicious targeting of a judge by making untrue and scandalous allegations into something of a campaign. I am persuaded, however, that it is better not to introduce any such offence into the law but simply to leave it at abolishing the offence of scandalising.

My reasons are three. First, special protection of judges immediately invites criticism from those who are all too ready to give vent to it. Secondly, if a judge had to give evidence in such proceedings, it would create a further and better opportunity for intrusive cross-examination and create a field day for publicity for critics of the judiciary. Thirdly, as I have said before, judges have to put up with these things; they have to be robust, firm and, on occasions, hard-skinned enough.

The Law Commission, in my view, was right in its provisional conclusions and I hope that when the report has been considered, the responses will confirm that. I would certainly support the amendment that the offence should simply be abolished.

Finally, as noble Lords have said, this of course does not apply in Northern Ireland. The authorities there will form their own view and take their own course. I cannot and do not in any way speak for them, nor have they consulted me about such provisions. I have to say, and I hope that they will take this into account, that I cannot see any reason why judges in Northern Ireland should have any different protection from judges in England and Wales against scandalising. I think the same considerations apply, and having been a judge there for 20 years, I would certainly not wish to see any differentiation.

My Lords, I echo the remarks made by the Minister and by other noble Lords. We are entirely supportive of the amendment, and glad that the Government have agreed to take matters forward in the way that the noble Lord indicated.

My Lords, I will clarify a point raised by the noble Lord, Lord Pannick. The Justice Committee in Northern Ireland recently agreed to proceed with an amendment to its Criminal Justice Bill that would see this offence repealed. I am sure that the words uttered by the noble and learned Lord, Lord Carswell, about his own experience will carry great weight. However, this is a devolved matter for Northern Ireland.

Amendment 113A agreed.

Amendment 113AA

Moved by

113AA: After Clause 23, insert the following new Clause—

“Eligibility for assistance

(1) An accused person in criminal proceedings is eligible for assistance by virtue of this section if the courts considers that the quality of that person’s participation in and understanding of court proceedings or of the evidence given by that person is likely to be diminished by reason of any circumstances falling within subsection (2).

(2) The circumstances falling within this subsection are that the accused person—

(a) suffers from mental disorder within the meaning of the Mental Health Act 1983, or(b) otherwise has a significant impairment of intelligence and social functioning.(3) Where the court determines that the accused person is eligible for assistance by virtue of this section, the court may then give a direction under this section providing for—

(a) assistance of the accused in preparing for court proceedings and in instructing the accused person’s legal representative to be provided by a person approved by the court for the purposes of this section (“an intermediary”),(b) assistance of the accused person in understanding and participating in court proceedings to be provided by the intermediary, and(c) the examination of the accused person to be conducted through the intermediary.(4) The Secretary of State may, by regulations, make provision about the recruitment, accreditation, training and appraisal of intermediaries approved by courts under this section.”

My Lords, the amendment will ensure that, where necessary, vulnerable defendants are provided with the appropriate support to enable effective participation in court proceedings and in preparing for their trial. The aim is that such defendants should be entitled by statute to the same support as vulnerable witnesses, and thus to an equally fair trial. A briefing paper, Fair Access to Justice?, for front-line staff in the criminal justice system and the NHS, explains how those who appear in court as a victim or witness are entitled to extra support or special measures to help them understand and cope with the process. At present, vulnerable defendants do not have the same entitlement and get that support only at the discretion of the court, despite the fact that high numbers are vulnerable. The amendment would restore a balance and ensure even-handedness in court proceedings for any vulnerable person, whether they are a victim or a defendant. The special measures are intended to reduce the stress of the court appearance for the vulnerable individual or witness so that he or she can give the best evidence. Hitherto, these measures applied only to vulnerable witnesses and specifically not to defendants.

Support is provided for witnesses by qualified intermediaries who are registered, accredited and trained to help vulnerable and other witnesses in court proceedings after the most stringent selection, quality assurance, regulation and monitoring procedures. The aim is to facilitate vulnerable witnesses with two-way communication in court between them and other participants so that their communication is as complete, accurate and coherent as possible. However, while the arrangements are available to witnesses, they are specifically not available for defendants except at the discretion of the court, and even then the intermediaries appointed to support them do not have to be either registered or regulated, and are paid different fees. It is possible to have an unregistered intermediary assisting a defendant while a witness in the same trial has a fully registered one who is paid more than his counterpart who represents the defendant. This is an entirely unfair and unjust arrangement that favours a witness over a defendant, irrespective of the guilt or innocence of the vulnerable parties.

The current reality is that a high number of defendants going through the courts need particular support to help them cope and understand what is going on. If they do not have this help, it can affect their ability to participate in court proceedings and compromise their right to a fair trial. There is some help for vulnerable defendants giving oral evidence only, but they are not helped during trial proceedings to participate effectively, instruct counsel or prepare for a trial.

More than 60% of children who offend have communication difficulties, 5% of adults have learning difficulties and high numbers have mental health problems. Clearly their ability to communicate is significantly compromised, especially in the context of a courtroom. Many have difficulty expressing themselves, understanding certain words and in verbal comprehension. In fact, one study showed that more than one-fifth did not understand what was happening to them, what was going on, or even why they were in court at all or what they had done wrong. Generally those with a low IQ and learning difficulties are likely not to understand certain words during their arrest and trial, and may find it harder to remember things, and be more suggestible or answer questions with what they think the lawyer wants to hear.

The answer would seem to be that vulnerable witnesses and vulnerable defendants should be treated even-handedly. Both should have properly registered intermediaries to help prepare them according to their need. Whoever is to be responsible for making appropriate arrangements should be clarified or decided, specifying the particular roles of those involved in the court proceedings. Special measures and adjustments according to personal need and to give guidance to the judiciary and staff should be part of the new liaison and diversion services.

Finally, the use of these measures and other reasonable adjustments should be monitored, reviewed and reported for the national liaison and diversion development network and an integral part of the forthcoming policy. Indeed, there should be one register of intermediaries for all vulnerable people in the criminal justice system, subject to all the same standards. Procedures for all liaison and diversion services in the criminal justice system should provide the courts with all relevant information regarding impairment and support needs, including when an appropriate adult has been called to a vulnerable adult or 17-year old at a police station.

This seems an obvious anomaly; it risks leading to serious injustice, which is quite unacceptable. The model exists for help for witnesses thus disabled, so the solution would appear to be simply to apply it to defendants with similar disabilities for justice to be done. Discrimination is hard enough at the best of times when you are disabled. At the worst of times, for the courts to be found to be inadvertently discriminating against a defendant because of his or her disability—and who is innocent until proved guilty—through a failure to understand the nature of the disability, is clearly unacceptable. Mercifully, it would appear relatively easy to put right. I urge the Minister, at this late stage in the Bill, to ensure that the necessary changes are made to the current situation so that justice can indeed be done and be seen to be done. I beg to move.

My Lords, I hope the Minister can give a positive reply to the noble Baroness. She has made a powerful case in connection with a particularly vulnerable group for whom existing services are perhaps not adequate. I do not know whether the Minister will be inclined to accept the amendment at this stage or whether he will at least be prepared to take it back for consideration before—or rather at—Third Reading. I think that that would satisfy the noble Baroness and most Members of Your Lordships’ House and I hope he feels able to take that course.

I also urge the Minister to do what has just been urged by the noble Lord, Lord Beecham. It is the judge’s most important duty to ensure the fairness of the trial. However, the problem identified by the noble Baroness, Lady Linklater, is one that the judge simply cannot tackle himself. There needs to be hands-on assistance of the sort she indicates. Therefore, for the same reason, I ask the Minister to give careful consideration to this.

My Lords, as the noble and learned Lord, Lord Woolf, has just told us, it is the duty of the courts to ensure that defendants receive a fair trial. It therefore may be necessary to make particular efforts in the case of defendants whose understanding is limited. To some extent it will fall to the defendant’s legal adviser, or to the judge, to help meet the needs of these vulnerable defendants. From time to time courts have asserted the right to grant such defendants the assistance of an intermediary.

Statutory provision has in fact already been made in Section 104 of the Coroners and Justice Act 2009 for certain vulnerable defendants to be eligible for assistance from an intermediary when giving evidence. A defendant would benefit from this provision where their ability to participate effectively in the proceedings as a witness is compromised by a significant impairment of intelligence and social functioning; or where they are suffering from a mental disorder within the meaning of the Mental Health Act 1983.

The Government made a decision to defer implementation of Section 104 until full consideration could be given to the practical arrangements and resource implications. Although there are no immediate plans to implement these provisions, we are continuing to monitor the situation and the resource implications of doing so. However, as I said earlier, judges have on occasion granted the use of an intermediary to assist vulnerable defendants to ensure a fair trial. In fact, guidance on the process for appointing intermediaries for defendants was issued nationally to all courts last year.

Furthermore, Part 3.30 of the Consolidated Criminal Practice Direction also provides guidance on a range of other types of support that a court may wish to offer, including that at the beginning of the proceedings the court should ensure that what is to take place has been explained to a vulnerable defendant in terms they can understand. Secondly, a trial should be conducted according to a timetable which takes full account of a vulnerable defendant’s ability to concentrate. Frequent and regular breaks will often be appropriate.

I have listened to what my noble friend said and to the interventions of the noble and learned Lord, Lord Woolf, and of the noble Lord, Lord Beecham. I do not want to raise expectations as I am not sure whether I can get clearance to take this forward at Third Reading. However, I assure my noble friend that, as I have said, we are continuing to monitor the situation and are looking at the practical arrangements and resource implications of bringing in Section 104. I certainly agree to take this measure away. If I cannot bring it back at Third Reading, I will write to the noble and learned Lord, the noble Lord and my noble friend to explain why I cannot do so and what we are doing to keep this matter under review. I hope that, with those assurances, my noble friend will agree to withdraw her amendment.

My Lords, I am heartily grateful to the noble and learned Lord and the noble Lord who have supported what I had to say. That support, coming from two such distinguished sources, means a very great deal to me. I hope that the Government will also pay heed to it.

I heard what my noble friend the Minister said. It is moderately cold comfort. There is none the less the possibility of further recognition of what remains quite a major injustice that is built into our system. In the mean time, I beg leave to withdraw the amendment.

Amendment 113AA withdrawn.

Amendment 113B had been retabled as Amendment 108ZA.

Amendment 113C

Moved by

113C: Before Clause 24, insert the following new Clause—

“Self-defenceUse of force in self-defence at place of residence

(1) Section 76 of the Criminal Justice and Immigration Act 2008 (use of reasonable force for purposes of self-defence etc) is amended as follows.

(2) Before subsection (6) (force not regarded as reasonable if it was disproportionate) insert—

“(5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.”

(3) In subsection (6) at the beginning insert “In a case other than a householder case,”.

(4) After subsection (8) insert—

“(8A) For the purposes of this section “a householder case” is a case where—

(a) the defence concerned is the common law defence of self-defence,(b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),(c) D is not a trespasser at the time the force is used, and(d) at that time D believed V to be in, or entering, the building or part as a trespasser.(8B) Where—

(a) a part of a building is a dwelling where D dwells,(b) another part of the building is a place of work for D or another person who dwells in the first part, and(c) that other part is internally accessible from the first part,that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is a dwelling.(8C) Where—

(a) a part of a building is forces accommodation that is living or sleeping accommodation for D,(b) another part of the building is a place of work for D or another person for whom the first part is living or sleeping accommodation, and(c) that other part is internally accessible from the first part,that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is forces accommodation.(8D) Subsections (4) and (5) apply for the purposes of subsection (8A)(d) as they apply for the purposes of subsection (3).

(8E) The fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser for the purposes of subsection (8A).

(8F) In subsections (8A) to (8C)—

“building” includes a vehicle or vessel, and“forces accommodation” means service living accommodation for the purposes of Part 3 of the Armed Forces Act 2006 by virtue of section 96(1)(a) or (b) of that Act.”(5) In subsection (9) (section intended to be clarificatory) after “This section” insert “, except so far as making different provision for householder cases,”.

(6) An amendment made by this section does not apply in respect of force used before the amendment comes into force.”

My Lords, I was going to say that these were technical amendments, but I am advised that they are not.

It would be terrifying to be confronted by a burglar in your own home. Mercifully, it does not occur very often, but when such a situation arises most people would say that the law should be on the side of the householder. After all, they are the ones who may have been woken up in the dead of night, made to fear for their safety or the safety of their loved ones and compelled to use force to protect themselves in traumatic circumstances. If householders end up being arrested, prosecuted or convicted after injuring a burglar, this can give rise to a public perception that the criminal justice system does not support the real victims in all of this. These amendments are designed to shift the balance of the law further in favour of householders to ensure that they are treated first and foremost as the victims of crime.

The current law, as clarified in Section 76 of the Criminal Justice and Immigration Act 2008, already says that people can protect themselves or others, prevent crime or protect property using force that was reasonable in the circumstances as they believed them to be. However, it also says that the use of force which was disproportionate in the circumstances will never be reasonable. This means that a householder who has acted honestly and instinctively to protect himself or his loved ones from an intruder could end up being prosecuted if his actions are deemed to have been disproportionate when viewed in the cold light of day. The Government feel strongly that householders, acting in extreme circumstances to protect themselves or others, cannot be expected to weigh up exactly how much force is necessary to repel an intruder. There may be a fine line between actions that are proportionate in the circumstances and those which might be regarded as disproportionate. The Government think householders should be given the benefit of any doubt and that Section 76 of the 2008 Act should be amended accordingly. As long as householders have done only what they believed was reasonable in the circumstances, it should not matter if those actions were disproportionate when viewed with the benefit of hindsight.

I am aware of criticisms that these changes will amount to a vigilantes’ charter; the Government do not accept that argument. All we are saying is that if householders act in fear for their safety or the safety of others and in the heat of the moment use force which is reasonable in the circumstances but seems disproportionate when viewed in the cold light of day, they should not be treated as criminals. Force which was completely over the top—grossly disproportionate, in other words— will still not be permitted.

This is not about saying that it is open season on any intruder. It is rather saying that the law will look benevolently upon any householder who, faced in his own home with the terror of someone he believes to be a trespasser, acts in a way that is reasonable in the circumstances as he believed them to be, even if the force used was disproportionate.

Noble Lords will note that the amendments are limited to householders defending themselves or others from intruders in their dwellings. The Government believe that attacks by intruders in the home cause the greatest public concern. Our home is our haven and refuge—a place where we have every right to feel safe. That is why the Government believe that householders deserve special protection. However, the provision also extends to shopkeepers who live and work in the same premises and Armed Forces personnel who may live and work in buildings such as barracks for a period of time.

We recognise that there are a range of other circumstances in which people might be required to use force—for example, to defend themselves from attack on the street, to intervene to stop crimes being committed or to protect their property. The new provision does not extend to those situations, but the current law on the use of reasonable force will continue to apply in those circumstances.

I recognise that some noble Lords might have a feeling of déjà vu as we debate these measures. We are returning to an area of the law that has been debated twice in recent years. While previous Bills clarified important aspects of the law on the use of force, the current proposals would make material changes to strengthen the rights of householders when defending themselves or others from intruders. Critics have said the changes are unnecessary because the current law provides adequate protection and householders who have defended themselves from burglars are hardly ever prosecuted. Clearly the Government take a very different view. Each case is different. Although the Crown Prosecution Service decided not to prosecute householders involved in recent cases, such as those in Leicestershire and Manchester, there might be occasions in the future where law-abiding householders benefit from these important provisions. I beg to move.

No, I want to speak now if that is all right. Thank you. Burglary is a serious crime and a particularly distressing one. The forced invasion of one’s home adds a further dimension to the effect on its occupiers. I suspect several Members of the House will have shared my experience, at least in part. My home—which, incidentally, was built by the father of the noble and learned Lord, Lord Woolf, to whom I apologise for anticipating in this debate, for reasons that I shall give later—has been burgled and my office has also been burgled once. Fortunately, little damage was done; even more fortunately, no one was present at the time. Where the householder or other occupant is present, the impact of the crime transcends distress and, too often, becomes traumatic.

I say at once that we welcome the extension of the present law to non-residential premises, such as those of shopkeepers, to which the Minister has referred. However, in relation to domestic premises, while absolutely affirming the right of residents to defend themselves and their property, we have doubts about the Government’s proposals. The amendments have been spatchcocked into the Bill at virtually the last minute, almost, it would seem, as an initiation rite performed by the new Lord Chancellor. Unlike the proposals on community sentencing, we have not had the opportunity of a general debate under the recommittal procedure. I propose therefore to treat the debate on these amendments as, in effect, a Second Reading debate, which is why I sought to speak now rather than later.

Burglary is an offence against the person as well as against property, because a break-in destroys the victim’s peace of mind by violating the safe haven of their home. The householder is not in a position to exercise calm, cool judgment. The householder is entitled to use reasonable force to get rid of the burglar; and, in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later:

“You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear”.

These are not my words—although I concur with them—but the words of the Lord Chief Justice, the noble and learned Lord, Lord Judge, commenting on the recent case of two men jailed after raiding a remote cottage, when they were blasted with a shotgun. What is significant is that his words reflect the present state of the law. Although the victims in that case were questioned by police, their Member of Parliament, Alan Duncan MP—not, I think, generally known as a bleeding-heart liberal—said:

“The police did a very good job and investigated as thoroughly as they had to when a firearm is involved”.

The first question is what the government proposal adds to the present state of the law, as enshrined by the Labour Government’s Criminal Justice and Immigration Act 2008 and the present Government’s clarification, embodied in Section 148 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, passed only a few months ago. In my submission, it adds only confusion. It purports to allow the use of disproportionate force but not grossly disproportionate force. Can the Minister define, or even better exemplify, the difference between the two, especially bearing in mind the words of the Lord Chief Justice? What difference, if any, in his view would the amendment’s wording have had, for example, on the case of Tony Martin, who shot dead a burglar? What does the Minister make of the statement by Michael Wolkind QC, who represented Tony Martin? He said:

“The law already recognises that people react in a certain way in the heat of the moment”,

and argued that the law does not need changing.

The second element that the proposal might add to the Bill is, paradoxically and obviously unintentionally, a heightened risk to home owners. A study in Texas has demonstrated that the notorious “stand your ground” law, promoted by the US gun lobby and enacted in several US states, has led to more injuries and deaths being inflicted on householders and others by criminals, rather than fewer. Anyone who watched the recent TV programme on “stand your ground” would surely hesitate before opening the door to similar unintended consequences here, even allowing for the radically different gun culture that is such a blemish on American society.

There are other questions to be asked. Have the Government consulted the judiciary or the police on the proposed changes? If so, what responses have they received? If they have not consulted them, why not? Have they conducted an impact analysis? Your Lordships might think that a particularly fitting term in this instance for an assessment of the consequences of legislation. What is the evidence that the present state of the law, as defined by the noble and learned Lord, Lord Judge, is inadequate? The Minister has circulated what purports to be a fact sheet. Your Lordships might think that that document contains precious few facts and no evidence on which to base the Government’s proposals.

My right honourable friend Sadiq Khan sought information by means of Parliamentary Question on the number of home owners arrested or charged after defending their property against burglars since 1994. The answer was:

“The information on arrests is not collected centrally … It is not possible to match the arrests data to any subsequent outcomes”.—[Official Report, Commons, 22/10/12; col. 641W.]

The Guardian recently reported, after a review by the CPS, that there were all of seven cases—I repeat, seven cases—between 1990 and 2005 in which a householder was prosecuted. In other words, there is simply no evidence to suggest that the problem the Government purport to be addressing is significant in terms of numbers, whereas it is clear that neither the police nor the courts are going to fall over themselves to prosecute householders who react in the way described by the Lord Chief Justice.

Is the Minister suggesting that where serious injury or death is inflicted on a burglar—or even someone such as the man featured in a recent BBC radio programme who was thought to be a burglar but was apparently just a confused man trying unsuccessfully to enter what he thought was his own home—the police should not investigate the situation in a proper manner, not least in the interests of those whom they interview? I wait to see not only what answers to these and other questions emerge from this debate but what transpires when this Bill goes to the House of Commons.

I have no doubt that the Lord Chancellor will seek to portray himself as the champion of the victims. It is a pretty hollow claim on the part of a Government who are both alienating and cutting the police force; undermining community policing; presiding over the reduction of community support officers, who provide invaluable back-up to front-line policing; and savagely slashing or altogether removing compensation for the victims of crime by their changes to the criminal injuries compensation scheme. Those changes, I might add, were forced through the House of Commons by the process of mugging several Conservative members of the relevant committee, including John Redwood MP, a senior former Minister, and substituting placemen in the form of Parliamentary Private Secretaries—not much consideration for victims of crime in that context.

I repeat that we are at one with the intention to protect the householder and punish the burglar. We remain to be convinced that the Government’s proposals are sound in law and safe, from the perspective of the very people they are supposed to protect.

Before the noble Lord sits down, in the light of his very powerful speech, is he going to invite his Benches to enter the Lobbies to oppose this amendment?

My Lords, I am treating this as a Second Reading debate, which we could and should have had some time ago, to allow the Government the opportunity to make their case—which, it seems to me, the Minister has failed to do today—either here or in the other place, but we will not be voting on these proposals today.

My Lords, I should disclose that I presided over the case of Tony Martin on appeal. I oppose this amendment because I regard it as a very bad example of where statutory interference with the common law is wholly unnecessary. Unfortunately, like the noble Lord, Lord Beecham, my home has been burgled so I am not totally objective on these matters and know the concern that they can cause.

The position here is that nearly every word the Minister used in moving this amendment is the sort of remark that judges up and down the country would make to a jury when dealing with those very few cases in which a householder is prosecuted. I could hear myself making precisely those remarks in those days of longer and longer ago: such as saying that the person whose house was broken into, or who was attacked by a burglar, cannot be expected to draw a fine line between what is permissible and what is not. He has to be judged in the circumstances in which the alleged offence was committed. The great advantage of that situation was that the jury of men and women with their own experiences could set the standard and decide what was reasonable or what was not. Certainly, based on my experience, they always exercised that task in a way that was sympathetic to the defendant whose home was interfered with.

The problem and disadvantage caused by introducing an amendment of this sort is that you will always try to put into language the appropriate circumstances where you think a particular result is desired. However, there will be circumstances that are very similar to those circumstances, but where the language used does not apply. You cannot anticipate all the circumstances. One inevitable difficulty with this sort of amendment is that there will be amendment after amendment to the law, making it more and more complex and difficult to apply. Yet, as the quotation from the present Lord Chief Justice makes clear, a statement of the sort he indicates will achieve justice in the particular case.

I can understand why it is thought to be a good thing to do everything possible to defend victims of a particularly nasty crime from unintended consequences. However it is not desirable when the law itself is satisfactory and changing the long-standing law that upholds the spirit of the common law is sought by reducing it to the kind of language we have here.

My Lords, I, too, oppose this amendment and echo everything said by the noble and learned Lord, Lord Woolf. The whole nature of self-defence in the common law is very clear. Day in, day out, juries up and down the country judge using that set of criteria; which is that when you are fearful for your own safety or that of your family, when you feel a threat and act in response to the fear of a threat, no one expects you to measure the nature of your response to a nicety. No one for a minute expects you to be measured in the cold light of day and not take account of the heat of the moment that faces you when defending yourself. That is a measure in the courts on self-defence anyway, but it becomes even more heightened when dealing with the terror that we all know—and probably most of us have experienced—when we find that we have been burgled.

So this is about reaching for changes in the law for rather unsatisfactory purposes. A Dutch auction is now going on between the political parties about who can be tougher on law and order and this is about seeking to appeal to a fear in the public that is already met by law. That really is the poorest kind of legislative endeavour and is not worthy of the Benches on the other side.

I want to reiterate something else: the Government’s amendment permitting the use of disproportionate force by householders is actually a rare example of a provision in a Bill that is incompatible with the European Convention on Human Rights. It is in breach of the United Kingdom’s obligation under Articles 2 and 8 to ensure that its criminal law provides adequate protection for the rights to life and physical integrity. Those apply to all of us in society. I am sure that there are those on the government Benches who would cheer on any way of challenging the European Convention on Human Rights but that cannot be true of the Liberal Democrats who make up the coalition. I really want them to be mindful that this is disrespecting our commitments under the European Convention.

For those on my own Benches, I say with some pride that when the Labour Government sought to change the law in 2008—for I suspect equally unhelpful reasons—it was pointed out that they would run into difficulties with the European Convention on Human Rights. I am happy to say that they demurred. There is a letter in the public domain dated 31 January 2008 from the Lord Chancellor and Secretary of State for Justice at the time, the right honourable Jack Straw, to Nick Herbert, Conservative Member of Parliament. Mr Straw referred to the report of the then Joint Committee on Human Rights and pointed out that he—and the Labour Party—agreed with the committee’s analysis that for criminal law to permit the use of disproportionate force would provide for it to do something that was incompatible with Articles 2, 3 and 8 of the European Convention on Human Rights, which require the use of force to be proportionate. That was the position of principle of Labour at that time. I am sure that it will continue to be the position of Labour now—at least, I hope so.

I say to those on the other Benches: there is no need for the law to be changed on this. Our common law gives us the answer to these challenges to home owners, who deserve to be protected—absolutely—and should not be put in fear of being prosecuted. The law as it stands is absolutely adequate. I am afraid that this is politicking, not legislating.

My Lords, I entirely agree with the noble Lord, Lord Beecham, the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Kennedy of The Shaws. I remember well when the Criminal Justice and Immigration Act 2008 was going through this House that I was much concerned by Section 76. I have always thought that the piecemeal amendment of the common law by legislation was a mistake unless such amendment was preceded by a report from, in the old days, the Criminal Law Revision Committee or, nowadays, the Law Commission. I suggest that there are two grave disadvantages in the sort of piecemeal amendment we are now asked to perform. First, it deprives the development in the common law of the flexibility that the common law provides as circumstances change. Once you put it in statute it is in statute, and if it is to be changed at all it has to be changed by statute. Secondly, it may often be initiated as the result of a particular campaign—this may be an example of that—without regard to the wider context.

I did not in fact oppose Section 76 when it went through the House because it at least did not in any way seek to change the law on self-defence. That is made amply clear by Section 9 itself. Section 76 was in some ways an odd provision because it refers both in subsection (1) to the test being one of reasonableness and in subsection (6) to the test being one of disproportion—although those two things might be thought to be opposite sides of exactly the same coin. That will not be so from now on because of the addition of the word “grossly” before the word “disproportionate”. For that reason Section 9, which made it clear that the common law was not going to be changed, has now itself been amended to show that, in this respect, the common law is being changed. We are thus now doing exactly what I feared would be the result if we stratified the law as we did in 2008.

What is being done is defended on the basis that it is very difficult for the householder, in the agony of the moment, to make a nice judgment as to what is reasonable or is not. That has always been the law, as my noble and learned friend Lord Woolf has made clear. Speaking from my own experience, I have always stressed that very point. In that respect, this will not change the law but it will, in fact, change the law in the way that I have described. Just as judges have got used to directing juries in accordance with Section 76, they will now have to change tack, which they should not be required to do.

My Lords, the Minister said that householders should not be subjected to criminal liability because of the use of force which may appear disproportionate in the cold light of day, and that the amendment is designed to redress the balance. It is very important to identify precisely what the balance is at the moment and, as the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Kennedy of The Shaws, have said, the law is very clear on this subject. The official specimen directions to a jury—what judges up and down the land actually tell jurors on this subject—are contained in the Crown Court Bench book which says:

“When considering whether the defendant’s conduct was reasonable do bear in mind that the person who is defending himself cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary; and in this regard, the more serious the attack (or threatened attack) upon him, the more difficult his situation will be. If, in your judgment, the defendant was or may have been in a situation in which he found it necessary to defend himself and he did no more than what he honestly and instinctively thought was necessary to defend himself, that would be very strong evidence that the amount of force used by him was reasonable”.

This provides all the protection that the householder needs or, indeed, deserves. The Minister did not refer to any cases of unjust convictions, or even unjust prosecutions that should not have been brought. The highest that the Minister put it in his opening remarks is that such cases “might conceivably” occur in the future. This is surely the weakest basis for proposing law reform that your Lordships will have heard for some time. Furthermore, I agree with the noble Baroness, Lady Kennedy of The Shaws, that these amendments are inconsistent with our obligations under Article 2 of the European Convention on Human Rights to protect the right to life. It is one thing to allow the householder to use proportionate force and to assess that on the basis of what they honestly and reasonably understand the facts to be at the time they act in circumstances of shock and distress. It surely is a very different matter for Parliament to authorise the use of disproportionate force.

With great respect, I cannot understand why the Opposition Front Bench is not opposing this amendment in the Division Lobby today, despite the noble Lord, Lord Beecham, eloquently explaining that the amendment would cause confusion and nothing positive. It is all very well to treat this as a Second Reading debate but it is the only opportunity that this House will have to oppose the amendment. I hope that the Opposition will reconsider their position. I am sure that many noble Lords would join them in the Lobby if a Division were called.

This amendment is unnecessary, unprincipled and inconsistent with our international obligations. I hope that the Government will think again.

My Lords, I am sorry that I missed the beginning of the debate: I was engaged on other business. I support everything that has been said against this amendment. It is unnecessary and confusing, and will be inflexible. My experience is much more limited: I was a criminal practitioner who had to sum up in these kinds of cases on dozens of occasions.

On those occasions, I always would quote—I am grateful to the noble Lord, Lord Pannick, for giving us an account of the current sentencing preferred remarks by the Sentencing Council—a namesake, who is no relation although I knew him. Lord Morris of Borth-y-Gest used to say that in the heat of a moment, one cannot judge to a nicety the appropriate amount of force that is reasonable. That phrase used to be quoted in the sentencing remarks and was referred to by my noble friend Lady Kennedy.

In summing up, will the Minister enlighten us as to the form of words that would be used by a judge to sum up a situation where he is saying that a disproportionate amount of force can be used? I should like to know what those words will be. That would clarify the situation beyond peradventure. I fear that the Lord Chancellor is making up the law on the hoof and will rue the day if this becomes part of our law.

My Lords, I, too, have been burgled and I have absolutely no sympathy with burglars, but this amendment goes too far. I am very concerned about proposed new subsection (5A), under subsection (2) of Amendment 113C, as regards using the words “grossly disproportionate”. As the noble and learned Lord, Lord Morris of Aberavon, has just asked, how on earth would one advise a jury—I am glad to say that I was not a criminal lawyer but I did a little crime—that you can be disproportionate but not “grossly disproportionate”?

I share the view of the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Pannick, that it is contrary to the European Convention on Human Rights. I believe it is a matter that would end up in Strasbourg if we were not extremely careful. The Government—I can see for the best of intentions—are just going too far.

My recollection about the Martin case, which I read only in the press, is that he was shot in the back, which would be “grossly disproportionate”. Obviously, one could see why he did not get the existing protection that the Lord Chief Justice has given and that is in the standard advice to juries, as the noble Lord, Lord Pannick, read out. We do not need to go further. To go further will cause real trouble.

My Lords, I regret that I cannot support this new clause. I agree entirely with what the noble and learned Lords, Lord Woolf and Lord Lloyd of Berwick, and a number of other practising lawyers have said. I regard this matter as very unsatisfactory. I have not practised as a barrister in recent years but I practised in the past and this proposal is unsatisfactory.

My Lords, I speak as a layman who has represented communities in which the whole family cannot go out for a night’s entertainment because someone has to stay in for fear of being burgled. Like many noble Lords, I know what it is like to be burgled. You feel terrible when your home has been broken into. What worries me about the provision in this amendment is that in some historical cases firearms have been used. If this amendment is passed, many people who do not want their house to be broken into again will take precautions. In the countryside, people have firearms certificates for vermin and for recreational shooting, and I know that there are some firearms certificates in the city I represented because I had to sign certificates to say that the holder was a good, decent person. With this amendment, some people will want the same protection as someone living in the countryside and will apply for a firearms certificate just in case. That is a worry. There is a big difference between someone living on a small farm having a firearm and someone living in a tenement where it is much more dangerous.

I know from my experience in another place that Ministers, some of them the holders of the highest offices in the land, indulge in sound bites. They say to the press, “People are entitled to protect their homes”. Of course they are entitled to protect their homes, but we cannot have a situation where we give a licence to someone who will decide that he is going to take a shot at a burglar and will say that it was proportionate or that he did not think about it at the time.

Part of this amendment relates to Armed Forces accommodation—barrack rooms. We are talking not about shotguns but about far more lethal firearms. A soldier could say, “I was defending myself, and that’s why I shot this intruder”. I speak as a layman. I have no experience of standing in a court and putting a case or of listening to a case, as some noble Lords have, but I think this amendment is bad news.

My Lords, this has been a very thoughtful debate, and people of great experience have put their views forward. I shall try again to explain where the Lord Chancellor is coming from and to reassure noble Lords on some of the points that have been made.

In bringing forward this amendment, the Lord Chancellor wants to clarify the situation and reassure the general public. Although the last contribution from the noble Lord, Lord Martin, was not in support of my proposal, it made the point that we are trying to deal with ordinary people dealing with situations in their lives. I understand lawyers making their points, but it is important that we see this from the public’s point of view. Although some recent cases have not led to prosecution and conviction, as I said, there may be cases in future which will benefit from the additional protection and clarification we are providing. Let me be very clear again, following on from what the noble Lord, Lord Martin, said, that this is not a vigilantes’ charter. In this country, there are still extremely strict rules about the possession and storage of guns which would still apply.

This is an attempt to recognise that people confronted by burglars, and acting in fear for their safety in the heat of the moment, cannot be expected to weigh up exactly how much force might be required. In these extreme circumstances, we think they should have greater legal protection. It is certainly not a licence to kill, whatever the circumstances. People will still be prosecuted if the use of force was unreasonable in the circumstances. The use of grossly disproportionate force will never be reasonable.

It will be for the courts to determine in each case what is disproportionate or grossly disproportionate. We want to make clear though that householders, who cannot always be expected to be thinking clearly if they are confronted by an intruder, will not be treated as criminals if they use a level of force which in the circumstances as they believed them to be is reasonable but turns out to have been disproportionate. We are clear that it is not open season for vicious attacks on anyone, even an intruder.

Let us also be clear, if somebody has been killed or seriously injured, an arrest may be necessary for the police to investigate thoroughly. A revised code of arrest for the police—PACE Code G—came into force on 12 November 2012 with new guidance on the circumstances in which an arrest may be necessary. The guidance also encourages the police to consider whether voluntary attendance at an interview might be a practicable alternative to a formal arrest. The changes we are making to the law will complement the improvements made to PACE Code G.

We are not changing the fundamental premise that a person can only use force that was reasonable in the circumstances as they believed them to be. The law on the use of force in other circumstances, for example, to defend oneself on the street, to prevent crime or to protect property will remain unchanged. We are trying to rebalance the law so that householders will not be thought of as criminals but, as I said at the beginning, quite properly as victims.

I am assured that we believe that the amendment is compatible with the ECHR and that we have recently published a memorandum in support of that view which I will put in the Library of the House.

Listening very carefully, I again pray in aid although I am not saying he is in support of this particular amendment, the Lord Chief Justice, who caught the mood behind the amendment at his press conference in September. He was reported as saying that,

“I am not talking about individual cases, but I know of cases, and I do read the newspapers occasionally”,


“it looks as though the householder is the criminal”.

He then pointed out the circumstance of a householder facing a burglar.

“You are probably very cross and you are probably very frightened—a mixture of both—and your judgment of precisely what you should or should not do in the circumstances cannot, as another predecessor of mine (Lord Lane) said, you cannot measure it in a jeweller’s scale”.

The realisation that in such terrifying circumstances you cannot measure it in a jeweller’s scale led the Lord Chancellor to conclude that it would be better to clarify the law in a way which he believes will be more reassuring to the householder and give better guidance to the court.

Before the Minister sits down, have the Government consulted the Lord Chief Justice and the judiciary on this matter and, if so, what has been their response to the amendment?

Amendment 113CA not moved.

Amendment 113D

Moved by

113D: After Clause 24, insert the following new Clause—

“Immigration appeals: asylum and humanitarian protection

(1) The Nationality, Immigration and Asylum Act 2002 is amended as follows.

(2) In section 83(1)(b) omit the words “Kingdom” to the end.”

My Lords, the new clause proposed by the first amendment in this group would remove the restriction whereby an appeal against the refusal of asylum can be brought only where the person has been granted leave to enter or remain for more than 12 months. Noble Lords will be aware that unaccompanied children who are refused asylum are granted humanitarian protection or discretionary leave for periods of three years or until they reach the age of 17, whichever is the shorter, on the basis that they cannot be sent back to their country of origin. Bearing in mind that the UKBA takes months and sometimes years to decide whether to grant humanitarian protection in lieu of asylum, the child might arrive at the age of 15 or even earlier, might be refused asylum at the age of 16 and might still have to apply for discretionary leave to remain for a period that would make the total more than 12 months before appealing against the refusal.

I take it that there are very few refusals of the extension of discretionary leave, as almost all unaccompanied asylum-seeking children will have had no contact with family in their country of origin and therefore will still be ineligible for return when they reach the age of 17. The effect of the provision in the 2002 Act is to delay the permanent settlement of these children in the UK, making it harder for them to access the whole range of public services, including further and higher education, so that their economic and social potential is less than it would be if and ultimately when they become permanent residents of this country.

My noble kinsman said on 4 July 2012, in col. 710, that it was an “unfortunate consequence” of the otherwise very sensible 12-month restriction. He gave an assurance that the policy as it affects children would be reviewed. I was looking forward to hearing the outcome of that review at this stage of the Bill. It seemed to me that the Bill could only confirm the unfortunate consequences, as my noble kinsman called them, and that the Government would explain how they would eliminate them. Instead, my noble friend Lord Taylor told me in a letter of 20 November:

“We have considered this matter very carefully and have concluded that no change in current practice is appropriate”.

He stated, quite inaccurately, as I see it, that the,

“amendment would undermine the intention of the existing appeals framework, namely, to prevent multiple appeals that result in significant cost to the taxpayer”.

Those who are recognised as refugees will not need any second appeal, but the children and trafficked persons in question will get no appeal at all until they face removal—something that, had their case been decided correctly at the outset, they would never have faced. My noble friend says that the young persons affected by Clause 83(1),

“are on the cusp of adulthood, and … the detrimental impact of any delay in an appeal right arising is less severe than it would be for children of a younger age”.

I think the opposite is true, because younger children tend to accept the situations they face as a result of adult decisions, but as they approach maturity they can recognise deliberate unfairness inflicted on them by authority. I would like to know whether my noble friend sought the advice of experts such as the Children’s Society before he expressed that opinion or whether it was ex cathedra.

Does his review cover trafficked persons, who are granted leave for one year following a determination through the national referral mechanism set up by the Government to identify and support victims of trafficking in the UK? That process was established in pursuance of the Government’s obligation to identify victims under the Council of Europe Convention on Action against Human Trafficking. Article 14 of the convention provides that a victim of trafficking shall be granted a residence permit, which will be without prejudice to the right to seek and enjoy asylum. That seems to imply that the 12-month residence permit granted to trafficked persons would not debar them from submitting an asylum claim. I look forward to hearing from the Minister how this can be squared with Section 83(1).

I turn to the second of the new clauses. The purpose is to remove the statutory presumption that a country other than a person’s country of nationality is a safe country to which a person seeking asylum can be removed simply because the Secretary of State asserts that it is a safe country. A safe country is one where the person will not be persecuted and from which he or she will not be refouled in contravention of the refugee convention or the European Convention on Human Rights.

Section 94 of the Nationality, Immigration and Asylum Act 2002 establishes a scheme whereby persons seeking asylum may be precluded from a right of appeal against the refusal of asylum unless and until they have left the UK, including where this may mean returning to their home country or to a third country that the Secretary of State asserts to be safe. Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 limits what the asylum seeker can argue on a judicial review about the safety of the third country.

Section 94(8) creates a statutory presumption that, when the Secretary of State asserts that a country other than the person’s home country is safe, it is presumed that in that country the asylum seeker will not face persecution for a refugee convention reason and will not face being returned to a country in which he or she does face persecution for a refugee convention reason. The statutory presumption seeks to oust the jurisdiction of a court to consider the correctness of the Secretary of State’s opinion as to the safety of such a country.

The provisions of Schedule 3, which the new clause proposes to delete, require a court dealing with a judicial review relating to a removal to make presumptions of safety. For example, paragraph 3(2) states:

“A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place … where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion”.

In the case of NS, the claimant asylum-seeker had sought judicial review of his third country return to Greece. Whereas the Administrative Court in England and Wales had been concerned as to the conditions in Greece, it considered itself bound by previous authority to uphold the UK Border Agency decision to return NS to Greece. The Court of Appeal referred the matter to the Court of Justice of the European Union. That Court concluded, in the context of European Union arrangements for safe third country returns within the European Union, under what are often referred to as the Dublin Regulations, that,

“to require a conclusive presumption of compliance with fundamental rights … could be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States. That would be the case, inter alia, with regard to a provision which laid down that certain States are ‘safe countries’ with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary”.

The presumptions in Section 94(8) and the paragraphs of Schedule 3 seek to be such provisions, and accordingly ought to be removed.

Greece is not the only safe country where these presumptions may be unfounded. Section 94 allows the Secretary of State to list not only countries that are safe, but countries that are safe for a given description of persons. Thus a number of African countries are designated as safe for men, so that women threatened with return to those countries still have an in-country right of appeal. However, lesbian, gay, bisexual and transsexual people, who suffer relentless cultural, social and even legal pressures and persecution in more or less the same list plus Jamaica, have no such right.

In the case of HJ (Iran) and HT (Cameroon), which was dealt with in the Supreme Court in 2010, the noble and learned Lord, Lord Hope, spoke about the,

“rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa”.

It was lucky for HT that he did not come from one of the countries designated as safe such as Malawi where, as the noble and learned Lord, Lord Hope, pointed out, two gay men who celebrated their engagement had recently been sentenced to 14 years in prison. If those men had sought asylum in the UK, their claim would have been treated as unfounded and they would have had no right of appeal. Curiously enough, two lesbians in the same circumstances would have had a right of appeal, since Malawi is treated as a safe country for men only in Section 94.

If the Government are not prepared to accept this amendment, the least they could do is to make the list in Section 94(4) correspond with the reality of persecution on account of sexual orientation as well as gender, which can be done by order. My noble kinsman replying to a similar amendment at Committee, claimed that an appeal after removal was a satisfactory remedy for those removed to a “safe country”. Could the Minister tell your Lordships how many people who were removed after claiming asylum from a supposedly safe country on the basis of their sexual orientation managed to appeal from abroad, and in how many of those cases they were successful? I know that the Government are very well aware of the widespread persecution of LGBT people, so I assume that they will have kept records of these cases, although I do not expect the Minister to be able to produce them on the spot.

I turn to the third new clause. The purpose is to ensure that an appeal is not treated as abandoned when leave to remain is granted to the appellant. The situation at the moment is that under the provisions sought to be left out of Section 104 of the 2002 Act, this happens automatically, and the result is that the tribunal is prevented from reaching judgments on points of principle that are dealt with in the case. It can happen that a series of cases, all turning on the same principle, are aborted by the Secretary of State in this way, contrary to the interests of justice.

In the case of Osman Omar, the judgment handed down on 29 November 2012 by Mr Justice Beatson addressed this issue. He resisted attempts by the Secretary of State to argue that the claim was redundant in that she had already granted the claimant further leave to remain. He ruled, in effect, that the Secretary of State cannot keep knocking cases out by settling them on the facts and refusing to litigate on the point of principle. As Mr Justice Beatson said:

“The substantive issue raised by the claimant is an issue which arises regularly. It arose in Francis. It will arise in the case of Ahmed ... which, as I have stated, is listed for hearing at the end of January 2013”.

Therefore, the challenge in these particular cases is to the vires of the regulations, which provide for a fee to be payable for an extension of discretionary leave, but with no discretion for the Secretary of State to waive it in the case of an applicant who seeks leave on human rights grounds but cannot afford the fee because he is either destitute or in receipt only of NASS support. I hope the Minister will agree that it is important for this question to be determined, and that in cases of this kind, it is common sense to leave the matter to the tribunal. I beg to move.

My Lords, I have a good deal of sympathy with the noble Lord’s first amendment, but am not perhaps quite as persuaded by the subsequent amendments. However, in any event I pay tribute to the noble Lord, Lord Avebury, for his consistent concern with the problems of a particularly vulnerable group in our society and his very powerful advocacy on their behalf. He has obviously seized the opportunity to bring that concern into this Bill. I object less to that spatchcocking than I did to the previous amendment moved by the Minister in relation to burglary, but perhaps it is not the best forum in which to take these matters forward. I hope that the Minister can go a little further than he appears to have done in correspondence with the noble Lord and at least indicate that this whole area should be reviewed. It is some time since we have had a proper debate around the particularly delicate issues to which the noble Lord referred. While it is probably the case that this is not a matter to be voted on today, it should not be neglected indefinitely and ought to be considered.

Perhaps the Minister could indicate that discussions, not in respect of Third Reading but more generally, could take place around these and allied issues in connection with asylum and immigration matters where they impinge on the presence or otherwise in our country of people who have fled persecution and danger elsewhere, in a context that is outside the legislative framework for the time being. That might be a way forward in which a broad consensus could be reached across the House rather than dealing with it in terms of the amendments that are before us today. Again, I pay tribute to the noble Lord for raising these matters. I hope that can be seen as a first step and not the last step in a process of looking at the issue.

My Lords, I support my noble friend and add one further thought. In terms of public awareness, I have heard it said that these issues are now at about the same stage that domestic violence was about 20 years ago. I think that there would be a good deal more public understanding and sympathy for the sorts of changes that my noble friend has advocated even than there might have been four or five years ago. I think that the public mood is moving somewhat on this. It would be nice for the Government to be ahead of the public mood.

My Lords, I cannot promise my noble friend that the Government can be ahead on these issues but I am grateful for the opportunity to debate his amendments. I assure the noble Lord, Lord Beecham, that the Government keep the workings of the asylum process under review. Indeed, it would be wrong not to do so.

Amendment 113D would create a right of appeal whenever someone is refused asylum and granted any form of leave. As a result there would be more appeals against a refusal of asylum for a group of cases where no immediate right currently exists, and multiple appeals from individuals.

As my noble friend Lord Henley acknowledged in Committee, it is an unfortunate consequence of the otherwise very sensible 12-month restriction that some unaccompanied asylum-seeking children will experience delay in bringing an asylum appeal. My noble friend agreed to review the policy in respect of children to ensure that there were no unintendezd consequences. We have completed that review and concluded that this policy, seen in the context of the statutory appeals framework and current economic circumstances, operates as intended. As my noble friend has said, I have written to him to confirm this.

This amendment is to Section 83 of the Nationality, Immigration and Asylum Act 2002, which provides that an individual may appeal against an asylum refusal when leave is granted for a period longer than 12 months. Amendment 113D would remove the 12-month restriction and create a right of appeal against the refusal of asylum regardless of the period of leave granted. It is not unusual for short periods of leave to be extended more than once. Recent case law means that this amendment could create a right of appeal against the earlier refusal of asylum every time further leave was granted. Therefore, this amendment would have serious and undesirable consequences for the existing appeals framework as it could result in multiple fruitless appeals being used to prolong someone’s time in the UK. In the current economic circumstances, it is vital that resources are used where they are most needed. While I recognise that the intention of this amendment is to reduce delay for children and trafficked persons, the consequences for the appeals framework are not justified for the following reasons.

First, the amendment is too broad. It would extend the right of appeal under Section 83 of the 2002 Act to anyone granted leave after a refusal of asylum, not just children and trafficked persons. This would result in additional costs and resources to administer each appeal. Secondly, only a minority of unaccompanied children who claim asylum are affected by this policy in the way described by my noble friend. It would affect only those who are older than 16 and a half when refused asylum but granted some other form of leave. As we have said, these children are close to adulthood and have a right of appeal should a decision be taken to remove them after their leave runs out at age 17 and a half. This delay is not unreasonable.

Thirdly, while it is correct that trafficked persons are similarly affected, for similar reasons to those we have given in relation to children we believe that the current policy may be equitable in all the circumstances. Section 83 of the 2002 Act affects only those trafficked persons who claim and are refused asylum. It is important to remember that in all cases before a child or any trafficked person is removed from the UK, they will be entitled to a right of appeal. The Government’s policy ensures that individuals do not have multiple appeal rights over a brief period, possibly raising the same arguments on each occasion as matters may not have evolved since their last appeal. The amendment proposed would undermine this key principle of the Secretary of State’s asylum appeals framework. For the reasons set out above, we are not persuaded that the current policy for appeal rights under Section 83 of the 2002 Act, either for children or more generally, has an impact of the magnitude necessary to justify incurring additional expense in relation to appeals.

Amendment 113E concerns the Secretary of State’s powers to certify, under Section 94 of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach their human rights where the presumption is that the country to which the person is to be removed is safe. The effect of the certificate is that an appeal can be brought only after the person has been removed. This provision prevents appeals being used to delay removal in hopeless cases. Persons will be removed to a third country only if that country will not remove the person to another country other than in accordance with the refugee convention. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached.

Amendment 113E is tabled on the basis that Section 94(8) seeks to oust the jurisdiction of a court to consider the safety of the country of removal. It is, however, unnecessary. The courts are already able to consider whether the person’s human rights might be breached where judicial review challenges the issuing of the certificate. Once removed to the third country, an appeal may be brought and refugee convention issues can be considered. My noble friend asked for some detail here, and I will have to accept his very kind offer to allow me to write to him to give him a response to the data he was seeking.

Amendment 113E also seeks to remove those provisions in Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 that reduce the circumstances in which removal to a safe third country can be frustrated on the grounds of unmeritorious claims about treatment in, or removal from, those countries. The amendment would have a considerable practical impact on removals made to other European countries under the Dublin regulation. That regulation determines which state is responsible for examining an asylum claim. It plays a key role in tackling abuse of asylum systems through the phenomenon of “asylum shopping”. Indeed, the value of the Dublin regulation to the UK is clear. Since 2004, the UK has been able to remove more than 10,000 individuals under the Dublin regulation.

It is argued that the amendments are necessary to reflect the terms of the ruling of the Court of Justice of the European Union in the case of NS v Secretary of State for the Home Department, dated 21 December 2011. My noble friend referred to this case. The Government respectfully disagree. The ruling in NS gives useful guidance on the correct approach to fundamental rights as a matter of EU law. However, as a matter of practice, it does not significantly change the approach to domestic legislation. The concept of a rebuttable presumption in legislation when considering the impact of the Human Rights Act is not new. It was firmly established by existing case law from the European Court of Human Rights in KRS v UK in 2008 and from the House of Lords in Nasseri v Secretary of State for the Home Department in 2009. What the Luxembourg court has done in NS is confirm that a similar approach should be taken when it is alleged that there is evidence of the Charter of Fundamental Rights being breached.

I turn, finally, to Amendment 113F. The effect of this amendment would be to allow an appeal to proceed where the appellant has been granted leave by the Secretary of State. The purpose of many appeals is to overturn a decision to refuse to grant leave. Consequently, it is the Government’s position that in the majority of cases an appeal should not proceed where leave has been granted. Currently, Sections 104(4A) to 104(4C) of the Nationality, Immigration and Asylum Act 2002 provide that an appeal cannot proceed where the appellant has been granted leave. The exceptions are where the appeal is brought on the ground of race discrimination or where the appeal is against a refusal of asylum and the leave which has been granted is in excess of 12 months. This is consistent with Section 83 of the Nationality, Immigration and Asylum Act 2002, which was the subject of Amendment 113D. Where the appeal does not fall into these two groups, we do not believe it is necessary or appropriate for it to proceed where leave has been granted. The appeal is unnecessary because leave has already been granted. There is no detriment caused by the absence of a right of appeal which will be cured by this amendment. However, making this amendment would have a detrimental impact as additional rights of appeal would arise, each of which represents an additional cost to the Government and the taxpayer. The increased number of potential appeals will place an additional burden on the tribunal and court systems, which are already dealing with significant numbers of immigration appeals.

We do not believe that preserving an appeal right where leave has been granted is necessarily appropriate. Frequently, the Secretary of State makes a grant of leave while an appeal is pending for pragmatic reasons. This avoids unnecessary litigation at a cost to both parties. Where leave has been granted, an appeal can proceed only on an academic, rather than an individual, basis. The tribunal is primarily a fact-finding tribunal and therefore it is not appropriate for a case to proceed before it on an academic basis only. In light of these points, and in the knowledge that I will continue to work with my noble friend and respond to his questions on this issue, I would ask him to withdraw the amendment.

My Lords, I am most grateful to my noble friend the Minister for his thorough reply to these three amendments, although—as he would expect—I cannot say that I am entirely satisfied with his response. In the case of Amendment 113D, he did not go into the consequences of giving limited leave to remain to unaccompanied children and trafficked persons—a matter which I tried to outline in moving this amendment. There is room for further examination, and if he is prepared to let me have sight of the review that was undertaken, that would be the most helpful basis on which we might proceed.

As he will have realised, these amendments were all framed by the Immigration Law Practitioners’ Association and it, too, would like to be consulted in any review that will be undertaken in the future on the implications of the present situation for these unaccompanied children and trafficked persons granted limited leave to remain. My noble friend said that the amendment was too broad; we would be perfectly happy if, as a result of further discussions bringing in the legal advice of ILPA, we could agree on a more limited version of Amendment 113D.

With regard to Amendment 113E, removing someone to a supposedly safe third country does not eliminate the right of appeal, but if you have to exercise the appeal from an overseas country with all the disadvantages that that entails in the way of consulting lawyers, obtaining written statements and so on, the right is really not worth very much. The cases we considered mean that the designation of safe third countries is not a satisfactory way of proceeding, particularly when one considers the position of LGBT asylum seekers. I mentioned them in my remarks, but the Minister did not touch on them in his reply. I realise that I was asking for detailed information about what has happened to LGBT asylum seekers who were returned to supposedly safe countries. Maybe we can review the situation once we have that information in front of us.

On Amendment 113F, I mentioned the remarks of Mr Justice Beatson and thought that maybe my noble friend would not have had time to consider that judgment. Perhaps we can pursue the matter in more detail later. He did not respond to the point that, by granting leave to remain in a series of cases that touched on the same matter of principle, the Secretary of State was avoiding any resolution of the matter of principle, which would be helpful in cutting short proceedings of the tribunals in later cases. Therefore, I do not accept what my noble friend said about the saving of time in the courts; I think the reverse is probably true, but again, perhaps we can leave this for further discussion with the benefit of advice from ILPA at a later date. In the mean time, I beg leave to withdraw the amendment.

Amendment 113D withdrawn.

Amendments 113E and 113F not moved.

Before I call the next amendment, I wish to announce that in the Division on Amendment 113C, there voted Not Content 55, not 54 as announced.

Schedule 16 : Super-affirmative procedure

Amendment 113G

Moved by

113G: Schedule 16, page 250, line 34, leave out from beginning to end of line 19 on page 251

My Lords, I was concerned that timing might be against us getting to this point this evening, because I have an unavoidable engagement to which I must go. Having looked at what was said on the amendments in this group, both at the recommitment and in Committee, I do not feel that there is much more that I need to add. My concern about what is included in the section that I am seeking to have removed is that it is based on perception and not on fact. For example, I learn today that 50% of all cases involving violence are now dealt with outside the courts, which suggests that there is some confusion over where violence should be dealt with. I am very concerned that the word “punishment” should be added like this, because from talking to magistrates and others I know that they are already quite clear what their duty is in terms of the sentences that they have to impose. What we are talking about here is not so much the need to add this initiative to sentencing but looking at and seeing what is actually done with and for those people who receive the sentence.

As I have said before, we are in the dark here because we simply do not know what the Secretary of State has in mind. We have not yet seen the terms of the government response to the probation consultation. We understand that there are going to be commissioners all over the country commissioning community sentences, although we do not know whether they are going to come from the probation service, the voluntary sector, the private sector or whatever. We are in the dark and, frankly, I think it is a great pity that something like this should be left in such an imprecise state. That is why I wish to see the thing removed. There is so much work to be done in this area. Anything that needs to be done should be brought back after further work on the whole area, including study of the probation consultation, has taken place. I beg to move.

My Lords, we have an amendment in this group. It is interesting that the Government’s response to the consultation on effective community sentences states:

“We will legislate to place a duty on courts to include in the community order a requirement that fulfils the purpose of punishment for the offender. The court will be able to exercise this duty by imposing a fine instead if it considers that to be appropriate. While we will not specify what requirements courts should impose, on the basis that what is punitive for one offender may not be punitive for another, our expectation is that these would generally be restrictions of liberty that represent to the public a recognisable sanction (such as curfews, exclusion, or community payback). The duty will provide for an exemption in exceptional circumstances where it would be unjust to impose a punitive element”.

The Government’s response refers to restrictions of liberty such as curfews, exclusion or community payback. The use of the words “such as” implies that a court could impose other requirements that would be regarded as restrictions of liberty. Can the Minister confirm if that is the case? What might the other restrictions of liberty be that would be regarded as punitive? Will he also confirm that if a court imposed as a punitive element something other than a curfew, exclusion, community payback or a fine, that would not be regarded as acting outside the terms of this Bill?

The Government’s response to the consultation on effective community sentencing also refers to a punitive element being a restriction of liberty that represents, to the public, a recognisable sanction. Who is to determine what represents to the public a recognisable sanction? Will it be for the court to decide? If it decides that a punitive element is something other than a curfew, exclusion, community payback or fine, will the court, whether the original court or an appeal court, be regarded as having acted outside the terms of the Bill?

Even the Government’s own response to the consultation states that nearly all respondents indicated that offenders with mental health issues should be excluded from a mandatory punitive element and that many suggested that offenders with learning difficulties, those unable to carry out a punitive requirement because of poor health or addiction, those with personality disorders and young adults with low maturity should also be excluded. Does the Minister also hold that view, and would the number of such offenders exceed the 5% that it has been widely suggested would be the percentage the courts might feel able to regard as covered by the definition of “exceptional circumstances” laid down in the Bill and thus exempt from the Government’s definition of a punitive element?

One rather assumes that the Government’s approach is conditioned by the kind of recent statement made by the Secretary of State for Justice, that he shares public concern that offenders given community sentences often feel they are getting away with it; that they have been slapped on the wrist rather than properly punished. However, if that is the case, who is it giving that impression to the public other than politicians who make statements like that rather than spelling out just what a community sentence is? Two-thirds already include a punitive element, on the Government’s apparent definition.

Published research on short custodial sentences found that many prisoners preferred short sentences over community sentences because they found the latter more challenging. Does the Minister agree or disagree with those findings by the Howard League? Why does he take the view that a rehabilitation element in a community order cannot be at least as challenging to an offender, if not more challenging, than the Government’s version of what constitutes a punitive element?

For someone who has an addiction, learning difficulties or low maturity, or has led or been allowed to lead a thoroughly dysfunctional and disorganised life, having to face up to the realities of their lifestyle or situation through a challenging programme that they have to attend at specific laid-down times as instructed and co-operate with, or else risk being taken back to court and sentenced in another way, is at least as difficult as doing community payback or paying a fine related to their means. Yet that apparently is not the view of the Minister. Perhaps he could explain why that is not his view. I hope that he will be able to get a bit further than telling us it is because that is not the view of the tabloid press.

If the current position were changed and virtually all community sentences included a punitive element along the lines that the Government appear to be trying to enforce, does the Minister accept that that could be at the expense of rehabilitation elements in a community order? If a punitive element had to be included in an order that currently incorporates what the Government regard as only a non-punitive element, will the Government be providing additional resources to the probation services to cover the cost of this additional requirement, or will probation service budgets be left as they are so that, in order to remain within budget, those services may have to drop the rehabilitation element from the order to enable the cost of the additional punitive element to be paid for within the laid-down budget? What reassurances can the Minister give that this will not happen? The loss of the rehabilitation element in the order where deemed necessary will not contribute anything towards reducing reoffending.

The fact that the Minister does not appear to regard community order requirements involving challenging programmes for rehabilitation as at least on a par, in terms of restrictions on liberty and difficulty for offenders, with unpaid work in the community, a curfew or a fine—which are about the only things the Minister regards as in any way imposing a restriction on liberty—is a step backwards and simply seems to confirm, not challenge, the view that community orders are “soft”. Where unpaid work, a curfew or a fine is appropriate, that is what the offender should be given, but not where it would be inappropriate. The reality is that the Minister has decided that in some 95% of cases involving a community order as a sentence, unpaid work, a curfew or a fine is appropriate. It is usual to hear the facts of a case before coming to a conclusion on what is the appropriate sentence, but that is not what the Government are doing as they seek to specify what must be included in a community order in 95% of cases.

The Government appear to have lost confidence in the courts at a time when crime is falling, without explaining why, other than their own unwillingness to challenge the perception they believe the public hold that current community orders are soft. The reality is that the most important thing the public want to see delivered by a sentence is a reduction in reoffending, and an end to reoffending by the offender. I hope that even at this late stage the Minister will be prepared to change his stance, or at least review it, and support my amendment, which includes a range of existing programmes and orders as being within the Government’s punishment requirement in the Bill.

My Lords, I have difficulty with these provisions, for very much the same reasons as my noble friend Lord Ramsbotham and the noble Lord, Lord Rosser.

I have put forward amendments myself because I feel that if we are not going to have the clean solution proposed by the noble Lord, Lord Ramsbotham, of just getting rid of these provisions—which would certainly achieve everything I want—we have to try more delicate and specific surgery to produce something that the courts can apply practically. To an extent, the amendment in the name of the noble Lord, Lord Rosser, helps in that regard, so as an alternative I would be prepared to accept that.

To clarify my reasoning, proposed new subsection (2A) of Section 177 of the Criminal Justice Act 2003 reads:

“Where the court makes a community order, the court must … include in the order at least one requirement imposed for the purpose of punishment”.

Whether the requirement is imposed for the purpose of punishment or for some other purpose is presumably to be decided by the judge. Under our law, once a person has been convicted, it is the judge’s task to decide what punishment is appropriate. If he comes to the view that it does involve punishment, I would like the Minister to confirm—if I am correct—that the view of the judge will be respected and it is not suggested by the Government that that is a matter with which a higher court would interfere. On the other hand, if that is not so and the decision as to whether the requirement has been imposed for the purposes of punishment is to be made objectively, I would like the Minister to assist me as to what criteria it is to be judged by. If I were that judge, my ordinary reading would be that as these community sentences are imposed as part of the sentencing process, they are all part of the punishment that the court considers appropriate.

My general contention is that we have to have clarity as to what is to happen. Assuming what I have said is not right, who determines the punishment? Does the defendant who is banned from attending a football match determine it or does the court? I am happy to see that the Minister may well be agreeing with me—at least on that matter—but if it is the court, that must be clearly set out.

If that is so, what we have to deal with is how to apply “exceptional circumstances”. If the judge thinks it is a punishment, presumably he never gets involved in the question of whether or not there are exceptional circumstances. If he takes the view, which I am suggesting that he could well take, that all community sentences are in fact a punishment because they involve the defendant doing something that he has no choice about, I cannot how see how “exceptional circumstances” fits in. That is part of the explanation for the first amendment that I propose, which is to leave out of the Bill the whole requirement that there should be exceptional circumstances. The schedule would then read:

“Subsection (2A) does not apply where there are circumstances which … relate to the offence or to the offender … would make it unjust in all the circumstances for the court to comply with subsection (2A)(a)”.

If the suggestion is that it is for the judge to determine, the word “exceptional” and the provisions of proposed new subsection (2B) are superfluous.

The other amendment in my name in this group is Amendment 113GB, which would insert:

“Subsection (2A) does not apply where in the opinion of the court compliance with that subsection would reduce the likelihood that the order will prevent reoffending by the offender”.

The purpose of the amendment is to deal with a situation where, if something has to be done that the judge thinks would not be appropriate because of the earlier provisions and which would make it more likely that the offender would reoffend than otherwise, again that means that the subsection does not have the effect of limiting the judge’s discretion.

I should have indicated that I have proposed these amendments with the support of the Prison Reform Trust, of which I am chairman. The Prison Reform Trust strongly supports the position of the Government in seeking to reduce reoffending. Its regret about the language used in the schedule, without the amendments to which I have referred, is that the Government’s good intentions will be defeated by language, if that language were to be read in a way that meant that the judge was required to impose a sentence which he did not consider justice required to be imposed upon an offender.

My Lords, I have Amendments 113GZB and 113GC in this group, to which my noble friend Lady Linklater has added her name. These also deal with the term “exceptional” and with the application of the section in the Criminal Justice Act 2003 that provides for the court to have regard to the purposes of sentencing, which are listed as:

“the punishment of offenders … the reduction of crime (including its reduction by deterrence) … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation”.

I do not seek these amendments to exclude punishment from the matters to which the court must have regard and I acknowledge that society must deal with offenders in such a way as to win and retain the confidence both of victims and the general public. However, I cannot extrapolate from the research referred to in the impact assessment that where there is a punitive element, there is less reoffending.

Reading through the impact assessment yesterday, it struck me that the sentences in question, which the impact assessment prays in aid, will have been tailored to the offender by the court. In other words, they will be much more bespoke than it seems we are being asked to agree. Certainly, there is no comparison with a control group. Almost by definition, there cannot be a control group in these circumstances. We are told in the impact assessment that the rationale for intervention is to give tools to sentencers. As we have heard—not only tonight—we already have an extensive toolbox and we are adding to it with the welcome provisions on restorative justice. However, the theory of having certain tools available and their availability in practice may not always be quite the same. Public confidence comes from reducing reoffending and crime overall and we have heard what victims want. At the last stage of the Bill, I referred to research by the Restorative Justice Council and Victim Support, which amounts to victims wanting to be sure that “he does not do it again”.

The impact assessment also acknowledges that because community orders must be,

“proportionate to the offence committed, delivering a clear punitive element to every community order may, in some cases, cause certain requirements to be substituted by punitive ones”.

This worries me greatly. The Government tell us that some requirements may be labelled punitive, but in fact would be rehabilitative or become rehabilitative. The Minister used the example of requiring someone to get up every morning to go to an educational course. By the end of it, that person might have found it was a good thing, so it will have moved from punishment to rehabilitation. As I have said before—and I do not resile from this—I find both the possible substitution and the labelling worrying: for instance, labelling education or mental health treatment as punitive. The noble Lord, Lord Rosser, has spoken to his amendment, listing the types of community order which may amount to punishment. I depart from others on this because I do not think that saying the punishments “may include” takes us a lot further forward. If it is to send a message to the sentencers, then the new subsection (2A) sends a stronger message, in effect saying that a fine is not a punishment. I realise that we did not focus much on this at the last stage.

Without spending long on this, I very much support Amendment 113GB from the noble and learned Lord, Lord Woolf. This expresses what I for one have not been able to articulate previously. At the last stage and on other occasions we have talked a lot about the characteristics of offenders and their circumstances. We know about mental health problems and substance abuse, which so often underlies them. Other noble Lords will have seen a new report from the Criminal Justice Alliance, drawing attention to the mental health treatment requirement and its underuse. That is a pity, because the very prevalence of mental health problems means such an offender is not exceptional. In Committee, the Minister stated that,

“the courts can tailor any of those requirements to ensure that they do not have a disproportionate impact on offenders”.—[Official Report, 13/11/12; col. 1428.]

I do not entirely follow how the “tightly defined threshold”—as he described it—ensures that the requirements do not have “a disproportionate impact”. My logic is too confused even for me, but I did not quite follow the argument.

The Minister also stated:

“Nothing in the Bill seeks to undermine the judgment and flexibility of the judiciary, but it puts rehabilitation as a key objective”.—[Official Report, 13/11/12; col. 1429.]

Surely it must affect the hierarchy of sentencing purposes and principles and therefore affect the court’s flexibility.

The noble and learned Lord referred to using delicate surgery on the clause and his scalpel has excised the word “exceptional”. As an alternative, my term “particular” is drafted in the hope that in presenting the Government with a menu, they might be tempted to choose one of them instead of rejecting everything. It is a little less extreme than complete deletion, but the noble and learned Lord’s point about criteria is, of course, the important one.

My Amendment 113GC also refers to Section 142 of the Criminal Justice Act, to which I have already referred, about purposes of sentencing. At the last stage my noble friend gave an assurance, saying:

“Let us be clear: of course the five principles are intact”.

However, he went on to say,

“why bring legislation if we do not intend to change things?”

Hansard then reports him as saying:

“We do intend to chance things”.—[Official Report, 13/12/12; col. 1432.]

I do not think it meant that.

My noble friend twice said that it was “not the Government's intention” to,

“jeopardise the prospect of rehabilitation”,

or to,

“detract from the court's existing obligation to have regard to the five purposes”.—[Official Report, 13/11/12; col. 1435.]

It may not be the Government’s “intention”, but I fear that the words of the Bill detract from the five purposes and create a hierarchy. They would require the courts to bring a different approach to sentencing and—as I have already said to the Minister outside the Chamber—I hope that at least he can put on the record some further assurance that is firmer than saying it is “not the Government’s intention” and persuade your Lordships that these words do not do what I fear.

My Lords, I must first apologise for not being present at the beginning of this part of the debate. I cannot see the point of Part 1 of Schedule 16. It really is not necessary. It owes more to the requirement of Government for the perception of the public and the press rather than the reality that a community order is in fact a punishment. I said this at greater length in Committee, so I will not go into it now. A community order is undoubtedly a punishment if it requires somebody to do or not do something, is compellable and the failure or refusal to do it has criminal sanctions. To distinguish between one sort of punishment or another is a really impossible situation. Some punishments will be more severe than others, there is no doubt about that, but the Government are pandering to perception rather than looking at the reality of what the judges and magistrates are doing.

There is one particular issue: I strongly support the noble and learned Lord, Lord Woolf, on the word “exceptional”. I do not really mind whether the noble Baroness, Lady Hamwee, gets “particular”—I do not mind what the word is—but I must tell the Minister that the effect of “exceptional” will be treated by judges as meaning “exceptional”. That is, I gather, what is wanted. That means that anybody suffering from mental health issues—a very large number of people commit crimes and come through the courts who suffer from mental health issues—will not be treated by the courts as exceptional because they are standard. One only has to look at the prisons and the people coming through the courts to see the number of people with drink, drug or mental health problems who cannot be dealt with under subsection (2B) because what is happening to them is not exceptional. Whatever the Minister may say, he must listen to the fact that the word “exceptional” will be treated by the judges and the magistrates as “exceptional”. In conclusion, the whole of Part 1 of Schedule 16 is not needed but, if it is to come in, at least take out the word “exceptional”.

My Lords, I add my voice in agreement with much of what has already been said. What my noble friend Lady Hamwee did in drawing our minds back to the Criminal Justice Act 2003 in particular was very helpful for the purposes of sentencing. The noble and learned Lord, Lord Woolf, speaks words of wisdom and we should pay serious heed to him. He pointed out that the overarching requirement of a sentence should be decided by the judge on what is appropriate. Ultimately, I suppose that it follows that it should prevent reoffending and if the punitive element fails to meet that test it is worthless. As was made clear when we debated this in Committee, every community order is a form of punishment so the punitive element that the Government seek is de facto present. Anything additional intended to be somehow more punitive for its own sake is unnecessary, except possibly as a political gesture, and it will fail the test of reducing reoffending anyway. As the noble and learned Baroness, Lady Butler-Sloss, said in Committee, it is also “profoundly unattractive” as an idea. I liked that term very much.

The Minister has got it wrong if he believes that this is what the British public want to see happen. Indeed, there is ample evidence to show from polling that what the British public want from sentences, particularly expressed by those who have been victims of crime, is that it does not happen again. Retribution or vengeance is not sought. The Government maintain that the caveat of “exceptional circumstances”, when a specifically punitive order can be dispensed with, is tightly defined. Yet we have just spent the last 20 minutes realising that nobody can define what it is sought—the definition cannot be pinned down. This was emphasised by the noble and learned Lord who found in the past that use of “exceptional” caused nothing but confusion—he said so eloquently. For the large number of offenders for whom there is an additional punitive requirement, this may be inappropriate and even increase the likelihood of breach and so on.

The reality of a purely punitive requirement on its own principally represents the Government’s gesture of what Chris Grayling said was putting punishment back into sentencing. That is what it comes down to. It interferes with the freedom of sentencers to set an appropriate sentence based on the facts. That is a serious deficiency. We undermine judicial discretion at our peril. It also fails to safeguard those defendants with particular support needs, whether those are mental health, health needs, learning difficulties, drug addiction et cetera, to name but a few. Of course, the fact is that it is precisely this range of such support needs that represents the norm in the prison population. They are not exceptional at all—exactly what the noble and learned Baroness, Lady Butler-Sloss, just said.

To impose a punitive requirement when the offender has these difficulties without also addressing the problems constructively would clearly be unjust. I could go on further but I will finish by saying that there was very important and interesting work done for the Government by Helen Bewley. She concluded that in fact punishment probably means a curfew, a fine or unpaid work. Her work demonstrates that punitive requirements on their own have no impact at all on the likelihood of reoffending but simply reduce the number of reoffences committed. The most effective outcome was from a combination of supervision with another requirement, with a punitive element added on. If the Government themselves acknowledge the risk that undermines the very rationale for such punitive orders, particularly if used on their own, how on earth can their use in every community order possibly be justified? Indeed, the likelihood instead is more offending, breaches and a generally less safe society—the very antithesis of what is intended.

My Lords, sometimes I think that debates in this House are like two flotillas of ships passing in fog and not noticing each other. Most of the debate we have heard tonight we heard at Second Reading and in Committee. I can only again express my surprise at noble Lords who I know are deeply committed to this area of the criminal justice system. We have a situation where a Conservative Prime Minister expresses his complete commitment to the concept of community sentencing and a Conservative Lord Chancellor commits himself entirely to the concept of rehabilitation and bringing those ideas into legislation. We have now had three long debates on these issues; I will again try to explain where the Government are coming from but, in the terms that noble Lords have put it, I fear I will fail to convince them again.

The concept of punishment is part of—not separate or left on its own from—what I believe is a very worthwhile package put forward in a flexible way that fully respects the independence and judgment of the court. We keep to the word “exceptional” because without it there would be the opportunity to ride a coach and horses through what we are trying to do, which is to create a tougher system of community sentences that will produce greater public confidence. Let me put that in context: in March, when these proposals were first announced and the Prime Minister announced his support for the concept, Mr Sadiq Kahn, Labour’s Shadow Justice Secretary, said,

“Cameron cannot claim these measures as his own. We support community sentences that effectively punish and reform appropriate offenders because we were legislating on tougher community sentencing long before David Cameron”.

It really is not fair to start trying to split the points that have been made about judicial discretion, which is there, nor are these free-standing punishments. It has been suggested that Part 1 of Schedule 16 is totally unnecessary and counterproductive to achieving the rehabilitation revolution. It has been suggested that there is no evidence to support requiring courts to impose punishment on offenders as part of community sentences. It is on the basis of such arguments that the noble Lord, Lord Ramsbotham, is again proposing that we do away with Part 1 of Schedule 16 entirely.

We are also considering Amendment 113GA. This would specify a list of requirements that courts might include in a community order as the punitive element. I am tempted to remind the noble Lord, Lord Rosser, that, as I have said before, the Labour Party has claimed to have punishment in community orders as part of its programme long before David Cameron became a convert.

The evidence that underpins the provision comes from victims and members of the public. Time and again, surveys have found that victims and the public see punishment as a critical purpose for community orders to deliver. I will quote only two of many. An ICM survey of victims of non-violent crime, carried out for the Ministry of Justice in 2007, found that punishment is seen as the most important part of a sentence, followed by payback to the community and then rehabilitation. More recently, research on community orders carried out this year by Victim Support and Make Justice Work found that victims,

“believe strongly in punishment and public protection”,

as the purpose of sentencing.

However, the evidence shows that the public are not confident that community orders are effective at delivering that punishment. For example, a survey carried out by Policy Exchange in 2010 found that 38% of the public perceive community orders to be soft, and a further 22% believe they are “weak and undemanding”. Similarly, the Opposition’s 2008 review of crime and justice found that the public saw community orders as a soft option, and that 90% of the public agreed that community orders should involve paying back to the community.

I remind noble Lords, as I did when the House last considered these provisions, that many of those given community orders have not committed minor offences. Some will have narrowly avoided custody. Some will have caused significant physical or mental trauma to victims through assaults. Others will have caused financial or emotional damage through theft, burglary or fraud. As a matter of principle, this Government believe that offences serious enough to cross the community order threshold should result in punishment. That is a principle with which I believe victims and the public would entirely agree. However, I do not believe that the existing community order framework gives victims and the public confidence that community orders effectively punish offenders. That is the reason we are introducing this provision.

I turn to the second concern that noble Lords have raised, which is that the provision will put the rehabilitation of offenders at risk. This will allow me to respond to the Amendment 113GB, in the name of the noble and learned Lord, Lord Woolf, which would disapply the imposition of a punitive element if the court believed that this would reduce the likelihood of preventing reoffending. Again, I will start from what victims and the public say. Of course the public do not want community orders to focus solely on punishment. The research by Victim Support and Make Justice Work, for example, found that neither victims nor the public wanted punishment to exclude efforts to rehabilitate and reform offenders. There are two important points I want to make here. One is about the public legitimacy of community orders. If the public are not confident that community orders are effective at punishing offenders, we cannot expect them to support our efforts to make them more effective at rehabilitating offenders. The second is that the public clearly recognise that this is not an either/or question. Community orders need to tackle the causes of reoffending but they also need to provide punishment. It is entirely possible for them to do both. For that reason I would argue strongly against the suggestion that a focus on punishment will prevent us from delivering improvements in reoffending rates.

Nothing in this provision prevents a court imposing a requirement that delivers both punishment and rehabilitation. Nor does the provision stop a court imposing multiple requirements to deliver these purposes. What the new provision does is make clear that courts must be confident that the community order they are handing down represents a punishment to the particular offender before them. The court will still be able —indeed will be under a legal duty, once it has imposed a punitive element—to ensure that the requirements imposed are the most suitable for that offender. These are not empty assertions. They are borne out by the research on this issue that the Ministry of Justice commissioned from the National Institute of Social and Economic Research. That study found no evidence to suggest that adding a curfew or community payback—two requirements which sentencers tell us they would most often consider punitive—would have a detrimental effect on reoffending.

Indeed, it found that combining certain types of requirement, such as supervision, with a curfew or community payback, can reduce the number of reoffences in the first and second year after committing the offence. That suggests strongly to me that this provision does not require the addition proposed by the noble and learned Lord, Lord Woolf. Imposing a requirement that, in the court’s opinion, serves the purpose of punishment does not mean replacing requirements that deliver rehabilitation. As the evidence shows, requirements that are often thought of as punitive can actually enhance rehabilitation when combined with other requirements. I hope this will persuade noble Lords that the community order framework can balance punishment with rehabilitation, without putting at risk reductions in reoffending.

A further concern that noble Lords have raised is that our “exceptional circumstances” exemption to the main proposition is too narrow. The noble and learned Lord, Lord Woolf, and my noble friend Lady Hamwee have tabled Amendments 113GZA and 113GZB proposing that we either leave out the word “exceptional” or replace it by “particular”. I hope that I can answer these concerns by demonstrating that the flexibility of the community order framework affords the courts a great deal of freedom to make reasonable adjustments to fit the circumstances of a particular offender. Nothing in these provisions changes that. Courts will be able to consider which of the 13 current community order requirements, or a fine, might be a just and appropriate means of fulfilling this duty. A court will still be able to tailor any of those requirements to ensure that they do not have a disproportionate impact on offenders.

In short, these provisions will not prevent courts imposing requirements that are focused on the offender’s rehabilitation or imposing a combination of requirements that is most suited to the offender’s needs. It is because of the flexibility of the existing community order framework that there is likely to be only a narrow range of circumstances in which a court might not consider it just to impose a requirement that meets the purpose of punishment. That is why the current clause has a tightly defined threshold of “exceptional circumstances”. It reflects the fact that nothing in the clause changes the flexibility that courts already have to ensure that punishment is matched to a particular offender’s circumstances. Substituting “exceptional circumstances” by “particular circumstances” or simply “circumstances” would significantly lower the threshold at which courts could decide not to impose a requirement that fulfils the purpose of punishment. I have already set out the evidence of public attitudes to community orders. I do not believe that the public would accept that a significant minority of offenders receiving community orders do not receive a requirement that delivers punishment.

I turn to points that have been made about what constitutes a punitive community order requirement. The noble Lord, Lord Rosser, has proposed that we amend the provision to list what, in his opinion, constitutes a punitive requirement. This idea has some appeal: indeed, our consultation on these provisions originally proposed that courts should be required to include specified elements in every community order. However, respondents to that consultation made several important points about this. They said that such a list would fetter judicial discretion and would ignore the fact that what is punitive for one offender might not be for another. For those reasons we have moved considerably from our original proposal and decided to ensure that courts retain the flexibility to choose which requirement would be a proportionate and appropriate punishment for an individual offender.

I do not propose to get into the detail of what the noble Lord has included in his list because we do not want a list. But, as I have said, we have decided that the right way forward is to let the courts decide what will represent punishment for the offender before them. Only the courts will know the full facts of the case and are ideally placed to make the judgment. This does not trample on judicial discretion; it preserves it.

Finally, Amendment 113GC, tabled by my noble friend Lady Hamwee, would make explicit in the legislation that nothing in the new provisions will affect the statutory purposes of sentencing as set out in the Criminal Justice Act 2003. I understand that she would prefer this to be enshrined in statute rather than to accept an assurance that this will not be the case.

The Criminal Justice Act 2003 sets out for the first time the five purposes of sentencing, namely, punishment, crime reduction, reform and rehabilitation, public protection and reparation. The courts are required by law to have regard to these when sentencing offenders, subject to certain exceptions such as where the sentence is fixed by law. This will not change: nothing in the Bill impacts on these provisions. All that we are doing is to provide that unless there are exceptional circumstances all community orders must include a requirement imposed for the purpose of punishment or to be accompanied by a fine. This will not affect the duty of the court to have regard to all the purposes of sentencing in every case. I am afraid that I cannot agree that we need a statutory provision to make this clear. That would be unnecessary and superfluous, and accordingly not good law. I very much hope that my noble friend can be reassured on that point.

Returning to the main purpose of Part 1 of Schedule 16, I believe that the inclusion of a punitive element in community orders is a principle which the vast majority of members of the public would support. As the evidence makes clear, victims and the public want to see community orders that tackle the causes of offending and provide a proper sanction for the offence. But they are not confident that community orders always provide an effective punishment. To strike out that provision would be to ignore this evidence. To disapply the provision in the way proposed, or to extend the circumstances in which it would not apply by amending the words “exceptional circumstances”, would seriously undermine the policy.

These amendments would risk a continued lack of public confidence in community orders, without which we cannot expect to make the case for improving our efforts at rehabilitation. To amend the provision in the way proposed by the noble Lord, Lord Rosser, would be unnecessarily to limit the freedom of the courts. The changes we have made to our original consultation proposal are entirely because we have recognised the importance of courts choosing requirements that fit the circumstances of the offence and of the offender.

I hope I have reassured noble Lords that nothing we are proposing will affect the existing statutory duty on the courts to have regard to all the purposes of sentencing when dealing with the offenders who appear before them.

Let me make a personal point on this matter. As regards the point made by my noble friend Lady Linklater, certainly this is not retribution nor is it violence. This Government have diverted treatment for offenders and prisoners suffering from mental health problems and they are given special priority to drug treatment. They have brought in rehabilitation of offenders as a statutory responsibility. As I said at the beginning, we have a Conservative-led coalition in which both the Prime Minister and the Lord Chancellor have set their hands to a process of rehabilitation that is tied to community sentencing. I venture to suggest that those two aspects of policy would not have been the priority of the previous Labour Government, as Mr Sadiq Khan indicated. However, it gives us a chance.

Throughout that reply, I hope that the noble and learned Lords, with their judicial experience, will have noted the continuing emphasis I have made on the responsibilities of the court and the judiciary, and the flexibility of the powers that are being given. I put it to noble Lords who have spoken in this debate, some of whom have been my allies in many fights in this area, that to oppose what is in this section of the Bill is to look a considerable gift horse in the mouth in terms of improving our criminal justice system. I sincerely hope that the noble Lord, Lord Ramsbotham, will withdraw his amendment. If he does not, I certainly would ask the House to vote against the amendment with some passion.

My Lords, I thank all those who have spoken in this debate. I am sorry that the Minister ended in the way that he did. As I said at recommitment, if the Prime Minister had been absolutely four-square behind the rehabilitation revolution, the speech that he gave would have been different. So much of that speech was in the opposite camp. It was the toughness agenda. I quoted great chunks of it at recommitment.

One of my problems with all this is that no one is keener on the rehabilitation revolution, and the prevention of reoffending and getting this right, than I am. However, I find a curious division between, on the one hand, the rehabilitation revolution and, on the other hand, all this punitive element as being evidence of a confusion which needs to be eliminated, not least on behalf of the people who have to prevent reoffending. I am talking about probation officers, prison officers and others who are unclear as to exactly where the direction is.

The Minister said several times that the courts must decide. Of course, they must. Currently, the courts know the form, as we have heard over and over again. Therefore, what is the point of telling them something that they already know and are already doing? It is unnecessary. If this proposal is defeated tonight, I hope that at least the Minister will listen to what has been said during the debate and that perhaps we may have some further reconsideration of Schedule 16, which has come late in this Bill and includes much that is in need of urgent attention. In particular, we must not forget the point that it is no good just saying that something is punitive, if what you want to do with and for offenders cannot be delivered. We still have not had confirmation that that can be delivered.

I have listened with great care to what the Minister has to say and I have considered all the evidence in front of me. I wish to test the opinion of the House.

Amendments 113GZA to 113GC not moved.