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Lords Chamber

Volume 755: debated on Monday 21 July 2014

House of Lords

Monday, 21 July 2014.

Prayers—read by the Lord Bishop of Coventry.

Death of a Member: Lord Lewis of Newnham

Announcement

My Lords, I regret to inform the House of the death of the noble Lord, Lord Lewis of Newnham, on 17 July. On behalf of the House, I extend our sincere condolences to the noble Lord’s family and friends.

Jobseeker’s Allowance

Question

Asked by

To ask Her Majesty’s Government what assessment they have made of the latest employment data released by the Office for National Statistics; and what implications that has for the number of claimants of Jobseeker’s Allowance.

My Lords, the employment rate has never been higher and the inactivity rate has never been lower. There are a record 30.6 million people in work and the number of people claiming jobseeker’s allowance has fallen for 20 consecutive months. It is down by more than 400,000 on the year to 1.04 million.

I thank my noble friend for that reply. Can he confirm that those excellent figures are spread across the whole country, not just London and the south-east as some might have us believe? Will he also comment on the leader in last Thursday’s Times, which suggested that part of the responsibility for the reduction in unemployment lay with the Government’s welfare changes?

Since 2010, 1.8 million people have got jobs. Nearly 80% of that growth was outside London, with all regions being up in that period. As for the role of benefit reforms in our economic recovery, my view—this is something that statisticians will work on for some time—is that we are beginning to move into some of the structural problems that we have had for many years now, and are moving through the cyclical effects into those structural requirements.

My Lords, the jobseeker’s allowance is being subsumed into universal credit. Universal credit is being moved along and rolled out slowly; it is much better to get it right than hastily to put something in place that goes wrong. However, it is having a significant impact on the number of people who are being helped and getting into work. Will my noble friend help the House by identifying what the impact would be of the Labour Party’s proposal to hold up and stop the rollout of universal credit on those who are seeking jobs in this country and those who are getting help from joining universal credit?

I think it would be pointless to slow down universal credit, which is now rolling out smoothly. This year, we are rolling it out right the way through the north-west, moving through couples and families. Any delay to that process withdraws support from the people who need it. We have, however, rolled out the claimant commitment, which is part of universal credit, right through the country. The whole drive of that reform is to help and coach people into work, and that seems to be having a good effect.

My Lords, the Minister will no doubt have seen the recent report from the Resolution Foundation suggesting that the extent of the fall in real wages has been underestimated due to the rise in self-employment. What steps are being taken to ensure that we have an accurate assessment of real wages?

The self-employment figures are up strongly, but I need to point out that 60% of the gain in self-employment since 2010 has been in higher-skilled, managerial and professional jobs. It is interesting, when you look at real, living wages, that recent settlements have moved above inflation. There is a lot of variation within the pay settlements, and those in finance and business services have fallen by 0.7%, whereas the figure for retail is up by 2.2% and for manufacturing by 1.8%, running with or above inflation. Some of the suffering being seen in the City is something that I suspect the party opposite would not weep too hard for.

My Lords, can the noble Lord share with us how many of those jobs will lead to a strong career? For instance, how many lead to apprenticeships, and how many of those jobs give young people the aspirations to go on and make a career for themselves, rather than having a job for a very short time, perhaps without a permanent contract? There must be figures that show that. The importance that this and the previous Government put on apprenticeships must prevail for those permanent jobs to be gained.

Apprenticeships are a cornerstone of this Government. Overall, we have had more than 1.1 million extra apprenticeships for youngsters since the election—a 40% increase on the equivalent period before the election, although I acknowledge that the previous Government were also pushing up the apprenticeship rate.

My Lords, the figures on employment are extremely good news but the data on productivity, so far, are not quite such good news. Does the Minister have any views on why productivity has been so slow to increase? Might it have anything to do with Labour’s tax credits subsidising wages?

A vigorous debate is going on among economists about what has happened to productivity. The most interesting study that I have seen lately was from the noble Lord, Lord Goodhart, and one of his colleagues, which looked at productivity as a cyclical impact, which we should be able to get through later on.

My Lords, since this Question and Answer show all the features of very careful preparation, I am sure that the Minister will be able to answer this. What percentage of the jobs that have been created are: first, part time; secondly, minimum wage; and thirdly, zero-hours contracts?

I did not need a huge amount of preparation for this Question because it is a slam dunk. The figures for employment are very good. If you are looking at part-timers, the number who do not want to be full time are down by 1.5 percentage points—the fastest decline on record. Depending on the figures you take, we have between 2% and 4% of people on zero-hour contracts, and the CIPD says that people on those contracts are as satisfied with their jobs as people on other contracts.

Does my noble friend share my disappointment that the Opposition can do nothing but carp at this very good news on jobs? Could he remind us what the shadow Chancellor predicted would happen to unemployment as a result of our policies?

My noble friend asks me to remind the House that the leader of the Opposition predicted a million job losses as a result of our policies. I am very happy to remind the House of that fact.

Manufacturing

Question

Asked by

To ask Her Majesty’s Government what assessment they have made of the manufacturing output data for the year to April 2014; and what steps they are taking to encourage more exports by United Kingdom manufacturers.

My Lords, manufacturing output for the year to April 2014 rose by 4.4%, the fastest rise since 2011. Industrial production rose by 3% over the same period. Over the past year UKTI has assisted more than 40,000 firms to export, winning £22.6 billion of new business for manufacturers. Since 2011, UKTI has supported some £10 billion of major project wins, each in excess of £500 million. In 2013, UKTI secured £13 billion of defence and security exports.

I thank the Minister for that very encouraging reply. Would he agree with me that the manufacturing sector is probably the most important in leading Britain’s growth, and the most optimistic in terms of our growth in exports and, therefore, righting the balance of payments?

I agree with my noble friend, and we are proud of it. We are making things again in the United Kingdom. This is excellent news for the future security of skilled workers and for our economy. Manufacturing is one of the two sectors able to drive productivity growth across the economy through cross-sectoral supply chain linkages. That means potential economic benefits at every stage of the manufacture of a product, from the beginning of an idea to its development and production, through the supply chain to eventual consumer use. The Government are proud of the steps we have taken to support and advise the manufacturing sector. However, we know there is more we need to do.

My Lords, one of the greatest successes we have had is defence manufacturing exports. Is the Minister not concerned that, on an Apache order, we are going for a non-competitive purchase of something from a foreign nation, rather than competing and giving a British firm a chance to do that work?

My Lords, the department, through UKTI, is pursuing actively the sale of more defence equipment abroad but, when it comes to buying equipment for UK security, it is up to the Ministry of Defence to make those decisions. There must have been a business case to secure defence equipment from abroad.

My Lords, we are delighted with the recent visit of George Osborne, the Chancellor of the Exchequer, and the former Foreign Secretary, William Hague, to India. There are further visits planned by Nick Clegg and Vince Cable. How are we monitoring the situation relating to British exports to that country? What has been the impact of those discussions so far?

My Lords, we look at emerging markets very carefully, particularly the BRIC markets and especially India and China. In fact, both the Chancellor and the then Foreign Secretary were in India meeting the new Prime Minister, Narendra Modi, to see what we can do to export more to India. Our trade with India is to the tune of about £17 billion now in a two-way bilateral relationship. This is the area we want to increase year after year. Our target for 2015 is £25 billion.

My Lords, can the Minister confirm it is still the Government’s intention to double exports to £1 trillion by 2020? Given that, can he assess the contribution to that target that is going to be made by the £5 billion export refinancing scheme, which was launched in July 2012 and is yet to help a single company, and the £1.5 billion direct lending scheme launched seven months ago, which has received only one application?

My Lords, it is true that the Government’s target is to achieve the £1 trillion export level by 2020. That is quite a challenging and ambitious target, and we will continue to work towards it. We are developing an economic road map to the £1 trillion target and we will draw on this to inform our priorities for the future. We are also investing huge sums of money in UKTI, which is actively pursuing measures to make sure that British companies are able to export abroad. Most importantly, the recent initiative of onshoring—bringing production back from other countries to the UK—will help our export ambition.

My Lords, does the noble Lord agree that, in view of his earlier answer, we should therefore concentrate our efforts on the Commonwealth, the Anglosphere and the markets of the future, and stop wasting so much of our energy on that “Titanic” which is the European Union?

My Lords, the Commonwealth is our family, and we are very keen to see more business done in Commonwealth countries—hence the Government have appointed ambassadors to some of them to see how we can increase trade with them.

My Lords, many years ago when the Minister’s noble friend Lord Young of Graffham was standing at the Dispatch Box, I expressed my concern about our loss of manufacturing industry and was told that it did not matter because the service industries—and, in particular, the services provided by the City—would support the United Kingdom. Have the Government now changed their view?

My Lords, the noble Countess raises a very important question. We have not changed our view but we have changed our direction. Manufacturing accounts for 10% of our economy and generates 54% of our exports, so we are encouraging more manufacturing in the UK and helping manufacturers to manufacture more so that they can export more. Equally, our financial services are important, and they also generate quite a large amount of our export trade.

My Lords, is my noble friend aware that the CBI and the chambers of commerce have welcomed enormously the recent changes to export finance, which undoubtedly help us to move towards this challenging target? However, one area where still nothing seems to have changed, as I have raised before, is the promotional material behind the Queen’s award for exports. Can my noble friend have a look at that situation to see whether we can bring it up to date?

Yes, my Lords, the Government are encouraging more exports through UKTI. The promotional material for the Queen’s award for exports is an issue that we will certainly look into.

My Lords, will the Minister reflect that he gave a rather inadequate answer to the question asked by the noble Lord, Lord Pearson of Rannoch, who made a nonsensical suggestion about our relations with the European Union? Do not the Government, as the basis of their negotiation for improvement in our relationships, believe that we should not ignore nonsenses but stand up and attack them? Our future is quite irrevocably linked to developments in the European Union, and I do not think that we do ourselves any favours by ignoring the noble Lord, Lord Pearson, when he suggests otherwise.

My Lords, when it comes to business, we need Europe and Europe needs us—in fact, 45% of our exports are to the European Union. We want to continue making sure that we work with Europe well, but we need a reformed European Union and a 21st-century European Union.

Railways: High Speed 3

Question

Asked by

To ask Her Majesty’s Government, following the announcement by the Chancellor of the Exchequer on 23 June of a possible HS3 rail link between Manchester and Leeds, what assessment they have made of the potential benefits to northern cities of such a link, and particularly to those in West Yorkshire.

My Lords, the Government have asked Sir David Higgins to produce ambitious proposals for connecting the great northern cities. This work will look at how to bring the benefits of high speed rail to the north more quickly, as well as initial proposals for faster east-west connections—including options on route, timescale and cost—by the time of the Autumn Statement later this year. This will include an assessment of the potential benefits of the proposals.

I thank my noble friend the Minister for her reply. Should HS3 be built it would be some considerable time before the benefits of it were felt in Manchester and Leeds. Can my noble friend tell the House what transport improvement options have been considered to bring much-needed stimulus to the towns between Manchester and Leeds in the Calder Valley?

My Lords, I know my noble friend’s interest in the Calder Valley so I can say generically that we have been investing very heavily in transport schemes in the north. Some £554 million for schemes outside London was announced in the 2012 Autumn Statement, of which £378 million—more than half—was for the north. As for the Calder Valley, the northern electrification task force has been set up to recommend lines for electrification, in which I know the noble Baroness is interested. We would expect it to consider this line alongside other scheme proposals. The task force expects to submit its interim report in February 2015.

My Lords, while it is generally understood that the Chancellor’s announcement about HS3 came as a complete surprise to the Department for Transport, is the noble Baroness aware that the Government’s commitment to the extension of high speed rail is very welcome and can she confirm that no country in the world that has embarked on a programme of high speed rail construction has regretted it?

I can certainly confirm the comments from the noble Lord, Lord Faulkner, that high speed rail is a very effective form of transport. It is one of the reasons we have chosen it. However, we have never thought of High Speed 2 as being the limit of our ambition. We have studies under way to look at taking the benefits of high speed rail to Scotland, including what we now call HS Scotland, and we are obviously looking at HS3 and at many more programmes to provide connectivity beyond that.

My Lords, the word “connectivity” is very appealing. It will be even more appealing if we get more connections that work. Does the noble Baroness agree that if we are to have an east-west HS3 it is even more important that HS2’s arrival in Leeds is not at a hammerhead terminal but at a terminal that really connects with everywhere else in Yorkshire?

I fully understand the interest of the noble Lord, Lord Shutt, in connectivity. We consider it to be vital. All the options for the route for phase 2 of HS2 are now being studied, including exactly how stations will work. Connectivity has been built into that discussion with intensive engagement with local authorities and various other stakeholders in the area.

My Lords, does the Minister agree that the train currently called the TransPennine Express is one of the worst offenders against the Trade Descriptions Act in modern Britain? Can she tell us why the Government still do not have a firm plan to get HS2 to the north, let alone HS3? The current HS2 hybrid Bill stops at Birmingham and the Government still have not even confirmed the route for HS2 north of Birmingham to Manchester, Sheffield and Leeds, let alone the legislation. When do the Government expect to introduce legislation to take HS2 north of Birmingham? Will this be before or after work starts on HS3?

My Lords, I am sorry to hear the cynicism from the noble Lord, Lord Adonis, because he has heard the commitment from this side of the House many times. We are moving ahead at a pace with determining the route for HS2. However, we are doing it with very intense engagement with local communities, including connectivity, because it is vital. If the noble Lord goes and talks with the many mayors of the great cities of the north, he will discover the intensity of that discussion and engagement. He will also understand that they recognise that we should have the route narrowed down, I hope, by the end of this year and will be moving forward with legislation. There is no question about the timetable. If anything, Sir David Higgins is looking to get into the north earlier.

My Lords, is my noble friend aware that the noble Lord, Lord Brooke of Alverthorpe, and I are members of a family that has had its centre of gravity in west Yorkshire for at least the last four centuries, and will she take particular trouble to make sure that we are kept informed?

My Lords, I am delighted to keep all interested Members of this House informed. It would indeed be a pleasure.

Can the noble Baroness reassure us that the Government understand that there are great northern cities that lie north of Leeds? The north-east is never mentioned, yet the country depends on the north-east for manufacturing output. We have the only mainline railway on which running times have become slower over the past 10 years, not faster. It looks like the Government are trying to cut us off from the rest.

My Lords, I absolutely have to counter such suggestions. First, the cities further north than the actual reach of HS2 will benefit from much higher speeds on the lines in that direction, many of them seeing 30 minutes to an hour shaved off journey times. The released capacity on the east coast main line, the west coast main line and the Midlands main lines will mean new services for many cities in the north. The work on connectivity with Rail North and others who represent local communities and other stakeholders is extensive in order to make sure that that connectivity is built in. It is a very exciting opportunity and I am sure that if the noble Baroness talks to the relevant communities, she will discover how excited and engaged they are.

My Lords, does the Minister recognise that, when looked at from the north of England, HS2 is the top priority, linking as it could Newcastle, Leeds, Sheffield and Nottingham into Birmingham? It is potentially a very important route. Does the Minister further recognise that a lot of work is being done already by local authorities across the north of England, and in August they will produce their initial report on rail improvements and better connectivity between Liverpool and Leeds? Will the Minister ensure that the new investigation co-operates carefully and closely with the consultants who are working with the local authorities to make sure that effort is not duplicated and that returns to investigations are maximised?

That is an absolutely pertinent point because, particularly when looking at connectivity in designing east-west routes, it is crucial to ensure that we maximise the benefits of HS2 and we are engaged with the communities that will be the most impacted. They know the situation best and we are all engaged in the same pursuit: that of expanding and rebuilding the economies of the Midlands and the north.

NHS: Ambulance Response Times

Question

Asked by

My Lords, the NHS is responding to the majority of emergency calls in less than eight minutes, despite the number of these calls having increased by almost 14% from 2011-12 to 2013-14. The NHS has been supported to ensure that urgent and emergency care services are sustainable all year round and are ready for the pressures that winter can bring. Some £18 million will be allocated directly to ambulance service commissioners with a further £10 million to ensure sustained high performance.

My Lords, FOI disclosures indicate that, since 2010, seven out of 10 of England’s ambulance trusts have increased their spending on commercial and voluntary ambulances. In London, spending has grown from £829,000 in 2010 to £9.2 million in 2013. Does the noble Earl share the concern of the president of the College of Emergency Medicine, Dr Clifford Mann, who has said that this is an issue which is causing deep concern and is,

“incredibly wasteful and potentially dangerous”?

My Lords, patients have the right to a high-quality urgent and emergency care service whenever they call upon it, and we expect ambulance trusts to provide that. We are aware that independent or voluntary ambulance services may be used to support NHS ambulance services because they can help manage peaks in demand. Individual NHS ambulance services have got to ensure that 999 calls are attended by staff who are properly trained and adequately equipped. Indeed, since 2011 the providers of independent ambulance services have had to register with the Care Quality Commission, which monitors, inspects and regulates all services.

My Lords, is it not a shame that London has only one air ambulance, which is run by a charity, when Sydney and Paris have six and four respectively? Does the Minister not think that it would be to the advantage of patients to have more air ambulances operating in London, because at least they can deal with any major traffic problems?

My Lords, we owe a great deal to the air ambulance services across the country, all of which, I think I am right in saying, are organised as charities. However, it is the case that in every instance the NHS pays for the clinical staff on those ambulances while the charity pays for the helicopter and the pilot. That is the balance we have struck and successive Governments have taken the view that it is the most cost-effective model for the NHS. However, that is not to downplay the very important role that ambulances perform in our society.

My Lords, will the Minister give an assurance that, when ambulances are called out for patients who are having prolonged epileptic seizures, there will be qualified paramedics in attendance and that we shall not go back to the situation we had of several tragic cases where paramedics were not in attendance and patients with prolonged epileptic seizures died before they got to hospital?

My Lords, I am aware of a number of those tragic cases. It is, of course, up to each response team to decide on the configuration of personnel and the skill mix on each ambulance that goes out. That judgment often has to be taken quickly. Sometimes it is a difficult judgment and, tragically, it is not always the right judgment. However, I know that every ambulance service in the country is mindful of the need to reach patients in emergencies with the greatest possible speed and the right professional skills.

My Lords, can the noble Earl confirm that the average waiting time for the most urgent 999 calls has lengthened in all parts of the country on average in the past three years? What are the Government doing to improve ambulance performance, and particularly could he comment on the very poor performance of the East of England Ambulance Service?

The noble Lord is right. Ambulance trusts are experiencing high demand and we realise that a handful of services have experienced difficulty. Broadly, we are taking action in the short term and in the medium to long term. In the short term, we are supporting trusts with operational resilience plans so that they are better equipped to manage peaks in demand and we are providing clinical commissioning groups with additional funding, as I mentioned in my original Answer. Over the longer term, the NHS England review led by Sir Bruce Keogh is considering whole-system change, incorporating ambulance services.

With regard to the east of England, I met the East of England Ambulance Service NHS Trust’s chief executive, Dr Anthony Marsh, on 8 July to discuss performance since his appointment in January, and he assured me that the trust is now in recovery stage. Having seen his detailed proposals, I accept that judgment.

My Lords, in his original Answer, my noble friend said that a majority of ambulances arrived in less than eight minutes. That majority could be 99% or 51%. Will my noble friend tell your Lordships slightly more precisely what the percentage is?

My noble friend makes an important point. The standard for arriving in the most urgent cases is that the ambulance should do so in 75% of cases or more. In recent months, performance across the country has been slightly below that standard.

Licensing Act 2003 (Mandatory Licensing Conditions) (Amendment) Order 2014

Motion to Approve

Moved by

That the draft order laid before the House on 23 June be approved.

Relevant document: 3rd Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 16 July.

Motion agreed.

Green Deal (Qualifying Energy Improvements) (Amendment) Order 2014

Motion to Approve

Moved by

That the draft order laid before the House on 16 June be approved.

Relevant documents: 3rd Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 16 July

Motion agreed.

Criminal Justice and Courts Bill

Committee (2nd Day)

Relevant documents: 2nd Report from the Constitution Committee, 3rd Report from the Delegated Powers Committee, 14th Report, Session 2013–14, from the Joint Committee on Human Rights

Clause 25: Possessing an offensive weapon or bladed article in public or on school premises: sentencing for second offences for those aged 16 or over

Debate on whether Clause 25 should stand part of the Bill.

My Lords, I oppose Clause 25 standing part of the Bill. The clause would make a custodial sentence compulsory in the case of a second offence of possession of a knife in a public place. The sentence would be a compulsory minimum of six months in prison for offenders over 18 and of four months’ detention in the case of 16 and 17 year-olds. The clause was introduced into the Bill in the House of Commons by an amendment moved from the Conservative Benches by my honourable friend Nick de Bois. It was not supported by the Government and, indeed, Conservative Ministers abstained on it. I rather hope that my noble friend and other Conservative Ministers will abstain in this House.

Our reasons for opposing this clause in the House of Commons and again in your Lordships’ House are fourfold. First, mandatory minimum sentences are wrong in principle in all but a few special cases, because they remove judicial discretion and fail to allow for individual circumstances. Secondly, the clause is unnecessary, because knife crime is already falling, and runs counter to the aim of rehabilitating offenders. Thirdly, the clause would risk doing real harm to those affected by it, because many who should not be in prison would be imprisoned, damaging large numbers of principally young lives. Finally, the clause would be discriminatory in its effect, even if that is not the intention of its promoters, and so would risk doing serious damage to community relations in this country.

My first reason is one of principle. Determining sentences is generally far better left to judges. Our judges in the criminal courts hear the evidence in individual cases and fully take into account all the facts, including the circumstances of the offence and of the offender, before passing sentences. Obliging judges to take a course that they would not otherwise take necessarily involves forcing them to impose a sentence which they would consider unjust.

We completely agree with those who support the clause that knife crime is extremely serious, that everything should be done to discourage it and that in very many cases, particularly when an offence is repeated, possession of a knife in public will warrant a sentence of imprisonment. In those cases, judges can and do impose custodial sentences. They can, indeed, be legitimately encouraged to pass custodial sentences in such cases in sentencing guidelines. However, if they decide not to pass a custodial sentence in a given case, that is because they regard one as unnecessary, unwarranted or unjust. If the clause is intended to have any practical effect—if it is more than pure posturing—that effect would be to oblige judges to pass a custodial sentence when they would not otherwise do so. There is absolutely no evidence that our judges get this wrong or that they are, in some way, a soft touch and fail to impose custodial sentences when the public interest or justice demands that they should do so. The clause would be an entirely unwarranted restriction on judicial discretion.

That leads to my second reason for opposing the clause, which is that it is unnecessary. Knife crime is falling. The Crime Survey for England and Wales indicates a continuing reduction in crime overall and in crimes of violence in particular, including knife crime. I would suggest that this is one of the significant successes of the Government, all the more remarkable for being achieved against the background of very difficult economic circumstances. The number of young people in custody has fallen to a record low. In May this year, there were fewer than 1,100 young offenders in custody under the age of 18—a fall of no less than 200 from a year ago. The number of 18 year-olds in custody also continues to fall. Parliament and professionals in the criminal justice system have been working very hard and successfully to reduce the numbers of young people in custody. This has been a continuing theme of this Government’s drive to push down crime: rehabilitation to reduce reoffending, and helping young offenders in particular to get away from crime and criminals and lead law-abiding and useful lives. This has been the very point of the rehabilitation revolution and was at the heart of the Offender Rehabilitation Act that we passed this year.

Against that background, and given the Secretary of State’s repeated statements of his commitment to rehabilitation, it was a shame to hear him say in relation to prison overcrowding:

“I make no apology for the fact that under this Government more people are going to prison, and they are going to prison for longer”.—[Official Report, Commons, 16/6/14; col. 843.]

If true, that is a matter for apology. I know that many in your Lordships’ House agree that rehabilitation is one of the main purposes of punishment and that rehabilitation is generally best achieved by a community sentence, unless a custodial sentence is unavoidable. This clause is calculated—even designed—to reverse that trend: to increase the numbers, particularly of young offenders, receiving custodial sentences, and increase the numbers therefore in custody at great cost to the public purse.

My third reason for opposing this clause is the damage it would do in individual cases. No doubt supporters of the clause will point to the exception which, they will claim, would avoid injustice. The exception granted would permit the court not to impose a custodial sentence if,

“the court is of the opinion there are particular circumstances which … (a) relate to the offence or to the offender, and (b) would make it unjust to do so in all the circumstances”.

However, I reiterate the point I made at Second Reading. If a “particular circumstances” exception is to be widely applied, then it makes a nonsense of the provision for mandatory sentences. If it is to be applied only rarely, then serious injustices will be frequent. The reality is that there are many perfectly ordinary circumstances—neither exceptional, nor even particular—when it would be unjust to impose a custodial sentence for a second offence of possessing a knife.

I add in parenthesis that one weakness of this proposed exception is that although this clause would prescribe a sanction only for repeat offences, the circumstances of the first offence, however minor or understandable in context it might have been, would be entirely irrelevant to the applicability of the exception, and therefore to the imposition of a compulsory prison sentence. Imagine a boy of 15 who carries a knife for a dare. Stupid and reprehensible such behaviour may be, but unfortunately there is nothing unusual about it.

Then imagine the same boy, just under two years later, now 17, approaching his A-level examinations and hoping to go to university. He carries a knife for his own protection and that of his girlfriend when they have been threatened. Again, that is a stupid and reprehensible thing to do, but again there is nothing unusual about it, so there is nothing particular about the circumstances of the offence. Nor is there anything unusual about an 18 year-old being on the brink of taking public examinations, so there is nothing particular about the circumstances of the offender either.

Then imagine that this boy is the son or grandson of a relative or friend. How could your Lordships defend to the parents of that boy the statutory requirement that the judge should send him to prison in a case in which, by definition, the judge would not have passed such a sentence in the exercise of his or her own judgment? If this clause were passed, to avoid imposing the compulsory custodial sentence in such a case the judge would effectively have to flout the will of Parliament and his judicial oath and find that these completely run-of-the-mill circumstances were particular circumstances, making this case so different from others as to require an exception to be made. I suggest that if this clause were enacted, it would cause significant numbers of young people serious and sometimes irreparable damage to their future prospects of further education, employment and useful and productive lives—when a judge would not have passed a custodial sentence.

My final reason for opposing the clause is that it would be discriminatory in its effect. If enacted, it would disproportionately affect young black men because they are disproportionately subjected to stop and search. The Equality and Human Rights Commission report in November 2013 found that in the year 2011-12 black men were six times more likely to be subjected to stop and search than white men. The commission rightly said that, used responsibly, stop-and-search powers are an important tool in the fight against crime and particularly useful in preventing people going out with knives and catching those who do. A great proportion of those caught in possession of knives are caught through stop and search. It follows that if this clause were enacted, the damage caused by the disproportionate use of stop and search would increase and more young black men would be sent to prison as a result. That in turn would risk causing ever increasing resentment and significant damage to community relations, particularly in our great cities.

We are not persuaded that there is any justification for the approach embodied in this clause beyond, I regret to say, a desire to appeal to a populist press with an eye-catching message that we are tough on knife crime. I invite Members of your Lordships’ House not to yield to the temptation to look tough on crime by passing a measure that would actually do nothing whatever to reduce crime.

My Lords, like my noble friend Lord Marks, I also oppose this clause. The provisions for compulsory terms of imprisonment run contrary to all my professional experience as a police officer of over 30 years and my instincts as a Liberal Democrat. No doubt some of your Lordships might be more convinced by one of those categories of argument than the other. All I seek to do is ask your Lordships to consider that this provision may actually make us less rather than more safe.

At Second Reading, my noble friend the Minister offered but one reason to support this measure. He said:

“It sends out a strong signal that carrying a bladed weapon is serious and has serious consequences if you are caught for a second offence”.—[Official Report, 30/6/14; col. 1621.]

The question is: who will listen to that strong signal?

At Second Reading, I referred to the anecdote of the Commissioner of Police for the Metropolis, Sir Bernard Hogan-Howe, who is quoted as having visited HM Prison and Young Offender Institution Feltham, where young offenders apparently told him they no longer carry guns because there is a minimum term of five years’ imprisonment. However, a former police colleague carried out extensive academically overseen research into the attitude of offenders at Feltham and his conclusions were that the overwhelming majority of offenders rarely thought about the consequences of their crimes before they acted; they had no intention of getting caught, so the legal penalty was irrelevant.

To take a different example, how many of the millions of young people who take drugs every week in this country make their choice on the basis of what category the drug is in and therefore what the likely penalty is before deciding which drug to take?

Even if the Commissioner managed to find some who thought differently, there is a world of difference between a handgun—where there is no lawful reason for carrying one in the street—and a knife, where the carrier can give many innocent explanations to the police officer who stops him. There is also a world of difference between a minimum of five years’ imprisonment and the four months or six months proposed in this clause.

I have worked in parts of London where knife crime is prevalent. I was a sergeant and a chief inspector and a police commander in Lambeth. I was also the chair of trustees of a charity that was dedicated to diverting young people in Lambeth in south London away from crime. I have talked with former offenders and those working alongside them and all my experience tells me that the best way to deal with knife carriers is to allow judges the discretion to hand down the appropriate sentence tailored to the individual, and not to tie their hands by forcing them to impose a term of imprisonment.

Like my noble friend Lord Marks I will address the issue of judicial discretion that is within the clause. My noble friend the Minister may say that there is judicial discretion, and it is worth repeating that new subsection (2B) states that the court must impose a term of imprisonment unless it is of the opinion that there are particular circumstances relating to the offence or to the offender that would make it unjust to do so in all the circumstances. With the greatest respect to the Minister, he cannot have it both ways. Either this sends the clear message that a second-time knife carrier will go to prison if caught or it sends a mixed message that you may go to prison, depending on the circumstances. If it is the latter, other than partisan political point-scoring and the attention-grabbing and misleading headline, “Compulsory Prison for Knife Carriers”, what is the point of this clause?

Short-term imprisonment does not work. It delivers the worst of both worlds—taking offenders out of society and making it more difficult for them to maintain social ties and employment, while not allowing them to benefit from any kind of education, training or rehabilitation regime during their short time in prison. Fifty-nine per cent of those in prison for less than 12 months reoffend within a year of release. In June, Her Majesty’s Chief Inspector of Prisons, Nick Hardwick, reportedly said:

“Resources are now stretched very thinly ... there is a pretty clear choice for politicians and policy makers—reduce prison populations or increase prison budgets”.

Will the Minister—I also ask this of the party opposite—tell the House by how much the Government will need to increase prison budgets to cope with the increase in prison population that this provision will inevitably bring about?

For those who might say that a price cannot be placed on saving lives, my whole point is that this provision would do nothing of the kind. The courts already have the power, as my noble friend Lord Marks has said, to send those who deserve to go to prison for carrying a knife to prison—and to send them to prison for a long time. It is absolutely right that they should be able to do so.

A much better way to reduce knife carrying on our streets is to get ex-offenders—people who at-risk young people can relate to—into our schools, to tell young people, from their own experience, not to waste their lives and those of their potential victims by carrying a knife. With the greatest respect, they are far more likely to listen to them than to politicians and police officers about the sentence they will get in the unlikely event of their being caught.

We must increase the chances of knife-carriers getting caught. A much better way of reducing knife carrying on our streets is to encourage those within communities where the knife carriers live and operate to tell the police who they are, so that the police can target their stop-and-search operations on criminals. If these people know that passing such information will result in people being imprisoned without question, they will be even more reluctant to tell the police.

I served in inner London boroughs throughout my police career. Even as a senior officer I walked the streets. Last Monday was typical. When I left this House at 10.45 pm, I got the bus to Elephant and Castle and I walked home. If I believed that this provision would make people safer, I would have every personal incentive to support it and certainly would not oppose it. I do not support this clause and I urge noble Lords to oppose it as well.

My Lords, I ask the Government to think carefully about this clause—and I do so because they have pushed me into the very unlikely position of finding it impossible to support this proposal. The reason I find it impossible is that we already have more people in prison than any comparable country in the world. When we had a discussion about that, Ministers said, “Ah well, judges deem it right to send people to prison”. I do not see how you can say that and then say that in circumstances of this kind, judges should be told that they have to send people to prison. That is the first point that I find very difficult to take.

The second point is that judges are in a position to make proper decisions about very vulnerable young people. When I had a young persons’ prison in my constituency, to go there was one of the most depressing moments of the month because you met all sorts of young men who could so easily have been your own children, if they had not been brought up in circumstances of such horror and in such appalling situations that you were surprised that anybody could have turned out other than criminal. You cannot excuse people by their background or environment but you have to make your judgments on punishment with a full understanding of the circumstances and likely effects of the punishment that you make.

The third reason is this. If you can think of a way most likely to ensure that someone who has broken the law will continue to do so, a short prison sentence must be it. It is manifestly true that it does not work; it is even more true that it normally can make things worse. If other countries manage to have a different system without having some enormous increase in crime, the Government really have to think again. After all, if you walk in the streets of Paris or Berlin, or indeed in Dusseldorf or Lille, do you feel less safe because there are half as many people in prison? Of course you do not. They have found better ways of doing this. I am citing not Scandinavian countries but those countries with which we would normally compare ourselves.

There is a further reason, too, which is this. I hope that my noble friend the Minister will not be embarrassed by this but I do not like the way that this got into the Bill. It was not in the Bill originally; the Government did not think that it was the answer. What happened was that people outside, not known for their concern for young people or their concern for moderation and real facts, started a campaign to say that this was the answer. But that is the same campaign that we have had for years and years, which is: “Be tougher, lock up more people and really show which side you are on”.

I do not think that anyone could claim that I am on any side other than having the toughest belief in the rule of law and the most concern to protect people. However, I do not like it when the law is changed, or proposed to be changed, not by the sober reflection of those who have to carry the consequences but by the noisy statement of those who will move on to another campaign the moment that that one ceases to sell newspapers or gain support. That for me is the reason why this is intolerable. We must make our laws because we know that they are right and have thought about them; otherwise, we will go backwards in so many ways.

I end by saying to my noble friend that one of the things that characterises this Government—and, indeed, this moment in our history—is that we have become more understanding about things and less damagingly demonstrative about our attitude to other people. We have become more willing to say that there must be another way. As we are going to discuss the appalling situations created by those who think that the only way forward is to use force against others, we ought also to think about ourselves. We do not have this right. We have not made our whole punishment system work as well as those of many of our neighbours. Is not this the moment to say that we are not going to keep going down this route but are genuinely going to see whether we can learn more from other people and, having done so, change our system so that we can get the results we need without the knee-jerk reaction of “lock ’em up”?

My Lords, I strongly oppose the proposal that Clause 25 should not stand part of the Bill and it appears that commissioners may think in the same way, according to the noble Lord, Lord Paddick. Since the early 19th century, it has been the received wisdom that people are deterred from committing crime by the likelihood of detection rather than the length of sentence. I agree with that in general.

As a former Metropolitan Police commissioner and deputy-commissioner, I have experience of two categories of crime that proved the rule by being exceptions to it. The first is the one that Sir Bernard Hogan-Howe has apparently already mentioned: that is, the reduction in shootings that occurred in London after a five-year mandatory sentence was announced. That occurred because communication among the criminal fraternity is good. It is particularly good among the women of that group, who stopped carrying the guns in their handbags. Therefore the guns are not as much in evidence as they were.

I imagine that many noble Lords will recall my second example, which was a response to the marked rise in fatal and near fatal stabbings of teenagers in London a few years ago. The most important factor in reducing that was the issue of a practice direction from the noble and learned Lord, Lord Judge—I do not think that he is in his place—when he was Lord Chief Justice, that a first offence of unlawful possession of a knife should normally be considered for a custodial sentence. Knife crime started to fall and I believe that is because people knew that that message was passing around the streets of London.

I believe that, with knife crime falling, a custodial sentence for a second offence of carrying these weapons makes much better sense than for a first offence. The reason for that is it provides people with a chance. A sentencer now sentencing someone for a first offence can give them a very simple message which is very easy to understand—“Don’t do this again or you will go to jail”. Normally, I am in favour of leaving judges and magistrates free to exercise their judgment but this crime has an additional catastrophe attached to it. It ruins the life not only of the person who is seriously injured or killed but also the life of the offender in those circumstances.

I had to talk to the families of people who had been murdered in these circumstances. We have not heard enough from those who oppose the clause or, with respect, from the noble Lord, Lord Deben, about the victims of knife crime. Knife crime can change lives catastrophically. One of the awful things about that period when teenagers were killing each other in London was how often there was only one knife wound. A single blow had caused these deaths, as if these young people had no idea that that action would kill someone. It seems to me sensible to pass a message to stop the thing happening that will then allow someone to be murdered. One cannot murder someone very easily if one does not have a knife or a gun. I strongly oppose the proposal.

My Lords, judicial discretion is a very important aspect of the judicial process. However, embedded in judicial discretion is the fact that you cannot know in advance with precision how that discretion will be exercised. If you have studied the sentencing guidelines you may know roughly the areas in which the discretion will operate, but having a fixed penalty as a minimum means that it is known in advance that unless there is a particular circumstance to take you out of the situation a fixed penalty will happen. You know that in advance.

I have heard what has been said in support of this clause and also the other point of view from a very experienced police officer. I know a case of knife-carrying that was enough to kill somebody and give the carrier a life sentence. I found that a very traumatic experience. Telling people in advance what the sentence will be is an extremely important deterrent. It has been done in various parts of our judicial system. Therefore I do not regard the principle on which this is based as one that can apply in all circumstances. In a second offence for knife crime it is reasonable for a statement to be made about precisely what the sentence as a minimum will be unless there are circumstances that take it out of the ordinary.

My noble friend Lord Marks has commented on the nature of the exception. If he wishes to improve on that, there is the option of an amendment to that effect. So far, none is forthcoming. I shall take it that the exception, in so far as it is stated, is a reasonable exception in the circumstances of this case. Of course the idea is not to put more people in prison; it is to prevent people from going to prison by knowing that if they do this particular thing for a second time that is where they will go. On the whole, one hopes that that has a deterrent effect.

Information about this will quickly get around among the people who are affected by it. One can understand the idea of discrimination but of course it depends on the way in which the power to stop and search is used. As far as I am concerned, this power must be used in accordance with the best discretion of the police officers on the street. However this amendment has come about—it was made in the other place—the Government have decided in the light of their experience and of their policy as a whole that it should be adhered to and given effect.

My Lords, I intervene briefly. I have deep unease about this clause for a number of reasons that have already been given by the noble Lords, Lord Marks and Lord Deben. I hope that the Minister will be able to help me further.

I do not like mandatory sentences. As someone who has practised in the courts for 40 years on both sides, I have seen a great many cases involving knives. I have seen the consequences of them and I have dealt with many people whose lives have been devastated by their use. However, mandatory sentences lead inevitably, in a very small number of cases perhaps, to injustice. There must always be a proper discretion for the judge who hears the facts and sees the people involved to make the right decision on sentencing. I do not like gesture politics either, and sometimes as a result of pressure we are led to amendments in this House which are not going to be the right route to getting the best result.

I should be grateful if the Minister could help us about the discretion currently contained in the clause. The noble Lord, Lord Marks, interpreted the word “particular” in Clause 25(2B) as something exceptional. I would like to know whether he is right. Could “particular circumstances” of the first offence not be the circumstances which relate to the offender and therefore allow judicial discretion to be exercised? It would seem wholly wrong if the circumstances of the first offence were relatively trivial. I can think of an occasion when someone came to see me in this House wearing a Barbour mac which he had worn on the farm in which was a knife that was discovered as he tried to come into the House. He had no idea that he had the knife with him, which he used for cutting straw bale string. It is incredibly easy for somebody to be carrying a knife without appreciating the first time what has happened. I take what the noble and learned Lord said about the second occasion, but although we often speak in this House about sending messages, I doubt very much whether many 16 to 18 year-olds are sitting reading Hansard and taking them in. They may get around in the street. Can a judge really not take into account the trivial circumstances of the first offence when he has to decide whether to impose a custodial sentence? I agree with what the noble Lord, Lord Deben, said about the complete lack of help that a custodial sentence almost inevitably gives to a young person.

My Lords, I deplore the carrying of knives, as do all of us in this House. I shall make two short points to support the noble Lord, Lord Marks. First, I am sad to disagree with the noble and learned Lord, Lord Mackay of Clashfern, but my experience of teenagers is that those between 16 and 18 would probably not take the slightest notice of a deterrent, as has already been said. Those who are slightly older—over 18—might, but from my experience as a family judge, I doubt that this would be a deterrent to 16 or 17 year-olds.

Secondly, I sat occasionally in crime, and was not very good at it, but I find it quite extraordinary that successive Governments seem totally unable to trust the judiciary to come to the right conclusion. We know from previous speakers that judges already have all the powers they need to deal with a second offence, to deal with it strongly and to put people away for much more than six months. For those two reasons, I very much support the noble Lord, Lord Marks.

My Lords, if I may, I will add a few words in support of the points made by the noble and learned Lord, Lord Mackay of Clashfern, and my noble friend Lord Blair, based on my experience as the senior judge in Scotland, the Lord Justice General. When I held that office, which I held for seven years, there was an upsurge, as happens from time to time, in the carrying of knives, particularly by young people. As the noble and learned Lord, Lord Mackay, has told us, there are cases where people who carry knives use them in an impulsive reaction to something said or done, resulting in horrific injuries. I spent four years as a prosecutor dealing with these cases.

Sitting as Lord Justice General, one of my responsibilities was to preside over the appeal court dealing with appeals against sentence in cases that had come up through the courts—sometimes through the sheriff court or sometimes through the High Court—where people had been sentenced for carrying knives. We thought that part of our duty in disposing of those appeals was to send out a message, because of the deterrent effect that we hoped that it would have. It was very much about deterrence; sometimes one added much more colourful wording to strengthen the deterrence. We might be quite lenient in the decision, but we would couch it in words that were designed to have an effect and draw the media’s attention, in the hope that they would report what we said and carry the message that the carrying of knives would be likely to lead to a custodial sentence.

Indeed, I remember going on television at the request of the police, who were concerned about the issue, using my authority as Lord Justice General to make that very point. I said that those who went out into the street carrying knives ran the risk that they might be prosecuted and that there was a risk that they might find themselves subjected to a custodial sentence. Of course, I was not cutting across the independence of the judiciary or the discretion that we all exercise; our concern was to get the message across. There is a force in doing that in statute, provided that it is appropriately worded.

I have looked at the wording of this particular clause, which contains fairly strong language, pointing in the direction of judicial discretion. As the noble Lord, Lord Marks, has said, I am concerned about bringing into consideration the first offence, which could be extremely important. But one must not underestimate the power of the deterrent effect coming through the message from a measure of this kind. I was not sure that, as judges sitting in the appeal court, by saying the things that we so often did, we were really getting the message across, which was why I was prepared to make a statement about it on television. I was not sure whether that in itself got the message across, either. But putting across the message and deterring people from getting involved in these things, with dreadful consequences for them and their victims, is immensely important. There is great force in the point made by the noble Lord, Lord Blair, to that effect.

I intervene on the noble and learned Lord with a degree of trepidation. He rightly gives the experience of Scotland from a most senior position. While this was not at the same time, I served on the Justice Committee in the Scottish Parliament, which took a conscious decision to reject the course being taken with this amendment. Instead, we took the approach of putting more resources into the violence reduction unit in the former Strathclyde police force, and working with those charities for gangs. We found that to be the most effective way in which to communicate the message, rather than an approach of amending legislation, which we were informed by all of those experienced on the ground in those communities would not be the most effective way. I may agree with the noble and learned Lord, but we come to a different conclusion. Would he reflect on that before he concludes his remarks?

I am very grateful to the noble Lord for raising that point. Of course, one supports everything that could be done by people on the ground, and there are all sorts of things that could be done. I was trying to get across the fact that I was approached by the police to use my authority, as the senior judge in Scotland, to make the announcement that I did on television in the terms in which I made it.

There is a choice as to whether one trusts the energy and resources of those on the ground to carry the message across, coupled with such statements as the judiciary can make, or whether one has to resort to statute. The point that I am making is that deterrence is crucial in this field and that the more one can deter the carrying of knives and thereby the incidents that follow from the carrying of knives, the better.

My Lords, it is with some considerable hesitation that I speak now, with two views having been expressed—one by those who support this measure and one by those opposing it. It is only right, however, having heard what my noble and learned Scottish friends have had to say about this that I should mention my experience. I have the greatest respect for the noble and learned Lord, Lord Mackay, whom I was glad to serve under when he was Lord Chancellor, and for the noble and learned Lord, Lord Hope, as well, who is a colleague in the House. With great respect to them, though, neither of them, if I may say so with all due deference, were judges who were sentencing in courts at first instance.

That is not correct. The case that I referred to was at first instance in a trial in the High Court in Glasgow.

I stand corrected on that but again, if I may say so, their experience was not, because of the way in which their careers developed, in accord with mine. I sat as a judge in the higher courts at every level, first as a High Court judge, then as a Court of Appeal judge, then as a House of Lords judge and finally as the Lord Chief Justice, in relation to these matters.

The one thing that I want to emphasise is that the right way of sentencing in the ordinary way is not for Parliament to lay down what the fixed sentence should be; rather, it is for Parliament to set out the framework and for the judges, within that framework, to deal with matters specifically. Four-month and six-month fixed sentences amount to tinkering. To think that that sort of sentence is going to be of any significance—again, I speak with great respect for the noble Lord, Lord Blair, whom I know and respect—is not right. Four-month and six-month sentences, as has been said already, just do not work as far as either the authorities or offenders are concerned. If someone is the sort of person that this provision is aimed at, who caused someone’s death by the carrying of a knife, I am afraid I cannot begin to believe that their conduct will be influenced by this. That is contrary to the experience of the great majority of judges and, as I have said, amounts to tinkering. That is what we should not do.

We have powers in the court to deal with these matters. Both the noble Lord, Lord Blair, and the noble and learned Lord, Lord Hope, put their finger on the point when they said that the courts can send messages in the same way that Parliament can send messages. However, there are situations where it is appropriate for Parliament to send a message, but there are situations where it is much better done otherwise, although I do not say that it has to be the judiciary. We have heard in this field that both the noble and learned Lord, Lord Hope, and Lord Justice Judge sent messages and were indicating. Although it is right, as the noble and learned Lord, Lord Mackay, says, that if you have a fixed sentence there is more of a likelihood that someone might know what the fixed sentence is, it is also more likely that injustice will be caused by the fixed sentence.

When we legislate, we have to hold the balance between doing justice and ensuring that people are safe so that we do not get into a situation where a court finds that its hands are tied and it is forced to give a sentence that it would prefer not to. The provision that is a safeguard in this case is based on one that is well known to courts south of the border and, I suspect, north of the border. The difficulty with this provision has already been indicated by the noble Lord, Lord Mallalieu. What does it mean? It is a matter that I do not mind saying—[Interruption.] I am sorry, the noble Baroness, Lady Mallalieu. I apologise to the noble Baroness and I know that she will forgive me for that discourtesy.

The position is this: Lord Bingham took one view of what a provision of this sort made, and I took a different view. I said, and you can find this in the Law Lord reports, that the only way you can make sense of this provision is to say that the right way of interpreting it is that a judge’s hands are not tied if that would cause injustice, because it is obviously not the intention of Parliament that judges should impose an unjust sentence. Lord Bingham said that that made this provision a non-entity. I realise that and I agree, and if that is so then we are better off without it.

My Lords, I had not meant to take part in this debate; I am neither a lawyer nor a judge. However, at one time in this Chamber today I felt I was being given the strong impression that only black boys carried knives in this country. I want to put on record that this is not so. In cases with which I have been involved in Greenwich, young men were killed with knives not because they had committed a crime but because they were black. I should like that to be put on the record.

My Lords, I raised this matter at Second Reading and draw to the Committee’s attention the fact that the amendment was tabled by Nick de Bois, an Enfield MP, strongly supported by David Burrowes, another MP for the Enfield borough. It is a borough not unfamiliar with knife crime, which in some cases involves fatality. These are MPs who have direct experience and I hope that that ameliorates the suggestion that this provision is just a knee-jerk reaction. Knife crime has been an issue for Enfield for some time. It has also been drawn to the House’s attention by the Lord Chief Justice that we have a problem. Whether this is the correct solution is another matter but we have a problem with the carrying of knives by young people that is often seen as some kind of status symbol.

I remind your Lordships of what perhaps seems an obvious point. There have to be two convictions before this power comes into play. I have read of situations in the media in which people have carried penknives. One would have to possess these weapons,

“without lawful authority or reasonable excuse”.

This does not apply to anyone accidentally having a knife left over from pruning the roses or working on the farm at the weekend. These are people who are carrying knives without being able to provide an excuse. This power is supported by not only the former commissioner but the current Metropolitan Police Commissioner, who said:

“Where we are getting gang members or young people carrying knives and there is no excuse, then this is a serious matter for me”.

So we also have the Metropolitan Police saying that it wants additional powers in relation to knife crime. I have looked at the discretion given, and this is not a mandatory provision that necessarily would lead to injustice.

I should really like to highlight the issue of discrimination, and I strongly disagree with my noble friends on this. I raised this matter way back, in my maiden speech. There sometimes seems to be a disproportionately low response to victims of violent crime when they are not white. One must not forget that, in this situation, the figures from when I checked—I thank the Library—show that one is twice as likely in London to be a victim of knife crime if you are black. From my experience of speaking to community leaders, they are extremely concerned about the effect of this on their own communities. They are the victims of this, so it is flawed to suggest that the provision is discriminatory because of stop-and-search powers. I accept that elements of our criminal justice system have been discriminatory over the years and one can point to the discussion in the other place involving the Home Secretary, who has brought in a review of stop and search. Her Majesty’s Inspectorate of Constabulary has looked at this, and the Home Secretary had the support of Diane Abbott, of all people. We had grasped a nettle that had not been grasped for a long time.

This Government have also rid the ethnic-minority communities of the injustice of a DNA database that held innocent people’s DNA. These issues have been addressed and it ignores the effect on victims in minority communities if we refer only to the perpetrators.

My Lords, I had not intended to speak in this debate and will do so briefly. I have listened carefully to those who oppose my noble friend Lord Marks, and I am afraid that I am not convinced by them for two reasons. First, the cases that they cite are ones in which the judge would almost certainly have sent the person to prison anyway. When somebody carries a knife with serious intent and uses it, that is when people go to prison. We do not need the clause for that reason.

The other point has not been mentioned at all. The clause is supposed to be a deterrent, mainly for young people, to prevent them getting involved in carrying knives in the first place, which is a very laudable objective. However, let us remember the development of children’s brains. The majority of the development of children’s brains happens between birth and three years of age, but there is a boost during the teenage years. That is when risk taking comes in. If noble Lords consider that, they will realise that a deterrent such as this very small prison sentence—I quite agree with the noble and learned Lord, Lord Woolf, that it will do nothing but harm—will certainly not deter someone whose brain is telling them, “Now you can take risks, and you should”.

My Lords, I ask the Minister to clarify one issue, and ask for help from my noble friend Lord Blair on another. The first issue concerns children in care. As the Minister will be aware, a disproportionate number of children in care are in custody: more than half the boys and just under half the girls in custody come from the care system. I would be interested in clarification about any exception under the proposal that will look at the backgrounds of young people, particularly if they come from a care background. I imagine most of your Lordships will be aware that 60% of children originally come into care because they have been abused and a further 10% because their family has broken down. As the noble Lord, Lord Deben, described, these are children who are very damaged and sometimes troubling to others as well.

When we discussed mobile phone crime seven or eight years ago the law was strengthened because of concerns at that period. I remember a case where a 15 or 16 year-old boy, on his first day at a children’s home, joined a group of people he did not know. One of that group stole a phone. The judge was obliged to be tough with him and sentenced him to custody. There was no suitable secure local authority children’s home for him. I think he was placed in a young offender institution and he hanged himself. One must also remember that these children are more vulnerable to knife crime. It is of course a very finely judged argument.

My question to my noble friend Lord Blair concerns his experience, which was most interesting. His first example concerned women taking guns out of their handbags, so it was an older group. What was the experience of 16 or 17 year-olds in the second example he gave, if he is aware of that? I share the concern of my noble and learned friend Lady Butler-Sloss that 16 and 17 year-olds may not be able to understand the weight of punishment that may await them if they continue—although they will have committed a first offence, so they probably should be aware.

My Lords, of course it is wrong for a young person to carry a knife. Of course we want to remove and reduce the number of young people in school with knives. Of course we want to sympathise with the victims. I am a mere social worker, so I have had to work at both ends of this spectrum. However, what we are talking about is what the real deterrent would be, not whether we are aiming to reduce the use and holding of knives.

I agree with noble Lords who have spoken about young people’s development; we think of that very little these days in our policy. Based on my experience, the clause is very unlikely to deter them from carrying knives. What happens is that young people find themselves in a gang at the age of 14. The rest of the gang are aged 16 to 18. The clever thing is to carry a knife. It may be that the 16 to 18 year-olds are not carrying the knives, but the young person is encouraged to take the risk. On estates they are terrified that their parents—usually their single mum—are going to be harmed, so they carry a knife. Of course it is wrong, but the deterrents will not work if these young people are going to be put away.

The All-Party Parliamentary Group for Children has just been looking at the relationship between children and young people and the police. A number of the young witnesses were pretty tough and had been in extraordinary trouble. It became clear that what made a difference was those young people having a police mentor. As the result of the police going into their schools and talking to them, they joined the police cadets or some other organisation, and that was far more likely to deter them from the path of any sort of criminality, particularly violence. If young people begin to understand, through relationships, what the outcome of their actions will be, they will be much more likely to change. Therefore, I oppose the clause and support the noble Lord, Lord Marks.

My Lords, I rise to speak with some trepidation because I have found this debate really rather depressing. I speak as a member of the Joint Committee on Human Rights. I am not speaking as someone who might have experience as a social worker or as a member of the judiciary. I am a lawyer but I am also a mother and perhaps, through that experience, in addition to my experience as a lawyer and as someone who has spent many years in your Lordships’ House, I might understand the thinking of those who carry knives. We should remind ourselves that we are talking about:

“Possessing an offensive weapon or bladed article in public or on school premises: sentencing for second offences for those aged 16 or over”.

I shall be brief because most of what I want to say has been said very eloquently by my noble and learned friend Lord Mackay and my noble friend Lady Berridge.

My support for this clause focuses on two points. First, it is true that the level of knife crime is falling and that has to be a good thing but, through our ability as a legislature, let us give all the support we can to those who work to support that trend to do the right thing—that is, the police, teachers, governors, the Government, the Ending Gang and Youth Violence programme led by the Home Office, and those very young people themselves. Let us not underestimate the ability, the intelligence and, in some ways, the smartness of those who unfortunately are gang members. Let us give them every piece of ammunition to stop carrying knives in public places and in the schoolyard. Let us think about their friends who are terrified every time they go into the playground because they do not know who, among their friends, is carrying a knife.

My second point concerns deterrence, and it has pleased me to some extent that we have at least heard that word. I was beginning to think that there was no longer any such thing in people’s minds and that people were saying, “Well, it won’t work, so let’s not bother”. We have been allowing these gangs to grow in number in all parts of this country. Let us do all we can to see whether just one additional strengthening of the law will lead to some small deterrent somewhere in the minds of these young people, giving them the strength to say, “You know what, it’s not worth it. Even though it might look cool, it ain’t cool, because I don’t want to go to prison”. Call me naive but I can tell your Lordships that, in a sense, bringing up children is as good an experience as sitting in a court of law and receiving the problem after the event. I am saying that we have the ability in your Lordships’ House to focus on prevention, not the after-effects. So please can we say to all those children out there, “Be strong and we will show you that it’s just not cool to carry knives”?

My Lords, I have listened carefully to all the speeches and I must say I find the arguments on both sides very powerful—some very powerful, convincing arguments have been put forward. It is a great pity and does a disservice to this House that an artificial division is being created on such an important matter merely because the Liberal Democrats want to have a conscious decoupling from the Conservatives in the run-up to the general election.

My Lords, I, too, was not going to take part but the previous contribution was not worthy. This is a very serious subject. I am the mother of a son who was mugged when he was a teenager. He came to the brink when he felt so scared that he wanted to carry a knife but luckily he did not—not to my knowledge, anyway. Young people, particularly young men, are more likely to be victims of crime and we need to have faith in the judicial system—as we have heard from noble and learned Lords this afternoon. We need to allow judges to take and judge each matter on its merits, case by case, and must not dictate from this Chamber and from Parliament.

We heard earlier from the noble Baroness, Lady Howells, about the issue of black youth. The argument was—with respect to the noble Baroness, Lady Berridge, whom I respect enormously—that they are disproportionately affected as they tend to be stopped and searched more. That means that others who may be carrying knives are unlikely to be stopped. That is a discrepancy that needs to be taken into account.

The idea that a 14 or 15 year-old boy who feels scared and vulnerable because he may not be in one gang or another but feels the need, however wrong it is—of course it is wrong, but there is no rationality here—to go out with a knife should then have his life ruined as a result of making one mistake is not something that we should support. We should leave it to the courts. We should be listening a little more to young people, which I do not think we are, about which things work and which do not. At a time when knife crime is falling I cannot for the life of me see why we should want to impose this mandatory obligation on the courts.

My Lords, I shall be very brief. What I object to in the Government’s proposal is the automaticity built into it. Irrespective of the circumstances of the particular offence or of the offender, there is an automatic assumption now that a second offence will produce a sentence of imprisonment. I do not like that—I think it is wrong. I do not think that is the way in which our courts should behave. Indeed, in 99.9% of the cases that is not the way in which our courts do behave. It is essentially a matter for judges to decide what is the appropriate penalty given all the facts and the circumstances of the case. Therefore, I ask myself, “If that is wrong, why are the Government doing this?”. I suppose the answer is that they want to send a message. What message do they want to send? It is a mixture, I suppose—part politics and part deterrent. I will leave the politics out of it because one of the interesting things this afternoon has been how apolitical this discussion has been. Therefore, let us just look at the deterrent argument. Does it hold water?

My noble friend Lady Mallalieu said that she practised at the criminal courts for 40-odd years. I cannot say that I practised with quite the continuity she did over the past 40 or 50 years but I have done the same. I have to say to the House—as she did—that the idea is fanciful that criminals solemnly sit down and say to themselves, “Well, if we are going to get X years we will commit this crime and if we are caught and we are going to get Y years then we won’t”. That is not how it works. The professional criminal does not think in that way and certainly the youth who may be carrying a knife as part of some kind of teenage bravado is certainly not going to think in those terms. I do not accept the deterrent argument.

So do we want to send a message? If we do want to send a message—a united one, I hope—that we thoroughly disapprove of knife crime and that people who carry knives should be properly punished, and in some cases severely punished, that is a good message and we should send it. But should we send it via statute, in an automatic way? It says, “If you do that, this is bound to happen to you.” I think not. It is totally the wrong approach. Judges have the power to deal with these cases and to send their message. If judges impose heavier sentences for second offences of knife crime, that is a matter for them, and some may hope that perhaps they will. It should not be a mandatory message of the sort that this clause would impose. It destroys judicial discretion and alters the nature of the criminal process. In almost every other area of the criminal justice system of this country we do not have mandatory sentences and I hope that we do not go down that particular road in this area.

My Lords, I, too, had not intended to speak, but I feel moved to do so on this occasion. We have judges for a reason, and if we set a precedent in relation to this particular issue, I think that we will put ourselves on a slippery path of setting other mandatory sentences in the future.

My Lords, I, too, was not going to add my voice to this debate, but I feel compelled to do so for two reasons. The first is because this is an issue which has been troubling the House for quite some time and we have had a number of debates about it over the years. There is an issue about whether we believe that judges, when they issue sentencing guidelines, are able to do that which a number of Members of this House want in terms of deterrence. A judge’s guideline which indicates that for a second offence the expectation will be imprisonment does have a profound effect.

Secondly, I refer to the period of imprisonment, which is to be four to six months. Those of us who have been burdened with the joy of helping to deliver the criminal justice system know that a period of imprisonment of four to six months is the least effective term there is. Very little opportunity arises in which to do a needs-based assessment with the offender, to do a skills analysis, and then to be able to ascertain how best to intervene and interrupt the pattern of criminality, if one has already been established. If we are thinking about the efficacy of a sentence, this, I must respectfully say to the Committee, seems to be the least efficacious. I would hope that we can trust the judgment of our judges and invite them, if there is not now a strong guideline in relation to sentencing, to provide us with one.

Will the noble and learned Baroness confirm for the Committee that neither she nor I have any intention of supporting a Liberal Democrat plot on this subject?

My Lords, I can assure the Committee that this has been a sober debate on the issues and that it is clear that there is no unanimity of view on any Bench. I believe that the House of Lords is demonstrating its independence and doing what it does best, which is to argue and disagree, and then, it is hoped, to come to a consensus.

My Lords, amen to that. Like the last several speakers, I had not intended to intervene in the debate—this could go on all night, I suppose—but I want to make two points. First, it was my experience, not only as chief prosecutor but also over very many years of practising criminal law, that sentences of between four and six months are not just pointless, as many speakers have indicated, they are positively damaging. Young people who are sent into young offender institutions for four to six months do not come out with nothing, they come out with worse than nothing. I have always thought that it was a preposterous policy to send young people into incarceration for such periods, and yet that is precisely what this Bill mandates, and in that sense it will do serious damage.

The second issue is mandatory sentencing. We have a good example of a jurisdiction that has gone down the route of mandatory sentencing: the United States of America, which has well known federal sentencing guidelines. The prison population in the United States of America stands presently at 3 million.

My Lords, when I make contributions to these debates, I am always conscious of a sense of nervousness because so many distinguished noble and learned Lords have contributed to the debate. I am not a lawyer: I come to the debate as a lay person. On these Benches, we are unable to support the noble Lord, Lord Marks of Henley-on-Thames, although we share his concerns about the effects of stop and search. We must have procedures in place to discourage the carrying and use of weapons. I am sure that the noble Lord, Lord Faulks, will confirm when he responds to the debate that he believes, as I do, that the Bill should allow for judicial discretion.

It is important that the Government deal with the issues that lead people, particularly young people, to commit these offences. I agree with the comments of the noble Lord, Lord Paddick, who talked about getting into schools. It is not enough to lock up young people who commit offences without dealing with the causes that lead them to do so. What will be provided to deal with the problems? Many noble Lords made that point about what actually happens to people who are in prison for short sentences.

I agree with the comments of the noble Lord, Lord Deben, about how this provision got into the Bill in the first place in the Commons. It came in very late. That is regrettable. I also agree with the comments of the noble Lord, Lord Blair.

As my title indicates, I grew up in Southwark, on a council estate. I was very happy there. I do some work with a local charity working with kids on council estates all over the borough and the neighbouring borough of Lambeth. It seeks to get kids to play football together. You can hardly fight as you play football together. I recently spent some time with the charity. I was shocked and depressed by how much depended on the estate you lived on, so that when you walked home if you walked a certain route, you would have real problems. I met one young lad who lived on the Wyndham estate, right next to my primary school. The estate is 50 yards from the borough of Lambeth, but he told me that he never walked across into the borough because he was scared. He would never cross the road. I could not believe that—it is an absolutely shocking situation. We have to deal with those problems.

The charity organised a World Cup in Kennington Park, and it got different council estates and different nationalities playing football together—meeting up and playing football together rather than fighting each other in the evenings. That was fantastic. This chap does all this work, with virtually no funding from the local authority, from the Government or from anybody. It is fantastic. These are the sort of things that we would all agree need our full support.

My response to the noble Lord, Lord Paddick, is that I agree with the noble and learned Lord, Lord Mackay—this is about a deterrent which will keep people out of prison. We are not actually sending people to prison. I also agree with many of the comments of my noble friend Lady Howells and the noble Baroness, Lady Berridge. However, I am confused about the Liberal Democrat position. I mentioned in my speech at Second Reading that in the LASPO Act, the Liberal Democrats supported mandatory sentences for carrying a threatening or offensive weapon. The question was raised recently in the Commons and an amendment agreed without a Division. There is now an offence of carrying an offensive weapon in public with a mandatory maximum sentence of four years. I find that a bit odd in terms of what comments I have heard and taken note of from the Liberal Democrat Benches.

My Lords, Clause 25 would put in place a minimum custodial sentence of six months’ imprisonment for adults and a four-month detention and training order for 16 and 17 year-olds where an offender has committed a second or subsequent offence of possession of a knife or offensive weapon, unless there are particular circumstances that would make it unjust to do so. The clause also provides for a previous conviction of threatening with a knife or offensive weapon to count as a first strike.

Clause 25 was passed into the Bill in the other place and is now being considered by your Lordships’ Committee. The coalition Government are fully committed to ensuring that the public are protected. However, policy agreement has not been reached on this clause, and so it will be for the whole Committee to decide the issue. In these circumstances, noble Lords will understand why I am unable to answer many of the questions about the proper construction of the relevant clause, although I think I can simply draw the attention of those who have not had a chance to study it in detail to the fact that the initial offence has to be,

“without lawful authority or reasonable excuse”.

Then discretion is given with the words,

“unless the court is of the opinion that there are particular circumstances which … (a) relate to the offence or to the offender, and … (b) would make it unjust to do so in all the circumstances”.

The only other point that I make at this stage is that a number of noble Lords made the point that short sentences were not effective. I simply remind the Committee that only this year we passed an important Act which provided, for the first time, that those sentenced to less than 12 months would receive support in the community and support before leaving prison to assist in the resettlement process.

I am completely confused as to who the Minister is speaking on behalf of. Is he speaking on behalf of the Government, the Conservative Party or the group of people who put the clause in the Bill? How are we therefore to treat his remarks? Is it to be a regular occurrence that we get Ministers coming to the Dispatch Box who are not speaking on behalf of this great coalition?

I hope it will not be a regular occurrence. I am endeavouring, in my short remarks, to assist the Committee as a whole on matters of construction but not to persuade it in one direction or another.

Is the Minister speaking for the Government or is he merely putting this before the Committee, so to speak, as a debating issue, which we can all have a go at and then come to a conclusion on?

I am putting this before the Committee in circumstances in which, as I think the noble Lord well knows, a compromise has been reached.

Does my noble friend agree that this is too important an issue for it to become a kind of joke measure for those who wish to make other party-political points? We ought to consider this seriously, in the way it ought to be considered, and make our own decisions according to the facts.

I agree with my noble friend that it should be considered seriously and a judgment exercised by the Committee as to what it thinks the appropriate response to this particular clause is.

I am grateful to the Minister. Whoever he is speaking on behalf of, he should regard me as a floating voter. I came in with my mind pretty well made up to support the clause, whoever’s it is—I was going to say it was the Government’s. However, I had the misfortune to sit next to my noble and learned friend Lady Scotland, who gave me an enlightened commentary to supplement everything that was being said and tried, as she did when she was my Minister in the Home Office, to soften my hard heart on this issue.

Subject to the response to one question asked by my noble and learned friend, I am still inclined to vote with whatever entity is in favour of the clause. I hope the Minister can answer the question and help me decide. What consideration was given to outlining this in sentencing guidelines, without the need to put it in the Bill? I am not suggesting for a minute that judges always follow sentencing guidelines. Indeed, the Committee may be amused to learn that when we put forward sentencing guidelines to diminish hugely the number of four and six-month sentences when we were bringing in indeterminate sentences at the other end, judges proved very reluctant not to send people to jail. It was suggested to me by the Lord Chief Justice at a meeting of the Criminal Justice Board that I should write and remind them of that. When I did, I was massacred in public for suggesting that judges may not need to send people to jail. I understand that they do not have to follow guidelines, but I hope the Minister has had time to consult his notes and to let us know whether, before going to the mandatory statutory sentence, such a course of action was considered, as my noble and learned friend asked.

Before the noble Lord’s intervention, I was going to conclude by saying that this is not a clause that could ultimately find its way to the statute book. If the vote results in the Bill remaining in its current form, the Government will bring back amendments to make various alterations—not to the effect or the substance, but to the detail—and in particular to make sure that the provision is consistent with the sentencing framework as a whole. There are also various other technical amendments that will have to be made.

I am not a lawyer or a civil servant draftsman. Does that mean that if this clause is agreed to, the Government will come back with guidelines, rather than putting it into the Bill? Is that my understanding, or have I got even more confused? Perhaps the Minister would explain.

It is not a question of guidelines; there are a number of particular defects in the clause. For example, it would be necessary to fix the period for appealing a minimum sentence if a previous conviction upon which the minimum sentence is based is overturned. The period should be fixed at 28 days to ensure consistency. Furthermore, it is not clear in the current draft that the Attorney-General would be able to make a reference on the basis of a court’s failure to impose a minimum sentence, and the usual practice in relation to early guilty pleas for minimum sentences is a reduction of up to 20%. As currently drafted, the court would not be able to apply any discount for an early guilty plea. It is also necessary to add equivalent offences under UK and EU member state service laws to relevant previous convictions.

If the Government have so many reservations about this clause, surely their position should be to oppose it. The Government’s position at this stage should be to say that they think the Committee should look closely at this clause because they are not happy with it. Surely that should be the Government’s position.

The Committee is looking carefully at the clause. I have endeavoured to assist with various questions to indicate that certain technical amendments would have to be made, which would not alter the fundamental purpose behind the clause, but would nevertheless make it more satisfactory.

Would it help the Government if we voted this clause down? They could then produce a clause that was satisfactory and would listen to what the Committee had said.

Why have a vote at all? We are in Committee and the Bill will then be on Report. At that stage, the Government can tell us what sensible amendments they wish to move. Some of us have been whipped to come this afternoon—and I always treat Whips with great discernment—but what is the point in voting this afternoon?

Can my noble friend elucidate for those Liberal Democrats who are unaccustomed to taking part in plots organised by the Chief Whip of the Liberal Democrats—I claim to be one of them—and answer the question of the noble Lord, Lord Reid? Why is this issue not better dealt with by sentencing guidelines, which can be changed from time to time to meet the circumstances that the courts have to face on a regular basis, rather than by using this clumsy statutory provision, which is not in a fit form to enact in any event?

My Lords, I have listened to this debate for the last hour and a half and was almost looking forward to the Minister’s response. Some serious issues have been raised during the course of this debate which deserve an answer on behalf of the Government. As I understand the position—and I have got more rather than less confused as the afternoon has worn on—we are about to have put before us the Motion than the clause should stand part of the Bill.

If we were to agree with the noble Lord, Lord Marks, we would presumably vote not content. Presumably, too, the Government and possibly the Opposition have whipped all the noble Lords here to vote content—that we want the clause. Therefore, before we vote on the matter, it is really important that some of the issues that have been raised are addressed by your Lordships’ House with the authority of the Government saying what their responses are.

For example, one point that exercises me is the question of why it is thought that this might have a deterrent effect on young boys who act largely on impulse. I appreciate that the Government do not want—or the Minister does not, on behalf of whatever entity he is speaking—to express a firm view. However, he could share with the House the research work that no doubt different government departments have conducted on what constitutes a deterrent effect on young men and whether the clause, as drafted, conceivably delivers such an effect.

My Lords, I apologise for prolonging this still further. Following the noble Lord, Lord Harris of Haringey, I was grateful to the Minister for his response but the concern about the criminalisation of young people in care is very serious. It is one of the two main agenda items for the new chair of the Youth Justice Board, the noble Lord, Lord McNally. He is very concerned particularly that so many young people from children’s homes enter the criminal justice system. It would be helpful as background to the Bill to have some warning as to what if any impact this clause, if accepted, would have on the number of young people from care coming into custody.

There were quite a number of interventions. I will endeavour, very briefly, to say what I can within the terms that I speak today. On the question of sentencing guidelines, they are of course changed from time to time. It is a matter for the House to consider whether sentencing guidelines are an appropriate way to deal with this or whether it is more appropriate to use the clause as it currently appears in the Bill—whether that is called sending out a message, providing a deterrent or whatever construction one places upon that particular clause.

As to all the other matters, there is no question of a Liberal Democrat plot. I readily concede that this is an unusual situation. However, I am simply not in a position to say more than I have in answer to the various questions raised, except to say this: the issue for the House is fairly before the House, as brought by my noble friend Lord Marks, and it is whether the clause currently in the Bill should stand part.

My Lords, this has been an important debate. It has been a serious and sober debate. I agree with the noble and learned Baroness, Lady Scotland, on that point. It has also not been a political debate in the sense that noble Lords on all sides have spoken both ways. My understanding of the Government’s position is that the position of Conservative Ministers remains as it was in the House of Commons; they will not support the clause as it stands, as inserted by the Back-Bench amendment; nor will they oppose it.

However, the position is that everyone in this House is agreed that we cannot, do not and never will condone knife crime. We all share the aim of driving knife crime down. I listened carefully to the points made, particularly those made by my noble and learned friend Lord Mackay of Clashfern, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Blair. All of them of course have enormous experience of the criminal justice system. Other noble and learned Lords, notably the noble and learned Lord, Lord Woolf, spoke the other way.

The points made against me and in favour of Clause 25 principally concern deterrents and sending a message. However, what has been entirely unclear is the notion that there is clear evidence that a message and deterrence are better sent by a mandatory provision in a statute than they could be by judges exercising their discretion—going on television if necessary, as the noble and learned Lord, Lord Hope, described; by action outside Parliament, as the noble Lord, Lord Purvis described; or by sentencing guidelines, as the noble and learned Baroness, Lady Scotland, suggested, supported by the noble Lord, Lord Carlile.

Sentencing guidelines are daily used and daily applied, but they do not remove judicial discretion to sentence appropriately, departing from the guidelines where that is the right and just thing to do. I do not believe that deterrence by a mandatory provision in a statute is proven to have any beneficial effect at all. I believe that a mandatory provision for minimum sentences in a statute, to be imposed where judges would not—when wishing to do justice—otherwise impose them, removes judicial discretion and inevitably does injustice in a number of cases. For those reasons we oppose this clause.

Your Lordships have also heard the extent to which the clause is defective. It is not supported by either of the parties of Government. It is not supported by many of great experience who have spoken from the opposition Benches. It is not supported by many of those who have spoken from the Cross Benches. The Motion will be that this clause stands part of the Bill. I urge noble Lords to oppose the Motion and vote not content. I wish to test the opinion of the House.

Clause 26 agreed.

Amendment 35A

Moved by

35A: After Clause 26, insert the following new Clause—

“Offence of driving while disqualified to be triable either way

(1) In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences under the Traffic Acts) in the entry relating to the offence of obtaining licence, or driving, while disqualified, section 103(1)(b) of the Road Traffic Act 1988—

(a) in column 3, for “6 months” substitute “12 months”;(b) in column 2, after paragraph (c) insert—“(d) On indictment, in England and Wales”; and(c) in column 3, after paragraph (c) insert—“(d) 2 years or a fine or both”.(2) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference to 12 months is to be read as being a reference to six months.

(3) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.”

My Lords, after the late excitement, we come to the more mundane world of driving while disqualified.

Clause 26, which we do not oppose, deals with what might be described only as another Grayling gimmick: the imposition of a maximum 10-year sentence for causing death while driving when disqualified—not for causing death through dangerous or careless driving while disqualified but for causing death while driving when disqualified. It is a measure of the significance of the amendment that there were 13 convictions in the past year for the offence of causing death when driving while disqualified or without insurance or a licence. This was not really a major problem. What the Government failed to do was to consider the real problem of the number of members of the public who drive while disqualified whether or not they are involved in other road traffic offences, particularly offences which cause injury. It is that problem with which this amendment deals. The current situation is that the maximum sentence is six months’ imprisonment only.

The question of causing death while driving under disqualification, now to attract a 10-year sentence, stands oddly with a five-year maximum sentence for causing death by careless driving and a two-year sentence for causing death while driving without a licence. Some 7,000 people are convicted every year for driving while disqualified. In my submission and that of the Opposition the sentence of six months is clearly inadequate for that offence. The amendment therefore proposes that the offence should carry a maximum of two years’ imprisonment and be treated as either way: it could be tried in a magistrates’ court or a higher court if necessary. That seems an appropriate way of dealing with an offence of this kind and I hope that the Government will reflect on it and accept the suggestion, if not today then on Report. We must do something to discourage the prevalence of the serious offence of driving while disqualified. At the moment, particularly given the very substantial sentence imposed under Clause 26, that looks inadequate and needs to be remedied. I beg to move.

My Lords, this amendment, as the noble Lord, Lord Beecham, has explained, would make the current summary-only offence of driving while disqualified an either-way offence. That would mean that the offence, currently dealt with by magistrates, could also be tried by the Crown Court with a jury, and the Crown Court would have a maximum penalty of two years’ imprisonment available. I know that an identical amendment was tabled on Report in the other place, but let me explain what the Government propose to do in relation to driving offences.

This Bill already contains proposals, welcomed from all sides, to increase the maximum penalty for causing death by driving while disqualified to 10 years’ imprisonment and to create a new offence of causing serious injury while driving while disqualified with a maximum penalty of four years. That was a pressing issue which the Government wanted to address, and we have done so in this Bill.

I agree with the noble Lord, Lord Beecham, and the question of disqualified drivers generally is of concern to the Government and all in this House. We want to ensure that we are doing what we can to keep our roads safe. Those who are disqualified from driving should not be on the road, and those who flout the law should be dealt with appropriately by the courts. I stress that where a person decides to drive when they have been disqualified and their driving is also bad, the CPS has a range of other offences it can charge—for example, dangerous driving, which is already an either-way offence with a maximum penalty of two years’ imprisonment.

However, the Government are not ruling out doing exactly what the amendment seeks to achieve. We have already made it clear that we will carry out a wider review of the offences and penalties for driving offences over the coming months. We want to look at the sentencing framework for driving offences as a whole and to address the various concerns that I know many noble Lords and the public have about specific aspects of the law in this area.

I know that my right honourable friend Jeremy Wright has already made it clear that the review would look at the specific issue of driving while disqualified. We also want to look at the most effective ways of ensuring that repeat offenders are prevented from driving and do not pose a risk to the public in future.

Noble Lords will recognise that while we can make changes to specific offences where there is a pressing need to correct a gap in the law, as we have done with the causing death and serious injury offences, looking at the wider range of offences and the rationale for the entire sentencing framework needs careful consideration and should be done over a longer period.

I hope that my undertaking that the Government are looking at the driving while disqualified offence in the wider context of its relation to other offences and sanctions will reassure the noble Lord, and that he will feel able to withdraw this amendment.

I am grateful for the Minister’s indication. What he said underlines the legitimacy of the charge of gesture politics laid at the door of the Secretary of State, because he said that there is now to be an intensive review of the range of driving offences. It is absolutely right that that should be the case, but for an offence that was committed 13 times last year it was found necessary to amend the Bill in advance of the review to which the Minister referred. It is lamentable that Parliament, and this Bill in particular, should be used to make a mere gesture of that kind when the Government have already decided upon a proper, thorough review of these serious matters. Having said that, the assurance that the Minister has given satisfies me and the Opposition. I beg leave to withdraw the amendment.

Amendment 35A withdrawn.

Schedule 4 agreed.

Clause 27 agreed.

Amendment 36

Moved by

36: After Clause 27, insert the following new Clause—

“Meeting a child following sexual grooming etc

(1) In section 15(1)(a) of the Sexual Offences Act 2003 (meeting a child following sexual grooming etc), for “on at least two occasions” substitute “on one or more occasions”.

(2) In a case in which person A met or communicated with person B only once before the event mentioned in section 15(1)(a)(i) to (iii) of the Sexual Offences Act 2003, an offence under that section is committed only if the meeting or communication took place after this section comes into force.”

My Lords, this Government, and I know this House, are committed to doing their utmost to protect children from the scourge of sexual abuse. There is unity across Parliament in that regard.

Amendment 36 amends the grooming offence at Section 15 of the Sexual Offences Act 2003. It has been prompted by the sterling work of the cross-party inquiry into the effectiveness of legislation for tackling child sexual exploitation and trafficking within the UK. The inquiry was supported by the children’s charity, Barnardo’s, and chaired by the honourable Member for Rotherham, Sarah Champion MP, and the Government are very grateful to everybody who contributed.

While the report concluded that the Sexual Offences Act 2003 is generally fit for purpose, it identified a small number of amendments which would improve enforcement of specific offences, including the offence of grooming. Under the current law, a person is guilty of grooming if he or she meets or communicates with a child on at least two occasions, and subsequently they meet or arrange to meet the child, or they or the child travel to meet the other. The defendant must intend, either during or after the meeting, to commit a sexual offence against the child. It is the part of the offence which specifies that there must be two initial contacts between offender and child which is now problematic and which this amendment seeks to address.

Sarah Champion sought to deal with this issue through the amendments she tabled in the other place. She withdrew those amendments after we committed to look closely at this issue. Having considered the evidence and her representations carefully, the Government are persuaded that change is now needed.

At the time of its creation, the original offence was designed to tackle a relatively new pattern of behaviour that we commonly thought of as grooming. The aim was to protect children who may be contacted by adults repeatedly over a period of time to build their trust with the intention of subjecting them to sexual abuse in future. However, with the development of new technology and better, faster and simpler forms of communication including chat rooms and social media sites, it is easier for offenders to make contact with their victims and build their trust relatively quickly. The inquiry heard evidence that contact sexual offending against a child can now occur following just one communication or meeting. For example, the Child Exploitation and Online Protection Centre, CEOP, reported in 2013 that online child sexual exploitation has shifted in its nature, with the time between initial contact and offending behaviour often extremely short and characterised by rapid escalation to threats and intimidation. It describes a “scattergun” approach taken by perpetrators, who target a large number of potential victims. Even if they are ignored by the vast majority of children whom they target, they focus their efforts on the small number who respond positively to their communications. These views were echoed in oral evidence given to the inquiry by the police.

This amendment will therefore amend the grooming offence so that the number of initial occasions on which the defendant must meet or communicate with the child in question is reduced from two to one. This will permit more effective intervention by the police in relation to individuals who could otherwise have been prosecuted only when a second contact had been established, and in certain cases might prevent the sexual contact element of the offence occurring. It will also bring the offence in England and Wales into closer line with the equivalent Scottish offence, which requires only one initial contact.

More widely, the amendment will support the work being undertaken across government to tackle the sexual exploitation of children. My honourable friend the Minister for Crime Prevention, Norman Baker MP, is leading the Sexual Violence against Children and Vulnerable People national group. This panel of experts was brought together by the Home Office to co-ordinate and implement the learning from recent inquiries into historical sexual abuse and current sexual exploitation cases and issues around sexual violence more widely. Amendment 88 updates the Long Title of the Bill to reflect this change. For those reasons, I beg to move.

My Lords, this is an extremely sensible amendment. I rise on behalf of Barnardo’s to express its very real thanks, which I share, for the amendment that the Government are putting forward.

My Lords, as a member of Barnardo’s, I am delighted on this occasion to be able to agree with my noble and learned friend.

My Lords, we on these Benches welcome the amendment. I welcome it personally because I took part in the debates in 2003 on the Sexual Offences Act and argued this case on behalf of Barnardo’s, Action for Children, the NSPCC and ECPAT. All the voluntary organisations concerned with child safety had already realised that the law would increasingly not cover the issue of the threat to children through new media. I thank Barnardo’s for its excellent briefing on this, my honourable friend Sarah Champion for leading such an excellent review of the law and the Government for bringing forward the amendment.

I am grateful for those brief but welcome interventions by a number of noble Lords, not least of course the noble Baroness, Lady Thornton, whose own interests in this matter she correctly recorded. I am grateful for that short debate. That concludes the debate on this issue.

Amendment 36 agreed.

Clause 28: Possession of pornographic images of rape and assault by penetration

Amendment 36A

Moved by

36A: Clause 28, page 28, leave out lines 1 and 2

My Lords, I am pleased to introduce a group of amendments that seek to tighten up Clause 28 and make it more effective. I welcome the clause, as I did at Second Reading. We on these Benches definitely welcome the Government’s efforts in this regard but think that there are some issues that need to be taken account of.

I place on record my thanks to Professors Rackley and McGlynn of Durham University for making their research and commentary available to us all, and to End Violence Against Women for its briefing and campaign. I also thank the British Board of Film Classification for coming to the House last week and giving a presentation—which, it has to be said, at times was really rather horrible—to explain how and why it sometimes does not give a classification to rape and extreme pornography. Several noble Lords attended the presentation, and I think that we all now have a greater understanding of where Clause 28 might not quite do the job that the Government intend. This particularly concerns the issue of context, definitions of penetration and realistic rape. I thank the Minister for his time in starting the discussion about these matters, and have suggested that he and the Bill team might also get the BBFC to come and discuss this clause with them; it is not a pleasant experience but it is very enlightening indeed.

I turn to the amendments. Amendment 36A would remove the requirement that the image be grossly offensive, disgusting or otherwise of an obscene character. The current law provides that for an image to be “extreme”, it must also be,

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

The current amendment would preserve this provision. We urge reconsideration of the use of language regarding obscenity. The use of the term “obscene” has long been criticised on the basis that it is typically deployed to capture material that is not only harmful but causes offence and disgust, and is typically focused on the impact on the consumer of material, rather than the wider consideration of harm, which is what this clause is actually about. We suggest that the Government should explore whether their description is compatible with justifying the original Clause 28 on the basis of cultural harm, not obscenity. We also contend that the criminal law is not used to prohibit material on the basis that it is considered disgusting. We recommend, therefore, the removal of the requirement that an image be,

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

Amendment 36B deletes lines 6 to 42, and the following amendments in the group would replace them. Amendment 36B would replace the existing language of the offence, and state that an image would be covered by this clause if it portrayed,

“sexual activity which involves real or apparent lack of consent or any form of physical restraint which prevents participants from indicating a withdrawal of consent”.

Amendment 36C seeks to clarify the definition of a realistic image, and would replace the requirement that the image portrays rape and assault,

“in an explicit and realistic way”,

with a requirement that the image be of,

“real or simulated depictions of”,

rape and assault by penetration.

The requirement that an image is “realistic” does not require the act depicted to be real, although we know that the clause seeks to cover real rape that has been filmed and made available to people. This is why the law refers to images which are “realistic”, meaning those that resemble or simulate real life. The use of the term “realistic” also mirrors international provisions on pornography, which similarly include real and simulated images. Article 9 of the Council of Europe Convention on Cybercrime 2001, on,

“Offences related to child pornography”,

extends to “realistic images”. The notes in our briefing tell us about the inclusion of real and simulated images.

The current laws on extreme pornography, and the proposed new provision, thus cover both real and simulated images. There is little doubt that Section 63(7)(c) of the Criminal Justice and Immigration Act extends to include “realistic” images of necrophilia where the “dead” person is not in fact dead. Similarly, in the proposed new law, a “realistic” explicit image of rape and/or assault by penetration—that is, an image of a simulated rape—should be covered by our amendment. However, in view of the fact that there has been some debate over the meaning of “realistic”, we suggest that this amendment is included in the Bill for the avoidance of doubt. Obviously, in all these amendments, if the Minister has something better to suggest, that would be even more wonderful. An amendment to the effect I have described was moved and discussed in the House of Commons Public Bill Committee. However, it was withdrawn in light of an explanation that the Bill’s Explanatory Notes would clarify that the offence would,

“cover both staged and real depictions of rape or other penetration”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 215.]

This assurance is not sufficient and, for the purposes of clarity, we would much rather see this made clear in the Bill.

Amendment 36D would provide that an image would be caught by Clause 28 if it portrayed any sexual activity involving real or apparent lack of consent. This is also covered by Amendment 36B. This is an important clarification because, as the BBFC showed noble Lords last week, it is possible to have an image that does not involve anyone else except, for example, a woman and no penetration but, because of the depiction and what is being done by binding, gagging, other positioning or other horrible things, this is definitely sexual activity and there is a lack of consent, whether real or apparent. In the terms that the Government have used to justify this clause, the cultural harm of depiction of rape and non-consensual sexual activity would appear to be covered by our amendment. I ask the Minister seriously to consider it.

Amendment 36E would provide that possession of an image of sexual activity would be caught by Clause 28 if it fulfils certain criteria. It refers to sexual activity where a participant,

“is portrayed in such a way as to make them appear under 18”;

where a participant is,

“with someone who is depicted as a member of their immediate family; and … sexual activity incorporating sexual threats, humiliation or abuse”,

which are not part of a “consenting role-playing game”.

Amendment 36F would ensure that the context of an image—the descriptions and sounds accompanying it—is considered when determining whether it is extreme. The BBFC gave us an insight into the need to take context into account, which might include grooming, stalking or other kinds of threatening behaviour that leave no doubt as to what is happening or what is about to happen. Music, sounds, text and banner headlines would also be captured by this amendment.

I ask the Minister to see these amendments in the light in which they are proposed, which is to help to make the clause work better. I beg to move.

I remind the Committee that if Amendment 36B is agreed to, I cannot call Amendments 36C to 36F; if Amendment 36C is agreed to, I cannot call Amendment 36D; and if Amendment 36D is agreed to, I cannot call Amendment 36E, all by reason of pre-emption.

My Lords, I thank the noble Baroness, Lady Thornton, for her amendments to Clause 28, because it is clearly very important we get this right. In particular, I support the principle of Amendment 36C, which clarifies that the images can be “real or simulated”. I know the Government have amended the Explanatory Notes to clarify this point, but it seems to me that what is in the statute will be the key issue when the case is before the courts. With the increasing use of computer-generated images, surely it is right for us to clarify that these images are covered. The importance of such clarification is made in relation to children in the Protection of Children Act 1978 with the definition of “pseudo-photographs”. Why should a similar clarification of “real or simulated” not be made here when we are dealing with extreme pornographic images?

My Lords, I thank the noble Baroness, Lady Thornton, for explaining to the Committee the details of the meeting that a number of us attended last week. It was one of the most horrible meetings I have ever had to attend, but it was extremely informative. It showed the way the BBFC very diligently performs its role and achieves what most people in Britain want to see: it enables adults to view as much as they could possibly wish to—provided that it does not harm anybody else—but it is quite clear in the classification of materials and tries to limit those materials to which it would be preferable that there was no access.

The noble Baroness, Lady Howe, is absolutely right—she has much more experience of dealing with these matters than many of the rest of us. The key factor we kept coming back to was whether something was real or realistic or could be assumed to be real for a number of reasons. We were shown a particularly horrible image that was a cartoon. There was no way that anybody could view it and consider it to be real, but what it showed was truly gruesome. In the end the BBFC had not classified it.

The Minister may say there are different elements in these amendments that are technically deficient. However, I hope that he might be able to accept some of the points being made. This is a work in progress. The way the internet is taking over this form of very adult entertainment is still unfolding; the law is clearly currently way behind the producers of it and needs to be changed. This may not be the definitive answer, but the noble Baroness, Lady Thornton, has put forward some very helpful suggestions.

My Lords, I am grateful for the concern shown by the noble Baroness, Lady Thornton, and other noble Lords over these important provisions, which criminalise the possession of extreme pornographic images depicting rape. I appreciate that the intention behind the amendments is to ensure that we capture the appropriate material.

I also thank the noble Baroness, Lady Thornton, for meeting me, just as she thanked me for meeting her, to discuss these amendments. I was not invited to attend the BBFC meeting. I gather that it was a pretty horrific event, but clearly it has influenced all those who attended and I am mindful of that when considering the amendments.

I assure the Committee that I am aware of the sensitivities involved when discussing the sort of images that we are targeting. These images are at the extreme end of the scale and are most disturbing. Alongside the images targeted, however, there are of course depictions that, while deeply distasteful, might not warrant the full intervention of the criminal law. It is a difficult area but we must ensure that our distaste at some of this material is balanced, rightly, against the legitimate personal sexual freedoms of consenting adults.

Before I address the amendments, I should like to provide some background to the law as it currently stands and our proposals for reform. First, I should make it absolutely clear that the extreme pornography offence is an offence of simple possession, not one of publication, dissemination or broadcast. That is already covered by the Obscene Publications Act 1959. Section 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess some kinds of obscene images. Such images must be pornographic and must explicitly and realistically portray necrophilia, bestiality or violence that is life-threatening or likely to result in serious injury to the anus, breasts or genitals. Clause 28 amends that category of material to include depictions of non-consensual penetration.

The offence was created following a full public consultation. There was considerable concern among respondents, and during the passage of the legislation through the other place, that the offence could have an unwarranted impact on the private sexual behaviour and personal freedoms of fully consenting adults. The offence was deliberately drafted with those sensitivities in mind, and I believe we should bear those in mind here. The offence targets only the most extreme obscene material—for example, images depicting extreme sexual violence and serious physical harm. It was not designed to make it criminal merely to possess every obscene image, however distasteful, although, as I have mentioned, the dissemination of that material will be an offence.

Last year, the Government were contacted by a campaign led by Rape Crisis South London and other women’s groups to extend the existing boundaries of the extreme pornography offence to capture extreme images depicting rape in the same terms as the equivalent Scottish offence. The Government listened to those concerns and agreed to extend the offence.

Against that background, I now turn to consider the amendments in question. Amendment 36A would remove the requirement that images of non-consensual sexual penetration be,

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

in order to be regarded as extreme pornography. Those terms are already well known to prosecutors and courts alike. They were drafted deliberately into the offence, and included in our amendment to that original offence, to ensure that the extreme pornography offence does not criminalise the simple possession of the sorts of images that it would not be illegal to circulate or distribute. To remove this necessity would be inconsistent with other aspects of the criminal law and would result in a possession offence that is too broad.

For convenience, I shall deal with Amendments 36B and 36D together, as they have similar, although not identical, effects. Amendment 36B would replace the Government’s amendments to the extreme pornography offence, including the relevant defence, with a broad provision that would criminalise the portrayal of any sexual activity that involves real or apparent lack of consent or any form of physical restraint which prevents participants indicating a withdrawal of consent. This is very broad. It could have the effect of bringing into the terms of this targeted offence the possession of pornographic images that depict any form of non-consensual sexual activity.

In the light of the balance that this Government have sought to strike with this offence, we believe that such an extension to the offence would be going too far. It would, I believe, widen inappropriately its scope and could make too wide a range of sexual activity subject to serious criminal sanction.

Amendment 36D also seeks to extend the parameters of the existing offence but would retain the necessity that the material be “explicit and realistic”. However, it would still extend the parameters of the offence too far and could capture a wide spectrum of sexual contact.

Amendment 36C seeks to explore the issue raised both at Second Reading and in the other place about the ability of the offence to deal with simulated rape scenes. I assure your Lordships that our provisions as they stand are already capable of covering the depiction of real or simulated non-consensual penetration. Both the amendment and the existing offence cover any portrayal or depiction of the acts in question. While the requirement is that the portrayal is realistic, it does not have to be real. As the noble Baroness, Lady Howe, mentioned, we have clarified this point in the Explanatory Notes to the Bill in response to these concerns.

Amendment 36E seeks to widen the scope of the existing offence to cover depictions that appear to portray incest, underage sexual activity and scenes involving sexual threats, humiliation or abuse. The protection of the country’s children from sexual abuse is a government priority. We have a robust range of offences and sanctions to deal with this truly dreadful offending, and it is a credit to the efforts of this House that our legislation in this area is rightly respected across the world. It is of course right that we keep the law in this area under review to ensure that it is fully equipped to protect our children.

Images of children are not specifically excluded from our extension of the extreme pornography offence, but we already have offences to cover the possession of indecent photographs and films of children. These offences have suitably robust sentencing levels and much lower thresholds in respect of the content of the images than the extreme pornography offence.

Finally, Amendment 36F would add to our provisions a requirement that, when evaluating images for the purposes of the offence, contextual material of certain kinds is taken into account. I appreciate that this reflects the drafting approach taken in the equivalent legislation in Scotland. However, we do not believe that the amendment is necessary: the court is already entitled to take into account all relevant evidence in determining whether material meets, or indeed does not meet, the requirements of the extreme pornography offence. Prosecutors and the courts already take the “context” of images into account when considering the existing extreme pornography offence. I hope that provides some reassurance to the noble Baroness.

The extension of this offence is well structured to ensure that the images we wish to capture fall within its parameters. The extension is in the spirit of the original offence and balances the need to criminalise the most extreme and potentially harmful or damaging material with the need to protect the lawful sexual freedoms and rights of others. Given the sensitivities involved, that balance has not been easy to achieve but I believe that we have achieved it with this reasonable, proportionate and important provision.

For those reasons, while I entirely understand the concerns expressed, the Government do not feel able to support these amendments. I hope that, with those assurances, the noble Baroness will feel able to withdraw her amendment.

I thank the Minister for his considered, if somewhat disappointing, response. The point of the Committee stage of this sort of legislation—the House of Lords is particularly good at this—is to test whether this kind of clause does its job. I appreciate that the Minister thinks it does but I have to say that some of us think that one or two things in this clause need some attention. I am not going to delay the House any further by repeating what they are. The Minister said that the Government thought they had the balance right all the way through. I think there are one or two things to do with context that suggest the Government may not have got the balance right. We do not want to find ourselves in five years’ time with either no prosecutions because we did not get the balance right or with people not being prosecuted because we did not look at the things that experts are telling us are loopholes. Obviously I am happy to withdraw the amendment at this stage—apart from anything else I do not think it and my other amendments are as competent as they should be, for which I apologise—but I fear that we will be returning to this at a later stage in the Bill. I beg leave to withdraw the amendment.

Amendment 36A withdrawn.

Amendments 36B to 36F not moved.

Clause 28 agreed.

Amendment 37

Moved by

37: After Clause 28, insert the following new Clause—

“Offence of publishing a sexually explicit or pornographic image without consent

(1) A person commits an offence if they publish a sexually explicit or pornographic image of another identifiable person (whether or not that person is engaged in a sexual or pornographic act), unless—

(a) the identifiable person consented to publication;(b) the person who published the image reasonably believed the identifiable person would have consented; or(c) the person who published the image has reproduced an image that has already been published by another person. (2) For the purposes of this section it is immaterial who owns the copyright of the published image.

(3) In this section “publish” means to reproduce, share or otherwise distribute an image via the internet or other means.

(4) In this section a person is an “identifiable person” if—

(a) their face is displayed in the image;(b) any other identifiable characteristics are displayed in the image;(c) their name is displayed on, or otherwise connected to, the image; or(d) the image contains any other information by which the identity or address of the person could reasonably be ascertained.”

My Lords, the term “revenge pornography” refers to the publication, usually but not always, on the internet, of intimate images of former lovers without their consent. This thoroughly nasty behaviour generally involves the perpetrator in taking advantage of his or her possession of sexually explicit images, generally taken or obtained in private during the course of an intimate relationship in circumstances where the parties, and certainly the party photographed, had every right to expect that the images would remain private.

Obtaining such images has become more common and much easier with the prevalence, popularity and sophistication of smartphones, with their ability to take or record high quality images, still and video, instantly and simply, with accompanying sound in the case of video. It is set to become even easier to take such images with the advent of cameras installed in glasses and yet further improvement in high definition video cameras in phones.

The widespread publication of such images causes, and is generally intended to cause, distress, humiliation and embarrassment for the victim—hence the name “revenge porn”. She or he—the victims are usually but not exclusively women—face the humiliation of their most private moments being exposed to family, friends, employers and the world at large. It is entirely predictable that such exposure can cause serious psychological and emotional damage even to those with robust personalities. Suicides as a result of such publications have been recorded. Worse still, the damage may often be increased because it follows the trauma of relationship breakdown and is caused by someone with whom the victim had previously been close. Publication can cause havoc in personal and family relationships and in relationships at work. The betrayal and the hurt it causes could hardly be worse. Such behaviour has been characterised by academics in the field as a form of abuse and I suggest that such characterisation is entirely accurate.

I have no hesitation in concluding that this practice should be criminalised and in asking your Lordships to pass legislation accordingly. I was therefore extremely pleased that in response to our Second Reading debate my noble friend the Minister indicated that the Government would be open to amendments of this Bill to that effect. I was also delighted when my noble friends Lady Berridge and Lady Morris of Bolton laid their Amendment 40, which is also in this group. I hasten to add that in my view there is neither magic nor any monopoly of wisdom in any particular wording. The point is to secure legislation to criminalise such behaviour with the most appropriate statutory language that can be found. I would mention, however, that I do have some concerns about my noble friends’ formulation of the proposed offence, to which I will come in a moment.

I will explain the draft clauses in our amendments. The offence would be committed by publication of an image that is sexually explicit or pornographic; the publication would have to be of an identifiable person as defined; it would have to be without the consent of that person or at least in circumstances where the perpetrator did not believe he had such consent; and the image must not have been published before. It would be a defence for the perpetrator to prove that he believed he had the consent of the person in the image or that the publication was unintentional. The offence would be triable either way and would carry a maximum sentence of 12 months’ imprisonment and/or a fine on indictment or six months and/or a fine on summary conviction.

The mischief to which these proposed clauses are directed is fairly and squarely the publication of the image. The criminal behaviour is the publication and the effects we seek to avoid are the hurt, humiliation and distress caused to the victim by such publication.

I have three doubts about the formulation of the offence proposed by my noble friends Lady Berridge and Lady Morris of Bolton. The first is that in their draft clause an offence would be committed only if the publisher intended that someone looking at the image did so for the purpose of obtaining sexual gratification. That may be an undesirable consequence of publication, but in our view such intention is irrelevant to the criminality of the publisher. What we wish to target is the humiliation of the victim and that is the same whether or not there is any intention of affording sexual gratification to third parties.

Our second concern is that for the offence to be committed under their formulation it would be necessary for the image to portray the person portrayed in it doing a private act, defined as a sexual act not of a kind ordinarily done in public. For an image to cause real distress, it is not necessary for the subject of the image to be actually engaged in a private act. The fact of being exposed naked or semi-naked in a compromising position or in compromising circumstances may be just as devastating. It does not seem to us that a sexual act should have to be portrayed in the image before an offence could be committed.

Finally, and I accept less importantly, we are not convinced that it should be necessary for the person in the image to be exposed or semi-exposed in the way described in my noble friends’ proposed new subsection (3)(c)(i) for an offence to be committed. While I can see that an image of a person not so exposed is unlikely to be reasonably classifiable as sexually explicit, I am not sure that can be ruled out and I suggest the requirement is unnecessary.

However, the important thing is to secure the criminalisation of this behaviour. Long gone are the days when we should regard physical harm as a necessary ingredient of an offence against the person. The degree to which malicious individuals can hurt innocent victims by publication on the internet of images of their most intimate moments is ample justification, I suggest, for our invoking the criminal law to prevent and punish such behaviour. I beg to move.

My Lords, I rise to speak to Amendment 40 in this group. It seeks to introduce a new criminal but also sexual offence of posting on the internet what has been outlined as revenge pornography. This is one of those rare situations where I do not advise noble Lords to go on to the internet to look first-hand at these sites; they are truly appalling. As my noble friend Lord Marks has outlined, this is a growing problem that affects mainly women, particularly when naked or sexually explicit pictures or videos of them have been posted on the internet without their consent. Obviously these images are put online almost exclusively by ex-partners, and there is generally an intention—which is why our clause is drafted as it is—to sexually humiliate the former partner. Often the contact details of the victim as well as sexually abusive or malicious comments are added when the image is posted.

There are dedicated websites that are easily accessible; this is not a niche problem. The UK Safer Internet Centre, which is working in this area, has stated that some 20 to 30 websites in the United Kingdom are hosting this type of material. Apparently it has become a consumer product on pay-per-view. Many of the websites attract huge volumes of traffic, and the more often an image is looked at, the more likely it is that when you Google search your own name, the first thing that will come up in connection with your name is these images that have been posted, which is particularly degrading.

These are pictures that the victim may regret were taken in the first place, but, as my noble friend outlined, there would have been every expectation that they were private and would not be viewed, sometimes within days, by thousands of people on the internet, including perhaps work colleagues and friends at the school gate. Of course, the impact can be devastating. Victims have described that they feel like they have become a porn star without their knowledge or consent. There are also devastating impacts on employment prospects as well as on personal reputation and career.

This is another situation where the law has not quite kept pace with the internet. I am grateful for my noble friend’s contribution to the drafting of the proposed new clause, which is based on the offence of voyeurism. I hope that the Minister will take all of these proposed clauses away in order to consider what would be the most appropriate formulation. However, we would submit that this should be classified as a sexual offence. Currently, these matters do not fall within the ambit of the Protection from Harassment Act 1997 because they are not a course of conduct. They are also not caught by the Obscene Publications Act 1959 because the images are not always classified as being obscene.

It is important not only to make this behaviour criminal, but for the police to know that it is a criminal act in order that they can take action at police level and against the internet service providers. Once this is an offence, they will have a mechanism by which to remove these images, because many victims are complaining that without such clarity, they find that although they make submissions to the internet service providers again and again, the images are not being removed from these websites. Of course, the longer they remain posted, the greater the damage that is done to the victims.

At this point I wish to pay tribute to the very brave women who have put their head above the parapet and have spoken out in order to bring attention to this issue. I mention in particular Laura Higgins and the work of organisations such as the UK Safer Internet Centre. I am also pleased that Women’s Aid, Welsh Women’s Aid and Scottish Women’s Aid all support the amendment tabled by myself and my noble friend Lady Morris. Although this matter was not raised in the other place, honourable Members including my right honourable friend Maria Miller hosted an adjournment debate in June to bring it to the attention of Members of Parliament.

At the moment, Amendment 40 does not include any reference to penalties, but I hope that my noble friend will consider the similar offence of voyeurism, which carries with it a sentence of imprisonment of up to two years. We believe that this offence should attract the same scale of penalty. It is only by showing our abhorrence of the sexual abuse of these people that they will be able to secure justice.

This type of behaviour is becoming an ever more pressing problem, and other countries such as the United States and Israel have had to bring forward legislation to catch it. I believe that we should take this opportunity and I am grateful that the Minister is in listening mode in relation to this matter. I hope that that we can come up with an acceptable formulation of what the offence should be in order to offer these victims some protection.

My Lords, I apologise for having been unable to attend Second Reading. I will speak in particular in favour of Amendments 37, 38 and 39. To hear people talk about revenge porn, you would think it had only just been invented, but the divorce in 1963 of the Duke and Duchess of Argyll involving the infamous image of a headless man tells a different story. The dramatic difference is that of course today we have the ability to reproduce a picture a thousand times without the permission of the individual concerned. I will focus on one aspect of this, which is the motive to hurt or humiliate the individual.

I do not believe that on the whole the motivation is sexual gratification, as outlined in Amendment 40. Perhaps I may put before the Committee three case studies that will help to illustrate this. The first is of a lady who was with her partner for two years. They planned to buy a home together so it was a trusting relationship, but after it broke down, her ex published photos of her and labelled her as a “whore” and a “slut”. He even set up an identity pretending to be her and invited humiliation and insults. When she went to the police they were unable to help, and the website refused to remove the images, in spite of regular requests.

The second example is that of a woman whose images were posted on a website called myex.com. The images spiralled from website to website gathering views, comments, abuse and humiliation. While some porn sites actually responded to the woman’s specific requests to remove the images, myex.com did not. She currently remains terrified of family and work colleagues seeing the images. We need to be conscious of the fact that men can also be victims, although most are women. I cite the case of a 29 year-old man who exchanged images having been sent fake images by his girlfriend. His ex has shared them, particularly with his work colleagues.

These cases are ones that involve not naïve teenagers—although obviously I believe that they should be protected as well—but people who have been in trusting relationships where the trust has broken down. What has been done is something that we should clearly define as a crime. These people are our sisters, brothers, daughters and sons, and what they need is protection against these vile acts that are committed without their consent. The inflicting of pain and humiliation is the only motive, and the individual who publishes such images should know that when they do it, they are committing a crime. I hope that the Minister will reflect that when he considers a possible amendment to the Bill.

My Lords, I support the principles behind Amendments 37 and 40. The internet, as we all know, is a fantastic resource, but it can also be a source of harm to children and, in this case, to adults. Noble Lords were clearly grateful for the very positive spirit with which the Minister, the noble Lord, Lord Faulks, agreed to consider suggestions for tackling revenge pornography when the issue was raised at Second Reading, and I hope very much that he will continue to work with the noble Lord, Lord Marks of Henley-on-Thames and the noble Baroness, Lady Berridge, and other noble Lords who are interested in these amendments. We must make sure that a robust solution is found to this increasingly worrying problem.

My Lords, it is important that this proposed new clause is drawn with real care. While I hear the discussions about the motivation to degrade and humiliate or to secure sexual gratification, it is important to draft widely without specifying the nature of the motivation. That is because it is always difficult to pin down motivation. A case in Canada is currently attracting a great deal of public attention in which a woman judge has been suspended from the judiciary while an inquiry takes place because her husband put on to the web images of her that had been taken in intimacy.

The concern for the judiciary is that this undermines her authority in the courtroom, because these images are available. It is, if you like, bringing the judiciary into disrepute. The consequences for her life are therefore considerable. It is an interesting and rather difficult debate in Canada. She has remained with her husband and seems to have forgiven him for his transgression, but the issue has moved beyond the pair in the relationship to be an issue of public concern.

I urge that we think about the implications of the drafting. In Canada, a woman’s career has been held in abeyance. She has remained in a marriage because of her commitment to it, but certainly it is causing problems. It is really an issue about consent: has a person consented to the disclosure of intimate photographs? It is not an issue of speculating about what the motivations might be.

My Lords, my noble friend Lady Berridge set out strongly the case for Amendment 40 with which I am associated—namely that the appalling act of revenge pornography should be a serious sexual offence. I take on board what my noble friend Lord Marks and the noble Baroness, Lady Kennedy, said about the drafting. Neither of us would seek to be draftsmen, but we should make sure that we capture whatever needs to be captured in these amendments.

I was unable to speak at Second Reading but this is a matter that concerns me and rightly concerns many in your Lordships’ House. The issue is how we address that concern. The amendments brought forward by my noble friend Lord Marks would classify the online posting of revenge pornography as an ordinary criminal offence. This fails to recognise the sexual nature of the crime and the impact that it has on the victim, which is a clear violation of the victim’s dignity. Further, this failure to recognise the gravity of the sexual offence leads to an unduly lenient penalty, allowing for imprisonment for no more than 12 months. The courts must have adequate sentencing powers to reflect the severity of this act. For these reasons, I press strongly for this crime to be classified as a sexual offence.

Revenge is a horrible and destructive motive generally, driven as it is by anger, malice and cruel calculation. Perpetrators choose many ways to pursue their revenge, such as harassment, stalking, humiliation through social media by posting malevolent or hurtful comments or spreading rumours concerning work, family or finances in order to ruin reputations. But the greatest betrayal is to choose to use naked or sexually explicit images that should be a private and deeply personal matter between a couple and which were never intended to be seen by anybody else. In this way, the perpetrator commits an act of sexual abuse against the ex-partner, specifically designed to subject them to humiliation and degradation.

If we look at the criminal offence of sexual assault under Section 3 of the Sexual Offences Act 2003, we see that:

“A person (A) commits an offence if he intentionally touches another person (B) … the touching is sexual … B does not consent to the touching and … A does not reasonably believe that B consents”.

To my mind the posting of revenge pornography online is in essence a virtual form of sexual assault since the perpetrator is intentionally posting the naked or sexually explicit image without the subject’s consent, the posting of the image is sexual in nature, the subject does not consent to the posting and the perpetrator does not reasonably believe that the subject of the image consents.

Victims of revenge pornography face extraordinary difficulties, as we have heard, in trying to have their photographs taken down from websites set up specifically to display this type of material. Clearly criminalising this type of activity should give an incentive to internet service providers and search engines to take material down. As things stand, some victims have had to pay so-called fees of hundreds of dollars to host websites based in the United States just to have their photograph taken down from the site.

The law needs to set out clear boundaries about what is and what is not acceptable behaviour, including sexual behaviour. As technologies change, we need to ensure that we keep up with changes in behaviour. This is why we should take this opportunity to recognise revenge pornography as a sexual offence.

My Lords, I added my name to Amendments 37, 38 and 39 and I shall not repeat the very good points made by my noble friends Lord Marks and Lady Grender. I shall start from the point at which my noble friend Lady Grender ended: namely, the activities among our teenagers and very young adults which may not always be fully sexually explicit, and certainly may not be intended to be pornographic. A large number of students both in schools and colleges are being asked by their boyfriends or sometimes—though it is unlikely—girlfriends to have photographs taken of them which I am afraid are being used against them. The noble Baronesses, Lady Berridge and Lady Morris, made valid points about the distinction between different types of photograph. It may be that that will be addressed in the discussion that I hope the Minister will have with those who have put forward both sets of amendments.

The principle in our amendments is clear: that the crime is the publication of those photographs or other electronic media, because it is that over which the person in the photograph feels they completely lack control. It is used as a form of abuse. Increasingly what is used as a key element in cases of stalking—indeed this morning there is a case in the paper for which a court date has just been set in December in Scotland—is the threat to publish not only publicly but also among family and friends. The key point of our amendment is that when it becomes a tool of abuse, that in itself should become a crime.

Because this is about making a law, there is, understandably, little focus on the victim. I will highlight the work that the NSPCC and ChildLine have been doing with young people. They have a very good app called Zipit that is intended to teach secondary school pupils how to respond if their boyfriend or girlfriend asks them for a photograph that is inappropriate, using silly photographs and silly text underneath that might say something like, “You’re having a laugh”. That is beginning to work. The work that PSHE staff are doing in schools to make young people understand the dangers of this are vital if we are not to end up with a generation of young people thinking that it is acceptable to play at this. When they get into stronger relationships where they may have a partner over some period of time it will be second nature; then, if they want to get their own back, we will end up in a position where these sexually explicit photographs start to be exported.

I am concerned that one thing that we have not looked at is the circulation of the image after initial publication. There has been some discussion online about trolling and about abuse of the victims by others. I hope that the Minister will be prepared to look at this. It may be difficult to pin down who has circulated the image but we have seen, in recent cases of trolling, that people who have recirculated offensive and defamatory literature can be taken to court for continued publication. That should also be true in this case.

My Lords, I will address the point made by the noble Baroness, Lady Kennedy of The Shaws, that the way in which this amendment is worded is of the utmost importance. Our amendment tries to focus not on the definition of what is pornographic but on the act of revenge. That is why, in our amendment, we have concentrated on the initial posting of an image rather than the reproduction or the recommunication of it, because the act of revenge happens in the initial posting.

To respond to the noble Baroness, Lady Berridge, we have no problem with making this a sexual offence. Quite clearly it is. We do have a number of problems with the way in which her amendment is drafted. For example, it requires that the image be of the two people involved, but you can make a very good attempt at ruining somebody’s life by producing pictures of them with somebody else. I did not think that we would get to the headless man today, but we have—the point there was precisely that it was not the two people in the relationship.

The noble Baroness, Lady Kennedy, is right to make us focus on consent. There are a lot of people out there who one would best call amateur pornographers and who actually want to share the lives on the web. I do not know why, and do not ever want to see it or have anything to do with it, but they do. It should therefore be a defence that they had reason to believe that there was consent on the part of the other person. However, if we are going to make this sufficiently robust and—what we really want it to be above all else—a deterrent that makes it absolutely clear to people who are thinking of committing such an act that they may go to prison, she is right that we need to focus on that. Our amendments are not perfect but they take us quite a long way to where we want to go.

My Lords, this has been a very good and interesting debate. We on these Benches support the principle of bringing forward legislation, probably along the lines that my noble friend Lady Kennedy suggested. We do not think that either of these amendments get us to the point where we want to be, as I think those who tabled them would admit, but they take us along that road and I hope we will see something emerge that does get us there.

Images described as “revenge pornography” are indeed a form of harassment and abuse. They constitute stalking and are humiliating. However, as well as a specific offence, what is also needed is the strong political will to tackle the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms. That requires not only a government commitment to headline-making legislative reform but to ensuring effective implementation of any new offence and bringing forward compulsory sex and relationship education in our schools. The noble Baroness, Lady Brinton, referred to what goes in our schools. It is not good enough that this is done by voluntary organisations; it should be part of our curriculum. For the protection of our children, it really needs to be mandatory in our schools.

We on these Benches have problems with both these amendments, for different reasons, some of which have already been mentioned. For example, the amendment in the names of the noble Baronesses, Lady Berridge and Lady Morris, says that to commit the offence, the defendant must distribute the images,

“with the intention that he or a third person will”,

gain “sexual gratification” from doing so. That provision is problematic. As it is framed, no offence will be committed if the defendant discloses the image with a view purely to humiliate and embarrass the person in it. The motivation behind revenge porn is not typically to distribute pornography but to humiliate, embarrass and harass the victim. We need legislation that emphasises that, not the pornography aspect.

Likewise, with the amendment in the name of the noble Lord, Lord Marks, and his colleagues, we do not see why the offence should be limited to the circumstances where the individual is identifiable. As noble Lords have said, the motivation for this offence is to harass and abuse victims, and the harm will be done whether or not he or she is identifiable to others. There is some work to be done and, because we will have a long summer break before Report, I hope that we have time to undertake it. We on these Benches would be very happy to help to do that.

My Lords, this has been a very useful debate indeed. I will deal with Amendments 37, 38, 39 and 40 together, as they are clearly designed to deal with broadly the same issue, albeit in slightly different ways. They all seek to create a new offence banning the uploading or publishing of material that has come to be known as “revenge porn”. First, I will say that I have great sympathy for the intention that lies behind these amendments, as I said at Second Reading. The posting or publication of intimate material is despicable and cowardly, and we must ensure that such behaviour is appropriately dealt with by the criminal law.

Revenge porn is a broad term used to describe a range of offending behaviour. Usually, it involves an individual, often an adult ex-partner, uploading on to the internet sexualised images of the victim to cause them distress. Although revenge porn does not always specifically involve content that would be regarded as obscene, there is no doubt that the online sharing of intimate images without the subject’s consent can cause great distress and upset to the victim. Some of these images are posted widely across the internet and are often extremely difficult to remove.

Amendment 37 would create a new offence making it illegal to,

“publish a sexually explicit or pornographic image of another identifiable person”.

The new offence would be subject to a 12-month maximum prison sentence. Amendment 40 creates a new offence to capture revenge porn by amending the Sexual Offences Act 2003, although the proposed new section does not provide for a penalty for the offence. In addition, it only captures images of another person doing a private act that are shared with the intention that the publisher, or a third person, will obtain “sexual gratification” by looking at them. It would not therefore capture all types of revenge porn, such as images which are being posted not for sexual gratification but with the intent of causing maximum distress or damage to the victim.

I assure your Lordships’ House that laws already exist that capture many instances of uploading or sharing such material. The Government encourage any members of the public who have been a victim of this behaviour to contact the police. All published material, both online and offline, is subject to the Obscene Publications Act 1959, which would cover the distribution of particularly extreme material that has been uploaded on to the internet. We also have in place other communications offences that might equally apply to this behaviour. If the content is grossly offensive, indecent, obscene or menacing it may fall foul of Section 127 of the Communications Act 2003, which makes it an offence to send such material over a public telecommunications network.

In addition, depending on the content, posting this material may be an offence under Section 1 of the Malicious Communications Act 1988, the sentence for which the Bill will increase to two years’ imprisonment. The distribution of this material, if carried out as part of a “course of conduct” which alarms a person or causes distress, could amount to a criminal offence under the Protection from Harassment Act 1997. That Act also provides civil remedies that would prevent more material from being distributed. Lastly, I assure noble Lords that if revenge porn images are of children under the age of 18, then very robust legislation dealing with indecent images of children would come into play.

However, notwithstanding this, the Government are carefully considering what more needs to be done to combat this very damaging behaviour. We are listening to campaigners, including those from across the House, and looking urgently at the best way to address the behaviour that these amendments seek to criminalise. This includes raising awareness of these issues, looking at the existing framework of criminal offences and ensuring that the relevant authorities are adequately equipped to take enforcement action when needed.

If new legislation is required, we must ensure that we address all the issues involved to ensure that we properly target the material that is causing concern and that we capture only the relevant behaviour. This requires detailed consideration and care, as has been widely acknowledged during the debate. Although there is a degree of consensus about what evil we are trying to seek out and criminalise, exactly how we capture it is a complex problem. This debate will certainly help the analysis that will take place in the month or two that follow, and I would of course be happy to see any of those concerned to ensure that we capture adequately and appropriately the behaviour at which these amendments are directed. We will take away these amendments and return to the House with our conclusion at a later stage of the Bill. In the mean time, in thanking all noble Lords for their participation in the debate, I urge that the amendment be withdrawn.

My Lords, I am grateful to everyone who has spoken in this debate, and to the Minister for his strong indication that legislation will be forthcoming. It is clear that there is consensus on the nature of the problem and on the proposition that legislation is required to deal with it. I entirely accept the point of the noble Baroness, Lady Kennedy, that it is important not to set the hurdle too high by requiring the motivation to be established. Our amendments did not do that. I also entirely accept the point made by my noble friends Lady Berridge and Lady Morris of Bolton that it may be sensible to record this as a sexual offence, to enable the consequences of it to be followed through.

I also take the point the Minister makes—that some offences already capture some elements of this kind of behaviour. However, he plainly accepted that this is not true of all such behaviour and, because the offence is so unpleasant and the consequences so bad, it seems clearly proved that we need a separate offence. I look forward to us all co-operating and trying to word this appropriately. I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendments 38 to 40 not moved.

House resumed. Committee to begin again not before 7.01 pm.

Ukraine (Shooting Down of MH17) and Gaza

Statement

My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:

“Mr Speaker, this is the first time the House has met since the tragic loss of Malaysian Airlines flight MH17 last Thursday and I think that it is right to make a Statement about this and the ongoing crisis in Israel and Gaza. Flight MH17 was travelling from Amsterdam to Kuala Lumpur when it was shot down by a surface-to-air missile over eastern Ukraine. All 298 people on board were killed. It includes 10 of our own citizens, as many as 80 children and victims from nine other countries, including 193 Dutch citizens. It also includes members of an Australian family who had lost relatives on Malaysian Airlines flight MH370 earlier this year.

From Adelaide to Amsterdam, from Kuala Lumpur to Newcastle, we are seeing heart-wrenching scenes of grief as communities come together to remember their loved ones. I am sure the whole House will join me in sending our deepest condolences to the friends and families of everyone affected. Alongside sympathy for the victims, there is also anger. There is anger that this could happen at all; there is anger that the murder of innocent men, women and children has been compounded by sickening reports of looting of victims’ possessions and interference with the evidence; and there is rightly anger that a conflict that could have been curtailed by Moscow has instead been fomented by Moscow. This has to change now.

In the last few days I have spoken to Presidents Obama and Hollande, Chancellor Merkel, and the Prime Ministers of the Netherlands, Malaysia, Poland and Australia. We are all agreed on what must happen. First, those with influence on the separatists must ensure that they allow the bodies of the victims to be repatriated and provide uninhibited access to the crash site to enable a proper international investigation of what happened to flight MH17. Secondly, President Putin must use his influence to end the conflict in Ukraine by halting supplies and training for the separatists. Thirdly, we must establish proper long-term relationships between Ukraine and Russia, between Ukraine and the European Union, and above all between Russia and the European Union, NATO and the wider west. Let me take each of these points in turn.

The first priority remains ensuring proper access to the crash site to repatriate the bodies and investigate what happened. The UK has sent air accident investigators and a police-led victim identification team to help with the international effort. The Ukrainian Ministry of Emergency Situations has now searched an area of 32 square kilometres around the crash site and recovered 272 bodies. The work has been made more difficult by the presence of armed separatists. The bodies sitting on a refrigerated train have still not been allowed to leave. The pictures of victims’ personal belongings being gone through are a further sickening violation of this already tragic scene.

It is welcome that international experts have been able to visit the site, but this should not have taken four days, and even now they are still not getting the unimpeded access that they need. I spoke to President Putin last night and made it clear that there can be no more bluster or obfuscation. We expect him to help right now by using his influence with the pro-Russian separatists to secure full access for international investigators and to support the repatriation of the bodies, by handing them over to the appropriate authorities and ensuring they are treated with dignity.

Families want information and answers and we must make sure we get them. The UK and Australia have tabled a joint resolution at the United Nations Security Council demanding proper access in support of a credible international investigation, and we expect this resolution to be voted on this evening. Secondly, I also made it clear to President Putin that we expect Russia to end its support for the separatists and their attempts to further destabilise Ukraine. No one is saying that President Putin intended flight MH17 to be shot down—it is unlikely that even the separatists wanted this to happen—but we should be absolutely clear about what caused this terrible tragedy to happen.

The context for this tragedy is Russia’s attempt to destabilise a sovereign state, violate its territorial integrity and arm and train thuggish militias. Over the past month there has been an increasing amount of heavy weaponry crossing the border from Russia to separatist fighters in Ukraine. There is evidence that Russia has been providing training to separatist fighters at a facility in south-west Russia, including training on air defence systems. Seconds before flight MH17 dropped out of contact, a surface-to-air missile launch was detected from a separatist-controlled area in south-eastern Ukraine. According to expert analysis, an SA-11 is the most likely missile type.

In an intercepted conversation, a known separatist leader was overheard claiming that a separatist faction had downed an aircraft. Another separatist leader claimed on Twitter to have shot down an aircraft at about the same time, while a video on social media over the weekend showed an SA-11 missile system, missing at least one missile, travelling back towards Russia. Those who argue that the Ukrainians could be responsible need to explain all of this. In addition, there is no evidence that Ukrainian forces have fired a single surface-to-air missile during the conflict and no Ukrainian air defence systems appear to have been within range of the crash. By contrast, pro-Russian separatist fighters have downed more than a dozen Ukrainian aircraft over the past few months, including two transport aircraft, so the picture is becoming clearer and the weight of evidence is pointing in one direction: MH17 was shot down by an SA-11 missile fired by separatists.

Thirdly, this is a defining moment for Russia. The world is watching and President Putin faces a clear choice in how he decides to respond to this appalling tragedy. I hope that he will use this moment to find a path out of this festering and dangerous crisis by ending Russia’s support for the separatists. If he does not change his approach to Ukraine in this way, then Europe and the west must fundamentally change our approach to Russia. Those of us in Europe should not need to be reminded of the consequences of turning a blind eye when big countries bully smaller countries. We should not shrink from standing up for the principles that govern conduct between independent nations in Europe and which ultimately keep the peace on our continent. For too long, there has been reluctance on the part of too many European countries to face up to the implications of what is happening in eastern Ukraine. It is time to make our power, influence and resources felt.

Over the weekend, I agreed with Chancellor Merkel and President Hollande that we should push our partners in the European Union to consider a new range of hard-hitting economic sanctions against Russia. We should take the first step at the Foreign Ministers’ meeting in Brussels tomorrow. If Russia does not change course, then we must be clear that Europe must keep increasing pressure. Russia cannot expect to continue enjoying access to European markets, capital, knowledge and technical expertise while she fuels conflict in one of Europe’s neighbours. We must do what is necessary to stand up to Russia and put an end to the conflict in Ukraine before any more innocent lives are lost.

Let me now turn to the ongoing crisis in Israel and Gaza. The crisis was triggered by Hamas raining hundreds of rockets on Israeli cities, indiscriminately targeting civilians in contravention of all humanitarian law and norms. In the last fortnight, Hamas has fired 1,850 rockets at Israeli cities. This unprecedented barrage continues to this moment, with Hamas rejecting all proposals for a ceasefire, including those put forward by the Egyptian Government.

I have been clear throughout this crisis that Israel has the right to defend itself. Those criticising Israel’s response must ask themselves how they would expect their own Government to react if hundreds of rockets were raining down on British cities today. But I share the grave concern of many in the international community about the heavy toll of civilian casualties. The figures are very disturbing. Over 500 people have now reportedly been killed in Gaza and over 3,000 people injured. The UN estimates that over 83,000 people have been displaced so far. Israel has also faced loss of life, with 18 soldiers and two civilians killed, including 13 soldiers yesterday alone.

I spoke to Prime Minister Netanyahu again about this crisis last night. I repeated our recognition of Israel’s right to take proportionate action to defend itself and our condemnation of Hamas’s refusal to end its rocket attacks, despite all international efforts to broker a ceasefire. But I urged him do everything to avoid civilian casualties, exercise restraint and help find ways to bring this situation to an end. Prime Minister Netanyahu made clear that Israel had been ready to accept each of these ceasefire proposals and had unilaterally implemented a temporary ceasefire in the hope that Hamas would follow suit. My right honourable friend the Foreign Secretary has spoken to President Abbas to welcome his support for a ceasefire and underline our wish to see the Palestinian Authority back in Gaza.

The UN Security Council met in a special session last night and issued a call for an immediate ceasefire. The council expressed serious concern about rising casualties and called for respect for international humanitarian law and the protection of civilians. We strongly endorse that call. It is vital that Hamas recognises the need to enter serious negotiations to end this crisis. In particular, we urge Hamas to engage with the ceasefire proposals put forward by the Egyptian Government. It is only by securing a ceasefire that the space can be created to address the underlying issues and return to the long and painstaking task of building the lasting and secure peace that we all want to see. I commend this Statement to the House”.

That concludes the Statement.

My Lords, I am grateful to the Leader of the House for repeating the Statement made by the Prime Minister in the House of Commons. I am also grateful to the Chief Whip for extending the time for Back-Bench questions to 30 minutes.

The shooting down of MH17 over the skies of Ukraine was a tragedy which shocked the world. From these Benches, I join the Leader in expressing our heartfelt and deepest sympathy to the relatives of those who lost their lives. We share the feeling of anger mentioned in the Statement. We have all been greatly saddened and dismayed by the images of the site, strewn with bodies and belongings, telling the tale of what was normality and hope but is now despair and destruction.

We have been outraged about the way in which the site has been dealt with—first, access barred to the OSCE by drunken rebels, then the site left open for anyone to trample over and the casual indifference in how the bodies of the deceased have been handled. These are the remains of human beings who were loved by families and friends. One can only imagine what it must be like for them to see the disregard and disrespect with which their loved ones are treated.

The families face not only grief and loss but at the same time multiple practical issues. I would therefore ask the noble Baroness if the Government will identify a senior Minister to co-ordinate support for them—as was done by my right honourable friend Tessa Jowell after 9/11, 7/7 and the tsunami. I would be grateful for an assurance from the noble Baroness that the Government will do everything they can to enable the international community to help secure the site, repatriate the bodies and gather the evidence that shows who is responsible. We welcome the resolution of the United Nations Security Council this evening. Does the noble Baroness agree that as soon as the investigation into the disaster is complete there should be an emergency meeting of European Heads of Government to consider what further steps should be taken?

It would appear that international civil aviation regulators imposed no restrictions on crossing this part of eastern Ukraine. Could the noble Baroness confirm that the necessary safeguards are now in place over this area—and also over any other conflict zone in the world? The evidence is growing that this was not simply a tragedy but a terrible crime. In light of the vile attack on flight MH17, can the Leader say whether there is now any specific travel advice to British citizens planning to go abroad?

This is the moment for a strong and determined EU to step up to its responsibilities and confront Russian actions. Europe must show its sorrow but also its strength. If we, the European Union—born out of conflict and with a mission to keep peace—act together, we can and will be strong. So I welcome the Prime Minister’s commitment to seek a toughening of EU sanctions against Russia at tomorrow’s European Council meeting. Can the noble Baroness tell us what measures the Government want to see considered? Will the Government support decisive steps to extend sanctions, not just against specific individuals but also against Russian commercial organisations to dissuade President Putin from the supply of arms and support for the separatists that he is now providing across the Russian border?

Turning to the horror unfolding in Gaza, I am sure that other noble Lords, like me, wept when witnessing on our television screens the unnecessary death and destruction which grows by the hour. It is intolerable to see the harrowing images of hospitals overwhelmed, mortuaries overflowing and parents devastated as they cradle their dying children. With each day the situation worsens.

Since the start of this conflict, 20 Israelis have been killed—18 of them soldiers. More than 500 Palestinians have been killed, including countless innocent young children. Their short lives ended in the most brutal and horrific of circumstances. No one would suggest that reducing this conflict to a ledger of casualties is right but I am sure the whole House would agree that we must acknowledge the scale of the suffering in Gaza. The life of a Palestinian child is worth just as much as the life of an Israeli child. Every death will fuel the hatred, embolden Israel’s enemies and recruit more supporters to terrorist groups. We abhor the firing of rockets by Hamas into Israel and we abhor the escalation of Israeli military action. Both must cease. It is innocent people who are suffering most.

The Israelis have the right to live without constant fear for their security; the people of Gaza have a right to live with dignity and peace. We stand up for Israel’s right to defend itself but does the noble Baroness agree that self-defence must be proportionate? The escalation of military action will not bring Israel lasting security. Rather, it deepens the insecurity and brings suffering and death to individuals and the devastation of innocent lives. Does the noble Baroness agree with the Secretary-General of the UN, Ban Ki-moon, that we must continue to press for an immediate ceasefire, an immediate end to the Israeli military operation in Gaza and rocket fire by Hamas, that all sides must respect international humanitarian law and that Israel must exercise maximum restraint? Does the noble Baroness share the concern expressed about Israeli use in Gaza of flechette shells, which spray out thousands of lethal metal darts? I am sure the whole House will agree that the only way to avoid the cycle of violence and perpetual insecurity in the region is to address the root causes of the conflict, and that there must be an immediate return to the negotiating table, and talks for a two-state solution. In the words of Mr Ban:

“Israelis but also Palestinians need to feel a sense of security. Palestinians but also Israelis need to see a horizon of hope”.

My Lords, I welcome the response of the noble Baroness, Lady Royall, to this Statement and for her support. I think it is fair to say that we both speak for the whole House in sending our heartfelt condolences to the families of the victims of the appalling incident in Ukraine. At moments such as this, both Houses of Parliament, the Government and the Opposition speak with one voice to ensure that the deceased are treated with respect and dignity. Above all else it is a matter of human decency that recovery officials in eastern Ukraine are allowed to get on with the task of repatriating the bodies of the deceased and of investigating the crash site fully and unhindered.

I turn now to the noble Baroness’s questions. She asked whether we would identify a senior Minister to co-ordinate support for families. I can confirm that Mark Simmonds, who is the relevant Minister of State in the Foreign Office, is that person. The Prime Minister also said this afternoon, in another place, that he would also want to discuss directly with the families how best we can take care of their needs and concerns.

The noble Baroness asked whether there should be an emergency meeting of the European Council Heads of Government. The Prime Minister has not ruled out such a meeting but tomorrow evening the meeting of European Foreign Ministers takes place, and it is in that forum that we should set out the tough measures necessary to show that Europe is very firm and resolute in its requirements from Russia.

The noble Baroness also asked about specific travel advice for those planning to go abroad. Eurocontrol is the organisation that sets parameters for where aeroplanes can or cannot fly, while we give advice about individual countries where citizens should or should not travel to. This information is set out on the Foreign Office website, where it is regularly updated.

The noble Baroness asked about sanctions. Clearly, I agree with her that this is a moment of reckoning for Europe and I hope the European Council will not be found wanting. Regarding specific steps that should be taken, we already have what we describe as tier 2 sanctions, some of which are already in place, and the Prime Minister has said that more can be done, which might include naming individuals and increasing the number of asset freezes and travel bans. When the Prime Minister was at the European Council last week, he suggested that this could be broadened to include cronies and oligarchs around President Putin and other leaders—even those without a direct link to Ukraine and Crimea. He made some progress on that and hopes to make more.

The Prime Minister also said this afternoon that it is time to go into tier 3 sanctions, which might extend, for example, to stopping future military sales by any European country going ahead. We have already stopped sales from Britain. There are a number of other suggestions about airlines and banks, particularly ones connected with Crimea, that have not yet been acted on. There are, therefore, a whole set of things which should be set in train and a very clear message sent.

I turn now to the points the noble Baroness made about Gaza. It is most important to stress from the start that the loss of any innocent civilian life is a tragedy and I wholeheartedly endorse her comments about that. The first priority must be a ceasefire and an end to the bloodshed on both sides. I agree that we should not look at this—I think she described it thus—as a ledger of casualties. It is, rather, a deeply human tragedy and what is happening in Gaza is heartbreaking. In the longer term—beyond an immediate ceasefire—we want an end to this cycle of violence once and for all. That would make the Israelis secure and ease the suffering of ordinary people inside Gaza.

The noble Baroness referred to the comments of Ban Ki-moon. We have to be absolutely clear that the quickest way for the situation to be brought to an end is for Hamas to stop the rocket attacks on Israel. I agree that we need to make progress towards a two-state solution but that will not happen while there is no ceasefire and Hamas continues to fire rockets into Israel. That is the root cause of this and it needs to change—and change quickly—to bring peace to the Middle East.

My Lords, I extend my sympathy to the Governments, people and families affected by the MH17 tragedy. The Prime Minister is absolutely right to insist that the UN Security Council demands proper access in support of a credible international investigation. He is also right to insist on hardening the economic sanctions. The question I put to my noble friend the Minister is: what would be the impact on the British economy of this measure and could we count on the wholehearted support of the EU, in particular Germany?

The most important thing is for the sanctions put in place to have a direct effect on Russia. The existing sanctions have already had some impact—Russia’s economy has shrunk as a result. As far as the future is concerned, and how any additional sanctions might affect the UK economy, we should recognise that our success is based on our security. That also applies to Europe more widely, so in looking at possible further steps we need to make sure that, as member countries of the European Union, we apply measures fairly in terms of their impact. We must, however, not lose sight of the fact that security is a very important part of our success.

Can the Minister please give us some figures on the Israeli casualties arising from the 1,850 rockets? Will she also acknowledge that there is a slight disjunct in this Statement between the robustness in the Government’s response on Russia and their response on Israel? Will she recall that Israel is becoming a serial offender in this area? Israel, under Operation Cast Lead, killed hugely larger numbers of Palestinians in its response to rockets fired over. It is a repeat of what happened there. Those of us who went to Gaza and saw what the Israeli forces had done in Gaza to civilians—not to Hamas militants—as a result of Operation Cast Lead are now seeing this repeated. Will the Government not consider taking the kind of robust resolution to the United Nations that they are doing with Russia, in relation to the disproportionate action taken by Israel?

It is important for me to say that this conflict is taking a terrible toll. Along with the rest of the Government, I am deeply concerned at the high number of civilian casualties and the humanitarian impact of the conflict. The people of Israel have the right to live without constant fear for their security and the people of Gaza have the right to live safely and in peace. The most important thing is that we bring this current conflict to an end and that steps are taken to make this ceasefire durable so that it is not repeated. That is the only way in which we can ensure the safety and security of all people in the region and make steps towards a longer two-state solution.

Does the noble Baroness agree that there is something distasteful about this concentration on numbers and proportionality? In recent months, some 2,000 Palestinians have been killed in Syria without, I gather, much notice being taken in this House. The reason for the civilian casualties in Gaza appears to be that Hamas hides its weapons and rockets in schools, mosques and hospitals and is prepared to use civilians as a shield. One simply cannot therefore make a parallel between the two. If a country has to defend itself, I cannot imagine what the answer is to proportionality when the entire population of Israel is only 6 million, including 1 million Arabs. I hope that the noble Baroness will encourage the Government to complain to UNWRA about the rockets hidden in schools and to the Red Cross about the use of civilians as human shields.

As I said when I repeated the Statement made by the Prime Minister in another place, we have been absolutely clear in our remarks to Israel about the needs for its response to be proportionate and to minimise any civilian casualties. The most important thing that we are trying to encourage is an end to this bloodshed on all sides, and we continue to press for an urgent agreement to that end.

My Lords, perhaps I may return us to the tragic event of the downing of flight MH17 to join others in expressing deep and profound condolences to the families, friends and colleagues of those who died. In particular, I express the deep sympathies of those of us who spend quite a lot of our time caring for those who are bereaved and, in so doing, I pay tribute to the Protestant, Anglican, Old Catholic and Roman Catholic ministers who have been trying to care for the stricken families at Schiphol Airport. They have a very demanding task.

As we have heard, the bereaved are suffering from a deep and dreadful trauma. The deaths were sudden and led, of course, to shock on the part of those bereaved. They were inflicted by violence, leading to anger. They took place in foreign lands where, as we know, the bodies are out of reach—not only that but lying around in the heat, in body bags, in full view of the world’s media. Now, as the noble Baroness, Lady Royall, powerfully explained, they are being disregarded and disrespected. It is a psychological, pastoral and spiritual nightmare of unspeakable proportions. My question is simply: will the Government continue to use appropriate means to ensure that the bodies are treated with dignity in this period and, of course, returned with urgency?

Our first priority over the last few days has been applying pressure to Russia to use what influence it has to ensure that what occurs is exactly what the right reverend Prelate asked for. While this has not yet been confirmed, I hear that there are now reports that the refrigerated train has left Torez and is now en route to Kharkiv. That is exactly the kind of progress we need to see continue so that people are able to grieve, while knowing that their families and friends are being treated properly and being looked after by the people who they would want to be doing so.

My Lords, I declare my interests as set out in the register. At the beginning of this crisis in Gaza, my right honourable friend William Hague called for an immediate ceasefire and a fundamental transformation of the situation in Gaza. Can my noble friend the Leader of the House say whether the Government are talking to Qatar to see whether it might be best placed to broker a ceasefire, following yesterday’s talks in Doha? Regarding the long-term fundamental transformation of Gaza, does she agree that economically active people seek peace and that all Palestinians should be free to trade, travel, hope and dream, and lead ordinary lives?

The Foreign Secretary is in contact with a range of countries in the region to try to progress the situation there. My noble friend is absolutely right that we need to ensure a durable ceasefire, so that all people who are desperately affected by this current situation find some peace and security as soon as possible.

My Lords, my first question is about the part of the Statement dealing with MH17. During the course of the weekend there were widespread reports that the black box had been removed from the wreckage of the aircraft, so that investigators—independent people—could not look at it. Do the Government have any independent evidence to indicate whether the black box has indeed been taken away already?

On Gaza, perhaps I may return to the question raised by my noble friend Lord Warner and referred to from the Cross Benches about proportionality. Proportionality is important in international law, so can the noble Baroness the Leader of the House tell us whether the Government believe that it is proportionate for Israel to have taken 500 lives and made 83,000 people homeless as a result of its recent action? Do the Government believe, since the Prime Minister raised this question with Mr Netanyahu, that his response has indeed been proportionate?

On the first part of the noble Baroness’s question, I cannot stress enough how much the international community is united in its call for a swift, transparent and credible investigation into the incident in Ukraine. We understand that there were two black boxes on board the aircraft and are aware of reports that one of those black boxes has now been found. We urge that this should be passed on to the International Civil Aviation Organization at the earliest opportunity. It is so important that all the proper and relevant authorities are able to do their work in response to this situation.

As to the noble Baroness’s question about Gaza and Israel, as my right honourable friend the Prime Minister said, he was clear during his call last night to Prime Minister Netanyahu that he should do everything to avoid civilian casualties, exercise restraint and help find ways to bring that situation to an end.

My Lords, while I join my noble friend in offering the deepest condolences to all those who have suffered from this appalling outrage with the Malaysian airliner, there was one sentence in her Statement that I found difficult to accept. It was when the Statement said:

“It is unlikely that even the separatists wanted this to happen”.

This is a disaster for everybody concerned and it has obviously made the position of President Putin even more difficult than it was before. The separatists are now pilloried right across the world and, if they are responsible for this, have done their own cause enormous damage as well.

This has happened against a background of bombing of this area by the Ukrainian air force and of the separatists shooting down some aircraft in self-defence. It is important to recognise the situation in which this has happened. I say in passing that I find it extraordinary that the European organisation responsible for flight safety gave airlines permission to fly over this area. Having said that, two weeks ago, while on their way to the World Cup, Angela Merkel and President Putin called for Ukraine and the separatists to stop fighting and start talking. That is the background against which this has happened. There must be a cessation of violence and an opportunity must be given for an independent inspection of what has happened. Efforts must be made at the earliest possible opportunity to get constructive talks on the tragedy that has followed this episode of violence.

As the Statement says, even the separatists did not want to target a commercial airliner: that is the point we are trying to get at. It is not a question of evidence being gathered to show that there was that intent; it is about the aircraft that they were focusing on. As regards my noble friend’s point about the fly zone above this area, it is important to note that the controls that were in place extended to a specific height, and that this commercial airliner was above the height determined to be safe. However, those controls have now been extended and there is a complete lockdown of the whole area at any height. My noble friend rightly said that the fighting needs to stop and talking needs to start. We are very clear that Russia needs to take steps to de-escalate the action in Ukraine. We need to ensure movement to bring security to Ukraine very soon.

The shooting down of MH17 was clearly an unexpected atrocity. However, we must not be surprised at that because atrocities happen every day in civil wars, as we see in Syria and Iraq and saw in Bosnia. I am afraid that these irregulars will behave in a very inhumane way: that is what happens in civil wars. There is no doubt whatever that Putin has been caught on the back foot. He has been caught out in this situation for the second time. The first time was the revolution in Kiev, where he was very badly caught out. We must think very carefully about how the Russians perceive this. They conflate NATO, the EU and America and see them all as a threat. We never gave any credit whatever to the fact that Crimea has a special status. There is no love lost between me and Putin, but does the Minister really believe that forcing him even further into a corner will help the settlement within Ukraine? Would it not be far better to aim to stop all fighting and have a conference whereby we can leave Russia primarily to broker some sort of agreement because, in the end, the Minister must agree, it is only with the Russians that we can get peace in this region?

The UK has been at the forefront of calling for a ceasefire, for the fighting to stop and for Russia to de-escalate the situation. However, because of the aggression that Russia has shown, we believe that it is vital that we also show strength in response to that, and that we are clear about the sanctions that are necessary to try to resolve this situation.

My Lords, will my noble friend please explain what is meant on page 6 of the Statement, where the Prime Minister says:

“Those criticising Israel’s response must ask themselves how would they expect their own Government to react if hundreds of rockets were raining down on British cities today”?

Will she tell me—perhaps in writing if she cannot tell me now—what is meant by drawing an analogy between what might happen in British cities with what is happening between Israel and Palestine, particularly what is happening in Gaza this week? I respectfully say to her that, even at the height of the Northern Ireland Troubles, this was not an analogous situation, and any idea that it is disregards the history of the Middle East over 100 years. Finally, will she also say—in writing if she cannot do so now—whether she recognises the importance of proportionality and distinction in international humanitarian law?

The Prime Minister’s Statement is very clear in the terms that he is using. We are absolutely clear that the loss of any civilian life is an absolute tragedy. We are also clear that the first step to bringing about peace is for Hamas to stop firing rockets at Israel. As I said when I repeated the Statement, Israel has taken steps to introduce a temporary ceasefire that was not reciprocated by Hamas. Clearly, the Government are looking to ensure that all sides in this argument work together to bring forward peace. That is what we want to see happen as soon as possible.

Given that the EU Foreign Ministers will meet tomorrow, has the Minister any good reason to expect that they will reach a unanimous decision that will be effective?

As regards what has happened over the past few days, there was a meeting last week of the European Council where it was agreed that further steps were necessary in terms of strengthening sanctions. That decision was taken before the tragic incident on Thursday. We have been talking to our European partners throughout the weekend and have had extensive discussions. My right honourable friend the Foreign Secretary will work very hard to ensure that there is clarity tomorrow and that further steps are taken in accordance with what I have already said we believe is necessary—to force Russia to withdraw and de-escalate.

My Lords, on Russia, I welcome the Prime Minister’s suggestion that it is time to make our power, influence and resources felt. May I make a practical and proportionate suggestion that one measure would be to suspend all civil air flights to and from Russia? Ideally, this would cover the whole EU and the USA. Although, Mr Putin would, of course, find methods to fly people in and out of Russia, it would be at a heavy cost, both economically and in terms of Russia’s status in the world.

I take note of the proposal put forward by my noble friend. I do not believe that that is one of the specific steps that we are currently considering but I am happy to talk further to him about his idea.

My Lords, will the noble Baroness reply by not reading the reply to a question she has not heard? She seems to be reading all these answers. Will she answer the question asked by my noble friend Lord Warner earlier about why there is such a big difference between the way that Israel is being treated in the crisis that it has created by occupying the West Bank of the Jordan and the far more vigorous treatment being meted out to the Russians when they have not even invaded a country?

I have been very clear in responding to the points raised in the course of this Statement. In respect of Gaza, there are three situations that need to be dealt with. The first concerns an immediate ceasefire between Hamas and Israel, and stopping the fighting and bloodshed that are occurring there. Then we need a durable ceasefire to ensure that this kind of situation is not repeated; all parties involved in that need to play their part. Clearly that is the only way of our then moving towards the longer-term situation of ensuring that the Middle East peace process has some prospect of succeeding.

Will my noble friend confirm that of the more than 500 civilians killed in Gaza, more than 100 were children? Will she therefore give the figure, which has been repeatedly asked for, for the number of Israeli citizens killed by Hamas rockets so that we can understand what the word “disproportionate” means? Will she accept from me, as someone who visited Gaza in the aftermath of Operation Cast Lead, that that amount of carnage and mayhem manifestly did not stop the rockets coming into Israel then, and nor will this? That is surely the point. There is no substitute for the painstaking talks of the kind in which John Kerry was engaged to get Hamas to stop violence against Israel and to get Israel to cease its settlements in the West Bank.

The number of Israeli civilians killed and injured by Gaza rockets amount to two killed and 13 treated for shrapnel-related injuries; 13 Israeli soldiers have been killed during the ground operation. But as the noble Baroness, Lady Royall, said in her response to my Statement, this is not about comparing numbers. All loss of life is a real tragedy. It is important that we acknowledge that the rockets being fired from Gaza into Israel are indiscriminate. Clearly, we want Israel to respond proportionately and minimise the loss of civilian life. More than anything, we want this situation to stop and the bloodshed to end. That is possible only when both sides cease fire. Certainly, the most important first step in that would be for Hamas to stop firing its rockets.

On Ukraine, is it not reprehensible that the tragedy of MH17 is being used for so much international political rhetoric? Would it not be better to have some tact and diplomacy? We have heard that the Prime Minister had a 30-minute conversation with Mr Putin. We have heard what financial sanctions were proposed, but presumably during the 30-minute telephone call Mr Putin had something to say. Will the Minister tell us exactly what he said and whether he confirmed that he wished to have an international investigation into the downing of MH17?

The current calls for Russia to de-escalate and the sanctions that we are putting in place are in response to Russian activity in Ukraine, which predates last week’s incident. It would be wrong of the noble Lord to suggest that all our efforts being made now are only on the back of the terrible crime committed on Thursday. What happened on Thursday has focused minds, but it has not led to the start of our demands for Russia to take all the necessary steps to withdraw from its aggression in Ukraine.

As for what President Putin said in response to my right honourable friend, I do not have details of that. I can say to the noble Lord that clearly the conversation that the Prime Minister had with President Putin has had some influence. Thankfully and finally, we are starting to see some co-operation from the separatists in Ukraine to help ensure that the bodies there are treated with the dignity and respect that they deserve, that the right authorities are properly able to do their job, and that we can get to the bottom of just what happened.

My Lords, building upon the wise words of my noble friend a moment ago and on the extremely sensible comments of the noble Lord, Lord West, does my noble friend accept that if we are not sensible we shall drift into another cold war from which no one will benefit? Could we not ask the Secretary-General of the United Nations to summon a special conference of all the parties to address the Ukrainian situation: to ensure the territorial integrity of Ukraine, a proper recognition of the legitimate interests of Russia, and an end to this drift—as I say—into a new cold war?

My noble friend is right to raise the United Nations. I repeat what I have already said: the UK is playing a leading role to secure UN action. There is a meeting of the UN tonight. There is an Australian-led draft resolution, which the United Kingdom very much supports. Along with Australia, we have accelerated discussions on this, which welcomes a Ukrainian-led investigation, containing strong language on access to, and dignity in dealing with, the bodies and incorporating tougher UK language from the draft press statement.

My Lords, in the course of a week we have seen two terrible tragedies claiming hundreds of innocent lives. Other noble Lords have suggested that behind both crises, whether in the Middle East or in Ukraine, we need to see a more proactive diplomacy that is not limited to 30-minute telephone conversations or meetings of the EU Council, but one that resembles diplomacy of the past that confronted international crises. In the dark days of the Cold War, high-level western envoys went to Moscow to meet Kruschev or Brezhnev to address the great crises of the day and try to find solutions. We are not doing that in the case of either Ukraine or the Middle East. Of course it is awful that lives been lost in both cases, but we need to find a diplomacy that meets these crises.

In the case of the Middle East, diplomacy has collapsed. Perhaps it is no accident that events in Gaza follow on six weeks after the collapse of the Middle East peace process. We saw the resignation of the American envoy, Martin Indyk, because of the unwillingness of the Government of Prime Minister Netanyahu to come to an agreement with President Abbas. This is the background to this crisis and this Government must join with others in looking for diplomatic ways forward. Prime Minister Netanyahu’s Government have avoided political solutions. We must impress on him the need for those.

For the United Kingdom, my right honourable friends the Prime Minister and the Foreign Secretary are engaged in diplomatic talks and processes, and I assure all noble Lords that these will continue and that all our energies will be applied to achieving the kind of resolutions that we think are important for all parts of the world where there is conflict.

Criminal Justice and Courts Bill

Committee (2nd Day) (Continued)

Amendment 41

Moved by

41: After Clause 28, insert the following new Clause—

“Assault on workers selling alcohol

(1) A person who assaults a worker who is required to enforce or comply with the Licensing Act 2003—

(a) in the course of that worker’s employment, or(b) by reason of that worker’s employment,commits an offence.(2) In this section—

“worker selling alcohol” means a person whose employment involves them selling alcohol under the provisions of the Licensing Act 2003;

“employment” in this context means any paid or unpaid work whether under contract, apprenticeship, or otherwise.

(3) A person who is guilty of an offence under this section is liable—

(a) on conviction on indictment to imprisonment for a term not exceeding two years or an unlimited fine (or both),(b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory minimum (or both).”

My Lords, we now move away from great events around the world to rather more mundane matters here at home. None the less, they are very important matters. Noble Lords will recall that last year my colleagues in another place and I in this House moved an amendment to the Anti-social Behaviour, Crime and Policing Bill which would have created a separate legal offence for assaulting a worker in the course of his work. Our goal was relatively simple; it was to create a new, tougher penalty for assaulting people when they are carrying out their work which would encourage prosecutions, act as a deterrent and, most important of all, do justice to the physical and mental suffering of the hundreds of thousands of workers who are assaulted in the course of their employment. Unfortunately, although many noble Lords, including Cross-Benchers and even members of both parties in the coalition, were sympathetic to the general aims of my amendment, it did not succeed.

One of the main concerns raised at the time was that the amendment was too wide in its scope and would cover so many workers that it would be ineffective. I have taken all those criticisms on board in drafting the amendment before the Committee today. Once again, I have had the help of the Union of Shop, Distributive and Allied Workers, one of the most effective unions in the country looking after the interests of its many members in shops and centres around the United Kingdom.

This amendment, unlike the previous amendment, focuses specifically on those workers who are required to enforce and comply with the Licensing Act 2003. They are acting in a policing capacity and if they do not carry out what they are required to do, they are committing an offence. This amendment would create a separate either way offence of assaulting a shop or bar worker selling alcohol. In doing so, it also takes into account another criticism made by the Member of Parliament who is now the new Solicitor-General when a similar amendment was tabled by my colleague, Labour’s shadow Justice Minister, Dan Jarvis. The right honourable Member for Swindon South, our new Solicitor-General, expressed sympathy with the aims of the amendment, but commented that if we were truly serious about higher penalties such an offence should be either way, not summary as was originally intended. I hope, therefore, that my seriousness on this issue has been affirmed to the Solicitor-General, and to those in his party in this House and elsewhere who may have already been sympathetic to the aims of the amendment, as I have taken on board the fact that it should be an either way offence.

For noble Lords who are still sceptical of the case for granting workers who sell alcohol special protection through a separate criminal offence and those leaning towards supporting the amendment, I shall give one example—I have many more, but because of time and because I knew there are other amendments I shall give just one—which captures the issue the amendment seeks to resolve. It is the story of Barry and Teena who own a pub in Leek called “The Priory”. One Sunday night, after the bar had closed, revellers approached Barry in order to purchase some more drinks. It happens again and again like that. Barry rightly refused to serve them. He would have been breaking the law if he had served them. At that stage, one of the revellers threw a glass at Barry’s arm, jumped over the counter and punched the couple’s son, Mark, in the face, splitting his lip. Teena came out to see what was happening and was immediately assaulted by a woman standing behind the bar. Her nose was broken, and when the blood was gushing out of her nose and face, she suffered an asthma attack and needed to be hospitalised. The police arrived, and two people, one man and one woman were arrested. Astonishingly, both were let off with just a caution after that attack. Barry and Teena were two people upholding the law on our behalf, and if they had not done that, they would have been breaking the law. I have other stories, and perhaps I will have another opportunity of telling them.

Why do we need the amendment? This tragic episode and others underline three things which are currently wrong with our criminal justice system. First, and most importantly, the incredibly dangerous and vital public function of workers who serve alcohol goes completely unrecognised. These are men and women who are charged, like the police, with enforcing the law. They must refuse service to those who are underage or too intoxicated. If they refuse to do so, they face legal action, and even the potential loss of their licences and thus their livelihoods. Unlike the police, they have no additional protection for the additional service and for the grave danger it puts them in. What they receive, like all workers, is a clause in the sentencing guidelines—noble Lords who took part in the debate last year will recall this—which makes the assault of a worker providing a public service one of 19 aggravating factors.

There are two problems with the current regime. First, it fails to recognise the additional danger that those who have to sell alcohol face vis-à-vis workers in most other professions and their vital contribution to public order and safety. According to the Health and Safety Executive’s latest figures, alcohol was the trigger to threatened or actual violence in 38% of cases. The second problem is leniency. The regime has produced a system with disincentives to prosecution and which is too lenient. Unfortunately, the fact is that until we start acknowledging the service done by and the added danger faced by those who serve the public alcohol, in a similar manner to how we do with the police, prosecutions will fail to reflect the seriousness of the crime, and victims like Barry and Teena will continue to be deprived of proper justice. At present, as the assault of workers who sell alcohol usually falls into the category of common assault, with the relatively lenient punishments on offer, it results in the Crown Prosecution Service deciding that it is not worth prosecuting. This has been the experience of a range of groups which are supporting my amendment: USDAW; National Pubwatch; the Wine and Spirit Trade Association; the Retail of Alcohol Standards Group, whose members include almost all major supermarkets; and the Association of Convenience Stores. They all support the amendment. Lenient sentencing and a lack of prosecutions feed into a vicious cycle whereby incidents go unreported as workers lose faith in the justice system. Action must be taken.

My amendment will address the problems in three ways. First, by creating a separate offence for assaulting someone who sells alcohol, one that carries a harsher penalty of either up to six months in prison and a fine of up to £500 for those charged summarily—I take what was said earlier about short prison sentences—or, up to two years in prison or an unlimited fine for those convicted on indictment at the Crown Court, the amendment recognises the additional danger faced by this set of workers and their special public service. Secondly, in doing so the amendment will create a greater deterrent through stiffer penalties. I do not want this to happen. I do not want people to be committing this offence and filling up the prisons with all the extra costs involved. That is why having these serious penalties will mean that it is less likely to happen because of the greater deterrence. Thirdly, I hope it will encourage more prosecutions as a new separate offence is easier to determine than common assault, as the Minister knows. I am very pleased that he is dealing with the amendment today. We are not related, but I have developed a friendship with him since he joined this House, and I know he takes his work and this kind of matter very seriously indeed. Common assault, which is currently how such acts are classified, has a number of mitigating and aggravating factors. As this carries stiffer penalties, it would incentivise the CPS to make more prosecutions.

In conclusion, I believe that the amendment would offer greater protection to workers selling alcohol—something that it is often all too easy for us in the comfort of this Chamber to take for granted. The time has come finally to acknowledge the grave danger often faced by those who serve us and enforce our law in the pubs, clubs, bars and shops that all of us frequent and love so much. The time has come for those of us in this Chamber who benefit from their actions to do something to acknowledge that and return the favour to them. I have much pleasure in moving this amendment. I beg to move.

My Lords, many years ago, I was a shop worker. Although I never sold alcohol, I certainly recall having to deal with difficult situations. I was then a member of USDAW and active in the trade union so I am delighted to speak in support of the amendment today. USDAW is one of the most effective unions operating in the UK today. For many years, it has run its Freedom from Fear campaign, which raises the issue of shop workers put in difficult and threatening situations just because they are going about doing their job. It has put proposals to the Government and others to ensure that shop workers—in this case, people working in pubs, bars and clubs—can do so free from fear of attack.

The amendment would create a specific offence of assaulting a bar or shop worker selling alcohol. This group of workers has a unique set of obligations put on them by the Licensing Act 2003. I and other noble Lords think that they deserve similar protection while they seek to enforce the law on our behalf. My noble friend has taken on board the comments made by Mr Robert Buckland in the other place. As he mentioned, he has just been made the new Solicitor-General in the Government.

I hope that the Minister will not tell the House that we already have adequate protections for these workers anyway. I certainly do not believe that it is the case. They are certainly some of the most vulnerable workers working in the retail and service sector. If he is not prepared to accept the amendment today, I hope he will agree to meet me, my noble friend Lord Foulkes, representatives from USDAW and all the retail organisations which, as my noble friend said, are backing this amendment, and that we can persuade him that workers selling alcohol need this additional protection.

Someone working with the public is especially traumatised by an attack at their place of work. They usually have to go back into that situation, facing a constant stream of strangers, any of whom could become violent. Reports of anxiety and panic attacks on returning to work after an assault, with the constant worry that the next person walking in through the door could be their attacker, are not uncommon.

We are all aware of the trigger that alcohol can be to violent crime. Figures have been produced by the police, the Health and Safety Executive and others that prove that; it is not in dispute. Workers who serve alcohol have to enforce the law, as my noble friend says. They are required to obtain proof of age from the purchaser, to refuse to serve alcohol to someone who is drunk and aggressive and to refuse the proxy sale of alcohol. The staff have no option; they have to enforce the law. These actions are all major triggers for assaults on staff, but if they are not undertaken the staff could be liable for prosecution themselves, resulting in a heavy fine, maybe the loss of their job and possibly the loss of the licence for the business. We should also remember that these people could also be working late at night, possibly on their own, in a corner shop or a petrol station. Some workers are too traumatised to return to the same job and lose their livelihood in addition to the physical effects that they have had to endure. Victims rightly feel that sentencing should reflect those effects on their lives.

The sentencing guidelines for all types of assaults state that that an offence,

“committed against those working in the public sector or providing a service to the public”,

is an aggravating factor that adds to the seriousness of the crime. Creating a specific offence would send a clear message that violence against somebody serving the public is not acceptable. Preliminary evidence from Scotland where a similar measure was introduced for emergency workers shows that that the number of such incidents has declined since the legislation was introduced. That is another reason why we are better together, so that we have the experience of our colleagues in other parts of the United Kingdom.

I want to mention one incident that happened to a team leader at a checkout at a large supermarket in Rochdale. That store had only one security guard. The team leader had to step in and assist whenever the checkout person received abuse or had a problem. In October last year, that team leader went to help when a gang of youths had been refused the sale of alcohol and were racially abusing the security guard. The youths went away, the incident was reported, but when the police arrived they had already left. The next evening another security guard was on duty and he shouted for help as the same gang of youths approached the store. One youth started to spray liquid in the face of the security guard, and the team leader ended up in a scuffle with one of the youths. He woke up in hospital eight days later, having suffered a severe heart attack, probably caused by a heavy kick to his chest. His wife had been told that he was unlikely to make it. He had been kicked in the face and lost some of his teeth and his colleagues who saw the attack had to be counselled for trauma. The attack has devastated his life. His heart has to be constantly monitored and he struggles even to walk to the local shops. He cannot do things that he used to enjoy doing with his family, including playing football with his son. He has not been able to go back to work; the doctor has said that he will be off work for at least 12 more months; his take-home pay used to be £1,300 a month, but he now receives sick pay of just £300 a month. Two males and one female took part in the assault; one youth received a small fine, the woman has not been found, and the other youth has been charged—the case will be heard in the autumn. We should all be concerned that, unless people who assault front-line staff receive adequate sentences, this sort of incident will continue. There was another case of a landlord in Bolton who refused to serve a young man whom he knew to be underage. When he took his dog out for a walk that night, the youth beat him up, kicking his face when he was on the ground and causing extensive cuts and bruising. The police arrested him and the next day he got a caution.

We all owe shop workers, part