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House of Lords Hansard
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Criminal Justice and Courts Bill
20 October 2014
Volume 756

Report (1st Day)

Clause 3: Schedule 15B offences

Amendment 1

Moved by

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1: Clause 3, page 4, line 43, at end insert—

“(13) Before this section comes into force, the Secretary of State shall—

(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and(b) lay a report before Parliament containing—(i) his assessment of the resources required for additional hearings; and(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.”

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My Lords, I shall speak also to Amendment 8. Amendment 1 is by way of a sunrise clause that would require the Secretary of State to consult the Parole Board about the resources required for additional hearings resulting from the implementation of this clause of the Bill, which deals with the arrangements for the Parole Board, and lay a report before Parliament containing his assessment of the resources required for additional hearings and his plans to ensure that the board has sufficient resources to fulfil the requirements of the proposed section.

The amendment was the subject of debate in Committee. It was prompted by the growing pressures on the Parole Board and the impact that they were having on the timely discharge of its responsibilities. In that debate I expressed concern about the effect on the board’s workload of a number of provisions in the Bill as a result of the number of categories of offender being made subject to the decision of the board in relation to release instead of being eligible for automatic release after serving two-thirds of their term. These cases include prisoners convicted of terrorist and explosives offences, who would be subject to the enhanced dangerous offenders scheme, all offenders serving extended determinate sentences, and others who would be subject to discretionary, rather than automatic, release after serving half their term. In addition, the Bill prescribes a new release test for recalled prisoners.

All these factors threaten a substantial increase in workload, with a potential requirement, on the Government’s own estimate, eventually, of 1,000 extra prison places. The situation is certain to be made worse by a substantial anticipated rise in oral hearings consequent on the decision of the Supreme Court in the case of Osborn. Given the department’s track record in forecasting the effect of IPPs on prison numbers, there must be some doubt, to put it mildly, as to the robustness of its estimate. As it is, the board is anticipating holding an additional 4,500 oral hearings a year.

The Minister wrote to me on 29 July in reassuring terms, saying that the experience of the first few months after the judgment showed that the board’s predictions about the caseload were too pessimistic, and that in any case, it was,

“developing significant changes to its operating model and these were being tested”.

The Minister affirmed that the resources question would be kept under review and, of course, I welcome that. It would, however, be interesting to know what the projected caseload in that respect now looks like and what the anticipated cost is and to receive an assurance that any extra work for the board, and its already reduced staff, will not be at the expense of its basic caseload and the times in which it can deal with hearings. Will the Minister provide his assessment of the cost of the additional hearings and how and when this will be met? In particular, will he tell us what consultations have taken place with members of the board and others over the proposal for one-member panels for determinate sentence reviews and two, instead of three, members for indeterminate case reviews?

The Minister hinted somewhat coyly that the Government were,

“considering a number of options”

to address the situation. Three months after the relevant debate in Committee, and all of six days before the first day on Report, the Government unveiled their proposal to create an entirely new service, recall adjudication, which is the subject of the Government’s amendments in this group and of my further amendment. The Government’s proposals are based on the judgment of the Supreme Court in the Whiston case, which the Government interpret as giving a green light in terms of compatibility with human rights obligations—assuming that these are not to be abrogated as the Tory Party attempts to fend off the threat from UKIP. Justice, however, the legal organisation, questioned the robustness of that interpretation.

The Minister organised a briefing meeting at short notice and will, of course, describe the proposal in the course of this debate as he speaks to the amendments in his name. In essence, however, the Government propose to allow the Secretary of State to refer determinate sentence recall cases to a recall adjudicator, which may, in a somewhat circular fashion, turn out to be the Parole Board. Consultations have apparently been held with the board and the judiciary. The Minister told those of us who attended the meeting that they had apparently approved the change, although, for some reason, there has been no public consultation nor, until now, any parliamentary involvement. Such parliamentary involvement, of course, in terms of this Bill, is at virtually the last gasp.

In his letter of 13 October, the Minister indicated that the department would be working with the Parole Board and other unidentified stakeholders on,

“the drafting of the rule”—

in the singular, strangely—

“the design of adjudicator model and the guidance underpinning this”.

That is all very well, but Parliament is not being consulted, nor will it have any opportunity to exercise any judgment about the proposals. It is simply being expected to sign a blank cheque with the promise that the resources aspect will be the subject of a report to Parliament—eventually—but with no apparent intention to seek parliamentary approval of this or any other aspect of what is, after all, a radical change. This is happening at a time when the Parole Board is in the middle of a triennial review which these proposals will clearly pre-empt.

As the Prison Reform Trust points out, even if it were proposed and acceptable for determinate sentence recall prisoners to be denied an oral hearing, why, at the £60 cost of a paper hearing, is it necessary to create a wholly new and untested structure? How sensible is it, when the whole system is caught up in a maelstrom of change and acute pressures which affect all the statutory players—the Prison Service, NOMS, probation, the police and the courts—to add another ingredient to the mix?

In the event the proposal may prove to be acceptable, but at this stage we have very little information to go on; for example, on the criteria on which the Secretary of State will rely, the qualifications, training and job description of those who will be employed, or, of course, the cost. Given the plethora of as yet unanswered questions, it would clearly be desirable for change of this magnitude to be the subject of a proper parliamentary process before what may, it is to be hoped, be a positive change. It is equally desirable, if not more so, to review the outcome of this untested change and secure parliamentary approval after a period in which its efficacy can be judged—hence the second amendment in my name, which is a sunset clause, as opposed to the original sunrise clause in Amendment 1.

I submit that it is not unreasonable to ask the Government to bring forward a report on the workings of this new arrangement, with details of full costs and the like, and then after a modest period to seek approval for its continuation. This habit of last-minute amendments, one with which we are becoming too familiar, not merely from this department but from others, impedes the proper functioning of parliamentary scrutiny and of your Lordships’ House in particular. The Minister is not personally responsible for that, but his political master is, and it is time that the Lord Chancellor and Secretary of State bore in mind the role of this House and of Parliament as a whole in considering matters of great public moment such as those that affect the Prison Service, those who work in the Prison Service and, of course, those in their custody. I beg to move.

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My Lords, I disclose that I am the chairman of the Prison Reform Trust, which, as the noble Lord, Lord Beecham, has already pointed out, has circulated a paper that expresses concerns which he has adopted, very admirably, in the submissions he has just made to the House. I urge the Minister to think about those submissions very carefully. Whereas I, of all people, would like to think that I am a supporter of any procedure that cuts the costs of the administration of justice, at this stage the matter has not been detailed enough. Perhaps it would be better to find another instrument to which this very late amendment can be attached, but some such machinery to deal with this is urgently required.

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My Lords, I thank the noble Lord, Lord Beecham, and the noble and learned Lord, Lord Woolf, for their contributions to this short debate. I will take this opportunity to explain to the House in a little more detail the context and reasons for the Government’s amendment, which will enable the Secretary of State to appoint “recall adjudicators”, before going on to explain the nature and purpose of those amendments. I will then turn to the amendment the noble Lords have tabled to Clause 3, and to their Amendment 9A, which seeks to insert a new clause.

When your Lordships last debated the provisions in Part 1, concern was raised about the burden that some of the provisions would place upon the Parole Board, particularly given the increased demand for oral hearings following the Supreme Court judgment in the case of Osborn, Booth and Reilly. At the time I explained what the Parole Board and the Ministry of Justice were doing in response to that demand, and indicated that we were considering whether there may be other options to alleviate the pressure on the board.

I hope that these government amendments demonstrate to the House our commitment to supporting the board and will serve to alleviate some of the concerns that have been expressed. They will allow the board to focus its resources where they are most needed. It is only recently that it has become possible to contemplate amending the legislation in the way that we now propose, and I hope that this answers the criticisms made by the noble Lord, Lord Beecham, of the amendment and its lateness.

In July, a Supreme Court judgment was handed down in the case of Whiston v the Secretary of State for Justice. This dealt with the question of whether an offender who is subject to home detention curfew and is recalled to prison for breaching his licence conditions is entitled, under Article 5.4 of the European Convention on Human Rights, to have his detention reviewed by a court-like body—the Parole Board. The Supreme Court found that there was no such entitlement and that for all determinate sentenced offenders further detention during the licence period was satisfied, in Article 5 terms, by the original sentence imposed by the court. Therefore this does not depend on any party-political interpretation of the European Convention but on the decision of the Supreme Court.

Last week I chaired an all-party meeting in which we discussed these changes—which, of course, I accept have come late in the day. I hope that I was able to explain during the meeting to those noble Lords present the reason behind this change and why it was late, in order to give Peers an opportunity to understand what we were doing. The Whiston case is a significant change to previously established domestic case law on which the current provisions in the Criminal Justice Act 2003 are founded. Under the 2003 Act, determinate sentence recalled prisoners are entitled to have their cases referred to the Parole Board. This was to satisfy their Article 5 rights to a court-like review of their detention.

But the Whiston judgment means that the review of determinate sentence recall cases no longer has to be conducted by the board because Article 5 is not engaged. We are therefore seizing this opportunity to build into the statutory framework a new, flexible way of working which will provide for this category of case to be diverted away from the board. That is what these amendments are designed to do.

Amendment 9 inserts new Section 239A into the Criminal Justice Act 2003. This will create a power that enables the Secretary of State to appoint “recall adjudicators”. It is these adjudicators who will take on the functions relating to the release of recalled determinate sentence prisoners currently performed by the Parole Board. The Secretary of State will be able to appoint the Parole Board as a recall adjudicator to allow the board to continue to review these cases if necessary, but also to appoint other persons.

Much of the detail of how the recall adjudicator model will operate—including exactly who will be appointed and the nature of those appointments—will be the subject of further detailed development. As I indicated during the meeting, and do again in the House, the appointments will be filled by those with significant criminal justice experience. I apologise if at this stage I cannot provide noble Lords with the level of detail for which they might normally wish. I acknowledge, of course, that the as yet unknown detail about the precise operation, impact and cost of the new model is what lies behind the noble Lord’s amendment to insert a sunset or sunrise clause into these provisions. I will return to that when I respond to the amendments.

First, I shall explain to your Lordships the main features of the provisions as well as the safeguards that will make sure the system for reviewing the detention of recalled prisoners will remain fair, robust and efficient and—importantly—that risk assessment and public protection will continue to be of paramount importance in any release discussion. While the review of detention need not be undertaken independently by a court-like body or process, it will have to satisfy the common-law requirements of impartiality and procedural fairness in line with the Osborn judgment. This means that oral hearings will still be required if they are necessary in the interests of fairness to the prisoner in the particular case and it will be necessary to interpret that requirement consistent with the Osborn decision.

Your Lordships have already agreed that Clause 8 should stand part of the Bill. This introduces a new test for the release of determinate sentence recalled prisoners. The test requires consideration to be given to whether the offender needs to be detained for the protection of the public but also whether the offender would be highly likely to breach their licence again if released. Recall adjudicators will be required to apply that test—that is, they will be under a statutory duty to consider both public protection and the risk of further non-compliance in reaching their release decisions.

A consistent and robust process will be followed by recall adjudicators. To ensure that this is the case, these amendments provide a power for the Secretary of State to issue procedural rules. Of course—this is important—there will be an opportunity for further parliamentary scrutiny, as these rules will be made by statutory instrument, subject to the negative procedure.

The Secretary of State will also have the power to appoint a chief recall adjudicator. The chief recall adjudicator, who must also be appointed as a recall adjudicator, will oversee the activities of these adjudicators and bring coherence and co-ordination to their work. To assist in this role, provision is also made for the chief adjudicator to issue guidance. Recall adjudicators will be required to carry out their functions in accordance with that guidance.

The Secretary of State will be responsible for making decisions on appointments and the termination of appointments, although the chief recall adjudicator will be able to make recommendations to the Secretary of State about the termination of appointments.

The other amendments that we have tabled in this group all flow from and are consequential to the provisions in Amendment 9 to allow for the appointment of recall adjudicators.

I hope that your Lordships will agree that these amendments will not only help to alleviate pressure on the Parole Board but will give us the opportunity to look afresh at an alternative model for reviewing the detention of determinate sentence prisoners when they are recalled to custody. In short, if these cases do not need to be dealt with by the board, we believe that they should not be. The recall adjudicator provisions will give us the flexibility that we need to put such a system in place. This is the package of government amendments that I commend to the House.

Before I sit down, I turn to the amendments tabled by the noble Lords, Lord Beecham and Lord Kennedy. The Government cannot support these amendments. Amendment 1 places a statutory duty on the Secretary of State to consult the Parole Board and to lay a report before Parliament about the resources that the board requires before the provisions in Clause 3 are implemented.

The Government are committed to ensuring that the Parole Board is always adequately resourced to fulfil its important responsibilities. The amendments that I have spoken to, which are designed to alleviate pressure on the board and to free up its resources, underline that commitment. I assure your Lordships that any future pressures on the board arising from the implementation of other provisions in the Bill will be discussed with the board so as to ensure that the necessary arrangements and resources are in place. I can confirm to noble Lords that there have been discussions with the Parole Board, the Lord Chief Justice and the senior presiding judge about the appointment of recall adjudicators.

Clause 3 adds a small number of additional terrorist-related offences to Schedule 15B to the 2003 Act, and the impact of this on the board will be minimal. We do not believe that a duty to consult the board or to lay a report before Parliament is appropriate or necessary. With respect, and as I said in Committee, such a duty would not be a practicable approach to these provisions. Changes to the workload of an arm’s-length body are commonplace. There are governance structures in place to ensure that new pressures on the Parole Board are taken account of. As noble Lords will be aware, the Ministry of Justice is accountable to Parliament for the discharge of its responsibilities. Putting such an obligation on the face of the legislation would, I suggest, be an undue burden on Parliament.

That brings me to the other amendment tabled by the noble Lords, which would insert a sunset clause into the recall adjudicator provisions, suspending them two years after the date of commencement. Prior to this, within 18 months of commencement the Secretary of State would be required to lay before Parliament a report on the impact of these provisions. Having done so, the Secretary of State would be able to make regulations for the continuation of the provisions—those regulations to be made by statutory instrument and subject to affirmative resolution of both Houses. In effect, Parliament would have to review the impact and agree to the continuation of the provisions to avoid their suspension after two years.

I understand the concern of noble Lords that the introduction of recall adjudicators is a new and, as yet, untested concept. It is critical that we get this right, and I appreciate the recommendation by the noble Lords for greater scrutiny by this House and the other place. However, I do not believe that it would be either appropriate or helpful to have a sunset provision of this sort. I can assure your Lordships that we will continue to work closely with the board and others on the development of the recall adjudicator model, making sure that it delivers the efficiencies and benefits that we expect while we maintain, as we are obliged to do, a robust and fair process for recalled prisoners.

I would be happy to keep your Lordships closely informed as the model is developed and to share further details of how it will work, including assessments of the resources and costs involved once those are available. Once we have developed and implemented this new flexible and more efficient model, its impact and operation will be closely monitored and reviewed; I will make a commitment to Parliament to provide it with updates and reports.

The provisions that the Government have brought forward are designed for maximum flexibility in the way in which the new model is set up and operated, subject, of course, to safeguards. However, the flexibility means that the operation of the model can be easily adjusted and refined to make sure that it is delivering the best possible approach.

The noble Lord, Lord Beecham, asked about the number of oral hearings per year and, indeed, per month. Before the Osborn-Reilly decision, the board conducted an average of 435 oral hearings each month; that is around 5,000 a year. It is now, on average, conducting 528 oral hearings a month; that is over 6,000 a year. So there has been an overall increase in oral hearings conducted by the board, but within this the board is dealing with a greater proportion of determinate sentence oral hearings.

The noble Lord asked about the cost. The Parole Board has a total budget allocation of £13.8 million for 2014-15; that is an increase of £3 million on the board’s resource allocation of £10.8 million—although, following the Osborn case, there was an additional in-year funding provided of £1.2 million. However, we do not have a breakdown of how much of the board’s budget is spent specifically on determinate recall cases. They make up about half of the board’s total caseload, if all paper and oral hearings are included.

Therefore, I respectfully suggest that a sunset clause is both unnecessary and inappropriate. It would create uncertainty about the future of the scheme, undermining most or all of the investment and commitment that will be vital to making the new model as effective as possible. Such a clause might reduce the attraction of high-calibre, well qualified and suitable applicants to the position of recall adjudicator if they believed the scheme could be scrapped less than two years after it had been introduced. As I said at the Peers meeting, anybody who is appointed as a recall adjudicator will be given rigorous training to enable them to perform their tasks; it is not a question that they will be appointed tomorrow and begin sitting the day after.

The same uncertainty would make it difficult for the Parole Board to plan for its future workload and to develop efficient operating models if it does not know whether determinate recall cases will continue to be dealt with by recall adjudicators. The Osborn case created an additional demand for work to be performed by the Parole Board. The Whiston case has given an opportunity for the Parole Board to be relieved of some of the workload and for the setting up of a recall adjudicator system.

This is an appropriate legislative vehicle to be considered by Parliament, dealing, as it does, with the Parole Board. Ideally, the matter would have gone through all parliamentary stages but the decision came at a stage when it was not possible simply to act immediately. The matter needed to be considered carefully, and it has been considered carefully. It will be subject in due course, as I said, to parliamentary scrutiny.

This is a real opportunity to improve the system, and I trust that the assurances that I have given about the Government’s continued commitment to supporting and working with the Parole Board and the many different challenges they face, and to keeping your Lordships informed of the future details and impact of the new recall adjudicator model, will persuade the noble Lords, whose concern is understandable, to withdraw their amendments.

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My Lords, I do not know whether the Minister’s amendment has been called. I rise just to say that I certainly support the Government’s view, subject to the amendment proposed by the noble Lord, Lord Beecham. Anything that we can do to relieve the burden on the Parole Board is worth doing. I confirm, incidentally, that the Minister was quite right to say that this would not have been possible until the recent decision of the Supreme Court at the end of July. To that extent, I certainly support the Government.

I hope that I may be permitted to add one comment. We shall shortly be coming to Amendment 39 in my name, which would do far more to relieve the burden on the Parole Board than this proposal could ever do. Furthermore, it could be done without any cost at all, it could be done at once and it has been calculated that it would save the Government some £25 million a year. I hope that those who are interested in relieving the burden on the Parole Board will stay behind and take part on that amendment when it is called.

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My Lords, we have had something of a trailer from the noble and learned Lord, Lord Lloyd, and I do not propose to respond in detail at this stage. For the sake of clarity, I might say that these amendments are about determinate sentence prisoners as opposed to indeterminate sentence prisoners, into which category IPP prisoners fall.

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My Lords, I want to make one very small point about the Government’s proposals, which is mainly to do with the name “recall adjudicator”. I understand that when a district judge goes to prison and hears cases and then gives an additional period in custody to prisoners who offended while in custody they are referred to as adjudicators. We will have adjudicators turning up at the prison gates, plus recall adjudicators. I wonder whether that is a sensible way to proceed. I raise that as a small point.

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My Lords, I am grateful to the Minister for his typically clear exposition of the Government’s position—or some of the Government’s position. I thought there were some omissions in how he put matters. He adopted the Candide style of defending the Government, where everything is the best of all possible judicial worlds, but that might be a slightly flawed approach in the circumstances. He did not, for example, deal with the point of the Government’s own estimate of 1,000 extra prison places being required as a result of the changes in category. That was before the Osborn case, which will clearly increase the load further. It may be that the board’s original estimates were on the high side, but there can be no gainsaying the fact that the board would be required to conduct a great many more oral hearings than at present.

There may well be merit in the Government’s proposals for recall adjudicators, but I do not know why the Minister should be so hesitant about reviewing the position in a couple of years. If, indeed, he is confident that the system will work, there would be no problem. If, on the other hand, the system presents problems, it is as well to deal with them before too long a period of time passes. I should have thought that the sunset position in respect of the new organisation would be worth considering. The problem that the Government and the Parole Board face is, of course, the huge number of matters to be dealt with. The noble and learned Lord, Lord Lloyd of Berwick, will hopefully be making his contribution to reducing those numbers, shortly, perhaps. We will see what happens.

At the moment, what we seem to end up with is a two-tier system and it is not quite clear to me how the two organisations will be managed. The Parole Board exists as a board. Will the adjudicators, for example, be directly a board or will there be a separate board for that? All of this is up in the air. It is, frankly, not good enough for the Government to say that they have to rush this legislation through because of the Whiston case. That is not the case at all. They could have taken the time to consult, not only with those within the system but with those outside it, and not simply—though necessarily—with the House of Commons and your Lordships’ House, but with other interested parties. None has been given an opportunity to be consulted on a major change of this kind. I do not blame the Minister, but it is regrettable that the Government have acted in this rather typical way under the aegis of the present Lord Chancellor.

I will not divide the House on this matter. We hope that the system works. We would like the Government to consult widely, even now, on how the matters are to be taken forward, and to keep the matter under review. It may be that, for example, the Justice Select Committee will want to look at the operation of the new system after a period. However, that does not excuse the Government for bringing legislation to us at short notice, in a matter as important as this, without allowing for a proper examination. Having said that, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Schedule 1: Sentence and Parole Board release for offenders of particular concern

Amendment 2

Moved by

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2: Schedule 1, page 82, line 31, leave out from “Act” to end of line 32

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My Lords, Amendments 2, 3 and 101 make minor changes to correct an inconsistency in the current legislation relating to driving bans imposed on those who are sentenced to, or are serving, custodial terms.

The Coroners and Justice Act 2009 created an as yet unimplemented provision that requires a court, when sentencing an offender to custody and banning the offender from driving, to take account of the time the offender will spend in custody when setting the length of the driving ban. This was a widely welcomed provision and was designed to avoid a driving ban expiring, or being significantly diminished, during the period the offender is in custody. It therefore requires the court to consider the impact of the time the offender will spend in custody and extend the driving ban by an appropriate amount. The issue that this proposed new clause and amendments address is caused by subsequent legislation—which applies only in England and Wales—that changed the process by which sentences are calculated and expressed by the court.

In short, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 took away from the courts the requirement to calculate, and deduct from the sentence, time spent on remand. This function is now carried out by the National Offender Management Service, which is best placed to calculate periods spent on remand. This change in process is, however, inconsistent with the provision introduced by the Coroners and Justice Act 2009 that required the court, in setting the appropriate driving ban, to take account of the sentence length after the remand time credit has been deducted.

To allow the court to impose the extended driving ban at the same time as it imposes the custodial term, this proposed new clause, and consequential amendments to Schedule 1, remove the requirement that the court consider the sentence length after the remand time is deducted. These amendments are therefore a small change to allow the court to impose a custodial term and a suitably extended driving ban at the same time. These amendments will, in due course, allow work to proceed to commence the provisions in the 2009 Act across the country, as soon as it is practical to do so.

Amendments 102, 112 and 182 insert new clauses and a schedule to the Bill which will allow the UK to give effect to a proposed new bilateral treaty between the UK and the Republic of Ireland permitting mutual recognition of driving disqualifications between the two states. The mutual recognition of driving disqualifications within the EU is currently permitted under the EU Convention on Driving Disqualifications, to which only the UK and the Republic of Ireland are signatories.

As the House is aware, on 1 December 2014, more than 130 measures agreed before the Lisbon treaty which affect the administration of justice and the fight against crime in this country will come under the jurisdiction of the European Court of Justice. The UK alone had the right to decide whether it wished to accept ECJ jurisdiction and Commission infraction powers for these instruments. We chose not to and exercised the opt-out in July last year. This will take effect on 1 December.

We have subsequently reached an “in principle” agreement with the Commission on a package of 35 measures to rejoin, although discussions with the Council continue. We set all this out in a Statement to the House in July. The convention is one of the provisions that we are not rejoining and, as such, mutual recognition of driving disqualifications with the Republic of Ireland will cease to be applied from 1 December 2014 until another mechanism is in place.

These amendments will allow the United Kingdom to enter into a proposed bilateral treaty with the Republic of Ireland on similar terms to those under the convention. However, the provisions will also improve the current situation by closing the loophole which allows those falsely claiming residence in the state of offence to avoid having their disqualification recognised in their home state. Currently, an Irish driver disqualified from driving while in Great Britain is able dishonestly to claim residence there and avoid the UK notifying Ireland that the driver has been disqualified. The same situation exists for UK drivers disqualified in the Republic of Ireland. These amendments will ensure this is no longer the case.

We are also updating the list of Northern Irish offences which are mutually recognised with the Republic of Ireland to bring them into line with those that Great Britain mutually recognises with the Republic of Ireland. The amendments to the Crime (International Co-operation) Act 2003 give effect to the move from the EU convention to the proposed bilateral treaty.

Since implementation in 2010, mutual recognition of driving disqualifications between the United Kingdom and the Republic of Ireland has worked well and both this Government and the Republic of Ireland are keen to ensure that these arrangements continue. In order for a similar system to be introduced once the convention has ceased to apply in the UK, these amendments are necessary. I beg to move.

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My Lords, I welcome the noble Lord, Lord Ashton of Hyde—more Jekyll than Hyde, I would have thought—to the Dispatch Box on what I think is his first occasion and congratulate him on the way in which he has presented the amendments. I look forward to working with him until he starts speaking from this Dispatch Box next May.

There is nothing much more to be said because, on these amendments, there is no great concern on the part of the Opposition or anybody else. Nevertheless, I am sure that the House will join me in congratulating the noble Lord and echoing my anticipation of listening to many more contributions from him on this Bill. I dare say that the noble Lord, Lord Faulks, would welcome some help from him during the next few days, and I am sure that he will get that.

Amendment 2 agreed.

Amendments 3 to 5

Moved by

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3: Schedule 1, page 83, line 11, leave out from “Act” to end of line 12

4: Schedule 1, page 83, line 30, leave out sub-paragraph (3) and insert—

“( ) In subsection (5A) (inserted by section 14 of this Act)—

(a) for “to a prisoner” substitute “to—(a) a prisoner”, and(b) at the end insert “, or(b) a prisoner serving a sentence imposed under section 236A.””

5: Schedule 1, page 84, line 8, leave out sub-paragraph (3)

Amendments 3 to 5 agreed.

Clause 7: Electronic monitoring following release on licence etc

Amendment 6

Moved by

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6: Clause 7, page 6, line 33, at end insert—

“(c) include provision for the court to decline to make an electronic monitoring condition in any case where the court considers that it would be unjust, unnecessary or impractical to do so.”

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My Lords, Amendment 6 is an extremely modest amendment. Your Lordships will appreciate that Clause 7(3) permits the Secretary of State to make electronic monitoring conditions compulsory. I spoke on this issue in Committee, arguing that the imposition of an electronic monitoring condition should remain a matter for the court. I argued that the power to impose such a condition on a prisoner’s release on licence was, indeed, a desirable and sensible power, and that such a condition should be imposed where appropriate. However, I also argued that there may be circumstances in which it would be impractical or unnecessary to impose such a condition, for example where an offender was disabled or was to be hospitalised upon release.

In response to my amendment, my noble friend Lord Ahmad said that he was aware of the concerns that physical or mental health issues or possible practical problems might make compulsory electronic monitoring conditions unsuitable. My noble friend also gave, as an example of impracticality, a case where arrangements could not be made for recharging the battery in the tag—he was right to do so and there may be many other examples of impracticality. However, my noble friend contended that there was flexibility in the order-making power under the subsection that would enable these cases to be taken into account. I am concerned about that. My noble friend said that the Secretary of State would be able to,

“provide for cases in which the compulsory condition should not apply”.—[Official Report, 14/7/14; col. 402.]

I regret that I do not read the clause in that way. While there would, under subsection (3)(3)(b), be power to make provision in relation to persons selected on the basis of criteria specified in the order or on a sampling basis, that is not the same as enabling cases to be dealt with on a case-by-case basis.

The amendment would, quite simply, enable the Secretary of State to incorporate into the order a small element of judicial discretion, whereby, in a given case, a court could decline to make an electronic monitoring condition if it considered it would be unjust, unnecessary or impractical to do so. It would be for the Secretary of State to decide whether to incorporate such provision as I suggest in the order he makes. For that reason, I reiterate that my amendment is modest and limited. It is intended to be helpful. I beg to move.

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My Lords, I want to speak in favour of the amendment of the noble Lord, Lord Marks, but to slightly widen the point that he made. It is my understanding that if one gives a suspended sentence when sentencing and includes, as a part of that, a curfew, then the court is obliged to provide that the curfew is tagged. Very often that is appropriate, but not always. I have certainly dealt with cases where it was totally unnecessary to tag the offenders concerned and it just added to the cost of the whole sentence. There should be judicial discretion when giving tagged curfews in suspended sentences.

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My Lords, the Bill extends electric monitoring, a procedure which thus far has proved problematic and extremely expensive, when you think of the problems with G4S and I think Serco in the contracts that they had. It extends the principle into new territory—namely, that of prisoners on licence. The policy in that respect has been criticised by the Chief Inspector of Prisons on the grounds that there is little evidence of absconding or committing further offences while prisoners are on licence. It would be interesting to hear the Minister’s comments on that. In passing, I hope that he is in a position to deny current rumours that the highly respected chief inspector is unlikely to be reappointed. He has a deserved reputation for the job that he has been carrying out in difficult circumstances for the last few years.

The impact assessment in support of this provision is somewhat feeble. It states:

“Though benefits likely to arise from the increased use of ELM have been identified, we are not able to quantify these benefits at this stage, as ELM is not yet in widespread use in England and Wales. As such, we are unable to calculate impact”.

In other words, this is an impact assessment with no impact whatever. As the following further statement confirms, the number of additional prison places cannot be accurately estimated. Let us reflect on the terrible overcrowding in our prisons now, with a shocking rise in the number of suicides, as we read at the weekend. What is the Government’s estimate of the likely impact of the implication of this new technology, in terms of both cost and of increasing the prison population?

The way in which the Government intend to progress the matter is, as usual, equally unsatisfactory, with the Secretary of State empowered to impose a code of practice without parliamentary scrutiny or approval—hence Amendment 8, which would require such parliamentary approval for the code of practice that the Government envisage. Perhaps the Minister could tell us what is happening about the code. In Committee, the then Minister, the noble Lord, Lord Ahmad, who has escaped or is on licence to another department, said that a revised code would be issued to promote transparency in relation to outsourced services. What is happening about this? What consultations have taken place, and with whom? Will there be reports on the outcome of those consultations?

Amendment 7 would make contractors subject to the provisions of the Freedom of Information Act in the same way as public authorities. It seems absurd that, in the world of the Ministry of Justice alone, Her Majesty’s prisons are subject to FOI requirements while private prisons are not. Given that we are talking about encroachments on the liberty of the individual—and they may well be justified in many cases—it is surely necessary to extend the protection of the FOI regime to this area. I should make it clear that we are not against electronic monitoring, as it clearly has a place, but it must be technically effective and cost effective, especially in the light of the previous experience, with the contracts that went so badly awry and led to large sums of money having to be reclaimed from the contractors, and applied sensibly. We have very little to go on at the moment in terms of how the new scheme would work.

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My Lords, I am grateful to all noble Lords who have taken part in this debate. Perhaps I should begin by suggesting that Amendment 6 is, perhaps, not as well conceived as it might be, because it would provide for the court to decline to impose an electronic monitoring condition in certain cases. However, the court has no role in setting conditions for offenders released from custody on to licence after serving the required part of their sentence. This is a matter for the Secretary of State, through the governor. The parole board also makes recommendations as to licence conditions when the offender is subject to discretionary release.

In the case of an electronic monitoring condition imposed by virtue of an order made under proposed new Section 62A of the Criminal Justice and Court Services Act 2000, as inserted by Clause 7, this is solely a matter for the Secretary of State, through the governor. The amendment would actually have no effect. However, I understand the concern behind the amendment, which is that offenders should not be made subject to compulsory electronic monitoring when this is unsuitable for some reason, or when it is impractical. We recognise that there will be offenders who are unsuitable for compulsory electronic monitoring. For example, this may be because of physical or mental health issues, or because of a practical problem, such as not being able to make arrangements for the offender to recharge the battery in the tag.

These issues are, we suggest, already dealt with by the clause. The order-making power specifies that the Secretary of State may provide for cases in which the compulsory condition should not apply. I appreciate that this may not be immediately obvious from a reading of the clause, but the Explanatory Notes—although I take the comments of the noble Lord, Lord Beecham, about their inadequacy in some respects, and I shall come on to deal with that—are helpful in this regard, as indeed was my noble friend Lord Ahmad when he spoke on the matter in Committee.

Perhaps this is the point at which to deal with the question of impact assessment. I think that it is generally accepted that electronic monitoring can have a useful role. It identifies the whereabouts of a potential offender and can act as a deterrent or assist in detection were offences to be committed. Thus there is no doubt about the merits of electronic monitoring in appropriate cases. It is difficult to assess its effectiveness in terms of reducing the prison population. It is hoped that if it acts as a deterrent it may in fact reduce the prison population, but anything by way of an impact assessment would inevitably be something of a guess and would no doubt be criticised on that basis.

Subsection (3) introduces new Section 62A into the Criminal Justice and Court Services Act 2000. That new section allows for the Secretary of State to make an order requiring electronic monitoring in particular cases described in the order. However, it also allows the Secretary of State to make provision by reference to whether a person specified in the order is satisfied of a matter. So, it would be possible for the order to exclude offenders on an individual basis if the person specified in the order is satisfied that the offender has a physical or mental health problem which renders the offender unsuitable for the licence condition, or in cases in which a person is satisfied that it is impossible to make arrangements for the offender to recharge the battery in the tag. Relying on Section 62A(2)(b) and Section 62A(3)(c), the order could provide that an electronic monitoring condition must be imposed otherwise than in such cases.

I hope that this provides the necessary reassurance that the clause makes provision for the concerns which lie behind the amendment, so that compulsory electronic monitoring will not be used inappropriately. I am grateful to those who put down the amendments for the opportunity to elaborate and, I hope, to clarify that.

Amendment 7 would require outsourced electronic monitoring services providers to make information available as if they were subject to the Freedom of Information Act 2000. This would be achieved by a requirement in the code of practice to be issued under a new Section 62B of the Criminal Justice and Court Services Act 2000, to be introduced through Clause 6 of the Bill. Similarly, Amendment 120 would extend the Freedom of Information Act 2000 to providers who have entered into a contract with the Secretary of State to provide or run secure colleges under Schedule 6 to the Bill. It would do so directly, rather than via a code of practice. In summary, both amendments would require private providers to make information available both in response to FoI requests and proactively through publication schemes.

As my noble friend Lord Ahmad of Wimbledon made clear in Committee, we recognise the concerns that exist about the status of private sector contractors under the Freedom of Information Act. Pausing there, the noble Lord, Lord Beecham, made reference to the difficulties—to put it mildly—with G4S and Serco. In effect, he posed the question as to what we have done to guard against a repeat of the overcharging scandal. My answer is that lessons have been learnt, the new contracts will be subject to robust contract management from the outset and under the new arrangements, the Ministry of Justice will have far greater oversight over costs and charging than previously, with direct access to supplier systems to increase transparency.

We recognise the concerns that exist. As noble Lords may be aware, this issue was considered during post-legislative scrutiny of the Freedom of Information Act 2000 by the Justice Select Committee in 2012. We are already taking steps to address these concerns in ways consistent with that committee’s recommendations. Rather than favour the formal extension of the Freedom of Information Act, the committee recommended that contractual provisions be used to ensure openness. The committee was of the view that,

“contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act”.

It also believed that,

“the use of contractual terms to protect the right to access information is currently working relatively well”.

We intend to issue an expanded code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. This approach represents an appropriate balance between transparency and minimising burdens on business.

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Could the Minister indicate whether there will be consultation on those proposals, and with whom?

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I hope to come to that in a moment.

As was explained in Committee, the code will not only encourage the use and enforcement of contractual provisions to ensure that current FoI obligations about information held on a contracting authority’s behalf are met but will promote the voluntary provision of other information where this would help to provide a more meaningful response to requests. The success of this approach will, as was also made clear in Committee, be monitored by both the Government and the Information Commissioner. If it does not achieve sufficient transparency, we will consider what other steps, including the possible formal extension of FoI to contractors, are required. Once the code of practice is issued, it is important that we give it the opportunity to prove its worth before deciding whether further measures are necessary. I therefore invite noble Lords not to press Amendments 7 and 120.

We also debated Amendment 8 in Committee, and I sought then to explain why it is not appropriate. We agree that the code of practice is a necessary and important document. It is intended to make sure that the necessary safeguards are in place for the proper management of the data gathered by electronic monitoring conditions. It will, of course, comply with the Data Protection Act. However, it is for operational purposes and will not introduce any new legal requirements. That is why we do not propose to agree its content through parliamentary procedure.

I should remind the House that it passed the provisions in the Crime and Courts Act 2013 that inserted new Section 215A into the Criminal Justice Act 2003. This also provides for a code of practice relating to the processing of data from electronic monitoring and is linked to provisions allowing location monitoring of offenders as a community requirement. This provision was approved by Parliament with no requirement for the code to be subject to affirmative secondary legislation. The amendment would, therefore, be inconsistent with the provisions already approved for a code of practice.

I should perhaps add a little more about the scrutiny that has been undertaken in relation to electronic monitoring and the approach to contract management that has informed the new contracts. Within the MoJ, and specific to electronic monitoring, this has meant the new contracts being drafted and let with key elements such as open-book accounting being critical. Accountability for contract management will be much clearer, with contract owners called regularly to account for their detailed knowledge of the contracts and their operational assurance that services are properly assured and audited.

On the amendment, I can only reiterate the assurances that I have given previously. We have committed to consultation on the code of practice, which will include consulting the Information Commissioner. I also confirm that the code of practice will be published. I do not have, at the moment, a specific date for publication of the code of practice but we hope to issue guidance to the standard contract clause by the end of 2014. If I receive further information on the probable date for the code of practice, I of course undertake to inform the House, and certainly the noble Lord, Lord Beecham.

I hope that I have satisfied the House on these issues of concern. Electronic monitoring would naturally be a matter of concern, but it is also a valuable tool in the detection and prevention of crime. I therefore ask the noble Lord to withdraw his amendment.

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My Lords, in relation to Amendment 6, I accept my noble friend’s point that it is for the Secretary of State rather than the court to deal with electronic monitoring conditions. He is right about that. He was also right to recognise the concerns as to whether such conditions could be imposed inappropriately or where unnecessary, unjust or impractical.

I understand him to have given an assurance that he understands that the power to make an order which makes,

“provision by reference to whether a person specified in the order is satisfied of a matter”,

enables the order to ensure that the person is satisfied that it would not be impractical to impose such an electronic monitoring condition. On that basis, I join in his observation that it is not entirely clear, even though it may be clear from the Explanatory Notes, which of course form no part of the statute. Those who are left with the difficult task of unravelling this arcane piece of drafting will no doubt be able to read the report of that assurance. On that basis, I beg leave to withdraw this amendment.

Amendment 6 withdrawn.

Amendments 7 and 8 not moved.

Amendment 9

Moved by

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9: Before Clause 8, insert the following new Clause—

“Recall adjudicators

(1) After section 239 of the Criminal Justice Act 2003 insert—

“239A Recall adjudicators

(1) In this Chapter, “recall adjudicator” means a person for the time being appointed as such by the Secretary of State.

(2) The Secretary of State may appoint the Board or another person.

(3) The Secretary of State may, in particular, appoint a person—

(a) to carry out all or only some of the functions of a recall adjudicator;(b) to carry out such functions only in relation to a specified area;(c) to carry out such functions only in relation to a specified description of case.(4) The Secretary of State may make rules with respect to the proceedings of recall adjudicators.

(5) The Secretary of State may appoint a recall adjudicator (referred to in this section as “the chief recall adjudicator”) to oversee the activities of recall adjudicators.

(6) The chief recall adjudicator may, in particular—

(a) issue guidance with respect to the carrying out of the functions of recall adjudicators, and(b) make recommendations to the Secretary of State about the termination of appointments under this section.(7) Before issuing guidance the chief recall adjudicator must consult the recall adjudicators and the Secretary of State.

(8) A recall adjudicator must carry out his or her functions in accordance with guidance issued from time to time by the chief recall adjudicator.

(9) The Secretary of State may make payments to a recall adjudicator.

(10) A person is not to be regarded as acting on behalf of the Crown, or as enjoying any status, immunity or privilege of the Crown, by virtue of an appointment under this section.”

(2) The amendments of Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release etc of fixed-term prisoners) in section 8 of this Act confer functions on recall adjudicators in connection with the release of fixed-term prisoners following their recall.

(3) Schedule (Recall adjudicators: further provision) to this Act contains further provision relating to recall adjudicators.”

Amendment 9 agreed.

Amendment 9A not moved.

Clause 8: Test for release after recall: determinate sentences

Amendments 10 to 37

Moved by

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10: Clause 8, page 7, line 41, after “(4)” insert “—

(i) ”

11: Clause 8, page 7, line 42, at end insert “and

(ii) for “the Board” substitute “a recall adjudicator”,”

12: Clause 8, page 8, line 2, leave out “Board” and insert “recall adjudicator”

13: Clause 8, page 8, line 10, leave out “Board” and insert “recall adjudicator”

14: Clause 8, page 8, line 11, leave out “the Board is”

15: Clause 8, page 8, line 14, leave out “Board” and insert “recall adjudicator”

16: Clause 8, page 8, line 16, leave out “Board” and insert “recall adjudicator”

17: Clause 8, page 8, line 18, leave out “Board” and insert “recall adjudicator”

18: Clause 8, page 8, line 33, at end insert—

“( ) in subsection (4), for “the Board” substitute “a recall adjudicator”,”

19: Clause 8, page 8, line 35, leave out “Board” and insert “recall adjudicator”

20: Clause 8, page 8, line 43, leave out “Board” and insert “recall adjudicator”

21: Clause 8, page 8, line 44, leave out “the Board is”

22: Clause 8, page 9, line 1, leave out “Board” and insert “recall adjudicator”

23: Clause 8, page 9, line 3, leave out “Board” and insert “recall adjudicator”

24: Clause 8, page 9, line 5, leave out “Board” and insert “recall adjudicator”

25: Clause 8, page 9, line 13, leave out “the Board” and insert “a recall adjudicator”

26: Clause 8, page 9, line 15, leave out “the Board” and insert “a recall adjudicator”

27: Clause 8, page 9, line 19, leave out “Board” and insert “recall adjudicator”

28: Clause 8, page 9, line 22, leave out “Board” and insert “recall adjudicator”

29: Clause 8, page 9, line 28, after “(2)” insert “—

(i) ”

30: Clause 8, page 9, line 28, at end insert “and

(ii) for “the Board” substitute “a recall adjudicator”,”

31: Clause 8, page 9, line 28, at end insert—

“( ) in subsection (3), for “The Board” substitute “A recall adjudicator”,”

32: Clause 8, page 9, line 29, after “(4)” insert “—

(i) for “Board” substitute “recall adjudicator”, and(ii) ”

33: Clause 8, page 9, line 36, leave out “Board” and insert “recall adjudicator”

34: Clause 8, page 9, line 37, leave out “the Board is”

35: Clause 8, page 9, line 39, leave out “Board” and insert “recall adjudicator”

36: Clause 8, page 9, line 41, leave out “Board” and insert “recall adjudicator”

37: Clause 8, page 9, line 44, leave out “Board” and insert “recall adjudicator”

Amendments 10 to 37 agreed.

Clause 9: Power to change test for release after recall: determinate sentences

Amendment 38

Moved by

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38: Clause 9, page 10, line 25, leave out “Board” and insert “recall adjudicator”

Amendment 38 agreed.

Clause 10: Initial release and release after recall: life sentences

Amendment 39

Moved by

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39: Clause 10, page 11, line 2, after “(prisoners)” insert—

“(a) after subsection (2) insert—“(2A) Without prejudice to the powers of the Secretary of State to change the release test under this section, the Parole Board shall direct the release on licence of prisoners serving indeterminate sentences with a tariff of less than 2 years imposed before 2008 when the Criminal Justice Act 2003 was amended.”;”

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My Lords, this amendment relates to a group of 650 prisoners serving indeterminate sentences for the protection of the public under Section 225 of the Criminal Justice Act 2003. They are part of a much larger group of over 5,000 prisoners serving indeterminate sentences under that section. However, this amendment does not affect the larger group.

As your Lordships know, the IPP sentence has now been abolished. Mr Blunkett, who introduced the sentence in 2003, has accepted that although the idea was sound the implementation was disastrous—for which, I believe, he has apologised, a rare thing in politics. The problems became apparent very early on. As a result, Section 225 was amended in 2008. The amendment affected in two ways the group of prisoners with whom I am particularly concerned. First, the indeterminate sentence ceased to be available for those with a tariff of less than two years. Secondly, whereas the court was bound to assume under the provisions of the Act that the defendant was dangerous before 2008, that assumption ceased to apply after 2008. It was for the judge thereafter to decide in each case whether or not to impose an indeterminate sentence.

So far, so good. But there was one great defect in the amending legislation, which I am afraid to say I failed to notice at the time. It made no provision at all for those who had already been given an indeterminate sentence with a tariff of less than two years before the amendment took effect. One therefore had this position: a defendant committing a minor offence—such as arson, wounding, or whatever it might be—before 2008 which merited a determinate sentence of, say, four years, would be given an indeterminate sentence with a tariff of two years, or half the notional determinate sentence. That was the way in which it was intended to work and did work. There was no alternative.

However, exactly the same defendant committing exactly the same offence after 2008 could not be given an indeterminate sentence; it was simply no longer available for him. He will have been given, correctly, a determinate sentence of four years. As a result, he will of course have been released years ago under the ordinary early release provisions entitling him to release at a halfway stage. Meanwhile, the 650 unfortunate defendants committing exactly the same offence before 2008 are still in prison. I suggest that it does not take much imagination to see the sense of injustice that that has created.

When we debated this matter in Committee, the picture was clear enough but the detailed figures were not available. Therefore, on 14 July, I put down a Question for Written Answer. On 1 September, not before time, I was told that the information,

“could be provided only at disproportionate cost”.—[Official Report, 26/9/14; col. WA 464.]

Happily, the Ministry of Justice had second thoughts and, last week, the figures were provided at last, just in time for this debate. Those figures have now been published. Your Lordships will not have seen those figures so I must ask the House to be patient as I summarise them. I think I can undertake that your Lordships will find them somewhat surprising. Eight of these prisoners with whom I am concerned were given tariffs of less than three months. Twenty-two of them were given tariffs of less than six months; 27, tariffs of less than nine months; 64, tariffs of less than 12 months; 88, tariffs of less than 15 months; 114, tariffs of less than 18 months; and 327 of them, tariffs of less than 24 months. That makes 650 in all. The current assessment in relation to 500 of those 650 prisoners is that they present a very low or, at most, a medium risk of reoffending. The question arises as to how that can possibly have been allowed to happen. Those 650 are still in prison six, seven or even eight years after they completed those very short tariffs. How can that be justified?

I shall fast forward to 2012 when IPP sentences were abolished. On that occasion, the Government decided, rightly in my view, that something must be done about the backlog. By Section 128 of LASPO, the Lord Chancellor was given power to amend the release test for these IPP prisoners so that it was no longer necessary for them to satisfy the ordinary release test which applies in the case of life-sentence prisoners. In other words, the test needs no longer to depend on risk. Surely, it must be obvious that the Lord Chancellor was given that power for one purpose only; that is, in order to speed up the release of these IPP prisoners who are still in prison. There could, quite literally, have been no other purpose. Perhaps I may come back yet again to the 650 prisoners. Currently, they are being released at the rate of 120 a year. Therefore, it will be at least five more years before the backlog in their respect is cleared, in addition to the six, seven or eight years by which they have already exceeded their tariff.

This power was given to the Lord Chancellor by a Conservative Government when Ken Clarke was Lord Chancellor. However, the present Lord Chancellor has declined to exercise that power. The question is: why? He has given only two reasons in the correspondence that I have had with him. In February 2013, he said that it would not be right to interfere with the decision of judges who had taken risk management issues into account. That was just plain wrong. The judges who passed these sentences had not taken risk management issues into account. As already explained, they were bound to assume dangerousness until the Act was amended.

The second reason, which was given a year later, was no better. He said:

“It would be inconceivable and indeed irresponsible for the Government to release individuals that the … Parole Board … assess as continuing to pose risks to the public”.

He said that he could not “countenance such a change”. The difficulty with that as a reason is that it totally disregards Section 128 of LASPO. The whole purpose of Section 128 was to enable the Lord Chancellor to change the release test. Was it then irresponsible of Parliament to give him that power? Is it inconceivable that Parliament intended him to use that power? There surely must be some other reason why the Lord Chancellor has declined to exercise the powers which he has been given. But as to that we can only speculate. I hope that the Minister can enlighten us.

In March, a leader in the Times ended:

“The scandal Mr Grayling should address is that a process set out in law”,

has not been “followed in life”. It must be followed now. I suggest that “scandal” is not too strong a word in this context. The Lord Chancellor had a chance to address that scandal when we debated this amendment in July but he did not take it. The Minister, when he came to reply, gave the same reason—the first reason—that had been given by the Lord Chancellor. He pointed out that the power he had been given was discretionary, which of course is quite right, so it was said that he need give no reason at all, and that was it. I find that totally unsatisfactory.

The question then is: what should we do? As the Lord Chancellor has declined to exercise the discretion that he has been given by Parliament, it seems to me that we in Parliament must now take the matter back into our own hands and exercise the discretion ourselves. That is the sole purpose of the amendment.

Years ago, in a passage often quoted by the noble Lord, Lord Ramsbotham, Winston Churchill said that the one infallible test of any civilised country is the way it treats its prisoners. I suggest that the current Lord Chancellor would do well to keep that advice in mind. Thus any judge would tell you that justice as a concept is indivisible. Victims are of course entitled to justice, and so are members of the public, but so too are prisoners. Indeed, the prison system only really works when sentences are seen to be fair as between one prisoner and another. That is one of the basic principles of all sentencing. Otherwise there will surely be trouble.

Last week I attended a meeting of the Constitution Committee at which the Lord Chancellor gave evidence. He said much about his stewardship role over the judiciary but nothing at all about his duty as Lord Chancellor—indeed, his primary duty under Section 1 of the Constitutional Reform Act 2005—to uphold the rule of law in all its aspects, until he was gently reminded of that matter by the chairman. Nor did he say anything about the role of the Lord Chancellor as custodian of the constitutional values of this country. I found that surprising and very worrying. Fairness, as indeed he must know, lies at the very heart of the rule of law.

The purpose of this amendment is to bring back to some 650 of our prisoners a sense that they too are entitled to a measure of justice and fairness under the rule of law, which the Lord Chancellor is bound to uphold. I beg to move.

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My Lords, in over half a century in the law, inevitably one comes across a number of injustices in individual cases of one sort or another. However, I think I can fairly say that I have never come across an injustice as plain and persistent as this on an institutionalised basis, because that is what this is, and it grows worse with every passing year.

In order to understand how truly shocking it is, it is necessary to understand three basic matters. First, preventive detention, which IPPs essentially amount to—incarcerating people on an indefinite basis, not as punishment for what they have done but to guard against the risk that they may cause harm if they are set at liberty—is basically inimical to our sense of fairness. It is true that we accept that discretionary life sentences can be passed in the cases of the most serious and dangerous offenders, but that is really a very far cry from IPPs, with which we are concerned here, which extended to no fewer than 153 specified different crimes. They were, of course, as has been explained, abolished in 2012 once the basic unfairnesses finally came to be recognised.

The second point is that the seven-year life of IPP sentencing fell into two distinct phases: phase 1—April 2005 when it began until July 2008 when the scheme was amended, so that was just over three years—and phase 2, from the amendment in July 2008 until abolition four years later in 2012. The noble and learned Lord, Lord Lloyd of Berwick, explained the two most critical differences between those phases. First, in phase 1, the tariff term—half of what the determinate sentence would have been, representing the appropriate punishment for the crime—could have been as little as a month, as we have seen from the figures, and was frequently only a very few months, whereas in phase 2 an IPP sentence could only be passed if the tariff term exceeded two years. The second difference was that in phase 2, an IPP sentence was made discretionary, whereas in phase 1 the judge had generally been required to assume dangerousness, so he had no discretion on the matter; he had been bound by statute to pass an indeterminate sentence.

The third matter is that those sentenced even during phase 2, once they served their tariff term, could possibly be said to have had a real grievance because even they were worse off than those who committed equivalent offences after the abolition of the scheme in 2012. Anybody subsequently offending as they had done could not have been sentenced to an indefinite term as they were.

This amendment is not in any way directed to them, but instead addresses an altogether more flagrant injustice. It concerns only those who were sentenced in phase 1 and only those with tariff terms of less than 24 months—650 prisoners, as the noble and learned Lord, Lord Lloyd, has explained—who are infinitely worse off than any of the others, and particularly worse off than those sentenced in phase 2. They are worse off in three particular ways: first, because their tariff terms were less than 24 months, as explained, which could not have applied to phase 2 detainees; secondly, because in their case, the court had had no discretion in the matter, but had been required to assume that they were dangerous and to pass the sentence; thirdly, because by definition their sentence was imposed now more than six years ago, so that they would already would have served two years longer than any determinate sentence would have been, subject, perhaps, in a rare case to an extended sentence. In the great majority of cases, however, they will have been serving years longer even than that.

As I put it in Committee in July, this amendment would cut the Gordian knot with regard to this most unfairly treated cohort of IPP prisoners, and would bypass the Secretary of State’s surprising and regrettable refusal to exercise his Section 128 power to adjust the test for the Parole Board to apply. The amendment would at least ensure that this cohort, at long last, would be set free. Of course, some of them may in future commit further offences—of course that is possible. That, however, is the price we pay generally for not allowing preventive detention, and it is the price that we must pay for ending this ever lengthening regime which is now, in their case, one of purely preventive detention. At long last, it would remove this unpleasant stain from our criminal justice system. I join with the noble and learned Lord, Lord Lloyd, in urging the House to pass this amendment and end this major injustice in our law.

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My Lords, I pay tribute to my noble and leaned friend, Lord Lloyd, for his tireless pursuit of this particular issue, which amounts to nothing less than a stain on our national reputation for observing the rule of law. More than that, as a former Chief Inspector of Prisons, I am most surprised that the Secretary of State, who is faced with enormous financial problems in the management of his prisons, should not be seeking every possible way of getting out of the prisons the people who should not be there. That is an avoidable expense, and I have said this over and over again.

Furthermore, as the Minister knows, the prisons do not have sufficient resources to provide the means by which these people can prove their right to be released to the Parole Board. Only last year, I reported to the House a most tragic case of an IPP prisoner who had already been in prison for more than three years after his tariff and was sent to a prison where he would receive the course that he required in order to satisfy the Parole Board, only to be told that not only did that prison not have the course, but it was not intending to do so for two years; so he committed suicide. He is not the only IPP prisoner to have taken his own life because of his despair of the Government exercising their obligations, which have been so clearly deployed by the noble and learned Lord, and observing this country’s reputation for observation of the rule of law.

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My Lords, this House is quite accustomed to criminal justice legislation and in debates of this kind looks inevitably to those who have genuine experience of the legal profession to take the lead. Every now and then, however, an issue comes up that requires some contribution from people like the noble Lord, Lord Ramsbotham, and myself who, although we are not trained lawyers and have never practised law, nevertheless in the course of our careers have come across, and have been made to come across, cases where injustice appears to have been done. This is turning into such a debate.

It is hard to unpick the excellent demonstration of the facts produced by the noble and learned Lord, Lord Lloyd of Berwick. We are left with those facts, but we have to find a remedy. The noble and learned Lord has set out in his amendment the only remedy that he thinks is to hand: to take back into Parliament, into our own hands, the permission—the discretion— which is given in the legislation to the Lord Chancellor, but which he repeatedly refuses to exercise, although the arguments for exercising that discretion have been made over and over again and are very strong indeed.

Therefore, I simply come in to say, as someone who is not a lawyer but who has been forced by his career to take an active interest in the effect of the law on individuals, that I see in this an example—I would say a flagrant one—of injustice being permitted, indeed committed, by those who do not intend it. Nevertheless, the law as proposed would have that effect. I therefore very much support the noble and learned Lord’s amendment and the arguments which have been put in its favour from all sides of the House.

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My Lords, we have heard three very powerful speeches from noble Lords—and noble and learned Lords in two cases—on the Cross Benches, and I anticipate that we are about to hear another one in a moment. We also heard a powerful intervention from a former Home Secretary, who is one of the most admired figures in British politics in the last 40 years. I cannot improve on what they have said, and will not try to do so. All I want to say, speaking as I do from one of the political Benches in this House, is that this is an issue upon which those of us who sit on political Benches are entitled to, and should, exercise our consciences. If we engage our consciences, the extraordinary speech from the noble and learned Lord, Lord Lloyd of Berwick, completely wins the day. I therefore hope that noble friends, as well as those elsewhere in the House, will see that if this matter divides the House, the only course they can take is to support this amendment.

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My Lords, the unhappy cohort of prisoners to which this amendment relates linger in prison years after they have completed terms of imprisonment that reflect their culpability. They linger because of a statutory presumption that they are dangerous, which is discredited, has been repealed, and is surely, in the cases of many of them, unjustified. I find it impossible to envisage any credible reason why the Secretary of State has not exercised the power that he has been given to procure their release. His inertia belies the title of Secretary of State for Justice. This amendment cries out for the support of the House.

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My Lords, I apologise for having missed the first two minutes of the speech of the noble and learned Lord, Lord Lloyd, in moving this amendment. As he and the Minister may well be aware, this subject has been exercised me considerably over many months now, having seen cases arising in Wales, and we had a debate on this matter earlier this year. I pay tribute to the way in which the noble and learned Lord, Lord Lloyd, has persevered with this important battle, by now over many months and years. The facts that he has put before the House this afternoon should most certainly be of concern to anyone who takes an interest in matters of law and who is concerned about the good name of the UK’s judicial system. The case is valid for the whole cohort, but I very much hope that, at least in the limited number of instances he has quoted, where very little risk is at stake, there can be no possible argument, even from the Government’s own standpoint, for not making progress on this matter. I follow the plea made by the noble Lord, Lord Carlile, that noble Lords of all parties across this House take this issue to heart. I very much hope that colleagues on the Labour Benches will stand up and be counted on this matter.

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My Lords, I stand here as someone who does not share the professional knowledge that some have shown very clearly in this debate; their arguments were clearly and well made. The simple argument from fairness as regards one cohort of prisoners against another has also been referred to, which is also a powerful argument. A very pragmatic argument has also been alluded to, which is that we have within the prison estate this group of prisoners who have good reason to feel unhappy with their lot. That cannot but make their management more difficult for those who are charged with managing them within the prison estate. Therefore, pragmatic arguments as well as what you might call moral and legal arguments are relevant to this case. I am one of those who would wish to support this amendment. Not only would it right a wrong, but it would lead to an easing of the burdens upon those who have responsibilities for the management of our prisons.

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My Lords, I pay credit to the speeches that have already been made from all sides of the House, including, I am glad to say, from those Members of this House who are entitled to be known not only as “noble Lords” but as “noble and learned Lords”. I do not conceive that anyone would think that I was not in complete agreement with every one of their speeches. However, just in case that might not be the situation, I say most emphatically that I have never heard such an indictment of our justice system as I have listened to this afternoon.

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My Lords, coming from a background in policing many years ago, it might be thought by those who indulge in stereotypes that I would be a lone voice advocating that we should get involved in what is sometimes called “lock them up and lose the key”. I stand in your Lordships’ House today to say that I fully accord with everything that has been said. The case was admirably laid out by the noble and learned Lord, Lord Lloyd of Berwick, and other noble and learned Lords in this House. I, too, agree with everything that was said, and if the House is invited to divide, I shall vote with the amendment.

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My Lords, I fully support the argument adduced by the noble and learned Lord, Lord Lloyd. It goes without saying that we are entitled to remove a stain—and I say that advisedly—on our legal system. I will not detain the House for long, but I fully support what the noble and learned Lord, Lord Lloyd, has said, which has been supported by so many other Peers.

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My Lords, I join other noble Lords in paying particular tribute to the noble and learned Lord, Lord Lloyd, who has been indefatigable in pursuit of correcting an injustice. I will say at the outset that while I agree from these Benches that action needs to be taken to redress the situation, I will not be going through the Lobby with him, but nor will I, if the Government resist this amendment, go through the government Lobby. The problem is that the amendment may extend to people within the category, most of whom should certainly by now have been released, but who nevertheless remain, on proper assessment, people with whom there would be a risk if they were released. I submit that the correct procedure is for the Lord Chancellor and Secretary of State to exercise the power that is clearly given to him in the legislation.

One of the issues that has so troubled Members of this House and many outside is the failure of successive Governments—and I am afraid that it was true of the Labour Government—to provide the necessary resources which would enable people in serving these sentences to qualify for release. I am minded to refer to a letter which I received a month ago—one which other Members of your Lordships’ House may also have received. It is not from somebody who has actually been imprisoned for as long as those who are the subject of the amendment, but it is nevertheless a very telling example of what is still happening as a result of that failure to provide the resources, and shows the need for the system to be robust in examining the cases. I am not sure whether the writer of this letter would want me to quote their name or indeed the name of the prisoner on whose behalf the letter was written, but it will give a flavour of the situation, which is much worse for those who have been inside prison for a longer period.

The person in question, the correspondent tells me, was charged with attempted actual bodily harm and grievous bodily harm with intent, and was given a three-year IPP. He is now a year and a half over tariff, which is much less than those who would be covered by the amendment. In addition to the stress of not knowing how long his sentence will continue, during his incarceration he has suffered the loss of his wife and mother, and has been diagnosed with lupus and is obviously on medication for this. He has been an enhanced prisoner virtually throughout his sentence, with no reprimands, sanctions or IEP warnings. He is the healthcare representative for his wing as well as the violence reduction and older persons’ representative. He has undertaken every course advised by the authorities and completed his sentence plan. Together with fellow IPP prisoners, he now needs to know what further action they can take to secure their release date. Just knowing their official release date would give both them and their families something on which to focus. Having a definite date when their future will start will enable them to put their past troubles behind them. To have no end to their sentence is surely unacceptable in this day and age, and in fact is the reason that this whole system was deemed out of date and not viable.

That is a very clear illustration and telling indictment of the present situation. It has to be corrected. For the reasons already given, I do not believe that the noble and learned Lord’s formulation quite meets those requirements or deals with—

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If this formulation does not meet the requirements, why has the Labour Party not put forward its own amendment to do so?

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Because the Act to which we have already referred gives the Secretary of State the power to do exactly what is required. He should be exercising that power, and that is what we would expect him to do.

We share the concern of all Members of your Lordships’ House, and the deep anxiety voiced about what is happening to people who serve much longer sentences than the person whose plight is laid out in this correspondence. We call upon the Government to use the power that they rightly conferred upon themselves just two years ago. In that way the matter can be resolved. Of the 650 prisoners, while some are still deemed to be at high risk, many are already deemed to be at low risk and on that account very likely to be released. As other noble Lords have pointed out, that will free up prison spaces and potentially reduce the cost to the public purse, both of which are highly desirable objectives. Therefore I hope the Minister can give an indication that action will be taken—if not necessarily strictly along the lines that the noble and learned Lord, Lord Lloyd, has proposed then in some other way—to deal with the appalling situation affecting too many people which has accumulated over the years.

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My Lords, this has been an excellent and very well informed debate, with contributions from sources well versed in the law and experienced in criminal law, and sources who had occasion to come into contact with the law and its implications. I am grateful for all those contributions, many of which were extremely economical—I congratulate noble Lords on their restraint in allowing the House to proceed—but powerful.

We return to this subject of IPP prisoners who remain in prison despite the fact that the sentence has now been abolished and may not be imposed on offenders convicted after December 2012. We debated a very similar amendment at length in Committee so I do not intend to rehearse the entire debate we had then. Noble Lords are well aware of the Government’s position and we do not think it would be right or appropriate retrospectively to alter IPP sentences that had been lawfully imposed prior to the sentence’s abolition, particularly because these sentences were imposed with public protection issues in mind. However, I recognise, as many noble Lords have said, that fairness—an elusive concept though that is—should be at the forefront in considering these issues, as should the equally elusive concept of justice that is vital in considering issues of this sort. I am also painfully aware of the implications of keeping any prisoner one day longer than he or she ought to be kept in prison because of the expense involved, expense that we can ill afford, but the Secretary of State has to balance concepts of fairness and justice with his duty to protect the public.

Perhaps I may make one or two observations about the history, which has been summarised by noble Lords in the course of this debate. While echoing the worthwhile tributes paid to the noble and learned Lord, Lord Lloyd, for his tenacity in this area, I cannot quite agree with his assessment of the disparity in position between short-tariff IPP offenders sentenced before the 2008 reforms and those sentenced afterwards. It is not the case that, prior to 2008, courts were without any discretion in imposing IPP sentences. It was in the court’s discretion to judge whether the offender met the high risk threshold set out in the 2003 Act—did he present a significant risk of serious harm? The presumption that he presented such a risk if he had committed a previous Schedule 15 offence was a rebuttable presumption, and the court was free to disregard it if it was not a reasonable view in the individual case. I do not deny that, where they found the offender to meet the dangerousness threshold, courts were indeed obliged to impose IPPs on eligible offenders, and that was plainly Parliament’s intention.

I should also stress that it remained possible to receive an IPP with a lower tariff than two years until IPPs were abolished by this Conservative-led Government by the LASPO Act 2012 where the offender had a serious previous conviction, and in fact a number continued to get short-tariff IPPs. It is likely that some of those sentenced to IPPs with short tariffs between 2005 and 2008 would have remained eligible for an IPP, and perhaps received an IPP after the 2008 reforms. I cannot agree, therefore, that this group of IPP prisoners can be presumed to be less dangerous than other IPP prisoners.

As I have said before, it is right that offenders serving indeterminate sentences of imprisonment for public protection—a species of preventive detention, as the noble and learned Lord, Lord Brown, said—should continue to be detained post tariff if their detention is necessary for the protection of the public and they are therefore not safe to release. The noble and learned Lord, Lord Lloyd, and a few others have seen an analysis of management information, prepared last year, relating to the situation of IPP prisoners who were sentenced prior to July 2008 with tariffs of under two years, who remained in prison and whose tariff had expired.

It is true that initially the cost of providing the information, which has been accurately summarised by the noble and learned Lord, was considered too high but, such was his tenacity and, as I understand it, such was the respect that the Ministry of Justice had for him, the information was provided and has been summarised by the noble and learned Lord. The position is that my colleague the Prisons Minister, Andrews Selous, has agreed with the House authorities that the information can be lodged in the House Library. It will take one week for this to appear but I confirm that he has requested that it be put in the Library. However, I can also confirm that the figures that the noble and learned Lord announced were accurate, so they have informed the debate in terms of the numbers and the periods in prison.

In my view, this information provides clear evidence that the continued detention of short-tariff IPP prisoners remains justified, and the Parole Board still considers that they pose an unacceptable risk to the general public and to themselves in many cases. In 2013, a sample of 100 prisoner cases from this group was subject to thorough analysis. Of these, the majority—80—were assessed as being at high risk of serious harm. None was assessed as being at low risk of serious harm.

We have recently provided further data on this group to the noble and learned Lord, Lord Lloyd. A total of 121, or 16%, of prisoners from the group that remained in custody as of 31 March 2013 achieved release during the 12-month period to 31 March 2014. Of those remaining in custody, the proportion of prisoners who are at high or very high risk of serious harm has increased to 83% of the group—again, with no prisoners assessed as being at low risk of serious harm.

It may be helpful if I briefly explain how the risk scores work in the data that some noble Lords will have seen. These data include OGRS scores, which deal with the risk of reconviction, and RoSH scores, which deal with the risk of serious harm. Although a proportion of IPP prisoners are at low risk of reconviction, the degree of harm that they are likely to cause if they reoffend is in most cases high or very high, in other cases medium but in no cases low. The fact that a substantial number were, in fact, approved for release clearly also demonstrates that, where the risk has reduced enough to be safely managed in the community, short-tariff IPP prisoners are being approved for release by the Parole Board using the current release test.

All IPP prisoners, irrespective of sentence length, must have their parole review upon tariff expiry, and at least every two years following that, before the independent Parole Board. As of 31 March 2014, 650 IPP prisoners were, as the noble and learned Lord said, still in custody, having received a tariff length of less than two years prior to the changes brought about by the 2008 Act. In accordance with policy, all these offenders should have had a parole review on their tariff expiry and subsequent reviews at least every two years. This means—this is an important point—that almost all, if not all, will have received at least three parole reviews concluding that they were not safe to release on grounds of risk of harm and public protection.

The noble and learned Lord, Lord Brown, and others say that this amendment would cause Parliament to bypass the Secretary of State. It would also cause it to bypass the decision-making by the Parole Board, which comes to its decisions on grounds of public protection. To release all of these prisoners now would be to run an unacceptable risk to the public. It would amount to a blanket judgment that goes against the repeated independent advice of the Parole Board, which has examined each case on an individual basis and decided that the risks to the public of release would be unacceptable.

I am sorry that the noble Lord, Lord Beecham, is unable to be more specific on why the party opposite will not be following the noble and learned Lord, Lord Lloyd, if he chooses to divide the House. However, it may be that the argument that would persuade his party is the protection of the public and the fact that these prisoners—short tariff though they may have had—have been assessed by the Parole Board in accordance with the test.

There has been reference to Section 128 of the LASPO Act, which gives the Secretary of State a power to change the Parole Board’s release test for IPP prisoners. We have no current plans to use this power. The figures that I have just referred to suggest that the current system is operating properly to ensure that the most dangerous are not released and that those whose risk can be managed in the community are able to attain release. Greater numbers of IPP prisoners are now achieving release as they succeed in reducing their risk. As I have said to Parliament on a number of occasions, courses are increasingly being made available to IPP prisoners. The fact that a prisoner attends a course may assist in their assessment but it is no guarantee that he or she will become more suitable or eligible for release. Similarly, the fact that they do not attend a course does not preclude them from being assessed as suitable for release.

I shall now address the text of the amendment of the noble and learned Lord, Lord Lloyd. It would effectively, as I read it, lead to these prisoners being automatically released as it would mean that there would be no discretion for the Parole Board to do other than direct release. That is not the Government’s policy, as noble Lords are aware, and I would be unable to accept the amendment on those grounds. However, in my view, there would be difficulties with the amendment as it stands, regardless of the acceptability of the principle.

The amendment would add a subsection to Section 128 of the LASPO Act directing the Parole Board to release indeterminate prisoners who have a tariff of less than two years and who were sentenced prior to the 2008 changes to the Criminal Justice Act 2003. Section 128 gives the Secretary of State a power to change the Parole Board’s release test by order. The amendment appears to force the Parole Board to direct release of these prisoners without use of any discretion, even if it thinks it unsafe.

The retention of a Parole Board role in the process is presumably designed to align as much as possible with the current statutory arrangement. However, I think it would be problematic to give responsibility for release to the Parole Board if in fact there were no discretion for the Parole Board under this proposal. In addition, the use of the phrase “indeterminate sentence” leaves it doubtful whether life sentences that fit the criteria would also be caught, which I assume is not the intention.

I have already discussed the role of the Parole Board and I think that it was sufficiently covered during earlier debates. Whatever the difficulties the Parole Board is currently facing, the reality is that IPP prisoners continue to achieve release where they are able to show that any ongoing risk is capable of being managed effectively in the community. Since 2010, the number of IPP prisoner releases has grown, and we saw more than 400 IPP prisoner releases in 2012 and 2013.

Despite the force of the arguments, I hope that my response has persuaded the House that, well intentioned though the amendment is, it is not one that we should support. I therefore ask the noble and learned Lord to withdraw it.

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Before the noble Lord sits down, I wonder whether he can help me on one matter. Does he accept that a shortage of resources, either in the Parole Board or within the Prison Service, in providing courses for persons in the category that my noble and learned friend Lord Lloyd has identified has caused an unintended consequence in that—possibly; one cannot say it with certainty—these prisoners have been detained for far longer than they should have been, and that, equally, there is going to be further delay before their cases can be fully considered?

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I accept that there have been certain delays in providing all the courses that might have been provided. Indeed, that has been the subject of quite widespread litigation, when individual prisoners have received compensation. Sometimes the compensation has been a higher figure if the court has thought that it would have made a difference and sometimes a lower figure if the court has thought that it would have made no difference. However, the test remains the same, regardless of cases, as I said a little earlier. The Parole Board has of course had a number of pressures, as I described earlier, not least caused by the Osborn, Booth and Reilly case. As I also indicated, increased resources have been provided financially, and there is a general awareness in the Parole Board—an arm’s-length body but under the Ministry of Justice—of the need to provide hearings as soon as practicable. However, I have responded by pointing out the fact that all these prisoners have had their cases reviewed by the Parole Board, and we believe that the system is working satisfactorily.

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My Lords, I regret to say that I do not find the Minister’s reply satisfactory in any way, no more than it was on the previous occasion. I do not intend to deal with any of his arguments, save just to mention one. He criticised the amendment on the grounds that we would be bypassing the discretion of the Lord Chancellor, but that is the whole point of the amendment. The Lord Chancellor has declined to exercise that discretion, so it is up to us now to exercise it in place of him. That is the purpose of this amendment.

The amendment has been supported in the strongest possible terms—indeed, some of the strongest terms that I have ever heard in this House—by lawyers and non-lawyers alike. I particularly value the support of the non-lawyers. The official position of the Opposition is that they cannot support the amendment but they are not opposing it. I hope that a great number of those who are sitting on the Opposition Benches will support the amendment for the reasons that have been so clearly explained by others. Nevertheless, I must express my gratitude for the fact that the Official Opposition are not opposing it.

There is just one other thing that needs to be said. From the many letters that I and others have received, both from prisoners and from their families, I know that this debate is being followed by those who will be most affected by the result. They will carefully read what we have said. They are looking to us in this House to do something for them, and I hope that we will not let them down. I wish to test the opinion of the House.

Division 2

20 October 2014

Division on Amendment 39

Content: 80
Not Content: 170

Amendment 39 disagreed.

View Details

Clause 14: Minor amendments and transitional cases

Amendment 40

Moved by

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40: Clause 14, page 15, line 17, at end insert—

“( ) In section 250 (licence conditions), for subsection (5A) substitute—

“(5A) Subsection (5B) applies to a licence granted, either on initial release or after recall to prison, to a prisoner serving an extended sentence imposed under section 226A or 226B, other than a sentence that meets the conditions in section 246A(2) (release without direction of the Board).

(5B) The Secretary of State must not—

(a) include a condition referred to in subsection (4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition included in the licence,unless the Board directs the Secretary of State to do so.”( ) In section 260(2B) (early removal from prison of extended sentence prisoners liable to removal from United Kingdom), for “section 246A” substitute “this Chapter”.”

Amendment 40 agreed.

Amendment 41

Moved by

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41: After Clause 16, insert the following new Clause—

“Stop and search of children below the age of 10

In section 1 of the Police and Criminal Evidence Act 1984 (power of constable to stop and search persons, vehicles etc.), after subsection (2) insert—“(2A) Where the person is below 10 years of age, an appropriate adult must be present before the search may be undertaken.””

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My Lords, this amendment addresses the problem of stopping and searching children below the age of 10 and requires an appropriate adult to be present before the search is undertaken.

As I said in Committee, the amendment stems from the report of the All-Party Parliamentary Group on Children chaired by my noble friend Lady Massey. In reply to a request for information about stop and search, the group was told that between 2009 and 2013, 1,136 children under the age of 10 were subjected to the process in 22 police force areas. The figures are something of an underestimate because the Met’s record did not include 2009 and 2011, and other forces did not supply information. It is noteworthy and somewhat surprising that the Sussex police force apparently conducted 454 of those searches, which is a high proportion of the total number. That suggests either that there are some particular problems in that force’s area, or, perhaps more probably, that recording elsewhere is not reliable, so the national figure is probably understated.

It is regrettably apparent that there is no complete picture of the number of children under 10 who have been subjected to this procedure, such that the scale of its use can really only be estimated. In Scotland, 72 children of seven years or under were stopped and searched. Some forces make an effort to take a child home before searching, but they were unable to say how many looked-after children were subject to the procedure, and only 20 police forces—around half—had separate custody facilities for children in the police stations.

The all-party group very reasonably suggested that data should be collected in relation to ethnicity and on other aspects, noting that among the forces that supplied data on the ethnicity of under-18s, 41% were black and Asian—a disproportionately high quotient. It was noted that some forces do not even record the names and addresses of these children or their dates of birth.

The Home Office has reviewed stop and search powers in general. I congratulate the Home Secretary on the steps taken in that respect, but specific guidance on this issue appears to be lacking. In his reply in Committee the Minister appeared to be somewhat complacent, if I may say so, when he stated that existing provisions were adequate. He referred to the safeguards already in place for stop and search powers, stating that the police were obliged,

“to provide key information to the person being searched about the purpose of the search and the grounds for searching, and ensuring that the person subject to the search understands the procedure”.—[Official Report, 14/7/14; col. 471.]

We are talking about children under the age of 10. How realistic is that assurance in the circumstances? As I said, in Scotland and possibly other force areas, children under seven were subjected to the procedure.

The all-party group made a number of recommendations, including that an annual review of stop and search powers should assess the proportionality of stop and searches in relation to age, including the stopping and searching of children under 10. It recommends that the PACE code should be revised to require the recording of the date of birth of children and young people on stop-and-search forms and central recording systems, with specific guidance on carrying out the procedure, including advice on safeguarding and child protection, and that steps should be taken to protect vulnerable children—for example, those in care or at risk of abuse.

It said that the annual review should assess the proportionality of stop and searches of under-18s in relation to ethnicity; that the Home Office and the DfE should work with police to consider how best to monitor the rates of search of looked-after children; and that all newly built custody suites should have a separate area for children and young people, with the Home Office directing forces to consider the allocation of areas to be used separately for children and young people within existing facilities. Finally, it suggested that the Home Office should work with ACPO to share good practice in developing juvenile custody facilities.

The Minister, in replying to the debate, did not comment on any of these matters, but instead indicated that the Government would respond to the all-party group’s final report, which is due to be published this month. That report will deal specifically with recommendations regarding under-10s: namely, whether there should be a presumption against stop and search for this group, other than in exceptional circumstances; where the procedure should take place; and whether it should occur only in the presence of an appropriate adult, carer or parent in the family home.

Generally, I commend the approach of the Home Secretary in relation to changes in stop and search, but the Minister should surely by now be in a position to indicate the Government’s response to the existing recommendations of the all-party group, all of which apply to under-10s as they do to others, and some of which are exclusively concerned with them. Perhaps the Minister would also indicate whether the department has looked at the Scottish system to which I referred in Committee. In Scotland, despite the revelation that some children under seven years of age had been the subject of stop and search, there has now been a radical change and stop and search of children under 12 years of age is to be ended completely.

This amendment does not go that far, but it does suggest that there should be an “appropriate adult” present. That really should not be too difficult. It need not necessarily be a parent—although clearly that would be desirable—but there should be others available: for example, from the children’s services of the relevant local authority, or voluntary organisations concerned with childcare. It should be possible to have somebody contactable and available to be present when a child of that age is subjected to what must be, however carefully it is carried out, a somewhat alarming and intimidating experience—I suspect that the younger they are, the more intimidating the experience.

I hope that the Minister will be able to indicate some movement from the Government on this matter. It seems like a throwback to a much earlier age for child offenders. We should be able to deal more sensitively with the problems encountered by young people, even if there is some reason to believe that they may themselves be the cause of some problems. I hope that the Government will not necessarily wait for the APPG report to come out but will give an indication of their current state of thinking on this issue and perhaps on the broader issues which the all-party group has already covered. I beg to move.

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My Lords, I am grateful to the noble Lord, Lord Beecham, for setting out his amendment so clearly. What lies behind it is wholly understandable. However, it must be put in the context of the significant programme of reforms that the Government have introduced on the police use of stop and search, to which the noble Lord did make reference.

Noble Lords will be aware that on 30 April, the Home Secretary announced a comprehensive package of measures to reform the way that stop and search is used. The measures, some of which were launched on 26 August, will ensure that the powers are used fairly, effectively, and in a way that encourages community confidence. These measures will impact positively on all sections of the community, including children. The Government are highly sensitive to the need to ensure that sufficient safeguards are in place so that the public can trust the police to use all their powers appropriately. The Police and Criminal Evidence Act and its codes of practice have robust safeguards that ensure consistency, transparency and rigour in the way in which stop and search is used by the police.

The use of stop and search has reduced significantly under this Government. However, these powers are vital in the fight against crime and the police must be able to act promptly should they have a reasonable suspicion that a person is carrying an unlawful item. It is a sad fact that in some areas it is quite common for children under the age of criminal responsibility to be used by older children and adults to carry drugs and weapons and, in some cases, firearms for the criminal benefit of others, either in the hope that police may not suspect that they are being used to carry the items or in the knowledge that if they are suspected of being couriers or are stopped and searched, they cannot be arrested or prosecuted for any criminal offence because they are below the age of criminal responsibility.

There are also operational difficulties. How does a police officer judge a child’s age with any precision? What do the police do while waiting for the “appropriate adult” referred to in the amendment to arrive? There are safety issues, too. What if the child has been given a gun or a knife by older gang members? One knows how easy it is for older gang members to manipulate younger ones.

These issues need mature consideration. That is why I maintain what I said in Committee, that although we remain open to revising or improving—if appropriate—the very considerable steps we have taken to improve stop and search powers, we will await the final report at the end of this month and take notice of any recommendation to change the operational procedures. However, I am sure the noble Lord and the House will bear in mind the significant reform package that we have already brought before the House.

I will me give a further example of the operational difficulties that might be caused if this amendment were to find its way on to the statute book. Imagine that a fight breaks out between two gangs of youths and the police have reasonable suspicions that weapons have been concealed. If the police were then required to wait, this could prevent them from acting in a case where there is an immediate issue of public safety involved. That could be difficult, as I am sure the House will understand.

There are already important safeguards attached to Section 1 stop and searches, which were outlined when the amendment was last debated on 14 July. They apply to anyone who is stopped and searched, regardless of age. Furthermore—this is worth stressing—Section 11 of the Children Act 2004 places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions.

This is stop and search—which is, one hopes, a fleeting encounter to, if necessary, disable somebody who the police reasonably think has something that they need to have removed from their possession. However, in response to the noble Lord’s understandable concern, let me stress that the Government have made a priority of ensuring that stop and search should be used fairly, so that the police target this power when they have reasonable suspicions that a person is carrying an unlawful item. In those situations, where there is a risk to public safety, we suggest that it is right that the power to stop and search an individual is not unduly restricted, regardless of age.

Unfortunately, it is not entirely a creature of a bygone age, as the noble Lord suggests, in harking back to Oliver Twist or something of that sort. There is a case that, unfortunately, young children are used in the way that I have described. The requirement to wait until an “appropriate adult” turns up is difficult, and unnecessary in light of the safeguards that exist to protect the welfare of children under the age of criminal responsibility.

While I understand the noble Lord’s concern, and the initial hesitation that anybody would have with a child under 10 being involved in the criminal justice system, we suggest that there is reason for this power to exist, appropriately circumscribed in the way that I have attempted to describe. For those reasons I ask the noble Lord to withdraw the amendment.

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My Lords, I am grateful for the Minister’s response. I shall not ask the House to divide on the amendment but I will make a couple of suggestions to him. First, in the mean time, the proper recording of events—ascertaining names, addresses and dates of birth—should become pro forma. It is surprising that it is not yet universal. It would be a relatively straightforward matter. I presume that it would be for the Home Office to direct the police authorities, but no doubt words ought to be had with ministerial colleagues about that. Secondly, given that Scotland has now changed the law, I suggest that in a year or 18 months, whichever Government are in office at that time—I hope that it might be a different one—could look at the Scottish experience. I take the Minister’s point but it is more relevant to the stopping than to the searching. We agree that it necessary for the police to stop, but the question is about the search part of it. Given that Scotland has made a change in respect of the age of 12, I would have thought that its experience, within a relatively short period, would be relevant here. If the Minister would be good enough to give an undertaking—if he or his party are still in office at that point—that that would be put into force, it would be a welcome concession. I hope that an incoming Government from our party would take the same position. In the circumstances, I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

Clause 19: Ill-treatment or wilful neglect: care worker offence

Amendment 42

Moved by

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42: Clause 19, page 18, line 3, leave out “It is an offence for”

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My Lords, I shall speak also to Amendment 43A, which takes the place of Amendment 43 on the Marshalled List. The intention was to have withdrawn Amendments 45 and 46, so I shall not refer to those two amendments today.

I must apologise to the Minister and your Lordships for coming into this debate rather late in the day. The noble Baroness, Lady Finlay, who I was going to say is not in her place but who now is, is the person who has raised the concerns about Clause 19 at earlier stages and had a very helpful meeting with the Minister.

Clause 19 introduces a new offence of ill-treatment or wilful neglect by care workers, including doctors and nurses. A similar offence for care providers is introduced in Clause 20. I have less of a problem with an offence of ill-treatment—it seems to me that that is a proactive act which is a little bit clearer—but I have no doubt that an offence of wilful neglect of an individual would lead to criminal investigations of good clinicians simply because patients may believe that they should have had medications or treatments which were not appropriate at the time or may have been judged not appropriate by the relevant clinician.

Our amendments would raise the bar for such offences for individual doctors and nurses by introducing the requirement that the care worker commits an offence only if their activities amount to a gross breach of a relevant duty of care owed to the individual who is allegedly ill-treated or neglected. Of course, I understand the history behind Clause 19 and the fact that offences already exist for ill-treatment and wilful neglect of children in certain circumstances and of adults who lack capacity. I suggest that such situations are rather different from those of competent adults in, for example, an acute hospital or GP surgery. My concern is that we have lost sight of proportionality here, and the consequences will be disastrous, both for good, conscientious clinicians and for the NHS, with its impending £30 billion funding gap.

Of course, none of us can accept ill-treatment or wilful neglect of patients—and I will come back to that in a while. I wonder whether those in the Government who designed this new offence for individual clinicians have really appreciated the devastating effect on conscientious care workers if they find themselves under criminal investigation when it is clear that they have used their clinical judgment in good faith or done their very best with the resources available to them.

The Government have stated that the offences are intended to deal only with the most serious incidents—that has to be right. However, the offence is broadly drafted and the police will have an obligation to investigate cases of alleged neglect unless it is absolutely clear at the outset that there is no case to answer. Almost any decision could potentially be investigated for wilful neglect, even though, later, the vast majority and probably the whole lot would not go all the way to prosecution and a guilty verdict. The question of proportionality is therefore highly relevant.

Criminal investigations are incredibly disruptive, time-consuming and costly. The potential cost to the NHS of disproportionate criminal investigations is impossible to estimate accurately, but my main concern is the unwarranted distress and catastrophic nightmare that such investigations would cause for the conscientious worker—and the vast majority facing investigation probably would be conscientious workers. It is not acceptable for the Government to say that it would be up to prosecutors not to prosecute other than in serious cases. It would be far too late at that stage to prevent the damage. Doctors and nurses are likely to find themselves suspended during a criminal investigation—it is very different from a disciplinary investigation. Their self-respect, and professional and public respect, will be in ruins. Huge damage will have been done before the matter comes anywhere near prosecutors. Does the Minister agree that the problem with Clause 19 is the investigations rather than, later down the line, the prosecutions?

I am aware of the Government’s consultation in March this year on the proposed formulation of the new offence. They claim, and I do not doubt it, that the 130 responses indicated broad support for the proposals. On the face of it, they sound eminently reasonable—how could one disagree with them that we need to deal with these problems—but I question the clarity of the consultation documents on the consequences of Clause 19 and those investigations. I do not believe that the British people would support the cost, disruption to services, and devastation caused to good workers, doctors and nurses that criminal investigations would create under these provisions.

I understand that the appalling consequences for doctors in hospital settings have been debated at earlier stages of the Bill. I agree with others that Clause 19 will be entirely disproportionate in its consequences for those hospital staff. I will focus on GPs because they are incredibly vulnerable to malicious complaints.

As things stand, we know that GPs daily experience fear of complaints. We know, and the Minister knows, that GPs regularly have to see 60-plus patients in a day. Many of those patients will have relatively minor ailments, but in that list will undoubtedly be patients with life-threatening illnesses. This means 10 hours of stressful, direct patient contact. Any one of those patients may leave the surgery dissatisfied, rightly or wrongly, with the outcome of the consultation. The patient may want an antibiotic and the doctor may know that it is not the right thing. The issue then is whether the doctor really has the time to explain the whole business about why an antibiotic may not be a good idea. That is their vulnerability: if they had all the time in the day slowly to explain to patients, or to people with learning difficulties or language problems or whatever it is, there would be no problems, but doctors do not have that luxury, and GPs certainly do not. Any angry patient could regard this as wilful neglect. Of course, it is not, and ultimately there would not be a prosecution, but the investigation will nevertheless have to take place.

The point then is not about the prosecution. Does the Minister really believe it appropriate for the threat of a criminal investigation to hang over GPs, nurses and doctors every time they go to work? I could not cope with work if every day—and every 10 minutes—I was worried that I might face a criminal prosecution for the judgment I was making. I say it again: we will not tolerate ill treatment or wilful neglect of patients. The question is whether Clause 19 and criminal investigations are the best way of dealing with these issues.

Have the Government assessed the likely impact of this new offence on the willingness of doctors to become GPs and on their early retirement plans? In this country we already have a shortage of doctors willing to train as GPs. Large numbers of doctors—six in 10, we understand—are planning early retirement. What will happen to the supply of GPs if Clause 19 comes into effect? The BMA describes the situation already as having reached crisis point. GPs are moving abroad as the pressures in this country become more and more unpleasant.

Applicants for GP training are at their lowest level for five years. Advertisements for GP partners that we know five or 10 years ago would have had 30 responses now receive maybe none. Nobody wants to be a GP partner these days even in quite desirable areas—and I happen to know a few. At the same time the pressure to transfer more care into the community rises year on year. I appeal to the Minister to think again before Third Reading. The Minister can quote from the ambitious figures for the number of GP training places to be made available, but will there be any trainees to fill those places? There is also the expectation—I would say a wish—that the number of trainee doctors becoming GPs will increase from 40% to 50%. Well, I doubt it if this clause becomes law.

Amendments 42 and 43A seek to raise the threshold for a criminal investigation of a professional care worker. I read the Minister’s letter to the noble Baroness, Lady Finlay, but I have to confess that I was not persuaded by the arguments. As I said, none of us can condone ill treatment or wilful neglect of patients. I have repeated that again and again because that is not the point here. The point is how we deal with these things not whether we do so. The Government have strengthened the Care Quality Commission and I applaud them for doing that. The Care Quality Commission needs to be able to deal with these things effectively, and much better they be dealt with through the Care Quality Commission than in this way. I hope the Minister can assure us that further thought will be give to this damaging clause before Third Reading. I beg to move.

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My Lords, I apologise for coming in just after my noble friend Lady Meacher had started speaking, due to traffic congestion. I am most grateful to her for having put the amendment so clearly. I endorse the point that nobody, but nobody, thinks that wilful neglect is all right. It is not all right. It is not to be allowed to even happen let alone condoned. The problem is that the burden of proof on the individual and on the organisation that employs them has been set at different levels as the clauses are currently drafted. The requirement is to prove gross neglect for an organisation but that had not appeared in relation to the offence committed by the individual. The difficulty is proving intent.

I had a meeting with the Minister at which he spent a great deal of time—I am very grateful to him—and he replied fulsomely with a long letter following that conversation. I remain unconvinced that the Bill will not effectively result in healthcare professionals being hung out to dry—that was a phrase I used before and I use it again—by an organisation that does not support its clinical staff adequately when serious complaints come in. At the end of the day, it is not wilful neglect but it is interpreted and viewed by understandably distressed relatives as neglect of their relative who may have suffered serious harm within the system or become extremely ill because of the progress of the disease. Although the work conditions for the staff have made it extremely difficult for them to function well, they have not been guilty of wilful neglect.

I stress that I do not think this applies only to nurses and doctors. If a physiotherapist or an occupational therapist declines to comply with a request from a patient or their family, that could be interpreted by the family or patient as wilfully withholding something that they feel they need. There is then some unintended adverse incident further down the line that was not predicted and the complaint goes against that healthcare professional. No one should underestimate how damaging it is to a healthcare professional to have a complaint made against them, and how most extremely conscientious healthcare professionals can feel quite destroyed by a complaint. However, an accusation of wilful neglect that goes to the police would certainly destroy somebody’s professional reputation. Even if it proceeds no further, they will find it very difficult to shed the trauma of that experience of being referred to and investigated by the police.

I hope the Minister can clarify exactly how intent will be interpreted and implemented, and how it will be proven that an organisation has intent to neglect patients. I suggest that the organisation can prove that it did not directly intend to but, actually, if it is really badly managed and is not supporting its front-line workers, it is neglecting patients because it is not allowing its staff to do their duty properly. However, I can see that such an offence would be very difficult to stick anyway. Certainly, if the burden of proof is higher for the organisation than for the individual, as I said before, I foresee that people will be hung out to dry.

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My Lords, I hope I will be forgiven a short interjection on the amendment, which I fully support, particularly the points raised by the noble Baronesses, Lady Meacher and Lady Finlay. Perhaps I can best illustrate the point I want to make by telling a true story to the Minister, who I know is a very compassionate man. I think, like me, he will feel extremely angry about this particular incident within our health service.

My next-door neighbour was ill for years with Parkinson’s disease and, eventually, was so incapacitated that he had to be taken into care because he could not be looked after at home. His wife reluctantly saw him go into care. When eventually he became comatose, he was admitted to the Royal Free Hospital in Hampstead. His wife went to visit him every day while he was comatose. She used to speak to him and a nurse came up and said, “Madam, I don’t know why you are speaking to him because, of course, he can’t hear a word you are saying”. The nurse did not recognise that an unconscious patient is often fully capable of hearing and at least mentally responding if they cannot physically respond. In a sense, that is a pretty neglectful issue.

After a while, my neighbour’s wife—I should say that her husband has since died—then went to the nursing station and said, “My husband has not been washed or shaved for five days. He is lying in bed in a very dishevelled state and I feel very unhappy about this”—she is a very polite woman. The nurse in charge said, “That is not my job. I have nothing to do with that”. She was then rather cursorily directed towards a ward orderly. She said to the ward orderly, “I wonder if there is any possibility that my husband could be washed and shaved”. The orderly simply said to her, “That is not my priority at the moment”.

Does the Minister feel that that is wilful neglect? It seems to me to be a question of definition. I am sure that he feels, as I do, that this is not a criminal offence and not suitable for punishment with imprisonment. It is certainly suitable for a reprimand and for proper management in a ward of a teaching hospital.

Sadly, this kind of incident is not rare. It goes on all the time and goes on particularly, as we all know, in wards with distressed, elderly people, some of whom are sometimes completely irrational and sometimes mentally disturbed and wandering. Often they are treated with grave disrespect at the least—and often they seem to be treated with a good deal worse. I do not believe that that is wilful neglect, but if this amendment is not passed or some form of it is not accepted, there is a real possibility that people who should not be in court and should not be charged by the police may find themselves charged with a criminal offence. That would be absolutely wrong and very bad for our National Health Service.

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My Lords, I have a sense of déjà vu facing the Minister on this matter again, along with the two the noble Baronesses who have spoken to the amendments. It would be sensible for any Minister to listen very carefully to the eloquence of the noble Baronesses, Lady Meacher and Lady Finlay, with their expertise and their long record of dealing with these issues, and the concern that they have expressed for doctors and nurses. I agree with both noble Baronesses and with my noble friend about the need to take action about wilful neglect and bad treatment—obviously, absolutely, of course. However, the Minister needs to answer the points that have been put to him about the effect that the measure might have. I would like to know whether some impact assessment has been made on this proposal and, if so, what it said, because I searched in vain for that information. I also searched in vain for information from anyone lobbying on behalf of the badly paid social care workers, who are also included in this legislation, because they do not have the lobby that the doctors and nurses have, in the shape of the two noble Baronesses. I do not apologise for raising this right now, but it makes me wonder whether statutory regulation of social care workers might help in this matter. It is a shame that the Government have consistently set their face against that.

The government amendments in this group seek to add types of care providers to those already identified, and the types of third-party providers who exercise education or other children’s services functions on behalf of local authorities. Does that include private adoption agencies, free schools and academies? Who does it seek to cover? Looking at the Bill, I cannot see whether that is the case, or not, and I would be interested to know whether it is.

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My Lords, I thank all noble Lords for their contributions to the debate on these important new offences. I have listened carefully to all four speeches. If I may, I shall start with government Amendments 47, 48, 49 and 50. These are minor and technical amendments, which add additional types of excluded care provider to those already identified in Clause 21, for the purposes of the care provider ill treatment or wilful neglect offence in Clause 20.

The Clause 21 exclusion currently applies to local authorities when exercising their functions in respect of the provision of education and other children’s services and other organisations when exercising social work functions relating to children on behalf of a local authority. It has come to light that a small number of third-party providers might also exercise education or other children’s services functions on behalf of the local authority or instead of the local authority, following a formal direction from the Secretary of State, or, as the case may be, from Welsh Ministers. Clearly, it would be unfair for such provider organisations not to be excluded from the care provider offence to the same extent that the local authority would be if it were exercising the relevant functions itself. Amendments 47 and 48 therefore remove these organisations, to the extent that they are providing those services, from the meaning of a “care provider” for the purposes of Clause 20 in England and Wales.

Amendment 49 makes similar provision in relation to independent agencies that provide adoption support. Those providers that are run by local authorities will already be covered by the exclusion in Clause 21. However, as currently drafted, independent agencies with which a local authority has made arrangements for the provision of adoption support, will not. Amendment 49 corrects this small inconsistency. I hope that that is helpful to the noble Baroness, Lady Thornton. The organisations in question are “registered adoption societies” and “registered adoption support agencies”. Amendment 50 places definitions of these phrases in the Bill. I am sure that noble Lords will agree that it is important to make these changes, to ensure that there is consistency and equity in the application of the care provider offence across organisations. To answer the express question of the noble Baroness, Lady Thornton, who asked whether the exemptions included private adoption agencies, free schools and academies, the answer—as I hope she has gathered from my remarks—is yes.

Amendments 42 and 43A, in the name of the noble Baroness, Lady Meacher, seek to achieve two particular purposes, and try to put the individual care worker offence on a par with the care provider offence. They restructure Clause 19(1) so that the care worker offence is dependent on there having been a gross breach of a duty of care owed by the care worker to the victim of the alleged ill treatment or wilful neglect. I understand the point that the amendments seek to make—that there should be some kind of a threshold in order for the offence to bite.

However, there are real problems with the noble Baroness’s approach. We have approached the issue in a different and, I suggest, a better way. The “wilful” element of neglect, and the intent to cause harm required for someone to be found guilty of ill treatment, means that the threshold for this offence as drafted in the Bill is very high and, by its very nature, captures only the worst types of behaviours. Our view is that should a care worker ill treat or wilfully neglect someone in their care, that would always represent a gross breach of a duty of care. It seems to us that a care worker who is being paid to provide healthcare or adult social care services will always owe a duty of care to the individual to whom those services were being provided. That ill treatment or wilful neglect of the individual, which would involve some form of deliberate act or omission, would amount to a gross breach of that duty.

Regretfully, accepting the noble Baroness’s amendments would cause significant unnecessary confusion and complexity and it would risk diverting attention away from the central issue of what has been done by that individual care worker in respect of a person in their care. It would be unhelpful to introduce the concept of a duty of care explicitly. Moreover, specifying that there must be a gross breach of the duty of care in effect raises the threshold before the offence could come into play. There would be a very real risk that behaviour which anyone would recognise as ill treatment or wilful neglect could go unpunished. Any ill treatment or wilful neglect is totally unacceptable, and the care worker offence is drafted very carefully to reflect that. The Government could not accept any amendments that might undermine that and make it harder in practice to prosecute an individual care worker. The approach that we have taken is simpler, clearer and more logical.

The noble Baroness, Lady Meacher, expressed her fear that our proposals might lead to an avalanche of cases and to innocent professionals being “hung out to dry”, as it was put. To address that point, it is important to note that employees of a hospital or a care organisation are already subject to other statutory duties in relation to the care of patients, for example with regard to negligence and to health and safety. The offence that we are proposing would only bite if someone behaves in a way that meets the criteria of the offence—the very worst cases where their behaviour amounts to ill treatment or wilful neglect. We do not share the pessimistic view of the attitudes of health and social care staff that—

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Can the noble Earl explain what he means by “will not bite”? He seems to be saying that the doctor or nurse will not be found guilty if they have not indulged in a gross breach of duty, but does the noble Earl accept that these doctors and nurses could easily find themselves under criminal investigation even if they have acted utterly properly and with good faith? That is the issue, rather than the issue of where it bites.

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I do not accept that at all. There is already a range of possible offences. If a patient, or a member of the family of that patient, raises a complaint about a particular doctor or nurse in relation to patient care, that complaint could be considered under a variety of headings. It would have to be considered and looked into. The complaint is unlikely in the first instance to home in on this particular offence. The investigation would, however, take place. Our view is that it would then be up to the Crown Prosecution Service to see, first, whether anything bad had happened, and if it had, whether it conformed to this offence or to any of the variety of other offences that are already on the statute book. I do not accept that the creation of this offence on its own would compound the problem that the noble Baroness has raised.

I am sure that she would agree that the vast majority of health and social care staff would never dream of deliberately harming or neglecting people in their care, nor would they try to cover it up. I suggest that that fact, if it became apparent in the earlier stages of an investigation, would be compelling in regard to the attitude taken by the prosecuting authorities. It is perhaps of some comfort to the noble Baroness to note that in relation to the Mental Capacity Act and to the Mental Health Act, there is no evidence that large numbers of cases have come forward. She will know that we have framed this offence to align with the way the offences in those Acts are phrased. Individuals are protected from unfounded allegations and, as I have said, the Crown Prosecution Service will not pursue a case unless it is in the public interest to do so. Even if, let us just imagine, a private prosecution were brought, the person accused has the right to refer the case to the Director of Public Prosecutions, who will close the case down if satisfied that the evidential and public interests tests are not met.

I suggest that there is little that either the noble Baroness or I can do to prevent unfounded or vexatious complaints from coming forward. That is a real problem. Often complaints rest on poor communication—she was right to raise that point—but I suggest that this is not relevant to the matter that we are now considering.

The noble Baroness, Lady Finlay, expressed her strongly held view that the burdens here are being set at different levels for the individual care worker offence and the care provider offence. First, I do not accept that intent is difficult to prove. The courts are used to assessing intent and there are substantial numbers of case law examples on this. The burdens have been set at a similar level but worded differently to reflect the different positions of the care worker and their employer. Proving intent is not part of the care provider offence, as she will have noted. The care provider offence is intended to capture organisational failings, such as failings in supervision and management.

The noble Lord, Lord Winston, cited a distressing and concerning example of what appears to be a failure of proper care of a patient. I find it hard to disagree that some form of failing took place in that instance. As I have already indicated, it is not possible for me, even with the noble Lord’s full description, to venture an opinion as to whether an offence has taken place in that instance and, if so, under what particular heading. Technically, the offence could have been committed, but once again the Crown Prosecution Service, if the case is referred to it, would apply a public interest test when deciding whether or not to pursue a prosecution.

I hope that those remarks are helpful and serve to explain why we have taken the approach that we have. I regret that I do see serious complications in the amendments of the noble Baroness. We cannot accept them. I hope that on reflection she will feel able to withdraw Amendment 42 and not press Amendment 43A.

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I have listened at considerable length to the arguments put by the noble Baroness, Lady Finlay, and I have also discussed the matter in some detail with my friend in another place Paul Burstow, who was responsible for all the research work that went into this. He worked with the main investigators of Mid Staffordshire NHS Foundation Trust and Winterbourne View. I invite the Minister to look at Clause 20(1)(b), which refers to the duties and failures of care providers. I understand where the fears expressed by the noble Baroness, Lady Finlay, come from, but they may be ill founded. The whole purpose and intent behind Clause 20 was to make sure that never again will front-line staff be jailed for the offences that they committed while the senior managers and directors of those organisations walk free, as happened in Mid Staffordshire and at Winterbourne View. All these clauses are exactly designed to ensure that staff are not hung out to dry and have the effect that when complaints are raised against staff—as they frequently are—they will, at last, be able to cite the shortcomings and failings of their employers as background in their own defences. This is a point that needs to be drawn out of this debate.

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My Lords, this is Report stage so I shall be brief, but I am grateful to my noble friend for the point she has made. I understood from the noble Baroness, Lady Meacher, that she was not proposing to speak to Amendments 45 and 46. Nevertheless, the noble Baroness, Lady Finlay, raised a point about the unevenness between the two offences. However, I agree with my noble friend Lady Barker. If we interfere with the wording as drafted in the Bill, we are in serious danger of doing the very opposite of what the noble Baroness, Lady Finlay, seeks, which is to have the two offences broadly on a par with each other.

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I thank the Minister for his response. I do not believe that offences for GPs and other doctors involving competent adults are comparable with offences for front-line staff dealing with incapacitated adults or children. The noble Earl indicated that they are somehow comparable, and that because there has not been a swathe of complaints in relation to the earlier offences, we would not get them here. I think we would and that has not been fully dealt with. I recognise what the noble Earl has said—and certainly recognise what Paul Burstow has said—and do not have concerns about Clause 20 in particular, but there are concerns about this. We have not been able fully to deal with matters today and I hope that we can have a further discussion with the Minister before Third Reading. I understand the purpose of Third Reading but it is very difficult to feel that we can just leave this here when there are so many ends not tied up at this stage.

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I am sorry to disappoint the noble Baroness but I cannot undertake to agree that the Government’s position will change on this matter.

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I understand what the noble Earl is saying but we need to discuss how we take this forward and what we do at Third Reading. With that, I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Amendment 43A, in substitution for Amendment 43, not moved.

Amendment 44

Moved by

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44: Before Schedule 3, insert the following new Schedule—

ScheduleRecall adjudicators: further provisionMental Health Act 1983 (c. 20)1 The Mental Health Act 1983 is amended as follows.

2 In section 50(3)(a) (further provisions as to prisoners under sentence: disregarding Parole Board powers when identifying release date), after “Board” insert “or a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.

3 (1) Section 74 (restricted patients subject to restriction directions) is amended as follows.

(2) In subsection (5A)(a) and (b), after “Board” (in each place) insert “or a recall adjudicator”.

(3) At the end insert—

“(8) In this section “recall adjudicator” has the meaning given in section 239A of the Criminal Justice Act 2003.”

Criminal Justice Act 2003 (c. 44)4 The Criminal Justice Act 2003 is amended as follows.

5 Before section 239 insert—

“Parole Board and recall adjudicators”.6 In section 239(1)(b) (functions of the Parole Board), after “by” insert “or under”.

7 (1) Section 250 (licence conditions) is amended as follows.

(2) In subsection (5A) (inserted by section 14 of this Act), for “Subsection (5B) applies to a licence granted, either on initial release or after recall to prison,” substitute “Subsections (5B) and (5C) apply”.

(3) In subsection (5B) (inserted by section 14 of this Act), at the beginning insert “In the case of a licence granted when the prisoner is initially released,”.

(4) After that subsection insert—

“(5C) In the case of a licence granted when the prisoner is released after recall to prison, the Secretary of State must not—

(a) include a condition referred to in subsection (4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition included in the licence,unless a recall adjudicator directs the Secretary of State to do so.”8 In section 260(2B) (early removal from prison of extended sentence prisoners liable to removal from United Kingdom), after “Board” insert “or a recall adjudicator”.

9 In section 268 (interpretation of Chapter 6 of Part 12), at the appropriate place insert—

““recall adjudicator” has the meaning given in section 239A.” 10 In paragraph 34 of Schedule 20B (licence conditions in certain transitional cases), for sub-paragraph (6) substitute—

“(6) In the case of a Parole Board licence granted when the prisoner is initially released, the Secretary of State must not—

(a) include a condition referred to in section 250(4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition,unless the Board directs the Secretary of State to do so.(7) In the case of a Parole Board licence granted when the prisoner is released after recall to prison, the Secretary of State must not—

(a) include a condition referred to in section 250(4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition,unless a recall adjudicator directs the Secretary of State to do so.”11 In paragraph 37(2) of that Schedule (early removal from prison of prisoners liable to removal from United Kingdom in certain transitional cases)—

(a) after “Board” insert “or the recall adjudicator”, and(b) for “paragraph 6, 15, 25 or 28” substitute “this Chapter”.Domestic Violence, Crime and Victims Act 2004 (c. 28)12 In Schedule 9 to the Domestic Violence, Crime and Victims Act 2004 (authorities within the remit of the Commissioner for Victims and Witnesses), after paragraph 26 insert—

“26A A recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003).”

Offender Management Act 2007 (c. 21)13 The Offender Management Act is amended as follows.

14 In section 3(7)(a) (arrangements for the provision of probation services: risk of conflict of interests), for “or to the Parole Board for England and Wales” substitute “, to the Parole Board for England and Wales or to a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.

15 In section 14(2) (disclosure of information for offender management purposes), after paragraph (d) insert—

“(da) a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003);”.Coroners and Justice Act 2009 (c. 25)16 In section 131(4)(d) of the Coroners and Justice Act 2009 (annual report of Sentencing Council for England and Wales: effect of factors not related to sentencing), after “Board” insert “or a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.

Equality Act 2010 (c. 15)17 In Part 1 of the Schedule 19 to the Equality Act 2010 (public authorities: general), after the entry for the Parole Board for England and Wales insert—

“A recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003).””

Amendment 44 agreed.

Clause 20: Ill treatment or wilful neglect: care provider offence

Amendments 45 and 46 not moved.

Clause 21: Care provider offence: excluded care providers

Amendments 47 to 50

Moved by

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47: Clause 21, page 20, line 34, at end insert—

“( ) A person is not a care provider for the purposes of section 20 to the extent that the person carries out a function of a local authority in England mentioned in subsection (1) in respect of which either of the following has effect—

(a) a direction under section 15(6)(a) of the Local Government Act 1999 (power of Secretary of State to direct functions of a best value authority to be carried out by another person);(b) a direction under section 497A(4) or (4A) of the Education Act 1996 (power of Secretary of State to direct certain functions to be carried out by another person).”

48: Clause 21, page 21, line 3, at end insert—

“( ) A person is not a care provider for the purposes of section 20 to the extent that the person carries out a function of a local authority in Wales mentioned in subsection (3) in respect of which any of the following has effect—

(a) a direction under section 29(6)(a) of the Local Government (Wales) Measure 2009 (nawm 2) (power of Welsh Ministers to direct certain functions of a Welsh improvement authority to be carried out by another person);(b) a direction under section 25 or 26 of the School Standards and Organisation (Wales) Act 2013 (anaw 1) (powers of Welsh Ministers to direct education functions to be carried out by another person);(c) a direction under section 154 or 155 of the Social Services and Well-Being (Wales) Act 2014 (anaw 4) (powers of Welsh Ministers to direct social services functions to be carried out by another person).”

49: Clause 21, page 21, line 3, at end insert—

“( ) A registered adoption society or registered adoption support agency is not a care provider for the purposes of section 20 to the extent that it provides adoption support services (as defined in section 2(6) of the Adoption and Children Act 2002).”

50: Clause 21, page 21, line 11, at end insert—

““registered adoption society” means an adoption society (as defined in section 2 of the Adoption and Children Act 2002) which is a voluntary organisation (as defined in that section) and in respect of which a person is registered under Part 2 of the Care Standards Act 2000;

“registered adoption support agency” means an adoption support agency (as defined in section 8 of the Adoption and Children Act 2002) in respect of which a person is registered under Part 2 of the Care Standards Act 2000.”

Amendments 47 to 50 agreed.

Amendment 51

Moved by

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51: Before Clause 25, insert the following new Clause—

“Identity theft

After section 9 of the Fraud Act 2006 (possession etc. of articles for use in frauds) insert—“9A Identity theft

(1) A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person.

(2) A person who is guilty of identity theft is liable, on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both).

(3) The Secretary of State may by regulations set out what constitutes a defence under this section.””

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My Lords, Amendment 51 relates to identity theft, which is a growing problem, particularly in this age of cybercrime. It is rising rapidly and is estimated to cost more than £3 billion a year. It is usually referred to in the context of fraud and economic crime but, as I said in Committee, a number of offences could apply to the use of someone else’s identity; for example, those under the Fraud Act 2006, the Forgery and Counterfeiting Act 1981, the Criminal Justice Act 1987 and the Theft Act. As the Minister said in Committee, these relate to the use of a false identity for fraud purposes. For example, Section 2 of the 2006 Act deals with the crime of fraud by false representation. In the Minister’s words, this would,

“cover a person pretending to be someone else for the purposes of making a gain for himself or another”.—[Official Report, 14/7/14; col. 485.]

However, the motive might not be economic gain; it might be to obtain information for personal reasons or in the course of undercover activities, such as some of those that have featured in industrial disputes or civil liberties and environmental campaigns. There is also the kind that I saw demonstrated in a remarkable one-man show at the Edinburgh Festival by the stand-up comedian—if that is not too limited a description—Mark Thomas. He had been working for an environmental campaign and someone attached himself to it—not an undercover policeman in this case but an undercover person employed by someone else. It took a long time for this chap to be exposed but exposed he was. He had used a false identity to become involved in the organisation.

In Committee, the Minister criticised the amendment on the grounds that it would also apply to innocent persons; for example, people who collect a parcel from the post office using a relative’s identification. That is a little far-fetched. It ignores the unlikelihood of anyone being charged with an offence in such circumstances and, perhaps more relevantly, the explicit provision contained in the amendment empowering the Secretary of State to set out in regulations what would constitute a defence to a charge under the proposed new section.

In fairness, the Minister outlined a range of initiatives being pursued by a variety of bodies and this is welcome, although it is unclear how co-ordinated the activity is. However, given the very serious concerns about fraud and infractions of privacy, it is surely time to consolidate and update the legislation. I suggested that it would be helpful to hear a report on progress in this area before Report, and it is disappointing that this has not occurred. I request that the Minister takes another look at the issue to see whether he can come back at Third Reading with a more helpful resolution to the problem. For the avoidance of doubt, I assure him that the amendment is not designed to protect Nigel Farage and UKIP from identity theft at the hands of David Cameron and the Conservative Party. I beg to move.

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My Lords, the Government recognise that there are significant challenges in dealing with the many consequences of identity theft. However, as I explained in Committee, these challenges relate to the difficulty of identifying and catching offenders, rather than to any lack in the criminal law.

The proposed amendment suggests:

“A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person”.

It omits any reference to the consent of that other person and proposed new subsection (3) leaves the defence to be made by regulations set out by the Secretary of State. That is a fairly novel proposal: a Secretary of State who does not enjoy the undivided confidence of the party opposite is being asked to set out in regulations the nature of the defence.

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Perhaps it might be a job for the Minister.

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I am flattered by the suggestion. However, whether it is done by me, an official or anyone else, it is a slightly strange way of formulating an offence.

I respectfully ask: where is the gap? The Fraud Act 2006 already includes offences that would apply to anyone who assumes a false or non-existent identity to commit fraud. In particular, Section 2 sets out the crime of fraud by false representation, which would cover a person pretending to be someone else for the purpose of making a gain for himself or another.

While identity theft is not in itself a criminal offence, the use of a false identity for the purposes of fraud is. As drafted, the amendment would apply to innocent persons who were able to represent a relative or partner when conducting financial or domestic affairs on their behalf with permission from the identity-holder. The noble Lord cast some scorn on the example I gave in Committee of collecting a parcel on behalf of someone else. I accept that no sane prosecutor or police officer would take that matter further. None the less, it is alarming to think that that could constitute a criminal offence, albeit one that one would not expect the police or the prosecution to pursue.

I assure the House that the Government take identity crime extremely seriously. I should like to remind the House of some of the initiatives being pursued to prevent identity crime. We are working with banks and credit card companies to promote technical solutions to identity theft to help the victims of such crimes. We are also working with credit reference agencies to provide a free service for anyone who has had their personal details used fraudulently. The credit reference agencies liaise with each other and the banks to restore compromised personal credit records. The service can be accessed by contacting Experian, Equifax or Call Credit. The Home Office is also leading a multi-agency strategic group formed to reduce the threat to the UK. The group is engaged in a range of activities to tackle the problem, such as strengthening the issuing process for government documents, tackling the supply of specialist printing equipment for criminal purposes, improving data-sharing of false identities and taking down websites offering false documents for sale.

There is also a national policing identity crime champion. The City of London Police is leading this work and is currently developing an identity crime strategic threat assessment, working closely with the National Crime Agency. We also want to learn more about the scale of this issue, and identity crime trends over time, through the Crime Survey for England and Wales. This is particularly important given rapid developments in technology. We therefore conclude that the current legal framework is sufficient to deal with the theft and fraudulent use of identity. Of course, we bear in mind that things change rapidly. Many of the factors drawn to the House’s attention by the noble Lord, Lord Beecham, will be part of the analysis that takes place. Although these issues continue to be addressed, I specifically do not undertake to bring back this matter at Third Reading, or to entertain that it should be. We suggest, for the reasons I have given, that there is no case at the moment for the creation of a new offence, and therefore I ask that the amendment be withdrawn.

Lord Beecham: My Lords, I had rather anticipated that disappointing response. Again, the Minister has concentrated entirely on the issue of fraud. The problem goes beyond that and into other areas of life. Frankly, some of the arguments he deployed were perfectly capable of being dealt with in properly drafted legislation and I am disappointed that he cannot see a case to answer on those matters. However, as it is clear that the Government are not going to be co-operative on this, I beg leave to withdraw the amendment.

Amendment 51 withdrawn.

Clause 25: Corrupt or other improper exercise of police powers and privileges

Amendment 52

Moved by Lord Faulks

52: Clause 25, page 23, line 7, after “constable” insert “listed in subsection (3)”

Lord Faulks: My Lords, I will speak also to Amendments 53 to 56, 58 and 59. Amendments 52 to 55, 58, 59 and 185 reflect discussions on the territorial extent of the offence within both the UK Government and the devolved Administrations. Amendment 56 is a minor technical amendment to ensure that the director-general of the National Crime Agency is included among the categories of person to whom the offence applies.

I shall deal, first, with Amendment 56. As Clause 25 currently stands, the offence extends to all NCA officers who are designated by its director-general as having the powers and privileges of a constable. However, the director-general can also be designated with those powers and privileges by the Secretary of State. To ensure that the director-general is also covered by the offence, Amendment 56 therefore provides that any NCA officer designated as having the powers and privileges of a constable, whoever designates them, will be within the scope of the new offence.

The remaining government amendments in this group would extend the offence to cover the whole of the United Kingdom. The offence will not apply to the officers of either Police Scotland or the Police Service of Northern Ireland, responsibility for which is devolved to the Scottish Parliament and the Northern Ireland Assembly. However, the devolved Administrations are content for us to extend the geographical coverage so that officers of English and Welsh forces, the national forces, as well as the officers of the National Crime Agency who are designated with police powers, are subject to the new offence throughout the UK, including territorial waters—in effect, wherever they operate.

I should at this point address the issue of devolution. The national police forces are the reserved responsibility of the UK Government, wherever they operate, as are the 43 police forces of England and Wales. There is therefore no need to seek legislative consent in respect of officers of these forces. The position of the National Crime Agency is more complex. While the agency’s director-general is accountable to the Home Secretary, there are, in relation to oversight, various responsibilities of Ministers in Edinburgh and Belfast. This reflects the position that the agency operates in devolved, as well as non-devolved, areas.

The Scottish Government have sought the legislative consent of the Scottish Parliament for these amendments. The Justice Committee of the Scottish Parliament has recommended that the legislative consent Motion should be agreed, which is due to happen next week. While I have no reason to believe that that will not happen, in accordance with convention I undertake that, should consent be refused, I will bring forward appropriate amendments at Third Reading.

The position in Northern Ireland is less straightforward. At present, NCA officers do not have police powers in Northern Ireland. However, we remain hopeful that agreement can be reached to confer police powers on NCA officers in Northern Ireland. Therefore, with the agreement of the Executive, we consider it prudent to provide that the offence will extend to NCA officers when they receive police powers in Northern Ireland.

Schedule 24 to the Crime and Courts Act 2013 sets out the mechanism to confer additional functions and powers on the NCA and its officers in Northern Ireland and requires the explicit agreement of the Northern Ireland Assembly. The Northern Ireland Executive are content that, if and when an order is made under Schedule 24, the application of the new offence, as an additional safeguard, will be regarded as an ancillary matter and will not require explicit consent. However, this is a technical area and we are still in discussion with the Northern Ireland Executive on the detail, so we may need to table clarificatory amendments at Third Reading.

Amendments 52 to 56, 58, 59 and 185 will ensure that all the officers of the national forces and those of forces in England and Wales are covered by the offence anywhere in the UK. Officers of the National Crime Agency designated with police powers will also be covered by the offence within the limits of their designations. For those reasons, I beg to move.

Lord Kennedy of Southwark: My Lords, it is important that we put on record how much we support the police service. We are very lucky to have those dedicated men and women who go to work to keep us all safe. They deserve our support at all times, and we must be seen to give them that support. We are not opposing these amendments today. At the Committee stage of the Bill I confirmed the Opposition’s support for the clause. Police officers exercise great power and carry great responsibility. Where that is exercised improperly there can be tremendous consequences for the individuals concerned. Police corruption can never be tolerated and everything must be done to root it out.

The noble Lords, Lord Blair, Lord Condon, Lord Dear and Lord Paddick—all distinguished former senior police officers—raised concerns about this clause at Committee stage and questioned the gap it is seeking to plug. It would be useful if the noble Lord could confirm that this has nothing to do with the “plebgate” scandal. Further, can he tell the House what has happened since we last discussed this clause? I certainly raised, as I think did others, the question of consultation between the police service, the Police Federation, other associations and distinguished noble Lords. We must be seen to get the balance right here. People raised concerns about the clause and I hope that the Government have listened and can give us some comfort in their response.

Lord Faulks: I think I understand the queries of the noble Lord, Lord Kennedy, to be focused not so much on these specific amendments but rather on a more general concern expressed by various Members, principally former police officers, about the need for, and scope of, this offence. I think I can recall that meetings took place attended by the noble Lord, Lord Blair, and the then Home Office Minister, my noble friend Lord Taylor, in which there were discussions about the need for this offence and the Government’s thinking behind it.

This is not—I mention this because the noble Lord referred to it—a specific response to “plebgate”, the full details of which have still not been revealed. This is rather the Government’s response to the sad fact that there has been corruption in the police force, and, as he so rightly says, we expect, and for the most part receive, very high standards from the police. None the less, the Government think it is important that we set out a specific offence. The old offence of misconduct in public office has been in existence for many years. It is apt to cover most criminal behaviour but we consider it appropriate, in all the circumstances, to set out in a specific statutory form this offence of police corruption. I hope that prosecutions will very rarely have to rely on it but it exists, so I hope that in those circumstances the noble Lord accepts the Government’s approach to this as a whole.

Amendment 52 agreed.

Amendments 53 to 56

Moved by

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53: Clause 25, page 23, leave out line 13 and insert—

“(3) The police constables referred to in subsection (1) are—”

54: Clause 25, page 23, line 14, at end insert “in England and Wales”

55: Clause 25, page 23, line 15, at end insert “in England and Wales”

56: Clause 25, page 23, line 19, leave out from “designated” to “as” in line 20 and insert “under section 9 or 10 of the Crime and Courts Act 2013”

Amendments 53 to 56 agreed.

Amendment 57

Moved by

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57: Clause 25, page 23, line 21, at end insert—

“( ) For the purposes of this section, “police constable” also includes any person who is an employee or agent or acting under the authority of a constable (including in a supporting role), or is performing any function that would, if performed by a constable, fall within policing duties.”

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My Lords, at Second Reading I queried whether we did not have laws enough to deal with police corruption and other noble Lords asked, “Why single out the police for this new offence?”. The Minister has answered some of those points but this is a slightly different question: will Clause 25 work anyway? I must straightaway thank the parliamentary clerks for their advice and assistance in trying to knock the wording of this amendment into shape, and I thank others outside the House who have offered comment. I am extremely grateful to the Minister and his Bill team for contacting me last week to discuss my concerns. However, on my reading of the Bill it is far from clear that Clause 25 would catch anyone or deal with the more serious cases. Indeed, the excuse “It was not me, it was that other person over there” seems an obvious get-out.

There are several categories of non-warranted persons who might be acting qua police: PCSOs, police volunteers, contractors and civilians working in administrative, intelligence or custody suite roles. I am not clear about probation officers but doubtless there are many other categories. These do not appear to be covered by Clause 25. In my view, such as it is—I am not a lawyer or necessarily an expert here—police corruption can sometimes be, but in reality seldom is, a completely solitary activity. In some more serious instances, it involves other agencies such as the Crown Prosecution Service, local authorities or the health service. Among the characteristics of performance management, an absence of leadership and the collectivisation of risk and responsibility are two. So the target for any charge of police corruption is potentially formless, impersonal and uncertain. By its very nature it is also covert, so in all probability few signs or fingerprints, if I may use that term, will show up. All that a victim of this process knows is that there is no justice; a collective cover-up is all that they see.

Before the Recess, I sent to the Minister’s then colleague at the Home Office, who is now our esteemed Chief Whip, a series of documents which had been put forward in a particular case as witness statements. I did not ask for comment on their specifics, because the case is ongoing, but drew attention to the public interest aspects that they raised. There is the fact that a custody record had been altered post hoc to include a gratuitous reference to violence; apparently there are two custody statements. A prosecution witness statement had apparently been altered without the knowledge of the witness concerned to include additional damning points relating to the accused. Digital photographic evidence had also been manipulated to show times and dates at variance with the facts. There were other aberrations but over recent months I have come across a number of similar instances.

Some of this stems from seemingly unchallengeable powers, such as those in the areas of antisocial behaviour, but there have been clear instances of making up for evidential deficiencies by invention. We also now know of large-scale documented corruption where information inconvenient to the police version of events has been suppressed, mislaid or deliberately destroyed. Few, if any, responsible officers seem to have suffered significant consequences and if Clause 25 is aimed at remedying that, I support the aim. I particularly have in mind that those clearly implicated in corrupt acts should not automatically be able to escape to a comfortable retirement, leaving the lives of others in complete ruins.

The typical long-stop response of the police when cornered by a line of questioning is to claim that it is an operational matter. Operations versus policy has been a focus of the Government in separating the College of Policing from the Association of Chief Police Officers, but it must be obvious to everyone that in any conflict of these purposes at the sharp end of policing, operations must always hold the trump card—and that trump card remains firmly in the control of the police, not of the College of Policing. Moreover, the very long-standing understandings that police operations would not be subject to political interference seems to have morphed in modern times into an absence of any oversight and accountability over operational matters.

My amendment is intended to take one small step towards addressing these issues. It seeks to ensure that where there is what Professor Tim Hope of Salford University, in an e-mail to me, referred to as “joint enterprise”—in other words, a collective endeavour amounting to corrupt practice under police auspices—more of the relevant perpetrators and participants would be at risk of prosecution. In the Bill, I cannot extend the provision to other agencies operating right outside policing, although there are potent reasons in terms of victim focus why these, too, should be covered in some way. My intent is to encompass those who hold themselves out to be exercising the powers of, or derived from or in collaboration with, a policing operation and claiming authority from a police initiative. I believe that policing is too important and the majority of warranted officers too precious a resource to allow the current situation, which is ongoing and has led to many high-profile scandals, to continue.

There is another matter. Can the Minister confirm that after the enactment of this Bill, and assuming that Clause 25 remains intact, we will not thereafter find that corrupt acts which occurred prior to the commencement of the Act are simply airbrushed from history so that those who perpetrated them effectively walk away from the results of their efforts?

My focus is on the prevention of injustices and the rights of innocent victims of corruptly implemented process. The method that I have adopted is to throw the net of police corruption wider than is drafted in Clause 25. The amendment is entirely of my own volition and its wording is fundamentally my own. It is, I hope, self-evident in intent—but if it is defective, I take sole responsibility for it. I beg to move.

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My Lords, I will be very quick. The amendment in the name of the noble Earl, Lord Lytton, seems very sensible. If a new offence applies to police officers, it should apply to those acting under the authority of a constable or performing a duty that would normally be provided by a constable and falls within the term “policing”. The House should be very grateful to the noble Earl for spotting the potential loophole that his amendment is an attempt to close. I hope that the noble Lord, Lord Faulks, is able to support the amendment—but, if he is not, I hope that he will be able to give us a detailed reasoning of why the Government do not think that it is necessary, as the noble Earl made a convincing case.

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My Lords, I, too, am grateful to the noble Earl for bringing these matters to the attention of the House and for telling us specifically about the incidents to which he has drawn the attention of the Home Office—although he will, of course, understand, as I think he accepted during his remarks, that I cannot comment on specific cases. However, by using a specific case, he raises a wider concern about the fact that it is not specifically and exclusively police officers who may be involved in what might loosely be described as corruption.

Before dealing with the amendment in a little more detail, I will reassure the noble Earl that although the new offence in its current scope is not retrospective, existing laws will continue to apply to any behaviour before the commencement date of the Act. The question of corruption remains a considerable concern of police forces and prosecuting authorities—and the police, sadly, are used to dealing with it. In the next few weeks, Her Majesty’s Inspectorate of Constabulary will publish a report on anti-corruption capability—so there is an awareness of the need to ensure that this matter is well and truly a focus of its intention.

At Second Reading and in answer to the noble Lord, Lord Kennedy, in the context of the earlier amendment, I said that the offence in the Bill has been brought forward in response to particular issues of corruption that have occurred in the past among police officers—some of senior rank—not all of which are capable of being pursued under the common law. This offence would allow such cases to be addressed. It is something of an irony that senior police officers opposed the introduction of the offence on the basis that it was unnecessary. The noble Earl takes the opposite view: namely, that the offence should be extended beyond the scope which it currently has to include those who are enmeshed in the whole process of corruption. He is right that agencies do not act alone. They are best when they act together in a concerted way. It is very unfortunate if they act in a concerted way that is also corrupt.

Sadly, I am sure that there have been cases of police staff and other public officials corruptly accessing sensitive information or seeking to disrupt investigations by manipulating IT systems. However, the Government have taken the view that it is imperative at this time to address corruption among police officers. Other public officials, including police staff, remain subject to the common-law offence of misconduct in public office, to which I made reference earlier. There have been high-profile prosecutions for the common-law offence in recent months in connection with selling information to the press, including of prison officers, military personnel and police officers. I reassure the noble Earl that we are dealing with corruption across the board.

I should also point out that the Law Commission is starting a project to examine the broader issue of misconduct by public officials, including the misuse of sensitive official information. That, I suggest, is the proper place to look at misconduct and corruption in other areas of public service. I encourage the noble Earl to raise his concerns with the commission when it publishes its consultation document early next year. I also say to the noble Earl and to the House that the amendment would greatly extend the reach of the new offence to a group of individuals who may not have received any specific training of the type that one would expect and may not be clear that they fall within the definition he proposes, and for whom there is no public clamour for a specific anti-corruption offence in the same way that we believe there is for police officers.

I make no criticism of the noble Earl’s drafting. His intention is perfectly clear. But we believe that, notwithstanding the continued anxiety we all face to eradicate corruption wherever it is found, it would be unwise to agree such a broad amendment at such a late stage of a Bill without an opportunity to consult with police representative bodies or the wider public. Therefore, I thank the noble Earl but nevertheless ask him to withdraw his amendment.

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My Lords, I thank the Minister for that extensive reply and the noble Lord, Lord Kennedy, for the support in principle for what I have been trying to deal with. The Minister covered a number of areas reasonably satisfactorily—although, in suggesting that my amendment covered too wide a category of others, he failed to address the issue of PCSOs who, after all, are to all intents and purposes to most people in the street wearing a uniform and are under the pay and authority of the chief constable. While I thank him for that, I will reflect on what he has said. I also reserve my position and may return to this matter at a later stage in order to see whether some other “near-police personnel”, as I call them, who are not warranted officers, should not be included in this provision. That said, I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Amendments 58 and 59

Moved by

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58: Clause 25, page 24, line 5, leave out “England and Wales or in the adjacent” and insert “the United Kingdom or in”

59: Clause 25, page 24, line 15, at end insert “in England and Wales or Northern Ireland”

Amendments 58 and 59 agreed.

Clause 27: Possessing an offensive weapon or bladed article in public or on school premises: sentencing for second offences for those aged 16 or over

Amendment 60

Moved by

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60: Clause 27, page 24, line 35, leave out “16” and insert “18”

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My Lords, our amendments in this group on Clause 27 regarding compulsory custodial sentences for second offences of possession of a knife would have three effects. The first, and by far the most important, would be to exclude 16 and 17 year-olds from the ambit of the compulsory custodial sentences proposed in the clause. The second would be to ensure that the circumstances the court might take into account in deciding not to impose a custodial sentence would include the likely impact of the sentence on the offender. The third would be to ensure that those circumstances would include not only the circumstances of the offence for which the offender was being sentenced at the time he came before the court, but also the circumstances of the previous conviction that brought him or her within ambit of the clause in the first place.

I turn first to the amendments excluding 16 and 17 year-olds from the operation of the compulsory sentence regime. Your Lordships will no doubt remember that in Committee this House declined to remove the whole of this clause under my stand part debate, but by a fairly narrow margin, considering that the Conservative and Labour parties whipped their Back-Benchers in favour of the retention of the clause, notwithstanding that the Government Front Bench abstained. It was nevertheless abundantly clear from the debate that there was a very strong feeling in this House that compulsory sentences for children were undesirable and damaging to the children concerned.

I should remind your Lordships that this clause was not and is not government policy. It was introduced in the House of Commons by the Conservative Back-Bencher my honourable friend Mr Nick de Bois, and carried in that House. That is how it came to be included in this Bill, notwithstanding the opposition of the Liberal Democrat Benches.

On Report, the House has before it in the next group amendments in the names of the noble Baronesses, Lady Browning and Lady Berridge, which would oblige courts to have regard to their duty under Section 44 of the Children and Young Persons Act 1933 when implementing this clause. That would mean that a court would have to have regard in every case to,

“the welfare of the child or young person”,

and would be required “in a proper case” to,

“take steps for removing him from undesirable surroundings and for securing that proper provision is made for his education and training”.

All the professional evidence is that the welfare of children and young people is not served by passing short custodial sentences upon them. There may be many cases where such custodial sentences are unavoidable in view of the gravity of the offence and the need for the protection of the public, but they should be a last resort. The contention that any purpose would be served by making such sentences compulsory and removing judicial discretion in relation to sentences for 16 and 17 year-olds is both entirely unfounded and, I suggest, in direct contradiction with the statutory requirement, which I just read, that the sentencing court must have regard to the young person’s welfare.

To summarise the evidence, which was well rehearsed on the previous occasion, custodial sentences are particularly damaging for children, particularly short custodial sentences. They tend to entrench children in a life of crime. They disrupt children’s education and family lives. There is no evidence that they deter children from further offending. The reoffending rates for custodial sentences are extremely high; 69% of children released from custody in the past year who were counted reoffended within 12 months.

To impose compulsory custodial sentences for children would be a severely retrograde step. One of the great achievements of this Government within the criminal justice system has been to reduce the number of children and young offenders within the secure estate to below 1,100. The prediction is that without this clause the number of children in custody will continue to fall, and it is expected to be below 1,000 by Christmas. A relatively simple calculation of those convictions that currently are not met with custodial sentences, but that would be so met if this clause as it stands were enacted, shows that the clause would be likely to lead to an additional 200 children being sentenced to custody every year if it is not amended as I suggest. At a stroke, the achievement of this Government that I have just mentioned would be reversed, and we would see more and more children in custody every year.

Furthermore, this is a very expensive proposal. The annual cost of children in custody varies between £100,000 and £200,000, depending on the institution where they serve their sentences. However, that is not the only cost. If I am right in maintaining that child reoffending will increase as a result of this clause, and there is a great deal of evidence to support that, the cost to the criminal justice system and the penal system will be substantially greater than the cost of implementing these compulsory sentences alone.

I made the point in Committee that compulsory custodial sentences for children and young people for the possession of knives would discriminate against black people, particularly black young men. This is because ethnic-minority young people are disproportionately subjected to the use of stop-and-search powers. I mentioned the evidence that black men were six times more likely to be subjected to stop and search than white men. The vast majority of prosecutions for the possession of knives arise out of the use of stop-and-search powers, and those powers are extensively used against young men. So it is that the sense of alienation and injustice that fuels so much resentment within the black communities of our cities could be dangerously aggravated by the effects of this clause.

Convictions for knife possession have fallen, faster for children than for adults. Courts have the power to pass custodial sentences for the possession of knives where such sentences are appropriate, and would continue to have that power even if this amendment were passed. However, the amendment is designed to ensure that in those cases where a court would not otherwise pass a custodial sentence on a young offender, the judge would not be required by Parliament to do so against his or her better judgment.

I turn to the second purpose of our amendments. As the clause stands, the court can form the opinion that there are particular circumstances that relate to the offence or to the offender, and refrain from imposing a custodial sentence if those circumstances would make it just to do so. However, with the clause as drafted, the court would not be permitted to take into account the likely impact of the offence on the offender, and that is plainly wrong. I say that it runs contrary to the principles set out in the section of the Children and Young Persons Act that I mentioned earlier, and it ignores one of the cardinal principles of criminal justice for young people.

The third and last purpose of our amendments is to ensure that the courts can consider not only the circumstances of the offence for which the offender is before the court, but the circumstances of the previous conviction that would render the defendant at risk of custody by reason of this clause. It is obvious that where a second offence is committed so that the clause bites, it would be relevant that the first offence was trivial or explicable in a way that would militate against the compulsory imposition of a custodial sentence.

This House has traditionally taken an enlightened view of youth justice but this is not an enlightened clause. The inclusion of 16 and 17 year-olds within its application is entirely unenlightened; it is populist and counter to all the evidence. I beg to move.

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My Lords, I shall speak briefly on the amendment proposed by my noble friend Lord Marks. First, on a point of agreement, he will have seen that under Amendment 65 in my name and that of my noble friend Lady Browning it would of course be possible for the court to take into account the circumstances of the previous offence that was what I will call the “trigger” for this provision. Those circumstances could be taken into account.

With regard to the second point, we outlined in Committee that under new Section (6B) in Clause 27(4) there is a judicial discretion not to impose a mandatory sentence unless there are particular circumstances that relate to the offence, the offender or the previous offence and it would be unjust to do so in the circumstances. I would be interested to know the Minister’s opinion on whether the likely impact on the child of the offence would be included in the consideration of the welfare of the child, which is part of the other amendments that my noble friend and I have tabled.

In relation to a third point, the imposition of a mandatory requirement on young people aged 16 and 17—

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Before my noble friend gets on to her third point regarding 16 and 17 year-olds, may I just ask her whether she was saying in her previous remarks that if it is the case that the likely impact of the offence is not caught within the phrase,

“the circumstances of the offender”,

she will therefore support that amendment of mine?

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No. In relation to the likely impact, my point was whether that is considered under the requirement in the Children and Young Persons Act to take into account the welfare of the child.

With regard to 16 and 17 year-olds, it is already the position that they are covered under the mandatory sentencing provisions if they are convicted twice of the offence of threatening with a knife, so it would be inconsistent not to include 16 and 17 year-olds under these provisions where there will be mandatory provisions when you are twice convicted of the offence of the possession of a knife.

I understand that there is not a clear age of majority in this country, but when you can marry and join the Army at age 16, if you have been found in possession of a knife and convicted of that offence and then been found in possession of a knife again by the time you are 17, I do not think it is unduly harsh to say to those young people that a prison sentence is to be imposed unless the provisions of proposed new Section (6B) are found to apply by the judge.

Finally, in relation to the disproportionality issue for black and ethnic minority young people which I have mentioned previously in your Lordships’ House, it is clear that it is also the case that those young people are disproportionately the victims of knife crime. If one is going to plead disproportionality, one has to look not only at offenders but also at victims. The use of knives on young black people—particularly men—is an issue of grave concern in that community, so one has to look at both sides of that issue and not just at the disproportionality of offenders.

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My Lords, I speak in support of my noble friend Lord Marks and will make two points. First, over recent years, I have been involved in a lot of work and study about the treatment of young offenders, partly during the time I spent as president of the Howard League for Penal Reform and partly in preparing reports requested by others. One of the givens of studies of youth penalties—of youth sentencing—is that short sentences by and large are not beneficial: they are usually destructive. They destroy ties with education, they damage ties with family, and they remove ties with good friends as well as, of course, bad friends. This has been recognised by the Youth Justice Board. One of the reasons for the reduction in the number of children in custody, as mentioned by my noble friend Lord Marks, is that it has been seen by the courts that non-custodial dispositions, on the whole, are far more constructive.

That leads me to my second point, which is about judicial—or court—discretion. I do not want to dress this up too grandly, because most of the group we are talking about appear before a youth court in their own local areas, and there is much about youth courts that needs to be reformed. That said, whenever a case comes before a youth court, the court hears all the facts about the young person concerned. It hears the facts of the case; if the defence is properly prepared, it hears about the young person concerned and about everything that has happened in their past. Many of those children who appear before courts—there is no difference in this regard between 16 and 17 year-olds and the immediately younger age group—come from very deprived backgrounds. They usually have had very little attention paid to them and more than half of them have at least one mental health issue—some have multiple mental health issues—that needs to be addressed. To deprive an experienced court of the discretion to impose a non-custodial sentence when that might fly in the face of the merits as set out in the facts and reports before the court is really an astounding proposition. I challenge the Minister to produce any empirical evidence—any studies— showing that this is a proposal that is justified on the merits. I urge him to accept that it is an error of judgment to include 16 and 17 year-olds in this provision.

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My Lords, I support the amendment of the noble Lord, Lord Marks. Before doing so, I join in his tribute to the Government for their achievement in reducing the numbers of young people in custody by 2,000 in the past few years. It is a tremendous achievement. In some ways, I regret having to disagree with the Government on this particular point, because, of course, I would like to support a Government who have achieved so much for the welfare of the kind of young people that we are dealing with here.

I listened with interest to what the noble Baroness, Lady Berridge, said about young black men—that they are more likely to be victims of knife crimes themselves— and her concern about that aspect of the issue. It is a difficult question. Obviously, young people who carry knives around are a threat to themselves and to other young men. They are likely either to get knifed themselves because somebody else sees that they have a knife or to harm somebody else with a knife. On the other hand, there has been a growth in gang culture, a transformation in gang culture. One can see this when visiting young offender institutions. Many young people might be in great fear for their lives. Perhaps one reason why some of them might continue to carry a knife, even though they have been convicted of having one before, is that they have a genuine fear that somebody else is going to attack them with a knife.

The noble Baroness, Lady Berridge, said that 16 and 17 year-olds can get married and join the Army. That is a good point. But I think we need to keep in mind what the noble Lord, Lord Carlile, said about the particular nature of the young people who come before the courts in these circumstances. We might need to bring up the issue of developmental delay affecting children who have experienced a long history of trauma, who have grown up in chaotic or insecure families, who might have been traumatised in various ways over a long period of time, who might have been let down by the people whom they most trusted, or who, when they have been betrayed in that way, have had no one to listen to them or try to help them recognise the trauma that they have experienced. Young people like that might experience a developmental delay, so that they might appear to be a normal 16 or 17 year-olds physically, but in their way of seeing the world, in their inner world, they are actually much more immature.

I particularly draw attention to the question of young people who have been in local authority care and of care leavers. On Friday, a clinical psychologist was speaking to the Institute of Recovery from Childhood Trauma. She was describing these children who have a history similar to the one I just described and the way that they will often become very self-reliant. They believe that they have to do everything for themselves and they are distrustful of people in authority. Therefore one can see a young person in care, or a care-leaver—I am talking about probably a small minority—who, if they are told by a policeman or a court that they must not carry a knife, will respond to that authority by saying, “Well, I’ll do exactly the opposite of what you’re telling me”. Their history of being abused by others may make them particularly fearful. It may seem to them particularly rational to protect themselves, to be self-reliant—to carry their own weaponry. Their experience is of a world that is unkind and which attacks them. Therefore I would be grateful to the Minister if in his reply, or perhaps afterwards, he could say whether particular attention will be paid to children in care and young people leaving care to ensure that they are offered, at least on a second conviction, the opportunity to have a mentor, for instance, or peer-mentoring, or some other diversion, which might make a great difference to them, rather than putting them into custody.

My final point is that, thanks to the Government’s great achievement in reducing the numbers of children in custody, custody for children is now a much more difficult experience in many ways. All the rotten eggs, if you like, are in one basket, and that can be a very tough environment. We are sending these young people into what is possibly a very adverse environment. I strongly support the amendment in the name of the noble Lord, Lord Marks, and I hope that your Lordships will accept it.

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My Lords, I rise briefly in support of my noble friend Lord Marks’s amendment. In particular, I will address what has been suggested is an inconsistency, in that 16 and 17 year-olds who use knives to threaten people are subject to mandatory imprisonment, whereas this would be inconsistent with 16 and 17 year-olds being excluded from mandatory imprisonment for possession. However, there are circumstances, in particular where older young men pass weapons—particularly when faced with an oncoming police officer—to younger members of the group, who are intimidated into taking possession of those weapons. Therefore, they could in those circumstances be carrying a knife innocently, as it were. As my noble friend said, if those are the circumstances of the original or even the secondary offence, those individuals should not be subject to mandatory imprisonment.

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My Lords, the amendment in the name of the noble Lord, Lord Marks of Henley-on-Thames, seeks to take out 16 and 17 year-olds from the scope of a mandatory custodial sentence for possession of a knife in a public place. I have considerable respect for the noble Lord and a good deal of sympathy for what he is trying to achieve. However, if he pushes this to a vote today, I will not support him in the Division Lobby.

As the noble Baroness, Lady Berridge, said, there is already provision in the Bill as it stands for the court to show some discretion if it is of the opinion that there are particular circumstances which relate to the offence and which would make it unjust to do so in all the circumstances. However, as the noble Lord, Lord Marks, said, this provision was put into the Bill during its passage through the Commons by the honourable Member for Enfield North, and technically it was not a government amendment. Perhaps that was not the easiest way to have done this. However, I see the deterrent effect of such provisions and I am not convinced that removing all 16 and 17 year-olds from the scope of this would be helpful.

I am well aware that knife crime is falling, and I want that to continue. However, there are also parts of London where this sort of crime is still far too high, and we have to take action to ensure that we reduce this type of offending. During Committee—and I have talked about this before—I explained to the House that I was born in Lambeth and grew up in Southwark. I am involved with a little charity there which works with some kids on the council estates. It is quite shocking when you go down there. There are kids living on the Wyndham estate who will not cross the Camberwell New Road into Lambeth because they are terrified that they will be attacked—knifed, and so on. That is what we have to deal with. We need the council to do things, but we also need strong deterrents from the courts as well.

This provision is for all young people—those 16 and over and those 18 and over—not for a first but for a second offence. So they will have previously been caught and convicted of an offence with a knife and can be under no illusion what the likely outcome is if they are caught for a second time. We must do everything we can to stop young people killing each other with knives on our streets, which is a tragedy. However well intentioned this amendment is, it will not help achieve that aim.

However, the Government should give a commitment to review this provision after a couple of years, maybe even bringing forward a sunset clause at Third Reading. That would enable us to evaluate exactly what happens over the next couple of years and to take any corrective action quickly.

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As noble Lords will be aware from previous discussion on this matter in Committee, this clause was added to the Bill by a Back-Bench amendment in the other place and the principle agreed by your Lordships’ House. Noble Lords will also be aware that agreement has not been reached on the policy underlying this clause within the Government, so I hope that noble Lords will understand why I cannot speak to the detail of these clauses, much though I would like, for example, to have risen to the challenge posed by my noble friend Lord Carlile.

The only thing I can say is simply to assist the House in answer to a technical query about Section 44 of the Children and Young Persons Act 1933 and the welfare of the child and the young person. That is not—and I do not think my noble friend Lord Marks suggested it was—an impediment to actually passing a sentence of this sort. Otherwise, a child might not ever be sent into the secure children’s estate.

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I hesitate to interrupt. My noble friend knows full well that that section merely requires the court to have regard to the welfare of the child and therefore is not an impediment to imposing the compulsory sentence. My point is that the circumstances that the court may take into account in declining to impose the mandatory sentence are so circumscribed that that runs counter to the spirit of the provision mentioned.

I assumed I was interrupting, but perhaps that is not the case and my noble friend has finished. I do not propose at this late hour to press these amendments to a vote because I do not suppose they would produce a conclusive result in favour of the amendment, although those in my party feel extremely strongly about this. We deeply regret that the Labour Party has decided not to support our position on 16 and 17 year-olds in particular, and the reason for that regret is that in the lead-up to this debate, and indeed in the lead-up to the debate in Committee, I saw not one shred of evidence from any professional body supporting the imposition of compulsory custodial sentences for 16 and 17 year-olds in these circumstances. We on these Benches believe that maintaining judicial discretion is vital to the administration of justice and we are deeply concerned by its reduction in this and other sections of this Bill. I beg leave to withdraw this amendment.

Amendment 60 withdrawn.

Amendment 61

Moved by

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61: Clause 27, page 24, line 36, leave out from “had” to end of line 43 and insert “at least one relevant conviction (see section 1ZA)”

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My Lords, first, I apologise to the House that I was not present when your Lordships discussed this clause in Committee, but my interest in this part of the Bill stems from the fact that during this Parliament I was a Minister at the Home Office with responsibility within my portfolio for both knife crime and gang crime.

The amendments tabled in my name and that of my noble friend Lady Berridge seek to tidy up the clause that was passed not just by this House but—as we have heard—came from the Commons with an overwhelming majority when it was tabled and proposed by my honourable friend the Member for Enfield North. So at its third reading I do not propose to rehearse again the arguments, particularly that about the deterrent effect of what is before the House in this Bill tonight. That was eloquently debated by Members on all sides of the House in Committee and the clause passed accordingly. However, quite a few things in the clause as it stands need correction and alteration. I hope some of those corrections and alterations will pick up on some of the points that have been raised tonight because clearly it is very important that this proposed legislation—whatever the difference of opinion on the substance—none the less needs to be compatible with existing legislation. There is more than one Act of Parliament already on the statute book to which this legislation needs to be tied without there being any anomalies, and I would like to flag some of them up.

First, to ensure compatibility with Article 5 of the European Convention on Human Rights the clause must provide the court with the necessary discretion to take account of particular circumstances when deciding whether to impose the minimum sentence or mitigate against arguments that any deprivation of liberty is arbitrary, contrary to Article 5. However, with the current drafting, the court may take account of only particular circumstances relating to the current offence and the offender, not those relating to the previous offence or offences, when for example the date of the previous offence—perhaps committed very many years ago—could be relevant.

In addition, Article 5 must be read in the light of Articles 3 and 37(b) of the United Nations Convention on the Rights of the Child, which means particular care must be taken in detaining children. If the necessary consequential amendment is made to disapply the requirement on the court to have regard to sentencing guidelines, there will be no requirement on the court to have regard to the welfare of the offender when sentencing those under the age of 18. Therefore, we consider that a provision requiring the court to have regard to its duty under Section 44 of the Children and Young Persons Act 1933 when considering particular circumstances in relation to 16 and 17 year-olds should be inserted.

There is also a bit of an anomaly in the way that the drafting deals with appeals. As currently drafted, if an offender is given a minimum sentence and then the previous conviction, because of which the minimum sentence was imposed, is set aside, the offender will be able to appeal the imposition of the minimum sentence, relying on Section 18(3) of the Criminal Appeal Act 1968 and the Court of Appeal’s power to extend the time limit. However, the usual approach is to make provision allowing an appeal within 28 days of the date on which the previous conviction was set aside, providing a fixed end-point by which an appeal must be brought. Therefore, we consider that the clause should be amended to make provision for such an appeal.

My noble friend has already mentioned the question of hospital admission or guardianship, particularly in relation to mental health. As drafted, it would not be open to the court to order hospital admission or guardianship, even if it was satisfied that the offender was suffering from a mental disorder and this was the best way to deal with him or her. Section 37(1A) of the Mental Health Act 1983 expressly states that nothing in the minimum sentence provisions elsewhere on the statute book prevents the court making such an order. If reference to this minimum sentence is not added, the implication will be that the court is so prevented. I spent what seemed like a lifetime on the revised Mental Health Act and its pre-legislative scrutiny, and I think that we disregard that Act at our peril. Therefore, we consider that an amendment should be made to Section 37(1A) of the Mental Health Act 1983 to allow a court to make such an order.

I picked on those three elements of the amendments because I think that they are particularly pertinent. They also pick up on some of the points raised in the previous debate on the amendments tabled by my noble friend Lord Marks of Henley-on-Thames.

Attempts were made to seek agreement across the House to the amendments in my name and that of my noble friend before we tabled them. As your Lordships know, I am not a lawyer and we had to seek assistance in tabling them. We hope that we have the legislation and the legalities right to tidy up a clause which we support but which cannot be left in the Bill in its current state. I hope that these amendments are helpful, allay some concerns and improve Clause 27.

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My Lords, although my noble friend Lady Browning states that she is not a lawyer, I think that she has outlined to your Lordships’ House in comprehensive detail the changes that are needed to ensure that this amendment, which was made in the other place, does not cause conflict with existing legislation.

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My Lords, this group of amendments raises important issues, just as we saw with the previous group, concerning the possession of an offensive weapon or a bladed article.

I have the greatest respect for the noble Baronesses, Lady Browning and Lady Berridge. They make some very important points but I am not convinced by their arguments that what they seek is necessary. As I said previously, knife crime can have a devastating effect, not only on the person who is killed or seriously injured but on the life of the offender. In Committee, the noble Lord, Lord Blair of Boughton, told the House that he had to speak to many families whose loved ones had been murdered in such circumstances and saw at first hand the devastating effects of that. We have to get the balance right. For this group of amendments, my previous suggestion stands: we need to look at this whole area and review it after a couple of years. If the Government come back then and look at how the whole Act is operating, that is the best way forward.

I will listen very carefully to the reply by the noble Lord, Lord Faulks, especially with respect to increasing the scope to include people convicted of an offence under various military and Armed Forces Acts. Clearly the noble Baronesses have considered this very carefully. However, I am not convinced that to put in the Bill an amendment that a court must have regard to the duty under Section 44 is necessary. I am sure the Minister will respond to that as well.

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I am sorry to disappoint the noble Lord, Lord Kennedy, and the House but I am unable to respond in detail because, as I said in response to the earlier amendment, the clause has been added by a Back-Bench amendment and the principle has been agreed by your Lordships’ House. However, agreement has not been reached within the Government on the policy underlying this clause. Therefore, I am unable to speak as to the detail of these clauses.

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My Lords, I am most grateful—that is, I think I am grateful. This is a serious subject and it is incumbent on all of us, when legislation is passed, regardless of whatever view we have taken, to make sure that it is as legally sound as possible. I have sought advice to try to do that and I hope that that is helpful to the House. I am grateful to all Members who have contributed to the debate.

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Is it your Lordships’ pleasure that this amendment be withdrawn?

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I am not withdrawing the amendment.

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The amendment has already been moved and the Minister has responded, so it is for the noble Baroness now to decide what she wishes to do with the amendment.

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My Lords, before my noble friend formally concludes speaking to the amendment in response to the Minister, perhaps I might indicate that in our view it is unsatisfactory that an amendment is reaching the statute book with very detailed amendments proposed by the noble Baronesses, Lady Berridge and Lady Browning, without the Government having expressed any view as to the degree to which they work. If what I suspect is now going to happen does happen, these amendments will be carried and this is the way that the Bill will go on to the statute book. We regard that as unsatisfactory. Perhaps consideration should be given to procedure on a Bill of this sort in future.

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The Government’s position has not changed. Parliamentary counsel assisted the noble Baroness in making sure that the necessary amendments were properly and accurately drafted. I hope that that assists the noble Lord.

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Does the noble Baroness wish to withdraw her amendment or seek the opinion of the House?

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I do not wish to withdraw the amendment.

Amendment 61 agreed.

Amendment 62

Moved by

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62: Clause 27, page 25, line 1, leave out from beginning to “the” in line 2 and insert “Where this subsection applies,”

Amendment 62 agreed.

Amendments 63 and 64 not moved.

Amendment 65

Moved by

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65: Clause 27, page 25, line 5, after “offence” insert “, to the previous offence”

Amendment 65 agreed.

Amendments 66 to 68 not moved.

Amendments 69 to 71A

Moved by

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69: Clause 27, page 25, line 11, at end insert-—

“(2CA) In considering whether it is of the opinion mentioned in subsection (2B) in the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933 (general considerations).

(2CB) Where—

(a) an appropriate custodial sentence has been imposed on a person under subsection (2B), and(b) a relevant conviction without which subsection (2B) would not have applied has been subsequently set aside on appeal,notice of appeal against the sentence may be given at any time within 28 days from the date on which the conviction was set aside (despite anything in section 18 of the Criminal Appeal Act 1968 (initiating procedure)).”

70: Clause 27, page 25, line 18, leave out “(2B)(a)” and insert “(2C)(a)”

71: Clause 27, page 25, line 21, at end insert—

“( ) After section 1 insert—

“1ZA Offence under section 1: relevant previous convictions

(1) For the purposes of section 1, “relevant conviction” means—

(a) a conviction for an offence under—(a “relevant offence”), whenever committed,(i) section 1 or 1A of this Act, or(ii) section 139, 139A or 139AA of the Criminal Justice Act 1988,(a “relevant offence”), whenever committed,(b) a conviction in Scotland, Northern Ireland or a member State other than the United Kingdom for a civilian offence, whenever committed, which would have constituted a relevant offence if committed in England and Wales at the time of that conviction,(c) a conviction for an offence under section 42 of the Armed Forces Act 2006, whenever committed, in respect of which the corresponding offence under the law of England and Wales (within the meaning of that section) is a relevant offence,(d) a conviction for an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957, whenever committed, in respect of which the corresponding civil offence (within the meaning of the Act in question) is a relevant offence, and(e) a conviction for a member State service offence, whenever committed, which would have constituted a relevant offence if committed in England and Wales at the time of conviction.(2) In this section—

“civilian offence” means an offence other than—

(a) an offence under an enactment mentioned in subsection (1)(c) or (d), or(b) a member State service offence; “conviction” includes—

(a) in relation to an offence under section 42 of the Armed Forces Act 2006, anything which by virtue of section 376(1) and (2) of that Act is to be treated as a conviction and(b) in relation to an offence under section 42 of the Naval Discipline Act 1957 and a member State service offence, a finding of guilt in respect of the person;“member State service offence” means an offence which was the subject of proceedings under the law of a member State, other than the United Kingdom, governing all or any of the naval, military or air forces of that State.

(3) For the purposes of subsection (1)(c) and (d), where the offence was committed by aiding, abetting, counselling or procuring, it must be assumed that the act aided, abetted, counselled or procured was done in England and Wales.”

71A: Clause 27, page 25, leave out line 26, and insert—

“(a) a person is convicted of an offence under subsection (1) by a court in England and Wales,(aa) the offence was”

Amendments 69 to 71A agreed.

Amendment 72 not moved.

Amendments 73 and 74

Moved by

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73: Clause 27, page 25, line 29, leave out from “had” to end of line 35 and insert “at least one relevant conviction (see section 139AZA)”

74: Clause 27, page 25, line 36, leave out from beginning to “the” in line 37 and insert “Where this subsection applies,”

Amendments 73 and 74 agreed.

Amendments 75 and 76 not moved.

Amendment 77

Moved by

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77: Clause 27, page 25, line 40, after “offence” insert “, to the previous offence”

Amendment 77 agreed.

Amendments 78 to 80 not moved.

Amendments 81 to 83

Moved by

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81: Clause 27, page 25, line 47, at end insert-—

“(6CA) In considering whether it is of the opinion mentioned in subsection (6B) in the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933 (general considerations).

(6CB) Where—

(a) an appropriate custodial sentence has been imposed on a person under subsection (6B), and(b) a relevant conviction without which subsection (6B) would not have applied has been subsequently set aside on appeal,notice of appeal against the sentence may be given at any time within 28 days from the date on which the conviction was set aside (despite anything in section 18 of the Criminal Appeal Act 1968 (initiating procedure)).”

82: Clause 27, page 26, line 7, leave out “(6B)” and insert (6C)(a)”

83: Clause 27, page 26, leave out line 13 and insert-—

“(a) a person is convicted of an offence under subsection (1) or (2) by a court in England and Wales,( aa) the offence was”

Amendments 81 to 83 agreed.

Amendment 84 not moved.

Amendments 85 and 86

Moved by

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85: Clause 27, page 26, line 16, leave out from “had” to end of line 22 and insert “at least one relevant conviction (see section 139AZA)”

86: Clause 27, page 26, line 23, leave out from beginning to “the” in line 24 and insert “Where this subsection applies,”

Amendments 85 and 86 agreed.

Amendments 87 and 88 not moved.

Amendment 89

Moved by

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89: Clause 27, page 26, line 27, after “offence” insert “, to the previous offence”

Amendment 89 agreed.

Amendments 90 to 92 not moved.

Amendments 93 to 96

Moved by

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93: Clause 27, page 26, line 34, at end insert—

“(5CA) In considering whether it is of the opinion mentioned in subsection (5B) in the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933 (general considerations).

(5CB) Where—

(a) an appropriate custodial sentence has been imposed on a person under subsection (5B), and(b) a relevant conviction without which subsection (5B) would not have applied has been subsequently set aside on appeal,notice of appeal against the sentence may be given at any time within 28 days from the date on which the conviction was set aside (despite anything in section 18 of the Criminal Appeal Act 1968 (initiating procedure)).”

94: Clause 27, page 26, line 41, leave out “(5B)” and insert “(5C)(a)”

95: Clause 27, page 26, line 43, at end insert—

“( ) After section 139A insert—

“139AZA Offences under sections 139 and 139A: relevant previous convictions

(1) For the purposes of sections 139 and 139A, “relevant conviction” means—

(a) a conviction for an offence under—(a “relevant offence”), whenever committed,(i) section 1 or 1A of the Prevention of Crime Act 1953, or(ii) section 139, 139A or 139AA of this Act,(a “relevant offence”), whenever committed,(b) a conviction in Scotland, Northern Ireland or a member state other than the United Kingdom for a civilian offence, whenever committed, which would have constituted a relevant offence if committed in England and Wales at the time of that conviction,(c) a conviction for an offence under section 42 of the Armed Forces Act 2006, whenever committed, in respect of which the corresponding offence under the law of England and Wales (within the meaning of that section) is a relevant offence, (d) a conviction for an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957, whenever committed, in respect of which the corresponding civil offence (within the meaning of the Act in question) is a relevant offence, and(e) a conviction for a member State service offence, whenever committed, which would have constituted a relevant offence if committed in England and Wales at the time of conviction.(2) In this section—

“civilian offence” means an offence other than—

(a) an offence under an enactment mentioned in subsection (1)(c) or (d), or(b) a member State service offence;“conviction” includes—

(a) in relation to an offence under section 42 of the Armed Forces Act 2006, anything which by virtue of section 376(1) and (2) of that Act is to be treated as a conviction, and(b) in relation to an offence under section 42 of the Naval Discipline Act 1957 and a member State service offence, a finding of guilt in respect of the person;“member State service offence” means an offence which was the subject of proceedings under the law of a member State, other than the United Kingdom, governing all or any of the naval, military or air forces of that State.

(3) For the purposes of subsection (1)(c) and (d), where the offence was committed by aiding, abetting, counselling or procuring, it must be assumed that the act aided, abetted, counselled or procured was done in England and Wales.””

96: Clause 27, page 26, line 43, at end insert—

“( ) Schedule (Possessing an offensive weapon etc: consequential provision) contains consequential provision.”

Amendments 93 to 96 agreed.

Amendment 97

Moved by

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

“employment” 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).”

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My Lords, I am happy to move my amendment when the House and the Government are in such a contented mood. I thank all those who have stayed.

This is, I believe, the third time I have proposed this amendment, or at least some version of it, to the House. As the Minister knows, last year my Labour colleagues and I moved an amendment to the Anti-social Behaviour, Crime and Policing Bill which would have created a separate legal offence for assaulting any worker in the performance of his duties. Sadly, although many, including a number of those on the Benches opposite, were sympathetic to the amendment’s aim of encouraging prosecutions, acting as a deterrent and doing justice to the physical and emotional suffering of the thousands of workers assaulted each year, your Lordships did not give that amendment your approval.

One concern raised at the time was that the amendment was so wide in scope that it would cover so many workers as to render it ineffective. That is why I proposed at the Committee stage of this Bill in July the amendment before your Lordships, drafted with the invaluable help of the union USDAW. I thank all at USDAW for their great help on this issue. The amendment focuses specifically on those workers who are required to enforce, as part of their employment, compliance with the Licensing Act 2003. It creates a separate either way offence for assaulting a shop or bar worker who is selling alcohol, and in doing so, takes account of comments made by the Solicitor-General in the other place which claimed that, if we were truly serious about higher penalties, such an offence should be either way and not summary as was originally intended.

There are three problems in the way in which we currently deal with assaults on workers serving alcohol which this amendment attempts to address. First, it attempts to remedy the fact that at present the vital and dangerous public function performed by workers who serve alcohol is insufficiently acknowledged by the criminal justice system. Men and women who serve alcohol are required by the Licensing Act 2003 to enforce that law, in terms of its consumption and supply. They must refuse to serve those who they believe to be under age, and those who are already intoxicated. They are working in febrile environments and are responsible, like police officers, for enforcing the law. If they refuse to do so, they themselves can face legal action or lose their licences. It is therefore unacceptable that these men and women receive no effective protection from the legal system for that additional service and the physical danger that it puts them in.

That brings me to my second point. Men and women serving alcohol have, like all workers, the benefit of a clause in the sentencing guidelines—as the Minister pointed out in Committee—which makes the assault of a worker providing a public service one aggravating factor, but it is one of 19 aggravating factors, which is seldom acknowledged. This fails to acknowledge that those who serve alcohol place themselves in greater danger, and make a more vital contribution to public order and to public health, than most others in other professions. According to the Health and Safety Executive, alcohol was the trigger to threatened or actual violence in 38% of cases.

Thirdly, the current regime has inadvertently produced a system which disincentivises prosecution and ends up being too lenient. At the moment, if a worker who sells alcohol is assaulted, the crime will usually fall into the category of common assault. The problem is that common assault carries relatively lenient punishments, meaning that in many cases the Crown Prosecution Service decides not to bother prosecuting. That has certainly been the experience of the unions like USDAW and other organisations in the industry like National Pubwatch, the Wine and Spirit Trade Association and others. Lenient sentencing and lack of sentencing not only fails the victims of such crimes by depriving them of justice but also results in many incidents going unreported as people’s faith in the criminal justice system becomes less and less secure. USDAW found that 17% of workers attacked at work, or threatened with physical violence, did not report—they did not bother to report—the offence because they did not think that any action would be taken.

My amendment addresses these issues. It provides greater protection to this group of workers by doing three things. First, and most importantly, it recognises at long last the dangerous environment these men and women must work in, as well as the strenuous and vital public function they carry out in enforcing the law. It does so by creating a separate, specific 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, or up to two years in prison or an unlimited fine for those who are convicted or indicted at the Crown Court, for more serious offences.

Secondly, in creating that separate offence, it would act as a deterrent to such crimes. Between 2012 and 2013, reported incidences of violence at work increased—there were 649,000 overall, including assaults on bar and shop workers serving alcohol. At a time when we see that these crimes show no sign of abating and their frequency remains alarmingly high, we must recognise the service of this group of workers. Harsher penalties will act as a deterrent.

This brings me to the third major reason to support this amendment. It will encourage more prosecutions, as a separate legal offence is easier to determine than common assault. You can prove it more easily, and because it carries stiffer penalties, that will give the CPS greater incentive to prosecute.

I heard example after example recently at a presentation by USDAW. I know that Members of the House will know of other examples. I will not go into them in detail as time does not permit, but I assure the House that there were some horrific incidents causing great harm, which I know the noble Lords, Lord Lea and Lord Kennedy, and others who attended the presentation, will testify to. I am arguing in favour of the amendment before your Lordships today so that many thousands of other workers do not have to go through what those about whom we heard in that presentation have already suffered.

In Committee, the noble Lord, Lord Faulks—have I got the pronunciation right? I have the same problem in reverse—expressed his genuine sympathy with the amendment’s aims before arguing that it was not “at the moment” the right way to combat such crimes, citing a lack of evidence and the availability of other actions to deal with it. He also agreed to meet me and other colleagues, and he was true to his word. The general secretary of USDAW, my noble friend Lord Kennedy and I met him and we had a sympathetic response. He asked for more evidence and was interested in trying to deal with the issue, but, unfortunately, he was not willing to support this amendment, at least at this stage, until we had come forward with more evidence to persuade him.

I hope, nevertheless, that the Minister will today recognise the seriousness of this matter. If he does not accept the amendment—I hope that he will and I shall certainly test the opinion of the House if he does not—I hope that he will at least put forward some alternatives to take account of an increasingly serious problem. We should not let down these people who serve the public and make sure that the law is upheld. They deserve the kind of support that we can give them by supporting this amendment.

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My Lords, perhaps I may add one point which the union raised and which I think is the reason why the Government are having undue difficulty. It is an inconsistency which relates to semantics. These people are serving the public—they are in public houses after all. If you are a public servant, you seem to be protected in a way that these workers are not, yet they are in more direct, physical contact with the public—with many injuries sustained. I ask the Minister—I know that the matter has been brought to his attention in private conversations—how it is that these workers have less protection under a lesser criminal offence than applies to violence done to workers in the public sector who have an interface with the public. These workers are effectively in a private space, not in a public space, and the law works differently for them.

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My Lords, I support the principles of the amendment, which shows how belonging to a responsible union such as USDAW can benefit workers. As I have said in this House on previous occasions, it would be wrong for the Opposition to believe that all union members are adherents of their party. Indeed, one of the USDAW executive, Mr John Barstow, a member of the Conservative Party, keeps me informed of USDAW and its doings, which are generally very beneficial and certainly of value to its members.

In a debate earlier this evening—I do not normally intervene in this sort of debate; I generally stick to foreign affairs—I noticed all the statements made about knife crime and it being argued that just being found with a knife should be a reason for a custodial sentence. I was at the meeting with the noble Lord, Lord Foulkes, the other day when we listened to USDAW. We heard some pretty horrific accounts. One of the most horrific things to me was the absence of prosecution by the police even in the face of CCTV evidence and other quite clear evidence that assaults had been committed. I hope that the Minister will be able to tell us not only his views on the clause but also how we intend to get the law, as at present, implemented because what was done is already an offence—and was an offence in many of the incidents put before us. We do not need this new law. What we are facing is a crisis of the police deciding that the law should not be enforced as it stands.

Having said that, I see no reason why we should not afford these workers the level of protection that they justly deserve. After all, as Mr Foulkes—sorry, I have known the noble Lord as Mr Foulkes and George for a bit too long, I reckon—as the noble Lord, Lord Foulkes, said, these workers are actually upholding the law that we have passed. In many ways they are as much agents of the law as the police. When they are assaulted as a result of upholding the laws that this Parliament has passed, they should benefit from the protection that the law should afford. On that basis, I hope that the Minister will be able to give us a very positive response.

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I am delighted to be able to support the amendment of my noble friend Lord Foulkes of Cumnock; it seeks to protect shop workers from assault when they are doing their job and refusing to sell alcohol after the permitted time as required by law. The amendment has the support of the shop workers’ union, USDAW, which is a campaigning union standing up for its members. It also has a reputation as a hard-working professional organisation that works with employers and wants the businesses that its members are employed in to be a success. It is respected in the industry as a whole and the amendment is typical of the way USDAW works. The amendment has the support of not only the union but the organisations that represent the businesses in the sector and the staff who can find themselves at serious risk of assault for just doing their job, as many noble Lords have already said.

In Committee, I told the House that USDAW has run its Freedom from Fear campaign for many years. That campaign seeks to highlight the unacceptable situation that shop workers can find themselves in just for doing their job. Shop workers are among some of the lowest paid workers. They deserve the right to go to work without the risk of being verbally abused or even physically assaulted. People come into shops that sell alcohol, often late at night, usually the worse for wear having drunk far too much, and when they are told that they cannot buy any more alcohol as it is past the licensing hours, the poor shop workers can be subject to abuse and, in many cases, actual physical assault. We should also remember that these offences occur late at night, often when there are only one or two members of staff on duty in the shops concerned.

As my noble friend Lord Foulkes said, we recently met with the Minister and Mr John Hannett, the general secretary of USDAW. The Minister was very courteous and was concerned about what we heard from our friend John Hannett. Clearly the Government have not been prepared to move so far and that is somewhat regrettable. I hope that today when the Minister responds he can signal how unacceptable the situation is and that the Government take this matter really seriously and quite rightly expect people to be able to go to work and earn their living free from the fear of attack.

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My Lords, this amendment in the name of the noble Lord, Lord Foulkes of Cumnock, would make it an offence to assault a worker who is required to enforce or comply with the Licensing Act 2003, either in the course of that worker’s employment or by reason of that worker’s employment. The proposed new offence would be triable either way with a maximum penalty on indictment of two years’ imprisonment, or an unlimited fine, or both.

The issue has been well described by the noble Lord, Lord Foulkes, and by other noble Lords during the debate: those who are in the position of selling alcohol can find themselves in a highly vulnerable position and can be the victims of serious assaults. The amendment was debated in some detail in Committee. As he told the House, the noble Lord, Lord Foulkes, and the noble Lord, Lord Kennedy, met with me—Lord Faulks—to discuss the issue further. We were joined by the general secretary of the Union of Shop, Distributive and Allied Workers, and I benefited greatly from their analysis of the problem and the need, as they saw it, for action. As the noble Lord, Lord Foulkes, said, I made it clear that the Government remain at the moment unconvinced of the need for a new offence of assaulting workers selling alcohol, although I said that I would consider any additional evidence and data on that point. I remain in that position and the Government remain aware that there is concern about this, but I must make it clear now, as I made it clear then, that I do not wish to accept this amendment or to return to the matter in the course of the Bill’s progression.

The House will join me in condemning these assaults, but in our view there are sufficient offences on the statute book which make it clear that such behaviour is unacceptable, and sufficient penalties to sanction it. As I made clear in Committee, the only offences of assault on members of specific groups are those of assault on a police constable in the execution of his or her duty, and of assault on an immigration officer. One could single out all sorts of other public servants who are potentially vulnerable and do not have a specific offence to protect them, such as those working in A&E on a Saturday night. Creating a new offence of assault on workers selling alcohol would single out this type of assault as the only one meriting a specific offence, alongside assaults on these public servants, but I see no justification either for singling out workers selling alcohol as the only other occupational group meriting a specific assault offence or for making such an offence either way, with a maximum penalty of two years, as opposed to the six-month maximum penalty for common assaults generally and for the specific assault offences that I have referred to.

Those calling for a new offence of assault on workers selling alcohol argue that the police and CPS decide not to prosecute in many such cases, and that, when offenders are convicted, sentencing is too lenient. However, as the House will be well aware, investigation and prosecution of offences is a matter for the police and the Crown Prosecution Service, which are, of course, independent. Whatever offences might have been committed, it is for them to decide whether and how to investigate an incident or prosecute a crime. However, the code on the basis of which Crown prosecutors make those decisions indicates that a prosecution is more likely to be in the public interest,

“if the offence has been committed against a victim who was at the time a person serving the public”.

That falls four-square within the concerns expressed, which includes a worker enforcing the Licensing Act.

We are also in this country rightly proud of the independence of our judiciary. In sentencing, judges generally must follow sentencing guidelines, which the House will recall specify that when an assault is committed against someone providing a service to the public, which includes someone selling alcohol, this is an aggravating factor and so should result in a higher sentence within the current maximum. With regard to sentencing, I should like to clarify a point I made during the Committee debate regarding the law officers’ power to refer apparently unduly lenient sentences to the Court of Appeal. I should have added that this scheme applies to indictable-only offences and a limited number of triable either way offences, specified in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006, as amended. For instance, a sentence for grievous bodily harm could be referred, but not one for common assault.

In conclusion, while I strongly condemn assaults on anyone who comes into contact with the public as part of their work, as I am sure all noble Lords do, and am sympathetic to some of the positions that those who sell alcohol to the public find themselves in late at night, when they may be on their own and therefore vulnerable, I have to repeat what I said in Committee. Creating a new either way offence is not the right way to combat violent behaviour against those enforcing or complying with the Licensing Act 2003. The noble Lord, Lord Foulkes, has served the cause of those who find themselves in this position, of USDAW, which represents its members effectively, and of all of us in bringing this issue to the attention of a wider public. The House is grateful to him. However, notwithstanding the intention that he evinced earlier in this debate to test the opinion of the House, I hope that he will be persuaded to accept that he has already achieved a great deal. He has brought this amendment to the House’s attention—indeed, to the attention of the Ministry of Justice. He has served the cause of those who find themselves in a vulnerable position and of the union that supports their interests. I hope that he will be persuaded to withdraw his amendment.

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My Lords, in no way do I want to impugn the integrity, the sincerity or any other attribute of the Minister, because he has been very helpful. However, I think that he does not fully realise the extent of the problem. If he came into city centres—I do not know if he does—late at night or early in the morning on Friday, Saturday or Sunday, he would realise some of the problems that our people face who have to serve alcohol, who get threatened, who get frightened and who get assaulted. As my noble friend Lord Robertson was reminding me, binge drinking is becoming an increasing problem.

The Minister asks, “Why pick out only one category?”. It is because those in that category face such dangers, and are upholding the law that we pass. I am sorry, I should have said that the noble Lord, Lord Balfe, was at our meeting. As he said, and as my noble friend Lord Lea said, people who serve alcohol effectively act as policemen, upholding the law on our behalf—upholding the law that we pass. We should give them some recognition for that. USDAW and I have had e-mails and letters from Conservative and Liberal Democrat Members, one or two of whom I see today, from Cross-Benchers and from independent Members as well—I think that I have got it right on this occasion—

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Independent Labour.

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Independent Labour. On the basis that they express some genuine concern, I should like to test the view of the House.

Division 3

20 October 2014

Division on Amendment 97

Content: 80
Not Content: 106

Amendment 97 disagreed.

View Details

Amendment 98

Moved by

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

“Publication of private sexual images

(1) It shall be an offence for a person to publish a private sexual image of another identifiable person without their consent where this disclosure causes distress to the person who is the subject of the image.

(2) A person is not guilty of an offence under subsection (1) if he or she-—

(a) reasonably believed that the person who is the subject of the image had consented to its publication;(b) reasonably believed that the publication of the image would not cause distress;(c) reasonably believed that the image had previously been published; or(d) did not intend to publish the image. (3) For the purposes of this section it is immaterial who owns the copyright of the published image.

(4) An offence under this section is punishable by—

(a) on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine (or both);(b) on summary conviction, imprisonment for a term not exceeding 6 months or a fine (or both).

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My Lords, Amendment 98 stands in my name and in the names of my noble friends Lady Grender, Lady Brinton and Lady Barker. I shall address the entire group of amendments, in particular the amendments tabled by my noble friend Lord Faulks.

Your Lordships may remember that in Committee I and colleagues on these Benches moved an amendment to criminalise the practice of posting so-called “revenge porn” on the internet. This thoroughly nasty behaviour, where the perpetrators post sexual images of former lovers after the breakdown of their relationships in order to hurt their victims, has become all too common. There are a number of sites with names like “MyEx.com” where such images abound.

Unsurprisingly, the publication of such images causes untold distress, embarrassment and humiliation. Such publication has the potential to create havoc with victims’ mental and physical health, their happiness and self-esteem, their future trust in others, their ability to form relationships and their present and future relationships—social, within their families and at work. Publication by a former lover in these circumstances is a gross breach of trust. The images are taken in the privacy and trust of an intimate relationship, with the consent of the victim. They are then deliberately and callously displayed to the world without their consent, in a malicious attempt to cause distress.

The Government’s response to our amendment in Committee was to promise to consider the issues that we raised. I have been delighted by the way that such consideration has led to the tabling of the Government’s amendments in this group. They start with Amendment 103, which would establish the offence of, “Disclosing private sexual photographs and films”, widely defined, “with intent to cause distress”. I am aware that at the early stages of the Government’s consideration there was a view within the Ministry of Justice that no new offence was needed, on the basis that existing offences largely covered the evil with which we were concerned. However, further consideration has led the department to the conclusion that a new offence is indeed needed. That recognition is right and I commend and thank my noble friend, and all those who have worked with him on this within his department, for the extremely hard work that they have undertaken in the short time since Committee to develop these proposals.

The three essential elements of the new offence will be, first, that the image must be,

“a private sexual photograph or film”,

widely defined; secondly, that it must be published “without the consent of” the victim and, thirdly, that “the intention of” the publisher must be to cause the victim “distress”. Those elements largely mirror those of the offence mentioned in our amendment and we are content that the government amendments represent an effective way of dealing with this despicable behaviour.

We have had one concern as to the definition of sexual, which our amendment left undefined. The Government have sought to define it in Amendment 105. Subsection (3)(a) of their proposed new clause is clear, referring precisely to,

“an individual’s exposed genitals or pubic area”.

Paragraphs (b) and (c) of that subsection go wider. They refer to an image being sexual if, in paragraph (b),

“it shows something that a reasonable person would consider to be sexual because of its nature”,

and, in paragraph (c), if,

“its content, taken as a whole, is such that a reasonable person would consider it to be sexual”.

My noble friend and officials within his department helpfully held a meeting with us, at which they explained the difficulties that they faced in defining a sexual image. Colleagues were concerned that a topless photograph should be capable of being within the definition of “sexual”, in appropriate circumstances, and particularly where photographs of younger women were concerned. On consideration, we have come to the conclusion that paragraphs (b) and (c) enable the contents of such an image to be considered widely and that a successful balance is struck by the proposed wording. However, I should be grateful if my noble friend would confirm that he considers that paragraphs (b) and (c) considerably widen the ambit of paragraph (a).

I conclude by paying tribute to all those colleagues who have campaigned for the criminalisation of revenge porn. I particularly mention in this context my honourable friend Julian Huppert MP, who raised this issue in the other place and has worked hard on it. In view of the commendable position taken by the Government, we will not be pressing Amendment 98.

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My Lords, I, too, have my name to Amendment 98 and wish to echo the points made by my noble friend Lord Marks on government Amendments 103, 104 and 105. I also support his comments about the definitions of private and sexual, and look forward to hearing the Minister’s response.

In recent years, a new series of unpleasant crimes relating to technology have developed. Cyberstalking, cyberbullying, sexting and now revenge porn are all about abuse of power and spreading information widely on the net. I shall focus on the devastating effects of the circulation of these images, and why the three criteria outlined in the government amendments are inextricably linked and why the presence of all three demonstrates the state of mind of the perpetrator. The proposed offence is vile. It is not just blackmail, although it has been used by some for that effect. It is not just the betrayal of trust and confidence of a former partner, but about the long-term damage on the partner who has been exposed. It is an abuse of power designed to cause distress, and with the nature of social media today, the perpetrator can hand it on and on to others, including professional revenge porn sites whose participants often then choose to troll the original victim, their family and their work colleagues.

Many victims of revenge porn are too scared and humiliated to speak out but a few brave individuals do. Hannah Thompson has and is now a leading campaigner for the new law. Here is what she had to say about why she thinks the law needs to change:

“For those who don’t know, revenge porn is non-consensual pornography. It’s where a person uploads an explicit image of somebody without their permission. Often the victim’s name and contact details are attached. Not only is it humiliating but it has the potential to reach out of the screen and destroy people’s lives … Of course, there is nothing inherently wrong with sharing private images of yourself but you do so with a reasonable expectation of privacy. There is, however, something intrinsically wrong with using explicit images as a tool to harass and humiliate someone. As a victim of revenge porn, I can’t even begin to explain how relieved it makes me to think that Parliament is seriously considering these proposals. Most victims of revenge porn are shamed and forced into silence for fear that more people will find their images. They’re made to tolerate the abuse and forced to suffer through tedious copyright claims because it’s the closest they can get to having something done. I’ve spoken to victims who were suicidal, whose images were taken on a Polaroid camera before they had any concept of the Internet, who have lost their careers and whose relationships have been ruined. All the while, those who have published the images are free to sit back and revel in the pain they’ve caused to someone whose only crime was to trust them”.

Celebrities have been caught too. Photos of Jennifer Lawrence were found by a hacker, and Rihanna and Tulisa Contostavlos have had private nude photos released by former partners. But we do not know the size of the problem because only eight out of 43 police forces collect data. The Huffington Post said:

“The data that was available suggests revenge porn is on the rise: there were 35 reported incidents in 2012, jumping to 58 in 2013, and there have been 53 in the first half of this year alone”.

Tonight, Hannah and the other victims are in the public gallery watching our proceedings. Their bravery in fighting for revenge porn to be made a criminal offence would also mean that our police forces will start to catalogue this offence more carefully. Most of all, it will send a message to former partners who commit this appalling act that the effect it has on the victims is not one that our wider society is prepared to accept.

Too often, technology gallops ahead of the law. Revenge porn has been developed into an art form on social media by those determined to cause misery and embarrassment. I and my Liberal Democrat colleagues are very grateful for the meeting with the Minister and his team. The government amendments will make a real difference. Making revenge porn a crime will provide redress to victims and make it clear that society will not tolerate this behaviour.

In Committee, I returned to the sensitive and difficult boundaries of the distribution of images—naked and not always sexual—known as sexting, which is prevalent and increasing among young teens. We need to consider the treatment of minors when they take part and the concern that young people can too easily get caught up in the criminal justice system. I hope that the Minister will be able to give us some reassuring words that minors will not be caught by the Bill and that schools in particular will have clear guidance to ensure that young people understand the importance of not circulating these images.

I am grateful, as I think my colleagues are, for the work that Julian Huppert and colleagues have done down at the other end of the corridor. Revenge porn is a serious crime. It has too often been hidden because the victims have been too humiliated to come forward. The government amendment will change all that, and I look forward to it coming into law and changing the face of revenge porn for ever.

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My Lords, I support the arguments made by my noble friends in relation to this matter. I am pleased to say that, unlike the previous amendment regarding knife crime, there has been agreement, particularly among the Back Benches and the government Benches, on the need to act. I pay tribute to my noble friend Lady Morris of Bolton, who joined me in amendments in Committee but is not able to be here today.

One point that I would make in addition to those that have already been outlined is that these images are not always taken with consent. The development of technology has meant that in situations unbeknown to someone, images are taken through hidden devices and mobile phones. So it might not even be an old Polaroid; people might be completely unaware that an image has been taken, and the first that they know of it is when their ex-partner releases it into the public domain, adding even greater trauma to what is an incredibly traumatic situation for any victim. Unfortunately, there has been the development of certain professional sites where people are making profit out of this situation.

I also join in welcoming the Government’s response in relation to this. I have never found a firm view at the Ministry of Justice on this matter; I have always found there to be an open door and a willingness to consider it. As has been outlined, technology has been leaping ahead in relation to this matter. I pay tribute to the work of organisations such as Women’s Aid and to my right honourable friend Maria Miller, who led a Back-Bench debate in the other place on this issue and has been campaigning vociferously in relation to it.

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My Lords, I am pleased to say that we on these Benches support these amendments. Some time ago my right honourable friend Yvette Cooper said that people who post intimate images of their former partners online in so-called revenge porn attacks, or who blackmail them with such images, should face new criminal charges, so of course we support the amendments.

The use of intimate, private sexual images as a weapon with which to embarrass, humiliate and degrade is a crime, and it is right that it should be recognised in law. The new offence is a positive step, although in itself it is not adequate to address the underlying societal attitudes and behaviours that create and legitimise sexual violence, abuse and harassment in all its forms, so a government commitment to addressing those issues is also vital. The noble Baroness, Lady Brinton, is quite right to raise the issue of young people and the importance of not criminalising them or, for example, having them put on the sex offender register at a very early age for doing the extremely stupid things that young people are sometimes prone to doing.

The Government’s amendments will ensure that this is enacted. However, we need to ask today how effective they will be. I therefore have a series of questions to put to the Minister and to the noble Lord, Lord Marks. Could the Minister explain why this offence was not made part of the Sexual Offences Act? Will convictions for this offence be recorded by the CPS as a sex offence—in other words, would the person convicted be on the sex offender register?

As it stands, depending on the interpretation of “distress”, the law will provide a remedy to a victim who is distressed, but not angry. Professors Rackley and McGlynn, who have been advising many Members of the House throughout the discussions about revenge porn and rape porn, explained that the focus of the law should be on the offender’s actions and the absence of consent, not on the victim’s response, and I think that is right. Does the distress element also place an unnecessary additional burden on the prosecution? Professors Rackley and McGlynn contend that the mental element of the offence should be the intentional act of posting private sexual images without consent, including for the purpose of financial gain. We have to ask whether the issue of distress could actually significantly limit the effectiveness of this offence.

There is concern about the restriction of the offence to identifiable images. It should be immaterial whether someone else recognises the person in the relevant image. The publishing of private sexual images without consent should be a criminal offence, whatever the motivation of the offender and whatever form the victim’s response takes. It is the absence of consent that is fundamental. Would the restriction of the offence to identifiable images result in unnecessarily complicated evidential debates in court?

I will speak briefly to my own Amendment 106. It seems to us that we need to monitor the effectiveness and the implementation of this new law. We believe that the proposals of Clause 31 do not fulfil the Prime Minister’s commitment to equate online restrictions with the BBFC’s guidelines. Although we recognise that legislation in this area is very complex, it needs to be recognised that the Government have not yet solved the problem. It is important that there is a commitment to review the provisions of this clause within a year or so to assess their effectiveness: the number of prosecutions brought, the number of convictions, et cetera. Following a review of the new provisions, if they have not proved effective, the Government should consider the wholesale review of the regulation of obscenity and pornography. This is to ensure that the law is fit for purpose in our technological age and to reorientate the law in this area away from disgust and distaste and toward a focus, perhaps, on cultural harm—a discussion that we have had in this House before. It is therefore important to put in the Bill that 18 months from enactment would be sufficient time to see what was happening to the new regime and that the principle should be that an independent review is conducted.

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My Lords, I thank my noble friends Lord Marks, Lady Grender, Lady Brinton and Lady Barker for Amendment 98 on the issue of revenge pornography. As the House has been told, I recently met with my noble friends to discuss this amendment, which I believe seeks—and this has been confirmed in the course of the debate—to achieve the same aim as the Government’s Amendments 103 to 105, 113 and 186 to 188. We particularly discussed whether the government amendment’s definition of “sexual”, when defining the material that the offence will apply to, is sufficiently explanatory.

My noble friend Lord Marks asked me, in the course of the debate, whether the additional subsections added anything to “sexual” or, as he put it, widened the ambit. I confirm that they do. The use of the word “or” makes that sufficiently clear. A photograph or film is sexual if it shows an individual’s exposed genitals or pubic area or shows something that a reasonable person would consider to be sexual either because of its nature or given its overall content. However, it would not be helpful to go further than this on the face of the statute or now by, for example, listing particular types of sexual material that would be covered. Such a list is unlikely ever to be exhaustive and its inclusion could potentially hinder the judiciary’s ability to interpret the wording of the offence in a flexible way.

My noble friend’s amendment is constructed in a rather different way to the government amendment and omits some important information, but I need comment very little on those details in view of the fact that, after some useful discussions, it has now been accepted by my noble friends on the Liberal Democrat Benches that the government amendment captures what this offence is all about.

The disclosure of this sort of material is undoubtedly extremely distressing for victims. They feel humiliated and are left deeply distraught both by the disclosure of very personal, sexual images of themselves and by the breach of trust involved in sharing images that had been considered private.

I pay tribute to my officials for working extremely hard on what is a very difficult offence to capture appropriately. We all know what this is aimed at, but it has been a considerable challenge to reflect it in the legislation. My officials have been carefully considering this problem with the relevant agencies and interested stakeholders such as the NSPCC and Victim Support. The testimonies we received, together with the efforts of a number of parliamentarians—many of whom have been identified in this debate—confirmed our intention to create a specific offence that will punish this pernicious practice.

The current law can already punish instances of this behaviour in certain circumstances. A number of offences can be used, and the recently updated guidance from the CPS has made clear that, where intimate images are used to coerce victims into further sexual activity, offences in the Sexual Offences Act 2003 can be used both where the victim is an adult and where they are a child.

This offence, however, will target very different behaviour: namely, the malicious disclosure of private sexual photographs or films. The offence seeks to target material, the disclosure of which would have the potential to cause the most harm to an individual. It will therefore apply to the disclosure of private sexual photographs or films of people, such as those which show them engaged in sexual activity or depicted in a sexual way where what is shown is not the kind of thing usually seen in public. In determining whether the picture is sexual, the court will be required to take into account both the nature of what is shown and the context provided by the whole of the pictures’ content. To commit the offence, the disclosure must take place without the consent of at least one person featured in the image and with the motivation of causing that person distress.

I will respond to a query posed by the noble Baroness, Lady Thornton, about whether this is regarded as a sexual offence in the same way as an offence in the Sexual Offences Act 2003, such as a sexual assault or voyeurism, is regarded. We absolutely agree that revenge porn is a very serious issue, with the potential to cause great harm. That is why we have introduced this criminal offence, with a substantial period of imprisonment. However, we do not think that it is appropriate to view it as a particular sexual offence in the same way as these other offences. Research in previous cases has shown that revenge porn—the emphasis here being on “revenge”—is perpetrated with the intention of making a victim feel humiliated and distressed rather than to obtain sexual gratification, which is what defines an offence as sexual. Of course, the definition says, “with the intention” of causing distress, so you do not have to have evidence of distress or some rather unnecessary distinctions about what is distress, or anger, and so on. Therefore the intention is there, and revenge lies behind it. That is not to diminish the seriousness, but more accurately to characterise what is the mischief we are aiming at.

The offence will apply equally offline as well as online—not just to images transmitted electronically but also to those which are disclosed in more traditional ways.

These amendments provide three defences available to those charged with the offence. First, it will be a defence for the defendant to prove that they reasonably believed that the disclosure of an image was necessary for the purpose of preventing, detecting or investigating crime. That, I hope, is self-explanatory, and finds its echoes in other legislation.

Secondly, where an individual adduces sufficient evidence that the disclosure in question took place in the course of, or with a view to, the publication of journalistic material and they reasonably believed that, in the particular circumstances, the publication of that journalistic material was, or would be, in the public interest it will be for the prosecution to prove the contrary. This defence will, in the rare cases to which we expect it to apply—and rare they will be—enable journalists and their sources to disclose images, for example with a view to publishing a commercial newspaper story, if they genuinely and reasonably believed there was a legitimate public interest in the publication. This is a stringent test but we believe it is necessary to ensure that the offence will not inappropriately interfere with press freedom.

The third defence applies where a defendant can show that he or she reasonably believed that the image had previously been disclosed for reward, such as in the form of commercial pornography, and that they had no reason to think that that previous disclosure for reward had been made without the consent of the victim. While the dissemination of such material might be distressing, we do not believe that the sharing of publicly available material should be regarded in the same way as private material, although of course if such publicly available material is used to coerce, threaten or harass the victim, other offences, depending on the circumstances, may be committed.

The focus of the offence is on photographed and filmed material which record events as they happened in real life. The offence is drafted to ensure that it will apply to material which appears wholly or partly photographic and originates from, or includes, an actual photograph or film recording. So an offence will still be committed if the private sexual part of an original photograph is transposed onto a new background. The offence will also still be committed if the original photograph or film has been manipulated in some way, for example by cosmetically enhancing it.

However, the offence will not be committed if the film or photograph disclosed only becomes private and sexual, or if the victim only appears to be depicted sexually, as a result of any manipulation or as a result of the combining of different images together. For example, the offence would not apply to an image that consisted of an individual’s head that had been superimposed on someone else’s body in order to make it look as if that person was taking part in sexual activity. Although such images can still be distressing to those featured, we do not believe that they have the potential to cause as much harm as disclosure of photographs and films that record real sexual private events.

The offence, which will extend to England and Wales, will be triable either way and punishable with a maximum custodial sentence of two years.

The amendment before you is the result—as we have heard—of much detailed consideration and discussion and is, I hope, carefully constructed to target the specific behaviour in question. I believe this offence will provide an important means of redress for victims of this cruel behaviour, and I am grateful to the right honourable Maria Miller MP and Julian Huppert MP in the other place for bringing this to the Government’s attention. The issue was subsequently debated in this House in Committee and I am similarly grateful to Peers from all sides of the House who took part in that discussion and those who have taken part in the debate today. I am also grateful to those who have no doubt had something to contribute but have sat on their hands out of consideration for the economic disposition of this amendment. I hope that the Government’s amendments will allow my noble friends—and I think they will—to withdraw the amendment.

I turn to Amendment 106 tabled by the noble Baroness, Lady Thornton. Noble Lords approved in Committee the inclusion of Clause 31 to extend the existing extreme pornography offence in Section 63 of the Criminal Justice and Immigration Act 2008 to criminalise the possession of extreme images that depict rape and other non-consensual sexual penetration. Our decision to extend the offence in this manner followed a campaign for reform by some of the country’s leading women’s rights groups, as well as passionate arguments put forward by the noble Lords in this House. The noble Baroness’s amendment would insert a requirement for the Secretary of State to arrange an independent review of the impact of the extension to the existing extreme pornography offence 18 months after the section making the extension would come into force. The Secretary of State would then be required to lay a report showing the results of the review before both Houses.

With respect, I think that such a provision is unnecessary. As I have explained previously, the Government have worked hard to ensure that this extension to the existing extreme pornography offence correctly targets the intended material. I recognise that the noble Baroness has expressed concerns about that. However, the Government already keep the general criminal law under review and the same will be true in this case. Indeed, I hope that the Government’s response to the challenge of revenge porn shows a degree of agility on their part. I am glad that, in the face of some pretty sustained criticism of the Ministry of Justice from the Front Bench of the party opposite, there is an acknowledgement of an open-door policy, referred to by my noble friend Lady Berridge. The Ministry of Justice tries to respond and will continue to try to respond to challenges. Statistics showing the number and nature of prosecutions for this offence are kept, and we work closely with key stakeholders and colleagues, such as the Crown Prosecution Service, and with the police to ensure that laws are working effectively and fairly.

I assure noble Lords that we will continue to monitor the law in this area, and I am sure that the noble Baroness will keep us up to the mark in this regard, including on the other important changes made in Clause 31. We will continue to listen to the voices of campaigners and parliamentarians who may have concerns about this sensitive and important area of the law, as well as monitoring the effectiveness of these changes.

In response to an observation made by my noble friend Lady Brinton, of course those in schools will be well aware of sexting and the developments in technology and how they are abused. I think that it would be unwise for me, at the Dispatch Box, to commit to particular responses. However, she has drawn the attention of the House to the matter, and the Department for Education and head teachers generally will no doubt be making themselves aware of these developments. I therefore hope that, given the assurances, the noble Baroness will be prepared not to press her amendment.

Finally, I will speak to government Amendment 124, tabled in my name. The amendment increases the time limit for bringing prosecutions for offences under Section 127 of the Communications Act 2003. The Government are concerned that this restricted time limit gives insufficient time to gather the appropriate evidence for communications offences, such as trolling, that may be captured under this offence. They have therefore decided to increase to three years the time within which offences under Section 127 of the 2003 Act must be prosecuted, so long as the prosecution is brought within six months of the prosecutor having sufficient evidence to justify proceedings.

As noble Lords may well be aware, the Government accepted an amendment tabled by Angie Bray MP in the other place—now Clause 29 of the Bill. One effect of this new clause is to make the related offence under Section 1 of the Malicious Communications Act 1988 a triable either way offence, with the consequence that the time limit for bringing a prosecution for a summary offence will no longer apply to it. This amendment reflects one of the intentions behind that change by similarly providing a longer time limit within which prosecutions for offences under Section 127 of the Communications Act can be brought. This will mean better protection for those at risk of becoming victims of a Section 127 offence, including vulnerable young people. Allowing more time for prosecutions to be brought will enable a greater number of prosecutions. The Government remain committed to improving the safety of children online and have a strong track record in working with the internet industries and a range of other stakeholders to drive progress.

As I am sure all noble Lords will agree, protecting children and vulnerable people online is of utmost importance to the Government and society as a whole, and the Government want to remove any unnecessary barriers to prosecutions in this area. This amendment will ensure that there is sufficient time to gather the evidence needed and prosecute those who use threatening or abusive behaviour.

I hope that this group of amendments represents a concerted effort on the part of a number of parliamentarians to produce a good response to the challenges that new technology has presented in this sensitive area. I hope that the House will, in due course, agree to Amendments 103 to 105, 113, 124 and 186 to 188.

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My Lords, in withdrawing Amendment 98, I simply say that I am grateful for my noble friend’s clarification that he agrees with our view that proposed new subsections (3)(b) and (3)(c) in Amendment 105 do indeed add to the rather definite description of “sexual” in subsection (3)(a).

At the meeting that we have mentioned, we discussed whether we should include a non-exhaustive list of factors that might be taken into consideration when coming to a conclusion as to whether an image is sexual. I have reached the clear view that the Minister and his officials are right to conclude that such a list would not be helpful; indeed, it might have the effect of limiting the ambit of the offence. I beg leave to withdraw the amendment.

Amendment 98 withdrawn.

Amendment 99

Moved by

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

“Disregarding certain convictions for buggery etc: making an application on behalf of another person

(1) In section 92 of the Protection of Freedoms Act 2012 (power of Secretary of State to disregard convictions or cautions), after subsection (1) insert—

“(1A) A person may make an application under subsection (1) on behalf of another person if that other person is deceased and if the following conditions are satisfied—

(a) the applicant can show direct descent from the deceased person or from the parents of the deceased person;(b) the applicant can provide proof of the death of the person for whom the application is being made; and(c) the conviction for which the application is made is recorded in Police Central Records or the applicant can supply documentary evidence to satisfy the Secretary of State that the offence for which the deceased person was convicted or cautioned was not non-consensual, did not involve persons under the then age of consent and did not take place in a public lavatory or other proscribed public place and was not otherwise a criminal offence.”(2) In section 93 of that Act (applications to the Secretary of State)—

(a) in subsection (2)(a), at the end insert “or if applying on behalf of a deceased person, the name and dates of birth and death of that person”;(b) in subsection (2)(b), at the end insert “or if applying on behalf of a deceased person, the name and address of that person at the time of the conviction or caution”.”

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My Lords, in 2012 we passed the Protection of Freedoms Act, which allowed all those men convicted under the Labouchere amendment of 1865 and similar homophobic laws to apply to have their convictions disregarded. Some 75,000 men were convicted under these Acts; 16,000 of them are still alive and may apply to have their convictions disregarded—around 200 already have done so. However, 59,000 similarly convicted men are now dead, and the Protection of Freedoms Act makes no provision for them.

At every opportunity since the passing of this Act, I have tried to do something about this—quite often at 10 pm at night. I have tried to amend the Act so that the applications for disregard can be lodged for those now dead as well as for those still living. This seems to me a matter of elementary justice, fairness and equal treatment, and a matter of granting comfort to the families and friends of those convicted but now dead. It is a matter of providing public recognition of a wrong done. It would bring an appropriate closure to a long-running injustice against homosexual men.

In Committee on the Bill, I tried again to do this, to bring about equality of treatment for the victims of our past homophobic laws for the living and for the dead. Once again, the Government felt unable to agree and put forward two arguments. The first was that the intention of the disregard for the living was essentially practical. It was to enable convicted individuals to get on with their lives without the stigma of the disregarded offence. Since the last convictions were more than 40 years ago, this will have had a welcome, but very limited, effect. In any event, this is surely only a part of the purpose of the disregard. It overlooks the comfort provided to families, friends and lovers and it overlooks the public recognition of the wrongs done to those men.

The Government’s second argument seemed to have more force. They were concerned that extending the disregard would place a disproportionate burden on public resources. For example, they were concerned about the cost and time involved in finding records that predated the establishment of the National Policing Improvement Agency’s central database. However, in rejecting my amendment, the Minister agreed to facilitate meetings with the Home Office and the Ministry of Justice to discuss the matter. I was very grateful that these meetings took place last Tuesday and Thursday, during which it became clear that the Home Office officials’ concerns about disproportionate time and costs in extending the disregards had three basic components. The first was the danger of being overwhelmed by bulk applications. The second was the sheer difficulty in finding older records; it was pointed out to me that there was no central database for very old records, some of which may be held in local police stations or may not exist. Even if they did exist and were found, they might not contain sufficient information to qualify a person for a disregard. The third problem was the danger of spoof applications—in other words, applications lodged on behalf of an allegedly deceased person while that person was still alive. It was extremely helpful to have these concerns explained, for which I owe a debt to the Minister and to his officials.

This explanation of the likely difficulties has enabled me to revise my Committee amendment considerably. The amendment now before your Lordships addresses each of the Home Office’s concerns. The first part of the amendment addresses the concern about bulk applications by restricting the class of people who may apply on behalf of a deceased person to the direct descendants of that person or to their parents.

The second part addresses the issue of spoof applications and requires the production of a relevant death certificate. The third part restricts the timeframe over which applications may be made. Essentially it makes the same process possible for applications for those now dead as for those living, by restricting applications to those convictions recorded in police central records, which go back to 1918. This should ensure that the work involved in processing any application on behalf of the deceased person is no greater than the work involved in processing an application for a living person.

There is one additional feature of the amendment. It would allow applications relating to convictions prior to the establishing of the police central records if, and only if, the applicants themselves could supply all the documentation required by the Act. I believe that this revised amendment addresses the problems raised by the Government. I hope that they will be able finally to support the amendment.

I realise, however, that this has been put together at some speed and rather at the last minute, and the Government may feel that they need some time to consider in depth the implications of this new amendment. I hope in that case that they will be able to reassure the House that they will consider the matter very quickly. I hope, too, that the Minister will be able to tell the House that if the Government consider the problems resolved or resolvable they will bring forward their own amendment at Third Reading.

We first debated extending the disregard two years ago. There have been real problems, but I now believe that we have a solution. We are now in a position to provide equal treatment to the victims, living and dead, of our past homophobic laws. We can extend the comfort and recognition of wrong treatment that the disregard already brings to the living—to the family, friends, lovers and supporters of those similarly convicted but now dead. I beg to move.

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My Lords, I am glad to support this amendment, just as I was very glad to support the previous version that my noble friend Lord Sharkey put forward in Committee. As my noble friend reminded us again this evening, in 2012 Parliament made a decision of major importance to the gay community. It made provision in law that all living persons who had been convicted of sexual offences that have subsequently been swept away should have the absolute right to apply to have those unfair convictions disregarded. The statute book was disfigured in 1885 by the Criminal Law Amendment Act, which contained a notorious provision, smuggled into the legislation late at night, which criminalised gay men—not gay women—for the first time for consensual sexual acts in private. That provision should never have been passed. It, and other discriminatory laws were repealed some 80 years later, after they had wrecked the lives of thousands of fine gay men. The majority of them are now dead and it must surely be right that the arrangements introduced in 2012 in respect of living persons should be extended so that the families of those no longer alive can seek true justice for their forebears, and so gain satisfaction and peace of mind that such belated justice can bring.

On behalf of the gay community I thank my noble friend for the care with which, since Committee, he has discussed his amendment, as he has told us, with Ministers and officials, and modified it in the light of their comments. This amendment is needed to complete a laudable rectification of great injustice. But it will do something else of great importance, as my noble friend Lord Black of Brentwood, who cannot be here this evening, made clear in Committee. It would signal to the many countries in the Commonwealth which maintain oppressive anti-gay laws for which this country was originally responsible that Britain now wholly rejects unjust and oppressive treatment of gay people and, so far as is possible, has made amends for terrible, terrible past errors. I hope that the Government will look favourably on this amendment.

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My Lords, I join the noble Lord, Lord Lexden, in supporting this amendment. I hope the Government will look at it sympathetically. In previous debates, the Minister had some reservations about costs and the like, which have now been addressed by the amendment of the noble Lord, Lord Sharkey. I very much hope that the Minister will indicate that the Government are prepared to accept that.

If there remain any areas of doubt, then perhaps he would undertake to bring the matter back at Third Reading so that any potential difficulties or shortcomings might be addressed. It is clearly not easy to do that after 10 pm on the first day on Report. I hope we can resolve any remaining doubts at Third Reading, though if the Minister is able to accept the amendment this evening then so much the better.

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My Lords, I thank the noble Lord, Lord Sharkey, for his continued concern and interest in this matter, and for his elegant and accurate summary of the progress of the amendment and the resultant meetings that took place with me, my noble friend Lord Bates and Home Office officials. I hope that the noble Lord is reassured that the Government now recognise his concerns, which have been eloquently supported this evening by my noble friend Lord Lexden, as they were in Committee.

The Protection of Freedoms Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people over 16. However, where someone has died, these provisions would not have the same effect. The Government accept that, as well as removing obstacles for the living to find work, there is a recognition that a disregard puts right a historic wrong, and that this would apply to the deceased as well as the living.

Following the helpful discussions the noble Lord, Lord Sharkey, had with me, my noble friend Lord Bates and Home Office officials, the Government are willing to explore ways of achieving disregards for the deceased, over a longer timescale. What I mean by “over a longer timescale” is not while this Bill is going through its process and not by Third Reading, as I understand my noble friend was indicating. He may ask why not. We have made some progress, but officials would want to carry out a full and proper assessment. Some issues that require attention include a precise definition of who could apply on behalf of the deceased. We have made progress in that. There is an assumption that the amount of applications will be manageable, but we want to carry out more work to obtain greater confidence on this, as each application does place a significant burden of work on the police in tracing local records. On documentary evidence, the effect of a disregard is not clear, as there are no police records to delete, and we would not want to destroy historic records from the National Archives.

These points were touched on in our meetings, but officials are most anxious that all those matters should be completely resolved before proceeding to legislate rather than to impose too heavy a burden, when we ask them to focus on so many other issues. We want to ensure that the decision to disregard maintains the current exacting standard to ensure that only the deserving are granted a disregard. Of course, there are very deserving cases.

While I cannot accept this amendment and I am not committing to introduce such a change in this Bill, the Home Office repeats its commitment to consider this matter and would be happy to include the noble Lord, Lord Sharkey, in any further discussions. He has done the House a great service by bringing this to our attention but I hope the assurances that I have given will allow him to withdraw his amendment.

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I thank the Minister for his reply and am grateful for the progress that we have been able to make in advancing the case for the posthumous disregard. I would have been even more grateful had he been able to say that the matter could be dealt with at Third Reading, but I understand that it is important to do this in a timely and proper manner.

I would like to know, however, what timescale is envisaged. We know what we are trying to check; we know what assessments we have to make. I wonder whether the Minister can give me some sense of how long it might take and perhaps some reassurance that, when it comes to discussions about the scope of Home Office Bills, there will be some liberality in the interpretation of “scope” to enable an amendment, if we get to that point, to be brought forward in a forthcoming Home Office Bill.

Having said all that, I repeat that I am grateful for the help given by the Ministry of Justice and the Home Office. I hope that we can make fairly rapid progress from hereon. I beg leave to withdraw the amendment.

Amendment 99 withdrawn.

Amendment 100

Moved by

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100: Before Schedule 4, insert the following new Schedule—

SchedulePossessing an offensive weapon etc: consequential provisionMental Health Act 1983 (c. 20)1 In section 37(1A) of the Mental Health Act 1983 (powers of courts to order hospital admission or guardianship)—

(a) in paragraph (za), after “section” insert “1(2B) or”, and(b) in paragraph (aa), after “section” insert “139(6B), 139A(5B) or”.Criminal Justice Act 1988 (c. 33)2 In section 36(2)(b) of the Criminal Justice Act 1988 (reviews of sentencing)—

(a) in sub-paragraph (zi), after “section” insert “1(2B) or”, and(b) in sub-paragraph (ia), after “section” insert “139(6B), 139A(5B) or”.Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)3 The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.

4 (1) Section 12 (absolute and conditional discharge) is amended as follows.

(2) In subsection (1), for the words from “section 110(2)” to “2006” substitute “a provision mentioned in subsection (1A)”.

(3) After that subsection insert—

“(1A) The provisions referred to in subsection (1) are—

(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of this Act;(e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”5 In section 100(1A) (offenders under 18: detention and training orders), for paragraphs (a) and (b) substitute—

“(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons);(b) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon).” 6 (1) Section 130 (compensation orders against convicted persons) is amended as follows.

(2) In subsection (2), for the words from “section 110(2)” to “2006” substitute “a provision mentioned in subsection (2ZA)”.

(3) After that subsection insert—

“(2ZA) The provisions referred to in subsection (2) are—

(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of this Act;(e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”7 (1) Section 146 (driving disqualification for any offence) is amended as follows.

(2) In subsection (2), for the words from “section 110(2)” to “2006” substitute “a provision mentioned in subsection (2A)”.

(3) After that subsection insert—

“(2A) The provisions referred to in subsection (2) are—

(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of this Act;(e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”8 In section 164(3) (further interpretive provisions)—

(a) in paragraph (aa), after “section” insert “1(2B) or”, and(b) in paragraph (ba), after “section” insert “139(6B), 139(5B) or”.Criminal Justice Act 2003 (c. 44)9 The Criminal Justice Act 2003 is amended as follows.

10 (1) Section 142 (purposes of sentencing: offenders aged 18 or over) is amended as follows.

(2) In subsection (2)(c), for the words from “section 1A(5)” to “detention for life for certain dangerous offenders)” substitute “a provision mentioned in subsection (2A)”.

(3) After that subsection insert—

“(2AA) The provisions referred to in subsection (2)(c) are—

(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons);(b) section 51A(2) of the Firearms Act 1968 (minimum sentence for certain firearms offences);(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon);(d) section 110(2) or 111(2) of the Sentencing Act (minimum sentence for certain drug trafficking and burglary offences);(e) section 224A of this Act (life sentence for second listed offence for certain dangerous offenders);(f) section 225(2) or 226(2) of this Act (imprisonment or detention for life for certain dangerous offenders);(g) section 29(4) or (6) of the Violent Crime Reduction Act 2006 (minimum sentence in certain cases of using someone to mind a weapon).” 11 (1) Section 142A (purposes of sentencing: offenders under 18) is amended as follows.

(2) In subsection (4), for paragraph (b) substitute—

“(b) to an offence the sentence for which falls to be imposed under a provision mentioned in subsection (5), or”.(3) At the end insert—

“(5) The provisions referred to in subsection (4)(b) are—

(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons);(b) section 51A(2) of the Firearms Act 1968 (minimum sentence for certain firearms offences);(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon);(d) section 226(2) of this Act (detention for life for certain dangerous offenders);(e) section 29(6) of the Violent Crime Reduction Act 2006 (minimum sentence in certain cases of using someone to mind a weapon).”12 (1) Section 144 (reduction in sentences for early guilty pleas) is amended as follows.

(2) In subsection (2), for the words from “an offence” to “nothing” substitute “an offender who—

(a) is convicted of an offence the sentence for which falls to be imposed under a provision mentioned in subsection (3), and(b) is aged 18 or over when convicted,nothing”.(3) In subsection (3)—

(a) for “section 1A(6)(a)” substitute “section 1(2B) or 1A(5)”, and(b) for “section 139AA(8)(a)” substitute “section 139(6B), 139A(5B) or 139AA(7)”.(4) In subsection (4), for the words from “an offence” to “nothing” substitute “an offender who—

(a) is convicted of an offence the sentence for which falls to be imposed under a provision mentioned in subsection (5), and(b) is aged 16 or 17 when convicted,nothing”.(5) In subsection (5)—

(a) for “section 1A(6)(b)” substitute “section 1(2B) or 1A(5)”, and(b) for “section 139AA(8)(b)” substitute “section 139(6B), 139A(5B) or 139AA(7)”.13 In section 150(2) (community order not available where sentence fixed by law etc), for paragraphs (a) and (b) substitute—

“(a) falls to be imposed under section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons), or(b) falls to be imposed under section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon).”14 (1) Section 152 (general restrictions on imposing discretionary custodial sentence) is amended as follows.

(2) In subsection (1)(b), for the words from “section 1A(5)” to the end substitute “a provision mentioned in subsection (1A).”

(3) After that subsection insert—

“(1A) The provisions referred to in subsection (1)(b) are—

(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968; (c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of the Sentencing Act;(e) section 224A, 225(2) or 226(2) of this Act;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”15 (1) Section 153 (length of discretionary custodial sentences: general provision) is amended as follows.

(2) In subsection (2), for the words from “section 1A(5)” to “this Act” substitute “the provisions listed in subsection (3)”.

(3) After that subsection insert—

“(3) The provisions referred to in subsection (2) are—

(a) sections 1(2B) and 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) sections 139(6B), 139A(5B) and 139AA(7) of the Criminal Justice Act 1988;(d) sections 110(2) and 111(2) of the Sentencing Act;(e) sections 226A(4) and 226B(2) of this Act;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”16 (1) Section 305(4) (interpretation of Part 12) is amended as follows.

(2) In paragraph (za)—

(a) for “subsection (5) of section 1A” substitute “section 1(2B) or 1A(5)”, and(b) for “that subsection” substitute “that provision”.(3) In paragraph (aa)—

(a) for “subsection (7) of section 139AA” substitute “section 139(6B), 139A(5B) or 139AA(7)”, and(b) for “that subsection” substitute “that provision”.Coroners and Justice Act 2009 (c. 25)17 (1) Section 125(6) of the Coroners and Justice Act 2009 (sentencing guidelines: duty of court) is amended as follows.

(2) In paragraph (ea)—

(a) for “section” substitute “sections 1(2B) and”, and(b) for “offence of threatening with offensive weapon in public” substitute “certain offences involving offensive weapons”.(3) In paragraph (fa)—

(a) for “section” substitute “sections 139(6B), 139A(5B) and”, and(b) for “offence of threatening with” substitute “certain offences involving”.”

Amendment 100 agreed.

Amendments 101 to 105

Moved by

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101: Before Clause 29, insert the following new Clause—

“Extension of disqualification where custodial sentence also imposed

(1) In section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence also imposed)—

(a) in subsection (4)(e) and (f), omit “calculated after that term has been reduced by any relevant discount”, (b) in subsection (4)(h), omit “calculated after that sentence has been reduced by any relevant discount”, and(c) omit subsection (6) (definition of “relevant discount”).(2) In section 147A of the Powers of Criminal Courts (Sentencing) Act 2000 (extension of disqualification where custodial sentence also imposed)—

(a) in subsection (4)(e) and (f), omit “calculated after that term has been reduced by any relevant discount”, (b) in subsection (4)(h), omit “calculated after that sentence has been reduced by any relevant discount”, and(c) omit subsection (6) (definition of “relevant discount”).(3) In consequence of the amendments made by subsections (1) and (2), omit paragraphs 8 and 12 of Schedule 13 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.”

102: Before Clause 29, insert the following new Clause—

“Mutual recognition of driving disqualification in UK and Republic of Ireland

(1) Chapter 1 of Part 3 of the Crime (International Co-operation) Act 2003 (EU Convention on driving disqualifications) is amended as follows.

(2) For the heading of the Chapter substitute “Mutual recognition of driving disqualification in UK and Republic of Ireland”.

(3) In section 54 (application of duty of the UK to give notice of driving disqualification)—

(a) in subsection (1), for paragraph (a) substitute—“(a) an individual (“the offender”) is convicted of a qualifying UK road traffic offence,(aa) when convicted, the offender—(i) is normally resident in the Republic of Ireland, or(ii) is not normally resident in the Republic of Ireland but holds a Republic of Ireland licence,”, and(b) after subsection (1) insert—“(1A) A qualifying UK road traffic offence is—

(a) an offence under the law of England and Wales or Scotland mentioned in Schedule 3;(b) an offence under the law of Northern Ireland mentioned in Schedule 3A.”(4) In section 56(1) (application of duty of the UK to recognise driving disqualification imposed outside the UK), for paragraph (a) substitute—

“(a) an individual (“the offender”) is convicted in the Republic of Ireland of an offence described in Schedule 3B,(aa) when convicted, the offender—(i) is normally resident in the United Kingdom, or(ii) is not normally resident in the United Kingdom but holds a Great Britain licence or a Northern Ireland licence,”.(5) After section 71 insert—

“71A The specified agreement on driving disqualifications

(1) In this Chapter, “the specified agreement on driving disqualifications” means the agreement specified from time to time by the Secretary of State by regulations for the purposes of this Chapter.

(2) The Secretary of State may only specify an agreement made—

(a) between the United Kingdom and the Republic of Ireland, and(b) for the purpose of giving effect in one of those States to disqualification from driving imposed in the other on conviction for an offence.(3) In this section, “disqualification from driving” means disqualification from holding or obtaining a licence to drive a motor vehicle.”

(6) In Schedule (Mutual recognition of driving disqualification in UK and Republic of Ireland) to this Act—

(a) Part 1 contains further provision for the purpose of implementing an agreement between the United Kingdom and the Republic of Ireland on the mutual recognition of driving disqualification;(b) Part 2 contains provision about the transition from the EU Convention on driving disqualification to that agreement.”

103: After Clause 29, insert the following new Clause—

“Disclosing private sexual photographs and films with intent to cause distress

(1) It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made—

(a) without the consent of an individual who appears in the photograph or film, and(b) with the intention of causing that individual distress.(2) But it is not an offence for the person to disclose the photograph or film to the individual mentioned in subsection (1)(a) and (b).

(3) It is a defence for a person charged with an offence under this section to prove that he or she reasonably believed that the disclosure was necessary for the purposes of preventing, detecting or investigating crime.

(4) It is a defence for a person charged with an offence under this section to show that—

(a) the disclosure was made in the course of, or with a view to, the publication of journalistic material, and(b) he or she reasonably believed that, in the particular circumstances, the publication of the journalistic material was, or would be, in the public interest.(5) It is a defence for a person charged with an offence under this section to show that—

(a) he or she reasonably believed that the photograph or film had previously been disclosed for reward, whether by the individual mentioned in subsection (1)(a) and (b) or another person, and(b) he or she had no reason to believe that the previous disclosure for reward was made without the consent of the individual mentioned in subsection (1)(a) and (b).(6) A person is taken to have shown the matters mentioned in subsection (4) or (5) if—

(a) sufficient evidence of the matters is adduced to raise an issue with respect to it, and(b) the contrary is not proved beyond reasonable doubt.(7) For the purposes of subsections (1) to (5)—

(a) “consent” to a disclosure includes general consent covering the disclosure, as well as consent to the particular disclosure, and(b) “publication” of journalistic material means disclosure to the public at large or to a section of the public.(8) A person charged with an offence under this section is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure.

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

(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both), and(b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both).(10) Schedule (Disclosing private sexual photographs or films: providers of information society services) makes special provision in connection with the operation of this section in relation to persons providing information society services.

(11) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference in subsection (9)(b) to 12 months is to be read as a reference to 6 months.

(12) In relation to an offence committed before section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force, the reference in subsection (9)(b) to a fine is to be read as a reference to a fine not exceeding the statutory maximum.”

104: After Clause 29, insert the following new Clause—

“Meaning of “disclose” and “photograph or film”

(1) The following apply for the purposes of section (Disclosing private sexual photographs and films with intent to cause distress), this section and section (Meaning of “private” and “sexual”).

(2) A person “discloses” something to a person if, by any means, he or she gives or shows it to the person or makes it available to the person.

(3) Something that is given, shown or made available to a person is disclosed—

(a) whether or not it is given, shown or made available for reward, and(b) whether or not it has previously been given, shown or made available to the person.(4) “Photograph or film” means a still or moving image in any form that—

(a) appears to consist of or include one or more photographed or filmed images, and(b) in fact consists of or includes one or more photographed or filmed images.(5) The reference in subsection (4)(b) to photographed or filmed images includes photographed or filmed images that have been altered in any way.

(6) “Photographed or filmed image” means a still or moving image that—

(a) was originally captured by photography or filming, or(b) is part of an image originally captured by photography or filming.(7) “Filming” means making a recording, on any medium, from which a moving image may be produced by any means.

(8) References to a photograph or film include—

(a) a negative version of an image described in subsection (4), and(b) data stored by any means which is capable of conversion into an image described in subsection (4).”

105: After Clause 29, insert the following new Clause—

“Meaning of “private” and “sexual”

(1) The following apply for the purposes of section (Disclosing private sexual photographs and films with intent to cause distress).

(2) A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public.

(3) A photograph or film is “sexual” if—

(a) it shows all or part of an individual’s exposed genitals or pubic area,(b) it shows something that a reasonable person would consider to be sexual because of its nature, or(c) its content, taken as a whole, is such that a reasonable person would consider it to be sexual.(4) Subsection (5) applies in the case of —

(a) a photograph or film that consists of or includes a photographed or filmed image that has been altered in any way, (b) a photograph or film that combines two or more photographed or filmed images, and(c) a photograph or film that combines a photographed or filmed image with something else.(5) The photograph or film is not private and sexual if—

(a) it does not consist of or include a photographed or filmed image that is itself private and sexual,(b) it is only private or sexual by virtue of the alteration or combination mentioned in subsection (4), or(c) it is only by virtue of the alteration or combination mentioned in subsection (4) that the person mentioned in section (Disclosing private sexual photographs and films with intent to cause distress)(1)(a) and (b) is shown as part of, or with, whatever makes the photograph or film private and sexual.”

Amendments 101 to 105 agreed.

Amendment 106 not moved.

Amendment 106A

Moved by

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106A: After Clause 31, insert the following new Clause—

“Public interest defence to Computer Misuse Offence

In the Computer Misuse Act 1990, after section 1(2) insert—“(2A) Subsection (1) does not apply to a person who shows—

(a) that the conduct which would otherwise be an offence under subsection (1)—(i) was necessary for the purpose of preventing or detecting crime, or(ii) was required or authorised by or under any enactment, by any rule of law or by the order of a court;(b) that he acted in the reasonable belief that he had in law the right to carry out that conduct;(c) that he acted in the reasonable belief that he had relevant authority;(d) that he acted in the reasonable belief that in the particular circumstances the conduct was justified as being in the public interest; or(e) that in the particular circumstances the conduct was justified as being in the public interest.””

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My Lords, this group comprises Amendments 106A to 106D and 181A and is the last group at the end of a long day.

Amendments 106A to 106C would introduce new defences to criminal offences under three statutes, the Computer Misuse Act 1990, the Bribery Act 2010 and the Data Protection Act 1998.

I turn to Amendment 106A. Section 1 of the Computer Misuse Act creates an offence effectively of using a computer to secure unauthorised access to data or to a program—in other words, what is conventionally called hacking into other people’s computers. The amendment would create a public interest defence to that offence. The defence proposed is directly in line with a defence that already exists under Section 55(2) of the Data Protection Act 1998, to which I will return in respect of Amendments 106C and 106D.

The amendment would place the onus squarely on the defence, stating:

“Subsection (1) does not apply to a person who shows”.

The defences are that the conduct which would be an offence was necessary for the purpose of preventing or detecting crime or was required or authorised by or under any enactment, a rule of law or by order of a court; or that the defendant acted in the reasonable belief that he had the right to carry out that conduct; or that he acted in the reasonable belief that he had relevant authority; or that he reasonably believed that the conduct was justified as being in the public interest; or that in the particular circumstances the conduct was justified as being in the public interest.

I say at the outset that I accept that these amendments are proposed late in the day in the Bill’s passage, and that there has not been sufficient time for them to be fully ventilated and considered. For that reason I will not be pressing the amendments to a vote tonight. However, I have tabled them in the hope that the Government will give them further consideration. These are, I suggest, sensible public interest amendments and they are directed to protecting the public interest in tightly circumscribed conditions.

Amendment 106B deals with the offence under the Bribery Act. It is an exactly similar offence to an offence under Section 1 of the Bribery Act, which quite properly makes it an offence to offer a promise of,

“financial or other advantage … to induce a person to perform”,

a function improperly or where acceptance of such an advantage would itself be improper. I accept that these are complex areas, but in tabling these amendments I do not believe that it is right to criminalise without exception responsible journalism on these issues, which the other defences available to this offence do not cover. I suggest that the offence as it stands strikes the wrong balance between the public interest in responsible journalism and the public interest in the concern to stamp out corruption.

Most commonly, offences under the Bribery Act that might be amenable to this defence would concern payment by journalists for stories when it is in the public interest to publish such stories. There is some evidence that newspapers feel that they have to turn away whistleblowers who want or seek compensation for the risks they take in becoming whistleblowers by exposing what may be going on in the organisations for which they work, and which would otherwise be caught by the Bribery Act. There is a risk that both the provisions that I mention in the Computer Misuse Act and the Bribery Act could act—and do act sometimes—as a gag on journalism. These defences would respond to that, but I emphasise that these defences would be difficult to prove and only seriously undertaken.

Amendment 106C would establish an extra defence to offences under Section 55 of the Data Protection Act. That section creates offences of unlawfully obtaining personal data held by a data controller and procuring,

“disclosure to another person of the information contained in personal data”.

As I have mentioned, there is already in Section 55(2) of the Act a precisely similar defence to those proposed in my earlier amendments to introduce defences under the two other Acts—the Computer Misuse Act and the Bribery Act.

Amendment 106C would introduce a further defence of public interest journalism or publication for artistic or literary purposes. The special purposes mentioned in the amendment are defined by Section 3 of the Data Protection Act as,

“the purposes of journalism … artistic purposes, and … literary purposes”.

The defence would protect a publisher of information who acted for the special purposes—that is those purposes—or,

“with a view to the publication by any person of any journalistic, literary or artistic material, and in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest”.

As with Amendment 106D, there is a history to this amendment. The new defence proposed in Amendment 106C is a defence legislated for in exactly this form by Section 78 of the Criminal Justice and Immigration Act 2008. Our concern is that the amendment is not yet in force. This is a free speech amendment once again; there is again a balance to be struck between the interests of free speech and the requirements of journalism, art and literature on the one hand against the demands of preserving the confidentiality of personal data. In 2008, Parliament legislated for this defence, which has not been implemented, and it should be implemented now.

Amendment 106D would introduce the possibility of custodial sentences for offences under Section 55 of the Data Protection Act of unlawfully obtaining or disclosing personal data. That is the same offence with which the previous amendment was concerned. Under Section 60 of that Act at present, only fines are available and, to put it bluntly, the threat of fines is frequently insufficient as a punishment. There is a risk that payment of fines may be regarded and treated as no more than a necessary expense by unscrupulous publishers who act with intent to circumvent the Data Protection Act.

Amendment 106D was also legislated for in the Criminal Justice and Immigration Act 2008, where it forms Section 77. That section, implemented by the previous Labour Government, provided for custodial sentences, as does this, of 12 months on summary conviction and two years on indictment, and could be introduced by the Secretary of State by order only after consultation with the Information Commissioner, media organisations and such other persons as the Secretary of State considered appropriate. The Labour Government consulted twice on this issue and on whether to introduce the public interest defence that would be provided for in Amendment 106C.

In 2011, the Government announced that they were keeping both issues under review. On 22 September 2013, the Secretary of State wrote to the chairman of the Home Affairs Committee:

“We therefore intend to conduct a public consultation on the full range of data protection proposals, including on whether to introducing custodial sentences under section 77 of the CJIA. Consultation on the latter is a statutory requirement. This will enable us to seek views on their impact and how they might be approached. We think it is important that the public get the opportunity to consider the question of whether to introduce custodial penalties for breaches of section 55 in the context of Lord Justice Leveson’s wider proposals relating to the data protection framework”.

Your Lordships may think that that was a clear pledge by the Secretary of State to introduce consultation with a view to implementation in the context of Lord Justice Leveson’s proposals. The proposals were contained in recommendation 54, where Lord Justice Leveson said:

“The necessary steps should be taken to bring into force the amendments made to section 55 of the Data Protection Act 1998 by section 77 of the Criminal Justice and Immigration Act 2008 (increase of sentence maxima) to the extent of the maximum specified period; and by section 78 of the 2008 Act (enhanced defence for public interest journalism)”.

Those are precisely the amendments that we now contend for.

Amendment 181A is an important amendment to the commencement section. It would provide that the two sections would become law on the day that this Bill is enacted. It would thus ensure that there should be no further prevarication, the consultations that there have been being sufficient. There is no excuse for further delay. These amendments seek to ensure action now. I beg to move.

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My Lords, were any other Members present, they might share my bewilderment at being faced at a very late stage, not only today but in the process of the Bill, with a series of amendments of what can only be described as some complexity for those of us—and I suspect that is most of us—who are not familiar with the territory to which the noble Lord has introduced us this evening at some length. As he has said, it is not possible—it is simply laughable—to endeavour to take these amendments to a vote tonight, but it may also be difficult to do this in time for Third Reading. The Minister may be able to comment on that.

Among these puzzling amendments I am puzzled most by Amendment 106C, with its reference in particular to a defence of there being a view to publication of journalistic, literary or artistic material. I do not see how that meets the more substantive case that I can well see in relation to what might be called the Leveson issues in 106A. These are matters that clearly need to be investigated further. I do not know whether the noble Lord envisages having these matters dealt with at Third Reading, but frankly I should have thought that that was unrealistic at this stage of the Bill. There may be another opportunity with other Bills for these matters to be taken forward. They are of such complexity that it is unreasonable to expect them to be dealt with in the course of this Bill. If that sounds a bit too ministerial, I apologise. I apprehend that the Minister might for once think that I am on the right track. We shall find out shortly.

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My Lords, the noble Lord, Lord Beecham, often sounds ministerial, and from comments that he may have made earlier this afternoon he is clearly anticipating events in May when he will be able to perform that task. I do find myself in the rare position of agreeing with his comments generally about these amendments, in that they have appeared very late—late even among the amendments that have appeared in the course of this Bill, and there has been no shortage of amendments and no shortage of complexity in amendments. Indeed, I pay tribute to Members of the House for managing to get through so many amendments of such complexity today. It has taken a great deal of restraint by Members to enable the arguments to be deployed, often by others. No doubt those Members who restrained themselves may have thought they would have made better arguments or expressed the arguments with more clarity than those who did speak, but admirable restraint was shown.

We come to consider these amendments. My noble friend Lord Marks will appreciate that the pressures of time on myself and my officials has limited my ability to respond adequately to what are plainly serious issues, as he has outlined. I intend to speak to Amendments 106C and 106D in this group first. Sections 77 and 78 of the Criminal Justice and Immigration Act 2008 already provide for the changes that have been proposed for the Data Protection Act. Section 77 provides for an order-making power permitting the Secretary of State to introduce a custodial sentence for breaches of the offence in Section 55 of the Data Protection Act 1998. The penalty will apply irrespective of who has committed the offence. Given that people’s liberty is at stake and the seriousness of the offence, it is vital that proper thought is given to the introduction of such a change. That is why Parliament also provided that there must be a properly undertaken and detailed consultation with the Information Commissioner, the media and other potentially affected parties before that penalty applies. Therefore, such a change in the law now would be premature.

All the changes to the Data Protection Act that Lord Justice Leveson proposed need to be considered together, as a package of checks and balances. The European Commission is currently working on a new data protection regulation and it is the Government’s view that the Leveson recommendations should be viewed in that overall context. For that reason, I am afraid that I cannot support this amendment.

I turn now to Amendments 106A and 106B, which insert new defences to offences under the Bribery Act 2010 and Section 1 of the Computer Misuse Act. Offences committed under these Acts amount to serious breaches of the criminal law. Provisions in each of those Acts already contain targeted defences. The Computer Misuse Act includes a savings provision for law enforcement, while the Bribery Act contains a defence that applies to the conduct of the intelligence services or the Armed Forces when engaged in active service, which is necessary for the proper exercise of their functions. The existing defences for these offences have been carefully considered.

From what my noble friend Lord Marks said, I understand that the primary intention behind all these amendments is to provide a defence for journalists acting in the public interest. While I agree that it is important that journalists can undertake genuine investigative work to uncover misconduct, these amendments raise complex areas that need more thinking and a detailed understanding. I am sure that the majority of journalists work with the utmost integrity but there is a risk that such defences could encourage a culture of wrongdoing, however well intentioned they may be. Of course, the defences would also have a much wider application—for example, giving any potential defendant the right to show that they had a reasonable belief that what they were doing was not illegal.

Noble Lords will be aware that the Crown Prosecution Service must take the public interest into account in deciding whether to prosecute in every case. In addition, proceedings under the Bribery Act may be instituted only with the personal, non-delegable consent of the Director of Public Prosecutions or the director of the Serious Fraud Office. This provides an important safeguard against inappropriate prosecutions against journalists or, indeed, anyone else.

For the reasons outlined in my remarks, we consider that further thinking is needed in these complex areas. We do not take issue with the fact that these are matters of concern, and I do not criticise my noble friend Lord Marks at all for raising them, albeit at a late stage. However, I hope that he appreciates that the complexity of the issues, together with the competing interests at the heart of these amendments, means that they should not in any way be rushed. They took a long time to identify in the course of the Leveson report. They have been the subject of much comment inside and outside Parliament. All the appropriate considerations and consultations need to take place before we can proceed with this matter. I hope that that will persuade my noble friend to withdraw his amendment.

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My Lords, I say at the outset that I entirely accept the point made by both the Minister and the noble Lord, Lord Beecham, so elegantly and in such a restrained fashion, about the lateness of these amendments. I entirely accept that the complexity of these amendments, and the fact that the Government and the Opposition have had so little time to consider them, means that it would be wrong of me to press them to the vote today.

Nevertheless, in encouraging my noble friend and his department to give further consideration to the points raised by the amendments, I will deal briefly with some of his points. He mentioned the need for consultation under Section 77 of the Criminal Justice and Immigration Act, affecting Section 55 of the Data Protection Act—as it would be with the amendment—and he deduced from that that it would be wrong to proceed without consultation. The fact is that there have been two consultations on this issue by the previous Government, and furthermore we now have the clear recommendations of the Leveson report that both of these provisions should now be implemented. In those circumstances I find it hard to understand why he expresses the view so clearly that all Leveson’s proposed changes on data protection have to be understood together. The proposals on the new defence are not subject to a consultation requirement; that refers only to the new penalties, for which there is a crying need.

I will also deal with what my noble friend said about the existing defences, particularly his reference to the Bribery Act. He mentioned that there are defences under the Bribery Act which cover conduct by the intelligence services or the Armed Forces on active service. That may be right, but it is hardly relevant to the question of whether responsible journalism should give rise to an entirely separate defence. He also mentioned the Computer Misuse Act including a saving provision for law enforcement—again, hardly relevant to whether a public interest defence should be allowed in respect of that Act.

My noble friend is right to say the purpose of these amendments is to provide a defence for journalists acting in the public interest. It is always an important issue for the public to be protected. I suggest that the balance that needs to be struck, between journalists being able to carry out investigative work for a genuine public reason and the need to protect the public from computer misuse and unlawful conduct offering financial advantage, is one which needs a great deal of attention. He is of course right that the Crown Prosecution Service has to take the public interest into account. However, the fact that it has to consider whether a couple of further defences would succeed before making its decision is not a reason for the Government not to take these amendments forward at a later stage. I beg leave to withdraw the amendment.

Amendment 106A withdrawn.

Amendments 106B to 106D not moved.

House adjourned at 10.41 pm.