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Lords Chamber

Volume 756: debated on Monday 20 October 2014

House of Lords

Monday, 20 October 2014.

Prayers—read by the Lord Bishop of Coventry.

Introduction: Baroness Harding of Winscombe

The Honourable Diana Mary Harding, having been created Baroness Harding of Winscombe, of Nether Compton in the County of Dorset, was introduced and made the solemn affirmation, supported by Lord King of Bridgwater and Baroness Lane-Fox of Soho, and signed an undertaking to abide by the Code of Conduct.

Introduction: Baroness Mobarik

Nosheena Shaheen Mobarik, CBE, having been created Baroness Mobarik, of Mearns in the County of Renfrewshire, was introduced and took the oath, supported by Lord Strathclyde and Lord Smith of Kelvin, and signed an undertaking to abide by the Code of Conduct.

Banks: Bridging Finance


Asked by

To ask Her Majesty’s Government whether they have any plans to encourage banks to provide bridging finance to asset-rich, cash-poor homeowners who wish to downsize, regardless of age.

My Lords, the Government are keen to encourage all those wishing to downsize, of whatever age, to do so. In the vast majority of cases, bridging finance should not be necessary. For older people, the major constraint to downsizing is often the lack of appropriate alternative accommodation. We are committed to increasing the flow of such housing on to the market, for example through the care and support specialised housing fund.

My Lords, I thank the Minister for that reply, but I do not agree with it. Older people are having major problems because where, years ago, bridging finance would have been available to anyone—particularly if they had big equity in a house and were moving to a less expensive house—there is now a strict age limit. It was 75 when I quoted it last time to someone in the Treasury; I checked it again, and it has gone to 70 now. In some cases, some of the banks I rang said it is 65. Does the Minister not think that there is a bit of age discrimination in this?

There is a problem with how banks deal with older people who are looking to move, but it has nothing to do with bridging finance in most cases. It is simply about transferring the mortgage from one property to another. The mortgage market review suggested that banks should have some discretion in those circumstances so that people would be able to remortgage on the same terms that they had before, but unfortunately, as in a number of other cases, the banks are interpreting this in a very rigid way, which is undoubtedly disadvantaging some people.

My Lords, will the Minister look out for a report on affordable downsizing, due to be released on 19 November by the APPG on this subject, which I chair? Will he note in particular the central recommendation that, like the right to buy for young people, we get a right to move for those of us in our extended middle age?

I certainly look forward to reading the report. I will be fascinated to see how that right might be translated into reality for a lot of people, but some local authorities are beginning to look imaginatively about how you help people to move. Very often, one of the big problems is just the physical challenges of sorting out the move, switching the bills and so on. Redbridge, for example, and a number of other authorities have started to provide a service to people who wish to downsize, to help them with all those mechanical arrangements which, for some people, prove to be the last straw in stopping them from downsizing.

My Lords, does the Minister recall that during the crisis when we changed from rates and the support grant to the community charge, there was a myth that there were many asset-rich but cash-poor people? It proved not to be true. We are again hearing this myth of asset-rich but cash-poor people, but if they are asset-rich, they should not need a mortgage, as they have enough equity in their present house to relocate.

My Lords, that is obviously the case for many people who have been in the same house for a long time. Some people entering retirement who still have a mortgage may require a mortgage if they are moving to a smaller property, but it is almost by definition going to be a smaller mortgage than the one they previously took out, given that there will have been some capital appreciation. One of the key challenges for us is that research shows that almost half of all over-55 households have spare space in the house. If we can facilitate downsizing where people genuinely want to do it, society as the whole will benefit.

Will my noble friend agree that older empty-nesters often wish to have their grandchildren or other visitors come to stay with them? There is a myth that when people downsize—which does free up housing for families—they somehow want to go into specialist, tiny homes for people with great needs at the end of their lives. That is not actually the key to unlocking family homes: the key is to provide something for people to move into that is appropriate to their needs and expectations. The problem is the fundamental shortage of housing of that sort.

My Lords, yes, I completely agree. It is important that those housing associations that provide specialist housing designed for older people—one of which is chaired by my noble friend Lord Stoneham—are encouraged to grow so that we can have more appropriately designed and sized accommodation.

My Lords, the House will have noticed the Government’s concern about this relatively marginal problem of the asset-rich. What about the asset-poor who are forced to downsize under government policy on the bedroom tax?

The noble Lord knows that 1.7 million households are waiting for social housing in the UK, and the spare room subsidy is intended to help move people into accommodation in those circumstances. I think that he would agree with me that the fundamental challenge that we in all parties face is how to increase the flow of housing, not just in aggregate but so that it is designed to meet the different requirements of different groups, including the elderly.

My Lords, other than a few of the more enlightened ones, banks are now refusing to provide mortgage loans to anyone over 70. It is very well to say that banks can exercise discretion here, but when they are told by the regulator that that is what the regulator wants, not surprisingly they want to protect themselves, so they say, “Well, we’ll do what we’re told”. If they do otherwise, they put themselves out on a limb if something goes wrong. Basically, the regulator needs to be advised to make it clearer that it wants to see banks use their initiative.

My Lords, as I said earlier, many lenders appear to be approaching the rules in a way that is against the spirit set out by the FCA. The FCA is reviewing the way the mortgage market review rules operate, and I hope that there will be some movement there. A number of banks and smaller building societies, in particular the Family Building Society and the Bath Building Society, of course do not have any age limits in their lending policies.

Schools: Careers Advice


Asked by

To ask Her Majesty’s Government whether they have any plans to change the current system of careers advice for young people in schools.

My Lords, my right honourable friend the Secretary of State for Education has made it clear that she wants to see improvements in the quality of careers advice and guidance available to young people, with many more schools and employers working together to provide excellent support. That is a clear priority for her. We have made a number of changes in this area, including issuing revised statutory guidance to schools; we are keeping the impact of those changes under review, and are considering what else we can do to improve the links between schools and the world of work.

I thank the Minister for that quite helpful reply. However, I am sure that he is aware that in providing careers advice, schools face an inherent conflict. The funding regime for senior schools depends in part upon numbers of pupils being retained in the sixth form to study GCSEs and A-level subjects, and of course the position of schools in the league tables is a hugely important pressure on them. Together, those two things deter many schools from advising pupils of the opportunities maybe to study BTEC subjects, applying for apprenticeships, or moving on to further education colleges. Can the Minister therefore tell the House what the Government intend to do about that conflict?

The noble Baroness is right—there is an inherent conflict in this. Schools have a clear responsibility to ensure that their pupils achieve and progress to positive destinations, whether that is university or another, high-calibre, vocational route. Our revised guidance clearly states that schools should act impartially and recognise that some students would be better suited to educational training beyond schools, and it makes it clear that schools should give other providers the opportunity to inform pupils about the offer. We believe that our new destination measures will also help considerably in that area.

My Lords, may I once again urge my noble friend to contact all secondary schools and encourage them to appoint a careers advisory panel drawn from local businessmen and professionals who really know about jobs and careers?

My noble friend has raised this before and I think it is an excellent idea. In fact all schools should have at least one person focused on the careers function. I know that a number of schools do this and we are considering encouraging more of them to do so.

With the school leaving age now raised to 18, is it not the case that all 16 to 19 year-old students are engaged in special 16 to 19 study programmes which are formally and specifically geared to career aspirations? How, then, can it be that Ofsted last week published a report complaining that there was very poor use of the extra time for 16 to 19 year-olds and, specifically, that careers guidance is poor “at all levels”?

The noble Lord’s comment about 16 to 19 study programmes is quite right. I am aware of what Ofsted has said and we will be reflecting on what other guidance about this we can give to colleges.

My Lords, I declare an interest as the founder and champion of the Reach Out Lab at Imperial College, London. Each year we connect with around 7,000 schoolchildren from the state sector drawn from all over London, plus another 30,000 through collaboration with the Mayor of London. It is very clear, as the Minister accepts, that there is grossly inadequate careers advice. Does he not also accept that it would be much more sensible if universities were better integrated with schools, and is it not about time that we consider that all education should be under one government department?

I am aware of the excellent programme to which the noble Lord refers. I am sure he is delighted with the increase in STEM subjects which has taken place under this Government. Schools should have a thoroughly close relationship with their local business professional communities and universities and, as far as his last point is concerned, it is one that I am sure all future Governments will consider carefully.

My Lords, a UNISON survey in June this year showed that 83% of schools surveyed were no longer employing a careers adviser. Have the Government made an assessment of this situation?

Yes. We believe that one-to-one careers advice is appropriate in certain circumstances but obviously all schools seek to identify their students’ passions and interests at an early age and develop them. The evidence is quite clear from a number of reports, including those from McKinsey and Education and Employers Taskforce, that the best careers advice for young people comes through activities and contact with the world of work. For many of our young people, particularly those from workless households, careers advice these days is as much about inspiration as actual advice on detailed careers.

My Lords, the Minister will be aware of the importance of face-to-face careers advice for pupils, but particularly for those with learning disabilities, special educational needs and conditions such as autism, only a small number of whom are actually able to access jobs. Can the Minister assure the House that all those disabled people requiring or requesting careers advice will receive it from fully trained careers advisers who are well trained on disability rights and matters?

Our guidance is quite clear that particularly for children with SEN, whether they have autism or are in other situations, one-to-one careers advice may well be appropriate.

My Lords, having accepted the proposal and explanation by my noble friend Lady Prosser about the challenges faced by secondary schools, further education institutions and universities, how are the Government going to achieve their goal of having more apprenticeships—a major problem for employers—when most young people going into apprenticeships find out from family rather than from any other available careers advice?

My Lords, we have an active programme to encourage people to consider apprenticeships. We have a range of marketing materials available from the National Apprenticeship Service, and Not Going to Uni is also an extremely good source of information. The National Apprenticeship Service funds the Education and Employers Taskforce, and more than 70 advisers from the National Careers Service, the National Apprenticeship Service and jobcentres are actively embarked on this at the schools show.

Children: Obesity


Asked by

To ask Her Majesty’s Government whether they have any plans to develop a co-ordinated cross-departmental strategy to address childhood obesity in order to ensure the health and wellbeing of children.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare an interest as chair of the All-Party Group on a Fit and Healthy Childhood.

My Lords, we published our cross-government strategy, A Call to Action on Obesity in England, in 2011. It sets out our approach to tackling obesity and includes a national ambition for a sustained downward trend in the level of excess weight in children by 2020. This requires ongoing collective action across all government, businesses, healthcare professionals and individuals. We are seeing encouraging signs of progress, with obesity rates in children falling to 14% in 2012, the lowest level since 1998.

I thank my noble friend for that Answer. However, a report by the All-Party Group on a Fit and Healthy Childhood has confirmed that childhood obesity has become an epidemic across the country. In some areas, 40% of children are overweight. Medical and dental experts are raising concerns about obesity and health issues in children and millions are being spent by the NHS because of this. Does my noble friend agree that this epidemic has to be called a national emergency and that someone at Cabinet level should be responsible for co-ordinating strategy across all relevant government departments for the sake of our children’s long-term well-being? Will he please agree to meet the all-party group to discuss this report?

My Lords, first, I commend the all-party group for its report. Tackling obesity is one of our major priorities, as it is for Public Health England. We have a well developed and wide-ranging programme of actions to tackle obesity. We have set a national ambition for a downward trend in excess weight in children. We are delivering the programme through initiatives such as Change4Life, the National Child Measurement Programme, school sports funding and the School Food Plan, and through voluntary partnerships with industry. As regards co-ordination, Public Health England is a leader of the public health service and numerous government departments are contributing to the anti-obesity agenda. We have a Minister for Children, and we have already established the Obesity Review Group, which brings together a range of experts and delivery partners from across the system to try to co-ordinate efforts to meet our national ambitions.

My Lords, will the Minister acknowledge that the Department of Health and NICE misled Parliament and the nation in saying that the obesity epidemic was due to lack of exercise? Will the Minister acknowledge that in fact obese people do not need to increase their activity one iota in order to lose weight? All they have to do is to eat or drink fewer calories.

My Lords, although physical activity can have a role in maintaining a healthy weight, the Government agree with my noble friend that its health benefits are nevertheless subsidiary in those who are obese to the need to eat and drink less. My noble friend may be interested to know that NICE is currently consulting on its draft public health guideline on maintaining a healthy weight and preventing obesity among children and adults. It currently expects to publish this guideline in February next year.

My Lords, does the Minister accept that many of us are obese because we are the proud but inevitable products of heredity? Further, does he accept the splendid words of the Scottish author, Eric Linklater, who, speaking of a person of ample frame, said, “His outline spoke not of greed but of grandeur, not of gluttony but of the magnanimity of the human form”?

There is, I am sure, no more elegant way of describing the issue under consideration at the moment. The noble Lord makes a very important point about heredity. I do not think that sufficient is understood about the role of our genetic make-up in the way in which we all differ in our weight and size. However, for those who are obese, there are clear, evidence-based actions that they can take to lose weight if they have a mind to do so.

Does the Minister agree that the link between cycling and the avoidance of obesity is extremely strong? Will he speak to his colleagues in the Department for Transport as his predecessor, whom I met at a conference a few years ago, said that the Department of Health would not encourage cycling because it was a transport matter?

We are straying a little towards obesity in general rather than obesity in children. However, I concur with the noble Lord that cycling has an important place in the way in which we can take exercise, which is beneficial for our general health. I will, of course, take back the noble Lord’s message.

Will the Minister say what success, if any, the Government have had in persuading manufacturers to reduce sharply the sugar content of fizzy drinks? Has consideration been given to the possibility of restricting the sale of high-calorie-content drinks through vending machines?

My Lords, our current emphasis is on overall calorie reduction, of which sugar forms an important part. The scope for reformulation to reduce sugar levels varies widely depending on the food that one considers and a reduction of sugar levels does not always mean that the overall calorie content is reduced. The issue is not black and white. An example of that is when sugar is replaced by starch or other ingredients. Nevertheless, we are discussing with the food manufacturing industry ways in which it can reformulate its food and the Scientific Advisory Committee on Nutrition is finalising its review on carbohydrates, looking at sugar as a particular component of that.

My Lords, given the difficulty of ensuring effective cross-department co-ordination on childhood obesity, what is the Government’s response to a call by the Royal College of General Practitioners to set up a COBRA-style task force? Would that not be a key way of ensuring a joined-up approach that extended beyond the Department of Health?

My Lords, as I mentioned earlier, we have set up the Obesity Review Group, which contains a multiplicity of experts to co-ordinate the efforts being conducted not only in government but also in local government and on the part of business and the wider private sector. While I buy into the central point made by the noble Baroness that this needs an overarching scrutiny, we believe that we have that already.

Energy: Winter Supplies


Asked by

To ask Her Majesty’s Government what steps they are taking to secure adequate energy supplies during the coming winter.

My Lords, we continue to actively manage risks to the secure energy supplies on which we depend. Working with Ofgem and National Grid, we have introduced new electricity system balancing measures through which we expect de-rated margins to remain around 6.5%; this is within the reliability standard of 4%. Our gas infrastructure is resilient, and import infrastructure can meet nearly double our annual demand without even counting on significant domestic production. We also engage closely with the EU and our G7 partners on measures to increase the EU’s energy security.

My Lords, I thank my noble friend for her Answer, but will she kindly elaborate further on the security of electricity supplies? In view of the fact that the reserve capacity is down to very low levels, and that a number of stations have had unexpected outages—including Didcot B, announced today—can she indicate whether there are likely to be disconnections during peak winter conditions?

My noble friend is right to highlight the outages. However, as I stated in my initial Answer, the grid already has existing options for companies to receive payment to reduce the amount of electricity they are taking from the grid at a time of peak demand during winter months. They are finalising new agreements with additional power stations to provide reserve services following the recent loss to which my noble friend referred. The national grid has around three gigawatts of additional tools to boost supply when margins are very tight and is in the process of extending our mutual assistance arrangements with both France and the Netherlands.

My Lords, the noble Lord, Lord Ezra, has rightly drawn the attention of the House to a truly alarming state of affairs, which is the direct result of subordinating over a number of years energy policy to the damaging, fundamentally immoral and futile demands of the Climate Change Act. Has my noble friend had time to study the outstanding GWPF lecture given by our right honourable friend Owen Paterson MP on this very subject only last week? If she has not, will she now do so?

As ever, I am grateful for my noble friend’s interventions because they enable me to highlight that, of course, we do have to look at the costs of any policy. However, we also need to look at the commitments we have made to reducing carbon emissions both in our global targets and in our national targets. I remind noble Lords that having a lower-carbon energy sector has brought in more than £45 billion worth of investment in electricity generation. That is a clear signal that we need a diverse range of energy supplies. I have not looked at my right honourable friend’s lecture notes but I will do so.

The Minister mentioned interconnectors, so does she agree that we have a meagre four gigawatts of interconnector supply internationally with the Netherlands and France? Should we not concentrate in terms of balance on increasing that supply, and in that way get a much greater single market in electricity within the European Union?

Again, my noble friend raises a very important point. Of course we are working very closely with our partners and we are looking at developing ways of enhancing interconnector supply. I agree with my noble friend that we have work to do, but work is in progress and it is progressing in the right direction.

Does Her Majesty’s Government agree that the crippling cost of the EU’s mad climate change policy, to which we are subservient, falls largely on people who cannot afford it? Does the widow’s mite come to mind?

No, my Lords. We have a sensible policy in this country, and people across the world look at what we are doing to encourage green energy as well as traditional fuels. If we are to leave a cleaner planet for future generations, we have a part to play.

My Lords, demand for energy has fallen so far this year. In the first half of this year we saw a 17.5% reduction in gas demand and a 5.7% reduction in electricity demand. People are walking around today in T-shirts. There is no need for the hysterical headlines that we are seeing about closures in plant. We have 25% of our energy today coming from wind. The question is: does the Minister agree that it is time to create an energy security board so that we can stop the alarmist headlines, have a mature debate and get our energy security and demand management policy back on track?

I agree with the noble Baroness that we need to have a sensible energy debate; maybe she could take that message back to her leader.

Can my noble friend tell the House that since the Leader of the Opposition announced a proposal to freeze electricity prices, what announcement has been made by any energy company of further investment in energy generation in this country?

My noble friend follows on from what I said in response to the noble Baroness opposite. We need a sensible energy policy and we are working towards a sensible debate. We have ensured that we are hard on energy companies where we see that they are not being fair to the consumer. We have brought in the CMA and have tightened Ofgem’s rules—so the Government have done a lot. Energy companies need to play their part, but we as political parties need to play ours.

My Lords, is the Minister aware that when I worked in the electricity industry for the CEGB, we needed 18% spare capacity? She is now trying to persuade the House that 4% spare capacity will give security of supply. Can I assure her that that policy—particularly since we have 25% of energy coming from wind power—is endangering security of supply, not only for industry but for all consumers as well? I hope that the Government will treat this as a matter of urgency, particularly in light of the fire at Didcot over the weekend.

My Lords, I think that I have made it clear through my responses that we are very aware of what we have in reserve. We are giving—and have given—powers to both national grid and Ofgem to ensure that we have enough supply.

Armed Forces (Service Complaints and Financial Assistance) Bill [HL]

Third Reading

Clause 2: Reform of system for redress of individual grievances

The Amendment

Moved by

Clause 2, page 6, line 25, at end insert—

“( ) The Ombudsman may, after advising the Secretary of State, investigate any matter deemed to be in the public interest on—

(a) any aspect of the system mentioned in section 340O(2)(a);(b) any matter relating to the Ombudsman’s functions under this Part;and make a report to the Secretary of State.”

My Lords, we have had debates in Committee and on Report on giving the Armed Forces Service Complaints Commissioner, now to be known as the ombudsman, wider powers to be able to report on thematic issues without being dependent on the Secretary of State asking for such reports. One reason for providing those wider powers—which is what this amendment seeks to do—is that, under the present arrangements, the commissioner has never been asked by a Secretary of State for Defence to report on a particular area of concern that she or the Secretary of State may have. It is therefore not credible to argue that the ability of the Secretary of State to call for such reports covers the situation.

The Commons Defence Select Committee believes there would be value in the commissioner—the ombudsman—being able to undertake research into and report on thematic issues, in addition to the annual reports, and that the ombudsman’s experience on these issues should be utilised. The Defence Committee reported that, during visits to units, the current commissioner had been informed of issues that would not necessarily come to her as complaints but on which she thought some work needed to be done. Such issues, which might refer to a general culture at a particular location or unit, or more widely, of discrimination or bullying, for example, would not be covered by new Section 340L, which relates to recommendations arising as a result of maladministration. A situation or treatment of an individual or individuals could be questionable or unacceptable without there being evidence of maladministration—assuming there was a willingness to make such a complaint, which relates to process, and whether a complaint has been conducted in a procedurally sound way.

In Committee, the Minister, on behalf of the Government, expressed concern that:

“an ombudsman with a wider remit to investigate matters of their own volition, notwithstanding whether they must first notify the Secretary of State of their intentions, could overlap with these other jurisdictions and cause confusion and difficulties”.—[Official Report, 9/7/14; col 243.]

That argument does not stand up. If that is the reason for not giving the ombudsman a wider remit in relation to thematic issues, then it must equally be a matter of concern under the powers in Section 340L. In respect of those powers, the Minister has said the ombudsman could make recommendations relating to wider systemic issues as a result of finding maladministration.

One difficulty of the Bill is that it is not clear what investigations, if any, the ombudsman can or cannot carry out on his or her own volition beyond investigating an individual complaint of maladministration. The Minister said in Committee that such recommendations could relate to systemic issues, but then said that the amendment seeking to provide for this went “beyond that required”, which would suggest that the Bill does not give, in the Government’s eyes, either the wider powers sought by the Defence Committee or sought in this amendment.

The Minister also said in Committee that there was scope for the ombudsman to raise wider issues,

“in appropriate ways … and to provide an input to investigations or inquiries conducted by other appropriate bodies”.—[Official Report, 9/7/14; col. 243.]

Clearly, the latter aspect, of providing an input into an investigation that somebody else has decided to initiate, does not meet the terms of this amendment, on the ability of the ombudsman to be able to carry out his or her own investigation and make his or her own recommendations.

I also have a concern that the Minister’s comment that there is scope under the Bill for the ombudsman to raise wider issues “in appropriate ways” is mainly a reference to being able to put something into the annual report. That view has been strengthened by the Minister’s statement on Report that:

“If systemic failings are identified through the complaints system, it is important that those are brought to the attention of both the individual service and the Ministry of Defence … the Bill gives the ombudsman scope to use their judgement to cover such matters in the annual report as they think relevant to the operation of the system or to the exercise of their role. The ombudsman’s annual reports, like those of the commissioner, will be able to look widely at the system of redress, the sort of complaints that are encountered and what sort of failings and misconduct the system has to deal with”.

The Minister also said on Report that the ombudsman could make wider recommendations,

“beyond those solely relating to maladministration, to addressing the effectiveness of the redress system or other systemic issues. Such wider recommendations could concern the better handling and investigations of complaints of a particular nature, where there is a finding of maladministration in connection with the handling of the complaint at hand. In addition, such recommendations could well concern the commissioning of training in carrying out investigations into certain matters—discrimination being a good example—or appointing a subject matter expert to investigate systemic issues or concerns that have apparently arisen. It is then fundamentally down to the services to respond appropriately and we would expect them to do so”.

It is evident from those quotes from what the Minister said on Report that the Government’s position is that, while the ombudsman can draw attention to systemic issues that have apparently arisen and recommend that they be investigated, the one thing that the Government are not prepared to allow the ombudsman to do is investigate such issues of concern on his or her own volition unless required by the Secretary of State to do so—and, as we know, Secretaries of State have a track record of not asking the commissioner to do so.

Indeed, the Minister made this position clear on Report when he said:

“Although we want the ombudsman to address wider issues, including where they have identified systemic abuse, we do not want the ombudsman to have any statutory powers to investigate thematic issues. We do not, for example, want the ombudsman to have any powers to require the production of papers or to question witnesses beyond the powers set out in respect of the exercise of the ombudsman’s primary function of investigating alleged maladministration in the handling of service complaints and whether, as a result, injustice has been caused”.

So the issue is not the principle of the ombudsman being able to call for the production of papers or questioning of witnesses—since that could relate to maladministration—but instead to do so in the context of an investigation into a thematic issue of concern to the ombudsman as opposed to an individual complaint of maladministration. The reason given for this stance by the Government on Report was that they,

“do not want the ombudsman to be an inspectorate for the Armed Forces or to perform the functions of a rapporteur. … Conferring such a role on the ombudsman would also serve to divert the resources of the office”.—[Official Report, 29/7/14; cols. 1544-6.]

I hope that the second reason is not a significant one, since it appears to be saying that the reason for not allowing the ombudsman to investigate thematic issues is not related to the merits or otherwise of so doing but rather because the resources cannot be provided to allow him or her to do so.

The report of the parliamentary Joint Committee on Human Rights on the Bill has recently been published. The committee welcomed the Bill,

“as a significant human rights enhancing measure”,

as have, I think, all parties. Indeed, the committee commended the Ministry of Defence for the exemplary way in which it had assisted it in its human rights scrutiny of the Bill. However, among the issues raised by the Joint Committee was the question of the independence of the ombudsman from the Government and the Armed Forces. The committee says that there is a need to demonstrate,

“the importance of the appearance of independence … to provide the necessary public confidence in the independence of the particular office holder”.

We may have different views on how that can be achieved, but I suggest that independence is not particularly enhanced by the Government saying,

“we do not want the ombudsman to have any statutory powers to investigate thematic issues”—[Official Report, 29/7/14; col. 1545.]

when the Armed Forces covenant sets out that the Armed Forces have,

“a responsibility to maintain an organisation which treats every individual fairly, with dignity and respect, and an environment which is free from bullying, harassment and discrimination”

and when the announcement of the creation of the ombudsman came a short time after the verdict was delivered on the inquest into the death of Corporal Anne-Marie Ellement. The inquest found that Anne-Marie had suffered workplace bullying, including rape-related bullying and the Coroner termed the situation a “hothouse”, concluding it was inevitable that incidents would occur.

It really is not clear why the Government are not prepared to go down the road of giving the ombudsman statutory powers to investigate thematic issues other than at the direction of the Secretary of State. What in reality are the concerns that cannot be overcome? What do the Government consider the ombudsman might do that would be unacceptable or would compromise national security if he or she had the right to investigate thematic issues of concern on their own volition? The recommendations arising from such an investigation would not be binding. They would have to go to the Secretary of State or Defence Council, who would decide whether to accept them in full or in part or not at all. Therefore, what is the concern that is so strong that a measure that would certainly enhance both the reality and the appearance of independence of the ombudsman cannot be countenanced? I beg to move.

My Lords, it is to the credit of your Lordships’ House that we have a Bill with only one amendment. It is a compliment to all sides of the House that we have managed to get a Bill that has got to this stage. I am a fairly new addition to this place but one amendment to a Bill seems a massive achievement. However, it is even greater than the noble Lord, Lord Rosser, just said. I believe that we have achieved an awful lot in the Bill and the amendment is almost clutching at straws or trying to find problems. I find that the commissioner—the ombudsman—will be able to take matters to the Defence Council and the problems described seem more in the realms of fantasy than reality.

As I see it in the Bill, in reality we have the ability to conduct investigations—I do not read it as saying that there can be no investigation of any sort. I do not think that the proposal by the noble Lords, Lord Rosser and Lord Tunnicliffe, gives the ombudsman that much more power than is there already. The ombudsman may investigate if a matter is,

“deemed to be in the public interest”.

In fact, most problems occur when particular members of the Armed Forces suffer some sort of bullying or have some complaint. That is where the complaints arise, rather than the big systemic complaints to which the noble Lord, Lord Rosser, referred. I do not see that the amendment is needed. There have been a lot of reassurances; they may not all be in the legislation but can be found in Hansard. But it has been proved that assurances given in Hansard can be taken and used in the appropriate manner.

If there is a vote, I shall certainly vote against the amendment, but I take this opportunity of asking my noble friend the Minister whether he would comment on a specific case. Perhaps he could say how, bearing in mind the comments of the noble Lord, Lord Rosser, the approach to that specific case would be helped and enhanced by the new legislation that we seek to pass. I refer to the case, reported over the last few days, of former Corporal Neathway, a paratrooper who was disabled. It took three years for his complaint to surface and for it to be seen that his commanding officers, at lower staff level and brigadier level, had not done what was necessary. What would happen under the new legislation, after the efforts of your Lordships’ House, with all the faults that the noble Lord, Lord Rosser, has sought to expose, if the case of this former corporal in a parachute regiment happened now rather than three years ago?

My Lords, the issues covered in this amendment have already been the subject of useful and detailed debates in Committee and on Report. I said on Report on 29 July that I would consider the issue further so that we could return to it this afternoon.

The Bill provides that the ombudsman’s primary function will be to investigate and report on allegations by complainants that there has been maladministration in handling their complaint. The reports from the ombudsman will contain binding decisions on whether there has been maladministration and whether, as a consequence, injustice has or could have been caused. The ombudsman can also make recommendations for remedial action including the reinvestigation of the complaint, suggested improvements to the way in which investigations into such allegations are carried out, or specific actions that would make the complaints system more effective. In addition to this, there is nothing to stop the ombudsman commenting on any underlying concern or pattern of behaviour that has given rise to the complaint.

As I said on Report, we envisage that, when the ombudsman considers it appropriate, he or she will publish information on any matters of general concern arising from the operation of the service complaints system, however such matters come to the ombudsman’s attention. We do not think that a statutory power needs to be provided for the ombudsman to be able to do this. We want the ombudsman to raise such issues as quickly as possible. When systemic failings are identified, it is important that they are brought to our attention so that they can be put right when possible.

My noble friend Lord Palmer of Childs Hill raised the really important issue of the Neathway case and asked how that case would be covered by the Bill. The Bill will mean that the complaints process in future is quicker; anyone who is unhappy with how their complaint has been handled will be able to approach the ombudsman—for example, if they believe that their case has taken too long to resolve. The ombudsman’s independent oversight will give the Armed Forces lessons in how to further improve the process.

A service complaint panel has reached a determination about the service complaint made by ex-Corporal Tom Neathway, the panel on behalf of the Defence Council has formally apologised to ex-Corporal Neathway and has made recommendations for the Army to consider. The Army has appointed a commanding officer unconnected with the events to consider all matters arising from the service complaint panel’s determination.

The Bill also provides that the ombudsman must produce an annual report. This will be able to look widely at the complaints system, the sort of cases it handles and what sort of failings and misconduct the system has identified. As I have said before, this is a wide and appropriate role for the ombudsman to have, using his or her knowledge and experience of the complaints system and any information that has come to light through that process, whether from the complainant, families, service welfare organisations, MPs or the services themselves. The ombudsman therefore has the ability to report on any underlying themes. The current commissioner has used her annual reports to comment on issues such as the effectiveness of the Army’s zero-tolerance policy on bullying.

The ombudsman can therefore report on a wide range of issues relating to the effectiveness, efficiency and fairness of the service complaints system, including on any systemic issues that have come to his or her attention. This can be done immediately through individual investigation reports, or by publishing information of general concern, or through the annual report.

The aim of this amendment, however, is to allow the ombudsman to carry out investigations into wider issues, such as a culture of bullying at a particular location, and to produce reports on those issues. Consequently, its purpose is to introduce a new role for the ombudsman that goes beyond that set out in the Bill.

There are three important reasons why we do not want the ombudsman to have such a power. First, carrying out such investigations would divert the ombudsman from their primary role of making the complaints system work better and, in particular, hold the chain of command to account in its handling of service complaints. Secondly, the ombudsman might not be the best person to carry out such an investigation. Such investigations might require the full-time dedication of a number of people with specific skills and expertise, such as investigators and lawyers. Finally, it is the chain of command that is responsible for the welfare of its people and for the environment in which they work. We would expect the ombudsman to bring any systemic failings to the attention of the individual service concerned, and to the Ministry of Defence, so that they can put things right. However, it is not for the ombudsman, in the manner of an inspectorate, then to go on to examine these issues.

I hope that I have made the Government’s position clear. We do not want the ombudsman to highlight any thematic issues they come across and to make these concerns quickly and publicly available. However, we do not want the ombudsman and supporting staff then to go off and investigate these matters. Giving him or her the power to do so would significantly change their role and distract them from the main task of making the service complaints system better.

As we have now reached the final stage of our consideration of this Bill, I thank all noble Lords for their work on it. I agree with my noble friend Lord Palmer and I also thank him for his support on this amendment. We have had some excellent debates on a number of issues, some of which we have looked at in considerable depth. I hope that all noble Lords feel that there has been adequate time for scrutiny. I am particularly grateful to the noble Lord, Lord Rosser, for the constructive way that he has put the Opposition’s case, and to my noble friends Lord Thomas and Lord Palmer and others for their expert contributions. I also thank my noble friend Lady Jolly for her assistance, and officials both in this House and in the Ministry of Defence for ensuring the smooth running of the Bill.

With that, I ask noble Lords to reject this amendment.

My Lords, I thank the Minister for his response. I express no surprise that the Government have not felt able to accept this amendment, since the Minister indicated to me in a recent letter that the Government would not be tabling any amendments on thematic investigations for Third Reading. As we come to the end of our consideration of the Bill, I thank the Minister and the noble Baroness, Lady Jolly, for their thoroughness and unfailing courtesy, at the Dispatch Box, in correspondence and outside the Chamber, in responding to issues that we have raised. I extend those thanks to the Bill team and to all noble Lords who have taken part.

I also thank the Minister for his kind words. I am grateful to him for having somewhat contradicted the noble Lord, Lord Palmer of Childs Hill, who clearly believes that the issue I am raising is of no significance. Indeed, I think he used the expression “clutching at straws”. The Minister clearly does not believe that the issue I am raising is clutching at straws. He has said specifically that the Government do not want the ombudsman to be able to carry out an investigation into, for example, bullying at a particular location. That is not a minor issue or clutching at straws; that would be a particularly useful and relevant role for the ombudsman to have. When the Minister talks about undermining the chain of command, it depends on whether the chain of command will regard the ombudsman as the enemy or as being of assistance to it in dealing with issues of military life and military personnel that arise. We are getting off on a very bad footing but I sense that the ombudsman will be regarded as the enemy, who should not be let out more often than is absolutely necessary.

In his response, the Minister reiterated the Government’s position: while they agree that the ombudsman should address wider issues, they do not want him to have any statutory powers to investigate those issues. The ombudsman can apparently report that there is a wider problem but he or she cannot fully investigate whether that is the case, or, if it is, the extent to which it is the case, and make recommendations. The ombudsman can do this if the Secretary of State requires him to do so but not of his own volition. We know that Secretaries of State do not ask—they have not asked the present commissioner—for such investigations to be carried out. Investigations into maladministration will not necessarily provide scope for raising matters of concern over thematic issues or abuses because such an investigation needs a specific complaint, or complaints, of maladministration. There does not have to be a procedural issue in how complaints are dealt with for there to be an issue of concern.

In conclusion, the main issue is that the Government intend that the ombudsman may only report, not investigate, concerns over systemic or thematic abuses or issues, and that it should then be up to the Defence Council or the Ministry of Defence whether any further action is taken to investigate those concerns. By definition, the ombudsman will not be able to substantiate such concerns or base any recommendations on the facts that emerge from the investigation. He or she will not have the power to investigate concerns beyond what arises from an individual complaint, not about the issue itself but about maladministration of the way a complaint has been dealt with. As the Joint Committee on Human Rights said, the appearance of the independence of the ombudsman is important to provide the necessary confidence. In opposing my amendment, the Government have not provided a sufficiently convincing explanation of the difficulties that would be caused by the ombudsman having the power to carry out investigations.

My Lords, I may be able to help the noble Lord. In winding up, I misread one word. I said that we do not want the ombudsman to highlight any thematic issues; I should have said that we do want the ombudsman to highlight the thematic issues. That was entirely my misreading.

Although that sounds like a significant change in the Government’s position, actually it is not. What the noble Lord has said is that the Government want the ombudsman to be able to highlight systemic issues—that is, to say, “I’ve been told that there is a problem”—but not to investigate the issue. I am grateful to the noble Lord for correcting what he said but it does not alter the position that the Government do not want the ombudsman to be able to investigate.

There is a difference between telling somebody that there is a problem and being able to investigate it. As I was saying when the Minister intervened, the Government have not provided a sufficiently convincing explanation of the difficulties that would be caused by the ombudsman having the power to carry out investigations into thematic issues of concern of his or her own volition, even though they do not dispute that it may be necessary to carry out such investigations—but only if the Secretary of State requires the ombudsman to do it. So it may be necessary if the Secretary of State wants it but not if the ombudsman thinks it should be done. That does not add up to a credible position on the Government’s behalf, and I wish to test the opinion of the House on my amendment.

A privilege amendment was made.


Moved by

My Lords, on Report, I moved an amendment about having a credit union for the Armed Forces. The noble Baroness, Lady Jolly, responding for the Government, was unable to accept my amendment but agreed that I could meet with the Minister responsible, Anna Soubry. That meeting took place at the MoD last week, and was very positive. Following the debate in the Chamber, a meeting also took place with forces charities which are supportive of a credit union for the Armed Forces. I understand that a discussion has taken place with the company which provides the payroll service for the MoD and it is hoped that either the costs will be considerably reduced or there will be no cost at all to the MoD.

What I understand to be happening next is that the MoD will identify a number of credit unions that are the right size to be able to deliver financial services to the Armed Forces community. We should be in a situation by the end of this year or early next year to offer the Armed Forces community credit union facilities that will provide loans, savings and other financial products that will be available through payroll deduction.

I thank the noble Baroness, Lady Jolly, for her kind assistance, Anna Soubry for working very hard on this, and the noble Lord, Lord Astor. I have been a supporter of the credit union movement my whole adult life and, as a Labour Co-op Member of your Lordships’ House, I am delighted that the campaign has proved successful and that members of the Armed Forces community will soon be able to benefit from this development, as will the Armed Forces charitable services. Could the Minister maybe say a few words to the House? I thank him very much for that.

Bill passed and sent to the Commons.

Criminal Justice and Courts Bill

Report (1st Day)

Clause 3: Schedule 15B offences

Amendment 1

Moved by

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.”

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.

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.

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.

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.

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.

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.

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

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

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.

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

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

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.”

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.

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.

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.

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.

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

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.

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

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

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

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

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.”;”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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—

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

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.

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.

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?

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.

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.

Clause 14: Minor amendments and transitional cases

Amendment 40

Moved by

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

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.””

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.

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.

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

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

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.

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.

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.

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.

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—

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.

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.

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.

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.

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.

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

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

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

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

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.””

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.

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.

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

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

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.”

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.

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.

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.

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

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

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

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.

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—

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?

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.

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.

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.

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.

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.

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.

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

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)”

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.

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.

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.

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.

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.