Legal Aid, Sentencing and Punishment of Offenders Bill

(Limited Text - Ministerial Extracts only)

Tuesday 20th March 2012 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I shall intervene briefly. I declare an interest in that a firm in which I was a partner had major arrangements with a number of trade unions.

I say to the noble Lord who has just spoken that the unions and the firms who do their work will be able to adjust their arrangements. For a start, by not paying the referral fee, the solicitors doing the work will be able to drop their charges to take account of that fact, and the trade unions will be able to adjust their arrangements with their members, although it will not be a major adjustment. The point that the noble Lord reasonably made is capable of adjustment in a way that will enable the abolition of referral fees—which, in general, are extremely deleterious to justice—to be effected.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, this proposal is not in any way union bashing and I am sorry that it has been caught up like that. I was pleased that when the noble Lord, Lord Beecham, opened the debate he joined with the Government in our general desire to ban referral fees. It is of course right that injured people should be able to pursue claims and under our reforms they will be able to do so. Costs will be more proportionate and the damages they receive will be increased.

However, it is wrong for third parties to be able to profit from referral fees for personal injury cases in this way. I found the intervention of the noble Baroness, Lady Deech, last Wednesday extremely powerful and I recommend noble Lords to reread it. The noble Lord, Lord Beecham, is right: it is not four-square with referral fees but it illustrates the danger of sweetheart relationships in this area. The Law Society was quite right—but rather belatedly so—to deal with a great injustice to miners who had already suffered much in their industry.

On the question of political funding, yes, I understand the difference between union general funds and the political fund and that it is the political fund that goes to the Labour Party. However, again, the noble Baroness, Lady Deech, explained that she was referring to the party itself acting as a referee. Even as I speak, I wonder whether this merry thought has occurred to any other political party. I know political parties look for ways to earn funds and, if this has been thought up by the Labour Party, it is, at the moment, within the law. However, we do not think it is right.

I also welcome the intervention of my noble friend Lord Phillips. I do not always welcome his interventions but this time he has put his finger on it: we are not preventing solicitors taking on a case at reduced rates or for free; nor are we preventing solicitors from making donations to charities or other not-for-profit organisations. Charities representing injured people will still be able to offer advice and recommend the best law firms. However, they should do that in the claimant’s best interest, not on the basis of what fee they can get for that claim. The amendment would not only allow an exception for charities and unions but for all not-for-profit organisations. I fully appreciate that trade-union, charity and political-party referral fees can be nice little earners, but that kind of relationship is not in the best interests of the consumer.

I say to the noble Lords, Lord Monks, Lord Brooke of Alverthorpe and Lord Martin, that I am well aware of the record of trade unions in legal advice and the help that they give to their members. I have no doubt of the accuracy of the figure of 50,000 a year given by the noble Lord, Lord Monks. However, I also take the point—which I did not know—that only two trade unions use referral fees. This suggests to me that this is not the universal attack on trade unions that anybody has suggested. We simply say that whether it be political parties, trade unions or charities, it is not healthy or in the consumer’s interest to have sweetheart deals between unions, charities or political parties and individual law firms.

The amendment goes further than earlier proposals. Some claims management companies are currently not-for-profit organisations and others could become not-for-profit bodies in order to get around the ban. In Committee, the noble Lord, Lord Bach, tabled an amendment that would have made an exception for charities only. This amendment now makes a wider exception which would exempt unions, political parties and not-for-profit claims management companies as well.

We believe that referral fee arrangements are wrong in principle. Under the cloak of support for charities, the amendment would allow payments for the referral of personal injury cases by a wide range of organisations. This amendment would make a mockery of the ban on referral fees, which the Opposition have claimed to support in principle—and I believe they do support it in principle. I really think—and the more I listen to this debate the more I think it—that for the Opposition to press this amendment is simply wrong-headed. I hope that the noble Lord will withdraw the amendment.

[Lord Beecham]

My Lords, let me make it clear that I do not for a moment charge the Minister—or indeed the Government—with conceiving of this as in any sense aimed at trade unions. It is a by-product of policy. Let me also remind your Lordships that referral fees are only banned—certainly at the moment, under the terms of this Bill—in respect of personal injury claims. For any other kind of arrangement, referral fees are apparently acceptable—not, however, in the context of personal injury claims.

That really illustrates whence this proposal comes from. It comes from the unacceptable activities of those who have perhaps been promoting spurious claims—and we will come at the next amendment to the kind of techniques that some of these firms and outfits adopt to encourage claims in a way that fosters this myth of the compensation culture. That is the genuine motivation of the Government; what they are doing to deal with it goes too far.

I do not recall having jousted in legal terms with the noble Baroness, Lady Deech, 50 years or so ago when we shared adjoining desks at the Honour School of Jurisprudence, but I will joust a little with her, if I may, this afternoon. She first of all asserts that it would be an incentive for firms not to do the job properly. I do not know what possible basis she can have for saying that. A solicitor’s job is to do his best for his client. In a sense, there are two clients when one is acting for somebody referred by an organisation. Far from it being the case that there is no incentive to do the job properly, there is a greater incentive to do the job properly when one has a connection with a potential source of work—whether there is a referral fee or not —because, of course, one does not just lose and upset one client: one potentially loses a whole stream of work. In fact, therefore, the converse of her proposition is actually true.

The second of the noble Baroness’s points which I seek to rebut is that this deprives people of choice. A union member or a member of a charitable or other organisation does not have to use the organisation that is recommended or go to one that pays a referral fee. They have the same choice as anyone else. But they may choose to rely on their own organisation, trade union or otherwise, having established from its experience that a particular firm or firms are capable of carrying out the work. The choice, however, remains with them. The noble Baroness has been on the website and discovered the Labour Party’s scheme. Let me tell her and the House how much that scheme has raised: nil, nothing, not a penny. It is about as vibrant as Monty Python’s parrot. It is redundant. It is a dead scheme. It has never been activated, so that issue need not distract your Lordships’ House.

Before I conclude, I should make one other point in relation to charitable organisations. The ones I have mentioned operate on a referral-fee basis. There are three of them and I think there may be others, although perhaps that is a little beside the point. I liken the process to another aspect which is certainly something that political parties and many charities operate, and that is an affinity card with a bank, where a percentage of one’s expenditure when using the card goes to the organisation. In precisely the same way that it could be alleged—I think wrongly—that as referral fees increase costs in the legal system, so by definition an affinity card must push up the costs in relation to financial services. It is an analogous situation.

I feel strongly about this—

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16:01

Division 1

Ayes: 173

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Labour: 152
Crossbench: 15
Independent: 2
Plaid Cymru: 1

Noes: 257

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Conservative: 132
Liberal Democrat: 64
Crossbench: 51
Ulster Unionist Party: 2
Democratic Unionist Party: 1
Bishops: 1

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[Lord Beecham]

My Lords, I entirely support the amendment. The noble Lord, Lord Clement-Jones, is right that this practice is a nuisance. I was half expecting a text message after I told the House about my fall the other day. I thought that eager readers of Hansard in these companies would have solicited my attention or that of the noble and learned Lord, Lord Wallace of Tankerness, but so far nothing has happened. However, like many of your Lordships, I receive periodic texts and e-mails from organisations saying that I may not have made a claim in respect of my recent accident or, latterly, about payment protection insurance problems, and the like. As the noble Lord, Lord Thomas, said, it is an insidious practice and certainly ought to be banned.

I hope that the Minister accepts the amendment and that, if he does not, the noble Lord, Lord Clement-Jones, tests the opinion of the House.

[Lord McNally]

My Lords, this amendment looks to deal with the serious problem of unsolicited marketing, including text messages or telephone calls about personal injury claims. I congratulate my noble friend on raising an issue which, as the noble Lord, Lord Beecham, indicated, annoys and irritates millions of our fellow citizens. I assure the House that the Government have given careful consideration to this issue since my noble friend raised it in Committee. Legislation, which is primarily enforced by the Information Commissioner’s Office, already exists to protect individuals in this area. Recent action by that office has resulted in the confiscation of more than 20,000 mobile phone SIM cards that were being used to send unsolicited text messages.

Following this issue being raised in Committee, my honourable friend Jonathan Djanogly, the Justice Minister, will meet the Information Commissioner to discuss further how the problem can be addressed. Additionally, the ICO, the Ministry of Justice Claims Management Regulation Unit and other regulators continue to work closely with the telecommunications industry on this problem. Across government, an industry working group has been set up and is due to publish a joint guidance note for consumers explaining the functions of the relevant regulators along with advice on how to make a complaint.

On the particular point about advertising in hospitals, the Government do not support the marketing of such services on NHS premises. There is already an absolute ban on unauthorised marketing by claims management companies. We believe that it is more appropriate that authorised marketing should be dealt with through guidance rather than through regulation. In support of this approach, the National Health Service chief executive has recently written to NHS managers to make clear the position on marketing in hospitals and primary health centres.

I am grateful to my noble friend for raising this issue. The Government take it very seriously and are taking positive action. We believe that the answer lies in greater enforcement and robust action, along the lines of regulations and guidance that already exist. We will continue to monitor the situation and take it seriously, and I hope that in the light of that response my noble friend will agree to withdraw this amendment.

[Lord Clement-Jones]

My Lords, I thank the Minister for that reply. It very much falls into two parts, as far as I can see, in terms of action by and with the Information Commissioner and action by the Secretary of State and Ministers relating to unauthorised and authorised marketing in NHS hospitals. The bit I find difficult is not that relating to the Information Commissioner; indeed, it is very welcome that those powers are being mobilised and that the Minister, Mr Djanogly, is having the necessary meetings with the Information Commissioner. The surprising part concerns the National Health Service. I think that the view around this House is that there should be no authorised marketing of this kind within NHS hospitals. What baffles me is why that kind of marketing is allowed to persist within NHS hospitals. I am not going to press the amendment today but I very much hope that we can progress further, certainly in pressing the Department of Health to be much more robust than appears to be the case about this kind of marketing.

Whatever the form of marketing which is an arrangement between a hospital and a firm of solicitors —perhaps advertising law firms within hospitals or allowing texting—it certainly falls morally within the terms of the kind of action that we are trying to prevent within this clause. It therefore really should be covered, and if there is that power within the department —or indeed by any future regulator under the health Bill that has now passed—I very much hope that it will be exercised and that my noble friend the Minister’s department will keep pressing the Department of Health. Perhaps we might even bring this back for an assurance on Third Reading, to understand exactly what is being authorised if there is such a thing as authorised marketing of this kind. In the mean time, I beg leave to withdraw the amendment.

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[Lord Bach]

My Lords, we congratulate the noble Lord, Lord Pannick, from these Benches. I thank him very much for his well deserved tribute to my noble and learned friend Lord Goldsmith. I have to say that I felt a slight tremor of envy when I saw this amendment on the Marshalled List. I have tried throughout the Bill to put forward an amendment that might have the name of the noble Lord, Lord McNally, attached to it, but have failed miserably. The noble Lord, Lord Pannick, makes one attempt and it succeeds.

[Lord McNally]

My Lords, I will explain. The original amendment by the noble Lord, Lord Pannick, did not cut the muster as legal statute. As the noble Lord knows, I have qualifications in this area, so I tweaked it a little, on the basis of my knowledge of part 1 of the relevant material on English legal institutions, to make it fit for purpose. I was glad to do so.

I am also glad to associate myself with the intervention of my noble friend Lord Phillips, who is on a roll today. I commend LawWorks and its encouragement of pro bono work on the part of solicitors, the Access to Justice Foundation and the work of the noble and learned Lord, Lord Goldsmith, in this area. We hope that it will increase the stream of funding available for pro bono work. I have great pleasure in saying that the Government accept this amendment.

[Lord Pannick]

I renew my thanks to the Minister. He is absolutely right; those advising him did indeed improve the drafting of the amendment and I am very grateful to them as well.

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[Lord McNally]

My Lords, the noble Baroness, Lady Corston, said that she had discovered over the years that she had become not only an adjective but a noun as well. I told her last week when we met that she was well on her way to becoming a national treasure—something I would not wish on anybody. Her report was certainly a landmark report. It is required reading for me and I listen carefully whenever she speaks and when other experts in the House speak on this subject. I also listen carefully to criticisms such as those recently made by Nick Hardwick and repeated today by the noble Baroness, Lady Stern.

I should like briefly to mention our response to those criticisms, and particularly to his criticism of the Keller unit. This is being reviewed and a number of recommendations have been suggested. The potential for the provision of updated facilities to supplement or replace the Keller unit is being reviewed by the National Offender Management Service. However, the majority of recommendations have been actioned, including the development of healthcare and support, including mental health, first aid, training in positive behaviour, support methods, the presence of a registered mental health nurse seven days a week, structured therapeutic programmes provided by mental health occupational therapists and a co-ordinated approach to the clinical review of patients. There is also the introduction of a programme of structured intervention on a daycare basis that is accessible to the residents of the Keller unit. Steps have been taken to ensure the timely sharing of records between mental health and primary care teams. The new governor of HM Prison Styal is currently reviewing the role of the Keller unit, alongside the development of other specialist accommodation in the prison to meet the needs of women with a range of complex problems. The review will continue, and the prison is currently bidding for funding to establish a therapeutic unit.

I emphasise from this Dispatch Box the importance I attach to a strategic and coherent policy addressing the problems of women at risk and the problems of women in prison and on release. The noble Baroness, Lady Gould, and the noble Lord, Lord Wigley, gave us the statistics that underline the importance and urgency of this matter. As the noble Baroness, Lady Corston, mentioned, I had an interesting and informative meeting with Peers and stakeholders last week on the occasion of the fifth anniversary of the Corston report. The noble Lord, Lord Judd, paid tribute to the long-term interest of the noble Baroness in these issues. My interest has grown with every month that I have been in office, every visit I make and every meeting I hold. As has been said, we have too many women in prison and we intervene too late.

However, I do not believe that a women’s justice policy unit bringing together officials from several government departments, as proposed in this amendment, is necessary. That approach was tried a few years ago, but I understand was discontinued after a year or so. I can reassure the House that there continues to be a dedicated resource to women offenders within the Ministry of Justice. However, rather than co-locating staff from other government departments into the Ministry of Justice, officials now work closely with a wide range of rehabilitation reform policy leads in those other departments who are best placed to address the needs of women offenders in their policy areas, including health, employment and homelessness. These close working relationships across departments help to ensure that the needs of women offenders are embedded in cross-government policy-making.

As I explained in Committee, this cross-government approach receives strong leadership from the Minister for Prisons and Probation, my honourable friend Crispin Blunt, who works closely with his ministerial colleagues, in particular the Minister for Women and Equalities and the Parliamentary Under-Secretary of State for Equalities. The amendment suggests that the policy unit would report and be answerable to an interministerial committee. I do not believe that we need any additional interministerial governance for the women’s agenda. The Inter-Ministerial Group on Equalities, on which Ministry of Justice Ministers sit, has responsibility for driving forward the Government’s equality strategy, including strategic oversight of issues affecting women. Departments also work together through the Cabinet Committee on Social Justice and the All-Party Parliamentary Group on Women in the Penal System.

Finally, let me assure noble Lords that officials are already delivering effectively the functions envisaged for the new policy unit. As I explained in Committee, we already have and are delivering a strategy for women offenders. This ensures that women will benefit in key areas such as mental health, drug recovery, tackling violence against women, troubled families and employment. It recognises the important role of women’s community services, as well as the good work by NOMS to implement many of the recommendations in the noble Baroness’s report. We also actively consider gender equality as required under the Equality Act 2010. We are committed to monitoring progress on achieving key outcomes for women offenders in all areas of our approach to rehabilitating offenders. For example, in setting out our plans radically to reform criminal justice through improved punishment, payback and progression of offenders, we have looked very carefully at how these reforms will impact on women, and have given a clear commitment that we will take into account the different profile of women offenders in achieving this, including the reasons underpinning their offending. I believe that there is effective provision to ensure that the Government are held to account for progress against this agenda.

The noble Lord, Lord Ramsbotham, gave us a long list of titles and initiatives, but he also pointed out that nothing has happened. What we need is what the noble Lord referred to: a drive to get it done. I believe that this is what the Government are doing—a drive to do practical things. In Committee, I undertook to consider what more we could do to communicate our priorities for women because, as I have emphasised, I believe that the priorities and policies are already in place. While I do not believe that we need a statutory requirement to report annually to Parliament on our work, I have agreed with my honourable friend Crispin Blunt that we will publish a short document setting out our strategic priorities for women. We will place this on the Ministry of Justice website for easy reference. It will be a live document that can be updated as necessary and will be available to promote questions and debate both in this House and the other place on the progress being made. We will continue to listen to noble Lords on this important issue. Noble Lords sometimes overemphasise the importance of writing things in the Bill. I believe the greater importance is, in the words of the noble Lord, Lord Dholakia, in achieving outcomes.

I have listened carefully to this debate. It has been an excellent debate, and I think it will read well outside. I honestly do not believe it is a matter on which the House should divide. I am not in a position to accept the amendment and, therefore, if the noble Baroness does press it, I shall ask my noble friends to vote against it. I would rather urge her to withdraw it in the spirit in which this debate has taken place.

I have said that we will publish a strategic document. It will be a short document setting out our strategic priorities for women. It will be a live document and will be updated. I believe that goes some way towards what the House has been asking for. I believe also that what we are doing in practice meets the demands that have been before the House today. In that spirit, I urge the noble Baroness to withdraw her amendment.

[Baroness Corston]

My Lords, I am grateful to noble Lords on all sides of the House who have spoken in support of this amendment. I am grateful to them for highlighting the profile of the women about whom we talk. They are poor, they are mothers, they are mentally ill, they are alcoholics, they have very little education, and they have no life skills. They are in prison for an average of 28 days, at the end of which they have lost their homes and children and generally do not get either back. It is a huge social issue, and this is the place where it can be resolved.

I have to say that the Minister is badly advised. One of the reasons progress was made from 2007 was because a women’s criminal justice policy unit was established, and because there was an interministerial group run by Maria Eagle, who harried officials, organisations and NOMS to make sure that this happened. On her watch, more than 30 so-called Corston women’s centres were set up across the country to reduce women’s offending, with spectacularly wonderful results.

To say that there was not an interministerial group is not right. Nor is it right to say that there was not a unit, in that I know that the people working in that unit from different departments made things happen. Indeed, collocation of staff from different agencies in youth offending teams and the Youth Justice Board was the key to getting agencies to work together. If you do not have that nationally, it will not be reproduced regionally and locally.

As the noble Baroness, Lady Stern, who I think of as a friend, said, you can make progress but you can quickly revert. All I say to the Government is that quick reversion is what will happen. I am sorry to sound so passionate, but it is because I feel passionate. I wish to test the opinion of the House.

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17:28

Division 2

Ayes: 217

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Labour: 159
Crossbench: 49
Independent: 2
Bishops: 1
Plaid Cymru: 1

Noes: 217

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Conservative: 141
Liberal Democrat: 59
Crossbench: 13
Democratic Unionist Party: 1
Ulster Unionist Party: 1

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[Lord Beecham]

My Lords, as a signatory to the amendment, I am pleased to say that the Opposition is more than happy to support it and should the noble Baroness not receive a satisfactory answer from the Minister—we live in hope—and wish to press the amendment, we will certainly endorse it. I was particularly impressed by the remarks of my noble friend Lord Ponsonby, who speaks from direct and daily experience of these matters in a busy court in the capital. We are already 25 minutes into this debate and there is much more to come, so I am content to rest the Opposition’s case at this point.

[Baroness Northover]

My Lords, this amendment returns to issues raised by my noble friend Lady Linklater in Committee. I very much welcome the contribution that she has made on this issue during the passage of the Bill. My noble friend has considerable experience, to which other noble Lords have referred, in bringing magistrates and probation together and building trust in alternatives to custodial sentences. She is very much to be applauded for that. Like her, I pay tribute to the work that magistrates and probation trusts do.

We agree with the noble Baroness that it is important that probation trusts provide information to sentencers about the services they provide in delivering community sentences. We encourage that sharing of information. We agree that such liaison is beneficial both to magistrates and probation. We also agree that it is important that magistrates see for themselves the work of probation trusts. We agree with the intention behind the amendment, but we would point out that the current provisions in legislation already allow for this kind of liaison between probation and magistrates to take place. The noble Baroness is seeking to get two sets of people to talk to each other and that can already happen. There is no statutory barrier to it, but I hear what she says about trying to ensure that this happens, and we are certainly in favour of promoting best practice. We will look to see if there is more that we can do to ensure that best practice is brought to the attention of probation trusts. We are also ready to work with the Magistrates’ Association and others to ensure that we have practical arrangements in hand to encourage magistrates to take part in meetings so that information can be exchanged. We can, however, do this without changing primary legislation. I also note that the amendment does not ensure that magistrates attend these meetings—which would, of course, not be appropriate—it instead places the duty on probation trusts to provide information. As my noble friend Lord McNally said in Committee, we are not aware of a problem in the provision of information but would welcome further information on it if one exists.

I understand what the amendment is trying to achieve. It provides two illustrative examples of what regulations might cover. They include guidelines for liaison and a scheme for magistrates’ expenses. I would like to point out to my noble friend that both of these are, in fact, already covered by existing arrangements. Guidelines for liaison meetings are set out in a protocol issued not by the Government, but by the senior presiding judge. We think it is right that the protocol should set out the process so that there is no suggestion that magistrates should be unduly influenced in sentencing by consideration of a local probation trust’s priorities, rather than what they see as the appropriate sentence in an individual case. That is why the senior presiding judge issues guidance, not the Government. We agree that there should be guidance on these meetings, but we think that the current system is more appropriate and that the guidance—especially since it applies to the judiciary—should come from the senior judiciary, not the Government.

The second example which the noble Baroness gives relates to the payment of expenses. It is true that Her Majesty’s Courts and Tribunals Service does not routinely pay expenses for meetings between magistrates and probation. That does not, however, mean that magistrates can not claim expenses. They can, in fact, claim expenses from the probation trusts in attending these meetings. This is an area where the Government might assist by doing more to publicise the process if magistrates are unaware of it. We will certainly consider, as a practical approach, encouraging better liaison by publicising this.

The noble Lord, Lord Ponsonby, referred to a statutory committee. The amendment would not create a statutory committee; it would merely provide a regulation-making power to promote such arrangements if that was what was decided. On the questions of the noble Lord, Lord Ramsbotham, about ordering the probation service out, we are not aware of the detail of that situation. We would welcome further details, and I will then write to the noble Lord with our reaction to what sounds like a very concerning incident.

I hope that the noble Baroness is reassured that we are committed to best practice regarding liaison and that we will look at practical solutions. We welcome her input on guidance and expenses under the current legislation. I hope that, on that basis, she will feel able to withdraw the amendment.

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[Baroness Linklater of Butterstone]

I am sorry, my Lords—you must be getting very bored with the sound of my voice. I move on briefly to the second, connected clause, which is about the presumption against short sentences.

The presumption against short sentences carries with it the expectation that low-level offending will receive an effective community sentence which is designed to address the causes of offending behaviour and to emphasise that it is in this category that reoffending is the highest of all. This is the greatest area of sentencing failure in this country today, contrary to the central goal of government policy which is to reduce reoffending. There may, of course, be times when a short prison sentence has a place. An example might be when an offender is constantly breaching a non-custodial order and the magistrates feel that they are left with no option. Or it may give the victim of an offender a brief break from the hell of a violent partner and the chance to make changes to her life in the breathing space. These are legitimate but there should be a presumption against these short sentences which is not the case at the moment, as witnessed by the 38,000 sentences of three months or less in the year up to March 2011. That is an astonishing figure; these cases should be the exception and not the rule.

I suggest that we should follow the example of Scotland, where Section 17 in Part 1 of the Criminal Justice and Licensing (Scotland) Act 2010 is entitled, “Presumption against short periods of imprisonment”. Subsection (3A) states that a court,

“must not pass a sentence of imprisonment for a term of 3 months or less on a person unless the court considers that no other method of dealing with the person is appropriate”.

This is a proper model to follow.

Many of these sentences are for women, as noble Lords mentioned in our debate on the previous amendment. They are just enough to do disproportionate damage to children, families, jobs and housing, and to the ability of chaotic, vulnerable people who commit minor offences to keep their lives together at all.

Imprisonment results in even greater chaos to the community, which then has to manage that chaos and to deal with the inevitable reoffending, whereas preventive, effective work through community disposals is far more likely to effect change and make people face up to the causes and effects on others of their law-breaking behaviour. Short prison sentences do absolutely nothing to address offending behaviour. No provision exists during or after imprisonment—hence the reoffending results, at great and disproportionate cost to the community.

It is also worth re-emphasising that where communities want and need to demonstrate toughness in punishment, community sentences are the tough option—and are seen as such by offenders. It is much tougher to be made to face up to what you have done, and why, than to sleep away your sentence in a prison cell; and to learn about the consequences of your behaviour and be made to put something back into the community, for example by doing unpaid work.

An inquiry chaired by Peter Oborne and commissioned by an organisation called Make Justice Work, which is doing a lot of effective work in this field, highlighted how effective community sentences were seen to be by offenders, as well as how much more successful they were at tackling reoffending. This ties in with my earlier remarks about magistrates knowing what community sentences are like. If properly informed, they will be at the front line of awareness of the quality of the programmes, and of what works and is being well done, which will ensure that standards are high. I greatly welcome the Government’s plans to start a consultation on the effectiveness of community sentences, and I look for reassurance from the Minister that a presumption against short sentences will form part of the framework of their thinking.

The second reason that I return to this subject is the need for sentences to come with an explanation in court of the exact reasons for a disposal—and in particular, where the threshold for custody comes in a case, and precisely why and how the threshold has been passed so that a community penalty has become inappropriate. Perhaps the Minister will confirm, following a letter of 15 March from the noble Lord, Lord McNally, whether under new Section 174, to be imported under Clause 61 of the Bill, the sentencing judge or magistrate must explain to a person sentenced to less than six months in prison that,

“no other method of dealing with him is appropriate, and give reasons, including how the custody threshold has been reached, for that conclusion, whether to him if he is present or under rules made in accordance with government amendment 152ZA”.

I am quoting from the letter. If this is the case, that amendment will be welcome, since previous legislation did not require the degree of clarity and explanation that I sought. I look forward to the Minister’s reply and beg to move.

[Baroness Northover]

My Lords, Amendment 151B, moved by my noble friend Lady Linklater, relates to the imposition of short custodial sentences. It would place a duty on a court to consider all alternatives before imposing a short custodial term. The amendment would also require the court, when imposing a short custodial sentence, to explain why alternative sentences were not considered appropriate.

As my noble friend Lord McNally said when the amendment was debated in Committee, we completely understand the argument of the noble Baroness, Lady Linklater. We agree that short custodial sentences can be less effective than community sentences in tackling reoffending. The Government looked closely at community sentences and intend to consult very soon on ways to build greater confidence in their use. Our payment by results pilots are also looking to support offenders who are released from short custodial sentences.

As the Minister also said, a duty already exists in current law. I urge my noble friend to look at Section 152 of the Criminal Justice Act 2003, which was passed by the previous Government and places restrictions on courts imposing discretionary custodial sentences. It states:

“The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence”.

That provision applies to all courts that are considering a custodial sentence of any length—not just a sentence of less than six months, to which the amendment is limited. The issue of short custodial sentences has been discussed in Scotland. My noble friend made reference to Scottish legislation. The new Scottish provisions are less onerous on judges than the existing law in England and Wales that I have just explained.

The current requirement on courts considering a custodial sentence is more wide-ranging and onerous than that contained in the amendment. I understand the intention behind it, but I hope that I can reassure my noble friend on this point. I hope that she will feed into the consultation on how to make sure that what is already in law is used as widely as possible. The law is as she wishes it; we need to ensure that it is fully understood and delivered. On this basis, I hope that she will withdraw her amendment.

[Lord Avebury]

My Lords, what alternatives to imprisonment are being considered to punish the persistent non-payment of fines, which is a very common reason why people are sent to prison for short periods? Is there no other way of recovering the amount of the fine that could be considered by the courts, and is the matter being looked at by the Government?

[Baroness Northover]

I thank my noble friend for those points, and will write to him with details on them. He may wish to feed in to the consultation on the matter.

[Baroness Linklater of Butterstone]

I thank my noble friend for answering my short remarks. I will go away to think a little more. In the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Baroness Northover]

152ZA: Clause 61, page 44, leave out lines 20 to 24 and insert—
“( ) Criminal Procedure Rules may—
(a) prescribe cases in which either duty does not apply, and(b) make provision about how an explanation under subsection (3) is to be given.”

[Baroness Northover]

My Lords, I turn to a group of government amendments that concern three areas. I will deal first with the substantive amendments. The first concerns the duties on courts to explain a sentence. The second deals with powers to withdraw distress warrants. I will then deal with the grouped technical amendments that relate to the powers of magistrates to impose fines.

First, government amendment 152ZA relates to the revised provisions in Clause 61, which deal with the duties on courts to give reasons for, and explain the effect of, a sentence. These duties already exist under Section 174 of the Criminal Justice Act 2003 but Clause 61 provides for a revised and simplified version of the requirements.

We had an excellent debate on this in Committee. My noble friend Lord McNally was very grateful for the opportunity to discuss the concerns that several Peers had in relation to this duty and the needs of offenders who have learning difficulties or other problems understanding the sentence imposed on them. I pay particular tribute to the noble Lords, Lord Rix, Lord Ramsbotham and Lord Wigley, and the noble Baronesses, Lady Quin and Lady Gould, who have provided enormous insight into the problems that these offenders may face.

As my noble friend said in Committee, the Government were concerned to ensure that we got the balance right between removing unduly prescriptive provisions on sentencers while retaining the important duties to explain a sentence in court. The Government also wanted to ensure that the law remained practical, taking account of the million-plus sentencing decisions made by the courts each year.

The Government have looked again at these provisions, in light of the helpful discussions that we had in Committee. We believe that the basic statutory duties to give reasons for a sentence and explain the effect of a sentence, in open court and in ordinary language, remain appropriate for the vast majority of cases, but we also accept the point made by noble Lords that further guidance on this may be required.

With that in mind, we have looked at subsection (4) of the revised Section 174, which gives a power to the Lord Chancellor to prescribe cases where the duty to explain can be less onerous or not required at all. This power has existed since the 2003 Act came into force but has never been exercised by the Lord Chancellor. On reflection, we think that such a power would be better exercised by the Criminal Procedure Rule Committee, an independent body that provides rules that govern the way the criminal courts operate. The Criminal Procedure Rules already touch on the sentencing process so it seems more appropriate that the committee should have a specific power in this regard.

The first part of this amendment transfers the Lord Chancellor’s order-making power to a rules-making power for the Criminal Procedure Rule Committee. Secondly, the amendment clarifies the scope of the power in relation to the duties on sentencers. The amendment retains the power for the rules to prescribe when the duties to give reasons for the sentence or explain the sentence to the offender do not apply; for example, where the sentence is obvious because there is a fixed penalty or where the case is entirely dealt with on the papers without the offender being present, as happens with many low-level road traffic offences.

I draw particular attention to the fact that the amendment also allows the rules to make provision about how an explanation of the effect of a sentence is to be given to the offender. This allows the rules to cover, if required, any particular circumstances the courts should consider when meeting the statutory duty to explain the effect of a sentence to an offender.

I have no doubt that the committee, in considering this new power, will take account of the debate that your Lordships had in Committee and the helpful representations that have been made from organisations such as Mencap and the Prison Reform Trust. I will ensure that these are flagged to the committee. We believe that the consideration of the detail of requirements is better dealt with via rules than primary legislation. One of the Criminal Procedure Rules already requires the court to,

“explain the sentence, the reasons for it, and its effect, in terms the defendant can understand (with help, if necessary)”.

I thank noble Lords for sharing the benefit of their wisdom and hope that this amendment achieves our goal of allowing for practical measures to be taken to ensure that the duties to explain a sentence are met in every case.

Government Amendment 152BYH relates to a very specific area of the law that deals with distress warrants. Distress warrants are issued following the non-payment of a fine, to recover the value of the fine imposed by the courts. They can be issued by a court or by a fines officer. In Committee, the noble Baroness, Lady Lister, tabled an amendment that sought, among other things, to clarify the law on distress warrants, and in particular whether it was possible to withdraw a distress warrant once it had been issued. My noble friend Lord Thomas of Gresford also highlighted the problem of the inability to withdraw distress warrants.

I indicated in response to noble Lords that the Government were willing to look at the issue and, if a change in the law was necessary, to return to it on Report. That is what we have done. I very much welcomed the opportunity we had to discuss this issue with the noble Baroness, Lady Lister, and my noble friend Lord Thomas of Gresford, as well as drawing on the expertise of the Z2K Trust and the CAB.

We accept that the current law is flawed. This amendment makes a number of changes, mainly to Schedule 5 to the Courts Act 2003. The new clause introduced by the amendment does four things. First, it provides magistrates’ court fines officers with the power to withdraw distress warrants they have issued, in the circumstances specified in new paragraph (40A), which is introduced by subsection (8) of the new clause. This means that a fines officer can withdraw the warrant if there is any part of the sum left to pay and if the fines officer is satisfied that the warrant was issued by mistake. This can include a mistake made as a result of non-disclosure or a misrepresentation of a material fact in the case.

Secondly, the amendment makes it clear in new paragraph (40B) that a magistrates’ court has a similar power to discharge a distress warrant issued by a fines officer as it does to discharge such a warrant issued by the court itself. Thirdly, the amendment enables fines officers to take further steps to enforce a penalty where a distress warrant has been withdrawn, but this time taking into account information that was not available when the distress warrant was issued; this includes the power to issue a further distress warrant. Finally, the amendment enables magistrates’ courts to exercise any of their powers in respect of a fines defaulter where a distress warrant has been withdrawn, including issuing a further distress warrant.

Noble Lords will have noticed that while I have explained the amendment in terms of “distress warrants”, the amendment itself refers to “warrants of control”. That reflects the new terminology that will apply when the relevant provisions of the Tribunals, Courts and Enforcement Act 2007, which are presently the subject of consultation, are commenced. However, transitional provision will be made under the powers in Part 4 of this Bill to the effect that, until those 2007 Act provisions come into force, these provisions are to have effect as if the references to warrants of control were to warrants of distress.

These changes put the question of whether a distress warrant can be withdrawn beyond doubt and provide clear but practical powers for the courts and fines officers to deal with mistakes in the issuing of warrants. I am extremely grateful to the noble Baroness, Lady Lister, and my noble friend Lord Thomas of Gresford, and to the tireless work of Reverend Paul Nicolson of the Z2K Trust, for identifying these problems and encouraging us to address them.

Finally, government Amendments 152BA to 152BYG deal with the changes to magistrates’ fines powers in Clauses 80 to 82. These amendments are largely technical and ensure that Clauses 80 to 82 operate as intended. The policy intention here is unchanged: the clauses remove the upper limit on the level of fines available in the magistrates’ courts on summary conviction. They also allow for the uprating of other fines, in particular by providing a power to increase the maximum fine amounts for levels 1 to 4 on the standard scale of fines for summary offences.

I draw your Lordships’ attention to the set of amendments that applies the provisions to fines imposed for common law offences which can be dealt with by magistrates. These offences—“causing a public nuisance” and “outraging public decency”—were not caught by the previous version of the clauses. It is important that magistrates should have the freedom to impose larger fines for these offences in the same way as they will be able to do when sentencing offenders committing statutory offences.

Overall, these amendments now deliver more effectively the Government’s objectives. I beg to move.

[Baroness Lister of Burtersett]

My Lords, as the Minister has explained, Amendment 152BYH is in response to an amendment I tabled in Committee with the support of the noble Lord, Lord Thomas of Gresford. The purpose was to remove legal confusion about the power of bailiffs to return a fine to magistrates for consideration. That confusion has resulted in hardship for many vulnerable people.

I am grateful to the Minister and to the noble Lord, Lord McNally, for meeting me and the noble Lord, Lord Thomas, as well as representatives of Zacchaeus 2000 and Citizens Advice to discuss this and related matters. I am even more grateful that the Government agree that the current law is flawed and that this Bill provides the ideal vehicle for removing the confusion. I assume therefore that they do not expect that there will be a further suitable Bill coming along in the foreseeable future and thus they brought forward their own amendment.

I had hoped that I would be able to sit down at this point and that all would be sweetness and light, but as the noble Baroness knows I am worried that the amendment refers simply to the power to withdraw the warrant where there has been a mistake, albeit one made in consequence of the non-disclosure or misrepresentation of a material fact. Rectifying mistakes will not prevent all of the kinds of problems that Zacchaeus 2000 and Citizens Advice have identified. I am particularly concerned about cases where there has been a change of circumstances since the fine was set. For instance, if the debtor’s or defaulter’s material circumstances have changed because of illness, unemployment or relationship breakdown, that could have just the same effect on the ability to pay the fine as if there had been a mistake at the time of the original determination.

I have been in touch by e-mail with the Ministry of Justice about this. Its response was that while the amendment does not cover a simple change of circumstances, it is clear that a debtor can argue that the change of circumstances, if it had been known to the court, would have affected the decision to issue the warrant, so the decision was based on a mistake as to the debtor’s circumstances and that, in other words, the provision in the amendment goes further than the simple slip rule would do.

Will the Minister clarify this statement for your Lordships’ House? I do not really understand what it means. Does it mean that if a debtor’s circumstances change for the worse after the fine has been set and the bailiff is made aware of it, the bailiff can withdraw the warrant and return the fine to the magistrates’ courts on the grounds that the fine would not have been set on that basis had those circumstances pertained when it was set? If it means that, I urge the Minister to withdraw the amendment and make that clear at Third Reading. Otherwise I fear that we face a new source of legal confusion. If it does not mean that, I fear that the amendment will not go nearly far enough to resolve the kind of problems that Z2K and Citizens Advice have brought to our attention. Will the Minister withdraw the amendment and think again before Third Reading? Can the Minister confirm that a mistake will cover cases where the defaulter was not in court when the fine was imposed so that the mistake was made because the full circumstances were not known?

In Committee, the Minister prayed in aid the revision of the National Standards for Enforcement Agents, and in particular the standards they set for dealing with vulnerable and socially excluded people. The revised standards for such situations, now published on the MoJ website, are virtually identical to those previously in operation. It is clear from the experience of Z2K and Citizens Advice that they have not provided an adequate safeguard. That is why we had hoped that the amendment would ensure that bailiffs have discretion within the application of the Wednesbury principles—in other words, a test of reasonableness—to return a fine to the magistrates’ court when they discover that the debtor is in a vulnerable situation as set out in the National Standards for Enforcement Agents.

I am disappointed but realise that the Minister signalled this in Committee. Can I ask that the MoJ monitors this? If it is clear that the National Standards for Enforcement Agents are not on their own providing an adequate safeguard, will the Government consider returning to this issue at the next legislative opportunity?

In conclusion, I thank the Government for having moved on this issue. However, I am seeking assurances about the situation with regard to a change of circumstances, to be made clear in an amendment at Third Reading, if necessary, and about monitoring the effectiveness of the National Standards for Enforcement Agents, which state that,

“the agent has a duty to contact the creditor and report the circumstances in situations where there is evidence of a potential cause for concern”,

to ensure that that happens. Otherwise I fear that vulnerable people will continue to suffer and that legal confusion will continue to reign.

--- Later in debate ---

[Lord Ramsbotham]

My Lords, I speak in support of government Amendment 152ZA and also speak on behalf of my noble friend Lord Rix who unfortunately is unable to be present because of his wife’s ill health. I thank the Minister for the extremely productive meeting that we had, which has been mentioned. The points that my noble friend has asked me to raise arise out of the amendment which came after that discussion in support of what was said.

The context of this is the duty of the court to explain sentences in ordinary language, which we raised in Committee. The Minister admitted that the phrase would ensure only that most people could understand an explanation. While we welcome the amendment and believe that it has the ability to extend comprehension of the effect of a sentence on all parties concerned, which is an important development, we are still not certain that it covers the point about ordinary language. On that, we would like some clarification. We believe that the Criminal Procedure Rule Committee could offer a similar safeguard, but we are not sure about where that safeguard extends and how wide it is. Will the Minister clarify how confident she is that the committee will make rules regarding the need to go beyond ordinary language in certain circumstances? Will it actually make these rules? To what extent are the rules made by that committee binding on the court? The concern is that if the rules are merely guidance, they might not be put into practice, despite the best intentions of the Government and the committee.

Will the Minister tell us about the time scales? When will the committee be empowered to make such rules and when might they be enforced? Are we looking at something imminent? Will it depend on when the Bill is passed? Finally, what opportunities will there be for Members of both Houses to scrutinise the implementation of these measures in the future? If they are rules of the committee rather than something in the Bill, it is more difficult for us to monitor them. They have an enormous effect on the people whom we mentioned in Committee and their ability to understand the process of law.

[Baroness Northover]

My Lords, this has been another useful debate. I welcome the support of the noble Lord, Lord Ramsbotham, for the Government’s changes to the duty to explain. I encourage him to feed in his concerns to the committee. I have no doubt whatever that noble Lords will scrutinise how the duty is being implemented. The fact that this may not be part of legislation will not stop people reporting, debating and asking whether this is working as it should. The Government clearly cannot dictate to the committee what it should make its rules on and what it should say, but I have no doubt that when and if noble Lords find that this is not being implemented as they feel it should be, that will have its effect.

On distress warrants, I am very grateful to the noble Baroness, Lady Lister, for her guarded welcome of the Government’s amendment. She questioned whether the amendment goes far enough and was kind enough to send an e-mail with a number of questions. She has referred to our response, which gives me an opportunity to expand on or clarify a number of those points. She was concerned, among other things, about whether it allowed for the withdrawal of a distress warrant where there had been a change in the offender’s circumstances or where the offender was deemed to be vulnerable. I will do my best to reassure her on a few points.

It is clear that the government amendment allows for the withdrawal of a warrant where there is a mistake in the decision to issue the warrant in the first place. The amendment covers the case where an offender is not in court when the warrant is issued, which results in the court not having the full information before it. This, in effect, amounts to a mistake. I hope that that also helps to reassure my noble friend Lord Thomas. If there has been a change of circumstances that, had it been known to the court, would have had an impact on the decision to issue a warrant, it is open to the debtor to argue that the warrant had been issued by mistake.

The noble Baroness also raised the question of bailiffs dealing with debtors who find themselves in hardship or appear to be vulnerable. It is important that we strike the right balance between protecting the vulnerable—she is right about that—and ensuring that fines, where appropriate, are paid. Noble Lords will have seen recent criticisms of fine payment rates. The fine is by far the most used sentence of the criminal courts.

In practice, however, when bailiffs come across hardship as defined in the guidance they should not execute the warrant and return it to the court. In response to the noble Baroness, Lady Lister, I must say that we would welcome any further information on this matter and on the effectiveness, which she has queried, of the guidance. It is very important that that is monitored. The Government do not think that it would be appropriate for a bailiff simply to withdraw a warrant in regard to a fine issued by a court. This could undermine the decision made by the court, which is why such a power is not included in the amendment, although I realise that that will disappoint the noble Baroness. If, however, the fine was imposed because the full facts were not made clear to the court, or they had changed, the provision in the Bill could apply.

In the case of changed circumstances since the fine was imposed, the debtor can contact the court at any time to speak to a fines officer to have the matter reviewed. The Government would encourage any debtor to contact the fines officer or court about a change of circumstance, which is clearly a better approach than waiting until a bailiff seeks to execute a warrant, but it is important that we separate the two parts in that respect.

As I said in Committee, the Government think it is important that bailiffs are dealt with via effective guidance, national standards and contractual obligations. As the noble Baroness knows, the Government are consulting on the operation of bailiffs, and we will carefully consider responses to that consultation. I hope that the noble Baroness and the organisations with which she is associated will feed into that consultation.

I hope that the noble Baroness can be reassured that the government amendment addresses the key legal issue with distress warrants and places the decision on them properly with the courts. How bailiffs operate is a matter for consultation in order to make sure that they operate properly and as we would wish. I hope therefore that the noble Baroness is reassured and content with what the Government have brought forward.

[Baroness Lister of Burtersett]

My Lords, I got the impression that the Minister was saying that outside organisations should do the monitoring. I would argue that the Government have a responsibility to monitor this. I realise that some of this will be covered by the current consultation, but if there is to be a reliance on the national standards and the requirements and standards are not written in the Bill, it is incumbent on the Government to monitor and to make sure, as she said, that these national standards are effective.

[Baroness Northover]

I understand the noble Baroness’s point. I was trying to indicate that a number of organisations are closely involved in such cases. Their information is extremely useful to the Government because they are often closer. However, the Government have picked up on the concerns, which has led them to decide that they need a consultation on the operation of the bailiffs system. I hope that she will be reassured by that government involvement in trying to take that matter forward.

Amendment 152ZA agreed.

--- Later in debate ---

Moved by

[Lord McNally]

152ZB: Schedule 9, page 199, line 19, leave out paragraph 20

[Lord McNally]

My Lords, this group of government amendments contains a number of minor and technical amendments to suspended sentence orders, detention and training orders, youth remand, and the release and recall provision. This group also contains a few substantive amendments to youth remand. Last week, I wrote to all Peers about these amendments, and a copy of the letter has been placed in the House Library. The youth remand-related substantive amendments in this group mean that any imprisonable offences committed while a young person was remanded in prison will be taken into account in order to determine whether a young person has a history of relevant offending.

Amendments 152ZB and 152BZA remove two provisions that are no longer necessary. Clause 75(10) and paragraph 20 of Schedule 9 contain amendments to the Armed Forces Act 2011. The effect is to modify amendments that Schedule 3 to that Act makes to the Armed Forces Act 2006. This was to ensure that those amendments would work if this Bill came into force before the 2011 Act. In fact, the amendments in the 2011 Act will come into force on 2 April 2012, which makes Clause 75(10) and paragraph 20 of Schedule 9 redundant.

Amendments 152YH to 152YQ are technical amendments that will ensure that Armed Forces legislation properly reflects the changes that the Bill makes to the release provisions in the Criminal Justice Act 2003. The Bill makes changes to Section 240 of the 2003 Act on how relevant periods of remand time are credited towards a prisoner’s sentence, and in Schedule 15 makes certain transitional arrangements. These amendments ensure that these changes are also reflected in the equivalent Armed Forces legislation.

Substantive Amendments 152H, 152K, 152P, 152T, 152U, 152W, 152X, 152YD and 152YF in combination provide that where a young person who is being dealt with under the remand provisions of the Bill has previously committed imprisonable offences while remanded in prison under the current law, such offences can be taken into account when determining whether they reveal a relevant history of offending such that the court may impose electronic monitoring or remand to youth detention accommodation.

Currently, 17 year-olds are treated as adults for remand purposes and can be remanded only to prison. In addition, 15 and 16 year-old boys not deemed vulnerable and made subject to secure remand must also be remanded to prison. Offences committed in prison are not taken into account for the purpose of establishing a history under the equivalent tests in the current legislation, but the restructuring of the remand framework is based on the principle that all under-18s should be remanded according to the same test. Under the new remand framework, remands to prison for under-18s will cease.

These amendments are necessary to ensure that courts remanding offenders under the new framework will take into account any offences committed while an under-18 was previously remanded to prison under the old remand framework. They will ensure that all under-18s subject to the new remand framework or who may be considered for an electronic monitoring requirement on bail are treated equally.

I said before that these are mainly technical amendments, that I wrote to all Peers about them last week, and that a copy of the letter has been placed in the House Library. I beg to move.

Amendment 152ZB agreed.

--- Later in debate ---

Moved by

[Baroness Northover]

152ZC: Clause 71, page 53, line 12, at end insert—
“(3) In section 223(3) of that Act (power to amend specified periods of time), omit paragraph (c).”

[Baroness Northover]

My Lords, this is a very important social issue. I do not think that anyone in the House disputes the fact that alcohol-related crime is a scourge blighting too many of our city and town centres and one we must address. I pay tribute to many noble Lords, especially the noble Baronesses, Lady Finlay and Lady Jenkin, and the noble Lord, Lord Avebury, for ensuring that we have reached this point. Through their amendments in Committee for an alcohol-monitoring requirement, this issue was flagged up in the way that it was last year in the Police Reform and Social Responsibility Bill.

In that regard, I also thank the noble Baroness, Lady Browning, who brought her knowledge, experience and wisdom to this area, including when dealing with the previous incarnation of this issue during the debates on the Police Reform and Social Responsibility Bill. The noble Baroness, Lady Newlove, has given an insight into the terrible harm that alcohol-fuelled violence can cause to victims and their families. I applaud the work that she has undertaken to help the Government establish a more effective approach to building active and safer communities, and in particular the work that she is leading to develop community-led, partnership-based approaches to tackling alcohol-fuelled crime and anti-social behaviour.

As noble Lords have demonstrated through their persuasive and informed words, it is vital that we look at new innovative ways of tackling the causes of alcohol-fuelled crime. That is why the Government have committed, as I set out in Committee, to undertake pilots to trial sobriety requirements as part of conditional cautions and community orders. Since then, we have considered the noble Baroness’s amendments. I was also fortunate to listen to the presentation from the United States based around experience in both South Dakota and Hawaii.

We have attempted to capture the essential elements of the amendments of the noble Baroness, Lady Finlay, in order to provide a practical power for the court to impose sober behaviour on offenders who commit alcohol-related crime. Through these means we will send a clear message that if you abuse your right to drink and damage those around you, that right can be taken away from you. That is why the Government are bringing forward their own amendment which provides courts with a new power to impose an alcohol abstinence and monitoring requirement as part of a community order or suspended sentence order on an offender who has committed an alcohol-related offence.

The amendment forms an important part of our wider response to these problems, introducing a new and innovative way of tackling the causes of alcohol-fuelled crime through enforced sobriety schemes. I pay tribute at this stage to the work of the London mayor, Boris Johnson, and the deputy mayor, Kit Malthouse, and to their commitment in this area. Their work on the alcohol abstinence and monitoring requirements is a testament to their determination to make a stand against alcohol-fuelled crime in the capital and we will continue to work with them in the development of this initiative.

The requirement as part of community orders and suspended sentence orders will therefore focus on serious offences, in particular violent offences, where alcohol is often a contributing factor, such as common assault, actual bodily harm, affray and violent disorder. Under the Government’s proposed alcohol abstinence and monitoring requirements, offenders will be required by the court to abstain from drinking for a period specified by the court up to 120 days. They will be required either to attend a police station or test centre to be monitored by breathalyser equipment or to wear an alcohol tag around their ankle. This innovative new electronic monitoring technology will test sobriety at half-hourly intervals during the day.

Before imposing a requirement, the court will have to establish a link between alcohol consumption and the offending behaviour. In a case where the offender does not comply with the conditions of the requirement, existing breach proceedings will ensue and the courts will have robust powers to penalise the non-compliance.

I wish to make clear that this requirement does not amount to treatment. That is not to say that supporting programmes such as alcohol awareness and education courses do not have a use here, alongside the abstinence requirement, to help ensure that offenders seek to change their alcohol-fuelled offending behaviour. However, it is distinct from the alcohol treatment requirement and the alcohol specified activity requirement, which seek to treat dependent drinkers and provide advice and support to offenders with other alcohol-related needs. For alcohol-dependent offenders and others needing treatment these options will continue to be the best avenue for addressing these issues.

These new provisions enable the Government to carry out initial trials which will test the processes and practicalities of enforced sobriety schemes and help build the confidence of the probation officials and sentencers who will operate them. We will make use of the lessons learnt to inform further work in this area. We are carrying out an additional pilot to test sobriety schemes as part of conditional cautions. The conditional caution is an out-of-court disposal which aims to tackle low-level crime. The pilot scheme will therefore be targeted at offences such as drunk and disorderly, criminal damage and public disorder, which account for a considerable volume of alcohol-related offences overall. The condition requires an offender to abstain from drinking on the days they are most likely to offend as a result of alcohol and to attend a police station to be tested, using a breathalyser, on those days—for example, Friday, Saturday or Sunday.

We have already had interest from a number of police areas in piloting the conditional caution scheme, particularly from cities where alcohol-fuelled crime is a severe problem. We heard quite a lot about that in Committee. We will announce the pilot areas in the forthcoming government alcohol strategy. The first conditional cautions enforcing sobriety should be administered from April/May. We believe that this is a considered and effective amendment to test out the important concept of reducing alcohol-fuelled crime.

Amendments 152ZC and 152ZD seek to remove provisions under Section 223 of the Criminal Justice Act 2003 to amend the minimum period of time specified for a drug rehabilitation requirement or alcohol treatment requirement under Sections 209 and 212 of the same Act. The Government are taking forward provisions in the Bill to remove the statutory minimum period for drug rehabilitation requirements and alcohol treatment requirements in order to increase the use and effectiveness of these requirements, allowing for greater flexibility in tailoring and delivering treatment and recovery options to individual needs. Provisions under Section 223 for these requirements are therefore no longer necessary.

The alcohol abstinence and monitoring requirement, introduced by our amendments, is to be available to the courts in England and Wales but not, of course, to the courts of Scotland or Northern Ireland. It is our intention that the requirement should not be capable of being imposed by a court in England and Wales on a person who is resident in Scotland or Northern Ireland. We undertake to bring forward and table amendments at Third Reading to make that clear. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I have some amendments in this group, but of course I am absolutely delighted that the Government have decided to bring forward their own amendments. If the House approves those amendments, I will withdraw the amendments in my name. I would like to add my thanks to all Peers from all sides of the House who have worked tirelessly to try to ensure that this localism response for local communities to deal with alcohol-fuelled offences can actually proceed and that this new sentencing ability will be available to the courts. I would also like to single out the noble Baronesses, Lady Browning and Lady Northover, both of whom have gone to great lengths to listen to all sides of the argument and to take those representations away. I know that they really have worked very hard behind the scenes to get to the point that we have reached today.

The government amendments do not include the “offender pay” content set out in my amendments. I understand that this is a complex issue and, depending on the outcome of the pilots, could be revisited at a later stage, but it has wider implications. The advantage of now being able to proceed with breathalyser pilots as well as tags is that, for those who have to present daily or twice daily for breathalysing, they will encounter staff who will be able to see how they are coping and offer them support to cope with all the other aspects of their lives that they have not been managing well and that have been contributing to their alcohol abuse. There is that support element and I know from the United States that the failure rate with tags is about nine times that with breathalysers. That is partly because the offenders tend to think that the electronics will fail and do not believe in the efficacy of the tags. They sometimes try to tamper with them and so on. It will be very important to see how it works here and compare the different systems.

This week there was a motion to seek international endorsement for these types of programmes from the 180-signatory nations to the UN Commission on Narcotic Drugs. These kinds of schemes are being debated there as well. I have had meetings with police officers from different parts of the UK and a consistent story that comes through is that after 10 pm at night alcohol-related problems are between 80 and 100 per cent of their workload, depending in part on the night of the week. Evidence of decreased reoffending has come from the USA and in the pilots we will be able to see whether that is replicated here. There, they are reporting a more than 50 per cent drop in reoffending at three years; a more than 50 per cent drop in drink-driving offences; and a more than 10 per cent drop in domestic violence. There has also been a fall in incarceration rates. Alcohol use appears to be interrupted before the person who has been abusing the alcohol can actually kill somebody, so they have decreased the very serious end of crime as well. We know that in London the Metropolitan Police recorded 18,500 offences flagged for alcohol. Offences involving violence against the person accounted for 64 per cent of those.

--- Later in debate ---

[Lord Beecham]

My Lords, I am not sure what the correct collective noun is for a group of persuasive Baronesses, but whatever it is, we—the House, and indeed society—are greatly indebted to this particular group of persuasive Baronesses, supported as they have been by the occasional male Member of this House.

I would like to join other noble Lords in congratulating the Government on responding so positively and readily to the proposals to carry forward the pilot scheme and to come forward with a legislative framework to adopt the proposals. These have been pushed very hard by the Mayor of London and, indeed, by London Councils as an organisation. There has been complete unanimity politically in London, and in this House too, about the merits of this scheme.

Coming as I do from a city where, unfortunately, alcohol consumption is particularly high—leading generally to low-level crime and a low level of violence which is nevertheless a disturbing social phenomenon—I am very glad that we are beginning to see an approach here that we hope will make a difference. As has been pointed out, however, an alcohol strategy is still awaited. This is perhaps only a first instalment in what may need to be a major review of how we deal with these problems.

The noble Baroness, Lady Finlay—who has been so much the moving spirit, if I can be forgiven the use of that term, in these matters—mentioned one particular matter: domestic violence. There has been consultation about this, as the noble Baroness rightly said. At a meeting held in May 2011, all the violence-against-women agencies present expressed,

“high levels of concern about this scheme operating in relation to domestic violence”.

They gave as reasons that tackling alcohol in itself,

“does not tackle domestic violence … implies that domestic violence behaviour is driven by alcohol, which is not the case … domestic violence can occur when men are sober”—

or when women are sober, as it is not always one-sided—and,

“implies that physical assault (which is linked with alcohol) is the main/only form of domestic violence”,

as that is not correct either. There was,

“general consensus that the additional elements which would need to be considered for DV”—

domestic violence—

“cases, including risk assessment and support”,

would make the matter very complex.

That is not in any way to derogate from the proposals being made, but it does emphasise the need to look carefully, in the context of the pilot, at what will be run as part of the experiment, and to look very sensitively at the concerns of the organisations that work most closely with women as the principal victims of domestic violence, to see whether this is necessarily the most appropriate way of dealing with those problems.

I certainly have an open mind about that, and I assume that the Government would as well. I am therefore just uttering a word of caution. It should not necessarily be assumed that domestic violence is an appropriate topic for inclusion in a scheme of this kind. It is a matter that needs to be tested. The American experience might be helpful in that respect, of course, but the culture is not necessarily the same here as it is in South Dakota or other parts of the United States. I think that we have to be a little careful about jumping to conclusions.

With that single reservation—it is only a note of caution—I very much endorse the principle and the Government’s amendments. I would also like to endorse what the noble Lord, Lord Avebury, has said about costs. I assume that the Government would cover the cost of pilots as they take place in localities. In local government parlance, this would be a new burden, and the convention is that such new burdens are funded by government. As it is a pilot, it should not be too expensive to run—and ultimately, we hope, the public purse will benefit significantly from any savings that accrue, not least in the health service, where such savings would be extremely desirable. I mean savings not only in financial resources but in the time and skills of staff.

The Opposition strongly support this principle. With that note of caution, we congratulate the Government and look forward to taking matters further. Perhaps I may also ask whether the Minister or her colleagues would be prepared to meet before the pilots are instituted with representatives of the organisations concerned with violence against women to explore their concerns and to see whether, perhaps together, a joint approach might be worked out to test the scheme in practice or to see how it might be modified to reflect the real concerns they have expressed. We certainly support the Government and these amendments.

[Baroness Northover]

My Lords, I thank the noble Baroness, Lady Finlay, and my noble friend Lady Browning for their incredibly kind words to me. However, it is they who have been the doughty fighters who have brought us to this position. I should also like to thank my right honourable friend the Secretary of State, Ken Clarke, for his help in taking forward this innovative idea.

The noble Baroness, Lady Finlay, and the noble Lord, Lord Beecham, mentioned domestic violence, and as both noble Lords emphasised, these are complex issues which require multifaceted approaches. We will need to see how, in tackling the abuse of alcohol, there might be a beneficial effect in this area as well. The provision is not targeted at domestic violence, as noble Lords will appreciate, but we will need to see what we can learn from its possible effects. I would be extremely happy on behalf of the Government to meet the organisations to which the noble Lord referred. I know that the noble Baroness, Lady Finlay, expressed an interest as well. I really appreciate that and look forward to taking that further forward. It is extremely important that we discuss what is suggested here with such groups.

We agree with the noble Baroness, Lady Browning, that alcohol treatment is extremely important; as a spokesperson for health, I hope that I can reassure noble Lords that we fully recognise that. I want to reassure the noble Baroness that we believe that the pilots are there so that we can learn from them. We need to learn what works elsewhere and see how it might need to be adapted within our own legal, social and economic situation. However, we are optimistic that these are interesting proposals to take forward.

My noble friend Lord Avebury asked about the funding for the pilots and the noble Lord, Lord Beecham, also flagged that up. Existing resources will be drawn on for some of the work with breathalysers, but the Government are indeed providing funding for the pilots and this will be announced shortly. My noble friend Lord Avebury asked about the areas for conditional caution pilots. I hope he will be pleased to hear that this will be announced in the alcohol strategy next week.

Above all, I thank noble Lords for their support for the government amendments, and especially for the work of the noble Baronesses, Lady Finlay and Lady Browning, and others in bringing us to this point. I look forward to our learning from these pilots.

Amendment 152ZC agreed.

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Moved by

[Baroness Northover]

152ZD: Clause 72, page 53, line 16, at end insert—
“(2) In section 223(3) of that Act (power to amend specified periods of time), omit paragraph (d).”

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[Lord Beecham]

My Lords, I strongly support the amendment moved by the noble and learned Lord, Lord Woolf. We are entirely in agreement that restorative justice represents a significant way forward. It is calculated, as the noble Lord, Lord Dholakia, said, to save public funds, reduce reoffending rates and prove acceptable to the wider community, which is not as hard-line in these matters of penal policy as sometimes people imagine. Restorative justice has been shown to be welcomed by 80 per cent of the victims who participate in it. That in itself is a testimony to its effectiveness. I hope, therefore, that the Minister will feel able to accept the amendment but, if she is not, I hope that she will undertake to meet the noble and learned Lord and other colleagues before Third Reading to allow a further and final opportunity to discuss the way forward to improving this part of the Bill, recognising that it will contribute to the intentions of the Government.

[Baroness Northover]

My Lords, these amendments from the noble and learned Lord, Lord Woolf, and my noble friend Lord Dholakia return to the question of restorative justice. The noble Lords have been outstanding exponents of the importance of restorative justice and we appreciate the contribution that they have made in the House, nationally and internationally in this matter. The Government support the principle of restorative justice as part of an effective response to crime. It offers a crucial opportunity, not only to assist in the rehabilitation of offenders by making them face the consequences of their actions and seek to make amends for the damaged inflicted on others, but to give victims a greater stake in the resolution of offences and in the criminal justice system as a whole. Indeed, victim satisfaction rates have been extremely positive. Additional work in this area will enable us to realise the benefits of restorative justice further. We already have encouraging evidence around its impact on reoffending rates and anecdotal evidence that it encourages offenders to seek further necessary interventions, such as drug and alcohol treatment.

As I mentioned in Committee, we are committed to delivering greater use of restorative practices across the criminal justice system and we are putting a great deal of time and effort into building up the capacity of youth offending teams, probation trusts and prisons to provide restorative justice services, investing over £1 million in order to do so. We just heard reference from the noble Lord, Lord Ramsbotham, to the Thames Valley restorative justice partnership. It is developing training materials and guidance for using restorative justice in the adult system as part of our response to more serious offences. Its experience is invaluable.

These amendments take a three-pronged approach to adding restorative justice to the current legislation. The first would make restorative justice a statutory purpose of sentencing alongside the existing purposes of punishment, reduction of crime, rehabilitation, protection of the public and making reparation to offenders, as set out in the Criminal Justice Act 2003. The second would create a new restorative justice requirement for a community order or suspended sentence order, while the third would add the words “restorative justice” to the existing activity requirement.

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Moved by

[Lord McNally]

152BZZD: Clause 73, Page 53, line 25, after “requirement)” insert “or (ja) (an alcohol abstinence and monitoring requirement)”

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Moved by

[Lord McNally]

152BZA: Clause 75, page 58, line 24, leave out subsection (10)

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Moved by

[Lord McNally]

152BA: Clause 80, page 61, line 29, after “Where” insert “, on the commencement day,”

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Moved by

[Lord McNally]

152BX: Clause 81, page 63, line 10, leave out “a higher” and insert “an”

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Moved by

[Lord McNally]

152BYF: Clause 82, page 64, line 8, leave out “higher sums”

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[Lord Beecham]

My Lords, the noble Lord, Lord Ramsbotham, has identified very clearly the nature of the problem and has come forward with proposals to help deal with it. He made a number of points that are very telling. Perhaps a couple of other matters could be added to the issues he referred to. The first is perhaps implicit in what he was saying: the very high reoffending rates among this particular group. The second, and slightly different, point is that there is a disproportionate number of young offenders from black and minority ethnic backgrounds, which is an aspect that we have not much discussed in the course of the Bill. It is not a function of any greater criminality among that group. All the evidences suggest that, for whatever reason, the likelihood of a custodial sentence—or, for that matter, a refusal of bail at an earlier stage—is much greater for people from that group, compared to offenders with comparable offences. There seems to be an in-built bias against BME offenders, which is a matter that needs to be addressed. The other issue is what happens after certain custodial sentences are completed because, after short sentences there is, effectively, no follow-up. That is a significant contributor to the high reoffending rates.

I hope that this proposal—that there should be a requirement to produce a strategy for offenders in this group—commends itself to the Minister. The phrasing of the amendment is perhaps a little difficult in terms of what might be appropriate for statute. However, the principles that the noble Lord has advanced are surely ones that would commend themselves to the Minister. Again, I hope that he can either indicate policy acceptance of the thrust of the amendment or agree that he will consult further with the noble Lord, maybe with a view to bringing back at Third Reading something to meet the common objectives of the Government and Members of your Lordships’ House. Certainly, I would support the noble Lord’s aspirations in this respect.

[Lord McNally]

My Lords, we keep coming round to these amendments from the noble Lord, Lord Ramsbotham. As he said, we have had debates in this House and bilateral meetings about them. There is a certain disagreement. The noble Lord, Lord Ramsbotham, seems to think—and I am sure that this will provoke him to get to his feet to say that I have got it wrong—that we have to have a strategy and a command structure and, after that, all will be well. I am old fashioned enough to believe that the buck stops with the Minister. The constant desire to have strategies is not a real substitute for doing things.

Having said that, I said earlier today that you do not have to be in this job long before you realise that we have too many women in our prisons. Neither do you have to be in this job very long to see that the 18 to 24 year-old age group among males is a key area for criminal behaviour. Therefore, we have to think very hard about how we break this cycle of criminality. The noble Baroness, Lady Linklater, acknowledges that this is a difficult group. I cannot quite agree with her about regretting that she is no longer a teenager. I would like to be a teenager again, but knowing what I know now. It is a pity that life does not give you that particular deal.

[Lord Beecham]

Does the noble Lord want to revert to membership of the young socialists a little bit?

[Lord McNally]

I said that if I knew then—let me get back to the speech. The noble Lord, Lord Ramsbotham and the noble Baroness, Lady Linklater, acknowledged that the group we are discussing is a difficult one but that many of the ideas for dealing with it are extremely expensive. We are trying to deal with it but the Government’s view is that it is not appropriate to prescribe in detail from the centre processes which purport to improve outcomes. Such a way of working would lead to inflexibility and take up resources which are better deployed elsewhere. We are looking wherever possible to empower local decision-making and delivery by prison and probation trusts so that they use resources in a way that responds to local priorities. That also fits with our policy for the management of young adult offenders as individuals based on an assessment of risks and needs rather than their age.

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[Lord Ramsbotham]

My Lords, I expected that response. However, I remind the Minister that I have worked in Whitehall for many years. I do not disagree with him about Ministers being responsible; of course they are, but the question is how do they exercise that responsibility? They cannot do it on a 24 hour, seven days a week basis because they have many other things to do. Therefore, they need a structure to help them do it. The noble Lord referred to a command structure. You can call it what you like but it is a matter of people being responsible and accountable to a Minister for making certain that what the Minister wants to happen does happen. That happens everywhere—in schools, hospitals, businesses and the Armed Forces, but it does not seem to happen in the Prison Service.

I am very concerned about disseminating all responsibility down to the local level. I have said many times in this House that two things are involved in this. One is the question of what should be done, which is the central responsibility, but how it is done is the local responsibility. If you get that the wrong way round and nothing but “how?” comes out from the centre at the top and all the “what” is left down below in the local areas, you get confusion. People in the local areas need to know what they have to do. They should be allowed to disburse their resources locally as there will be different needs in different areas. That again seems to me common sense because unless you have a “what?” coming down, nobody knows where they are going. I have spoken to the chairman of the Youth Justice Board, and I understand that that body would be more than happy to tackle this measure. However, the chairman made the point that she did not want the youth offending teams involved in working with this age group. I accept that entirely. However, the success of the intensive schemes pioneered by the probation service shows that it is taking a keen interest in this group, and I see no reason to interrupt that. Therefore, it seems to me that the framework is there.

The Minister mentioned that a lot of things are going on but was not very specific. In the same spirit in which we have met to talk about many issues after Committee, can we meet to discuss this matter as it is far too important just to be left in the air at half past eight at night without, frankly, it being completely clear? I understand what he says about payment by results.

[Lord McNally]

I am very willing to meet. The noble Lord knows how much I value his experience, expertise and commitment in this area. I am happy to meet him to discuss this matter as often as he likes. However, later this week I will be sitting down with ministerial colleagues to discuss a detailed report on the various areas of MoJ business with the civil servants with direct line responsibility for them. We will have gone through policy areas and will be looking at various policy outcomes. The idea that somehow the National Offender Management Service is drifting somewhere outside ministerial control or accountability or that it is not being set various tasks and responsibilities is just not true.

On the other side, as has been acknowledged, we are dealing with very difficult and straitened times. The resources available to target this area are extremely limited. We shall see whether we can involve payment by results as one way of getting good results and resources into this area. We do not doubt the problem. I am very willing to continue to have discussions with the noble Lord, but I do not want to give him any false hope that we can go down this way in this Bill.

[Lord Ramsbotham]

I thank the Minister for that reply. In no way am I seeking to interfere; I am merely seeking to ensure that our commitment to this very important problem is properly recognised because we wish to share everything that he has shared with us that has come up from below to ensure that due account is given when we get an opportunity to do so.

I am not going to talk about payment by results because, as the Minister says, this is early days and the Government have set their sights on it; they have pilot schemes in place and we shall know more. It is premature to take more than that, other than to reflect concerns that are being reflected to me by people who have to operate it on the ground, particularly the small voluntary organisations which operate in this area and which are finding it enormously difficult to survive. In view of the fact that there is so much to play for in this area, it would be sensible to continue the dialogue. Therefore, I wish to withdraw the amendment.

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[Lord Bach]

My Lords, I will comment briefly. My noble friend Lord Ponsonby made a good point. The question is whether the Bail Act 1976, which as he said has worked pretty well in a practical way at various levels—although no one would claim that it is perfect—needs to be changed by what appears at first blush to be a rather superficial alteration.

I am concerned about the matters raised by my noble friend, to which I hope the Minister will respond tonight, and about the prospect of a custody test and the expectation that a defendant will be given if he is granted bail on the basis that he will not receive a custodial sentence, because it may become absolutely apparent at the time of sentence, for whatever reason—and anyone who has been in a court knows that the facts sometimes do not emerge until very late on—that although the defendant’s expectation is that he will not get a custodial sentence, the court would not be doing its duty unless it gave him one.

The expectation that someone will have once they have been given bail is that they will not—to use common parlance—go down. In my view that is the wrong way around. Magistrates’ courts or Crown Courts should have the discretion that they enjoyed under the Bail Act 1976 to do what they consider to be right in the circumstances, subject to the terms of the Act. Therefore, my view is that the case for change has not been made, and that what is proposed is very superficial.

[Lord McNally]

I wonder whether one reason why the Magistrates’ Association found itself alone on this is that most other penal reform organisations welcomed a proposal that will prevent people being sent to jail. One of the big arguments that we have had about the inexorable rise in our prison population over recent decades is over whether as a society we are too quick to send people to jail. The no real prospect of custody test simply asks, “If you are not going to imprison a defendant if he is convicted, why should you be able to do so before he has been tried?”.

The noble Lord, Lord Ponsonby, tabled amendments that would remove the no real prospect of custody test from some, although not all, of the places in Schedule 11 where it appears. Amendment 152JA would remove the amendment to Section 7 of the Bail Act, which applies to the test to bailed defendants who have been arrested for absconding or breaking their bail conditions. Amendment 152JD would remove the amendment that applies the test to defendants who have committed offences that merit summary imprisonment. However, for some reason the paragraph in Schedule 11 that introduces the no real prospect test for indictable offences is left undisturbed. Amendment 152DA removes the definition of custodial sentences that is relevant to the no real prospect test, but Amendment 152JB appears to remove a consequential amendment that is not directly related to the test.

The noble Lord spoke of the risks to the safety of the public, but how much of a risk is a defendant for whom it can be said that there is no real prospect of custody? We also heard about intimidation. However, as we mentioned, intimidating witnesses is an offence in its own right that is not only imprisonable but likely to result in a custodial sentence. A defendant who is not facing custody for their original offence would be foolish to put themselves at risk of receiving a far more serious sentence by trying to interfere with a witness.

We recognise that special considerations may apply where the circumstances of the offence suggest that there may be a risk of domestic violence. That is why we have included an exception designed to protect those who might be vulnerable in this way. This exception in new paragraph 15 of Schedule 11 would in fact be removed by Amendment 152JC. I do not understand why.

The noble Lord asked me a number of specific questions about the August riots, curfews and the need for sufficient information to be given. It would be fun for me to try to reel off answers from the Dispatch Box, but it would be better, and certainly safer for me, if I wrote to the noble Lord and made that reply available in the Library of the House. He can then contemplate what he will do at Third Reading.

I am not sure that the Magistrates’ Association is on the right path here. We think this is a sensible proposal for keeping people out of prison when it is not strictly necessary for them to be there. I will try to give the noble Lord answers to his questions, but in the mean time I ask him to withdraw his amendments.

[Lord Ponsonby of Shulbrede]

I thank the Minister for that response. I make the point that the Magistrates’ Association and every magistrate I have ever sat with do not want to put people in custody, and the whole purpose of my speech was to point out inconsistencies and a lack of clarity in these proposed changes. Nevertheless, I thank the Minister for offering to respond to my specific questions, and I beg leave to withdraw my amendment.

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Moved by

[Lord McNally]

152E: Schedule 11, page 206, line 3, leave out “the United Kingdom” and insert “England and Wales”

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Moved by

[Lord McNally]

152K: Clause 88, page 67, line 44, leave out sub-paragraphs (i) to (iii) and insert “on bail or subject to a custodial remand.”

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Moved by

[Lord McNally]

152Q: Clause 89, page 68, line 38, leave out “the United Kingdom” and insert “England and Wales”

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Moved by

[Lord McNally]

152S: Clause 90, page 69, line 33, leave out “87(1)” and insert “87(1) or (5)”

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Moved by

[Lord McNally]

152T: Clause 93, page 71, line 44, leave out from “while” to “, and” in line 45 and insert “subject to a custodial remand”

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Moved by

[Lord McNally]

152Y: Clause 94, page 73, line 7, leave out “the United Kingdom” and insert “England and Wales”

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Moved by

[Lord McNally]

152YA: Clause 95, page 74, line 2, leave out “the United Kingdom” and insert “England and Wales”

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Moved by

[Lord McNally]

152YB: Schedule 12, page 212, line 26, leave out “the United Kingdom” and insert “England and Wales”

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Moved by

[Lord McNally]

152YE: Clause 101, page 77, line 42, leave out “(and see section 89(8))”

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Moved by

[Lord McNally]

152YH: Schedule 13, page 218, leave out lines 10 and 11 and insert—
“( ) Section 246 (crediting of time in service custody: terms of imprisonment and detention) is amended as follows.
( ) For subsections (2) to (5) substitute—”

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Moved by

[Lord McNally]

152YKA: Schedule 15, page 222, line 36, leave out “113” and insert “112”

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[Lord Bach]

My Lords, I can be very brief because the speeches that have been made set out the case very well indeed. Proper caution has been taken in the way in which the amendment has been worded. We all know that the people whom we are talking about have committed the most terrible offences and in many cases—in practically every case, I suggest—it may well be, given the caution included in the wording of the proposed new clause, that these people will stay in prison for the rest of their lives. All that the noble and learned Lord is asking, as a matter of principle, is that for anyone after they have served—this is the caution— 30 years of a sentence,

“it shall be the duty of the Secretary of State, after consulting the Lord Chief Justice”—

of the day, presumably—

“and the trial judge if available, to refer the case to the Parole Board”.

Surely we have trust and faith in the Parole Board. The Parole Board has to be satisfied that,

“it is no longer necessary for the protection of the public that the prisoner should be confined, and … that in all the circumstances the release of the prisoner on licence would be in the interests of justice”.

My argument is that the Parole Board has to make hard findings in any case, particularly in cases of this kind. Even if the Parole Board is satisfied on these matters, the amendment says only that it “may direct his release under this section”.

The amendment is extremely cautious, but it is humane, in the way that has been described, for people who sometimes may seem not to deserve the protection of a humane state. However, we live in one, and surely the point of the penal policy is for it to be humane when it can be.

I listened carefully to what the Minister said in response to this matter in Committee and it seemed to me then that the Government’s real case is—I put it crudely—that the Daily Mail would not like it. If that is really the level of the argument that the Minister is going to put again today, it is quite unsatisfactory for a matter of principle of this kind. I hope that, if the Minister opposes the amendment, he will find a better argument than that.

[Lord McNally]

My Lords, the better argument is that if I accepted the amendment, the Labour Party would, as it has done on most law and order issues over the past 20 years, try to outbid the hard right to the right. If the noble Lord is announcing a new Labour Party policy on this issue, I shall give way. No, he is not, so let us not go too far down that road.

I acknowledge that this is a cautious amendment. We have heard from some very distinguished and learned Members of the House and I shall not try to match them in legal skills. However, I have been around politics for quite a few years and, in many ways, one has to make political judgments. If we had been debating this in the 1960s along with Sydney Silverman or in the 1970s with Roy Jenkins, we might have found a political atmosphere in which to discuss these issues. Sadly, things have moved on since then and if you are a legal reformer like me you try to make progress where you can.

Part 3 of the Bill carries us forward significantly in two areas of legal reform: reform of IPPs, which we will be discussing later, and the Rehabilitation of Offenders Act. I believe that those are worthwhile measures. I do not think that we are in a position at the moment to move as far as this amendment suggests, cautious though that may be in rational terms. Just as there are passionate arguments about the possibility of ultimate rehabilitation for even the most dangerous offenders, there are equally passionate arguments that there are some prisoners who should never be released under any circumstances. Both views were reflected in the debate in Committee. I do not think that we are in a position—never mind the opinion of the other place—to carry public opinion with us on this matter.

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21:22

Division 3

Ayes: 62

---

Labour: 43
Crossbench: 14
Bishops: 1
Independent: 1
Plaid Cymru: 1

Noes: 90

---

Conservative: 56
Liberal Democrat: 29
Democratic Unionist Party: 1
Ulster Unionist Party: 1
Crossbench: 1

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Moved by

[Lord McNally]

153A: Clause 116, Transpose Clause 116 to after Clause 117

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Moved by

[Lord McNally]

153B: Clause 117, page 93, line 39, leave out “seriousness” and insert “sentence”

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[Lord Lloyd of Berwick]

As the House will remember, Clause 117 provides that if a person has been convicted of a listed offence for which he has been sentenced to 10 years or more and then commits a further offence for which he might expect at least a 10-year sentence in prison, then he “must” be sentenced to life imprisonment unless it would be unjust to do so.

I described this clause in Committee as being pointless and indeed it is, but I now suggest that it is worse than pointless. In Committee, the Minister described the clause as introducing a new mandatory life sentence, and he placed particular emphasis on “mandatory” to show, no doubt, that the Government in this respect are being tough on crime. But a mandatory sentence is one that the court is obliged to pass, like the mandatory sentence of life imprisonment for murder. This clause is quite different from that.

Despite the use of “must”, the clause recognises that the judge will in fact pass the sentence which, in the particular circumstances, he believes to be the just sentence. That is exactly what judges always do when sentencing. Why then do the Government persist in calling it a mandatory sentence? It cannot surely be in order to create some sort of presumption that a life sentence should be passed. How would the judge begin to know what weight to give to such a presumption? Calling it a mandatory life sentence and the use of “must” in the light of the judge’s ability to pass the sentence he believes to be just is simply a contradiction in terms. To create contradictions in terms in all legislation is a mistake, particularly in legislation of a criminal kind which has to be interpreted by the courts. What the clause could have said was that the court “may” pass a life sentence in these circumstances. That would at least serve some purpose because it would cover those rare cases where the second offence does not carry with it a life sentence as its maximum. As it is, the clause is not only pointless for the reasons I have gone into but it is also ambiguous.

I have one other point. Do we want to create more life sentences? I look round to see if the noble Baroness, Lady Stern, is here and I do not thinks she is, so I will make the points which I know she would have made. She quoted what are on any view some very surprising figures that we have in England and Wales 7,663 persons serving life sentences. The figures, which have been provided by the Council of Europe, show that, whereas we have 12 lifers for 100,000 members of the population, for France the proportion is 0.85 per cent, for Germany it is 2.4 per cent, for the Netherlands it is 0.14 per cent, and for Sweden it is just over 1 per cent. The conclusion from these figures is inevitable. We have far too many prisoners serving life sentences when a long determinate sentence would do just as well. As for deterrence, it is very fanciful to suppose that a prisoner having served 10 years already would be deterred by the prospect of a life sentence rather than a long deterrent sentence and decide thereafter to go straight.

As for Amendment 157, we have a new Clause 134 which creates an offence of threatening with a knife. It too carries a mandatory sentence and, as such, suffers from all the defects which I have already mentioned in the earlier debate. It is even more pointless for the reason that we already have an offence of carrying a knife in a public place under the Criminal Justice Act 1988. It carries a maximum sentence of four years. In 2003 the Court of Appeal issued guidelines in which it said that if the knife was used to threaten, then the sentence should be towards the upper end of the scale. What, then, can be the purpose of now creating a new offence of threatening with a knife, carrying the same maximum sentence of four years? Clause 134 is exactly covered by the existing legislation. Its only purpose I can see is, as I have said before, to give the impression that the Government are doing something about knife crime. If they think that, then they deceive themselves. The only way to do anything about knife crime, as I mentioned in Committee, is to do what has been done in Glasgow and that is to get in among the gangs who use these knives. There, knife crime has been reduced by an astonishing 82 per cent. That is the way to reduce knife crime, not cluttering up the statute book with unnecessary provisions such as this. I beg to move.

[Lord McNally]

My Lords, a concern expressed by some noble Lords in Committee seemed to be that the new mandatory life sentence would be pointless—a word that the noble and learned Lord used several times—because courts will not have to apply it if it would be unjust to do so. It is right to say that the court will retain a discretion not to impose the new mandatory life sentence when the particular circumstances of the offence or the offender would make it unjust to do so. But that is very far indeed from meaning that the sentence is pointless. Save for murder, all mandatory sentence requirements on the statute book contain an exception of this kind. It is done so that mandatory sentence requirements will be compatible with human rights, and to prevent arbitrary sentencing, which cannot take any account of specific and individual circumstances. It is clearly not a permission or excuse for the court to do away with the mandatory sentence requirement. We expect that in the majority of cases the exception will not be engaged at all.

Last summer we made a commitment to introduce a tougher determinate sentencing regime to replace IPPs. A key element of that regime is mandatory life sentences for the most serious repeat offenders. The mandatory sentence requirement in Clause 117 will ensure that the worst repeat sexual and violent offenders receive a life sentence.

Amendment 157 would remove Clause 134, a new knife offence, from the Bill. The noble and learned Lord, Lord Lloyd, argued in Committee that the two new offences in Clause 134 are adequately covered by existing legislation and that, therefore, there is no reason for creating them. It is true that unlawful possession of a knife or offensive weapon is already a serious criminal offence which carries a maximum custodial sentence of four years. The intention of Clause 134 is to strengthen this existing legislative framework by targeting behaviour that amounts to more than simple possession but does not go so far as resulting in injury to the victim. The new offence will complement the existing offences of possession, which deal with those who carry offensive weapons or bladed or pointed articles in public places or schools without lawful authority, or reasonable excuse or good reason. It will do so by targeting behaviour that goes beyond possession, specifically targeting instances where an individual brandishes a knife or weapon, threatening another and placing them at immediate risk of serious physical harm. We want to send a strong message that this type of behaviour will not be tolerated. The minimum sentence attached to the new offence drives home the point that this kind of behaviour is extremely serious, even if it does not carry through into causing actual physical harm. Indeed, threatening people and placing them in fear of serious physical harm is serious enough that people should expect to face custody if they act in this way.

I know that the noble and learned Lord is particularly concerned about the minimum sentence for 16 and 17 year-olds contained in the new offences. I understand his concern, but in the other place my right honourable friend the Lord Chancellor made it clear at Third Reading that the Government had listened carefully to the arguments made in support of extending a minimum custodial sentence to all those under 18. The Government had then decided, on balance, that it would be appropriate to extend the minimum sentence to the narrower group of 16 and 17 year-olds who commit these offences. The Government have not made the decision to create these offences lightly, but consider it appropriate to have minimum sentences set out in legislation when a particular offence demands a firm and unequivocal response.

The Government cannot accept this amendment. To do so would undermine the strong message sent by this clause. We need this to complement the much wider range of initiatives we have in place to address problems posed by people who unlawfully carry or use knives in our communities. We believe that, in respect of 16 and 17 year-olds, Clause 134 strikes the right balance. I urge the noble and learned Lord to withdraw his amendment, and that this clause and Clause 134 should remain in the Bill.

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Moved by

[Lord McNally]

154A: Schedule 18, page 245, line 16, leave out “and 226A” and insert “, 226A and 246A”

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Moved by

[Lord McNally]

154E: Schedule 19, page 247, line 11, leave out paragraph 9

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Moved by

[Lord McNally]

154M: Clause 118, page 96, line 11, at end insert—
“(10) In subsections (1)(a) and (8), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that—
(a) was abolished before 4 April 2005, and(b) would have constituted such an offence if committed on the day on which the offender was convicted of the offence.(11) Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005—
(a) subsection (1)(c) has effect as if the words “by section 224A or 225(2)” were omitted, and(b) subsection (6) has effect as if the words “in compliance with section 153(2)” were omitted.”

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[Lord Dholakia]

My Lords, Clauses 118 and 119 deal with the new extended sentence and release on licence matters. I do not question the Government’s intention in what they are trying to achieve, but I do question the discrepancy that these clauses would create. My amendments would give the courts discretion over the release date of offenders given extended sentences. In appropriate cases, courts would be able to retain the current position whereby prisoners serving extended sentences are released after half the sentence. In other cases, where the court considered it necessary, it could specify that the offender will not be released until he or she has served two-thirds of the sentence.

At present, prisoners serving determinate sentences are released on licence after serving half the sentence in custody. This also currently applies to offenders serving extended sentences. Up to now, the point of an extended sentence has not been to increase the period which offenders spend in custody. Extended sentences are currently intended to make sure that when offenders who pose a risk to the public are released, they are subject to a longer period than usual of post-release supervision on licence. This means that they are subject to restrictive conditions and controls at the same time as receiving constructive rehabilitative help from the probation service. If offenders breach the conditions of their licence, they can be recalled to prison. This is a very useful provision which means that society maintains control over these offenders’ behaviour for a long period. However, the Bill would increase the time which an offender given an extended sentence spends in prison by stipulating that all extended sentence prisoners will not be released until the two-thirds point of their sentence.

When we debated this matter in Committee on 9 February, my noble friend Lord McNally explained the Government’s view that this would be appropriate for some prisoners who would now be given IPP sentences. However, the change in the Bill will not apply only to offenders who would now receive an IPP sentence. It will also apply to people who would currently receive an extended sentence. In future, these offenders will also have to serve longer in custody if this provision in the Bill remains unchanged. The Government have produced no explanation to demonstrate why it is necessary to change the rules for prisoners of the type who would now receive an extended sentence.

As the Bill stands, a court wishing to impose an extended period of post-release supervision will be able to do so in future only if it passes a sentence which also increases the length of time spent in custody before release to two-thirds of the sentence. If a judge does not want to increase the time that the offender spends in prison but simply wants to make sure that he or she has an extended period of supervision on release, why should he not be able to order this as he can under the current provisions for extended sentences?

When I moved a similar amendment in Committee on 9 February, my noble friend Lord McNally said:

“I listened to my noble friend’s idea about discretion … I will ponder this one between now and Report”.— [Official Report, 9/2/12; col. 467.]

That is the stage we have reached. These amendments give my noble friend the opportunity to let us know the result of his thinking on my suggestion. I beg to move.

[Lord McNally]

My Lords, I was teased earlier in the day about my Labour and trade union past. One quote that sticks in my mind is from the great TUC general secretary George Woodcock, who once said that good trade unionism is a serious of squalid compromises. Sometimes law reform or criminal justice reform is a series of compromises. The noble Lord, Lord Bach, shakes his head. Of course it is. We have to carry Parliament with us, we have to carry the various parts of the coalition Government with us, and we have to carry public opinion with us. Reflecting on my noble friend’s amendment, when we announced our decision to reform the Rehabilitation of Offenders Act, one of the campaigning groups rang up and said, “But you have not gone as far as Labour promised in their 2002 White Paper”. That is true, but we were reforming the Act for the first time in 37 years. Labour had talked big and done nothing.

A key element of our IPP replacement regime is the new extended determinate sentence for dangerous offenders. On this sentence, the offender will always serve at least two-thirds of the custodial term in prison. In the most serious cases early release will be at Parole Board discretion. This means that offenders stay inside until the end of that term. My noble friend has proposed that the court should have a discretion as to whether the minimum time in prison offenders on the new extended sentence should serve is one-half or two-thirds of the custodial term. He has explained that one of his key concerns is that there should be an appropriately long licence for the offender without the need to increase the period spent in prison. I have written to my noble friend to address the point regarding the licence.

The new extended licence consists of a custodial term set by the court, during which—or at the end of which—release will occur. This must then be followed by an extended period of licence, which is also set by the court, and may be up to five years in length for a violent offence and eight years in length for a sexual offence. The courts will base the custodial term on seriousness and factors relevant to that. The extended licence period will address risk. As the proposals stand, the court should be able to impose a sentence that will require a suitably long period of licence regardless of when during the custodial term the offender is released. Therefore, I do not think there is a problem with licence, but if there were I am not sure that this amendment would be the solution. It would be entirely possible for a serious offender to remain in prison until the end of the custodial term regardless of the point at which he becomes eligible for parole.

I also note that this would be a new decision for judges, and it is not clear on what basis they would make it. Seriousness and risk management are already addressed by the decisions the court will already make in relation to the sentence. Asking them to decide additionally between different sentence formats would seem to make this a very complex sentencing decision.

Finally, as I have said before, in June last year the Government committed to introducing a tougher determinate sentencing regime to replace IPPs. A key part of that tougher regime is that those on public protection sentences, now that they are no longer liable to receive IPP sentences, will spend more of their determinate sentence in prison. We think this is needed to enhance public protection and deliver public confidence. It will provide more time for offenders and the National Offender Management Service to work towards rehabilitation. I know that my noble friend and his friends in NACRO will continue to campaign on these issues and it is right that they should do so. However, I hope that my noble friend will feel able to withdraw his amendment.

[Lord Dholakia]

My Lords, I thank the Minister for his explanation. I am delighted with the information he has given. It is always nice to niggle him from time to time so that we can hear some lovely anecdotes. As long as he keeps bashing the Labour Party, I have no reason not to withdraw the amendment.

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Moved by

[Lord McNally]

154N: Clause 118, page 96, line 45, at end insert—
“(8) In subsections (1)(a) and (6), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that—
(a) was abolished before 4 April 2005, and(b) would have constituted such an offence if committed on the day on which the offender was convicted of the offence. (9) Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005—
(a) subsection (1) has effect as if paragraph (c) were omitted, and(b) subsection (4) has effect as if the words “in compliance with section 153(2)” were omitted.”

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Moved by

[Lord McNally]

154P: Clause 118, page 97, line 1, leave out subsection (2)

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Moved by

[Lord McNally]

154Q: Schedule 20, page 250, line 5, leave out paragraph 4 and insert—
“4 (1) Section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence imposed as well as driving disqualification) is amended as follows.
(2) In subsection (4)(e)—
(a) for “227” substitute “226A”, (b) for “half” substitute “two-thirds of”, and (c) for “227(2C)(a)” substitute “226A(5)(a)”.(3) In subsection (4)(f)—
(a) for “228” substitute “226B”, (b) for “half” substitute “two-thirds of”, and(c) for “228(2B)(a)” substitute “226B(3)(a)”.(4) In subsection (8) omit “or 247(2)”.
(5) In subsection (9) omit paragraph (b).”

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Moved by

[Lord McNally]

154YE: Clause 119, page 97, line 18, leave out “Part 1” and insert “Parts 1 to 3”

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Moved by

[Lord McNally]

154YG: After Clause 119, insert the following new Clause—
“Sections 116, 118 and 119: consequential and transitory provision
Schedule 20 (abolition of certain sentences for dangerous offenders and new extended sentences: consequential and transitory provision) has effect.”

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Moved by

[Lord McNally]

154YH: Schedule 21, page 252, line 18, leave out paragraph 2 and insert—
“2 (1) Section 237 (meaning of “fixed-term prisoner” etc) is amended as follows.
(2) In subsection (1)(b), before “227” insert “226A, 226B,”.
(3) In subsection (3), before “227” insert “226A or”.”

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Moved by

[Lord McNally]

154YT: Before Clause 120, insert the following new Clause—
“Dangerous offenders subject to service law etc
Schedule (Dangerous offenders subject to service law etc) (dangerous offenders subject to service law etc) has effect.”

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[Lord Beecham]

My Lords, I support the amendment in the name of the noble Lord, Lord Thomas. He identifies a useful process and an obligation on the Government to ensure that cases are properly considered and that there is a reasonable way of reporting back on them.

Although I sympathise with the amendment moved by the noble Lord, Lord Ramsbotham, I do not find the content of it particularly persuasive. The amendment would require the Secretary of State to delegate the responsibility for implementing release plans without saying to whom the responsibility should be delegated. That would be odd in primary legislation. The requirement to report within a year of enactment on all cases seems to be too restrictive, given that unfortunately under the previous Government there was a backlog in working with such prisoners, and it is not at all clear how much work would be involved and what resources would be required to deal with the current numbers. It is not really acceptable for the timescale to be in the Bill in this form.

Having said that, if the noble Lord were minded to look seriously at the propositions—and I would certainly commend the thinking behind them if not necessarily the precise formulation that reaches us in the form of the amendment tabled by the noble Lord, Lord Ramsbotham—that could be brought back for consideration at Third Reading. The direction of travel is right but the precise route is somewhat questionable. I hope that the Minister will think sympathetically about the underlying approach of the two noble Lords whose amendments are before the House.

[Lord McNally]

My Lords, we return to the issue of dealing with IPP prisoners. I must say to the noble Lord, Lord Beecham, that I do not think there is any doubt about the direction of travel. I am dubious about whether we need the kind of prescriptions in both amendments. Ministers are here to be questioned by Parliament. I do not think that there would be any problem in finding opportunities to check on progress, but let us see.

The Government, through the National Offender Management Service, have already made significant improvements to increase the supply of rehabilitation interventions for this group. One of the main criticisms of IPPs was that people became trapped in them in a kind of Catch-22; they had to fulfil certain requirements to be considered for release but the facilities and channels to get these qualifications, improvements and records were not there. Better use is already being made of sentence plans to prioritise interventions for existing IPPs where the need is greatest, and work is under way to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs such as learning difficulties.

In addition, a new specification for offender management, which will provide for the prioritisation of resources based on risk, will take effect from April 2012. Once embedded, this will result in the improved targeting of rehabilitative interventions for IPP prisoners. We are using a range of measures to improve the progression of these prisoners through their sentence, including improvements to assessment, sentence planning, and delivery and parole review processes.

I wrote to the noble Lord following Committee about the work that NOMS is doing to improve support for these prisoners, and I summarise the key points here. First, we plan to issue a prison service instruction that will require effective and realistic sentence plans to be put in place for all offenders on the new extended sentence and for IPP prisoners already in the system.

On the administration of support for IPP prisoners, there are already appropriate structures in place within NOMS to carry out this work. The Indeterminate Sentence Prisoners Co-ordination Group is the NOMS body responsible for co-ordinating the management of all indeterminate sentence prisoners—that is, lifers as well as IPPs. The group’s purpose is to develop and promote the most effective means of managing this group of offenders and to ensure that resources are directed effectively. For example, the group has mandated work to improve the speed of allocation to open prison and identify ways of increasing capacity in the open prison estate for the IPPs, and has co-ordinated the introduction of a new centralised system for organising their transfer.

On the specific amendment, I should make it clear that, as legislation currently stands, it would not be possible for the Secretary of State to produce or delegate anything other than sentence plans for these offenders that may or may not result in progress to a quick release on licence. Statutorily, only the Parole Board can actually direct the release of IPP prisoners on the basis of risk criteria. Amending that situation would be a substantial change to sentences that have already been imposed and would require primary legislation. In Committee, I made it clear that the Government do not believe that that would be appropriate. On the proposal that such plans should be delegated, I noted that it would be unusual for legislation to go into this type of detail about the administration of executive duties.

My noble friend Lord Thomas of Gresford proposed a requirement for the Secretary of State to report regularly to Parliament on IPP prisoner parole status and interventions. Information on the number of IPP prisoners whose tariff has expired is published in the quarterly offender management statistics published by my department. The Parole Board’s annual report publishes comprehensive data on its IPP application workload and backlog. I must resist the requirement to report on programmes in individual cases, as this would be hugely difficult to achieve. Offender managers will regularly review and update sentence plans.

Our recent research suggests that while the Parole Board will take account of the completion of accredited programmes when considering whether to direct the release of an IPP prisoner, this is only one part of the evidence that it will consider. Research shows that the parole process is targeted on the individual, and only programmes specific to the individual’s needs that are successfully completed and show some impact on the prisoner are likely to be taken as evidence of sentence progression. Simply counting completed courses will not be good evidence of how prisoners in general are progressing.

I hope that I have said enough to reassure the House that we have already put effective measures in place to support these prisoners’ progress towards release while keeping paramount our concerns for public safety. We have not introduced these reforms to the IPP system simply to see them fail. The biggest incentives for making sure that our reforms work are for the Ministers who brought them in, and we will be pleased to be judged by our results. I hope that both noble Lords will withdraw their amendment.

[Lord Thomas of Gresford]

My Lords, I believe that I should reply first. The Minister’s response was encouraging. He said that Ministers were here to be questioned. I shall make a note in my diary to put in a Written Question every six months, asking for the information—or something like it—that I seek in the amendment. It is very important that a close eye is kept on those who remain under an IPP sentence but whose tariff has expired. I beg leave to withdraw my amendment.

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Moved by

[Lord McNally]

154YV: Clause 120, page 98, line 46, at end insert “(including one imposed as a result of section 219A or 221A of the Armed Forces Act 2006)”

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[Baroness Hamwee]

My Lords, I am sorry that I was unable to take part in the debate in Committee.

The noble Baroness has spoken powerfully about a very serious subject. I share the views of those who responded to the consultation with some doubts about whether it was appropriate or necessary to change the law. These included key stakeholders such as Women’s Aid, Refuge, Liberty and the Local Government Association. I share their concerns about whether introducing a new law is realistic.

I do not know anyone who has gone into a relationship with the mindset that suggests checking up on the new partner through this sort of scheme. Most importantly, it could well be a distraction from the important work that still needs to be done in this area, but I will not spend more time on that. The thrust of the noble Baroness’s speech was about the pilots. If legislation was not needed for the pilots, legislation is not needed for their assessment. I would not lose faith in any Government if, having committed themselves to pilots, they would seek to avoid an evaluation and assessment. We have too much on the statute book. Let us see the evaluation of a pilot put in place on the basis of the law that we have now before Amendments 155 and 156 or anything like them. I will take my cue from my noble friend and put asking questions about it in my diary. I dare say that the noble Baroness, Lady Gale, will do the same. She has a great record for raising these issues, so she is not going to let this rest. Parliament is going to hear about it.

[Baroness Northover]

My Lords, when we debated these amendments in Committee my noble friend Lord McNally was able to tell the Committee how sympathetic the Government were to the thinking behind them, borne out of the circumstances of the tragic murder of Clare Wood by Clare’s ex-boyfriend who had previous convictions for violent offences. I pay tribute to Clare’s family and to the noble Baroness, Lady Gale, and others on this issue.

As the noble Baroness has flagged, the Home Secretary has announced the Government’s intention to pilot a domestic violence disclosure scheme for one year in the four police force areas of Greater Manchester, Gwent, Nottinghamshire and Wiltshire. The pilot will start this summer, and I hope that noble Lords will welcome it. The pilot, which is similar in spirit to that envisaged by the noble Lady’s amendment, will be established under existing police powers and test two types of process.

The first will be triggered by a request by a member of the public, in other words, a “right to ask”. The second will be triggered by the police, where they make a proactive decision to disclose the information in order to protect a potential victim, which we are calling a “right to know”. The Government believe that a disclosure scheme, which establishes a framework with recognised and consistent procedures for disclosing information, will enable new partners of previously violent individuals to make informed choices about how and whether they take that relationship forward. I note what my noble friend Lady Hamwee said on this, and it may be that she would prefer the second pilot.

The Home Secretary’s announcement follows a consultation held by the Government. A clear majority of respondents favoured the introduction of a national disclosure scheme. However, the consultation raised important issues about the scope and proportionality of the information that should be disclosed to potential victims, the safeguards that will be needed against malicious applications and the paramount need for the safety of victims to be taken into account. These are serious matters, and the Home Secretary has concluded that it is therefore right that these issues are addressed and tested in a pilot to ensure that the disclosure scheme is compatible with all relevant law and accounts for the safety and needs of potential victims. The Home Office is undertaking further scoping work to decide how the disclosure scheme will work.

Amendment 156ZA would require the Secretary of State to commission an independent review of the pilot and to publish its findings. I can confirm, as my noble friend Lady Hamwee indicated, that we will conduct an assessment of the domestic violence disclosure scheme as part of the pilot process and make our conclusions public. I hope that that reassures the noble Baroness, Lady Gale. The assessment will be used to inform decisions about whether the scheme should be expanded further after piloting.

The House may be assured that the Government’s aim is to end all forms of violence against women and girls. Soon after coming to office, we set out a new strategy to end violence against women and girls, and on 8 March we published an updated action plan in this area. The domestic violence disclosure scheme pilot announced by the Home Secretary is part of that updated action plan. The fact that approximately two people are killed by their current or former partner each week underlines the need for action. The Government believe that the domestic violence disclosure scheme will be an important additional tool that enhances the protection available to victims. I thank the noble Baroness, Lady Gale, for her work in this area, and I hope that with these reassurances she will be willing to withdraw her amendment.

[Baroness Gale]

I thank the Minister for her reply and the noble Baroness, Lady Hamwee, for her contribution to this debate. I agree that in the early stages of a new romance a woman is not likely to check on her new partner but, as time progresses, she may have queries and worries. We know the success of Sarah’s law. I am sure that the pilot and the assessment could provide a lot of evidence which would make it useful for rolling out throughout the country.

I am glad that the assessments about which the Minister spoke will be made public. As the noble Baroness, Lady Hamwee, suggested, we will be putting this in our diaries, checking up and asking questions. Certainly, at the end of the first year everyone will want to know the results of the assessment. I am glad that the Minister once again made the Government’s commitment to end violence against women. Both the previous Labour Government and the coalition Government have been committed to this and we have a lot in common. I do not think that there is much between us at all. I thank the Minister for her response. With that, I beg leave to withdraw the amendment.

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[Baroness Hayter of Kentish Town]

My Lords, I thank the noble Lord, Lord Ramsbotham, for continuing to bring this issue forward. It is a vital area and we should work to ensure that when people leave custody, they will have swift access to the benefits to which they are entitled.

As I mentioned in an earlier debate, we think of coming out of prison as something positive. However, it can be traumatic for people who rely on benefits in a system which they see as complicated, slow and sometimes unhelpful. One report has made the point that people who leave prison with no financial contingency and are highly reliant on the benefit system might, if not helped, return to crime, which has been a proven source of income for them in the past. We know that there have been delays and problems with pre-custodial claims which need to be resolved before a new claim can be made. There can be delays because a person has no fixed abode, and there are sometimes queries over the dates of prison admission and release dates. We know that eight in 10 prisoners are reliant on benefits and that one-third do not have access to a bank account, which makes any down payment for a new home particularly difficult.

Prisoners released over the next few years will come out to a whole new welfare system. The Welfare Reform Act will have changed things enormously, and even those claiming benefits before they went in will have to negotiate a whole new system of rules. There will also be the benefit cap, the bedroom tax and different units to which the payments are made. As the noble Lord, Lord Ramsbotham, said, although we welcome the advice given on the jobs programme, released prisoners will also need help with benefits if they are to survive when they come out.

This amendment, which I trust the Government will accept, will be good for prisoners. It will also be good for society and the state if it reduces the chances of reoffending and helps ex-prisoners to re-establish themselves in society.

[Baroness Northover]

My Lords, I, too, thank the noble Lord, Lord Ramsbotham, for continuing to examine the practical difficulties that some ex-prisoners face. We appreciate the difficulties that they may face when trying to resettle in the community and we have taken a number of steps to address these problems.

When the noble Lord, Lord Ramsbotham, withdrew his amendment in Committee, he expressed the hope that the Ministry of Justice and the Department for Work and Pensions would communicate more effectively on this issue. My noble friend Lord McNally wrote to my noble friend Lord Freud and I can give the noble Lord an absolute reassurance that our departments are working very closely to address the gap between release and receipt of benefits.

Prisoners’ needs are already often assessed on reception as part of the sentence plan. New prisoners are specifically asked about benefits by staff at induction and are referred to one of the 140 Jobcentre Plus employment and benefit advisers currently working in prisons. In addition, all prison leavers have their rehabilitation needs reviewed as part of the discharge process only weeks before release. It is this period close to release that is key to meeting resettlement needs, and that is where the Government have invested resources.

The Government are doing a great deal to overcome resettlement barriers and are currently implementing a strong package of measures. The key strategy to take this forward is the data-linking project which is being undertaken by the Ministry of Justice and the DWP. The project shows that more than half of offenders sentenced to custody are claiming benefits immediately prior to their incarceration, and two years after release from prison almost half are claiming out-of-work benefits. This is the scale of the task we face as we seek to make improvements to the process.

However, improvements are there. From 1 March, offenders leaving custody have their jobseeker’s allowance claims processed before they leave. We expect to reach some 30,000 prisoners a year. Jobcentre Plus advisers are rightly in the lead on providing advice and administering benefit claims, but they are working closely with prison staff to facilitate this process, including advice on financial support available prior to release. We believe that this is the right point at which to make assessments for eligibility.

We are also aiming to address the finance gap through our plans for universal credit payments. Under our proposals, an applicant, on leaving prison with a valid claim, can be paid his claim immediately through payment on account in the same way as any other benefit claimant. All of this is intended to help prison leavers get their benefits quickly and help increase their chances of finding work, which is also a key part of the Government’s agenda on reducing reoffending.

The noble Lord’s Amendment 156A would have prisons potentially duplicating the work of Jobcentre Plus. In addition, the process proposed by the amendment would require the Prison Service to conduct sometimes wasted work. A mandatory assessment of all offenders on entering into custody would either be premature—as the work done on entering prison is highly likely to need updating as the sentence continues—or not needed at all, if the personal circumstances of that person do not justify it.

The Government are fully committed to ensuring that ex-prisoners have the support they need to make a successful and productive return to society. The noble Lord, Lord Ramsbotham, is quite right in his aim in this respect. Our proposals on ex-prisoners’ access to welfare benefits are part of that commitment. I hope that what I have said today reassures the noble Lord and that he will withdraw his amendment.

[Lord Ramsbotham]

My Lords, I am grateful to the Minister for that reply. Just to correct her, I had no intention of duplicating any work; I was hoping that the Jobcentre Plus representative in prison would do the work while in prison so that it did not have to be done in the jobcentre outside prison. So it was early work by the jobcentre—nothing more by the Prison Service. I am very glad to hear that this has happened, and it is useful that, at last, the Department for Work and Pensions and the Ministry of Justice have come together, because this is a piece of joint working that could have been done years ago and would have saved a great deal of misery among released prisoners. Rather like the previous amendment, this is something on which the Government can expect to be questioned at fairly regular intervals in the future. Again, in that spirit, I beg leave to withdraw my amendment.

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Moved by

[Baroness Northover]

156B: Before Schedule 22, insert the following new Schedule—
“Dangerous offenders subject to service law etcPart 1Sentences for dangerous offenders subject to service law etcArmed Forces Act 2006 (c. 52)1 The Armed Forces Act 2006 is amended as follows.
2 After section 218 and the italic heading “Required or discretionary sentences for particular offences” insert—
“218A Life sentence for second listed offence
(1) This section applies where—
(a) a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct);(b) the corresponding offence under the law of England and Wales is an offence listed in Part 1 of Schedule 15B to the 2003 Act;(c) the offence was committed after this section comes into force; and(d) the sentence condition and the previous offence condition are met.(2) Section 224A(2) of the 2003 Act applies in relation to the offender.
(3) In section 224A(2)(a) of that Act as applied by subsection (2)—
(a) the reference to “the offence” is to be read as a reference to the offence under section 42; and(b) the reference to “the previous offence referred to in subsection (4)” is to be read as a reference to the previous offence referred to in subsection (5) of this section.(4) The sentence condition is that, but for this section, the Court Martial would, in compliance with sections 260(2) and 261(2), impose a sentence of imprisonment for 10 years or more, disregarding any extension period imposed under section 226A of the 2003 Act as applied by section 219A of this Act.
(5) The previous offence condition is that—
(a) at the time the offence under section 42 was committed, the offender had been convicted of an offence listed in Schedule 15B to the 2003 Act (“the previous offence”); and(b) a relevant life sentence or a relevant sentence of imprisonment or detention for a determinate period was imposed on the offender for the previous offence.(6) A sentence is relevant for the purposes of subsection (5)(b) if it would be relevant for the purposes of section 224A(4)(b) of the 2003 Act (see subsections (5) to (10) of that section).
(7) A sentence required to be imposed by section 224A(2) of that Act as a result of this section is not to be regarded as a sentence fixed by law.”
3 (1) Section 219 (dangerous offenders aged 18 or over) is amended as follows.
(2) For subsection (2) substitute—
“(2) Section 225(2) of the 2003 Act applies in relation to the offender.”
(3) In subsection (3) omit “and (3A)”.
4 In the heading of that section for “Dangerous” substitute “Life sentence for certain dangerous”.
5 After that section insert—
“219A Extended sentence for certain violent or sexual offenders aged 18 or over
(1) This section applies where—
(a) a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct) (whether the offence was committed before or after the commencement of this section);(b) the corresponding offence under the law of England and Wales is a specified offence;(c) the court is of the required opinion (defined by section 223); (d) the court is not required to impose a sentence of imprisonment for life by section 224A(2) of the 2003 Act (as applied by section 218A of this Act) or section 225(2) of that Act (as applied by section 219 of this Act); and(e) condition A or B is met.(2) Condition A is that, at the time the offence under section 42 was committed, the offender had been convicted of an offence listed in Schedule 15B to the 2003 Act.
(3) Condition B is that, if the court were to impose an extended sentence of imprisonment under section 226A of the 2003 Act as a result of this section, the term that it would specify as the appropriate custodial term would be at least 4 years.
(4) Subsections (4) to (9) of section 226A of the 2003 Act apply in relation to the offender.
(5) In section 226A(4) to (9) of the 2003 Act as applied by this section—
(a) the reference in subsection (6) to section 153(2) of the 2003 Act is to be read as a reference to section 261(2) of this Act;(b) the reference in subsection (7) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England and Wales;(c) the reference in subsection (8)(a) to a specified violent offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified violent offence; and(d) the reference in subsection (8)(b) to a specified sexual offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified sexual offence.(6) In this section “specified offence”, “specified sexual offence” and “specified violent offence” have the meanings given by section 224 of the 2003 Act.”
6 Omit section 220 (certain violent or sexual offenders aged 18 or over).
7 In section 221 (dangerous offenders aged under 18) for subsection (2) substitute—
“(2) Section 226(2) of the 2003 Act applies in relation to the offender.”
8 In the heading of that section for “Dangerous” substitute “Life sentence for certain dangerous”.
9 After that section insert—
“221A Extended sentence for certain violent or sexual offenders aged under 18
(1) This section applies where—
(a) a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct) (whether the offence was committed before or after the commencement of this section);(b) the corresponding offence under the law of England and Wales is a specified offence;(c) the court is of the required opinion (defined by section 223); (d) the court is not required by section 226(2) of the 2003 Act (as applied by section 221 of this Act) to impose a sentence of detention for life under section 209 of this Act; and(e) if the court were to impose an extended sentence of detention under section 226B of the 2003 Act as a result of this section, the term that it would specify as the appropriate custodial term would be at least 4 years.(2) Subsections (2) to (7) of section 226B of the 2003 Act apply in relation to the offender.
(3) In section 226B(2) to (7) of the 2003 Act as applied by this section—
(a) the reference in subsection (4) to section 153(2) of the 2003 Act is to be read as a reference to section 261(2) of this Act;(b) the reference in subsection (5) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England and Wales;(c) the reference in subsection (6)(a) to a specified violent offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified violent offence; and(d) the reference in subsection (6)(b) to a specified sexual offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified sexual offence.(4) In this section “specified offence”, “specified sexual offence” and “specified violent offence” have the meanings given by section 224 of the 2003 Act.”
10 Omit section 222 (offenders aged under 18: certain violent or sexual offences).
Part 2Consequential provisionJuries Act 1974 (c. 23)11 In Part 2 of Schedule 1 to the Juries Act 1974 (persons disqualified from jury service) in paragraph 6(d) after “2003” insert “(including such a sentence imposed as a result of section 219A, 220, 221A or 222 of the Armed Forces Act 2006)”.
Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27))12 In article 6(1) of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (sentences excluded from rehabilitation under the Order) in sub-paragraph (g)(iii) after “section” insert “226A, 226B,”.
Criminal Justice Act 1982 (c. 48)13 In section 32 of the Criminal Justice Act 1982 (early release of prisoners) in subsection (1A)—
(a) before “227” insert “226A or”, and(b) after “219” insert “, 219A”.Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)14 The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
15 In section 99 (conversion of sentence of detention to sentence of imprisonment) in subsection (6)—
(a) after “226” insert “, 226B”, and(b) after “221” insert “, 221A”.16 In section 106A(1) (interaction with sentence of detention) in the definition of “sentence of detention”—
(a) before “228”, in the second place it appears, insert “226B or”, and(b) before “222” insert “221A or”.Criminal Justice and Court Services Act 2000 (c. 43)17 The Criminal Justice and Court Services Act 2000 is amended as follows.
18 In section 62 (release on licence etc: conditions as to monitoring) in subsection (5)(f) after “221” insert “, 221A”.
19 In section 64 (release on licence etc: drug testing requirements) in subsection (5)(f) after “221” insert “, 221A”.
Sexual Offences Act 2003 (c. 42)20 In section 131 of the Sexual Offences Act 2003 (young offenders: application) in paragraph (l) before “222” insert “221A or”.
Criminal Justice Act 2003 (c. 44)21 In section 237 of the Criminal Justice Act 2003 (meaning of fixed term prisoner etc) in subsection (1B) after paragraph (b) insert—
“(ba) references to a sentence under section 226A of this Act include a sentence under that section passed as a result of section 219A of the Armed Forces Act 2006;(bb) references to a sentence under section 226B of this Act include a sentence under that section passed as a result of section 221A of the Armed Forces Act 2006;”.Armed Forces Act 2006 (c. 52)22 The Armed Forces Act 2006 is amended as follows.
23 (1) Section 188 (consecutive custodial sentences) is amended as follows.
(2) In subsection (2) in paragraph (c)—
(a) for “228” substitute “226B”, and(b) for “222” substitute “221A”.(3) In subsection (4) in paragraph (c)—
(a) before “228” insert “226B or”, and(b) before “222” insert “221A or”.24 In section 209 (offenders aged under 18 convicted of certain serious offences: power to detain for specified period) in subsection (7)—
(a) for “section 226(2)” substitute “sections 224A and 226(2)”, and(b) for “section 221(2)” substitute “sections 218A and 221(2)”.25 In section 211 (offenders aged under 18: detention and training orders) in subsection (4)—
(a) after “218,” insert “218A,”, and(b) for “222” substitute “221A”.26 In section 221(3) (dangerous offenders aged under 18) after “as applied” insert “by”.
27 In section 223 (the “required opinion” for the purposes of sections 219 to 222) in subsection (1)—
(a) for “220(1)” substitute “219A(1)”, and(b) for “222(1)” substitute “221A(1)”.28 In the heading of that section for “222” substitute “221A”.
29 For section 224 (place of detention under certain sentences) substitute—
“224 Place of detention under certain sentences
Section 235 of the 2003 Act (detention under sections 226, 226B and 228) applies to a person sentenced to be detained under section 226(3), 226B or 228 of that Act as applied by section 221, 221A or 222 of this Act.”
30 (1) Section 228 (appeals where previous convictions set aside) is amended as follows.
(2) For subsection (1) substitute—
“(1A) Subsection (3) applies in the cases described in subsections (1B) to (2).
(1B) The first case is where—
(a) a sentence has been imposed on any person under section 224A of the 2003 Act (as applied by section 218A of this Act);(b) a previous conviction of that person has been subsequently set aside on appeal; and(c) without that conviction, the previous offence condition mentioned in section 218A(1)(d) would not have been met. (1C) The second case is where—
(a) a sentence has been imposed on any person under section 225(3) of the 2003 Act (as applied by section 219(2) of this Act);(b) the condition in section 225(3A) of the 2003 Act was met but the condition in section 225(3B) of that Act was not; and(c) any previous conviction of the person without which the condition in section 225(3A) would not have been met is subsequently set aside on appeal.(1D) The third case is where—
(a) a sentence has been imposed on any person under section 226A of the 2003 Act (as applied by section 219A of this Act);(b) the condition in section 219A(2) was met, but the condition in section 219A(3) was not; and (c) any previous conviction of the person without which the condition in section 219A(2) would not have been met is subsequently set aside on appeal.(1E) The fourth case is where—
(a) a sentence has been imposed on any person under section 227(2) of the 2003 Act (as applied by section 220(2) of this Act);(b) the condition in section 227(2A) of the 2003 Act was met but the condition in section 227(2B) of that Act was not; and(c) any previous conviction of the person without which the condition in section 227(2A) would not have been met is subsequently set aside on appeal.”(3) In subsection (2)—
(a) for “Subsection (3) also applies” substitute “The fifth case is”; and(b) in paragraph (a) after “226” insert “of this Act”.(4) After subsection (3) insert—
“(3A) Subsection (3B) applies where—
(a) a sentence has been imposed on a person under section 224A of the 2003 Act (as applied by section 218A of this Act);(b) a previous sentence imposed on that person has been subsequently modified on appeal; and(c) taking account of that modification, the previous offence condition mentioned in section 218A(1)(d) would not have been met.(3B) An application for leave to appeal against the sentence mentioned in subsection (3A)(a) may be lodged at any time within 29 days beginning with the day on which the previous sentence was modified.”
(5) In subsection (4) for “Subsection (3) has” substitute “Subsections (3) and (3B) have”.
31 In section 237 (duty to have regard to the purposes of sentencing etc) in subsection (3)(b)—
(a) after “sections” insert “218A,”, and(b) before “225(2)” insert “224A,”.32 In section 246 (crediting of time in service custody: terms of imprisonment and detention) in subsection (6)(b)—
(a) before “228” insert “226B or”, and(b) before “222” insert “221A or”.33 (1) Section 256 (pre-sentence reports) is amended as follows.
(2) In subsection (1)(c)—
(a) for “220(1)” substitute “219A(1)”, and(b) for “222(1)” substitute “221A(1)”.(3) After subsection (9) insert—
“(10) The reference in subsection (1)(a) to a court forming any such opinion as is mentioned in section 260(2) or 261(2) includes a court forming such an opinion for the purposes of section 218A(4).”
34 (1) Section 260 (discretionary custodial sentences: general restrictions) is amended as follows.
(2) In subsection (1)(b)—
(a) before “225(2)” insert “224A,”, and(b) before “219(2)” insert “218A,”.(3) After subsection (4) insert—
“(4A) The reference in subsection (4) to a court forming any such opinion as is mentioned in subsection (2) or section 261(2) includes a court forming such an opinion for the purposes of section 218A(4).
(4B) The reference in subsection (4) to a court forming any such opinion as is mentioned in section 261(2) also includes a court forming such an opinion for the purposes of section 226A(6) or 226B(4) of the 2003 Act (as applied by section 219A or 221A of this Act).”
35 (1) Section 261 (length of discretionary custodial sentences: general provision) is amended as follows.
(2) In subsection (1)—
(a) before “225” insert “224A,”, and(b) before “219(2)” insert “218A,”.(3) In subsection (3) for “220, 222” substitute “219A, 221A”.
36 In section 273 (review of unduly lenient sentence by Court Martial Appeal Court) in subsection (6)(b)—
(a) before “225(2)” insert “224A,”, and(b) before “219(2)” insert “218A,”.37 In section 374 (definitions applying for purposes of the whole Act) in the definition of “custodial sentence” after paragraph (e) (but before the “or” at the end of that paragraph) insert—
“(ea) a sentence of detention under section 226B of that Act passed as a result of section 221A of this Act;”.Counter-Terrorism Act 2008 (c. 28)38 In Schedule 6 to the Counter-Terrorism Act 2008 (notification requirements: application to service offences) in paragraph 5(1)(a) after sub-paragraph (vi) (but before the “or” at the end of that sub-paragraph) insert—
“(via) detention under section 226B of that Act (extended sentence of detention for certain dangerous offenders aged under 18);”.Part 3Transitory provision39 (1) In relation to any time before the repeal of section 30 of the Criminal Justice and Court Services Act 2000 (protection of children: supplemental) by Schedule 10 to the Safeguarding Vulnerable Groups Act 2006, that section has effect with the modification in sub-paragraph (2).
(2) In subsection (1), in paragraph (dd) of the definition of “qualifying sentence”, after “2003” insert “(including such a sentence imposed as a result of section 221, 221A or 222 of the Armed Forces Act 2006)”.”

--- Later in debate ---

[Lord Bach]

My Lords, from the opposition Front Bench I thank the noble Lord for the impressive way in which he moved the amendment, and an impressive amendment it is too. He could not have put the case better. We look forward to hearing what the Minister has to say in reply, and we would be very surprised if it is not sympathetic.

[Baroness Northover]

My Lords, I, too, thank my noble friend Lord Sharkey for putting his case, and indeed I have deep sympathy for it. The amendment appears to extend the provisions contained in the Protection of Freedoms Bill so that they are also available to those who are no longer alive. The provisions in that Bill allow a person to apply to have his historic convictions for consensual gay sex with over-16 year-olds deleted from official records, the effect of which is that those convictions will no longer affect that person’s life or career. This was a commitment made in our programme for government. However, the objective is not to rewrite history. The provision in the Protection of Freedoms Bill does not state that the person was wrongfully convicted, nor does it pardon them. It is just that they can now be treated for all purposes in law as someone who was not convicted of those offences.

The position in relation to those who have been convicted of this type of offence and have since died is different. I understand the strength of feeling about such convictions, and the cruelty of the laws under which they were imposed, and I know that this is particularly true in relation to the conviction of Dr Alan Turing. As Gordon Brown said in 2009, while we cannot put the clock back, we recognise that his treatment was utterly unfair and we are all deeply sorry for what happened to him. He deserved so much better. That said, I do not believe that the provisions for disregarding convictions, which are concerned with the practical consequences of conviction, are an appropriate means of putting right the wrongs done to people who are no longer alive to suffer those consequences. As my noble friend himself points out, the numbers involved are potentially very large. I understand his aim, but I am afraid that we cannot agree to his amendment. I realise that he will be disappointed, but I am afraid that I must invite him to withdraw his amendment.

--- Later in debate ---

[Lord Faulkner of Worcester]

My Lords, this has been quite a long journey. I first asked an Oral Question on 3 October last year, arguing the case for cashless transactions and the necessity of amending the Scrap Metal Dealers Act 1964. On 10 November, in a Remembrance Day debate initiated by the noble Lord, Lord Selkirk, a number of noble Lords, including me, spoke about the despicable theft of war memorials for their scrap metal value.

The Bill we are debating tonight received a Second Reading in your Lordships’ House on 21 November, and I gave notice of my intention then to table the amendment which appears today on the Marshalled List. I drew attention to ACPO’s estimate that the national cost of metal theft was £770 million. I also referred to the 16,000 hours of delays suffered by rail passengers over the past three years caused by the theft of signalling cable, and to other examples of metal theft such as lead from church roofs, manhole covers, telephone wire and works of art.

Since then the scale of the problem has continued to grow, and every week brings fresh accounts of new theft. Last week, for example, my own local newspaper, the Worcester News, reported that 350 metres of BT underground copper cable had been stolen, which cut off telephone and broadband service in one of the major districts of the city. Numerous heritage railways have written to me to say that scores of metal items such as rails, lamps and even a fork-lift truck have been stolen for their scrap value.

I have another press report dated 1 March saying that seven churches are being targeted and robbed every night for the lead on their roofs; and in a new twist Network Rail reports that, in recent signalling cable thefts on the Cotswold line between Oxford and Worcester, the theft of a 650-volt distribution cable had been concealed by the insertion of a short length of domestic cable in its place—an incredibly dangerous manoeuvre. On it goes.

To his credit, the Minister has indicated that he is determined to do something about it, as did his predecessor, the noble Baroness, Lady Browning. I am particularly grateful to her, and to the right reverend Prelate the Bishop of London, for putting their names to Amendment 156D, and for their stamina in staying here at this late hour tonight.

The Home Secretary announced in a Written Statement on 26 January that government amendments to the Bill would be tabled to,

“create a new criminal offence to prohibit cash payments to purchase scrap metal; and significantly increase the fines for all offences under the existing Scrap Metal Dealers Act 1964”.—[Official Report, 26/1/12; cols. WS 80-81.]

The Minister may be aware that I immediately issued a statement warmly welcoming that announcement. It took a long time for the government amendments to appear, but last week they finally did, and we are debating them now as Amendments 157F, 157G and 157J.

What the Government are proposing is fine except for one baffling respect. For reasons that have not been properly explained so far, they are proposing an exemption for itinerant sellers. As I understand it, that will mean that the sale of metal to an itinerant collector will not have to be recorded, whether it is a householder getting rid of some unwanted domestic appliance or a metal thief using the itinerant as a way of getting into the chain. By proposing that exemption, the Government are opening up a serious loophole that could undermine much of the benefit that their move towards cashless transactions will create.

My understanding is that it is not difficult to register under the Scrap Metal Dealers Act 1964 as an itinerant collector, which is defined in that Act as,

“a person regularly engaged in collecting waste materials, and old, broken, worn out or defaced articles, by means of visits from house to house”.

While there may not be too many of those registered at the moment, surely there is a risk that there will be many more once word went round that this was a way to avoid the cashless requirement of being a scrap-metal dealer.

The Minister will be aware that the itinerant seller exemption has caused alarm among many in the industry. For example, SITA, to which both the Minister and I have paid visits in recent months to discuss this legislation, said this in its latest briefing:

“There is no reason why a cashless system cannot be implemented by bona fide itinerant collectors, along with the rest of the scrap metal industry … Moreover, the requirement for a cashless transaction between the itinerant collector and a scrap metal merchant will in any event necessitate the former to maintain a bank account with provision for electronic or cheque payment. It is therefore illogical to exempt the initial transaction between the seller and the itinerant collector, but to (rightly) mandate a cashless transaction for the on-sale of the material to a scrap metal dealer. Traceability over the entire chain, from seller to intermediary to dealer, will be broken along with proof of provenance of the metal presented for sale”.

That is a pretty convincing argument and is why I have tabled my own Amendment 157H to the government amendment to delete the exemption. I shall listen very carefully to the Minister's response to these points before deciding whether to press that amendment. In particular, I hope that I will hear him say that the Scrap Metal Dealers Act will be replaced by an entirely fresh piece of legislation to be introduced in the new Session. That could deal with all the issues relating not just to itinerant sellers but to the registration and licensing of the trade generally. Meanwhile, it would be churlish of me not to welcome the Government’s acceptance of the argument that I first put forward almost six months ago that an essential first step in tackling the epidemic of metal theft is to move to cashless transactions and to increase the penalties for persons committing this appalling, anti-social and dangerous crime. I beg to move.

[The Minister of State, Home Office (Lord Henley)]

It might be useful if I intervene at this stage. In doing so, I want to make it quite clear that I hope other noble Lords will intervene after me despite the fact that this is Report. This is purely because I have amendments in this group and it might speed up the process by which we debate these matters.

I pay tribute to the noble Lord, Lord Faulkner of Worcester, for all that he has done. We have listened to him and, as he knows, we have responded as much as we can in due course. I also want to make it quite clear that we in the Government recognise what a serious problem it is. I cannot list in detail the individual Peers, Members of the Commons and others who have been to see me. The right reverend Prelate the Bishop of London was the first to come and see me to highlight the problem relating to the churches. Obviously, this problem goes beyond the churches and beyond art theft; we all know about that Barbara Hepworth that was stolen recently. This affects communities and businesses throughout the country. We have seen damage to our infrastructure, to the railways, to communications and so on again and again and that damage is very great indeed. The noble Lord quite rightly cited an estimate of some £700 million. That is probably the effect on business and the community as a whole. What is depressing is how little money it actually brings in to the thieves themselves. The Barbara Hepworth that I mentioned, insured for £500,000 or £1 million or whatever, will have gone to some scrap-metal yard and been ground down and sold off for literally a matter of a few pounds. The real problem arises in the scrap-metal yards in that whoever was the first person to receive that—the first fence as it were—must have known that property was as hot as you can get because you do not often get Barbara Hepworths being brought in; they are not something you happen to find on the side of the road. So that is the problem and that is why the Government believe they should take urgent action.

That action can be taken in a number of different ways. The first and most important one is enforcement. The Government have made it quite clear that we want to address enforcement. My right honourable friend the Chancellor of the Exchequer announced late last year that there was an extra £5 million of funding for a new dedicated metal theft task force. The British Transport Police has taken the lead and is doing a great deal of work on this. In certain parts of the country we have seen great improvements in enforcement. I recently visited the north-east and saw what it was doing in terms of Operation Tornado, improving enforcement and increasing the number of arrests and cash seizures from the scrap-metal industry. That is happening throughout the country. Enforcement is one strand of what we must do and there are other things that we can do in terms of design and hardening objects so that they are less easily stealable or more traceable. However, we have concluded that legislation of one form or another is the only sustainable long-term solution to the growing menace of metal theft. That is why we have put down these amendments. They are similar to the amendments the noble Lord has put down but I have to say, as I always would, I think the government amendments are superior to his and I hope he will accept them in due course.

I want to keep my remarks brief, but will explain that the new amendments create a new criminal offence to prohibit cash payments to purchase scrap metals. We believe that at the moment it is just too easy for someone having stolen something to convert that something into cash, no questions asked. They also significantly increase the fines that are available for the majority of the offences under the Scrap Metal Dealers Act 1964, which regulates the scrap-metal-dealing industry. That is important. It only goes some way because, as I have said on a number of occasions, we believe that the Scrap Metal Dealers Act is not now fit for purpose but that it is worth at least upgrading the offences under that Act. But one should always remember that under the old Theft Act 1968 there is an offence of seven years for theft and more importantly, as I said earlier, under handling we have some 14 years available.

[Lord Campbell-Savours]

The story in the Commons is that the Government are saying that that subsequent legislation will be brought in under the Private Member’s Bill procedure in the House of Commons. Is that true?

[Lord Henley]

My Lords, I do not believe all stories that I hear, either in this House or in another place. I was going to come on to what we will do with scrap- metal dealers in due course. To put it briefly, we have found this opportunity under this legislation to make a number of changes, but we cannot completely redo the Scrap Metal Dealers Act under this legislation because of the scope of the Bill. We will certainly look at all legislative opportunities in the new Session to see how we can revise the Scrap Metal Dealers Act. All that I and other colleagues have said is that we believe that the Scrap Metal Dealers Act is no longer fit for purpose; it is past its sell-by date. How we revise that legislation, we will have to address in the new Session.

I have spoken of the first two changes that we are bringing in as a result of the Bill: making cash payments illegal and increasing fines under the Scrap Metal Dealers Act. Thirdly, we want in this Bill to revise the police entry powers to ensure compliance with the new offence. That, again, is something that will make the whole enforcement procedure easier for the police.

[Lord Roberts of Conwy]

Can the Minister confirm that even under his amendment itinerants can still have scrapyards of their own? Can they still have cash transactions and still not be inspected except under warrant?

[Lord Henley]

I shall come on to the question of itinerants in due course. It is something addressed by Amendment 157H in the name of the noble Lord, Lord Faulkner. I will deal with it in some detail because it is important, as there has been a degree of misunderstanding about that point.

We are bringing forward these three changes under the Bill, and they are just a first step in taking forward a coherent package of measures to tackle all stages of the illegal trading of stolen scrap metal. In response to the noble Lord, Lord Campbell-Savours, I can give an assurance—although I cannot give a timescale for this—that we shall bring forward further measures in due course. We believe that going cashless, which is the crucial part of this amendment, will remove the “no questions asked” culture that allows low-risk criminal enterprise for metal thieves and unscrupulous dealers. That is something that we want to deal with.

I turn to Amendment 157H, tabled by the noble Lord, Lord Faulkner, as an amendment to government Amendment 157G. It removes the exemption for itinerant collectors—and I make it clear that it is purely itinerant collectors whom we are dealing with—who have an order in place under Section 3(1) amending the record requirements that apply to them. Let me make clear that this is not a blanket exemption. Only itinerant collectors who are subject to an order under Section 3(1) of the Scrap Metal Dealers Act 1964—an Act that I described as being past its sell-by date, but it is still what we have—coming from their local authority and approved by the local chief officer of police will be exempted. This will be a modest number of individuals who will be known to both the police and their local authority. They will also be bound by environmental regulations with the need to have a waste carrier’s licence under the Waste (England and Wales) Regulations 2011.

Most importantly, no itinerant collector will receive cash from the scrap-metal industry on which they are reliant for selling scrap to. Travelling around the streets picking up scrap, they will, when they take it on to the scrap yard, have to have that payment made not in cash but by some other means. Their transactions will be traceable for the first time, with the scrap-metal industry recording details of the transaction and the payment method and to whom that payment is made.

I hope that that assurance will be sufficient to allow the noble Lord to understand that I do not think his amendment is necessary. It might be that we will have to come back to this at Third Reading, but I hope that on this occasion he will accept that we have got it more or less right and that some of the reporting of the exemption for the so-called itinerants is not exactly what he thought it was.

[Lord Berkeley]

Can the Minister clarify Section 3(1)(a) of the Scrap Metal Dealers Act 1964? It seems a bit odd that the only condition required of these people is that they,

“obtain from the purchaser a receipt showing the weight of … scrap metal comprised in the sale”.

We have all had receipts from people for getting things like that, probably without even a piece of carbon paper between the two. Why is it necessary to give such people an exemption when the only condition I see here is that they get a scrappy piece of paper as a receipt? It seems to be left wide open to shove things in a container and send them off to China without any paperwork at all.

--- Later in debate ---

[Lord Henley]

My Lords, first, they are not going to be shoving it into a container. This is, as it were, the rag and bone man going around collecting metal in the street. If he wants to get money for it, he is going to have to take it to a scrap yard. He is not going to get money for it by any other means. At that point, the provisions we are debating come into effect. If the noble Lord feels that we are creating an exemption that will create a loophole and drive a coach and horses through what we are doing, just by this small means of exempting the itinerants going around, he has probably got it wrong. He obviously does not accept what I have to say, but I think that he has misunderstood where we are coming from.

[Baroness Browning]

My Lords, I am grateful to the Minister for the explanation that he has given to the whole House, particularly in respect of the amendment tabled by the noble Lord, Lord Faulkner of Worcester, about itinerant collectors. However, I was pleased to add my name to Amendment 156D because, as my noble friend will be aware, the overall increase in metal theft is very clearly parallel to the rising cost of metals around the world. It is a world market, and the theft of the more valuable metals, such as copper, has particularly increased as the world price has gone up.

However, I remind my noble friend—not least in the context of the welcome news that we have in the government amendments tonight and the proposal completely to reform and amend the existing scrap metal Act—that it is very clear from the evidence from ACPO and others that scrap-metal theft is part of organised crime in this country. It is very easy to think that these are just opportunistic thefts, when people happen to see something that they might take on a dark night, and that sort of thing, but that is far from the case. Given that it is part of organised crime, I hope that my noble friend, in looking to get to grips with the reform needed in this area, will bear in mind the fact that very often it is the criminals who organise the people who, in practice, carry out the theft who make the most money. They orchestrate others: sometimes people who, I am quite sure, are fully aware that they are carrying out a criminal act but who themselves are not necessarily the beneficiaries of the full amount of the value of that scrap.

Reference was made just now to the Hepworth statue and how its melt-down value would not have been very much in comparison to its insurance value. The right reverend Prelate, on behalf of the churches, made very clear the overall cost to churches when they are robbed of the lead on their roofs, very often not just once, and the difficulty with insurance going up. The cost of these crimes is not just the melt-down value of the metals. It is also the consequential losses.

I would also respectfully remind my noble friend of the developing pattern in metal theft of what is referred to as rare earth. Very small quantities of these valuable metals can raise significantly more than copper and other more traditional metals. They are the sort of metals found in wind turbines and electricity generating stations. They are now starting to appear because yet again their value on the world market has gone up. Any reform to the scrap-metal act needs to take account of current trends, which are moving away from some of the more traditional metals to some of these more sophisticated metals.

I welcome the Government’s move to take out the question of this being a cash-based business—and one hesitates almost to use the word “business” in this context, but I suppose one must. They should bear in mind in any changes that they are bringing in to cover these wider issues that there is a sense of urgency about the need for more radical change. That change, if it is to address the increasing problems that we have, must look to those trends and to the future.

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[Lord Berkeley]

My Lords, I congratulate my noble friend Lord Faulkner on taking this matter forward with so much pressure and commitment. My concern is that we seem to be discussing a parallel universe. The people in the BMRA, referred to by the noble Lord, Lord Roberts, do everything according to the book, and we are very grateful to them. However, I believe that there is the growing involvement of organised crime in this, as the noble Baroness, Lady Browning, said.

I have heard quite a lot of evidence about the way in which containers can disappear overseas without anyone knowing what is in them. It is not very difficult, especially if you do not live in a leafy part of Surrey or Buckinghamshire, to hide containers, and itinerant scrap merchants can get the metal into containers without anyone knowing very much. Perhaps the money comes from overseas. As many noble Lords said, the problem will grow. In the short term, the only solution is to support my noble friend’s amendment to get rid of this major loophole.

[Lord Henley]

My Lords, perhaps I may sum up the debate and address some of the points. Earlier I paid tribute to the noble Lord, Lord Faulkner, for all that he had done on the matter. I also pay tribute to my noble friend Lady Browning, who was the Minister who dealt with this before me. Only a few days before she unfortunately resigned and I moved to the Home Office, she summoned me and a host of other Ministers to the Home Office to discuss what we could do government-wide to address the problem. As a Defra Minister with a considerable interest in recycling and associated matters, I went along and said that it was possible that we might be able to do something through the Environment Agency. Soon after I left the meeting, my noble friend moved on and I found myself moving to the Home Office and in effect writing a letter from myself to myself to try to address these problems.

I am grateful for all that my noble friend did, and for the fact that she has now underlined some of the other problems that are beginning to appear in this matter. She referred to the problems with rare earths. I was recently in the north-west at a meeting dealing with truck theft. Truck theft is obviously very serious in terms of trucks and their contents being stolen, but certain bits of the trucks are also stolen to get the rare earths from, such as silencers, which can be of considerable value and whose theft can cause enormous problems.

I pay tribute to everything that my noble friend has done to highlight these problems. Similarly, I pay tribute to what the right reverend Prelate had to say and thank him for coming to see me to highlight the serious problems that the church is facing, particularly with the theft of lead roofs and with getting insurance on a great many church properties because of what is going on.

The noble Lord, Lord Campbell-Savours, asked me to comment on House of Lords reform. At this time of night, that is beyond my pay grade and I am not going to deal with it, but no doubt we will have further opportunities to discuss it in due course. He talked about the need for consolidated reform. I agree with him; I would like that in due course. I have made it clear that what we are doing at this stage is bringing forward the first stage of a package to get coherent reform in this area. It would not be right to delay the first few steps of that, as the noble Lord is suggesting, purely because we cannot get on to the other bits; we will get to those other bits in due course.

The noble Lord also said that the industry says that this will not work. Like the noble Lord, I have talked to the industry. I have addressed the BMRA; I have been to its annual parliamentary reception. The BMRA has made it quite clear to me that it welcomes virtually every aspect of reform. The only aspect that it is not terribly keen on is getting rid of cash. As someone else once said, “They would say that, wouldn’t they?”. I happen to think, as do most people in this House, that getting rid of cash from these transactions is a very useful thing to do and something that we ought to address.

The noble Lord made two other points that ought to be addressed. He asked about itinerants. I made it quite clear in my opening remarks that only itinerant collectors who are subject to an order under Section 3(1) of the Scrap Metal Dealers Act from their local authority, approved by the local chief officer of police, will be exempted. If they are also a scrap dealer and they have a yard, they will no longer fall within that definition of being an itinerant trader and therefore they will not be exempt. We are only talking about a very small number of people, who will be covered by the regulations that are in place at the moment. They are regulated.

[Lord Campbell-Savours]

The Minister seeks to reassure us, but what happens if over the next few years there is a noticeable shift in favour of itinerant collectors and the illegal trade? Will the Government come back to amend the legislation or will they review it?

[Lord Henley]

My Lords, we have made it quite clear that we are going to review it. We are going to keep this under control. The noble Lord is forgetting how few of these itinerant traders there are. They are not the people with the yards; they are people who are already regulated. The minute they have a yard they cease to qualify as an itinerant trader. It is as simple as that.

[Lord Berkeley]

Can the noble Lord say how many there are? He says that there are very few, but is it 10, 100 or 1,000? It would be very helpful if he could say.

[Lord Henley]

My Lords, I cannot give the noble Lord that figure without notice. I have no idea. I imagine that it might be possible, at disproportionate cost, to find out the number. All I am saying is that if they want to be an itinerant trader of that sort, they need a licence from their local authority and that has to be approved by the police. There is a very strict control on that particular aspect.

The noble Lord, Lord Campbell-Savours, rightly pointed to another problem—displacement. Could some of this go to Scotland? We are well aware of this problem. As the French discovered when they introduced a similar system, there was a danger that things would cross the border into Belgium and Germany. I have discussed this with colleagues in Northern Ireland and Scotland, although Scotland is more important, as there is a land border. Our colleagues in Scotland are well aware of what we are doing and are in full consultation with us. They will try to make sure that whatever they do keeps in line with what we wish to do.

The noble Lord is, for honourable reasons, merely seeking delay—delay that I am sure the BMRA would think was a worthy object to achieve. However, we do not think that it is right. We think that it is right to get rid of cash as soon as possible from this industry and that that will make a difference.

The last point that I want to address is that made by my noble friend Lady Hamwee about timing. I am afraid that I cannot give any categorical assurances to her about when and how we will get that further legislation. However, I make it clear, as my honourable friends in another place have done, that this is the first part of the package. We want to continue taking forward a coherent package to deal with all the other matters in the future, but I cannot give her any guarantee about timing.

[Baroness Hamwee]

My Lords, I did not expect my noble friend to be able to help me with regard to future legislation. I am sorry that I did not make myself clear. I was asking about commencement of these provisions, which will shortly find their way into the Bill and the Bill will no doubt shortly make its way on to the statute book. I am concerned about the current provisions.

[Lord Henley]

My Lords, these provisions will come into effect soon after Royal Assent, but I will check up on that and allow my noble friend to have the precise answer in due course.

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[Baroness Northover]

My Lords, my noble friend Lord McNally has explained in previous debates why Clause 136 is important to the Government. If somebody stole a car, a handbag or a phone, most people would expect there to be criminal consequences if the offender were caught. Yet, where squatters deprive a person of their residential property, some do not regard this as a crime. We do not accept that logic. The occupation of other people’s homes causes misery, and squatting in residential property should be a criminal offence.

[Lord Bach]

My Lords, I am sorry to interrupt the noble Baroness so early in her comments, but it is a crime. The Criminal Law Act 1977 makes it a crime. Why does she insist that it is not?

[Baroness Northover]

I will come to that in a minute. As I say, occupation of other people’s homes causes misery, and squatting in residential property should be a criminal offence just as the theft of a car would be.

Nor do we agree that squatting is a reasonable answer to homelessness, which is the key point here. In fact it is often dangerous and bad for health, and ideally people should be in mainstream services. We share my noble friend’s concern about homelessness, but squatting is not the answer.

We are therefore proposing a balanced approach: clamping down on the squatting in residential buildings on the one hand, while ensuring that genuinely vulnerable people who might be at risk of squatting or rough sleeping are given the support that they need to find alternative forms of accommodation. We are investing £400 million in homelessness prevention over the next four years, with the homelessness grant being maintained at 2010-11 levels. We also announced in December the first ever £20 million fund to prevent single homelessness. That will help to ensure that single homeless people get the help and advice that they need, and do not have to resort to sleeping on the streets or in squats.

We have also brought together eight government departments through the Ministerial Working Group on Homelessness to tackle the complex causes of homelessness. The group published its first report, Vision to End Rough Sleeping, in July 2011, which sets out joint commitments to tackle homelessness. The working group will publish its second report on preventing homelessness later this spring.

We are also tackling the number of empty homes that often attract anti-social behaviour, vandalism and squatting. We recently announced £70 million of funding to bring more than 5,600 homes back into use as affordable housing. We will announce a further £30 million shortly, including funding for community and voluntary groups.

My noble friend’s Amendment 157A would exempt squatters who occupied buildings that had been empty for a year or more. We believe that that is wrong in principle. We would not accept that after a year of non-use it would be defensible to deprive owners of their other assets such as cars or phones. Moreover, there are many legitimate reasons why a residential building might be left empty for a year or more—for example, when a property is inherited following a death and probate takes some time to be sorted out.

The amendment would also make the offence more difficult to enforce as it would enable squatters facing a charge to argue that the property had been empty for years even if they had no idea whether that was true. Instead of legal arguments turning on the true issue at stake—the criminal occupation of somebody else’s residence—this would muddy the water and put the focus back on the police or the home owner to show how long it had been empty for.

Amendment 157B would remove the definition of “building”, leaving it unclear what “building” in the offence covers and leading to legal arguments on this matter. Amendment 157C would delete the definition of “residential” in Clause 136 and replace it with a new definition. The only residential buildings which would be covered by the offence as a result of the new definition would be those which are used for the purposes set out in class categories C3 and C4 of the Town and Country Planning (Use Classes) Order 1987.

The amendments would introduce confusion and complexity. The advantage of the existing clause is that any structure—permanent or temporary, moveable or immoveable—is covered by the offence if it has been designed or adapted for use as a place to live.

My noble friend’s Amendment 157D would further weaken the offence by exempting squatters who entered a building prior to commencement of the offence. This would clearly not be in the interests of home owners. It would not make sense if an offender who entered a property the day before commencement, for example, could not be convicted if they continued to live in the premises against the wishes of the property owner after the offence commenced.

Amendment 160B suggests that the Secretary of State should report to Parliament prior to commencement on likely costs of the new offence to the criminal justice system and local authorities. We published an impact assessment which included costs to the criminal justice system. The impact assessment also recognised that there might be an impact on local authorities if squatters approached them for support. Requiring the Secretary of State to report further on these issues prior to commencement is therefore not necessary.

I know that when my noble friend met the Parliamentary Under-Secretary of State, Crispin Blunt, one of her main fears was that there would be a surge in applications for social housing in the days following commencement. We have taken my noble friend’s point on board. I can assure her that through the Ministerial Working Group on Homelessness, the Department for Communities and Local Government, the Ministry of Justice and the Home Office will work together to ensure that any local enforcement against squatting is carried out in partnership with local homelessness services to mitigate against an associated increase in rough sleeping.

We will also liaise with local authorities in advance of commencement to ensure that they are aware of the new offence if squatters approach them for help and to remind them of their duties towards homeless people. We will encourage authorities to make use of the good practice advice letter and an additional £20 million of funding to prevent single homelessness, both of which have been developed recently with input from Crisis.

My noble friend Lady Hamwee and the noble Lord, Lord Bach, asked about the current law and why this was not sustained by what was already there. Why the need for a new offence? The current law can be improved so that it does more to deter squatters from entering and occupying a residential building without permission in the first place. We believe that there should be a specific criminal offence that protects people from those who squat in their residential buildings and that this offence should not be limited to cases where a squatter refuses to leave when required to do so. In addition, the offence under Section 7 of the Criminal Law Act 1977 does not protect residential property owners who are not displaced occupiers or protected intending occupiers. Currently, they may need to seek repossession of their properties in the civil courts, which can be time-consuming and expensive. That is why we feel that the law needs to be changed.

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[Baroness Miller of Chilthorne Domer]

My Lords, I thank all noble Lords who have not only stayed but spoken so passionately that it makes up in quality for what we did not have in numbers. Several other noble Lords who were not able to stay have expressed their sadness about that. The noble Baroness, Lady Lister, spoke extremely powerfully. In one way I am glad she was not able to speak in Committee because it gave us the chance to hear some of the arguments lying at the very basis of this issue. It is important to remember, as she outlined, that this is about homeless people. I was disappointed by the Minister’s reply when she kept emphasising the occupation of someone else’s residence or home. These are not residences or homes, by and large; they are simply empty properties. This is the basis of the misunderstanding and it is what I have tried to get to the bottom of.

I am grateful to the noble Lord, Lord Howarth, for his support and to my noble friend Lady Hamwee who, as always, asked some very incisive questions, some of which I do not feel were fully answered tonight. The noble Lord, Lord Bach, is quite right when he says that I took his advice on extending the six months suggested by Crisis to 12 months, because that puts it beyond doubt that the property is empty. In fact, there are definitions, as my noble friend Lady Hamwee said, of an empty property, and my amendment is more modest than those.

I have not heard anything new from the Minister tonight about the transition measures. She mentioned that local authorities would be approached by those being criminalised, but I wonder whether she is aware—

[Baroness Northover]

I had a long list of other measures that have been taken, but I thought that the best thing might be to write to the noble Baroness with that rather than detain people too long tonight.

[Baroness Miller of Chilthorne Domer]

I am grateful to the Minister for that suggestion. Is she saying that the issue is still live and can therefore come back on Third Reading?

[Baroness Northover]

As I said to the noble Baroness, I am very happy to arrange a meeting to take this forward. Then we will have to see where we are at that point.

[Baroness Miller of Chilthorne Domer]

Can she give me an assurance that it will be possible to come back on this at Third Reading on the basis of that? Can the Minister clarify what she is saying? She says that she has a list of other measures, but we will not know what they are this evening because she is not reading them out. We will need to know what they are before we decide what to do. She will need to go through the list.

[Baroness Northover]

My understanding is that having left it open it is still open.

[Baroness Miller of Chilthorne Domer]

I am grateful to the Minister for clarifying the fact that it is still open. Therefore, it is free for me to bring the matter back before your Lordships at Third Reading.

[Baroness Miller of Chilthorne Domer]

I would be pleased to ask her again, because it is very important before I make a decision on what to do with this amendment.

[Baroness Northover]

My noble friend says that we have discussed the possibility of meeting and considering this further. I gave her the assurance that this was still open because that was what I was informed, and I reiterate that assurance.

[Baroness Miller of Chilthorne Domer]

I am grateful to my noble friend. I suspect that that is as far as we can go this evening. I have to say on the record that if I find that the agreement does not hold, I shall have to consider my position very carefully.

I still want to put on record the point that I was about to make because it is very pertinent. The Government should not be under any illusion that local authorities will be in a position to help those who present themselves to them as homeless. I quote from the Crisis report:

“Most are also recognised as homeless by the LA (78 per cent) but few are entitled to accommodation under the terms of the homelessness legislation, typically because they are not considered ‘priority need’, or are deemed ‘intentionally homeless’”.

That leaves thousands of young and middle-aged people in this country potentially being criminalised. We have not heard what measures the Government will put in place tonight to mitigate that. I am in some doubt as to whether we will be able to return to this issue, but I am sure that when the House reads this debate it will be the will of the House that we return to it. In the mean time, I beg leave to withdraw the amendment.

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Moved by

[Lord McNally]

157F: After Clause 136, insert the following new Clause—
“Scrap metal dealing: increase in penalties for existing offences
(1) The Scrap Metal Dealers Act 1964 is amended as follows.
(2) For the following words (which have effect as references to a fine not exceeding level 3 on the standard scale) substitute in each case “a fine not exceeding level 5 on the standard scale”—
(a) in section 1(7) (dealer failing to register) the words from “a fine” to the end;(b) in section 2(6) (dealer failing to record dealings) the words from “a fine” to the end;(c) in section 3(4) (itinerant collector failing to keep receipts) the words from “a fine” to the end;(d) in section 4(4) (convicted dealer failing to meet additional requirements) the same words before “and the court”.(3) For the following words (which have effect as references to a fine not exceeding level 1 on the standard scale) substitute in each case “a fine not exceeding level 3 on the standard scale”—
(a) in section 1(8) (dealer failing to give notice of cessation of business) the words from “a fine” to the end; (b) in section 5(1) (dealer acquiring metal from a person under 16) the same words before the proviso;(c) in section 5(2) (selling metal to a dealer under a false name or address) the words from “a fine” to the end;(d) in section 6(5) (obstructing entry and inspection) the words from “a fine” to the end.”

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Moved by

[Lord McNally]

157G: After Clause 136, insert the following new Clause—
“Offence of buying scrap metal for cash etc
(1) The Scrap Metal Dealers Act 1964 is amended as follows.
(2) After section 3 insert—
“3A Offence of buying scrap metal for cash etc
(1) A scrap metal dealer must not pay for scrap metal except—
(a) by a cheque which under section 81A of the Bills of Exchange Act 1882 is not transferable, or(b) by an electronic transfer of funds (authorised by credit or debit card or otherwise). (2) The Secretary of State may by order amend subsection (1) to permit other methods of payment.
(3) In this section paying includes paying in kind (with goods or services).
(4) If a scrap metal dealer pays for scrap metal in breach of subsection (1), each of the following is guilty of an offence—
(a) the scrap metal dealer;(b) a person who makes the payment acting for the dealer;(c) a manager who fails to take reasonable steps to prevent the payment being made in breach of subsection (1).(5) In subsection (4)(c) “manager” means a person who works in the carrying on of the dealer’s business as a scrap metal dealer in a capacity, whether paid or unpaid, which authorises the person to prevent the payment being made in breach of subsection (1).
(6) Subsection (1) does not apply if—
(a) the payment is made in the carrying on of the dealer’s business as a scrap metal dealer as part of the business of an itinerant collector, and(b) at the time of the payment an order under section 3(1) is in force in relation to the dealer.(7) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(8) An order under subsection (2) is to be made by statutory instrument.
(9) A statutory instrument containing an order under subsection (2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
(3) Section 2 (records of dealings) is amended as follows.
(4) After subsection (2)(d) insert—
“(da) where paragraph (d) applies, any part of the price that is unpaid at the time when the entry is to be made;”.(5) In subsection (2)(e) for “the last preceding paragraph” substitute “paragraph (d)”.
(6) After subsection (4) insert—
“(4A) If a scrap metal dealer pays at any time for scrap metal falling within subsection (1)(a)—
(a) the dealer must keep, with the book containing the entry relating to receipt of the scrap metal, a copy of the cheque (if the payment was by cheque), or any receipt identifying the transfer (if the payment was by electronic transfer and such a receipt was obtained), and(b) the particulars required by this section to be entered include those listed in subsection (4B). (4B) The particulars are—
(a) the full name and address of any person who makes the payment acting for the dealer;(b) the full name and address of the person to whom the payment is made;(c) in the case of an electronic transfer where no receipt identifying the transfer was obtained, particulars identifying the transfer.(4C) Anything kept by virtue of subsection (4A)(a) must be marked so as to identify the scrap metal by reference to the entry relating to receipt of the metal.
(4D) An entry in pursuance of subsection (4A)(b)—
(a) must be made immediately after the payment is made, and(b) if not made at the same time as the entry relating to receipt of the scrap metal, must identify the metal by reference to that entry.”(7) In subsection (5), after “this section and” insert “the book and anything required by subsection (4A)(a) to be kept with it”.
(8) Section 3 (special provisions as to records in certain cases) is amended as follows.
(9) In subsection (5)(d), for “subsection (4)” substitute “subsections (4) and (4D)(a)”.
(10) In subsection (6)(a)—
(a) after “books” insert “, and the obligation imposed by subsection (4A)(a) of that section to keep anything with a book,”;(b) after “the like particulars” insert “, and to keeping the same things,”;(c) for “and (3)” substitute “, (3) and (4A) to (4D)”.(11) In subsection (6)(c), for “subsection (4)” substitute “subsections (4) and (4D)(a)”.
(12) In section 4(1) (power for court to impose additional requirements on convicted dealers)—
(a) omit “or” at the end of paragraph (a), and(b) after that paragraph insert—“(aa) is convicted of an offence under section 3A, or”.(13) Section 6 (rights of entry and inspection) is amended as follows.
(14) After subsection (3) insert—
“(3A) Whether or not a place is one to which a constable has a right of entry in accordance with subsection (1), a justice of the peace may issue a warrant described in subsection (3B) if satisfied by information on oath that there are reasonable grounds for believing that the place—
(a) is a scrap metal store where scrap metal paid for contrary to section 3A is or has been received or kept, or(b) is a place to which admission is reasonably required in order to ascertain whether that section is being complied with.(3B) The warrant is a warrant signed by the justice issuing it which specifies the place concerned and authorises a constable to enter the place, if need be by force, at any time within one month from the date of the warrant.
(3C) A constable authorised to enter a place by a warrant granted under subsection (3A) has a right—
(a) to inspect that place;(b) to require production of, and to inspect, any scrap metal kept at that place;(c) to require production of and to inspect any book which the dealer is required by this Act to keep at that place and any copy or receipt required to be kept with the book, or, as the case may be, any receipt which the dealer is required to keep as mentioned in section 3(1)(b), and to take copies of the book, copy or receipt;(d) to require production of and to inspect any other record kept at that place relating to payment for scrap metal, and to take copies of the record.” (15) In subsection (4) for “the last preceding subsection” substitute “subsection (3) or (3A)”.”

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Moved by

[Lord McNally]

157J: After Clause 136, insert the following new Clause—
“Review of offence of buying scrap metal for cash etc
(1) Before the end of 5 years beginning with the day on which section (Offence of buying scrap metal for cash etc)(2) comes into force, the Secretary of State must—
(a) carry out a review of the offence created by that subsection, and(b) publish a report of the conclusions of the review. (2) The report must in particular—
(a) set out the objectives intended to be achieved by creating the offence,(b) assess the extent to which those objectives have been achieved, and(c) assess whether it is appropriate to retain the offence to achieve those objectives.”

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Moved by

[Lord McNally]

159: Clause 138, page 123, line 23, at beginning insert “this Act or”

[Lord McNally]

My Lords, at this hour of the night I would like to move these government amendments formally but I do not think that I can. Amendment 159 would bring Clause 113 into force on the date of Royal Assent. Clause 113 provides a power for the Secretary of State to remove from the United Kingdom foreign national prisoners serving indeterminate sentences once they have served the minimum term, or tariff, set by the sentencing court. This will be known as the tariff expired removal scheme. By commencing this provision on Royal Assent, it will be possible to begin the process of removals under the scheme from that date. There are a number of IPP and life sentence prisoners with deportation orders served against them who are already past their tariff expiry date. The Government would like to be able to start considering these prisoners for removal under the scheme at the earliest opportunity.

The amendments to Clauses 141 and 142 set out the territorial extent of the Bill. The amendments are to tidy up the clauses in the light of changes made to the Bill during its progress through Parliament and to ensure that provisions are as clear as possible. Amendments 163 and 164 amend the Long Title of the Bill to include the references to the Government’s amendments on scrap metal and magistrates’ courts fines. This is in line with the general rule on making amendments to the Long Title of a Bill to reflect amendments which have been made to the Bill. I beg to move.

Amendment 159 agreed.

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Moved by

[Lord McNally]

159A: Clause 140, page 123, line 34, leave out “subsection (2)” and insert “subsections (1A) to (2A)”.

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Moved by

[Lord McNally]

160A: Clause 140, page 123, line 35, at end insert—
“(2A) This section does not apply to section (Alcohol abstinence and monitoring requirement) (but see section (Piloting of alcohol abstinence and monitoring requirements)).”

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Moved by

[Lord McNally]

161A: Clause 141, page 124, line 4, leave out subsections (1) and (2) and insert—
“(1) Parts 1 to 3 of this Act extend to England and Wales only, subject to subsections (2) to (8).
(2) Sections 122 and 123(1) extend to England and Wales and Scotland.”

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Moved by

[Lord McNally]

161C: Clause 142, page 124, line 32, at end insert—
“( ) The powers conferred by sections 177, 178 and 222 of the Extradition Act 2003 (powers to apply provisions to extradition to or from British overseas territories and to extend to Channel Islands and Isle of Man) are exercisable in relation to any amendment of that Act that is made by or under this Act.”

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[Baroness Howe of Idlicote]

My Lords, I very much support this amendment and have put my name to it. It is a great shame that we could not find a way to debate this issue right at the beginning, before we started work on the detailed and different parts of this hybrid Bill. Indeed, many of the debates on today’s amendments—I am not talking about the last two or three, which seem quite beyond the Bill in many ways—illustrate exactly why this amendment is so relevant and important to the Bill. For example, plans to meet women prisoners’ different needs, the debate on restorative justice, better training and rehabilitation plans and post-prison support for young offenders: all of these were about rehabilitation. Indeed, the background to all the work that the Minister has so often talked about is about rehabilitation.

It is quite absurd to be debating what the Title of the Bill should be as we reach the very last pages of the Bill and the very early hour of the following day. If the Minister could accept the amendment, even at this stage, success would have been achieved, giving those who will use the Bill a much better understanding of what it is really about. Above all, it would not have cost the Government one single penny and, over and above that, I am quite certain that the Minister believes—as we certainly do—that in the long run it will save a great deal. I very much hope that he is in a giving mood on this amendment.

[Lord McNally]

My Lords, I have been wondering whether I dare quote poetry at this hour, but I think noble Lords deserve it. Whenever I hear the noble Lord, Lord Ramsbotham, the noble Baroness, Lady Howe, and the noble Lord, Lord Judd, who I am sure is with us spiritually, I am reminded of these lines from the Rubaiyat of Omar Khayyam:

“Ah Love! could thou and I with Fate conspire

To grasp this sorry Scheme of Things entire,

Would not we shatter it to bits—and then

Re-mould it nearer to the Heart’s Desire!”

Certainly, as I have said before, there is no lack of sympathy with the promotion of the concept of rehabilitation. Indeed, as I have also said before, I believe that those who argue the case for rehabilitation are doing more for victims and more to reduce crime than those to whom the noble Lord, Lord Pannick, referred earlier today as the “throw away the key brigade”. There is no argument between us. The Ministry of Justice believes in rehabilitation, and a large range of our policies are geared to rehabilitation. However, I think most people will look beyond the Short Title of the Bill and judge the Government by their intentions and performance. As many noble Lords have recognised, the Bill contains key measures for the youth and adult criminal justice systems that will contribute to the rehabilitation of offenders. Therefore, although I would very much like to accept this amendment in many ways, I am afraid that the noble Lord, Lord Ramsbotham, is right—I must simply salute, get on with the job and urge him to withdraw the amendment.

[Lord Ramsbotham]

My Lords, like the Minister, I have to salute and move on. I am very glad for what he said about the essence of rehabilitation because that is hugely important. Even at this late hour, I make no apologies for moving the amendment because it is very important that all that has been said by many noble Lords during the passage of the Bill reflects the heart of what we are trying to do: namely, to secure the rehabilitation of those who end up in the criminal justice system. However, given the reassurance that everyone is trying to do all they can, and given the lateness of the hour, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord McNally]

163: In the Title, line 5, after “otherwise;” insert “to make provision about the collection of fines and other sums;”