House of Lords
Death of a Member: Lord Methuen
The Lord Speaker (Baroness D'Souza)
My Lords, I regret to inform the House of the death of the noble Lord, Lord Methuen, on 9 July. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.
UK National Plan on Women, Peace and Security
(9 years, 10 months ago)
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Baroness Prosser
To ask Her Majesty’s Government what is their implementation plan for the United Kingdom National Action Plan on Women, Peace and Security.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)
My Lords, the implementation plan is being developed and will be published before the end of the year. It underscores our commitment to provide clearer monitoring and evaluation of progress on the women, peace and security agenda. The plan will establish baselines to show our current support for women and girls, with key milestones to be achieved by the end of 2015 and final targets to be achieved by the end of the current national action plan in 2017.
Baroness Prosser (Lab)
I thank the Minister very much for that response. However, will the implementation plan be accompanied by a fully costed budget which clearly lays out proposed spending across all five of the new national action plan’s outcome areas—including, of course, the one on building national capacity—to deliver the UK’s women, peace and security commitments?
Baroness Warsi
The noble Baroness will be aware that this action plan, as currently published, is the third in the series. Although a series of principles have been set out each time, they have not always formed the basis of an implementation plan, so I think that this in itself is a step forward. The National Action Plan on Women, Peace and Security is funded through the Conflict Pool and its successor, the Conflict, Stability and Security Fund, which is about £1 billion-worth of funding. This part of the work will not be ring-fenced but will be done out of that broader Conflict Pool work.
Baroness Falkner of Margravine (LD)
My Lords, is my noble friend aware of the Ministry of Defence’s new report Global Strategic Trends out to 2045, which finds that the number of women participating in terrorist groups and in armed resistance movements will increase very significantly in the developing world? Can she tell the House whether the Conflict Pool’s thinking in that regard will apply across the board to the focus group countries listed in the UK’s action plan?
Baroness Warsi
My noble friend makes an important point. It is a new and developing area. For that reason, the women, peace and security plan must remain flexible. The MoD is committed to a number of issues under this plan. As my noble friend will be aware, responsibility for the plan is held by three different departments and includes training, employment, deployment and the work around NATO. I will certainly take back the issue that my noble friend raised and find out whether it is part of the thinking.
Baroness Lister of Burtersett (Lab)
My Lords, given the vital role that women played in conflict resolution in Northern Ireland, can the Minister explain why the resolution on women, peace and security is not being applied to Northern Ireland, thereby leaving these same women feeling powerless and voiceless? Will the Government look again at this issue following the recommendation of the UN’s Committee on the Elimination of Discrimination against Women?
Baroness Warsi
The noble Baroness will be aware that the National Action Plan on Women, Peace and Security relates to foreign countries. Therefore, Northern Ireland would not fall under it. We do, of course, have a national action plan in relation to violence against women and girls, but I am not sure whether it covers the specific issue of women as peacebuilders. I will certainly write to the noble Baroness with information on where that element of work would fall.
Lord Howell of Guildford (Con)
My Lords, does my noble friend accept that the Commonwealth network is potentially an enormous pressure group for gender equality as well as for peace and security? Can she assure us that our support for the development of the Commonwealth network is part of the action plan?
Baroness Warsi
The national action plan forms the broad basis of work that the Foreign Office, the Department for International Development and the Ministry of Defence do. There are six focus countries where the action plan will be delivered. I do not think that it has been split between Commonwealth and non-Commonwealth countries—it is a broad plan that works across the world.
Baroness Kinnock of Holyhead (Lab)
My Lords, is there a specific budget to cover the need for comprehensive in-country consultations with local women’s organisations?
Baroness Warsi
There is no specific budget but specific work is being done. Money is available, but it is not ring-fenced in that way. We would not say, “That money has been put aside to consult with women’s groups on the ground”. However, money is available to consult with women’s groups on the ground. It has certainly been done in Libya and in Tunisia. It was, and is, also being done with women from Syria, as happened in the lead-up to the Geneva II discussions.
Baroness Tonge (Ind LD)
Will the Minister tell us what the Government propose to do about the incalculable suffering of the women of Gaza as it goes on now? They have no shelter to take their children to. They have very little food and no clean water, and night after night they have to try to protect their children from the obscene war that is being waged on them.
Baroness Warsi
My Lords, it is a fact that women and children suffer most in conflict regions, and, of course, Gaza is no exception. I am sure that a number of noble Lords will be interested in and concerned about the situation as it unfolds in Gaza. I will therefore be repeating a Statement later today that the Foreign Secretary will make in about an hour’s time in the Commons.
Baroness Corston (Lab)
My Lords, will the Minister tell the House what proposals the Government have for supporting women and human rights defenders in Afghanistan when British troops leave—the women who run the girls’ schools and women gynaecologists who do surgery on female victims of sexual assault? Such women have had their sons abducted and murdered. Surely we cannot leave them to the fate of the Taliban.
Baroness Warsi
This is an incredibly important area. I am sure that the noble Baroness met with Samira Hamidi, Parwin Wafa and Dr Dida Pighla last month when they visited, these incredibly inspirational human rights defenders in Afghanistan. As the noble Baroness will be aware, Amnesty International has now raised this issue on a number of occasions. I have commissioned a specific piece of work, and it is apparent from the initial research papers that I am getting back that there is a lot of support for human rights defenders, and specifically women’s human rights defenders, in Afghanistan, but there is also a real problem in relation to these women being aware of the support that is available. There is certainly some work that needs to be done to bring that work together. Some clearer work needs to be done on signposting and possibly on having an arm’s-length body that would take some of this work forward. However, I will certainly keep the noble Baroness updated. This is something that I am acutely aware of.
Baroness Thornton (Lab)
My Lords, I congratulate the noble Baroness on making the renewed commitment to fulfilling our obligations as outlined under United Nations Security Council Resolution 1325. I want to return to the funding and resourcing of this, because none of it will happen unless the funding is available. I am slightly concerned that it would be easy for it to be squeezed under these circumstances. If the noble Baroness feels the need for us to mount a campaign to strengthen her arm on this, she has only to ask.
Baroness Warsi
I am always happy to have support from the sisterhood. However, I can honestly say that, on this particular occasion, the concern that I have is that if you ring-fence an amount of money, say it is for women, peace and security and appoint somebody to do it, effectively that feels like you have done women, peace and security. I am quite keen for this work to be mainstreamed so that it is part of all the work that we do in relation to human rights, so that every Minister is responsible for women’s rights and so that all the money that is available to the Foreign and Commonwealth Office—and, indeed, to DfID and the MoD—can be made available for women, peace and security. However, if I need the support, I will certainly call upon the noble Baroness.
Health: Dementia
(9 years, 10 months ago)
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Baroness Seccombe
To ask Her Majesty’s Government what steps they are taking to improve the early diagnosis, and to raise awareness, of dementia.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, in March 2012, the Prime Minister launched his Challenge on Dementia, to deliver major improvements in care and research. NHS England has set the first ever national ambition to improve dementia diagnosis. By March 2015, our aim is that two-thirds of the estimated people with dementia receive a diagnosis and appropriate post-diagnostic support. In May, Public Health England and the Alzheimer’s Society launched the Dementia Friends campaign, a major social movement to improve dementia awareness.
Baroness Seccombe (Con)
My Lords, all those who have lived with a loved one with dementia know only too well the heartache and unhappiness it brings to the whole family, without mentioning the financial implications for the family and, indeed, for the country. Does my noble friend agree that the Government must do everything in their power in this ageing society to support, wholeheartedly and urgently, research into this horrible condition? Does he also share my view that the probability of there being a test for early diagnosis around the corner does not mean that we all have to rush to the doctor if we have trouble remembering a few names or even, I understand, if one is losing one’s sense of smell?
Earl Howe
My Lords, my noble friend is right on the last point. The advice I have received is that it is perfectly normal for memory to be affected by age, stress and tiredness, and that you should go to your GP only if you are worried. My noble friend is absolutely right about the importance of research because we need to make a step-change in the prevention of dementia and in its treatment and care. Research spending on dementia has increased by nearly 50% since 2010-11. We are on track to meet the target of increasing funding to £66.3 million by 2015 and our ambition is to further double spending over the decade following the end of the present Parliament. My noble friend will also be aware that research was a major focus of the G8 dementia summit last December and the World Dementia Envoy, Dr Dennis Gillings, is leading a World Dementia Council to stimulate innovation in this area.
Baroness Turner of Camden (Lab)
My Lords, I thank the Minister for what he said in response to this Question, but are the Government aware that dementia sufferers should never be left alone too much? I speak from experience because my sister is an Alzheimer’s sufferer. It is not a good idea ever to leave them too much on their own; it simply makes them a lot worse. Many are elderly people who otherwise live on their own and it is not a good idea. I have certainly set up arrangements for people to see my sister regularly, ensuring that she has her medicine and that she sees people every day. In that way, she is getting a lot better than I think otherwise she would, and she is able to participate in the life of the community as otherwise she would not be able to.
Earl Howe
The noble Baroness makes a series of extremely important points about the care of people with dementia. She is absolutely right. That is why we need to place greater emphasis on professional training and awareness, not only among NHS professionals but among social care staff, so that they appreciate the full dimension of the condition. Of course, we must remind ourselves that dementia is not a single condition. There are several conditions along that spectrum and each one has its own particular characteristics. We are emphasising to the NHS and local authorities that individual care planning is vital in this area.
Lord Laming (CB)
My Lords, will the Minister reinforce the point that he just touched on, that dementia—as a generic term—affects individuals in very different ways? As we have already heard, individuals’ circumstances vary enormously in terms of the position of their carers. Will the Minister do everything he can to ensure that in the future services will continue to respect the unique qualities of the individual who is affected by this condition?
Earl Howe
Again, the noble Lord makes a central point. As he will know, dementia can range from mild cognitive impairment to difficulties in organising daily life, right through to confinement to bed and very serious cognitive impairment. Knowing this is very distressing for people in the early stages of dementia. All this is why we are laying such emphasis on NHS staff receiving training. By October 2013, 108,000 NHS staff had received tier 1 training on dementia, and more than 100,000 social care workers have received some form of dementia awareness training through workforce development funding. We are aiming to increase those numbers substantially over the coming years.
Baroness Barker (LD)
My Lords, as there are currently no effective drug therapies, will the Minister explain what the incentives are for GPs to make early diagnosis of the condition?
Earl Howe
It is generally recognised—although some GPs disagree—that early diagnosis of dementia is vital. It is vital for ensuring that a person with dementia can access the relevant advice, information and care and support that can help them live well with the condition. My noble friend is right that there is currently no cure for dementia, but there are drugs that can help with some of the symptoms and people with dementia have the right to know that they have the condition so that they can better plan for the future.
Lord Bradley (Lab)
My Lords, I declare my health interests. The Alzheimer’s Society says that one person in five who suffer from dementia gets no support or information after diagnosis. Will the Minister say what specific actions the Government are taking now to try to improve the situation?
Earl Howe
My Lords, NHS England is investing £90 million in diagnosing two-thirds of people with dementia by March next year. We have amended the GP contract so that everyone over 75 has a named, accountable GP and the most vulnerable 2% in each practice will receive an enhanced service. The NHS Choices website has been enhanced. NHS England has provided CCGs with tools and guidance to help them set a local ambition to improve dementia diagnosis. The post-diagnostic support that the noble Lord mentions is absolutely central. There is a post-diagnosis working group to identify what good looks like in this area and roll out best practice.
Economy: Public Sector Net Borrowing
(9 years, 10 months ago)
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Lord Sherbourne of Didsbury
To ask Her Majesty’s Government by how much public sector net borrowing has fallen between 2009-10 and 2013-14; and what is their forecast for the current financial year.
Lord Newby (LD)
My Lords, between 2009-10 and 2013-14, public sector net borrowing fell from £157.3 billion to £107 billion, or from 11% of gross domestic product to 6.6%—a fall of more than a third. The independent Office for Budget Responsibility forecast in March this year—2014-15—that underlying public sector net borrowing will fall to £95.5 billion, or 5.5% of gross domestic product, half its peak in 2009-10.
Lord Sherbourne of Didsbury (Con)
Does my noble friend agree that the reduction in the deficit over the past four years has been crucial in generating economic growth and employment? Does he also agree that it is therefore vital that the deficit reduction programme continues? Can he give the House some indication of when we might expect the deficit to be eliminated and the nation’s finances returned to balance?
Lord Newby
My Lords, on the current forecast we expect there to be a surplus in 2018-19. At the moment, as my noble friend points out, the economy is growing; we are the fastest growing economy in the G7 in the year to Q1 2014. The most recent employment figures showed that in the past year employment had risen by 780,000 and the claimant count had fallen by 406,000.
Lord Kinnock (Lab)
Do not the figures used by the Minister somewhat obscure serious facts about the years to which he referred? In the last four years of the Labour Government, including the crisis years 2008 to 2010, total net borrowing was £329 billion, while in the four years of the current Government total net borrowing has been £104 billion higher at £433 billion. Is not that rise in borrowing over those years a very serious indictment of government policies which have actually retarded growth, increased inequality and shrunk the economy? Is it not time for the Minister to offer something of an apology, rather than a pat on his own back?
Lord Newby
My Lords, it is an indictment of the previous Government. In the first year that we were in office, £1 of every £4 spent by Government was borrowed. That was completely and utterly unsustainable, and that is why we are sorting things out.
Lord Tebbit (Con)
My Lords, will my noble friend be very careful and encourage others to be careful in their use of the expressions “borrowing”, “deficit” and “debt”? The ghastly facts before us show that debt is rising remorselessly, and it will be, as he has said, some time yet before the enormous pile of debt incurred by the previous Labour Government can be brought under control and reduced?
Lord Newby
My Lords, I agree with the noble Lord. The relationship between debt and GDP is set to rise for a number of years more, even as we continue to reduce the deficit.
Baroness Symons of Vernham Dean (Lab)
My Lords, given that the Minister answers for the whole House, and given that this Question is about savings and the economy, can he please tell us why a Statement has not been made to the House, yet the Prime Minister spoke this morning at the Farnborough air show about budgetary savings that have led, apparently, to extra expenditure on counterterrorism and cybersecurity? The Prime Minister said that these were very important announcements, and they were indeed. Should they not have been made to Parliament?
Lord Newby
My Lords, there are always questions when statements are made outside the House as to whether they should have been made inside the House. If the noble Baroness is concerned about it, she of course has the option of asking an Urgent Question.
Lord Razzall (LD)
My Lords, is the Minister prepared to take this opportunity, in view of the questioning, to move from the short to the long-term and comment on last week’s report by the Office for Budgetary Responsibility, which states that by 2050 the public sector borrowing requirement will be more manageable than it would have been were it not for the actions of the coalition since 2010?
Lord Newby
Yes, my Lords; my noble friend is absolutely right. The report to which he refers demonstrates two things: first, with an ageing population, there will over a long period be significant pressures on the public finances, everything being equal; secondly, that a number of steps which have been taken with cross-party support, such as raising the retirement age, are making those long-term additional burdens more acceptable and possible to deal with in a sensible fiscal framework.
Lord Davies of Oldham (Lab)
My Lords, did not the Government promise in 2010 to balance the books by 2015, and is it not now the case that they will be lucky—well, they will be out of office, but they would have been lucky—to have balanced the books by 2018? Is the Minister aware that in the early months of this year borrowing was £2 billion higher than in the same period last year? So it is not getting better.
Lord Newby
My Lords, it is getting better. It has got better in the year up to now. The OBR says that we are on track to reduce borrowing during this year. As the noble Lord knows, there were substantial economic headwinds from the euro area crisis, high commodity prices and the ongoing impact of the financial crisis. I am not sure whether he is really proposing that we should have cut the deficit more quickly by cutting public expenditure further or putting taxes up.
Sport: Accessible Stadia Guidance
Lord Faulkner of Worcester
To ask Her Majesty’s Government how they plan to ensure that professional sports clubs follow the Accessible Stadia Guidance.
Lord Faulkner of Worcester (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and declare an interest as vice-president of the charity, Level Playing Field.
Lord Gardiner of Kimble (Con)
My Lords, the Government are committed to ensuring that all spectators have enhanced and appropriate access to sporting venues and services, and that professional sports clubs are aware of their responsibilities towards disabled spectators. The Department for Culture, Media and Sport is working with the Department for Work and Pensions on a range of measures to ensure that the rights of disabled spectators are met by professional sports clubs.
Lord Faulkner of Worcester
Does the Minister agree that, although some sports are making a real effort, the situation with professional football is, as the Minister for Disabled People said when he wrote to all professional clubs in April, “woefully inadequate”, when it was revealed that only three clubs in the Premier League, the richest league in the world, comply with the requirements for the number of spaces for supporters in wheelchairs? Does he not think that the time has now come for equality law to be properly enforced and the guidelines, which have been in place since 2004, properly implemented and clear new instructions issued to the Sports Grounds Safety Authority?
Lord Gardiner of Kimble
My Lords, first, I acknowledge the noble Lord’s tireless work on ensuring that there is greater access for disabled people. Importantly, the Sports Grounds Safety Authority is currently in discussion with Level Playing Field on a revision of the guidance to ensure that it takes account of legislative, technical and other advances that have occurred over the past 11 years. Premier football clubs have considerable means and I think that they should be looking to do very much better.
Lord Holmes of Richmond (Con)
My Lords, I draw my noble friend’s attention to the work which will be undertaken by the Equality and Human Rights Commission, in which my interest is declared in the register, to address this specific point: to ensure that when a disabled spectator goes to football, rugby, cricket or whatever sport in this country, we guarantee that they have an inclusive spectator experience. I am sure that my noble friend will agree.
Lord Gardiner of Kimble
My Lords, I am delighted that my noble friend is leading on that initiative of the Equality and Human Rights Commission to deliver the sports equality standard programme. Across all sports, we need to ensure that there is an improvement in physical and cultural accessibility. It seems to me that it is a basic right of disabled people to have as much enjoyment from sport as those who are not disabled.
Baroness Grey-Thompson (CB)
My Lords, is the Minister aware that certain Premiership football clubs such as Manchester United refuse to sell season tickets to wheelchair users and that it has only 42% of the accessible seating that it should? At other clubs, it is impossible to buy one because of the lack of accessible seating. What steps are Her Majesty’s Government taking to ensure a fair ticketing policy for all spectators and fans?
Lord Gardiner of Kimble
My Lords, first, the Equality Act prohibits discrimination against disabled people in the provision of goods, facilities and services. That is precisely why my right honourable friend Mike Penning, the Minister for Disabled People, and the Minister for Sport are so keen to ensure that, in their discussions with all sporting bodies, it is absolutely a fixture on the agenda of those meetings that this greater access is addressed and that clubs which ought to know better do better.
Lord Foulkes of Cumnock (Lab)
My Lords, I declare an interest as a former chairman of the Heart of Midlothian Football Club. Is the Minister aware that there is a country which is better than we are at access for disabled people, better at training young people in football, cheaper as far as access to the stadia is concerned and better in terms of all the facilities in the stadium, and whose example we could well follow? That country is the Federal Republic of Germany.
Lord Gardiner of Kimble
My Lords, it was quite an extraordinary match last night and, clearly, there are lessons to be learnt for many countries from the ability of those German players. However, it is very important that this country picks up on what we were so successful at in 2012 with the Olympics and Paralympics, as that legacy needs to transcend all sporting stadia.
Baroness Brinton (LD)
My Lords, I speak as a season-ticket holder at Southampton Football Club, which is one of the four that meet the requirements. Should training for staff also be ensured? As an away supporter, I often have to sit with home fans, which can be quite difficult, but you can always tell when you are with someone who understands the issue of someone who is in a wheelchair or has other disability problems.
Lord Gardiner of Kimble
My Lords, my noble friend makes a very important point: that disabled people—their rights being the same as those who are not disabled—should be sitting among the supporters of whichever side they wish. That is a perfectly sensible and correct thing to do. Clearly, training people is also an important part in providing the facility, as is providing carers to attend with disabled people, which many clubs are undertaking. That is the way forward.
Lord Rosser (Lab)
My Lords, do the Government consider the existing equality legislation sufficient to bring about real change in accessibility and the provision of facilities for disabled supporters, particularly at our larger football stadia and arenas? If the Government do so consider, why is that legislation not being used? If they do not consider existing legislation sufficient to bring about real change, how much longer do they intend to wait before passing further legislation that will achieve the desired objective for disabled supporters? I declare an interest as a vice-president of Level Playing Field.
Lord Gardiner of Kimble
My Lords, obviously, no one would rule out further legislation if it becomes necessary. I know from looking at the exchanges of correspondence that this is something which the previous Government thought through. Clearly, it is the responsibility of each club to look at how it is dealing with access for disabled people. We think that is the best way to go because legislation can very often be a blunt instrument. We know that the Premier clubs are particularly well able to ensure that they have the necessary adaption, whereas perhaps some other clubs would find difficulties. That is exactly why the Equalities Act 2010 was couched in the way that it was.
Pensions Act 2011 (Consequential and Supplementary Provisions) Regulations 2014
(9 years, 10 months ago)
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Lord Bates
That the draft regulations laid before the House on 17 June be approved.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 9 July.
Legislative Reform (Patents) Order 2014
Lord Popat
That the draft order laid before the House on 6 May be approved.
Relevant document: 1st Report from the Regulatory Reform Committee. Considered in Grand Committee on 9 July.
Criminal Justice and Courts Bill
(9 years, 10 months ago)
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Lord Faulks
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, Amendment 1 removes references in Clause 2(10) to subsections (5) and (6) of that clause. Subsection (10) makes transitional provision around the application of the “dangerousness” life sentence, imposed on conviction of an offence listed in Schedule 15 to the Criminal Justice Act 2003, which carries a maximum penalty of life where the court considers that there is a significant risk to members of the public of serious harm from further Schedule 15 offences. However, such a sentence could never be imposed for the offences mentioned in subsections (5) and (6) so we do not need to refer to them.
The other amendments are minor changes that correct inconsistencies and lacunae relating to dangerous offender provisions in the drafting of the Criminal Justice Act 2003. Amendment 2 relates to foreign service offences and the extent to which they are treated as previous convictions for the purposes of the dangerous offender sentencing scheme. Previous convictions may be relevant in determining eligibility for an extended determinate sentence or for the “two strikes” life sentence. This amendment ensures that all previous convictions for a member state service offence, which is the equivalent of an offence listed in Schedule 15B to the Criminal Justice Act 2003, can count as relevant previous convictions for these purposes.
As currently drafted, paragraph 49 of Schedule 15B to the Criminal Justice Act 2003 covers only equivalent member state service offences for which the offender was convicted by a court operating in the member state. However, a conviction for a member state service offence could be given by a service court sitting elsewhere in the world. Currently, such convictions are covered for UK service courts operating outside the UK, and we should treat member state convictions in the same way.
Amendment 3 relates to certificates of conviction. There is provision in the Criminal Justice Act 2003 for such certificates to be treated as evidence as to whether a previous conviction is a relevant previous conviction for the purposes of the “two strikes” life sentence. Such certificates could assist in dealing with disputes about, for example, whether a previous conviction for robbery under Section 8 of the Theft Act 1968 involved possession of a firearm. In the former case, the robbery would constitute an offence listed in Schedule 15B to the Criminal Justice Act 2003. However, no similar provision is made in relation to deciding eligibility for an extended determinate sentence. To rectify this anomaly, we are extending Section 232A of the Criminal Justice Act 2003 to Section 226A(2) of the Criminal Justice Act 2003 as well.
Amendment 6 relates to how the court determines the date of a previous offence. Generally, where legislation makes a change to sentencing, provision is made for how the date of an offence should be determined if it is found to have been committed over a period of two or more days or at some time during a period of two or more days. This is helpful because such changes often apply only where an offence is committed on or after the commencement of the provision in question. However, there is no provision of this type in relation to Section 224A of the 2003 Act—the “two strikes” life sentence. This is an anomaly, and we consider that we need to rectify it. I beg to move.
Lord Faulks
“( ) Part 4 of Schedule 15B to the Criminal Justice Act 2003 (offences under the law of Scotland, Northern Ireland or a member State other than the United Kingdom listed for the purposes of sections 224A(4) and 226A of that Act) is amended as follows.
( ) In paragraph 49, for “An offence” substitute “A civilian offence”.
( ) After paragraph 49 insert—
“49A A member State service offence which, if committed in England and Wales at the time of the conviction, would have constituted an offence specified in Part 1 or 2 of this Schedule.
49B In this Part of this Schedule—
“civilian offence” means an offence other than an offence described in Part 3 of this Schedule or a member State service offence;“member State service offence” means an offence which was the subject of proceedings under the law of a member State, other than the United Kingdom, governing all or any of the naval, military or air forces of that State.””
Lord Beecham
“(10) Before this section comes into force, the Secretary of State shall—
(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and(b) lay a report before Parliament containing—(i) his assessment of the resources required for additional hearings; and(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.”
Lord Beecham (Lab)
My Lords, Amendments 4, 5, 8 and 16 relate to the obligations imposed on the Parole Board by Clauses 3, 4, 5 and 7. Clause 3 adds terrorism and explosive offences to the category of the enhanced dangerous offenders sentencing scheme. Cases will be referred to the board for a decision about release instead of offenders being eligible for automatic release after serving two-thirds of their term. Clause 4 extends this to all such offenders serving extended determinate sentences. Clause 5 applies a similar provision to other offenders convicted of serious crimes, as listed in the schedule, who will be subject to discretionary rather than automatic release between the halfway and end points of their sentence. Clause 7 creates a new release test for recalled prisoners to be applied by the board under which the Secretary of State or the board has to be satisfied that it is highly unlikely that a prisoner would breach a condition of his licence.
All these measures are likely to increase the pressure on an overstretched and underresourced Parole Board. The Government estimate an increase of 1,100 hearings a year by 2030, rising by an estimated 50 next year, 400 by 2020 and ultimately requiring an extra 1,000 prison places. As the Prison Reform Trust points out, the Ministry of Justice has form in these matters. When indeterminate sentences—IPPs—which we will be debating later were introduced, the ministry, under a previous Administration, estimated an increase in the prison population of 900, but by the end of last year 5,335 people were serving IPP sentences, two-thirds of them beyond their tariff date.
This was in good measure a result of the failure, frequently commented upon in this House and beyond, to provide the necessary resources to the Parole Board to prepare people for release and rehabilitation. As the Prison Reform Trust reported, offending behaviour programmes are scarcely available and limited in their scope and effectiveness, and it is inherently difficult to demonstrate reduced dangerousness and pass the high safety threshold for release. That was in 2010, when numbers were smaller and staffing greater. Moreover, as the Prison Reform Trust points out, the Government’s impact assessment of the provisions of the Offender Rehabilitation Act estimated that 13,000 offenders would be recalled or committed to custody a year, leading to an extra 600 prison places being needed. Have the Government looked into the real impact of the Offender Rehabilitation Act on this situation to date and as anticipated in the near future? Further, what assessment have they made of the effect of the recent Supreme Court judgment in the Osborn case requiring the board to hold more oral hearings, which last December alone had increased by one-third in indeterminate review cases to just under 400 in a month and to 90 in indeterminate recall cases?
The board warned in its annual report, as it appears from today’s Daily Telegraph, that the number of oral hearings could increase from 4,500 a year to as many as 14,000, and at an additional cost of £10 million. What is the Government’s response to this estimate? The Minister has apparently indicated that an extra £3 million will be allocated to the Parole Board. How does that square with the board’s own estimate of the potential cost? What is the Government’s estimate of the impact on prison numbers and on the work of the board of the Secretary of State’s latest headline-grabbing decision that no prisoner may be transferred to an open prison if he or she has previously absconded, which is apparently already building up a backlog of Parole Board hearings? How do the Government expect the board to cope with these pressures when it has already lost 20% of its staff and when its members are now having to use an unreliable video link system to conduct hearings—another example of the problems associated with rushing headlong into the all too frequently costly and inadequately tested application of IT and electronic systems?
All this is set against a background of massive overcrowding in many prisons with the attendant problems that that poses for prisoners and staff, and with the system too often being pared back to one of simple confinement. The chief inspector has spoken of dangerous instability in the prison estate and has pointed out that despite some recent high-profile cases, there is a very low failure rate for release on licence. Further questions arise over the Government’s apparent intention, as reported in the Times on 21 June, to transfer responsibility for the administration of recall cases to the magistrates’ courts. Can the Minister tell us whether this is the Government’s policy, because of course the report may be wrong, and if so, what consultations have taken place with the Parole Board, the Magistrates’ Association, the judiciary and other interested parties? Is there an intention to pilot such a concept before rolling it out?
It really is time for the Government to adopt less of the kind of muscle-flexing populism that is so often exhibited by the Secretary of State and more of the considered approach we have come to expect of the Minister. These amendments are designed to ensure that the Parole Board is fully engaged with any plans to implement these measures and that Parliament has an opportunity to scrutinise and approve their implementation on the basis that the necessary resources will be made available to ensure that the pathway to rehabilitation is properly and securely paved. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to add to some of the comments made by my noble friend Lord Beecham on the make-up of the review of the Parole Board. My understanding is that at present Parole Board members can either sit as a single Parole Board member or as two or as three. They can be a mixture of lay people and lawyers. It is of course desirable that the more serious the case, the greater the legal training and the more appropriate the experience of the people sitting on those hearings. I also wonder whether the Minister can comment on the possibility of using lay magistrates to sit on parole hearings. Is this something that the Ministry of Justice is willing to consider? We have a resource in the pool of magistrates throughout England and Wales, so is the ministry considering the use of magistrates in parole hearings? The whole subject of the Parole Board is extremely important, as we have heard from my noble friend Lord Beecham, and is something that needs to be managed very carefully, given the reduction in the resources being made available to it.
Lord Ramsbotham (CB)
My Lords, perhaps I may add a word to what the noble Lord, Lord Ponsonby, has said in amplification of his noble friend Lord Beecham. In addition to saying that £3 million would be made available, the Minister has been quoted as saying that a number of changes are to be introduced to ease the pressure on the Parole Board. In addition to the possibility of lay magistrates being used, as mentioned by the noble Lord, Lord Ponsonby, can the Minister outline exactly what those changes are? I am quite certain that the Supreme Court introduced the Parole Board in oral hearings because it was satisfied that the board gave a fair hearing to people, and that was how it operated. I would hate to think of some of the parole decisions being reduced to bureaucratic decisions taken by officials.
Lord Hope of Craighead (CB)
My Lords, I shall add a word based on my own experience. It is quite difficults to visualise the work of the Parole Board members unless one has seen them at work. One thing that struck me some years ago when I attended Parole Board hearings from time to time was the huge volume of paperwork generated by individual cases. Of course, the longer a prisoner remains in custody, the bigger the volume becomes. The technique which the Parole Board member has to apply to each case is to work his or her way through the file, which takes a great deal of time, then explain whatever views he or she has reached, based on the information in the file. It is immensely time consuming. My experience was that Parole Board members were extremely conscientious; the people who know best what the effect was of the diminution of resources on their ability to do their job are the Parole Board members themselves, which is the strength of the point that the noble Lord, Lord Beecham, made. I suggest that his amendment deserves a great deal of consideration.
Lord Faulks
My Lords, the amendments relate to four clauses, which will have the effect of increasing the involvement of the Parole Board in certain areas. The clauses we are considering are: Clause 3, which adds a number of terrorism-related offences to the enhanced dangerous offenders sentencing regime; Clause 4, which will require all prisoners serving an extended determinate sentence to be referred to the Parole Board before early release can be authorised; Clause 5, which creates a new determinate sentence for serious child sex and terrorist offenders, under which prisoners will be referred to the Parole Board before early release can be authorised; and Clause 7, which introduces a new test for determining whether offenders receive fixed-term or standard recall, and to inform re-release decisions.
Our impact assessment acknowledges that Clauses 4 and 5 will add to the Parole Board’s workload. However, Clause 3 should not give rise to more than negligible impacts, since very few offenders are convicted of the offences in question. In any event, it should not impact on the Parole Board over and above the estimated impact of Clause 4 because, following the changes in Clause 4, all those serving extended determinate sentences will be referred to the Parole Board for early release in any event. We also think that Clause 7 will not have significant effects, because we estimate it will add a very small percentage to the total number of standard recalls that the board currently deals with.
We have looked at the likely impact of these provisions and the time over which the impacts will make themselves felt, and are confident that the additional work that will be created will be manageable. Most of the increase in Parole Board workload will arise from the new determinate sentence created by Clause 5 and Schedule 1, which will apply only to offenders who are sentenced after the new sentence is implemented. Those who commit these offences very often receive substantial prison sentences; under the new sentence, they will serve half their custodial term in prison before they are referred to the Parole Board for consideration for release. All this means that there will be a substantial time lag before these cases start to come through to the board. Our estimate is that the board will see the full impact of changes to early release between 2020 and 2030. We are also supporting the board in dealing with the consequences of the Osborn, Booth and Reilly judgment, referred to by the noble Lord, Lord Beecham, in his helpful remarks.
The Parole Board has established a programme of work to equip itself for dealing with the challenge of providing an increased number of oral hearings. The first phase of that work, which involved scoping the challenge and setting up immediate plans to deal with the increased demand, is now complete. The second phase, which involves developing a new case management model for the future, is under way.
Lord Beecham
My Lords, I thank the Minister for his explanations. I do not, I am afraid, find them entirely satisfactory, particularly in relation to the increased workload and its cost. It is, after all, the board’s annual report that suggested that there would be an increase of nearly threefold in the number of hearings—from 4,500 to 14,000—at what it estimated would be an additional cost of £10 million, which, on the Minister’s figures for the current costs, represents a doubling of the cost. Yet the Government’s planned contribution is of the order of £3 million, which is significantly less than was indicated by the board’s figures. There is still an issue here, and that is what lies behind the suggestion that we in Parliament need to take an overall look at the situation as it develops in terms of the adequacy of resources.
The objectives are admirable, but it does not seem to me and, I suspect, some other noble Lords that the Government have fully thought through and costed what is required to deliver the policy—hence the suggestion that the Parole Board be consulted. Consultations are, no doubt, taking place but the results of those consultations, and the implications for staffing and otherwise, should be laid in a report before Parliament in order that it can exercise its job of scrutinising a significant area of public policy that potentially impacts upon public safety. All of us wish the service to work well but it has to be properly resourced, and it is necessary for Parliament to have a role in doing that, given that, on the face of it and for all the Government’s good intentions, they do not seem to have worked it through sufficiently.
At this stage, I will not press the amendment but it is a matter to which we may well return on Report. I beg leave to withdraw the amendment.
Lord Faulks
“Minor amendments
(1) In section 224A of the Criminal Justice Act 2003 (life sentence for second listed offence), at the end insert—
“(12) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it must be taken for the purposes of subsections (1)(b) and (4)(a) to have been committed on the last of those days.”
(2) In section 232A of that Act (certificates of conviction), for “section 224A” substitute “sections 224A and 226A”.
(3) In section 218A of the Armed Forces Act 2006 (life sentence for second listed offence), at the end insert—
“(8) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it must be taken for the purposes of subsections (1)(c) and (5)(a) to have been committed on the last of those days.””
Lord Lester of Herne Hill
“Review of whole life orders
After section 30 of the Crime (Sentences) Act 1997, insert—“30A Review of whole life orders
(1) A prisoner who is—
(a) the subject of a whole life order made under—(i) section 269 of the Criminal Justice Act 2003, or(ii) section 82A(4) of the Powers of Criminal Courts (Sentencing) Act 2000, and(b) has been in custody for 25 years,may apply to the Parole Board for a review of the whole life order.(2) If on an application under subsection (1) the Parole Board is satisfied that the prisoner has made such exceptional progress towards rehabilitation that a whole life order is no longer justified, it shall substitute a determinate tariff for the whole life order.
(3) No fresh application may be made by a prisoner under subsection (1) before the period of five years has elapsed since the Parole Board’s determination of the prisoner’s previous application.””
Lord Lester of Herne Hill (LD)
My Lords, the amendment was proposed by the Joint Committee on Human Rights, of which I am a member, in a report published on 14 May and is in the Printed Paper Office. I mention that because I realise that what I am about to say will certainly be intelligible to the distinguished jurists who are present, but ordinary members of the public might be a little puzzled by some of it. I shall do my best to make it straightforward. I am delighted that my friends, noble and learned and otherwise, are supporting the amendment.
In the case called Vinter v United Kingdom, the Grand Chamber of the European Court of Human Rights decided that for life sentences to remain compatible with Article 3 of the European Convention on Human Rights there had to be a possibility of release and a possibility of review, both in theory and in practice.
Currently, under Section 30 of the Crime (Sentences) Act 1997, prisoners on a whole life order cannot be released except with the discretion of the Secretary of State for Justice on compassionate grounds. The Strasbourg court held that this did not offer sufficient legal certainty. In the recent case of McLoughlin and Newell on sentencing appeals which was decided on 18 February 2014, the Court of Appeal held that the current regime under Section 30 is compatible with Article 3 of the convention because the Secretary of State is not restricted to the medical grounds set out in the Prison Service order, but is under a public law duty to take into account all exceptional circumstances.
The Joint Committee on Human Rights, as I have mentioned, published its report on 14 May. It commended the usefulness of the Government’s European Convention on Human Rights memorandum, which is fully in accordance with our recommendations for best practice by government departments. As the memorandum rightly acknowledges, the fact that the provisions in the Bill bring some terrorist-related offences within the scope of possible whole life orders for the first time directly raises a human rights compatibility issue as to whether the law currently provides sufficient opportunity for a review of a whole life order in the light of the judgment of the Grand Chamber in Vinter, and the position of the Court of Appeal in McLoughlin.
In paragraph 1.23, our report says:
“There is some continuing legal uncertainty, however, as to whether the domestic law, as interpreted by the Court of Appeal, now provides an adequate mechanism for review of whole life prison orders. The Grand Chamber in Vinter was unequivocal that ‘a whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought’.
The judgment is clear that the procedure for such a review mechanism should be set out clearly in law so that prisoners subject to a whole life order clearly know, at the outset of their sentence, the process by which they may or may not be eligible to apply for a review of their whole life order should they wish to challenge it on the grounds that there are no longer justifiable penological grounds for their continued life detention, including the time when they can expect to be able to make such an application for a review.
In our view, while the Court of Appeal's judgment in McLoughlin significantly clarifies the law, it does not provide legal certainty about these three important aspects of the review mechanism”.
When we asked the Government,
“whether any further measures are required in order to provide the requisite degree of legal certainty”,
they responded, indicated that they were awaiting the outcome of appeal to the Supreme Court arising from one of the appellants in the McLoughlin case. The JCHR said that,
“for the review mechanism to be sufficiently certain, more specific details need to be provided … including the timetable on which such a review can be sought, the grounds on which it can be sought, who should conduct such a review, and the periodic availability of further such reviews after the first review”.
The Bill provides Parliament with an opportunity to remove any legal uncertainty by specifying the details of the review mechanism. That is what the amendment is designed to achieve. That is even more necessary than it was at the time of the JCHR report because of the inclusion by the Government of Clause 24, which makes a whole life order the usual term of imprisonment for murder of a police officer or prison officer and which may result in more whole life orders being imposed.
Lord Pannick (CB)
My Lords, I support everything that has been said by the noble Lord, Lord Lester of Herne Hill. I add simply one point. Amendment 7 would enact what was the practice prior to 1997, except of course that the review prior to that date was conducted by the Secretary of State and not by the independent Parole Board.
I am concerned that there is one reason and one reason only why this Government, and indeed their predecessor, removed the right to a review after 25 years and refuse to reinstate it. The reason is that, as a matter of law, such a review could not lawfully be undertaken by a Minister. The Strasbourg court has repeatedly stated that an independent person must make decisions on release. I would welcome the Minister’s comments on this, but I anticipate that the Secretary of State would be quite content for there to be a review by her or by her successors after 25 years but what she cannot accept is a review by an independent Parole Board. However, as the Strasbourg court has repeatedly stated—and it is surely right—decisions on release should be made by an independent person or body and not by a politician, however wise or experienced she may be.
Lord Lloyd of Berwick (CB)
My Lords, for the reasons that have already been given, I support the amendment and I do so all the more willingly because it is very similar to an amendment which I tabled two years ago when we were debating the LASPO Bill. A very significant difference between the two amendments is that I thought that the review should take place after 30 years rather than 25 years. My reason was that 30 years is one of the starting points for determining tariffs under Schedule 21. A defendant with a 30-year starting point and no mitigating or aggravating features would look forward to a review after 30 years but not before. It would not particularly make sense that a whole life prisoner should have a right of review after 25 years when one with a 30-year starting point would have to wait for 30 years, but that is a small detail.
The debate on my amendment took place on 9 February 2012, at col. 390. There were 12 speakers on that occasion. All, except the noble Lord, Lord McNally, supported the amendment. The only reason which the noble Lord gave for not supporting the amendment was that the public was not yet ready for it and, for that reason, the other place would not accept it and there was no point in it passing through this House. During my reply, he said that it would be easier to reach unanimity if we could arrange a joint meeting of both Houses. That is exactly what has now happened in the sense that we have the Joint Committee on Human Rights, which includes Members from the House of Commons and the House of Lords. So far as I know, there was no dissentient voice from any Member of the Commons. Perhaps we may put that objection on one side.
Until 2003, there was no doubt that exceptional progress in prison qualified a lifer serving a whole life tariff for a review after 25 years. Somehow, that right was overlooked when the 2003 Act was being pushed through Parliament. There was no evidence that I know of that the right of review after 25 years was causing resentment or was in any way unpopular with the public. Certainly, those serving these sentences had done nothing that I know of to forfeit the right which they then had. For my part, I cannot believe that anyone in government made a conscious decision to remove this right. It seems almost inconceivable that they would have done, but there we are. All we seek to do in this amendment is to restore to these prisoners a right which they have lost, so far as I am concerned, for no apparent reason.
There are other equally strong arguments to support the amendment. Prisoners serving tariffs of 20 or 30 years are entitled to a review after they have completed their tariffs. It gives them light at the end of the tunnel and provides them with a reason for making progress if they can. In those cases, the review is justified both on practical grounds and on humanitarian grounds. Will the Minister say why those reasons precisely do not apply to those serving whole life sentences? One might think that it should apply all the more so. It cannot be that they are being deprived of this right for some symbolic reason, but if that is the case I would be very glad to hear about it.
I could understand if the Minister said, like the noble Lord, Lord McNally, that this amendment would never be accepted at the other end of the corridor, but I would have no sympathy with him at all if he said that we should wait until the Supreme Court has decided the appeal in McLoughlin. The decision in Vinter is clear: a life prisoner is entitled to know at the start of his sentence what he has to do to qualify for a review after 25 years. It is equally clear that exceptional progress in prison would be a qualifying ground. But Section 30 of the 1997 Act provides that a prisoner can be released only on “compassionate grounds”. A prisoner who has earned his review by making exceptional progress is not being released on compassionate grounds in any ordinary sense of that term. Whatever the Supreme Court may say, we will need primary legislation to change the word “compassionate” or make clear what the word “compassionate” means. I would have thought that we would need a different word or an additional word. That will require primary legislation. I see no reason to wait until the Supreme Court has expressed a view. Indeed, if we had the primary legislation now, maybe there would be no need for a hearing at all. We should, in my view, grasp the nettle now. That is why I support the amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I add only this to the point made by the noble and learned Lord, Lord Lloyd, in answer to my noble friend Lord McNally’s response. Not only is the Joint Committee on Human Rights composed of Members of both Houses, but members of all parties agreed unanimously on this report. My reasons for supporting the amendment are threefold. First, it is a matter of simple humanity. Secondly, I agree again with my noble friend Lord Lester and the noble and learned Lord, Lord Lloyd, that I do not believe the decision of the Court of Appeal in McLoughlin has put the current position in English law beyond doubt in the light of the clear decision of what is required by the Grand Chamber of the European Court of Human Rights in Vinter. In any event, it is for Parliament to make the law clear on this issue. Thirdly, our obligation to honour our treaty commitments is an absolute one that must not be shirked.
My first point is the point of substance, independently of the convention: a whole life tariff without the prospect of review is incompatible with a humane approach or human rights-based approach to punishment. I remain firmly committed to the principle that one of the primary purposes of punishment is rehabilitation. This is embodied in statute law by Section 142 of the 2003 Act, which is the very Act on which whole life sentences are based. That provides, under the heading “Purposes of sentencing”, that:
“Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing”,
the third of which is;
“the reform and rehabilitation of offenders”.
The imposition of a whole life order without any hope of release on rehabilitation grounds is incompatible with that statutory purpose of sentencing. It does not follow that a whole life tariff cannot be imposed by the sentencing court, but it does follow that, when sentencing, a judge should know and the offender should know that there is some prospect at least that in exceptional circumstances there will be a power to enable the offender’s release other than on purely compassionate grounds. Of course, it is understandable that in the case of the most heinous crimes the purpose of rehabilitation comes low down the list, but the absence of any possibility of review except on compassionate grounds, interpreted in the “Lifer Manual” as being, effectively, only in the case of terminal illness, removes hope completely in a way that is inhumane.
My second point is one that has been made: that the judgment of the Grand Chamber in Vinter was unequivocal. The court was absolutely clear that the effect of such an order is that a prisoner cannot be released other than at the discretion of the Secretary of State. I urge on the House the point made by the noble Lord, Lord Pannick, that the Secretary of State should not be the decider. There should be an independent body. That release would occur only on compassionate grounds under our statute. The court therefore held that a whole life order of imprisonment violated Article 3, which prohibits inhumane and degrading treatment and torture.
The United Kingdom judge, Judge Mahoney, emphasised that states were free to choose the means whereby they fulfil their obligation to “abide by” the Grand Chamber’s judgment in relation to Article 3. The Court of Appeal’s decision in McLoughlin leaves the position unclear, because the Court of Appeal appears to have held that the existing law permits release on other than compassionate grounds, contrary to the statute and to the finding of the European Court of Human Rights in Vinter. Whatever the Supreme Court may or may not do with McLoughlin, it is, I suggest, now for us in Parliament to make it clear what the law is in this crucial area and to do so in a way that unequivocally honours our treaty commitments.
Lord Davies of Stamford (Lab)
My Lords, I hope that the noble and learned Lord, Lord Lloyd, was right when he said that he did not believe that any member of the Government had ever wished that the right of review for whole life prisoners should disappear. He may well be right, and I would be the last person to wish to challenge his generosity, but I have seen at very close quarters in the course of my political career how really fundamental legal principles can be eroded under the pressure of electoral and demagogic—I can use no other word—considerations. It is enormously important for us in the House of Lords, who are less prone and less open to those pressures than Members of the other place, to be very clear in our minds about the legal principles on which we really do wish to take our stand and which we think are foundational for our legal system.
I support this splendid amendment on the three grounds that have already been touched on in one way or another by those noble Lords who have spoken to it. One is that it undoubtedly increases the humanity, and therefore the justice, of our legal system, which, after all, has been inspired over the centuries by the Christian idea of forgiveness, as well as by other Christian concepts
It also contributes to the efficiency and efficacy of our penal system, because no penal system can really work properly unless it is committed to the concept of rehabilitation. If rehabilitation is excluded or irrelevant for certain classes of prisoner, because nothing they do and no transformation of their character or behaviour can earn them any kind of release, then there is no rehabilitation for some prisoners and rehabilitation therefore ceases to be a general principle that is observed by the penal system in relation to all its prisoners as a matter of course. That leads to a degradation of the spirit and the culture of the penal system concerned, which would be extremely undesirable.
Thirdly, I very much share the view that has already been expressed that it is very important that other penal, legal decisions about the review of prisoners should be taken by independent judicial or quasi-judicial bodies—for this purpose, I accept that the Parole Board falls into that category—and under no circumstances, for the reasons that I mentioned at the outset of my intervention, by a member of the executive branch of government, open to pressures from Back-Benchers, the Daily Mail and God knows who else.
This amendment is extremely timely and I wholeheartedly agree with the view that has already been expressed that the responsibility now lies with Parliament to clarify the law, to make it absolutely clear what we believe the law should be in this particular matter, not to leave matters to the vagaries of jurisprudence, given the considerable uncertainty that has already been created, certainly in my mind, by the Minister’s statement that it is possible to interpret “compassionate” as including all sorts of issues relating to the conduct of the prisoner as well as the prisoner’s health. We are going down a route that would lead to greater uncertainty for the law and therefore greater injustice, which would be extremely undesirable. We have the opportunity to legislate clearly in this House this afternoon and we should take it.
Lord Phillips of Worth Matravers (CB)
My Lords, I support this amendment. In Vinter, the Grand Chamber of the Strasbourg court made it plain that a whole life sentence that had no possibility of review, however long the defendant might be detained in prison, constituted inhuman treatment contrary to Article 3 of the convention. In explaining its decision, the Grand Chamber said at paragraph 112 that,
“if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence”.
That passage echoes the observations of the noble Lord, Lord Marks, which I endorse.
The Strasbourg court held that the discretionary power of the Secretary of State to release a whole life prisoner under Section 30 of the Crime (Sentences) Act 1997 did not satisfy the requirement of Article 3 because of uncertainty as to when the Minister would be required to exercise that power. In so holding, it differed from a decision of the Court of Appeal in Bieber, over which I had presided, but as the House has heard, the Criminal Division of the Court of Appeal presided over by the Lord Chief Justice has recently disagreed with the Strasbourg court on this point in the case of McLoughlin.
The Court of Appeal said this about the duty of the Secretary of State:
“First, the power of review under the section”—
that is, Section 30 of the 1997 Act—
“arises if there are exceptional circumstances. The offender subject to the whole life order is therefore required to demonstrate to the Secretary of State that although the whole life order was just punishment at the time the order was made, exceptional circumstances have since arisen. It is not necessary to specify what such circumstances are or specify criteria; the term ‘exceptional circumstances’ is of itself sufficiently certain”.
The court went on:
“Second, the Secretary of State must then consider whether such exceptional circumstances justify the release on compassionate grounds … Third, the term ‘compassionate grounds’ must be read, as the court made clear in R v Bieber, in a manner compatible with Article 3. They are not restricted to what is set out in the Lifer Manual. It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis … Fourth, the decision of the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review”.
One suspects that the Secretary of State may not relish being required to exercise this discretion; nor is it appropriate that the discretion should be exercised by a member of the Executive, as the noble Lord, Lord Pannick, has explained. This amendment would transfer the relevant decision to the Parole Board and define the circumstances in which it would fall to be exercised, with a precision that should satisfy the Strasbourg court.
Lord Ramsbotham
My Lords, I support the amendment and in particular the intervention made by the noble Lord, Lord Marks. In doing so, I remind the Committee of one group of people whom I mentioned during the debate to which my noble and learned friend Lord Lloyd referred. I refer to prison staff. I am glad that the noble Lord, Lord Marks, mentioned the word “hope”, because when I inspected prisons in which full life tariff prisoners were held, their governors made the point to me that the fact that those cases could be reviewed, which was not necessarily the same as that they might be released, gave the prisoners hope and therefore enabled them to conform with the prison regime. That was vital for the purposes of the prison staff who had to maintain the regime. It is important in considering this that the role of the staff should not be forgotten.
Lord Hope of Craighead
I want to add a footnote to the points made by the noble and learned Lord, Lord Phillips of Worth Matravers, based on my own experience. I became the Lord Justice General of Scotland about 25 years ago. At that time, one of the sentences that was available to a trial judge was a discretionary sentence that a person would be detained without limit of time. It was not a sentence of life imprisonment, but was in effect, as it was put in the case of young offenders, detention at Her Majesty’s pleasure; that is, at the discretion of the Secretary of State.
While I was holding that office, Strasbourg began to pronounce on the compatibility with Article 3 of that kind of system. It was decided in Scotland that the system was no longer maintainable, and what was required of me as Lord Justice General was to examine the cases of all those who had been given that kind of sentence to provide them with a tariff—or, in the Scottish terminology, a punishment part—which would set the date as from which their cases might be considered by the Parole Board. Until that was done, it had been entirely at the discretion of the Secretary of State, and it was thought that that was improper. The system that was devised was to require a judge to review such cases, recognising, as others have suggested today, that it would be incompatible with the convention for the decision to be left with the Secretary of State.
It was a very unpleasant exercise for me as the people who had received those sentences had committed the most appalling crimes. In comparison with life sentences, which sometimes were relatively simple, these people deserved the most condign punishment. Nevertheless, it was decided that they required some kind of certainty, removed from the discretion of the Secretary of State, so that they could plan their time in prison and there could be some method for review. It was not of course for them to be automatically released; that was not the point of it. It was so that their time in prison could be subject to a regime which would give them, as was said by the noble Lord, Lord Ramsbotham, some reason for hope that, possibly, in the very long term and in exceptional circumstances, they might be released.
The system being put forward in this amendment is therefore very similar in principle to one which was introduced about 20 years ago in Scotland to cure a similar problem about leaving the matter to the discretion of the Secretary of State. For that reason, I, too, support the amendment as being sound in principle.
Lord Elystan-Morgan (CB)
My Lords, seldom can there have been such an array of distinguished supporters for any amendment, and all I seek to add is some very short footnotes.
There are principles of immense worth and significance that are associated with this issue, one of them being, as so many speakers have pointed out, that there is no such thing as an irredeemable prisoner. I remember the very first day that I came here, which was about 33 years ago. A very distinguished judge had said that, in his vast experience, he had not thought that prison had reformed anybody at all. I remember thinking then about the exact wording of Rule 1 of the Prison Rules 1964. The wording was that the prime purpose of punishment should be the reform and rehabilitation of the prisoner. That is not now placed quite as high—it is now third on the list—but it still occupies a prominent place. To deny the prospect, remote though it might be, of redemption and the even more remote prospect of release—this will operate only in a very few circumstances—would be to deny one of the basic tenets of our concept of justice and punishment.
Lord Beecham
My Lords, I must confess that I am somewhat puzzled by the position outlined in the JCHR report and what the noble Lord, Lord Lester, referred to as the Government’s recent pronouncements on it. As he rightly said, the report indicated that the Government would be awaiting the outcome of the appeal in McLoughlin before updating the Committee of Ministers of the actions that they plan to take to implement the Vinter judgment—which implies that the Government are planning to implement the Vinter judgment, but in ways as yet undetermined.
I am sure that the Minister will be able to enlighten us about whether that is in fact the Government’s intention and, if so, what approach they will be taking. If they are awaiting the outcome of that appeal before coming to a conclusion, that is not an unreasonable position for them to take, but the underlying question is whether they intend to implement the Vinter judgment as indicated in whatever decision the Supreme Court ultimately makes on the details of the McLoughlin appeal.
I am also uncertain about the interesting reference that the noble and learned Lord, Lord Phillips, made to a wider meaning of “compassion” and whether that would be a criterion for release. Is that something that the Government are in fact contemplating? Might that form part of their response to the Committee of Ministers in relation to Vinter?
These are difficult cases, and one must hope that we can reach the position where we are not in conflict with the court but that, nevertheless, the balancing interest of public safety is also given due weight. For the Opposition’s part, we await the Government’s response in general and the Minister’s response in particular this afternoon.
Lord Faulks
My Lords, I fully understand what lies behind this amendment, which seeks to provide a review mechanism for whole life order prisoners. Mention has been made of hope and redemption, and understandably so. This issue has indeed been raised previously in your Lordships’ House and we were reminded by the noble and learned Lord, Lord Lloyd, who has been wholly consistent on this subject, in particular of the debate which he initiated during the passage of the LASPO Bill on 9 February 2012. I am also conscious of what was described by the noble Lord, Lord Elystan-Morgan, as the distinguished support that has been provided for this amendment.
However, I really doubt whether the noble Lords supporting this amendment or the Joint Committee on Human Rights, which suggested it, truly meant to give the Parole Board a sentencing function in the way that the amendment suggests. There is no precedent for this and nothing in the amendment indicates how it might approach the task of replacing a whole life order with a determinate minimum term. There is a real risk that, were this to be the law, it would put the Parole Board in potential conflict with the judiciary—or at least, set up a tension—which would hardly be desirable.
I am glad that the noble Lord, Lord Beecham, mentioned the protection of the public and the nature of a whole life order, because the Committee should not forget that such an order is imposed only where the court is satisfied that the offence is so exceptionally serious that the sentence is justified for the purposes of punishment and deterrence. In those circumstances, the court is fully aware that the offender will then face spending the rest of his or her life in prison, so we are talking about the most serious offences. Indeed, the noble and learned Lord, Lord Hope, referred to that in his equivalent experience in Scotland.
The key concern expressed by your Lordships is to put a clear scheme for review in place for whole life orders. This issue has come to the fore following the judgment of the European Court of Human Rights in the Vinter case, when it found last year that whole life orders without a review mechanism are incompatible with Article 3 of the convention at the point of sentence. However, as has been referred to in the debate, since then there has been domestic litigation and the Government now consider that the Court of Appeal has settled the domestic position in relation to whole life order prisoners. Earlier this year, a specially constituted Court of Appeal heard the cases of McLoughlin, Newell and others, whole life order prisoners who were appealing their sentences including on the grounds of incompatibility with Article 3. The court determined two crucial issues: that whole life orders can and should be imposed in the most exceptionally serious cases; and that the operation of Section 30 of the Crime (Sentences) Act 1997, which deals with release on compassionate grounds, was sufficient to render a whole life order reducible.
The Court of Appeal confirmed that the Secretary of State has a duty to exercise his or, as the case may be, her powers under Section 30 compatibly with Article 3 and must consider all circumstances relevant to release on compassionate grounds. The Court of Appeal found that there was no lack of clarity as to the applicable domestic law. The judgment explained that the power of review under Section 30 arises if there are “exceptional circumstances”—a term which the court found to be of sufficient certainty in itself and which will be applied on a case-by-case basis. Indeed, the Court of Appeal said that “compassionate grounds” should be read in that manner:
“It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis”.
The Court of Appeal therefore concluded that domestic law provides the offender with the possibility of release in exceptional circumstances such that the just punishment originally imposed is no longer justifiable. The court also said:
“We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of s.30 we have set out provides for that possibility and hence gives to each … prisoner the possibility of exceptional release”.
The Court of Appeal, presided over by the Lord Chief Justice, was uniquely placed—authoritatively and conclusively, the Government suggest—to explain how domestic law operates. It has done so in the manner that I acknowledged earlier. As a result, the Government consider that there is no further action that we need to take to give the clarity provided by that judgment.
The Newell appeal has not been allowed, so there is no outstanding domestic litigation following the McLoughlin and Newell case action report. The report sent to the Committee of Ministers sets out the Government’s position. We would not of course simply have said that we should await the Supreme Court position, but it would be idle for a Government to say that they would ignore a decision of the Supreme Court. Had the matter reached that court, the Government would have been mindful of our obligations, but in fact that particular road is now closed.
The Court of Appeal having considered the matter, with its particular experience both of whole life sentences and of the dynamism of the common law to deal with the situations that naturally concern noble Lords, we conclude that the amendment is unnecessary. Notwithstanding its distinguished support and the strength of feeling, we invite the noble Lord to withdraw it.
Lord Lester of Herne Hill
My Lords, I am grateful to everyone who has spoken in this extraordinary debate, including the Minister. One has to bear in mind that under Article 46 of the convention there is a duty on the UK to abide by the final judgment of the Strasbourg court in the British case. That duty must be performed not just by the Government, thank goodness, but by Parliament and by the judiciary. When the Committee of Ministers of the Council of Europe—that is, 47 Governments, including 46 that will be looking at this debate and particularly at what the Minister has just said—next meets to scrutinise whether the UK has in fact properly complied with the judgment, it will no doubt read the debate, including the Minister’s reply, and the report of the Joint Committee on Human Rights with some interest. It will note that three of those who have spoken contrary to the view of the Minister have all exercised judicial power in our apex courts, the House of Lords and the Supreme Court, including the President of the Supreme Court, and they will view with some surprise the notion that the Minister’s view of the Court of Appeal judgment is somehow more significant when looking at the matter than the views of those extremely distinguished jurists, all of whom, as I say, have exercised judicial power at the very apex of our legal system.
I simply do not understand how the Government think they can get away with it. They have already spent years and years, like their predecessors, in trying to get away with their refusal to abide by the final judgments in the prisoners’ voting rights case. By a strange quirk of life, I go to the Committee of Ministers every quarter. I shall not be at the next one but I usually go there because I am deemed to be Cypriot, for the purposes of the Cyprus/Turkey dispute. I observe what happens, without speaking, in the British cases. I have to say to the Minister, who has not had that experience, that our reputation at the moment is right at the bottom. Everyone I speak to—ambassadors, judges, civil servants in Europe—view with astonishment the fact that we now have a Minister of Justice, a Home Secretary and a Prime Minister who feel sick when they read judgments of the Strasbourg court and say so, and who threaten to tear up the convention or, rather, to withdraw from the court’s jurisdiction and the Human Rights Act. One cannot imagine quite what it is like to have lived through a period when the United Kingdom had such a fine international reputation and then to find that the pseudo-democracies of Europe—the dictatorships and totalitarian regimes—say, “If the United Kingdom can do this so can we”.
The JCHR said that this was a probing amendment, and that is what it is, but it is an extremely valuable probing amendment because those experts on penal reform, such as the former Chief Inspector of Prisons, the noble Lord, Lord Ramsbotham, and distinguished human rights advocates, within the law or in some other occupation, have all spoken in the same way. I have no doubt that the Government will not get away with it and that the Committee of Ministers will not close the matter, as the Government are now saying, but will demand further explanations. Having said all that, I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames
My Lords, the purpose of this amendment is quite simply to remove the power proposed in the Bill by Clause 6(3) to provide that the power to impose an electronic monitoring condition be mandatory. Amendment 14, which is also tabled in my name, is consequential upon Amendment 9.
The Committee will no doubt quite understand that the effect of subsection (2) is to amplify and explain the Secretary of State’s power to impose an electronic monitoring condition on the release on licence of prisoners. That is a desirable and sensible condition to be imposed where appropriate. The idea that by subsection (3) a new Section 62A is added to the Criminal Justice and Court Services Act 2000 giving the Secretary of State power by order to make it compulsory to impose an electronic monitoring condition evades explanation, I regret to say. The power under Section 62 already gives the Secretary of State power to make rules about the conditions for the imposition of such a condition. I simply invite the Minister to explain why the fetter on the Secretary of State’s future discretion is needed.
There may be cases where an electronic monitoring condition is not required or is inappropriate. I take as an obvious example the case of a prisoner who is disabled or is to be hospitalised on release. That is recognised in Section 62 as it stands. Making an electronic monitoring condition compulsory seems a retrograde step depriving a Secretary of State who brings it in by order and any future Secretary of State of the power or the right to exercise discretion not to make such a condition in appropriate cases. The amendment is a simple one, and the issue is a simple one. I beg to move.
The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD)
My Lords, if Amendment 9 is agreed to, I cannot call Amendments 10 to 12 inclusive by reason of pre-emption.
Lord Beecham
My Lords, tagging—or electronic monitoring, to give it its official title—is potentially a useful tool in cases where it is necessary to protect the public by, for example, prohibiting contact with named individuals, imposing a curfew or restricting access to particular places. Even so, we are all conscious of the appalling experience with the Government’s favoured all-purpose contractors, G4S and Serco, which resulted in the repayment by those companies in the end of £214 million, roughly equivalent to the total of a year’s savings engendered by cuts to legal aid. Clause 7 takes us, as we have heard from the noble Lord, Lord Marks, into new territory with the extension of the use of this system to prisoners on licence, and that on a mandatory basis. The Chief Inspector of Prisons has been highly critical of this proposal, since in the absence of evidence of absconding or committing offences while on licence this is not, in fact, a significant problem. What is the evidence on which this proposal is based and what is the cost of the equipment and the necessary monitoring? The impact assessment states:
“Though benefits likely to arise from the increased use of ELM have been identified, we are not able to quantify these benefits at this stage … As such, we are unable to calculate impact”.
That is an extraordinary basis on which to import into this legislation a mandatory requirement. It seems, as an approach to legislation, to be matched only by the Home Office’s approach to record keeping.
Dan Jarvis MP, my honourable friend in the Commons, has identified some significant risks. They include the possibility that the technology might not be capable of delivering the service at an economic cost. The use of tagging might not have the anticipated deterrent effect. The new licence conditions might lead to an increase in breaches, such as not wearing the tag, which could lead to more prison places being required. On the latter point, the impact assessment rather weakly admits that the number of additional prison places required, “cannot be accurately estimated”. If ever the Government’s own impact assessment has made the case for properly piloting a provision, this is clearly such a case. Moreover, there is widespread concern about making this a mandatory condition, something that is at odds with the whole purpose of release on licence, which is to help offenders reintegrate into society. One has to ask whether making it mandatory is a provision dictated by the potential contractors’ need for an assured case load and associated financial returns rather than any substantive merits of the procedure.
There is also the unacceptable position that the Secretary of State may impose a code of practice especially about the data acquired through the process without parliamentary approval. The Joint Committee on Human Rights regards safeguards in relation to the collection and storage of such data as crucial. Where are we in relation to the drafting of a code? Amendment 12 deals with this issue.
Amendment 13 calls for an early review of any scheme in order to assess its actual impact on individuals, on reoffending, and on cost. Amendment 11, which we seek to repeat in Amendment 44 applying to secure colleges, would make the contractors subject to freedom of information procedures. Last year, the Information Commissioner asked the Justice Committee, in this respect, if more and more services are delivered by alternative providers which are not public authorities, how do we get accountability? This is particularly relevant in the context of the justice and penal systems, where there have been too many worrying failures and instances of quite disgraceful treatment of prisoners and detainees by such contractors. If, as is quite right, state prisons are subject to the Freedom of Information Act, what possible reason could there be for excluding other providers, including those who are to provide the tagging mechanisms here?
I hope that the Minister can deal with some of these questions, as well as the points of substance raised by the noble Lord, Lord Marks. It is absolutely impermissible for these powers simply to be imposed by order, and on the basis of such flimsy evidence as the Minister produced, to support the extension in the way that the Bill prescribes.
Baroness Kennedy of The Shaws (Lab)
My Lords, I know that it is normal that the Front Bench on this side finishes any debate before the Minister answers, but I really have a bad feeling about the clause and I want to support the amendment. The provision smacks to me of the outcome of lobbying by those who will have highly remunerative contracts, if it comes to pass. We are not hearing any costings on this, and I would very much like the Minister to tell us what it is going to cost the public purse. As others have said, there are circumstances in which it is very useful to tag someone when there are concerns about whether they might not respond to the ordinary inhibitions on their liberty during a period of parole, but I am concerned about it being used in this wide way. Behind the provision is the lobbying by those private sector companies that now make a great deal of money out of this very kind of thing. Have any costings been done? How much will it cost the public purse?
Lord Ponsonby of Shulbrede
My Lords, I want to pick up on the point that my noble friend Lady Kennedy of The Shaws has made and speak to Amendment 13, on the review of this extension of tagging. My honourable friend Dan Jarvis made the point in the other place about possible unforeseen consequences of this extension. I was talking to a magistrate colleague of mine only last week, and she pointed out to me that the new GPS tags are physically much larger than the existing tags used today. That means that they are possibly easier to remove—but there is another possible consequence, in that they need charging much more often. The existing tags do not need recharging because the battery lasts for the length of the period that the person is tagged. Potentially, that raises a whole series of issues with offenders—people out on bail or offenders in the case that we are now discussing—who are not properly recharging their GPS-driven tags. My understanding is that they would have to do it by an induction loop; it would not be a physical connection. That could raise a lot of unforeseen consequences, which is why I reiterate my support for Amendment 13, so that it can be looked at when the provision comes into force.
Lord Ahmad of Wimbledon (Con)
My Lords, the effect of Amendments 9, 10 and 14 would be, as my noble friend Lord Marks said, to remove from the Bill the provisions which would allow for compulsory electronic monitoring conditions to be imposed on offenders on release from custody. This would leave the use of these conditions on a discretionary basis, as they are now under the Criminal Justice and Court Services Act 2000. I understand that there are some concerns about how these powers will be used. Therefore, it may be helpful if I take some time to explain how the provisions would work and why the Government consider them necessary and important in our drive to deliver a more effective sentencing and rehabilitation framework.
I emphasise that legislation has been in place for some years to provide for the use of electronic monitoring as a condition of release, both to monitor compliance with other conditions, such as curfew or exclusion conditions, and to monitor the offender’s whereabouts as a condition in its own right. The limitations of the current technology have meant that, in practice, electronic monitoring has been used so far simply to monitor compliance with a curfew. However, we are reviewing the electronic monitoring contracts, which provides us with the opportunity to take advantage of new, cutting-edge technology that will enable us to track offenders in the community.
Baroness Kennedy of The Shaws
Before the Minister sits down, perhaps I may ask a question. Was there lobbying by security companies to have this change in law introduced so that it would be compulsory for all prisoners on licence to have tags placed on them? Was there lobbying to create this change in law?
Lord Ahmad of Wimbledon
The noble Baroness asks a pertinent question. Representations are always made in any part of government, but the Government are, as I hope I have indicated, taking these steps forward in line with the concerns that exist and based on the evidence that I have presented to the Committee today.
Lord Beecham
With respect to the Minister, he may not be able to answer the question that my noble friend has asked without advice from the Box or elsewhere; but he has not even purported to answer the question. The question is a legitimate one. Perhaps he would undertake to reply to my noble friend and let her and the Committee know whether those who are likely to benefit from these contracts lobbied for this provision to be mandatory.
Lord Ahmad of Wimbledon
Of course I will take advice on this, but as I have said already—and the noble Lord knows this as well as I do—representations are made in any form of government. I will of course endeavour to write to the noble Baroness. I will share with the Committee the details of that letter and place a copy in the Library.
Lord Marks of Henley-on-Thames
My Lords, a great deal of what my noble friend has said in response to these amendments is entirely uncontentious. As I hope I have made clear, I have no objection to discretionary electronic monitoring of prisoners on licence, and no objection to improved tracking, technical improvements or effectiveness. I quite understand everything he said in that score.
My concern was with the element of compulsion added by new subsection (3). I regret that I simply did not understand my noble friend’s response on its drafting. He said that there was somehow a discretion in the order-making power under new subsection (3) that would enable the Secretary of State to take into account cases where it would be difficult, inappropriate or not sensible to impose electronic monitoring. It may be that we are talking about a matter of drafting. In that case, I urge my noble friends to look at the drafting.
New Section 62A provides:
“The Secretary of State may by order provide that the power under section 62 to impose an electronic monitoring condition must be exercised”.
The description of the order-making power states:
“An order under this section”—
which is an order that the monitoring condition power “must be exercised”—
“may … require an electronic monitoring condition to be included for so long as the person’s release is required to be, or may be, subject to conditions or for a shorter period”,
and may,
“make provision generally or in relation to a case described in the order”.
It may be that my noble friend is referring to the entitlement to make provision generally as imposing a discretion. If he is saying that, I would suggest that that no longer complies with the description under new subsection (1) of an order imposing “an electronic monitoring condition” which “must be exercised”. Furthermore, even if he were right that that would somehow allow electronic monitoring conditions not to be mandatory, I would respectfully suggest to him that that is a clunky way of providing for particular cases to be dealt with in accordance with the discretion, which is what I suggest ought to be maintained. However, on the basis that my noble friend will consider the drafting, I beg leave to withdraw the amendment.
Lord Beecham
“(1A) The code of practice must include a requirement that a person carrying out electronic monitoring who is not a public authority as defined by section 3 of the Freedom of Information Act 2000 shall provide information in respect of the carrying out of electronic monitoring in the same manner as if they were such a public authority.”
Lord Beecham
My Lords, the amendment addresses the growing trend of government to outsource the provision of public services to private contractors. Something like £95 billion a year is now tried up in such contracts. They cover a whole range of services, but the Ministry of Justice has been at the forefront of this development in public policy. One thinks of the controversial issue of probation, which we have debated at length, notwithstanding the Government’s initial decision not to include it in legislation. We also have the experience of a number of private prisons—certainly under the previous Government as well, but now clearly to be promoted even further. We have for some time now seen court staff provided to magistrates’ courts and elsewhere by private contractors. We have had the shambles of the interpreter service, again in the hands of contractors. In the Bill we have, as we have already heard this afternoon, provisions about tagging. We will come in due course to the controversial provisions about secure colleges.
Public providers still operating in some of these areas, such as in the case of prisons, have to comply with the provisions of the Freedom of Information Act, but the private contractors do not. That strikes many as a complete anomaly. Why should a private prison such as the Acklington prison in the north-east of England, where I come from, which has experienced great difficulty since privatisation, not be subject to FoI requests when one of Her Majesty’s prisons, perfectly properly, is? Why should those who look after certain detention centres for asylum seekers be immune from FoI requests, particularly given the constant flow of unfortunate stories that we hear from such places, while a public institution is, perfectly properly, accountable? I have already quoted the Information Commissioner’s comments in addressing the Justice Committee last year, but I will repeat them. He asked,
“if more and more services are delivered by alternative providers who are not public authorities, how do we get accountability?”.
Even the Prime Minister is on record as being in favour of transparency. A couple of years ago, he spoke about the power of transparency and why we need more of it. He also spoke of leading the most transparent Government ever. Transparency, of course, has a number of meanings and one can accept that, in a certain respect, his Government is exceedingly transparent—but it is not particularly transparent when it comes to the letting of contracts, particularly to these third-party organisations.
My honourable friend Dan Jarvis said in a debate in Committee on the Bill:
“The rewards that third parties stand to gain need to go hand in hand with the duties of transparency and information sharing. The public should be able to ask … how, and how well, the service they are paying for is being run”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 187.]
The Labour Party has pledged to extend the FoI legislation to contractors of public services. Why will the Government not at least match Labour’s pledge to do likewise and extend the freedom of information provisions to these companies, which are carrying out important and, in many cases, extremely sensitive areas of public provision? It would appear that those companies are essentially immune to the same processes that would apply if they had remained in public hands. Particularly given the great concern about the developments in the probation service, it is not time that the Government acknowledged that there is force in this argument and, accordingly, accepted the amendment? I beg to move.
Lord Ahmad of Wimbledon
My Lords, Amendment 11 seeks to impose a requirement on providers of outsourced electronic monitoring services to make information available in the same manner as if they were subject to the provisions of the Freedom of Information Act 2000. It does this by introducing a requirement as to the contents of the code of practice that the Secretary of State will issue under new Section 62B of the Criminal Justice and Court Services Act 2000, to be introduced through Clause 6 of the Bill. The amendment would require private providers not currently subject to the Freedom of Information Act to make information available both in response to FoI requests and proactively through publication schemes.
I assure the Committee that the Government recognise that there are concerns about the position of private providers of public services under the Freedom of Information Act. As noble Lords may know, the issue of outsourced public services was considered in some detail during post-legislative scrutiny of the Freedom of Information Act, carried out by the Justice Select Committee in 2012. The committee recommended the use of contractual provisions, rather than the formal extension of the Freedom of Information Act, to ensure that transparency and accountability are maintained. In particular, the committee said that it believed,
“that contracts provide a more practical basis for applying … outsourced services than partial designation of commercial companies under section 5 of the Act”.
The committee also felt that,
“the use of contractual terms to protect the right to access information is currently working relatively well”.
The Government accepted the committee’s recommendation and later this year will issue a revised code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. The new code will promote and encourage the use and enforcement of contractual obligations to ensure that contractors provide information held on behalf of public authorities. It will also encourage contractors voluntarily to provide additional information beyond that held on behalf of the contracting public authority where, for example, doing so would help the contracting public authority to provide a more meaningful response to requests.
The Government and the Information Commissioner, referred to by the noble Lord, Lord Beecham, will monitor the effectiveness of the new code. If it does not prove successful, the Government have said they will look at going further, including potentially extending FoI formally to contractors—again, a point made by the noble Lord, Lord Beecham. We believe that our approach represents an appropriate balance between transparency and minimising burdens on business. As a result of these steps, I would argue that the measures proposed through these amendments are unnecessary. Based on the explanation and assurance I have given, I hope the noble Lord will be minded to withdraw his amendment.
Lord Beecham
My Lords, I will not press the amendment at this stage, but it is not clear to me why there should be two separate systems, one for private contractors and one for public agencies. The opportunity to raise an FoI request is open to anybody and should apply equally to the two different types of provider.
The Minister and his ministerial colleague in the House of Commons referred to the production of a code of practice. Once again, we are being asked to legislate in a vacuum because we have not seen the code of practice. Nor is it clear whether that code of practice will be subject to parliamentary approval. Perhaps the Minister can indicate whether that would be the case.
However, even if it were subject to parliamentary approval, I still do not see the logic in having two separate systems for the provision of like services, depending on which provider is carrying them out. Surely that will not assist members of the public. It must be difficult for them, as it is for me, to comprehend why there should be two parallel systems when they are looking not so much at the provider as at the nature of the service and any potential problems that might arise.
If the noble Lord cannot deal with that today, perhaps he will consider writing to me—again, sending that reply to the Library—otherwise, this is a matter to which we may well have to return on Report. In the circumstances, I beg leave to withdraw the amendment.
Lord Beecham
“(4B) In considering whether the person is highly likely to breach a condition included in the person’s licence, the conditions shall be reviewed and amended as appropriate to ensure that the person is able to comply.”
Lord Beecham
My Lords, I shall speak also to the Question whether Clause 8 stand part of the Bill.
This amendment refers to the provisions in Clauses 7 and 8 dealing with the test for release after recall in the case of determinate sentences. The amendment requires the Secretary of State and the Parole Board to consider, in addition to other factors currently applicable in determining whether a recall prisoner is suitable for automatic release or rerelease when subject to discretionary release, whether the offender is “highly likely” to breach his licence condition. That is the thrust of the Bill as it stands.
At present, the principal consideration is whether release would involve a risk of serious harm to the public. Clause 8 empowers the Secretary of State to change the test by means of an order subject to affirmative resolution. Left as it stands, the “highly likely” test looks to be subjective, and that impression is enhanced by the failure to consider and provide for factors which might contribute to the outcome of a decision to release.
Similar issues arise in relation to the new offence of remaining at large after recall in Clause 10, to which we will come later. As in that case, what is missing is an assurance that the necessary support will be given to vulnerable offenders, especially those with, for example, mental health problems or learning disabilities which seriously impair their capacity to understand even common terms such as “victim” or “breach”, as affirmed in the helpful briefing provided by the Prison Reform Trust. A substantial proportion of prisoners suffer from conditions that affect their capacity precisely to understand the conditions that might be laid upon them or otherwise to conduct what for ordinary citizens would be a simple lifestyle.
The Prison Reform Trust points out that conditions in relation to release and supervision need to be appropriate to the intellectual ability and understanding of the offender in order to comply with the obligations of the Equality Act 2010. It is unclear whether the Government have considered the applicability of the Equality Act to this provision and whether they consider that the provision passes the test.
Amendment 15 would therefore require the conditions in a person’s licence to be reviewed and amended from time to time to ensure that the person is able to comply—that is, that he has the faculties to allow him to comply—and that will usually involve the provision of relevant support for the prisoner in preparing for release and during the period of release. Amendment 16, which we covered earlier, would require the Secretary of State to,
“consult with the Parole Board about the resources”,
and report to Parliament on them, required to deliver that degree of support.
Clause 8 is an unsatisfactory provision inasmuch as it empowers a change in the test by secondary rather than primary legislation, as I pointed out at Second Reading. The noble Baroness, Lady Linklater, who is not her place, put the case even more strongly. She said that the clause gave the Secretary of State,
“an unacceptable degree of power”.—[Official Report, 30/6/14; col. 1593.]
She said that, for that reason, she hoped the House would join her in a stand part debate in relation to Clause 8, thereby restoring the current position, which is that change should be effected by primary legislation. It is regrettably a notable feature of this Bill that, as Justice points out, it creates no less than 30 new delegated powers, of which only eight require approval by affirmative resolution.
That is particularly objectionable in a case where individual liberty is at stake. Albeit that it is conditional liberty because it is release on licence, such is the case with the provisions that we are now debating. I hope very much that the Government will reconsider this. Perhaps, the Minister could indicate what the Government take to amount to the conditions of a test of high likelihood that the Bill expresses as a condition.
There are therefore two grounds for my amendments. The first is the requirement to ensure that the individual can cope with the conditions, and be prepared for them and supported in them. The second is to do with the parliamentary process to ensure that there is proper parliamentary scrutiny by way of primary legislation before changing a test which will interfere with the liberty of the subject. I beg to move.
Lord Ramsbotham
My Lords, I support what the noble Lord, Lord Beecham, has said. What concerns me most about Clauses 7 and 8 is that there appears to be no relevant impact assessment of what this means, not just in terms of the numbers of people who will be recalled but in terms of the numbers of people who are sentenced to short-term imprisonment followed by 12 months’ supervision in the community. The overall impact assessment tells us that there will be no impact from the provisions following the Offender Rehabilitation Act, but the impact assessment on Clause 7 says that there is a risk that short-term prisoners in their 12 months’ supervision might impose an impact. That means, as we know, that those prisoners are particularly likely to breach. It is assessed that there could be up to 13,000 short-term prisoners breaching, which will impose a considerable strain on the Prison Service. I ask the Minister whether this impact assessment has been worked out. It seems to me to be quite improper for us to pass an amendment without knowing what the impact will be.
Lord Ahmad of Wimbledon
My Lords, as the noble Lord, Lord Beecham, explained, the amendment seeks to require the Secretary of State to review the offender’s licence conditions before deciding whether a recalled determinate sentence prisoner should be subject to discretionary re-release, rather than automatic re-release, on the grounds that the offender is highly likely to breach a condition of their licence if so released. I presume that the aim is to ensure that recalled offenders have not been set up to fail through the imposition of inappropriate licence conditions and then suffer the consequences.
The purpose of this clause is to target those offenders who, while not presenting as a high risk of harm, have persistently failed to comply with probation supervision and any reasonable conditions that have been placed on their licence. More often than not, they are offenders who lead chaotic lives and persistently reoffend. They are offenders who are assessed as highly likely to breach their licence conditions on their re-release after 28 days in custody, thereby resulting in almost immediate further recall.
Lord Beecham
I thank the Minister for his helpful reply and will look carefully at the record to see whether it is necessary to bring matters back on Report. However, I emphasise that the Opposition as a whole—and, I suspect, other members of the Committee—are reluctant to confer on the Government order-making powers of a kind that would interfere with the liberty of a subject without primary legislation to establish them. However, that is a matter that we may consider at a later stage. In the circumstances, I beg leave to withdraw the amendment.
Lord Lloyd of Berwick
“(a) after subsection (2) insert—“(2A) Without prejudice to the powers of the Secretary of State under this section, the Parole Board must direct the release on licence of IPP prisoners with a minimum tariff of less than two years.”,”
Lord Lloyd of Berwick
My Lords, this amendment concerns prisoners serving indeterminate sentences for the protection of the public under Section 225 of the Criminal Justice Act 2003. The section was repealed in 2012, but there is a backlog of some 5,200 prisoners still serving sentences under it, of whom 3,600 have passed their tariff. At the present rate of release, which is running at about 400 a year, it will be nine years before those 3,600 will be out of prison.
This amendment concerns a particular group of prisoners who were given short or very short tariffs between 2005 and 2007, before the 2003 Act was amended. There are 773 of them. There is also a smaller group who were given tariffs of less than two years after the Act was amended in 2007 and are serving their sentences under different provisions, but this amendment is not intended to affect them. There are good reasons for distinguishing between these two groups: first, the 773 to whom I have referred have been in prison much longer; secondly, we know more about them; and thirdly, and most importantly, they were sentenced before the Act was amended, when judges had no real discretion as to the sentence. They were bound to assume dangerousness if certain conditions were fulfilled and were bound then to impose an indeterminate sentence. The word was “must” and not “may”.
I have a breakdown of how long the 773 have already been prison. It is dated March 2013, and they have of course spent a further 15 months in prison since then. On that basis, 275 of them are now more than six years over tariff, 291 are more than five years over tariff and 198 are more than four years over tariff. I remind noble Lords that these are all prisoners who were given tariffs of under two years, some as little as nine months or even less. I will give your Lordships examples of the sorts of offences that these prisoners committed. In April 2005, Mr Lee was given a tariff of nine months for criminal damage to the flat in which his former wife and children were living. In November 2005, Mr Wells was given 12 months for attempted robbery of a taxi driver. In November 2005, Mr James was given a tariff of two years for unlawful wounding with intent. As it happens, all those three prisoners have since had a successful appeal to the European Court of Human Rights, and I mention them only as examples of the sorts of offences—run-of-the-mill offences, your Lordships may think—which these short-tariff prisoners committed.
I turn to Section 128 of LASPO, which is referred to in Clause 9(3). When Parliament repealed Section 225, it was well aware of the backlog to which I have already referred, so it provided the Lord Chancellor with a power to alter the release test for those prisoners. It need no longer be the same as the release test for life sentence prisoners, nor need it depend in any way on an assessment of risk. It must be obvious, therefore, that Parliament gave the Lord Chancellor those powers in order to speed up the release of those prisoners and so reduce the backlog. It could have been given for no other purpose. But the Lord Chancellor—unfortunately, in my view—has declined to exercise that power.
The reason he gave in February 2013 was that it would not be right to interfere with the decisions of judges, who would have taken risk issues into account. But that reason has no validity at all in relation to the group of 773, since, for the reasons I have mentioned, their sentences were imposed when judges were obliged to assume dangerousness. In any event, when it enacted Section 128 of LASPO, Parliament must have intended the Lord Chancellor to interfere with the sentences imposed by judges; otherwise, what purpose did Section 128 serve?
The second reason given by the Lord Chancellor is that it would be irresponsible, indeed inconceivable, for him to release prisoners whom the Parole Board has assessed as continuing to pose risks. But again, that was surely the whole point of giving him the power to alter the release test. Is it to be said, therefore, that Parliament was being irresponsible in giving the Lord Chancellor that power?
Finally, there is the reason given by the Minister in his letter of 30 April. He said that Parliament did not instruct the Lord Chancellor to change the release test; it gave him discretion to do so. Of course that is true but it is well settled that, where a discretion is given by Parliament, it must be exercised so as to promote and not frustrate the purpose for which it was given; that is a principle that I know my noble and learned friend Lord Brown of Eaton-under-Heywood will develop further. The Minister gave as the reason for not changing the release test that it would not reduce the risk to the public. Of course it would not reduce the risk to the public but that was not the purpose for which the power was given. The purpose, I say again, was to speed up the release of those prisoners, not to reduce the risk.
I suggest that the Lord Chancellor must give better reasons than these for not exercising the power that he has been given. If the real reason is that the release of those prisoners would not go down well with the public, he should give that as the reason openly and then it can be tested, if necessary in court. It would have been far better if the Lord Chancellor had exercised the power he has been given but he has not. The purpose of this amendment is simply to give the Lord Chancellor a gentle push in the right direction.
Of course, I accept that some of those with tariffs of less than two years will be more serious cases than others, but there is one thing that they all have in common. We know for certain the sentence that they would have been given if the IPP sentence, now abolished, had never been invented: they would have been given determinate sentences equal to twice the length of their tariffs. We know that, because that is how the judges fix the tariff in the first place; that is, at half the appropriate determinate sentence. Indeed, one way of dealing with the backlog would be, in the case of short and medium-tariff prisoners, simply to substitute determinate sentences of twice the length of their tariff.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, most of what needs to be said on this amendment has already been said and said eloquently by my noble and learned friend Lord Lloyd of Berwick, who has championed the cause of this desperately unfortunate cohort of prisoners for some time past.
I have added my name to the amendment, however, and speak as one of five Members of this House sitting in an appellate capacity in May 2009 in the case of James, Wells and Lee before those prisoners took their case to Strasbourg. Although in this House we felt obliged to dismiss their appeals, all of us were fiercely critical of the way in which the IPP regime had been introduced in 2004 by the 2003 Act. I observed that it was a most regrettable thing that the Secretary of State had been found to be, indeed had admitted by then to having been, in systemic breach of his public law duty at least for the first two or three years of the regime. That was in the period prior to the 2008 amendments, so it was in respect of the period from 4 April 2005 to 14 July 2008.
The European Court of Human Rights, as is well known, went further than we had felt able to do. In the case of those three applicants, whose tariffs were respectively two years, one year, and nine months, all having been sentenced in 2005, the European Court concluded that,
“following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses”,
their detention had been arbitrary and therefore in breach of Article 5.1 of the convention. In so holding, the Strasbourg court emphasised, at paragraphs 203 and 204 of its judgment, that those three prisoners had been sentenced during the initial phase of the regime when the sentence was mandatory, as the noble and learned Lord, Lord Lloyd, has explained, with the judges required to assume dangerousness—in their case—and leaving no room for the exercise of any judicial discretion. It is precisely that cohort of prisoners to whom our proposed amendment is directed and to whom it would apply.
In 2012, at much the same time as Strasbourg was deliberating on those cases, LASPO was enacted here, abolishing the IPP regime from 2012 for all time. Importantly for present purposes, as again the noble and learned Lord, Lord Lloyd, has explained, it introduced a means of improving the lot of those unhappy prisoners who had earlier been sentenced under it. It did this by Section 128, enabling the Secretary of State by order in effect to relax the usual criteria by which the Parole Board decides whether to direct a prisoner’s release.
It is at this stage that I want to make brief mention of a celebrated case, already touched on by the noble and learned Lord and well known to all who are ever interested or concerned in public or administrative law. I refer to the case of Padfield v Minister of Agriculture, Fisheries and Food, decided by this House nearly 50 years ago in 1968. There, as here, a discretion had been conferred by legislation on the Minister. There, as here, the Minister had declined to exercise that discretion. I do not pretend that the factual context there was remotely analogous to that here, but I believe that the following, frequently cited passage from Lord Reid’s judgment has a real relevance in the present context, too. This I quote from the report in 1968 appeal cases at page 1030:
“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court”.
If one now asks, “What are the policies and objects of LASPO?”, the 2012 Act, there can surely be no doubt. Parliament was at one and the same time abolishing what by then had become recognised to be an unfair and unsustainable penal scheme, essentially providing as it had for preventive detention, and allowing the Secretary of State by order to abate or at any rate ameliorate the injustices that had arisen from the scheme and which remained from earlier years. The amendment would cut the Gordian knot with regard to the most unfairly treated group of IPP prisoners: those who must by definition have served at least three times—quite possibly, up to 20 times—the length of their tariff sentences. I say at least three times because, by definition, their tariffs were less than two years and they were sentenced before July 2008, which is now six years ago.
For my part, I urge in addition that the Secretary of State should now, at long last, exercise his Section 128 discretion in respect not only of that cohort but of others lucklessly left over from the IPP regime, for example, others sentenced in the earlier years when the court had no option but to pass indeterminate sentences. At the very least, surely the Secretary of State should now direct the Parole Board to reverse the burden of proof. At the moment, prisoners are required to prove that they would constitute no threat to the public on release. Surely that burden should now be placed on the Secretary of State for Justice.
However, for the 773 prisoners who would benefit from the amendment, we suggest that enough is enough. They should simply be freed. No doubt some will reoffend following release, but at least we shall have placed some limit on the ever-growing length of their preventive detention, and that stain will have been removed from our criminal justice system.
Lord Wigley (PC)
My Lords, this is my first contribution on the Bill; I apologise that I could not participate at Second Reading. The amendment deals with a matter about which I feel very strongly. I speak as a layman, not as a lawyer; we have heard excellent analysis from the noble and learned Lords, Lord Lloyd and Lord Brown.
At present, on figures I have received today, there are still 5,206 prisoners in the UK serving IPP sentences—sentences that were, as we have heard, abolished in 2012. Of those, 3,575 prisoners have already passed their tariff. As the noble and learned Lord, Lord Lloyd, mentioned, the Parole Board releases about 400 inmates every year at the present rate of release. That means it would take nine years to clear the backlog.
In March this year, I led a debate in your Lordships’ House calling for a rapid assessment of those serving those sentences. I argued that priority should be given to those who were originally given tariffs of two years or less. I will not repeat all the arguments today, but noble Lords may remember that in that debate, I mentioned that when the sentences were first introduced, courts had little discretion in choosing whether to impose an IPP sentence, and many were handed out for offences such as burglary and robbery. One tariff was set as low as 28 days.
I am therefore very glad to lend my support to Amendment 17. I am grateful to the noble and learned Lords, Lord Lloyd and Lord Brown, for tabling it. I warmly support the initiative. I ask the Minister whether he can sleep at night when he thinks of people who have been so long in prison—way beyond the period for which they expected to be there.
Lord Phillips of Worth Matravers
My Lords, I had the good fortune a week ago to enjoy a superb production of “Fidelio” at Garsington. “Fidelio” is an unusual opera, as it has a happy ending, when miserable prisoners, unjustly detained, are released on the orders of the minister of state. Many have been waiting for the Secretary of State for Justice to procure the release of a relatively small category of prisoners whose continued detention is a flagrant violation of the demands of justice. They are the IPP prisoners who, despite having received relatively modest tariff sentences, were deemed to be dangerous under a statutory presumption that has since been discredited and abolished. Years ago, they completed the terms of imprisonment that were appropriate for their offences. Their continued detention today is shameful. The amendment should not be necessary, and one hopes that the Lord Chancellor will take the necessary action to demonstrate that it is not.
Lord Ramsbotham
My Lords, in supporting my noble and learned friend Lord Brown and saluting my noble and learned friend Lord Lloyd on his determined and tenacious momentum on this issue, I want to say just one thing. I am amazed that the Government are not tabling this amendment. As the noble Lord, Lord Wigley, mentioned, £40,000 a year for 773 prisoners is £35 million per year. If you have an overstretched and underresourced Prison Service, surely it makes sense to examine where you could make savings to put the money to better effect, rather than spend it on prisoners who should not be there. I fail to understand why, in the face of all the arguments, all the legal statements and all the evidence, plus the legislation passed in 2012, the Government have not taken the common-sense step of approaching this forcefully themselves.
Lord Marks of Henley-on-Thames
My Lords, I join other noble Lords in paying tribute to the noble and learned Lord, Lord Lloyd of Berwick, for his campaign to achieve justice for IPP prisoners. I remember well the debate on 27 March secured by the noble Lord, Lord Wigley, who raised this issue on that occasion.
The continued imprisonment of those who are serving tariff sentences of less than two years for so long after those tariff sentences were completed, and now long after IPP sentences were abolished by the LASPO Act, is nothing short of disgraceful. The noble and learned Lord, Lord Phillips of Worth Matravers, mentioned “Fidelio”. In that opera, it took the courage of Florestan’s wife Leonore, who, dressed as Fidelio, risked her life to save her husband from unjust imprisonment, to secure his release. All that is necessary for this Government now is for the Secretary of State to exercise his power—given to him, as has been pointed out, by the second limb of Section 128 of the LASPO Act—to introduce a simple presumption in favour of release unless the continued imprisonment of any such prisoner on an IPP can be positively and clearly justified. It is a simple presumption. It meets the justice of the case. It answers any need that remains for the protection of the public. I suggest that this unfairness must be ended, and now.
Lord Beecham
My Lords, it is ironic that the Committee meets today, on Bastille Day, as the French Revolution effectively broke out with the release of a number of prisoners on what were presumably indeterminate sentences. I suppose that they might have been lettres de cachet. The House and the Committee are indebted to the noble and learned Lord, Lord Lloyd, who has constantly raised this matter.
The noble and learned Lord, Lord Phillips, referred to “Fidelio”. I am not sure whether the Secretary of State would find himself comfortable in the position of the Minister in that opera; perhaps he would be more comfortable in another opera as Gilbert and Sullivan’s Lord High Executioner. Be that as it may, the noble and learned Lord raised a series of questions, implicitly or explicitly, to which we have had no reply thus far. I hope that the Minister will be able to give us some indication of the Government’s thinking, if they have got that far, on the issues raised this afternoon.
The first question has already been asked but I will repeat it: why include a provision in legislation and then completely ignore it? Have the Government or, more particularly, the Secretary of State considered using the provision that this Government included in the LASPO Act? If they have, on what basis has that consideration taken place? Has the Secretary of State looked at any cases of the kind to which the noble and learned Lord referred—I would hardly expect him to look at them all—to come to a view about whether it would be right to exercise the discretion that was deliberately placed in his hands? If he has not, why not? What is the Government’s intention in relation to this section of LASPO? Is it to be ignored or is it at all to be used? If it is not to be used, why do the Government not have the courage of their apparent convictions and delete it? If it is to be used, when and under what circumstances will that be?
Questions have repeatedly been asked today about the resources available to the Parole Board to deal with matters of this kind. I asked the general question before to which others, including the noble Lord, Lord Wigley, have now alluded about the increased burden on the Parole Board as a result of recent decisions and the growing number of cases that it will be asked to look at in oral hearings. However, has any specific consideration been given to the resources required to deal with the cases of people who have been in prison for the length of time to which noble Lords have referred? Again, if not, why not?
There may be a concern in respect of some of these defendants as to what would happen if they were released and whether they might to some degree be a risk to the public. What investigations have been carried out to assess the need for investigation and inquiry by the Parole Board in support of those potential candidates for release who have served such a length of time? The overriding question is really therefore: what was the purpose of incorporating the Secretary of State’s discretion in the 2012 Act if it is to be treated as redundant? If it is not to be so treated and there is an intention to do it at some time, why the delay? As we have heard, many cases have been running for an unacceptable length of time. I hope that the Minister will be able to give some assurances that this matter will be seriously addressed and not simply left on the shelf in a way that does no credit to our system.
I think that the previous Government were rightly criticised on matters of this sort, in many respects, particularly in also failing to provide sufficient support for the Parole Board. However, their failure is relatively minimal compared to the looming failure which is likely to affect not only this category of prisoner but others who require the Parole Board’s intervention. I hope that the Minister can indicate, today of all days, that some movement will be made and that the Secretary of State will address himself to the plight of these people, and thereby avoid a further stain on the reputation of the Government in this respect.
Lord Faulks
My Lords, we are debating once again the position of current IPP prisoners. The Government abolished that sentence in the LASPO Act 2012, for reasons I need not rehearse. We replaced them with immediate effect so that no further IPPs can now be imposed on offenders convicted after December 2012, regardless of the date of offending. That, as I think noble Lords would agree, is a major step forward. The noble Lord, Lord Beecham, said in the course of his address to your Lordships that the Government who preceded ours had not given the Parole Board sufficient resources. What he failed to do was to acknowledge that it was his Government who brought in this scheme, which has been so much criticised. That scheme has resulted in a number of people being imprisoned and still being in prison; this Government repealed that provision.
However, in respect of IPP sentences already imposed, our position remains that it would not be right or appropriate retrospectively to alter sentences that had been lawfully imposed prior to the abolition of IPPs, particularly because in this case those sentences were imposed with public protection issues in mind. Consequently, prisoners serving IPP sentences are not released unless the Parole Board authorises it.
A number of questions were posed about the Parole Board’s resources, including those from the noble Lord, Lord Wigley. In answer to an earlier amendment, when I think the noble Lord was not in his place, I set out to the Committee the fact that the Government were well aware of the demands, temporary and in future, being presented to them. They had given further resources and were intending to be nimble in responding to the demands that were and would be placed upon them.
Lord Beecham
I am sorry to intervene at this point but, as the noble Lord, Lord Wigley, was not in the Chamber when this matter was discussed before, would the Minister care to address the point that I made to him that the Parole Board’s estimate of the increased demand was £10 million a year, which is equivalent to the total budget, while the Government’s provision is proposed to be £3 million? How does that square with the assurance that he is trying to give to the noble Lord?
Lord Faulks
The Government and the Parole Board, as the noble Lord would expect, are in frequent communication. It is difficult to be precise about these figures; an estimate is simply that. I assure the noble Lord that the figures in so far as they can be reached are the result of a number of conversations that have taken place regarding predictions about the demand. It is the Government’s position that we are providing the appropriate support for the Parole Board now and its estimate of what will be required in future. I also said—
Lord Faulks
Perhaps I might finish this sentence before I sit down. It is of course our intention to respond as appropriate if there are increasing demands.
Lord Davies of Stamford
I am most grateful to the Minister for giving way. It is clear that the Parole Board has a serious backlog in this matter. In considering the appropriate budget for the board, have the Government been looking at this matter completely by itself in vacuo or have they been looking at it in connection with the very relevant point made just now by the noble Lord, Lord Ramsbotham, that there would be considerable savings to public funds if these prisoners were released, to the order of about £40,000 a year? Is it not the case that the interests of financial rationality and justice are aligned in this matter but that the Government are running counter to both of them?
Lord Faulks
I am very surprised that the noble Lord thinks that somehow the Ministry of Justice has failed to notice that it costs the Government a great deal of money to keep prisoners in custody. It is painfully aware of that, and of the cost. However, the ministry is also aware of its obligation for the protection of the public, and it is in balancing these issues that it comes to the very difficult decisions that it has to reach.
It is right that offenders serving indeterminate sentences—IPPs—should continue to be detained post tariff if their detention is necessary for the protection of the public and they are therefore not safe to release. There is evidence that IPP prisoners who take the opportunities presented to them to reduce their risk are beginning to achieve release in greater numbers. Since 2010 the number of IPP releases has grown, and we have seen over 400 IPP releases in 2012 and 2013. The percentage of IPP cases considered where release was ordered was 6% in the 2010-11 report, whereas in the 2012-13 report the figure was 16%.
Of course, we keep the matter under review. The amendment, as I understand it, would effectively lead to the prisoners who are within the scope of the amendment being automatically released, as it would mean that there was no discretion for the Parole Board to do other than to direct release. That is not the Government’s policy, as noble Lords are aware, and I will be unable to accept the amendment on those grounds.
I should also say that there would be difficulties with the amendment as it stands, regardless of the acceptability of the principle. The amendment would add a subsection to Section 128 of the LASPO Act directing the Parole Board to release IPP prisoners who had a tariff of less than two years. Section 128 is not about the duty to release indeterminate sentence prisoners but, rather, gives the Secretary of State the power to change the Parole Board’s release test by order. The amendment, however, appears to direct the Parole Board to release certain prisoners without any consideration of a test whatsoever.
The noble and learned Lord, Lord Lloyd, to whom I pay tribute, as others have, for his tenacity and his great concern for these prisoners—indeed, concern has been expressed for them all around the House—suggests that the amendment would be a gentle push. With very great respect to the noble and learned Lord, as it is currently expressed the amendment would be a very firm shove indeed. However, I understand that the intention is that these particular prisoners would be released at the point at which they would naturally fall due for Parole Board review, thus phasing their release. Presumably, the retention of the Parole Board’s role in the process is designed to align as much as possible with the current statutory arrangement. However, it would be problematic to give the duty to release to the Parole Board if in fact there was no discretion for the board under this proposal. For these reasons, I do not think that the amendment is the right way to achieve the noble Lords’ objectives.
However, in turning away and facing the principle rather than the detail, the noble and learned Lord, Lord Lloyd, has chosen to concentrate on those with tariffs of under two years, who he suggests have been particularly disadvantaged as they could not have received an IPP after the 2008 changes to the IPP statute. In fact, it remained possible to receive an IPP with a tariff of lower than two years until IPPs were abolished, where the offender had a serious previous conviction, and a fair number continued to do so. While between 2005 and 2008 courts were obliged to impose IPPs in certain circumstances, this was only where they found the offender to meet the dangerousness threshold. The statute, however, did not oblige courts to find the offender dangerous if he had a previous Schedule 15 conviction and it was clear that the court need not conclude that a previous conviction made the offender dangerous if it would be unreasonable to do so.
The noble and learned Lord, Lord Lloyd, and some other noble Lords have seen an analysis of the management information that was put together last year relating to the situation of IPP prisoners who were sentenced before July 2008 with tariffs of under two years who remained in prisons and whose tariff had expired. It is the Government’s view that this analysis supports that position in respect of the group. It provided clear evidence that the continued detention of short-tariff IPP prisoners remains justified and that the Parole Board still considers that in many cases they pose an unacceptable risk to the general public and to themselves. The majority—80 prisoner cases of the 100 sampled—were assessed as at high risk of serious harm, whereas none was assessed as being at no risk of serious harm. Almost all of that sample had had recent parole hearings and were deemed unsuitable for release. However, the fact that 11% of the sample were in fact approved for release clearly also demonstrates that, where risk has been reduced enough to be safely managed in the community, short-tariff IPP prisoners are being approved for release by the Parole Board using the current release test.
I know that many noble Lords keep themselves closely informed of the National Offender Management Service’s ongoing work to enhance support for this group of prisoners, but a brief reprise of those efforts bears repeating. We have come a long way in terms of management and support since the introduction of the sentence. For example, NOMS has made substantial improvements to the waiting times for IPP and other indeterminate-sentence prisoners. Once they have been approved for open prisons, in addition IPP prisoners have improved access to accredited programmes and they remain a priority group for interventions. Sentence planning instructions have been overhauled to emphasise that there are a range of interventions, not just accredited programmes, that can provide useful evidence for parole hearings. This has also been emphasised in discussions with Parole Board members. Measures have been taken 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. NOMS will continue to oversee positive changes to the management of IPP prisoners. As I said earlier, the reality is that IPP prisoners are now achieving release in greater numbers under the current arrangements.
Lord Thomas of Gresford
Before the Minister moves on, regulations were passed to permit lie detector tests to be carried out in respect of prisoners who are subject to IPP provisions. Are those tests carried out and, if so, what is the result? I have been informed by an experienced organisation that it is necessary to pass a lie detector test in order to establish that the particular offender is not at risk.
Lord Faulks
I am not aware of the question of lie detectors and whether or not they are used. I will write to the noble Lord when I have some information about it.
Measures have been taken to ensure that programmes can be delivered more flexibly, supporting greater access and inclusion, including offenders with complex needs, as I was indicating. I was asked about the case of James, Wells and Lee. The noble Lord, Lord Wigley, pointed out that the decision was that the retention of those prisoners was contrary to Article 5.1 and was therefore an arbitrary detention. I dare say that he will know, from having studied the decision, that the European Court of Human Rights did not hold that the sentence itself was unlawful. It was the unavailability of courses that was considered to be a breach of Article 5.1. I am sure the noble Lord would accept that it is simplistic to suppose that attendance at a course would automatically result in someone being appropriate for release. Clearly, it is carefully managed to ensure that so far as is possible those courses are reached. Those who attend the courses will not necessarily be eligible for or suitable for release. Equally, some who do not will be. However, I accept it is a matter of considerable assistance.
As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the construction of a statutory duty is a matter of the purpose as construed on examination of the relevant statute. In response to a debate about this section, the Lord Chancellor’s predecessor, Kenneth Clarke, said that he would look at progress after the LASPO changes had taken effect. I mentioned earlier that the rate had increased. The position is—I am afraid this is more or less the same answer that I gave in the debate initiated by the noble Lord, Lord Wigley—that there are no current plans to review the release test for prisoners serving IPP sentences whose minimum term has expired, although we continue to use a range of measures to improve their progression and reduce the risk that they pose. The Government’s position is that it is right that IPP prisoners continue to serve their sentence until they are assessed as safe to be released into the community by the Parole Board. The Government were left with this rather crude device by the previous Government. They repealed it, but none the less they have to be extremely mindful of what lay behind the introduction of this provision; namely, the protection of the public. I accept that there is great concern that those who would have received a lower tariff sentence might seem on the face of it to be languishing in prison for far too long. However, there are factors which I have attempted to draw to the Committee’s attention which do not, in the view of the Lord Chancellor and the Government, warrant a change of approach to that discretion.
Of course, it is a matter of anxiety. While others are attending the opera, I am—as the noble Lord, Lord Wigley, would have it—having sleepless nights. However, the duty of the Government remains to protect the public, notwithstanding the persuasive arguments that have been put forward by noble Lords. I ask the noble and learned Lord, Lord Lloyd, to withdraw the amendment.
Lord Lloyd of Berwick
Will the Minister explain why releasing these people now would present any greater risk than that they would have presented if they had been given determinate sentences back in 2005?
Lord Faulks
They did not receive determinate sentences. With great respect to the noble and learned Lord, it is a hypothetical question because the sentence they received was not a determinate sentence; it was a sentence for the protection of the public. It is therefore the Government’s case that they have to proceed with caution using the processes which exist via the Parole Board to ensure that, before somebody in that position is released, the public are safe so far as reasonable precautions can be taken.
Lord Lloyd of Berwick
First, I must thank those who have supported this amendment so effectively, as it seems to me, and say a particular word of gratitude to the noble Lord, Lord Wigley. How good and refreshing it is to hear from a layman, especially one who is able to speak with a certain passion, which we lawyers try to keep in control. It was a very effective contribution.
Lord Beecham
Lord Beecham
Clause 10 creates a new offence of remaining unlawfully at large after recall. When he replies, will the Minister indicate the likely incidence of this offence or at least the basis on which the Government have seen fit to create an offence? How many offenders have broken their conditions and have remained unlawfully at large? That would be a material consideration.
The amendment does not necessarily challenge the creation of the offence, but it seeks to incorporate within the definition of the offence in Clause 10(1) and thereby insert into the Crime (Sentences) Act 1997 a factor which would render a person guilty of an offence if he, while unlawfully at large fails, deliberately and without reasonable excuse, to take all necessary steps to return to prison as soon as possible. The point of the amendment is to address the significant number of offenders, to whom I have already referred in another context, who have mental health or learning disabilities which may well impair their capacity to understand and comply with requirements in relation to recall.
It is important to bear in mind the significant numbers that I have already mentioned. I shall give a little more detail of the percentages involved: 20% to 30% of offenders have learning disabilities or disabilities that interfere with their ability to cope with the criminal justice system; 23% of young offenders have learning difficulties—that is to say, IQs of below 70—and a further 36% have borderline learning difficulties. That is a clear majority of young offenders. More than half of prison staff believe that prisoners with learning disabilities or difficulties are more likely to be victimised or bullied than other prisoners. They are also more likely to have broken a prison rule by several times the number of other prisoners. This is a group of damaged people, largely as a result of learning disabilities.
We know in any event that a very high proportion of prisoners suffer from one or more learning disabilities. Some 70% of adults suffer from one or more of such disabilities, while 80% of young offenders suffer from them. With that will often go problems in communication and comprehension skills, and perhaps even memory problems. Given that, we are dealing with a group of people of whom at least quite a significant proportion will struggle anyway out in the community, whether they are on licence or have ultimately served their sentence. To create a criminal offence that does not take into account those limitations is, in my submission, to veer towards injustice. What is needed is for those factors to be taken into account before bringing these people within the ambit of an offence. This amendment seeks to do that because deliberation assumes the capacity to take a decision which most noble Lords and perhaps most of the population would be able to take without the encumbrance of conditions which might limit that capacity.
The thrust of the amendment is to provide a safeguard. I hope that the Minister will look at it sympathetically. His colleague in another place, Jeremy Wright, seemed to think that the word “deliberately” did not add anything to the question of a “reasonable excuse”, but I suggest that potentially it does. It strengthens the position of those who would find it difficult to cope with the requirements, but it would not exclude those who are capable of deciding on what is required of them and who then make a deliberate decision not to comply. I hope that, either today or by the time we reach the Report stage, the Minister will be able to indicate the number of people who are remaining at large unlawfully at any one time. That would be useful background information to inform the debate at a later stage. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I understand totally the sentiment behind the amendment, but the offence is about making sure that, in the most serious cases where offenders have been recalled from licence and have run off to avoid serving their sentence, the courts have the necessary powers to deal with them. I assure the Committee that this is not about locking up as many people as possible or indeed prosecuting them unnecessarily. The offence will not apply to the vast majority of recalled offenders, who are returned to custody within a few days, some of whom are unaware that their licence has been revoked until they are arrested. I understand the aim of making sure that the new offence does not penalise offenders who may remain unlawfully at large through no fault of their own. Clause 10 is carefully framed so that an offender who is recalled to prison will be guilty of committing the offence only if they have been notified of the recall, either orally or in writing, or they can be treated as having been notified of the recall in light of repeated failures to keep in touch with probation as required. If they fail without reasonable excuse to take all necessary steps, they can be returned to custody.
The noble Lord, Lord Beecham, has rightly raised the issue of safeguards. Not all licence breaches lead to recall and there are a number of stages that must be passed before the offence will bite. These provide important safeguards which ensure that the vulnerable offenders whom he mentioned quite specifically are not set up to fail. He will know, as will most noble Lords, that in all circumstances the probation officer and the National Offender Management Service must consider whether the offender’s licence should be revoked and, if so, whether they should refer the offender to the Secretary of State to make the final decision. That judgment is and will rightly remain a matter for the discretion of the professionals who know the offender and the particular circumstances.
The noble Lord also asked how many offenders are currently unlawfully at large. The provision is about those who remain unlawfully at large following a recall to custody from licence. Information on licence recalls and returns to custody is published quarterly and the most recent publication was on 24 April this year. The total number of offenders recalled to prison for the period 1984 to December 2013 who had not been apprehended by 31 March 2014 was 1,050, which represents around 0.6% of the offenders who were recalled during that period. I hope that this information is helpful and I would reiterate that I understand the intent behind the amendment. I hope that the safeguards which the Government have sought to put in place in framing this clause reassure the noble Lord and I trust that he will be minded to withdraw the amendment.
Lord Beecham
I am grateful to the Minister for his response and I note the very small percentage of those who fail to respond. Of course, the noble Lord is not in a position to say who among them would fall into the category I have described, and it may be that that is a matter which is worth looking into. However, I presume that it would be for the Parole Board or some other body. In the circumstances, and certainly at this stage, I beg leave to withdraw the amendment.
Lord Patel of Bradford
“(4) Before this section comes into force, the Secretary of State shall lay before Parliament a report describing his plans to ensure that safe and supervised places are provided in which prisoners can take medication which has been prescribed to them.”
Lord Patel of Bradford (Lab)
My Lords, in moving Amendment 19 I shall speak also to Amendment 20. Amendment 19 should have been tabled in my name, but unfortunately due to an administrative error my name was not added to sit alongside those of my noble friends Lord Beecham and Lord Kennedy.
Clause 14 enables the Secretary of State to specify in prison rules and rules for other places of detention non-controlled drugs which can be tested for under the existing mandatory drug-testing programme. I generally support the intention behind Clause 14, but I would like to see greater clarity on two aspects: first, on what plans are being made to ensure that suitable provision is in place for people in prison to be able to take prescription drugs safely and so limit the scope for abuse; and secondly, on the incidence of drugs in prison and in particular the effectiveness of drug testing.
In tabling both of these amendments I should declare an interest as the former chair of the independent cross-ministerial committee on the review of drug treatment in prisons which resulted in the publication some years ago of The Patel Report. At the time we were very much focused on the development of the integrated drug treatment system in prisons which commenced in 2006. It has had a considerable and positive impact on reducing the use of heroin and illegal drugs in prison. However, we know that since that time, the demand for prescription and over-the-counter medication in prisons has been increasing, and we have also seen an increase in the use of psychoactive substances, the so-called “legal highs”. We need to consider the use of legal highs alongside the problems around prescription drugs in our attempts to deal adequately with these issues. For that reason, I intend to address both issues together.
Amendment 19 requires the Secretary of State to lay a report before Parliament,
“describing his plans to ensure that safe and supervised places are provided in which prisoners can take medication which has been prescribed to them”.
Amendment 20 requires the Secretary of State:
“Within 12 months of section 14 coming into force … report to Parliament on the incidence of drugs in prisons and the effectiveness of drugs testing of prisoners in prisons”.
Let me first explain why these two amendments are important. Although accurate prescribing data for analgesics are unavailable, a report entitled Managing Persistent Pain in Secure Settings, published by Public Health England last year, gives some startling figures on the scale of analgesic prescribing. A snapshot of just two institutions with populations of 751 and 859 respectively suggested that between 55,000 and more than 350,000 analgesic tablets, excluding paracetamol and ibuprofen, were prescribed in just one month. The Chief Inspector of Prisons highlighted in his annual report last year that the diversion of prescription drugs, such as Tramadol, Gabapentin and Pregabalin was taking place in high security and vulnerable prisoner populations. I know from my own work with NHS England on conducting health needs assessments in a wide range of prisons just how serious an issue this is, and that the growing demand for and diversion of prescription drugs is viewed by both prison staff and the prisoners themselves as a major problem.
Lord Mancroft (Con)
My Lords, I listened with great care to the noble Lord, Lord Patel of Bradford, in moving his amendment, and he laid out very accurately for your Lordships the perceived problem of misadministration of various sorts of drugs, particularly prescription drugs, in prison, and the manner in which they are prescribed and taken. The problem that the noble Lord describes to the House is probably entirely right. However, it may not have come over that it is merely an extension of the problem of prescription drugs outside prison. Often in your Lordships’ House we discuss drugs and drug-related crime, but we rarely get around to talking about the fact that, however many people may be taking illegal drugs, many more are addicted to prescription drugs, which causes immense problems for them and their families, as well as for society as a whole. Whether or not that addiction to prescription drugs is causing crime or is related to crime in some way, it is an enormous problem. All those drugs are prescription drugs, which means that they have already been prescribed by a doctor—and probably, as a consequence, misprescribed, or they would not be resulting in addiction and all the problems that stem from it.
We are not dealing with that problem outside prison, with the ordinary population—we are dealing with it incredibly badly. The Department of Health is wrestling with it in a rather inadequate way, and it is bouncing backwards and forwards between the Home Office and the Department of Health, as it has been for many years. I am not entirely sure why, if we cannot deal with it outside prison, we should dump that problem into prison and say to the prison authorities that we cannot deal with it when prisoners are ordinary citizens living in our society, but now that they have been convicted of a crime and are going to go to prison we expect the prison authorities to deal with a problem that we cannot deal with outside.
The noble Lord has accurately identified a problem, but I have some concern over whether Amendments 19 and 20 contain the solution. Perhaps it is the start of a solution—but if we cannot deal with it outside, asking the Secretary of State to lay a report, the results of which we can all guess, even if we do not know the details, does not seem even to get to the start of resolving this problem. I look forward to what my noble friend says in response, and perhaps the noble Lord, Lord Patel, would like to respond before then. However, although I accept the problem, I cannot see that this even remotely touches on a solution.
Lord Patel of Bradford
I completely agree with the noble Lord, Lord Mancroft, about the issue of prescription drugs out in the community, given the ludicrous figure of literally 50 million prescriptions—I think—having been issued last year. However, there is a clear distinction between that situation and the situation in prisons. Mandatory drug testing was introduced to test prisoners for heroin in particular. However, following the introduction of mandatory drug testing, many prisoners who had been using cannabis, which stayed in the system for longer, started to use heroin, which stayed in the system for a shorter time. We got over that problem through introducing into the prison estate a very good integrated drug system, which has worked exceptionally well.
However, the drug abuse problem has shifted to prescription drugs. In prison after prison, prescription drugs are used as a commodity. People are being bullied on account of these drugs and violence is associated with them. We do not have the measure of this problem or know the extent of prescription drug abuse. Indeed, we have no idea about the problem of the so-called legal highs, which is clearly a problem in prisons, because the mandatory drug testing simply does not pick up those drugs. Merely to say that we will conduct mandatory drug testing for all drugs will not solve the problem. We need to analyse further how prisoners can safely take the prescription medicines they are prescribed and what policies need to be put in place to provide safe places for them to do so. We need data on prisoners’ prescription medicines and on the incidence of abuse to enable us to move forward on this issue. The intention behind the amendment is to obtain that data and for the Secretary of State to present them to Parliament in a report. That would give us the opportunity to improve the situation.
Lord Beecham
I should like to add a further thought and thank my noble friend for putting the case for these amendments so capably. The responsibility for providing medical services in prisons belongs ultimately to NHS England as the commissioners. Therefore, it is not a matter solely for the Ministry of Justice. It seems to me that some interdepartmental discussions on this issue would be timely, if they have not already taken place. There is the sheer cost, of course, of providing prescription drugs for prisoners as, indeed, for anyone else, which, obviously, will be a factor in the mind of NHS England. As regards the general health problems of prisoners, particularly mental health problems, it seems to me that the involvement of the Department of Health and NHS England in looking at the aspects to which our amendments refer would be very helpful. I am not asking for any response on that tonight except perhaps for a nod in the direction that some discussions will be held with NHS England and the department to see whether a more holistic approach can be adopted across the relevant agencies. It would be helpful if such an indication could be given.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord, Lord Patel, for tabling these amendments. I must admit I was somewhat surprised that he was confused that the name of the noble Lord, Lord Beecham, was added to the amendments rather than his. Perhaps it would have been more palatable had he said he had been confused by my good self but, accents aside, there may be more similarities there. The noble Lord raised some very pertinent issues, as did my noble friend Lord Mancroft, in talking about drug issues more generally in society. I have often spoken about this issue at the Dispatch Box in responding to Questions. We also heard briefly about legal highs.
Amendments 19 and 20 both relate to the use of drugs in prisons, although from two different perspectives. I know that the noble Lord, Lord Patel, has laid Amendment 19 in good faith to support the well-being and security of prisoners. However, in all prisons where prisoners are being supplied medicines for the management of either long-term conditions or for the treatment of acute clinical conditions, the safe use of medicines is taken extremely seriously. The noble Lord, Lord Beecham, rightly talked about the role of the NHS. Clinical governance of this process in England and Wales is undertaken by qualified pharmacists commissioned by the National Health Service not the National Offender Management Service or Her Majesty’s Prison Service. I assure all noble Lords that dispensing complies to national guidelines and is risk assessed by pharmacists on a case-by-case basis to ensure that medicines are dispensed in a manner that is safe and appropriate to a custodial environment, including the risks of the diversion of medicines and decisions over whether appropriate medicines can be “held in possession”. These processes are subject to routine audit and assurance in line with guidelines for the management of medicines in the wider community.
Moreover, prison staff are very much aware of prisoners attempting to take medication without swallowing in order to sell or pass on that medication to other prisoners. This is sometimes done in reaction to bullying from other prisoners. Every effort is made to prevent this. The noble Lord, Lord Patel, gave several examples of good practice. I give him the assurance that I will share that with my honourable friend the Prisons Minister and perhaps we can arrange a meeting to explore how this issue can best be addressed across the board. The Government have always held the opinion that where good practice can be shared across the prison estate it should be taken on board. I hope that, given that reassurance, the noble Lord will be minded to withdraw Amendment 19.
Amendment 20 would require the Secretary of State to report to Parliament on the incidence of drugs in prison and the effectiveness of drug taking. I assure noble Lords that the Government take the issue of drugs in prison extremely seriously. Therefore, Clause 14 represents an immediate step to address the challenges facing the Prison Service with the different types of drugs that are being abused by prisoners. I totally take on board the fact that legislation alone, either drafting it or applying it, will not deal with the issue, as the noble Lord, Lord Patel, said, but it is the way forward.
In regard to the incidence of drugs in prisons and the effectiveness of drug testing of prisoners, it is assumed that the question refers to the number of positives for drug abuse found by the mandatory drug testing programme across the prison estate. The effectiveness of the MDT programme is kept under constant internal review, including the range of drugs tested, which will be extended as appropriate. The number of prisoners being tested under the MDT programme and the percentage found to be positive are already published in the NOMS management information addendum. All this information is available on the government website.
As noble Lords are aware, the Ministry of Justice is ultimately accountable to Parliament for the discharge of its responsibilities, including those on the prison estate. Bearing in mind that the information is publicly available, and that noble Lords and honourable Members in the other place can hold the Government and the Ministry of Justice to account, we do not believe that the addition of further reporting requirements is necessary. Given the assurances and the explanations I have provided and the offer of a discussion on how we can introduce best practice, I hope that the noble Lord will be minded to withdraw the amendment.
Lord Patel of Bradford
I thank the noble Lord for his response. I agree that he and I are slightly more similar than I am to my noble friend Lord Beecham as we both have hair.
Lord Patel of Bradford
I assume that was what the noble Lord meant. There was a reason why I grouped together Amendments 19 and 20. One has to have a safe place where prescription drugs can be taken. I accept that there is no problem with qualified pharmacists or GPs giving out the medication; I do not question that at all. What I question is the number of safe places that exist across the prison estate in which that medication can be given out. I still think that there is a major issue with prisoners being able to take prescription drugs safely without facing intimidation and the prospect of being bullied to pass them to others as a commodity.
I understand that the provision on mandatory drug testing was taken from a Private Member’s Bill and, therefore, no impact assessment was undertaken. It would be really helpful, now or at a later stage, to hear whether the impact assessment will take place, especially in relation to MDT. We do not know whether the testing is driving people to use other drugs, and it would therefore be important to have some kind of impact assessment on the use of MDT.
I welcome the meeting with the Prisons Minister to share a number of examples of good practice across the country, but I also ask whether the noble Lord will speak to his colleagues in the Department of Health, as my noble friend Lord Beecham said. This is a major health issue because the doctors and nurses are constantly saying that it is they who have to put up with bullying and are unable to prescribe effectively.
It would therefore be helpful if we could take this to the next level. The wording of these amendments may be improved and demands may be high, but there is some scope for looking further at the level and impact of mandatory drug testing. With that in mind, I beg leave to withdraw the amendment.
Gaza
(9 years, 10 months ago)
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The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)
My Lords, with the leave of the House I shall repeat the Foreign Secretary’s Statement made earlier in another place. The Statement is as follows:
“Mr Speaker, with permission, I will make a Statement to the House on Gaza. The House is aware that, despite intense efforts by US Secretary of State John Kerry, talks between Israel and the Palestinians broke down at the end of April and are currently paused.
Since then there have been several horrific incidents, including the kidnap and murder of three Israeli teenagers and the burning alive of a Palestinian teenager. We utterly condemn these barbaric crimes. There can never be any justification for the deliberate murder of innocent civilians.
These rising tensions have been followed by sustained barrages of rocket fire from Gaza into Israel. Between 14 June and 7 July, 270 rockets were fired by militants into Israel, which Israel responded to with air strikes. Rockets are fired indiscriminately against the civilian population, including against major Israeli cities.
Israel then launched Operation Protective Edge on 7 July. The Israel Defense Forces have struck over 1,470 targets in Gaza, and over 970 more rockets have been fired towards Israel; 240 Israelis have been injured. In Gaza, as of today, at least 173 Palestinians have been killed, and 1,230 injured. The UN estimates that 80% of those killed have been civilians, of which a third are children.
We have acted swiftly to ensure the safe departure of British nationals wanting to leave Gaza. Late last night we successfully assisted the departure of 27 British nationals and Palestinian dependants from Gaza, through Israel to Jordan for onward travel. I am grateful to the UN and FCO staff from London, Gaza, Jerusalem, Tel Aviv and Amman, and to the Israeli and Jordanian authorities, for their work to ensure the success of this operation.
The whole House will share our deep concern at these events. This is the third major military operation in Gaza in six years. It underlines the terrible human cost to both sides of the Israeli-Palestinian conflict, and it comes at a time when the security situation in the Middle East is the worst it has been in decades.
The people of Israel have the right to live without fear for their security, and the people of Gaza also have the fundamental right to live in peace and security. There are hundreds of thousands of extremely vulnerable civilians in Gaza who bear no responsibility for the rocket fire and are suffering acutely from this crisis. And the Israel Defense Forces estimate that 5 million Israeli civilians live within range of rocket fire from Gaza.
Israel has a right to defend itself against indiscriminate rocket attacks. But it is vital that Gaza’s civilian population is protected. International humanitarian law requires both sides to distinguish between military and civilian targets, and enable unhindered humanitarian access.
The UK has three objectives—to secure a ceasefire, to alleviate humanitarian suffering, and to keep alive the prospects for peace negotiations, which are the only hope of breaking this cycle of violence and devastation once and for all. I will take each of these in turn.
First, there is an urgent need for a ceasefire agreed by both sides that ends both the rocket fire and the Israeli operations against Gaza, based on the ceasefire agreement that ended the conflict in November 2012. Reinstating that agreement will require a concerted effort between Israelis, Palestinians and the authorities in Egypt, with the support of the international community. All those with influence over Hamas must use it.
We are in close contact with Israeli and Palestinian leaders, our partners and allies. The Prime Minister spoke to Prime Minister Netanyahu on 9 July, and I have spoken to President Abbas, Israeli Foreign Minister Lieberman and Strategic Affairs Minister Steinitz, and Egyptian Foreign Minister Shukri. As Arab Foreign Ministers meet tonight, I have just discussed the situation with the Foreign Ministers of Jordan and Qatar.
On 10 July, the UN Secretary-General told the Security Council that there was a risk of an all-out escalation in Israel and Gaza and appealed for maximum restraint. He had been in contact with leaders on both sides and other international leaders, underlining his concern about the plight of civilians and calling for bold thinking and creative ideas. On Saturday we joined the rest of the Security Council in calling for de-escalation of the crisis, the restoration of calm and reinstatement of the November 2012 ceasefire. We are ready to consider further action in the Security Council if that can help secure the urgent ceasefire that we all want to see. Yesterday, I held discussions in the margins of the Iran Vienna talks with Secretary Kerry and my French and German counterparts to consider how to bring about this objective.
Once a ceasefire is agreed, it will be vitally important that its terms are implemented in full by both sides, including a permanent end to rocket attacks and all other forms of violence. Implementation of that ceasefire agreement must only be part of a wider effort to improve conditions in Gaza. Without that, we are likely to see further such cycles of violence. This should include the restoration of Palestinian Authority control in Gaza, the opening up of legitimate movement and access, and a permanent end to the unacceptable threat of rocket attacks and other forms of violence from Gazan militants against Israel.
Secondly, we will do all we can to help alleviate humanitarian suffering in Gaza. At least 17,000 Gazans are seeking shelter with the UN. Hundreds of thousands are suffering shortages of water, sanitation and electricity; and stocks of fuel and medical supplies are running dangerously low. Over half of Gaza’s population was already living without adequate access to food before the crisis, the large majority reliant on aid and many unemployed. The UK is providing £349 million for humanitarian relief, state-building and economic development up to 2015, and providing around £30 million a year to help the people of Gaza.
The UK is the third biggest donor to the UN Relief and Works Agency general fund. Our support has enabled UNRWA to respond to the crisis by continuing to provide crucial health services to 70% of the population by sheltering 17,000 displaced people, and by distributing almost 30,000 litres of fuel to ensure that emergency water and sewerage infrastructure can operate. DfID is helping to fund the World Food Programme, the ICRC and the UN Access Co-ordination Unit. With our support, these organisations are providing food to insecure people, helping to repair damaged infrastructure, getting essential supplies into Gaza, getting medical cases out and delivering emergency medical care. My right honourable friend the Minister for International Development has spoken to Prime Minister Hamdallah, and DfID stands ready to do more, as necessary.
Thirdly, a negotiated two-state solution remains the only way to resolve the conflict once and for all, and to achieve a sustainable peace so that Israeli and Palestinian families can live without fear of violence. No other option exists that guarantees peace and security for both peoples. I once again pay tribute to Secretary Kerry’s efforts to secure a permanent peace. The prospects for negotiations of course look bleak in the middle of another crisis in which civilians are paying the heaviest price. But it has never been more important for leaders on both sides to take the bold steps necessary for peace. For Israel, this must mean a commitment to return to dialogue and to avoid all actions which undermine the prospects for peace, including settlement activity which does so much to undermine confidence in negotiations. For Hamas, it faces a fundamental decision about whether it is prepared to accept the quartet principles and join efforts for peace, or whether it will continue to use violence and terror with all the terrible consequences for the people of Gaza. The Palestinian Authority must also show leadership, recommitting itself to dialogue with Israel and making progress on governance and security for Palestinians in Gaza as well as the West Bank.
In all of these areas, the UK will play its role, working closely with the US and European colleagues, encouraging both sides back to dialogue, supporting the Palestinian Authority, keeping pressure on Hamas and alleviating the humanitarian consequences of conflict. There can be no substitute for leadership and political will from the parties. The world looks on in horror once again, as Israel suffers from rocket attacks and Palestinian civilians die. Only a real peace, with a safe and secure Israel living alongside a viable Palestinian state, can end this cycle of violence and it is only the parties themselves, with our support, who can make that peace”.
That concludes the Statement.
Lord Bach (Lab)
My Lords, I thank the Minister for repeating the Statement of her right honourable friend the Foreign Secretary in another place. The spiral of violence that has engulfed Gaza, southern Israel and the West Bank in recent days is bringing terrible suffering to innocent people. Of course the firing of rockets into Israel by Gaza-based militants is rightly condemned by all people of good will. No Government on earth would tolerate such attacks on their citizens, and we recognise Israel’s right to defend itself. In recent days, nearly 1,000 rockets have been fired from Gaza at Israel. At least three Israelis have been seriously injured and there have been other injuries as well.
However, the Foreign Secretary was right to point out that since the start of the Israeli military operation in Gaza only seven days ago, more than 170 Palestinians have been killed and thousands more have been injured. As the Statement said, the United Nations has reported that a large number of those killed, over 80%, were civilians, and a third of those killed were children.
Although this conflict cannot and must not be reduced simply to a ledger of casualties, the scale of the suffering in Gaza today must be fully and frankly acknowledged by all sides. The truth is, of course, that the life of a Palestinian child is worth no less than the life of an Israeli child. Every life is equal, irrespective of religion and nationality. The Foreign Secretary has rightly condemned the horrific kidnap and murder of three Israeli teenagers and the burning alive of a Palestinian teenager. These were truly shocking events but, while those barbaric acts seem the proximate cause of the latest spiral of violence, the underlying cause for this latest crisis is surely the failure over decades to achieve a two-state solution for the two peoples. Does the Minister agree?
The House will remember our debates in 2008-09 and 2012 on what today seems grimly familiar: in Gaza, Operation Cast Lead in 2008-09 and Operation Pillar of Defense in 2012. The same pattern seems to be repeating itself. In 2008-09, Israel declared a unilateral ceasefire; in 2012 the Egyptians brokered one. On both occasions it was clear that the conflict between Israel and Hamas cannot be solved through force of arms alone. I am sure that Her Majesty’s Government recognise that there can be no military solution to this conflict. Does the Minister agree that the scale of the suffering in Gaza, adding to the effects of the continuing blockade, only serves to fuel hatred and embolden Israel’s enemies?
The further isolation of the Palestinian Authority in the face of military action weakens its own domestic legitimacy. Surely that ultimately makes negotiations harder and peace more difficult to achieve. Today, the risk of all-out escalation in the conflict and the threat of a ground offensive action are very real indeed. However, of course—and this should constantly be said—they are preventable if Hamas stops firing rockets at Israel. As Her Majesty’s Opposition, we are clear not only on the need for an immediate ceasefire but that a full-scale ground invasion would be both a disaster for the people of Gaza and a strategic error for Israel. It is vital that our Government, along with allies, now make that position clear to the Israeli Government in the crucial hours and days ahead. I am sure that the Minister agrees with that.
We of course welcome the statements made by the United Nations Security Council on Saturday calling for a ceasefire. The Foreign Secretary spoke of Her Majesty’s Government being willing to consider further action at the UN Security Council if a ceasefire was not agreed. Can the Minister set out what sort of further action might be involved? I am sure that we are all agreed that the United Nations has to take a forthright role in seeking to bring the recent violence to an end.
There have been calls for the United Nations Secretary-General to travel to the region as a mediator between the two sides. Do Her Majesty’s Government support such a call? We all know from bitter experience over many years that a spiral of violence that reinforces the insecurity of the Israelis and the humiliation of the Palestinians leads only to further suffering. For Israel, permanent occupation, blockades and repeated incursions into occupied lands will make peace and ultimately security much harder, not easier, to achieve. Alas, it appears to be not a strategy for peace, more a recipe for conflict.
Of course we welcome all the humanitarian efforts that the Foreign Secretary has set out and that are being made by the Government on behalf of this country. It is very good that Britain plays such a major role. We also welcome the good news concerning the departure of British nationals and Palestinian dependants from Gaza. However, do we not all know after all these years that a humanitarian response, while absolutely vital, is not sufficient? That is obvious from the past few days, and from Israel’s overwhelming military might. I repeat: Hamas, weakened today by al-Sisi’s rise in Egypt and differences with Iran over Syria, can itself revert the risk of an imminent ground invasion by stopping the rocket attacks.
Israel needs more than just tactics for winning the next round of war. It needs a strategy for building peace. This is a time and a crisis that demands not revenge but statesmanship motivated by justice. Only politics and a negotiated solution offer a way forward to peace.
Baroness Warsi
My Lords, I thank the noble Lord for his support at what is an incredibly difficult time. He speaks with a sombre tone; I speak with a heavy heart. There is no doubt that, as long as the cycle of violence goes on, the prospects of peace recede. That is why we have called for an immediate de-escalation and a restoration of the November 2012 ceasefire, to avoid further civilian injuries and the loss of innocent life.
The noble Lord referred specifically to the fact that there was no military solution. I agree with him on that. Even as it stands, it is vital that we ensure that all military actions are proportionate, in line with international humanitarian law and calibrated in a way to avoid further civilian casualties.
On the inability to resolve this conflict, the noble Lord spoke about what more could be done. I have stood at this Dispatch Box on many occasions and talked about how the window of opportunity is slowly closing. I quote Philip Gordon, the White House Middle East chief, who said the inability to resolve this conflict—we all carry the responsibility of that—
“inevitably means more tension, more resentment, more injustice, more insecurity, more tragedy, and more grief”.
We have seen that over the past few days. However, I once again return to the fact that only the US can truly move this forward and, among other things, deliver Israel into an agreement. Secretary Kerry is on his way to the region but the noble Lord quite rightly identifies that the situation has now changed, even from 2012. My right honourable friend the Foreign Secretary has been in discussions with a number of Foreign Ministers from the Arab League, discussing how we can ensure that the different parties to this dispute can be brought to the table, because—I go back to saying what I have always said—only a negotiated solution will bring this matter to an end.
Baroness Morris of Bolton (Con)
My Lords, I declare my interests as president of Medical Aid for Palestinians and the Prime Minister’s trade envoy for the Palestinian territories. Even before the current hostilities began, health services in Gaza were in steady decline, with drugs running dangerously low and 300 pieces of essential equipment not functioning. That was before the horrendous lifetime disabilities that have been suffered by hundreds of Palestinians, many of them children. Will the Government do all they can to ensure the necessary medical supplies reach Gaza? MAP is one of only three NGOs to have contributed to dealing with the drug shortage so far, so there is quite a worrying lack of take-up. Will the Government put all the pressure that they possibly can on the relevant authorities to ensure that the patients who need skilled reconstructive surgery outside Gaza are able to leave Gaza? At the moment, only a trickle of patients are getting out.
Baroness Warsi
I thank my noble friend for that update. She comes to these matters with great expertise and understanding of the region. On a number of occasions, including before the current situation arose, I have said that it is only right that we work together to ease the restrictions on Gaza. We continue to urge Israel to ease the restrictions, including the movement of goods and persons from and to the Gaza Strip. However, my noble friend will be aware that the United Kingdom is one of the largest donors to the region and we will ensure we continue that support.
Lord Pannick (CB)
I thank the Minister for all the work she and the Foreign Secretary are doing to seek to alleviate this truly tragic situation. She referred to a cycle of violence. In addressing this problem, would she agree that it is vitally important not to lose sight of the fundamental point that Hamas is a terrorist group that applauds the killing of Israeli students and which is seeking to kill by missiles as many Israeli civilians as possible? By contrast, the state of Israel pulled out of Gaza and is now trying to protect its population from intolerable missile attacks, which are launched from bases in civilian locations. Israel is doings its best to give warnings. This fundamental distinction between the two parties is symbolised by the actions of Prime Minister Netanyahu, who telephoned the father of the Palestinian boy who was savagely and inexcusably murdered—that is the incident to which the Minister referred—to express the outrage and condolences of the Israeli Government and their people. That action is quite inconceivable from the leaders of Hamas in relation to Israeli citizens.
Baroness Warsi
My Lords, I agree that the actions of Hamas in no way add towards bringing this matter to an end. Nor, indeed, do they add to the peace. In fact, the indiscriminate firing of rockets into Israel means this matter is prolonged and made much worse. However, it is important for us to hold on to positive moments, such as the one the noble Lord referred to: the moment when Prime Minister Netanyahu rang the father of the boy who was tragically burnt. We should also hold on to the positive moment when President Abbas said he would give all the support he could to ensure Israel found the kidnappers and killers of the three teenagers. It is important that we hold on to those small positive moments, even in these difficult times.
Lord Phillips of Sudbury (LD)
My Lords, the question I ask may be provocative to some, as I take a diametrically different view to that of, for example, the noble Lord, Lord Pannick. Therefore, I first make absolutely clear my total commitment to the right of Israel to exist in peace behind its borders, and make clear that the rights in this convoluted and awful area of the world are not all on one side—not by a long chalk. At the same time, I have been to the West Bank and Gaza four times in the past 12 years, and I have seen for myself the quite appalling circumstance in which the Gazans live. It is not just the Gazans; the people of the West Bank live in a state of permanent humiliation, with the occupying army of Israel, the check-points and all the rest of it.
I ask my noble friend this question. Nowhere in the Statement—it was quite a long one—does one find any reference to the overriding strategic injustice in the region. Israel is not content to exist within the borders set by the United Nations, not forgetting that no one asked the Palestinians; vast numbers of them were pushed out. As I say, I support totally the right of Israel to exist peacefully, but the truth of the matter is, for the last—
Lord Phillips of Sudbury
The question will come soon. Does she not agree that the constant, tenacious determination of Israel to colonise the West Bank—one is told that nearly half a million colonists live in that country and often take the greater part of the resources, water and so on—is the casus belli in this situation? I know from speaking to its leader, Dr Haniyeh, that Hamas withheld any rocket attacks and violence at all for several years, but the extremists in Gaza had to put up with provocation that the Israelis, if the positions were reversed, would not contemplate. Is it not time we said to Israel that we will not go on countenancing this colonisation and, unless they stop it, we, in conjunction with other members of the European Union, will have to apply sanctions to them?
Baroness Warsi
I suppose the issue that I take with my noble friend is this: it is important we do not draw parallels between Hamas and the Israeli Government, or indeed try to describe them in a way where we treat them as having equal responsibility. On the one hand, we are dealing with an organisation that is considered to be a terrorist organisation, on the other a state that is a liberal democracy. Israel would be horrified to feel it was being judged by the standards of Hamas.
On the specific issue of settlements that my noble friend raises, we have repeatedly condemned Israel’s announcement to expand settlements in the Occupied Palestinian Territories, including in east Jerusalem. We have consistently said that, as well as being illegal under international law, settlements undermine the possibility of a two-state solution to the Israeli-Palestinian conflict and those who are working for a sustainable peace.
Lord Ahmed (Non-Afl)
My Lords, the Minister mentioned that 80% of those killed have been civilians and that a third of those have been children. How many children have been killed in the three Israeli offensives in 2008, 2012 and 2014? How many Israeli children and how many Palestinian children have been killed?
Baroness Warsi
I concur with the noble Lord opposite who said that the life of a Palestinian child is worth no less than the life of an Israeli child and that the life of an Israeli child is worth no less than the life of a Palestinian child. Every child is equal, irrespective of race, religion or nationality. In relation to civilian deaths, I can inform the House that during the 2008-09 Cast Lead operation there were nine Israeli civilian casualties and 759 Palestinian civilian casualties, of which 344 were children. In relation to the 2012 Pillar of Defense operation, there were four Israeli civilian casualties and 90 Palestinian civilian casualties, of which 30 were children. In the current 2014 Protective Edge operation, there have so far been no Israeli civilian casualties and 133 Palestinian civilian casualties, of which 36 were children.
Lord Kerr of Kinlochard (CB)
My Lords, I thank the Minister for repeating the Statement. The Foreign Secretary was right to talk of the mounting horror of the watchers at what is going on. Israeli friends often accuse one of double standards. They say that we hold them to a higher standard than their neighbours, and that atrocities perpetrated by Israelis are condemned more loudly than those from around. They are completely right: we do hold Israel to a higher standard. Respect for Israeli civilisation, values, culture and history is widespread in this country and that raises the bar, so we take more seriously the behaviour of the Israeli armed forces in recent days. What new action will the Government take to bring home to Mr Netanyahu our abhorrence of the barbarities being perpetrated by a great civilisation?
Baroness Warsi
The noble Lord is probably referring to what I said in response to my noble friend—that Israel is a liberal democracy and we therefore hold it to account against liberal democratic standards. There is no doubt that Israel would like to be held accountable against liberal democratic standards because those are the values that it upholds and stands for. It would be wrong for us to try to compare the conduct of Israel as a liberal democratic state with that of a potentially designated terrorist organisation.
Lord Leigh of Hurley (Con)
Does my noble friend not agree that the tragedy of Gaza is that, following the Israeli withdrawal from Gaza in 2005, there was a golden opportunity to give Israel the confidence that she could subsequently withdraw from the West Bank but, instead, Hamas took over from Fatah? Rather than building infrastructure and creating a tolerant society, Hamas acquired and fired some 11,000 rockets from 2005, mainly, as my noble friend Lord Pannick said, from densely populated civilian areas, which led to terrible human tragedy. Because they were fired from densely populated human centres, the inevitable action, which had to be taken, led to those terrible deaths, whether they were of Israelis or Palestinians. I do not think it is meaningful to compare one with another; any death in that area is a tragedy. Does the Minister not agree that international pressure on Iran is now needed to stop it supplying these rockets and to stop it supplying funding to the terrorist organisation that Hamas now is?
Baroness Warsi
My noble friend makes an important point. This is a matter that has border connotations. The discussion that we are currently having with Iran about its nuclear ambitions and its wish to be part of the international family will also involve discussions with it in relation to its support for terrorist organisations.
Lord Mitchell (Lab)
My Lords, we have had 2008, 2012 and 2014, and no doubt when this little incident finishes there will be a 2016 and a 2018. It is very clear that action needs to be taken to solve this problem once and for all. We all have to make a distinction: this is not a Palestinian issue per se; it is also a Hamas issue, and Hamas is a terrorist organisation as every member of NATO would agree. Does the Minister agree that we have to continue making the differentiation between the Palestinian Authority and Hamas as a terrorist organisation?
Baroness Warsi
The noble Lord will of course be aware that one of the challenges to the Middle East peace process has always been about making sure that the partners for peace on both sides are those who represent everybody—that is, part of the Israeli state and of the Palestinian people. That is why the Government felt that the technocratic Government who were committed to the quartet principles were a step in the right direction and provided an opportunity for real discussions to take place. We sincerely hope that the current matter is de-escalated and that we get to a point of ceasefire so that we can get back to the negotiating table.
Lord Palmer of Childs Hill (LD)
My Lords, I draw to the Minister’s attention the first two sentences of the editorial in today’s Times:
“When Hamas fires rockets into Israel, it is attempting to kill ordinary Israeli citizens. When Israel assaults Gaza, it is attempting not to kill ordinary Palestinian citizens”.
That is perhaps the difference that we ought to emphasise. I am sure that everybody wants an immediate ceasefire. Bearing in mind what the Minister said earlier, is that immediate ceasefire of any real benefit if Hamas, as well as Fatah and the PA, refuses to accept the quartet conditions? Finally, does my noble friend agree that the strategic objective of Israel is to halt the rocket fire? Can she tell the House what she believes Hamas’s strategic objective to be in firing rockets into Israel?
Baroness Warsi
Of course, I cannot say what Hamas’s strategic objective is; I speak on behalf of Her Majesty’s Government. In relation to the important point that my noble friend raises, intent is significant. What Hamas is intending by targeting civilians is a matter that we must take into consideration, and of course intent is important so far as concerns the Government of Israel. However, I think that my noble friend will agree that output is also important. Although you may not intend to kill children, if dozens of children are being killed then it is time for a ceasefire.
Lord Elystan-Morgan (CB)
My Lords, does the noble Baroness accept that this is a time for recognition of certain realities and for magnanimity? One reality is that 170 people have been killed in Gaza and that is an unspeakable humanitarian tragedy. Another reality is that Israel is surrounded by many enemies who are sworn to bring about its total destruction and elimination. As concerns the hundreds, if not thousands, of rockets that have been fired into southern Israel over the past years, each one was fired in the hope, desire and expectation that it would claim life or bring about maiming. It may be said that rockets have been fired from Israel into Gaza. I ask the House to accept that that is by way of counterbattery fire to try to eliminate the sites that bring about death and destruction in Israel.
What would we do if we were in that situation? During the war, when we were fighting for our existence, we had to bomb Brest and Lorient, the U-boat pens, and we killed thousands of French people. Does the Minister accept that situation? They were not our enemies but our allies. It was part of total war, and part of our defence and the position that we were occupying. Is this not a situation where there must be magnanimity and a complete ceasefire? There must be magnanimity on the part of Israel too as regards the siege of Gaza.
Baroness Warsi
The noble Lord makes an important point. It would be almost impossible for us to predict what it would feel like for us to be in that position. I can honestly say that I would not want to envisage being Israeli or Palestinian right now.
Baroness Symons of Vernham Dean (Lab)
My Lords, the Statement clearly says:
“International humanitarian law requires both sides to distinguish between military and civilian targets and enable unhindered humanitarian access”.
The fact is that there has been indiscriminate firing of rockets into Israel but, at the same time, the fact is also that Israeli fire has killed 173 Palestinians. Will the noble Baroness tell us what is being done to apply the international humanitarian law to which the Statement refers? She said that there has been contact with Egypt, Jordan and Qatar over what is happening in Palestine. Has there been any contact with some of the very powerful Arab states which also clearly have a very strong influence over Hamas and the Palestinians?
Baroness Warsi
I think I said at the beginning that it is important that those who exercise influence in relation to both parties use that influence to make sure that we bring both parties back to the negotiating table. The situation is different from what it was in 2012. The situation in Egypt has changed. The number of people who seek to have, or have, any influence over Hamas is much reduced. It is therefore important that we keep open our discussions with our allies and partners in the Arab world to make sure that they do all that they can to bring this matter to a ceasefire. Certainly, we will do all that we can with our allies and partners to do the same.
Lord Wallace of Saltaire (LD)
I am afraid that we are past 20 minutes and we are out of time.
Republic of Sudan: Human Rights
(9 years, 10 months ago)
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Baroness Cox
To ask Her Majesty’s Government what is their assessment of human rights in the Republic of Sudan.
Baroness Cox (CB)
My Lords, I am deeply grateful to all noble Lords contributing to this debate. As I have visited South Kordofan and Blue Nile State, which are currently suffering Government of Sudan genocidal military offensives, I speak with a heavy heart from first-hand evidence. These two areas will be my primary focus. I must also mention ongoing atrocities in Darfur, violations of human rights elsewhere in Sudan and the problems of the Beja people, whom I have visited several times.
First, in Darfur, President al-Bashir continues his assaults unabated and now, alarmingly, supports the notorious Janjaweed. The widely respected Enough Project claims:
“The U.N. Security Council mandated that the Sudanese government disarm its Janjaweed militias a decade ago. This never happened. Now, many of those same men are moving across the country on government command, burning civilian areas to the ground, raping women, and displacing non-Arab civilians from their homes … Unlike the Janjaweed fighters from the past, however, Sudan is not keeping the Rapid Support Forces (RSF) at arm’s length. Instead, these fighters boast full government backing and formal immunity from prosecution due to their new status as members of the National Intelligence and Security Services … the Sudanese government’s continued support of Janjaweed groups has become much more clear … Sudanese diplomats have thrown their political capital behind the group and boast that they successfully blocked the U.N. Security Council from issuing a statement criticizing the RSF … these forces have not restricted their crimes against humanity to … Darfur … their first act was to lethally suppress peaceful protesters during the September 2013 demonstrations in Khartoum”.
The Government of Sudan’s brutal suppression of freedom of speech, the press and civil society is documented in the 2014 World Press Freedom Index by Reporters Without Borders and illustrated by the recent closure of Salmmah Women’s Resource Centre. Will the Minister say what representations have been made by Her Majesty’s Government concerning increasing violations of freedom of speech, the press and civil society?
Another grave concern is the Government of Sudan’s denial of freedom of religion and belief. The notorious barbaric sentences and treatment meted out to Meriam Ibrahim, with the death penalty for alleged apostasy, 100 lashes for adultery and her treatment in prison, where she gave birth in shackles, may be heralding more widespread persecution of non-Muslims that does not hit the headlines and may be carried out with impunity.
For example, there are reports of another apostasy case in El Gadarif against another Christian woman, Faiza Abdalla, whose family had converted to Christianity from Islam before she was born but kept their former Muslim name. When she told authorities that she was a Christian, she was arrested and incarcerated under suspicion of having left Islam. A court has terminated her marriage to her husband, a lifelong Christian from South Sudan, on grounds of adultery. What representations have Her Majesty’s Government made to the Government of Sudan concerning this case and other gross contraventions of the right of freedom of religion and belief?
I turn to the horrendous situation in South Kordofan, especially the Nuba mountains, and Blue Nile State. I visited these areas with my small NGO, Humanitarian Aid Relief Trust. We witnessed Antonov aircraft targeting schools, clinics, markets and people working on their crops and we saw the terror that drove them to hide in deadly snake-infested caves in the Nuba mountains or desperately to seek shelter in river beds and under trees in Blue Nile. We visited villages where hundreds of people had died of starvation. They are now deserted because of recent bombings. We saw the fresh craters. This ruthless killing of civilians reflects al-Bashir’s commitment to turn the Republic of Sudan into an Arabic, Islamic state through ethnic and religious eradication of black Africans and non-Muslims.
A report by the Sudan Relief and Rehabilitation Agency on 7 July documents this genocide. It is entitled, “Sudan Government offensive drives 1.1 million civilians to brink of starvation”. The report states:
“A carefully conducted survey, carried out at great risk by workers in the field, has revealed the scale of the looming catastrophe … in Southern Kordofan and Blue Nile States … The dry season offensive—launched by the Sudanese Armed Forces in January this year—has driven civilians away from their homes and their farms”,
with the Government’s deliberate strategy,
“to use of starvation as a weapon of warfare … In many locations food has been all but exhausted, water is scarce and essential medications are nowhere to be found. Nearly one million civilians in South Kordofan and around 100,000 in Blue Nile states have fled from the areas of conflict. A further 400,000 people in South Kordofan are now internally displaced, hiding in the caves … President Omar al-Bashir … launched an operation called ‘Decisive Summer’ in January 2014 … The Sudanese Armed Forces were reinforced by the Rapid Support Force, which included members of the notorious Janjaweed … Schools and homes were destroyed. On 1 May the Mother of Mercy Hospital in … Southern Kordofan, was damaged after six bombs were dropped in the hospital compound from a Sukhoi-24 fighter … The African Union, led by former South African President, Thabo Mbeki, has been attempting to mediate … His efforts have been backed by the African Union, the United Nations and the wider international community. But the intransigence of the Government of President Omar al-Bashir has resulted in an impasse … The Sudanese government has also refused to allow President Mbeki to make a visit to South Kordofan, Blue Nile and Darfur, so that he can see for himself the scale of the devastation the Government military and their associated militia have inflicted on ordinary people”.
An aid organisation that cannot be named has sent me the following message:
“Between the dates of June 7th to 16th of 2014, our staff compound, food convoys, and warehouses were bombed in 8 intentional attacks over the course of 9 days by approximately 37 bombs and 73 rockets … unmanned surveillance drones were sighted prior to the majority of the attacks ... The organization strongly believes that these attacks are further evidence of the GoS’s clear, sustained, and unapologetic attack against humanitarian actors .... A country ... should not use the withholding of food and medicine as weapons of war to kill its own people”.
The Government of Sudan refuse to allow aid organisations access to these regions. However, HART has very responsible partners who have delivered food with funds that we have been able to provide. We met communities in those remote areas, some of whose people had already died from starvation and bombardment. They were poignantly grateful, saying, “Thank you for the food. This means we can stay in our own land. Even if we die from bombs we prefer to die in our own country than to have to flee to exile abroad because we have no food”. Will Her Majesty’s Government consider cross-border aid operations to the people in these states? There are reliable partners who will account for funds provided and ensure that they reach the civilians who are now dying from starvation and lack of any medical care.
The Islamist guru in Khartoum, al-Turabi, has declared his intention to take his militant Islamist ideology through Africa from Sudan to Cape Town. The international community continues to allow Khartoum to fulfil its ethnic and religious cleansing with impunity. There is a real danger that those seeking to resist militant Islamism will fail, leaving the way wide open for the expansion of this lethal ideology far beyond the confines of Sudan. Many of those currently dying are Muslims as well as Christians and traditional believers.
There are clear national and international legal obligations to act. The SRRA appeals to the UN Security Council and the international community to: declare the situation in the two areas a humanitarian emergency requiring an urgent response from all actors; demand that SAF immediately halts its aerial bombardment and air strikes against civilians; require the Government of Sudan to lift restrictions on the delivery of food and other humanitarian items and to permit UN agencies and other independent international organisations immediate free and unhindered access to needy civilians to stave off mass starvation and provide medical care; to press the Government of Sudan to agree a cessation of hostilities with regional and international monitoring mechanisms; to consider the most effective means, including air drops, to access those civilians trapped by ground attacks and lack of roads; and to urge national and international authorities to conduct independent investigations into allegations of summary executions, detentions and torture inflicted on the basis of ethnic and political affiliations of individuals in the two areas.
Whenever I and other noble Lords have raised these issues in debates, and the question of sanctions, which could have an impact on the culture of impunity, we have been told that Her Majesty’s Government wish to continue to talk to Khartoum. While we appreciate the importance of dialogue, it has been apparent over two decades that al-Bashir’s Government are very happy to talk—and to continue killing while they talk. The people of Sudan have suffered far too much for far too long. They look to the United Kingdom for help, believing, as I do, that we have a particular historical responsibility. We are also members of the troika with continuing responsibility for the implementation of the CPA. They will read this debate with acute interest and deep concern. I sincerely hope that they will not be disappointed by the Minister’s reply.
Lord Cope of Berkeley (Con)
My Lords, the noble Baroness, Lady Cox, is remarkable for her vigour and tenacity in standing up for so many of the most oppressed people in the world. I congratulate her on it. Some years ago, it was my duty to withdraw the Conservative Whip from her. Some might take that as a hostile act, but she never seems to mind.
My interest in this debate stems from a small charity called Kids for Kids, of which I am a patron. It is a highly focused UK charity, which works only in Darfur to help people to stay in their villages rather than be forced to flee into the vast camps as refugees. Its first programmes, which still continue, were about lending goats to starving families, hence the name. I hear about Darfur in particular through this charity. It has a big enough task because Darfur is the size of Spain.
To be driven from one’s home and livelihood is to be deprived of a most basic human right. The camps do amazing work, but nobody wants to leave their homes and land in order to be dependent day by day and year by year on food handouts. Over the years, drought and sheer poverty have been powerful drivers, creating refugees as well as waves of sickening violence, particularly from militias. NGOs such as Kids for Kids can and do help to fight drought with wells; they can fight poverty and malnutrition with goats, donkeys and agricultural advice; but NGOs cannot fight violence. That has to be done with politics. The international agencies have worked to bring about agreement and find solutions, but have not succeeded and the situation keeps getting worse.
This year so far, another 250,000 Darfur people have become refugees. Some say it is more like 500,000—the figures are not clear. They are added to the 2 million to 3 million Darfuri residents already displaced and in camps as refugees, many for some years. That is out of a total population of 7.5 million in Darfur in 2008. The Abuja agreement of 2005 and the Darfur peace agreement of 2006 have not brought peace. The Doha Document for Peace in Darfur, signed in 2011, might still provide a basis for a settlement, but it simply has not worked so far or been implemented properly.
The Sudanese Government have to take primary responsibility, but the UN and other states like ourselves have, as the noble Baroness made clear, an important role to play and we must recognise that we have not yet been effective. Can the Minister tell us what progress has been made since the Security Council resolution was adopted in April? Can the UN-African Union Mission in Darfur be given new vigour and impetus to make a difference to this appalling situation?
After more than a decade of violence, the whole area seems to be getting stuck in a permanent state of violence, with millions of permanent refugees. It is getting like Palestine, which we were discussing a few minutes ago, where UNRWA does its best for millions of refugees from half a century ago but who are still refugees, where UN resolutions are flouted with impunity and where violence is seen as the only way forward.
Violence is no solution in Palestine or, for that matter, in Darfur. Agreement must be found by negotiation. The bitterness does not deteriorate over time; it festers and feeds on itself. It leads to appalling inhumanities and the crushing of all human rights. As the noble Baroness indicated, it exaggerates religious and tribal differences to lethal degrees over a short time. Peace efforts must be redoubled in Darfur and the whole of Sudan to bring about more inclusive government and more equal treatment.
Baroness Kinnock of Holyhead (Lab)
My Lords, I, too, pay tribute to the noble Baroness, Lady Cox, who relentlessly and courageously supports those denied fundamental freedoms, who are excluded and marginalised, and who are too often forgotten. The noble Baroness earns the respect of us all.
The first six months of 2014 have brought devastation, death and destruction to Sudan on a scale not seen since the height of the genocide in Darfur from 2003 to 2005. In 2013, violence caused a further 460,000 new internally displaced people. So far in 2014, another 215,000 people have been forced to flee their homes and 3.5 million people in Darfur—half the population—are in need of humanitarian assistance. There are still 300,000 Darfuri refugees in camps in Chad.
Sudan faces a terrible humanitarian disaster but, tragically, it has slipped off the international agenda. Political freedoms, religious freedom and freedom of speech are under attack, newspapers are censored and banned. Access to justice is rare. There is evidence that torture, beatings, rape and other inhuman punishments are routinely used. Sudan, as the FCO report says, is the country that makes most use of the death penalty. In Darfur, reports of human rights abuses have considerably increased. Sexual, gender-based violence almost doubled in the last quarter of last year. The chief prosecutor of the ICC has described reports of “disturbing” abuses in Darfur to the Security Council. There are also very grave concerns about the denial of children’s rights to education, to nutrition and to the freedom to be children and not to be forced into the army. LGBT rights are routinely denied. Anyone identified by the authorities is fined, flogged, stoned or imprisoned, and can even face the death penalty. Human Rights Watch says that human rights abuses,
“are intensifying in Darfur, making accurate, timely public reporting on human rights abuses more important than ever”.
Does the Minister agree that it is shocking to learn that, in Darfur, public reporting of abuse has all but ceased and that the latest report by the UN human rights commission was as long ago as in January 2009? In 2004, the United Nations Security Council mandated the Sudanese Government to disarm their Janjaweed militias. They never did, denying any close connection with the violent Arab militia. Now, in 2014, as the International Criminal Court’s chief prosecutor has said, the Janjaweed have been trained and rebranded as the Rapid Support Forces and are attacking unarmed civilians in Darfur, and North and South Kordofan, with impunity.
Far from distancing themselves from the destruction caused by the RSF, the Sudanese Government admit that it is a vital part of their campaign to eliminate what they describe as a “rebellion” or “insurgency” in the marginalised areas of Darfur, South Kordofan and Blue Nile. The behaviour of the Sudanese RSF has been so ruthless that several Sudanese politicians who usually in the past have supported the regime obediently have spoken out and been jailed as a consequence. At the start of the year, President Bashir warned that 2014 would witness,
“the end of all tribal and ethnic conflicts and insurgency”,
through a military campaign called the “Decisive Summer” mobilisation. He meant it, and he has pursued that objective remorselessly.
Recently, the UN Secretary-General ordered a commission of inquiry into the poor performance of UNAMID, the peacekeeping force in Darfur, following evidence that human rights abuses are extraordinarily frequent and that it is sending misleading reports to the United Nations and to the African Union. In addition, UNAMID is failing to protect vulnerable civilians, which leads to serious abuses of human rights as women who face violence and rape are denied protection, as has been the case in Darfur, and more generally in Sudan, for far too many years. Meanwhile, the Sudanese authorities continue to place daily restrictions on the activities and movements of UNAMID, other UN agencies and humanitarian aid groups.
The US Commission on International Religious Freedom has reported that Sudan is among the least free and tolerant countries on earth, ranking it with Iran, North Korea, Burma and Saudi Arabia. Freedom House gives Sudan its worst ranking, as does Transparency International. None of this augurs well for a genuine national dialogue. For these reasons, the UK must surely not fund any part of the forthcoming 2015 election process due to take place in Sudan, because there is absolutely no basis for us to believe that those elections will be free, fair or credible.
Meanwhile, the Doha peace process has stalled, lacking credibility in the eyes of many in Darfur. The UK has invested time and effort in Doha, but most civil society groups are calling for a more comprehensive dialogue that includes all marginalised areas, considers devolution of power to the regions and provides a fully revised constitution that guarantees the rights of minorities.
Against that background, I must ask the Minister what the UK’s position is on demands being made by civil society organisations. Is she aware that 60 of Sudan’s laws violate its own constitution? Will the Minister assure the House that the UK is strongly pressing Sudan to respect the many international and regional conventions and treaties it has signed guaranteeing the human rights of its citizens irrespective of ethnic background or faith?
My final point relates to the engagement of the UK in the negotiations taking place on dropping Sudan’s external debts. Will the Minister confirm that UK officials participated in the technical working group on Sudan’s external debt, which met most recently in Washington in April? Will she agree that, as long as these talks go on, Sudan will have no pressing reason to respect its obligations under international human rights law or, indeed, its own promises to the African Union and the UN? Surely the Minister will recognise and agree that UK actions count for much more than our occasional words of condemnation of the regime in Khartoum.
It is almost 10 years since the UN Security Council first reported the situation in Darfur to the chief prosecutor of the ICC. Last month, the ICC urged the Security Council to support efforts to ensure that the individuals indicted in war crimes cases in Sudan’s Darfur region are delivered to The Hague for prosecution. What has been the Government’s and the Security Council’s reaction to this ICC demand for urgent support at this time? Does the Minister agree with the chief prosecutor that there has now to be a dramatic shift in the council’s approach to arresting Darfur suspects? Is it not starkly clear that the regime in Khartoum will change only when our pressure includes the enforcement of outstanding Security Council resolutions imposing targeted smart sanctions on the architects of the continuing suffering and misery of the people of Sudan? If we delay, they prevail—and millions suffer horrifically.
The Lord Bishop of Carlisle
My Lords, I, too, am most grateful to the noble Baroness, Lady Cox. Unlike her, I cannot claim to be an expert on Sudan, but some of my colleagues who would normally speak on this issue have been unavoidably detained today in another debate of some importance to the church at the General Synod in York. I am very grateful for this opportunity to contribute to this debate because the human rights issues it raises are of such enormous significance, not only for the individuals directly concerned but for the way in which we direct our foreign aid and conduct our foreign policy.
With regard to foreign aid, there is clearly a real humanitarian crisis in Darfur, as we have heard, especially in the mountainous northern part of Sudan which borders Egypt. We have already heard about the thousands of refugees, but famine is also endemic there. One colleague who visited recently talked to people who were reduced to eating leaves off the trees. The population of that bit of the country is still predominantly Christian, and government help or support is virtually non-existent. What is more, aid agencies are able to offer little assistance due to the dangerous conditions, the poor infrastructure and, as we heard earlier, the periodic refusal of the Government to let them in. This means that the local Christian diocese has to shoulder most of the burden of caring for people who are in desperate need, and of attempting to feed them when its own resources are pitifully small. Have Her Majesty’s Government given any consideration to providing aid, and so helping to meet people’s basic human rights to food and drink, through the church in that part of Sudan? Heroic efforts are being made to alleviate desperate need, but funding is urgently required.
Where foreign policy is concerned, that leads on to the way in which human rights, and religious freedoms in particular, are being flouted in Sudan. The recent case involving Meriam Ibrahim, which has already been mentioned, and the closure of the Salmmah Women’s Resource Centre, illustrate this all too graphically. In theory, Sudan has ratified the optional protocols of the UN human rights conventions but, in practice, increasingly Sharia interpretations of the 1991 criminal code are having a devastating effect on many lives.
For instance, Lubna Hussein was sentenced to a lashing for allegedly dressing indecently in public by wearing trousers. Intisar Sharif was sentenced to death by stoning for adultery. Indeed, offences such as adultery, apostasy and armed robbery all have fixed sentences that include death by hanging, stoning, crucifixion or whipping. These penalties are clearly at odds with the basic freedom from physical harm which the Human Rights Act entails.
I would therefore be most grateful for some indication from the Minister as to any pressure that is being or could be applied to the Government of Sudan to ensure that they begin to respect their religious and cultural minority groups. In particular, I wonder what we are doing at and through the United Nations to press the Sudanese Government to honour the Universal Declaration of Human Rights, including and especially Article 18, which relates to religious observance.
Baroness Morgan of Ely (Lab)
My Lords, the foreign affairs teams in the Lords and the Commons have been extremely busy lately with increasing problems all over the globe. From the invasion of Ukraine to chaos in Iraq to the crisis in Syria—and today we have been discussing the latest crisis in Gaza—the international community has to consider and act on many serious conflict and human rights situations, which occupy its time, energy and commitments, so I am grateful to the noble Baroness for ensuring that our focus has been brought back to the topic of human rights in the Republic of Sudan. As my noble friend Lady Kinnock suggested, Sudan seems to have fallen off the radar recently. It is not a new topic—although it has perhaps been overshadowed by other recent conflicts—but it does need our urgent attention.
The hope for a lasting peace in the region that was felt when South Sudan split off from Sudan and became an independent nation has sadly not been translated into reality. Sudan remains politically fragile, it has a heavy debt burden and the economy is in a dire situation. On top of this, serious internal conflicts continue, particularly in Blue Nile and Southern Kordofan, as has been mentioned. In recent months there has been a serious and deeply troubling escalation of violence in Darfur and with South Sudan, and there have been access restrictions for major aid agencies, many of which are critical for food distribution. In fact, my own brother has recently been stopped from carrying out humanitarian aid in Sudan.
There is an urgent need to create a favourable environment within which Sudan can address the underlying and long-term causes of its internal conflicts. This necessitates upholding human rights, including the freedom of expression, and a cessation of hostilities, both of which are essential for this process to be successful. Regrettably, we have not seen these essential elements for building peace and maintaining the rights of the people of Sudan in the actions of the Sudanese Government.
The Government continue to arrest human rights defenders, journalists and political leaders. The recent case of Meriam Ibrahim, a Sudanese Christian mother who was sentenced to death by hanging for “apostasy” and flogging for “adultery” while eight months pregnant, was brought to international attention. Along with others in the House, I welcome her release from prison. However, she is still unable to leave Sudan because further charges remain against her. We must remember, however, that this is just one case which has captured the international community’s attention. Religious persecution remains widespread within the country, as was mentioned by the noble Baroness, Lady Cox, and the right reverend Prelate.
In June, Amnesty International highlighted the fact that family members of three Sudanese activists who remain in detention without charge in Khartoum have reported that they show signs of torture and ill treatment. Human Rights Watch has raised concerns that:
“Despite the secession of South Sudan and the end of the transition period in the 2005 Comprehensive Peace Agreement, during which Sudan adopted an Interim National Constitution, the government has yet to pass a new permanent constitution”.
There are grave concerns about widespread impunity for serious human rights violations because Sudanese law grants immunity to law enforcement, military and security agents—and, as the noble Baroness, Lady Cox, and my noble friend Lady Kinnock, said, the Janjaweed militia. Will the Government use all available channels to push for a review of the Sudanese criminal code, which currently permits torture and human rights abuses?
The implementation of the Doha Document for Peace in Darfur has been slow and the main armed groups are mistrustful of the process. The process for a lasting peace necessitates the involvement of all stakeholders, from civil society to armed groups, and there are concerns that President Bashir’s “national dialogue” is associated with traditional elites and is not inclusive. I ask the Minister: what will the Government do to ensure that President Bashir’s national dialogue initiative becomes a process capable of reaching a more comprehensive solution?
The humanitarian situation in areas of conflict within Sudan is cause for significant concern and, with the disruption to planting and future harvests under threat, is likely to rapidly deteriorate. The violations of human rights by the Sudanese Government, pro-government militia groups and anti-government armed groups include indiscriminate aerial bombardments, arbitrary detentions, torture and ill treatment of detainees, extrajudicial executions and the forced displacement of civilians.
Since the beginning of this year, there have been huge numbers of newly displaced persons. In Darfur, 500,000 people were displaced in 2013, a significant increase on previous years. In South Kordofan and Blue Nile, more than 1 million people have been forced to flee their homes, while at least 230,000 live in refugee camps in South Sudan or Ethiopia. In total, about 2.3 million people have been displaced. On top of this, in the past few weeks there has been increasing evidence of the forcible removal of Eritrean refugees and other asylum seekers to home countries, which the UNHCR has labelled “an act of repression”. Is the Minister aware of this, and have representations been made to the Sudanese Government on this issue?
There are serious problems with restrictions on access for international humanitarian agencies such as the ICRC and the UNHCR due to the introduction of administrative obstacles, including travel permits. The suspension of the ICRC’s operations in Sudan, as of February 2014, is particularly worrying. What more can be done by Her Majesty’s Government to increase pressure on the Sudanese Government to allow access for humanitarian agencies?
Although the international community has for years expressed concern about human rights abuses in Sudan, it continues to deal with Sudanese leaders who have been indicted by the International Criminal Court on counts of war crimes, genocide and crimes against humanity. Will the Minister therefore clarify whether assistance is still being given to British trade missions in Sudan? Does she agree that we should warn British companies of the corruption and other serious problems that they face when trading in the country?
The Sudanese Government’s systemic violations of the freedom of the press and civil society are of great concern. It is imperative that the British Government unite with their allies around the globe to put pressure on the nation’s leaders to seek a resolution to the conflict and underline the fact that the country’s economic, social and political development is at stake.
So many innocent people are being affected by the political games and military manoeuvres directed by the leaders of the country. The Sudanese conflicts are having an unbearable impact on basic human rights, including the right to food, shelter, life and education.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)
My Lords, I thank the noble Baroness, Lady Cox, for raising the important issue of human rights in Sudan. The dire human rights situation in Sudan is central to our engagement in that country both through our embassy and through the joint FCO/DfID Sudan Unit in London.
Let me respond to the noble Baroness, Lady Morgan, and other noble Lords on how we tackle these challenging circumstances. First, we lobby the Government of Sudan on human rights abuses and demand greater transparency and accountability. We also provide tangible support to specific projects. This year, for example, our embassy is offering support to the establishment of a human rights law centre in Khartoum. Our support will also help strengthen human rights monitoring within the country and develop the capability of civil society organisations within Sudan, a point to which the right reverend Prelate referred. In so doing, we are able not only to make a difference on the ground but to maintain contact with a wide network of human rights defenders, who are essential to our work. We also speak out on issues of concern through both ministerial and ambassadorial statements and through social media. We have become involved in cases of huge concern such as that of Meriam Ibrahim, the woman who was recently sentenced to death for apostasy.
The noble Baroness, Lady Kinnock, referred to a whole spectrum of human rights abuses. Another way in which we challenge such abuses is by supporting the work of the UN independent expert on human rights in Sudan. We welcomed his statement on human rights during his recent visit to Khartoum and look forward to seeing his final report at the Human Rights Council in September as it will provide us with an opportunity to highlight our concerns and debate some of the issues that were raised.
The noble Baroness, Lady Kinnock, referred to the ICC. We continue to make it clear to the Government of Sudan that the international community expects compliance with the arrest warrants for the ICC indictees. We equally expect other Governments who are parties to the Rome statute to comply with their legal obligations. In common with other EU countries, we have a policy of having no contact with fugitives from the ICC.
The noble Baroness, Lady Cox, referred in some detail to Darfur. She deserves huge credit for her work to keep in the public eye this appalling conflict in the two areas in Darfur, often displaying great personal courage in finding the latest information. The turn of events in Darfur is heartbreaking. Only this afternoon, my honourable friend the Minister for Africa has been discussing the conflict there with Mohamed Ibn Chambas, the head of UNAMID and the AU-UN Joint Special Representative for Darfur. The most recent report of the UN Secretary-General made it quite clear that it was the Government of Sudan and their rapid support forces who bore primary responsibility for the widespread abuses against civilians, including horrific sexual violence against women and girls and the looting and burning of houses. We have made it clear to the Sudanese Government in the strongest terms that such actions are not only wholly unacceptable but undermine their apparent aspiration for a national dialogue. The Secretary-General’s report also made it clear that the armed opposition, in particular the Sudanese Liberation Army’s Minni Minnawi faction, bears heavy responsibility for civilian displacement.
The escalation of aerial bombardment and the apparent targeting of hospitals by the Sudanese armed forces are appalling and we condemn them in the strongest terms. Ultimately, the conflict will be resolved only if both the Government and the SPLM- North can approach negotiations convened by President Mbeki and his high-level panel with serious intent, as they are required to do by UN Resolution 2046.
The noble Baroness, Lady Cox, referred also to cross-border aid. We do not believe that going down the route of providing cross-border aid is the right thing to do at this stage, given the sensitivities, risks and difficulties involved in monitoring where it goes, but we genuinely keep these policies under review and are always open to further discussion. I am sorry that that is not the news the noble Baroness wanted to hear today.
My noble friend Lord Cope referred to the Darfur refugees. We have raised this matter repeatedly with the Government of Sudan, calling for humanitarian access to those refugees, and the Minister for Africa spoke to the Foreign Minister of Sudan on 28 April. Lynne Featherstone from DfID again raised the situation on 20 May. At every opportunity, both within the Security Council and directly with the Sudanese Government, we press for compliance with all UN Security Council resolutions and sanctions regimes. It is important that UN Security Council follow up its decision to refer the situation in Darfur to the ICC. We have consistently raised this point in the Security Council and will continue to do so.
The right reverend Prelate the Bishop of Carlisle and other noble Lords raised the truly appalling case of Meriam Ibrahim, which has quite rightly inspired worldwide condemnation. I am proud that the UK led the way in calling for her release through statements by the Prime Minister and other senior Ministers. It is a great relief that Meriam Ibrahim has now been released, but we are concerned that she is still unable to travel. As the right reverend Prelate will know, the issue of freedom of religion or belief is one of the six key priorities in my human rights brief and is a personal priority for me. I have been at pains to detail what we mean by freedom of religion or belief, which includes the freedom to have a belief, to manifest that belief, to change that belief and not to have a belief. It is important that we make sure that that is detailed in that way when we have those discussions. The right reverend Prelate will also be aware that we now have a sub-group on freedom of religion or belief as an advisory group within the Foreign Office. The work of that group will also inform our responses to cases such as that of Meriam Ibrahim.
We are also aware of the case involving Faiza Abdalla and other apostasy cases before the Sudanese court. Although the full extent of those cases is not documented, it is clear that Meriam Ibrahim’s case is not an isolated occurrence and the broader issues of religious freedom still need to be addressed in detail. We are working with local Sudanese partners to investigate those cases and continue to call on the Sudanese Government to abide by their international obligations to uphold every citizen’s right to freedom of religion or belief. Of course, those obligations are enshrined in Sudan’s constitution and, indeed, in the very religion which Sudan purports to follow.
The noble Baroness, Lady Kinnock, spoke about the freedom of the press. Of course, that is a vital component of a genuinely open and transparent national dialogue process. Our embassy in Khartoum regularly raises that in discussions with the Sudanese authorities. During his visit to Sudan in January, my honourable friend the Minister for Africa met Sudanese journalists and editors and stressed to senior members of the Sudanese Government the importance of open, democratic space and respect for fundamental freedoms. Our embassy, with the British Council, is jointly funding the Thomson Foundation programme to build capacity for Sudanese journalism, including media training and a sponsored visit to London by Sudanese newspaper editors.
The noble Baroness, Lady Kinnock, also raised the issue of women’s rights and the PSVI. She will be aware both of the work that we are doing in the build-up to the Girls Summit, where we are encouraging Sudan to be represented, and in relation to the Ending Sexual Violence initiative, where we are pressing the Sudanese Government to take forward some of the summit’s recommendations.
The noble Baroness, Lady Morgan, raised the issue of torture. Of course we are deeply concerned at the reports of individuals being tortured while in detention. The visit by the UN independent expert has highlighted the urgent need for those claims to be fully investigated by the Sudanese authorities. Although we welcome the release on Friday of Mohammed Saleh, whose case was specifically raised by the independent expert with the Government, we still feel that more needs to be done by the authorities fully to investigate all claims of torture.
The right reverend Prelate spoke specifically about delivering aid through churches. Aid is given directly to NGOs in Sudan. However, access is limited by the Government of Sudan to certain areas and it may well be that using faith communities could be a way forward. I know that those matters were raised directly with the Foreign Minister of Sudan on 20 May this year.
My noble friend Lord Cope spoke about the strategic review of UNAMID. That review is already showing signs of improved efficiency. We are currently in internal discussions on the mandate renewal, which is due in August next year. The Minister for Africa, Mark Simmonds, met the head of UNAMID only today to discuss that. If anything has come out of that I will certainly write to my noble friend to update him.
The noble Baroness, Lady Morgan, spoke about access for humanitarian agencies, of which ICRC’s suspension is part of our concern. We have made clear to the Government of Sudan that ICRC is an independent organisation with a distinct mandate conferred by the international community, including Sudan, and thus plays a unique role in helping victims of armed conflict and other violence. As a party to the Geneva Convention, Sudan is obliged to allow the ICRC to implement its international mandate. Lynne Featherstone, the DfID Parliamentary Under-Secretary of State, reiterated that when she met Foreign Minister Karti on 20 May.
The noble Baroness, Lady Kinnock, asked about debt relief. We are not negotiating debt relief with the Government of Sudan. We have been clear that the Government of Sudan can achieve debt relief only through the Heavily Indebted Poor Countries process, which includes making serious attempts to reduce poverty, including by ending internal conflict. Sudan cannot realistically expect to achieve debt relief until it makes serious efforts to end its internal conflicts.
The noble Baroness, Lady Cox, raised the issue of sanctions. We would not rule anything out. The suggestion of sanctions is of course interesting, and I will certainly read Hansard as to the specific suggestions that she made, but a number of international mechanisms are in place that we should focus on: UNAMID and the strategic review ensuring that it is efficient and working is one; Sudan at the Human Rights Council is another; the African Union high-level implementation panel calling on both sides to engage in serious mediation over the two areas is another. So there are various levers that we can use.
In conclusion, at face value, the national dialogue launched by President Bashir earlier this year is to be welcomed, but it is clear, not least from the examples raised in this debate, that the Government’s recent actions are undermining their stated intentions. National dialogue leading to real reform is what Sudan desperately needs, so we should continue to remind the Government of Sudan of that commitment; to welcome positive steps such as the release of three political detainees last week; and to support those moderate voices within the Sudanese Government and society who are pushing for reform.
We can do that only by remaining engaged but, at the same time, we should continue to condemn the appalling actions of the Government whenever we see them, from South Kordofan to Darfur. We must ensure freedom of religion, freedom of the press and the protection of other human rights. The case of Meriam Ibrahim shows that the weight of UK and international pressure can make a real difference, but the challenge for all of us now is to ensure that that pressure leads to a fundamental change in attitude and approach from the Sudanese authorities. We must get to a point where there will no longer be a need to raise individual cases because the Government have come to understand that respect for human rights is vital for their own good governance. We will continue to push that.
I was asked a number of questions in today’s debate. I hope that I have covered most of them. If I have not, I am sure that noble Lords will write to me and I will answer them more fully. Once again, I am grateful to the noble Baroness for providing an opportunity to discuss this important issue.
Criminal Justice and Courts Bill
(9 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
(a) prosecution would not be in the public interest, or(b) prosecution for the offence would be inappropriate having regard to the circumstances of either the offender or the offence.”
Lord Marks of Henley-on-Thames (LD)
My Lords, the purpose of these amendments is twofold. The first purpose is to widen the discretion to give the cautions allowed by Clause 15, which, as your Lordships will know, is headed, “Restrictions on use of cautions”. I preface what I say by making it clear that I fully accept that it is desirable to be reasonably restrictive about giving cautions where normally a prosecution would be the proper response to an admission of guilt. That is of course particularly important where the offence concerned is a serious one. Yet the scheme of the Bill is to permit a caution only if there are exceptional circumstances relating to the person or the offence in three categories of cases.
The first category is in the case of indictable-only offences, where,
“a constable may not give the person a caution”,
unless it is,
“in exceptional circumstances relating to the person or the offence”—
I will call that the “exceptional circumstances” test—and,
“with the consent of the Director of Public Prosecutions”.
The second category of offences is of those triable either way which appear on a list of what one would expect to be the more serious offences. That would meet the “exceptional circumstances” test but it would be the constable who gave the caution and there would be no need for the consent of the Director of Public Prosecutions. The third category would deal with all other triable either-way offences—that is, those not on the serious list—and to offences triable summarily. The “exceptional circumstances” test would apply in those cases only to repeat offences: that is, offences that are similar to an offence for which the offender has been convicted in the previous two years. That leaves cautions available on an unrestrictive basis only in respect of those less serious either-way or summary offences which are, effectively, first offences of their type.
I suggest that the “exceptional circumstances” test is too restrictive; “exceptional” is a very strong word. An offence is not exceptional, for example, where it is a minor offence of its class or because the circumstances in which it was committed are otherwise such that a prosecutor might reasonably take the view that more harm than good would be done by prosecution. Dealing with the circumstances of the person, such circumstances would not be exceptional if a former recidivist is well on the way to rehabilitation and a repeat minor offence can be seen as an isolated lapse, where a prosecutor can reasonably and responsibly—and presently often may—take the view that a prosecution would serve no public purpose.
I start on these amendments from the position that there is no reason to undermine the traditional test for prosecutors and not to respect that test. That test requires, first, a likelihood of conviction and it is generally satisfied where there is an admission, as it is a precondition to giving a caution set out in this clause. However, the test also requires the prosecutor to be satisfied that a prosecution is in the public interest. I cannot see why, if that second-limb test is not met—so that a prosecutor does not think a prosecution is in the public interest—even in the absence of exceptional circumstances, the right to administer a caution should be removed and a caution should not remain within the range of possible actions to be taken where there is to be no prosecution. I suggest that there may be many cases—perhaps fewer, I concede, in the indictable-only category—where there has been an admission and a prosecution is inappropriate, and where a caution would nevertheless remain a sensible disposal. In such cases, I see no reason why a caution, which is often an effective disposal, should be available only in first-time summary offences unless the very high hurdle of exceptional circumstances can be surmounted.
The second reason for these amendments is that the decision-maker being provided for is, I suggest, wrong. The Bill provides, first, that the decision-maker in any indictable-only offence is to be the Director of Public Prosecutions, and that in any other case the decision-maker is to be the constable giving the caution. I suggest that the Bill has this wrong in both categories. Surely cautions should not generally be a matter for the DPP, even in indictable-only cases. It is of course likely that, even in indictable-only cases, a decision to caution instead of to prosecute will be taken in cases at the less serious end of the spectrum for that class of offence. It is surely not necessary that the DPP should be involved in a decision to caution in that case, wherever it occurs.
Lord Kennedy of Southwark (Lab)
My Lords, this group of amendments applies to Clause 15, which concerns the use of cautions. Cautions have been used for many years as an effective tool in the toolbox of the police officer and the criminal justice system in general, to give a proportionate response to low-level offending where the offender has admitted the offence. There have been issues where it looks as though cautions have been used for offences that look to warrant a more serious response. The public rightly get concerned about reports of cautions being used in cases of serious violence or sexual offences.
I should say first that the Opposition support the sentiments behind the clause. Our amendments in this group, and our intention to oppose that the clause stand part of the Bill, are just to ensure that there is a debate in your Lordships’ House and to probe and test the Government’s thinking on these matters at this stage. Depending on their response, we may want to bring some of this back on Report.
The amendments moved by the noble Lord, Lord Marks of Henley-on-Thames, were interesting and may prove to be a better way of dealing with the issues at hand. However, I do not want to come to a conclusion on that matter just yet; I want the issue probed much more in your Lordships’ House.
It would be helpful, certainly to me and perhaps to the whole House, if the Minister could set out in responding what he thinks the exceptional circumstances are. On the point made by the noble Lord, Lord Marks, about the public interest, I need to know what the difference is and where both noble Lords are on this question. If the Minister could give us some indication of that, I would be very grateful.
Will the Minister help me further? Clause 15(2)(b) talks about,
“the consent of the Director of Public Prosecutions”.
Will it be the DPP or his staff who decide these matters? If that is the case, is the noble Lord, Lord Marks, not correct that the regional prosecutor may be the right person to go to? His amendment may have some merit on this issue.
The amendment in the group tabled in my name and those of my noble friends Lord Ponsonby and Lord Beecham would insert the word “senior” before “police officer” in Clause 15(5). We still leave it as the decision of the Secretary of State to specify the rank by order, but putting the word “senior” in the Bill makes it clear that Parliament’s intention is that these important decisions to create an exception—to determine whether exceptional circumstances have to merit this decision—need to involve a senior officer.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I understand that I am speaking after my Front Bench friend, but I want to make a couple of points. I understand from the noble Lord, Lord Marks, that the general intent of this group is to lower the hurdles by which cautions would be administered as a whole. He set out very clearly a different approach, but I think it is right to say that it is a lowering of the hurdles as a whole. As he said in his introduction to the amendments, we have seen a reduction in the number of cautions which have been administered in recent years.
I want to make a point that I have made in other contexts. The Government have set up scrutiny panels to review the appropriateness or otherwise of cautions that have been put in place. I thank the Minister for writing to me about this scheme. There are various pilot schemes which are following models in different parts of the country. They are in their very earliest stages and do not cover the whole country. Therefore my question for the noble Lord, Lord Marks, is about whether it is a bit premature to bring these sorts of amendments forward, when we do not have a proper answer to the question about whether the scrutiny panels are properly reviewing cautions and whether the group of people who sit on those scrutiny panels are satisfied that cautions are being appropriately administered. We do not even know exactly how those scrutiny panels will report their findings, let alone what those findings are. I understand that this is a debating point and that these are probing amendments, but I wonder whether putting forward this alternative approach is a bit premature.
Lord Marks of Henley-on-Thames
I invite the noble Lord to deal with the proposition that his question ought to be referred to the Minister. Clause 15 is extremely restrictive of the use of cautions, and if it is premature to reform the rules for the use of cautions or the regime under which cautions are administered, as the noble Lord suggests, it is surely premature to reform it in the very radical, restrictive way proposed by Clause 15. The noble Lord is right to suggest that my amendments reduce the restriction, but at the same time they nevertheless preserve some restriction. The radical amendment is the new clause.
Lord Ponsonby of Shulbrede
I take the point the noble Lord has made. I was really seeing this in the wider context of not just cautions but of out-of-court settlements as a whole. As we know, in London, for example, there are many tens of thousands of out-of-court settlements. Many of them are not cautions but other forms of out-of-court disposals which should be addressed by the scrutiny panels as and when they are running. Nevertheless, the point the noble Lord, Lord Marks, made is a fair one, and I acknowledge it.
Lord Ahmad of Wimbledon (Con)
My Lords, although some of the contributions were about the group that follows and the stand part on Clause 15, I will speak to the amendments in this group. If noble Lords have any additional comments when we get to the next group, I shall cover the specific issues relating to Clause 15 at that time.
The amendments tabled by my noble friend Lord Marks, while well intentioned, would have a detrimental effect on how simple cautions are administered. It is only right and proper that cautions are given only when justified. Serious offences should be prosecuted and offenders should not be able to get off with a simple caution. It is therefore right that the decision to administer a simple caution is taken at the most appropriate level commensurate with the offending behaviour. The propositions set out in Clause 15 follow the review of simple cautions conducted by the Government last year and were developed in conjunction with the police and the CPS.
Perhaps I may refer briefly to Clause 15. It already creates the appropriate levels of authorisation based on the seriousness of the offence when deciding whether to give a simple caution. Amendment 21 would affect the provisions on indictable-only offences. The clause provides that a simple caution can be given only for such an offence where a police officer determines that there are exceptional circumstances and the Director of Public Prosecutions consents. The noble Lord, Lord Kennedy, asked for examples of exceptional circumstances and when it would be appropriate for the police to administer a repeat caution. I do not want to be drawn at this juncture into trying to determine what “exceptional circumstances” should or could mean. They are operational matters that would be unique to each case. However, there is specific guidance to this which is used by the police, and those factors are taken into account when determining where there are exceptional circumstances. Specific examples include the age of the offender, culpability, remorse and the mental health of the offender.
The rank of the police officer will be specified by order made by the Secretary of State. However, we anticipate that the order will specify the rank of at least superintendent. This mirrors the position in the current guidance on adult simple cautions. The amendment would remove the senior police officer from the decision-making process. In practice, the role of the DPP will be undertaken by the Crown Prosecution Service. The regional office of the CPS should be best able to determine for operational reasons who should make a decision about whether a simple caution for an indictable-only offence should be given, and it is not right that we should restrict this to the regional chief crown prosecutor. In practice, the chief crown prosecutor may well determine that the decision is his or hers to make, but we should not be so prescriptive as to set this out in legislation.
Amendments 22 and 23 would require the regional chief crown prosecutor to decide whether to give a caution for a specified either-way offence, and separately non-specified either-way and summary-only offences where the offender has been convicted or cautioned for a similar offence within the last two years. The clause as drafted makes it clear that these decisions must already be taken by a police officer of a rank specified by the order made by the Secretary of State. It is envisaged that the Secretary of State will determine that the decision to give a simple caution for a specified either-way offence will be made only by an officer of at least the rank of inspector. For non-specified either-way offences and summary-only offences, it is envisaged that an officer of at least the rank of sergeant will determine whether a simple caution should be given. Escalating all these decisions to the regional chief crown prosecutor would hugely slow down the decision-making process to administer a simple caution and would increase the burden of bureaucracy on both the police and the CPS. In difficult cases the police can always consult the CPS. It is also worth noting that the public interest test in Amendments 21 to 23 is already exercised by the police and, where relevant, the CPS under the existing guidance on simple cautions when determining whether to give a simple caution. It is also anticipated that revised guidance will require the public interest test to continue to be exercised in the same way, and therefore there is no need to replicate this in statute. It is a level of detail that is best set out in guidance.
Amendment 24 seeks to ensure that a senior police officer would determine whether there are exceptional circumstances such that a simple caution can be given where it otherwise would not be, and whether an offence is similar to a previous offence. It is only right and proper that simple cautions should be given only when justified. Serious offences should be prosecuted and offenders should not be able to get off with a simple caution. It is therefore right that the decision to administer a simple caution is taken at the most appropriate level commensurate with the offending behaviour.
Lord Kennedy of Southwark
Could the Minister reflect on the comments that he made earlier? I am sure that we will come back to this on Report. He talked about exceptional circumstances and the noble Lord, Lord Marks, talked about the public interest, but we need a bit more information rather than just saying that these are operational decisions. We may be poles apart here, or it may be nothing at all, but I want to test that further. Perhaps we can come back to that on Report.
Lord Marks of Henley-on-Thames
I suspect that the noble Lord, Lord Kennedy, has hit on the heart of this. I agree with my noble friend the Minister that it might have been sensible to deal in this group of amendments with Amendment 25 and the subject of the level of police officers. Perhaps, left as it is, we will deal with it later.
I suspect that my noble friend’s answer has not dealt with the gap that may exist between a prosecution that a prosecutor takes the view is not in the public interest and a case in which there are no exceptional circumstances, so that a caution is not available. My suggestion to the Committee is that there ought to be a choice between a prosecution on the one hand and a caution on the other. My noble friend has not dealt with the case whereby a prosecution is not in the public interest and a caution is not available under this clause because exceptional circumstances are not satisfied.
The other suggestion that I invite my noble friend to consider before Report is whether the test of exceptional circumstances, which the noble Lord, Lord Kennedy, mentioned, and which is dealt with in a number of cases relating to different statutes, is not simply too harsh, and that “contrary to the public interest” or “inappropriate prosecution” is a better test. But with those observations and knowing that my noble friend will consider it, I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames
My Lords, as I suggested a moment ago, this amendment deals with matters that we dealt with in the previous group. It would omit the provision that it is,
“for a police officer not below a rank specified by order … to determine … whether there are exceptional circumstances for the purposes of”,
Clause 15. Therefore, the amendment really goes with the amendments that remove the requirement for there to be exceptional circumstances. It also goes with the view that I expressed in introducing the previous group of amendments—that it really ought not to be simply for the police to determine a question such as whether there are exceptional circumstances to justify prosecution, therefore meaning that there would not be a prosecution but there would be a caution. It ought to be the prosecutor who takes both decisions.
I shall speak also to Amendment 26, on which Amendment 27 is consequential, merely removing the passage providing for the affirmative resolution. Amendment 26 would remove subsection (7) which provides:
“The Secretary of State may by order amend this section so as to provide for a different period for the purposes of subsection (4)(b)”.
Subsection (4)(b) simply sets out a two-year period, which is the period within which a previous offence must have been committed. I fail to see how later experience will help the Secretary of State or anyone else determine whether two years is the right period. Given the experience of the criminal courts, the Committee knows whether repetition within two years is right. Experience is unlikely to change that because there is no doubt that an arbitrary period has been selected as in more cases than not it will be judged to be about right. In some cases, an offence committed three years ago ought not to be disregarded; in other cases, an offence committed a year ago ought to be disregarded. I simply do not understand why we should need an order-making power to change that two-year period.
Lord Kennedy of Southwark
My Lords, as I said on the previous group of amendments, we support this clause and the intention to oppose its standing part of the Bill is just a device to enable a debate to take place.
These amendments in the name of the noble Lord, Lord Marks, would remove the power of a police officer to determine whether there are exceptional circumstances under which an individual can be cautioned, and would also remove the power of the Secretary of State to change the period of time from the current two years which can be taken into account and counted as a previous conviction. It is important to provide a police officer with the ability to make this determination. I was pleased to hear the comment about a senior police officer being involved. The proposal to remove a power of the Secretary of State in this regard is not one that we are persuaded to support. However, I hope that the noble Lord, Lord Ahmad, will explain the intention behind these powers and the government process for determining whether they should be used. What parliamentary process will be used? It is important that there is adequate opportunity for robust challenge and scrutiny of what the Government are doing. I have no other remarks to add on cautions other than to say that there is concern about their use for indictable offences. We support the intention behind the clause.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend for tabling the amendment. I also thank the noble Lord, Lord Kennedy, for his general support in principle for the intention behind Clause 15.
Clause 15 places restrictions on the use of simple cautions by a constable. Simple cautions provide a means for a constable to deal with a person aged 18 or over who has admitted to committing an offence in England and Wales. A caution is primarily designed for dealing with low-level, mainly first-time, offending. While the use of cautions has been falling, it is clear that there are problems with how they are being used in certain circumstances.
The Government are clear that serious offences should always be brought to court. The Ministry of Justice publishes non-statutory guidance on how a simple caution should be used and the circumstances when a caution would not be considered appropriate. These provisions stem from the simple cautions review, which was itself prompted by public concern about the apparent misuse of simple cautions by the police for seemingly serious offending behaviour. The review set out to examine the way in which simple cautions were being used and consider the need for any changes to ensure that there continues to be public confidence in the use of simple cautions.
The outcomes of the review were published in November last year and concluded that simple cautions should not be used for indictable-only offences and certain serious either-way offences. These include possession of a knife, offensive weapon or firearm in a public place, offences involving child sex abuse or child pornography, and supplying Class A drugs. The MoJ guidance on the use of simple cautions was updated as a result and provides that a simple caution should be given for these offences only where a senior police officer believes that there are exceptional circumstances. I heard what the noble Lord, Lord Kennedy, said about further discussions on this. I am sure that we will have further detailed discussions on definitions.
The guidance also makes it clear that for all other offences a simple caution should not be given where a person has been convicted or cautioned for a similar offence in the past two years. The Government have now decided to put these restrictions on the use of simple cautions on a statutory footing. This clause therefore provides that a simple caution may not be given for indictable-only offences, unless there are exceptional circumstances to be determined by a senior police officer, and the Crown Prosecution Service also needs to consent.
This clause also provides that a simple caution may not be given for certain serious either-way offences unless there are exceptional circumstances to be determined by a senior police officer. The list of serious either-way offences subject to this restriction will be set out in secondary legislation. Furthermore, for the remainder of either-way offences and all summary-only offences, the clause provides that a simple caution may not be given where the offender has been convicted or cautioned for a similar offence within the previous two years, unless there are exceptional circumstances. The clause provides for the minimum rank of a senior police officer who determines whether there are exceptional circumstances and whether the previous offence was similar to be specified in secondary legislation. The two-year period between current and previous offending behaviour may also be amended by secondary legislation.
Our priority is to stop the cycle of reoffending and ensure that serious offences are dealt with by the most appropriate method. Criminals should not get caution after caution for committing the same offence time and time again, often for serious offences. The public needs confidence that cautions are being used appropriately. This clause helps ensure that this happens and will provide clarity for front-line practitioners. In developing these proposals we have worked carefully with the police and prosecuting agencies to ensure that simple cautions are used effectively and appropriately. The clause should therefore stand part of the Bill. I give this explanation in order to highlight some of the detailed reasons for the Government’s thinking behind Clause 15.
Amendments 25, 26 and 27 would remove the Secretary of State’s power to specify, by way of order, the minimum rank of police officer who will take certain decisions. The amendments also remove the Secretary of State’s power to change the two-year period when considering previous offending history in relation to non-specified either-way offences and summary-only offences. By tabling Amendment 25, my noble friends Lord Marks, Lord Dholakia and Lady Hamwee would remove the power to specify by order the minimum rank of police officer who may determine exceptional circumstances—for example, when giving a simple caution for an indictable-only offence or a specified either-way offence, and when giving a simple caution for a non-specified either-way offence or summary-only offence where the offender has been convicted or cautioned for a similar offence in the past two years. This means that there would be no restriction as to the rank of officer that would be able to make these decisions under Clause 15(2)(a), 15(3) and 15(4). This would mean, in effect, that the most difficult decisions as to whether to administer a caution for the most serious offences, and for repeated offences, could be taken by the most junior constable. This plainly cannot be right.
The simple cautions review made specific recommendations on the rank of officer that ought to take certain decisions. These recommendations were taken forward in the revised guidance on simple cautions, published by the MoJ on 14 November last year. It is anticipated that the order-making power, exercisable by the Secretary of State in relation to determining the rank of officer who can make such decisions, will replicate the provisions of the guidance. Namely, a superintendent or rank above will need to make the decision that exceptional circumstances exist so as to give a simple caution for an indictable-only offence. In addition, an inspector or rank above will need to decide that there are exceptional circumstances that justify giving a simple caution for a specified either-way offence or for a non-specified either-way offence or summary offence where the person has been convicted or cautioned for a similar offence in the past two years. It is important that we are clear on who can make these decisions and that there are restrictions on it.
Amendments 26 and 27 would remove the ability of the Secretary of State to amend the two-year period within which repeat cautions should not normally be given in relation to non-specified either-way and summary-only offences. This is a necessary provision. We are basing the two-year period on the same period set out in the guidance published by the MoJ that currently determines how simple cautions for such offences should be given. There may in the future be reasons to extend or, indeed, shorten the time period. The Government may wish to determine that repeat simple cautions should not ordinarily be given unless there are exceptional circumstances within a five-year period or, conversely, within a one-year period. This is the first time that we are placing statutory restrictions around the use of simple cautions, and there needs to be flexibility in order to ensure that the restrictions work properly. It is also worth noting that any such order made by the Secretary of State amending the time period must be made by the affirmative resolution procedure, and so Parliament will have a say in any change proposed.
I know that I have given a rather detailed explanation of the Government’s position but, in doing so, I hope that I have given enough reassurance and detail that my noble friend will be minded to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I am grateful to my noble friend for his detailed explanation as to why the Government resist Amendment 25, particularly since I hope I made it clear that the amendment is effectively contingent on the “exceptional circumstances” test not being adopted and on the police not being responsible for the decision-making. I fully accept that, if that test stays and if the police are to make the decision, then a senior officer should be in charge.
I also make it clear by repetition that I, along with the noble Lord, Lord Kennedy, fully accept, as I said at the outset of the previous group, the need to be restrictive about giving cautions where normally a prosecution would be the proper response to an admission of guilt; I accept his point that that is the more important in serious cases. My question to the Government, which was echoed by the noble Lord, Lord Kennedy, is simply whether “exceptional circumstances” is the right test, and how it is to be administered. I appreciate the indication that there will at least be discussions that take this forward. On that basis, I beg leave to withdraw the amendment.
Lord Faulks
“Alternatives to prosecution: rehabilitation of offenders in Scotland
In Schedule 3 to the Rehabilitation of Offenders Act 1974 (protection for spent alternatives to prosecution: Scotland), at the end insert—“9 (1) The powers conferred on the Scottish Ministers by—
(a) paragraph 6, and(b) section 7(4), as applied by paragraph 8, may be exercised to make provision relating to reserved matters and are not subject to the restrictions imposed by section 29(2)(b) or (c) of, or Schedule 4 to, the Scotland Act 1998.(2) In this paragraph, “reserved matters” has the same meaning as in the Scotland Act 1998.””
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this amendment is required in order to address a legal competence gap that has been identified by the Scottish Government in relation to the exercise of enabling powers in Schedule 3 to the Rehabilitation of Offenders Act 1974, to which I shall refer as the 1974 Act. Following on from the Children’s Hearings (Scotland) Act 2011, the Scottish Government would like to legislate to specify occasions when the normal rules relating to the disclosure of spent alternatives to prosecution from a children’s hearing should not apply.
To achieve this, the Scottish Government need to exercise powers in Schedule 3 to the 1974 Act to specify the types of employment and proceedings that are excluded from the protection of the 1974 Act and, therefore, where a person may need to disclose a spent alternative to prosecution. These powers can be found in paragraph 6 of Schedule 3 and Section 7(4) as applied by paragraph 8 of Schedule 3 to the 1974 Act.
Scottish Ministers already have the power to legislate in respect of exceptions and exclusions relating to spent convictions in reserved areas. However, because paragraph 6 and paragraph 8 of Schedule 3 were inserted into the 1974 Act by an Act of the Scottish Parliament, these provisions cannot be exercised to make exclusions, modifications or exceptions in relation to reserved subject matters.
A transfer of functions order, as was made in 2003 in relation to convictions, cannot be made here because the relevant powers were conferred on the Scottish Ministers by an Act of the Scottish Parliament rather than on a Minister of the Crown by a Westminster enactment. Therefore, the amendment will insert a new paragraph into Schedule 3 to the 1974 Act which will state that Scottish Ministers can exercise the powers in paragraph 6 and Section 7(4) as applied by paragraph 8 without the relevant restrictions in Section 29 of the Scotland Act 1998. This will allow the Scottish Ministers to set out exclusions, modifications and exceptions in relation to alternatives to prosecution which are given by children’s hearings in Scotland in the desired way.
The amendment is an important step in helping the Scottish Government to implement their policy concerning the rehabilitation of child offenders and shows how this Parliament can demonstrate its ability to legislate effectively for Scotland. I hope that the Committee agrees that this is a sensible and pragmatic solution and that noble Lords will support the amendment. I beg to move.
Lord Beecham
“Stop and search of children below the age of 10
In section 1 of the Police and Criminal Evidence Act 1984 (power of constable to stop and search persons, vehicles etc.), after subsection (2) insert—“(2A) Where the person is below 10 years of age, an appropriate adult must be present before the search may be undertaken.””
Lord Beecham (Lab)
My Lords, this amendment was provoked by a disturbing article in the Guardian on 1 July, based on the recently published report of the inquiry into children and the police by the All-Party Group on Children, chaired by my noble friend Lady Massey. It appears that, in 22 police forces that replied to a request for information, 1,136 children under the age of 10—well below the age of criminal responsibility —were subject to stop and search between 2009 and 2013. The Met could not supply figures for 2009-11. The number of children under the age of 18 subject to this process across 26 forces exceeded 1 million.
There have been reports on this issue in the past, including one in November 2009 relating to children from BME backgrounds, and one in January 2010 on searches of 11 year-olds. In January this year, it was reported that 500 such searches had been carried out in Scotland on children under the age of 10, including 72 on children aged only seven or younger. It is apparent that there is no effective code of practice governing the carrying out of such searches, or even of properly recording them. For example, police forces were unable to say how many looked-after children had been stopped and searched. Some forces do not even record a child’s name, address and date of birth, although some do. Only 20 of the forces had separate custody facilities for children in their police stations.
The Home Office has reviewed stop-and-search powers, but the all-party group’s inquiry suggested a number of improvements relating to the collection of data, including ethnicity, and specific guidance on safeguarding and child protection, especially for vulnerable children in care or at risk of abuse or exploitation. When a child is taken to a police station for the purposes of a search, he or she has a right to have a parent present. Some forces make an effort to take a child home before searching.
The Bill contains a welcome provision in Clause 20 to require an appropriate adult to be present when a caution is given to an offender under the age of 17. The amendment, which is designed as a probing amendment, would extend that principle to stop and search so that an appropriate adult would have to be present, particularly during the search. The stopping is not necessary something an appropriate adult would be present for, but the search, which is a more personal intervention, should be in the presence of an appropriate adult. As it stands, the amendment applies to children under the age of 10, but perhaps thought should be given as to whether that age remains too low—after all, it is below the age of criminal responsibility. In Scotland, consensual searches—searches the child simply agrees to—will now no longer be carried out on children aged under 12.
I hope the Minister will agree to consider this amendment and come back on Report possibly with an improved version. It seems important that this process, if it has to be undertaken, should be undertaken in as sensitive a way as possible, preferably in the presence of a parent, but, if not, at least of an appropriate person independent of the police force. I hope the Minister will look kindly on the suggestion and perhaps work with the Opposition to see whether we can reach an agreed position on it. I beg to move.
Lord Faulks
My Lords, I am grateful to the noble Lord, Lord Beecham, for drawing the Committee’s attention to this issue. The purpose of the amendment is to extend the safeguards provided in PACE codes of practice C and H, covering custody procedures, to provide children under the age of 10 with an appropriate adult in public settings where a stop and search is carried out. While this is a laudable aim, the Government do not consider the amendment desirable, as we consider the existing provisions in law and codes of practice are sufficient for the purposes of ensuring that children are treated appropriately. For instance, there are already important safeguards attached to Section 1 stop and searches. These include the obligation on the police to provide key information to the person being searched about the purpose of the search and the grounds for searching, and ensuring that the person subject to the search understands the procedure. In addition, a person can be detained for the search only for as long as is reasonably required to allow the search to be carried out. Therefore, the period of time for which an individual can be held for the search is strictly limited and proportionate.
Indeed, in terms of the time that individuals are detained, were there to be a requirement for an appropriate adult to be called in a stop and search context, this would require the police to arrange for provision in all public settings and at all times, which would entail detaining children for significant and disproportionate periods of time. This would also mean a significant strain on police time and resources.
There is also Section 11 of the Children Act 2004, which places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions. The statutory guidance accompanying this duty requires the police to ensure that appropriate training is in place to enable police to deal appropriately with children.
In respect of the police’s use of stop and search, those are just some of the safeguards in place which apply to children, and they are entirely appropriate given the nature of the procedure.
The principal function of an appropriate adult is to explain and demystify the criminal process at the police station following arrest and detention. For example, the police interview, the meaning of the caution, the individual’s rights within the police station context and so on would need to be explained. However, these considerations do not apply to a brief stop and search encounter, which is about confirming or allaying a police officer’s reasonable suspicion that an individual may be in possession of something they should not.
I am aware that this proposed measure was mentioned in the recent All-Party Parliamentary Group for Children report on children, published this month. The group’s initial report stated that,
“APPGC Officers will continue to consider recommendations on the stop and search of under-10s for our final report, including ... whether”,
stop and search,
“should only occur in the presence of an appropriate adult, carer or parent or in the family home”.
In answer to the noble Lord, the Government will consider the group’s conclusions in its final report on this matter, but for now, without adequate consideration and consultation, we are not convinced that this measure should be introduced in legislation.
Finally, on 30 April, as the noble Lord said, the Home Secretary announced a comprehensive package of measures designed to reform the way that stop and search is used. The measures are designed to ensure that these powers are used fairly and effectively and in a way that engenders community confidence. These measures should impact positively on all sections of the community, including children. For these reasons, I respectfully ask the noble Lord to withdraw his amendment.
Lord Beecham
My Lords, I confess to being somewhat disappointed by the Minister’s response. We are talking here essentially about very young children, and much of what he said would be relevant certainly to adults and possibly to adolescents, but children aged 10 or under will be going through a process that is not systematic and with apparently no clear national guidance on how these things are to be conducted. Indeed, as I said, the fact that even the recording of what has happened is not uniform suggests that there is certainly a need for a coherent code. I also still urge consideration to be given to the suggestion in the amendment that an appropriate adult be available, particularly for younger children.
I do not know what timescale the Minister envisages for the production of any further guidance or indeed how long it will take the APPG to produce a second report. However, even if it is not possible before Report to reach a conclusion on whether the parliamentary group believes that it is necessary to amend the Bill, I hope that we can emerge from this whole process with a coherent approach in which the issues that the APPG has raised are addressed and in which legislation or guidance is uniformly adopted by all relevant agencies, including of course the various police forces.
I particularly invite the Minister to look at the Scottish experience. Scotland has taken a very clear decision, which is in any event quite different from the one that we now apply here. I hope that there will be some conversation with interested agencies north of the border, irrespective of the outcome of the referendum, in order to ensure that the best possible practice is implemented when we are dealing with children of this age in England and Wales. Having said that, I beg leave to withdraw the amendment at this stage.
“( ) It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully neglect that individual in a way that amounts to a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances and causes the avoidable death of, or serious harm to, that individual.”
Baroness Finlay of Llandaff (CB)
My Lords, Clause 17 creates a new offence of ill treatment or wilful neglect that is likely to result in hundreds of additional criminal investigations of healthcare professionals, including doctors. The problem is that Clause 17 does not indicate a threshold for the offence against the individual care worker. The Medical Defence Union, which has 128 years’ experience defending healthcare professionals, the Royal College of Physicians, of which I declare that I am a fellow, the BMA, of which I am president, and the Foundation Trust Network are all concerned about this. There is a concern that the police would have little option but to investigate any doctor accused of ill treatment or wilful neglect, even in those cases where charges or prosecution might appear unlikely.
The Department of Health’s consultation that preceded the proposal for the new offence suggested that it would apply only where the alleged crime was so severe that it would merit a criminal sanction over and above any action taken by a regulator, such as the General Medical Council for doctors. The Department of Health has consistently suggested that only the more serious instances of such ill treatment or neglect would give rise to the prosecution of care workers. My concern is that this is not clear in the way in which Clause 17 is worded.
Clause 18 would create a similar offence for organisations providing care. It specifies that for the offence to apply the,
“provider’s activities are managed or organised in a way”,
that means there is,
“a gross breach of … duty of care”,
that the provider owes to the individual. Clause 18 appears to envisage the offence applying only where the conduct alleged falls far below what can reasonably be expected of the care provider, so there is a threshold.
These specifications appear absent from Clause 17. The practical effect of the difference between the two clauses is that the threshold for an organisation is far higher than that for the individual worker. It is of particular concern for doctors because, if allegations of ill treatment or wilful neglect are made to the police, it is very likely that, in the absence of Clause 17 specifying a higher threshold, there would be very little option but to investigate.
If, as the Department of Health suggests, the aim is to prosecute only the most serious cases, the threshold in Clause 17 should indicate where the proper level of criminality lies. To achieve that, the amendment suggests that a threshold similar to that of Clause 18 is built into Clause 17. In addition to the offence applying where there is ill treatment or wilful neglect, it should be necessary for that to represent a gross breach of the care worker’s duty of care to the individual.
Let me illustrate that with a fictional scenario, although it is based on a realistic type of incident that could easily happen and could give rise to such allegations. A patient is terminally ill and becoming restless. The doctor intends to prescribe a dose of pain relief for breakthrough pain and something for the restlessness, and the family knows that. However, the doctor is suddenly called away to a young man who is in a peri-arrest situation. He was admitted as an emergency with suspected meningitis. The doctor is then called to resuscitate another patient in an adjacent bed. That resuscitation is successful, so she is there for much longer than she would have been if it had been unsuccessful. By then, the results have come back on the man who has been confirmed as having meningitis and she is involved in instigating life-saving treatment. She then rushes back to the ward to find that the terminally ill patient has died without having received the additional analgesia or drugs for agitation that she had intended to prescribe at the point at which she was called away.
The family, understandably distraught, contact the police and allege that the doctor wilfully neglected their mother. As well as the hospital inquiry and a GMC referral, the police then have to investigate the doctor for wilful neglect. If that doctor is then suspended because there is an ongoing investigation, which could take up to six months, the hospital will have to employ a locum. Even if the police conclude that the investigation is not founded and do not bring any charges, the GMC concludes that there are no grounds for referral for fitness to practise and the hospital exonerates the doctor, that doctor has been out of the workforce during the investigation. She may be so seriously damaged by having tried to do her job to the best of her ability but appearing to fail, she may well think twice about continuing in medicine. We know that that is a problem now with some young doctors who find the stresses so great that they are opting out.
Throughout England and Wales there is a prosecutorial discretion, and if a new criminal sanction of wilful neglect is introduced without any indication of the threshold at which it should apply to individual practitioners, it is worrying. I suspect that scenarios not dissimilar to the case that I have described will happen, and not infrequently. They will principally affect both doctors and nurses. If the intention is that the sanction should be applied only in the severest of cases, and I believe that that is what the Department of Health intends, that should be clear in legislation. If it is not, another unintended consequence is that it could jeopardise transparency and candour, which goes in absolutely the opposite direction to the policy intention.
There are other amendments in this group which I support and will speak to only briefly. The inclusion of volunteer work is important because there are an increasing number of doctors who have retired and who are working as volunteers with groups such as asylum seekers and refugees. In fact, they have another problem already because they do not get tax relief against their NHS pensions for this completely voluntary work, even though they have to pay their GMC registration and maintain their defence union subscription. They are quite severely out of pocket to the tune of many hundreds of pounds for what you could say was the pleasure—indeed, they do it out of vocation and for job satisfaction—of working as volunteers with these very hard-to-reach and deprived people who are in difficult situations. They are often dealing with victims of torture. These doctors are not doing easy work as volunteers.
The other amendment in this group makes it clear that the concept of clinical judgment should be included. That becomes extremely important. There is a lot of guidance now within clinical practice, but it is only that: it is guidance and not as firm as a lot of people think. It is often based on the best research evidence available, but in every case it has to be interpreted for the individual. At the end of the day, it comes down to considered clinical opinion. One would hope that every doctor weighs things carefully in the balance and comes to a considered conclusion about what they are doing, but it would be damaging to patient care if that interpretation of guidance were jeopardised and there was a formulaic approach to the management of patients by imposing a risk-averse approach. We have seen the dangers already when you end up with a protocol-driven approach rather than an interpretation of guidance. We saw disasters with the Liverpool care pathway, which was well intentioned but poorly rolled out and so forth. I hope that the Government will also accept that concept of clinical judgment. I beg to move.
Baroness Barker (LD)
My Lords, very rarely for me, I want to disagree with the noble Baroness, Lady Finlay. We usually bat on the same side, but not tonight. My reason for disagreeing is quite simply that these provisions in the Bill have come about because of the considerable amount of work done by my colleague Paul Burstow. He came up with these proposals in consultation with people who had been well and truly at the coalface of the investigations into Mid Staffs and Winterbourne View. They have not been drawn up lightly.
I disagree with the starting point of the case that the noble Baroness put forward. She said that these provisions will inevitably lead to hundreds of investigations of doctors. However, that will only be if there is reason to investigate. Her amendment would severely undermine the deterrent effect of this legislation. The first part of Clause 17 says:
“It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual”.
That is a very powerful statement, and some of us are already beginning to be involved in training people within the health and social care field. We are already beginning to discuss the issues with people who run charities, asking them whether they know that this piece of legislation is coming along. It is beginning to have quite a profound effect on people about what they are supposed to do.
I have to take issue with the noble Baroness’s amendment where it goes on to add another three lines to the end of that subsection and to introduce two tests. First, it says somebody has to act,
“in a way that amounts to a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances”.
I can understand that, although I am not exactly sure what it adds. However, the bit that I really find wrong is where it adds,
“and causes the avoidable death of, or serious harm to, that individual”.
One of the reasons Paul Burstow drafted his proposals as he did was the recognition that it is very rare for any health or social care provider suddenly to become a dreadfully malevolent or neglectful place. Usually, when there is bad practice, it is the accretion of pressure, slipping standards and lack of good management that bit by bit builds up to the point where people are unsafe. Part of the reason for framing this as it is was to tackle that sort of stuff, which can be devastating in its own way. We are talking not just about the physical health of people but their mental health. It was to cover that as well.
I will simply say to the noble Baroness that I understand where she is coming from and the bodies whose views she is representing to us. There is already a great deal of legislation under which members of the medical profession can find themselves the subject of an inquiry for misconduct; that really will not change. Although her amendment in particular—there are others in this group—would not fatally undermine this clause, it would put a huge dent in it and introduce a fair amount of, dare I say it, wriggle room for medical defence lawyers to get somebody off the hook. I may be wrong, and she may be proved right, but on balance what this clause does as written is to plug the gap that there has certainly been in social care, if not in the NHS, whereby front-line workers carried the can and those who were in positions of trust and oversight walked away when they should not have done. On balance, I do not accept her argument. No doubt the Minister will reply to it.
Baroness Finlay of Llandaff
Perhaps I might clarify. I certainly agree that mental harm is as serious as physical harm. I do not differentiate between the two. The problem is that there seems to be a different threshold between the two clauses, and I did not hear anything in what the noble Baroness said to point out that there was the same threshold between the two clauses. My concern is that, in the example I gave, the junior doctor would be the one who would take the rap. The organisation may have been disorganised and overstressed its staff and expected them to work unrealistically, but its threshold is set differently, and that is my concern.
Baroness Barker
That is exactly the point that Paul Burstow was trying to cover. If you back into that, I think you will find that the fears the noble Baroness is raising are addressed by looking at all of this section in totality.
Lord Beecham
My Lords, I will briefly mention Amendment 33, which I tabled in the light of representations from the Medical Protection Society over a range of issues. It struck me in particular that it was important to offer protection to registered medical practitioners who are exercising their clinical judgment, as opposed to other matters that they might, as it were, stray into. But where it is a matter of clinical judgment, that should surely be a defence which would displace the possibility of a prosecution for the range of offences set out in Clauses 17 to 22. I hope the Minister—I take it that it will be the noble Earl, Lord Howe, who will be dealing with this—will agree that it is important to protect clinical judgment in that way and that this amendment will be acceptable to the Government.
Lord Kennedy of Southwark
My Lords, at Second Reading I made reference to this and other clauses in this section of the Bill. I said I believed that the Government were attempting to,
“close the loophole that Professor Don Berwick identified in his review of the events that took place at the Mid Staffordshire NHS Foundation Trust”,—[Official Report, 30/6/14; col. 1620.]
although of course these amendments have much wider implications for a wider group of employees looking after vulnerable people, as the noble Baroness, Lady Finlay, outlined. These clauses were added late to the Bill during its passage through the Commons and I do not believe that they were looked at in any great depth there. As I said at Second Reading, it seemed odd to me that volunteers were not also included in these clauses, so I hope the noble Earl can address that in his reply.
We have wonderful people working in the caring professions here in the UK and we have wonderful volunteers helping people, but we must be clear that an abuser who exploits people could easily be in either group. Look at the horror story of the actions committed by Jimmy Savile. He was a volunteer at numerous establishments that were caring for vulnerable people. He was never an employee at any of the hospitals he visited but it appears he had power, influence and keys, and the system in place failed his victims for decades.
There is always the risk of unintended consequences and we need to be very careful that these clauses do not create a culture where healthcare professionals would have their normal, everyday clinical decisions open to criminal investigation, as the noble Baroness, Lady Finlay, and my noble friend Lord Beecham outlined. I do not for one minute believe that that is the intention of the Government but we have to be very careful that that is not what is created or what people believe has been created. So the amendment moved by the noble Baroness, Lady Finlay, is very welcome as she attempts to bring clarity to the issues and talks about,
“a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances”,
that,
“causes the avoidable death of, or serious harm to, that individual”.
For the same reasons, my noble friend Lord Beecham and I tabled Amendment 33, which makes it clear that clinical medical judgment exercised by a registered medical practitioner is excluded.
These are very serious matters. I hope that the Minister can address the points that I have made about volunteers and the whole question of the sanctions being applied only to the most serious cases, as well as those about harming transparency and improving excellence in care made so well by the noble Baroness, Lady Finlay, and my noble friend Lord Beecham.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I am grateful to the noble Baroness, Lady Finlay, and both noble Lords for tabling these amendments, which give me the opportunity to explain the Government’s thinking behind these important new offences of ill treatment or wilful neglect.
The Government are clear that the ill treatment or wilful neglect of users of health or adult social care services by an individual paid to provide those services is never acceptable. It is for this reason that we accepted the recommendation of Professor Berwick and the National Advisory Group on the Safety of Patients in England to introduce a new, clear and specific criminal sanction for those guilty of ill treatment or wilful neglect. However, Professor Berwick’s original recommendation proposed that the offence should apply only in the most egregious cases, where the ill treatment or wilful neglect caused “serious harm or death”—in effect, a harm threshold. Amendment 30 would create a similar threshold by requiring both a “serious and substantial” departure from a care worker’s duty towards the victim and that the conduct must cause serious harm or avoidable death.
When we were developing these new offences, we gave careful consideration to these very issues. For us, it raised a number of difficulties. For example, if you set a harm threshold, you are effectively saying that any ill treatment or wilful neglect that fails to cause sufficient harm to meet that threshold can be tolerated. Similarly, a situation could arise where two people are subjected to the same behaviours by the same care worker with the same intent, but one is much more seriously harmed than the other. I cannot see how it can be fair that the lesser harmed victim cannot have the protection of the new offence simply because they have been fortunate enough not to suffer really serious harm.
We exposed these very concerns in our consultation on the formulation of the offence earlier this year. The overwhelming majority of those who responded supported our proposal that the offence should focus on the conduct of the care worker, not on the outcomes for the victim. The way in which the noble Baroness’s amendment is framed puts the focus of the offence back on to outcomes. Someone could be subjected to wholly unacceptable ill treatment or wilful neglect but the perpetrator could have a defence if they could show that their conduct did not meet the “serious and substantial departure” threshold of the noble Baroness’s amendment, that the harm suffered was not sufficiently serious or that the victim’s death was unavoidable.
I also have some concerns about that phrase “serious and substantial”. Guaranteeing an objective and consistent interpretation seems to be fraught with difficulty. I fear that care workers could find themselves with less certainty about when the offence might bite, rather than more.
This brings me to the other point I want to make in respect of Amendment 30. It relates to the imaginary case study that the noble Baroness put before us. We recognise that it is important that there should be clarity around the types of behaviours which will be captured under this offence, and I understand the concern expressed by some that, without this, there is a risk that care workers could be less willing to be open and honest when things go wrong.
There are a number of issues to consider here. First, and most importantly, it must be remembered that the underlying premise on which the offence is predicated is that any neglect must be wilful; that is, deliberate, or else completely reckless as to whether the conduct will cause harm. In the case of ill-treatment, the courts have interpreted this as being ill-treatment that was intentional or reckless. I can assure the Committee that this is in practice a high bar to get over. Demonstrating that that is the case to the standard of proof required in criminal law will not be easy. Nor do we want it to be. We know that the vast majority of care workers would never dream of setting out to ill-treat or neglect those in their care. In the example given by the noble Baroness, a balancing of priorities is taking place. The offence would not cover that situation, but accidents and genuine mistakes do happen, and we have formulated the offence to make it clear that such situations will not be captured by it, no matter how serious the outcome may be for the patient or service user. Care workers need have no fear that being open and honest when such an accident or mistake occurs will place them at risk of prosecution under the offence.
Other safeguards will be in place, besides the fundamental protection given by the formulation of the offence itself. As with a whole range of criminal offences, the Code for Crown Prosecutors means that a public interest test will have to be met before a prosecution is brought. Moreover, even in the unusual event of an alleged victim or their family deciding to pursue a private prosecution, the care worker has protection. They can exercise their right to refer the case to the Director of Public Prosecutions for scrutiny, who will have discretion to take over the case and close it down.
With regard to Amendments 31 and 32, I am aware that in his remarks at Second Reading the noble Lord, Lord Kennedy, raised the issue of whether the ill-treatment or wilful neglect care worker offence should include volunteers. We considered that very carefully during the development of these offences. Indeed, we again addressed the issue directly in the consultation in March. We know, of course, that it is not only formally employed care workers who can ill-treat or wilfully neglect those in their care. Sadly, it can happen in many situations, as the noble Lord rightly pointed out, but his amendments would bring a vast number of people within scope of the offence because “volunteer” has a wide interpretation. Family carers; people who provide assistance to friends or neighbours by, for example, taking them shopping or to medical appointments; people who help out in nursing homes at meal times; volunteer patient transport drivers—all such people, and more, would be caught by the amendments.
Our view is that there is a significant difference between those employed to provide these services and those who do so voluntarily. Paid arrangements give rise to a formal obligation to provide services to a reasonable standard. That represents a significant and important difference from informal arrangements, where there is no element of prescribed obligation. I am sure that it is not the intention to make subject to the criminal law all those people who, from the goodness of their hearts, are willing to give of their time and effort to help others.
I would add that we do already have in place arrangements to provide safeguards in such situations. For example, the Care Act 2014 includes provisions explicitly relating to the powers and duties of local authorities to assess and meet the needs of informal carers, such as friends and family carers. Moreover, where an individual is volunteering in, for example, a day centre or nursing home, there are nowadays statutory duties on the operators of those facilities to carry out appropriate checks on the suitability of the individual to do that work and ensure that they receive training in health and safety, safeguarding and other procedures necessary to provide protection for the users of that service. It is no longer the case that someone could just walk in off the street, offer their services and come immediately into contact with vulnerable patients or service users.
It is the Government’s view that these arrangements provide adequate safeguards in these specific circumstances in a far more proportionate way than applying this offence would do. The latter would also risk putting people off volunteering for fear of prosecution, however unlikely that prosecution might be in practice.
I turn finally to Amendment 33. Although I can readily understand the motive behind it, I have to say that I cannot agree that it is necessary, even on the “for the avoidance of doubt” basis which the amendment adopts. We have been clear from the outset that matters involving the exercise of informed clinical judgment by any healthcare professional, not just registered medical practitioners, should be outside the scope of these ill-treatment or wilful neglect offences. We addressed this explicitly during the consultation exercise and the offences have been formulated to ensure that this is the case. I reiterate my earlier remarks about the key element being that of wilfulness. There has to be intent to ill treat or neglect, or recklessness as to whether the perpetrator’s actions or omissions will cause ill treatment or neglect, for the offence to bite. For a surgeon making decisions about the relative priorities of two patients or the best course of treatment for a particular condition, the implications and effects of their decisions will be uppermost in their minds. They will be all too aware that their decision may cause further delay or discomfort in the short term, even though the longer-term outcome may be better, but in taking these sorts of decisions healthcare professionals are not deciding deliberately to ill treat or neglect. They are taking decisions in what they believe to be the best interests of the patient, taking into account other priorities. I cannot see how a doctor who can demonstrate that they have followed appropriate clinical practice and professional standards in exercising their clinical judgment would fall prey to this offence.
Lord Beecham
I can quite understand the Minister saying that he cannot see that. However, is there not a danger that members of the public will not see it that way? If this amendment were to be adopted, it would send a clear message to the public that clinical judgment is outside the scope of the general provision. Is that not something worth achieving? I cannot see that it costs anything in terms of the Government’s policy and its implementation. However, it sends a clearer signal not just to the profession but to those who might feel that they should have recourse to the law when it has resulted from clinical judgment. It would be better to make that clear from the outset in the legislation.
Earl Howe
I come back to my earlier point: the bar is set high here because wilful neglect has to involve ill treatment that was intentional or reckless. The courts have traditionally interpreted that in a very narrow way, which is as it should be. I say this again and on advice: we do not believe that a doctor exercising his or her clinical judgment would fall within the scope of that offence.
I should make a couple of other points here. Amendment 33 refers only to “a registered medical practitioner”. The implication of that would be that other types of healthcare professionals exercising clinical judgement would not be excluded because they are not specified. So, for example, a triage nurse working in an A&E department would have very reasonable cause for concern about the kind of clinical judgments that they have to make perhaps not being outside the scope of the offence, because they are not explicitly mentioned in the Bill. Clearly, I would not want to create that kind of confusion and I am sure that the noble Lord would not either.
I hope that I have been able to demonstrate that the Government have worked hard to ensure that a whole range of issues and concerns were properly considered in the formulation of the new offence of ill treatment or wilful neglect. In particular, I hope that I have been able to reassure the noble Baroness and the noble Lords on their specific concerns and that she will now feel able to withdraw her amendment.
Baroness Finlay of Llandaff
I am grateful to the Minister for such a full response to the amendment that I moved and to the other amendments. For the record, I make it absolutely clear that ill treatment or neglect is never, ever acceptable by anybody. I am certainly not trying to make wriggle room for anybody. It is clear in the way that this debate has gone that it is about the intention of the worker, and if they were badly intended—if they had mal-intent—then they should duly be picked up and indeed suffer the consequences of the harm that they may have inflicted.
I hope, though, that the Minister will consider that the guidance that goes with this needs to set out clearly the issues that we have debated today, as well as the point raised just now by the noble Lord, Lord Beecham, which relates to all the clinical professionals. As the Minister has just said, it is not just doctors; it will be nurses, physiotherapists and lots of others who will be exercising clinical judgment. There is something important about being clear that clinical judgment has an important role because of the message that it gives to the public, who may feel vexatious against the outcome of a well intentioned clinical judgment that, for whatever reason, just did not go right—not even that a mistake was made but just that the disease process, their expectations and the way that they interpreted the communication have perhaps been mismatched.
I hope that we might be able to have further discussion with the Minister about the issues around this. I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
“( ) a director of a body corporate or unincorporated association which provides for or arranges for the provision of care as set out in paragraph (a), under specified circumstances to be set out by the Secretary of State within 12 months of this Act coming into force,”
Lord Kennedy of Southwark
My Lords, I will be brief. This amendment was tabled by me and my noble friend Lord Beecham. It seeks to close what we thought was a loophole in the clauses that the Government introduced here. It seeks to introduce a criminal liability on a director of a corporate body or an incorporated association for failing to sack employees who have committed an offence of ill treating or wilfully neglecting an individual in their care. That seemed to us to be a serious omission on the part of the Government. As I said in my contribution on the previous group, these clauses did not get a huge amount of scrutiny in the other place; they were added very late. We think that this is a serious omission and that the Government should look at it very carefully. The amendment is a probing one, designed to get a response from Government at this stage. We may want to come back to it on Report, but I would be grateful if the Minister could give us his views on this. I beg to move.
Earl Howe
My Lords, I am grateful to the noble Lord for giving me the opportunity to deal with this important issue of individual liability, where a care provider offence has been committed. Professor Don Berwick was very clear, in his recommendation on the creation of the offence, that it should apply to organisations providing care as well as to individual care workers. We completely agree with that principle; however, we have deliberately formulated the offence in respect of care provider organisations somewhat differently from the care worker offence, for two reasons. First, we wanted to try to ensure that the care provider offence could be applied to an organisation as an entity in its own right, without the need to first identify and convict an individual of sufficient seniority within the organisation’s management hierarchy so that they could be seen as the controlling mind of the organisation. That is why Clause 18 is modelled on the corporate manslaughter offence. Secondly, we wanted to ensure that the focus of the care provider offence was unequivocally on the provider organisation as a whole. We deliberately chose not to create a situation where attention could be deflected on to an individual such as a director when the offence had been committed by the organisation’s board acting as an entity, not as individuals. The intention is that the care worker offence will apply in respect of individuals, with the care provider offence capturing organisational failings that have allowed ill treatment or wilful neglect to occur.
It seems to me that this amendment would risk creating exactly that possibility of deflection away from the organisation by specifying that in certain circumstances an individual director of a care provider organisation is to be treated as a care provider in their own right, irrespective of the activities of the remainder of the board. Moreover, given the way the care provider offence is structured, I have to say that I think there would be some difficulties in making out the elements of it in relation to an individual director. For example, I fear that the historical difficulties in extrapolating the existence of a relevant duty of care from the organisation as a whole to an individual director could also arise here, and if that duty cannot be demonstrated then the offence cannot apply in any circumstances.
Nevertheless, I reassure the noble Lord that it is the Government’s policy to strengthen corporate accountability in health and social care and to hold individuals to account where they are responsible for failings in care. It is for this reason that we are introducing a fit and proper person test for directors of care providers. Directors will also be liable for the care worker offence when committed by them. Also, Clause 22(2) to (5) clarifies that a conviction for the care provider offence would not preclude an organisation being convicted for a breach of the proposed new fundamental standards for health and social care or a health and safety offence on the same facts, if this were in the interests of justice. It would therefore also be possible to convict an individual on a secondary basis for such an offence under provisions such as Sections 91 and 92 of the Health and Social Care Act 2008 or Section 37 of the Health and Safety at Work etc. Act 1974. This ensures that existing liabilities are not reduced as an unintended consequence of the new offence.
I am afraid that it seems to me that the noble Lord’s amendment would be in direct contradiction of the Government’s position on how the care provider offence should be applied. I am therefore unable to accept it. I hope that the explanation I have given will enable the noble Lord to withdraw the amendment.
Lord Kennedy of Southwark
I thank the Minister for his explanation. I shall reflect on it. My only intention is to protect people and staff and that, where people or companies have done wrong, we deal with them properly. The points that he outlined may provide sufficient protection and guarantees. I beg leave to withdraw the amendment.
Lord Beecham
“Identity theft
After section 9 of the Fraud Act 2006, insert—“9A Identity theft
(1) A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person.
(2) A person who is guilty of identity theft is liable, on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both).
(3) The Secretary of State may by regulations set out what constitutes a defence under this section.””
Lord Beecham
My Lords, the law understandably frequently struggles to keep pace with changes in society, and this is never more apparent than in these days of rapid developments in technology, which increasingly include cybercrime. We are constantly reminded of the necessity of protecting our identities from the predators of the cybersphere who seek to access personal information, often in order fraudulently to access financial details and make off with our savings and investments. Our banks remind us of the dangers of phishing and most of us will have received heart-rending pleas for help purporting to come from relatives or friends allegedly stranded in some foreign country. A friend of mine discovered that someone she knew had been taken in by just such a ploy and had sent the fraudster £1,500 that she could ill afford. My friend felt obliged personally to make good that loss.
There is a multitude of ways in which identity theft can be deployed, and it is clear that fraud generally is rising, by 25% a year on the latest figures, while convictions are falling. Sometimes the individual victim may be recompensed by his or her bank or via insurance, but ultimately the cost is passed on to customers at large. Identity theft is therefore never a victimless crime. As the Home Office Select Committee averred:
“Online criminal activity which defrauds victims of money is often not reported to or investigated by law enforcement”,
agencies. We are therefore unable to measure the true extent and cost of identity fraud, especially when perpetrated through technology.
Lord Faulks
My Lords, I am very grateful to the noble Lord for his introduction to this amendment. Of course, he is right to identify the increasing danger of fraud in the cybersphere, something acknowledged in the Serious Crime Act. He was also right to refer to the fact that there are other offences that deal with fraud—in particular, the Fraud Act 2006, which already includes offences that would apply to anyone who assumes a false or non-existent identity to commit fraud. In particular, Section 2 sets out the crime of fraud by false representation, which would cover a person pretending to be someone else for the purposes of making a gain for himself or another.
While identity theft is not in itself a criminal offence, the use of a false identity for fraud purposes is. Therefore, the amendment as drafted has difficulties, because it would also apply to innocent persons—for example, to persons who collect a parcel using their relative’s identification from the post office, which is currently permitted. However, the Government take the issue of identity crime extremely seriously and are pursuing a number of initiatives to prevent it. A multiagency strategic group, led by the Home Office, has been formed to reduce the threat to the United Kingdom. The group is engaged in a range of activity to tackle the problem, such as strengthening the issuing processes of government documents, improving data-sharing of false identities, and taking down websites that offer false documents for sale. There is a national policing identity crime champion. The City of London Police is leading this work and is currently developing an identity crime strategic threat assessment, working closely with the National Crime Agency.
The Government recognise that there are often particular challenges in dealing with the consequences of identity theft. These challenges relate to the difficulty of identifying and catching offenders, rather than to a lack in the criminal law. The Government are working with banks and credit card companies, promoting technical solutions to the problem and working to help the victims of such crimes. We are working with the credit reference agencies to provide a free service for anyone who has had their personal details used fraudulently. The credit reference agencies liaise with each other and the banks to restore compromised personal credit records. The service can be accessed by contacting Experian, Equifax or Callcredit. We are also addressing the scale of this issue and establishing identity crime trends over time, through the Crime Survey for England and Wales.
We are not in any way complacent but I hope that my response to the noble Lord’s very real and appropriate concerns about identity crime has satisfied him that the Government are well aware of the issue and are responding appropriately. In those circumstances, I respectfully ask him to withdraw his amendment.
Lord Beecham
I will, of course, withdraw the amendment. However, if I may say so, I am slightly disappointed by the Minister’s rather complacent tone in relation to where we are in this situation. I do not detect a properly co-ordinated response between the Home Office and the Ministry of Justice where the police service is concerned. This matter bears further examination. If, as the noble Lord says, it is currently under consideration, I wonder whether there is any possibility of a report being made before we get to Report stage. If that is not the case, I will be tempted to bring something back at that point. However, I am happy to enter into further discussions in the light of any progress made by the Government in drawing their various strands together. I beg leave to withdraw the amendment.
Lord Blair of Boughton (CB)
My Lords, I draw attention to my registered interests. I am advised that it is the correct procedure—in view of the hour, it seems a very appropriate procedure—for me to speak only once to introduce my objections to both Clauses 23 and 24. Clause 23 deals with the introduction of a new offence of police corruption and Clause 24 introduces a mandatory whole life term for the murder of a police officer or a prison officer while on duty. I spoke at some length at Second Reading on 30 June and I do not intend to do so again or to rehearse all the arguments I made then. However, it is probably necessary for me to make clear that I regard police corruption as a cancerous evil which is ever present and which I and other noble Lords who were police officers have successfully investigated. Even more directly, I give way to no one in my abhorrence of the murder of a police officer or prison officer while on duty, particularly, but not exclusively, because someone tried to murder me.
Noble Lords speaking in support of removing these clauses from the Bill will make their own points but my first covers them both. Curiously, although they cover significantly different aspects of criminal law, the two clauses are connected by a simple proposition: they are bad law and they are unnecessary law because they are symbolic legislation, which I have heard before in your Lordships’ House is normally a reprehensible idea. The purpose of this proposal is to strike them out. It is, of course, in the nature of a probing amendment which will not be pressed to a Division but it seeks to ask the Minister and, if I may so request, the Front Benches of other parties to explain—I hope, in some detail—why this symbolic legislation should be embraced. The noble Lord, Lord Beecham, has just spoken of gimmicks; there may be some right here.
As regards Clause 23, I am absolutely certain that there is simply no lacuna. There is simply no gap to be filled between the Bribery Act 2010, some residuary clauses in the Prevention of Corruption Act 1916 and the common law offence of misconduct in public office. The Minister has just mentioned other offences in relation to the amendment just moved by the noble Lord, Lord Beecham. That was part of his argument for why that amendment should not pass. Exactly the same position applies in this case. No investigator or prosecutor has ever suggested to me that there is a difficulty in framing a charge in relation to police corruption. Subsection (11) of the clause confirms that by insisting that this legislation does not affect the common law offence of misconduct in public office. If there is no gap in the law, why introduce some new legislation? I think that my noble friend Lord Dear will flesh out a number of other professions to which such a law could equally logically—or perhaps equally illogically—be extended, as I did at Second Reading. However, I should also point out that the offence created by this legislation is exceptionally broadly and loosely drawn and will bring with it pointless investigations and contested trials.
I have heard it said that the clause is being introduced as a response to previously uninvestigated allegations of corruption—there were plenty of previously investigated allegations of corruption—in the case of the racist murder of Stephen Lawrence, and to the so-called “plebgate” events. I would only point out to noble Lords on all sides that it is normal to allow such investigations and court cases to come to an end before deciding to legislate further. Mr Ellison QC should now be allowed to finish his investigation; and the contested libel cases—I emphasise the plural—concerning who said what to whom outside 10 Downing Street should be allowed to come to court before judgments are made before introducing this sort of legislation.
Clause 24 is worse—much worse. It is not only unnecessary and populist but genuinely dangerous to the lives of police and prison officers—as I alluded to at Second Reading by quoting the case of Harry Roberts, who is still serving a life term 48 years after the murder of three police officers in 1966. There is simply no evidence of judicial complacency when sentencing those convicted of murdering a police or prison officer on duty.
The noble and learned Lord, Lord Lloyd of Berwick, who has appended his name to this Question on whether Clause 24 should stand part of the Bill, cannot be in his place, but I know that if he were here he would have reflected that, shortly after the abolition of capital punishment in 1965, a number of attempts were made to make an exception by retaining capital punishment for the murder of a police officer. These attempts were always defeated for exactly the same reason that I referred to at Second Reading and shall set out again briefly. If the murderer of a police officer has escaped from the scene, he or she will be aware that if this legislation is passed, he or she, if apprehended, will face life without parole. There is no incentive for him or her to surrender, and no further penalty can be given to him or her for killing more police officers. Why not entrap them? Why not go out in a deluded blaze of glory and take more hated police officers with them? It is “suicide by cop” as it is known. This measure is simply dangerous, unhelpful and totally misguided.
It is interesting only a small number of Back-Benchers are in your Lordships’ House at the moment—all of them former police officers, and all of whom object to this clause for that reason. I should be fascinated to hear why the different political parties support these clauses.
Lord Dear (CB)
My Lords, I shall speak to Clause 23, although my comments could equally well apply to Clause 24. I accord entirely with the last remarks made by the noble Lord, Lord Blair. I also remind noble Lords of my record in dealing with police corruption and malpractice. I emphasise the fact that I do not in any way diminish the seriousness, importance and reprehensibility of any abuse of office. Any corruption is reprehensible, particularly by those in authority. That of course includes police officers.
As has been said—and I will not go through it in detail—the current law is adequate and all-embracing. It captures all the possible misbehaviour and misconduct of those in public office, including police officers. The proposal does not add one jot to the armoury of offences that prosecutors can deploy. In fact, when reading jurisprudence at university, I well remember it being said that it was a universal truth that repetitious legislation—one offence after another, all dealing with exactly the same principle—was odious. I, too, would be interested if the Minister could tell us why it is such a good idea at the moment.
I notice that Mr Jeremy Wright MP, Parliamentary Under-Secretary of State for Justice, said:
“The public expect the police to act with honesty and integrity at all times”.
He went on to say that the Government felt that the best way to proceed was,
“to create a new offence of police corruption that applies solely to police officers”.—[Official Report, Commons, 17/6/14; cols. 1020-1.]
He said that this would be alongside the existing, broader common-law offence of misconduct in public office. The new offence in the Bill carries a maximum sentence of 14 years. Misconduct in public office carries a maximum sentence of life imprisonment. The safety net is there.
Lord Condon (CB)
My Lords, I declare my interests in policing as a member of the Association of Chief Police Officers, and as a former commissioner and senior police officer. I first congratulate the Government on its resolve to deal with police corruption, past and present. Many wrongs have been righted that were long overdue. However, I share the reservations expressed by the noble Lords, Lord Blair and Lord Dear, on Clause 23, and expressed by the noble Lord, Lord Blair, on Clause 24.
The challenge in dealing with police corruption is not the absence of relevant offences; it has always been the inability to establish credible, usable evidence of such behaviour. A new offence does not mean that the job is done and police corruption is ticked off the list of things to do. The fight against police corruption requires a well resourced and confident Independent Police Complaints Commission; profound ongoing ethical and cultural change in the police service, as suggested by the noble Lord, Lord Dear; and vigilance that is sustained at all times, not just at the point of a particular scandal. All I ask the Minister to acknowledge on Clause 23 is that it is but a small piece of a much larger endeavour, which seeks to sustain and improve ethical policing, and deal with police corruption.
During my time in your Lordships’ House I have heard from all sides, and from the noble Lord, Lord Blair, that symbolic legislation is rarely good legislation. Clause 24, which my name is attached to in questioning, feels like a piece of symbolic, public relations legislation. There is no evidence that judges do not view the murder of police or prison officers with the upmost seriousness and sentence accordingly. I share the same concern articulated by the noble Lord, Lord Blair. The clause means well, and I thank the Government for it, but I am not being patronising in saying I hope they have thought through what could be the extreme implications of it. It may be only rare cases, but I fear that a criminal on the run who has—or believes he has—murdered a police officer has nothing more to fear if whole life sentences are in place. With a warped mind in such circumstances, they might seek to shoot, stab or bludgeon their way out of an arrest scenario—or seek suicide by policeman, as mentioned by the noble Lord, Lord Blair.
I do not feel strongly opposed to either of these clauses, but I have reservations relating to Clause 23, for the reasons I have said. I have a nagging fear that Clause 24 could have a perverse effect. All I seek from the Minister at this point is whether there has been sufficient consultation with the police service, as currently organised and led, relating to Clause 24. Can he reassure me that my fears are perhaps old fashioned and outdated?
Lord Paddick (LD)
My Lords, I briefly rise to support the noble Lords, Lord Blair and Lord Dear, on Clause 23. I spoke on this issue at Second Reading. I do not want to repeat what the noble Lords have already said very clearly and eloquently, but one of the reasons that was given for this new piece of legislation was that it would include the corrupt activities of police officers while off duty. However, in the Plebgate case, to which the noble Lord, Lord Blair, has already referred, one officer has been successfully prosecuted and jailed for misconduct in a public office. That officer was not on duty at the time of the offence—indeed, he was not even at the scene of the event. Therefore, I should like to hear from the Minister in what way this new legislation adds to the offence that is already successfully used to prosecute police officers for misconduct in a public office.
The noble Lord, Lord Dear, has a distinguished record in tackling police corruption, particularly in relation to the West Midlands serious crime squad. I believe that if the noble Lord is opposing Clause 23 then the Minister should listen very carefully to what he has to say.
I could not put the reasons for opposing Clause 24 any better than the noble Lords, Lord Blair and Lord Condon. The arguments that they have put forward are compelling. If a series of former senior police officers in this House are saying that the provisions of Clause 24 are both unnecessary and dangerous, I respectfully suggest that my noble friend the Minister should listen.
Lord Kennedy of Southwark
My Lords, like other noble Lords, I want to speak to both Clauses 23 and 24 to aid your Lordships’ House.
The Opposition cannot support the noble Lords, Lord Blair, Lord Dear, Lord Condon and Lord Paddick, in opposing Clause 23. I have heard very clearly the points that they have made concerning police officers being public servants with special provisions being made for them. They are obviously highly respected individuals and public servants but, with that, they carry great responsibility and great power. Where those officers exercise that power or privilege improperly, there can be tremendous consequences for the individuals concerned. That is the concern that we have on these Benches and it is why we will support the clause as it stands.
Moving on to Clause 24, the murder of a police officer is of course a most serious crime, and it is right that anyone killing a police officer in the course of their duty should receive a substantial jail term. This clause would make that a whole life term. My colleagues in the other place supported the Government, as we do today on the Opposition Front Bench. The noble Lords, Lord Blair, Lord Condon and Lord Dear, have all been senior police officers and have all expressed grave reservations about this provision, saying that it is unnecessary. Like the noble Lord, Lord Paddick, I very much hope that the Minister will meet the noble Lords and other representatives and look at this issue very carefully. The last thing that anyone wants to do is to agree to a Bill that puts more people’s lives at risk. I am very worried about that. We must look carefully at what they have said and talk to them about this issue because it would be madness to do anything else.
These are very difficult issues. Obviously everyone wants to root out corruption at any level. Regarding Clause 23, the consequences for the victims of police corruption are very serious.
Lord Faulks
My Lords, this has been an excellent debate, distinguished by the contribution of four very senior and experienced police officers. Also, the helpful contribution of the noble Lord, Lord Kennedy, added to the debate. The noble Lord, Lord Paddick, is quite right: the Government should plainly listen to what police officers with such experience and who are so respected in your Lordships’ House have to say.
The noble Lord, Lord Condon, ranged over a number of issues in respect of the police. He stressed that the police were in something of a crisis at the moment but, at the same time, he said, absolutely correctly, that they need to be properly resourced and that there ought to be a competent Independent Police Complaints Commission. So far as that is concerned, the Government have given the IPCC a range of new powers. It has already received £2.4 million to strengthen its capabilities. In addition, from this financial year, we will transfer £18 million from police forces to the IPCC to enable it to do all serious and sensitive cases, including corruption work.
Lord Blair of Boughton
My Lords, I am most grateful to the Minister and to the noble Lord, Lord Kennedy, for their comments. I am afraid that I still feel we are in the world of assertion, as the Minister said, rather than of argument. He may not be able to do this, but I would be most grateful if he could assist me by providing me with some of the advice that he has received in relation to the corruption offences. The scenario that he just described, of a senior police officer misusing his position but where no prosecutor could find a way to suggest that that was an offence under the bribery or whatever Act, or that it was misconduct in a public office, sounds a little unusual to me.
I am most worried, as I think are other noble Lords who have spoken, about what I shall now refer to as the “perhaps” clause. The Minister very much emphasised the word “perhaps”, saying that an offender in these circumstances would perhaps not be familiar with the law and so on. The fact is that as soon as you mention “whole life tariff” to a criminal, he or she—it is almost certainly a he—knows what a whole life tariff is and that it means that you might as well take five cops out as one cop. It is that simple. I would be grateful to speak to the Minister a little further about this, particularly to answer the question that the noble Lord, Lord Kennedy, raised about the level of consultation with senior police officers and the Police Federation at the moment. I am pretty clear that the objections that I have raised are familiar to them: they have been familiar to generations of police officers since the then leaders of the police service objected to there being capital punishment for the murder only of a police officer or a prison officer.