Queen’s Speech

Baroness Northover Excerpts

Monday 9th June 2014 Lords Chamber

[Lord Patel (CB)]

My Lords, I am pleased to be taking part in this debate following the gracious Speech, and I am particularly encouraged to speak more freely when I see the noble Earl, Lord Howe, in his place and know that he cannot answer me back or reply to my comments—at least not today. So if I do speak freely, I hope that he will understand.

Before doing that, I shall speak on two of the issues that are in the gracious Speech and in the notes accompanying it. The first relates to redundancy payments, particularly for public sector workers. We know that current statistics show that a quarter of the managers who have been given redundancy payments come back to some post or other, either as NHS employees or contractors. These are highly paid individuals and some of them were found not to be performing well. It is time that that was stopped.

My other comment relates to education. I welcome the fact that GCSE A-levels are to be reformed. Both the Royal Society of Chemistry and the Royal Society have produced reports. The Royal Society report, which will come out on 26 June, alludes to the need for science and mathematics teaching in both primary and secondary schools. It also refers to the lack of appropriately qualified specialists in chemistry and other science subjects in both primary and secondary schools. Unless we tackle the issue, the comments we have heard from universities and employers about the lack of appropriately skilled people in science and mathematics and the lack of economic competitiveness as against our competitors will not be addressed. I hope we will have an opportunity to debate that.

I turn to the issues about which I can speak freely that were not in the gracious Speech. These represent missed opportunities. We have had draft Bills, and consultations and reviews conducted by the Department of Health, and yet nothing has come to legislation. Perhaps I may just list some of these issues because I do not have the time to go through them in detail.

First, the Law Commission report on the regulation of the nine regulators in health and social care. The Government asked the Law Commission to look at this in 2011 and it produced a clear report earlier this year which will be of benefit to both the regulators and, in the case of medicine, to improved patient care. The Government said that they were committed to bringing this in and yet there is no draft regulation or legislation and we do not know when we will get it. This will stop any further development or improvement in patient care, certainly as far as medicine regulation is concerned, because the current medical Act is draconian, bureaucratic and not fit for purpose. I do not know whether the Government can change this situation but I hope that they will at least produce a draft Bill before the next election.

My next point concerns caring, to which the Minister referred. Yes, we now have draft regulation and guidance, produced last week on 6 June, relating to Part 1 of the Care Act. Again, however, the legislation, guidance and regulation do not address the key issue—the vulnerability of old people who are abused through being provided with poor care and the lack of accountability of those who provide it. We need legislation to introduce a criminal offence and a penalty for those who do not treat old people properly. Some 500,000 elderly people are abused per year—50 per hour—and so, by the time we finish the debate, 250 more elderly people will have been abused. Regulation is required to fix this situation and I am sorry that I do not see it.

Parliament has said that it would like to see the plain packaging of tobacco products. There has been consultation and the Government produced draft regulation. I now realise that there has to be consultation time and, after that, the EU will have to have a consultation period. Therefore, the timescale is so prolonged that there is a risk that the issue will be kicked into the long grass if the Government do not produce something before the next election.

We have debated folic acid—I notice that the noble Lord, Lord Rooker, is in his place—and it is clear now that the folic levels in the general population of this country are low. One-third of pregnant women do not take the precaution of having adequate folic acid pre-pregnancy. This results in more than 300 babies being born with serious neural tube defects, spina bifida being one of them. However, several hundred others have their pregnancies terminated because of such defects. It is time now to address the issue by putting small quantities of folic acid in flour. However, there is no legislation to enable this.

We have also debated mitochondrial disease. About 3,500 women in this country probably carry mutant genes of mitochondrial DNA, which accounts for less than 1% of total DNA. Diseases related to mutations in mitochondrial genes are severe and affect mostly the brain, heart, liver, kidney and nervous system. One of the ways to help those who carry a CBL gene mutation is to replace the mitochondrial DNA.

Three reviews that the Government asked an expert committee of the HFEA to produce, and the report from the Nuffield Foundation ethics committee, all said that there was no reason why mitochondrial replacement techniques should not be given the go-ahead. However, legislation will be required before this can occur in humans, even for the purposes of research. These are five missed opportunities on issues that we have already discussed.

I turn finally in one minute to—

[Baroness Northover (LD)]

My Lords, there is an advisory speaking time of five minutes. Obviously the noble Lord could go beyond it, but in terms of courtesy to others, given the number of speakers in the debate, he might want to bear the time in mind.

[Lord Patel]

As a courtesy, I will not go any further. However, I have to say that NHS reforms have not worked so far and we should take the opportunity to look at the issues again. I hope that we will be able to discuss them further.

Crime and Courts Bill [HL]

Baroness Northover Excerpts

Monday 25th June 2012 Lords Chamber

[Baroness Neuberger]

Much of what I had wanted to say has been said by others, notably by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Kennedy and Lady Jay. I chaired the Advisory Panel on Judicial Diversity and we took a great deal of evidence from both men and women who were either judges or interested in becoming judges. Of the many components needed to create a more diverse judiciary, flexible working was pretty near the top of the list. It was near the top of the list for people in their late 50s and in their 60s, who were not on the whole talking about looking after children—although, like the noble and learned Baroness, Lady Butler-Sloss, I think one ends up worrying about one’s children for ever—but about caring for elderly parents.

Increasingly, because we are living longer, people in their 60s are caring for parents in their 80s and 90s. It is likely that people who are going to work as much as they possibly can in their 60s may still need to work more flexibly than was hitherto the case because they need to look after, or make sure that somebody else is looking after elderly parents. That point was made to me almost as much by men as by women and almost as much by solicitors as by people who came from the Bar. We must make provision for flexible working given the way that our population is ageing and that we are likely to look after parents in our 60s and 70s.

Therefore, the need to be more creative and flexible in how we think about these issues has never been greater. That was felt very strongly by people from whom we took evidence. Those people, including some members of the present High Court, also said that to them flexible working was not about working two days one week and three days the next, but about working possibly for nine or 10 months of the year and simply taking slightly more holiday than other people. That holiday, which would in fact be to allow them to carry out their responsibilities, would simply have to be factored into the system. Sending out a message to the wider world that we are not prepared to consider flexible working for the judiciary when we consider it for every other profession in the country would look very strange indeed.

[Baroness Northover]

I suggest that the debate on Amendment 115 be adjourned and that the Committee does not resume again before 8.20 pm.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Northover Excerpts

Monday 23rd April 2012 Lords Chamber

24A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

[Baroness Northover]

My Lords, noble Lords gave great attention to this issue in earlier stages. I hope that the discussions that have resulted, both within and outside the Chamber, have helped to reassure them.

I begin by saying that the Government have always agreed that telephone legal aid advice will not be suitable for everyone. That is why there will be exceptions to having to use the gateway to apply for legal aid—for example, for emergency cases. Those who are eligible for legal aid will be assessed on a case-by-case basis to identify whether they are suitable for telephone advice.

A key consideration in assessing suitability for receiving advice over the telephone will be whether a caller is able to give instructions and act on advice over the telephone. Trained and skilled assessors will assess this suitability, and a range of reasonable adjustments and service adaptations will also be available to assist callers in their contact with the gateway.

The gateway, based on the existing highly successful Community Legal Advice helpline, will be a two-stage process—not just, as some have called it, a “call centre” service. It may help noble Lords if I briefly set out how the process will work in practice.

Stage one: when applying for legal aid in one of the areas of law subject to the gateway, trained and skilled telephone operator service staff will engage with the caller to identify their problem and eligibility for legal aid, giving the caller the time needed to explain their problem. Organisations such as the Samaritans have contributed to training for current operator service staff. These staff will not provide legal advice, but will route clients to sources of help. If the problem is in an area of law subject to the gateway, the client will be transferred to a legally trained specialist for telephone advice.

In the second stage, as now, under the current Community Legal Advice Helpline contract, where an eligible caller is transferred to a specialist, legally trained telephone adviser, that adviser will speak to the caller to assess their needs, including their suitability for telephone advice. Where it is clear, having regard in particular to whether a caller is able to give instructions and act on advice over the telephone, that face-to-face advice is needed, the client will be referred to a face-to-face provider. I ask noble Lords to note that both the telephone operators and specialist telephone providers will have ongoing training, including awareness of different vulnerable callers, such as those with mental health issues and learning difficulties.

The Government have engaged and will continue to engage with stakeholders, including equality groups, to identify any additional reasonable adjustments for callers with specific needs. For those with little or no spoken English, a free three-way translation service in 170 languages can assist engagement with the gateway. Few face-to-face providers could offer this extensive range of languages. A third party, including a family member or advocate, can contact the gateway to speak for a person or help them explain their problem. To minimise costs, all potential callers can contact the gateway by mobile phone text or the internet to ask for a call back, and all callers can ask for a call back, too.

The use of new technologies such as Skype and webcam—wider than for just the British Sign Language service—are being investigated to enhance the service further. There will also be a service enabling an individual to contact the gateway by secure e-mail. The Government will raise awareness of the gateway to users, including the services and support it offers and we will also be monitoring its operation from day one of implementation and engaging with those using it to ensure that needs are indeed met. As we have also stressed, there will be a review of its implementation and operation, and the report of that review will be published. This will happen within two years of the implementation of the gateway and before any decision about any possible extension of the gateway to other areas of law is taken.

The Government are confident that a mandatory gateway can facilitate efficient and prompt access to legal advice, including advice for those vulnerable people in need of it. The effect of Amendment 24 and, in particular, the amendment of the noble Baroness, Lady Grey-Thompson, Amendment 24B in lieu, would be to impact severely on the provision of any legally aided advice services by telephone, including the existing Community Legal Advice helpline, the existing criminal defence service direct telephone scheme as well as the proposed mandatory gateway for certain areas of civil legal aid. These amendments are unnecessary and disproportionate to the concerns of the noble Baroness, which previously have centred on the mandatory gateway and vulnerable people.

Amendment 24B would require every eligible client to receive face-to-face advice, regardless of their particular circumstances or personal preference. This would result in a very inflexible system that would invariably introduce a delay in clients receiving advice as not only would they have to locate a suitable provider, they would also need to contact them to make an appointment to see them. No longer, for example, would a client be able to make contact with and discuss their problem at a time and place convenient to them.

Noble Lords have already acknowledged the effectiveness of telephone advice itself. On 20 December, the noble Lord, Lord Bach, described the Community Legal Advice helpline as excellent and he was sure that noble Lords would be glad to see its work continue and expand. However, such a requirement would invariably mean the end of any telephone advice as it would be highly unlikely that any individual who has explained their problem to a face-to-face advice provider would then choose to switch to a different telephone advice provider at a later stage.

Not only would this amendment have the potential to eliminate all the savings from the gateway, it could add about £4 million to the legal aid bill for criminal cases and additional cost to civil legal aid for additional face-to-face advice—advice which is currently successfully provided by telephone. The specific duties contained in Amendment 24B are also unnecessary. I can assure the noble Baroness that the Government have complied with the public sector equality duty under Section 149 of the Equality Act 2010 and we have published an equality impact assessment—at the time of the consultation on the legal aid reforms and at the time of the Government’s response—which includes consideration of the mandatory gateway policy. The public sector equality duty is a continuing one and we will continue to comply with it.

As noble Lords know, under the public sector equality duty it is necessary to have due regard to the need to eliminate discrimination, harassment, victimisation and other conduct that is prohibited by or under the Equality Act 2010, advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. The relevant protected characteristics for these purposes are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These types of discrimination are all defined in the Equality Act 2010 and we are complying, of course, with that. For these reasons, I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by

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[Baroness Northover]

My Lords, I thank noble Lords for their attention to this very important area and I especially thank the noble Baroness, Lady Grey-Thompson, for her kind words to my noble friend about his engagement with her concerns. I have a note that I need to correct the figure given for the costs of the noble Baroness’s amendment. The costs are likely to be in excess of £20 million per annum for both civil and criminal legal aid—I need to clarify that.

In reaction to what the noble Baroness, Lady Grey-Thompson, said, I point out that stage 1 is where people come in and it is decided whether they need to go through the telephone system. Stage 2 is the detailed case assessment of suitability.

To my noble friend Lord Phillips I point out that the kind of cases to which he points may well be those that are then directed towards face-to-face advice. It is extremely important to bear in mind the flexibility that is built into this system and to contrast that with the lack of flexibility of insisting that the advice is face to face. This system means that when people are taken into the telephone system their cases can be assessed to see whether they are suitable for phone advice or face-to-face advice.

[Lord Phillips of Sudbury]

I did not explain myself adequately. I was trying to get across the point that people will not get as far as a telephone. That is the problem. Once they are there, I absolutely think that what my noble friend has explained to the House is fine. However, I am talking about the people who, for the reasons I tried to explain, will not have the confidence or the competence to say what their problem is over the phone because it is often so damn difficult to do so.

[Baroness Northover]

I understand what my noble friend means about getting to that point. I ask him to ask himself how they would get to face-to-face advice. There they are with a major problem. They may very well end up in a CAB, in which case the CAB may assist them in phoning the telephone gateway and may indicate in its call that this is a suitable candidate for face-to-face advice. My noble friend needs to go back a bit and ask how the person who is in such circumstances will access any advice and then see how this may route them through to the kind of suitable, appropriate and flexible advice that I hope I have laid out.

[Lord Clinton-Davis]

However, where someone is incapable of expressing themselves—I remember having to listen to such a person for more than an hour—would they not be excluded from what is being proposed?

[Baroness Northover]

Let us assume that that person has come to you as a constituency Member of Parliament—I think that is the kind of case the noble Lord is talking about. Again, the Member of Parliament could phone the helpline and say that, for the reasons given by the noble Lord, in this case the person is likely to need face-to-face advice. If someone else, such as a family member, were to phone up, it would become apparent that the person in question could not do this. For those reasons it becomes apparent that this person is going to need face-to-face advice.

As I said in my introductory remarks, there are clearly cases where, for all sorts of reasons—and noble Lords have experience of these kinds of cases—that person will not be best helped by the telephone. In other cases that might be exactly what a person prefers: the distance of telephone rather than face-to-face advice. They might not be able to get to wherever the face-to-face advice is, or they might find that Skype is what they want to use.

The other point to bear in mind is the provision of language translation. Some 170 languages can be provided on the phone line, and very few CABs or constituency advice surgeries have that kind of provision; so there are certain advantages to that provision that might be of help to other cases. The important thing to remember in all this is the equality duty—the diversity of people and their situations and our obligation to address those needs. Those needs will need to be met in different ways, and that is built into how the system operates. The very fact that the Samaritans have been involved in training the operators is an indication of how seriously we consider the responsibility towards people with those diverse needs. Of course, the Samaritans operate a phone system for their own advice line.

I assure the noble Lord that there will be no restriction on the length of time that a person can speak to a caller. If that is the problem—that it is a matter of time—it will not kick in here.

My noble friend Lord Phillips asked about the Budget, which announced £40 million and £20 million in each of the remaining years of the spending review. I think he sought assurance of provision for the CABs.

I have emphasised how operator service staff and specialist telephone advisers will be trained to be aware of the needs of callers, especially those with mental health and learning impairment problems. There will be reasonable adjustments and adaptations available to assist callers, including provision for a third party such as a family member to call on an individual’s behalf. As long as a person authorises someone to call on their behalf, the third party could equally be a member of a CAB or other support or advice service. If the caller is assessed as unsuitable for telephone advice, they will still have access to face-to-face assistance and be referred directly to that provider. That is an improvement over the current situation, in which they might be given three phone numbers of advisers whom they then have to contact. Again, they have to use the telephone to set up these appointments, whereas with this they could be referred directly to that provider and will not have to find the face-to-face provider themselves from those phone numbers, and those providers will have to make contact back to the person.

Noble Lords might bear in mind how flexible the system is within the new arrangements. In December, the noble Lord, Lord Bach, referred to the satisfaction rates with both the existing community legal advice helpline operator service and the specialist telephone advice service; 96 per cent of respondents found the operator service helpful, and the 2010 survey of clients advised by telephone showed that 90 per cent of respondents found the advice provided helpful. That is a very encouraging response.

As I emphasised, and as we will continue to emphasise, we will keep this under review so that we can make sure that it is working as effectively as possible. As my noble friend Lord McNally assured the House, I assure noble Lords that the telephone gateway will apply initially to only a limited number of areas of law and will be monitored from day one. Noble Lords have picked up on the review, but I assure them that we will keep a watching brief over this from the very beginning to make sure that it is working well. The engagement with stakeholders that has already taken place and the need to make sure that everyone’s needs are addressed is a reflection of that. I can give that further assurance.

I hope that noble Lords will support the Government in this area.

[Lord Phillips of Sudbury]

I am sorry to interrupt my noble friend again, but can she tell the House that the review will be undertaken by an independent experienced reviewer?

[Baroness Northover]

My noble friend assures me that we will review how this is working and publish the findings. I am sure that noble Lords will scrutinise that with the greatest of care. I reiterate that the operation of the system will be monitored from the very beginning. Therefore, noble Lords do not need simply to wait for the review at the end of two years to make sure that this is working in the way that we trust will assist people, as opposed to raising the concerns that noble Lords have expressed. I hope that the noble Baroness will be able to withdraw her amendment.

[Baroness Grey-Thompson]

I thank noble Lords who have taken part in this afternoon’s debate, in particular the noble Lord, Lord Phillips of Sudbury. Not for the first time, I wish that I had trained in the law rather than doing a politics degree. I accept that my wording could be slightly better but, as the noble Lord, Lord Wigley, said, it has been improved since the last time I moved the amendment.

It seems that we are stuck in two slightly inflexible viewpoints. I wholeheartedly agree with the noble Lord, Lord Low, when he says that there is a place for a gateway. However, I also believe that there is a place for something else to help the most vulnerable. One idiosyncrasy of this system is that an individual could go into a citizens advice bureau and ask for help but be told to ring a phone number and be sent away. In an ideal situation, that person would be able to stay in the citizens advice bureau and make the call from there, and could even have that third-party support. If they are sent away, they may take that to mean that they are not eligible or that they do not understand some of the issues.

I thank the noble Baroness, Lady Northover, for her comments. It is probably not the right time to debate this, but now that we have a system that can be accessed on the internet through www.directgov.com or by Skype and through phone calls—there is information coming back and forth—I wonder whether there are not almost too many options for people. Perhaps a gateway and the potential for a face-to-face interview might be the simplest way to do it.

I go back to the point made by the noble Lord, Lord Phillips of Sudbury. I am sure that everyone in your Lordships’ House knows one, two, or maybe more people who would struggle to make that first contact and might drop out of the system, finding it too much to cope with, and would therefore not be able to access the help that they need. So as much as there has been some positive movement today and some very positive comments, I am not reassured that the most vulnerable would be supported through this system. Very reluctantly, I wish to test the opinion of the House.

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171A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

[Baroness Northover]

Motion J concerns legal aid for children. When the Government undertook their comprehensive review of legal aid, we looked at the principles of each type of case funded by the scheme and considered, first, the importance of the issue; secondly, the litigant’s ability to present their own case, including and especially any vulnerability; thirdly, the availability of alternative sources of funding; and, fourthly, the availability of other routes to resolution. We have used those principles to prioritise funding so that civil legal services will be available in the highest-priority cases—for example, as my noble friend Lord McNally said earlier, where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where children may be taken into care.

The application of these principles led us to protect the vast majority of funding in cases involving children. These include family cases where a child is at risk of abuse; child care and supervision cases; civil claims concerning the abuse of a child; special educational needs cases; clinical negligence claims concerning brain-damaged babies; cases concerning the inherent jurisdiction of the High Court in respect of children; cases concerning the unlawful removal of children from the UK; cases concerning EU and international agreements on children; and legal aid for children who are made parties to private family proceedings. That is why 96 per cent of the current spend on cases involving child claimants will continue. Because we have adopted the approach that I have outlined, we do not accept Amendment 171, which seeks to bring all cases back into the scope of legal aid where a child is a party. On current plans, the overwhelming majority of current support will continue, as I said.

The noble Baroness, Lady Grey-Thompson, has tabled Amendment 171B, which is almost identical to Amendment 171, with the exception of immigration and consumer law cases, on which the House of Commons has offered a clear view. In our opinion, Amendment 171B will elicit the same response in the House of Commons. However, I will set out again the measures that are in place that will guard against the risk of children falling through the net.

As noble Lords know, we have committed to providing additional resources for citizens advice bureaux and similar groups that provide the general practical advice that can often prove more productive than drawn-out adversarial legal action. As I mentioned earlier today, we will be making a further £20 million available to the sector in each of the next two financial years. It is therefore not the case that there will be no or substantially reduced funding for cases involving children and young people.

Some in past debates have suggested that children might be left to fend for themselves in courts of law. Let me address that very clearly. It is already a requirement of the rules of civil litigation that a child must have a litigation friend to conduct a case on their behalf, usually a parent unless the court specifically orders otherwise. It will be only in exceptional circumstances that the court will make an order permitting the child to conduct proceedings on their own behalf. Any step taken before a child has a litigation friend is of no effect unless the court makes such an order. There is no requirement that a litigation friend must act through a solicitor. It is therefore open to a child’s parent, or other person caring for the child, for example, to act as the child’s litigation friend in proceedings where the child is a party.

In other scenarios—for example, tribunals that are addressed in the amendment tabled by the noble Baroness—where a child may be bringing an action without a litigation friend, this will of course be a relevant factor in deciding whether they have the ability to present their own case and whether exceptional funding for representation is required in order to avoid a breach of Article 6 of the ECHR. This means that the existing Civil Procedure Rules, combined with our exceptional funding system, will provide crucial safeguards against children being left to navigate court and tribunal hearings on their own. We believe that these measures, taken together, are sufficient to guard against the risk of children falling through the net where they do not fall into the vast majority of cases that are still covered by legal aid. I beg to move.

Motion J1 (as an amendment to Motion J)

Moved by

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It is simply unacceptable to withdraw this level of support from these vulnerable young people. I hope that even at this late stage the Government will reconsider. If not, we will certainly support the noble Baroness should she decide to test the opinion of the House.

[Baroness Northover]

My Lords, I thank noble Lords for their very important contributions to this debate.

At the beginning of this discussion, I set out in some detail the reasons behind the Government’s position on legal aid for children, and that legal aid should apply to the highest priority cases, which has been at the heart of our reform proposals. I produced a long list of where funding is being retained for children as a result of the application of this principle. The fact that 96 per cent of current spend on cases involving child claimants will continue reflects the importance that the Government have placed on that.

[Lord Phillips of Sudbury]

My Lords, I regret to interrupt my noble friend at this time of night, but she mentioned the figure of 96 per cent remaining in scope. The figure of 13 per cent taken out of scope was just mentioned. I wonder where the reconciliation is between those two figures, because it is significant.

[Baroness Northover]

It is very straightforward. As I have just said, 96 per cent of current spend on cases is included, and in terms of numbers of cases 13 per cent are outside. So 4 per cent of spend is outside, which represents 13 per cent of the number of cases.

The noble Baroness, Lady Grey-Thompson, flagged up great concern about children in this situation and referred to the Children’s Commissioner saying that if this happened, it would breach the ECHR. Indeed, we agree. I hope my introductory remarks reassured her that this is not in breach, because if there was a failure to provide funding in such a situation that it was a breach, that would be covered either within that 96 per cent that I have just mentioned or through the exceptional fund. Any child qualifying for that kind of protection would qualify, under the European Convention on Human Rights, for that exceptional funding. I hope that that reassures her. The Children’s Commissioner may say that it would be abuse of children’s rights if that were not to be the case but we are saying that that is covered because of that protection.

My noble friend Lady Hamwee flagged up the area of immigration, and here the child’s interests are generally represented by the parent or guardian. In most cases where a child is unaccompanied, the issue is usually an asylum claim and legal aid is of course remaining for these cases. My noble friend asked what would happen if the case was not accepted as an asylum claim. In these cases unaccompanied children would have a social worker assigned to them, whose role would include helping the child access the same advice and support as a child permanently settled in the UK. They could also, for example, offer assistance in filling in forms, explaining terms and giving them emotional support. As my noble and learned friend Lord Wallace of Tankerness outlined previously, the Home Office will be working with the Office of the Immigration Services Commissioner on how best to ensure that local authorities can assist children in their care with immigration applications if necessary. This could, for example, mean exempting local authorities from Office of the Immigration Services—

[Baroness Lister of Burtersett]

I am sorry to interrupt the noble Baroness but we have gone over this a number of times. I remember the late Lord Newton questioning this issue of using social workers. Social workers are not trained for this kind of work and, as I understand, it would be totally wrong for them to provide legal advice for children in their care. It could create real problems of conflicts of interest.

[Baroness Northover]

The noble Baroness may be right about social workers providing legal advice but I am talking about the kind of support that a social worker can give to a child in that situation. Often it is not a matter of specific legal advice but of assisting that child and steering them through the necessary procedures. There has been a running theme through a lot of this discussion that it is not necessarily legal advice that is required; it may be another form of support, which is where, for example, the CAB may be able to assist. Noble Lords have a lot of experience of organisations such as these assisting people and we should not forget that. We are looking at how best to ensure that local authorities can assist children in their care in the kind of cases that my noble friend has flagged up.

The noble Earl, Lord Listowel, asked about care leavers. I am glad that he was reassured by what my noble friend could tell him. I reiterate that the exceptional funding scheme will ensure the protection of the individual’s right to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. The scheme will of course encompass children leaving care, where they meet the relevant legal tests. In considering whether exceptional funding should be granted on this basis in an individual case engaging Article 6 of the ECHR, the director will consider the ability of the client to present their own case, the complexity of the issues, the importance of the issues at stake and all other relevant circumstances.

Local authorities also have a range of duties to care leavers which will not be affected by the provisions of the Bill. It is late at night but I also recognise the huge commitment in this area of the noble Earl. If he would like further discussions we are happy to do that. I hope that I have addressed the concerns of most noble Lords and would like to remind them that 96 per cent of the current funding remains in place and that the principles of need and vulnerability, which underpinned the reasons for covering the areas that we have, remain the most important ones.

I hope that the noble Baroness, Lady Grey-Thompson, will be reassured that children who are in need will be protected and that we will not see the concerns that she has flagged up come to fruition. On that basis, I hope the noble Baroness will withdraw her Motion.

[Baroness Grey-Thompson]

I thank the noble Baroness, Lady Northover, for her response and all other noble Lords who have contributed this evening.

In my opening speech I did not mention clinical negligence because the issue had been eloquently argued in the previous Motion by the noble Lord, Lord Cormack, and the noble Baroness, Lady Finlay.

The noble Earl, Lord Listowel, raised the important issue of children in care and children leaving care. However, this will raise more issues about where the costs will move to. The hope that local authorities will pick up the pieces concerning this group of children in care or leaving care is naive. Local authorities are already under huge amounts of pressure, and pushing the costs—and potentially greater costs—on them will not help the children who we want to see receive this help.

I am also deeply uncomfortable about the role of the litigation friend and the ability of children to access an appropriate person who is able to help them through very difficult times.

I am afraid that I am still not convinced by the arguments on exceptional funding. When we debated the percentages of cases, we learnt that 13 per cent of children’s cases will be out of scope. However, information provided by JustRights shows that, contrary to misleading government claims, the 5,000 to 6,000 children covered by this amendment will not be protected by the exceptional funding scheme. The Ministry of Justice has confirmed to JustRights that its figures on the number of children affected already account for those who would receive exceptional funding. If children were automatically entitled to legal aid, the Government would avoid the cost of administering children’s applications to the scheme, as well as possible delays that would be detrimental to children’s welfare.

I am conscious of the late hour. This issue has been extensively debated in many sessions, but we should ask the other place to think again about the thousands of children who will be seriously and negatively affected if the amendment does not go through. I beg to move.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Northover Excerpts

Tuesday 27th March 2012 Lords Chamber

[Lord Beecham]

My Lords, from the opposition Front Bench I strongly support the amendment moved by the noble and learned Lord. I do so not just because he was a distinguished judge and a most eminent Lord Chief Justice, whose words should be weighed very carefully by all sides of this House; not even because he is a fellow Novocastrian and a fellow honorary freeman of Newcastle-upon-Tyne; but because what he proposes makes such eminent sense, as several of your Lordships have pointed out. The record of restorative justice is one of success. It is not universally successful but, as we have heard, it has made a significant impact on reoffending rates, is cost-effective and, as the noble Lord, Lord Ramsbotham, pointed out, is an alternative to other forms of punishment that are generally more expensive and often less efficacious.

I cannot think of any reason why the Government should resist an amendment phrased in the way that this is. There is an analogous process called “justice reinvestment”, which is a rather more collective way of making reparation, whereby offenders put something back into the community through a community payback scheme or something of that kind. Justice reinvestment is not part of this amendment, although it is a valuable process. If the Government reject the amendment, we will not see justice reinvestment but, in effect, justice disinvestment. That would be a mistake, from which only the victims of crime—and the taxpayer, for that matter—would suffer.

I hope that the Minister, when she replies, will see the enormous persuasive logic of the case made by the noble and learned Lord, supported as it has been on all sides of the House. I hope that the Government will recognise that to incorporate an amendment of the kind that the noble and learned Lord has moved will strengthen, not weaken, the Bill. I hope that they are prepared on this occasion, as they have been on other occasions, to listen to the sense of the House and accept the amendment.

[Baroness Northover]

My Lords, Amendment 31, tabled by the noble and learned Lord, Lord Woolf, returns to restorative justice. I thank him for bringing this important issue before the House and for his tenacious support for its principle.

The amendment is very timely as this morning we published our consultation on community sentences, Punishment and Reform: Effective Community Sentences, which includes a chapter on reparation and restoration. I am very pleased that the noble and learned Lord has welcomed this publication. The consultation offers us an important opportunity to seek the views of practitioners, sentencers, magistrates, probation officials, victims and victims’ groups about the use of restorative justice as part of our response to tackling more serious offending through the use of community sentences. It asks questions about the use of pre-sentence and post-sentence restorative justice, what more we can do to strengthen and support the role of victims in RJ and, crucially, what might be the right approaches to building capacity and capability and boosting a cultural change for RJ. We want to gather all views on how to do this, and through what means, so that we can develop the most effective approach. Noble Lords have emphasised their experiences of how restorative justice works and have cited research to back up those experiences.

We are anxious to ensure that innovative and effective restorative practices continue to be developed and are driven by local areas and tailored to local need. We certainly want to support initiatives by building capacity in the criminal justice system so that we can deliver the restorative process that this amendment champions. I believe, therefore, that we need to undertake the important consultation exercise that we have initiated today before we can give consideration to whether further specific legislation is necessary for restorative justice, taking into account all the options for how we intend to widen its application.

Noble Lords have made a very powerful case for the use of RJ. My honourable friend in the other place Crispin Blunt, my noble friend Lord McNally and I very much welcomed the meeting that took place earlier today, to which the noble and learned Lord has referred. I hope that it reassured him that we are making progress in this area to increase the use of restorative justice across the criminal justice system. We hope that he will contribute his enormous wisdom and experience to the consultation that we launched today. I assure noble Lords that everything that they have said will be fed into that consultation process and what emerges from it.

[Baroness Butler-Sloss]

I apologise for interrupting the noble Baroness but she has got to a point where I need to ask a question. Here is a vehicle of primary legislation into which something about restorative justice can be placed. If she and the Government wait for the results of the consultation, where on earth will they find the vehicle of primary legislation into which to slot restorative justice?

[Baroness Northover]

I think that I am being invited to comment on what might be in the Queen’s Speech, as was my noble friend. That is way above my pay grade.

[Baroness Butler-Sloss]

I merely wanted to say that here is a piece of legislation into which this measure can be placed. However, if it is not included in this legislation, there is a danger that it will not go in anywhere. In the absence of primary legislation, there is a danger that the Government will have difficulty in implementing the measure. That is the point I am making; I was not trying to get an idea of what is in the Queen’s Speech.

[Baroness Northover]

I understand what the noble and learned Baroness is saying. As we discussed in Committee and on Report, the use of restorative justice can already be taken forward under current legislation. The question is whether further legislation is required. The noble and learned Lord and other noble Lords have made the case that restorative justice is useful, as has the noble and learned Baroness. However, as I say, RJ can already be taken forward and is being developed. We hope—

[Lord Woolf]

Perhaps the noble Baroness will forgive me for also interrupting her, but I should like her assistance. Am I right in assuming that she intends restorative justice still to be supported by the courts? Does she agree that there is no express reference to restorative justice in legislation setting out the power of the courts to make use of it? Although there are references to similar matters, they do not clearly permit restorative justice.

[Baroness Northover]

I hear what the noble and learned Lord says, and he makes his case very cogently, as he and others have done at other stages. However, he, too, will recognise that the courts can use restorative justice and are doing so. That is happening. However, the Government take seriously the need to develop this area further, and noble Lords have made that case very clearly. The consultation has been brought forward. We expect that what has been said here will be fed into that consultation, and I hope that the noble and learned Lord will feed his own experience and expertise into that process. The important thing here is to make sure that the practice is taken forward and provision is expanded. That commitment I can certainly give him. Given the consultation and the process that is being carried forward, I hope that he will withdraw his amendment but continue with his commitment, which we very much support.

[Lord Woolf]

I thank the Minister for the way in which she presented her case. She has said everything possible to support deferring the inclusion of the reference to restorative justice, which I think is important because it makes it clear to judges up and down the land that restorative justice is part of the purposes of sentencing. That message can then be incorporated into the process.

I thank the noble Lord, Lord Hodgson, for his helpful remarks. He was obviously concerned about resources. In the present situation, everyone is concerned about resources. The amendment does not require the Government to put one penny into restorative justice. It does not deal with that subject, so he need not have that concern.

I know that there is every probability that, if we do not do it now, one day this will be done, but this is an excellent opportunity to do it. There is no reason why we should not. With respect to the comments of the noble Baroness, I did not identify any reason why we should not, other than the fact that consultation is to take place, but consultation can go on irrespective of whether or not we do this. We all support the consultation process. In those circumstances, albeit that the hour is late and that we have had a long day on the Bill, I propose to divide the House.

--- Later in debate ---

[Lord Beecham]

My Lords, the noble Baroness makes a persuasive case to encourage the Government to invest not money but a modest degree of guidance to assist the process of magistrates effectively learning more about sentencing options, about what happens when they institute different forms of punishment and about what happens, in particular, in relation to community sentencing. This is not a huge burden. When one thinks of some of the legislation that has passed through your Lordships’ House in recent months —a Localism Act that with its impact analysis weighed in at something over 8 pounds, as I recall, and contained 225 clauses, a health Bill that had 1,000 amendments en route to your Lordships’ House and all the rest of it—one cannot imagine that it would take very much effort on the part of those responsible to produce fairly simple guidelines on a very narrow topic, which is the subject of this amendment, that could facilitate greater awareness of what is available to magistrates in terms of sentencing options. It seems to me an overwhelmingly simple matter and one that the Government could graciously concede without any damage to the Bill. On the contrary, it would enhance the intentions of the Bill and the intentions of government policy, to which we have referred and which, no doubt, we will shortly hear again from the Minister. Along with the noble Baroness and the noble Lord, Lord Ramsbotham, I would be at a loss to understand what could possibly persuade the Government that this is not a simple and desirable course to follow. I hope that the Minister will not feel that she is constrained to remain rigid on the position that has hitherto been adopted, which produces nothing to assist magistrates or, indeed, anybody else.

[Baroness Northover]

My Lords, this amendment returns to the issue raised by my noble friend Lady Linklater throughout the passage of the Bill. As I said on Report, my noble friend Lady Linklater has considerable experience of bringing together magistrates and those working in probation and of building trust in alternatives to custodial sentences. That is the key area here. That is exceedingly important. We agree with my noble friend about the merits of what she is trying to achieve. However, we do not feel that there is need for legislation to reach that goal. It is interesting that the noble Lord, Lord Beecham, talks about guidance.

As I said on Report, we will look to promote best practice on liaison and information sharing and to make clear that there are already arrangements available for magistrates to claim expenses from probation trusts to encourage such close liaison. We have already begun that process. The national sentencer probation forum has agreed to look at this issue. That forum brings sentencers, including magistrates, together with probation trusts and Ministry of Justice officials to discuss national issues of common interests, including liaison arrangements. We want to gather from sentencers and probation trusts any issues of which they are aware in relation to local liaison arrangements, along with examples of good practice in information sharing. I am pleased to say that the forum has agreed to consider these issues at a forthcoming meeting. I hope that my noble friend is reassured by that. It may be that as a result of that examination of the issues, it emerges that there is indeed a need for guidance in the way that the noble Lord, Lord Beecham, indicated, or some other clarification of existing procedures. However, I stress again that there is no need for new primary legislation to enable that to happen.

--- Later in debate ---

[Lord Bach]

My Lords, the House will be delighted to hear that I intend to be brief. It owes a huge debt of thanks to the noble Baroness, Lady Miller, for having persistently come back with her amendments on this absurd clause, which, as the noble Lord who has just spoken said, does not fit in. “Cuckoo in the nest” is a polite way of putting it. The clause does not fit into the Bill at all and makes one wonder why on earth the Government ever included it.

If the noble Baroness were to test the opinion of the House, we, the official Opposition, would support her because she is clearly right. Everyone who has spoken on the substance of these amendments has said that the current clause is unsatisfactory, wrong and completely unnecessary. Why is it there? There is no need for it to be there in terms of criminal offence. We have heard from the noble Lord, Lord Elystan-Morgan, and others that legislation already exists that covers the point completely. The clause is there to placate the right-wing press and right-wing prejudice. That is something that the House should bear very much in mind when considering this issue.

The Law Society, the Bar Council, ACPO and the Metropolitan Police—all those groups who have had the courage to speak out, as has the noble Baroness against the clause—are not exactly groups associated with squatters. They are independent, able groups that have come to a view about a brand-new criminal offence that is planned. Unless we do something about it this evening, it will almost certainly become law comparatively shortly.

The irony of our proceedings is that if the noble Baroness were to test the opinion of the House this evening, it would very likely be her own side who made sure that she did not win.

[Baroness Northover]

My Lords, at Report, I explained the role of the new squatting offence in giving greater protection to owners and occupiers of residential property who encounter squatters living in their properties. Various noble Lords have asked whether that is needed. Interestingly, only yesterday I received a letter from the deputy leader of the London Borough of Redbridge. He states:

“In one recent case in Ilford, a house owned by someone who had died became a squat during the eighteen months it was taking for lawyers to resolve her estate. In a second case a homeowner was no longer able to manage their own affairs and had been taken into care. In neither case was there an ‘owner’ able … to address the problem”.

The noble Lord is quite right to say that there is protection for a level of squatting, but, as I explained at Report and put in a letter, so I will not go into it again, the provision covers a number of additional areas where it is difficult to deal with squatters.

I know that many noble Lords, especially my noble friend Lady Miller, are concerned about the impact that a new offence might have on vulnerable people who squat. I thank my noble friend for meeting me last week, and my noble friend and my noble friend Lady Hamwee for meeting my honourable friend Crispin Blunt, my noble friend Lord McNally and me earlier today. Then and at the earlier meeting, my noble friend Lady Miller expressed concern about the possibility of a rise in demand for local authority homelessness services when the new offence comes into force.

We have already given assurances on the Floor of the House that we will work closely with the Department for Communities and Local Government to liaise with local authorities and the enforcement agencies prior to commencement to ensure that they are aware of the new offence. That is extremely important. We take very seriously mitigating any problems and we share my noble friend’s concern about the welfare of vulnerable people. However, allowing squatting to continue, sometimes in dangerous and unhealthy premises, cannot be the answer. Instead, we intend to continue to work with other departments, local authorities and homelessness services to ensure that vulnerable people are given the help and support they need to find alternative forms of accommodation.

Of course, as the noble Baroness, Lady Lister, emphasised, a number of those in that situation are suffering from mental or other problems. We have an obligation to them, as vulnerable members of society, to be properly housed. In squats, they have no protection. That cannot be right. The Government have already demonstrated our commitment to preventing homelessness by maintaining investment, with £400 million available over the next four years. We recognise the issues that single homeless people, in particular, face, and we are prioritising improvements in the help that they receive. The ministerial working group on homelessness has for the first time pledged that no one should spend more than one night out on our streets, supported by the new £20 million homelessness transition fund. The working group will publish its second report on preventing homelessness more broadly later in the spring.

[Baroness Lister of Burtersett]

Will the Minister answer my question? Will the transition fund be ring-fenced?

[Baroness Northover]

Most of the money that goes to local authorities is not ring-fenced. The emphasis is on devolving to local authorities the responsibility for the people in the area. Given the lateness of the hour, I am very happy to write to the noble Baroness more specifically on that point if I have not got it right. I do not think that the money would be ring-fenced but, if I am wrong about that, I shall correct it in a minute or write to her. Nevertheless, that money has been identified to provide funding to address homelessness.

--- Later in debate ---

[Baroness Northover]

There is an ongoing debate about what you ring-fence and what you leave as the responsibility of local authorities. If you give them a responsibility to house their vulnerable local residents—or non-residents—they have to fulfil that obligation. It seems that a bit of clarity of thought is needed here. It is not appropriate to place the responsibility for a squatter on the shoulders of an individual who happens to have an empty property. If that person is well off, he should be paying his taxes, those taxes should go to society and society should look after its vulnerable people. Squatting is not the answer; nor is placing such a responsibility on the shoulders of an individual in that way. That is why it is important that we address squatting but, when a problem such as this is picked up, it is also important that we address the transition issues that my noble friend rightly identified. It is important to see what the implications are and that is why we have placed the emphasis on tackling homelessness. As I said, we have announced the first ever £20 million—

[Lord Strasburger]

I thank the Minister for giving way. Did I hear her argue earlier that one motivation for this clause is to improve the health and safety of squatters?

[Baroness Northover]

Yes, I would say so. I do not think it is right that people should live unprotected. For example, the noble Baroness, Lady Finlay, flags up monitors for heating systems and the dangers involved there. How can anybody be protected or have tenants’ rights if they are squatting? I think we owe it to our citizens to make sure that they are housed properly and that they do not live without that kind of protection, as is the case with squatting. Perhaps I may continue.

On preparing local authorities for commencement, we plan to do a range of things, including working with the National Homelessness Advice Service to provide training for local authorities, raising awareness through regional seminars and websites, and working with Citizens Advice to ensure that home owners and squatters are informed of the changes.

One or two noble Lords asked about the consultation. The vast majority of responses—1,990 out of 2,216—were received via the website of the campaign group Squatters’ Action for Secure Homes. That is fair enough. However, the remainder came from landlords’ associations, local government associations, law firms and so on. We also received responses from individual property owners who had first-hand experience of squatters in their buildings. I have just mentioned the letter that I received yesterday from the deputy leader of Redbridge Council which referred to a couple of cases and the impact on the areas involved.

I was asked by my noble Friend, Lady Hamwee, whether squatters who vacate their squats will be considered intentionally homeless. That is obviously a very important point. Section 191 of the Housing Act 1996 provides that a person becomes homeless intentionally if it is a consequence of something that he or she has deliberately done or failed to do. The accommodation that he or she has left must have been available for their occupation and reasonable for them to continue to occupy. Therefore, it is unlikely that a squat being occupied illegally could be considered as accommodation that is available to be occupied. I hope that my noble Friend is reassured on that point.

I was also asked about whether we could commit to working with Crisis, and we certainly will. We will involve Crisis when we are liaising with the local government department and local authorities on the implementation of the offence. It is very important that that is taken forward. I was asked about the empty dwelling management orders. In January 2011 the Government announced that we would be making changes to those orders. These proposals will limit the authorisation of interim EDMOs to those properties that have been wholly empty for at least two years. They will require local housing authorities to give property owners a minimum notice period of three months before applying to a residential property tribunal for an interim EDMO. They also require the local housing authority to provide all the information that it has on the empty property that is causing a nuisance to the community, and that the community supports the proposal for the local housing authority to take control.

I was asked by my noble friend Lady Hamwee about guidance for the police and the CPS. We will liaise with ACPO prior to commencement on the provision of appropriate guidance, including how the new offence will interact with existing offences in Section 7 of the Criminal Law Act 1977. There were various other points but I shall move on to Amendment 36 and the point about occupying buildings that have been left empty for a year or so.

As I explained, this amendment is problematic for a number of reasons. I explained this on Report and in my letter. There are many reasons why a residential building might be left empty for a year or more, and I have just referred to the letter from Redbridge. Clearly, if a property is inherited following a death or probate is taking a while to sort out, those kinds of issues may mean that a property is empty. Reference was made by my noble friends Lady Miller and Lady Hamwee to the definition of a building. I note that my noble friend has proposed a definition that would sit alongside the current definition in the Bill. We are concerned that that would introduce unnecessary confusion and complexity. We talked about this at our meeting this morning. I am happy to expand on that if required but it is five minutes to 11, so unless noble Lords want to come back to that, I urge them to accept the simplicity of what is there at the moment, which is the right way to go.

I commend my noble friend for her concern for a very vulnerable group of people. As I have just said, it is important to look at this with some clarity in terms of the social responsibility to individuals and how society should ensure that the vulnerable are cared for and housed properly, and that squatting is not the answer. I understand why my noble friend has tabled the amendments and her concerns about unintended consequences of legislation. I hope that she is reassured that we have looked very carefully at the issues that she has raised and that we have sought to address them, in terms of assisting vulnerable people. I therefore hope that she will be willing to withdraw her amendment.

[Baroness Miller of Chilthorne Domer]

My Lords, I am tremendously grateful to all Members of the House who spoke in this debate—which finally had the airing that it deserved, even though it was late—and to all Members of the House who stayed to hear it. It was an incredibly important debate about whether we should choose to criminalise a section of society. Many extremely good points were made and I will not rehearse them all at this hour. One theme that ran through all the speeches was that of unintended consequences.

I entirely agree with my noble friend that it is society’s responsibility to look after the vulnerable—and, I would add, the homeless. That responsibility does not include criminalising them; that is where we part company. However, I see that Amendment 36 is problematic, and I accept the criticisms around the definition of “residential”. We were trying to offer something that was slightly better than what was in the Bill.

Noble Lords concentrated on the issue of what people will do. As my noble friend Lady Hamwee said, the housing is not there and cannot be created in an instant. Therefore, there will be a group of people who will face very difficult decisions about whether to stay in a squat and be criminalised, to sleep rough or to present themselves to their local authority. We keep coming back to the issue of local authorities and consultation. I think that the Minister accepted that consultation with local authorities was the key. The House would feel very reassured if that were put in the Bill.

While accepting that my other amendments are faulty, I will seek in due course to test the opinion of the House on Amendment 41. In the mean time, I beg leave to withdraw Amendment 36.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Northover Excerpts

Tuesday 20th March 2012 Lords Chamber

[Lord Beecham]

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

[Baroness Northover]

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

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

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

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

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

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

--- Later in debate ---

[Baroness Linklater of Butterstone]

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

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

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

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

This is a proper model to follow.

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

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

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

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

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

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

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

[Baroness Northover]

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

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

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

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

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

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

[Lord Avebury]

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

[Baroness Northover]

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

[Baroness Linklater of Butterstone]

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

--- Later in debate ---

Moved by

[Baroness Northover]

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

[Baroness Northover]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Lister of Burtersett]

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Ramsbotham]

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

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

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

[Baroness Northover]

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

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

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

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

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

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

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

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

[Baroness Lister of Burtersett]

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

[Baroness Northover]

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

Amendment 152ZA agreed.

--- Later in debate ---

Moved by

[Baroness Northover]

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

[Baroness Northover]

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Finlay of Llandaff]

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

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

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

--- Later in debate ---

[Lord Beecham]

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

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

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

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

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

They gave as reasons that tackling alcohol in itself,

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

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

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

as that is not correct either. There was,

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

domestic violence—

“cases, including risk assessment and support”,

would make the matter very complex.

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

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

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

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

[Baroness Northover]

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

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

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

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

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

Amendment 152ZC agreed.

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Moved by

[Baroness Northover]

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

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[Lord Beecham]

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

[Baroness Northover]

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

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

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

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[Baroness Hamwee]

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

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

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

[Baroness Northover]

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

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

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

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

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

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

[Baroness Gale]

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

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

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[Baroness Hayter of Kentish Town]

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

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

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

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

[Baroness Northover]

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

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

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

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

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

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

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

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

[Lord Ramsbotham]

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

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Moved by

[Baroness Northover]

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

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[Lord Bach]

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

[Baroness Northover]

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

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

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[Baroness Northover]

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

[Lord Bach]

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

[Baroness Northover]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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[Baroness Miller of Chilthorne Domer]

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

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

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

[Baroness Northover]

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

[Baroness Miller of Chilthorne Domer]

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

[Baroness Northover]

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

[Baroness Miller of Chilthorne Domer]

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

[Baroness Northover]

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

[Baroness Miller of Chilthorne Domer]

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

[Baroness Miller of Chilthorne Domer]

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

[Baroness Northover]

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

[Baroness Miller of Chilthorne Domer]

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

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

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

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

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Northover Excerpts

Wednesday 15th February 2012 Lords Chamber

[Baroness Northover]

My Lords, this clause gives effect to Schedule 20, which amends the PND—penalty notice for disorderly behaviour—scheme by giving the police the power to issue adult penalty notices with an education option, to abolish PNDs for under 18s and to remove some unnecessary constraints on a police officer’s ability to issue a PND.

PNDs were introduced by the Criminal Justice and Police Act 2001, under the previous Government, to provide the police with a swift financial sanction to deal on the spot with low-level offending. PNDs may be issued for a specified range of offences listed in Section 1 of the 2001 Act. They include being drunk and disorderly, as we have heard, in a public place, low-level retail theft, behaviour likely to cause harassment, alarm or distress, and cannabis possession. I would reiterate that, in relation to the concerns mentioned by the noble Lord, PNDs were introduced by the previous Government.

At present the recipient of a PND has 21 days either to pay the penalty amount or to request a court hearing. By paying the penalty amount—currently £80 or £50 depending on the type of offence—the suspect discharges all liability to be prosecuted for and convicted of the offence, and no admission of guilt is required. If the recipient fails to take any action during the 21-day suspended enforcement period, a fine of one and a half times the penalty amount may be registered against them by the magistrates’ court.

Some 76 per cent of adults who received a PND in 2008 did not reoffend within one year. However, we believe that some individuals receiving PNDs would benefit from an educational intervention to reduce the likelihood of them reoffending. That is why we are responding to police requests for suitable PND recipients to be given the option to discharge their liability to conviction of the offence by paying to attend an educational course—where a police force has set up such a scheme—rather than simply paying the penalty amount in full. The noble Lord asked about examples. A number of schemes are operating in various forces, including Hertfordshire where courses are run by a charity called Druglink. It is self-sustaining as offenders pay to attend the courses.

Schedule 20 therefore gives the chief officer of a police force the power to establish an educational course scheme in his or her area and, where such a scheme has been set up, for officers in that area where appropriate to issue penalty notices with an education option. A recipient of a PND with an education option would be able to discharge their liability to be prosecuted for and convicted of the penalty offence in one of two ways. They could either pay the penalty amount in full or pay for and complete an educational course. Of course—I think that this is the key point in answer to the noble Lord—it remains an option to contest their responsibility for the offence by requesting a court hearing. A suspect’s failure to exercise any of these options, including paying for a course but then not attending or completing it, would result in a fine being registered against them at court of one and a half times the amount of the penalty.

PNDs with an education option will be offered only if a course has been set up in that area for the specific offence for which the PND was issued and where the police officer considers it to be appropriate. It is intended that courses will highlight the implications of the suspect’s behaviour, both for him or herself, or for the victim and the community, with the aim of reducing the likelihood of reoffending. For example, an individual suspected of being drunk and disorderly may be offered a PND with an option to attend an alcohol awareness course.

The schedule confers a number of new powers on the Secretary of State to make regulations prescribing the detail of educational course schemes, including the fees that may be set for a course and arrangements for dealing with non-attendance. In addition, and as part of work to develop a clearer national framework for dealing with adult and youth offending out of court, the schedule abolishes PNDs for under 18s. This will simplify youth out-of-court disposals and enable the police to focus on offering disposals that allow rehabilitative and reparative activities to take place. The aim is to prevent further offending and provide greater redress to victims and communities.

Finally, we are also cutting red tape and simplifying frontline police processes by removing the existing requirements that a police officer issuing a PND outside a police station must be in uniform and an officer issuing a PND inside a station must be formally authorised to do so. Both of these requirements are unnecessary. The uniform provision is particularly problematic in plain clothes operations—for example, test purchasing to tackle underage alcohol sales where officers are forced to bring suspects back to the police station to issue a PND. They would still need to demonstrate that they are indeed police officers. I hope that that reassures the noble Lord that there is a protection.

I think that I have covered most of what the noble Lord raised and I hope that Members of the Committee will welcome these improvements to the PND scheme. I would ask that Clause 121 and Schedule 20 stand part of the Bill.

[Lord Beecham]

I am grateful to the noble Baroness for her response and the information that she has given. I still think there is potentially something of a problem with dispensing with the uniform requirement, although I do not know what evidence there is that it has caused actual problems. Will the Minister say whether there will be a review of how the system is working in two or three years’ time to see if it is operating as intended? What stage are we at in terms of the regulations being drawn up that she referred to? Presumably they will come through under the normal procedure for approval.

[Baroness Northover]

In terms of review, the Government’s position is always to keep legislation under review and to take steps to deal with issues that arise, so obviously if the kind of concerns flagged up by the noble Lord are seen to develop, that would be picked up in any kind of review. I am sure that the regulations coming through will follow the normal procedures and that we will have all sorts of things to consider, but if I am not right about that, I shall write to the noble Lord.

Clause 121 agreed.

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[Lord Beecham]

My Lords, given the time, happily this is a short amendment. The Police and Criminal Evidence Act 1984 established that people under the age of 17 years are to be treated as children and therefore have to be questioned or interviewed in the presence of an appropriate adult, but people of 17 years of age and up to 18 are not treated in the same way. The Government have dealt with what has been an anomaly about treating 17 year-olds as adults for the purposes of bail, and that has now been changed to lift the age to 18. It would seem to be consonant with that approach if the appropriate adult provision was also extended from 17 years of age to 18. This is a straightforward matter and I should say that the Prison Reform Trust, in which I declare an interest as a member of its advisory group on youth offending, strongly urges that this should be dealt with in the same way as the bail situation. Incidentally, the trust extends its thanks and praise to the Government, so if they want another round of thanks and praise, they merely have to accept this amendment. I beg to move.

[Baroness Northover]

My Lords, how very kind of the noble Lord. Youth cautions are specifically designed for young offenders and the provisions in Clause 124 underline our approach to the prevention of offending by children and young people by providing assessment and rehabilitative programmes through specialised youth offending teams. The noble Lord has flagged up the suggestion that appropriate adult provisions should be extended to offenders above the age of 17.

Work is under way in the Home Office, the Youth Justice Board and the Ministry of Justice to look at the possibility of extending the appropriate adult scheme for all under-18s in the criminal justice system. However, we will need to consider fully the resource implications before any change can be made. At the moment, we feel that the scheme needs to remain as it is, but we keep it under review. For the reasons I have set out, I urge the noble Lord to withdraw his amendment.

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Moved by

[Baroness Northover]

185B: Clause 124, page 107, line 29, after “instrument” insert “(whenever passed or made)”

[Baroness Northover]

My Lords, I shall speak also to Amendments 185C, 185D and 185E. These are minor and technical amendments relating to youth cautions. I beg to move.

Amendment 185B agreed.

Moved by

[Baroness Northover]

185C: Clause 124, page 107, line 36, after “instrument” insert “(whenever passed or made)”

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Moved by

[Baroness Northover]

185E: Schedule 21, page 228, line 21, at end insert—
“Terrorism Prevention and Investigation Measures Act 2011 (c. 23)30 In Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011 (fingerprints and samples), in paragraph 10(1)(a) (circumstances when an individual is to be treated as having been convicted of an offence)—
(a) at the end of sub-paragraph (ii) insert “or”, and(b) omit sub-paragraph (iv) and the “or” preceding that sub-paragraph.”

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Northover Excerpts

Thursday 9th February 2012 Lords Chamber

[Baroness Northover]

My Lords, we understand the intention behind the amendments of the noble Lord, Lord Ramsbotham, and are very sympathetic to his concern for children and young people. The welfare of a child or young person securely remanded is clearly very important. Extending looked-after child status to all those under 18 who are securely remanded, as we are doing in Clause 97, proves our commitment to that.

However, the Government believe that the current age threshold for secure remand of a child should remain at 12. Serious offences are sometimes committed by 12 and 13 year-olds. They present such a risk of harm that the court may come to the decision that a remand to secure accommodation is necessary to protect the public. We do not think that this decision is one that local authorities should be making, which would be the only alternative. It is not fair to impose this burden of responsibility on local authorities.

Amendment 178ZZAZA, however, raises quite different issues. It is inconsistent as between non-extradition and extradition proceedings. The noble Lord, Lord Beecham, has flagged up some of those inconsistencies. In the former, the age threshold for electronic monitoring of children remanded to non-secure local authority accommodation would be raised from 12 to 14 years. In extradition cases it would remain at 12 years of age. A similar inconsistency would arise depending on whether the child or young person is on bail or remanded to non-secure local authority accommodation. The age threshold is currently set at 12 years in both circumstances, but this amendment would raise the threshold to 14 years in respect of remands to non-secure local authority accommodation only. Furthermore, by removing the power of the court to use electronic monitoring in respect of 12 and 13 year-olds, the amendment could have the effect of more young children being remanded in secure accommodation. The availability of electronic monitoring can be the deciding factor in a court giving bail to a young offender.

Younger children are more likely to have risk factors that can be managed in the community with appropriate conditions and electronic monitoring to ensure compliance. Removing the power to monitor electronically children under the age of 14 would create a gap in the powers of the court to manage properly some children aged 12 and 13 who, regrettably, engage in serious criminal behaviour. Such monitoring is an essential tool for ensuring the compliance of children who do not meet the test for a secure remand but who nevertheless pose a risk of further offending. This risk is best met with a remand to local authority accommodation subject to curfew.

In terms of extradition, we are making provision for a hypothetical position in respect of a child subject to extradition proceedings. This will ensure fair treatment. I therefore urge the noble Lord to withdraw his amendment.

[Baroness Whitaker]

I apologise for not being here at the start of the debate. Has the Minister’s department carried out any research into the influence of the peer group on young offenders aged from 12 to 14? There can be very sympathetic officials in the institutions which hold these young people but the problem is that they get influenced, if not abused, by most unwholesome characters. I draw on rather out-of-date experience as a magistrate, but that was always a concern. If the Minister does not have the information now perhaps she could write.

[Baroness Northover]

I am happy to write to the noble Baroness. Of course she is absolutely right. We know very well that the influence of peer groups is a very important issue.

[Lord Beecham]

I thank the noble Baroness for the information that was conveyed to her from the Box but it does not quite reach the point that I was making. The point was that if the country to which the child is being extradited does not apply electronic monitoring, should we be doing it? That was my question, but I am not asking for an answer now.

[Baroness Northover]

I am very happy to write to the noble Lord on that point.

[Lord Ramsbotham]

I am grateful to the Minister for her reply and grateful too for the intervention from the noble Baroness, Lady Whitaker, and the noble Lord, Lord Beecham. I said at the beginning that I am glad to see the reforms that are implicit already in Clauses 91 to 94 but, as I am sure the noble Baroness realises, there is disquiet over the use of electronic monitoring for extended periods, particularly for young people. I suspect that this will return on Report, if not with my amendment then in connection with Clause 75, which was discussed on Tuesday. I am grateful that obviously work has been done to produce the answers to these probing amendments. In that spirit and with gratitude to the Minister I beg leave to withdraw the amendment.

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Moved by

[Baroness Northover]

178ZC: Clause 100, page 77, line 12, leave out “committed on or after 4th April 2005”

[Baroness Northover]

My Lords, this package of amendments will give effect to the second stage of the Government’s approach to the simplification and clarification of the current release and recall provisions for determinate sentenced prisoners by bringing these provisions together within a single statute—the Criminal Justice Act 2003.

The current release and recall provisions are spread across a number of different statutes, subject to commencement orders with complex transitional and savings provisions and subsequent amendments. This has created an extremely intricate and unwieldy web of legislation which is very difficult to follow, even for criminal justice experts and practitioners. This in turn has been heavily criticised by the courts and calls have been made for the Government to simplify the provisions.

The first step in our approach to achieve this simplification was to introduce the provisions contained in Clauses 100 to 112 of Chapter 4 of the Bill. These amend the current 2003 Act provisions to establish the single regime that will apply to those sentences imposed on or after commencement.

The second stage of our approach, which is what this package of amendments will do, is to consolidate within the 2003 Act those provisions of the Criminal Justice Acts 1967 and 1991 that will be required to continue to apply to those prisoners who, at the time of commencement, are subject to the release arrangements of those previous statutory regimes. We have no intention of making substantial changes to the way in which the sentences of those existing prisoners operate and so these amendments do not change the release dates or licence lengths for those current prisoners. In practice, this means saving the current release regimes for the few remaining 1967 Act prisoners; 1991 Act prisoners serving long-term sentences of four years or more for sexual or violent offences—often known as “DCR” prisoners; and for current 2003 Act extended sentence prisoners. Going forward, however, all sentences imposed on or after the date of commencement will be subject to the 2003 Act release and recall arrangements, as amended by the provisions in this Bill, regardless of the date that the offender committed his or her offences.

That is the broad effect of this package of amendments. I would be happy to explain what each of the amendments does should your Lordships find that helpful, but in the interests of keeping my explanation to a minimum I propose simply to highlight the main features. I can assure your Lordships that, while these amendments are long and technical, they do not make substantive changes to the current release arrangements. They are intended mainly to make the legislation itself clearer, easier to follow and less open to misinterpretation.

Two new schedules will be inserted into the 2003 Act—the content of these make up the bulk of the amendments. The first, Schedule 20A, makes amendments to other statutes that are consequential on the amendments made to the 2003 Act. It also contains transitional provisions to allow prisoners released under the 1991 Act to be deemed to have been released under the 2003 Act, while preserving their current licence length. The second, Schedule 20B, reproduces within the 2003 Act the elements of the 1967 and 1991 Act release regimes that need to be preserved for those prisoners already serving these types of sentence. In other words, it achieves the consolidation of all the current release provisions into a single statute.

Connected to the introduction of new Schedule 20B, our intention now is to remove Clause 112. The clause contains a power to allow the Secretary of State to make an order by secondary legislation to bring the release and recall provisions of the Criminal Justice Acts of 1967 and 1991 into the 2003 Act. But with the introduction of these amendments, and Schedule 20B in particular, that consolidation now will be achieved on the face of the Act so that the order-making power is no longer necessary and can be removed. I commend this package of amendments to your Lordships and I beg to move.

[Lord Beecham]

My Lords, I welcome the clarification that this range of amendments brings about. I am particularly glad to see the mea culpa stance over Clause 112 standing part and hope that this presages greater use of the procedure whereby the Government withdraw proposals which are not satisfactory. I trust that this is the first swallow of a summer of such arrivals.

European Convention on Human Rights

Baroness Northover Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Mayhew of Twysden]

My Lords, I shall look forward to that intervention.

I begin by expressing my gratitude to the noble and learned Lord for giving us the opportunity to debate this topical and extremely important subject. Unfashionable though it may be, I remain glad that our country has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is not often recalled—I was very glad to hear the noble and learned Lord do so a few moments ago—that we did so by one of the first acts of Sir Winston Churchill’s second Administration. We were the first of the member states of the Council of Europe to do so.

Like many of your Lordships, I am old enough to recall, and to have shared in, the surge of international idealism that flowed from the full realisation of the horrors that had been experienced in the recently concluded world war, and which had been inflicted on human beings before and during it. Those horrors had been inflicted by tyrants upon victims in a Europe that had lacked the political will to formulate, let alone enforce, any statement of their basic rights as human individuals. On all sides the determination was “never again”. So uncontroversial was the new convention, that to the best of my knowledge its ratification was never debated in Parliament. Though we became one of 12, our particular participation as a country was, I believe, to offer oppressed people elsewhere in Europe and beyond a beacon of hope and faith. From it they took heart and strength.

More controversially, however, I am also glad, though more critically, that 60 years later we remain bound by the convention, and that the coalition Government have declared that we shall continue to be so bound. That is not to say that there is not an urgent need for reform. In 60 years there have evolved, in large part with the consent of the member states, very significant changes to structures and jurisdiction. Whereas initially there was no court but only a Commission and a Council of Ministers, now the Strasbourg Court is at the heart of the convention, and, it must be said, at the centre of its problems. There is, for example, the horrifying and absurd backlog of applications to the court. Perhaps predominantly, there is the popular conception, which some of the court’s decisions have allowed to develop, that its decisions are typically out of touch with reality and with what is sensible. It is very damaging, surely, that this development should have led an authority of the stature of the noble and learned Lord, Lord Hoffmann, the former Law Lord, to be reported as saying that

“human rights have become, like health and safety, a byword for foolish decisions by courts and administrators”.

He has written that,

“the Strasbourg court has taken upon itself an extraordinary power to micromanage the legal systems of the member states of the Council of Europe”.

The Justice Minister, on behalf of the Government, has endorsed—though more gently—the thrust of that criticism. I think that there is much of which complaint in a similar vein can be made in the development by the court of its own jurisprudence. But it has been unfair in the main. Here I very gladly follow what the noble and learned Lord has just said. It has been unfair to attach that criticism to our own judges, who are obliged under the Human Rights Act 1998 to “keep pace with” the jurisprudence of Strasbourg.

It is not therefore wholly apt—to put it mildly—merely to assert that human rights should be determined by Parliament, not by judges. Whatever the words employed by Parliament, it will always fall to the judges to interpret and apply them to each individual case that comes before them.

Nevertheless, something must be done, and it is easy to understand how impatience can give rise to the answer, “Have done with the convention and all its works. Renounce it and make a fresh start”.

I believe that such a course would be an act of almost wanton destruction. Just as the convention itself derived from international determination to remedy for individuals the absence of legal protection against tyrannical abuse, so its renunciation by this country, of all countries, would tragically undermine the valiant efforts of protestors everywhere to secure basic rights and freedoms for themselves. That would be hard to forgive.

The wiser course, surely, is that now adopted by the coalition Government: the appointment of the commission in March to investigate the creation of a UK Bill of Rights that incorporates and builds on our obligations under the ECHR, ensures that those rights continue to be enshrined in UK domestic law and protects and extends our liberties.

It has been our destiny to be, for oppressed millions, a beacon of hope and faith. We can and must remain true to that destiny.

[Baroness Northover]

I would remind noble Lords—and my noble and learned friend was admirably within time—that this is a time-limited debate. When the clock hits seven, noble Lords have completed their seven minutes. We also have a noble Lord who wishes to speak in the gap.

Civil Legal Aid

Baroness Northover Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, there is no point in cutting legal aid if the effect is to increase government expenditure in other areas and at the same time deny access to justice. The Green Paper proposes a radical reduction in the scope of private family law issues for which legal aid will be available. That policy is based on a false premise; namely, that spending on legal aid fuels litigation and that the only alternative is mediation.

Family lawyers, as a group, are committed to settling cases out of court as expeditiously as possible, often by referring clients to mediation, but, more frequently, negotiating settlements themselves. In my early days as a solicitor, I was much involved in that sort of work. The Green Paper entirely neglects the current important role of lawyers in non-court-based resolution of legal disputes, particularly financial and custody disputes. It is very probably because clients were able to see a solicitor that litigation was avoided in many cases. Without professional guidance, ill founded and certainly ill prepared litigation conducted by the client in person will inevitably follow. That will mean a very substantial rise in the number of litigants in person in the family courts. Sir David Norgrove, chair of the Family Justice Review panel, in his interim report, which was published recently, has emphasised this point.

Those who lack the personal energy and other resources to take on litigation by themselves would not get access to justice at all. Those who have not been able to enforce the other party’s private law responsibilities for support and so on inevitably fall back on the state for housing and support, so that is where more state expenditure is incurred. One reason why mediation is currently successful is that the threat of litigation encourages people to adopt sensible positions in mediation or in settlement discussions. With that threat effectively removed in many cases by the removal of public funding for legal representation, successful mediation will be severely hampered.

Legal aid is to be granted where there is physical violence. There is an obvious perverse incentive for people to allege domestic violence just to get access to funding for their other issues. The other side to the argument could say, “Well, I never did that”, which will increase more contested court proceedings. Many women who do not disclose domestic violence that they have suffered, or refuse to apply for injunctive relief in relation to it, will not get a proper and safe resolution of the issues. The very class of person which the Green Paper most wants to protect will be left unprotected and in potentially extremely dangerous situations. Domestic violence very often comes to light only through the lawyers’ handling of the case when they learn it from a client who has kept it concealed from their family. Mediation in such cases will not work and should not be tried at all.

Medical negligence cases have played a very important role in improving health care by setting standards, publicising deficiencies and punishing failures. The thalidomide case is a very good example. In many cases, new procedures have been introduced and developed as a result of litigation. According to the Green Paper, taking clinical negligence out of legal aid would save £17 million.

Of the 500,000 avoidable incidents in England alone, as estimated by the DoH in 2009-10, the National Health Service Litigation Authority received only 6,652 claims. Expert solicitors who handle these claims will decide in 75 per cent of them that there is no case. Sometimes there is negligence but no injury and sometimes there is injury but no negligence. It is not possible to assess the chances of success in clinical negligence cases at the start of the case. There must be funding to find out if there is a case and for the higher cost cases. I follow the noble Lord, Lord Faulks in his pointing out that whether the issue is negligence or causation, expensive expert medical evidence is required to establish a basis for the claim before a decision to proceed is made.

The Government propose to remove legal aid for clinical negligence at the same time—I repeat, at the same time—as changing the no-win, no-fee agreements. I am grateful to the noble Baroness, Lady King, who pointed out to me that children who were said to be still covered for clinical negligence cases are not to be, on which I am sure she will expand. When Sir Rupert Jackson published his proposals, he said:

“I stress the vital necessity of making no further cutbacks in legal aid availability or eligibility … the maintenance of legal aid at no less than the present levels makes sound … sense and is in the public interest”.

His proposals are based on the continuing existence of legal aid. Its removal will deny access to justice to some of the most vulnerable groups in the country—children, the sick and disabled. The need to streamline costs and for systems to be efficient should not be at their expense.

[Baroness Northover]

Perhaps I may remind noble Lords that this is another time-limited debate. When the clock reaches the five, noble Lords have had their five minutes.

Parliamentary Voting System and Constituencies Bill

Baroness Northover Excerpts

Wednesday 15th December 2010 Lords Chamber

[Lord Falconer of Thoroton]

This provision introduces civil sanctions in relation to criminal offences set out in Schedule 9. As I understand it, the criminal offences, of which there are 12 in paragraph 8, are designed to ensure that either permitted participants or authorised—

Sorry, there is not much point me asking a question if you are chattering away.

[Baroness Northover]

I have got two ears.

[Lord Falconer of Thoroton]

She has got two ears. I agree with that. I will go on. I am sure that the fact that she has two ears has some significance to the story.

There are 12 offences identified in paragraph 8. The purpose of the offences, as I understand it—though I stand to be corrected by the Minister—is that the only people who should be spending money in relation to the referendum are either permitted participants or authorised participants. Therefore the purpose of the criminal offences is to prevent expenditure by anyone other than those people. The way that this is dealt with, as a matter of the criminal law, is to say that if there is a transaction where in effect somebody else’s money is spent, either directly or through a permitted participant or an authorised participant, it is made a criminal offence by paragraph 8 of Schedule 9.

The essence of each of the criminal offences, as I read them—again, I stand to be corrected—is that you have to know if you are committing a criminal offence that either as an authorised or a permitted participant you are using somebody else’s money or as an individual providing the money you know that you should not be spending it on the referendum. Know or ought to know, I should say. What I am interested to know, and that seems a perfectly sensible structure, is what the circumstances are in which it will be decided to bring criminal proceedings and what the circumstances are in which it will be decided to employ a civil sanction. Obviously it will depend on the facts in every case but if know or ought to know is part of it, what distinctions will people rely on in order to determine whether it is civil or criminal? This will be important, because paragraph 8 is obviously intended to be a deterrent to people from breaking the law in relation to the limits that apply—