Serious Crime Bill [Lords]
Debate between Lord Garnier and Karen Bradley(9 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Karen Bradley
If my hon. Friend does not mind, I will come back to those points when I have heard all his comments. I will respond to all his concerns together, if that is acceptable to him.
New clause 23 would create a new offence of throwing an article or substance into a prison without authorisation. It is designed to address the significant and increasing problem of the presence of new psychoactive substances in our prisons. In applying to any article or substance, the new offence will also capture wider threats to prison security and good order. It will add to the existing criminal offences in the Prison Act 1952, which make it an offence for a person to convey into a prison certain specified items, including controlled drugs, alcohol or mobile phones without authorisation. The maximum penalty for the new offence will be two years’ imprisonment, sending a clear message to would-be traffickers.
Karen Bradley
We feel that it is important to have the ability to deal with the problem in criminal law. We have identified it as a problem, and we want to ensure that we can deal with it.
Government amendment 1 does not require much explanation. It is a technical amendment to the provisions in part 4 of the Bill relating to the seizure and forfeiture of substances used as drug-cutting agents. It simply provides that in Scotland, applications to a sheriff under clauses 60, 61, 63 and 64 must be made by summary application, as distinct from other forms of application such as an initial writ or small claim.
I commend the Government amendments and new clauses to the House. I look forward to hearing what right hon. and hon. Members throughout the House have to say about their new clauses, and to responding to them.
Sir Edward Garnier
My hon. Friend is unnecessarily modest in his ambitions. Instead of proposing 31 days, he might have proposed any such other period as the court might think just in all the circumstances. The thrust of his argument is, however, unassailable and I wish him well with his discussions with the Government. New clause 28 makes a good deal of sense.
I am honoured to be a co-signatory to new clause 18, particularly having just heard the speech by my hon. Friend the Member for Esher and Walton (Mr Raab). He has experience not only as an international lawyer but as someone who has prosecuted in some pretty terrible cases dealing with crimes in the former Yugoslavia. When he speaks, we should listen, pay attention and follow what he has to say, and what he had to say tonight was unimpeachable. I stress, as he did, that if we are to exclude people—be they foreign nationals or, under the current legislation, our own nationals—we should know who they are. Secret justice is not justice.
The new clause contains a proposed new subsection that would allow the Secretary of State to defer publication of the name of the excluded person on particular grounds. I suggest that that proposal would deal with any problems that anyone might suggest the new clause could create. The reason he has never received a cogent answer to his questions to Ministers and officials is that there is not one, and he has highlighted that. The Government should therefore have a little think about what he had to say and what is contained in his new clause.
I would say only one thing about new clause 24, and I am sorry that the hon. Member for Hayes and Harlington probably will not agree with me on it, albeit that we are both pretty keen on the freedom of the press. The code of practice would be an altogether more attractive concept if I could actually read it and see what it said before this thing came into legislation. The Minister properly spoke about the time limits surrounding us as we move towards the general election in May, but I used to complain in opposition, I complained in government and I complain now that secondary legislation, statutory instruments and codes of practice are subsidiary rules that hang in locked boxes from legislative trees and are not a good thing. If we are to persuade people that this measure is a good thing, we should have sight of the code of practice as soon as possible. I know that Ministers never want to commit themselves to time schedules, but this is an example of where, before the general election and before this Bill becomes an Act, we should see the fruits of the consultation process and what the code of practice should look like.
Finally, and with a degree of diffidence, I wish to discuss new clause 23. When I intervened on the Minister to ask what offences the new clause would add to, I was not given an answer—well, I was given an answer, but not to the question I asked. I was not surprised by that, because I, like my hon. Friend the Member for Esher and Walton, suspect that there is not an answer. This is what I call an early-day motion new clause. It is what is called, “Government sending out a message.” Governments can send out messages, but they do that on television, on the radio and in the newspapers, and they get their spin doctors to do it; legislation is supposed to be clear, non-repetitive and able to be clearly understood by the prosecuting authorities, the police, the courts and those who might be tempted to commit the offence that the clause hopes to describe.
I assume that an offence of “Throwing articles into prisons” is intended to prevent or persuade people not to throw caches of drugs, razor blades, mobile telephones and other contraband over prison walls or into prison property—so far, so good. We all know that that is already a crime, not just under the Prison Act 1952, but under various other pieces of criminal legislation. To take a ludicrous example, if I were to throw a copy of the Prison Act 1952, as amended, over the walls of Gartree prison in my constituency, would I be caught by this? On the face of it I would and I would be liable, on indictment, to a term of imprisonment
“not exceeding two years or to a fine (or both)”.
Sadly, the magistrates court does not exist in Market Harborough any more and I would have to be carted all the way to Leicester to be, on summary conviction, imprisoned for up to 12 months or given a fine.
It appears from the new clause that if I were to throw not “The complete works of William Shakespeare”, because that is a heavy volume, but a Shakespeare play over the prison wall, I would be committing an offence. I went to 65 of the prisons in England and Wales when I was a shadow spokesman responsible for prisons in the period leading up to the 2010 election, but I never went into or came out of a prison, young offenders institution or secure training unit without being wholly aware of the notices on the gates setting out what it was unlawful to bring into those places. Even though it might be suggested that lobbing a benign article such as “The complete works of William Shakespeare” over the prison wall was something done with an overriding public interest or with some other legitimate excuse, I do wish we could stop passing legislation that already exists just because it feels like a good thing to do. If we are going to take up the time of Ministers and officials in drafting this sort of stuff, why do we not draft something useful like new clause 18, proposed by my hon. Friend the Member for Esher and Walton, and get that into legislation, rather than this sort of guff?
Karen Bradley
Given the time and the debates that I know are to follow, I shall endeavour to answer as many points as I can, but it is highly likely that I will be brief in my comments. I will, however, commit to write to right hon. and hon. Members should I fail to address specific points in this quick winding-up speech.
I did refer to the hon. Member for Hayes and Harlington (John McDonnell) and I hope he will have a look at that. He talked about the notification of journalists whose communications data are sought. It has never been the practice in this country for those whose communications data are sought to be notified, and we do not intend to depart from that. However, as he recognised, this matter will need to be dealt with in the next Parliament. We have today published a draft clause which provides for judicial authorisation in cases where communications data are sought for the purpose of determining a journalistic source. No doubt he will take the opportunity that future legislation will present to press his point again. I think we all agree that the solution we have before us today is not the perfect one, but we want to legislate in some way before the election and this is the most appropriate and perhaps only way we have of doing so.
The hon. Member for Kingston upon Hull North (Diana Johnson), the shadow Minister, asked why the Government did not seek to extend the scope of the Bill. We took advice from the Public Bill Office on whether it would be possible to extend the scope through an instruction and thereby enable a Government new clause to be brought forward to give fullest effect to the interception of communications commissioner recommendation. The Public Bill Office advised that the scope of the Bill could not be extended in that way. We tried, but, unfortunately, that was not possible.
My hon. Friend the Member for Cambridge (Dr Huppert) asked about the timing of the production orders. The code will put in place the requirement to use production orders in cases where communications data are sought for the purposes of determining a journalistic source. The shadow Minister, also asked about the detail of the code of practice. We will shortly publish a revised code of practice that takes account of both the consultation responses and the recommendations of the IOCC. It will contain more detail on the factors to be considered in cases involving journalistic sources.
My hon. and learned Friend the Member for Harborough (Sir Edward Garnier) talked about the throwing of packages over the wall. I have to tell him that in 2014 approximately 250 cases of new psychoactive substances being thrown into prison were recorded, compared with just 36 cases the previous year. There has been a significant increase in that number and in minor disorder and assaults in prison over the past year, and increased NPS use has been linked to some of those incidents. New psychoactive substances are not currently controlled drugs, which is why they do not fall within the legislation we would normally use.
Karen Bradley
I hope my hon. and learned Friend will not mind if I do not take an intervention from him at this stage, just so that I can ensure we get on to the next group.
New clause 18 was tabled by my hon. Friend the Member for Esher and Walton (Mr Raab) and we have discussed this point in Westminster Hall. He will be familiar with the tribunal decision to uphold the Home Office and Information Commissioner’s decision on the neither confirm nor deny response to a freedom of information request on information held by the Department. It is a long-standing policy of this Government not to disclose the details of individual immigration cases, including in respect of those excluded from the UK. New clause 18 would have serious implications for the security of our borders and therefore to the national security of the country.