Sex Offenders Register

Baroness Neville-Jones Excerpts

Wednesday 16th February 2011 Lords Chamber

[The Minister of State, Home Office (Baroness Neville-Jones)]

My Lords, with the leave of the House, I would like to repeat a Statement made earlier today in another place by my right honourable friend the Secretary of State for the Home Department.

“The sex offenders register has existed since 1997. Since that time it has helped the police to protect the public from these most horrific of crimes. Requiring serious sex offenders to sign the register for life—as they do now—has broad support across this House. However, the Supreme Court ruled last April that not granting sex offenders the opportunity to seek a review is a breach of their human rights—in particular, the right to a private or family life. These are rights, of course, that these offenders have taken away from their victims in the cruellest and most degrading manner possible.

The Government are appalled by this ruling, which places the rights of sex offenders above the right of the public to be protected from the risk of reoffending, but there is no possibility of further appeal. This Government are determined to do everything that we can to protect the public from predatory sex offenders and so we will make the minimum possible changes to the law in order to comply with this ruling.

I want to make it clear that the court’s ruling does not mean that paedophiles and rapists will automatically come off the sex offenders register. The court found only that they must be given the right to appeal. The Scottish Government have already implemented a scheme to give offenders an automatic right of appeal for removal from the register after 15 years. We will implement a much tougher scheme.

Offenders can apply for consideration of removal only after waiting 15 years following release from custody—in England and Wales there will be no automatic appeals. We will deliberately set the bar for those appeals as high as possible. Public protection must come first. A robust review, led by the police and involving all relevant agencies, will be carried out so that a full picture of the risks to the public can be considered.

The final decision on whether an offender should remain on the register will be down to the police and not, as in Scotland, the courts. The police are best placed to assess the risk of an offender committing another crime and they will rightly put the public first. There will be no right of appeal against the police’s decision to keep an offender on the register. That decision will be final. Sex offenders who continue to pose a risk will remain on the register and will do so for life, if necessary.

Where we are free to take further action to protect the public, we will do so. We will shortly be launching a targeted consultation aimed at closing down four existing loopholes in the sex offenders register. We will make it compulsory for sex offenders to report to the authorities before travelling abroad for even one day. This will prevent offenders from being free to travel for up to three days as they are under the existing scheme. We will force sex offenders to notify the authorities whenever they are living in a household with a child under the age of 18. We will require sex offenders to notify the authorities weekly as to where they can be found when they have no fixed abode. Also, we will tighten the rules so that sex offenders can no longer avoid being on the register when they change their name by deed poll.

Finally, I can tell the House today that the Deputy Prime Minister and the Justice Secretary will shortly announce the establishment of a commission to investigate the creation of a British Bill of Rights, for it is time to assert that it is Parliament that makes our laws, not the courts, that the rights of the public come before the rights of criminals and, above all, that we have a legal framework that brings sanity to cases such as these. I commend this Statement to the House”.

My Lords, that concludes the Statement.

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[Baroness Neville-Jones]

My Lords, perhaps I may deal first with the noble Lord’s last point about the attitude of the Government to the courts. Of course the Government respect the role of the courts. It is precisely because this is a law-abiding Government who respect the rule of law that we do not regard it as a practical option not to bring forward legislation to ensure that we are compliant with a ruling of the court. Nevertheless, there is extremely strong sentiment in the country, which the Government share, about the need to protect the public against the marauding activities of sex offenders, who display great ingenuity in the way in which they go about their offence. It is extraordinarily important therefore to have in place a robust system for the management of those offenders who are not in custody.

The noble Lord raised a number of practical points, which I shall try to answer. We certainly agree with him that priority should continue to be accorded to the safety of the public, which is the purpose of today’s Statement. We certainly agree that rights of families remain paramount. Damage can be done to young people by offenders of this kind which lasts for the whole of their lives. We must bear in mind these considerations when we look at the management of offenders in this category.

The noble Lord asked about the factors that would be taken into account in any review process. Perhaps I might explain how that might work. The offender will have the right under this scheme to ask for a review after 15 years. That review will be conducted by the police—it would obviously be a senior policeman—taking into account all the information that they have at their disposal about the behaviour of the individual, what assessment they are able to make of the likelihood of further offence, the gravity of the offence in the original instance and any other relevant consideration before coming to a view.

If the police reject the application for removal from the register, the individual will have the right to ask for that to be looked at again, but there will not be recourse to the court. They will be allowed to present any further factors that they consider the police have not taken into account in coming to their view. The individual concerned will therefore have an opportunity to say why they should be released from the obligations involved in being on the register.

The parliamentary process will be accomplished via remedial order in relation to the Human Rights Act. It will be a remedial order of a non-urgent kind. That means that an order will be made available for public examination as soon as the Government are able. The Joint Committee on Human Rights will have the opportunity, as will Members, to make comments and put across their viewpoint during that process. The Government will then take into account the views that have been put forward. The order will then be laid for another 60 days, after which there will be a normal parliamentary process by affirmative action before the order in whatever form it emerges is adopted. We expect that parliamentary process to be completed sometime in the autumn.

We are looking at the desirability of guidelines for the police. I agree that it would be sensible to have them.

I think that I covered the various points made by the noble Lord. If I have not done so, other Members of the House will no doubt pick me up on it.

[Baroness Hamwee]

I have the same concern as that expressed by the noble Lord, Lord Hunt, about the language used in parts of the Statement. We know how important language is in this area—for example, those who hear what they want to hear manage to ensure that paediatricians are driven out of their homes. One has to be terribly sensitive. On the review and the consultation, I hope that the language of the Statement does not indicate that the outcome of the review is entirely predetermined. Will the views of the trial judges—who, after all, have heard the facts of each case—and of NOMS, whose job, in part, is to assess prisoners for parole, be considered? The offences of those who are covered by the Sexual Offences Act and subject to inclusion on the register cover a very wide range; it must also be the case that there is very wide range of risk of reoffending.

[Baroness Neville-Jones]

It will be a proper consultation and, obviously, noble Lords and others will be free to put forward their views. On the evidence and information that will be taken into account by the police in the review, I can confirm straightaway that the MAPPA process, NOMS and those who have relevant information will be involved. It is right that NOMS has considerable experience of probationary periods, and the police will be under an obligation, which I am sure they will understand, to make the review both fair and thorough.

[Baroness Kennedy of The Shaws]

My Lords, it is deeply depressing to revisit this way of dealing with decisions made by the courts. It is familiar to those of us who are lawyers because we had to endure it under the previous Government, when tomorrow’s headlines dictated the way in which they responded to a wholly reasonable decision by the courts. In this case, the court decided that there should be an obligation to ensure that people have the right to appeal. It in no way suggested that paedophiles should be removed willy-nilly from the register.

There are occasions where someone should be able to appeal. For example, a young man in his 20s has sex with an underage girl and is put on the sex register. When he is a man in his 40s—married, with a family and holding down a job—it may seem reasonable to him that his name should be removed from the register on which it was placed for something that he did with an underage girl when he was in his early 20s. That is the kind of offence that the court envisaged when it said that there should not be a blanket situation where there can be no appeal whatever.

The reasonable response of the Government would have been to say clearly that an opportunity to appeal should be available, that it will be rarely used but that they support its existence. That is the position that the Government should have taken. I always get the feeling that there is something in the drinking water at the Home Office that makes sensible people lose their nerve and good sense when it comes to these matters.

As to the comment on the need for a Bill of Rights, how would the situation be any different if, as I have heard government Ministers say, all that is contained in the current European Convention on Human Rights would be in a British Bill of Rights, but with additional matters included? If that were the case and the Article 6 protections of due process, under which this kind of appeal, in given circumstances, is available, were included, how would it be any different? I suspect that this would be available in a British Bill of Rights, as it is now. Surely good sense should have been the response of the day.

[Baroness Neville-Jones]

The Government regard what they are doing as bringing them into compliance with their obligations under the Human Rights Act. Therefore we do not envisage that the work of the Commission—and of course the terms of reference have yet to be agreed—would be affected by what we are doing here.

The Government have put in place a review process. Sex offences are extremely difficult to make judgments about and we believe that those who are involved in their rehabilitation, NOMS and the police, who will have had the obligation to supervise their conduct in the interim, are better placed to do that than the courts. That is why we have instituted the review of the process that we have put in place. I also rely on London tap water—I find it keeps me entirely sane.

[Lord Mayhew of Twysden]

My Lords, I ask my noble friend to come back once again to the last sentence of this Statement and its rather combative tone, where it says that it is time to assert that it is Parliament that makes our laws, not the courts. Will she accept from me that I know of no case whatever in which a court has questioned, let alone rejected, that statement of constitutional functions; and that the court’s function is to apply laws, either made by Parliament or specifically adopted by it?

[Baroness Neville-Jones]

Indeed, and we are saying that it is the correct moment to reassert the constitutional principle.

[Lord Prescott]

There is no doubt, as has just been said, that it is Parliament’s right to make the laws and the courts’ to interpret them. However, what worries me most of all, as with the Statement in the other place regarding prisoners, is the difficult issue about private and personal rights and about freedoms. In our Human Rights Act, that is a balance between Article 8 and Article 10 as well as other articles. That is to be interpreted by the courts—in this case, our Supreme Court. Presumably they will not be saying similar things about the judges in this particular case as they said about the Council of Europe.

If a new bill of rights is to be considered, presumably that balance between the public and private interest has to be established. Who will determine what that balance is? Will it be the Government, reacting to the publicity about certain unpopular cases? Or will we leave it to the judges to make their decisions, and, if we disagree, change the law? At the moment the Government seem to be running before the publicity, and then, as with the prisoners’ case, saying, “We back the Court of Human Rights”. That is the judgment we are facing today. I worry about the attitude of this Government in respect of personal rights.

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[Baroness Neville-Jones]

Perhaps I could point out to the noble Lord that this piece of legislation, which the courts have decided is not entirely proportionate, was passed under our predecessors, the Labour Government. This Government, in the light of the Supreme Court’s judgment, are now putting in place a mechanism that we believe will restore proportionality that evidently the courts thought was lacking.

[Lord Carlile of Berriew]

I apologise to my noble friend for interrupting her earlier. Given the real and perceived importance of this issue, will my noble friend help the House by explaining why the Government feel that it is best to deal with this by a remedial order, which, although there would be consultation, is not capable of any form of amendment? We have until the end of the year to deal with this and the matter could better, one might suggest, be dealt with by addition to primary legislation currently going through Parliament, which would be open to amendment by Members of both Houses. Furthermore, does my noble friend agree that the one thing the Government cannot and would not wish to do is to exclude the potential for judicial review, where a decision has been taken that is perverse or otherwise Wednesbury unreasonable?

[Baroness Neville-Jones]

My Lords, ideally, the police will be aware of the fact that their judgments in any given instance could be subject to judicial review. The law has not changed in that respect. As for the previous question about the alternative legislative route, I am not a lawyer and I hesitate to get terribly far into this terrain. I was advised that this was regarded—as there is no obvious legal vehicle in which to incorporate this particular bit of legislation—as related to our obligations under the Human Rights Act, and that it was a speedy and sensible way of bringing us into compliance.

[Lord West of Spithead]

My Lords, I have to say that I was rather depressed by this Statement. I had not intended to speak at all. When I was a Minister, I tried to produce things not for the Daily Mail but for the House. I have a feeling that this is for the Daily Mail, not for the House. On a number of occasions, I was pretty grumpy about decisions made in the courts, but I do not think that I would ever have allowed a piece of paper like this to come out. Some of the wording used is quite intemperate, and I think that that is very unfortunate. I know the noble Baroness well and I know that she would not have drafted it in this way. I do not know how we can go about tackling this in some way so as to make it clear that this is not the view, because what is being said about the courts is really quite stark. A number of noble Lords have spoken about this, and there is no doubt at all that it is up to the courts to interpret the law. I do not think that there is any doubt at all that Parliament makes laws, not the courts, as the noble and learned Lord said. That has never been disputed. I find this quite extraordinary. Is there some way in which to temper this Statement, because I do not think that it is the sort of Statement that should be made? I think it is very unfortunate.

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[Baroness Neville-Jones]

The noble Lord made his point several ways round. The Government are acting in conformity with the principle that they must be in conformity with the law, which is why they have brought in this amendment to the law. We perfectly well recognise that the courts interpret the law and are acting on that principle.

[Lord Macdonald of River Glaven]

Will my noble friend acknowledge that there is great disappointment on these Benches, too, at the tone of this Statement? Some of us had hoped that the days when these sorts of Statements would be made about the judges and the courts had gone with the new Government, and are very disappointed to see that, perhaps, they have not. Why do the Government appear to believe that, with regard to appeals against the inclusion on the sex register, the police are better placed to do justice than the Queen’s courts?

[Baroness Neville-Jones]

My Lords, I think that I explained in response to an earlier question that it is very hard to judge the merits with these particular offences, particularly in relation to expectation about future conduct. Therefore, we feel that those closest to the individuals or offenders concerned, who have been monitoring their conduct, are best placed to take an informed view and come to an informed decision about the balance that needs to be struck thereafter between the freedoms that can be accorded to the individual and the rights of the public to safety. This is a very practical view of how to come to the best decision possible.

[Baroness Farrington of Ribbleton]

Can the Minister please explain to me—because I do not understand—why the Government in their Statement make the assumption that individual police officers in particular places will necessarily, or even ever, have detailed knowledge of the individual who is making the appeal? I have some limited experience in local government. The only time I have actually ever cried in your Lordships' House was on reading the story of the north Wales child abuse inquiry. The people who may be the most dangerous are often the most mobile and disappear all over the place, reappear and then get lost. Why the police? I am particularly concerned about that aspect.

[Baroness Neville-Jones]

My Lords, individuals on the sex offenders register are very closely supervised—and quite rightly. Therefore, the police, NOMS and others have very detailed knowledge of the behaviour of the individuals concerned. We keep on coming back to who is best placed to make what most people would regard as a fairly difficult judgment about likely prospects for the future, given the nature of the offence and the sort of people involved. It is for those very reasons that we feel that this is the best place to do it. The noble Baroness is quite right that people do try to disappear. That is precisely why, in severe cases, limitations are placed on people’s freedom of movement and why they have to notify before they go anywhere. That is one reason why the Government are taking the opportunity to strengthen that provision.

[Lord Thomas of Gresford]

My Lords, can I express my sense of shame at hearing the language that has been used in this Statement? It is precisely the sort of thing that we attacked for years when we were in opposition and I am very sorry to hear that this headline-grabbing language is being used again. Like the noble Baroness, I simply do not understand why applications for the removal of a name from the register should not be made in an open and transparent way before a court. After all, it is the court that imposes the sentence of 30 months, which is the threshold when a person is placed upon the register for life. I see no principle—I see nothing—in this Statement that would assuage my feelings about it.

[Baroness Neville-Jones]

The noble Lord has certainly made his point. I fear there is very little that I can add to what I have already said, by way of explanation to the House, on why the Government have taken the view that they have about the right place to take this decision.