Criminal Justice and Courts Bill

Jeremy Wright Excerpts

Monday 12th May 2014 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Jeremy Wright)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Mrs Eleanor Laing)]

With this it will be convenient to discuss the following:

New clause 22—Penalty for driving while disqualified—

‘(1) In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences under the Traffic Acts) in the entry relating to the offence of obtaining licence, or driving, while disqualified, section 103(1)(b) of the Road Traffic Act 1988—

(a) in column 3 leave out “6 months” and insert “12 months”;

(b) in column 2 below “(c) On indictment, in Scotland”, insert “(d) On indictment, in England and Wales”; and

(c) in column 3 below “(c) 12 months or a fine or both” insert “(d) 2 years or a fine or both”.

(2) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference to 12 months is to be read as reference to six months.

(3) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.’.

Makes the offence of driving while disqualified triable either way, with a maximum penalty of 2 years’ imprisonment for conviction on indictment.

Government new schedule 2—‘Offences committed by disqualified drivers: further amendments.

Amendment 9, in clause 28, page 26, line 31, at end insert—

‘(c) a submission from the DVLA to inform the court of any penalty points endorsed on the driver’s record.’.

Amendment 8, page 26, line 35, at end insert—

‘(3A) For cases involving driving offences, where the accused has 12 or more penalty points currently on their drivers’ record, any exceptional hardship plea previously made by the accused must be disclosed to the court.’.

Government amendment 7.

Government new clause 10—Term of imprisonment for murder of a police or prison officer.

Government new clause 11—Committal for sentence of young offenders convicted of certain serious offences.

[Jeremy Wright]

Over a period of months, we have listened to concerns raised by the families of victims and hon. Members acting on their behalf about disqualified drivers. They have said that the current maximum penalty of two years’ imprisonment for causing death by driving when disqualified does not adequately reflect the tragic consequences of the offending. I am particularly grateful to, among others, my hon. Friends the Members for Gloucester (Richard Graham), for Gillingham and Rainham (Rehman Chishti), and for Kingswood (Chris Skidmore) for keeping the issue firmly on the agenda. In our view, disqualified drivers who flout court bans, continue to drive badly and cause death should be treated far more seriously by the courts than they are at present, and I am pleased to say that new clause 14 and new schedule 2 will effect that change.

We should also concern ourselves with disqualified drivers who cause serious injury. It is, after all, often a matter of chance whether the victim lives or dies. If there is no evidence that the offender was driving dangerously, the most with which he or she can be charged under the current law is driving while disqualified, which incurs a maximum penalty of six months’ imprisonment. That is plainly inadequate. It does not reflect some of the horrific and life-changing injuries that can be suffered by road traffic victims, or the terrible toll that this can take on their families. That is why we are also introducing a new offence of causing serious injury by disqualified driving, which will incur a maximum penalty of four years’ imprisonment.

We thought carefully about whether these changes should apply to unlicensed and uninsured drivers as well. We decided to limit the changes to disqualified drivers, because we think that they have a higher level of culpability than other illegal drivers. A driving ban would only be imposed on an offender following the commission of a series of motoring offences or a single serious offence. If such an offender flouts a ban imposed by the court, continues to drive badly and causes a death or serious injury, it is right that he should feel the full force of our proposed new provisions.

[Keith Vaz (Leicester East) (Lab)]

One of the areas that cause me concern is to do with drivers from other EU countries who may have been banned or disqualified in those countries but who come here and are allowed to drive in the United Kingdom. Is there anything in the Government proposals to stop them doing that?

[Jeremy Wright]

I entirely understand the right hon. Gentleman’s concern and I will come on to talk about the proposal we have for a wider review of sentencing in driving cases. He may well wish to make further submissions on the points he has made for inclusion in that review. A number of issues have already been raised which we think can sensibly be discussed in the course of that review, and I am sure there are some yet to be raised.

[Susan Elan Jones (Clwyd South) (Lab)]

Can the Minister explain why being unlicensed was not included in this proposal? If one is unlicensed, one undoubtedly knows one is unlicensed, so why were such people taken out of this?

[Jeremy Wright]

I appreciate that this is a matter of judgment in all cases, but the distinction we have made is between those who have been disqualified by a court—in other words, they are subject to a court order—and have none the less gone on to drive, and those who are driving unlicensed, and, as the hon. Lady says, doing so knowingly, but not as a consequence of a court’s decision. That is the distinction we make, but I know she takes a considerable interest in driving offences and their consequences, and I am sure she will wish to engage with the review we will begin.

[Dr Julian Huppert (Cambridge) (LD)]

The Minister will be aware of the Road Justice campaign by the CTC and others. I and they very much welcome this review. Will he give us an idea of the time scale of the review and when we can expect the conclusions, because many of us would like to feed into them?

[Jeremy Wright]

We hope to conduct the review over the next few months and I hope that will give my hon. Friend and others the opportunity to contribute to it, but let me just finish what I am saying in relation to the specific proposals in new clause 14. I hope the House will agree that there is a need for these proposals. First and foremost the measures should give families of victims a greater sense that justice has been done. More generally, tougher sentences for convicted offenders should improve public confidence in the justice system. Amendment 7 changes the long title of the Bill to include driving. I commend these provisions to the House.

I know that Members might like to see reform of other aspects of the road offence framework. Some have already been mentioned in the course of this debate. Indeed, new clause 22 seeks to make the offence of driving while disqualified an either-way offence and increase its maximum penalty; and we have, as I have indicated, been giving serious consideration to all representations made on this subject, not least from my hon. Friend the Member for Gillingham and Rainham, who has a ten-minute rule Bill on repeat offences of driving while disqualified. He and others rightly hold strong views and we are committed to ensuring that maximum penalties reflect the seriousness and culpability of offending behaviour. That is why, as we have already mentioned today and as the Justice Secretary made clear in his announcement on 6 May, the Government are committed to carrying out a wider review of the road traffic sentencing framework over the next few months. We are in discussion with the Department for Transport and other interested Departments about the details. We will make a further announcement about the scope of the review in due course.

[Mr Andy Slaughter (Hammersmith) (Lab)]

Could the Minister give us a sense of how this would fit with the legislative timetable? If primary changes are needed as a result of the review, will there definitely be a Bill to do that?

[Jeremy Wright]

Unless the hon. Gentleman is going to contradict me and vote accordingly, there is broad support for what we have set out in new clause 14, which is a self-contained measure that we do not think will have ramifications across the rest of the sentencing system. That is not true of some of the other changes that Members on both sides of the House may wish to make. As I have said, we have reached no pre-conclusions as to what should or should not be included in a review. However, we think it sensible to make sure that if we are to have a wholesale look at driving offences—which, unless the hon. Member for Hammersmith (Mr Slaughter) is going to contradict me, there is considerable support for across the House—we should do it in a considered way. We are not talking about years for that to happen, but months.

[Rehman Chishti (Gillingham and Rainham) (Con)]

I thank my hon. Friend and his Department for listening to the victims of crime on the question of increasing sentences for those who commit the offence of killing people on our roads by driving while disqualified. On repeat offenders and the Bill that I introduced, I thank my hon. Friend for including such a provision in the review. However, does he agree that there is no one way of dealing with repeat offenders? Whether they are dealt with through a magistrates court, through an increased sentence in a criminal court, as I have suggested, or by making the offence an either-way offence, as the Opposition have suggested, the right approach is to carry out a comprehensive review, because there is no one way of dealing with the issue.

[Jeremy Wright]

I agree with my hon. Friend that it is important to review all the options. He has already made a powerful case for his preferred option in dealing with repeat offences of driving while disqualified, and I know he will continue to do so. I hope the review will give him and others the opportunity to make the case they wish to make. In view of that, I hope the hon. Member for Hammersmith will consider whether it is necessary to press his new clause to a vote.

Amendment 8 relates to cases where a defendant being tried under the single justice procedure has 12 or more penalty points on their record. Subsection (3) of proposed new section 16A of the Magistrates’ Court Act 1980, introduced by clause 28 of the Bill, specifies that a decision under the new single justice procedure must be made “in reliance only” on the documents sent to the accused, along with “any written submission” provided that aims to mitigate the sentence imposed. Under amendment 8, a defendant would additionally have to include in any written submission details of previous exceptional hardship pleas they had made to the court. I know the hon. Member for Bolton West (Julie Hilling) will make her case for the amendment in due course, but I presume that the intention is that the single justice procedure should be able to take that into account when considering any further submissions from the defendant requesting mitigation of their sentence.

The Government share Members’ concerns about drivers who continue to drive when accumulating penalty points that would normally result in disqualification. As I have said, we will conduct a review of the wider sentencing framework for driving offences, and as I said to the hon. Lady during Justice questions last week, it may well be that there is a strong case for the inclusion of such a measure.

[James Duddridge (Rochford and Southend East) (Con)]

My hon. Friend knows that I am very much in favour of making newly qualified drivers carry a probationary plate on their cars for two years to indicate that they might be a greater risk. Will he consider requiring disqualified drivers who re-qualify to have that probationary plate, partly as a punishment but partly to highlight the potential risk to others?

--- Later in debate ---

[Jeremy Wright]

My hon. Friend makes an interesting point. He has a good record of campaigning on these issues, in which he takes considerable interest and has significant expertise, and we will certainly consider what he said. The review will allow new ideas such as his to be considered in the context of the sentencing framework.

[Robert Neill (Bromley and Chislehurst) (Con)]

I agree with my hon. Friend that the development of the arguments we have heard in respect of other clauses reinforces the need for a more comprehensive look at the issue. In the light of the reassurance he has given to my hon. Friend the Member for Rochford and Southend East (James Duddridge), will he also ensure that the review looks not only at the basic sentencing powers but at the operation of the penalty points system, which we know is complex and sometimes itself creates incongruities?

[Jeremy Wright]

I think I am in danger of conducting the review this afternoon, but I agree with my hon. Friend, and all these things are worth considering for inclusion in the review. I simply sound this note of caution: if we review everything, we will exceed the proposed time scale and perhaps not deal with the concerns raised earlier by my hon. Friend the Member for Cambridge (Dr Huppert). None the less, I am sure that there is a great deal that can sensibly be considered.

I return to amendment 8 and point out that proposed new section 16C of our provisions already provides for cases in which the single justice proposes to disqualify a driver. The single justice must give the accused an opportunity to make representations about the proposed disqualification. If the offender fails to take up the opportunity to make representations, they may be disqualified in their absence. That is, of course, no different from what may occur under the magistrates court process. At present, offenders are disqualified in their absence when, having been warned about the purpose of the hearing, they do not attend court. When the defendant wishes to make representations, however, and that would include representations about exceptional hardship, the single justice must issue a summons to the defendant requiring them to appear at a traditional magistrates court. Any exceptional hardship plea may therefore be dealt with in open court, and the court would have the opportunity to investigate the defendant’s driving history. The Bill therefore already makes appropriate provision for the situation that the hon. Member for Bolton West is concerned about.

[Julie Hilling (Bolton West) (Lab)]

Does the Minister not accept that magistrates are not told why people have already cited exceptional circumstances? The magistrate has no idea what previous plea of exceptional circumstance was given. My amendment is about that issue, so that magistrates are made aware.

[Jeremy Wright]

The hon. Lady has just made a wider point than would apply simply to the single justice procedure. The point we are addressing in relation to her amendment is that there should be no significant disadvantage for those who are dealt with under the single justice procedure; nor should there be any disadvantage to the court under that procedure in ascertaining the facts of the case. If someone were wanting to assert particular hardship, which might exclude the possibility of disqualification, they would need to come to court and do it themselves. The court should then do the necessary investigations. However, I take her point and will consider carefully whether there are improvements that we can make to more general procedures.

Amendment 9 is also related to the single justice procedure. It would introduce a new requirement that the documents sent to the defendant with the single justice procedure notice should include a submission from the Driver and Vehicle Licensing Agency to the court informing the court of any penalty points on the defendant’s driver record. I agree that up-to-date DVLA information is important when deciding the sentence for such offences. The House is aware that that very issue was raised in Committee, and as the Under-Secretary of State for Justice, my hon. Friend the Member for North West Cambridgeshire (Mr Vara), made clear, our intention then was to consider the point further.

Under the existing procedure, when dealing with an offender in their absence, courts are able to check the DVLA position when sentencing for certain road traffic offences—we have discussed that point and, as I said, I accept that it is important that they are able to do the same under the new procedure. We need to ensure that the legislation allows for that in cases dealt with under the new single justice procedure as well. As I said, we have undertaken to look at the matter, and it is still under consideration. We will ensure the necessary consideration. On that basis, I hope that the hon. Member for Bolton West and her colleague the hon. Member for Wythenshawe and Sale East (Mike Kane), whom I do not see here, will be satisfied.

New clause 10 makes an amendment to schedule 21 to the Criminal Justice Act 2003, which provides guidance to the courts in assessing the seriousness of all cases of murder in order to determine the appropriate minimum term to be imposed under the mandatory life sentence. The amendment would raise the starting point for offenders aged 21 and over from 30 years to a whole life order for the murder of a police or prison officer in the course of his or her duty.

I do not need to remind the House of the vital role that those officers play every day in keeping our communities safe and in managing difficult and dangerous offenders. Tragically, some officers have paid the ultimate price while carrying out these duties on our behalf. The Government consider it essential that those officers feel the full weight of the state behind them in the execution of their duties. Changing the starting point to a whole life order for those who murder police and prison officers will send a powerful message of support for the work that those vital public servants do. It will show that we place the highest value on their safety and that we recognise the dangerous job they perform on a daily basis.

Those officers can be distinguished from other public servants by the role they perform in terms of routine contact with dangerous offenders. Their daily duties and risks mean that they stand apart from others. That unique and important status should be recognised, and those who murder police or prison officers on duty should know that they face the most severe sentence possible under the law. I should make it clear that the change in the law does not necessarily mean that a whole life order will be imposed in every case involving the murder of a police or prison officer in the course of duty. The court must always have the discretion to impose the appropriate sentence based on all the facts of each case, but offenders should be in no doubt that they face the severest consequences for such murders. I therefore hope that the House will support the new clause.

Finally, new clause 11 is designed to close a gap in the sentencing power of criminal courts that could prevent an adequate sentence being imposed where it turns out that the offending is more serious than it appeared when the case was initially accepted by the youth court. We believe the gap might tend to undermine efforts to encourage youth courts to try grave crimes in suitable cases and might restrict sentencing powers unduly. The category of offences that includes cases such as those that involve allegations of serious sexual offending against under-18s, for example—also known as grave crimes—are serious enough to be capable of being sent to the Crown court for trial, but not all of them necessarily require the highest sentencing powers of the Crown court. It might be possible to deal with some of them satisfactorily using sentencing options available in the youth court, and if so there is an advantage in retaining them in the youth court. The youth court is particularly attuned to inquiries into the alleged activities of children, and serious sexual offences can be tried there by authorised district judges who have been specially trained to deal with them.

A defendant under 18 charged with such an offence is invited to indicate a plea, and when a guilty plea is indicated the youth court may commit him or her to the Crown court for sentence where appropriate. On the other hand, if the indication is not guilty and the youth court decides to retain the case and tries and convicts the defendant, there is no general power to commit the offender to the Crown court for sentence. That means that if information emerges during the trial that suggests that a more severe sentence is appropriate, the youth court will simply have to make do with its own sentencing powers. The only exception is when the conditions for imposing an extended determinate sentence are met, but they are stringent. That is at odds with the position for adults, where there is a general power to commit cases to the Crown court for sentence, not merely after a guilty plea.

It is possible that the absence of a safety net allowing for committal for sentence leads youth courts to be unnecessarily cautious in deciding whether to retain grave sexual crimes. A provision permitting committal to the Crown court for sentence whenever a defendant is convicted of a grave crime in the youth court, as is already possible after a guilty plea indication, might encourage the youth court to retain more cases and ensure adequate sentencing powers are available in every case. I hope that the House will therefore support new clause 11.

[Mr Slaughter]

We are grateful to the Government for accommodating the topics we want to discuss today and for the overall allocation of time on Report. We do not hear that very often, but it is in part a result of Report running over two days—or at least a day and a half—as a consequence of this being a carry-over Bill.

We anticipate that there will be about 10 hours of debate, including Third Reading, and curiously only half the time will be spent on the Bill as it left Committee. Today, we have three hours on parts 1 to 3 and on day two we will have two hours on the important and controversial part 4, which attacks the legal and financial basis of judicial review claims. The rest of the time is for new projects proposed by the Lord Chancellor or by his Back Benchers with his support. He has a common but unwelcome habit of shoehorning new laws into Bills at every stage of their progress through both Houses. A cynic would say that he does so simply to provide another hit with the tabloids or to introduce a stick to beat his coalition partners with. It is certainly a poor way to legislate, and he has surpassed himself by tabling new clauses on driving offences that require him to amend the long title of the Bill through Government amendment 7—I do not think the Minister mentioned that amendment, but I apologise if he did.

Neither the new clauses on driving in the first group for discussion today nor those on offences of possessing offensive weapons have taken the Government by surprise. There was a full debate in the Chamber on the subject of dangerous driving in Back-Bench time on 27 January and, famously, the issue of carrying knives featured in the Tory manifesto.

[Jeremy Wright]

The hon. Gentleman knows that I hold him in high regard and affection, but he has accused me of rushing into new clause 14. Now he is telling me that it did not catch me by surprise and I should have done it earlier.

[Mr Slaughter]

If the Minister waits, all will become clear.

We do not quarrel with the seriousness of any of the matters under discussion on Report. My hon. Friend the Member for Barnsley Central (Dan Jarvis) will raise our concerns about offences against armed forces personnel—matters that we, unlike the Government, flagged up in Committee. This is a sloppy way of making law and nowhere was that more clear than with last week’s announcement that new offences and new sentences for existing offences on some driving matters would be tabled today. At the same time, as the Minister has conceded, the Secretary of State announced that a full review of all driving offences and penalties would be carried out over the next few months.

Let us pause there for a moment. If the Government are reviewing all offences over the next few months, why do they need to change the law for one offence and introduce a brand-new offence in the Bill? I suspect that my curiosity is shared by the Minister, who replied to the debate on 27 January. We heard nine compelling and moving speeches on that day from Members on both sides of the House explaining how their constituents had been victims of dangerous, careless, drunken or disqualified drivers but how the culprits had escaped with what appeared to be lenient penalties. He carefully and courteously, as is his wont, lowered expectations, saying:

“Having emerged blinking into the daylight from the usual channels into my current job, I know better than to commit parliamentary time for any purpose”.

He added sagely:

“It is important for us to consider these matters in the round, and to do so in a way that does not create discrepancies in the sentencing system.”—[Official Report, 27 January 2014; Vol. 574, c. 731.]

Four months later, time has been found to do exactly what the Minister warned against.

The Minister might ask whether that matters if we are moving in the right direction. The groundswell of opinion expressed in that debate and outside the House is that the two-year maximum sentence for causing death by disqualified driving is inadequate, as it leads to an average sentence of about nine months in custody. We agree and we will not oppose the new clause, but is 10 years the correct figure? It is double the maximum for causing death by careless driving, arguably a more serious offence as the quality of driving is an issue. Equally, it seems anomalous to create an offence of causing serious injury by disqualified driving when no equivalent is proposed of causing serious injury by careless driving or even causing serious injury by careless driving while under the influence of drink and drugs—an offence with a maximum sentence of 14 years when it causes death.

Why has causing death by disqualified driving been singled out? As the Minister said, the current offence brackets causing disqualified driving with driving without insurance and driving without a licence. Will causing death by driving in those two circumstances remain punishable with a two-year maximum sentence? I am afraid that this bears all the hallmarks of the Secretary of State’s penchant for plucking new offences out of the air and pushing them forward to show what a tough guy he is. There were only 13 convictions in the last year for which figures are available for all offences of causing death while disqualified, uninsured or without a licence. How many cases will the change in the law affect?

Perhaps the Secretary of State will say that the change is intended as a deterrent to others, but how many disqualified drivers will be put off by the thought that they might kill or cause serious injury? There is no evidence of careless or dangerous driving in their cases, because they would then be charged with those offences. That brings me to new clause 22, tabled in my name and that of my hon. Friend the Member for Barnsley Central, which we believe is a more effective way of tackling the problem that the Secretary of State and the Minister have rightly identified.

More than 7,000 people were convicted of driving while disqualified in 2012, a substantial reduction since 10 years previously but still a great number of people who wilfully defied an order of the court and carried on driving while banned. Our answer is to make the offence of driving while disqualified triable either way, with a maximum penalty of two years’ imprisonment for conviction on indictment, which the Magistrates Association has been calling for for some time. Currently, the maximum penalty for driving while disqualified is six months and it is a summary only offence. Although that might be sufficient for a first or even second-time offender, it does not address the minority of recidivist offenders who have multiple disqualifications on their record and carry on driving oblivious to the courts.

--- Later in debate ---

I turn briefly to new clause 10 about the term of imprisonment for the murder of a police or prison officer. When the Minister winds up, I would be grateful if he could clarify the role of judicial discretion in this area. It is always helpful for us to set out what the base should be, but I would like to hear confirmation from him that he believes in the principle of judicial discretion and that judges will be able to look at the details of almost any offence.

[Jeremy Wright]

With the leave of the House, I shall try to respond to some of the points made in the debate which, as we came to expect in the course of Committee, was instructive and well balanced. I start with the remarks of the hon. Member for Hammersmith (Mr Slaughter), who made his case for new clause 22. He kindly indicated that he has no objection to new clause 14, which I welcome, and he made it clear that he has little objection to some of the other measures in this group, and I am grateful for that.

As I said in my earlier remarks, we intend to consider a number of aspects of the criminal law in connection with driving offences in the course of the review that I described. I can certainly undertake to the hon. Gentleman that the issue of driving while disqualified, particularly where it involves repeat offending, which is the type of offending highly likely to lead to sentencing at the top end of the scale, whatever that scale may look like in the future, is something that we are highly likely to want to consider as part of the review. I am sure he will maintain his case for the inclusion of that.

The difference between the circumstances we are considering in relation to new clause 14 and the circumstances we are considering in relation to new clause 22 was conveyed very movingly, as we have heard before, by my hon. Friend the Member for Kingswood (Chris Skidmore). New clause 14 is designed to address what we perceive to be some egregious cases in which sentencing powers were not adequate. It was clear to us from those cases that we should plug that gap in the sentencing regime. There are other questions that we have to ask about driving offences and how those offences are punished, which are about whether we have pitched properly the sentencing powers of the judiciary. But we have not yet had the opportunity to consider in detail the implications of the change set out in new clause 22, and I doubt very much that the hon. Gentleman has, either.

[Mr Slaughter]

With all due respect to the Minister and to the hon. Member for Kingswood (Chris Skidmore), the tragic case of Clare and Ross Simons that he described was a very serious case of causing death by dangerous driving. Even though the driver was disqualified, it was not a case of disqualified driving. It would not in any way be affected by new clause 14. The Minister has made the case against himself. It is clear why new clause 22 has been canvassed over a long period by practitioners, the Magistrates Association and others. There is an overwhelming case for increasing that nugatory summary only sentence. The position is far more complicated, as shown by some of the tensions that have come out in the debate, which is why new clause 14 is a little precipitate, even if it is going in the right direction. Will the Minister give a clear undertaking that there will be an increase in the sentence for driving while disqualified? If not, we will press the new clause to the vote this evening.

[Jeremy Wright]

I will come back to the point about how much we know about the implications of new clause 22. To deal with the case of specific examples, the point that I am making in relation to what my hon. Friend the Member for Kingswood said is that where it is brought to our attention that there are particular gaps in the sentencing regime, it is appropriate that we look very carefully at those. The case that precipitated the decision to table new clause 14 was the case of Mr Stock, who was killed in precisely the circumstances that new clause 14 would address.

It is important that when such cases are brought to our attention, we look carefully at whether there is a gap in the law, and we then look at how that gap might best be remedied and what the consequences of doing so might be. The reason that we did not respond immediately to such cases, and the reason that I did not respond to the Back-Bench debate to which the hon. Gentleman referred by saying straight away, “Yes, of course, we will change the law immediately and we will do so in the following way,” is that it is important to consider all the ramifications of making changes.

We have had the opportunity to do that in relation to what we now propose as new clause 14. We have a good idea, as the hon. Gentleman mentioned, of how many cases might be affected, and what effect that would have on the work load of the Crown court and of the Prison Service. I wonder whether he has any idea what the ramifications for the Court Service or for the Prison Service would be of the change that would be made by new clause 22. That does not mean to say that after we have considered those ramifications properly and carefully, we would not come to the conclusion that it is the right thing to do, but we are not going to do so today, for the reasons that I have set out.

If the hon. Gentleman reflects, and given that he hopes to be in government himself in less than a year—[Interruption.] I am not saying that he will, just that he hopes to. If that eventuality ever came to pass, I do not think he would wish to make policy any differently from the way I am suggesting we should do so. If that is right, I cannot, as he would understand, accept new clause 22 today. I have gone as far as I think I sensibly can, which is to say that it will certainly form part of the review that we intend to undertake, and if we conclude as a result of the review that it is the right thing to do, we shall do it.

[Mr Slaughter]

I think the Minister is playing with me a little. I have used the best evidence I can and as I said, I have spoken to practitioners and to the Magistrates Association about the matter. I am advised that the clause is likely to affect only a small minority of cases, which are the recidivist cases. The Minister has access to that degree of detail and that information. Perhaps he could tell us how many cases he thinks would be affected.

[Jeremy Wright]

As I have tried to indicate to the hon. Gentleman, I would want to look at all those things. He is right—I do not know. We have to look at the matter carefully and I am sure he would want us to do that. Between the point at which he decided to table new clause 22 and this debate taking place, there has not been an opportunity to do that work, which we would want to do. He is welcome to continue looking a gift horse in the mouth if he so wishes, but what I am saying to him, I hope very clearly, is that we are certainly not shutting the door on what he is proposing, but neither are we going to accept it today without doing the proper work. No responsible Government could do otherwise. He may or may not want to be part of a responsible Government, and if it is not a responsible Government, he may want to do things differently, but that is the way we do things for as long as we are in government.

Let me move on to the comments of my hon. Friend the Member for Kingswood. Again, he spoke movingly, as he has before, of justice for Ross and Clare Simons. He also made the case for including in the review the issues of death by dangerous driving by those who are disqualified, and we will certainly consider that matter also.

The hon. Member for Bolton West (Julie Hilling) made, as she has done before, a good case in relation to those who have multiple points on their licence and are somehow not yet disqualified. She is right to be concerned about that, as are we. We would want to consider that matter, too, at greater length. There is, as she knows and as I have said to her before, an issue in relation to how much we can sensibly trespass on judicial discretion. In each and every case a bench of magistrates would have to have concluded that the exceptional hardship case was made out, such that they thought it appropriate not to disqualify in those cases. There will always be exceptional cases, but her argument is that those cases should, indeed, be exceptional; they should not be regular, and I have a good deal of sympathy for that view. The specific point around exceptional hardship claims—

[Julie Hilling]

Does the Minister therefore think that perhaps a stronger direction should be given to magistrates on what should be exceptional hardship?

[Jeremy Wright]

I would be wary of doing that, but we can look at how we ensure that magistrates are doing all necessary due diligence on the nature of past exceptional hardship claims, perhaps before other benches. That was the hon. Lady’s second point that I was just coming on to. There is something in that. We need to consider how to ensure that benches take the opportunity to look carefully at what has been said to their brethren in other cases involving the same defendant, who may be running the same argument on exceptional hardship multiple times and continually avoiding disqualification. We will need to look carefully at that.

That does not mean that running the same argument cannot necessarily amount to exceptional hardship more than once—again, that is a matter for each bench to determine—but they should do so, as she says, with their eyes open and in possession of all the relevant facts. We will look at whether there are ways in which we can ensure that they do more to get those facts. However, it is not the case that they do not have access to those facts now. The DVLA already retains the information on whether an exceptional hardship claim has been made by the same defendant in a previous case. It is there to be looked at, but further inquiries may then be necessary to find out exactly what was said in the making of that exceptional hardship claim. We will take that away and look at it. As I have already said, there is a good case for including in the review the hon. Lady’s point about multiple points on a licence and the totting-up offences.

My hon. Friend the Member for Cambridge (Dr Huppert) made a number of points around the vulnerability of cyclists, with which, of course, I agree. We must always be conscious of that, not just in the Ministry of Justice but in other Departments too, as I know colleagues in the Department for Transport in particular are. He is right to say that this is not simply about sanctions, but also about changing behaviour. He will recognise that in the Ministry of Justice we are pretty much all about sanctions, so there is a limited amount that can be done by this Department, but certainly in conjunction with other Departments there may be a great deal more that can be done. He will understand, too, that the review will be into the penalties available to the judiciary under the criminal law. It will not, of course, sensibly be able to reach wider than that, although he will wish to take advantage of his opportunities to make submissions to it none the less.

My hon. Friend will recognise that new clause 10 deals with the starting point for decisions on the appropriate tariff for a life sentence. We think it appropriate for the reasons that I set out earlier that the starting point for murders of police officers and prison officers should be a whole life tariff, but sentencing judges can move up or down from that starting point as they think fit, and that applies in both directions. If one starts with the murder of a police officer and believes for particular reasons that it is appropriate to go below a whole life tariff, the sentencing judge can do that, and will want to set out why they choose to do that. I anticipate, following this change, that that will be very much the exception, and that as a matter of course, those who are sentenced for murder of a police or prison officer in the performance of their duties should expect to receive a whole life tariff. That is the purpose of this change. But the reason I say that it operates in both directions is that if somebody were to be convicted of murder, not necessarily of a police or prison officer attracting a whole life tariff starting point but a lower starting point, that may still result in a whole life tariff if the judge thought it appropriate to revise that sentence upwards from the starting point. I hope that is helpful to my hon. Friend. With those remarks, again I invite the House to support the Government new clauses, and not the Opposition’s new clause.

Question put and agreed to.

New clause 14 accordingly read a Second time, and added to the Bill.

New Clause 22

Penalty for driving while disqualified

‘(1) In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences under the Traffic Acts) in the entry relating to the offence of obtaining licence, or driving, while disqualified, section 103(1)(b) of the Road Traffic Act 1988—

(a) in column 3 leave out “6 months” and insert “12 months”;

(b) in column 2 below “(c) On indictment, in Scotland”, insert “(d) On indictment, in England and Wales”; and

(c) in column 3 below “(c) 12 months or a fine or both” insert “(d) 2 years or a fine or both”.

(2) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference to 12 months is to be read as reference to six months.

(3) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.’.

Makes the offence of driving while disqualified triable either way, with a maximum penalty of 2 years’ imprisonment for conviction on indictment.—(Mr Slaughter.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.

--- Later in debate ---

The overwhelming majority of the public believe that offenders should serve the whole of the sentence they were given in the first place. Eighty-two per cent. of those asked about this in a survey carried out by Lord Ashcroft thought that prisoners should serve the full prison sentence handed down by the courts.

[Jeremy Wright]

I have a nasty feeling that my hon. Friend is not going to welcome much in the Bill, but may I ask him at least to welcome one thing? He will have noticed, I am sure, that we propose to increase the penalties for those who fail to comply with their licence. Does he at least accept that that is a good idea?

[Philip Davies]

I absolutely accept that the current Lord Chancellor, with the help of my hon. Friend the Minister, is doing his very best to try to undo lots of the mistakes made by his predecessors; I am the first to acknowledge that. My contention is that the Government are not going anywhere near far enough in meeting the needs and expectations of the general public. Yes, of course they are making small steps in the right direction, but they are far too small and I would like them to go further.

--- Later in debate ---

[Diana Johnson (Kingston upon Hull North) (Lab)]

I add my tribute to that of others for the work done by my hon. Friend the Member for Rotherham (Sarah Champion). She has been a Member only a short time, but she has made a huge impact. I very much hope that the Minister will have listened carefully to her contribution today.

I shall speak to my amendment 20, and I believe that there is genuine cross-party support for the House to take action against extreme forms of pornography. It is worth remembering the work done by Liz Longhurst after the death of her daughter Jane, who was murdered by a man obsessed with pornography involving asphyxiation. Out of that context came the Labour Government’s legislation of 2008, which made it a criminal offence to possess certain forms of pornography—depicting necrophilia and bestiality, for example. We know, however, that there is more to do, especially with online developments.

The Government’s proposal is to ban the possession of pornography deemed to be

“grossly offensive, disgusting or otherwise of an obscene character”

or containing realistic depiction of

“rape and assault by penetration”.

Both elements of the test are complex and open to wide interpretation. I tabled amendment 20 because I thought we could do better than that, and I hope that the Minister will agree with what I am about to say.

The amendment leaves in place the first part of the provision because we accept and acknowledge that the standard for criminalising possession has to be very high. However, it would simplify the second part of the test by replacing the Government’s description of rape with the definition used by the British Board of Film Classification—namely, content depicting

“sexual activity which involves real or apparent lack of consent or any form of…restraint which prevents participants from indicating a withdrawal of consent.”

As my hon. Friend the Member for Barnsley Central (Dan Jarvis) said, this simplifies the law in two respects. First, in respect of “realistic rape”, we know that the depiction of actual rapes is very rare, particularly on the internet, although we know that some “honour rapes” in the middle east can be found on the net. The portrayals currently on the internet tend to be very unrealistic and have high production values, so it is quite obvious that they are staged, but they are none the less very disturbing and concerning.

I would like to thank David Austin who works at the BBFC for showing me and other MPs an example of something that they are currently able to stop being distributed under their own classification guidelines, but that would fall foul of how this clause is drafted. What he showed us was an armed man who breaks into a residential home with two women in the house, who are then subjected to serious violence and sexual assault. It is quite clear that this is being staged, but it is incredibly violent and upsetting—and it would fall foul of the Minister’s definition.

The second reason for amending the clause is to ensure that content is banned if it shows sexual assault, including rape, but not limited to rape, including where the acts of penetration are not actually seen. As drafted, the clause will ban content only if it showed the act of penetration. This could mean videos of sexual assault or real rape avoiding censure if the camera positioning does not show the penetration. The BBFC showed me an example in a film that went on for several minutes of women who were gagged, tied up and were whimpering. These women were clearly in distress. It was upsetting to watch as the women being gagged, tied up and whimpering were in a dreadful state. As I say, the BBFC told me that they would currently be able to stop that being distributed, but not under this clause. It would fall foul of the provision because there were no acts of penetration.

I hope that the Minister will think again about this issue. Many Members would view it as a reasonable step to allow what now happens with the BBFC’s offline classification to be transferred to how we treat the same things online. That would also sit well with what the Prime Minister said he was going to do when he wanted to have the same criteria for online and offline images. Let us see that happen by the Government’s acceptance of amendment 20.

[Jeremy Wright]

This has been a full debate, and I would like to respond to as much of it as I can, while still leaving my hon. Friend the Member for Shipley (Philip Davies) with a couple of minutes at the end if I possibly can—I know how he loves to have the last word.

Let me start with my hon. Friend’s new clause 29, which seeks to place statutory restrictions on certain categories of offender to prevent them being suitable for fixed- term recalls. I can assure him that it is already the case that no offender who is assessed as a risk to the public—assessed as being able to cause serious harm—can be given a fixed-term recall. Those serving a public protection sentence—the “extended sentence prisoners” referred to in the clause—are already excluded, so it is not necessary to amend the legislation in that respect.

In addition, as my hon. Friend knows, we are taking measures in clause 7 to introduce a new test for release following recall, which will mean that prolific offenders or those who are persistently non-compliant with their licence could also be deemed unsuitable for a fixed-term recall. I share my hon. Friend’s concern and, indeed, that expressed by my hon. Friend the Member for Brigg and Goole (Andrew Percy), about those who cock a snook at the legal system by persistently failing to comply with their licence. In clause 7, we seek to do something about that.

We already have measures, either in place or pending, to prevent high-risk and prolific offenders from being subject to fixed-term recalls in cases in which it would not be appropriate for them to be automatically released after 28 days. The proposals in the new clause are either unnecessary—because they are already provided for elsewhere—or would go too far in placing a blanket statutory ban on certain categories of offender. We believe that decisions about the type of recall that is appropriate should be decided on a case-by-case basis, and I therefore invite my hon. Friend to withdraw his new clause.

New clause 31 would abolish section 240A of the Criminal Justice Act 2003, which, as my hon. Friend explained, provides that when a defendant on bail is subject to an electronically monitored curfew, half the period spent on “tagged bail” may be credited as time served towards his sentence. Incidentally, my hon. Friend said that the same applied to time spent on remand, but in that instance the entire period may be credited, rather than half of it.

We want to ensure that only defendants who need to be detained are remanded in custody while awaiting trial. Tagging on bail helps to ensure that bail periods are completed successfully, and that remand prison places are taken up only by those who really need to be there. Tagging defendants and requiring them to comply with a curfew of at least nine hours each day is a useful tool that we want to continue to use. We consider that when people have had to comply with a daily curfew which restricts their liberty, that time should be taken into account.

[Philip Davies]

Can the Minister explain why he voted against that proposal when the last Labour Government introduced it?

[Jeremy Wright]

That was six years ago. Since then, the criminal justice system has become used to using the provision. Also since then, we have had the Legal Aid, Sentencing and Punishment of Offenders Act 2012. I do not know how my hon. Friend voted on that, but I voted in favour of it.

[Philip Davies]

I voted against it.

[Jeremy Wright]

My hon. Friend surprises me. As he knows, the courts had been using the provision for some time, and we thought it important to regularise it by means of the Act.

My hon. Friend also referred to what he described as dishonesty in sentencing. He will be aware that my right hon. Friend the Justice Secretary and I have considerable sympathy with the move towards ensuring that automatic release is minimised. He knows that our ambitions extend well beyond what we have managed to achieve so far, but I trust he will be encouraged by the fact that we have already reduced the application of automatic early release. We have removed it from those serving extended determinate sentences, and the Bill will remove it from child rapists and terrorists.

New clauses 37 to 42 deal with the use of open prisons and release on temporary licence. My hon. Friend mentioned the case of Michael Wheatley. It is an extremely concerning case, and, as my hon. Friend and other Members would expect, we are looking very carefully at what occurred. When we have completed our investigations, we will consider what further action needs to be taken.

New clauses 39 and 41 seek to prevent offenders serving sentences for murder or for an indictable-only offence from being moved to a category D or open prison. Open prisons provide an opportunity to assess prisoners in conditions more similar to those that they will face in the community, which is vital in protecting the public. To release life-sentence prisoners directly from closed prisons without the resettlement benefits of the open estate might, in certain cases, lead to higher levels of post-release reoffending, and thereby create more victims. That is something that both my hon. Friend and I would wish to avoid.

A period in open conditions for the purposes of ongoing risk assessment and support for resettlement can be particularly important for lifers—a category that includes all murderers—many of whom will have spent many years in prison, and will therefore often not be prepared for release. While those serving sentences for indictable-only offences include some of the most serious offenders, some of those who have been convicted of common-law indictable-only offences will not be dangerous. An example is those who have been convicted of cheating the Revenue—the sort of people, one might think, whom my hon. Friend might expect to find in open prisons. I suggest to him that what he proposes in new clause 41 is not a useful means of determining in which category of prison an offender should be held. That must be determined on the basis of the risk posed by the individual.

[Dr Huppert]

One of the challenges faced by many ex-offenders is finding employment. We know that employment substantially reduces their risk of reoffending. What evidence has the Minister of the way in which open prisons help people to become used to proper employment when they leave?

[Jeremy Wright]

My hon. Friend is right, but it is important to note that in every case a proper risk assessment must be made to ensure that only the right people find themselves in open prisons.

Currently, in most cases, the decision whether to move a prisoner to open conditions is made after advice has been sought from the Parole Board. The hon. Member for Barnsley Central (Dan Jarvis) referred to the burden on the board that the Bill will create. We must indeed ensure that the board has the necessary resources, and we will do that. Public protection is the priority, as all Members would expect it to be, and the Parole Board takes account of a range of factors when assessing whether the risk posed by an offender has been reduced enough for that offender to be managed in open conditions, or on licence in the community. Those factors might include the completion of offence-related courses, a sustained period of good custodial behaviour, access to appropriate and stable accommodation, access to education, training and employment—as was suggested by my hon. Friend the Member for Cambridge (Dr Huppert) —and support from professionals, as well as from family and friends. Offenders are returned to closed conditions if their behaviour in open conditions, or updated risk assessments completed in open conditions, indicates an unacceptable risk to the public.

My hon. Friend the Member for Shipley was also rightly concerned about absconding. Prisons can and do take a variety of actions to try to reduce its incidence. Open prisons operate intelligence systems with the aim of spotting those who might be planning to abscond. Prisoners are screened, and those who are at significant risk of absconding are sent back to closed conditions. Absconders can be criminally charged, and prisons, police and the Crown Prosecution Service are increasingly working together to secure their successful prosecution, which can act as a deterrent to others—as can the increased penalties for which the Bill provides.

New clause 42 seeks to ensure that no prisoner serving a life sentence can be moved to a category D prison before the views of the victim or the victim’s family have been sought and considered. Here I hope that I can offer my hon. Friend some reassurance. We have recently taken steps to enhance the rights to which victims are entitled under the statutory probation victim contact scheme, which covers all victims of serious sexual and violent offences when the offender has received a prison sentence of 12 months or more. Under the scheme, victims already have the right to submit a victim personal statement to the Parole Board when the board is considering whether to direct the release or a move to open conditions of a life sentence prisoner. That allows victims to explain the impact that the offence has had on them, and what the impact of a move to open conditions, or release, would be. Victims have a right to make representations about release conditions attached to an offender's licence, and that includes temporary release from open prison. When there are any concerns about the vulnerability of the victim, the victim can feed into the licence conditions by, for instance, requesting an exclusion zone in the area where they live or work.

New clauses 37 and 38 seek to prevent prisoners liable for deportation from being moved to an open prison or released on temporary licence. When a prisoner is being removed from the United Kingdom directly from prison, a move to open conditions or a temporary release will not serve its key resettlement purposes. That point was made by my hon. Friend the Member for Brigg and Goole. However, in cases in which the prisoner, although liable to deportation, is not actually deported but is resettled here on release from the sentence, the positive benefits of open conditions and temporary release would, if the new clauses were passed, be lost.

Our current policy seeks as far as possible to ensure that those who will be removed from the UK stay in closed conditions, and that those who will not can be considered for transfer to open conditions and temporary release. In such cases, as my hon. Friend would expect, particular care is taken to ensure that the risk assessment takes into account the potential of removal.

When decisions are made about transfer to open conditions or temporary release, Home Office staff will be consulted so that any information relevant to the risk assessment process can be obtained. That includes the likelihood of removal action, history of failure to comply with immigration conditions, previous absconds, any history of deception with the aim of entering or remaining in the UK or evading removal, and any failure to comply with the directions of the Home Office. We are actively reviewing our policy to ensure that it can meet those aims, but we are satisfied that a statutory ban on the transfer to open conditions or temporary release for every prisoner liable to deportation would not be in the interests of reducing reoffending.

My hon. Friend expressed concern about the use of temporary release. New clause 40 would prevent any prisoner serving a sentence for murder from being released on temporary licence. Temporary release contributes to public protection and reducing reoffending by helping those who are due to be released to prepare for life outside prison. For prisoners serving an indeterminate sentence, it also provides evidence for the Parole Board of how an offender complies when in the community. Making this change would lead to offenders who had rightly been away from ordinary society for years being suddenly removed from a strictly regulated regime where most decisions are made for them into the community where they will make most decisions for themselves. Temporary release allows this transition to take place gradually, using short releases, over many months, for the impact of each temporary release to be assessed over this time, and for the risk management plan to be tailored accordingly, while the offender is still in custody.

We have already acted to ensure that public protection is placed at the heart of the temporary release scheme. Changes were made to risk assessment requirements last year following three serious incidents involving temporary release, and on 10 March we announced a package of measures to further improve decision making, monitoring and enforcement of the thankfully rare temporary release failures. To reassure my hon. Friend, I should put this into context for him. There are about half a million releases on temporary licence every year: roughly 0.1% of them result in a failure of any kind and a much smaller proportion of that small proportion involve the suspicion of further offences. None the less, we take all those failures very seriously and we intend to do something about them.

Specifically, from the autumn we will have a new scheme of restricted release on temporary licence for serious offenders. In those cases, there will be more stringent risk assessment procedures, with greater involvement of psychology and probation professionals and more restrictive licence conditions involving probation professionals. As soon as suitable equipment is available, we will be able to tag offenders on temporary release, and we intend to do so. Improving risk assessment and management in individual cases is the right response to concerns about temporary release; a blanket ban on all offenders serving a sentence for murder would be counter-productive. As other Members have said in this debate, this is about a balance of risks. For all those who are released from custody—the vast majority of those serving sentences—it is important to reduce the risk of reoffending as much as we can, and many of the things we have talked about in this debate help to do that.

[Philip Davies]

I am grateful to the Minister for the work he has done in trying to toughen up on some of these issues and on the rights of the victim. On that basis, I am inclined not to press new clauses 29 and 42 to a Division as I understand that some progress is being made. However, on new clause 38 about people liable for deportation being eligible for a resettlement licence, this should not even be negotiable or needed, and on the basis of the Minister’s answer on that, which I have to say was wholly inadequate, I intend to press new clause 38 to a Division, as there is no excuse for allowing those people out of prison at all.

[Jeremy Wright]

I am naturally disappointed to hear that, but let me have one more go. The point I am making in relation to new clause 38 is that there is a distinction between those who are liable for deportation and those who are actually going to be deported. For those who are going to be deported, my hon. Friend is absolutely right that there is no justification whatever for release on temporary licence or transfer to open conditions. For those who are not going to be deported or where there is a reasonable chance they will not be, however, we have to think about the same balance of risks I described to him earlier. That is the logic for making the distinction I sought to make, and explains why I cannot accept the blanket way in which his new clause is phrased.

Let me now deal with new clause 2. The hon. Member for Rotherham (Sarah Champion) has again tabled her amendment to reform the “grooming” offence at section 15 of the Sexual Offences Act 2003. As she said, the amendment would reduce the number of times the defendant needed to meet or communicate with the child in order to satisfy that element of the section 15 offence from two to just one. As she knows, I have much sympathy with this proposal, as I know many other Members do. I am grateful for the work she has carried out with Barnardo’s, and I join in the tributes that have already been paid to her not just for highlighting this particular issue, but for the part she has played in the wider fight to tackle the sexual abuse and trafficking of children.

Our laws in this area are robust and strong. We can be proud that we are among the world leaders in the fight to protect children from sexual abuse. However, as the hon. Lady knows, I remain open to suggestions for improvement in this aspect of the criminal law, and in Committee I promised to look carefully at the issues this amendment raises. I do, however, believe it is vital that before we proceed with such a reform, we ensure that we have first considered all the issues and evidence fully. With that in mind, my officials recently met Barnardo’s to ascertain the full extent of the problem. Barnardo’s has now reported to my officials with some supportive evidence and we are expecting further material from them shortly.

As well as examining this evidence, we are considering how such an amended offence would interact with the existing offences in the Sexual Offences Act 2003. We will then be in a better position to consider how this reform can be taken forward. I can assure the House that this Government remain committed to the protection of our children from sexual abuse, and we are looking seriously at the proposed amendment and will report our position as soon as possible.

On new clause 3, as the hon. Lady knows, section 2 of the Child Abduction Act 1984 makes it an offence for someone other than a certain person such as parents or guardians to take or detain a child under the age of 16 so as to remove or keep him or her from a person’s lawful control. The point here is that the offence can be committed irrespective of the consent of the child concerned. I understand the hon. Lady’s intention is to bring the section 2 offence in the Child Abduction Act into line with the abduction offence in section 49 of the Children Act 1989. My right hon. Friend the Member for South East Cambridgeshire (Sir James Paice) made the same point and I understand it entirely, but, as I explained in Committee, such a change would lead to difficulties. Young people of 16 or 17 are lawfully able to be married, are generally deemed capable of living independently of their parents, and are otherwise able to make decisions affecting their way of life, not least in sexual matters. The amendment would make it a general offence with a maximum sentence of seven years’ imprisonment to take a person of that age who is capable of exercising his or her own free will in that regard away from his or her parents. I therefore hope the hon. Lady will understand that the position on new clause 3 is different from the position on new clause 2.

I will now turn to new clause 15. As the hon. Member for Barnsley Central knows, we debated this amendment in Committee so I hope he will not be too surprised to find that not much has changed since then. He did make some additional points that I want to pick up on, however.

I repeat that the Government are firmly committed to the protection of members of the armed forces, veterans and their families who, as the hon. Gentleman and others have said, make a valuable contribution to our society. They deserve the full protection of the law, but I am not convinced that his proposal is necessary to achieve that. His amendment would attach a statutory aggravating factor to assaults and other offences committed against members of the armed forces. I will not repeat everything I said in Committee about personal characteristics, and he has highlighted that that is a different matter. He added two further points to what he said in Committee, however. He mentioned the fact that special provision is made for police constables and prison officers. The reason for that is the nature of their work—we talked about that a littler earlier—and the likelihood that they will be assaulted in the course of their work. That does not apply to many other professions, including, I would suggest, the armed forces. He is right of course that someone’s profession, particularly if they are in the armed forces, can be a large part of their identity, and he has already highlighted the fact that there are sentencing guidelines in place, which the courts are required by law to follow, which make it clear that it should be considered an aggravating factor if the victim is serving the public.

The hon. Gentleman also raised the question of what happens when someone is off duty. It is probably worth looking back to the case of Lee Rigby. This was a soldier who was not on duty at the time. The hon. Gentleman will, I am sure, have seen the sentencing remarks of the sentencing judge for the killers of Lee Rigby; it is clear from them that the fact that this was an off duty soldier was taken into account by the court. In the light of that, I hope the hon. Gentleman will see fit not to pursue his amendment.

Amendment 20 would replace the Government’s proposed targeted extension to the extreme pornography offence with a much broader provision. It would capture any sexual activity that involved real or apparent lack of consent, or some form of restraint which prevented a person from indicating withdrawal of his or her consent—for example, a gag. I absolutely understand the good intent here of the hon. Member for Kingston upon Hull North (Diana Johnson). I know what she is trying to achieve, but I have to say to her that this would be far too broad an extension to a tightly drawn and deliberately targeted offence. It will always be a matter of judgment as to whether we have gone far enough, and I quite understand that she will want to return to these arguments. However, I hope she will accept our argument—she may want to look again at the Hansard record of our proceedings in Committee, because I am about to run out of time—as to why the provision should be drafted this tightly. I therefore hope that, on that basis, she will not press the amendment to a vote, but I quite understand that she will want to return to the subject another day.

[Philip Davies]

This has been a rather disappointing debate, as we might have predicted. Although I would have liked to have a vote on all my amendments, which are all worthy of a vote, in order to test the will of the House, on the basis of the Minister’s response I will withdraw new clause 29 and instead press new clause 38 to a vote.

Clause, by leave, withdrawn.

--- Later in debate ---

In many other places we have seen that success happens in small units where young people can be treated as individuals and educated on how they should be able to take their rightful place in the world. Please will the Minister look at other systems where young people are treated in custody, and please will he not go ahead with this bizarre notion of a secure college? It is not going to work; please do not carry out this experiment at the cost of our young people in the criminal justice system.

[Jeremy Wright]

I think that we had a constructive debate in Committee, and it is disappointing that the Opposition have set their face against secure colleges. I will not be able to pick up on all the points made during the debate, but let me do my best.

Amendments 16, 17, 18 and 21 would effectively remove from the Bill all reference to a secure college, and it is worth starting with the context of our proposed reform of the youth secure estate. At present we pay around £100,000 a year on average for a place in youth custody, and yet almost 70% of young people go on to reoffend within 12 months of release. For secure children’s homes the cost rises beyond £200,000 a place, yet reoffending outcomes are little different.

To give the House the facts, the proportion of offenders who reoffended in the 12 months to March 2012 is as follows: 69.9% in young offenders institutions; 70.1% in secure training centres; and 67.6% in secure children’s homes. That is why we need to do something different, and why we are pursuing the idea of secure colleges. I have heard the arguments tonight and, indeed previously, that there are better ways to improve the youth custodial estate, and in particular that smaller establishments such as secure children’s homes are more effective. The figures for reoffending that I have given do not demonstrate that, but I understand that plenty of good work is done across the estate.

The hon. Member for Barnsley Central (Dan Jarvis) asked whether we considered spending the money on the existing estate, and the answer is yes. However, if we continue to do the same things in the same ways, we can expect the same results. He seems to have said this evening that he accepts that the status quo is not acceptable but he does not think that secure colleges are the right way to go. He clearly favours a much more small-unit approach, such as secure children’s homes, but I wonder whether he has considered the cost of that. Our rough guess is that putting all young people currently detained in custody into a secure children’s home would cost in excess of £100 million more a year than we currently spend. I would be interested to hear—as, I am sure, would the House—how exactly that would be paid for by the Labour party if that is its intent. I suspect it does not know.

The truth is that no current model of youth custody is delivering the types of outcomes that we all want to see, or providing sufficient value for money for the taxpayer. That is why we want to consider secure colleges. I am conscious that there is an appetite to hear more detail on how secure colleges will operate than primary legislation can provide. It is therefore worth pointing out to the House that during the Bill’s passage we intend to publish and consult on our plans for secure college rules, including, where appropriate, setting out some indicative draft provisions. This will provide both Houses with more information on how we expect secure colleges to operate.

[John McDonnell]

During the passage of the Bill? We are on Report! This is the end of the Bill’s consideration in this House. We have one more day. We will not return to this issue unless the other place amends the proposed legislation.

--- Later in debate ---

[Jeremy Wright]

If the hon. Gentleman takes the time to look at the programme motion he will see that there are two days allowed on Report. This is the first day, not the second. [Interruption.] I have made the position clear.

[John McDonnell]

Will the Minister give way?

[Jeremy Wright]

No, I am afraid I will not. I have 10 minutes left and a good deal of ground to cover. There will be a second day on Report and the other House will get to consider this matter. The hon. Gentleman was not present in Committee. Had he—

[John McDonnell]

On a point of order, Mr Speaker. I am sure the Minister does not wish to mislead the House about the processes of this House. I would like absolute clarity. I am a Back-Bench Member dealing with this part of the Bill on day one, which is considering this part the Bill. On the basis of the programme motion, this part of the Bill will not come back for consideration on day two, so this is my last opportunity to consider the matter unless the other place amends the Bill on this point. I will not have the opportunity to take part in a debate informed by the publication of these rules. Is that accurate, Mr Speaker?

[Mr Speaker]

The hon. Gentleman has described the procedure accurately. What he has said is not something from which I wish to dissent. I cannot rule on it, but what he has said is procedurally correct.

[Jeremy Wright]

I make two points to the hon. Gentleman. First, if he looks carefully at the programme motion—I am sure he understands this very well—he will see that there will be a Third Reading debate at the end of the second day on Report. He will have the opportunity to raise something then. Secondly, it really would not matter what the secure college rules say, would it? The hon. Gentleman has made his position crystal clear. He thinks this is a capitalist conspiracy to privatise youth justice. He is not interested in the details of secure colleges at all; he is interested only in what he perceives to be the political animus here. If he will allow me to do so, I will come on to the detail that he says he wants to discuss. Let us discuss it.

Amendments 13, 14 and 15 relate to secure children’s homes and the placement of under-15s and girls in secure colleges, an issue of perfectly legitimate concern that was raised in Committee. Let me set out the Government’s position. There was much debate in Committee, and again here on amendment 13, on secure children’s homes. We accept that secure colleges will not be appropriate for 10 and 11-year-olds remanded or sentenced to custody. We have also made it clear, in our response to the “Transforming Youth Justice” consultation, that there are likely to be some detained young people who will continue to require specialist separate accommodation on the grounds of their acute needs or vulnerability.

The Bill provides for secure colleges. It does not seek to make any changes to the existing legislative provision relating to secure children’s homes. Local authorities, rather than the Secretary of State, provide secure children’s homes. We think it is right that they retain that responsibility. The nine new Youth Justice Board contracts and the increased use of welfare places demonstrate that there is currently high demand for secure children’s home provision. Quite properly, the Secretary of State and the YJB exercise their various powers to provide and commission secure accommodation for young people remanded or sentenced to custody in such a way that suitable accommodation is available for those young people. That includes commissioning places in secure children’s homes as appropriate. I have made it clear before that that will continue.

There was also detailed discussion in Committee of whether girls and under-15s will be accommodated in secure colleges. Amendments 14 and 15 would prevent the placement of any young person under 15, and any girl, in secure colleges. Let me point out again that I recognise concerns that accommodating a large number of boys and only a small number of girls could, if the risks are not properly managed, place those girls at risk. That was very much the point made by the hon. Member for Stretford and Urmston (Kate Green). I also recognise that girls in custody often have a range of complex needs and that it will be important that the secure colleges meet those needs. I am afraid that I do not have time to go into the detail she raised, but I will write to her if I can. The one question I can answer immediately relates to care for young mothers. There is currently a mother and baby unit at the Rainsbrook secure training centre. If that is not to continue, we must make provision elsewhere.

My hon. Friend the Member for St Austell and Newquay (Stephen Gilbert) and others suggested that it might be daunting for children as young as 12 to be in the same secure establishments as 17-year-olds, although such age groups rub shoulders in mainstream secondary education and, indeed, in some of the other establishments that we have discussed. I am confident that those risks can be managed in secure colleges, and I want young girls and younger children to have access to the facilities and opportunities that will be provided in them. Having said that, I should make it clear that no final decisions have been made on who will be accommodated in the pathfinder secure college. Such decisions will be taken later in the development of the pathfinder, and in the light of careful analysis of the needs of the youth custodial population and the implications for the different groups who may be accommodated.

Amendment 11 makes an important point about the use of force. I recognise that the issues of good order and discipline and how they are maintained are at the heart of the amendment. There was considerable debate about those issues in Committee. I sought to reassure Members then, and I am happy to try to do so again now.

The duties of custody officers include maintaining good order and discipline, but the provisions in the Bill will not by themselves allow them to use force for that purpose. That will not be possible unless specific provision is made in the secure college rules, in which the boundaries on the use of force should be set out. I repeat that we intend to consult on our approach to secure college rules.

I entirely understand that the term “good order and discipline” could be considered too broad in this context. Let me try to explain exactly what we have in mind. This is not about using force for the purpose of discipline as a form of punishment, or simply to make a young person follow an instruction. We have always made it clear that force must not be used merely to secure compliance with an order. We believe that, as a last resort, in the limited circumstances in which all attempts to resolve the situation without resorting to force have failed, and in which a young person’s behaviour is having an impact on his or her own safety and welfare or that of others, some force—subject to strict conditions and safeguards—may be necessary. Force may be used as part of securing good order and discipline only when there are clear risks to the maintaining of a safe and stable environment for young people, and when its use is a necessary and proportionate response in order to protect the welfare of the individual or that of others. I hope that that explanation is helpful. As I have said, further debate will doubtless take place when Members have seen the secure college rules.

I am grateful to those who tabled amendments relating to health and education. I shall not have time to discuss them in detail, but Members may wish to read the Hansard report of the Committee stage, when we debated precisely these matters. NHS England will have a duty to assess the needs of young people in a secure college to determine which services should be provided. NHS England applies the Intercollegiate Healthcare Standards for Children and Young People in Secure Settings, which were developed by the royal medical colleges and published last year.

The qualifications of teachers have been mentioned. It is, of course, important for properly qualified individuals to provide many services in secure colleges, but in some cases engaging and effective education may be delivered by individuals without a teaching qualification. I believe that the experience and aptitude of staff who work with this challenging cohort are more important than the qualifications that they may have. I should also remind Members that secure colleges will be inspected by Ofsted.

A key point has been made about special educational needs. I apologise to my hon. Friend the Member for South Swindon (Mr Buckland) for the fact that I shall not have a chance to discuss it with him in detail, but it was raised in Committee, and I assure him that a great deal of further thought will be given to how those needs can be met.

Amendments 5 and 6 are required as a consequence of the agreement in Committee to extend the secure college provisions of the Bill to Wales. We have liaised closely with the Welsh Government on our plans for secure colleges, and they have confirmed to us that they are content for the amendments to be made.

Amendments 3 and 4 to clause 63 are technical amendments to correct the territorial extent of the provisions on contracting out. I hope they will cause the House no difficulty.

Question put, That the amendment be made.