Criminal Justice and Courts Bill Debate
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Lord Beecham
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Criminal Justice and Courts Bill
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Lord Beecham
“(13) Before this section comes into force, the Secretary of State shall—
(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and(b) lay a report before Parliament containing—(i) his assessment of the resources required for additional hearings; and(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.”
Lord Beecham (Lab)
My Lords, I shall speak also to Amendment 8. Amendment 1 is by way of a sunrise clause that would require the Secretary of State to consult the Parole Board about the resources required for additional hearings resulting from the implementation of this clause of the Bill, which deals with the arrangements for the Parole Board, and lay a report before Parliament containing his assessment of the resources required for additional hearings and his plans to ensure that the board has sufficient resources to fulfil the requirements of the proposed section.
The amendment was the subject of debate in Committee. It was prompted by the growing pressures on the Parole Board and the impact that they were having on the timely discharge of its responsibilities. In that debate I expressed concern about the effect on the board’s workload of a number of provisions in the Bill as a result of the number of categories of offender being made subject to the decision of the board in relation to release instead of being eligible for automatic release after serving two-thirds of their term. These cases include prisoners convicted of terrorist and explosives offences, who would be subject to the enhanced dangerous offenders scheme, all offenders serving extended determinate sentences, and others who would be subject to discretionary, rather than automatic, release after serving half their term. In addition, the Bill prescribes a new release test for recalled prisoners.
All these factors threaten a substantial increase in workload, with a potential requirement, on the Government’s own estimate, eventually, of 1,000 extra prison places. The situation is certain to be made worse by a substantial anticipated rise in oral hearings consequent on the decision of the Supreme Court in the case of Osborn. Given the department’s track record in forecasting the effect of IPPs on prison numbers, there must be some doubt, to put it mildly, as to the robustness of its estimate. As it is, the board is anticipating holding an additional 4,500 oral hearings a year.
The Minister wrote to me on 29 July in reassuring terms, saying that the experience of the first few months after the judgment showed that the board’s predictions about the caseload were too pessimistic, and that in any case, it was,
“developing significant changes to its operating model and these were being tested”.
The Minister affirmed that the resources question would be kept under review and, of course, I welcome that. It would, however, be interesting to know what the projected caseload in that respect now looks like and what the anticipated cost is and to receive an assurance that any extra work for the board, and its already reduced staff, will not be at the expense of its basic caseload and the times in which it can deal with hearings. Will the Minister provide his assessment of the cost of the additional hearings and how and when this will be met? In particular, will he tell us what consultations have taken place with members of the board and others over the proposal for one-member panels for determinate sentence reviews and two, instead of three, members for indeterminate case reviews?
The Minister hinted somewhat coyly that the Government were,
“considering a number of options”
to address the situation. Three months after the relevant debate in Committee, and all of six days before the first day on Report, the Government unveiled their proposal to create an entirely new service, recall adjudication, which is the subject of the Government’s amendments in this group and of my further amendment. The Government’s proposals are based on the judgment of the Supreme Court in the Whiston case, which the Government interpret as giving a green light in terms of compatibility with human rights obligations—assuming that these are not to be abrogated as the Tory Party attempts to fend off the threat from UKIP. Justice, however, the legal organisation, questioned the robustness of that interpretation.
The Minister organised a briefing meeting at short notice and will, of course, describe the proposal in the course of this debate as he speaks to the amendments in his name. In essence, however, the Government propose to allow the Secretary of State to refer determinate sentence recall cases to a recall adjudicator, which may, in a somewhat circular fashion, turn out to be the Parole Board. Consultations have apparently been held with the board and the judiciary. The Minister told those of us who attended the meeting that they had apparently approved the change, although, for some reason, there has been no public consultation nor, until now, any parliamentary involvement. Such parliamentary involvement, of course, in terms of this Bill, is at virtually the last gasp.
In his letter of 13 October, the Minister indicated that the department would be working with the Parole Board and other unidentified stakeholders on,
“the drafting of the rule”—
in the singular, strangely—
“the design of adjudicator model and the guidance underpinning this”.
That is all very well, but Parliament is not being consulted, nor will it have any opportunity to exercise any judgment about the proposals. It is simply being expected to sign a blank cheque with the promise that the resources aspect will be the subject of a report to Parliament—eventually—but with no apparent intention to seek parliamentary approval of this or any other aspect of what is, after all, a radical change. This is happening at a time when the Parole Board is in the middle of a triennial review which these proposals will clearly pre-empt.
As the Prison Reform Trust points out, even if it were proposed and acceptable for determinate sentence recall prisoners to be denied an oral hearing, why, at the £60 cost of a paper hearing, is it necessary to create a wholly new and untested structure? How sensible is it, when the whole system is caught up in a maelstrom of change and acute pressures which affect all the statutory players—the Prison Service, NOMS, probation, the police and the courts—to add another ingredient to the mix?
In the event the proposal may prove to be acceptable, but at this stage we have very little information to go on; for example, on the criteria on which the Secretary of State will rely, the qualifications, training and job description of those who will be employed, or, of course, the cost. Given the plethora of as yet unanswered questions, it would clearly be desirable for change of this magnitude to be the subject of a proper parliamentary process before what may, it is to be hoped, be a positive change. It is equally desirable, if not more so, to review the outcome of this untested change and secure parliamentary approval after a period in which its efficacy can be judged—hence the second amendment in my name, which is a sunset clause, as opposed to the original sunrise clause in Amendment 1.
I submit that it is not unreasonable to ask the Government to bring forward a report on the workings of this new arrangement, with details of full costs and the like, and then after a modest period to seek approval for its continuation. This habit of last-minute amendments, one with which we are becoming too familiar, not merely from this department but from others, impedes the proper functioning of parliamentary scrutiny and of your Lordships’ House in particular. The Minister is not personally responsible for that, but his political master is, and it is time that the Lord Chancellor and Secretary of State bore in mind the role of this House and of Parliament as a whole in considering matters of great public moment such as those that affect the Prison Service, those who work in the Prison Service and, of course, those in their custody. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to make one very small point about the Government’s proposals, which is mainly to do with the name “recall adjudicator”. I understand that when a district judge goes to prison and hears cases and then gives an additional period in custody to prisoners who offended while in custody they are referred to as adjudicators. We will have adjudicators turning up at the prison gates, plus recall adjudicators. I wonder whether that is a sensible way to proceed. I raise that as a small point.
Lord Beecham
My Lords, I am grateful to the Minister for his typically clear exposition of the Government’s position—or some of the Government’s position. I thought there were some omissions in how he put matters. He adopted the Candide style of defending the Government, where everything is the best of all possible judicial worlds, but that might be a slightly flawed approach in the circumstances. He did not, for example, deal with the point of the Government’s own estimate of 1,000 extra prison places being required as a result of the changes in category. That was before the Osborn case, which will clearly increase the load further. It may be that the board’s original estimates were on the high side, but there can be no gainsaying the fact that the board would be required to conduct a great many more oral hearings than at present.
There may well be merit in the Government’s proposals for recall adjudicators, but I do not know why the Minister should be so hesitant about reviewing the position in a couple of years. If, indeed, he is confident that the system will work, there would be no problem. If, on the other hand, the system presents problems, it is as well to deal with them before too long a period of time passes. I should have thought that the sunset position in respect of the new organisation would be worth considering. The problem that the Government and the Parole Board face is, of course, the huge number of matters to be dealt with. The noble and learned Lord, Lord Lloyd of Berwick, will hopefully be making his contribution to reducing those numbers, shortly, perhaps. We will see what happens.
At the moment, what we seem to end up with is a two-tier system and it is not quite clear to me how the two organisations will be managed. The Parole Board exists as a board. Will the adjudicators, for example, be directly a board or will there be a separate board for that? All of this is up in the air. It is, frankly, not good enough for the Government to say that they have to rush this legislation through because of the Whiston case. That is not the case at all. They could have taken the time to consult, not only with those within the system but with those outside it, and not simply—though necessarily—with the House of Commons and your Lordships’ House, but with other interested parties. None has been given an opportunity to be consulted on a major change of this kind. I do not blame the Minister, but it is regrettable that the Government have acted in this rather typical way under the aegis of the present Lord Chancellor.
I will not divide the House on this matter. We hope that the system works. We would like the Government to consult widely, even now, on how the matters are to be taken forward, and to keep the matter under review. It may be that, for example, the Justice Select Committee will want to look at the operation of the new system after a period. However, that does not excuse the Government for bringing legislation to us at short notice, in a matter as important as this, without allowing for a proper examination. Having said that, I beg leave to withdraw the amendment.
Lord Beecham
My Lords, I welcome the noble Lord, Lord Ashton of Hyde—more Jekyll than Hyde, I would have thought—to the Dispatch Box on what I think is his first occasion and congratulate him on the way in which he has presented the amendments. I look forward to working with him until he starts speaking from this Dispatch Box next May.
There is nothing much more to be said because, on these amendments, there is no great concern on the part of the Opposition or anybody else. Nevertheless, I am sure that the House will join me in congratulating the noble Lord and echoing my anticipation of listening to many more contributions from him on this Bill. I dare say that the noble Lord, Lord Faulks, would welcome some help from him during the next few days, and I am sure that he will get that.
Lord Ponsonby of Shulbrede
My Lords, I want to speak in favour of the amendment of the noble Lord, Lord Marks, but to slightly widen the point that he made. It is my understanding that if one gives a suspended sentence when sentencing and includes, as a part of that, a curfew, then the court is obliged to provide that the curfew is tagged. Very often that is appropriate, but not always. I have certainly dealt with cases where it was totally unnecessary to tag the offenders concerned and it just added to the cost of the whole sentence. There should be judicial discretion when giving tagged curfews in suspended sentences.
Lord Beecham
My Lords, the Bill extends electric monitoring, a procedure which thus far has proved problematic and extremely expensive, when you think of the problems with G4S and I think Serco in the contracts that they had. It extends the principle into new territory—namely, that of prisoners on licence. The policy in that respect has been criticised by the Chief Inspector of Prisons on the grounds that there is little evidence of absconding or committing further offences while prisoners are on licence. It would be interesting to hear the Minister’s comments on that. In passing, I hope that he is in a position to deny current rumours that the highly respected chief inspector is unlikely to be reappointed. He has a deserved reputation for the job that he has been carrying out in difficult circumstances for the last few years.
The impact assessment in support of this provision is somewhat feeble. It states:
“Though benefits likely to arise from the increased use of ELM have been identified, we are not able to quantify these benefits at this stage, as ELM is not yet in widespread use in England and Wales. As such, we are unable to calculate impact”.
In other words, this is an impact assessment with no impact whatever. As the following further statement confirms, the number of additional prison places cannot be accurately estimated. Let us reflect on the terrible overcrowding in our prisons now, with a shocking rise in the number of suicides, as we read at the weekend. What is the Government’s estimate of the likely impact of the implication of this new technology, in terms of both cost and of increasing the prison population?
The way in which the Government intend to progress the matter is, as usual, equally unsatisfactory, with the Secretary of State empowered to impose a code of practice without parliamentary scrutiny or approval—hence Amendment 8, which would require such parliamentary approval for the code of practice that the Government envisage. Perhaps the Minister could tell us what is happening about the code. In Committee, the then Minister, the noble Lord, Lord Ahmad, who has escaped or is on licence to another department, said that a revised code would be issued to promote transparency in relation to outsourced services. What is happening about this? What consultations have taken place, and with whom? Will there be reports on the outcome of those consultations?
Amendment 7 would make contractors subject to the provisions of the Freedom of Information Act in the same way as public authorities. It seems absurd that, in the world of the Ministry of Justice alone, Her Majesty’s prisons are subject to FOI requirements while private prisons are not. Given that we are talking about encroachments on the liberty of the individual—and they may well be justified in many cases—it is surely necessary to extend the protection of the FOI regime to this area. I should make it clear that we are not against electronic monitoring, as it clearly has a place, but it must be technically effective and cost effective, especially in the light of the previous experience, with the contracts that went so badly awry and led to large sums of money having to be reclaimed from the contractors, and applied sensibly. We have very little to go on at the moment in terms of how the new scheme would work.
Lord Faulks
My Lords, I am grateful to all noble Lords who have taken part in this debate. Perhaps I should begin by suggesting that Amendment 6 is, perhaps, not as well conceived as it might be, because it would provide for the court to decline to impose an electronic monitoring condition in certain cases. However, the court has no role in setting conditions for offenders released from custody on to licence after serving the required part of their sentence. This is a matter for the Secretary of State, through the governor. The parole board also makes recommendations as to licence conditions when the offender is subject to discretionary release.
In the case of an electronic monitoring condition imposed by virtue of an order made under proposed new Section 62A of the Criminal Justice and Court Services Act 2000, as inserted by Clause 7, this is solely a matter for the Secretary of State, through the governor. The amendment would actually have no effect. However, I understand the concern behind the amendment, which is that offenders should not be made subject to compulsory electronic monitoring when this is unsuitable for some reason, or when it is impractical. We recognise that there will be offenders who are unsuitable for compulsory electronic monitoring. For example, this may be because of physical or mental health issues, or because of a practical problem, such as not being able to make arrangements for the offender to recharge the battery in the tag.
These issues are, we suggest, already dealt with by the clause. The order-making power specifies that the Secretary of State may provide for cases in which the compulsory condition should not apply. I appreciate that this may not be immediately obvious from a reading of the clause, but the Explanatory Notes—although I take the comments of the noble Lord, Lord Beecham, about their inadequacy in some respects, and I shall come on to deal with that—are helpful in this regard, as indeed was my noble friend Lord Ahmad when he spoke on the matter in Committee.
Lord Beecham
Could the Minister indicate whether there will be consultation on those proposals, and with whom?
Lord Faulks
I hope to come to that in a moment.
As was explained in Committee, the code will not only encourage the use and enforcement of contractual provisions to ensure that current FoI obligations about information held on a contracting authority’s behalf are met but will promote the voluntary provision of other information where this would help to provide a more meaningful response to requests. The success of this approach will, as was also made clear in Committee, be monitored by both the Government and the Information Commissioner. If it does not achieve sufficient transparency, we will consider what other steps, including the possible formal extension of FoI to contractors, are required. Once the code of practice is issued, it is important that we give it the opportunity to prove its worth before deciding whether further measures are necessary. I therefore invite noble Lords not to press Amendments 7 and 120.
We also debated Amendment 8 in Committee, and I sought then to explain why it is not appropriate. We agree that the code of practice is a necessary and important document. It is intended to make sure that the necessary safeguards are in place for the proper management of the data gathered by electronic monitoring conditions. It will, of course, comply with the Data Protection Act. However, it is for operational purposes and will not introduce any new legal requirements. That is why we do not propose to agree its content through parliamentary procedure.
I should remind the House that it passed the provisions in the Crime and Courts Act 2013 that inserted new Section 215A into the Criminal Justice Act 2003. This also provides for a code of practice relating to the processing of data from electronic monitoring and is linked to provisions allowing location monitoring of offenders as a community requirement. This provision was approved by Parliament with no requirement for the code to be subject to affirmative secondary legislation. The amendment would, therefore, be inconsistent with the provisions already approved for a code of practice.
I should perhaps add a little more about the scrutiny that has been undertaken in relation to electronic monitoring and the approach to contract management that has informed the new contracts. Within the MoJ, and specific to electronic monitoring, this has meant the new contracts being drafted and let with key elements such as open-book accounting being critical. Accountability for contract management will be much clearer, with contract owners called regularly to account for their detailed knowledge of the contracts and their operational assurance that services are properly assured and audited.
On the amendment, I can only reiterate the assurances that I have given previously. We have committed to consultation on the code of practice, which will include consulting the Information Commissioner. I also confirm that the code of practice will be published. I do not have, at the moment, a specific date for publication of the code of practice but we hope to issue guidance to the standard contract clause by the end of 2014. If I receive further information on the probable date for the code of practice, I of course undertake to inform the House, and certainly the noble Lord, Lord Beecham.
I hope that I have satisfied the House on these issues of concern. Electronic monitoring would naturally be a matter of concern, but it is also a valuable tool in the detection and prevention of crime. I therefore ask the noble Lord to withdraw his amendment.
Lord Beecham
My Lords, I join other noble Lords in paying particular tribute to the noble and learned Lord, Lord Lloyd, who has been indefatigable in pursuit of correcting an injustice. I will say at the outset that while I agree from these Benches that action needs to be taken to redress the situation, I will not be going through the Lobby with him, but nor will I, if the Government resist this amendment, go through the government Lobby. The problem is that the amendment may extend to people within the category, most of whom should certainly by now have been released, but who nevertheless remain, on proper assessment, people with whom there would be a risk if they were released. I submit that the correct procedure is for the Lord Chancellor and Secretary of State to exercise the power that is clearly given to him in the legislation.
One of the issues that has so troubled Members of this House and many outside is the failure of successive Governments—and I am afraid that it was true of the Labour Government—to provide the necessary resources which would enable people in serving these sentences to qualify for release. I am minded to refer to a letter which I received a month ago—one which other Members of your Lordships’ House may also have received. It is not from somebody who has actually been imprisoned for as long as those who are the subject of the amendment, but it is nevertheless a very telling example of what is still happening as a result of that failure to provide the resources, and shows the need for the system to be robust in examining the cases. I am not sure whether the writer of this letter would want me to quote their name or indeed the name of the prisoner on whose behalf the letter was written, but it will give a flavour of the situation, which is much worse for those who have been inside prison for a longer period.
The person in question, the correspondent tells me, was charged with attempted actual bodily harm and grievous bodily harm with intent, and was given a three-year IPP. He is now a year and a half over tariff, which is much less than those who would be covered by the amendment. In addition to the stress of not knowing how long his sentence will continue, during his incarceration he has suffered the loss of his wife and mother, and has been diagnosed with lupus and is obviously on medication for this. He has been an enhanced prisoner virtually throughout his sentence, with no reprimands, sanctions or IEP warnings. He is the healthcare representative for his wing as well as the violence reduction and older persons’ representative. He has undertaken every course advised by the authorities and completed his sentence plan. Together with fellow IPP prisoners, he now needs to know what further action they can take to secure their release date. Just knowing their official release date would give both them and their families something on which to focus. Having a definite date when their future will start will enable them to put their past troubles behind them. To have no end to their sentence is surely unacceptable in this day and age, and in fact is the reason that this whole system was deemed out of date and not viable.
That is a very clear illustration and telling indictment of the present situation. It has to be corrected. For the reasons already given, I do not believe that the noble and learned Lord’s formulation quite meets those requirements or deals with—
Lord Wigley
If this formulation does not meet the requirements, why has the Labour Party not put forward its own amendment to do so?
Lord Beecham
Because the Act to which we have already referred gives the Secretary of State the power to do exactly what is required. He should be exercising that power, and that is what we would expect him to do.
We share the concern of all Members of your Lordships’ House, and the deep anxiety voiced about what is happening to people who serve much longer sentences than the person whose plight is laid out in this correspondence. We call upon the Government to use the power that they rightly conferred upon themselves just two years ago. In that way the matter can be resolved. Of the 650 prisoners, while some are still deemed to be at high risk, many are already deemed to be at low risk and on that account very likely to be released. As other noble Lords have pointed out, that will free up prison spaces and potentially reduce the cost to the public purse, both of which are highly desirable objectives. Therefore I hope the Minister can give an indication that action will be taken—if not necessarily strictly along the lines that the noble and learned Lord, Lord Lloyd, has proposed then in some other way—to deal with the appalling situation affecting too many people which has accumulated over the years.
Lord Faulks
My Lords, this has been an excellent and very well informed debate, with contributions from sources well versed in the law and experienced in criminal law, and sources who had occasion to come into contact with the law and its implications. I am grateful for all those contributions, many of which were extremely economical—I congratulate noble Lords on their restraint in allowing the House to proceed—but powerful.
We return to this subject of IPP prisoners who remain in prison despite the fact that the sentence has now been abolished and may not be imposed on offenders convicted after December 2012. We debated a very similar amendment at length in Committee so I do not intend to rehearse the entire debate we had then. Noble Lords are well aware of the Government’s position and we do not think it would be right or appropriate retrospectively to alter IPP sentences that had been lawfully imposed prior to the sentence’s abolition, particularly because these sentences were imposed with public protection issues in mind. However, I recognise, as many noble Lords have said, that fairness—an elusive concept though that is—should be at the forefront in considering these issues, as should the equally elusive concept of justice that is vital in considering issues of this sort. I am also painfully aware of the implications of keeping any prisoner one day longer than he or she ought to be kept in prison because of the expense involved, expense that we can ill afford, but the Secretary of State has to balance concepts of fairness and justice with his duty to protect the public.
Perhaps I may make one or two observations about the history, which has been summarised by noble Lords in the course of this debate. While echoing the worthwhile tributes paid to the noble and learned Lord, Lord Lloyd, for his tenacity in this area, I cannot quite agree with his assessment of the disparity in position between short-tariff IPP offenders sentenced before the 2008 reforms and those sentenced afterwards. It is not the case that, prior to 2008, courts were without any discretion in imposing IPP sentences. It was in the court’s discretion to judge whether the offender met the high risk threshold set out in the 2003 Act—did he present a significant risk of serious harm? The presumption that he presented such a risk if he had committed a previous Schedule 15 offence was a rebuttable presumption, and the court was free to disregard it if it was not a reasonable view in the individual case. I do not deny that, where they found the offender to meet the dangerousness threshold, courts were indeed obliged to impose IPPs on eligible offenders, and that was plainly Parliament’s intention.
I should also stress that it remained possible to receive an IPP with a lower tariff than two years until IPPs were abolished by this Conservative-led Government by the LASPO Act 2012 where the offender had a serious previous conviction, and in fact a number continued to get short-tariff IPPs. It is likely that some of those sentenced to IPPs with short tariffs between 2005 and 2008 would have remained eligible for an IPP, and perhaps received an IPP after the 2008 reforms. I cannot agree, therefore, that this group of IPP prisoners can be presumed to be less dangerous than other IPP prisoners.
As I have said before, it is right that offenders serving indeterminate sentences of imprisonment for public protection—a species of preventive detention, as the noble and learned Lord, Lord Brown, said—should continue to be detained post tariff if their detention is necessary for the protection of the public and they are therefore not safe to release. The noble and learned Lord, Lord Lloyd, and a few others have seen an analysis of management information, prepared last year, relating to the situation of IPP prisoners who were sentenced prior to July 2008 with tariffs of under two years, who remained in prison and whose tariff had expired.
It is true that initially the cost of providing the information, which has been accurately summarised by the noble and learned Lord, was considered too high but, such was his tenacity and, as I understand it, such was the respect that the Ministry of Justice had for him, the information was provided and has been summarised by the noble and learned Lord. The position is that my colleague the Prisons Minister, Andrews Selous, has agreed with the House authorities that the information can be lodged in the House Library. It will take one week for this to appear but I confirm that he has requested that it be put in the Library. However, I can also confirm that the figures that the noble and learned Lord announced were accurate, so they have informed the debate in terms of the numbers and the periods in prison.
Lord Beecham
“Stop and search of children below the age of 10
In section 1 of the Police and Criminal Evidence Act 1984 (power of constable to stop and search persons, vehicles etc.), after subsection (2) insert—“(2A) Where the person is below 10 years of age, an appropriate adult must be present before the search may be undertaken.””
Lord Beecham
My Lords, this amendment addresses the problem of stopping and searching children below the age of 10 and requires an appropriate adult to be present before the search is undertaken.
As I said in Committee, the amendment stems from the report of the All-Party Parliamentary Group on Children chaired by my noble friend Lady Massey. In reply to a request for information about stop and search, the group was told that between 2009 and 2013, 1,136 children under the age of 10 were subjected to the process in 22 police force areas. The figures are something of an underestimate because the Met’s record did not include 2009 and 2011, and other forces did not supply information. It is noteworthy and somewhat surprising that the Sussex police force apparently conducted 454 of those searches, which is a high proportion of the total number. That suggests either that there are some particular problems in that force’s area, or, perhaps more probably, that recording elsewhere is not reliable, so the national figure is probably understated.
It is regrettably apparent that there is no complete picture of the number of children under 10 who have been subjected to this procedure, such that the scale of its use can really only be estimated. In Scotland, 72 children of seven years or under were stopped and searched. Some forces make an effort to take a child home before searching, but they were unable to say how many looked-after children were subject to the procedure, and only 20 police forces—around half—had separate custody facilities for children in the police stations.
The all-party group very reasonably suggested that data should be collected in relation to ethnicity and on other aspects, noting that among the forces that supplied data on the ethnicity of under-18s, 41% were black and Asian—a disproportionately high quotient. It was noted that some forces do not even record the names and addresses of these children or their dates of birth.
The Home Office has reviewed stop and search powers in general. I congratulate the Home Secretary on the steps taken in that respect, but specific guidance on this issue appears to be lacking. In his reply in Committee the Minister appeared to be somewhat complacent, if I may say so, when he stated that existing provisions were adequate. He referred to the safeguards already in place for stop and search powers, stating that the police were obliged,
“to provide key information to the person being searched about the purpose of the search and the grounds for searching, and ensuring that the person subject to the search understands the procedure”.—[Official Report, 14/7/14; col. 471.]
We are talking about children under the age of 10. How realistic is that assurance in the circumstances? As I said, in Scotland and possibly other force areas, children under seven were subjected to the procedure.
The all-party group made a number of recommendations, including that an annual review of stop and search powers should assess the proportionality of stop and searches in relation to age, including the stopping and searching of children under 10. It recommends that the PACE code should be revised to require the recording of the date of birth of children and young people on stop-and-search forms and central recording systems, with specific guidance on carrying out the procedure, including advice on safeguarding and child protection, and that steps should be taken to protect vulnerable children—for example, those in care or at risk of abuse.
It said that the annual review should assess the proportionality of stop and searches of under-18s in relation to ethnicity; that the Home Office and the DfE should work with police to consider how best to monitor the rates of search of looked-after children; and that all newly built custody suites should have a separate area for children and young people, with the Home Office directing forces to consider the allocation of areas to be used separately for children and young people within existing facilities. Finally, it suggested that the Home Office should work with ACPO to share good practice in developing juvenile custody facilities.
Lord Faulks
My Lords, I am grateful to the noble Lord, Lord Beecham, for setting out his amendment so clearly. What lies behind it is wholly understandable. However, it must be put in the context of the significant programme of reforms that the Government have introduced on the police use of stop and search, to which the noble Lord did make reference.
Noble Lords will be aware that on 30 April, the Home Secretary announced a comprehensive package of measures to reform the way that stop and search is used. The measures, some of which were launched on 26 August, will ensure that the powers are used fairly, effectively, and in a way that encourages community confidence. These measures will impact positively on all sections of the community, including children. The Government are highly sensitive to the need to ensure that sufficient safeguards are in place so that the public can trust the police to use all their powers appropriately. The Police and Criminal Evidence Act and its codes of practice have robust safeguards that ensure consistency, transparency and rigour in the way in which stop and search is used by the police.
The use of stop and search has reduced significantly under this Government. However, these powers are vital in the fight against crime and the police must be able to act promptly should they have a reasonable suspicion that a person is carrying an unlawful item. It is a sad fact that in some areas it is quite common for children under the age of criminal responsibility to be used by older children and adults to carry drugs and weapons and, in some cases, firearms for the criminal benefit of others, either in the hope that police may not suspect that they are being used to carry the items or in the knowledge that if they are suspected of being couriers or are stopped and searched, they cannot be arrested or prosecuted for any criminal offence because they are below the age of criminal responsibility.
There are also operational difficulties. How does a police officer judge a child’s age with any precision? What do the police do while waiting for the “appropriate adult” referred to in the amendment to arrive? There are safety issues, too. What if the child has been given a gun or a knife by older gang members? One knows how easy it is for older gang members to manipulate younger ones.
These issues need mature consideration. That is why I maintain what I said in Committee, that although we remain open to revising or improving—if appropriate—the very considerable steps we have taken to improve stop and search powers, we will await the final report at the end of this month and take notice of any recommendation to change the operational procedures. However, I am sure the noble Lord and the House will bear in mind the significant reform package that we have already brought before the House.
I will me give a further example of the operational difficulties that might be caused if this amendment were to find its way on to the statute book. Imagine that a fight breaks out between two gangs of youths and the police have reasonable suspicions that weapons have been concealed. If the police were then required to wait, this could prevent them from acting in a case where there is an immediate issue of public safety involved. That could be difficult, as I am sure the House will understand.
There are already important safeguards attached to Section 1 stop and searches, which were outlined when the amendment was last debated on 14 July. They apply to anyone who is stopped and searched, regardless of age. Furthermore—this is worth stressing—Section 11 of the Children Act 2004 places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions.
This is stop and search—which is, one hopes, a fleeting encounter to, if necessary, disable somebody who the police reasonably think has something that they need to have removed from their possession. However, in response to the noble Lord’s understandable concern, let me stress that the Government have made a priority of ensuring that stop and search should be used fairly, so that the police target this power when they have reasonable suspicions that a person is carrying an unlawful item. In those situations, where there is a risk to public safety, we suggest that it is right that the power to stop and search an individual is not unduly restricted, regardless of age.
Unfortunately, it is not entirely a creature of a bygone age, as the noble Lord suggests, in harking back to Oliver Twist or something of that sort. There is a case that, unfortunately, young children are used in the way that I have described. The requirement to wait until an “appropriate adult” turns up is difficult, and unnecessary in light of the safeguards that exist to protect the welfare of children under the age of criminal responsibility.
While I understand the noble Lord’s concern, and the initial hesitation that anybody would have with a child under 10 being involved in the criminal justice system, we suggest that there is reason for this power to exist, appropriately circumscribed in the way that I have attempted to describe. For those reasons I ask the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, I am grateful for the Minister’s response. I shall not ask the House to divide on the amendment but I will make a couple of suggestions to him. First, in the mean time, the proper recording of events—ascertaining names, addresses and dates of birth—should become pro forma. It is surprising that it is not yet universal. It would be a relatively straightforward matter. I presume that it would be for the Home Office to direct the police authorities, but no doubt words ought to be had with ministerial colleagues about that. Secondly, given that Scotland has now changed the law, I suggest that in a year or 18 months, whichever Government are in office at that time—I hope that it might be a different one—could look at the Scottish experience. I take the Minister’s point but it is more relevant to the stopping than to the searching. We agree that it necessary for the police to stop, but the question is about the search part of it. Given that Scotland has made a change in respect of the age of 12, I would have thought that its experience, within a relatively short period, would be relevant here. If the Minister would be good enough to give an undertaking—if he or his party are still in office at that point—that that would be put into force, it would be a welcome concession. I hope that an incoming Government from our party would take the same position. In the circumstances, I beg leave to withdraw the amendment.
Lord Beecham
“Identity theft
After section 9 of the Fraud Act 2006 (possession etc. of articles for use in frauds) insert—“9A Identity theft
(1) A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person.
(2) A person who is guilty of identity theft is liable, on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both).
(3) The Secretary of State may by regulations set out what constitutes a defence under this section.””
Lord Beecham
My Lords, Amendment 51 relates to identity theft, which is a growing problem, particularly in this age of cybercrime. It is rising rapidly and is estimated to cost more than £3 billion a year. It is usually referred to in the context of fraud and economic crime but, as I said in Committee, a number of offences could apply to the use of someone else’s identity; for example, those under the Fraud Act 2006, the Forgery and Counterfeiting Act 1981, the Criminal Justice Act 1987 and the Theft Act. As the Minister said in Committee, these relate to the use of a false identity for fraud purposes. For example, Section 2 of the 2006 Act deals with the crime of fraud by false representation. In the Minister’s words, this would,
“cover a person pretending to be someone else for the purposes of making a gain for himself or another”.—[Official Report, 14/7/14; col. 485.]
However, the motive might not be economic gain; it might be to obtain information for personal reasons or in the course of undercover activities, such as some of those that have featured in industrial disputes or civil liberties and environmental campaigns. There is also the kind that I saw demonstrated in a remarkable one-man show at the Edinburgh Festival by the stand-up comedian—if that is not too limited a description—Mark Thomas. He had been working for an environmental campaign and someone attached himself to it—not an undercover policeman in this case but an undercover person employed by someone else. It took a long time for this chap to be exposed but exposed he was. He had used a false identity to become involved in the organisation.
In Committee, the Minister criticised the amendment on the grounds that it would also apply to innocent persons; for example, people who collect a parcel from the post office using a relative’s identification. That is a little far-fetched. It ignores the unlikelihood of anyone being charged with an offence in such circumstances and, perhaps more relevantly, the explicit provision contained in the amendment empowering the Secretary of State to set out in regulations what would constitute a defence to a charge under the proposed new section.
In fairness, the Minister outlined a range of initiatives being pursued by a variety of bodies and this is welcome, although it is unclear how co-ordinated the activity is. However, given the very serious concerns about fraud and infractions of privacy, it is surely time to consolidate and update the legislation. I suggested that it would be helpful to hear a report on progress in this area before Report, and it is disappointing that this has not occurred. I request that the Minister takes another look at the issue to see whether he can come back at Third Reading with a more helpful resolution to the problem. For the avoidance of doubt, I assure him that the amendment is not designed to protect Nigel Farage and UKIP from identity theft at the hands of David Cameron and the Conservative Party. I beg to move.
Lord Faulks
My Lords, the Government recognise that there are significant challenges in dealing with the many consequences of identity theft. However, as I explained in Committee, these challenges relate to the difficulty of identifying and catching offenders, rather than to any lack in the criminal law.
The proposed amendment suggests:
“A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person”.
It omits any reference to the consent of that other person and proposed new subsection (3) leaves the defence to be made by regulations set out by the Secretary of State. That is a fairly novel proposal: a Secretary of State who does not enjoy the undivided confidence of the party opposite is being asked to set out in regulations the nature of the defence.
Lord Faulks
I am flattered by the suggestion. However, whether it is done by me, an official or anyone else, it is a slightly strange way of formulating an offence.
I respectfully ask: where is the gap? The Fraud Act 2006 already includes offences that would apply to anyone who assumes a false or non-existent identity to commit fraud. In particular, Section 2 sets out the crime of fraud by false representation, which would cover a person pretending to be someone else for the purpose of making a gain for himself or another.
While identity theft is not in itself a criminal offence, the use of a false identity for the purposes of fraud is. As drafted, the amendment would apply to innocent persons who were able to represent a relative or partner when conducting financial or domestic affairs on their behalf with permission from the identity-holder. The noble Lord cast some scorn on the example I gave in Committee of collecting a parcel on behalf of someone else. I accept that no sane prosecutor or police officer would take that matter further. None the less, it is alarming to think that that could constitute a criminal offence, albeit one that one would not expect the police or the prosecution to pursue.
I assure the House that the Government take identity crime extremely seriously. I should like to remind the House of some of the initiatives being pursued to prevent identity crime. We are working with banks and credit card companies to promote technical solutions to identity theft to help the victims of such crimes. We are also working with credit reference agencies to provide a free service for anyone who has had their personal details used fraudulently. The credit reference agencies liaise with each other and the banks to restore compromised personal credit records. The service can be accessed by contacting Experian, Equifax or Call Credit. The Home Office is also leading a multi-agency strategic group formed to reduce the threat to the UK. The group is engaged in a range of activities to tackle the problem, such as strengthening the issuing process for government documents, tackling the supply of specialist printing equipment for criminal purposes, improving data-sharing of false identities and taking down websites offering false documents for sale.
Lord Lexden (Con)
My Lords, I am glad to support this amendment, just as I was very glad to support the previous version that my noble friend Lord Sharkey put forward in Committee. As my noble friend reminded us again this evening, in 2012 Parliament made a decision of major importance to the gay community. It made provision in law that all living persons who had been convicted of sexual offences that have subsequently been swept away should have the absolute right to apply to have those unfair convictions disregarded. The statute book was disfigured in 1885 by the Criminal Law Amendment Act, which contained a notorious provision, smuggled into the legislation late at night, which criminalised gay men—not gay women—for the first time for consensual sexual acts in private. That provision should never have been passed. It, and other discriminatory laws were repealed some 80 years later, after they had wrecked the lives of thousands of fine gay men. The majority of them are now dead and it must surely be right that the arrangements introduced in 2012 in respect of living persons should be extended so that the families of those no longer alive can seek true justice for their forebears, and so gain satisfaction and peace of mind that such belated justice can bring.
On behalf of the gay community I thank my noble friend for the care with which, since Committee, he has discussed his amendment, as he has told us, with Ministers and officials, and modified it in the light of their comments. This amendment is needed to complete a laudable rectification of great injustice. But it will do something else of great importance, as my noble friend Lord Black of Brentwood, who cannot be here this evening, made clear in Committee. It would signal to the many countries in the Commonwealth which maintain oppressive anti-gay laws for which this country was originally responsible that Britain now wholly rejects unjust and oppressive treatment of gay people and, so far as is possible, has made amends for terrible, terrible past errors. I hope that the Government will look favourably on this amendment.
Lord Beecham
My Lords, I join the noble Lord, Lord Lexden, in supporting this amendment. I hope the Government will look at it sympathetically. In previous debates, the Minister had some reservations about costs and the like, which have now been addressed by the amendment of the noble Lord, Lord Sharkey. I very much hope that the Minister will indicate that the Government are prepared to accept that.
If there remain any areas of doubt, then perhaps he would undertake to bring the matter back at Third Reading so that any potential difficulties or shortcomings might be addressed. It is clearly not easy to do that after 10 pm on the first day on Report. I hope we can resolve any remaining doubts at Third Reading, though if the Minister is able to accept the amendment this evening then so much the better.
Lord Faulks
My Lords, I thank the noble Lord, Lord Sharkey, for his continued concern and interest in this matter, and for his elegant and accurate summary of the progress of the amendment and the resultant meetings that took place with me, my noble friend Lord Bates and Home Office officials. I hope that the noble Lord is reassured that the Government now recognise his concerns, which have been eloquently supported this evening by my noble friend Lord Lexden, as they were in Committee.
The Protection of Freedoms Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people over 16. However, where someone has died, these provisions would not have the same effect. The Government accept that, as well as removing obstacles for the living to find work, there is a recognition that a disregard puts right a historic wrong, and that this would apply to the deceased as well as the living.
Following the helpful discussions the noble Lord, Lord Sharkey, had with me, my noble friend Lord Bates and Home Office officials, the Government are willing to explore ways of achieving disregards for the deceased, over a longer timescale. What I mean by “over a longer timescale” is not while this Bill is going through its process and not by Third Reading, as I understand my noble friend was indicating. He may ask why not. We have made some progress, but officials would want to carry out a full and proper assessment. Some issues that require attention include a precise definition of who could apply on behalf of the deceased. We have made progress in that. There is an assumption that the amount of applications will be manageable, but we want to carry out more work to obtain greater confidence on this, as each application does place a significant burden of work on the police in tracing local records. On documentary evidence, the effect of a disregard is not clear, as there are no police records to delete, and we would not want to destroy historic records from the National Archives.
These points were touched on in our meetings, but officials are most anxious that all those matters should be completely resolved before proceeding to legislate rather than to impose too heavy a burden, when we ask them to focus on so many other issues. We want to ensure that the decision to disregard maintains the current exacting standard to ensure that only the deserving are granted a disregard. Of course, there are very deserving cases.
While I cannot accept this amendment and I am not committing to introduce such a change in this Bill, the Home Office repeats its commitment to consider this matter and would be happy to include the noble Lord, Lord Sharkey, in any further discussions. He has done the House a great service by bringing this to our attention but I hope the assurances that I have given will allow him to withdraw his amendment.
Lord Beecham
My Lords, were any other Members present, they might share my bewilderment at being faced at a very late stage, not only today but in the process of the Bill, with a series of amendments of what can only be described as some complexity for those of us—and I suspect that is most of us—who are not familiar with the territory to which the noble Lord has introduced us this evening at some length. As he has said, it is not possible—it is simply laughable—to endeavour to take these amendments to a vote tonight, but it may also be difficult to do this in time for Third Reading. The Minister may be able to comment on that.
Among these puzzling amendments I am puzzled most by Amendment 106C, with its reference in particular to a defence of there being a view to publication of journalistic, literary or artistic material. I do not see how that meets the more substantive case that I can well see in relation to what might be called the Leveson issues in 106A. These are matters that clearly need to be investigated further. I do not know whether the noble Lord envisages having these matters dealt with at Third Reading, but frankly I should have thought that that was unrealistic at this stage of the Bill. There may be another opportunity with other Bills for these matters to be taken forward. They are of such complexity that it is unreasonable to expect them to be dealt with in the course of this Bill. If that sounds a bit too ministerial, I apologise. I apprehend that the Minister might for once think that I am on the right track. We shall find out shortly.
Lord Faulks
My Lords, the noble Lord, Lord Beecham, often sounds ministerial, and from comments that he may have made earlier this afternoon he is clearly anticipating events in May when he will be able to perform that task. I do find myself in the rare position of agreeing with his comments generally about these amendments, in that they have appeared very late—late even among the amendments that have appeared in the course of this Bill, and there has been no shortage of amendments and no shortage of complexity in amendments. Indeed, I pay tribute to Members of the House for managing to get through so many amendments of such complexity today. It has taken a great deal of restraint by Members to enable the arguments to be deployed, often by others. No doubt those Members who restrained themselves may have thought they would have made better arguments or expressed the arguments with more clarity than those who did speak, but admirable restraint was shown.
We come to consider these amendments. My noble friend Lord Marks will appreciate that the pressures of time on myself and my officials has limited my ability to respond adequately to what are plainly serious issues, as he has outlined. I intend to speak to Amendments 106C and 106D in this group first. Sections 77 and 78 of the Criminal Justice and Immigration Act 2008 already provide for the changes that have been proposed for the Data Protection Act. Section 77 provides for an order-making power permitting the Secretary of State to introduce a custodial sentence for breaches of the offence in Section 55 of the Data Protection Act 1998. The penalty will apply irrespective of who has committed the offence. Given that people’s liberty is at stake and the seriousness of the offence, it is vital that proper thought is given to the introduction of such a change. That is why Parliament also provided that there must be a properly undertaken and detailed consultation with the Information Commissioner, the media and other potentially affected parties before that penalty applies. Therefore, such a change in the law now would be premature.