Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Wednesday 15th February 2012 Lords Chamber

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Gould, in a debate. I can only say that if the initial speech she made was 19 years ago, she must have started very young. I am sorry that circumstances prevent the noble Baroness, Lady Corston, being with us but, as I have said before in this House, the Government—and I personally—have tried to continue the road map that she set out for the treatment of women prisoners.

I am not sure that I am going to be entirely helpful to the Committee this evening, partly because, although I was certainly very happy that the YJB survived, I sometimes get a little worried that this House becomes obsessed with the solution to a problem being a commission, a committee, a tsar or some structure outside the problem. I am old fashioned enough to believe that the report to Parliament should come from the Minister and that the Minister should have responsibility. I also profoundly disagree with the disdain that the noble Lord, Lord Ramsbotham, frequently shows for the capacity of public servants to carry out responsible roles.

[Lord Ramsbotham]

I—

[Lord McNally]

I knew that the noble Lord would get to his feet but it is true.

[Lord Ramsbotham]

I do not in any way disparage civil servants in what they are required to do. I simply point out that it is wrong to use civil servants for things that they are neither trained nor competent to do. That has been my concern all along. They have their place and I absolutely support them and welcome what they do in their own job.

[Lord McNally]

I am delighted to have that on the record. Their own job includes some of the issues that we are discussing tonight.

I go back to the speech of the noble Baroness, Lady Gould. I understand that my colleague—my noble friend Lady Northover—has visited the Brighton project to which the noble Baroness, Lady Gould, referred and that she firmly endorses the opinion that was expressed about its success. This point also goes back to the position and role of public servants—the people doing this tough job—and the noble Baroness, Lady Stern, gave some graphic illustrations. I was also pleased that the noble and learned Lord, Lord Woolf, mentioned that the people working in our Prison Service do an amazing job in difficult circumstances. Good care and support from staff saves many lives, and many such instances go unreported. In any given month, prisons successfully keep safe approximately 1,500 prisoners who are assessed to be at particular risk of suicide or self-harm.

When people say, “You don’t have a women’s strategy”, I dispute that. I think that we do and perhaps we should shout louder about it. As has been mentioned, my honourable friend Crispin Blunt in the other place is the Minister with responsibility in this area. On 24 January he made a speech to the Corston funders, setting out a report on progress in this area. He set out the Government’s strategy for women offenders, which ensures that women will benefit in key areas such as mental health, drug recovery, tackling violence against women, troubled families, employment and women’s community services, reflecting the good work by the National Offender Management Service to implement many of the recommendations in the Corston report.

In that context, I am afraid that we do not believe that the amendment seeking a published women’s strategy is necessary. We also believe that, as I said, accountability for a women’s strategy should remain with Ministers. Perhaps they are better placed to influence policy across Government and we will ensure that other departments play their part too in supporting vulnerable women in the criminal justice system.

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Moved by

[Lord McNally]

185F: After Clause 127, insert the following new Clause—
“CHAPTER 7ARehabilitation of offendersEstablishment or alteration of rehabilitation periods
(1) The Rehabilitation of Offenders Act 1974 is amended as follows.
(2) In section 5(1)(b) and (d) (sentences excluded from rehabilitation) for “thirty months” substitute “forty eight months”.
(3) In the opening words of section 5(1A) (references to provisions of the Armed Forces Act 2006) for “subsection (1)(d)” substitute “this section”.
(4) For section 5(2) to (11) (rehabilitation periods) substitute—
“(2) For the purposes of this Act and subject to subsections (3) and (4), the rehabilitation period for a sentence is the period—
(a) beginning with the date of the conviction in respect of which the sentence is imposed, and(b) ending at the time listed in the following Table in relation to that sentence:

Sentence	End of rehabilitation period for adult offenders	End of rehabilitation period for offenders under 18 at date of conviction
A custodial sentence of more than 30 months and up to, or consisting of, 48 months	The end of the period of 7 years beginning with the day on which the sentence (including any licence period) is completed	The end of the period of 42 months beginning with the day on which the sentence (including any licence period) is completed
A custodial sentence of more than 6 months and up to, or consisting of, 30 months	The end of the period of 48 months beginning with the day on which the sentence (including any licence period) is completed	The end of the period of 24 months beginning with the day on which the sentence (including any licence period) is completed
A custodial sentence of 6 months or less	The end of the period of 24 months beginning with the day on which the sentence (including any licence period) is completed	The end of the period of 18 months beginning with the day on which the sentence (including any licence period) is completed
Removal from Her Majesty’s service	The end of the period of 12 months beginning with the date of the conviction in respect of which the sentence is imposed	The end of the period of 6 months beginning with the date of the conviction in respect of which the sentence is imposed
A sentence of service detention	The end of the period of 12 months beginning with the day on which the sentence is completed	The end of the period of 6 months beginning with the day on which the sentence is completed
A fine	The end of the period of 12 months beginning with the date of the conviction in respect of which the sentence is imposed	The end of the period of 6 months beginning with the date of the conviction in respect of which the sentence is imposed
A compensation order	The date on which the payment is made in full	The date on which the payment is made in full
A community or youth rehabilitation order	The end of the period of 12 months beginning with the day provided for by or under the order as the last day on which the order is to have effect	The end of the period of 6 months beginning with the day provided for by or under the order as the last day on which the order is to have effect
A relevant order	The day provided for by or under the order as the last day on which the order is to have effect	The day provided for by or under the order as the last day on which the order is to have effect

(3) Where no provision is made by or under a community or youth rehabilitation order or a relevant order for the last day on which the order is to have effect, the rehabilitation period for the order is to be the period of 24 months beginning with the date of conviction.
(4) There is no rehabilitation period for—
(a) an order discharging a person absolutely for an offence, or(b) any other sentence in respect of a conviction where the sentence is not dealt with in the Table or under subsection (3),and, in such cases, references in this Act to any rehabilitation period are to be read as if the period of time were nil.(5) See also—
(a) section 8AA (protection afforded to spent alternatives to prosecution), and(b) Schedule 2 (protection for spent cautions).(6) The Secretary of State may by order amend column 2 or 3 of the Table or the number of months for the time being specified in subsection (3).
(7) For the purposes of this section—
(a) consecutive terms of imprisonment or other custodial sentences are to be treated as a single term,(b) terms of imprisonment or other custodial sentences which are wholly or partly concurrent (that is terms of imprisonment or other custodial sentences imposed in respect of offences of which a person was convicted in the same proceedings) are to be treated as a single term,(c) no account is to be taken of any subsequent variation, made by a court dealing with a person in respect of a suspended sentence of imprisonment, of the term originally imposed,(d) no account is to be taken of any subsequent variation of the day originally provided for by or under an order as the last day on which the order is to have effect,(e) no account is to be taken of any detention or supervision ordered by a court under section 104(3) of the Powers of Criminal Courts (Sentencing) Act 2000,(f) a sentence imposed by a court outside England and Wales is to be treated as the sentence mentioned in this section to which it most closely corresponds.(8) In this section—
“community or youth rehabilitation order” means—
(a) a community order under section 177 of the Criminal Justice Act 2003,(b) a service community order or overseas community order under the Armed Forces Act 2006,(c) a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008, or(d) any order of a kind superseded (whether directly or indirectly) by an order mentioned in paragraph (a), (b) or (c),“custodial sentence” means—
(a) a sentence of imprisonment,(b) a sentence of detention in a young offender institution,(c) a sentence of Borstal training,(d) a sentence of youth custody,(e) a sentence of corrective training, (f) a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 or section 209 of the Armed Forces Act 2006,(g) a detention and training order under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 or an order under section 211 of the Armed Forces Act 2006,(h) any sentence of a kind superseded (whether directly or indirectly) by a sentence mentioned in paragraph (f) or (g),“earlier statutory order” means—
(a) an order under section 54 of the Children and Young Persons Act 1933 committing the person convicted to custody in a remand home,(b) an approved school order under section 57 of that Act, or(c) any order of a kind superseded (whether directly or indirectly) by an order mentioned in any of paragraphs (c) to (e) of the definition of “relevant order” or in paragraph (a) or (b) above,“relevant order” means—
(a) an order discharging a person conditionally for an offence,(b) an order binding a person over to keep the peace or be of good behaviour,(c) an order under section 1(2A) of the Street Offences Act 1959,(d) a hospital order under Part 3 of the Mental Health Act 1983 (with or without a restriction order),(e) a referral order under section 16 of the Powers of Criminal Courts (Sentencing) Act 2000,(f) an earlier statutory order, or(g) any order which imposes a disqualification, disability, prohibition or other penalty and is not otherwise dealt with in the Table or under subsection (3),but does not include a reparation order under section 73 of the Powers of Criminal Courts (Sentencing) Act 2000,“removal from Her Majesty’s service” means a sentence of dismissal with disgrace from Her Majesty’s service, a sentence of dismissal from Her Majesty’s service or a sentence of cashiering or discharge with ignominy,
“sentence of imprisonment” includes a sentence of penal servitude (and “term of imprisonment” is to be read accordingly),
“sentence of service detention” means—
(a) a sentence of service detention (within the meaning given by section 374 of the Armed Forces Act 2006), or a sentence of detention corresponding to such a sentence, in respect of a conviction in service disciplinary proceedings, or(b) any sentence of a kind superseded (whether directly or indirectly) by a sentence mentioned in paragraph (a).”(5) In section 6 (subsequent convictions to extend the rehabilitation period applicable to a conviction)—
(a) in subsection (5) (exception to rule for certain orders imposing disqualifications etc.) for “in accordance with section 5(8) above” substitute “by virtue of paragraph (g) of the definition of “relevant order” in section 5(8) above”, and(b) omit subsection (6) (other exceptions to the rule).(6) After section 8A (protection afforded to spent cautions) insert—
“8AA Protection afforded to spent alternatives to prosecution
(1) The following provisions of this Act apply, with the modifications specified in subsection (3), to a spent alternative to prosecution as they apply to a spent caution—
(a) section 9A (unauthorised disclosure of spent cautions), and(b) paragraphs 2 to 6 of Schedule 2 (protection relating to spent cautions and ancillary circumstances). (2) An alternative to prosecution becomes spent for the purposes of this Act when it becomes spent under the law of Scotland.
(3) The modifications mentioned in subsection (1) are—
(a) references to cautions are to be read as references to alternatives to prosecution (and references to cautioned are to be read accordingly),(b) references to the offence which was the subject of the caution are to be read as references to the offence in respect of which the alternative to prosecution was given,(c) paragraphs (e) and (f) of paragraph 2(1) of Schedule 2 are to be read as if they were—“(e) anything done or undergone in pursuance of the terms of the alternative to prosecution,”,(d) references to cautions for an offence are to be read as references to alternatives to prosecution in respect of an offence, and(e) the reference in paragraph 5 of Schedule 2 to the rehabilitation period applicable to the caution is to be read as a reference to the time at which the alternative to prosecution becomes spent.(4) In this section “alternative to prosecution” has the same meaning as in section 8B as that section has effect in the law of Scotland but disregarding subsection (1)(f) of that section.”
(7) In paragraph 1 of Schedule 2 (protection for spent cautions)—
(a) in sub-paragraph (1)(a) (when conditional cautions to be regarded as spent cautions) for “, at the end of the relevant period for the caution;” substitute “—(i) at the end of the period of three months from the date on which the caution is given, or(ii) if earlier, when the caution ceases to have effect; and”, and(b) omit sub-paragraphs (2) and (3) (meaning of “the relevant period for the caution”).”

[Lord McNally]

My Lords, we now turn to a group of amendments which include the reform of the Rehabilitation of Offenders Act 1974. The primary purpose of the Act is to support the effective rehabilitation of ex-offenders. It seeks to support routes into employment while maintaining an appropriate balance towards public protection. It does this by allowing ex-offenders who have stayed on the right side of the law for a certain period not to have to reveal their previous convictions. At the same time, the exceptions order to the Act entitles employers in certain areas of work such as work with children and vulnerable adults, or in certain sensitive financial or legal positions, to see information about spent convictions.

I have received today a letter from Mr Nick Starling, the director of general insurance at the Association of British Insurers, raising some concerns that it had about our proposals. He says in the letter that he would like to meet me to discuss the issues that he raises. I am certainly very happy to do that before Report.

The Act, therefore, is intended to balance public protection with efforts to rehabilitate offenders. However, it has not been reformed since it was introduced 38 years ago. Sentencing practice has become more punitive, but the scope of the Act and the rehabilitation periods have stayed the same. We also aware that studies have shown a positive association between employment and a reduced risk of reoffending. In considering reform, we have considered the responses to the government Green Paper Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, and wider support for change from organisations that work with ex-offenders. In that respect, I would particularly like to acknowledge the work of my noble friend Lord Dholakia, who has worked tirelessly over the years to reform the Rehabilitation of Offenders Act.

Amendment 185F extends the scope of the Act to include custodial sentences of up to and including four years in length. Sentences more than four years in length will never become spent. We believe that this approach is a sensible and balanced one that extends the scope of the Act but recognises the seriousness of offences attracting custodial sentences of more than four years. Many more reformed offenders will have improved employment prospects, while public protection is maintained.

We are also shortening the rehabilitation periods that apply. Evidence shows that offenders are most at risk of reoffending during the first 24 months after they are released from custody. These new periods take greater account of this evidence so that they are more proportionate to the period of risk of reoffending. However, offenders will still be required to show over an extended period in the community that they can remain free of convictions before being considered rehabilitated. The rehabilitation period for community orders will also be directly linked to the length of the order itself. An offender will first have to complete the order and then remain conviction-free for an additional year.

The table contained in Amendment 185F lists the end date of the rehabilitation period for each sentence. For individuals who are under 18 when they are convicted, rehabilitation periods that run beyond the end of sentence will continue to be halved in relation to adults, with the exception of one. It is necessary to have an additional period of 18 months to apply at the end of custodial sentences of less than six months for juveniles, otherwise, for example, a six-month custodial sentence would become spent before an 18-month community order. It is important that we maintain the requisite balance in dealing with the hierarchy of sentences.

There is significant confusion around what happens when an offender commits a further offence when they are still subject to a rehabilitation period for another. Different rules apply to different types of offences—whether summary only, either way or indictable only—resulting in individuals either not revealing what they should, or revealing too much.

Subsection (5) of the new clause proposed by Amendment 185F, therefore, will introduce a single rule when an offender commits a further offence. All rehabilitation periods applicable at any given time will remain for the duration of the longest rehabilitation period. This reflects the fact that a prolific offender should be required to prove that he has truly put his life of crime behind him before he benefits from the protections of the ROA.

Amendment 185G inserts a new clause into the Bill that exempts immigration decisions from the effect of the ROA. Information about an individual’s character and conduct are essential to establishing if an individual should be given permission to enter or remain in the UK, including being granted British citizenship. This amendment means that both spent and unspent convictions can be considered when making these assessments. This will allow the UK Border Agency the appropriate level of discretion in its decision-making.

Amendment 187ZA introduces a schedule that preserves the position in Scotland as the ROA is a devolved matter. These amendments, other than the immigration and nationality exemption, apply to England and Wales only. The Scottish Government are aware of these reforms and are keeping their legislation under review.

I turn now to Amendments 185FA, 185FB, 185FC and 185FD, in the name of my noble friend Lord Dholakia. Amendment 185FA would extend the scope of the Act so that custodial sentences of up to and including 10 years could become spent. This amendment would, we believe, tip the balance too far away from public protection.

When the Act was first introduced, some 10 per cent of offenders sentenced at the Crown Court were excluded from it. Now that figure is more like 20 per cent. The government amendments increase the scope of the Act to four years, which would mean that around 93 per cent of adult offenders sentenced to custody in 2010 would fall broadly under the Act—a return to the position established in 1974. We do not believe that going beyond that is appropriate given the seriousness of offences that would attract sentences of over four years.

Amendments 185FB to 185FD would see sentences of between 30 months and four years attract a rehabilitation period of four years from the end of sentence, in line with sentences of between six and 30 months. The government amendment proposes a period of seven years from the end of sentence. This recognises that, as offending behaviour gets more serious, it should be treated more seriously. Serious offenders should have to prove for a longer period of time that they are no longer at risk of reoffending before they can benefit from having their conviction spent. If we are to get the balance right towards properly protecting the public, then I believe that this is the right approach.

The final amendment, supported also by the noble Lords, Lord Thomas of Gresford and Lord Carlile, would mean that any offender convicted under the age of 18 would, upon turning 18, have their conviction spent provided they had completed their sentence. The Government recognise that younger people have a greater capacity to reform and change. For that reason, we propose that, for young offenders, the rehabilitation periods that run beyond the end of sentence will in most cases be half that of adults. We believe that is the right approach. We must remember that many disposals for young offenders are spent immediately or on completion of the relevant order. It is the more serious penalties that carry rehabilitation periods beyond the end of sentence. These reflect the period when the risk of reoffending is at its highest.

The Government consider that it is important that offenders of any age should be able to show that they have put their offending behaviour behind them before their convictions meriting serious disposals can become spent. However, under the proposed amendment, the older the young offender, the sooner the conviction would become spent. That does not seem to us to be right, nor does it reflect reoffending evidence.

I have no objections to my noble friends pressing me to go further on these matters, but politics is the art of the possible. I hope I can persuade my noble friends not only not to press their amendments but to go further and recognise and support our amendments as a significant step in supporting the rehabilitation of offenders. Together with the wider reforms aimed at tackling reoffending in this Bill, they will help deliver the right balance between public protection and the freedom for a person to put their past behind them. This will in turn contribute to a reduced level of reoffending through getting offenders into work. I beg to move.

Amendment 185FA (as an amendment to Amendment 185F)

Moved by

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[Lord Ramsbotham]

My Lords, briefly, I support the government amendments that have been tabled and echo the many warm things that have been said about the noble Lord, Lord Dholakia, for his persistence in pursuing this matter.

I merely mention that in 2001 I was invited to inspect the young offender institutions in the Caribbean. In Barbados, I found a system in which, at the age of 18, every child automatically had their convictions looked at and the slate wiped clean of all except those that it was deemed in a schedule should be carried forward. I brought that information back and fed it into the team studying Breaking the Circle at that time. Given all the points that have been made by the noble Lords, Lord Dholakia and Lord Thomas, it seemed particularly important that this should apply to young offenders so that they were not hampered, particularly in their further education, by crimes that they had committed as children.

[Lord McNally]

My Lords, in introducing this series of amendments, I covered our responses to the questions. Perhaps I should repeat that politics is the art of the possible. My noble friend Lord Dholakia prayed in aid the 2002 report Breaking the Circle. The difference between that and this Government’s consultation, Breaking the Cycle, is that Breaking the Circle did nothing, while we brought in Breaking the Cycle through an amendment. I have tried to find out from my researchers whether it was the Labour Government of 1974 or Ted Heath’s Government, who went out of office that year, who brought in the original Rehabilitation of Offenders Act. Perhaps that shows what has happened to the attitude towards penal reform in that it has taken 37 years to reform that Act. Successive Governments have ducked this issue. I am proud that this Government have taken the decision to amend that Act. We will monitor the effectiveness of the Act and the impact these changes have on offenders and their ability to secure employment.

As I said in my opening remarks, I have no objections to campaigners continuing to campaign but when a Government tackle an issue that has been ducked for 37 years, they are entitled to a little of the credit.

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Moved by

[Lord McNally]

185G: After Clause 127, insert the following new Clause—
“No rehabilitation for certain immigration or nationality purposes
Before section 57 of the UK Borders Act 2007 (and after the italic cross-heading before that section) insert—“56A No rehabilitation for certain immigration or nationality purposes
(1) Section 4(1), (2) and (3) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) do not apply—
(a) in relation to any proceedings in respect of a relevant immigration decision or a relevant nationality decision, or(b) otherwise for the purposes of, or in connection with, any such decision.(2) In this section—
“immigration officer” means a person appointed by the Secretary of State as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971,
“relevant immigration decision” means any decision, or proposed decision, of the Secretary of State or an immigration officer under or by virtue of the Immigration Acts, or rules made under section 3 of the Immigration Act 1971 (immigration rules), in relation to the entitlement of a person to enter or remain in the United Kingdom (including, in particular, the removal of a person from the United Kingdom, whether by deportation or otherwise),
“relevant nationality decision” means any decision, or proposed decision, of the Secretary of State under or by virtue of—
(a) the British Nationality Act 1981,(b) the British Nationality (Hong Kong) Act 1990, or(c) the Hong Kong (War Wives and Widows) Act 1996,in relation to the good character of a person.(3) The references in subsection (2) to the Immigration Acts and to the Acts listed in the definition of “relevant nationality decision” include references to any provision made under section 2(2) of the European Communities Act 1972, or of EU law, which relates to the subject matter of the Act concerned.””

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[Lord Bach]

My Lords, knife crime has been a scourge on communities throughout Britain. I think my party, when in government, did quite a lot to tackle this appalling problem and yet it persists. Of course, some would say that the answer is to deal with the causes of such crime, particularly where young people are concerned. Yet the Government say that the answer is to create a new crime that is entirely covered, as the noble and learned Lord has just made abundantly clear, by existing crimes. For my part, I cannot see any logic behind it at all. Frankly, someone who uses a bladed weapon to threaten another person is guilty of a very serious criminal act, but that act is covered by existing statute law. More than that, there is guidance on sentencing and, of course, there is case law.

For our part, we will not be drawn tonight into the game that we fear the Government are playing with this legislation. It is legislative public relations, no more and no less. I look forward to hearing the Minister's response to the points that have been made so well by the two previous speakers. I wonder whether he is as proud of this piece of legislation as he was of the last piece of legislation concerning rehabilitation of offenders. I rather feel that he is not.

[Lord McNally]

My Lords, we believe that currently there is no offence that specifically targets the behaviour covered by this clause; namely, the most serious of threatening behaviour where people carrying a knife or an offensive weapon use it to threaten and cause,

“immediate risk of serious physical harm to that other person”.

We believe that we are sending a clear message to those who behave in that way that they cannot expect leniency.

I understand, and very much respect, where my noble friend Lady Linklater is coming from. I want to make two points, one of which I have made before to the noble Lord—I am always tempted to say “my noble friend”—Lord Judd, who I am glad to see in his place. I make them to the noble Baroness as well. I understand that these under 18 year-olds, these children, may have various and complex difficulties in their personal lives. I did not. I was brought up on an ICI estate, where there were children who had difficult and complex lives but they did not adopt crime or violence. My simple point is that even children have choices and many do not adopt a path of violence.

I speak as the parent of three young children who have just come through their late teens. I know the fear in the hearts of parents of teenagers who go out on a Friday or Saturday night. The fear is always there that one piece of bad luck, one act of disrespect, will end up in their child being severely injured or perhaps even killed by someone carrying a knife. We are addressing that fear. All speakers have acknowledged that knife crime is a serious problem. I am as pleased as anyone that there has been some decrease in knife crime, but I do not think that it does any harm, particularly in the 16 to 17 year-old age group, to do a little bit of public relations and to send out a message that it is not fashionable—it might even be plain stupid—to carry a knife, to brandish it and to threaten people with it. I do not belittle any of the examples that have been given of people who deal with the problems of violence in our society but, in putting forward this law, we are addressing a real issue and making it clear that knife crime is unacceptable. It is not the first example of a minimum sentence. Nor is it the first example of a minimum sentence for 16 and 17 year-olds. There is a minimum sentence of three years for certain firearms offences committed by 16 and 17 year-olds. That measure was brought in by the previous Labour Government in the Criminal Justice Act 2003.

The Government believe that it is right to have minimum sentences specified in law where a certain offence warrants a strong and clear message that a certain type of behaviour will not be tolerated in a decent and law-abiding society. That is why we are legislating for the courts to be able to apply a minimum custodial sentence of four months' detention and training for 16 and 17 year-olds. However, as was pointed out, the legislation builds in discretion concerning the welfare of the offender, which is sensible. The amendments tabled by my noble friends would remove the minimum sentence not only for 16 and 17 year-olds but for adults. The Government cannot accept them. They would undermine our firm intention to stamp out these crimes. Therefore, I hope that the noble Baroness will withdraw her amendment and the noble and learned Lord will not oppose the Question that the clause should stand part of the Bill.

[Baroness Linklater of Butterstone]

My Lords, I listened with interest and not a great deal of surprise to what my noble friend said. We talked about fear and fashion, and I will reiterate that anybody who works with young people knows that the predominant cause is fear. We need to address why these things happen. It is not at all likely that having such a new sentence on the statute book will do anything to deter young people. As the noble and learned Lord, Lord Lloyd, said, what we do and say in this House will not percolate down, or mean very much, to a 16 or 17 year- old. However, taking account of the hour—I am about to catch my sleeper to Scotland—I will certainly not pursue the matter. I beg leave to withdraw the amendment.

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Moved by

[Lord McNally]

187ZA: Before Schedule 22, insert the following new Schedule—
“Rehabilitation of Offenders: consequential provisionPart 1Rehabilitation of Offenders: generalRehabilitation of Offenders Act 1974: England and Wales1 The Rehabilitation of Offenders Act 1974 is amended as follows.
2 In section 1(4)(a) (references in Act to a conviction) for “Great Britain” substitute “England and Wales”.
3 In section 2(5) (rehabilitation of persons dealt with in service disciplinary proceedings) for “Great Britain” substitute “England and Wales”.
4 Omit section 3 (special provision with respect to certain disposals by children’s hearings under the Social Work (Scotland) Act 1968).
5 In section 4(1)(a) (effect of rehabilitation) for “Great Britain” substitute “England and Wales”.
6 (1) Section 7 (limitations on rehabilitation under the Act) is amended as follows.
(2) In subsection (2)(a) for “Great Britain” substitute “England and Wales”.
(3) In subsection (3) for “Great Britain” substitute “England and Wales”.
7 Omit section 8(8) (defamation actions: application of section to Scotland).
8 In section 8A(2)(d) (definition of “caution”) after “Wales” insert “and which is not an alternative to prosecution (within the meaning of section 8AA)”.
9 (1) Section 9 (unauthorised disclosure of spent convictions) is amended as follows.
(2) In subsection (3) omit “(or, in Scotland, the accused person)”.
(3) In subsection (8) omit “, in England and Wales,”.
10 After section 10(1) (orders) insert—
“(1A) Any power of the Secretary of State to make an order under any provision of this Act includes power—
(a) to make different provision for different purposes, and(b) to make incidental, consequential, supplementary, transitional, transitory or saving provision.(1B) The power of the Secretary of State to make an order under section 5(6) includes power to make consequential provision which amends or repeals any provision of this Act or any other enactment.”
11 Omit Schedule 1 (service disciplinary convictions referred to in section 6(6)(bb) of that Act).
Rehabilitation of Offenders Act 1974: Scotland12 The Rehabilitation of Offenders Act 1974 is amended as follows.
13 In section 1(4)(a) (references in Act to a conviction) for “Great Britain” substitute “Scotland”.
14 In section 2(5) (rehabilitation of persons dealt with in service disciplinary proceedings) for “Great Britain” substitute “Scotland”.
15 In section 4(1)(a) (effect of rehabilitation) for “Great Britain” substitute “Scotland”.
16 (1) Section 7 (limitations on rehabilitation under the Act) is amended as follows.
(2) In subsection (2)(a) for “Great Britain” substitute “Scotland”.
(3) In subsection (3) for “Great Britain” substitute “Scotland”.
17 (1) Section 9 (unauthorised disclosure of spent convictions) is amended as follows.
(2) In subsection (3) for “defendant (or, in Scotland, the accused person)” substitute “accused person”.
(3) Omit subsection (8).
Part 2Rehabilitation of Offenders: consequential repeals

Short title	Extent of repeal
Armed Forces Act 1976	In Schedule 9, paragraph 21.
Criminal Law Act 1977	In section 63(2), the words “Rehabilitation of Offenders Act 1974;”.
	In Schedule 12, the entry relating to the Rehabilitation of Offenders Act 1974.
Magistrates’ Courts Act 1980	In Schedule 7, paragraph 134.
Armed Forces Act 1981	In Schedule 4, paragraph 2(2).
Criminal Justice Act 1982	In Schedule 14, paragraph 37.
Mental Health (Amendment) Act 1982	In Schedule 3, paragraph 49.
Mental Health Act 1983	In Schedule 4, paragraph 39.
Criminal Justice Act 1988	In Schedule 8, paragraph 9(b).
Children Act 1989	In Schedule 14, paragraph 36(7).
Criminal Justice Act 1991	In section 68, paragraph (c) (but not the word “and” at the end of the paragraph).
	In Schedule 8, paragraph 5.
	In Schedule 12, paragraph 22(2).
Criminal Justice and Public Order Act 1994	In Schedule 9, paragraph 11.
	In Schedule 10, paragraph 30.
Armed Forces Act 1996	Section 13(3) and (4).
	Schedule 4.
Crime and Disorder Act 1998	In Schedule 8, paragraph 35.
Youth Justice and Criminal Evidence Act 1999	In Schedule 4, paragraph 6.
Powers of Criminal Courts (Sentencing) Act 2000	In Schedule 9, paragraph 48(3) to (10).
	In Schedule 11, paragraph 13.
Criminal Justice and Court Services Act 2000	In Schedule 7, paragraph 49.
Criminal Justice Act 2003	In Part 1 of Schedule 32, paragraph 18(3).
Armed Forces Act 2006	In Schedule 16, paragraphs 65(4) to (8) and 66.
Criminal Justice and Immigration Act 2008	In Part 1 of Schedule 4, paragraph 21.
	In Schedule 10, paragraphs 2 and 5.
Policing and Crime Act 2009	Section 18(2).”

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Moved by

[Lord McNally]

187B: Schedule 22, page 230, line 8, leave out “1A” and insert “1A(5)”

[Lord McNally]

My Lords, the point of creating this offence is that the Government want to send a clear message to existing and would-be squatters that occupying somebody else's house without permission is unacceptable, whatever the circumstances of the rightful owner or the state of the building. It does not suddenly become acceptable to squat if the owner of a property happens to go away for six and a half months. Amendment 188 is designed to protect people who squat in residential buildings that have been empty for more than six months, where no significant steps are being taken to refurbish them.

[Noble Lords]

187B.

[Lord McNally]

Oh! I have jumped a group. Sorry. I hope I did not shock my noble friend Lady Miller.

Amendments 187B, 187C and 187D are being made consequential to the application of a minimum custodial sentence of a four-month detention and training order to 16 and 17 year-olds convicted of offences of threatening another person with a bladed article or weapon causing risk of serious physical harm. Amendments 187B and 187C amend references in the insertion to Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000. These amendments are consequential to the debate we have just had and form part of the new offences in Clause 128. I beg to move.

Amendment 187B agreed.

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Moved by

[Lord McNally]

187C: Schedule 22, page 230, line 10, leave out “139AA” and insert “139AA(7)”

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[Lord Bach]

My Lords, the Committee owes a debt of thanks to the noble Baroness, Lady Miller, for having brought this difficult subject to our attention. It is not her fault that we are discussing it in the watches of the night and she has no need to apologise for taking the time of the Committee in explaining her point of view. As she said, the provision on squatting was introduced in another place with very little opportunity for scrutiny even on Report. The debate was pretty short. So this represents the first chance, and I hope not the last, for Parliament to get its teeth into these proposals.

Prima facie, the new criminal offence will demonise the absolute poorest, those with mental health issues and those who, frankly, have no other option than to shelter in properties that are, for the most part, unfit for habitation. Of course, we take the view, as does everyone else of sensible mind, that lifestyle squatting is quite beyond the pale and absolutely unacceptable—we oppose it as a principle as much as anyone else.

However, there is a big difference, as the noble Baroness demonstrated, between those few who jump carelessly into properties owned by others with the intent of abusing—severely abusing in some cases—the rights of ownership and those who have no other option unless they want to live on the streets. Anyone who lives in central London, for example, knows that the number of people living on the streets is going up as we speak. A large number of those people have no doubt, from time to time, “squatted” in the terms of what will become this legislation.

Our media, of course, are quite happy to remind us of the instances of outrageous behaviour by lifestyle squatters, but they are curiously quiet when it comes to telling us about, for example, a veteran with severe post-traumatic stress disorder who is addicted to drugs and alcohol and shelters in a property riddled with asbestos. Is he the sort of squatter whom the Government are out to get?

Squatting for the main part is already illegal and, in most instances, criminal, too. The Criminal Law Act 1977 makes it a criminal offence for any person to leave premises when required to do so by “a displaced residential occupier” or “protected intended occupier” of the premises. Parts 55.1 and 55.3 of the Civil Procedure Rules allow for owners to evict someone in a residence they do not occupy. Moreover, an interim possession order, backed up by powers in Section 76 of the Criminal Justice and Public Order Act, means that a criminal offence is committed if an individual does not leave within 24 hours of such an expedited order being granted. So given that all homeowners are protected by the criminal law, unless their property has lain empty for a substantial period and no one is imminently moving in, where does this need for reform of the law lie?

Perhaps a hint came in the signature leaks to the media. A series of reports leading up to the unveiling of this government policy focused on the very sad case of Dr Oliver Cockerell and his pregnant wife who, the ministry briefed, were thrown out of their house by squatters. However, in that case, it emerged that the police, for once, had wrongly stated that the case of the doctor and his wife was a civil issue and not one for them. In fact, as Mr Cockerell and his wife were protected intended occupiers, it is more than arguable that the police should have intervened under the current law. Their failure to do so was not atypical and the position does not require the kind of legislative, heavy-boots intervention that the Government intend.

The Welfare Reform Bill and the legal aid Bill that we are debating tonight both deal in parts with impecunious and very vulnerable people. The two Bills together will increase the number of people who have to resort to living in condemned housing out of desperation. We know, thanks to social welfare researchers, that there is a significant prevalence of mental health problems, learning difficulties and substance addiction among those who are homeless. In fact, the Government’s own impact assessment, referred to in passing by the noble Baroness, tells us who is forced to squat. It said:

“Local authorities and homelessness … charities may face increased pressure on their services if more squatters are arrested/convicted and/or deterred from squatting. Local authorities may be required to provide alternative accommodation for these individuals and could also face costs related to increases in rough sleeping in their areas. An increase in demand for charities’ services”—

food or shelter—

“may negatively impact current charity service users”.

It goes on:

“There may also be a cost to society if this option is perceived to be unfair and/or leads to increases in rough sleeping”.

When the costs are identified, as the noble Baroness said, they are reasonably substantial.

We do not believe that the Government have a clue how many people actually squat. The reason for bringing in this new piece of criminal legislation is pure populism. It is demonisation of the poor by another method. We had concerns and said so on Report in another place. Those have been reinforced, frankly, by the way in which the Welfare Reform Bill and the legal aid Bill have been carried through by the Government. We have heard much more about opposition to the plans as they now stand.

I am not saying that we agree precisely with the amendment of the noble Baroness. It may be that six months is too little. I hope that when she withdraws her amendment tonight and there is time between now and Report there will be some discussion as to what the right amount of time should be and whether the wording is appropriate.

However, if the noble Baroness were to bring back her amendment in a different form, perhaps with a longer period of time, we would be sorely tempted to support it on Report. I take the point made by the noble Baroness, Lady Stern, in her brief intervention. We were criticised incredibly strongly and sometimes with justification for bringing in too many new criminal offences by just those people who are bringing them in now. This debate and the previous one introduced two new criminal offences that are frankly not needed. What is the explanation for that?

It is very telling that the Metropolitan Police, the Bar Council and the Law Society, none of which are natural friends of the squatting community, all think that bringing this particular legislation is completely unnecessary. We look forward to hearing the noble Lord's justification for it.

[Lord McNally]

My Lords, beware the caveat about being sorely tempted to support the amendment. We will wait until Report to see how sorely tempted the noble Lord is. The noble Baroness, Lady Miller, said that this is a knotty and difficult problem, and so it is, but let me put it simply; the Government believe that the criminal law can and should go further to protect homeowners and occupiers. There should be a specific criminal offence that protects people from those who squat in their residential buildings.

Many residential property owners have described the anguish that they experience when discovering that squatters have occupied their properties. I say to my noble friend that local authorities too have expressed concern about this problem. The huge expense and incredible hassle of getting squatters evicted has been described.

The Government believe the harm that can be caused by squatters is unacceptable and must be stopped. The new offence would be committed where a person is in a residential building as a trespasser, having entered it as such, knows or ought to know that he or she is a trespasser and is living in the building or intends to live there for any period.

The whole point of creating this offence is that the Government want to send a clear message to existing and would-be squatters that occupying someone else's house without permission is unacceptable, whatever the circumstances of the rightful owner or the state of the building. It does not suddenly become acceptable to squat if the owner of a property happens to go away for six and a half months. Amendment 188 is designed to protect people who squat in residential buildings that have been empty for more than six months, where no significant steps are being taken to refurbish, sell or let the property.

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Moved by

[Lord McNally]

188A: Clause 130, page 112, line 15, at end insert—
“( ) In section 17 of the Police and Criminal Evidence Act 1984 (entry for purpose of arrest etc)—
(a) in subsection (1)(c), after sub-paragraph (v) insert—“(vi) section 130 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (squatting in a residential building);”;(b) in subsection (3), for “or (iv)” substitute “, (iv) or (vi)”.( ) In Schedule 10 to the Criminal Justice and Public Order Act 1994 (consequential amendments), omit paragraph 53(b).”

[Lord McNally]

My Lords, these are consequential amendments to debates that we have already had. Clause 130 creates a new offence of squatting in residential buildings, and I will explain the consequential amendment needed there. Rather oddly in the same grouping, Amendment 188B contains the transitional provisions for Clause 131, which deals with reasonable force for the purpose of self-defence. Amendment 188A amends the provision in the Police and Criminal Evidence Act 1984 to ensure that the police have the necessary powers to enter and search a residential building for the purpose of arresting someone for the new squatting offence.

Such an amendment is necessary because the offence that we are creating is summary only, which means that it can be tried only in the magistrates’ court. PACE does not normally provide the police with the powers to enter and search premises for a summary-only offence, unless a specific provision is included in Section 17(1)(c) of PACE. This amendment adds this specific provision to PACE.

The amendment to Clause 131 regarding self-defence makes transitional provision in relation to the amendments made to Section 76 of the Criminal Justice and Immigration Act 2008. The amendment will ensure that the amendments that we are making to that section can be applied retrospectively where appropriate, making matters simpler for the courts. The amendment to Clause 135 is minor and technical. I beg to move.

Amendment 188A agreed.

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Moved by

[Lord McNally]

188B: Clause 131, page 112, line 29, at end insert—
“( ) Paragraph 27 of Schedule 27 to the Criminal Justice and Immigration Act 2008 (which provides for section 76 of that Act to apply whenever the alleged offence took place, but not in relation to certain proceedings if they began, or the arraignment took place, before that section comes into force) applies to any amendment made by this section to section 76 of that Act as it applies to that section, but as if references to the date on which that section comes into force were references to the date on which the amendment comes into force.”

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Moved by

[Lord McNally]

195ZA: Clause 135, page 114, line 3, after “59(2)),” insert—
“( ) sections (No rehabilitation for certain immigration or nationality purposes) and (Transitional and consequential provision: Chapter 7A),”

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[Lord Bach]

My Lords, I have one question: why was the Bill's Title changed?

[Lord McNally]

It was decided that this was more descriptive of what the Bill was intended to do. I also draw the attention of the House to the fact that, late yesterday, I tabled Amendment 198, which added to the Long Title,

“to make provision about the rehabilitation of offenders”.

It is probably the only criticism that I would make of the noble Lord, Lord Ramsbotham, but I sometimes think that—rather like his desire for committees in the structures we were talking about yesterday—he gets obsessed with form rather than substance. The rehabilitation of offenders is in the Bill. What is more important, it is in the daily action of the Ministry of Justice. Ever since I became the Minister, every day I have emphasised the importance of rehabilitation, for exactly the same reasons as the noble Lord, Lord Judd, gave. It is a win-win. If you can rehabilitate, you save the public purse from having to put someone in prison again at a cost of £40,000 or £50,000 a year. You save future victims from the crimes that that person would have committed. Actually, it is a triple whammy, because if you can really rehabilitate, you get a taxpaying, constructive member of society. Everything that we have been doing, especially in Part 3 and the piloting programmes, is aimed to get effective rehabilitation.

I am very much impressed at the attention paid to my speeches at Liberal Democrat conferences. I shall take even more care over them in future. As for the rest, you will have to wait for my memoirs. I do not think that changing the Short Title at this stage of the process is helpful or will have an effect.

On what the noble Baroness, Lady Howe, said right at the end, this is an extra half day in Committee for the Bill. Perhaps if we all made a resolution to make shorter speeches, we would not find ourselves debating these issues at 23.33. In the mean time, I hope that the noble Lord will withdraw his amendment.

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Moved by

[Lord McNally]

198: Long Title, line 9, after “cautions;” insert “to make provision about the rehabilitation of offenders;”