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6.15 pm

The analogy made previously between the penal aspects of a conditional caution and a fixed penalty notice is not strictly accurate, but it will, for now at least, have to do. I accept that the best is sometimes the enemy of the good, and that the concession on conditional cautions made by the Government in the other place has to some extent mitigated the most offensive elements of the scheme. I congratulate my noble Friends on their achievement—and, indeed, the Government on having the good sense to agree to a compromise. I am content, if not deliriously happy, to accede to the Government’s motion.

Lynne Featherstone (Hornsey and Wood Green) (LD): Although the Government tabled some amendments in the other place to address some of the concerns of Opposition Members, we remain concerned that the proposals herald a shift in British justice, with the prosecution effectively setting the sentence. Another concern is that, under these proposals, criminals may be able to afford to buy their
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way out of a criminal conviction. The maximum fine has been lowered, which we welcome, but the principle remains.

In passing, I note a comment by Lord Goldsmith in the other place about the efficacy of the pilot schemes. He said:

That evidence is hardly convincing enough to persuade that the good done is so compelling in benefiting the public interest truly to win the argument. It could be argued that the exact opposite is the truth. Because a fine can be paid—possibly without further ado—for what amounts to a criminal conviction with no criminal record being held, the public may be at greater risk. There will be no criminal record, yet the person has admitted guilt for a criminal offence.

I also remain concerned about the switch from the original purpose of a conditional caution, which was rehabilitation. Are we changing behaviour? That is the all-important factor. Surely we would all regard the change of behaviour as the real measure of success, and the pay-and-go policy will not change behaviour. However, Lord Goldsmith acknowledged that the Bill might not be drafted perfectly in that it could be interpreted as imposing a fine without additional conditions pertaining to rehabilitation or reparation. He inferred that that was not the intention and stated:

I encourage the Government to do so because, without that clarification, our concerns remain that they may be creating a two-tier system of justice—one for the rich and one for the poor.

The Government are seeking to speed up the justice system for low-level crimes and we support that intention. Our concerns and criticisms have been directed to ensuring that changes made to our criminal justice system achieve the right result, rather than create unintended consequences and problems in dealing with what is a real issue for people throughout the country: dealing with antisocial behaviour speedily through the criminal justice system. The guiding light in all that we do must remain just that—ensuring that our streets are safer and making the reoffending rate the measure of our success. Although it is clear to me that we shall not persuade the Government of our remaining arguments, I welcome the changes that they have made and I am glad to have the opportunity to put those concerns on record.

I encourage the Government to measure the efficacy of the new proposals as they pass into law. We need to monitor closely the success or otherwise of the new powers. That means measuring the rate of reoffending. We need to understand what punishments are given alongside fines and conditional cautions—if fines alone are not given—and the range of conditional cautions. Without knowing that, we will not understand the impact on the reoffending rate.

We need to understand who chooses a conditional caution and whether those who refuse have to opt for
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court because they cannot afford the fine. It is important to measure those aspects. Only with such monitoring can we begin to understand whether the changes bring success. Success means safer streets and changed behaviour, not ticked boxes.

Mr. Hogg: I want to direct hon. Members’ attention to a small point that arises in amendment 5E. Subsection (1) would provide that a financial penalty may be attached to a conditional caution for any offence that the Secretary of State prescribes by designation. The Solicitor-General has been kind enough to confirm that the designation will happen through the negative, not the affirmative, resolution procedure. That means that, through negative resolution procedure, the Secretary of State can put into a statutory instrument any offence that he may wish to designate. The effect is that the Government can drive up the gravity of the offences that the financial penalty covers.

The Solicitor-General fairly said that he did not wish domestic burglary to be included in the designated category of offence. However, I believe that he would concede that his successors could include domestic burglary or, indeed, grievous bodily harm, if they were so minded, in the designated class of offence to which the financial penalty attaches. They could do that by the negative procedure.

Anyone who is familiar with the procedures of the House knows that the statutory instrument procedure is imperfect because the House either accepts or rejects a statutory instrument in its entirety. I can contemplate a statutory instrument that includes several offences, some that hon. Members would not wish to be included in the designated category and others that they would be content to welcome into it. However, we could not pick and choose because of the procedure.

In a spirit of compromise, I ask the Solicitor-General to publish a draft of the statutory instrument before it is formally laid so that hon. Members and, indeed, anyone who dissents from the proposition that one specific offence should be included in the draft statutory instrument, could object at that early stage rather than being obliged to try to reject the whole list by a negative prayer. I do not like the procedure, but if we must have it, an undertaking to proceed in the way that I suggest would go some way towards dealing with the objections that I have always had to the overall procedure.

The Solicitor-General: I thank the hon. and learned Member for Harborough (Mr. Garnier) for the way in which he set out his views. There has been much discussion of the matter. I realise that he and the Liberal Democrats have concerns about what they perceive to be the principle that the police and the Crown Prosecution Service are involved in the investigation and take forward a prosecution but that it is for the courts to dispose of cases. However, we have said here and in another place that procurator fiscal fines have existed for some time in Scotland and that cautions have also been used. They have a long history in this country and there are also fixed penalty notices. I do not want to rehearse those arguments, save to say that I do not accept that the principle exists in the
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way that he assumes that it does. I do not therefore believe that we are breaking a great principle. We are proposing a sensible way in which to deal with cases that takes better account of victims’ concerns so that their cases are tackled more effectively and quickly, and, I hope, with compensation paid more quickly.

The hon. Member for Hornsey and Wood Green (Lynne Featherstone) set out a rather illiberal approach. She appeared to object strongly to cautions, speaking of them as “pay and go” or buying one’s way out of criminal convictions. She appeared to insist on people having criminal convictions instead. I suspect that, on reflection, the operation of the conditional caution will cause a different view to emerge from the Liberal Democrats.

The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) talked about the need to re-examine the way in which we introduce the list of offences that might be suitable for conditional cautions, and suggested that it might be possible to publish a draft at an early stage. We propose to consult about the list of offences and I hope that that will give him and others the opportunity to examine the offences and have a broader discussion about what should be included before we lay the negative resolution. If there are subsequent objections, it will be up to the Opposition to pray against it in the normal way under the negative resolution procedure.

We have been through a process whereby the Government have set out their views, we have listened to the debate, tabled amendments in another place and listened to the comments made there. It is now broadly accepted that we have gone through the proper process that Parliament goes through in such circumstances and reached a view that we can all accept. Perhaps, in future, we will wish to reconsider the matter and go further. We said that we would like the limit for the financial penalty to be higher. We wanted a figure of £500 but accepted £250 to take account of Opposition views.

There is room for further discussion but I hope that it can be conducted in the context of ascertaining how the ideas work in practice. Perhaps we can then examine some of suggestions of the hon. Member for Hornsey and Wood Green, the results of some of the pilots and the operation of conditional cautions.

Lords amendment agreed to.

Lords amendments Nos. 5C to 5H agreed to.

After Clause 46

Lords Reason: 36B.

The Secretary of State for the Home Department (John Reid): I beg to move, That this House insists on its disagreement with the Lords in their amendment.

Mr. Deputy Speaker (Sir Alan Haselhurst): With this, it will be convenient to discuss Government amendments (a) and (b) in lieu of the Lords amendment, Lords amendments 81B, 82B, 83B, 84B, the Government motion to disagree and Government amendments (a) and (b) in lieu of the Lords amendments.

John Reid: The House has spent much time discussing the Bill and the amendments. The
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Government do not accept the Opposition amendments, for reasons that I shall state as succinctly as possible. First, they are outside the scope of the treaty, and would require us to renegotiate it.

6.30 pm

Secondly, in strictly legal terms, were the amendments to succeed, we would have to renegotiate some 20 other bilateral treaties. I heard a shout from the Conservative Front Bench of “Good thing” to the first— [Interruption.] Apparently, the shout came from the Bench behind. I wonder if Opposition Members think that renegotiating the other 20 treaties would also be a good thing.

Thirdly, the amendments are simply unnecessary. The Extradition Act 2003 already contains safeguards, including the precedence of any UK prosecution.

Fourthly, we have been prepared to listen to Members’ concerns and to move in their direction when we felt that the suggestions improved the treaty and the Bill. For example, on jurisdiction, my noble and learned Friend the Attorney-General is already developing with his US counterpart, with whom he has spoken—and with whom I have spoken twice since the matter was last discussed in the House—guidance to cover the forum issue. We hope that that will be completed in the next three to four weeks. Partly as a result of that willingness to address and clarify such issues, the majority in favour of the amendments in the other place fell from 102 and 83 to 37 and 33 the last time around. I hope that that process continues, as we have been prepared to move in that direction.

Mr. David Heath (Somerton and Frome) (LD): One of the Home Secretary’s principal grounds for rejecting the amendments from Liberal Democrat and Conservative Members in another place was that they were incompatible with the treaty. Will he confirm that his proposed amendments in lieu, which he wants the House to accept, are entirely compatible with the treaty, both in their present and future effect, if implemented?

John Reid: Yes, I can. It might help Members on both sides of the House if I were to explain the amendments. We have tabled the amendments in their proposed form simply to ensure that the Bill does not fall. As a technical measure to comply with the conventions of both Houses, we have inserted a so-called sunrise provision, which ensures that the amendments never see the light of day. Under the amendments, both Houses would need to pass a resolution before the amendments could come into force. The Government are not, of course, obliged to bring forward such a resolution, and have no intention of doing so. Consequently, the Government’s amendments have no practical effect in lying outwith the treaty. They do, however, enable us to cope with the conventions of both Houses.

Mr. Robert Marshall-Andrews (Medway) (Lab): As the Home Secretary knows, I would not support the Lords amendment on designation, as I said when the House last considered it. But will he spell out to me precisely which part of the treaty—for example, but only for example, the American treaty—is offended or contradicted by the amendment on forum? I confess that I really cannot see which part that is.

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John Reid: My hon. and learned Friend, who has probably studied these matters longer and in more depth than most Members of the House, will recognise that, as far as I am aware, forum does not appear in the treaty at all. If we therefore impose a forum requirement on the treaty, that will be outside the existing treaty. That is not to say that it will never be acceptable to the United States or anyone else, but, in strict legal terms, it would require a renegotiation of the treaty. As I said, it would require a renegotiation not just with the United States, but with approximately 20 other countries. I would be happy to list the countries involved, if Opposition Members would like me to do so.

For those four reasons, it would be wise to accept the current situation, without trying to impose the Lords amendments. I therefore commend the Government amendments.

A fifth reason has not featured as much as it might have done, due to our disputation over important legal points—the human and practical element of our deliberation. The Opposition amendments could result in serious offenders and suspected offenders escaping justice. I want to concentrate on that fundamental point, as, however we approach the matter, I want to make sure that we understand the implications were the treaty blocked, which would be the effect of the Opposition amendments. Opposition Members will have to show the country where they stand on the issue that is surely at the heart of the debate—ensuring that victims of crime get the justice that they deserve.

Rob Marris (Wolverhampton, South-West) (Lab): I am grateful for the Government’s movement on the issue. I understand what my right hon. Friend said, I think, about certain amendments being devices. I have two questions about the wording of the Government amendments. First, will he explain the circumstances in which the powers contained in subsection (6) of the first amendment (a), on page 4148 of our amendment paper, would be used? Secondly, what does the word “significant”, which appears twice on page 4149, mean in the second amendment (a) on forum?

John Reid: For technical reasons of complying with the conventions of both Houses, we have incorporated the Opposition amendments, but we have inserted sunrise clauses, which ensure that they do not take effect unless certain things happen. I have assured the hon. Member for Somerton and Frome (Mr. Heath) that those things will not happen, because we have no intention of moving the resolution or failing to ratify the treaty. I can understand the desire to discuss the technicalities of those resolutions, but the important point is that we would not give effect to them, as we would not pass such resolutions or fail to ratify within the 12 months specified. Therefore, we can comply with the conventions of both Houses while ultimately defeating the Opposition amendments, which would, in effect, block the treaty.

Mr. Hogg: The Government have a forum amendment on the amendment paper, so surely the Home Secretary concedes that the proposition included in the forum amendment is in principle desirable. Therefore, why is he saying that something that is in principle desirable is something that he will not do?

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John Reid: If we ever had any intention of giving effect to such an amendment, the right hon. and learned Gentleman’s argument would bear weight. I made it plain at the beginning of my contribution, however, that we had no intention of doing so, precisely because we do not accept the forum amendment in principle or in practice. Therefore, we will not move the resolutions to give effect to it.

Mr. Marshall-Andrews rose—

John Reid: If my hon. and learned Friend will allow me to make some progress, I was talking about the victims of crime. Justice for victims should be at the heart of our consideration. As I noted the last time we discussed the matter, the word “victims” was rarely if ever used in any of the contributions from those on the Opposition Front Bench. That observation is not in any way to minimise their arguments, but merely to point out a sin of omission, as those who should surely be at the centre of all our deliberations when discussing the general principles of justice are those who suffer most when injustice occurs.

The other issues have been addressed. The United States has consented to the treaty, as we asked it to following the urging of those in the other place who share party membership with the Opposition spokesmen. We dispatched a Minister to Washington to urge action on the United States, on the basis of arguments deployed in this House that it was presenting an insuperable obstacle to ratification and to the Bill’s passage. We went to the United States, and cajoled—and persuaded—the Senate to ratify. That has now been dealt with, and the forum arrangements have been clarified. As I have said, the Attorney-General is having discussions with his United States counterpart. Given all those developments, the argument about the practical effects on the implementation of justice, and on the victims themselves, is one from which the Opposition can no longer hide.

If the Conservative amendments were upheld, they would make ratification of a new extradition treaty with the United States impossible. Opponents of the Government would effectively prevent suspected serious criminals from being brought to justice. Having addressed all the issues that they have raised so far, I believe that that would be an intolerable position to present to the people of this country.

Mr. Richard Shepherd (Aldridge-Brownhills) (Con): It is nonsense to suggest that we are not in a position to extradite people just because we have changed the basis of the treaty. There is an existing law on extradition, which would make it possible to proceed.

John Reid: Let me give the hon. Gentleman some examples of people whom we cannot extradite under the present arrangements. There are a number of paedophiles, for instance. One in particular has been long sought by the authorities in this country, and is now sheltering in the United States behind the technicality that because his alleged sexual attacks on children happened a long time ago he cannot be extradited. Does that serve the purpose of justice?

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