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Nick Herbert: The Lord Chancellor talked incessantly about things that were not in the Bill. The Prime Minister, when he talked about the pre-legislative programme, specifically said that, if Flanagan recommended measures that would improve police efficiency, they would be added to this Bill. As a result of the Flanagan review of police efficiency, can the Lord Chancellor now tell us
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what measures will be brought forward in amendments to the Bill? The Government have had the interim report, but they are unable to tell us what measures may be added to the Bill in later amendments.

Mr. Straw: I am grateful to the hon. Gentleman for giving way but it seems blindingly obvious. We only got the Flanagan report about three weeks ago. It was an interim report. We have not had the final report, which is not due till the new year. The chances of any provision from that being included in this Bill are extremely unlikely.

Madam Deputy Speaker (Sylvia Heal): Order. May I remind all right hon. and hon. Members that we are discussing the Bill that is currently before the House?

Nick Herbert: Indeed. Part of the problem is that we do not yet know what will be in the Bill. Although the Prime Minister has promised legislation in relation to policing, we have no idea what that legislation will be.

Since the Government came to power, more than 3,000 new offences have been created, 430 of them by the Home Office. The creation of 3,000 new offences works out at a new offence for almost every day that Labour has been in power, and it is twice the rate seen under the two previous Conservative Administrations. I have lost count of the number of new offences in this Bill. The Guardian reports that it is 19. Perhaps one of the Ministers sitting on the Government Benches could do something useful, count them and let us know at the end of the debate. The Bill was published on the eve of the departure of Tony Blair, the previous Prime Minister, from Downing street. There could be no more fitting tribute to him or to the legislative incontinence that has characterised 10 years of this Government.

I hesitate to mention ICM’s poll in the News of the World yesterday. I appreciate that it may be in poor taste and that that poll had no impact at all, of course, on the Prime Minister's courageous decision not to call an early general election. However, that poll showed that 63 per cent. of voters in marginal seats think that the Government have done a bad job on law and order, and only 30 per cent. think that they have done a good job. More than half of Labour voters said that the Government had done a bad job. There have been 35 Bills, 3,000 offences have been created, but two thirds of voters say that the Government have done a bad job. Do Ministers by any chance think that those facts are related? Perhaps they should listen to the Law Society, which said in a briefing on the Bill that it

Mr. Hanson: Can the hon. Gentleman tell me whether he is going to vote against the Bill this evening?

Nick Herbert: I am afraid the Minister of State will have to wait and see, if he can bear the tension.

Alongside the successive criminal justice Bills, we have seen a succession of sentencing reviews and a constantly shifting sentencing framework. There are
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other sentencing reviews now in train that the Bill does not take into account, including the review on indeterminate sentences, which the Lord Chancellor has announced, but has not confirmed to the House.

Let us dwell briefly on the elements of the Bill that we can agree on. In relation to the pornography offences, we support the principle of clause 64, which implements measures to combat possession of images that are both extreme and pornographic. We also support the principle behind clause 67, which relates to the penalties applied for possession of extreme pornographic images, and clauses 68 and 69 relating to indecent photographs of children. As usual, we will need to look at the drafting, but the whole House will share a determination to protect children from paedophilia and society from images that could provoke violence. I pay tribute to my hon. Friend the Member for Mole Valley (Sir Paul Beresford), who has worked tirelessly to promote more robust action in relation to those issues.

We also support the principle of clauses 104 to 106 regarding a new offence of causing nuisance or disturbance on NHS premises and the powers to remove offenders from hospital premises. However, given that that measure will not apply to patients who are violent towards NHS staff, we will have to look in due course at how effective that will be in practice and whether it affords nurses and other NHS personnel the protection that the whole House believes they deserve.

We also support the creation of the prisons commissioner, so long as the commissioner has the power to recommend criminal sanctions akin to those in the Corporate Manslaughter and Corporate Homicide Act 2007 against the Prison Service and other state agencies that are charged with the custody of individuals, and so long as his appointment is not a ground for delaying the implementation of the Corporate Manslaughter and Corporate Homicide Act.

We will look carefully at the proposed offence of inciting homophobic hatred because clearly there are important considerations striking the right balance between protecting free speech and a desire to protect gay people from hatred. We will debate the provisions in Committee once we have seen them.

The core purpose and effect of the Bill is confused; will the Bill send fewer people to prison or more people? Clause 16 proposes to limit recalls to prison to 28 days, provided the Secretary of State is satisfied that the prisoner will not present a risk of serious harm on release. The Government say that the measure will save 1,000 prison places, but we are opposed to it in principle. We want a more effective process for recalls, but we believe that offenders who breach their conditions should expect to return to prison to serve out the rest of their sentence.

The Bill also abolishes the power of magistrates to suspend custodial sentences, and again we oppose this interference with judicial discretion. The crimes in question have passed the custody threshold. Before even considering a suspended sentence, the magistrate must decide that a final probation would be insufficient. If they cannot suspend the sentence, they will have to jail the offender.

There is another concern; a provision that is intended by the Government to reduce the prison
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population could have the opposite effect. The National Association of Probation Officers has warned that the abolition of the power is justified on the grounds that some magistrates use it instead of fines or unpaid work. Nevertheless, there is a real risk that many magistrates will impose custody instead of suspension and the association goes on to predict that it will increase the prison population by 1,000.

Philip Davies: My hon. Friend is making a typically powerful case. Does he agree that the Bill has more to do with digging the Government out of a hole of their own making—not providing enough prison places—rather than their doing the right thing that our constituents would like to see?

Nick Herbert: I strongly agree. The prisons crisis, to which I shall refer, is one entirely of the Government’s own making; for 10 years they have ignored the warnings that the rise in the prison population would outstrip the provision of prison places. The Bill is an inadequate response to that crisis and my hon. Friend is absolutely right. On the one hand, we have measures that the Government claim are intended to reduce the prison population—partly in response to the prison overcrowding crisis—but which many experts are claiming will increase the prison population. On the other, we have measures that the Government admit will increase the prison population.

According to the National Association of Probation Officers, the violent offender order, to which I shall return shortly, will add at least 4,000 to the prison population. The Government’s own regulatory impact assessment says that breaches of the violent offender orders will have an impact equivalent to approximately 20 places a year. There is an extraordinary discrepancy between these two figures. We need to bear in mind that the Government failed woefully to predict the impact of their own indeterminate sentences.

During the Committee stage of the Criminal Justice Bill 2003, the right hon. Member for Leeds, Central (Hilary Benn) predicted that indeterminate sentences would require an additional 900 prison places. The number of people in prison serving indeterminate sentences since then is already at two and a half times that number. In April this year, the figure was at over 2,500, just two years after that sentence was introduced. The Prison Reform Trust has estimated that 12,000 people will be serving indeterminate sentences for public protection by 2012. The gaping hole that is not filled by the Bill and the issue that the Lord Chancellor signally failed to address is that the prisons are full, to bursting point. On Friday, we saw prison numbers rise for the second successive week to a record high.

The Government’s policy of early release—under which 25,000 criminals are to be released 18 days early on to our streets, under which 6,000 criminals have so far been released, 1,000 of whom were violent offenders and under which many of those have gone on to commit offences while released—has saved only 1,200 prison places. It has been a failure.

Mr. William Cash (Stone) (Con): On foreign criminals who require deportation, does my hon. Friend agree that another gaping hole in the Bill is set
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out in the explanatory notes relating to the Human Rights Act? Unless the Human Rights Act is repealed, a coach and horses will be driven through the Bill in relation to such matters. In respect of the framework decisions applying European Community law, the best thing to do would be to include in the Bill a provision that says “notwithstanding the European Communities Act 1972 and the Human Rights Act 1998” and then to legislate. We could then bring these important decisions back to the House on behalf of the electorate, something that the Government are refusing to do. They are in fact making it worse under the absurd reform treaty, which is completely constitutional.

Nick Herbert: I agree. That is another gaping hole at the heart of the Bill and I will turn to that issue in a second.

Some 17,000 prisoners are now doubling up in cells, twice as many as when the Government came to power. Nearly a quarter of the entire prison population is housed in cells designed for one fewer person. We have just seen the obscenity in the 21st century of a wing of a prison in this country closed because of sewage and rat infestation. There has been a huge increase in suicides in our prisons and, contrary to the Minister of State’s claim, that increase in prison suicides this year far outstrips the rise in the jail population. The Government’s own figures show that suicides are far more likely in overcrowded jails and that an inadequate number of new prison places will not keep pace with the rising custodial population.

There needs to be proper accountability for deaths in custody and the fact that the Government resisted their own corporate manslaughter legislation in relation to prisons and police cells—eventually only accepting it with a delay of years—demonstrates that Ministers know there is a serious problem but have been unwilling to take the steps to deal with it.

These are the issues that we will address when we come to consider a provision in the Bill that we welcome—the appointment of a commissioner for offender management and prisons. The Government, frankly, have simply stood by and watched as the prisons have filled up. On 24 July, the Minister of State conceded that

They know there is gap but they are refusing to tell us what they are going to do about it and they are producing a Bill that will increase the prison population in spite of that.

The Ministry of Justice’s median projections of future prison population show that there will be 12,370 new prisoners by 2012, but only 9,500 new prison places by the same date. That is a gap of 3,000. If all of the measures in the Bill were implemented, those measures increasing the prison population would, on the Government’s own estimate—it is wildly behind the forecasts of the National Association of Probation Officers—add 49. Those that would reduce the prison population would subtract 1,100. According to the Government’s own figures there remains a serious gap
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in the projected prison population that is not addressed by the Bill, even on its own terms.

We need a coherent strategy to address the crisis, but what we get is political grandstanding. Part 11 of the Bill concerns itself with foreigners who commit crimes in Britain. On 25 July, the Prime Minister told The Sun:

Then, two weeks ago in Brighton, the Prime Minister said:

However, today in his press conference the Prime Minister made it clear that he was talking only about newcomers to this country.

First, we were told that all foreign criminals would have to be deported, then we were told that it would be drug dealers or gun criminals, and now the Prime Minister confirms that he is in fact talking only about people who have yet to visit this country. The Prime Minister simply does not understand the damage that that kind of spin has done to politics and his own Government—not only over the past 10 years, but, specifically, in the last two weeks.

The Prime Minister knows that he cannot remove thousands of foreign criminals from our country, not least because Labour’s own laws prevent it. He could not even deport the murderer of Philip Lawrence because of an EU directive, which the Lord Chancellor negotiated, and the Human Rights Act, which the Lord Chancellor introduced. That is why we say that one of the major flaws in relation to this Bill, which is intended to deal with the issue of foreign prisoners in our country, is the HRA itself. That is why we have said that the HRA should be scrapped, and replaced by a British Bill of Rights and responsibilities that would enable us to take the necessary action against, for instance, those who commit acts of terrorism.

Dr. Evan Harris: Will the hon. Gentleman clarify whether it is his intention to resile from the European convention on human rights, and if not, what would be achieved, except in terms of slowness of justice, of simply repealing the HRA, which puts the European convention into UK law? Is it the hon. Gentleman’s intention to resile from the ECHR?

Nick Herbert: No, it is not our intention to resile from the ECHR. It is not us who proposed that. The former Home Secretary, the right hon. Member for Airdrie and Shotts (John Reid), proposed that—he did so in this House on 24 May. As the hon. Member for Oxford, West and Abingdon (Dr. Harris) knows perfectly well, the argument is that if we were to have our own British Bill of Rights, the convention would be reinterpreted accordingly and the margin of appreciation would allow us to take more action against those who threaten our country.

Mr. Straw: I must say that the hon. Gentleman has a lot of learning to do on the margin of appreciation and Strasbourg. He is implying that in the Chindamo
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case—he is still locked up, and will, I think, remain so for quite some period to come—had there been a new Bill of Rights and responsibilities all the problems of getting tribunal agreement to deport him would have disappeared. At the same time, the hon. Gentleman is blaming an EU directive. If he reads the tribunal judgment, he will see that the ECHR was a subsidiary and minor issue, and that the key issue was to do with EU directives that had been extant for decades although they were consolidated and updated to similar effect in 2006. Is the hon. Gentleman therefore saying that those provisions, which are binding in EU law, would also be abrogated by a future Conservative Administration?

Nick Herbert: Let me make two points to the right hon. Gentleman. First, his successor the aforementioned former Home Secretary reaffirmed as recently as last month that he thinks that the HRA is an impediment to our ability to deal with terrorism. Secondly, the right hon. Gentleman correctly refers to the directive in the Chindamo case, but he negotiated it and it was an impediment to removing Chindamo not to some country where he might be tortured but to a country in the EU. He should have ensured in negotiating that directive that we could deal with people whom we do not wish to remain in this country because they have committed serious offences—in this case, a brutal murder. After all, the Prime Minister has promised that; he has told the country that he would ensure that any foreigner committing an offence would be removed from this country. If the Lord Chancellor is now saying that that is not possible, perhaps he would like to explain to the Prime Minister why he is wrong.

Mr. Cash: Does my hon. Friend agree that the crucial question—the test—is whether our judiciary will obey legislation from Westminster or from Europe in matters that affect vital national interests? It is clear from his excellent speech that my hon. Friend has understood the nature of the problem, and I believe that the margin of appreciation, as he put it, will be appreciated by the Lord Chancellor—if I can use that term because I am not sure whether the right hon. Gentleman is the Lord Chancellor or the Secretary of State for Justice. Perhaps he can enlighten us on that.

Nick Herbert: Other jurisdictions have a greater ability to deal with such matters because they have constitutions that frame people’s responsibilities as well as their rights and that enable them to deal with terrorist suspects. We should also have that; that is what the former Home Secretary said. That is also what the Prime Minister implied when he said we should have the ability to deal with such issues. However, the reality is that, behind the spin, it is clear that the Government have no intention whatsoever of moving on this issue.

Let us look at another issue in relation to this Bill on which the Government have been grandstanding. The Minister of State, the right hon. Member for Delyn (Mr. Hanson), said about this Bill in a news release of 26 June that it builds on reforms

to which I say, “Hear, hear.” The Lord Chancellor said two weeks ago that he would review the law to ensure
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that people can defend themselves from attack without fear of prosecution, but the right hon. Gentleman was this Government’s first Home Secretary and in four years he did nothing. On the “Today” radio programme he gave a deeply unconvincing explanation of why that was:

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