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In the brief period that remains, let me return to the new clauses and amendments in the group. New clause 26—I leave aside new clause 25, which simply
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introduces one of the Government’s many new schedules—deals with the courts’ requirement to give credit for periods of remand on bail. It affects the way in which a court comes to consider the appropriate custodial sentence. One of the greatest concerns of the public is that the current system leads to dishonesty in sentencing. People do not seem to understand that when a person is sentenced to two years in prison, that actually means that he will be in custody only for one year. It provides yet another example of how the Government, in order to overcome the difficulties of prison overcrowding, are guilty of promoting an untruth.

Subject to some exceptions, provided for in subsections (8), (9), (10) and (11), the court will be required to act in this way. When a man has been convicted—I say a man because it usually is a man—the court will place him on remand and on a tag, pending sentence. The Minister says that some people spend up to nine hours on curfew, supervised by means of a tag. That may be true, but as a recorder who has made orders relating to curfews I can tell him that most curfews last from, say, 6 or 7 pm until 6 or 7 am the following day. They are adjusted to allow people to go to and return from work, for instance, but they are designed to prevent people from wandering around the streets at night causing trouble.

For most or at least a good part of that time, the individual concerned may well be in bed. He will certainly be at home, or at an address of which the court has been notified. That cannot be considered the equivalent of having spent time in prison awaiting sentence, but the new clause directs the court to take all that time—described as “the credit period”—into account in reducing the custodial sentence. I am afraid that the public will find that rather difficult to understand. If someone has committed an offence that crosses the custody threshold—an offence that is serious enough to warrant a custodial sentence—it will cause a great deal of scepticism, undermine public confidence in the justice system and make the Government look increasingly ridiculous if the court is then required to say, “By the way, all the time that you have spent at home in bed is time that can be taken away from your custodial sentence.”

Mr. Hogg: May I reinforce what my hon. and learned Friend is saying? He will know that under the sentencing guidelines, which are contained in statute, the court must impose a period of imprisonment only if it is the only appropriate sentence in view of the gravity of the offence. The new clause undermines that statutory guideline.

Mr. Garnier: I am afraid that the Government have completely lost touch with their earlier legislation. They have completely lost touch with the philosophy behind the Sentencing Guidelines Council, they have completely lost touch with the Court of Criminal Appeal—if they ever were in touch with it—and they are now making things up as they go along. New clause 26 is an example of that.

I have made the points that I wished to make about the new clause to the best of my ability. Plenty more could be made, but time does not permit me to make them. Sentencing is probably the most difficult aspect of criminal justice practice: it is difficult enough without the Government fiddling around in this way.

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Philip Davies: I entirely agree with my hon. and learned Friend. I think that my constituents will find it unacceptable for time spent on bail to be taken off sentences. Does he agree that measures of this kind are basically an admission of failure from the Government? They are casting around for ways of clearing spaces in prisons, simply because they refused to accept—although everyone warned them—that we needed more prison places. These measures have nothing to do with logic, what is right or what will protect the public. The Government are simply thrashing around looking for some means of ending the mess that they have got themselves into.

Mr. Garnier: My hon. Friend is quite right. I have made the point repeatedly for the last two years, since I started doing this job. Other members of the Opposition justice and home affairs team have made the same point, and I know that my hon. Friend has as well, as a constituency Member and as someone who takes an interest in issues of this kind. However, it seems to have no effect on the Government’s thinking. We might just as well talk to the air for all the good that it does to the public.

The trump card that the Government think they can play is “Lord Coles suggested it”—I mean Lord Carter of Coles.

John Bercow: Coles or Carter, what is the difference? [Laughter.]

Mr. Garnier: I apologise to Lord Carter of Coles for getting his title wrong. I know that we all enjoy a joke from time to time, but we are now debating hugely serious issues that are being rattled through without proper consideration.

Let me now deal with new clause 29, which I shall seek to use as a symbolic issue on which to divide the House. This whole group of new clauses troubles us, and contains issues that we think should be the subject of far more scrutiny and consideration. We trust that the other place will be able to give those issues that scrutiny and consideration.

New clause 29 deals with sentences of imprisonment for public protection. I have visited, I think, 31 or 32 prisons since my right hon. Friend the Leader of the Opposition appointed me to this job just before Christmas in 2005. The category of prisoner that causes prison governors, managers of prisons and prison officers the greatest difficulty is adult prisoners who are on indeterminate sentences for public protection and who have got beyond their tariff. They are extremely difficult to manage. Their expectation when they were sentenced—most people do not listen to the sentence that they are being given—was that they would be released at or shortly after the minimum tariff.

The problem is that, because of the Government's mismanagement of the system, the overcrowding in the system and the churning that my hon. Friend the Member for Buckingham (John Bercow) spoke about, the individuals on IPP sentences cannot get on to the relevant courses to demonstrate to the Parole Board or the licensing system that they have reached a state of behaviour that allows them to be released back into the community.

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Mr. Hanson: I respect the hon. and learned Gentleman’s judgment on that issue. I have indicated in my comments today and during discussions with prison governors and others that I share the points that he has made. That is the very reason we are making the changes today. Our aim is to ensure that we have a minimum tariff in due course, rather than a low tariff—in some cases, it is as low as 28 days.

Mr. Garnier: I know that that is precisely what the Minister has said, but he is looking down the wrong end of the telescope. He fundamentally misunderstands the problem that he has got himself into. The answer is not to dilute the IPP system, but to ensure that that system works. If one overcrowds the prison system, one is required to do what the Government are doing, which is to require courts to increase the minimum tariff for IPPs. The better answer, and the answer that the Government could have come up with if they had not messed up the prison system, is to make available sufficient course places, rehabilitation places, and places on anger management and other necessary courses that IPP prisoners need to go on in order that they can demonstrate to the assessors that they are safe to be released. However, they are stuck because of the mismanagement and the consequent overcrowding. In order to relieve overcrowding, the Government will have to take these measures, which I believe are viewed from the wrong end of the telescope.

The condition that the Government set in new clause 29 is that the minimum tariff of two years, which is the equivalent of a determinate sentence of four years, should be the hurdle below which a sentencing court cannot go. We are going to be left with people who may continue to represent a danger to the public being given determinate sentences of two or three years because the actual offence that they committed does not warrant more than that. They will be releasable after the 50 per cent. point, or even at some stage between the 50 per cent. and the 100 per cent. point; they will get released.

The advantage of the indeterminate prison sentence system is that, even if prisoners have a low tariff, as long as they have demonstrated themselves to be unfit to be released because they still represent a danger to the public, they can be kept in. The court will, of course, take account of the nature of the original sentence, but it will also have in mind public protection by looking at the character of the information surrounding that individual. The Government are doing away with that. Therefore, people who have committed what I would loosely call, putting it in quotes—I do not want to be misunderstood—“less serious” sexual offences and “less serious” offences of serious violence, if it is possible to have such things, will be given determinate sentences of under four years and they will be released at the end of that period. They will then be free to go out into the public and to repeat—

Mr. Heath: I am listening carefully to what the hon. and learned Gentleman has to say; of course, he has a lot more experience than most of us of how this works in practice. Does he not believe that if new clause 29 were brought into effect, sentencers would make this adjustment: if they felt that there was a danger of someone being released inappropriately, they would increase the tariff in order to compensate for what the Government had put in place?

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4.30 pm

Mr. Garnier: Would that that were possible. Someone might, for example, commit a non-invasive sexual offence against a child—grossly inappropriate sexual behaviour against a child, short of some invasion of his or her body—and that might be a first offence. In looking at that offence alone, the court might take the view that a custodial sentence of under two years is appropriate. However, whereas a court might currently be able to give an IPP for that one offence, it would not be able to do so under the new regime that this Government wish to push forward in order to cope with overcrowding. That is the danger we face, and that is the problem that the Government have given us, the public, and themselves as managers and legislators.

It is a pleasure to turn and look at you again, Mr. Deputy Speaker—rudely, I was looking in the other direction. I cannot stress too highly how important it is that those convicted of such offences should be susceptible to IPPs even if the original offence is subject to a relatively low tariff. The same applies to new clause 30 and, to some extent, to new clauses 31 and 32, which address extended sentences for both those under 18 and those over 18. Under new clauses 31 and 32, if a court goes for an extended sentence of imprisonment the term has to be at least four years. We are causing too great a limit to be placed on the discretion of the sentencer in dealing with such serious cases. It gets worse, because under proposed subsections (6) of both those new clauses we would give the Secretary of State the power by order to amend proposed new subsections (2A) and (2B) of section 227 of the Criminal Justice Act 2003

those subsections. Therefore, whereas the Government want at present to say that the custodial term would be at least four years, it will be open to a Secretary of State to come to a different conclusion.

We will not have a proper opportunity to debate this provision on the Floor of the House; it will go through as a statutory instrument. That is, I gather, the modern way of dealing with criminal justice legislation. Not only did we not have any time to debate the Bill, but we are not even permitted to have a serious debate about any amendments to the Government’s provisions.

On new clause 33, what the Minister did not make at all clear to me the necessity for proposed new paragraph (aa) to section 229(2) of the 2003 Act, as specified in subsection (2)(b) of the new clause. Why is the information about the dangerousness of the individual concerned to be restricted to activities relating to a conviction

A foreign national defendant might have led an entirely blameless life in the United Kingdom until his conviction, but he might have a string of convictions for dangerous behaviour in other parts of the world, which the court ought to be entitled to take account of. The Government must explain why they think that provision is necessary.

I will not be able to deal with all the amendments and new clauses in this group, as my doing so would be unfair on other Members who have things to say.
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However, I also point out that new clause 35 has huge hidden implications. It blithely deletes subsections (3), (4), (5) and (6) of section 247 of the 2003 Act. I remind Members that the Bill that led to that Act was the flagship Bill of the 2001 Parliament, which was going to solve all our criminal justice ills. Huge sections of that Act have yet to be brought into force, and many sections have been repealed before being brought into force, but this is yet another example where matters relating to the release on licence of prisoners serving an extended sentences are to be addressed.

The title of new clause 45 is:

I do not understand the logic behind the proposal, and nothing that the Minister said made it easier to understand the Government’s case. Clearly, it is not possible to give a community sentence to someone who has committed an offence where the penalty is fixed by law, for example, murder or some of the firearms offences, which I believe carry minimum periods of imprisonment of five years. I am looking at my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright) here. Clearly, someone cannot be given a community sentence in such circumstances.

Again, this issue goes back to overstretching the probation service. The reason the Minister says that he is pushing this proposal is that people have been given community sentences when they ought to have been given fines and because people are in some way being placed in a position where the probation service would be further overstretched. Why do the Government not manage the criminal justice system properly, plan and have a strategic vision, instead of looking down the wrong end of the telescope?

New clause 47 deals with the release of fine defaulters and contemnors under the Criminal Justice Act 1991, and is clearly designed to alleviate prison overcrowding. That is the wrong way to look at the development of the criminal justice system. The Government should work out the appropriate thing to do with particular sorts of offences and offender. They should not empty the prisons because they have failed to plan for the consequences of their sentencing policies since 1997.

New clauses 48 and 49 are interesting. New clause 48(2)(1A) states:

I am surprised that the Secretary of State thinks that that is an appropriate duty for him to have. One surely ought to have some regard to the details of the character and offence of the individual prisoner in question.

New schedules 3, 5 and 7 are very lengthy additions to the Bill. They were introduced this week, and although they are, to some extent, dependent on the new clauses that we have just been rushing through, they deserve greater attention than it is appropriate for me to give them this afternoon, given the time constraints. Thus, I shall say no more about them, save to invite Members of the other place to give them a thorough grilling when the Bill reaches there.

I hope that the sceptical view that I have brought to the discussion of these new clauses and new schedules
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gives the House not only an indication of my deep concern at the way in which the Government have brought the Bill and these new aspects of it to this place, but an understanding of my concern about the substantive underlying nature of these provisions. I regret to say that the Justice Secretary and his Ministers are diluting a pledge to be “tough on crime, tough on the causes of crime”, and are doing so in a wholly incomprehensive and illogical fashion. I could get cross about this. I could scream and shout, but it does not do my ulcers any good and it certainly does not do the attention of the House any favours. I shall stop now, and invite those hon. Members who are as concerned as I am to consider carefully the new clauses and amendments. I trust that if the opportunity is there, they will vote with the official Opposition against new clause 29, which I have picked as a useful symbol of our expression of deep concern about the mishandling of the Bill and of this aspect of it.

Mr. Heath: Nothing better illustrates some of the arguments that we attempted to put forward when we discussed the programme motion in the initial stages of the debate than this group of new clauses and amendments. A large number of Government changes have been tabled for consideration on Report. In little more than half an hour’s time, we will be required to divide on them. It is quite impossible to scrutinise such serious matters in this way. We are effectively giving a licence to the unelected House to do the job that we are elected to do—to deal with matters of life, liberty and criminal justice. That is all a result of the intransigence, it would appear, of the Government Whips in not providing sufficient time for us to do the job properly. It is a disgrace, and we cannot repeat that often enough. There is no possibility of going through the new clauses methodically, as we would have done had they been before us in Committee. We could have dissected them line by line and had the opportunity to produce amendments.

Mr. Hogg: Another disadvantage in the process is that there has been no consultation, so far as I am aware, with authorities, institutions and persons outside the House.

Mr. Heath: That is entirely right. I am grateful to the right hon. and learned Gentleman for making that point. This is not a good way of making law. It is not the way in which the House is supposed to operate. I hope that we have emphasised that point sufficiently this afternoon.

Let me come to the general tenor of the new clauses and amendments, as I cannot deal with the detail. They contain a number of constructs that are intended to remove people from the overcrowded prison system. The Minister knows perfectly well that I agree that we have too many people in our prisons. My argument, which I have made many times, is that if we ran our penal system properly a great many people who are in the prison estate would not be there taking up places that ought to be used for those who need to be in prison for protection of the public. Sadly, the amendments do not for one moment answer the needs of the service by taking out those with mental illness, who need secure accommodation that enables them to be treated properly. It is a national disgrace that such
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people are kept in prison cells. The amendments do not deal with alcoholics or drug addicts who find themselves in prison and do not get the proper treatment that they need. The amendments do not deal with the children in our prisons—it is a most inappropriate way of disposing of them—who do not get the developmental help that they deserve. All those factors mean that the system is not capable of providing the basic elements of rehabilitation that we ought to expect the Prison Service to achieve.

We are dealing with a dysfunctional system. The Government are attempting to paper over the cracks by introducing an array of manoeuvres to get people out of the estate almost randomly. They are not based on any real, assessed need, but purely on various mechanistic bases that enable the prison population to be reduced. For that reason alone, I do not think that that is the right way to manage the service.

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