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Lord Dixon-Smith: When I introduced this first group of amendments, little did I expect to stir up such a hornets' nest. We have had a good and instructive debate, from which I suspect all of us have lessons to learn.
I hope that I can give the Minister one small reassurance. It was not the intention of any of us on this side of the Chamber to force the withdrawal of the Bill. It was rather to seek to amend it in the light of the Select Committee's report and to put it into an acceptable form. That intention remains.
However, the fact of the Select Committee's report was bound to change the tenor of the discussion. It could not be helped. The Select Committee could not report until the Bill had received a Second Reading, and its report is strongly critical. We now have the Minister's assurance that he will consider what further amendments he needs to bring forward in an attempt to make the Bill more compliant with the Select Committee's criticism that, as presently drafted, it takes too much away from the proper supervision of Parliament. That is the lesson that we need to learn from this debate.
Lord Simon of Glaisdale: I agree. We have heard the important suggestion by a former Leader of the House, the noble Lord, Lord Shepherd, that discussions should now take place between the Government and the Joint Select Committee. It would be helpful to hear the Minister's reaction before we take any decision about the withdrawal of the amendment.
First, I wish to thank my noble friend Lord Shepherd for making those suggestions. I had been open to discussions with noble Lords prior to this stage of the Bill. I should be happy to discuss with the noble Lord, Lord Alexander, or others how best we can meet the anxieties raised by the Select Committee and others. Perhaps I presume too much; the Select Committee reports to the House and does not negotiate with Ministers. We therefore must observe the proprieties. Nevertheless, I am happy to have those discussions, preserving the role of the House in this respect.
In response to the noble Lord, Lord Peyton, I do not think that it is extending government policy too far to say that we recognise that Secretaries of State, past and present, are human; and that we therefore recognise that Parliament has the right, indeed the responsibility, to place some constraints on what they can do. Prior to this debate I believed that we were making some provisions for ensuring that Parliament had a say through introducing an affirmative procedure for a large number of the key regulations. I have also given a firm commitment to bring forward an amendment on Report. I hope to reassure the House that we intend to take on board the views of both the Select Committee and your Lordships on these matters.
I do not wish to reply in great detail to other noble Lords. While some of these anxieties have been slightly exaggerated, they nevertheless represent a real constitutional concern. There is an obligation on the Government to take note of that concern. We shall take note, both in the continuing debates today and at Report stage. I hope that we can meet as many of those anxieties as possible.
In response to the point made by the noble Lord, Lord Renton, as to whether we are complying with the European directive in introducing the Bill, as is normal in these circumstances the ability of the Secretary of State to make regulations with the term "may" provides a means for complying. The regulations themselves will be the form of compliance with those directives, as I believe is the case in other such circumstances.
In presenting this Bill, we had no intention of taking away the role of Parliament. Our intention was, as distinct from simple transposition of a European directive, to provide both Parliament and, equally important, industry with a systematic regime which had
Lord Harris of Greenwich: Before the Minister responds to that question, perhaps I may say that I believe that he has responded in a very positive way to the concerns that have been expressed in this Chamber. I am concerned with the timetable for the tabling of amendments by the noble Lord before Report stage. Will he ensure that he gives us a reasonable amount of time between the day on which he tables those amendments and the date of the Report stage?
Lord Whitty: As the Committee will know, that is not primarily a matter for me. However, I shall use my best endeavours to ensure that that happens. Were that to be the case, I do not believe that there would be a need for recommitment. That option has to be borne in mind, but I hope that we can proceed as intended, with due notice of all such amendments.
Lord Dixon-Smith: I apologise to any Members whom I got ahead of in not permitting the Minister to respond to the points which they had raised. I hope that they will put it down to the fact that I am surprised to find myself here this afternoon and also to the fact that we are on somewhat unusual ground which, fortunately, is rarely covered. I beg leave to withdraw the amendment.
Baroness Farrington of Ribbleton: My Lords, before the House moves to the Statement, I should like to remind noble Lords that questions to the Minister should take the form of a brief question or comment and that noble Lords who speak at length do so at the expense of other noble Lords.
"Up to now we have dealt with those who are capable of committing acts of a serious sexual or violent nature in one of two ways: by conviction and imprisonment through the criminal courts or by detention on the recommendation of doctors under powers in the mental health Acts. There is, however, a group of dangerous and severely personality- disordered individuals from whom the public at present are not properly protected and who are restrained effectively neither by the criminal law nor by mental health provisions.
"Their propensity to commit the most serious sexual and violent acts may be well known and well recorded. They may, however, only have been convicted of crimes carrying a limited determinate sentence and will have to be released from prison at the end of their sentence, even though they may themselves have warned staff of their certainty of recommitting serious offences on release. These people are plainly suffering from what the public would understand as the most serious personality disorder. But because current mental health legislation prevents the detention of even a person posing the highest possible risk to the public unless doctors also state that the condition is one which is treatable, these people remain at large and without the benefit of any attempts at clinical intervention unless and until they commit an offence and there is sufficient evidence to secure a conviction. In a limited number of cases they may not have come to the attention of the criminal justice system at all.
"As successive governments have recognised, this situation is plainly unsatisfactory. As long ago as 1975 an official committee--the Butler Committee--recommended that indeterminate, reviewable sentences be introduced for some of these individuals. Much more recently, legislation enacted by this and the previous government does mean that increasingly effective conditions can be imposed on offenders as they are being released from prison into the community. Post-release supervision is compulsory for prisoners serving one year or more. Those who breach their licence conditions can be immediately recalled to prison.
"The Crime and Disorder Act introduced extended supervision of up to an extra 10 years for sex offenders and gave the police powers to apply for a sex offender order to protect the public from any sex offender whose behaviour in the community is giving cause for concern.
"However, not all of these powers can apply to people who were sentenced before 1992. In recent months we have seen dangerous offenders such as Robert Oliver and others released with no conditions imposed on what they did or on where they lived.
"In these circumstances the contribution of people working on the ground in the police, prison, probation, health, education, housing and social services is essential. I should like to pay tribute to them today for their work. Multi-agency risk panels are now widespread. As honourable Members on both sides of the House are aware the information-sharing and planning arrangements of these panels are protecting victims' interests and dealing effectively with dozens of people who would otherwise undoubtedly pose a serious risk to the public.
"But effective arrangements are beyond the capacities of local agencies alone. Central government action is also needed. I can therefore tell the House today of both what we are proposing for the short term and also of our legislation for the medium term. For the short term we are putting in place an early-warning system so that local agencies and central government have the maximum possible time to prepare for a dangerous person's re-entry to the community. Prison and probation services are being asked to provide this information to the Home Office's Probation Unit. Similar arrangements are being made through the NHS with hospitals which treat patients detained under the Mental Health Act 1983. A support group within the Home Office Probation Unit made up of staff from the operational services will be there to assist local agencies to deal with particularly difficult cases.
"These changes will help the system deal with dangerous people now. But a new legislative framework for the system is long overdue. As I have explained, under current legislation--based upon the provisions of the mental health Acts--only some of these severely disordered people can be detained and then only if,
'treatment is likely to alleviate or prevent a deterioration of their condition'.
"The Government therefore propose that, subject to parliamentary time being available, there should be new legal powers for indeterminate but reviewable detention of dangerously personality-disordered individuals. These powers would apply whether or not someone was before the courts for an offence. But the powers would be exercised by the courts--and not
"Depriving individuals of their liberty in such circumstances is a very serious step. The key aim is to protect the public while meeting the health needs of individuals. So we will ensure that the process of ordering detention involves a robust system of checks and balances covering both legal and clinical issues. Once in a detention, there will be regular quasi-judicial reviews of the justification for continued detention. And the individuals concerned must have the best possible chance of becoming safe to return to the community. We therefore propose to establish a range of specialist programmes and a new approach to managing the detention of all those detained under the new power. This approach will involve close operational links with the existing services.
"I have outlined for the House today what the Government believe is needed. But because of the complexity of this area and the seriousness of creating the kind of detention powers I have described it will be important to consult more widely. This will enable us to ensure both that we have not overlooked any options and that the action we take is effective and measured, commands broad support and is compatible with our obligations under the European Convention. My right honourable friend and I therefore propose to publish in the spring a consultative document which will outline in more detail the nature of the problem and the options for the new framework within which these powers will operate. In the light of responses to that document we will take final decisions later this year.
"We also need to find out why some people develop severe personality disorders and how this can be prevented. We are therefore funding further research (nearly £1 million over three years). But we know already that severe personality disorder is often associated with large, broken families where abuse has been rife and children may have been taken into local authority care or received community-based mental health treatment before embarking on drug abuse and criminal careers. These problems of course need to be dealt with in any event.
"In conclusion, a number of honourable Members on both sides of the House have had to deal with the consequences in their own constituencies of the release of such dangerous, severely personality- disordered offenders. I am extremely grateful to them and to local police, probation and health services for the sensitive and responsible way in which they have handled cases in their constituencies involving offenders to whom these measures relate, often in the face of serious and alarmed public concern. I hope that this constructive all-party approach will continue and that these proposals will receive wide support inside and outside this House".
Lord Cope of Berkeley: My Lords, we are most grateful to the Minister for repeating to this House a Statement approximating to that made by his right honourable friend the Home Secretary in another place. We all recognise this to be an extremely difficult area of policy within a difficult portfolio, and the long history of the matter which was partially recited in the Statement demonstrates that. As the Statement made clear, to deprive people of their liberty, particularly indefinitely, when they have completed prison sentences for offences that they have committed, is a most serious matter and, and even more serious when no further offence has been committed. Our obligations under the European Convention on Human Rights are a recognition of that seriousness.
The Government are, however, right to say that the safety of the public and the prevention of further offences is the most important consideration. While we shall want to consider the details of the consultative document and, subsequently, the proposed legislation, we support the Government in continuing to develop policy in this area.
I should like to raise a number of points, although I realise that the Minister may be unable to answer them today. They may be dealt with in due course by the consultative document, but it would be helpful if the Minister could provide guidance at this stage. First, I am not clear as to how all this fits into the ongoing review of sex offences that is now being carried out within the Home Office. Secondly, if I have correctly understood the Statement, the new powers apply to those unconvicted and to those convicted before 1992. Is it intended to treat those convicted since 1992 in the same way, because I understand that the position is not quite the same as in the current legislation. I understand that approximately 300 to 600 people are considered likely to be affected, although that is very much an estimate.
Thirdly, which courts are expected to be asked to handle this matter? I take it that it will not be dealt with by either magistrates or juries and that the decisions will be taken by judges. Subsequently, where will appeal lie? Will it lie to the mental health tribunals, as it does under part of the present legislation, or direct to the courts? Sometimes the vital questions may be essentially medical ones. Is the patient treatable or not? If they are treatable obviously they will fall under the existing legislation. That is essentially a medical rather than a judicial judgment; but at other times obviously points of law will arise. Where the matters are for judges to decide is it anticipated that medically qualified people will assist them in assessing the cases before them?
Fourthly, who is it proposed will run the new system of detention? Will it be run by the Prison Service, who look after some people at the moment, or National Health Service hospitals; or will new institutions be created for the purpose in either the public or private sector? Lastly, it would be helpful to know when the Minister considers that spring will arrive because that is when the consultation paper is due to be published. Can the noble Lord give any further idea about when any legislation is likely to find a slot in the legislative programme?
Lord Dholakia: My Lords, I wholly endorse the sentiments expressed by the noble Lord, Lord Cope. We are grateful that the Government have now made this Statement. We welcome the fact that the Government seek arrangements for better diagnosis and an improved system to deal with people suffering from personality disorders. We all agree that at present people are inadequately and inappropriately dealt with by both the penal system and the health system. We therefore welcome the proposed consultation. We also welcome the emphasis in the Statement on the fact that most people with personality disorders do not pose a serious risk to the public. The majority of them are not ex-murderers in waiting. Will the Minister affirm that properly funded community care arrangements, as opposed to the inadequately financed system of community care which has operated for too long, provide the best way to deal with the majority of people who suffer from mental disturbance?
We also welcome the emphasis on early intervention and prevention. If we can give a high priority to improving the diagnosis of young people with personality problems and provide them with the help that they need this will prevent the problem from developing with far worse disorders at a later stage. We also welcome the short-term proposal for better arrangements to identify dangerous offenders in the prison system before release and to provide well planned and co-ordinated release arrangements for them. Can the Minister provide further details of the agencies or departments from which staff will be seconded to the Home Office Probation Unit to form the new support group that will oversee these arrangements?
Many of the current problems arise from the fact that psychiatrists are split over the treatment of people with personality disorders. One psychiatrist will regard an individual as untreatable while another will be prepared to accept the same person for treatment. It is therefore often a matter of chance whether someone ends up in hospital or in the prison system. If a person goes to prison, often he leaves at the end of his sentence just as dangerous as when he went in.
We agree that there is a strong case for a new, indefinite reviewable order for dangerous people with personality disorders. In relation to mentally disordered offenders, a recent report by NACRO, which I chair, entitled Risks and Rights, drew attention to the gap in current powers which the proposal would fill. However, there are two important provisions. First, use of the new power must be based on strong and tested evidence of dangerousness and subject to rigorous judicial procedures to ensure that people are not detained unnecessarily or in an arbitrary manner. Secondly, alongside an emphasis on protecting the public, there must be an equally strong emphasis on rehabilitation and providing those mentally disordered people with the care they need for their mental condition.
We believe that the best way to achieve that would be to set up a new and separate system of units, distinct from the prisons and special hospital systems. The current system has failed people with personality
We know the inadequacy of special hospitals. We know that the review of the Mental Health Act is now taking place. It is also appropriate to ensure that medium and long term strategies are part of the Mental Health Act review.
Lord Williams of Mostyn: My Lords, I am truly grateful for the generous bipartisan spirit in which the noble Lords, Lord Cope and Lord Dholakia, approached the matter. I do not think that we can begin to hope for a successful outcome unless we regard the issue essentially as a deeply worrying social problem which has nothing to do with party political advantage or posturing. I am most grateful that none has been illustrated.
The noble Lord, Lord Cope of Berkeley, put a number of questions. The review of sex offences is currently going on because I think that it has been well recognised that sexual offences are the product of historic accretions. Very often they are not well defined; and often there is a difference of penalty which is regarded as inappropriate. Despite the fact that the label may be too lenient, the sentence available is often not sufficient. That is quite distinct. We are not simply dealing with those who may commit sexual offences, but with those who are seriously personality disordered. It is a wider point.
The noble Lord asked which courts might be concerned. There are a number of possibilities. Plainly the magistrates' court, which has a maximum jurisdiction of 12 months, would be wholly inappropriate. If it is to be a reviewable sentence passed on a finding and conviction of crime, then one would have thought that it would be the appropriate criminal court. If one has a sentence in the criminal jurisdiction, then one would have thought, subject to consultation--we genuinely want fully informed consultation--that it would be in the usual way.
If one has the power to take away liberty without a finding of guilt, one would be looking to bodies such as the mental health tribunals which, by and large, have had good public confidence and support. However, I stress that we have come to no absolute conclusions. When we speak of a consultative document, that is truly what we want.
Judges are well equipped to deal with medical issues at present. They have to give directions to juries in cases of diminished responsibility. They have to make rulings; and often they have to pass sentences based on the medical evidence before them. I take the noble Lord's
The question was posed: where are these people to be kept? At present, 400 dangerous severely personality disordered people are detained in hospitals, and about a further 1,400 are held in prison. That is one of the specific questions to which we have to put our minds. A point arising from the question posed by the noble Lord, Lord Dholakia, is this. Are we to have distinct units? Are we to cater for those in hospitals? Have some of them still to remain in a secure prison regime? That is a question on which, again, we wish genuinely to consult.
The noble Lord, Lord Cope, asked me when spring was to come. As soon as I give a date, there will be floods, blizzards and national disasters. But we hope to have the consultation paper out before Easter.
The noble Lord, Lord Dholakia, asked me about the general areas in which we would look for seconded staff. Essentially we would be looking to professionals with expertise and experience in health, social services, prisons and probation. One does not want to be too prescriptive on that but I believe that he would support our suggestion that we should tap into those sources of expertise. The noble Lord is right. NACRO provided a helpful, measured report, as I saw it, which recommended the reviewable sentence. It is helpful to have the support of such a reputable body.
I hope to set at rest any suggestion that one is simply locking up people without proper justification. There is ample justification in a public protection context and in the fact that many people who have serious disorders are simply not treated, as the noble Lord said, because we have no effective sanctions or mechanisms to deal with them. I take the noble Lord's point that if one is to deal with some badly affected people in the community, it must be properly resourced.
Again one needs distinct limits; and one needs to be cautious about taking away liberty from our fellow citizens except on abundant, persuasive material. The review of the Mental Health Act continues under the review set up by my right honourable friend Mr. Dobson. That casts a wider net than the specific question that we deal with here.
I have answered all noble Lords' questions. I repeat my grateful response for the way in which the Statement has been dealt with. I repeat again that we genuinely want an inclusive process of consultation. There are few people involved, but the public dangers are quite significant.
In this Chamber, to my knowledge, we have raised the desirability of a reviewable sentence for at least the past six years. I have nagged the noble Lord since he became the Minister; and I nagged his predecessor when we debated the Crime (Sentences) Bill. Why has it taken so long to appreciate that a new indeterminate sentence is absolutely vital? To what extent is the present decision the result of the inquiry presided over by His Honour Peter Fallon QC?
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