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This Government, under Gordon Brown, when he became Prime Minister, made much of saying that they wanted to strengthen the role of Parliament. Therefore, I find it extraordinary how this first piece of important Ministry of Justice and Home Office legislation under his premiership has proceeded. As other noble Lords have said, the Government treated the elected Chamber with total disregard when it came to guillotining discussion and introducing important clauses with no time to debate them. If this had been a technical, uncontroversial Bill—in which case, it would have started in your Lordships’ House—that would not have mattered. However, this Bill contains some very controversial items which need to be debated.

I am going to talk about three of those issues, two of which I will particularly concentrate on in Committee. I want to mention the issue of young people—I will not be discussing it so much in Committee, but it needed debating in the other place. The issue is very much in the headlines at the moment, with talk of feral children, and little can be more important than instances of violence perpetrated by children. It is

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something which shocks society. The Bill’s response to how we treat young people—their rehabilitation, their response to the justice system and how to make that system effective—really needed to be debated by elected Members and I hope that we will be able to do it justice in your Lordships’ House.

It is not simply the legislative response but also the ministerial guidance that follows it. That comes out so clearly in debate. For example, Clause 39 provides for imposing orders that will enable a court to impose an unpaid work requirement, a curfew requirement or an attendance centre requirement. When discussing these, we should debate whether the provisions are to be used only when a young person will not pay rather than cannot pay. Ministers will have to be sensitive in the guidance they issue and should give assurances regarding the resources that the legislation requires. That is because far more pressure will be put on youth offending teams and probation services, both of which are currently overstretched.

The two issues I shall concentrate on are set out in Part 7—the first is extreme pornography. It is a difficult issue to debate at all, but one to which I hope we shall bring some cool and objective thinking. Again, it did not really receive the sort of examination in the other place that it should have had. We have had an interesting briefing from a large number of academics such as lecturers in media studies and so on who have joined together on this issue. The first point they make bears repeating at this stage: the Government have been using a rapid evidence assessment to back up their claims that legislation is necessary in this area. They say that the REA document is based on largely discredited research emanating from particular psychology and sociology traditions once favoured in America and that the supporting evidence has no real connection to the British case. That is the sort of issue that we need to examine in Committee.

Legislation needs to be objective and evidence-based, not subjective. Personally, I do not like pornography and believe it to be essentially degrading to the spirit, and violent pornography is even worse. Indeed, anything depicting extreme violence is, I think, dangerous as regards the well-being of society. However, I also do not that this is believe in censorship unless it is absolutely essential to protect people, and my personal view is not that this is what I want the House to focus on. We need to concentrate on the fact that this sloppy clause is dangerous.

On 6 December last the Minister said that the Government believe that the individual pornography user will have no difficulty in recognising pornography. That is not an objective or evidence-based approach. Surely it cannot be for the possible perpetrator of a crime to judge whether he actually is committing a crime. A great deal more thought needs to go into exactly how these clauses have been drafted, and I recognise that the Minister has suggested that the Government will bring forward something which I hope will be more evidence-based. Further, I am extremely glad that we will have the benefit of the report of the Joint Committee on Human Rights before us.

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Before I leave this point, I refer to the specialist interest material we have received from the Outsiders Trust, which represents the interests of physically disabled people. That is the sort of issue I hope we will come back to in Committee.

I turn now to the provisions on prostitution. Given that the Government started to create a strategy in this area with the publication of guidance in 2000 entitled Setting the Boundaries, followed by legislation with the Sexual Offences Act 2003 and a year later a consultation paper entitled Paying the Price, to which they received responses and then developed a strategy, I am shocked that the result of all that work is simply two short clauses which represent a pathetic response to a severe problem. The fact is that prostitution happens. People are willing to pay for sex and others are willing to sell it. Within that framework, whether we like it or not, it is going to take place. The responsibility of the legislation is to make prostitution as safe as possible so that it presents as small as possible a health risk to both the buyer and the seller and minimises as far as possible the physical risks for the women who operate in the trade. It is also a question of striking a balance between privacy and safety.

It is a mistake to regard all prostitutes as victims or unwilling participants, but that is the line the Bill is taking. It is a Victorian Bill because it talks a lot about rehabilitation of prostitutes. I was interested to learn that Ministers have been to Sweden, which has gone down the criminalisation route. It has criminalised the user as well as taking the further step—I know the Minister will deny this—of criminalising the seller. Those who do not fulfil their rehabilitation orders will be criminalised.

The Ministers could have chosen to visit New Zealand, which has gone down the decriminalisation route, and seen if that has worked better since legislation was introduced there. That is a point I will want to explore in Committee. Women who own brothels and run them well and safely should be able to do so without fear of prosecution under the trafficking laws if they are employing people who are there of their own free will. I believe that that would be safer. But I do not believe we can achieve all this in this Bill, and I agree with the noble Baroness, Lady Howe, that we need to remove the clauses dealing with prostitution in their entirety.

That is what I will be concentrating on. I shall also be looking carefully at exactly how the clauses on immigration in Part 12 are going to affect the children of immigrants and at all the issues raised by the Joint Committee on Human Rights on those provisions. It raises serious issues, and I look forward to debating them in Committee.

4.57 pm

The Lord Bishop of Liverpool: My Lords, this Bill comes before the House at a time when the public mood about youth offending is both volatile and vengeful. The killings of both Rhys Jones and Garry Newlove have taken place in parishes within my diocese, in Liverpool and in Warrington. We have been deeply touched by the dignity of Stephen and Melanie Jones and properly challenged by the analysis of our social

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malaise offered by Garry Newlove’s young widow. The mood of the public is that the perpetrators of such crimes should be punished, but when such murderers are young people, we need also to understand how we, as a society, have failed them. Without diminishing their responsibility for what they have done, we share in the culpability of creating a society in which lawless young people can hold such devastating sway.

I remind your Lordships that these two murders did not happen in areas of multiple deprivation but in leafy suburbs of owner-occupiers. It is evidence that it is not easy to contain such violence by disturbed young people. We on these Benches welcome the Bill’s recognition of the youth offender teams and the youth rehabilitation orders, although we share some of the critical observations offered by the Prison Reform Trust, and by the noble Lord, Lord Thomas, and the noble Baroness, Lady Howe. When it comes to youth crime, we need to probe and examine the history of the offender. We need to understand their character and how it was formed. We need to investigate the circumstances of their life and analyse the culture that has desensitised the conscience and stultified the imagination so that the offender is unable to feel the pain they are inflicting on their victim.

If society is to a degree responsible for the moral deficiency of these young people it begets, then society—namely ourselves—must also bear the cost of the remedy. The diversionary processes are labour-intensive, necessarily expensive and require commensurate expenditure.

I welcome the Bill’s provision for assessing the offender’s needs concerning mental health, drug abuse and education, but I am alarmed that, according to the Bill, these orders can be issued only where such a provision is already in place. What happens when they are not available locally? Youth offending teams are under huge pressure today. We should not lay upon them such a burden of caring for juvenile offenders in society if we are not prepared to support them adequately.

It is of the utmost importance that when youth rehabilitation orders are issued they are properly tailored to the capacity of the young person. If they contain unrealistic expectations then, as has already been said, these young people are being set up to fail. There needs to be a proper assessment of the maturity of the young offender, their emotional age and circumstances, so that they stand a chance of succeeding. The young person and society are the losers if they fail and the young offender ends up with a custodial sentence which could have been avoided by proper assessment.

The purpose of the orders must be the rehabilitation of the young offender and the welfare of the young person. All this takes time and, inevitably, money and resources. I know that the Government hear the cry that they should spend more money from all quarters all the time. This must be uncomfortable when, at the same time, they are asking for cuts across the whole Prison Service. My concern is that some of the cuts being proposed will prove to be false economies. For example, the core day, soon to be implemented in all prisons in England and Wales, will have a direct impact on the work done by chaplains of all the faith communities who engage volunteers to come into prison in the

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evening and at the weekends. The Government rightly welcome the faith alliance as a key partner in rehabilitating prisoners back into society, but then pulls the rug from beneath its feet by making prisoners unavailable at a time when the volunteers can come.

The Bill brings into sharp focus the purpose of prison. Is it a means of social control of a criminal underclass, or is it to be a place of redemption, restoration and rehabilitation? Plans for super prisons that incarcerate large numbers, with less staff per prisoner, less contact with families and less opportunity for social contact, feed the notion that prison is simply there to control the criminal underclass. Plans that offer courses for education, training and restorative justice emphasise rehabilitation. They ensure that prisons are not just warehouses for criminals, but greenhouses where the prisoner can breathe and grow and live and prepare for planting back into the wider community.

We on these Benches would like to see a nationally costed commitment to programmes of restorative justice and to programmes of education and training, such as drug awareness, healthy relationships and anger management. Only with these in place, costed and budgeted nationally, do we have any chance of the offender management scheme working in the way that we all hope that it will. We look forward to scrutinising the Bill in its passage through the House and to amending it appropriately.

5.04 pm

Lord Neill of Bladen: My Lords, there have already been some major contributions to our debate. We have had the speech of the noble Baroness, Lady Howe of Idlicote, the memorable speech of the noble Baroness, Lady Kennedy of The Shaws, stressing the importance of the rule of law in our lives, and the profound but entertaining contribution of the noble and learned Lord, Lord Mayhew of Twysden, with the ironmonger’s shop. He need not despair; they have not all vanished. I can take him to one in Dorchester which fully satisfies his rigorous requirements.

It is almost hopeless to engage in a Second Reading debate on the Bill. There is far too much in it. In my view, a lot of it was ill considered at the drafting stage and so much of it has not been considered by the first House. I shall take two examples. I hope to show that the first, the defence of self-defence, needs a good deal of further thought. The other relates to Clause 42, which deals with the right of appeal and how the Court of Appeal will be required to conduct its case load in future if the Bill is enacted in its current form.

On self-defence, the Explanatory Notes state:

So we have something that is glossing the existing law—in an unspecified way, from what I have read so far—and is explanatory and is intended to improve understanding, so it has a sort of teaching role, but the law is not changed.

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With that introduction, the clause itself then sets out various provisions. Clause 128(7) says:

one of which is self-defence. It is a very odd to find within a clause a provision saying that the clause’s function is to clarify the common law defence, which we are told in the Explanatory Notes has not in any way been changed. However, if the noble Lord, Lord Thomas of Gresford, is correct, the law is changed. Clause 128(8) says:

that is, the accused—

As I understand it, that changes the law. It is odd that we are not told what the gloss is and that an earlier subsection says the clause is merely clarifying what the existing position is.

Some of the provisions are couched in the most extraordinary language. Clause 128(5), which sets out what the jury will be asked to consider, says that a person,

I am a bit puzzled by that; presumably a “legitimate purpose” is self-defence, so the whole thing is circular—

So the jury will be asked to consider whether the defendant could have weighed “to a nicety” the measure of force to be used. That is pretty incoherent. It has not been thought through properly at all.

That is a minnow, however, compared with the destructive operation of Clause 42, which deals with the function of the Court of Appeal. I remind your Lordships that, for the purposes of Section 1A of the existing 1968 Act, a conviction is not unsafe if the court thinks there is no reasonable doubt about the appellant’s guilt. While listening to the debate, I have jotted down typical examples of where under current practice one might expect that the Court of Appeal would want to upset a conviction. I shall give your Lordships four of them, and see what fate would befall the appellants now. First, the judge in his summing-up failed to put the case of the defendant to the jury. Secondly, he misdirected the jury on the applicable law on a relevant point. Thirdly, he wrongly refused to allow the defence to call three witnesses. Fourthly, it emerged after the trial that the prosecution had in its possession written statements which might have given some support to the defendant’s case.

Let us go back to the first example: failure to put the case of the defendant to the jury. Under the Bill, the Court of Appeal would say, “Well, we have had an excellent exposition of the case of the defendant; we fully understand it. We have had that knowledge. We now ask ourselves whether there is any reasonable doubt about the defendant’s guilt. No, we do not think there’s any doubt about it. It does not make any difference that the case was never put to the jury and

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summed up for them”. Let us go back to the second example: misdirection on some point of law in the case. The Court of Appeal would now say, “That does not matter. We know what the law is. That rule of law affects our thinking that this man was guilty and there is no reasonable doubt about it”. And so one can go on. In the third example, the judge refuses to allow certain witnesses to be called. The Court of Appeal now says, “We have read those witness statements. We do not find them convincing; we do not suppose that a jury would have found them very convincing, so appeal dismissed”. The same would apply with the statements which were not made available. It may be misconduct by the prosecution, which can be criticised, but the court will say, “It is not a ground on which we can allow the appeal, because we read those statements and, once again, we are satisfied that the evidence before the jury, even if the statements had been available, is enough to ensure guilt”.

The clause completely undermines trial by jury. It substitutes trial by the Court of Appeal for trial by jury. That is a grave development, which should not be allowed to happen. I remember the late Lord Devlin giving an address in which he attacked a decision of the House of Lords, sitting judicially, wherein, in his view, it had done precisely what the Bill does: it had substituted its view of the facts of the case and restored a conviction where a lower court had not taken quite a different view but could not interfere with the verdict of the jury.

That is the vice in Clause 42. I shall content myself with those two points.

5.12 pm

Lord Judd: My Lords, there is a good deal to be welcomed in the Bill. However, it is clear that a full and considered response by the Minister to the observations of the Joint Committee on Human Rights is essential.

I was struck by the observations of the right reverend Prelate the Bishop of Liverpool. Rehabilitation must surely remain a central, muscular objective of penal policy. Too often, it becomes a hollow refrain. Of course it may be necessary to register the unacceptability of criminal behaviour by some degree of punishment, and protection of the public is vital, but the worse the crime, the greater the challenge to a self-confident, civilised society tirelessly to strive for rehabilitation. To fail is a failure of civilisation; it is to fail the individual and it is usually an economic nonsense, with all the economic and social costs of reoffending.

Our prisons have far too many people in them who should not be there at all. Too many prisoners are suffering from mental illness, learning difficulties and similar conditions. Prison, far from helping, frequently aggravates their condition. Concerned and highly professional prison staff, of whom there are many, will be the first to speak of this, yet we seem to be locked into an inadequate and self-defeating pattern of expenditure, as the plan for a huge expansion of prisons indicates. If we were to start from scratch, we could almost certainly have a purpose-built and secure rehabilitation-oriented system at no greater cost, thereby achieving substantial success in curbing reoffending with all its gravely adverse consequences.

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I declare an interest as until recently, for nine years, a president of the YMCA, which does significant work with young people in prisons and detention centres. Children in penal custody are among the most disadvantaged among our society. More than 25 per cent have a literacy or numeracy ability of only seven years or younger, while 85 per cent have symptoms of personality disorder. Ten per cent appear to have psychotic illness, while more than 50 per cent have been in care or involved with social services and 41 per cent have been excluded from school. The Youth Justice Board has indicated that up to nine out of 10 children in custody after having committed a serious offence have been previously abused or suffered severe traumatic experiences. But far too often they simply do not get the help that they need while detained. In secure training centres, which hold younger children, self-harm rose by 803 per cent between 2001 and 2004. Too many children still die in custody. So far, despite imaginative and highly effective work by NGOs and others, overall arrangements for rehabilitation have not been a success. Three-quarters of youngsters reoffend within a year of release.

Too often the children involved in crime—even the worst cases—are first and foremost themselves victims, and what they need above all is help, not just punishment. To be candid, too often our society totally fails to grasp this. Children should never be in prison. If, but only if, for the protection of the public it is essential to detain them, such detention should invariably be in secure but also properly resourced, purposely designed and professionally staffed special accommodation. With the vast expenditure envisaged for the new prison-building programme, this is surely the time to start applying a more rational and appropriate approach. Future crime prevention and good economic logic demands this.

The Standing Committee for Youth Justice brings together almost 20 organisations with extensive front-line experience of working with children and young people. It includes the Association of Youth Offending Team Managers, Nacro, the National Children’s Bureau, the NSPCC, the Children’s Society, Voice and others. The committee has assembled a succinct and powerful brief on the Bill, listing its principal remaining concerns. I hope that my noble friend will ensure that he and his colleagues personally read that brief—it is not in any way hostile—and take it fully into account. It would be good if today he would reassure us that they have or will.

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