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Baroness Stern: My Lords, this is not the Bill that most people concerned with an effective criminal justice system and a safer society would like to see. The noble Lord, Lord Dholakia, has described the situation very well. The Bill that we need would be more realistic and would set narrower boundaries, not broader ones, for what a criminal justice system should do to protect the public and administer justice. It would make well-grounded decisions about what resources to allocate now and in the future, and then plan how to use them most effectively so that the system could cope with its workload. It would devise a framework enabling those who work in the system

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to make more use of their discretion, their sense of responsibility and their skills to deal with defendants and offenders in the best way that they can, to contain and rehabilitate them and reassure the public that the criminal justice system works. If we were moving towards such a system, we would be moving towards a safer and less frightened country. Sadly, we are not.

The way of making policy that the Bill exemplifies, with a bit of this and a bit of that and without proper analysis and assessment of the unintended consequences, has not served us well. Those of us who spent many days debating the Offender Management Bill and questioning the realism of the Government’s claims are not surprised that the NOMIS database, which was meant to be the holy grail in allowing for end-to-end offender management, has been scaled back and will now be used only by prisons. Nor are we surprised that end-to-end offender management has been brought in only for a very small group of offenders. That is a sensible outcome, but the realities should have been understood from the start.

Therefore, my starting point is that if we were making evidenced-based policy and using resources to best effect, we would not be here today debating this Bill. However, we are, so is there anything in it to welcome? I am sure that we all welcome the decision to rectify some of the mistakes and misjudgments of earlier legislation: for example, introducing a minimum tariff of two years for IPPs and extended sentences; giving credit for bail on electronic monitoring; realigning the 1991 and 2003 Acts’ early release provisions; and fixing the period of 28 days for recalled offenders.

I also warmly welcome the Minister’s announcement in his opening remarks that the clauses on the Commissioner for Offender Management and Prisons are being withdrawn. Although it is highly desirable that this office is placed on a statutory footing, the Government’s proposals as they stood were deeply flawed. However, I support the remarks of my noble friend Lady Howe about the Government’s weak-kneed approach to the proposals made by the noble Baroness, Lady Corston.

I want to concentrate specifically today on one aspect of the Bill—that is, the compatibility of these proposals with the Government’s human rights obligations. We are fortunate that, thanks to the dedication and hard work of the staff of the Joint Committee on Human Rights, of which I am a member, a report on these matters was agreed yesterday evening and produced overnight so as to be available for this debate. I hope that the Minister noted at the beginning of that report the appreciation expressed for the full Explanatory Notes on human rights compatibility, which the committee found “unprecedented”. I hope that this comprehensive report will be of use to the many noble Lords who are interested in the Bill, and I am glad that it has already been referred to by the noble Baroness, Lady Miller, my noble friend Lady Howe, and the noble Lords, Lord Henley and Lord Thomas.

Perhaps I may say a word about youth justice. Our youth justice system is a scandal and has been the subject of adverse reports from all the main human rights bodies. It subjects some of the most vulnerable children in our society to punishments that they do

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not understand, because their lives so far have been nothing but punishment, in places that are not in any way appropriate to hold them and meet their needs and where they are subjected to practices such as strip-searching—sometimes forcible strip-searching while they are restrained—and pain infliction. Those practices are clearly inhumane and degrading.

I never thought that I would see the day when the European Committee for the Prevention of Torture, which among other things concerns itself with prison conditions in Russia and what happens in police stations in Turkey, came here and told Her Majesty’s Government that it was not acceptable in children’s prisons to hit children on the nose until they felt pain to make them do what they were told. I assume that that is what happened as, soon after the committee’s visit, the Government announced that this practice was to be discontinued. We must be grateful that the Government abandoned it. In that respect, I should like to mention the Labour Member of Parliament for Northampton North, Sally Keeble, who has campaigned with such determination to get these practices changed. We must also be grateful that the Department for Children, Schools and Families became involved and that two esteemed professionals with childcare backgrounds were brought in by the Government to look at what I would describe as the gross and indefensible use of restraint in children’s prisons. Those of us who have met these two professionals are optimistic about the outcome of their work. In order to take forward this reform agenda, it is essential that we change our approach to the use of custody, and therefore I hope that the Minister will listen carefully to those who urge us to amend the Bill to create a threshold for the incarceration of children.

In response to arguments about reforming the youth justice system, Ministers have tended to say that critics fail to appreciate that some children commit serious crimes. Of course they do; those who urge reform know that children from abused and violent backgrounds may well commit serious crimes. These are the children who need particular skilled, painstaking care and attention if they are to grow into adults able to lead violence-free lives. This is not just a human rights issue; it is a case of recognising the evidence and devising policies accordingly.

I turn specifically to the report of the Joint Committee on Human Rights. The committee welcomed the introduction of the generic community sentence for children under 18 on the basis that,

However, the committee is concerned that custody should be a last resort and that punishments should be proportionate—not only to the offence but to the child’s age and intellectual and emotional maturity. Therefore, it recommends that we remember the requirement of the UN Convention on the Rights of the Child that in all measures taken in regard to children, the best interests of the child should be paramount. The committee therefore finds unacceptable the thrust of Clause 9—that the best interests of the child should be subordinated to the principal aim of the youth justice system. It recommends that the Bill

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be amended to make it explicit that the sentencing court should have regard to the welfare of the child “as a primary consideration”.

The committee noted with surprise that there is no presumption that children are entitled to publicly funded legal representation in criminal proceedings and it recommends an amendment to provide such a right. The Joint Committee was also concerned about the proposal to cap the amount of compensation payable to those who suffer a miscarriage of justice. It did not accept that there should be a cap and envisaged that £500,000 might be very inadequate recompense for someone who had been unjustly imprisoned for a large part of his or her life. The noble Lord, Lord Thomas of Gresford, put that point very well in his opening remarks. The committee recommended that this provision be deleted.

The committee supported wholeheartedly, as will all noble Lords, the need for rehabilitation of the very many vulnerable people involved in prostitution. This would be a human rights-enhancing measure. But we were very concerned that enforcement could result in 72-hour detention and might lead to imprisonment. We hope that the Minister will consider deleting this provision.

The Joint Committee has produced some model amendments on these and other matters that we hope to be able to table in Committee, and we look forward very much to the work that we have to do to make this a better Bill.

5.58 pm

Lord Stoddart of Swindon: My Lords, I am grateful, as the House will be, for the excellent, erudite and expert speeches that we have heard on the Bill so far. I join those who have criticised the size and, indeed, the content of the Bill. Here we have yet another large criminal justice Bill to add yet more criminal offences to the already overburdened statute book at a time when there is an acute shortage of prison places.

In the 10 years since 1997, 3,000 new criminal offences have been added to the statute book. In light of the acute shortage of prison places, I tabled a Written Question to ask Her Majesty’s Government,

I thought that I would get a reasonable response to that, and that the Government would be as worried as I am about all these offences, with perhaps many unintended consequences, which they had not thought of in the beginning. The Answer was:

Has that department seen this Bill? Have the Government considered all the implications of all the new offences that carry a prison sentence? Have they considered whether they are all necessary and, indeed, whether the prison system can cope with them in its present parlous state? We shall have to see what the answers to those questions are.

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Another item has, understandably, not received much attention. As a trade unionist since the age of 16, I was particularly perturbed that a Labour Government, who had opposed a previous Tory Act that limited the right of prison officers to strike, should itself re-import that provision into this Bill. Whatever has happened to collective bargaining, which the Labour Party and the trade union movement have fought for throughout their existence? That provision is a disgrace to the Labour Party, which, after all, was created out of the trade union movement and which, I hope, still believes in free collective bargaining. Public servants should not be in any worse a position than private-sector employees in fighting for their pay and rights. It was particularly insensitive of the Government to introduce this provision just as they were telling the police that they could not have the full award of the police pay committee.

I move on to Clause 126, which deals with hatred on the grounds of sexual orientation. We have already heard all the reasons why that clause should not appear in this Bill from the right reverend Prelate the Bishop of Manchester. I want to approach it from a secular point of view. In 1957 I was a member of the court and council of the University of Reading. The vice-chancellor of the university at that time, whom I liked and knew well, was Sir John Wolfenden. Of course, Sir John produced an excellent report. Unfortunately, it was 10 years before it was implemented. Sir John brought the issue alive and said why homosexuality should be decriminalised for consenting adults over the age of 21. I supported that absolutely. That was a time when, if you supported the Wolfenden report, you were held in great suspicion. Make no mistake about that; it was not very easy.

Things have moved on, and I am very glad that they have done so. Unfortunately, some of the leaders of the gay and lesbian community—Stonewall in particular—are now demanding not equality, which we all agree with, but privilege. That goes too far. We are perfectly in favour of equality in matters of sexual orientation, but I am concerned about the implications of Clause 126 for free speech, particularly as it omits the free speech protection given in respect of racial and religious hatred legislation.

People are already confused about what they can and cannot say; that, in itself, is a restriction on free speech. Indeed, they are at risk of arrest. Frightening cases have already been brought by the police, which should give us pause before passing this clause. Let me remind noble Lords of some of them. In 2005, a Christian couple, Joe and Helen Roberts, were interrogated by the police because they complained about their local council’s gay rights policy. All they did was make a complaint. The Bishop of Chester was investigated by the Cheshire constabulary in November 2003 after he told his local newspaper of research showing that some homosexuals reorientated to heterosexuality. He was perfectly entitled to say that without being interviewed by the police. In December 2005, the police questioned the family values campaigner, Lynette Burrows, after she expressed the view on a radio programme that homosexual men may not be suitable for raising children. She was entitled to express that opinion without the police coming down on her like a ton of bricks.

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Apparently Stonewall has a solution. Ben Summerskill, one of the main proponents of a homosexual incitement offence, believes that such an offence would allow religious beliefs about homosexuality to be stated, provided they were expressed in a temperate way. Who is going to judge what is temperate? We could all produce differing definitions. There are real dangers in this point of view.

In conclusion, Stonewall appears to have undue influence on Government policy. It is certainly due to their pressure that this clause was introduced. Stonewall does not have the unqualified support of the gay community; make no mistake about that. Peter Tatchell and Matthew Parris have both spoken against the clause because they believe that it will not help homosexuals and lesbians. Furthermore, Stonewall appears to believe that somehow gays are less able to stand up for themselves than everybody else. I do not believe that that is true. They are just the same as anybody else and can fight their corner as they wish. By its actions Stonewall is putting them at greater risk of physical attack.

I believe that the clause is unnecessary and should be struck out. If not, at least we should have the paragraph about free speech added to it as it applies to other legislation on race and religion. Without that it will be an extremely dangerous clause.

6.11 pm

Lord Waddington: My Lords, the noble Lord, Lord Thomas of Gresford, referred to this as a rag-bag of a Bill, but I want to pick out just Clause 126, which has been referred to by the noble Lord, Lord Stoddart, and makes it a criminal offence to incite hatred on the grounds of sexual orientation. The clause cries out for amendment to protect the right to free speech, and no doubt such amendments will be debated in Committee. Right now the question is whether there is any need for the clause at all in light of the fact that there are already laws to deal with those who are minded to stir up hatred against gays. The question is whether this is not just another example of the Government’s enthusiasm for creating more and more offences without proper consideration on whether they are really necessary or whether they interfere unnecessarily with personal liberty.

Let me make one thing absolutely plain. There is no place in a civilised society for hatred towards gay people. The existing law, as the right reverend Prelate the Bishop of Manchester reminded the House, already bans threatening, abusive, insulting words or behaviour likely to cause harassment, alarm or distress, with—incidentally—tougher penalties when the conduct is aggravated by hostility towards someone because of his sexual orientation. Far from the existing law being weak, difficult to apply and ineffective, it has been used extensively in recent times, sometimes raising legitimate concerns on whether the police are very expert at analysing people’s utterances to determine whether they have gone beyond comment and criticism and are abusive, threatening or calculated to stir up hatred.

Let us be absolutely clear. The police already have power to arrest someone who they think is whipping up homophobic hatred. Really serious cases, and cases

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when the Public Order Act does not bite because no one present is likely to be caused harassment, alarm or distress, can be dealt with under the Serious Crime Act 2007, which, in toughening up the old law on incitement, makes it criminal to encourage or assist the commission of crime—to use, for instance, words that recklessly encourage criminal violence. Contrary to what the chief executive of Stonewall told the Commons Public Bill Committee, there is no gap in the law to allow rap lyrics which, in the example given by Stonewall, encourage the killing of gay people. That is clearly criminal, but in the vast majority of cases the present Public Order Act is potent enough. It allowed the arrest of the evangelist Stephen Green for handing out leaflets containing the notorious passage from Leviticus. It allowed the prosecution to conviction of a Bournemouth man who displayed a placard saying, “Stop homosexuality, stop lesbianism”.

It is an unfortunate fact that the police have not always used the existing law wisely. As the noble Lord, Lord Stoddart of Swindon, said, the right reverend Prelate the Bishop of Chester was investigated after he referred in an article to the possibility of some homosexuals being reoriented to heterosexuality. Robin Page, the former presenter of “One Man and His Dog”, was arrested for making some frivolous and tasteless but certainly not criminal remarks at a country fair, and a retired couple have recently recovered damages for the harassment and intimidation to which they were subjected after complaining about Fleetwood Council’s gay rights policy. There was then, as your Lordships will remember, the absurd arrest and prosecution to conviction of the Oxford student by police who chose to construe a joke about a horse being gay as criminally homophobic. Then there was the interrogation of Lynette Burrows in the circumstances that the noble Lord, Lord Stoddart, again outlined.

None of this means that there should not be strong laws to protect gay people but it makes one wonder what conduct the Government envisage will be caught by this law that is not already covered by existing legislation. It also shows that the police have not been very adept at applying existing hate-crime laws and makes one doubt the case for their spending even more time in this area. With violent crime rampant, which was made very plain by the noble Lord, Lord Thomas of Gresford, I encourage the police to spend more time on men’s actions and less time on their utterances.

It is no use the Government saying that the new power can be used only when the offending words are specifically intended to pose a threat and are not merely humorous, mocking and abusive. It is no use the Government going on about the need for the Attorney-General’s consent. A police officer, armed with the power to arrest without warrant, will in the first place be the judge of what has crossed the line from the abusive to the threatening. There is nothing in recent history to persuade me that the police will be sensitive to the difference between robust criticism and incitement to hatred, or that they will behave moderately any more than did the police in Bournemouth who persecuted the unfortunate, and now deceased, Mr Hammond.

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Freedom and freedom of speech are very precious commodities. Excuses can always be found for their curtailment and plenty of excuses have been advanced for many curtailments of our rights in recent years. The Government even defended the proposition that it was criminal to read out a list of those killed in Iraq from the steps of the Cenotaph. We should not now be creating more criminal offences without being 100 per cent sure that they are necessary and will not be misused.

I repeat that to oppose this legislation is not to be anti-gay. One of its chief opponents is that doughty campaigner for gay rights, Peter Tatchell. Quite simply to attack this legislation is to be pro free speech.

6.19 pm

Baroness Linklater of Butterstone: My Lords, along with others today, I find something heart-sinking about yet another enormous criminal justice Bill covering a multitude of issues without any discernible theme or thread, as it moves through a range of young offender, sentencing and other criminal justice provisions. Then, having dropped the proposal for a commissioner for offender management and prisons, it moves on to criminal law, policing and immigration before ending up with “Miscellaneous” and then “General”, to mention just some of its 14 parts. Like the noble and learned Lord, Lord Mayhew, I find I am humming along to the same theme; that this is a Bill without a discernible theme. It is indeed a hotchpotch of provisions, some good and some bad. Sentencers will be putting back the towel they had on their heads as they got around the Criminal Justice Act 2003, then the Police and Justice Act 2006 and then the Offender Management Act 2007, to mention just a recent few.

It has also escaped nobody that scandalously scant time was allowed for scrutiny in the other place—scrutiny which now falls to this House to try to rectify. However, I fear that the more we tinker, the more complicated and opaque the result becomes. It seems to me that the heart of the problem is the complete disjunction between the stated aims of our criminal justice system and the way policy and practice is carried out.

There is clear unanimity at every level of government and the judiciary, as well as all the agencies, both voluntary and private, that custody should only ever be used as a last resort and then only for the most dangerous, violent and prolific offenders. This has been repeated by all recent Home Secretaries and Lords Chancellor, as well as loudly and eloquently by the noble and learned Lord the Lord Chief Justice, and echoed by everyone in the field, including those who wrote the Home Office strategy paper which laid the groundwork for much of this Bill.

The solution, we know, has to be found in community-based penalties, which are not only cheaper and work better, but involve a measure of making good by the offender, putting something back into the community against which there has been an offence. They make a constructive connection. Above all, they create the opportunity for offending to be reduced, which is the ultimate goal and overarching justification for all the sentencing options and policies we try to construct.

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