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Above all else, the public want the offender not to do it again. Polls have repeatedly demonstrated the recognition by the public that prison is not the answer to cutting crime, and that the public are not pressing for the punitive measures the press and many politicians would have us believe. We have consensus but, despite all this, what do we actually do? We send more people to prison than almost every other country in western Europe; the number of people given custody at magistrates’ courts more than doubled between 1993 and 2005 and has risen by one-third in the Crown Courts. Crucially, people are sent to prison for longer. As a result we have such a problem with overcrowding that it is not possible for prisons to do the job we want them to do with the dangerous prisoners they should be dealing with. There have been times when these prisons have operated beyond safety limits. Yet, for example, last year more than 50,000 people were sent to prison for less than a year. They were not dangerous, violent people from whom we needed protection.

It should become clear that it is absolutely vital that enough proper community alternatives are available in order that sentencers have the necessary confidence and can use them. What have we done about the alternatives—the sanctions expressly deemed appropriate for the minority of all we deem offenders? They are largely provided, as we know, by the Probation Service along with the range of other agencies working with offending and vulnerable people of all ages. But what we have actually done is to require agencies such as the Probation Service to cut back on their budgets—in the case of the Probation Service, by somewhere between 3 and 5 per cent year on year over the next three years. Simultaneously, however, the Government have now agreed to spend around £3 billion to solve the prison crisis, and no one has blinked. That is a crazy failure of the right hand not having any connection with what the left is doing. It is even crazier when the Secretary of State himself is on record as having said that we cannot build ourselves out of this crisis.

There is evidence galore of the price that is being paid socially, economically and financially in our country. I am aware that most of what I have said is probably quite familiar to most of us in this Chamber, but it has to change. Even as far as this Bill is concerned, nearly every clause carries with it some financial implications, resources which are necessary to make things a reality without which we remain in a world of unreality. Every new measure involving the courts and community costs something, but I am not aware of plans for the commensurate growth in front-line community resourcing which in any way relates to the investment in prison building.

However, I will say that I welcome the impact statement in the Explanatory Notes on the Bill. The Government have calculated that once the provisions have been fully implemented, I think in a few years’ time, there will be a net reduction of 4,300 prison places, which of course will be a start. The alternative disposals will have to be supplied and paid for. I entreat the Minister to tell us how the mismatch of the allocation of resources between prison building and community-penalty resources can be rebalanced

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in order that the appropriate provision exists and our debates on this Bill can indeed become rooted in reality.

I will confine the remainder of my remarks to one or two of the youth justice aspects of this Bill. I am grateful to the Standing Committee for Youth Justice for its briefing, and the PRT, among others. I have dealt with children in trouble in Scotland as well as England. The difference is that in Scotland no child gets near the criminal justice system because of the children’s hearings. This explicitly recognises the paramount importance of the welfare of the child, as is the requirement of the UN Committee on the Rights of the Child. I understand that the committee is to examine the UK Government again this year. I would like to think that this Bill could offer an opportunity to look again at how we are, in fact, increasingly criminalising young children and using custody more and more. I thank the noble Baroness, Lady Stern, for referring to what is a true blot on the record of this country—that we should be imprisoning so many children in what were called secure training centres and have now become acknowledged and recognised as part of the Prison Service system. We could consider introducing the concept of a custody threshold for children, which she also mentioned.

The Home Office strategy paper underpinning much of this Bill does say that we believe it is important to keep children out of prison if at all possible. This is not to say that children in trouble will not sometimes badly need secure accommodation, but of course as we know prison is not the answer. Prison is least effective and most damaging for children, with their reoffending as high as 80 per cent and over. As the noble Lord, Lord Judd, mentioned, one of the most alarming and distressing statistics is that self-harming by children rose by 803 per cent between 2001 and 2004, and six children have actually died in custody in the past five years. It has been suggested that the threshold for custody could be triggered if the offence causes serious harm or if custody is necessary to protect the public. This would inter alia bring us more in line with similar European countries, including of course Scotland. Will the Government be prepared to comply with the UNCRC on that issue?

The new youth rehabilitation orders are interesting, because they are an attempt to provide a real alternative to custody and, as such, should be welcomed, despite their many shortcomings. They represent an attempt to provide a more flexible and creative package of sentencing which could, if used properly, more nearly fit the individual young person, not least if he or she reoffends. However, 11 community sentences have been replaced by 16 requirements that, among other things, do not include the reparation order, which can be an important element. Why? What is really interesting here is that, in two cases—that of intensive fostering and of the drug treatment requirement—they cannot be imposed unless the Secretary of State has notified that the provision is locally available. Here is one actual reference to the need for provision to be in place. After all, what is the point of including in the Bill provision that is not actually available?

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It is also helpful that the purposes of sentencing are clearly set out in the Bill, but what is not clear or set out is that the welfare and best interests of the child are and must be at the heart of the youth justice system. Article 37 of the UNCRC commits us explicitly to separate the system for dealing with children who have trouble with the law from that for adults. At present, the evidence is that punishment is put before welfare in this country. I sincerely hope that we can address that in Committee, and I hope that the Minister will agree to look at that.

Much needs to be done on the detail, as well as the general thrust of the Bill. I am sure that there will be stimulating and important debates, because there is much work to be done and some important issues to be dealt with. I hope—although not very optimistically so—that we will all be the wiser for it.

6.32 pm

Lord Lloyd of Berwick: My Lords, many Members will have received, as I did, the briefing paper from the Bar Council to which the noble Lord referred earlier, criticising, in particular, Clauses 42 and 105. Clause 42 has already been very well covered, notably by the noble Baroness, Lady Kennedy of The Shaws, and by the noble and learned Lord, Lord Mayhew, but, if I may, I would like to add my penny worth to the argument.

The inclusion of Clause 42 seems to me to show that the Government have no clear idea of the existing powers of the Court of Appeal, or, indeed, what the Court of Appeal is there for. It is simply not the case that appeals are allowed because of minor procedural errors. If there are such errors, the appeal will certainly be dismissed on the grounds that it will not have affected the safety of the conviction. If the errors are more serious, the conviction may well be quashed but, very generally, there will be an order for a new trial—apparently, in one-third of all cases where convictions are quashed. That seems to me to show that the existing system is working well.

There remain those cases, the very few cases—Mullen is always the one given by way of example—where, for whatever reason, the defendant has not had a fair trial. In those cases, the conviction must be quashed, even though there is no possibility of a retrial. Why? Because it is an overriding duty of the Court of Appeal to ensure that defendants have a fair trial, no matter how guilty they may seem to be. That has always been the function of the Court of Appeal, and that is now the court’s duty under Article 6 of the European convention. If the defendant has not had a fair trial in accordance with the rule of law, his conviction must be quashed. It is as simple as that.

It therefore seems to me that proposed new subsection (1A), by requiring the court to dismiss the appeal if it is satisfied of the defendant’s guilt, is clearly in conflict with the court’s duty under Article 6 of the convention. It is true that new subsection (1B) would go some way to cure the defect created by new subsection (1A) in some cases, but it does not go far enough. In any event, what could be the point of enacting new subsection (1A) to cure a defect or fill a gap that does not exist and then create an express

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exception to that provision? That simply does not make sense, and I hope that, in due course, we will see to it that Clause 42 is removed.

As for Clause 105, designated case workers clearly perform a very valuable function, but they are not qualified legally to conduct trials. As the noble Lord, Lord Thomas, suggested, it seems to me that Clause 105 has been included as a cost-cutting exercise. It may not even be effective as that but, whether it is effective or not, it must not be allowed to interfere with justice.

Like the noble and learned Lord, Lord Mayhew, my eye was caught by Part 13, quaintly entitled “Miscellaneous” provisions. One might ask: exactly what was the dividing line between the provisions included in Part 13 and the rest of the Bill? However, the Bill being what it is, it is perhaps better at Second Reading to stand back a little from the detailed provisions and consider in what way the criminal law is now moving.

The first and obvious question is: why are we being asked to consider this massive criminal justice Bill so soon after the Criminal Justice Act 2003? If there had been any serious defects in the criminal law, which I do not believe that there were, surely they ought to have been cured when the present Government came back for the second time with the 2003 Act. So why do we have this massive new Bill? I suspect that one answer is the Government’s perceived need—perceived by the Government, but not by me or, I suspect, by the rest of us—to reassure the public from time to time that they are being tough on crime. Of course, that has the additional advantage of putting the official Opposition in the awkward position of not wanting to oppose unnecessary provisions for fear of appearing soft on crime.

Thus, what goes into a criminal Justice Bill nowadays seems to be at least in part driven by what will play well with the public. There is thus little time left for the serious consideration of basic defects in the structure of our criminal law—a good example of which is the law of murder, on which we touched the other day during Questions. Everybody knows that the law of murder is in a mess, and has known long before the Law Commission said so in clear terms in its report in 2006. Everybody knows that one of the difficulties in making sense of the criminal law is the mandatory sentence of life imprisonment. It causes great injustice in individual cases. The Law Commission sought to solve that problem by dividing the law of murder into two degrees, only one of which would carry the mandatory life sentence.

That is the sort of question that we ought to be considering today. But what do the Government do? They shelve the problem. Yet again, they have decided to consult on one aspect only of the Law Commission report: on the so-called partial defences. The Law Commission reported on that subject as long ago as 2004 and still nothing has happened. And why not? Because neither of the main political parties will dare to tackle this obvious problem without the co-operation of the other, for fear of what the Daily Mail might say. I am sorry to put it in those rather blunt terms, but that is the truth as I see it.

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The second purpose of bringing forward this massive Bill so soon is to correct the mistakes, which have now become apparent, made in 2003. That brings me to Part 2 of the Bill. Everyone accepts that Parliament has a proper role in fixing general levels of sentences. However, if it does, Parliament must take account of the consequences. A good example—I am glad that the noble Lord, Lord Dholakia, dealt with this point—is the new indefinite sentence for the protection of the public; the flagship of the 2003 Act.

Judges already had ample powers to impose discretionary life sentences for the public’s protection and they used those powers. However, the Government thought that more powers were necessary. The effect is that we now have 3,100 defendants serving indefinite sentences, nearly half of them for relatively minor offences, such as street robberies. The average tariff for all of them would have been 30 months. That is a slightly different statistic from the one given by the noble Lord, Lord Dholakia, but it is another one that shows what has happened.

Surely the Government should have realised that this would happen. Surely they must have realised what would be the effect on prison populations. However, they did not. As a result, as the Lord Chief Justice said in a lecture the other day, after court prisoners are being driven around for hours on end in a desperate search for a prison that can squeeze them in. As often as not, 200 or 300 are spending the night in police or court cells. We simply cannot go on like this.

It is particularly unfair on people serving these indefinite sentences because they cannot go before the Parole Board to prove that they are not dangerous until after they have served on a training course; but they cannot get on to a training course. That is a great injustice. I am glad that not before time the Government have decided, at least in part, to backtrack on the effect of indefinite sentences.

At the other end of the Bill, I am equally concerned, as I am sure the noble Lord will realise, about violent offender orders. I shall oppose them in exactly the same way, and for exactly the same reasons, as I opposed serious offender orders. Ever since we hit on ASBOs, it seems that the law has been going down the long road in trying to make civil preventive orders do the work of the criminal courts. Once again, I will have some things to say about that when the time comes.

6.43 pm

Lord Avebury: My Lords, I welcome the Government’s commitment to abolishing the offence of blasphemy, something I sought to do myself in 1995, again in 2001 and in a year’s work on the Select Committee on Religious Offences in 2002. My only regret is that the consultation will not be completed until after the Committee stage. I have difficulty in understanding that, considering that all the organisations to be consulted gave voluminous evidence to the Select Committee in 2002. I should like to bet the right reverend Prelate the Bishop of Liverpool that none of them will have changed its tune in the intervening six years.

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I wish to speak about Clauses 181 to 187, dealing with special immigration status. On 7 February 2000, an Afghan plane carrying 186 passengers landed at Stansted, having been hijacked by a few of the passengers. Three days later, the hostages were all released and the hijackers agreed to surrender unconditionally to the Essex Police. The Home Secretary, then Mr Jack Straw, said that he personally would decide any applications for asylum by persons on board the aircraft and was determined to see that, if legally possible, the passengers would all be removed from the UK as soon as possible. I stood surety for 13 of them in their application for bail, in the sum of £3,900, for well over a year, until the noble Lord, Lord Rooker, gave instructions for that guarantee to be withdrawn. I therefore declare an interest.

In due course, 10 hijackers were charged with a number of offences and an 11th man was found unfit to plead. At the first trial, the jury failed to agree and, in the second, one person was acquitted and the remaining nine were convicted on all counts, but given comparatively light sentences on account of the mitigating circumstances. It was acknowledged by the prosecution that they belonged to a political organisation whose members had been arrested and tortured, and they were threatened with the same fate.

In June 2003, the Court of Appeal set aside the convictions because the trial judge had misdirected the jury in relation to the defence of duress. No retrial was ordered as most respondents had, by that time, served their sentence in full. The panel of three adjudicators who considered the nine men’s applications for asylum concluded that Article 1F of the refugee convention, which applies to a person who,

excluded them from the protection of the refugee convention. We welcome the recommendation of the JCHR that the statutory construction of Article 1F should be repealed. However, the panel went on to say that the rights protected by Article 3 of the ECHR were unqualified or absolute and not restricted by the appellant’s conduct. It therefore granted the appeals under the ECHR and the tribunal refused an application by the Secretary of State for leave to appeal. This left the Home Secretary with only one option, to grant short-term discretionary leave to enter. However, the Home Secretary prevaricated for over a year—those are the Court of Appeal’s words, not mine—and promulgated a new policy under which discretionary leave would no longer be granted and a person could be kept on temporary admission indefinitely, with all the consequences that would follow in terms of denial of access to employment and public services, including health and social security. On 3 November 2005, the Home Secretary, then Mr John Reid, “broke his long silence”, retrospectively applying the new policy to the Afghan nine and putting them on temporary admission.

The nine then applied for judicial review of this decision. Sullivan J found on 12 May 2006, in an “impeccable judgment”, that it was unlawful because the status of temporary admission or temporary release had no parliamentary sanction. He said that the new policy gave Ministers an arbitrary, unfettered power to breach Article 8(1) of the ECHR, the right to

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family life, and that it was not lawfully applicable in cases where consideration of leave to enter had been concluded and which therefore did not come within the provisions of paragraph 16 of Schedule 2 to the 1971 Act. The Secretary of State did not challenge the finding that delay in granting the nine leave to enter was unlawful or the quashing of his decision to hold them on temporary admission. However, he did challenge the court’s order that he should grant the nine discretionary leave to remain. Finally, on 4 August 2006, the Court of Appeal rejected that submission, observing that during the six years that the Afghans had been in the UK, there had been ample time for the Secretary of State to clothe himself with the powers that he had awarded himself, without parliamentary approval, in the August 2005 instruction.

What we now have before us , in Clauses 181 to 187, is the creation of special immigration status to cover persons such as the Afghans hijackers, who are excluded from Article 1F protection but who cannot be removed because it would put them at risk under Article 3 of the ECHR. In order to strengthen the BIA’s ability at some future date to send back the tiny numbers involved to where they came from—we understand that there are no more than 50 of them now—the Government intend to consign them to a limbo, as my honourable friend David Heath put it, where they will have no access to employment or to public services other than very limited subsistence and accommodation along the lines that NASS provides at the moment for asylum seekers, although the details remain to be spelt out. They will not be entitled to local authority housing, social security or NHS services except in emergencies, and I believe that their children will be denied education in the state system. Perhaps the Minister will confirm that. Moreover, these conditions will continue indefinitely. The Afghans are a good example because they have lived under them for the past eight years.

Will the Minister confirm that it is the Government’s intention to apply the new status to these nine people, and how do they justify that breach of the principle that legislation should not be retrospective? In Committee we will examine in more detail the circumstances of the dependants, to whom Article 1F does not apply, even under the Government’s notoriously broad interpretation, and we will want to know why the BIA has failed to respond to some of their independent asylum applications made over the past eight years.

Under existing law, people who are not removable for human rights reasons are given discretionary leave to remain for six months at a time, and on each occasion this is renewed, the BIA has the power to review the circumstances and consider whether it might then be safe to remove them. After 10 years applicants may seek indefinite leave to remain, although there is no obligation to grant it. As we see it, the Law Society is right in saying that the new status is unnecessary, and we shall also argue that it is inconsistent with the Government’s declared objective of simplifying immigration law, a project that we wholeheartedly endorse.

The UNHCR has reiterated its advice that Clause 182, setting out the definition of a “foreign criminal” by reference to Section 72(2) of the Nationality, Immigration

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and Asylum Act 2002 and the 2004 specification of particularly serious crimes order, inappropriately excludes persons convicted of a wide range of offences by virtue of Article 1F of the convention, creating what it called,

We tried to argue the case on the NIA Bill at the time. But now we have a different threat. Everybody who is a foreign criminal convicted of a specified offence, whether it is hijacking or shoplifting, and everyone to whom Article 1F applies whether or not he has been convicted of any offence, can be designated by the Secretary of State, giving him what the Law Society rightly describes as “enormous discretion”. In the words of Justice,

Similar criticisms have been made by the Refugee Council, Liberty, the JCWI, ILPA and others.

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