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Risk management practices have been high on the agenda over a number of years, and that needs to continue. We have a rolling programme of capability reviews, and we are engaged in one in St Helena, which was mentioned by the noble Lord, Lord Jones. Great emphasis on the identification and appropriate management of risks and sharing best practice is widely encouraged.
On financial services, we have already provided assistance to the Government of the Turks and Caicos Islands to draft new legislation on proceeds of crime, banking and insurance. We plan to do the same for Anguilla and Montserrat. In addition, we have funded financial intelligence unit workshops for all of the Caribbean OTs and Bermuda and have provided support for establishing a financial investigators’ qualification at University College in the Cayman Islands. With the support of our Whitehall partners, I can report that we are taking forward the NAO’s recommendation that we should develop a financial services strategy.
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Where applicable, territories have also been informed of the report’s recommendation to move to full cost recovery for the provision of aviation safety regulation services. The Government will continue to work closely with the overseas territories to promote local ownership and participation in internal security issues. Work to encourage an integrated criminal justice strategy for them has been under way for a while. Territory officials work closely with our own law enforcement adviser and prison reform co-ordinator, whom we have now co-located in Miami to instil greater impetus to this agenda. They will meet with all key law enforcement agency personnel from the territories at a conference in April to discuss how best to take forward the recommendations. We are also grateful to the Ministry of Justice for its support, in particular that of my noble and learned friend Lady Scotland, who will host a conference of Attorney-Generals in the Turks and Caicos Islands next month. Where appropriate, we need to encourage territory Governments to commit adequate resources to all areas of the criminal justice system
I have a couple of minutes left, so I shall do my best to answer some of the points that were raised. We will pass on to the DCMS the issues raised by the noble Baroness, and it will then contact her. The issues on governance and developing overseas territories administrations were raised by a number of noble Lords. We fully recognise the importance of developing that experience base. All governor positions are now advertised across Whitehall. Two of the three governors appointed in the past 12 months have previous overseas territories experience. All staff deploying to governors’ offices now spend time with the Overseas Territories Directorate for full briefing and attend relevant courses, including specialist disaster management training.
I appreciate the strength of feeling expressed on the issue of access to the House, but in the end it is a matter for the House authorities. OT representatives do not have diplomatic immunity and therefore do not have that access. With regard to the Remembrance Day ceremony, the position is as outlined by my noble friend Lord Hoyle: the Foreign Secretary acts in the capacity of laying the wreath on the Cenotaph, and I do not think that there are any plans to change that. However, because feelings are running high on the matter, I shall take it back to the department.
My time is up. I thank all noble Lords for the experience and knowledge that they have shown in this debate, and I thank in particular the noble Baroness, Lady Hooper, for bringing this matter to the attention of the House.
Criminal Justice and Immigration Bill
[Amendments Nos. 145 and 146 not moved.]
[Amendment No. 147 had been withdrawn from the Marshalled List.]
[Amendments Nos. 148 and 148A not moved.]
Schedules 28 and 29 agreed to.
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8.15 pm
Clause 148 [Violent offender orders]:
Lord Thomas of Gresford moved Amendment No. 149:
The noble Lord said: Earlier my head was full of blasphemy law and the other matters we have been discussing today, but at around a quarter to one I received a letter from the noble Lord which indicated that very considerable changes are being made to this part of the Bill, covering violent offender orders. As was pointed out earlier, the Bill started its progress last July and has been with us in this House for a number of months, but only now have we received these concessions which have the effect of agreeing to some of the amendments we have proposed, but disagreeing with others. Noble Lords should note that I shall speak to Amendment No. 149A, also tabled in the name of my noble friend Lord Wallace, as well as the other amendments in this group.
Not only has Amendment No. 149A been agreed to, it has been improved upon because the Government are prepared to limit the extent of a violent offender order to five years. The same can be said for the provisions in Clause 149 and therefore to other amendments addressing the clauses in this part of the Bill, but we shall come on to debate those later. However, some of our amendments have not been agreed, and I shall address my remarks to them.
“A violent offender order is an order made in respect of a qualifying offender which ... contains such prohibitions, restrictions or conditions as the court making the order considers necessary for the purpose of protecting the public from the risk of serious violent harm”.
Amendment No. 149 addresses the wording on the basis that a violent offender order should not be made generally to the public, but to a person or in respect of,
Our position is that making an order which simply protects the public from the risk of serious violent harm is far too wide. Similarly, Amendment No. 150 addresses subsection (2), which states:
“For the purposes of this Part any reference to protecting the public from the risk of serious violent harm caused by a person is a reference to protecting ... the public in the United Kingdom”.
Nothing could go wider than that.
One has to go back to where these clauses came from. A violent offender order is essentially a civil order that derives from the civil procedure which enabled a court order to be made in respect of very specific harm against a particular person. We have been through various manifestations of this type of order. They started off as anti-social behaviour orders, subsequently developed into control orders and on to serious crime orders. Now we come to an order which is made in the widest possible terms, one that seeks to protect,
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where “the public” means the whole of the United Kingdom. Amendment No. 150 would limit that in the way I have indicated. Amendments Nos. 151 and 152 are consequential to the attempt that we are engaged in here to limit the orders in this way. I beg to move.
The Earl of Onslow: When we were talking earlier about blasphemy, the noble Baroness, Lady Andrews, prayed in aid the wisdom of the Joint Select Committee on Human Rights. That wisdom is represented in the Chamber today by myself and the noble Baroness, Lady Stern. I sincerely hope that the noble Lord, Lord West, will also take note of the wisdom of the Joint Select Committee on Human Rights on these particular matters, over which we had very considerable doubts.
We doubted whether the power to make violent offender orders is defined with sufficient precision to satisfy the law; we doubted whether violent offender orders met the fairness requirements of Article 6 of the European Convention on Human Rights; and we doubted whether the Bill contained sufficient safeguards to ensure that an individual is not retrospectively punished for an offence committed before the Act came into force.
We are unhappy that the violent offender orders lack legal certainty. We notice that Clause 148 provides the court with an entirely open-ended discretion as to the type of prohibitions, restrictions or conditions that it may attach to an order. In our opinion, violent offender orders should provide the requisite degree of legal certainty. The Bill should be amended to provide, at the very least, an indicative list of the types of prohibitions, conditions or restrictions which may be imposed, although we consider that it would be more appropriate and offer greater protection of individual rights if an exhaustive list was provided.
We also think that before a violent offender order is imposed—which is, in effect, a criminal sanction—the standards of criminal proof should be applied. Otherwise they provide an ability to double punish someone on suspicion of the way in which they might behave and because someone thinks they might do something wrong. I thought that we had habeas corpus and common law to protect us and that we were supposed not to be convicted except by due process of law. Thinking that someone may or may not be guilty of an offence or is likely to commit another offence of a type for which he has already been punished is not in the best traditions—or any of the traditions—of English law.
I hope that we can make the Government think much more than they have about the letter which I received at about 2.30 pm today, although admittedly it was dated 3 March. The Government have come up with a paltry set of amendments which do not address the problems on which some of us have spent a little time in trying to grasp their complexity. This is yet another example of the Government’s cack-handed and high-handed intention to undermine the rule of law and the liberty of the subject. I sincerely hope we make major inroads into this whole process. I would like to see it abolished altogether.
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I apologise to the Lord Speaker for entering in an absent-minded way and walking about the Chamber while she was addressing your Lordships. I apologise to her.
Lord Kingsland: My Lords, I and several other noble Lords have notified our intention to oppose the Question that Clause 148 should stand part of the Bill. However, as the noble Lord, Lord Thomas of Gresford, has introduced his amendments with some general reflections on violent offender orders, this seems an appropriate moment for me to make my contribution. That will save the Committee from the awful threat of having two debates on the same issue.
I, too, have been in receipt of a letter from the noble Lord, Lord West of Spithead, in which he has set out seven separate points that he intends to convert into amendments to the Bill at the Report stage. When the noble Lord replies, I will be most interested to know to what extent the list is now set in stone and to what extent it is representative of continuous thinking by the Home Office about the issues that are addressed. I hope it is the latter. Although it goes some way towards meeting some of our criticisms, it in no way meets all of them.
It is probably worth putting these orders in the context of what the law is at the moment. As I understand it, the law is divided between those who are convicted of violent offences with a maximum penalty of less than 10 years and those who are convicted of a serious specified offence with a maximum penalty of 10 years or more. In the case of those convicted of violent offences with a maximum penalty of less than 10 years, they must be given an extended sentence which comprises the appropriate custodial sentence for their offence and an extended period. They will be eligible to apply to the parole board for release at the half-way point of a custodial term and, if refused, released automatically at the end of the custodial period. Once released, offenders are subject to licence supervision for an extended period of up to eight years for sexual offences and five years for violent offences.
Those convicted of a serious specified offence with a maximum penalty of 10 years or more must be given an indefinite sentence of imprisonment for public protection. They will be given a minimum term during which they will not be able to apply for release. After that point they will not be released until the parole board considers that it is safe to do so. Its overriding concern when making the release decision is, of course, public protection. Once released, they will be on licence for a minimum of 10 years. After that point, they may apply again to the parole board for the termination of their licence. This sentence is similar to life imprisonment, although it differs in that the offender will not necessarily be on licence for life.
So where does the violent offender order fit in? I would say in very rare cases. There seem to be three sets of circumstances in which a violent offender order might be relevant: where someone is identified by the process of analysing risk as capable of a violent offence but who has not received a public protection sentence; or someone who was not regarded as sufficiently
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As the noble Lord, Lord Thomas of Gresford, has said, these orders are classifiable as preventive civil measures; they are there to protect the public from the risk of future serious crime. They are civil orders, but their breach would be a criminal offence. As the noble Lord, Lord Thomas of Gresford, rightly says, they are in the tradition of ASBOs, non-molestation orders, control orders and serious crime prevention orders.
8.30 pm
The biggest single problem with the orders is that they are simply, under the terms of Clause 148, not properly targeted. They are not targeted at a particular category of person, as the noble Lord, Lord Thomas, has said, nor is there any indication in the Bill of the types of prohibitions, restrictions or conditions that would apply to someone under an order. That is in stark contrast to the control order system, for example, where the kinds of restrictions that are capable of being placed on an individual are set out in considerable detail in the Bill.
I note with interest that point seven in the Minister’s letter says:
“We will set out on the face of the Bill an indicative list of conditions which could be imposed as part of an Order or an interim Order”.
I take that to mean that it is the Government’s intention to bring forward an amendment on Report that seeks to meet at least some of the criticisms I have just made. That is crucial to us. I would find it difficult to see how the Opposition could contemplate supporting measures of this sort unless it was clear in the Bill what types of restraint a particular individual would face.
There is a second issue: the question of criminal due process. I believe that the Government set great store by a case called McCann concerning ASBOs, in which the Appellate Committee of your Lordships’ House decided that ASBOs did not attract the full protection of Article 6 of the European Convention on Human Rights, in the sense that they did not give rise to the protections normally afforded to a defendant in a criminal court. However, they concluded that the normal civil protections are available.
I suggest to the Minister that it would be hazardous for the Government to place too much weight on that case with regard to violent offender orders. In my view, these orders raise very different considerations from ASBOs. In particular, to obtain a violent offender order there already has to have been criminal conduct. That is not the case for ASBOs. Accordingly, there must be a good chance that violent offender orders will attract all the fair-trial guarantees. I would like to see that reflected in the Bill. In any event, whether violent offender orders attract the civil protections or the criminal protections, the Appellate Committee concluded that the appropriate test, the burden of proof, should be “beyond reasonable doubt”. Again,
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The way in which the hearings on violent offender orders are conducted also gives rise—on my part, at any rate—to some concern. I understand that the proceedings will be on the basis of what I still call affidavit evidence, although I think it has a more modern description now. Where you are restricting the freedom of the individual, evidence should be capable of being tested by cross-examination. I urge the Minister to think hard about that when he brings forward his amendments on Report. It may not be appropriate to put that in an amendment, but I would welcome an undertaking from him that the rules of procedure in the courts will be adapted to ensure that that happens.
One of the things we have learnt from ASBOs—and of course a high percentage of them are breached—is that the broader the order, the more likely the breach. I therefore urge the Minister, if we end up with these orders in the Bill when it finally becomes law, to cast the legislation in such a way that the orders are well targeted, not only because I think that is right in terms of the liberty of the individual but because they will be much more successful in achieving their objective.
Lord West of Spithead: I was speaking to the first three amendments; the noble Lord, Lord Kingsland, has gone rather wider than that. Indeed, one wonders whether we should have gone on to Clause 168 stand part. I show my lack of knowledge of procedure. Should I answer on those amendments first, or go more broadly?
Lord Kingsland: I apologise for embarrassing the Minister. I was trying to save the Committee time, because I am essentially covering the same themes as the noble Lord, Lord Thomas. The Minister should proceed in the way that is most comfortable for him. He can move from the particular to the general or vice versa; we will be equally delighted.
Lord West of Spithead: I thank the noble Lord for his International Code Flag “Uniform”, which means “You are running into danger”. I might start with the general, which I hope will facilitate the discussion, and then go into the particular.
Serious violence is one of the greatest challenges that we face in contemporary society; it blights lives like no other crime. I know that we are all aware of that. It causes terrible suffering not just to victims but to their families and contributes to higher levels of fear within the community. The Government, working with the police and others, have brought about significant reductions in violent crime during the past 10 years. I know that people dispute figures, but I asked for some examples. In 1997, there were 2,184,000 incidents of violence with injury, which is a pretty horrifying total. Last year, there were 1,207,000, which is still an awfully high number, but a huge reduction. Similarly, I can quote other figures. Woundings are down from 804,000 to 578,000. Those are big reductions, but we are not complacent and we know that there is much to do.
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There is no doubt that public perceptions are very different from that, and just because they are perceptions does not mean that they are not important. Such perceptions, partly fuelled by media reporting, have an impact on the quality of life of law-abiding citizens. There is no doubt that they inspire fear. In areas where I have lived in London I have seen that that fear exists. The fear is very real and needs to be addressed.
It is precisely for that reason that on 18 February we published an action plan setting out how we intended to achieve further reductions in serious violence in the future. Our vision is simple. We feel that we have to save lives, and we think that this plan will save lives, reduce harm and protect the public. One can have long discussions and arguments about how people have got into a position where they are committing these criminal acts. We show great sympathy for them and look after them as we should, because they may have suffered in how they have been brought up; but these are often issues within their family life and are not necessarily a matter for government, whereas protecting law-abiding citizens is. Violent offender orders are a key commitment within this plan, and I shall set out why.
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