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7 May 2008 : Column 590

"( ) an order under section (Provisions that orders may contain),"

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, I beg to move that the House do not insist on its Amendments Nos. 117 and 127, to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 127A to 127E in lieu.

Noble Lords will recall that on Report the House agreed amendments to provide an exhaustive list of the prohibitions, restrictions or conditions that could be imposed as part of a violent offender order. The other place has agreed to the principle of these changes, to an amendment to improve the drafting and to ensure that the amendments are fully workable. On this basis, I invite noble Lords to agree the Motion standing in the name of my noble friend Lord Hunt of Kings Heath.

Moved, That the House do not insist on its Amendments Nos. 117 and 127, to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 127A to 127E in lieu.—(Lord West of Spithead.)

Lord Henley: My Lords, in the absence of my noble friend Lord Kingsland, we accept the Government’s concession. We are grateful for the letter from Mr David Hanson setting out what the Government are doing.

Lord Thomas of Gresford: My Lords, we are grateful to the Government for rethinking on this point. We have urged that there be proper restrictions on violent offender orders. I just repeat our total opposition to such orders and the process that brings them about. I do not resile from anything that we have said about the making of civil orders and turning them into criminal offences. Apart from that, we are grateful to the Government for moving on this issue.

On Question, Motion agreed to.

Motion H"Police and prison service pay: Secretary of State's power to make regulations(a) specified in section 62 of the Police Act 1996 (c. 16) (functions of the board with respect to regulations) which do not follow the recommendations of the Police Negotiation Board as established by section 16 of that Act, or(b) under section 128 of the Criminal Justice and Public Order Act 1994 (c. 33) (pay and related conditions) which do not follow the recommendations of the Prison Service Pay Review Board as established by that section,

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Lord Hunt of Kings Heath: My Lords, I beg to move that the House do not insist on its Amendment No. 173, to which the Commons have disagreed for their Reason 173A.

The other place disagreed with your Lordships’ Amendment No. 173, because it affects the arrangements relating to making payments out of public funds. On that basis, I trust that your Lordships will not pursue the matter further.

Moved, That the House do not insist on its Amendment No. 173, to which the Commons have disagreed for their Reason 173A.—(Lord Hunt of Kings Heath.)

Baroness Hanham: My Lords, the Minister’s wish is not entirely going to be fulfilled. Lack of time in the House of Commons yesterday meant that no discussion took place on this amendment and that there was only a vote, which the Government, not unexpectedly, won. I say “not unexpectedly”, but I believe that there were people on the Government Benches who understood the positions of both the police and prison officers on this matter, who might have had more courage and given them support.

I make no apology for returning to this issue, although the Government have now made it the subject of the privilege amendment, thus denying us the opportunity of voting on it again this evening. But it is matter of such importance that it will do no harm for me to rehearse our concerns. Pay awards for both services are subject to independent pay review bodies: the Police Negotiating Board and the Prison Service Pay Review Body. These bodies, along with the Armed Forces’ review body, with which we are not allowed to deal under this amendment because it is not appropriate in this Bill, were set up to ensure that these key public sector workers , who do not have the right to strike, were not, as a result, disadvantaged in pay negotiations. They each have a clear remit from the Government as to affordability and their inflation targets, which they must—not unreasonably—take into account. But having done so, they are free to put forward firm recommendations.

Last year, for the first time, the Government went to arbitration on the proposed police settlement of 2.8 per cent, having, as the noble Lord, Lord Dear, told us at the previous stage, already altered in 2006 the basket of occupations, which were the ingredients against which police pay and allowances should be measured on an annual basis. Arbitration produced an agreed, binding settlement of 2.5 per cent, but the Government ended up implementing 1.9 per cent in a staged award. The result of reneging on both a binding agreement and an understanding that the pay review bodies’ recommendations would be implemented was the unedifying sight of the police march, and the Government’s scramble to get this Bill through before tomorrow, to prevent a strike by the Prison Officers’ Association, which, having agreed a voluntary ban on striking, was equally disadvantaged, and is due, following the end of the voluntary ban, to strike later this week—hence the Government’s agitation to get those clauses through.

The amendment does not say that the Government should always implement the pay bodies’ recommendations.

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It says that if they are not going to do so they must seek the view of Parliament before they renege, explain their reasons, and have those reasons supported by affirmation. For Parliament, we must read the House of Commons. If the Government were trying to limit a pay increase and were over-ridden, that might have an effect on their financial targets and is a matter, apparently, for the House of Commons alone.

I am not at all comfortable with that argument or with the privilege amendment moved against the amendment as it seems to me that the Government are under a moral obligation to accept the recommendations and to have made allowances for them. We believe that they should have the courage of their convictions, stand by binding arbitration, implement for these services what is recommended, and, if they will not do so, explain themselves and seek parliamentary support for their denial of this undertaking.

For now there is little more that I can do to move the Government in the direction in which I believe they should go. Other opportunities will have to be found to give these public servants confidence and security in their pay body findings. The voluntary ban on the prison officers’ strike will now end and become mandatory as a result of the Bill. In not reaching a settlement the Government have let them and the police down.

Lord Ramsbotham: My Lords, I am glad that the noble Baroness, Lady Hanham, has spoken as she has. I was interested that she used the word confidence. I would go further and say that a crucial word is needed in the content of the amendment; that is the word trust.

She has mentioned that the Armed Forces, the police, the Prison Service and other public bodies which now have pay review bodies must have trust in those bodies to represent fairly to government the case for whatever rise is recommended. As noble Lords know, there is a certain fragility in the industrial relations scene affecting prison officers. One thing increasing that fragility is that the Prison Officers’ Association has lost trust in both the Government and the Prison Service to deal fairly, as it sees it, with its concerns. One of those concerns is the staging of the pay rise which was recommended last year.

When I was a member of the Armed Forces I remember being equally concerned about proposed staged rises because it involved not just the staging of pay but the staging of pension rises. It meant that those people who retired during the first half of the year did not get the whole of the recommended pension rise included in the recommendation of the body.

I have to say that I am very surprised indeed that the other place did not even discuss this yesterday. They are the custodians of all this negotiation, and they are the people to whom the Prison Officers’ Association and others look to satisfy and look after their own interests. Therefore, I am extremely disappointed at the least to find that this is how this important amendment with its future ramifications for public service is being treated.

Lord Dear: My Lords, I spoke before in your Lordships' House. I speak briefly now. I support entirely what the noble Baroness, Lady Hanham, and

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the noble Lord, Lord Ramsbotham, have said. My remarks may well be remembered by many who were present when I spoke and who are present today. I identify with two points that have been made. One is the huge breach of trust and the damage which the Government have caused, certainly to the police, and to others by inference. The second is a point that I identified previously—the total disparity in the way in which the Government treat those who can and those who cannot strike. The police, who cannot strike, were pegged down to 1.9 per cent, whereas police civilian support staff—police community support officers and others who patrol the streets with the police—were allowed 2.5 per cent, which they had asked for, because they can strike. That disparity, small though the amounts are—I said previously, and repeat, that the amounts are not the issue, the breach of trust is the issue—goes to the very root of the matter that we are looking at today. I sincerely hope that in the not too distant future we shall find a way to repair that breach of trust and put something in place that does not allow this to happen again.

Lord Thomas of Gresford: My Lords, I support everything that the noble Baroness, Lady Hanham, and other noble Lords have said. I cannot understand how the Government can enter into what is supposed to be a binding arbitration and then ignore the result of it. If that does not destroy trust in the system, I do not know what does.

To use the law to deal with industrial relations has always been difficult. Your Lordships will recall that at the beginning of the previous century a Liberal Government freed up the trade union movement and permitted it to strike. I always thought that the Labour Party supported such movements. Here the Government put restrictions on the police and Prison Service. We do not say that those restrictions are necessarily wrong but there is a price to pay for that. We have talked about the military covenant which the Government do not always uphold. There has to be seen to be a covenant with the police and the Prison Service to act honourably and fairly with them. The Government have lost the trust of police and Prison Service officers and I do not think that they will regain it for a very long time.

Lord Hunt of Kings Heath: My Lords, once again I have the great pleasure of welcoming the noble Baroness, Lady Hanham, to our debates on the Criminal Justice and Immigration Bill. Noble Lords hope that there will not be another criminal justice Bill in the next Session. I cannot possibly comment on that, but if there were to be, the noble Baroness’s cameo entrances would be most welcome.

The police, prisoner officers and the Armed Forces—although the latter are not covered by the terms of the Motion—are critically important groups of workers to whom the Government pay tribute for the contribution they make. However, the police and prison officers are not alone in having independent pay machinery which makes recommendations to Ministers. As I explained in previous debates, this machinery was developed over 35 years by this Government and the party opposite

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when it was in government. It has always been clear that pay recommendations cannot be binding on the Government. It has always been the responsibility of the Executive to make decisions on pay. Both Conservative and Labour Governments have overseen such a system.

I do not want to go through the list that I went through as noble Lords do not want me to do so. Nor do they want me to refer to the police arbitration tribunal decision of 1990, certain aspects of which the previous Government did not accept. Previous Governments and this one reserve the right to be flexible when considering the implications of recommendations of these independent pay bodies. That is why we do not think it right that that discretion should be subject to parliamentary approval. Parliament already has overriding oversight of departmental expenditure and we think that is the most appropriate scrutiny.

Of course, I fully accept what the noble Lords, Lord Ramsbotham and Lord Dear, had to say about the importance of trust between government employers and the services. The Government will work very hard to ensure that there is that trust. In relation, for instance, to prison officers—who we have discussed on a number of occasions—our overriding priority has to be the safety of prisoners, which is why we are taking the action that we are taking in relation to industrial action in the Prison Service. Overall, the importance of these staff cannot be underestimated, but there will always have to be discretion in relation to government decisions about the recommendations of those independent bodies. On that basis I hope that the House will accept the Motion.

On Question, Motion agreed to.

Motion J“29JA Protection of freedom of expression (sexual orientation)

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do not insist on its Amendment No. 285, to which the Commons have disagreed for their Reason 285A.

This is our final group. I welcome the opportunity to come back to debate this important question, on which we had an interesting and informed debate rather late at night on the third day of Report. That question has now been debated in the other place, which, having disagreed with your Lordships’ amendment by a large margin, has now sent it back to us for further consideration. It is clearly right that we should take this matter very seriously indeed.

Of course, I have looked carefully at the matter raised by noble Lords in our debates. The question before us is whether we have the balance right between

7 May 2008 : Column 595

the necessity of protecting targeted groups and the necessity of ensuring freedom of speech. The Government do not believe that any behaviour that is threatening and that is intended to stir up hatred needs special protection because of considerations of free speech. Only behaviour that is threatening and that is intended to stir up hatred is covered by the Bill. If such behaviour is neither threatening nor intended to stir up hatred, it is not covered by the Bill. We think that we have the balance right, as does the Joint Committee on Human Rights. We have had many, many happy days debating the Bill and on many occasions noble Lords have quoted the excellent report by the Joint Committee on Human Rights, so it is right that I pray in aid its judgment on this matter. The Equality and Human Rights Commission, too, believes that we have the balance right, as does the other place.

I am sure that we shall hear again the concerns about the risk of heavy-handed police enforcement. A number of cases have been mentioned where it is alleged that overzealous behaviour has occurred. Concern was expressed when we last debated this about what guidance would be available to the police, the Crown Prosecution Service and the public about this offence. I will take this opportunity to clarify those matters.

My understanding is that the Crown Prosecution Service will issue a policy bulletin and legal guidance on the new offence. The CPS legal guidance provides prosecutors with an online source of information on legislation and policy on a range of legal issues. The CPS legal guidance is accessible to the public on the CPS website. There is existing CPS guidance on the offence of incitement to religious hatred, which came into effect on 1 October last year. There is a policy bulletin and updated internal CPS legal guidance.

In addition, CPS prosecution policy on racist and religious crime, first published in July 2003, is being revised and will soon be reissued. It will address the new offence of incitement to religious hatred. The police will also have advice in a revised manual of hate crime. The current manual covers crimes motivated by hate, but it is being revised and will include crimes of incitement to hatred.

In addition, we of course have been listening carefully to the concerns expressed here and in the other place about what I have described as heavy-handedness. The Government, therefore, in seeking to meet those matters, are bringing forward an amendment to place on a statutory footing a duty on the Secretary of State to issue guidance. That will ensure that appropriate guidance about the offence is available for all interested parties. The guidance that my department will issue will reiterate that the only behaviour covered by the offence is behaviour that is threatening and intended to stir up hatred. It will take account of all the points that have been made in debate here and in the other place.

The measure that we are debating does not seek to make the holding of certain views or opinions illegal; it concentrates on behaviour. Threatening behaviour intended to stir up hatred is a real risk to public order and ought to be challenged. Of course, it will ultimately be for the courts to decide whether the offence is proven in a particular case, but, as I said in my

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introductory remarks, behaviour that is not threatening and not intended to stir up hatred is plainly not covered by the offence. The guidance will reiterate all this.

I and the Government have listened carefully to the speeches of the noble Lord, Lord Waddington, and other noble Lords. We think that we can take care of those matters by the way in which the offence has been constructed and the issue of guidance. On that basis, I invite the House to support my Motion.

Moved, That the House do not insist on its Amendment No. 285, to which the Commons have disagreed for their Reason 285A.—(Lord Hunt of Kings Heath.)

Lord Waddington rose to move Motion J1, as an amendment to Motion J, to leave out from “House” to end and insert “do insist on its Amendment No. 285”.

The noble Lord said: My Lords, I feared for a few moments that the noble Lord might spoil the pleasure of this occasion for me by going on at length about the vote in the House of Commons that negatived my amendment. But I have to say that I took time off yesterday afternoon from listening to the discussions on the Lisbon treaty—a course that I heartily recommend to every Member of this House, and I refer not to the Lisbon treaty but to listening to the debate. I went into my office and turned on the television. I could not at that time see a single member of the Labour Party on the Back Benches of the other place. Yet, when the Division Bells rang, 338 of the sheep trooped through the Lobby—300 or more never having listened to a single word of the debate.

At the outset, I should point out that on this side of the House there is a free vote. We are on no three-line Whip. We are going to act according to our consciences. That is the way in which a matter such as this should be treated.

Quite obviously—and this does not need to be dwelt on, because it is so obvious—my amendment would not have the effect of weakening the offence. It is, however, a useful reminder not to infer intent from mere words, but to look for proof—for instance, from the surrounding circumstances. It is said that the amendment is not necessary, but such a plea always sounds pretty feeble. If it does no harm, why all the fuss?

5.30 pm
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