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The wash-up should never be taken for granted, as happily it has not been in relation to the constitutional reform Bill. I submit that we should reject it altogether in relation to the provisions on gang-related violence as they in effect-if not in name-are creating new criminal offences consisting of the breach of an injunction imposed by a civil court. That is especially worrying when the effect of these clauses will be to expose 14 year-olds to the possibility of serving up to three months' detention in a young offender institution. These are both matters on which Cross-Benchers might have been expected to have strong views, and possibly even to have something helpful to offer, but they have not been able to do so because they are not consulted. They play no part in the wash-up. If this Bill is enacted, it will be said that it has been,

But the Cross-Benchers have not been consulted on these provisions. I suggest to the noble Lord that it is quite wrong at this stage that they should be included in the Bill.

The noble Baroness the Leader of the House said earlier that the wash-up does not necessarily involve the whole and every part of every Bill and that it is possible for it to leave parts of a Bill out. I suggest that it would be altogether suitable for Clauses 34 to 39 to be left out and that they should be brought back before us in the new Parliament.

Baroness Neville-Jones: My Lords, I am sure that I have the agreement of the House when I say that all of us wish to see a reduction in gang violence and gang-related violence, which makes the daily life of so many people such a misery. The police need to be freed up and given powers to deal immediately and effectively with gang incidents, which increasingly blight our towns and cities. Most of the people who attend this

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House do not have to live in parts of towns where this occurs, but it certainly causes misery for those where it does.

It is a sad fact that a significant number of gang members are under the age of 18. This is a real problem. I certainly have sympathy with those who do not wish to see us go down the road of criminalising children, but some young people do very wicked things.

These clauses give sanctions to civil courts, including youth custody-just mentioned by the noble and learned Lord-which were previously reserved for youth courts. The youth justice system should not be bypassed, but we also take the view that it is increasingly insufficient.

Today we shall not oppose these provisions because the Minister previously gave an assurance that they will be used only as a measure of last resort. We obviously hope that that undertaking will be stuck to, and, rather like the noble and learned Lord who referred to the increasing practice of using the civil courts as a route through which criminal penalties can be imposed, we would, if given the opportunity in government, wish to scrutinise this. We see it becoming a form of hybrid law that is not known to this country and is not desirable. We would wish to do something about that.

I understand that the Government also intend to test the provisions through pilot schemes. This is an important idea. The results need to be reported to Parliament before there is a wider rollout. If these pilots are not successful, it follows that the provisions should not be implemented countrywide. It is on that basis that we are willing to support the measures today.

Lord Dholakia: My Lords, I shall be very brief. Perhaps I may say how much I support the contributions of my noble friend Lady Hamwee and the noble and learned Lord, Lord Lloyd of Berwick.

I find it difficult to understand why the Government are in such a hurry about this matter. This is not the first time that we have discussed it, particularly in relation to extending gang injunctions to under-18s. When that was first discussed under the Policing and Crime Bill last year, we raised objections, but we also said that we should review within three years the operation of gang injunctions for adults. Yet, hardly any time has passed before another provision has come from the Government in relation to those who are 14 or over.

The noble Baroness, Lady Neville-Jones, talked about getting an opportunity at some stage to scrutinise the route through the civil courts. If that is the case, perhaps I may ask her why she does not object to this matter now, for the simple reason that the measure that we agreed relating to adults has not yet had an opportunity to be put into operation. Why should we therefore be in a rush in relation to children and how they may be affected? I ask the Minister: what sort of research have the Government undertaken which brings them to the conclusion that the civil courts are the right way to take this matter forward?

Did the Government take any account of the briefing from the Standing Committee for Youth Justice? It said that it did not believe that the measure would be

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effective at addressing the root causes of problematic behaviour. Many young people involved in gangs often have limited choice as to whether to join them, and their parents are not aware of the implications of their involvement. The standing committee came to the conclusion, therefore, that it opposed the new provision to extend to those aged 14 and over the application of injunctions for gang-related violence.

I wish to put another point of view to which I ask the Minister to give some thought. There is a danger that by using such measures, we tend to criminalise our young people at a very young age. The implication of that criminal process in their adult life is very considerable. Has he ever considered the implications for many in our diverse communities? I share the concern that he expressed when he previously talked about stop and search. Here is another method by which we are criminalising gangs of young people. Perhaps we should be looking at alternative ways of dealing with this matter, as has been explained by the Standing Committee for Youth Justice. It would be very helpful if the Minister cited some evidence of why this provision is required given that the main provision for over-18s has not yet been implemented.

8.45 pm

Lord West of Spithead: My Lords, I have some sympathy with the views of the noble and learned Lord, Lord Lloyd, and indeed some other speakers, about wash-up, but I have no intention of veering off-track into the minefield of trying to change the rules for wash-up. That would be foolhardy of me. We are where we are.

Gang injunctions for 14 to 17 year-olds are needed because, unfortunately, this age group has shown itself to be vulnerable to the temptations of the gang lifestyle and as violent as their older peers-unbelievably violent at times. The Home Office report Monitoring Data from the Tackling Gangs Action Programme, produced in May 2008, found that the average age for the first conviction of young gang members was 14. Briefing from the Metropolitan Police Service received last week shows that of the recorded "gang" flag-marked offences in London, 45 per cent of accused are under 16 years of age and 42 per cent are aged between 17 and 23. There is a clear operational need for these injunctions to apply to 14 to 17 year-olds as a tool to prevent these violent offences and to help the young people out of the gang lifestyle.

Secondly, under-18 gang injunctions are needed because injunctions work. During the debates on the Policing and Crime Act, Jackie Russell from the gang team in Birmingham wrote to the department about the use of Section 222 Local Government Act injunctions against over-18 gang members. In her letter she said:

"Injunctions were able to reduce serious harm offences by 15%, robbery by 12.5% and violent crime by 6%".

We are being asked to create these powers by our operational colleagues-those who know best what is needed to manage these violent individuals. Detective Chief Superintendent Paul Richardson, head of the Matrix Unit in Merseyside, wrote to me on 15 June last year stating that the injunctions in the Policing and Crime Act must be applied to under-18s. His view

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was echoed by Maureen Noble, head of Manchester CDRP, and Councillor Jim Battle from Manchester City Council during their evidence before the Public Bill Committee on this Bill in another place.

We fully understand the need to protect the rights of young people who will be served with these injunctions. That is why we included a range of safeguards from the outset of the Bill, and we have strengthened these in response to debate in the other place. This point was raised by the noble Baroness, Lady Hamwee, the noble Lord, Lord Dholakia, and others. The safeguards include: engagement of the youth offending team, who are experienced in dealing with young people, at the earliest stage and throughout the process; a mechanism for punishing breach, aimed at removing the individual from the gang lifestyle-a point referred to by a couple of speakers-and stating in the Bill that detention can be used only when no other sentence is appropriate and that the judge must give his reasons in open court for imposing detention.

We also propose, as the noble Baroness, Lady Neville-Jones, has said, to pilot these injunctions in a single area to assess how they work and the impact that they have before taking a decision on national rollout. That is extremely important and will give us some data from which to work.

We are providing a new tool to police forces and local authorities to manage the violent young gang members whom they identify as a huge problem and whom they are struggling to manage. The recent tragic case in Victoria train station shows how relevant such a power is. I urge noble Lords to agree that Clauses 34 to 39 should stand part of the Bill.

Baroness Hamwee: My Lords, much as I would like to debate the aspects of wash-up, perhaps that is not for now: it is almost 8.50 pm and there is a lot more to get through today. I say to the noble and learned Lord, Lord Lloyd, who said that his colleagues were not consulted, that neither were mine.

I am glad that the noble Baroness, Lady Neville-Jones, is concerned about the development of what she called hybrid provisions-the merging of civil and criminal law. They are an extremely serious development, which goes far beyond this issue.

In view of the time, I will simply pick up on the words of the Minister when he talked about helping young people out of their lifestyle. It is the view of these Benches that criminalising children does not help them out of their lifestyle. The Standing Committee for Youth Justice, to which my noble friend referred, has no doubt told many of your Lordships about its concern that the Bill threatens children's safety, compromises their welfare and risks inappropriately criminalising them. The committee therefore opposes the Bill in so far as it affects children and young people in trouble with the law. We share that concern and oppose the clause standing part of the Bill.

8.50 pm

Division on Clause 34

Contents 160; Not-Contents 56.

Clause 34 agreed.



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Division No. 3


CONTENTS

Alli, L.
Andrews, B.
Anelay of St Johns, B.
Archer of Sandwell, L.
Astor of Hever, L.
Attlee, E.
Bach, L.
Bassam of Brighton, L. [Teller]
Bates, L.
Bilston, L.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Bridgeman, V.
Brooke of Alverthorpe, L.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brookman, L.
Brooks of Tremorfa, L.
Byford, B.
Campbell-Savours, L.
Cathcart, E.
Clark of Windermere, L.
Clinton-Davis, L.
Colwyn, L.
Cope of Berkeley, L.
Craigavon, V.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
De Mauley, L.
D'Souza, B.
Dubs, L.
Elder, L.
Elton, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ferrers, E.
Filkin, L.
Finlay of Llandaff, B.
Fookes, B.
Forsyth of Drumlean, L.
Foster of Bishop Auckland, L.
Freud, L.
Gale, B.
Gardner of Parkes, B.
Geddes, L.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goodlad, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greenway, L.
Grenfell, L.
Grocott, L.
Hanham, B.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Henig, B.
Henley, L.
Hilton of Eggardon, B.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howarth of Newport, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Inglewood, L.
Jenkin of Roding, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Lea of Crondall, L.
Luke, L.
MacGregor of Pulham Market, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mallalieu, B.
Mancroft, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Mayhew of Twysden, L.
Montrose, D.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Bolton, B.
Morris of Handsworth, L.
Morrow, L.
Neville-Jones, B.
Noakes, B.
Northbrook, L.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Clackmannan, L.
Onslow, E.
Paisley of St George's, B.
Palmer, L.
Patel of Blackburn, L.
Pendry, L.
Perry of Southwark, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Quin, B.
Rawlings, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Seccombe, B.
Selsdon, L.
Sewel, L.
Sheikh, L.
Slim, V.
Soley, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Taylor of Holbeach, L.
Thornton, B.
Tomlinson, L.


7 Apr 2010 : Column 1563

Trefgarne, L.
Trenchard, V.
Trimble, L.
Tunnicliffe, L.
Verma, B.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Waverley, V.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilcox, B.
Wilkins, B.
Williamson of Horton, L.
Young of Norwood Green, L.

NOT CONTENTS

Addington, L.
Alderdice, L.
Alton of Liverpool, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Chidgey, L.
Clement-Jones, L.
Dholakia, L.
Erroll, E.
Falkland, V.
Garden of Frognal, B.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
James of Blackheath, L.
Jones of Cheltenham, L.
Kennedy of The Shaws, B.
Kirkwood of Kirkhope, L.
Lee of Trafford, L. [Teller]
Listowel, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Miller of Chilthorne Domer, B.
Nicholson of Winterbourne, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Loan, B.
Phillips of Sudbury, L.
Razzall, L.
Rennard, L.
Roberts of Llandudno, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Tyler, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Wilson of Tillyorn, L.
9 pm

Clauses 35 to 44 agreed.

Clause 45 : Offences relating to electronic communications devices in prison

Debate on whether Clause 45 should stand part of the Bill.

Lord Marlesford: I have a small point on Clause 45. I wish to express regret that the Government did not take the opportunity to do something as regards passports, which the noble Lord, Lord West, knows I have an interest in. It would have been a good opportunity for the Government to require that passports of those persons serving custodial sentences be invalidated while they are serving their sentences. I have tabled Parliamentary Questions on the subject for some time.

At the moment, there is a danger that such passports could be misused by others in the criminal fraternity. Under the new electronic passport system, it should be perfectly possible and easy for a passport to be made invalid for the necessary period. Therefore, the requirement should be that the prison authorities report to the passport and immigration agency who they have in prison and, if that person is on the agency database as having a passport, that passport would then be invalidated until the person is released from custody. That is the only point I wish to make under Clause 45.



7 Apr 2010 : Column 1564

Baroness Neville-Jones: My noble friend makes a strong point.

Lord West of Spithead: My Lords, although the noble Lord raises a very interesting issue, I do not believe that the substance of his query has any impact on the merits of the decision before us now. A number of safeguards are in place. Perhaps I could write to the noble Lord and let him know what they are. If he wants to look at a policy review, it would be better for him to write to the Home Secretary and the Secretary of State for Justice, setting out the issues that he has raised. Some protections are in place and it is not quite as easy as it may seem at first glance to use such passports. On that basis, I beg to move that Clause 45 stand part of the Bill.

Clause 45 agreed.

Clauses 46 to 55 agreed.

Clause 56 : Persons subject to control order: powers of search and seizure

Debate on whether Clause 56 should stand part of the Bill.

Lord Lloyd of Berwick: Having had a glance at the hour, I shall be very brief. I say at once that I do not intend to divide the House. The Conservatives have said that, if they win the election, they will carry out a review of control orders as part of a wider review of terrorist legislation. The noble Lord, Lord West, has said that the Government will do the same if they win the election. My simple question is: what conceivable purpose is there in amending the 2005 Act now to add to the sanctions which can be imposed on those subject to control orders?

The police and the security services have said that they need the power to search those subject to control orders when moving them from one area to another-or relocating them, as it is called. Everybody agrees that relocating is a barbarous process anyway-when I say everybody, I have in mind in particular Justice, Liberty, the Joint Committee on Human Rights and the House of Commons Home Affairs Committee. In any event, the police have done without the power to search since July 2009, and the sky has not fallen in. I do not see how anybody can seriously argue that by leaving out Clause 56 we will be putting the public at risk. I hope that we will not hear those words from the noble Lord, Lord West, when he replies. The Government have not made out a case for Clause 56, unless the police are always to have whatever they ask for. The Government have not made out a case for amending the 2005 Act now, just prior to the election.

Baroness Kennedy of The Shaws: My Lords, I support the question that the clause should not stand part of the Bill. I say immediately that I am directly involved in such cases from time to time as counsel. It came as a great shock to me that we introduced the idea of relocation. It is a form of internal exile. The only place where I had ever come across it before was when I went to Chile for the first election after the end of Pinochet and found that many people did not have

7 Apr 2010 : Column 1565

their vote because they had been moved internally and forced to live away from their places of origin. The idea that we are doing that to British citizens in the United Kingdom is absolutely shocking. I agree with the noble and learned Lord, Lord Lloyd: the business of searching has not been necessary in any of the cases in which I have been involved. It really is unnecessary. The requirement being sought by the police derived from one particular case. I urge the Front Bench to reconsider. It seems to me, as the noble and learned Lord said, that it is as if the police have only to ask for something and immediately the Government jump over that hurdle. This is not needed. I say that with some force as someone acting in such cases.

Baroness Hamwee: I add the support of those on these Benches to what the noble and learned Lord said. We have made very clear our opposition to control orders. Like him, we look forward to a very speedy review and radical alteration of the system. We continue to oppose control orders; we would not like to be seen to be saying anything that might be considered to be in support of them tonight.

Lord West of Spithead: My Lords, the recent judgment confirms that, at present, the police have no enforceable power to undertake a search in the circumstance of someone wishing to move to another area from where he has been moved. Where it is not appropriate to refuse the controlled person permission for the journey, the options left are, first, to allow him to be outside his boundary without an escort. We have had the debate about control orders-and, yes, we want to look at them in future-but the whole reason for them is that these people are seen as a great risk. That option is unacceptable. Alternatively, we can allow the journey on an escorted basis, but relying on his co-operation to agree to a search. Of course, he could be carrying a mobile phone or some other method of making contact with someone-a whole raft of means. That is part of the reason for those controls being put on him. Or we could require him to travel in the back of a police van, if he refuses to agree to a search. That is hardly an ideal solution. Alternative police search powers, such as those under PACE or the Terrorism Act, are not generally appropriate in this case.

While we and the police are doing our best to manage these problems on an operational basis, the need for a legislative solution is clear, and the noble Lord, Lord Carlile, endorsed taking early action to add such a power in his fifth report on control orders, which was published on 1 February. With the best will in the world, if one is looking for something to happen, whoever is in government next time round, nothing would be coming in until December or beyond. That is the realistic timescale.

In addition, the powers contained in subsection (2) of this clause provide powers of seizure and retention for use as evidence in a trial or for forensic examination of items that have been removed from a controlled person's premises during a police search when the police subsequently have reasonable grounds to believe it is or contains evidence in relation to an offence. On that basis, Clause 56 should stand part of the Bill.

Clause 56 agreed.


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