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House of Lords

Tuesday, 7 February 2012.

2.30 pm

Prayers-read by the Lord Bishop of Chichester.



2.35 pm

Asked by Lord Sheldon

Baroness Rawlings: My Lords, DCMS Ministers have carried out a range of activities to oversee and promote a comprehensive and efficient library service. This includes writing to local authorities to set out ideas that they might consider to help continue successful public library services. Arts Council England has announced the libraries development initiative. This will look at new ways to enhance libraries' success and relevance as vibrant local community hubs.

Lord Sheldon: The Minister has given a very useful Answer. Should we not get a comprehensive and efficient library service for the 21st century? Since libraries improve literacy, should library budgets normally not be cut? Should we not limit such closures?

Baroness Rawlings: The noble Lord, Lord Sheldon, is absolutely right. Of course we should have a comprehensive and efficient library service. However, the term "comprehensive and efficient" represents the balance to be struck by each local authority in meeting local needs within the context of available resources in a way that is appropriate to the identified needs of the community it serves. The 1964 Act does not seek to be overly prescriptive but instead anchors the delivery of the local service to the needs of the local community.

Lord Tope: My Lords, I should begin by declaring an interest as the cabinet member responsible for the public library service in the London Borough of Sutton where we are opening libraries, not closing any, but that was not my question. Does the Minister agree that the public library service is and should remain the responsibility of local authorities and that if we believe in local democracy, we must recognise that that includes the right to take decisions that some of us might think are wrong? Would the Minister further agree that the best solution is for local authorities to use their public libraries to further community engagement and accountability, and that libraries can do that very effectively if they are used properly?

Baroness Rawlings: My Lords, my noble friend is absolutely right, and I congratulate him on opening libraries. Various places around the country are opening libraries, despite some closures. My noble friend is right that decisions need to be taken locally. Every

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local authority in England is required to provide a comprehensive and efficient library service, as I said to the noble Lord, Lord Sheldon, and it is for each local authority to determine at the local level how much it spends on libraries and manages and delivers its services.

Lord Peston: Is the Minister aware of how much I approve of her use of the word "community" when we talk about libraries? I use the library in the City of Westminster. When you go to it, you get a marvellous sense of community from all the different people there, but fundamental to providing an efficient library service is people being able to get there. I can get there because I can still drive, but given that Westminster, the nearest library to me, has closed-in many other areas, lots of libraries have closed-when I cannot drive any more I will not be able to use my local library, and I am quite sure that lots of old people at present are unable to use their local library for the same reason. Surely the Government ought to take at least a bit of an interest in this, while leaving the power in the hands of local authorities.

Baroness Rawlings: My Lords, I am sorry that the noble Lord, Lord Peston, is not able to get to his library. He still can? Well, I am very pleased. Travelling to libraries is very important; I could not agree with him more. They should be in places where there is public transport to get there as much as possible.

Lord Laming: My Lords, the Minister has helpfully said how much libraries are changing to meet changing needs and to create new opportunities for reading and learning. Does she agree that the Government could do more to help libraries promote the changes that are taking place to improve access to people who hitherto have seen libraries as slightly alien territory?

Baroness Rawlings: The noble Lord is absolutely right. Promotion is necessary, and that is what our libraries development initiative is doing. On the subject of commercial partnerships, it says:

"This will consider how libraries can respond to increasing economic challenges in an innovative way, exploring diverse funding streams and the benefits of a resilient mixed economy".

Lord Elton: My Lords, could my noble friend expand her reply to the noble Lord, Lord Peston, to touch on the subject of mobile libraries, which certainly are extremely useful in rural areas and could be developed in urban areas?

Baroness Rawlings: My noble friend Lord Elton has a very good idea and I am sure that the Secretary of State will look at that.

Lord Collins of Highbury: My Lords, on 16 August 2010, the Minister Ed Vaizey announced an ambitious change programme for libraries. The press release said:

"The Future Libraries Programme ... aims to help the library service during the current challenging financial situation, with an ambition to ensure libraries play a central role for communities in the Big Society".

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Since then we have heard little from the Minister, although more than 10 per cent of libraries have closed and many communities are without access to a library. Will the Government take seriously their duty under the 1964 Act to ensure that local authorities meet their statutory duty to provide a comprehensive and efficient library service?

Baroness Rawlings: My Lords, I know that the Minister Ed Vaizey takes this very seriously indeed and we have discussed it on very many occasions. It is absolutely right that there should not be many closures, but there will be diversification, and data about the library sector are published annually by the Chartered Institute of Public Finance and Accountancy. Many local authorities are still developing and consulting on proposals, and consequently the overall picture is always changing.

The Countess of Mar: My Lords, may I recommend to the noble Baroness that she goes to Worcestershire to see its mobile library service? It also has a mobile computer service, which is absolutely excellent.

Baroness Rawlings: I will take the noble Baroness's advice and try to get there. Thank you.

Lord Faulkner of Worcester: My Lords, is the Minister also aware that the University of Worcester is opening what will be the first integrated county and university library for the people and the students of that university in the centre of the city later this year, in an iconic building that is going to be admired across the continent?

Baroness Rawlings: I thank the noble Lord very much for that suggestion. I commend the city and university, and I hope that many other places will emulate them and use the initiative to follow suit. I thank him very much for telling your Lordships about it.

EU: Fiscal Compact Treaty


2.43 pm

Asked by Lord Dykes

The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, although the United Kingdom will not become a party to it, we have participated fully in discussions on the intergovernmental treaty on stability, co-ordination and governance in the economic and monetary union. The parties have set out their desire that its substance will be added to the EU treaties in the future. Any such addition to the EU treaties would need to have the agreement of all 27 members.

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Lord Dykes: I thank my noble friend the Minister for the very substantial and indeed creative fence-mending by Her Majesty's Government that has taken place since 9 December. Does he agree that although we are not yet members of the fiscal compact treaty, now that that has been successfully signed by all but two, it is our duty, as we stated before Christmas, to make sure that we help the eurozone authorities and the national leaders return the eurozone to its strength as a traditional international currency?

Lord Sassoon: My Lords, I am happy to confirm to my noble friend that of course this intergovernmental agreement, which goes to the heart of strengthening the fiscal arrangements within the eurozone, is a necessary but not sufficient part of what we hope to see with the eurozone returned to health. There are a number of other critical elements, including sorting out the immediate situation in Greece, getting the European banks' capital positions where they need to be, and so on.

Lord Barnett: My Lords, will the noble Lord be advising the Government to be one of the 27 member states agreeing to a fiscal solution to the problem or will the Government take the view that, whatever happens in the short term, in the longer term it is perfectly impossible for a country like Greece in the state that it is in to be able to have the same exchange rate and interest rate as Germany? In those circumstances, will the Government be making arrangements and planning for something to happen that would not be helpful, because, as the Chancellor put it, it would be disastrous if the whole thing broke up? Is contagion a bigger problem than many of us expected it to be?

Lord Sassoon: My Lords, it continues to be the Government's wish that the eurozone holds together and makes the arrangements, some of which I outlined in my previous answer. As I have said in answer to previous questions from the noble Lord, Lord Barnett, the Government take all precautionary measures and look at all scenarios that there may be as this still very severe situation continues to unfold.

Lord Hannay of Chiswick: Will the Minister have a shot at the question that I have given to two of his colleagues, which they have failed to answer so far, and state what objections the British Government have for the text of the intergovernmental agreement that will be signed at the end of this month?

Lord Sassoon: My Lords, I think that my noble friends Lord Howell and Lord Strathclyde have given very good answers to that question in the past and there is nothing I need to add.

Lord Howe of Aberavon: Will my noble friend take the opportunity of advising our right honourable friend the Prime Minister that in practical terms this is a setting in which the Prime Minister might be well judged to pay a little more respect to the advice of the Chancellor of the Exchequer than to that of the Foreign Secretary?

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Lord Sassoon: My Lords, I do not think that it is for me to tell my right honourable friend the Prime Minister in any way where he should seek advice but I am sure that he seeks the advice of all his senior Cabinet colleagues.

Lord Liddle: My Lords, following on from the Question asked by the noble Lord, Lord Dykes, I recognise the concern of the Government that a caucus of eurozone member states should not compromise the integrity of the single market, but does the Minister agree that the best guardians of that integrity are the Commission and the Court? How does he expect them to act in that role if the Government keep saying that they are reserved about the position of the Commission and the Court in the treaties and there is a chorus of criticism from his own Back Benches in the House of Commons demanding that these institutions be kept out of any role?

Lord Sassoon: My Lords, the first thing is to be clear that the intergovernmental agreement is explicit that it cannot encroach on the competences of the EU and that the signatories to the intergovernmental agreement must not take measures that in any way undermine the single market. That is set out in the preliminary recitals and in Article 2 of the treaty. It is principally a matter for the signatories to the treaty. We have made it clear that the Government have a number of concerns about elements of this inter- governmental agreement, one of which is the use of EU institutions. Some of the proposed uses of EU institutions in this intergovernmental agreement are already in the EU treaties and others are not. The Government will watch very carefully how this develops.

Baroness Kramer: My Lords, in an earlier answer the Minister referred to the recapitalisation of the banks in the eurozone as a necessary step. What action does he think is available if those banks fall short of successful voluntary recapitalisation and is further action necessary at the EU level?

Lord Sassoon: My Lords, now that there is a realistic assessment of what capital is required, there is a clear agreement on the timetables and methods for doing that and it is well within the capacity of the eurozone to do it. I do not think we should speculate on what happens if they fail to do it. The eurozone, its Governments and the European Central Bank have all the firepower necessary.

Lord McFall of Alcluith: My Lords, Europe and the UK will be going nowhere unless competitiveness is restored to individual countries. Does the noble Lord agree that at the heart of any fiscal compact should be a policy of growth and investment? Even from our position in the wings of Europe, will the Government agree to ensure that such a policy is implemented, not least to help the many millions of young people who are now unemployed all over Europe?

Lord Sassoon: I very much agree with the sentiments of the noble Lord. The one part of them that I disagree with is that we are not sitting on the sidelines

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but are very much at the heart of the discussions about pro-growth policies and the completion of the single market.

Magna Carta


2.51 pm

Asked by Lord Lea of Crondall

The Minister of State, Ministry of Justice (Lord McNally): My Lords, plans to celebrate the 800th anniversary of the signing of the Magna Carta in June 2015 are being co-ordinated by the Magna Carta Trust, an independent organisation chaired by Sir Robert Worcester. I am keeping in close contact with the trust and I hope that as many people as possible will join in the commemorative activities and events that are being planned for the run-up to 2015 and on the anniversary itself.

Lord Lea of Crondall: I thank the Minister for that reply. There are of course very special reasons to commemorate in this House what happened at Runnymede in June 1215 and, indeed, the evolution of our constitutional arrangements between the Lords and the Commons over many centuries since. Does the noble Lord agree that in addition to weighty documents being published and speeches being made, there could be something of a more popular nature? For example, the pageant that preceded the tournament in 1215 was itself preceded by a ceremonial exchange of hostages between England and Scotland. What does the noble Lord think about a replay of that? Other events might also intrude, such as an inconclusive outcome of the general election. In those circumstances, would one way forward be a series of ceremonial jousts between the parties in which the noble Lord himself might be called upon to participate?

Lord McNally: What excellent ideas. It is strange how the same thoughts go through our minds. Just as the noble Lord was speaking, I was looking at the noble Lord, Lord Foulkes, and thinking what a perfect hostage he would make in the circumstances. Not long ago, I went to a ceremony at Runnymede and pointed out something that may surprise some Members of this House in view of my views about reform-that at Runnymede, the Barons did very well.

Lord Cormack: My Lords, does my noble friend think that the Barons who look down upon us daily from their plinths above this Chamber would be best pleased if, a month after the next general election, they looked down upon a hybrid Assembly with a group of senators in it?

Lord Strathclyde: Progress.

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Lord McNally: Indeed. I am sure that the Barons would be as revolutionary in 2015 as they were in 1215, but I defer to my noble friend because, sometimes when listening to him, I think he must have been at Runnymede for the signing.

The Lord Bishop of Chichester: My Lords, the then Archbishop of Canterbury, Stephen Langton, played a decisive and formative role in the formulation of Magna Carta, and that was not the first or the last occasion in our history when the Church has, so to speak, helped to keep the feet of the powers-that-be to the fire in matters of constitutional freedoms. Will the Minister take the opportunity to acknowledge the continuing contribution that people of faith are still making today in defending human dignity that transcends temporary political arrangements, and will he further let us know whether he is prepared to advise the independent commission to which he referred to invite the Church of England to play a particular role in the 2015 celebrations?

Lord McNally: I would certainly hope so. As the right reverend Prelate pointed out, Archbishop Langton played an important part at that time. I shall draw the idea to Sir Bob Worcester's attention. I believe that this is an opportunity for us to celebrate a significant part of our history. I know that historical purists will cavil at the importance of the Magna Carta, but I always remember Eleanor Roosevelt, when she published the Universal Declaration of Human Rights, saying that it was a Magna Carta for all mankind. Nobody needed to translate what she meant by that. Magna Carta carries a resonance that has come down to us through the ages.

Lord Elystan-Morgan: My Lords, may I invite the Minister graciously to disabuse himself and all others who fall prey to the misconception that Magna Carta was ever signed? It never was. As a charter, and as the name implies, it was sealed by the royal seal of King John, as the facsimile mounted in the Contents Lobby makes very clear. May I apologise for making such a pettifogging legal point?

Lord McNally: Not at all. I have long considered the noble Lord a master of the pettifogging legal point, but his question gives me the opportunity to put on the record, for noble Lords who want to get involved in the build-up to the Magna Carta celebrations, that my honourable friend Eleanor Laing in the other place is chairing an All-Party Magna Carta Group. I am sure that it would benefit from membership from this House.

Baroness Benjamin: My Lords-

Lord Howarth of Newport: My Lords-

Noble Lords: Order!

Lord Strathclyde: My Lords, there has not been a question from the Liberal Democrat Benches.

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Baroness Benjamin: Thank you, my Lords. A favourite expression often used by British citizens is, "It's a free country". Thankfully, so it is, but many are not aware that our freedoms are the greatest legacy of the Magna Carta. What are the Government doing to ensure that children and young people use and appreciate this precious gift of freedom with respect and responsibility? Perhaps they could do so by establishing an annual Magna Carta day to raise awareness and celebrating on the underused Parliament Square, as suggested by the Hansard Society.

Lord McNally: Again, I am delighted by the enthusiasm with which the House is approaching this and I shall feed that idea back to Sir Robert.

Lord Howarth of Newport: Will the Minister confirm that Clause 29 of Magna Carta, which enshrines the right to due process, remains part of the law of England and Wales, but that it is under attack by the Government? Would it not be seemly if the Government were to celebrate the 800th anniversary of Magna Carta by withdrawing Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill, which removes legal aid from people on low incomes who are in dispute about their benefits entitlement or with their employer or with their landlord? If the Government should be less than gracious about this, will it not still be for the Barons to insist on the ancient constitutional principle that:

"To no man will we sell, or deny, or delay right or justice"?

Lord McNally: The noble Lord once again confirms that one should never take that final question.

Prisoners: Transport


2.59 pm

Asked by Baroness Smith of Basildon

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the National Offender Management Service has taken immediate action to reinforce security procedures and staff have been instructed to ensure that these procedures are fully complied with.

Baroness Smith of Basildon: I am grateful to the noble Lord; that is a helpful Answer. There is a very good record on prison security, which is why these two armed ambushes and escapes are so shocking. The week before last the Minister confirmed to your Lordships' House that,

for Category A prisoners. The second prisoner who escaped had previously absconded from court, was sentenced for GBH in his absence, and was given an

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indeterminate sentence for public protection because of the seriousness of his crimes. I find it incredible that, despite all that, he was given a Category C prisoner status and deemed to be unlikely to escape. Will the Minister look into this, and can he make arrangements to assure himself that when prisoners are transported, the security category is double-checked or reassessed to minimise any risk to the public or to staff?

Lord McNally: My Lords, I appreciate the constructive nature of that question. I hope the noble Baroness will appreciate that a formal investigation is under way into the circumstances of both escapes, and the reports and recommendations will determine what further action may be required. A wider review is also under way into the procedures governing the escorting of prisoners outside of prisons, including the arrangements for transporting them. Her point about the categorisation of prisoners should, and I assume will be, part of that inquiry.

Baroness Sharples: Are the guards armed when they transport Category A prisoners?

Lord McNally: I cannot confirm that they are armed on all occasions, but there is an assessment of risk for Category A prisoners. The use of guns in one of these escapes is extremely worrying, but it does not happen every time. That is another thing that the inquiry will look into and report back on.

Lord Ramsbotham: My Lords, the Minister mentioned that the National Offender Management Service was conducting what I presume is an internal, in-house inquiry into this. Can he tell us whether the Inspectorate of Prisons and the inspectorate of the security industry are also looking into it? Presumably there are wider impacts other than those on the purely internal workings of the National Offender Management Service.

Lord McNally: Yes, the inquiry will go far wider. As I said, the wider review which is under way will look at both the public and the private sectors. The review's aim is not just to hold an inquest into what happened but to learn lessons that will be helpful in the future.

Lord Bach: My Lords, the House will be grateful to the Minister for his answers to this Question. Are the Government satisfied that all those with the responsibility-and it is a difficult responsibility-for transferring prisoners are trained to a high enough standard in all cases to perform their difficult task? Prison officers certainly are. Are the Government content that everyone else who has this responsibility is trained to a high enough standard, too?

Lord McNally: Yes, I think that I can give the noble Lord that assurance. Again, standards of training is one of the things that the inquiry will be looking at. This will of course vary because we are talking about a large number of movements throughout a year and many of them are a very low category indeed. Under successive Governments over the last 15 years, the

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actual number of successful break-outs or escapes in transit has made this very much an exception rather than the rule. That is a sign of the improvements in transportation facilities and the training of staff. The wider review will look at this. As I said, if lessons are to be learnt, we will learn them. There is also the prospect that, with a greater use of television to allow distance interviewing of prisoners, there will be less need to transport them.

Lord Mackenzie of Framwellgate: My Lords-

Lord Campbell of Alloway: Is this really a question of training? Is it not a question of making appropriate provision in these special circumstances?

Lord McNally: Yes, my Lords, but the fleet for transporting prisoners has recently been updated, so there should be greater security in those circumstances. There is training of staff-prisoners are accompanied by staff-and an assessment is made in advance, particularly of the transportation of Category A prisoners. The investigation under way will look at what is in place and whether those procedures were followed and, if all the procedures that were in place were followed and yet a successful break was made, what lessons are to be learnt from that.

Legal Aid, Sentencing and Punishment of Offenders Bill

Bill Main page

Committee (8th Day)

3.06 pm

Clause 61 : Duty to give reasons for and to explain effect of sentence

Amendment 175

Moved by Lord Wigley

175: Clause 61, page 44, line 40, at end insert-

"( ) The court when requesting a pre-sentence report must ask for a social history on the offender from the Probation Service."

Lord Wigley: My Lords, in moving Amendment 175 I shall also speak to Amendment 176. I have been asked to do so by the noble Baroness, Lady Gould, who apologises that she cannot be present today. These amendments add new provisions to Clause 61 in respect of sentencing guidelines. I will endeavour to put across the points that the noble Baroness wished to make and to combine them with my own remarks.

Amendment 175 would place a duty on courts to ask for a social history of an offender from the probation service when it requests a pre-sentence report. I do not have a legal background, but this issue has been brought to my attention by colleagues who sit on the panel of

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the independent Parliamentary Inquiry into Stalking Law Reform, whose excellent report was published today. They say that such a provision would be welcome in ensuring that courts were made aware of the history of offending of a particular perpetrator. Sadly, many perpetrators of ongoing, unacceptable behaviour such as domestic violence and stalking are able to get away with it simply because a court examines only individual instances of their behaviour and does not take into account the cumulative effect that long-term patterns of behaviour can have on victims.

Similarly, many stalkers and rapists have multiple victims, which can sometimes go unnoticed if the pattern is not recognised. When we also consider that perpetrators of dangerous and obsessive offences such as stalking frequently have a highly manipulative personality and can persuade criminal justice professionals that they are simply misunderstood and deserve a second chance, it is clear that changes need to be introduced to counter this. All too often, that second chance allows the perpetrator to continue his harassment of victims, sometimes even resulting in those victims' deaths.

The noble Baroness, Lady Gould, and I were assisted in preparing for this debate by Napo, the probation officers' union, which has highlighted key case studies in the recent past where women have been subjected to harassment and stalking over a sustained period of time. In those cases, court reports have concentrated on the immediate offence, thus ignoring evidence that would be vital in determining the risk of reoffending.

I draw the attention of your Lordships' House to a case from the East Midlands in which a 44 year-old male was charged with breaching restraining orders three times, all resulting in community sentences. For the index offence on this occasion, he received a 12-month suspended supervision order. The stalking behaviour had been going on for five years, and there had been sporadic periods of harassment. At one time, the victim was reporting breaches daily. He was later convicted for assaults on a new partner, who also suffered harassment for a period after the break-up. He also participated in a domestic violence course in the community, but that was discontinued because of further breaches of restraining orders.

The probation officer believes that cases such as this are looked on as low-level domestic violence, yet have the potential to escalate quickly to serious violence and even to the death of women and children. She reports that in her area there is an increase in the number of men being convicted for a breach of restraining orders, but she thinks that they are not being dealt with effectively. Cases are not dealt with consistently even within probation areas. The harassment in this case has being going on sporadically for 20 years, and has been very intense in the past six years.

I have been given a dozen similar examples; the same common theme emerges from them all. Professional staff believe that short prison sentences do not allow them to develop and complete offender behavioural work to an extent that makes an impact, and that appropriate sentences must be developed and applied. In some instances, patterns of psychologically harmful

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behaviour have not been sufficiently recorded, meaning that the offenders in question were not treated. This is partly an issue of resources, since courts are under increasing pressure to settle for a fast delivery report, which means that there is not enough time to investigate previous behaviour. It seems only common sense that a court, prior to sentence, should be required to educate itself as to the history not only of a particular case but of a particular offender. Many lives will be saved if this provision can be accepted, and I therefore urge the Government to accept this amendment.

Amendment 176 would require courts, when handing down a sentence, to consider the effect of it on dependants. I know that in tabling this amendment the noble Baroness, Lady Gould, had in mind particularly the high instance of women who are incarcerated for relatively short periods, and the devastating effect this can have on their families. As was well documented in the 2007 report of the noble Baroness, Lady Corston, Women in the Penal System, the demographic fingerprint of women who enter the penal system is staggeringly different from that of men in the same system. Women prisoners are far more likely to be primary carers of young children, so the effect on families of a mother entering prison is far harsher than the effect of a father being incarcerated. Latest statistics show that 66 per cent of women prisoners have dependent children.

The Howard League estimates that more than 17,000 children in England and Wales were separated from their mothers in 2010 due to their mothers' incarceration. Roughly 6,000 of these children were under five years old, a quite staggering figure of 33 per cent of them. Even more far reaching is the likely effect on single-mother families if a mother is put into prison, leaving the children to enter care. The Howard League estimates that only 5 per cent of female prisoners' children remain in the family home once their mother is imprisoned, which contrasts with 90 per cent of male prisoners' children. It is often said that prison is not the best answer when handing down sentences for women. On a practical level, Ministry of Justice statistics show that 54 per cent of women jailed are reconvicted within 12 months, rising to 64 per cent if the sentence was for less than a year.

Equally, however, many organisations argue that we should be more lenient, particularly when considering the common reasons that lead to women entering into crime in the first place. These include relationship problems and coercion by others. The conditions within prison aggravate underlying problems afflicting many women prisoners: 51 per cent have severe mental illness; 47 per cent have a major depressive disorder; 50 per cent have been subject to domestic violence, and 33 per cent to sexual abuse. Against this background, is it surprising that no less than 37 per cent of women prisoners have attempted suicide? Mental health problems are still far more prevalent among women in prison than men, and self-harm is a significant problem.

3.15 pm

The effects on their children are equally distressing. Separation as a result of a mother's imprisonment punishes the children and will nearly always cause psychological, social and material damage. Wherever

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possible, alternative routes to rehabilitation should be favoured for women, particularly those with dependants. That is why it is so important that courts take into account the fact that women in these circumstances are indeed different from men. Courts should keep in mind, that is, that women tend to be charged with less serious offences and receive short custodial sentences, that one-third of them are single parents and that most of these women could undergo community sentences at one-tenth of the cost of prison, with much lower re-conviction rates.

It is for those reasons that I support the amendment tabled by the noble Baroness, Lady Gould. I urge the Government to respond to them and take on board the need for change that has been so graphically outlined by many people outside this Chamber.

Baroness Howe of Idlicote: My Lords, my name is attached to the amendment. The points that my noble friend Lord Wigley has made on behalf of the noble Baroness, Lady Gould, are a fine illustration of why the stalking report that was published this morning is so important and its contents are so relevant to the points that have been discussed here already.

It is crucial that the backgrounds of serious and repeat offenders are seriously considered before decisions are made. Judging by the list that Napo has sent to my noble friend, there are indeed many instances of short sentences where not only has no treatment been given but there has been no effective outcome at all. One can imagine that there will be repeat offenders. On that point, I stress that in the Midlands in particular no fewer than five of these very short sentences were illustrated.

I turn to the second point, which is even more crucial: the effect on dependants. The numbers of children who have been affected in this way over generations must be into the millions. Let us think of the cycle of deprivation and the way in which their behaviour is no doubt going to reflect the less than desirable behaviour of their parents in the past.

Women prisoners tend to believe, I think with some justification, that they are given harsher and longer sentences than male prisoners. I remember visiting a women's prison and being interviewed as a "victim", as it were. This prison had been set up with a marvellous two-pronged system whereby you had to learn both the techniques of how an interviewing system worked in a broadcasting station and how to do the interviewing. For many of these women, who had no confidence at all in their own ability, to have to ask those kinds of questions was a big challenge. They said that they reckoned that they had tougher sentences. When you consider that many of them would no doubt have been sent with drugs in them, put there by manipulative people from outside the country as well as inside, we need to take what they were saying very seriously. I hope that the Minister will respond favourably to this amendment.

Lord Clinton-Davis: I rarely disagree with the noble Baroness, Lady Howe, but I do on this occasion. I do not think that there is any evidence that women prisoners are dealt with more harshly than men. That is a point

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which should not have been made because it is irrelevant. In my experience as an advocate, quite the reverse is true.

On the amendments, I largely agree with what the noble Lord, Lord Wigley, has said, but they would not add very much to the present practice. The probation service always gives a social history-whatever that may mean-of the offender, and it goes into great depth. It also considers the effect of sentencing on dependants. Both those points, which are relevant for debate, are irrelevant as far as the law is concerned.

We have heard a great deal about stalking today. Stalking is a very serious offence and we ought to consider the report, but this is not the occasion to do so.

It is essential that whatever the probation officer has to say in a case is taken seriously and in my view, it invariably is. However, that goes to show that offenders must be represented if that provision is to take effect. All too often, the offender is not represented; by and large, it is important that the points which are made in the amendments are taken into account. So I urge that, wherever possible, the defendant is represented.

Lord Thomas of Gresford: I have some sympathy with Amendment 175. Listening to the noble Lord, Lord Clinton-Davis, I was taken back into the past. He said that probation reports go into great depth on the effects of sentencing on the offender. The noble Baroness, Lady Howe, spoke about reports looking into the background of offenders. That used to be so, but in a serious case in which I was involved within the past 12 months, when a verdict by the jury of murder was reduced to manslaughter, I was shocked to discover that the probation service simply interviewed my client over a video link while he was in Belmarsh prison. He was given no notice; he was spoken to for about half an hour; and the ensuing report was simply a question of assessing the risk for the purposes of an indeterminate prison sentence.

Lord Clinton-Davis: Was that not put before the court? If not, why not?

Lord Thomas of Gresford: It was put before the court, and the request was made for an adjournment for a probation report to follow as it used to, with relatives being interviewed and the court being given some idea of the person's background and some concept of why he could have committed the offence. However, I am very concerned that at the moment the pressure on the probation service is such that it is forced to take these shorthand approaches of video links with a person you have never met before, carried out by someone much younger who makes no attempt to look into the background. In my view, it is a denial of justice in the individual case.

Baroness Farrington of Ribbleton: My Lords, I seldom disagree with my noble friend Lord Clinton-Davis. However, on this occasion I have heard accounts directly from individuals who have been the victims of stalking. One common thread appears throughout these accounts. Individual instances are taken into account but the

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severity and length of the offences that currently fall under "harassment" are not always fully taken into account. Even looking at the best case, what happens is that incidents may be looked at as a group or a collection.

Some of the victims of stalking have been victims of the same stalker for years. Like many other noble Lords, I have heard the woman who is conducting the campaign that has been set up on this subject. She is a former senior police officer who has said that repeatedly a joke is made when the woman first complains to the police. We need quite a large change in attitude. The joke that was referred to this morning on the radio was, "Don't you feel flattered that somebody is attracted to you?", when the victim went to the police.

On Amendment 176, spoken to in my noble friend's absence by the noble Lord, Lord Wigley, it is extremely important that we look at the circumstances of the offence. I cite repeated shoplifting as an example. In my experience, there are two different sorts of repeated shoplifting. There are people who go on shoplifting sprees, sometimes in groups, in order to resell goods for profit. There are other people who shoplift to get tins of baked beans for their children's tea. The fact that it is a repeat offence should not necessarily mean that those children are deprived of their mother if there are other means of tackling the issue. I hope that the Minister will give a positive response to this set of circumstances in which women might be incarcerated and say that it is an example where, even though we may be dealing with different sums of money, funding projects that help give women self-esteem, and do not separate them from their families, is a more cost-effective and socially effective means of tackling many of the circumstances of these women.

3.30 pm

Lord Elystan-Morgan: My Lords, I find myself very much in sympathy with the sentiments that lie behind both the amendments. I agree with everything that was put so clearly and in such a balanced way by my noble friend Lord Wigley.

In relation to Amendment 175, it could be said that one is dealing with two sets of reports from two different agencies. In so far as anything deals with the criminal history of the defendant, even though it may not be the subject of a conviction, it belongs to the area of antecedents and to the agencies responsible for those. In other words, a bare statement of conviction on a certain date giving the detail of the conviction but no more would be very inadequate if it did not give the sentencing court-whether it be a magistrates' court or a Crown Court-the background which is so essential for it to decide an appropriate sentence.

Both the agencies concerned-the probation service and those who prepare antecedent reports-are heavily overstrained. That, it seems to me, is the real problem with which one is dealing. These people dearly wish to devote much more time and effort to the preparation of a report but are simply unable to do that due to the exigencies which exist.

Everything that has been said in relation to dependants by the noble Lord, Lord Wigley, and those who support the amendments is corroborated by what I have seen

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over the years as a solicitor, barrister and judge. There are two stages when a court has to consider whether or not to impose a custodial sentence. First, it has to decide whether the gravity of the offence in all the circumstances of the case brings it over the bar, as it were, to the point where a custodial sentence is appropriate. Having decided that, it then looks at all the other circumstances of the case. Very material to that consideration will be the situation of dependants. It may well be argued, therefore, that it is not necessary to have the amendment, but I urge the Government to take a different view as it would help to concentrate the mind of the sentencer in that direction.

Any wise sentencer-magistrate or judge-knowing that young children may have to go into care or be dealt with in some other way, will have to look at the totality of the situation, having decided that it is an appropriate case for custodial sentence. In other words, the sentencer has to ask whether the totality of the situation is such that the community and the interests of justice are best served by a person going to prison or avoiding prison in some way or other. It is not a question of what the person deserves because that is a narrow, tunnel-vision approach to the whole matter; it is a question of what is proper and just for society and all concerned. I am sure that it is a precept for the wise sentencing court-magistrate or judge-to ask for a full report from the care authority regarding what exactly will happen to children in the event of a custodial sentence being imposed.

Lord Faulks: My Lords, both these amendments are concerned to ensure that the court knows all that it needs to know before sentencing. In my experience as a recorder, the court would be acting very negligently indeed if it were to sentence a woman, or even a man, without knowing the effect of that on the dependants. That is the fundamental point usually made in mitigation. It is very much part of the picture that any sentencing tribunal would have to take into account. If for some reason an advocate or the probation service was not giving sufficient information about this, the court would ensure-by adjourning if necessary-that that information was available. Therefore, although I accept the points made about the necessity to take all these facts into account, these amendments are designed to tell the courts what to do. I respectfully submit that the courts know what to do.

Lord Howarth of Newport: My Lords, I fully support the intentions of these amendments. I admired the speech by the noble Lord, Lord Wigley, but seek clarification from him. I have a question about feasibility and practicality. I am not sure whether it is intended that the requirements in these amendments should extend to magistrates' courts as well as to the other courts. However, if one considers the circumstances in which the magistrates' courts were operating last summer, following the riots, when they transacted an extraordinary volume of cases, worked under extreme pressure and sat until late at night, I wonder how realistic it is to lay upon those courts the requirements that these amendments would lay. I had misgivings about the magistrates' courts working in that fashion but I recognise that what they did at that time was seen by the public as

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entirely appropriate in a situation of exceptional crisis. Perhaps what I am really saying is that there is no substitute for having enough courts that are sufficiently resourced and a probation service that is well enough resourced, and for the courts to do their work as far as possible screened from the pressures of the media and politics. However, that is a rather fanciful state of affairs to desire.

I therefore simply ask the noble Lord, whose purposes I thoroughly endorse, to explain, if he will, how he envisages these requirements actually working in practice when the courts are under severe pressure.

Lord Judd: My Lords, I must apologise for not having been in my place when the noble Lord, Lord Wigley, was moving his amendment; however, as I have put my name to the amendment, I hope that with the leave of the House I might make just two observations.

First, it has been said that it is not appropriate to tell the courts what to do because they know what to do. That is a fine sentiment in some ways, and I pay due respect to the sincere professionals who make the courts system work. The issue is whether the court has enough information in front of it to make a proper decision in view of the circumstances and consequences of what it may decide. The amendments are therefore dealing with a rather different point.

I also want to make this observation: of course, when the court has before it someone who is about to be sentenced, I am sure that there is a punishment to be made; but if we are sensible and rational beings, and the courts are working well, it is also essential right from that moment to be thinking about the rehabilitation of the individual so that they can become a positive citizen. That is why the quality and depth of the probation service's report is crucial; otherwise, we slip into a sort of factory system of justice whereby there is an automatic response to a case. One has to try all the time to look at the individual and at how the sentence can be tailored to enable that citizen not only to be punished but to start the process of rehabilitation and join society as a responsible citizen.

If we are concerned about future crime, there is nothing more absurd and wasteful than not to take fully into account the implications for the dependants, because we may otherwise find that the court, by not having paid sufficient attention to the needs of the dependants, has inadvertently contributed to the next generation of offenders in that family.

Lord Beecham: My Lords, we on the opposition Benches support both amendments and congratulate the noble Lord, Lord Wigley, and his cosignatories on bringing them forward. I have not the slightest doubt that any court presided over by the noble Lord, Lord Faulks, would not only know what to do but actually do it. However, that is not necessarily universally the case, and the Justice Select Committee in July 2008 raised concerns about the fact that pre-sentence reports were not requested frequently enough. It also raised doubts about the adequacy of those reports when they were presented; so there is clearly a problem in some courts some of the time, and it is sensible to make provision along the lines of both amendments.

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An amendment precisely along the lines of the second amendment was moved in the Commons by Helen Goodman MP. It is surely essential for the courts to give due consideration to the effect of sentencing on dependants, not only from the point of view of those dependants but-given that we are necessarily talking about costs all the time-to avoid the costs that may arise from, for example, having to take children into care or the long-term damage that may be done to families, particularly but not exclusively in the context of mothers being sentenced to imprisonment.

The noble Lord, Lord Wigley, rightly referred to the fact that there is a high suicide rate among women prisoners. There is also an alarmingly high rate of self-harm. After all, one-third of women prisoners are single mothers; only 9 per cent of children with mothers who are serving custodial sentences are looked after by their father. That is not to say that there may not be other family members who take care of some children in those circumstances, but it is clearly a material factor.

It is of great concern that more than half of women prisoners suffer from severe mental illness, and half have suffered from domestic violence. They are clearly very damaged women. One might feel that children in that family are already vulnerable and exposed to risk. Notwithstanding the experience of my noble friend Lord Clinton-Davis, it is clear that women are not treated in exactly the same way in sentencing, as a higher proportion of first-time offenders among women are sent to prison than men and a higher proportion of women are sentenced for non-violent offences-both significant differences. There is a problem about sentencing of women, and we will be considering that under later amendments. Bearing in mind the higher proportion of those women who have dependent children, the amendment is extremely timely.

The noble Lord, Lord Howarth, raised an issue about the practicality of the situation and cited the experience of last summer, with courts sentencing people to custodial sentences in the middle of the night. It may be that custodial sentences were required. The question arises whether it was necessary for those sentences to take immediate effect without proper inquiry into the background circumstances. I would argue that that was not necessary, whatever the ultimate sentence may have been.

My noble friend Lady Corston has reported extensively on the position of women prisoners. Her report will no doubt be touched on in conjunction with later amendments. The spirit of that report should surely inform the Government's attitude to these two amendments, which we heartily commend.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, this has been an extremely useful debate and one that has not necessarily followed previous structures where the Minister sits there under fire from all parts of the House. It has been interesting to hear the various experiences, particularly of noble and learned Lords and their opinions on whether the amendments are necessary or add to present practice.

The Criminal Justice Act 2003 sets out when a court must or should request a report. Amendment 175 does not address those provisions, which relate to the duty

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to explain a sentence after it has been decided. A pre-sentence report is designed to inform the judge or magistrate before they decide on a sentence, while the clause relates to duties to explain the sentence that is being imposed.

Nevertheless, under the system now in place, a pre-sentence report to the court by the probation service sets out a recommendation for sentence based on the background and the risk posed by the offender. The report will set out any factors relevant to the offending. That will include a history of alcohol or drug dependency or any home life factors that might be relevant. That report is, in effect, what one would understand by the term "social history". Of course, the court would also have in front of it a print-out of previous convictions and it would decide which of these were relevant to the case.

3.45 pm

The law on the disclosure of previous convictions is a separate subject and contains safeguards to ensure that irrelevant convictions are not considered. The judge in a case will-indeed, must-consider relevant and recent convictions when sentencing. This is in Section 143(2) of the Criminal Justice Act.

On the points about stalking, as was mentioned, the report has come out only today and it would be wrong for me to give an instant response on it or on its relevance to this matter. However, having listened to the debate, I should like to look at the amendment again and perhaps, between now and Report, talk to the noble Lord, Lord Wigley, and the other noble Lords in whose names it stands.

Amendment 176 would place a duty on sentencers to consider the effects of sentences on the offender's dependants. I noticed that the noble Baroness, Lady Corston, was in her place a little earlier. I have pointed out on previous occasions that we in the Ministry of Justice still keep her report as the guideline on the treatment of women offenders. The budget, which I shall not go into again, is a constraint, but we are trying to take forward many of her recommendations. Although I understood what the noble Lord, Lord Clinton-Davis, said and I appreciated his helpful intervention, I am firmly convinced that there is a difference with women offenders and there should be a difference in our treatment of them.

The fact is that, in deciding on a sentence, the judge or magistrates are required to consider first and foremost the seriousness of the offence. They will also consider any personal mitigating factors relevant to the offender, which can include the impact of a sentence on dependants. The difference that the existence of dependants makes to the type or severity of a sentence, particularly where the offender is the primary carer, has been clarified over the years by decisions of the Court of Appeal. Indeed, the Court of Appeal has clearly established that if a court does not have sufficient information on the consequences of separating a parent from a child, it must ask for more information. In short, it is long established that the courts can, and in certain circumstances must, consider the potential impact of

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a sentence on dependants. If they did not do so where it was relevant, this could give rise to an appeal against the sentence.

In both these debates there has been a desire to put instructions into statute and it is a debate that has continued since I have been in this job. It is a question of how much the legislators want to instruct the judges what to do and how much the judges say, "Listen, we're there. We listen to all the evidence and we get the reports. We are best placed to make the judgments". There will always be that tension between Parliament and the judiciary, but it is a healthy tension. However, I think that in this case the amendment is not a necessary addition to statutory provisions and I hope that the noble Lord will withdraw it.

Baroness Farrington of Ribbleton: My Lords, looking at public expenditure, sending a woman to prison and putting her children into care is an extremely expensive option, but in many cases the resources are not available for the alternative treatment that I know speakers in this debate and other noble Lords regard as a preferable option. The problem is that those who have to deal with a particular incident or the result of a series of incidents often cannot use that judgment. It demands lateral thinking to transfer resources from one course of action to another.

Lord McNally: I could not agree more with the noble Baroness. That was very much the thrust of the Corston report and of what the Government are trying to do in carrying through their justice reforms, particularly in the treatment of women offenders.

Lord Thomas of Gresford: I am concerned about the instructions given to probation officers who carry out pre-sentence reports. Will my noble friend look into the matter before Report and find out in what circumstances it is acceptable for a probation officer to fashion a pre-sentence report based simply on a videolink and ticking boxes on a form on the other side? When is that permitted and what particular guidance is given to probation officers in those circumstances?

Lord McNally: One of the reasons why I am always at a disadvantage when dealing with my noble friend is because he usually has some recent case in which he has personally participated that proves the case he is making. I have noted what he said and will check whether that is regular practice. As I said, the Appeal Court has made it very clear that if reports are not asked for or are deficient, that in itself could be grounds for an appeal.

Lord Elystan-Morgan: Further to the point made by the noble Lord, Lord Thomas of Gresford, is it not the case-I will be grateful if I am wrong-that under the Criminal Justice Act 2003, there is a requirement on the court in all cases to have a probation report in writing, save when the court sees it entirely proper to relax that rule, but not when a person is under 18? There is one other exception that I cannot remember, but it is quite substantial. In other words, will the Minister look not just at the amendment but at the parent provision, as it were, in the 2003 Act?

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Lord McNally: Certainly, but the noble Lord, Lord Elystan-Morgan, makes my point. There are responsibilities already in previous legislation that make these amendments unnecessary. As always, I will check. I am sure that his memory is accurate, but if not I will write a correcting letter. In the mean time, with the offer of some talks on the amendment, I hope that the noble Lord, Lord Wigley, will withdraw it.

Lord Dholakia: Will the Minister consider the possibility of a code of practice on how such reports are produced and give some guidance to the probation service so that this matter can be resolved without necessarily any recourse to legislation?

Lord McNally: That is an interesting and helpful intervention from my noble friend, which I will take away and consider.

Lord Wigley: My Lords, the Minister said in his opening remarks that he was in an unusual situation in that he was responding to a debate that had not overtly attacked the Government or him. I am in a novel situation as well, having had the Minister's response. I thank everyone who has taken part in this short debate. It has been very worth while. I pay tribute to the work undertaken by my noble friend Lady Howe in this whole area, but particularly in the context of today's report on stalking. I am very grateful for her comments.

The noble Lord, Lord Clinton-Davis, has doubts about whether the amendments add very much to the law. The pressure that we have had as the tablers of these amendments has come from professional probation workers, who are at the sharp end and feel that a change is necessary. Whether that change is correctly encapsulated in these amendments may be another question. It may be that further guidance can be given to meet some of these points, but an issue certainly arises, otherwise there would not have been the wealth of examples. I could have quoted a dozen or more most moving examples that need the attention of Parliament.

Today's report on the reform of the law on stalking by the independent parliamentary inquiry contains five recommendations that are directly relevant to the points covered by these amendments. I was grateful to the Minister for saying that he will give further thought to the amendments in the context of the debate we had last night as well as in that of the report, which add up to a need to give attention to this.

The noble Lord, Lord Thomas of Gresford, gave a very graphic example from direct personal experience. Quite clearly there needs to be some guidance to avoid some of the dangers he outlined in the context of videolinking. Whether that can be done by law or needs to be done in other ways, it is not a satisfactory situation and I can well understand how he feels about it.

The noble Baroness, Lady Farrington, referred to the severity of events not always being properly taken into full account. I can well understand that. The severity, the incidence and the whole background need to be taken into account before proper judgments can be made.

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My noble friend Lord Elystan-Morgan spoke from his immense experience as a judge and a barrister. He emphasised the need for previous history to be available in determining appropriate sentences. Quite clearly, the history is a guiding factor in determining what is or is not appropriate. On dependants, he emphasised the need for courts to consider the totality of the case and the implications that the sentence would have in that totality of circumstances.

The noble Lord, Lord Faulks, questioned whether the courts are neglecting their duties. I imagine that most courts strive in every way they can to undertake their duties and to meet the requirements but, as always, safety nets in law are necessary when there could be courts that fail to do so. I refer to the evidence that has been sent to us by those who are involved in detail on these questions. I am sure that the Minister will take these points on board.

The noble Lord, Lord Howarth, asked me whether the intention is that the amendment should apply to magistrates' courts. It was the intention that it should apply to both Crown Courts and magistrates' courts, but if there are problems here, by all means let us have a look at them. There might be problems with the workload on the courts and the nature of the courts. That might raise the question of which court is most appropriate for some of these matters. These are questions that no doubt the Minister will be willing to consider.

I thank the noble and learned Lord, Lord Judge, for being a supporter of these amendments. He referred to the need for rehabilitation and therefore for maximum information to be available to facilitate that purpose and minimise future crime. That must always be our objective.

I thank the noble Lord, Lord Beecham, for his support for these amendments from the Front Bench. He emphasised the degree of self-harm among women in prison. This must be very high in our minds as we address these questions.

I thank the Minister for his offer of discussions and further meetings to consider the implications of these amendments in the context of other developments. I am sure that the noble Baroness, Lady Gould, will be delighted to accept that offer, and on that basis I beg leave to withdraw the amendment.

Amendment 175 withdrawn.

Amendment 176 not moved.

Clause 61 agreed.

House resumed.

Abu Qatada


4 pm

The Minister of State, Home Office (Lord Henley): My Lords, with the leave of the House, I will now repeat a Statement made earlier in another place by my right honourable friend the Home Secretary. The Statement is as follows:

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"Since December 2001, successive British Governments have sought to deport Abu Qatada to Jordan, his home country, because he poses a serious risk to our national security. Qatada has a long-standing association with al-Qaeda. British courts have found that:

'His reach and the depth of influence ... is formidable ... He provides a religious justification for the act of violence and terror'.

In Jordan, he has been tried and found guilty in absentia of terrorism offences, including conspiracy to cause explosions at western and Israeli targets, and involvement in the bombings of the American School and the Jerusalem Hotel in Amman in 1998.

The House of Lords agreed with the Government that Qatada can be deported to Jordan to face a retrial because of the diplomatic assurances negotiated by Britain and the Jordanian Government. This agreement ensures that individuals deported to Jordan will not be tortured upon their return.

Despite the agreement of the House of Lords that Qatada should be deported, and despite accepting that he would not face mistreatment in Jordan, last month the European Court of Human Rights ruled against his deportation. It did so on the grounds that deportation would be in violation of Article 6 of the convention-the right to a fair trial-because of the risk that evidence obtained from the torture of others would be used against him. Honourable Members should be aware that this argument had already been considered by a British court, which rejected it.

I hardly need to tell the House that the Government disagree vehemently with Strasbourg's ruling. We believe that Abu Qatada should be deported. We are considering all the legal options available, including whether to refer the case to the Grand Chamber. As we do so, we will continue to negotiate with the Jordanians to see what assurances we can be given about the evidence used against Qatada in their courts.

Following the Strasbourg ruling, Qatada's lawyers appealed to the Special Immigration Appeals Commission for bail. We opposed that appeal vigorously, but yesterday it was granted, and will start within a week. The bail conditions are among the most stringent imposed on anybody facing deportation from the UK, and reflect the conditions set out when Qatada was bailed in 2008. He will be under a 22-hour curfew. He will not be allowed to access the internet or any electronic communication devices. He will not be allowed to travel outside an approved boundary. Visitors will need to be approved under very strict conditions. He will be subject to a specific condition preventing attendance at mosques and leading group prayer. If any of these conditions are breached, he will be rearrested and we will seek his immediate detention. But however strict the bail conditions, I continue to believe that Qatada should remain behind bars.

It simply is not acceptable that after guarantees from the Jordanians about his treatment, after British courts have found that he is dangerous and after his removal has been approved by the highest courts in our land, we still cannot deport a dangerous foreign national. We continue to consider the case for a British

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Bill of Rights, and the Prime Minister is leading the Government's attempts to reform the European Court of Human Rights.

The right place for a terrorist is a prison cell and the right place for a foreign terrorist is a foreign prison cell, far away from Britain. That is why we will do everything we can within the existing legal regime to deport Qatada, and we are doing everything we can to reform that regime to avoid these cases in future".

My Lords, that concludes the Statement.

4.04 pm

Lord Rosser: I thank the Minister for repeating the Statement made by the Home Secretary in the other place.

This judgment raises two questions for the House. First, what more are the Government doing to get Abu Qatada deported? Secondly, what are they doing to ensure the public are protected in the mean time?

The Minister has made clear the Government's displeasure at and disagreement with the decision made by the Special Immigration Appeals Commission to free on bail the cleric Abu Qatada. The decision comes in the wake of a ruling by the European Court of Human Rights that Abu Qatada could not be deported to Jordan as he would face what was deemed to be a flagrant denial of justice since he could face a trial based on evidence obtained through torture. As the Minister said, that ruling overturned a decision by our Law Lords. Perhaps the Minister could say when the Government will decide on any form of appeal against the European court's ruling.

Abu Qatada has been detained under immigration laws for the past six and a half years pending his deportation to Jordan. The bail conditions, which have now been set, are in line with those set in 2008 when he was released for a few months. They are substantial and include a 22-hour curfew. Does the Minister know whether it is true, as has been reported in at least one newspaper, that the Special Immigration Appeals Commission judge indicated that the conditions of bail would be relaxed after three months if there was what he-the judge-described as no "demonstrable progress" made with the Jordanians?

We share the Government's position that Abu Qatada should be deported and should stand fair trial in Jordan. There is a need for the Government to pursue discussions with the Jordanian Government to make that possible. The Government, I know, are aware that before the election the British Government had reached agreement with Jordan on safeguards against the use of torture in order to make deportation possible. That agreement has been upheld and endorsed in our own courts. Clearly it is possible to make diplomatic progress. However, we need more evidence that the Government are straining every sinew to address the remaining issue that has now been raised by the court. Perhaps the Minister could say what discussions there have been with the Jordanian Government over the past 12 months on this issue of safeguards so that Abu Qatada can be deported without being put at risk of a trial based on evidence obtained through torture of others. Perhaps more significantly, what discussions

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are expected over the next three months, and how do the Government rate the prospects of bringing such discussions to a successful conclusion?

From the Minister's words it would appear that the Government do not consider the bail conditions sufficient to address the issue of the threat to our security which Abu Qatada represents. Abu Qatada has never been charged in this country. Perhaps the Minister could say whether that is expected to remain the position or whether the issue is under consideration now or is likely to be if the bail conditions-and we know that Qatada has previously broken bail conditions-either continue because it is not possible to deport him or, if it is true, are relaxed after three months.

In addition to the 22-hour curfew, the bail conditions apparently involve no internet or electronic communication devices, no travel outside an approved boundary and restrictions on visitors. These requirements would appear to go beyond the conditions provided for under the Government's revised weaker control orders, the TPIMs-conditions which the Government said would be sufficient to control and keep in check the activities of those who could not be charged but who were deemed to pose a serious threat of terrorist action.

Is it the Government's view that the provisions in their new, weaker, revised control orders, the TPIMs, would be sufficient to control any threat posed by Abu Qatada, assuming that he is released on bail very shortly; or do they take the view that having been released on bail by the Special Immigration Appeals Commission, the more substantial bail conditions which have been set out by the judge are, indeed, all needed? If they are felt to be needed for Abu Qatada, why would they not also be needed for those constrained under the new, weaker control order regime that the Government have introduced, the TPIMs, which are time limited to a maximum of two years, provide only for an overnight residence requirement, provide access to the internet and telephones, and do not enable restrictions to be imposed on someone coming into London?

The Government cannot blame the European Court for their own decision to weaken British counterterrorism powers. We did, of course, urge the Government to keep the previous control order regime at least until after the Olympic Games. The Minister needs to spell out what action will be taken, including the possibility of any further legislation, and what safeguards will be introduced to minimise the risk to national security that the decision to grant bail to Abu Qatada represents both in the immediate future and later this year, at a time when our police and security forces are already going to be stretched to the limit with the Diamond Jubilee celebrations at their peak and the Olympic Games starting.

The courts, the security services and the Home Secretary have all made clear that Abu Qatada is a continuing threat to public safety and national security, and the Home Secretary and the Government should be straining every sinew to get him deported. If they cannot, the Home Secretary should make sure that we have the legislation and the safeguards in place to protect the public now.

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4.10 pm

Lord Henley: My Lords, again I repeat that we regret the decision of the SIAC court, just as we regret even more the earlier decision of the European Court of Human Rights. As I repeated towards the end of the Statement, those things need to be addressed in due course. The noble Lord then asked what we are doing to ensure that Qatada will in due course be deported. I assure him that we will do everything we can, in terms of the negotiations that have taken place and the negotiations that will take place, to make sure that we can deport him to Jordan, and that he will be entitled to a fair trial that is compliant under Article 6. We believe that the European Court of Human Rights got that wrong and that our own courts got it right in that what he was going to face was compliant under Article 6, but that is another matter which is for discussion on future occasions. We will continue to discuss it with the Jordanian Government and I hope that in due course my right honourable friend or myself or both of us will be able to let the House know how we are managing on that. But as regards a timescale, I cannot give the noble Lord one at this stage, and nor do I suspect he would expect to have one from me on this occasion.

The bail conditions are very severe; they are set out in the 1997 SIAC Act and the Immigration Act 1971. We are satisfied that they are appropriate for keeping him under control for the next three months, as is appropriate before we have to look at these matters again. The conditions are more severe than what is available under TPIMs. We discussed at length during the passage of the TPIMs Act the appropriate level of security that we and the security services need for keeping adequate control over dangerous people. I believe that we struck the right balance in reflecting not only the individual's human rights but the security of this country. No doubt the noble Lord would like to use this one particular case to make a political football out of the matter. I think that that is regrettable and I hope that he will not follow that on this occasion. We believe that what we have in TPIMs is appropriate and adequate to deal with the threats that we are likely to face this year and in any subsequent year. We believe that what the previous Government set out was overly onerous and not appropriate to what is necessary to provide security for the individual.

I hope that I have given the noble Lord the appropriate assurances that he wanted on the more important questions. We will, as I said, exert every sinew to ensure that this very dangerous man, Abu Qatada, is deported from this country in due course, with proper respect for law and the support of the courts as is appropriate.

Earl Attlee: My Lords, may I remind the House of the benefit of short questions being put to the Minister so that he may answer as many as possible?

4.14 pm

Lord Dubs: My Lords, is this not perhaps the most obvious example we have ever had of the fact that the use of intercept evidence in limited cases would enable an individual to be brought to trial in this country,

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found guilty and imprisoned without all the problems of the European Court of Human Rights apparently causing us difficulties? If the Government would only allow intercept evidence to be used in limited instances, we might be a lot further forward than we are now.

Lord Henley: Intercept evidence is a matter that we have debated in this House and in another place on a number of occasions. I have debated it from the opposite side of this House in a previous role as a justice spokesman, just as I have as a Minister on this side. It is a very difficult issue. The special committee of privy counsellors should continue to examine it and report to Ministers in due course. Being frank and honest with the noble Lord, I have changed my mind more than once on this issue. It is an issue on which it is very easy to flip-flop between the two sides. The advantages at times seem overwhelming, but one then discovers that the risks to one's intelligence and the sourcing of evidence can be even greater. It is a difficult question and not one that I would want to answer in detail when repeating a Statement of this sort.

Baroness Hamwee: My Lords, the European Court of Human Rights has been reported as saying that our memorandum of understanding with Jordan is one of the best that it has ever seen. I do not know whether the Minister can comment on this, but if he can, can he tell the House whether it is capable of being extended to give the assurances that would be required? I hope that it is, because I speak as someone who-like the Minister, I am sure-is proud of a legal system that rejects evidence obtained by torture.

Lord Henley: My Lords, under no circumstances do we want to make use or encourage the use of evidence that has been obtained by torture. In that, I would agree with my noble friend. All I can say on the memorandum of understanding with the Jordanian Government is that we will continue to discuss this matter with the Jordanian authorities so that we can ensure that we can get the deportation of Qatada, but get it in such a manner that any trial he faces there will be compliant with Article 6, which is what we are seeking to do. We thought that that was what our courts-I think it was the House of Lords before the creation of the Supreme Court-had said was the case. For some reason known only to the European Court of Human Rights-but, then, one always has strange views about it-that court did not agree with us on this occasion.

Lord Morris of Aberavon: My Lords, I am sure that the whole House will agree that public safety must be paramount, and I am confident that Her Majesty's Government are doing their utmost in this situation. Did I understand from the Minister's Statement that something was being done to avoid this kind of situation in the future? On appeals, did he indicate that we could appeal to the Grand Chamber? Would that be evidence-based, and would every ounce of effort be made to ensure that there is such evidence? Do I presume correctly that there is no appeal from the granting of bail?

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Lord Henley: My Lords, I do not know the answer to that last question on the granting of bail, but the fact is that the court has granted him bail, and that is where we are at the moment. Yes, there is the possibility to appeal to the Grand Chamber. That is something that we are looking at, but I cannot go beyond saying that at the moment. If I hear anything more, I will certainly let the noble and learned Lord know in due course. The only other point from the Statement that I want to emphasise is that my right honourable friend made it quite clear, as has my right honourable friend the Prime Minister, that we will continue to look at the case for a British Bill of Rights, which we think is relevant in these matters, and for reforming the European Court of Human Rights. The Government are right to be taking the leading role in that.

Lord Faulks: The Minister has just said that the Government will attempt to reform the European Court of Human Rights. I know that there is great concern about, among other things, the backlog of cases and the insufficient margin of appreciation which ought to be delivered to national courts. Can the Minister help the House with how any such attempts to reform the court might avoid the very situation that we are confronted with now?

Lord Henley: I am afraid that my noble friend has probably asked me the hardest question of all, as to how we can deal with that problem and how it can solve our problems. Nevertheless, we want to make it clear that we think that it is right to look at reform of the ECHR. One of the reasons for that was given by my noble friend-that is, the backlog of cases that has built up there and the fact that the court seems to be involving itself in a whole number of relatively small cases that are not necessarily appropriate to it, particularly when one thinks of reforms brought through by the party opposite that have given us something known as the Supreme Court. It seems rather sad that, as soon as we have something called the Supreme Court, we have to announce that there is a court above it in the form of the European Court of Human Rights. As I said to my noble friend, finding a way to reform a court such as the European Court of Human Rights, which has of the order of 47 different members, will be a difficult job-but it is one that this country should continue to pursue.

Lord Blair of Boughton: My Lords, as somebody who, in a different role, has known of Abu Qatada's case for nearly a decade, I fully understand the dilemma in which the Minister and the Government find themselves. The same dilemma has sat in front of us in different ways for 10 years. I will look forward and then ask the Minister a question. If we go forward three months and it has been impossible to reach an agreement with Jordan, I understand that we would then revert to the TPIMs process. One issue about that process, mentioned by the noble Lord, Lord Rosser, is that it can only be done once, for two years. So in two years and three months, Abu Qatada will be a free man under the current legislative arrangements. While not wanting to make one case into bad law, will the Minister refer this

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specific case to the reviewer of counterterrorist legislation to see whether that two-year rule is sustainable under these circumstances?

Lord Henley: My Lords, I am grateful to the noble Lord for his intervention, for all the experience that he brings to these matters, and for reminding the House, as I did in my Statement, that successive Governments have tried to get this man out of the country for over 10 years, since 2001. This and the previous Government have obviously faced some difficulties in that. The noble Lord talked about the future and mentioned that in three months these bail conditions are likely to expire unless we have got Abu Qatada out of the country-I sincerely hope we will have done-or he will be detained again for some other reason. The noble Lord then speculated that it might be that, after the three months expire, we find we have nothing else to use but TPIMs. As he said, that can only last two years and we would then be in some difficulty. He then rightly stressed the important point that one case might make bad law, and that the matter should be referred to the reviewer of counterterrorism. I can assure the noble Lord that the reviewer will examine this and its consequences. At the moment, we are satisfied that we will make some progress-I hope that we will-and will have a happier outcome to announce within the next three months.

Lord Judd: To follow the intervention by my noble friend Lord Dubs, this is obviously a problem that arises because of the inability to use intercept evidence in court. We all know that. It is a pressing issue because some of us in the House-I am sure I am not alone-would be deeply troubled if we went down the road that would tailor human rights to suit a flawed system of administering justice rather than ensuring that our system of justice was robust enough to handle such a desperate case. This is obviously an incredibly serious case. From that standpoint, it seems that the urgency is not simply to look at human rights in the European context but to look at our system of justice. If we have two systems of justice in operation resulting in the problem now before us, we must ensure that we have one system of European justice capable of dealing with terrorists of this kind.

Lord Henley: My Lords, I am not sure that I would go as far as the noble Lord in saying that we have two systems of justice. We have our own justice but obviously we also have appeals from that to the European Court of Human Rights. His principal question was about intercept evidence. Again, I do not think I can take the noble Lord much further than I took the noble Lord, Lord Dubs. This is a very difficult issue. I appreciate that there are very strong views on either side. It is not a decision that any Government will make lightly. As I said, I have certainly changed my view on this more than once, and I think that others have. I know that my noble friend Lord Howard, who made earlier comments on this, confessed that he had changed his mind on intercept. The same is true of others. It is being looked at by a committee of Privy Counsellors, and we should wait for their decision.

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Lord Swinfen: My Lords, as I understand it, the bail conditions will be personal to Abu Qatada. Will other people living in the same house be allowed mobile phones and devices that can connect to the internet? What is the position with visitors to the house? Will they be properly searched to ensure that no such devices are taken in?

Lord Henley: My Lords, we will ensure that no mobile phones are allowed into that house. That is my understanding, at least, and I will write to my noble friend if I have got it wrong. We will have very strict control over who goes into the house; they will go in only with the approval of the appropriate authorities and only when they have been properly searched. But we do not think it is right that Abu Qatada or other people in that house should have access to electronic devices or the internet that he might be able to use for his own purposes.

Lord Kilclooney: Does the Minister agree that the difficulties in deporting this gentleman would not have arisen if he had not been in the country in the first place? Why do we offer an open door to such people to enter this country and become resident here, and were the particular circumstances of this man's entry into the country investigated in the first place?

Lord Henley: My Lords, I do not know how and why Abu Qatada ever came into this country, but I will no doubt make inquiries for the noble Lord and let him know. Having said that, there are aspects of our policy of allowing asylum to certain people of which this country should be proud. I do not know whether that is how this particular gentleman, as the noble Lord described him, got in. It would have been better if he never had come in-I agree with the noble Lord on that-but I do not think that we necessarily want to pursue a policy whereby no one could come in at all. We want to have the appropriate strict controls; that is something that my right honourable friend has always made clear and some thing that we are tidying up after the mess of the past 15 years.

Lord King of Bridgwater: The last two questions indicate two major issues. One is that extremist preachers in this country have access to exceptional measures of communication that never previously existed and that have become available to many impressionable young people, creating an extremely dangerous situation. The point made by my noble friend of ensuring the total efficacy of the prohibition of access to those means of communication is very important. Secondly, although here we are dealing with Jordan, from which I understand acceptable undertakings have been given by a responsible Government, is it not increasingly the case that there are a huge number of countries of which it is easy for anybody arriving in this country to claim that they will be in danger if they are asked to return there? Finally-and this applies to this case alone-what might be the overall cost incurred by this country, with the number of people that we cannot remove who should properly be removed? Presumably, we are carrying costs that we carried for Abu Qatada while he was in jail-and presumably he is on benefit and carrying further costs as well.

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Lord Henley: My Lords, my noble friend is right to point to the development of modern means of communications over the past 20 or 30 years and the advantages that they give to extremist preachers of this sort, which was never the case in the past. That is one reason why it is very important that we have very tight controls on what forms of communications will be available to Qatada in his house, with his family, when he is subject to bail.

My noble friend asked about other countries and rightly pointed to the problems of deporting individuals to a large number of countries throughout the world because of their human rights record. That is something that we are simply stuck with; there is not much that we can do about it, because of the nature of the countries that we are talking about and the nature of what goes on. Certainly, that imposes enormous costs on us. I cannot give my noble friend precise figures of the costs of Abu Qatada over the past 10 years. However, I think all noble Lords will be pretty sure that they must have been fairly large costs considering that he has spent some five years in prison and is now going to be living at home, presumably surviving on benefits of some sort, along with his wife and five children. The same was true beforehand and there are all the costs of supervision that my noble friend mentioned, which are also very great indeed. Yes, keeping the security of this country is not a cheap option.

Lord Clinton-Davis: Is it not clear that this man has made outrageous and bloodthirsty comments about a variety of circumstances, particularly concerning the Jewish community? Is there any evidence that those threats have been resiled from? If not, that is highly relevant in the circumstances which the Government have to consider.

Lord Henley: My Lords, I am not aware that those have been resiled from but I am grateful to the noble Lord, Lord Clinton-Davis, for emphasising the particularly nasty nature of this man and the sort of threats he has made, to Jewish people and to a great many others. That significant fact ought to be taken into account and I am grateful to the noble Lord for bringing it to the attention of the House.

Lord Empey: The Minister will be aware that there is widespread dismay throughout the country at the course of events, because our own Government and courts look powerless in our own country. Can the Minister advise the House whether any other Government have approached Her Majesty's Government seeking the extradition of this person? I understand that other Governments were interested in him. Is it not also the case that Her Majesty's Government have a duty of care for the security and well-being of the British people? How is that to be exercised and how is it consistent with the release of this individual, who has already been described both by Governments of different colours and by the courts as exceedingly dangerous?

Lord Henley: My Lords, he is to be released but he is to be subject to particularly severe bail conditions, which over the next three months will protect the

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country. However, the noble Lord, Lord Empey, is quite right to refer to the widespread dismay that many people have felt at the decisions of the courts, particularly that earlier decision by the European Court of Human Rights. If it had not decided as it did on that occasion, by now Abu Qatada would be back in Jordan and facing the trial that he properly ought to be facing in that country.

Legal Aid, Sentencing and Punishment of Offenders Bill

Committee (8th Day) (Continued)

4.33 pm

Amendment 176ZZA

Moved by Lord McNally

176ZZA: After Clause 61, insert the following new Clause-

"Sentencing where there is aggravation related to transgender identity

(1) The Criminal Justice Act 2003 is amended as follows.

(2) Section 146 (increase in sentence for aggravation related to disability or sexual orientation) is amended as follows.

(3) In the heading, for "or sexual orientation" substitute ", sexual orientation or transgender identity".

(4) In subsection (2)(a)-

(a) after sub-paragraph (i) omit "or";

(b) at the end insert-

"(iii) the victim being (or being presumed to be) transgender, or".

(5) In subsection (2)(b)-

(a) after sub-paragraph (i) omit "or";

(b) at the end insert ", or

(iii) by hostility towards persons who are transgender."

(6) After subsection (5) insert-

"(6) In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment."

(7) Schedule 21 (determination of minimum term in relation to mandatory life sentence) is amended as follows.

(8) For paragraph 3 substitute-

"3 For the purposes of this Schedule-

(a) an offence is aggravated by sexual orientation if it is committed in circumstances mentioned in section 146(2)(a)(i) or (b)(i);

(b) an offence is aggravated by disability if it is committed in circumstances mentioned in section 146(2)(a)(ii) or (b)(ii);

(c) an offence is aggravated by transgender identity if it is committed in circumstances mentioned in section 146(2)(a)(iii) or (b)(iii)."

(9) In paragraph 5(2)(g) (30 year starting point), after "aggravated by sexual orientation" insert ", disability or transgender identity".

(10) Section 241 of the Armed Forces Act 2006 (increase in sentence for aggravation related to disability or sexual orientation) is amended as follows.

(11) In the heading, for "or sexual orientation" substitute ", sexual orientation or transgender identity".

(12) In subsection (2)(a)-

(a) after sub-paragraph (i) omit "or";

(b) at the end insert-

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"(iii) the victim being (or being presumed to be) transgender, or".

(13) In subsection (2)(b)-

(a) after sub-paragraph (i) omit "or";

(b) at the end insert ", or

(iii) by hostility towards persons who are transgender."

(14) After subsection (5) insert-

"(6) In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.""

The Minister of State, Ministry of Justice (Lord McNally): My Lords, Amendment 176ZZA deals with hate crime. Hate crime is abhorrent and the criminal justice system should be seen to treat it severely. We want to ensure that offenders should be in no doubt that they will face more serious penalties for this type of crime. The effect of this government amendment is to add "transgender identity" to Section 146 of the Criminal Justice Act 2003, which provides for the sentence to be aggravated where the offender demonstrates hostility towards the victim on the basis of a specified personal characteristic. Currently, Section 146 applies to hostility based on the victim's,

Section 145 makes similar provision in relation to hostility based on the victim's race or religion. In addition, the amendment adds references to transgender identity and disability to paragraph 5 of Schedule 21, so that murders aggravated on the basis of hostility towards the victim on those grounds will attract a 30-year starting point.

The amendments are straightforward but I should be clear that "transgender" is an umbrella term that includes, but is not restricted to, being transsexual. It will be for the courts to determine in individual cases whether or not the words or behaviour of the offender constitute hostility based on the victim's transgender identity or presumed transgender identity.

The Government consider that all five monitored strands of hate crime should be treated equally under these particular provisions. This sends a strong message and should, I hope, give more confidence to victims in reporting these dreadful crimes. I beg to move.

Lord Ramsbotham: My Lords, some of the saddest cases that I found in prisons when I was inspecting them were of people suffering from gender dysphoria, who were hoping to be able to change their gender while in prison. This imposed great difficulties on the prisons in which these people were because the facilities were not there to cope with them while they were going through that change. At the same time they faced considerable hostility; indeed, the hate crime that is mentioned in this amendment applies also to the attitude that other prisoners use towards these people in prison. If this is enacted as part of the Bill, will adjustments be made to prison regulations to allow action to be taken against those who show such hatred towards people suffering from gender dysphoria while in prison?

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Lord Beecham: My Lords, it took the good Lord seven days to create heaven and earth and it has taken the noble Lord only a day longer in Committee to come up with something on which I can offer him the Opposition's wholehearted congratulations. We are very pleased with the amendments, which cover two points: the alignment of the starting point of sentencing to cut across all the categories; and the inclusion of transgender people in the scope of the Bill.

Yesterday's Guardian was a disturbing edition, showing that at the moment disabled people generally are being singled out for victimisation in society as a whole. I hope very much that the signal that today's amendment gives will help to counter that disgraceful and worrying development. I congratulate the Minister again on bringing forward the amendments.

Lord McNally: My Lords, to respond to the noble Lord, Lord Ramsbotham, I cannot imagine that actions such as he described are not already covered by prison regulations, but I will examine that and write on the matter.

Amendment 176ZZA agreed.

Amendment 176A had been withdrawn from the Marshalled List.

Amendment 176ZAA (in substitution forAmendment 176ZA)

Moved by Baroness Linklater of Butterstone

176ZAA: After Clause 61, insert the following new Clause-

"Awareness of sentencing options

The Lord Chancellor must make arrangements to ensure that each Probation Trust provides to all magistrates in the area for which it has responsibility-

(a) information about all programmes and options for which it is responsible, and

(b) opportunities to observe such programmes."

Baroness Linklater of Butterstone: My Lords, the amendment would insert a new clause on the subject of awareness of sentencing options. The amendments in this group in my name and that of my noble friend Lord Thomas of Gresford come at the beginning of this very important section of the Bill for which we have been waiting, as has been pointed out, for some considerable time.

The proposed new clause would address the crucial issue of ensuring greater awareness of, and confidence in, the local programmes and provision available to magistrates when they make sentencing decisions. It would require that the Lord Chancellor should ensure that a process was established by which each probation trust liaised with its local court to inform it of the programmes that it provided and gave it opportunities to observe them. That would mean conveying the content and range of programmes, the options that were available and, importantly, their quality. It is all about communication, which informs and facilitates the decision-making processes of the court when it is sentencing. Of course, any discussion of individual sentencing decisions would in this context be entirely

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inappropriate and irrelevant. It is about the generality of provision and provides the statutory basis for effective communication between the magistracy and probation, which is in the interests of both and, of course, of the community.

I pay tribute to the Magistrates' Association, whose chair, and particularly its policy officer Sally Dickinson, have worked with me in framing these amendments. They are wholeheartedly behind the objectives of these proposed new clauses, as indeed is the probation service through the Probation Chiefs Association. I am enormously encouraged by their support, which I hope will convey to the Government just how important those central agencies are in their support.

Most importantly, both proposed new clauses directly reflect the central argument of the Government's Green Paper, which preceded the Bill-that too many people are in prison and that short prison sentences are largely ineffective and counterproductive, as evidenced by the high reoffending rates. Importantly, however, the evidence also shows that robust community-based sentences serve the purposes of justice and a safer society much more effectively because they provide targeted programmes and supervision, which result in greatly lower reoffending rates. The key to the increasing use of these sentences is the combination of understanding and, even more importantly, confidence in what is on offer. I believe that these proposals will be the way to achieve this.

The initiative that I chaired for seven years, Rethinking Crime and Punishment, which was funded by the Esmée Fairbairn Foundation-I declare an interest as a trustee-demonstrated this case unequivocally. We set up a series of visits around the country when magistrates and Crown Court judges visited the probation programmes provided in their patch. Not only were they deeply interested in what they saw but their confidence in the programmes was clearly greatly enhanced when they came together after these visits to discuss what they had seen and heard.

As a result of this work, it became absolutely clear to me that this level of working together is really important. I can say confidently that this feeling was shared by all the sentencers, including judges. Indeed, in the debriefings after the visits, the common response by many sentencers was very enthusiastic, and the phrase, "I had no idea it was like that", was typical. While I was delighted to hear that, it demonstrated to me how little they knew about what alternatives were available to them; it made one wonder just how appropriate, given what was available, their decisions might have been from time to time. That should no longer be the case if we are successful in this amendment.

Probation's role in providing effective alternatives to custody is key to the Government's strategy of reducing the number of short prison sentences. The probation service is the agency with the closest working relationship with the courts in making this provision. Of course, we must bear in mind some of the shortcomings in that area where work has to be done.

Starting from providing the court's pre-sentence report, the service is the prime provider of alternative programmes, working with offenders ranging from

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unpaid work to drug and alcohol programmes, domestic violence programmes, hostels and mental health provision, to name but a few. These are the sort of disposals that it can offer. The voluntary sector is of course an important provider and so, increasingly, is the private sector.

4.45 pm

It is equally important that the visits happen routinely to ensure that magistrates keep up to date. Inevitably, things change and move on over time. Provision develops and people change-it is a busy, evolving scene, and so it should be. Therefore, it is important, too, that regular arrangements are in place. Regular communication and visits also ensure that standards-another important element of giving confidence to sentencers-are sustained and, if necessary, improved to ensure that public as well as sentencers' confidence is maintained.

What is being proposed here does not reinvent the wheel. Liaison committees were originally set up almost 20 years ago as part of the Probation Service Act. They were the vehicles by which the courts and probation service kept in touch. That Act was then repealed by the Criminal Justice and Court Services Act 2000, which removed the statutory basis for these committees, most unfortunately. What we seek here is the restoration of that statutory responsibility to make the arrangements necessary for liaison between probation and magistrates, with an understood programme that has all the necessary back-up built in. This is something that both the probation service and the magistracy seek as the way to ensure that joint working is effective and sustained. A voluntary and informal basis will not do. This may entail simple small details such as magistrates' petrol costs or bus fares to visit projects. I understand that this issue may be under consideration by Her Majesty's Courts and Tribunals Service. I wonder whether the Minister could enlighten me on this when he replies because this, too, is a key issue, small though it may seem.

Both the probation service and the magistracy have undergone considerable structural changes in the past few years. I have worked closely with them for some time and I emphasise that they, who are the key players, believe that the proposed new clause is the best way forward and is in everyone's interests, not least those of the wider community. I am very pleased that the advisory guidelines for liaison between these two providers, issued by the senior presiding judge last December, endorse the importance of this liaison. Indeed, the judge's protocol coincides perfectly with my arguments. The critical purpose of the proposed new clause is to commit both organisations to this mutual working, backed by the statutory requirement to ensure that regular visits do indeed take place within the proper organisational framework.

There is still a well of ignorance among the public at large about how courts, sentences and probation work. Public confidence is very important to the development of effective community sentencing. The proposed new clause is a vital step in bringing the magistrates, who also represent the community, and the probation service together in a greater awareness of how they can work ever more closely together, what

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community sentences are like and what they can achieve. This in turn will help to sustain high standards of delivery of service and underpin our striving for a safer, better society.

My second amendment, Amendment 176ZB, develops logically from my first and again concerns sentencing, specifically the use of short prison sentences of less than six months. The amendment originally presumed that Section 174 of the Criminal Justice Act 2003 would be retained. It places a clear, specific duty on the court to give the reasons for and explain the effect of a sentence, including why and when a community sentence is appropriate, or why the threshold for custody has been reached. In Clause 61 of the Bill, which has already been debated, the Government propose the substitution of this section with a revised set of duties that look very detailed and thorough. I hope to be reassured by the Minister that a strong, specific duty remains on sentencers to explain when the threshold for a custodial sentence has been passed and when the offence is so serious that a community sentence cannot be justified, so that the court and the public will understand clearly how and why a particular decision has been arrived at. I fear that the change in Clause 61 could have the potential to weaken the seriousness with which a custodial sentence is considered by the court and, by extension, the community, which I am sure the Government would not welcome. The courts' attention to these thresholds must not be diluted. The effect of a sentence being properly understood is also very important.

Built into the Government's approach is the presumption that short prison sentences are tougher than community sentences, which in fact is often far from the case. Community sentences can be a great deal more challenging as the offenders are made to face up to their crimes and their problems. By contrast, one has only to think of the phrase describing children in a YOI getting a short prison sentence, for which there is absolutely no supportive input over a short period of time: namely, that they literally sleep through their sentences as they spend most of that time in their cells on their beds. What on earth can that possibly achieve? All the evidence is that short prison sentences are the most ineffective and potentially damaging way of dealing with low-level offending. This was, indeed, implicitly recognised in the Government's Green Paper-I repeat that it is an enlightened and constructive document-which outlined the need to reduce our unacceptably large prison population. The cost in human, social and financial terms to all of us has simply gone far enough.

We must, of course, have punishments for law-breakers and prison has its place, particularly for those violent, dangerous and prolific offenders from whom we need to be protected and for whom prison is appropriate and effective. However, for the majority, particularly for those doing these short sentences, alternatives to custody are less damaging than prison, cheaper to provide, more effective in reducing reoffending and keep society a safer place. It is, as they say, a no-brainer. Punishment must be constructive as well as punitive. It is simply self-defeating and unintelligent to continue to pursue policies which can seriously damage our own interests as well as those of offenders. I am

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reassured that the Green Paper effectively acknowledges and understands this. I hope that I am not reading too much into it. I hope that by the end of this Bill we can see the legislation in place which will reflect this, along the lines of the legislation already passed in Scotland in May of last year, where there is now a clear presumption against all custodial sentences of three months or less.

The purpose of my proposed new clause is to support the Government in their stated aim of reducing the prison population. It focuses specifically on short sentences, not only because of the damage caused by these sentences but because last year the 57 per cent of immediate custodial sentences that were for six months or less had the worst reoffending outcomes. I give noble Lords three quick figures: 67 per cent of those serving under a year, 66 per cent of prolific offenders and 71 per cent of child offenders will all reoffend within a year. My dear-my Lords, that is a lot of reoffending.

Lord Baker of Dorking: Oh!

Baroness Linklater of Butterstone: You are my dear. I have my hero here, so I can say that. I had better go on before I make any more silly mistakes.

In fact, the average sentence from the magistrates' courts is a brief and unconstructive 2.5 months, which came as a surprise to me. I ought to mention that in the Crown Courts the number of all those sentenced to immediate custody went up by 20 per cent last year, which was the highest for 11 years. The killer series of facts is that the National Audit Office estimated that the overall cost to the economy of reoffending by former short-sentence prisoners was between £7 billion and £10 billion in 2007-08; that while prisoners were actually in prison, it cost us an average of £39,500 per prisoner per year; and, amazingly, that the Crown Court process of imposing a prison sentence cost an additional £30,500. Imprisonment and subsequent reoffending comes at an enormous cost.

Here I must thank the Prison Reform Trust for publishing its Bromley Briefings Prison Factfile, which is a gold-mine of statistical information and the source of my figures-when I can get them straight. By contrast, court-ordered community sentences have been demonstrated by countless projects and schemes to be more effective in reducing offending by eight percentage points overall, but with many more really dramatic and successful outcomes all over the country. For example, an assessment of the prolific and other priority offender programme showed a 62 per cent reduction in reconviction rates after 17 months. I refer noble Lords to the booklet published by the Howard League for Penal Reform outlining the work and achievements of community-based programmes, including award-winning ones, the length and breadth of the country-all of which show equally impressive outcomes.

The Government have already invested in payment by results to reduce reoffending, and Social Finance is investing in social impact bonds to finance a programme in Peterborough prison that is in its early days. Such programmes have been generated, are happening and are growing all the time. We must buy into them.

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What sentencers can see and learn when they visit programmes is that for many-probably most-people on a community order this is a much more challenging experience than a few months or weeks in prison. Programmes dealing with domestic violence, drug and alcohol addiction or mental health difficulties, to name but a few, require the person to face up to these issues-a really difficult thing to do-in ways that they will never be able to in prison because such programmes are simply not available to the short-term prisoner, but this is the way that people change their lives.

The proposed new clause in Amendment 176ZB requires that sentencers, when imposing sentences of six months or less, must state in open court why a prison sentence is more appropriate than a community sentence and draw where the threshold comes, so that people can understand what is going on and why the custody threshold has been reached. This, by implication, requires knowledge of the range of available options in the community, so that there is no doubt that the disposal is appropriate and just, and the decision can be clearly explained to the defendant.

There is a jingle in the sentencing business-that it is a roof, a relationship and a job that anyone needs as preconditions when coming out of prison, if they are to have a chance of staying out. Of course, those are the preconditions for most of us if we are to have happy and fulfilled lives. At a stroke, imprisonment can take that all away, making reoffending all too likely and condemning the family to a parallel sentence of its own. Community penalties mean that the three preconditions can stay in place and something constructive can come out of the experience for the offender, the family and the community. The court must explain why, in the light of all the evidence, the decision has been made and where the threshold comes, and give the options available to it. Justice will then have been done. I beg to move.

5 pm

Lord Judd: My Lords, I am very glad to have been able to add my name to these amendments, and would like to say how much I admire the work of the noble Baroness. It is not simply the utterly sensible amendments that she brings to our deliberations, but all the work she does to follow up what she is arguing for in this House. Of course, that is a two-way process, because it also means that when we listen to her, we listen not just to the voice of theory but to the voice of experience and practical engagement. That is a special asset to have in our deliberations.

Punishment is the easy bit. Of course crime must be punished-there is no argument about that-but in a sane society in which reason prevails, the greater challenge is how lives are rebuilt and how, as I said in argument on a previous amendment, we can enable people to become positive citizens contributing to the well-being of society, as distinct from indulging in delinquent behaviour. That is the real challenge. If that is to be done well, it means that those individuals have to be looked at as individuals.

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I remember talking to a chief superintendent of police who was just about to retire when I was president of the YMCA and he was a prominent and active member of the YMCA in Britain. It was a private conversation, so I hope that he will not mind my relaying what he said. He said: "You know, it is a very lonely moment when you are sentenced. Some people respond with more bravado, but the overwhelming majority at that moment feel very lonely. I have always felt that where we get it wrong in our penal policy is that that is the very moment when someone should be there at the elbow of the person concerned saying, 'Isn't this a terrible mess? How are we going to sort it out and try to make some sense of this situation?'".

What the noble Baroness said was not only emotionally powerful-there is no harm in emotion of the kind she was displaying in her remarks today; it is very healthy, and the passion which she feels for these issues is a great challenge to us all-but so important. So many of the people with whom the penal system is dealing have not had proper relationships, have not had people who cared, have not had families able to cope with or relate to them in their situation. There is a desperate need, as I have said in other debates in this House, for someone to take the hand of the person concerned and walk with them through the experience back into full rehabilitation in society, back into the job to which the noble Baroness referred, which is so central.

If that is the case, if we are asking magistrates and others to function on our behalf to tackle those issues, it is imperative that we do everything we can to ensure that magistrates know of all the possibilities which can be considered for the individual in front of them. To have a limited range of possibilities, or not to be very much aware of the range of possibilities, is disastrous because it means that we are not taking seriously the issue of rehabilitation.

On the issue of short sentences, I remember on a visit to a prison-in fact, it has happened more than once in conversation with prison officers-the prison officers themselves saying what nonsense it was and asking: "What on earth are we expected to achieve with these young people? How on earth is this helping them? They are going through a more disruptive experience. They are being taken further away from society and the chance to start rebuilding their lives in detention. What are we doing? What are we expected to be administering on behalf of society?". If it is a matter to be dealt with by some by awarding a short sentence, there must be other means available which are more constructive and intelligent.

I conclude what I want to say in support of the noble Baroness by repeating something which has been said in debates before but which it is not possible to repeat too often. On the door of every cell should be "Rehabilitation?"-with a question mark after it-because, if we are not achieving rehabilitation, what are we doing? We are losing an individual, and we are almost inevitably ensuring future costs for society not only in terms of reoffending but in terms of the cost of dealing with the consequences of that reoffending, with further spells in prison or whatever. I believe that in the whole culture of our penal system and in the culture of the professions that administer

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our penal system there should be a passionate commitment to achieving at all costs, wherever possible, the rehabilitation of offenders. That is why these amendments tabled by the noble Baroness are so right. They make economic and social sense, and I hope that they also make sense when we think about what the values of a decent and civilised society should be. I hope that we care about the individual.

This morning in my old constituency of Portsmouth, where Dickens was born, I attended a ceremony to mark his 200th birthday. During the service in the great St Mary's Church in Portsmouth, which was part of the ceremony, I was startled to hear a piece by Dickens himself on the application of Christian values. I had not read it before, to my shame, but I commend it to Members of this House. With his social commitment and understanding, and his brilliance in setting out the issues with which society is confronted, as well as its responsibilities to put them right, Dickens speaks directly about the whole principle that, if we call ourselves Christians, we must commit ourselves to caring not simply for the victim-although of course the victim matters-but for the offender, with a commitment to enabling the offender to sort out his or her life.

Lord Ramsbotham: My Lords, I, too, have added my name to the amendments tabled by the noble Baroness, Lady Linklater. At the outset, I echo the tributes paid to her by the noble Lord, Lord Judd, and at the same time I pay tribute to the noble Lord for the passion and compassion that he always brings to debates on these subjects.

On Amendment 176ZAA, I have long thought that the provision of sentences with prospectuses of what the prison and probation services can and cannot do for offenders would serve a very useful purpose for the whole of the management system, and therefore I should like to widen the amendment slightly to include the Prison Service. While the noble Baroness was speaking, I could not help reflecting that for the first 100 years of its existence the probation service worked very closely with the courts and the police. It is only in recent years that it has been made subordinate to prisons, and that, to my mind, has given the wrong emphasis.

Everything that the noble Baroness said about Rethinking Crime and Punishment I share, because I had the great privilege of being a member of the initiative's steering group. I entirely endorse everything that she said about the place of the community sentence. However, perhaps I may refer to the prospectuses. First and most obviously, they tell sentencers what is or is not possible and how long that might take to be achieved, because there is no point in somebody embarking on a course which cannot be completed during the sentence.

Of course, there is a danger that, as a result, some sentencers might award sentences that are longer than normal in order to complete a behaviour programme. I believe that that is a fault in the right direction, not least because the present practice of awarding sentences that are too short for the completion of any meaningful remedial action is wasteful of both time and money. As a side-effect, the provision of such a practice might

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also encourage the adoption of what happens in some Scandinavian countries where, at the time of sentence, the sentencer lays down what course of programmes a prisoner has to complete during that sentence. If these are satisfactorily completed before the end of the period of the sentence, the governor of the prison can take the prisoner back to the sentencer and ask for earlier release on the grounds that the conditions laid down have been met. Prisoners can then be released on licence, which saves prison time, space and money.

The second side-effect would be to force the prison and probation services to cost and plan all their offending behaviour and other courses. Knowing how many courses and programmes are required to meet the need of sentencers would for the first time give some indication of the actual shortfall in the current provision. What is more, it would allow individual prisons to be made responsible for conducting certain courses in particular geographical areas rather than the current inefficient system in which individual governors are not bound to carry on from where their predecessors left off-remarkably, and expensively, they are left to decide how they will satisfy particular targets and performance indicators, which may have no relation to overall need and involve the cancellation of programmes initiated by their predecessors. In other words, knowing what has to be done and by when would at last allow some certainty and stability to be applied to the role of each and every prison. I do not want to say more, or to say more about short sentences, except to echo everything that the noble Baroness said. The figures prove how much cheaper community sentences are.

Actually, there is another side-effect because if it was accepted that community sentences were to be the norm-the default position-and the short sentence the opposite, improvements on the provision of the community sentence would be forced, in order to give the public confidence that that is worth while. That links with Amendment 176A because I believe that the prospectus of what can be done in those community sentences is just as important as what is done in custody.

5.15 pm

Lord Woolf: It is with great diffidence that I seek to say a few words as almost everything that can be said on this subject has been said by the three very distinguished noble Lords who preceded me. This is ground that has been well trodden. I fear that the importance of the two amendments may not be appreciated for that reason and that it will be said, "Oh yes, we all know everything contained in the amendments and therefore we can do without them". Perhaps I can rely on my experience in a different capacity to enable me to say that such an approach would be wrong.

For five years, at least, it was my responsibility to try and oversee the sentencing in the courts of England and Wales. We all knew that our sentencing was not working as well as it should. We were distracted from time to time by arguments about whether prison worked but that really was not the issue. The issue was: were we imposing sentences that would most likely result in the offender who was before the court not reoffending but instead, as a result of his previous offending and being brought before the court, setting himself or

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herself on a new road to live as a law-abiding member of the community? Every time that could be achieved-it was not easy to achieve-the community would receive protection that it would not otherwise receive. Every time that that was done, the public would be less in danger than if the course that was adopted was achieved.

That is particularly true in that difficult ground which lies between sentences that can properly take place in the community and those that cannot. There is a very simple way of approaching this. What every court that has to impose sentences involving deprivation of liberty should do is to impose a sentence that is no longer than it has to be. If it has to be a sentence of custody, then it should be as short as is appropriate. In the case of short sentences, any sentencer should have well in mind the real restrictions on what can be done by the Prison Service for those who are sentenced to a short sentence. In the great majority of cases, the position is clear: nothing positive can be achieved by a short sentence, other than to mark the nature of the offence. Magistrates and judges are faced again and again with a situation where they have tried to avoid sending an offender to custody, but his or her conduct has shown that the alternatives are just ignored. Then, with reluctance, the sentencer can, and should, in my judgment, impose, as a final resort, a sentence of imprisonment, as long as the sentencer bears in mind the need to keep that sentence as short as possible. Those are a minority of cases. They are not the cases that make up the statistics to which the noble Baroness, Lady Linklater, referred. They cannot account for that number of people being given sentences that cannot achieve anything positive as the final deterrent.

I tried, and other senior judges tried, to inculcate within the magistrates and the judiciary the importance of keeping the number of prisoners serving short sentences to the minimum. I am bound to say that I never succeeded. Having listened to the speeches made in the course of this short debate, I think it would be marvellous if copies of Hansard containing them could be placed before each judge and magistrate. I am not going to suggest a further amendment to achieve that, but I want to underline that even though it is so well known that the effectiveness of short sentences is so limited, and even though it is so well known that the resources that are spent on short sentences are needed for community sentences, it does not happen. That means that these amendments could just make a difference. For that reason alone, I hope the Government will consider the amendments most seriously. I think it is appropriate to adopt them.

Lord Judd: Perhaps I might ask the noble and learned Lord, Lord Woolf, a question. Does he agree that the villain of the piece is the sensationalist writing-if you can actually call it writing-in some of the populist press about penal matters? Does he also agree that we ignore at our cost the reality that even judges-if I may say so, with respect-are human beings, that magistrates living in the community are very much human beings, and that unfortunately there is a degree of intimidation to the effect that if they do what they believe is right in the circumstances they may be pilloried in a way that is going to be unpleasant for

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them and their families? Is it not time that we all got together and started confronting that element of the media and saying, "You are the very people who are exacerbating the issue of crime and misconduct in society by playing for short-term gains and completely misrepresenting the reality"?

Lord Woolf: I would be bold beyond my own abilities to be bold if I were to try to attribute responsibility between the various players in our society as a whole. I think that we all contribute to the present situation. Judges cannot hide behind the media; magistrates cannot hide behind the media; and I certainly would not have sought to shirk the responsibilities I had by hiding behind the media. Nothing would please me more than if the media could learn the wise lesson that the noble Lord, Lord Judd, was suggesting that they should learn.

The noble Lord is absolutely correct. Sentencing is a lonely business. When you are put under considerable pressure in trying to determine the right sentence, you try to put out of your mind what you read daily in the media, but sometimes it is a very difficult thing to do. But it can just make the difference that I have said is so important between taking the decision of imposing a short sentence and taking the much more sensible course of imposing a positive sentence-one of the sentences that the noble Baroness, Lady Linklater, wants the courts to be aware of-which can so much better be imposed of service in the community.

Lord Ponsonby of Shulbrede: My Lords, I had not intended to intervene in this debate but it has been so important that I felt that I really had to.

Some noble Lords may know that I sit as a magistrate so it is with some trepidation that I follow the noble and learned Lord. I sit as a very junior magistrate in central London and I sit on a probation liaison committee. That committee is of huge importance, both to me personally and to all my colleagues. Of course, we become aware of the sentencing options. It is a training event that happens regularly-it happens every Thursday as well as more substantial training events-and I and my colleagues regard it as extremely helpful to be brought up to date on a continuous basis with all the community sentence courses that are available.

I very much support the first amendment of the noble Baroness, Lady Linklater. It is of huge importance. It is particularly important that it is on a statutory basis because that will recognise the importance of that work in giving magistrates confidence in the community sentences so they can go ahead and issue them. That is an absolutely central point, about which I can talk from my own experience.

I also take the point made by the noble Lord, Lord Ramsbotham, about programmes sometimes being too long to fit in with the length of the community sentence. I have come across this issue several times. One needs to have a real faith and trust in the probation reports that one is given in order to come up, if you like, with the minimum time realistically to achieve the elements within those sentences. Again, that comes down to a question of professional trust between the different elements in any court.

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Even though I agree with the general views on minimum sentences, I am rather less enthusiastic about the noble Baroness's second amendment which concerns them. In my experience, some 90 to 95 per cent of the short-term sentences that I have given have been for people who have broken their community orders. I understand that that is not an attractive argument but that is the reality of my sentencing experience here in London. Of course we constantly look at the alternatives. No one wants to give short-term custodial sentences. I understand that they are very often ineffective, but the reality is that very often the people to whom one gives those sentences have already failed on their community orders.

Lord Woolf: My Lords, does the noble Lord not think that the amendment clearly covers that case? It allows a short sentence to be imposed when there is no other appropriate way of dealing with the offender. If you have imposed a sentence and the offender has not complied with it, surely that is a classic example of a situation where there is no other appropriate method of dealing with the offender. I say that with diffidence because I appreciate how difficult it is for magistrates to deal with the sort of offender the noble Lord has just described.

Lord Ponsonby of Shulbrede: The noble and learned Lord, Lord Woolf, is of course correct. Magistrates already give their reasons and say why it is so serious that only a custodial sentence will do. I was really addressing the speech made by the noble Baroness, a substantial part of which was against short sentences per se. I understand that the amendment does not make that point, but, because of her speech, I felt duty bound to point out that the reality is that we are very often sentencing for breaches of community orders. Nevertheless, this is an important debate and I am happy to support both amendments.

Lord Beecham: My Lords, I defer to the huge wisdom and practical experience of all noble Lords who have spoken in this debate. In particular, I congratulate the noble Baroness, Lady Linklater, on the clarity with which she developed her arguments in respect of both amendments. Like her, I am indebted to the Prison Reform Trust for its briefing. I should say that I am a member of an advisory group on young offenders that is run by the Prison Reform Trust.

On the first amendment, clearly it would be helpful to everyone involved in the system for the maximum degree of information to be available to those who are charged with the responsibility of sentencing-and in so doing, to take advantage of the work of the Local Crime: Community Sentence initiative which is run by the Magistrates' Association and the Probation Association and has been endorsed by the Lord Chief Justice. This is in part to assist magistrates in coming to their decisions, but also in part to ensure that the public are aware that community penalties can be and often are an effective alternative to imprisonment. But there is a feeling that, perhaps due to pressures on the probation service in particular, there has been a reduction in the degree to which the two are working together

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and communicating effectively in practice. It is no easy task to deal with the volume of cases that come before the courts, either from the standpoint of the probation service or, indeed, from that of the magistracy and those who provide advice to magistrates. This amendment certainly offers an opportunity to develop what has been good practice and ensure that it is spread more widely.

5.30 pm

On the second amendment, my noble friend Lord Ponsonby touched on an interesting area, which is the degree to which short sentences are used to deal with breaches of community orders and the like. It could be argued that custodial sentences are sometimes imposed too readily in such cases, but in any event, as the noble and learned Lord, Lord Woolf, implied, they are potentially a discrete category and one could well see them falling within the qualification which, as the noble and learned Lord reminded us, is part of the provision. It is interesting to note that the former chair of the Public Accounts Committee, Mr Edward Leigh-who I think would be the first to say that he could not be counted among the most liberal-minded of politicians-in talking about short prison terms, observed:

"They served little purpose over and above taking the offenders in question out of the community for a short time ...The uncomfortable truth is that they are not working, studying or doing almost anything constructive with their time. Indeed, half of then them spend all day, every day sitting in their cells".

That is true of more than those serving short sentences in prison. Whatever else happens as we develop our penal system, it is clearly necessary to do more than simply confine people if they are to be rehabilitated and, indeed, to constructively pay their debt to society. So whether it is a shorter sentence or a longer sentence, support and guidance needs to be provided as well as retribution, along with support once people leave prison. That is not always available, in many cases even for people serving longer sentences than a couple of months. It is a matter which has to be addressed.

If I have one other reservation about the amendment it is that, paradoxically, it might push magistrates in the wrong direction from the point of view of the mover of the amendment. They might feel that rather than being obliged to give reasons for imposing short sentences, they could go the whole hog, as it were, and impose longer sentences. I am not sure whether the noble Baroness or other noble Lords would welcome that, but it is a temptation that might present itself in certain circumstances. I have just that one reservation.

Lord Faulks: Although I accept the general points made by the noble Lord about the general undesirability of short sentences, does he accept that there are some cases where the clang of the prison door really is the only answer for repeated minor offences? Notwithstanding all the valuable points about how little can be achieved, something can sometimes be achieved in some circumstances by the very fact of incarceration.

Lord Beecham: I think that that is right, and indeed the noble and learned Lord, Lord Woolf, said very much the same. It is quite possible, within the ambit of the amendment, to achieve that objective. There may

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well be cases where what some call the "short sharp shock" may work. I think it will work in probably only a relatively small number of cases, but the option should certainly be open.

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